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  • News: Joint DHS/DOL Interim Final H-2B Rule with Request for Comments

    Federal Register, Volume 80 Issue 82 (Wednesday, April 29, 2015)
    [Federal Register Volume 80, Number 82 (Wednesday, April 29, 2015)]
    [Rules and Regulations]
    [Pages 24041-24144]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2015-09694]
    
    
    
    [[Page 24041]]
    
    Vol. 80
    
    Wednesday,
    
    No. 82
    
    April 29, 2015
    
    Part IV
    
    
    
    
    
    Department of Homeland Security
    
    
    
    
    
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    8 CFR Part 214
    
    
    
    
    
    Department of Labor
    
    
    
    
    
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    Employment and Training Administration
    
    
    
    
    
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    20 CFR Part 655
    
    
    
    
    
    
    
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    Wage and Hour Division
    
    
    
    
    
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    29 CFR Part 503
    
    
    
    
    
    Temporary Non-Agricultural Employment of H-2B Aliens in the United 
    States; Interim Final Rule
    
    Federal Register / Vol. 80 , No. 82 / Wednesday, April 29, 2015 / 
    Rules and Regulations
    
    [[Page 24042]]
    
    
    -----------------------------------------------------------------------
    
    DEPARTMENT OF HOMELAND SECURITY
    
    8 CFR Part 214
    
    [CIS No. 2563-15]
    RIN 1615-AC06
    
    DEPARTMENT OF LABOR
    
    Employment and Training Administration
    
    20 CFR Part 655
    
    Wage and Hour Division
    
    29 CFR Part 503
    
    RIN 1205-AB76
    
    
    Temporary Non-Agricultural Employment of H-2B Aliens in the 
    United States
    
    AGENCY: U.S. Citizenship and Immigration Services, Department of 
    Homeland Security; Employment and Training Administration, and Wage and 
    Hour Division, Labor.
    
    ACTION: Interim final rule; request for comments.
    
    -----------------------------------------------------------------------
    
    SUMMARY: The Department of Homeland Security (DHS) and the Department 
    of Labor (DOL) are jointly issuing regulations governing the 
    certification of the employment of nonimmigrant workers in temporary or 
    seasonal non-agricultural employment and the enforcement of the 
    obligations applicable to employers of such nonimmigrant workers. This 
    interim final rule establishes the process by which employers obtain a 
    temporary labor certification from DOL for use in petitioning DHS to 
    employ a nonimmigrant worker in H-2B status. We are also issuing 
    regulations to provide for increased worker protections for both United 
    States (U.S.) and foreign workers. DHS and DOL are issuing 
    simultaneously with this rule a companion rule governing the 
    methodology to set the prevailing wage in the H-2B program.
    
    DATES: This interim final rule is effective April 29, 2015. Interested 
    persons are invited to submit written comments on this interim final 
    rule on or before June 29, 2015.
    
    ADDRESSES: You may submit comments, identified by Regulatory 
    Information Number (RIN) 1205-AB76, by any one of the following 
    methods:
         Federal e-Rulemaking Portal www.regulations.gov. Follow 
    the Web site instructions for submitting comments.
         Mail or Hand Delivery/Courier: Please submit all written 
    comments (including disk and CD-ROM submissions) to Adele Gagliardi, 
    Administrator, Office of Policy Development and Research, Employment 
    and Training Administration, U.S. Department of Labor, 200 Constitution 
    Avenue NW., Room N-5641, Washington, DC 20210.
        Please submit your comments by only one method. Comments received 
    by means other than those listed above or received after the comment 
    period has closed will not be reviewed. The Departments will post all 
    comments received on http://www.regulations.gov without making any 
    change to the comments, including any personal information provided. 
    The http://www.regulations.gov Web site is the Federal e-rulemaking 
    portal and all comments posted there are available and accessible to 
    the public. The Departments caution commenters not to include personal 
    information such as Social Security Numbers, personal addresses, 
    telephone numbers, and email addresses in their comments as such 
    information will become viewable by the public on the http://www.regulations.gov Web site. It is the commenter's responsibility to 
    safeguard his or her information. Comments submitted through http://www.regulations.gov will not include the commenter's email address 
    unless the commenter chooses to include that information as part of his 
    or her comment.
        Postal delivery in Washington, DC, may be delayed due to security 
    concerns. Therefore, the Departments encourage the public to submit 
    comments through the http://www.regulations.gov Web site.
        Docket: For access to the docket to read background documents or 
    comments received, go to the Federal eRulemaking portal at http://www.regulations.gov. The Departments will also make all the comments 
    received available for public inspection during normal business hours 
    at the Employment and Training Administration (ETA) Office of Policy 
    Development and Research at the above address. If you need assistance 
    to review the comments, DOL will provide you with appropriate aids such 
    as readers or print magnifiers. DOL will make copies of the rule 
    available, upon request, in large print and as an electronic file on 
    computer disk. DOL will consider providing the interim final rule in 
    other formats upon request. To schedule an appointment to review the 
    comments and/or obtain the rule in an alternate format, contact the ETA 
    Office of Policy Development and Research at (202) 693-3700 (VOICE) 
    (this is not a toll-free number) or 1-877-889-5627 (TTY/TDD).
    
    FOR FURTHER INFORMATION CONTACT: For further information on 8 CFR part 
    214, contact Steven W. Viger, Adjudications Officer (Policy), Office of 
    Policy and Strategy, U.S. Citizenship and Immigration Services, 
    Department of Homeland Security, 20 Massachusetts NW., Washington, DC 
    20529-2060; Telephone (202) 272-1470 (this is not a toll-free number).
        For further information on 20 CFR part 655, subpart A, contact 
    William W. Thompson, II, Acting Administrator, Office of Foreign Labor 
    Certification, ETA, U.S. Department of Labor, 200 Constitution Avenue 
    NW., Room C-4312, Washington, DC 20210; Telephone (202) 693-3010 (this 
    is not a toll-free number). Individuals with hearing or speech 
    impairments may access the telephone number above via TTY by calling 
    the toll-free Federal Information Relay Service at 1-800-877-8339.
        For further information on 29 CFR part 503, contact Mary Ziegler, 
    Director, Division of Regulations, Legislation, and Interpretation, 
    Wage and Hour Division, U.S. Department of Labor, 200 Constitution 
    Avenue NW., Room S-3510, Washington, DC 20210; Telephone (202) 693-0071 
    (this is not a toll-free number). Individuals with hearing or speech 
    impairments may access the telephone number above via TTY by calling 
    the toll-free Federal Information Relay Service at 1-800-877-8339.
    
    SUPPLEMENTARY INFORMATION: 
    
    I. Executive Summary
    
        The Immigration and Nationality Act (INA) establishes the H-2B 
    nonimmigrant classification for a non-agricultural temporary worker 
    ``having a residence in a foreign country which he has no intention of 
    abandoning who is coming temporarily to the United States to perform . 
    . . temporary [non-agricultural] service or labor if unemployed persons 
    capable of performing such service or labor cannot be found in this 
    country.'' 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 
    101(a)(15)(H)(ii)(b). In accordance with the INA and as discussed in 
    detail in this preamble, the Department of Homeland Security (DHS) 
    consults with the Department of Labor (DOL) with respect to the H-2B 
    program, and DOL provides advice on whether U.S. workers capable of 
    performing the temporary services or labor are available. See 8 U.S.C. 
    1184(c)(1), INA
    
    [[Page 24043]]
    
    section 214(c)(1) (providing for DHS to consult with ``appropriate 
    agencies of the government''). Under DHS regulations, an H-2B petition 
    for temporary employment must be accompanied by an approved temporary 
    labor certification from DOL, which serves as DOL's advice to DHS 
    regarding whether a qualified U.S. worker is available to fill the 
    petitioning H-2B employer's job opportunity and whether a foreign 
    worker's employment in the job opportunity will adversely affect the 
    wages or working conditions of similarly employed U.S. workers. See 8 
    CFR 214.2(h)(6)(iii)(A) and (D).
        This interim final rule, which is virtually identical to the 2012 
    final rule that DOL developed following public notice and comment, 
    improves DOL's ability to determine whether it is appropriate to grant 
    a temporary employment certification. For reasons described in further 
    detail below, DOL never implemented the 2012 final rule; as a result, 
    this rulemaking contains a number of improvements to the temporary 
    employment certification process that was in place on March 4, 2015. 
    This interim final rule expands the ability of U.S. workers to become 
    aware of the job opportunities in question and to apply for 
    opportunities in which they are interested. For example, this interim 
    final rule includes new recruitment and other requirements to broaden 
    the dissemination of job offer information (such as by introducing the 
    electronic job registry and the possibility of additional required 
    contact with community-based organizations). The interim final rule 
    also requires the job offer to remain open to U.S. workers until 21 
    days before the employer's start date of need, which provides a longer 
    application period that ends closer to the date of need than was 
    previously required. The interim final rule also reverts back to the 
    compliance-based certification model that had been used prior to the 
    2008 final rule, rather than continuing to use the attestation model. 
    Finally, the interim final rule also adopts an employer registration 
    process that requires employers to demonstrate their temporary need for 
    labor or services before they apply for a temporary labor 
    certification, which expedites the certification process; additionally, 
    the resulting registration may remain valid for up to three years, 
    thereby shortening the employer's certification process in future 
    years.
        The interim final rule also provides a number of additional worker 
    protections, such as increasing the number of hours per week required 
    for full-time employment and requiring that U.S. workers in 
    corresponding employment receive the same wages and benefits as the H-
    2B workers. It also requires that employers must guarantee employment 
    for a total number of work hours equal to at least three-fourths of the 
    workdays in specific periods for both H-2B workers and workers in 
    corresponding employment. The interim final rule requires employers to 
    pay visa and related fees of H-2B workers, and it requires employers to 
    pay the inbound transportation and subsistence costs of workers who 
    complete 50 percent of the job order period and the outbound 
    transportation and subsistence expenses of employees who complete the 
    entire job order period. Finally, it prohibits employers from 
    retaliating against employees for exercising rights under the H-2B 
    program.
        The interim final rule also contains a number of provisions that 
    will lead to increased transparency. It requires employers to disclose 
    their use of foreign labor recruiters in the solicitation of workers; 
    to provide workers with earnings statements, with hours worked and 
    offered and deductions clearly specified; to provide workers with 
    copies of the job order; and to display a poster describing employee 
    rights and protections. The Departments believe that these procedures 
    and additional worker protections will lead to an improved temporary 
    employment certification process.
        Summing the present value of the costs associated with this 
    rulemaking in Years 1-10 results in total discounted costs over 10 
    years of $9.24 million to $10.58 million (with 7 percent and 3 percent 
    discounting, respectively).
    
                              Table 1--Summary of Estimated Cost and Transfers by Provision
                                                  [Millions of dollars]
    ----------------------------------------------------------------------------------------------------------------
                Undiscounted                          Transfers and costs by year (in millions of dollars)
    ----------------------------------------------------------------------------------------------------------------
                Cost component                  Year 1  costs           Year 2-10 costs          Year 1-10 costs
    ----------------------------------------------------------------------------------------------------------------
                                                        Transfers
    ----------------------------------------------------------------------------------------------------------------
    Corresponding Workers' Wages--Low....  $18.21.................  $18.21.................  $182.1
    Corresponding Workers' Wages--High...  $54.62.................  $54.62.................  $546.2
    Transportation.......................  $55.19.................  $55.19.................  $551.9
    Subsistence..........................  $3.13..................  $3.13..................  $31.3
    Lodging..............................  $1.87..................  $1.87..................  $18.66
    Visa and Border Crossing Fees........  $10.65.................  $10.65.................  $106.48
    Total Transfers--Low.................  $87.24.................  $87.24.................  $890.43
    Total Transfers--High................  $125.45................  $125.45................  $1,254.52
    ----------------------------------------------------------------------------------------------------------------
                                                   Costs to Employers
    ----------------------------------------------------------------------------------------------------------------
    Additional Recruiting................  $0.76..................  $0.76..................  $7.57
    Disclosure of Job Order..............  $0.23..................  $0.23..................  $2.34
    Read and Understand Rule.............  $0.98..................  $0.....................  $0.98
    Document Retention...................  $0.27..................  $0.....................  $0.27
    Other Provisions \a\.................  $0.014.................  $0.014.................  $0.14
                                          --------------------------------------------------------------------------
        Total Costs to Employers.........  $2.25..................  $1.01..................  $11.30
    ----------------------------------------------------------------------------------------------------------------
                                                   Costs to Government
    ----------------------------------------------------------------------------------------------------------------
    Electronic Job Registry..............  $0.14..................  $0.05..................  $0.56
    
    [[Page 24044]]
    
     
    Enhanced U.S. Worker Referral Period.  Not Estimated..........  Not Estimated..........  Not Estimated
                                          --------------------------------------------------------------------------
        Total Costs to Government........  $0.14..................  $0.05..................  $0.56
    ----------------------------------------------------------------------------------------------------------------
                                                 Total Costs & Transfers
    ----------------------------------------------------------------------------------------------------------------
    Total Costs and Transfers--Low.......  $91.43.................  $90.09.................  $902.28
    Total Costs and Transfers--High......  $127.84................  $126.50................  $1,266.37
    Total Transfers--Low.................  $89.04.................  $89.04.................  $890.43
    Total Transfers--High................  $125.45................  $125.45................  $1,254.52
    Total Costs..........................  $2.39..................  $1.05..................  $11.85
    ----------------------------------------------------------------------------------------------------------------
    Note: Totals may not sum due to rounding.
    \a\ Includes the sum of: Elimination of Attestation-Based Model; Post Job Opportunity; Workers Rights Poster.
    
    
         Table 2--Summary of Costs and Transfers--Sum of Present Values
    ------------------------------------------------------------------------
                                                                  Transfers
                                                                  and costs
                                                                  (millions
                           Cost component                        of dollars)
                                                                ------------
                                                                  Year 1-10
                                                                    costs
    ------------------------------------------------------------------------
                      Present Value--7% Real Interest Rate
    ------------------------------------------------------------------------
    Total Costs & Transfers--Low...............................      $678.42
    Total Costs & Transfers--High..............................       952.04
    Total Transfers--Low.......................................       669.18
    Total Transfers--High......................................       942.80
    Total Costs................................................         9.24
    ------------------------------------------------------------------------
                      Present Value--3% Real Interest Rate
    ------------------------------------------------------------------------
    Total Costs & Transfers--Low...............................      $792.92
    Total Costs & Transfers--High..............................     1,112.81
    Total Transfers--Low.......................................       782.34
    Total Transfers--High......................................     1,102.23
    Total Costs................................................        10.58
    ------------------------------------------------------------------------
    Note: Totals may not sum due to rounding.
    
    II. Background
    
    A. The Statutory and Regulatory Framework
    
        The INA establishes the H-2B nonimmigrant classification for a non-
    agricultural temporary worker ``having a residence in a foreign country 
    which he has no intention of abandoning who is coming temporarily to 
    the United States to perform . . . temporary [non-agricultural] service 
    or labor if unemployed persons capable of performing such service or 
    labor cannot be found in this country.'' 8 U.S.C. 
    1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b). Section 
    214(c)(1) of the INA, 8 U.S.C. 1184(c)(1), requires an importing 
    employer (H-2B employer) to petition DHS for classification of the 
    prospective temporary worker as an H-2B nonimmigrant.\1\ DHS must 
    approve this petition before the beneficiary can be considered eligible 
    for an H-2B visa or H-2B status. Finally, the INA requires that ``[t]he 
    question of importing any alien as [an H-2B] nonimmigrant . . . in any 
    specific case or specific cases shall be determined by [DHS], after 
    consultation with appropriate agencies of the Government, upon petition 
    of the importing employer.'' 8 U.S.C. 1184(c)(1), INA section 
    214(c)(1).
    ---------------------------------------------------------------------------
    
        \1\ Under section 1517 of title XV of the Homeland Security Act 
    of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, any reference to 
    the Attorney General in a provision of the INA describing functions 
    that were transferred from the Attorney General or other Department 
    of Justice official to DHS by the HSA ``shall be deemed to refer to 
    the Secretary'' of Homeland Security. See 6 U.S.C. 557 (2003) 
    (codifying HSA, tit. XV, sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 
    1551 note.
    ---------------------------------------------------------------------------
    
        Pursuant to the above-referenced authorities, DHS has promulgated 
    regulations implementing the H-2B program. See, e.g., 73 FR 78104 (Dec. 
    19, 2008). These regulations prescribe the conditions under which DHS 
    may grant an employer's petition to classify an alien as an H-2B 
    worker. See 8 CFR 214.2(h)(6). U.S. Citizenship and Immigration 
    Services (USCIS) is the component agency within DHS that adjudicates H-
    2B petitions. Id.
        USCIS examines H-2B petitions for compliance with a range of 
    statutory and regulatory requirements. For instance, USCIS will examine 
    each petition to ensure, inter alia, (1) that the job opportunity in 
    the employer's petition is of a temporary nature, 8 CFR 
    214.2(h)(1)(ii)(D), (6)(ii) and (6)(vi)(D); (2) that the beneficiary 
    alien meets the educational, training, experience, or other 
    requirements, if any, attendant to the job opportunity described in the 
    petition, 8 CFR 214.2(h)(6)(vi)(C); (3) that there are sufficiently 
    available H-2B visas in light of the applicable numerical limitation 
    for H-2B visas, 8 CFR 214.2(h)(8)(ii)(A); and (4) that the application 
    is submitted consistent with strict requirements ensuring the integrity 
    of the H-2B system, 8 CFR 214.2(h)(6)(i)(B), (6)(i)(F).\2\
    ---------------------------------------------------------------------------
    
        \2\ DHS also publishes annually a list of countries whose 
    nationals are eligible to participate in the H-2B visa program in 
    the coming year. See 8 CFR 214.2(h)(6)(i)(E); see also, e.g., 79 FR 
    3214 (Jan. 17, 2014 notice of eligible country list). As part of its 
    adjudication of H-2B petitions, USCIS must determine whether the 
    alien beneficiary is a national of a country on the list; if not, 
    USCIS must determine whether it is in the U.S. national interest for 
    that alien to be a beneficiary of such petition. See 8 CFR 
    214.2(h)(6)(i)(E).
    ---------------------------------------------------------------------------
    
        DHS has implemented the statutory protections attendant to the H-2B 
    program, by regulation. See 8 CFR 214.2(h)(6)(iii), (iv), and (v). In 
    accordance with the statutory mandate at 8 U.S.C. 1184(c)(1), INA 
    section 214(c)(1), that DHS consult with ``appropriate agencies of the 
    government'' to determine eligibility for H-2B nonimmigrant status, DHS 
    (and the former Immigration and Naturalization Service (``legacy 
    INS'')) have long recognized that the most effective administration of 
    the H-2B program requires consultation with DOL to advise whether U.S. 
    workers capable of performing the temporary services or labor are 
    available. See, e.g., Temporary Alien Workers Seeking Classification 
    Under the Immigration and Nationality Act, 55 FR 2606, 2617 (Jan. 26, 
    1990) (``The Service must seek advice from the Department of Labor 
    under the H-2B classification because the statute requires a showing 
    that unemployed U.S. workers are not available to perform the services 
    before a petition can be approved. The Department of Labor is the 
    appropriate agency of the Government to make such a labor
    
    [[Page 24045]]
    
    market finding. The Service supports the process which the Department 
    of Labor uses for testing the labor market and assuring that wages and 
    working conditions of U.S. workers will not be adversely affected by 
    employment of alien workers.'').
        Accordingly, DHS regulations require that an H-2B petition for 
    temporary employment in the United States must be accompanied by an 
    approved temporary labor certification from DOL. 8 CFR 
    214.2(h)(6)(iii)(A) and (iv)(A).\3\ The temporary labor certification 
    serves as DOL's advice to DHS with respect to whether a qualified U.S. 
    worker is available to fill the petitioning H-2B employer's job 
    opportunity and whether a foreign worker's employment in the job 
    opportunity will adversely affect the wages or working conditions of 
    similarly employed U.S. workers. See 8 CFR 214.2(h)(6)(iii)(A) and (D). 
    In addition, as part of DOL's certification, DHS regulations require 
    DOL to ``determine the prevailing wage applicable to an application for 
    temporary labor certification in accordance with the Secretary of 
    Labor's regulation at 20 CFR 655.10.'' 8 CFR 214.2(h)(6)(iii)(D).
    ---------------------------------------------------------------------------
    
        \3\ The regulation establishes a different procedure for the 
    Territory of Guam, under which a petitioning employer must apply for 
    a temporary labor certification with the Governor of Guam. 8 CFR 
    214.2(h)(6)(iii)(A).
    ---------------------------------------------------------------------------
    
        DHS relies on DOL's advice in this area, as DOL is the appropriate 
    government agency with expertise in labor questions and historic and 
    specific expertise in addressing labor protection questions related to 
    the H-2B program. This advice helps DHS fulfill its statutory duty to 
    determine, prior to approving an H-2B petition, that unemployed U.S. 
    workers capable of performing the relevant service or labor cannot be 
    found in the United States. 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 
    101(a)(15)(H)(ii)(b); 8 U.S.C. 1184(c)(1), INA section 214(c)(1). DHS 
    has therefore made DOL's approval of a temporary labor certification a 
    condition precedent to the acceptance of the H-2B petition. 8 CFR 
    214.2(h)(6)(iii) and (vi). Following receipt of an approved DOL 
    temporary labor certification and other required evidence, USCIS may 
    adjudicate an employer's complete H-2B petition. Id.
        Consistent with the above-referenced authorities, since at least 
    1968,\4\ DOL has established regulatory procedures to certify whether a 
    qualified U.S. worker is available to fill the job opportunity 
    described in the employer's petition for a temporary nonagricultural 
    worker, and whether a foreign worker's employment in the job 
    opportunity will adversely affect the wages or working conditions of 
    similarly employed U.S. workers. See 20 CFR part 655, subpart A. This 
    interim final rule establishes the process by which employers obtain a 
    temporary labor certification and the protections that apply to H-2B 
    workers and corresponding workers. As part of DOL's temporary labor 
    certification process, which is a condition precedent for employers 
    seeking to apply for H-2B workers under DHS regulations, 8 CFR 
    214.2(h)(6)(iii)(D) and (iv), DOL sets the minimum wage that employers 
    must offer and pay foreign workers admitted to the United States in H-
    2B nonimmigrant status. See 20 CFR 655.10. The companion final wage 
    rule issued simultaneously with this interim final rule establishes 
    DOL's methodology for setting the wage, consistent with the INA and 
    existing DHS regulations.
    ---------------------------------------------------------------------------
    
        \4\ DHS has required a temporary labor certification as a 
    condition precedent to adjudication of an H-2B petition for 
    temporary employment in the United States since 2008. 73 FR 78103. 
    DOL, however, has promulgated regulations governing its adjudication 
    of employer applications for temporary labor certification since 
    1968. See 33 FR 7570 (May 22, 1968) (DOL final rule on certification 
    of temporary foreign labor for industries other than agriculture and 
    logging). Until 1986, there was a single H-2 temporary worker 
    classification applicable to both temporary agricultural and non-
    agricultural workers. In 1986, Congress revised the INA to create 
    two separate programs for agricultural (H-2A) and non-agricultural 
    (H-2B) workers. See INA 101(a)(15)(H)(ii), 66 Stat. 163 (June 27, 
    1952); Immigration Reform and Control Act of 1986, Pub. L. 99-603, 
    sec. 301, 100 Stat. 3359. Under the 1968 final rule, DOL considered, 
    ``such matter[s] as the employer's attempts to recruit workers and 
    the appropriateness of the wages and working conditions offered.'' 
    33 FR at 7571.
    ---------------------------------------------------------------------------
    
        As discussed above, DHS has determined that the most effective 
    implementation of the statutory labor protections in the H-2B program 
    requires that DHS consult with DOL for its advice about matters with 
    which DOL has unique expertise, particularly questions about testing 
    the U.S. labor market and the methodology for setting the prevailing 
    wage in the H-2B program. The most effective method for DOL to provide 
    this consultation is by the agencies setting forth in regulations the 
    standards that DOL will use to provide that advice. These rules set the 
    standards by which employers demonstrate to DOL that they have tested 
    the labor market and found no or insufficient numbers of qualified, 
    available U.S. workers, and set the standards by which employers 
    demonstrate to DOL that the offered employment does not adversely 
    affect U.S. workers. By setting forth this structure in regulations, 
    DHS and DOL ensure the provision of this advice by DOL is consistent, 
    transparent, and provided in the form that is most useful to DHS.
        In addition, effective January 18, 2009, pursuant to 8 U.S.C. 
    1184(c)(14)(B), INA section 214(c)(14)(B), DHS transferred to DOL its 
    enforcement authority for the H-2B program. See, e.g., 8 CFR 
    214.2(h)(6)(ix) (stating that DOL may investigate employers to enforce 
    compliance with the conditions of, among other things, an H-2B petition 
    and a DOL-approved temporary labor certification). Under this 
    authority, and after consultation with DHS, DOL established regulations 
    governing enforcement of employer obligations and the terms and 
    conditions of H-2B employment. Accordingly, this interim final rule 
    sets forth enforcement provisions.
        As discussed in greater detail below, DOL's authority to issue its 
    own legislative rules to carry out its duties under the INA has been 
    challenged in litigation. On April 1, 2013, the U.S. Court of Appeals 
    for the Eleventh Circuit upheld a district court decision that granted 
    a preliminary injunction against enforcement of the 2012 H-2B rule, 77 
    FR 10038, on the ground that the employers were likely to prevail on 
    their allegation that DOL lacks H-2B rulemaking authority. Bayou Lawn & 
    Landscape Servs. v. Sec'y of Labor, 713 F.3d 1080 (11th Cir. 2013). As 
    a result of the preliminary injunction in Bayou, DOL continued to 
    operate the H-2B program under the predecessor 2008 rule. On remand, 
    the district court issued an order vacating the 2012 H-2B rule, and 
    permanently enjoined DOL from enforcing the rule on the ground that DOL 
    lacks rulemaking authority in the H-2B program. Bayou Lawn & Landscape 
    Servs. v. Sec'y of Labor, No. 3:12-cv-183 (N.D. Fla. Dec. 18, 2014) 
    (Bayou II). The Bayou II decision is currently on appeal to the 
    Eleventh Circuit. On the other hand, on February 5, 2014, the U.S. 
    Court of Appeals for the Third Circuit held that ``DOL has authority to 
    promulgate rules concerning the temporary labor certification process 
    in the context of the H-2B program, and that the 2011 Wage Rule was 
    validly promulgated pursuant to that authority.'' La. Forestry ***'n v. 
    Perez, 745 F.3d 653, 669 (3d Cir. 2014) (emphasis added).
        To ensure that there can be no question about the authority for and 
    validity of the regulations in this area, DHS and DOL (the 
    Departments), together, are issuing this interim final rule. By 
    proceeding together, the Departments affirm that this rule is fully 
    consistent with the INA and implementing DHS regulations and is
    
    [[Page 24046]]
    
    vital to DHS's ability to faithfully implement the statutory labor 
    protections attendant to the program. See 8 U.S.C. 
    1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b); 8 U.S.C. 
    1184(c)(1), INA section 214(c)(1); 8 CFR 214.2(h)(6)(iv). This interim 
    final rule implements a key component of DHS's determination that it 
    must consult with DOL on the labor market questions relevant to its 
    adjudication of H-2B petitions. This interim final rule also executes 
    DHS's and DOL's determination that implementation of the consultative 
    relationship may be established through regulations that determine the 
    method by which DOL will provide the necessary advice to DHS. Finally, 
    this interim final rule sets forth enforcement procedures and remedies 
    pursuant to DHS's delegation of enforcement authority to DOL. See 8 
    U.S.C. 1184(c)(14)(B), INA section 214(c)(14)(B); 8 CFR 
    214.2(h)(6)(ix).
    
    B. The 2008 Rule and the CATA Litigation
    
        In 2008, DOL issued regulations governing DOL's role in the H-2B 
    temporary worker program. Labor Certification Process and Enforcement 
    for Temporary Employment in Occupations Other Than Agriculture or 
    Registered Nursing in the United States (H-2B Workers), and Other 
    Technical Changes, 73 FR 78020 (Dec. 19, 2008) (the 2008 rule). The 
    2008 rule established, among other things, the framework for DOL to 
    receive, review and issue H-2B labor certifications. The 2008 rule also 
    established a methodology for determining the wage that a prospective 
    H-2B employer must pay, the recruitment standards for testing the 
    domestic labor market, and the mechanism for processing prevailing wage 
    requests. Id. In addition, the 2008 rule governed the enforcement 
    process to make certain U.S. and H-2B workers are employed in 
    compliance with H-2B labor certification requirements.
        On August 30, 2010, the U.S. District Court for the Eastern 
    District of Pennsylvania in Comit[eacute] de Apoyo a los Trabajadores 
    Agricolas (CATA) v. Solis, No. 2:09-cv-240, 2010 WL 3431761 (E.D. Pa. 
    Aug. 30, 2010) (CATA I), invalidated various provisions of the 2008 
    rule and remanded it to DOL. In response to CATA I, DOL's 2012 H-2B 
    rule, which was ultimately enjoined in Bayou, revised the particular 
    provisions that were invalidated by the Court, including specifying 
    when H-2B employers must contact unions as a potential source of labor, 
    and providing a new definition of full-time and a modified definition 
    of job contractor.\5\ See CATA I, 2010 WL 3431761 at *26-27.
    ---------------------------------------------------------------------------
    
        \5\ Also in response to CATA I, which held that part of the 
    methodology to set the prevailing wage was invalid because it was 
    not adequately explained, 2010 WL 3431761 at *19, DOL issued 
    separately a rule governing the methodology to set the H-2B 
    prevailing wage. See Wage Methodology for the Temporary Non-
    agricultural Employment H-2B Program, on January 19, 2011, 76 FR 
    3452 (the 2011 Wage Rule). Shortly before the 2011 Wage Rule came 
    into effect, Congress issued an appropriations rider effectively 
    barring implementation of the 2011 Wage Rule, and the same rider was 
    issued in every appropriations enactment until January 2014. During 
    the period DOL was unable to implement the 2011 Wage Rule, DOL 
    extended the effective date of the 2011 Wage Rule so that it would 
    not come into effect while the agency was without the appropriations 
    necessary to implement it. DOL was never able to implement the 2011 
    Wage Rule and continued to rely on the 2008 Rule. Therefore, the 
    court in 2013 vacated the problematic provision (20 CFR 
    655.10(b)(2)) and ordered the DOL to come into compliance in 30 
    days. Comite de Apoyo a los Trabajadores Agricolas v. Solis, 933 F. 
    Supp. 2d 700 (E.D. Pa. 2013) (CATA II).
        In response to the vacatur and 30-day compliance order in CATA 
    II, and the Eleventh Circuit's decision in Bayou Lawn & Landscape 
    Servs., discussed supra, DOL and DHS promulgated an interim final 
    rule, Wage Methodology for the Temporary Non-Agricultural Employment 
    H-2B Program, part 2, 78 FR 24047 (Apr. 24, 2013) (2013 IFR), which 
    again revised the wage methodology. The Departments issued the 2013 
    IFR jointly to dispel questions that arose as a result of Bayou 
    about the respective roles of the two agencies and the validity of 
    DOL's regulations as an appropriate way to implement the interagency 
    consultation specified in section 214(c)(1) of the INA, 8 U.S.C. 
    1184(c)(1). Finally, the U.S. Court of Appeals for the Third Circuit 
    vacated on substantive and procedural APA grounds 20 CFR 655.10(f), 
    which permitted employers to submit employer-conducted surveys. 
    Comite de Apoyo a los Trabajadores Agricolas v. Perez, 774 F.3d 173, 
    191 (3d Cir. 2014) (CATA III). For a complete history of the 
    regulations governing the methodology to set the prevailing wage in 
    the H-2B program, see the companion rule published in this issue of 
    the Federal Register, Wage Methodology for the Temporary Non-
    Agricultural Employment H-2B Program (2015), which finalizes the 
    2013 IFR following public input on the proper H-2B wage methodology.
    ---------------------------------------------------------------------------
    
    C. The Perez Vacatur, Good Cause To Proceed Without Notice and Comment 
    Rulemaking, and Request for Comments
    
    1. The Perez Vacatur and Its Impact on Program Operations
        On March 4, 2015, the U.S. District Court for the Northern District 
    of Florida, which previously had vacated DOL's 2012 H-2B rule and 
    enjoined its enforcement in Bayou II, vacated the 2008 rule and 
    permanently enjoined DOL from enforcing it. Perez v. Perez, No. 14-cv-
    682 (N.D. Fla. Mar. 4, 2015). As in its decision in Bayou II vacating 
    the 2012 H-2B rule, the court in Perez found that DOL lacked authority 
    under the INA to independently issue legislative rules governing the H-
    2B program. Perez, slip op. at 6. Based on the vacatur order and the 
    permanent injunction in Perez, DOL immediately ceased operating the H-
    2B program because it no longer has any existing regulation 
    establishing the processes necessary to issue temporary labor 
    certifications. Shortly after the court issued its decision, DOL posted 
    a notice on its Web site informing the public that ``effective 
    immediately, DOL can no longer accept or process requests for 
    prevailing wage determinations or applications for labor certification 
    in the H-2B program.'' \6\ As a result of the Perez vacatur order, DOL 
    was unable to process any H-2B temporary employment certification 
    applications or issue any H-2B certifications as advice to DHS, which 
    effectively shut down the H-2B program for all employers filing new H-
    2B temporary employment certification applications with DOL. In 
    addition, the Perez vacatur order eliminated the crucial regulatory 
    provision that the ``employer must request a prevailing wage 
    determination from the NPC in accordance with the procedures 
    established by this regulation'' set out at 20 CFR 655.10(a), thus 
    leaving DOL unable to process any prevailing wage requests or issue any 
    prevailing wage determinations.\7\
    ---------------------------------------------------------------------------
    
        \6\ Employment and Training Administration, Announcements, 
    http://www.foreignlaborcert.doleta.gov (Mar. 4, 2015).
        \7\ The court order in Perez did not vacate the 2013 IFR, and 
    the court's judgment on DOL's independent regulatory authority did 
    not have a direct impact on the 2013 IFR, which was issued jointly 
    by DOL and DHS. However, the 2013 IFR did only one thing: it made a 
    single change to Sec.  655.10(b)(2) to eliminate the use of skill 
    levels in setting wages based on the OES. The 2013 IFR left 
    untouched all the other provisions in the 2008 wage methodology, and 
    those provisions remained in full force and effect in the 2008 rule 
    following the publication of the 2013 IFR. As a result, the Perez 
    order vacated virtually all of Sec.  655.10, except for Sec.  
    655.10(b)(2), which was promulgated in the 2013 IFR. Thus, the 
    vacatur eliminated DOL's wage methodology (except for Sec.  
    655.10(b)(2)) as well as the procedures for requesting and obtaining 
    prevailing wages. Together with the vacatur of Sec.  655.10(f) in 
    CATA III, this ruling left DOL without a complete methodology or any 
    procedures to set prevailing wages in the H-2B program until the 
    court's stay. As explained infra, the Perez court has stayed its 
    vacatur order until May 15, 2015, and at the expiration of the stay, 
    DOL will once again be without a complete methodology or any 
    procedures to set and issue the prevailing wage in the H-2B program.
    ---------------------------------------------------------------------------
    
        At the time of the Perez vacatur order on March 4, 2015, DOL had 
    pending over 400 requests to set the prevailing wage for an H-2B 
    occupation, and almost 800 applications for H-2B temporary labor 
    certification representing approximately 16,408 workers. In order to 
    minimize disruption to the H-2B program and to prevent economic 
    dislocation to employers and employees in the industries that rely on 
    H-2B foreign workers and to the general economy of
    
    [[Page 24047]]
    
    the areas in which those industries are located, on March 16, 2015, DOL 
    filed an unopposed motion requesting a temporary stay of the Perez 
    vacatur order. On March 18, 2015, the court entered an order 
    temporarily staying the vacatur of the H-2B rule until and including 
    April 15, 2015. On April 15, 2015, at the request of proposed 
    intervenors, the court entered a second order extending the temporary 
    stay up to and including May 15, 2015. The court in Perez has requested 
    briefing on several issues, including whether the plaintiff had 
    standing to challenge the 2008 rule. The court's extension of the stay 
    on April 15 occurred late in the day, after DOL had already initiated 
    processes necessary to provide for an orderly cessation of the H-2B 
    program and after DOL had already posted a notice to the regulated 
    community on its Web site that the H-2B program would be closed again 
    the next day. On April 16, 2015, following the court's stay extension, 
    DOL immediately posted a new notice on its Web site that it would 
    continue to operate the H-2B program and resume normal operations.
        DHS is charged with adjudicating petitions for a nonimmigrant 
    worker (commonly referred to as Form I-129 petitions or, in this rule, 
    ``H-2B petitions''), filed by employers seeking to employ H-2B workers, 
    but, as discussed earlier, Congress directed the agency to issue its 
    decisions relating to H-2B petitions ``after consultation with 
    appropriate agencies of the Government.'' 8 U.S.C. 1184(c)(1), INA 
    section 214(c)(1). Legacy INS and now DHS have historically consulted 
    with DOL on U.S. labor market conditions to determine whether to 
    approve an employer's petition to import H-2B workers. See 73 FR 78104, 
    78110 (DHS) (Dec. 19, 2008); 55 FR 2606, 2617 (INS) (Jan. 26, 1990). 
    DOL plays a significant role in the H-2B program because DHS ``does not 
    have the expertise needed to make any labor market determinations, 
    independent of those already made by DOL.'' 73 FR at 78110; see also 55 
    FR at 2626. Without consulting with DOL, DHS lacks the expertise to 
    adequately make the statutorily mandated determination about the 
    availability of United States workers to fill the proposed job 
    opportunities in the employers' Form I-129 petitions. See 8 U.S.C. 
    1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b); 78 FR 24047, 
    24050 (DHS-DOL) (Apr. 24, 2013). DHS regulations therefore require 
    employers to obtain a temporary labor certification from DOL before 
    filing a petition with DHS to import H-2B workers. See 8 CFR 
    214.2(h)(6)(iii)(A), (C), (iv)(A). In addition, as part of DOL's 
    certification, DHS regulations require DOL to ``determine the 
    prevailing wage applicable to an application for temporary labor 
    certification in accordance with the Secretary of Labor's regulation at 
    20 CFR 655.10.'' 8 CFR 214.2(h)(6)(iii)(D).
        DOL has fulfilled its consultative role in the H-2B program through 
    the use of legislative rules to structure its advice to legacy INS and 
    now DHS for several decades. See 33 FR 7570-71 (DOL) (May 22, 1968); 73 
    FR 78,020 (DOL) (Dec. 19, 2008). Before DOL issued the 2008 rule, it 
    supplemented its regulations with guidance documents that set 
    substantive standards for wages and recruitment and structured the 
    manner in which the agency processed applications for H-2B labor 
    certification. See 73 FR at 78021-22. One district court has held that 
    DOL's pre-2008 H-2B guidance document was a legislative rule that 
    determined the rights and obligations of employers and employees, and 
    DOL's failure to issue the guidance through the notice and comment 
    process was a procedural violation of the APA. As a result, the court 
    invalidated the guidance. See CATA I, 2010 WL 3431761, at *19, 25. 
    Similarly, the U.S. Court of Appeals for the D.C. Circuit has held that 
    DOL violated the procedural requirements of the APA when it established 
    requirements that ``set the bar for what employers must do to obtain 
    approval'' of the H-2A labor certification application, including wage 
    and housing requirements, in guidance documents. Mendoza v. Perez, 754 
    F.3d 1002, 1024 (D.C. Cir. 2014) (setting substantive standards for 
    labor certification in the H-2A program requires legislative rules 
    subject to the APA's notice and comment procedural requirements). The 
    APA therefore prohibits DOL from setting substantive standards for the 
    H-2B program through the use of guidance documents that have not gone 
    through notice-and-comment rulemaking. As a result, if and when the 
    temporary stay concludes, without this interim final rule, DOL will not 
    be able to provide employers with temporary labor certifications 
    necessary to allow importation of foreign workers under the H-2B 
    program because DOL may not rely on subregulatory guidance standards, 
    and has no prior rule to reinstate. Accordingly, DOL would again be 
    forced to cease H-2B program operations, thus prohibiting DOL from 
    processing temporary employment certification applications and 
    prevailing wage requests, unless a rule was in place.
        As with the two weeks in March 2015, the Departments are again 
    facing the prospect of experiencing another program hiatus if and when 
    the temporary stay expires on or before May 15, 2015. DOL's 2008 rule 
    is the only comprehensive mechanism in place for DOL to provide advice 
    to DHS because the 2008 rule sets the framework, procedures, and 
    applicable standards for receiving, reviewing, and issuing H-2B 
    prevailing wages and temporary labor certifications. The 2008 rule sets 
    the recruitment standards for testing the domestic labor market and 
    provides the rules for processing prevailing wage requests. DHS is 
    precluded by its own regulations from accepting any H-2B petition 
    without a temporary labor certification from DOL. See 8 CFR 
    214.2(h)(6)(iii)(C). Moreover, without advice from DOL, DHS lacks the 
    capability to test the domestic labor market or determine whether there 
    are available U.S. workers to fill the employer's job opportunity. As a 
    result, if and when the stay concludes as currently scheduled on or 
    before May 15, 2015, the vacatur of DOL's 2008 rule will require DOL to 
    once again cease operating the H-2B program, and DOL will again be 
    unable to process employers' requests for temporary employment 
    certification applications until the agencies can put in place a new 
    mechanism for fulfilling the statutory directive to ensure that the 
    importation of foreign workers will not harm the domestic labor market. 
    See 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b). 
    Moreover, if the temporary stay is lifted, the vacatur of DOL's 2008 
    rule will void the enforcement regime by which DOL has carried out its 
    statutorily-delegated enforcement authority. See 8 U.S.C. 
    1184(c)(14)(B), INA section 214(c)(14)(B).
    2. Good Cause To Proceed Without Notice and Comment and With an 
    Immediate Effective Date
        The APA authorizes agencies to issue a rule without notice and 
    comment upon a showing of good cause. 5 U.S.C. 553(b)(B). The APA's 
    good cause exception to public participation applies upon a finding 
    that those procedures are ``impracticable, unnecessary, or contrary to 
    the public interest.'' 5 U.S.C. 553(b)(B). Although the term is not 
    defined in the APA, the accompanying Senate report described 
    ``impracticable'' as ``a situation in which the due and required 
    execution of the agency functions would be unavoidably prevented by its 
    undertaking public rule-making proceedings.'' S. Rep. No. 752, 79th 
    Cong., 1st Sess. 200 (1945). The `` `[p]ublic interest' supplements . . 
    . `impracticable' [and] requires that
    
    [[Page 24048]]
    
    public rule-making procedures shall not prevent an agency from 
    operating.'' Id.
        Under the APA's ``good cause'' exception to notice and comment, an 
    agency can take steps to minimize discontinuity in its program after 
    the court has vacated a rule. Mid-Tex Elec. Coop. v. FERC, 822 F.2d 
    1123, 1131-34 (D.C. Cir. 1987) (upholding good cause to issue a post-
    remand interim rule); see also Shell Oil Co. v. EPA, 950 F.2d 741, 752 
    (D.C. Cir. 1991) (observing that where the agency had a regulatory void 
    as the result of a vacatur of its rule, it should consider issuing an 
    interim rule under the good cause exception because of the disruptions 
    posed by discontinuity in the regulations); Action on Smoking and 
    Health v. Civil Aeronautics Bd., 713 F.2d 795, 800 (D.C. Cir. 1983) 
    (same). Moreover, courts find ``good cause'' under the APA when an 
    agency is moving expeditiously to eliminate uncertainty or confusion 
    that, left to linger, could cause tangible harm or hardship to the 
    agency, the program, program users, or other members of the public. 
    See, e.g., Mid-Tex, 822 F.2d at 1133-34 (agency had good cause to 
    promote continuity and prevent ``irremedial financial consequences'' 
    and ``regulatory confusion''); Nat'l Fed'n of Fed. Employees v. Devine, 
    671 F.2d 607, 609, 611 (D.C. Cir. 1982) (agency had good cause based on 
    emergency circumstances, including uncertainty created by pending 
    litigation about significant aspects of the program, and potential harm 
    to agency, to program, and to regulated community); Am. Fed'n of Gov't 
    Emp., AFL-CIO v. Block, 655 F.2d 1153, 1157 (D.C. Cir. 1981) (agency 
    had good cause where absence of immediate guidance from agency would 
    have forced reliance upon antiquated guidelines, causing confusion 
    among field administrators and economic harm and disruption to industry 
    and consumers); Woods Psychiatric Inst. v. United States, 20 Cl. Ct. 
    324, 333 (1990), aff'd, 925 F.2d 1454 (Fed. Cir. 1991) (agency had good 
    cause when program would continue to suffer administrative difficulties 
    that had previously resulted in litigation and might continue to result 
    in litigation due to uncertainty and confusion over scope of benefits, 
    program standards, and eligibility requirements). Based on these legal 
    standards and for the reasons set forth below, the Departments conclude 
    that it is impracticable and contrary to the public interest to issue 
    this rule under the APA's standard notice and comment procedures. DOL 
    and those employers and employees who are involved in the H-2B program 
    have already experienced one regulatory lapse and anticipate another, 
    which provides a sound foundation for the Departments' good cause to 
    proceed without notice and comment. Moreover, even in the absence of 
    another regulatory lapse, confusion and disarray will persist in the H-
    2B program as a result of uncertainty about the rules governing the 
    program, which includes ambiguity about DOL's ability to enforce 
    protections afforded to U.S. and foreign workers, and this provides 
    further good cause to proceed with this interim final rule without 
    notice and public comment.
        As an initial matter, DOL has already had to cease operating the H-
    2B program for two weeks in March 2015, and faces this prospect again 
    at the expiration of the stay on or before May 15, 2015. Given the 
    expectation of another regulatory void, were the Departments to follow 
    the standard APA procedures, resumption of the H-2B program would be 
    substantially delayed by the Departments' issuance of a notice of 
    proposed rulemaking and request for comment, the time-consuming process 
    involved in analyzing and responding to comments, and the publication 
    of a final rule. Despite the fact that the statutory cap on H-2B visas 
    has been reached for FY 2015, employers would normally now start the 
    process for applying for temporary employment certifications for FY 
    2016 by: Filing requests for Prevailing Wage Determinations (PWDs); 
    performing the required recruitment of U.S. workers; and submitting 
    applications for temporary employment certification. In the absence of 
    a rule, employers would not be able to take such actions.\8\ Therefore, 
    DHS and DOL must act swiftly to enable the agencies to meet their 
    statutory obligations under the INA and to prevent further economic 
    dislocation to employers and employees in anticipation of another 
    regulatory void that will occur upon resumption of the Perez vacatur 
    order.
    ---------------------------------------------------------------------------
    
        \8\ Moreover, there may be petitions on behalf of H-2B workers 
    who are exempt from, or have already been counted toward, the H-2B 
    visa cap. These petitions will be affected if employers of these 
    cap-exempt workers are unable to apply for temporary employment 
    certifications.
    ---------------------------------------------------------------------------
    
        Moreover, the on-again-off-again nature of H-2B program operations 
    has created substantial confusion, uncertainty and disarray for the 
    agencies and the regulated community. The original vacatur order in 
    Perez effectively required the agency to immediately cease operation of 
    the H-2B program, leaving unresolved hundreds of time-sensitive pending 
    applications for prevailing wages and certifications. Two weeks later, 
    following the court's stay of the vacatur and upon resumption of the H-
    2B program, those cases pending on the date of the vacatur created a 
    backlog of applications, while, at the same time, employers began 
    filing new applications for prevailing wages and certifications. DOL 
    worked diligently and quickly to address the backlog and simultaneously 
    keep up with new applications. Then, facing the expiration of the stay 
    on April 15, 2015, DOL once again prepared to cease H-2B operations, 
    which included posting a notice to the regulated community on its Web 
    site that day announcing another closure, which was then obviated at 
    the last minute by the court's extension of the stay late in the day on 
    April 15. The next day, DOL announced that despite its earlier 
    announcement, it would continue to operate the H-2B program as a result 
    of the stay extension. These circumstances, which are beyond the 
    Departments' ability to control, have resulted in substantial disorder 
    and upheaval for the Departments, as well as employers and employees 
    involved in the H-2B program.
        This uncertainty and confusion is particularly applicable to DOL's 
    ability to enforce rights and obligations under the H-2B program. Even 
    if the temporary stay were to continue beyond May 15 or the court in 
    Perez dismisses the case (for example, finding that the plaintiff 
    lacked standing), it is necessary to dispense with notice and comment 
    to ensure that DOL has the continued ability to take enforcement 
    actions to protect H-2B and U.S. workers. As discussed above, employers 
    have challenged DOL's independent regulatory authority in the H-2B 
    program, and courts have issued decisions both affirming and 
    repudiating that authority. Compare La. Forestry ***'n v. Perez, 745 
    F.3d at 669, Bayou, 713 F.3d at 1084, and Perez, at slip op. at 6. As a 
    result, one circuit has already found that DOL lacked independent 
    regulatory authority to issue DOL's 2012 H-2B rule, and a district 
    court has ruled similarly with respect to the 2008 rule, which DOL 
    relied on to fill the regulatory void created in 2012. Based on these 
    adverse precedents, the 2008 rule--the only vehicle under which DOL can 
    presently administer and enforce the H-2B program--will remain 
    vulnerable to challenges by employers in current and future enforcement 
    proceedings based on the ground that the regulations DOL is seeking to 
    enforce are void because DOL exceeded its statutory authority in
    
    [[Page 24049]]
    
    unilaterally issuing the 2008 rule.\9\ In this regard, the statute of 
    limitations under the APA would not likely be available to DOL in such 
    challenges because, even where the statute of limitations for a facial 
    challenge has run, a litigant may challenge statutory authority for a 
    rule in an enforcement proceeding when the rule is applied to it.\10\ 
    See Wong v. Doar, 571 F.3d 247, 263 n. 15 (2d Cir. 2009) (statute of 
    limitations for a substantive challenge ``begins to run at the time of 
    the adverse agency action on the particular claim''); Indep. Cmty. 
    Bankers of Am. v. Bd. of Governors of Fed. Reserve Sys., 195 F.3d 28, 
    34 (D.C. Cir. 1999) (``We have frequently said that a party against 
    whom a rule is applied may, at the time of application, pursue 
    substantive objections to the rule, including claims that an agency 
    lacked the statutory authority to adopt the rule, even where the 
    petitioner had notice and opportunity to bring a direct challenge 
    within statutory time limits.''); see also Coal River Energy LLC v. 
    Jewell, 751 F.3d 659, 664 (D.C. Cir. 2014) (``A substantive defense is 
    one based on an argument that a regulation is not authorized by a 
    statute or the Constitution, as opposed to a claim under the APA 
    regarding the method used in promulgating the regulation, such as that 
    it was issued without adequate notice, or that the government 
    inadequately responded to comments.''). Therefore, employers subject to 
    enforcement under the 2008 rule have an available defense that DOL is 
    without regulatory authority to enforce rights and obligations in the 
    H-2B program, leaving DOL in an untenable position with respect to its 
    ability to require adherence to program standards. In the absence of 
    this interim final rule, which immediately replaces the 2008 rule, 
    uncertainty, confusion and attendant legal vulnerability arise each 
    time DOL attempts to enforce the provisions of the 2008 rule, putting 
    critical protections for U.S. and H-2B workers in jeopardy.
    ---------------------------------------------------------------------------
    
        \9\ Such challenges cannot be adjudicated before DOL 
    Administrative Law Judges, but may be brought in federal district 
    court. See 2008 rule, 20 CFR 655.75(d) (``The administrative law 
    judge shall not render determinations as to the legality of a 
    regulatory provision or the constitutionality of a statutory 
    provision.''); see also Prince v. Westinghouse Savannah River Co., 
    ARB No. 10-079, slip op. at 9 (ARB Nov. 17, 2010) (`` `The Board 
    shall not have jurisdiction to pass on the validity of any portion 
    of the Code of Federal Regulations that has been duly promulgated by 
    the Department of Labor and shall observe the provisions thereof, 
    where pertinent, in its decisions.' '') (quoting Secretary's Order 
    No. 1-2010 (Delegation of Authority and Assignment of Responsibility 
    to the Administrative Review Board), sec. 5(c)(48), 75 FR 3924 (Jan. 
    15, 2010)).
        \10\ The default six-year statute of limitations for civil 
    claims against the government applies to challenges under the APA, 
    and so the statute of limitations for facial challenges to the 2008 
    Rule, published December 19, 2008, has run. See 28 U.S.C. 2401(a); 
    Harris v. FAA, 353 F.3d 1006, 1009 (D.C. Cir. 2004) (``Unless 
    another statute prescribes otherwise, a suit challenging final 
    agency action [under the APA] must be commenced within six years 
    after the right of action first accrues.'')
    ---------------------------------------------------------------------------
    
        Accordingly, even if the Perez decision is ultimately dismissed on 
    standing or other grounds or if the stay is subsequently extended, the 
    court's earlier decision--finding on the merits that DOL lacked 
    regulatory authority to issue the 2008 rule--has created significant 
    confusion about the continued viability of the 2008 rule. To leave the 
    2008 rule in place while the Departments pursue a new notice-and-
    comment rulemaking would prolong for many months the regulatory 
    confusion about the 2008 rule's status and DOL's authority to enforce 
    worker protections and wages required under the 2008 rule and 2013 IFR. 
    In the interim, in response to a challenge to any enforcement action 
    under the 2008 rule, DOL may be required to defend the validity of the 
    2008 rule. Such challenges could lead to inconsistent outcomes, 
    producing further instability in the program. Given the potential for 
    harm to U.S. and foreign workers if DOL is unable to effectively 
    protect their rights, and uncertainty and confusion about the status of 
    the 2008 rule in the regulated community, the Departments conclude that 
    it is impracticable and contrary to the public interest to conduct a 
    rulemaking proceeding under the APA's notice and comment requirements, 
    and that they have good and substantial cause to issue this rule 
    immediately.
        Finally, the Departments also have good cause to forego notice and 
    comment because, as explained below, this rule has already been subject 
    to one full round of notice and comment. On March 18, 2011, DOL 
    proposed a regulation and sought public input on all issues addressed 
    in this interim final rule during a 60-day comment period. 76 FR 15130. 
    As noted below, DOL received over 800 comments from a wide variety of 
    stakeholders, and adapted the final rule in 2012 based on those 
    comments. 77 FR 10038 (Feb. 21, 2012). The public has by now had notice 
    and an opportunity to comment on virtually every provision in this 
    interim final rule. The only new provisions in this interim final rule 
    involve transition filing procedures at Sec.  655.4, which are 
    necessary to instruct those program users who have already begun the 
    employment certification process on the procedures to follow under the 
    new regulatory system; electronic filing procedures at Sec.  655.15(c) 
    to permit easier submissions for H-2B program users; the rules that 
    apply to Administrative Law Judge proceedings involving determinations 
    under 8 U.S.C. 1184(c), section 214(c) of the INA, at 29 CFR 503.40(b); 
    and implementation of the Congressional mandate in Sec.  655.15(f) to 
    permit employers in the seafood industry flexibility with respect to 
    the entry into the U.S. by their H-2B nonimmigrant workers. The first 
    three provisions (Sec. Sec.  655.4, 655.15(c), 503.40(b)) are 
    procedural in nature, and the last provision incorporates a statutory 
    requirement that DOL and DHS have already implemented. The rulemaking 
    record from the 2011-2012 proceeding remains fresh, and no new 
    information relevant to policy decisions made during that proceeding 
    has come to light. Therefore, the Departments have satisfied the APA's 
    notice-and-comment requirements where, after one full period of notice 
    and comment for a rule, we reinstate a virtually identical rule without 
    an additional notice and comment period. See Am. Mining Cong. v. EPA, 
    907 F.2d 1179, 1191-1192 (D.C. Cir. 1990); Am. Fed'n of Gov't Employees 
    v. OPM, 821 F.2d 761, 764 (D.C. Cir. 1987). Accordingly, the 
    Departments have good and sufficient reason to rely on the APA's good 
    cause exception, 5 U.S.C. 553(b)(B), to issue without notice and 
    comment this new interim final rule.
        The APA also authorizes agencies to make a rule effective 
    immediately upon a showing of good cause instead of imposing a 30-day 
    delay. 5 U.S.C. 553(d)(3). The good cause exception to the 30-day 
    effective date requirement is easier to meet than the good cause 
    exception for notice and comment. Riverbend Farms, Inc. v. Madigan, 958 
    F.2d 1479, 1485 (9th Cir. 1992); Am. Fed'n of Gov't Employees, AFL-CIO 
    v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981); U.S. Steel Corp. v. 
    EPA, 605 F.2d 283, 289-90 (7th Cir. 1979). An agency can show good 
    cause for eliminating the 30-day waiting period when it demonstrates 
    urgent conditions the rule seeks to correct or unavoidable time 
    limitations. U.S. Steel Corp., 605 F.2d at 290; United States v. 
    Gavrilovic, 511 F.2d 1099, 1104 (8th Cir. 1977). For the same reasons 
    set forth above, we also conclude that the Departments have good cause 
    to dispense with the 30-day effective date requirement given the 
    continuing disruption, uncertainty, and confusion that a 30-day delay 
    would cause in the H-2B program. 5 U.S.C. 553(d)(3).
        The Departments underscore that although we are implementing this 
    interim final rule in advance of a period
    
    [[Page 24050]]
    
    of public comment and without a 30-day delay in the effective date, we 
    seek public input on every aspect of this interim final rule (even 
    though virtually every provision herein has already gone through one 
    round of notice and comment), and will assess that input and determine 
    whether changes are appropriate. As a result, the public participation 
    process will be preserved in this rulemaking proceeding, and we act 
    only under the compulsion of the emergency conditions described above.
    3. Request for Comments on All Aspects of This Interim Final Rule
        Although this rule is being issued as an interim final rule, the 
    Departments request public input on all aspects of the rule. The 
    regulated community should be familiar with the provisions adopted in 
    this interim final rule because they are largely the same as the 
    provisions adopted in the 2012 H-2B rule, Temporary Non-agricultural 
    Employment of H-2B Aliens in the United States, 77 FR 10038 (Feb. 21, 
    2012). As part of the rulemaking proceeding that culminated in the 2012 
    H-2B rule, DOL received, reviewed, and considered 869 comments on its 
    proposal. Commenters represented a broad range of constituents of the 
    H-2B program, including small business employers, U.S. and H-2B 
    workers, worker advocacy groups, State Workforce Agencies (SWAs), 
    agents, law firms, employer and industry advocacy groups, union 
    organizations, members of the U.S. Congress, and interested members of 
    the public. Those comments resulted in DOL's adjustment to or further 
    explanation of that rule, and are incorporated here as well. As a 
    result, to the extent that any provision of part 655 of title 20 or 
    part 503 of title 29 of the Code of Federal Regulations adopted in this 
    rulemaking proceeding requires further interpretation or justification, 
    we refer the public to the explanations of the regulations contained in 
    the prior rulemaking docket. That prior notice and comment proceeding 
    does not foreclose public input in this proceeding, during which the 
    Departments will jointly consider the public comments and revise this 
    interim final rule as appropriate. The Departments invite the public to 
    submit comments on all of the issues, requirements, and procedures 
    addressed in this interim final rule; we will accept and consider these 
    comments prior to issuing a final rule.
    
    III. Revisions to 8 CFR Part 214
    
    Deletion of 8 CFR 214.2(h)(9)(iii)(B)(2)
    
        DHS currently requires all H-2B petitions to be accompanied by an 
    approved temporary labor certification. See 8 CFR 214.2(h)(6)(iv)(A) 
    (stating that an H-2B petition for temporary employment in the United 
    States, except for temporary employment on Guam, must be accompanied by 
    an approved temporary labor certification from the Secretary of Labor); 
    8 CFR 214.2(h)(6)(v) (stating that an H-2B petition for temporary 
    employment on Guam must be accompanied by an approved temporary labor 
    certification issued by the Governor of Guam). These regulatory 
    provisions were enacted as part of DHS's 2008 notice and comment 
    rulemaking on this topic. See DHS Proposed Rule, 73 FR 49109, 48110 
    (Aug. 20, 2008); DHS Final Rule, 73 FR 78104, 78104 (Dec. 19, 2008).
        Due to a drafting oversight, when enacting the requirements above, 
    DHS inadvertently left untouched the provisions at 8 CFR 
    214.2(h)(9)(iii)(B)(2), which should have been deleted. These 
    provisions can only be read to apply to the time, before 2008, when DHS 
    would accept petitions without a temporary labor certification. The 
    2008 DHS Proposed Rule (73 FR 49109) and DHS Final Rule (73 FR 78104) 
    make it clear that DHS intended to require a temporary labor 
    certification to be submitted with an H-2B petition, and thus 8 CFR 
    214.2(h)(9)(iii)(B)(2) cannot be read to have any effect. Finally, the 
    provision requiring that all H-2B petitions must be accompanied by a 
    temporary labor certification went through notice and comment 
    rulemaking. Thus, the deletion of 8 CFR 214.2(h)(9)(iii)(B)(2) should 
    be subject to the good cause exception under 5 U.S.C. 553(b)(B) as such 
    deletion is a housekeeping matter and a minor technical amendment, 
    which makes notice and comment unnecessary.
        For these reasons, DHS will rescind 8 CFR 214.2(h)(9)(iii)(B)(2) in 
    this interim final rule, consistent with 5 U.S.C. 553(b)(B).
    
    IV. Revisions to 20 CFR Part 655, Subpart A
    
    A. Introductory Sections
    
    1. Sec.  655.1 Scope and Purpose of Subpart A
        This provision informs program users of the statutory basis and 
    regulatory authority for the H-2B temporary labor certification 
    process. This provision describes the Department's role in receiving, 
    reviewing, adjudicating, and upholding the integrity of an Application 
    for Temporary Employment Certification. DHS regulations at 8 CFR 
    214.2(h)(6)(iii)(D) recognize the Secretary of Labor as an appropriate 
    authority with whom DHS consults regarding the H-2B program, and 
    recognize the Secretary of Labor's authority, in carrying out that 
    consultative function, to issue regulations regarding the issuance of 
    temporary labor certifications. The purpose of these regulations is for 
    the Secretary of Labor to determine that: (1) There are not sufficient 
    U.S. workers who are qualified and who will be available to perform the 
    temporary services or labor for which an employer desires to import 
    foreign workers; and (2) the employment of the H-2B worker(s) will not 
    adversely affect the wages and working conditions of U.S. workers 
    similarly employed. See 8 CFR 214.2(h)(6)(iv)(A). It is through the 
    regulatory provisions set forth below that DOL ensures that the 
    criteria for its labor certification determinations are met.
    2. Sec.  655.2 Authority of Agencies, Offices and Divisions in the 
    Department of Labor
        This section describes the authority of and division of activities 
    related to the H-2B program among DOL agencies. It discusses the 
    authority of the Office of Foreign Labor Certification (OFLC), the 
    office within ETA that exercises the Secretary of Labor's 
    responsibility for determining the availability of qualified U.S. 
    workers and whether the employment of H-2B nonimmigrant workers will 
    adversely affect the wages and working conditions of similarly employed 
    workers. It also discusses the authority of the Wage and Hour Division 
    (WHD), the agency responsible for investigation and enforcement of the 
    terms and conditions of H-2B labor certifications, as delegated by 
    DHS.\11\
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        \11\ Applications for temporary labor certification are 
    processed by OFLC in the ETA, the agency to which the Secretary of 
    Labor has delegated his responsibilities as described in the DHS H-
    2B regulations. Enforcement of the attestations made by employers in 
    the course of submission of H-2B applications for labor 
    certification is conducted by WHD within DOL, to which DHS on 
    January 18, 2009 delegated enforcement authority granted to it by 
    the INA. 8 U.S.C. 1184(c)(14)(B), INA section 214(c)(14)(B); 8 CFR 
    214.2(h)(6)(ix).
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    3. Sec.  655.3 Territory of Guam
        Under DHS regulations and pursuant to DHS's consultative 
    relationship with the Governor of Guam related to the H-2B visa program 
    on Guam, the granting of H-2B labor certifications and the enforcement 
    of the H-2B visa program on Guam resides with the Governor of Guam. 8 
    CFR 214.2(h)(6)(v). Subject to
    
    [[Page 24051]]
    
    DHS approval, the Governor of Guam is authorized to set the prevailing 
    wage for H-2B job opportunities on Guam. 8 CFR 214.2(h)(6)(v)(E) and 
    (F). To further uniformity of standards through the United States, the 
    Departments have concluded that it would be more appropriate for OFLC 
    to issue H-2B prevailing wages for all workers on Guam, because OFLC 
    already provides prevailing wage determinations (PWDs) for all other 
    U.S. jurisdictions. Therefore, the process for obtaining a prevailing 
    wage in Sec.  655.10 would also apply to H-2B job opportunities on 
    Guam, subject to the transfer of the authority to set the prevailing 
    wage for a job opportunity on Guam to DOL in title 8 of the Code of 
    Federal Regulations. Should such transfer occur, employment 
    opportunities on Guam accordingly would be subject to the same process 
    and methodology for calculating prevailing wages as any other 
    jurisdiction within OFLC's purview. DHS will separately conduct 
    rulemaking intended to make DOL responsible for issuing prevailing wage 
    rates for all H-2B workers on Guam.
    4. Special Procedures
        Special procedures in DOL's temporary labor certification programs 
    were based upon a determination that variations from the normal labor 
    certification processes were necessary to permit the temporary 
    employment of foreign workers in specific industries or occupations 
    when qualified U.S. workers were not available and the employment of 
    foreign workers would not adversely affect the wages or working 
    conditions of similarly employed U.S. workers. The 2008 rule provided 
    authority for DOL to ``establish or to devise, continue, revise or 
    revoke'' special procedures in the H-2B program. 20 CFR 655.3 (2009). 
    The regulation concerning the H-2A temporary agricultural worker 
    program at 20 CFR 655.102 establishes in a virtually identical fashion, 
    as did the 2008 H-2B rule, DOL's authority in the H-2A program to 
    ``establish, continue, revise, or revoke special procedures'' for 
    certain H-2A occupations. In Mendoza v. Perez, 754 F.3d 1002, 1022 
    (D.C. Cir. 2014), the D.C. Circuit concluded that 20 CFR 655.102 was 
    ``a grant of unconstrained and undefined authority [, and the] purpose 
    of the APA would be disserved if an agency with a broad statutory 
    command . . . could avoid notice-and-comment rulemaking simply by 
    promulgating a comparably broad regulation . . . and then invoking its 
    power to interpret that statute and regulation in binding the public to 
    a strict and specific set of obligations.'' Accordingly, the court in 
    Mendoza held that for herding occupations the special procedures issued 
    under 20 CFR 655.102 were rules subject to the APA's notice and comment 
    requirements because they possess all the hallmarks of a legislative 
    rule and could not be issued through subregulatory guidance. 754 F.3d 
    at 1024 (``The [special procedures] are necessarily legislative rules 
    because they `effect[ ] a [substantive] change in existing law or 
    policy,' and `effectively amend[ ] a prior legislative rule.'') 
    (citations omitted).
        In light of Mendoza, the Departments are not including in this 
    interim final rule a provision to allow for the creation of special 
    procedures that establish variations for processing certain H-2B 
    Applications for Temporary Employment Certification, similar to a 
    provision included in the 2008 H-2B rule. Special procedures currently 
    in place on the effective date of this interim final rule will remain 
    in force until we otherwise modify or withdraw them, and DOL will 
    review such procedures expeditiously.
    5. Sec.  655.4 Transition Filing Procedures
        Generally, DOL will process all applications in accordance with the 
    rules in effect on the date the application was submitted. Accordingly, 
    DOL will continue to process all applications for PWDs and for 
    certification submitted prior to the effective date of this rule in 
    accordance with the 2008 rule and the 2013 IFR. Further, DOL will 
    process all applications for PWDs and for certification submitted on or 
    after the effective date of this rule in accordance with this interim 
    final rule and the companion wage final rule issued simultaneously.
        This rule will permit employers submitting an Application for 
    Temporary Employment Certification on or after the effective date of 
    this rule and who have a start date of need prior to October 1, 2015, 
    to rely on the emergency processing provisions in Sec.  655.17. Such an 
    Application for Temporary Employment Certification must include a 
    signed and dated copy of the new Appendix B associated with the ETA 
    Form 9142B containing the requisite program assurances and obligations 
    under this rule. In the case of a job contractor filing as a joint 
    employer with its employer-client, the NPC must receive a separate 
    attachment containing the employer-client's business and contact 
    information (i.e., sections C and D of the ETA Form 9142B) as well as a 
    separate signed and dated copy of the Appendix B for its employer-
    client, as required by Sec.  655.19.
        For these employers with a start date of need before October 1, 
    2015, the NPC will also waive the regulatory filing timeframe under 
    Sec.  655.15 and process the Application for Temporary Employment 
    Certification and job order in a manner consistent with the handling of 
    applications under Sec.  655.17 for emergency situations, including the 
    recruitment of U.S. workers on an expedited basis, and make a 
    determination on certification as required by Sec.  655.50. The 
    recruitment of U.S. workers on an expedited basis will consist of 
    placing a new job order with the SWA serving the area of intended 
    employment that contains the job assurances and contents set forth in 
    Sec.  655.18 for a period of not less than 10 calendar days. In 
    addition, employers who have not placed any newspaper advertisements 
    under the 2008 rule must place one newspaper advertisement, which may 
    be published on any day of the week, meeting the advertising 
    requirements of Sec.  655.41, during the period of time the SWA is 
    actively circulating the job order for intrastate clearance. If the 
    Chicago NPC grants a temporary labor certification, the employer will 
    receive an original certified ETA Form 9142B and a Final Determination 
    letter. Upon receipt of the original certified ETA Form 9142B, the 
    employer or its agent or attorney, if applicable, must complete the 
    footer on the original Appendix B, retain the original Appendix B, and 
    submit a signed copy of Appendix B, together with the original 
    certified ETA Form 9142B directly to USCIS. Under the document 
    retention requirements in Sec.  655.56, the employer must retain a copy 
    of the certified ETA 9142B and the original signed Appendix B.
        For the convenience of the employer submitting a new Application 
    for Temporary Employment Certification with a start date of need prior 
    to October 1, 2015 and who did not submit an Application for a 
    Prevailing Wage Determination prior to the effective date of this rule, 
    such an employer may submit a completed Application for a Prevailing 
    Wage Determination to the NPC with its emergency Application for 
    Temporary Employment Certification requesting a prevailing wage 
    determination for the job opportunity. Upon receipt, the NPC will 
    transmit, on behalf of the employer, a copy of the Application for a 
    Prevailing Wage Determination to the NPWC for processing and issuance 
    of a prevailing wage determination using the wage methodology 
    established in Sec.  655.10 of the companion wage rule.
        For employers submitting new applications with a start date of need
    
    [[Page 24052]]
    
    before October 1, 2015, DOL will also waive the requirements in 
    Sec. Sec.  655.8 and 655.9 of this interim final rule, requiring the 
    employer, and its attorney or agent, as applicable, to provide copies 
    of all agreements with any agent and/or foreign labor recruiter(s), 
    executed in connection with the H-2B temporary employer certification 
    application.\12\ In addition, due to the expedited timeframes for 
    recruiting U.S. workers associated with H-2B temporary employment 
    certification applications processed under these transition procedures, 
    DOL will not place for public examination a copy of the job order 
    posted by the state workforce agency (SWA) on DOL's electronic job 
    registry, as specified under Sec.  655.34. However, DOL will implement 
    the new electronic job registry requirement under Sec.  655.34 for all 
    temporary employment certification applications filed with the Chicago 
    NPC where the employer has a start date of need on or after October 1, 
    2015.
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        \12\ DOL will not publish agent or foreign recruiter names until 
    it makes any necessary updates to its system of records notice 
    required by the Privacy Act (5 U.S.C. 552a).
    ---------------------------------------------------------------------------
    
        For all employers submitting new applications for employment 
    certification, regardless of the start date of need, DOL will require a 
    period of time to operationalize the registration process for H-2B 
    employers required in Sec.  655.11. As a result, DOL will announce 
    separately in the Federal Register the initiation and implementation of 
    the registration requirements in Sec.  655.11(j). In the meantime, on 
    the effective date of this interim final rule and until such 
    announcement is made in the Federal Register, H-2B temporary employment 
    certification applications filed with the NPC will be exempt from the 
    registration requirements of Sec.  655.11, and adjudication of the 
    employer's temporary need will occur during the processing of the 
    application. The exemption will terminate after a separate announcement 
    in the Federal Register, which will provide the public with notice of 
    when DOL will initiate the registration process.
        Finally, employers with a prevailing wage determination issued by 
    the NPWC, or who have a pending or granted Application for Temporary 
    Employment Certification on the effective date of this rule may seek a 
    supplemental prevailing wage determination (SPWD) in order to obtain a 
    prevailing wage based on an alternate wage source under the new rule. 
    The SPWD will apply during the validity period of the certification, 
    except that such SPWD will be applicable only to those H-2B workers who 
    are not yet employed in the certified position on the date of the 
    issuance of the SPWD. The SPWD will not be applicable to H-2B workers 
    who are already employed in the certified position at the time of the 
    issuance of the SPWD, and it will not apply to United States workers 
    recruited and hired under the original job order. For seafood employers 
    whose workers' entry into the United States may be staggered under 
    Sec.  655.15(f), an SPWD issued under this provision will apply only to 
    those H-2B workers who have not yet entered the United States and are 
    therefore not yet employed in the certified position at the time of the 
    issuance of the SPWD. In order to receive an SPWD under this provision, 
    the employer must submit a new ETA Form 9141 to the NPWC that contains 
    in Section E.a.5 Job Duties the original PWD tracking number (starting 
    with P-400), the H-2B temporary employment certification application 
    number (starting with H-400), and the words ``Request for a 
    Supplemental Prevailing Wage Determination.'' Electronic submission 
    through the iCERT Visa Portal System is preferred. Upon receipt of the 
    request, the NPWC will issue to the employer, or if applicable, the 
    employer's attorney or agent, an SPWD in an expedited manner and 
    provide a copy to the Chicago NPC.
    6. Sec.  655.5 Definition of Terms
        The Departments have made a number of changes to the definitions 
    contained in the 2008 rule. Many of the changes clarify definitions in 
    minor ways that do not substantively change the meaning of the term. 
    However, we have also made some substantive changes to definitions, and 
    we discuss below those definitions.
    a. ``Area of Substantial Unemployment''
        This new term reflects the established definition of area of 
    substantial unemployment in use within ETA as it relates to Workforce 
    Investment Act (WIA) fund allocations, and is the existing definition 
    of area of substantial unemployment within ETA. ETA uses this 
    definition to identify areas with concentrated unemployment and to 
    focus WIA funding for services to facilitate employment in those areas. 
    ETA employs this term both as a way to improve labor market test 
    quality and for the sake of operational simplicity. This existing 
    definition provides the appropriate standard for identifying areas of 
    concentrated unemployment where additional recruitment could result in 
    U.S. worker employment. Also, the process of collecting data and 
    designating an area of substantial unemployment using the existing 
    definition is already established, as discussed in ETA's Training and 
    Employment Guidance Letter No. 5-11, Aug. 12, 2011,\13\ providing OFLC 
    with a ready resource for identifying areas to focus additional 
    recruitment. Finally, using this definition of area of substantial 
    unemployment in the interim final rule enables an employer to check the 
    list of areas of substantial unemployment ETA publishes to determine 
    whether its job opportunity may fall within an area of substantial 
    unemployment and, as appropriate, be subject to enhanced recruitment.
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        \13\ TEGL 5-11--Designation of Areas of Substantial Unemployment 
    (ASUs) under the Workforce Investment Act (WIA) for Program Year 
    (PY) 2012 has been added to the ETA Advisory Web site and is 
    available at http://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3069. With some exceptions, the provisions of the 
    recently enacted Workforce Innovation and Opportunity Act (WIOA), 
    Public Law 113-128, 128 Stat. 1425 (2014), will supersede WIA as of 
    July 1, 2015. WIOA contains a statutory definition of ``area of 
    substantial unemployment'' that is identical to the definition of 
    this term in WIA. See 29 U.S.C. 3162(b)(2)(B), 
    3172(b)(1)(B)(v)(III).
    ---------------------------------------------------------------------------
    
    b. ``Corresponding Employment''
        In this interim final rule, ``corresponding employment'' means the 
    employment of workers who are not H-2B workers by an employer that has 
    a certified H-2B Application for Temporary Employment Certification 
    when those workers are performing either substantially the same work 
    included in the job order or substantially the same work performed by 
    the H-2B workers. The definition contains exceptions for two categories 
    of incumbent employees (certain employees who have worked full-time for 
    at least one year and certain employees covered by a collective 
    bargaining agreement).
        The first category not included in the definition of corresponding 
    employment covers incumbent employees:
    
        1. Who have been continuously employed by the H-2B employer to 
    perform substantially the same work included in the job order or 
    substantially the same work performed by the H-2B workers during the 
    52 weeks prior to the period of employment certified on the 
    Application for Temporary Employment Certification;
        2. who have worked or been paid for at least 35 hours per week 
    in at least 48 of the prior 52 workweeks; and
        3. who have worked or been paid for an average of at least 35 
    hours per week over the prior 52 weeks.
    
    The second and third conditions of this exception must be demonstrated 
    on the employer's payroll records, and the employees' terms and working
    
    [[Page 24053]]
    
    conditions of employment must not be substantially reduced during the 
    period of employment covered by the job order.
    
        In determining whether this standard was met, the employer may take 
    credit for any hours that were reduced by the employee voluntarily 
    choosing not to work due to personal reasons such as illness or 
    vacation. Second, not included in the definition are incumbent 
    employees covered by a collective bargaining agreement or an individual 
    employment contract that guarantees both an offer of at least 35 hours 
    of work each workweek and continued employment with the H-2B employer 
    at least through the period of employment covered by the job order, 
    except that the employee may be dismissed for cause.
        To qualify as corresponding employment, the work must be performed 
    during the period of the job order, including any approved extension 
    thereof. Any work performed by U.S. workers outside the specific period 
    of the job order does not qualify as corresponding employment. 
    Accordingly, the interim final rule does not require employers to offer 
    their U.S. workers (part-time or full-time workers) corresponding 
    employment protections outside of the period of the job order. If, for 
    example, a U.S. worker is in corresponding employment with H-2B 
    workers, the employer must provide corresponding employment protections 
    during the time period of the job order but may choose not to do so 
    during the time period outside of the job order.
        The interim final rule includes these workers within the definition 
    of corresponding employment in order to fulfill the DHS regulatory 
    requirement that an H-2B Petition will not be approved unless the 
    Secretary of Labor certifies that the employment of the alien will not 
    adversely affect the wages and working conditions of similarly employed 
    U.S. workers. 8 CFR 214.2(h)(6)(iv). Congress has long intended that 
    similarly employed U.S. workers should not be treated less favorably 
    than temporary foreign workers. For example, a 1980 report on temporary 
    worker programs stated that U.S. employers were required to offer 
    domestic workers wages equal to foreign workers as a prerequisite for 
    labor certification. See Congressional Research Service: ``Report to 
    the Senate Committee on the Judiciary: Temporary Worker Programs: 
    Background and Issues'' 53 (1980); see also H.R. Rep. No. 99-682, pt. 1 
    at 80 (1986) (``The essential feature of the H-2 program has been and 
    would continue to be the requirement that efforts be made to find 
    domestic workers before admitting workers from abroad. A corollary 
    rule, again preserved in the bill, is that the importation of foreign 
    workers will not be allowed if it would adversely affect the wages and 
    working conditions of domestic workers similarly employed''). The 2008 
    rule reflected this principle, in part, by requiring that the terms and 
    conditions of offered employment cannot be less favorable than those 
    offered to H-2B workers. 20 CFR 655.22(a) (2009). Thus, the 2008 rule 
    provided for equal treatment of workers newly hired during the 10-day 
    H-2B recruitment process.
        The 2008 rule, however, did not protect U.S. workers who engage in 
    similar work performed by H-2B workers during the validity period of 
    the job order, because it did not protect any incumbent employees. 
    Therefore, for example, a U.S. employee hired three months previously 
    performing the same work as the work requested in the job order, but 
    earning less than the advertised wage, would have been required to quit 
    the current employment and re-apply for the same job with the same 
    employer to obtain the higher wage rate offered to H-2B workers. This 
    was disruptive for the employer and created an additional 
    administrative burden for the SWAs with respect to any workers being 
    referred through them. It also overestimated employees' understanding 
    of their rights under the regulations, and placed workers in insecure 
    situations by requiring them to quit their jobs with the hope of being 
    immediately rehired in order to avail themselves of the regulation's 
    protections. Therefore, the interim final rule does not require 
    incumbent employees to jump through this unnecessary hoop; U.S. workers 
    generally will be entitled to the wage rates paid to H-2B employees 
    without having to quit their jobs and be rehired.
        As set out above, there are only two categories of incumbent U.S. 
    employees who will be excluded from the definition of corresponding 
    employment. The first category covers those incumbents who have been 
    continuously employed by the H-2B employer for at least the 52 weeks 
    prior to the date of need, who have averaged at least 35 hours of work 
    or pay over those 52 weeks, and who have worked or been paid for at 
    least 35 hours in at least 48 of the 52 weeks, and whose terms and 
    conditions of employment are not substantially reduced during the 
    period of the job order. The employer may take credit for any hours 
    that were reduced because the employee voluntarily chose for personal 
    reasons not to work hours that the employer offered, such as due to 
    illness or vacation. Thus, for example, assume an employee took six 
    weeks of unpaid leave due to illness, and the employer offered the 
    employee 40 hours of work each of those weeks. In that situation, the 
    employer could take credit for all those hours in determining the 
    employee's average number of hours worked in the prior year and could 
    take credit for each of those six weeks in determining whether it 
    provided at least 35 hours of work or pay in 48 of the prior 52 weeks. 
    Similarly, if the employer provided a paid day off for Thanksgiving and 
    an employee worked the other 32 hours in that workweek, the employer 
    would be able to take credit for all 40 hours when computing the 
    average number of hours worked and count that week toward the required 
    48 weeks. In contrast, assume another situation where the employer 
    offered the employee only 15 hours of work during each of three weeks, 
    and the employee did not work any of those hours. The employer could 
    only take credit for the hours actually offered when computing the 
    average number of hours worked or paid during the prior 52 weeks, and 
    it would not be able to count those three weeks when determining 
    whether it provided at least 35 hours of work or pay for the required 
    48 weeks.
        The second category of incumbent workers excluded from the 
    definition of corresponding employment includes those covered by a 
    collective bargaining agreement or individual employment contract that 
    guarantees both an offer of at least 35 hours of work each week and 
    continued employment with the H-2B employer at least through the period 
    of the job order (except that the employee may be dismissed for cause). 
    As noted above, incumbent employees in the first category are year-
    round employees who began working for the employer before the employer 
    filed an Application for Temporary Employment Certification. They work 
    35 hours per week for the employer, even during its slow season. The 
    Departments recognize that there may be some weeks when, due to 
    personal factors such as illness or vacation, the employee does not 
    work 35 hours. The employer may still treat such a week as a week when 
    the employee worked 35 hours for purposes of the corresponding 
    employment definition, so long as the employer offered at least 35 
    hours of work and the employee voluntarily declined to work, as 
    demonstrated by the employer's payroll records. Thus, these workers 
    have valuable job security that is lacked by H-2B workers and those 
    hired during
    
    [[Page 24054]]
    
    the recruitment period or the period of the job order. Such full-time, 
    year-round employees may have other valuable benefits as well, such as 
    health insurance or paid time off. Similarly, employees covered by a 
    collective bargaining agreement or an individual employment contract 
    with a guaranteed weekly number of hours and just-cause provisions also 
    have valuable job security; they may also have benefits beyond those 
    guarantees provided by the H-2B program. These valuable terms and 
    conditions of employment may account for any difference in wages 
    between what they receive and what H-2B workers receive. Therefore, 
    these U.S. workers are excluded from corresponding employment if they 
    continue to be employed full-time at substantially the same terms and 
    conditions throughout the period covered by the job order, except that 
    they may be dismissed for cause.
        The interim final rule's inclusion of other workers within the 
    definition of corresponding employment is important because the 2008 
    rule did not protect U.S. workers in the situation where an H-2B 
    employer places H-2B workers in occupations and/or at job sites outside 
    the scope of the labor certification, in violation of the regulations. 
    For example, if an employer submits an application for workers to serve 
    as landscape laborers, but then assigns the H-2B workers to serve as 
    bricklayers constructing decorative landscaping walls, the employer has 
    bypassed many of the H-2B program's protections for U.S. workers. The 
    employer has deprived such U.S. workers of their right to protections 
    such as domestic recruitment requirements, the right to be employed if 
    available and qualified, and the prevailing wage requirement. The 
    interim final rule guards against this abuse of the system and protects 
    the integrity of the H-2B process by ensuring that the corresponding 
    U.S. workers employed as bricklayers receive the prevailing wage for 
    that work.
        The 2008 rule also did not protect U.S. workers in cases where 
    employers placed H-2B workers at job sites outside the scope of the 
    labor certification. For example, an employer may submit an application 
    for workers to serve as landscape laborers in a rural county in 
    southern Illinois, but instead violate its obligations by assigning its 
    H-2B workers to work as landscape laborers in the Chicago area. Because 
    the employer did not fulfill its recruitment obligations in the Chicago 
    area, U.S. workers were not aware of the job opportunity, they could 
    not apply and take advantage of their priority hiring right, and the 
    prevailing wage assigned was not the correct rate for the Chicago area. 
    Such a violation of the employer's attestations would result both in 
    the absence of a meaningful test of the labor market for available U.S. 
    workers and U.S. workers being adversely affected by the presence of 
    underpaid H-2B workers. The interim final rule's definition of 
    corresponding employment ensures that the employer's incumbent 
    landscape laborers who work where the H-2B workers actually are 
    assigned to work will receive the appropriate prevailing wage rate. 
    Paying the proper wage to such workers is necessary to protect against 
    possible adverse effects on U.S. workers due to wage depression from 
    the introduction of foreign workers. Therefore, the definition of 
    corresponding employment in the interim final rule is necessary to 
    fulfill the responsibility to provide temporary labor certifications 
    only in appropriate circumstances.
    c. ``Full-Time''
        The definition of ``full-time'' means 35 or more hours of work per 
    week. In accord with the decision in CATA I, which invalidated the 2008 
    rule's definition of full-time employment because DOL did not consider 
    and articulate relevant factors supporting the 30-hour definition, 2010 
    WL 3431761 at *14, we have continued to carefully consider all 
    pertinent information in determining the threshold number of hours for 
    full-time employment, including national labor market statistics, 
    empirical evidence from a random sample of approved applications, and 
    other employment laws. All available evidence suggests that the 2008 
    rule's definition of 30 hours or more per workweek was not an accurate 
    reflection of full-time employment. DOL's enforcement experience 
    confirms that the vast majority of H-2B temporary employment 
    certification applications that are the subject of investigations are 
    certified for 35 or more hours per week. Under the H-2A nonimmigrant 
    visa program applicable to agricultural workers, DOL defines full-time 
    as 35 hours per week. The 35-hour floor allows employers access to the 
    H-2B program for a relatively small number of full-time jobs that would 
    not have been eligible under a higher criterion (for example, a 40-hour 
    standard). H-2B employers are and will remain required to accurately 
    represent the actual number of hours per week associated with the job, 
    recruit U.S. workers on the basis of those hours, and pay for all hours 
    of work. Therefore, the employer is obligated to disclose and offer 
    those hours of employment--whether 35, 40, 45, or more--that accurately 
    reflect the job being certified. Failure to do so could result in a 
    finding of violation of these regulations.
    d. ``Job Contractor''
        This term means a person, association, firm, or a corporation that 
    meets the definition of an employer and that contracts services or 
    labor on a temporary basis to one or more employers, which is not an 
    affiliate, branch or subsidiary of the job contractor and where the job 
    contractor will not exercise substantial, direct day-to-day supervision 
    and control in the performance of the services or labor to be performed 
    other than hiring, paying and firing the workers. The following 
    examples illustrate the differences between an employer that is a job 
    contractor and an employer that is not. Employer A is a temporary 
    clerical staffing company. It sends several of its employees to Acme 
    Corporation to answer phones and make copies for a week. Although 
    Employer A has hired these employees and will be issuing paychecks to 
    these employees for the time worked at Acme Corporation, Employer A 
    will not exercise substantial, direct day-to-day supervision and 
    control over its employees during their performance of services at Acme 
    Corporation. Rather, Acme Corporation will direct and supervise the 
    Employer A employees during that week. Under this particular set of 
    facts, Employer A would be considered a job contractor. By contrast, 
    Employer B is a landscaping company. It sends several of its employees 
    to Acme Corporation once a week to do mowing, weeding, and trimming 
    around the Acme campus. Among the employees that Employer B sends to 
    Acme Corporation are several landscape laborers and one supervisor. 
    Employer B's supervisor instructs and supervises the laborers as to the 
    tasks to be performed on the Acme campus. Under this particular set of 
    facts, Employer B would not be considered a job contractor.
        Similarly, in the reforestation industry, employers may perform 
    contract work using crews of workers subject to the employer's on-site, 
    day-to-day supervision and control. Such an employer, whose 
    relationship with its employees involves substantial, direct, on-site, 
    day-to-day supervision and control would not be considered a job 
    contractor under this interim final rule. However, if a reforestation 
    employer were to send its workers to another company to work on that 
    company's crew and did not provide substantial, direct, on-site, day-
    to-day supervision
    
    [[Page 24055]]
    
    and control of the workers, that employer would be considered a job 
    contractor under this interim final rule. Note that the provision of 
    services to another company, under a contract alone, does not render an 
    employer a job contractor; rather, each employment situation must be 
    evaluated individually to determine the nature of the employer-employee 
    relationship and, accordingly, whether the petitioning employer is in 
    fact a job contractor.
    e. Other Definitions
        As discussed under Sec.  655.6, we have decided to permit job 
    contractors to participate in the H-2B program where they can 
    demonstrate their own temporary need, not that of their clients. The 
    particular procedures and requirements that govern their participation 
    are set forth in Sec.  655.19 and provide in greater detail the 
    responsibilities of the job contractors and their clients. Accordingly, 
    we are adding a definition of ``employer-client'' to this interim final 
    rule to define the characteristics of the employer that is served by 
    the job contractor and the nature of their relationship.
        We have included definitions of job offer and job order to make 
    certain that employers understand the difference between the offer that 
    is made to workers, which must contain all the material terms and 
    conditions of the job, and the order that is the published document 
    used by SWAs in the dissemination of the job opportunity. The 
    definition of job order reflects that it must include some, but not 
    all, of the material terms and conditions of employment as reflected in 
    Sec.  655.18, which identifies the minimum content required for job 
    orders. The definition of job offer requires an employer's job offer to 
    contain all material terms and conditions of employment.
        We have included the definition of strike so that the term is 
    defined more consistently with DOL's 2010 H-2A regulations. The 
    definition recognizes a range of protected concerted activity and 
    clearly notifies employers and workers of their obligations when 
    workers engage in these protected activities.
    7. Sec.  655.6 Temporary Need
        We will interpret temporary need in accordance with the DHS 
    definition of that term and our experience in the H-2B program. The DHS 
    regulations define temporary need as a need for a limited period of 
    time, where the employer must ``establish that the need for the 
    employee will end in the near, definable future.'' 8 CFR 
    214.2(h)(6)(ii)(B). The interim final rule, as discussed in further 
    detail below, is consistent with this approach.
        a. Job Contractors: We generally conclude that a person or entity 
    that is a job contractor, as defined under Sec.  655.5, has no 
    individual need for workers. Rather, its need is based on the 
    underlying need of its employer-clients. Job contractors generally have 
    an ongoing business of supplying workers to other entities, even if the 
    receiving entity's need for the services is temporary. However, we 
    recognize that we should exclude from the program only those job 
    contractors who have a definitively permanent need for workers, and 
    that job contractors who only have a need for the services or labor to 
    be performed several months out of the year have a genuine temporary 
    need and should not be excluded. Therefore, Sec.  655.6 permits only 
    those contractors that demonstrate their own temporary need, not that 
    of their employer-clients, to continue to participate in the H-2B 
    program.
        Job contractors will only be permitted to file applications based 
    on seasonal need or a one-time occurrence. In other words, in order to 
    participate in the H-2B program, a job contractor would have to 
    demonstrate, just as all employers seeking H-2B workers based on 
    seasonal need have always been required to demonstrate: 1) If based on 
    a seasonal need that the services or labor that it provides are 
    traditionally tied to a season of the year, by an event or pattern and 
    is of a recurring nature; or 2) if based on a one-time occurrence, that 
    the employer has not employed workers to perform the services or labor 
    in the past and will not need workers to perform the services in the 
    future or that it has an employment situation that is otherwise 
    permanent, but a temporary event of short duration has created the need 
    for a temporary worker. For a job contractor with a seasonal need, the 
    job contractor must specify the period(s) or time during each year in 
    which it does not employ the services or labor. The employment is not 
    seasonal if the period during which the services or labor is not 
    provided is unpredictable or subject to change or is considered a 
    vacation period for the contractor's permanent employees. For instance, 
    a job contractor that regularly supplies workers for ski resorts from 
    October to March but does not supply any workers performing the same 
    services or labor needed by the ski resorts outside of those months 
    would qualify as having a temporary need that is seasonal for such 
    workers.
        We are allowing job contractors to be certified based only on 
    seasonal or one-time need because it is extremely difficult, if not 
    impossible, to identify appropriate peakload or intermittent needs for 
    job contractors with clients who have variable needs. The seminal 
    Immigration and Naturalization Service (INS) decision, Matter of Artee, 
    18 I. & N. Dec 366 (Comm'r 1982), established that a determination of 
    temporary need rests on the nature of the underlying need for the 
    duties of the position. To the extent that a job contractor is applying 
    for a temporary labor certification, the job contractor whose need 
    rests on that of its clients has itself no independent need for the 
    services or labor to be performed. The Board of Alien Labor 
    Certification Appeals (BALCA) has further clarified the definition of 
    temporary need in Matter of Caballero Contracting & Consulting LLC, 
    2009-TLN-00015 (Apr. 9, 2009), finding that ``the main point of Artee . 
    . . is that a job contractor cannot use [solely] its client's needs to 
    define the temporary nature of the job where focusing solely on the 
    client's needs would misrepresent the reality of the application.'' The 
    BALCA, in Matter of Cajun Constructors, Inc. 2009-TLN-00096 (Oct. 9, 
    2009), also decided that an employer by the nature of its business 
    works on a project until completion and then moves on to another has a 
    permanent rather than a temporary need. The limited circumstances under 
    which job contractors may continue to participate in the H-2B program 
    will be subject to the requirements in Sec.  655.19, which sets forth 
    the procedures and requirements governing the filing of applications by 
    job contractors. Contractors have no temporary need apart from the 
    underlying need of the employer on whose behalf they are filing the 
    Application for Temporary Employment Certification. When considering 
    any employer's H-2B Registration, DOL will require that employer to 
    substantiate its temporary need by providing evidence required to 
    support such a need.
        b. Duration of Temporary Need. For the reasons described below, DOL 
    is defining temporary need, except in the event of a one-time 
    occurrence, as 9 months in duration, a decrease from the 10-month 
    limitation under DOL's 2008 rule. This definition is consistent with 
    the definition of temporary need in DHS regulations, which provides 
    that ``[g]enerally, that period of time will be limited to one year or 
    less, but in the case of a one-time event could last up to 3 years.'' 8 
    CFR 214.2(h)(6)(ii)(B) (emphasis provided). This interim final rule 
    further provides, consistent with 8 CFR 214.2(h)(6)(ii)(B), that in the 
    case of ``extraordinary circumstances,'' DOL
    
    [[Page 24056]]
    
    may extend a temporary labor certification for a period beyond nine 
    months, but not to exceed a total period of twelve months.
        DHS categorizes and defines temporary need into four 
    classifications: seasonal need; peakload need; intermittent need; and 
    one-time occurrence. A one-time occurrence may be for a period of up to 
    3 years. The other categories are generally limited to 1 year or less 
    in duration. See 8 CFR 214.2(h)(6)(ii)(B). DOL's temporary need period 
    falls comfortably within the parameters of the general ``one year or 
    less'' limitation contained in the DHS regulations. Routinely allowing 
    employers to file seasonal, peakload or intermittent need applications 
    for periods approaching a year would be inconsistent with the statutory 
    requirement that H-2B job opportunities need to be temporary. In our 
    experience, the closer the period of employment is to one year in the 
    H-2B program, the more the opportunity resembles a permanent position. 
    We conclude that a maximum employment period of 9 months establishes 
    the temporariness of the position. Where there are only a few days or 
    even a month or two for which no work is required, the job becomes less 
    distinguishable from a permanent position, particularly one that offers 
    time off due to a slow-down in work activity. Recurring temporary needs 
    of more than 9 months are, as a practical matter, permanent positions 
    for which H-2B labor certification is not appropriate. The approach in 
    the 2008 rule that permitted temporary certifications for periods up to 
    10 months encompasses job opportunities that we conclude are permanent 
    in nature and inconsistent with congressional intent to limit H-2B 
    visas to employers with temporary or seasonal needs. We conclude that 
    the 9-month limitation that fairly describes the maximum scope of a 
    seasonal need should also be applied to peakload need since there is no 
    compelling rationale for creating a different standard for peakload.
        The impact of the change from 10 months, which was the standard in 
    the 2008 rule, to 9 months, may have an adverse impact on some 
    employers. But that impact, standing alone, is not dispositive 
    regarding our legal obligation to protect the wages and working 
    conditions of U.S. workers. DOL previously relied on the standard 
    articulated in Matter of Vito Volpe Landscaping, Nos. 91-INA-300, 91-
    INA-301, 92-INA-170, 91-INA-339, 91-INA-323, 92-INA-11 (Sept. 29, 
    1994), which stated that a period of 10 months was not permanent. The 
    Departments may adopt through rulemaking a new standard that is within 
    their respective responsibilities in administering the program. See 
    United States v. Storer Broad., 351 U.S. 192, 203 (1956); Heckler v. 
    Campbell, 461 U.S. 458, 467 (1983); see also FDA v. Brown & Williamson 
    Tobacco Corp., 529 U.S. 120, 156-57 (2000) (recognizing that ``agencies 
    must be given ample latitude to adapt their rules and policies to the 
    demands of changing circumstances''). DOL has determined that 9 months 
    better reflects a recurring seasonal or temporary need and have 
    accordingly adopted a new standard in this interim final rule. The 
    majority of H-2B employer applicants will not be affected by this 
    change. According to DOL H-2B program data for FY 2010-2014, 65.2 
    percent of certified and partially certified employer applicants had a 
    duration of temporary need less than or equal to 9 months.
        Similarly, we have determined that limiting to 9 months the 
    duration of temporary need on a peakload basis would ensure that the 
    employer is not mischaracterizing a permanent need as one that is 
    temporary. For example, since temporary need on a peakload basis is not 
    tied to a season, under the current 10-month standard, an employer may 
    be able to characterize a permanent need for the services or labor by 
    filing consecutive applications for workers on a peakload basis. To the 
    extent that each application does not exceed 10 months, the 2-month 
    inactive period may correspond to a temporary reduction in workforce 
    due to annual vacations or administrative periods. Increasing the 
    duration of time during which an employer must discontinue operations 
    from 2 months to 3 will ensure that the use of the program is reserved 
    for employers with a genuine temporary need. Similarly, a 9-month 
    limitation is appropriate for ensuring that the employer's intermittent 
    need is, in fact, temporary. In addition, under the interim final rule, 
    each employer with an intermittent need will be required to file a 
    separate H-2B Registration and Application for Temporary Employment 
    Certification to make certain that any disconnected periods of need are 
    accurately portrayed and comply with the 9-month limitation.
        c. Peakload need: The Departments will employ the definition of 
    peakload need established in DHS regulations at 8 CFR 
    214.2(h)(6)(ii)(B)(3).
        d. One-Time Occurrence. The Departments will employ the definition 
    of one-time occurrence established in DHS regulations at 8 CFR 
    214.2(h)(6)(ii)(B)(1). The Departments do not intend for the 3-year 
    accommodation of special projects to provide a specific exemption for 
    industries like construction in which many of an employer's projects or 
    contracts may prove a permanent rather than a temporary need. 
    Therefore, we will closely review all assertions of temporary need on 
    the basis of a one-time occurrence to ensure that the use of this 
    category is limited to those circumstances where the employer has a 
    non-recurring need which exceeds the 9-month limitation. For example, 
    an employer who has a construction contract that exceeds 9 months may 
    not use the program under a one-time occurrence if it has previously 
    filed an Application for Temporary Employment Certification identifying 
    a one-time occurrence and the prior Application for Temporary 
    Employment Certification requested H-2B workers to perform the same 
    services or labor in the same occupation.
    8. Sec.  655.7 Persons and Entities Authorized To File
        The employer, or its attorney or agent, are persons authorized to 
    file an H-2B Registration or an Application for Temporary Employment 
    Certification. The employer must sign the H-2B Registration or 
    Application for Temporary Employment Certification and any other 
    required documents, whether or not it is represented by an attorney or 
    agent.
     9. Sec.  655.8 Requirements for Agents
        Employer's agents are required to provide copies of current 
    agreements defining the scope of their relationships with employers, or 
    other document demonstrating the agent's authority to represent the 
    employer. DOL will review the documents to make certain that there is 
    evidence that a bona fide relationship exists between the agent and the 
    employer and, where the agent is also engaged in recruitment, to ensure 
    that the agreements include the language required at Sec.  655.20(p) 
    prohibiting the payment of fees by the worker. DOL also reserves the 
    right to further review the agreements in the course of an 
    investigation or other integrity measure. A certification of an 
    employer's application that includes such a submitted agreement in no 
    way indicates a general approval of the agreement or the terms therein. 
    The requirement does not obligate either the agent or the employer to 
    disclose any trade secrets or other proprietary business information. 
    The interim final rule only requires the agent to provide sufficient 
    documentation to clearly demonstrate the scope of the agency 
    relationship. In addition, under this
    
    [[Page 24057]]
    
    interim final rule, DOL does not plan at present to post these 
    agreements for public viewing. If, however, DOL does so in the future, 
    DOL will continue to follow all applicable legal and internal 
    procedures including those relating to Freedom of Information Act 
    (FOIA) requests to ensure the protection of private data in such 
    circumstances.
        We remind both agents and employers that each is responsible for 
    the accuracy and veracity of the information and documentation 
    submitted, as indicated in the ETA Form 9142B and Appendix B, both of 
    which must be signed by the employer and its agent. As discussed under 
    Sec.  655.73(b), agents who are signatories to ETA Form 9142B may now 
    be held liable for their own independent violations of the H-2B 
    program.
        Finally, under this provision, where an agent is required under the 
    Migrant and Seasonal Agricultural Worker Protection Act (MSPA) to have 
    a Certificate of Registration, the agent must also provide a current 
    copy of the certificate which identifies the specific farm labor 
    contracting activities that the agent is authorized to perform.
    10. Sec.  655.9 Disclosure of Foreign Worker Recruitment
        Paragraph (a) requires an employer and its attorney and/or agent to 
    provide DOL a copy of all agreements with any agent or recruiter that 
    it engages or plans to engage in the recruitment of prospective H-2B 
    workers, regardless whether the agent or recruiter is located in the 
    U.S. or abroad. The written contract must contain the contractual 
    prohibition on charging fees, as set forth in Sec.  655.20(p). At the 
    time of collection, DOL will review the agreements to obtain the names 
    of the foreign labor recruiters (for purposes of maintaining a public 
    list, as described below), and to verify that these agreements include 
    the required contractual prohibition against charging fees. DOL may 
    also further review the agreements in the course of an investigation or 
    other integrity measure. Certification of an employer's application 
    that includes such a submitted agreement, however, does not indicate 
    general approval of the agreement or the terms therein. Where the 
    contract is not in English and the required contractual prohibition is 
    not readily discernible, DOL reserves the right to request further 
    information to ensure that the contractual prohibition is included in 
    the agreement. Agreements between the employer and the foreign labor 
    recruiter will not be made public unless required by law. This interim 
    final rule provides for DOL to obtain the agreements, but only share 
    with the public the identity of the recruiters as discussed further 
    below, but not the full agreements.
        Paragraph (b) requires an employer and its attorney or agent, as 
    applicable, to disclose to DOL the identity (name) and geographic 
    location of persons and entities hired by or working for the foreign 
    labor recruiter and any of the agents or employees of those persons and 
    entities who will recruit or solicit prospective H-2B workers for the 
    job opportunities offered by the employer. We interpret the term 
    ``working for'' to encompass any persons or entities engaged in 
    recruiting prospective foreign workers for the H-2B job opportunities 
    offered by the employer, whether they are hired directly by the primary 
    recruiter or are working indirectly for that recruiter downstream in 
    the recruitment chain. This requirement encompasses all agreements, 
    whether written or verbal, involving the whole recruitment chain that 
    brings an H-2B worker to the employer's certified H-2B job opportunity 
    in the United States. Employers, and their attorneys or agents, as 
    applicable, are expected to provide these names and geographic 
    locations to the best of their knowledge at the time the application is 
    filed. DOL expects that, as a normal business practice, when completing 
    the written agreement with the primary recruiting agent or recruiter, 
    the employer/attorney/agent will ask whom the recruiter plans to use to 
    recruit workers in foreign countries, and whether those persons or 
    entities plan to hire other persons or entities to conduct such 
    recruitment, throughout the recruitment chain.
        Paragraph (c) provides for DOL's public disclosure of the names of 
    the agents and foreign labor recruiters used by employers, as well as 
    the identities and locations of all the persons or entities hired by or 
    working for the primary recruiter in the recruitment of prospective H-
    2B workers, and the agents or employees of these entities. Determining 
    the identity and location of persons hired by or working for the 
    recruiter or its agent to recruit or solicit prospective H-2B workers--
    effectively acting as sub-recruiters, sub-agents, or sub-contractors--
    serves several purposes. It bolsters program integrity by aiding in the 
    enforcement of certain regulatory provisions. This provision will also 
    bring a greater level of transparency to the H-2B worker recruitment 
    process. By maintaining and making public a list of agents and 
    recruiters, DOL will be in a better position to enforce recruitment 
    violations, and workers will be better protected against fraudulent 
    recruiting schemes because they will be able to verify whether a 
    recruiter is in fact recruiting for legitimate H-2B job opportunities 
    in the United States. As the Government Accountability Office (GAO) 
    explained in a recent report, ``[w]ithout accurate, accessible 
    information about employers, recruiters, and jobs during the 
    recruitment process, potential foreign workers are unable to 
    effectively evaluate the existence and nature of specific jobs or the 
    legitimate parties contracted to recruit for employers, potentially 
    making them more vulnerable to abuse.'' H-2A and H-2B Visa Programs: 
    Increased Protections Needed for Foreign Workers, GAO-15-154 (Mar. 
    2015). A list of foreign labor recruiters will facilitate information 
    sharing between the Departments and the public, and assist us, other 
    agencies, workers, and community and worker advocates to better 
    understand the roles of recruiters and their agents in the recruitment 
    chain and permit a closer examination of applications or certifications 
    involving recruiters who may be engaged in improper behavior. 
    Information about the identity of the international and domestic 
    recruiters of foreign labor will also assist DOL in more appropriately 
    directing its audits and investigations. Strengthening enforcement of 
    recruitment abuses also ensures that employers who comply with the H-2B 
    program requirements are not undercut by unscrupulous employers, such 
    as those who pass recruitment fees on to workers.
    
    B. Prefiling Procedures
    
    1. Sec.  655.10 Prevailing Wage
        The interim final rule requires employers to request PWDs from the 
    NPWC before posting their job orders with the SWA. The PWD must be 
    valid on the day the job orders are posted. We encourage employers to 
    continue to request a PWD in the H-2B program at least 60 days before 
    the date the determination is needed. Under the companion H-2B final 
    wage rule, issued simultaneously with this interim final rule, 
    employer-provided surveys may not be used to set the prevailing wage 
    except in limited circumstances. Paragraph (g) provides that if OFLC 
    determines that an employer-provided survey is not acceptable, it will 
    inform the employer in writing of the reasons the survey is being 
    rejected. Employers may request review of this determination through 
    the appeal process in Sec.  655.13 of this interim final rule. Unlike 
    the 2008 rule, this interim final rule does not allow an employer to
    
    [[Page 24058]]
    
    request a redetermination of the rejection of an employer-provided 
    survey from the certifying officer (CO), but may request review by the 
    NPWC Director as specified in Sec.  655.13. DOL has determined that the 
    2008 procedures, which allowed an employer to request redetermination 
    from the CO before appeal to the NPWC Director, were unnecessarily 
    burdensome and that streamlining this process will allow for more 
    expeditious resolution of prevailing wage requests.
    2. Sec.  655.11 Registration of H-2B Employers
        The interim final rule bifurcates the current application process 
    into a registration phase, which addresses the employer's temporary 
    need, and an application phase, which addresses the labor market test. 
    This provision requires employers to submit an H-2B Registration and 
    receive an approval before submitting an Application for Temporary 
    Employment Certification and conducting the U.S. labor market test.
        Paragraph (a) requires employers to file an H-2B Registration, 
    which must be accompanied by documentation showing: The number of 
    positions the employer desires to fill in the first year of 
    registration; the period of time for which the employer needs the 
    workers; and that the employer's need for the services or labor is non-
    agricultural, temporary and is justified as either a one-time 
    occurrence, a seasonal need, a peakload need, or an intermittent need, 
    as described in 8 CFR 214.2(h)(6)(ii)(B) and Sec.  655.6 of this 
    interim final rule. The Departments have found that evaluating 
    temporary need is a fact-intensive process which, in many cases, can 
    take a considerable amount of time to resolve. DOL has a longstanding 
    practice of evaluating temporary need as an integral part of the 
    adjudication of the Application for Temporary Employment Certification; 
    the bifurcation of the application process into a registration phase 
    and a labor market test phase shifts the timing of, but does not change 
    the nature of, DOL's review. See Matter of Golden Dragon Chinese Rest., 
    19 I. & N. Dec. 238, 239 (Comm'r 1984). Separating the two processes 
    will give OFLC the time to make a considered decision about temporary 
    need without negatively impacting an employer's ability to have the 
    workers it needs in place in a timely manner. In addition, we 
    anticipate that many employers, with 3 years of registration validity, 
    will benefit from a one-step process involving only the labor market 
    test in their second and third years after registration, which will 
    allow DOL to process these applications more efficiently. We conclude 
    that enforcement alone cannot ensure program integrity; in the move 
    from an attestation-based model to a compliance-based model, the 
    bifurcation of application processing into registration and labor 
    market test phases contributes to program integrity. Job contractors 
    also must register, and provide documentation that establishes their 
    temporary seasonal need or one-time occurrence during the registration 
    process. Although a job contractor must file an Application for 
    Temporary Employment Certification jointly with its employer-client, in 
    accordance with Sec.  655.19, a job contractor and its employer-client 
    must each file a separate H-2B Registration. Paragraph (b) requires the 
    employer and, as applicable, its agent and/or attorney, to sign the H-
    2B Registration.
        Paragraph (c) requires employers to file an H-2B Registration no 
    less than 120 and no more than 150 calendar days before the date of 
    initial need for H-2B workers, except where the employer submits the H-
    2B Registration in support of an emergency filing, discussed further 
    below with reference to paragraph (j). The registration window (i.e., 
    120 to 150 days before the employer's anticipated date of need) 
    provides enough time for processing the registration before an employer 
    may submit an Application for Temporary Employment Certification (i.e., 
    75 to 90 days before the employer's anticipated date of need) to assure 
    that the adjudication of the Application for Temporary Employment 
    Certification will not be delayed. In addition, many employers will not 
    have to repeat the registration process with respect to the following 2 
    years. The registration timeframe also reflects the understanding that 
    some employers may have difficulty accurately predicting their need 
    more than 5 months in advance. The registration window seeks to balance 
    both processing time and accuracy concerns. We anticipate an employer's 
    overall processing time to decrease significantly when the bifurcated 
    process goes into effect.
        Paragraph (d) states that the assertion of temporary need will be 
    evaluated based on standards established by DHS in 8 CFR 
    214.2(h)(6)(ii).\14\ The NPC will review the registration under the 
    standards set in paragraph (e) of Sec.  655.11. Paragraph (f) of this 
    provision establishes mailing and postmark requirements.
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        \14\ DHS is the final arbiter in terms of determining temporary 
    need. See 8 CFR 214.2(h)(6)(iii)(A) (stating that a temporary labor 
    certification constitutes advice to DHS as to the availability of 
    qualified U.S. workers and as to any adverse effect hiring an alien 
    worker may have on the wages and working conditions of similarly 
    employed U.S. workers).
    ---------------------------------------------------------------------------
    
        Paragraph (g) authorizes the CO to issue one or more Requests for 
    Further Information (RFIs) before issuing a Notice of Decision on the 
    H-2B Registration if the CO determines that he or she could not approve 
    the H-2B Registration for various reasons, including, but not limited 
    to: An incomplete or inaccurate ETA Form 9155; a job classification and 
    duties that do not qualify as non-agricultural; the failure to 
    demonstrate temporary need; and/or positions that do not constitute 
    bona fide job opportunities. In addition, DOL will perform the initial 
    business existence verification and, if questions arise, will request 
    additional documentation of bona fide existence through the RFI 
    process.
        Paragraph (h) provides that, if approved, the registration would be 
    valid for a period of up to 3 years, absent a significant change in 
    conditions, enabling an employer to begin the application process at 
    the second phase without having to re-establish temporary need for the 
    second and third years of registration. This provision grants the CO 
    the necessary discretion to approve a registration for a period up to 3 
    consecutive years, taking into consideration the standard of need and 
    any other factors in the registration. If the H-2B Registration is 
    denied, the CO will send a Notice of Decision stating the reason(s) for 
    the denial and providing an opportunity for administrative review 
    within 10 days of the denial.
        Paragraph (i) requires all employers that file an H-2B Registration 
    to retain any documents and records not otherwise submitted proving 
    compliance with this subpart for a period of 3 years from the date of 
    certification of the last Application for Temporary Employment 
    Certification supported by the H-2B Registration, if approved, or 3 
    years from the date the decision is issued if the H-2B Registration is 
    denied or withdrawn. We have included corresponding Sec.  655.56 that 
    sets out all document retention obligations for H-2B employers.
        Paragraph (j) adds a provision to allow for the transition to the 
    registration process through a future announcement in the Federal 
    Register, until which time the CO will adjudicate temporary need 
    through the application process.
    
    [[Page 24059]]
    
    3. Sec.  655.12 Use of Registration by H-2B Employers
        Under this provision, an employer may file an Application for 
    Temporary Employment Certification upon approval of its H-2B 
    Registration, and for the duration of the registration's validity 
    period, which may be up to 3 consecutive years from the date of 
    issuance, provided that the employer's need for workers has not 
    changed. The employer will be required to file a new H-2B Registration 
    if the employer's need for workers increases by more than 20 percent 
    (or 50 percent for employers requesting fewer than 10 workers); if the 
    dates of need of the job opportunity have changed by more than a total 
    of 30 calendar days from the initial year for the entire period of 
    need; if the nature of the job classification and/or duties materially 
    changed; and/or if the temporary nature of the employer's need for 
    services or labor materially changed. We conclude that material changes 
    in the job classification or job duties, material changes in the nature 
    of the employer's temporary need, or changes in the number of workers 
    needed greater than the specified levels, from one year to the next, 
    merit a fresh review through re-registration. We note that the 
    tolerance level for the number of workers requested for the 
    registration process (i.e., 20 percent (or 50 percent for employers 
    requesting fewer than 10 workers)) is the same as the tolerance level 
    in the 2008 rule, the current H-2A regulation, and Sec.  655.35 of this 
    interim final rule, which pertains to amendments to an Application for 
    Temporary Employment Certification before certification. Under the 
    interim final rule, an H-2B Registration is non-transferrable.
    4. Sec.  655.13 Review of Prevailing Wage Determinations
        The interim final rule alters the process from the 2008 rule for 
    the review of PWDs to improve clarity and consistency. Specifically, 
    the provision reduces the number of days within which the employer must 
    request review of a PWD by the NPWC Director from 10 calendar days in 
    the 2008 rule to 7 business days from the date of the PWD in this 
    interim final rule. In addition, the NPWC Director will review 
    determinations, and the employer has 10 business days from the date of 
    the NPWC Director's final determination within which to request review 
    by the BALCA.
    
    C. Application for Temporary Employment Certification Filing Procedures
    
    1. Sec.  655.15 Application Filing Requirements
        Under the interim final rule, we have returned to a post-filing 
    recruitment model in order to develop more robust recruitment and to 
    ensure better and more complete compliance by H-2B employers with 
    program requirements. DOL's experience in administering the H-2B 
    program since the implementation of the 2008 rule suggests that the 
    lack of agency oversight during the pre-filing recruitment process has 
    resulted in failures to comply with program requirements. We conclude 
    that the recruitment model adopted in this interim final rule will 
    enhance coordination between OFLC and the SWAs, better serve the public 
    by providing U.S. workers more access to available job opportunities, 
    and assist employers in obtaining the workers that they require in a 
    timelier manner. This provision requires all employers to first obtain 
    a prevailing wage determination under Sec.  655.10 and register under 
    the procedures set out in Sec.  655.11, unless requirements under 
    Sec. Sec.  655.4 or 655.17 are met.
        Paragraph (a) requires a registered employer to file the 
    Application for Temporary Employment Certification, together with 
    copies of all contracts and agreements with any agent and/or recruiter 
    executed in connection with the job opportunities, and a copy of the 
    job order with the Chicago NPC at the same time it files the job order 
    with the SWA. DOL understands that there are circumstances in which the 
    job order has yet to be created and posted by the SWA, so DOL will 
    require a document that outlines the details of the employer's job 
    opportunity where a copy of the official job order from the SWA's job 
    order system is not yet available; DOL expects the employer to provide 
    the Chicago NPC with an exact copy of the draft the employer provides 
    to the SWA for the creation of the SWA job order. The process relies on 
    the SWAs' significant knowledge of the local labor market and job 
    requirements. The resulting job order will provide accurate, program 
    compliant notification of the job opportunity to U.S. workers. In 
    addition, requiring the employer to simultaneously file the job order 
    with the Chicago NPC and the SWA will enhance coordination between the 
    agencies, resulting in increased U.S. worker access to job 
    opportunities as well as helping employers locate qualified and 
    available U.S. workers. The employer is required to also submit to the 
    NPC any information required under Sec. Sec.  655.8 and 655.9 
    (including the identity and location of persons and entities hired by 
    or working with the recruiter or agent or employee of the recruiter to 
    recruit prospective foreign workers for the H-2B job opportunities). 
    Under Paragraph (b), the employer must submit this filing no more than 
    90 days and no fewer than 75 days before its date of need.
        Paragraph (c) permits the employer or its authorized attorney or 
    agent to file electronically H-2B temporary employment certification 
    applications under the H-2B visa category through the iCERT System 
    (http://icert.doleta.gov). An employer or its authorized attorney or 
    agent electing not to use the electronic filing capability must file 
    their H-2B temporary employment certification applications directly 
    with the Chicago NPC using the traditional paper-based filing method. 
    Data from mailed-in H-2B temporary employment certification 
    applications will be entered into the iCERT System's internal case 
    management system by the Chicago NPC and processed in a similar manner 
    as those filed electronically.
        Paragraph (d) requires the employer and, as applicable, its 
    attorney and/or agent, to sign the Application for Temporary Employment 
    Certification. When filing an H-2B temporary employment certification 
    application electronically, the iCERT System account holder must upload 
    a signed and dated copy of the Appendix B associated with the H-2B 
    temporary employment certification application containing the requisite 
    program assurances and obligations under this interim final rule. In 
    the case of a job contractor filing as a joint employer with its 
    employer-client, a separate attachment containing the employer-client's 
    business and contact information (i.e., Sections C and D of the ETA 
    Form 9142B) and a separate signed and dated copy of the Appendix B and 
    H-2B Registration for the employer-client must be uploaded prior to 
    electronically submitting the H-2B temporary employment certification 
    application, as required by 20 CFR 655.19. For electronic filing only, 
    an H-2B temporary employment certification application bearing original 
    signatures will no longer be required by the Chicago NPC at the time of 
    filing, because a copy of the signed and dated Appendix B will be 
    uploaded directly into the iCERT System and the original Appendix B 
    will be retained by the employer, as required by 20 CFR 655.56.
        In addition to the H-2B temporary employment certification 
    application, the regulations require an employer to
    
    [[Page 24060]]
    
    submit all supporting documentation at the time of filing. When filing 
    an H-2B temporary employment certification application electronically, 
    the iCERT System account holder must upload, prior to submission of the 
    application and in an electronic format acceptable to the iCERT System, 
    all required supporting documentation that would normally be sent to 
    the Chicago NPC by U.S. mail, because the system will not permit 
    documents to be uploaded once the H-2B temporary employment 
    certification application has been submitted for processing. An 
    employer who elects to file H-2B temporary employment certification 
    applications by U.S. mail must submit all required documentation in 
    hard copy to the Chicago NPC. To avoid any processing delays, the iCERT 
    account holder is strongly encouraged to preview and check the H-2B 
    temporary employment certification application and all uploaded 
    documents for completeness and accuracy before submitting the 
    application electronically. Any supporting documentation required after 
    the H-2B temporary employment certification application is filed will 
    be requested by the Chicago NPC and must be filed by U.S. mail, 
    electronic mail or facsimile, even if the application itself was 
    submitted electronically.
        Where a temporary labor certification is granted, the Chicago NPC 
    will send the approved H-2B temporary employment certification 
    application and a Final Determination letter to the employer by means 
    normally assuring next day delivery, including electronic mail, and a 
    copy, if applicable, to the employer's attorney or agent. For all H-2B 
    temporary employment certification applications granted under this 
    interim final rule, whether filed electronically or mailed, the 
    employer will receive from the Chicago NPC an original certified ETA 
    Form 9142B, but not an Appendix B, issued on security certification 
    paper. A certified ETA Form 9142B is valid when it contains a completed 
    Section K bearing the electronic signature of the OFLC Administrator, 
    and a completed ``For Department of Labor Use Only'' footer on each 
    page identifying the case number, case status, and validity period. 
    Upon receipt of the original certified ETA Form 9142B, the employer or 
    its agent or attorney, if applicable, must complete the footer on the 
    original Appendix B, retain the original Appendix B, and submit a 
    signed copy of Appendix B, together with the original certified ETA 
    Form 9142B directly to USCIS. Under the document retention requirements 
    in Sec.  655.56, the employer must retain a copy of the temporary labor 
    certification and the original signed Appendix B.
        Paragraph (f) requires that, with one exception discussed below 
    applicable to employers in the seafood industry, employers file 
    separate applications when there are different dates of need for the 
    same job opportunity or different worksites within an area of intended 
    employment. Employers must accurately identify their personnel needs 
    and, for each period within their season for which they have more than 
    one date of need, file a separate application for each separate date of 
    need. An application with an accurate date of need will be more likely 
    to attract qualified U.S. workers to fill those open positions, 
    especially when the employer conducts recruitment closer to the actual 
    date of need. This prohibition against staggered entries based on a 
    single date of need is intended to require that employers provide U.S. 
    workers the maximum opportunity to consider the job opportunity and is 
    consistent with USCIS policies. It is intended to provide that U.S. 
    workers are not treated less favorably than H-2B workers who, for 
    example, may be permitted to report for duty 6 weeks after the stated 
    date of need.
        The interim final rule, at Sec.  655.15(f), permits only employers 
    in the seafood industry to stagger the entry of their otherwise 
    admissible H-2B nonimmigrants into the United States under certain 
    circumstances. Under section 108 of the Consolidated and Further 
    Continuing Appropriations Act, 2015 (the ``2015 Appropriations Act''), 
    Public Law 113-235, 128 Stat. 2130, 2464, permits staggered entry of H-
    2B nonimmigrants employed by employers in the seafood industry under 
    certain conditions. The Departments have determined that this 
    legislation constitutes a permanent enactment, and so we have 
    incorporated the requirements into this interim final rule.
        Under the 2015 Appropriations Act and Sec.  655.15(f), employers in 
    the seafood industry may bring into the United States, in accordance 
    with an approved H-2B petition, nonimmigrant workers at any time during 
    the 120-day period on or after the employer's certified start date of 
    need if certain conditions are met. No additional information or 
    documentation related to this provision should be submitted with an H-
    2B temporary employment certification application to the Chicago NPC. 
    However, as discussed below, in order for employers to use this 
    provision, H-2B nonimmigrant workers must show to the Department of 
    State's consular officers and to the DHS's U.S. Customs and Border 
    Protection officers, as necessary, the employer's attestation that the 
    conditions set forth in the statute and regulation have been met.
        The statute and regulation contain two primary conditions that 
    employers must meet in order to benefit from this exception. First, 
    this rule applies only to employers engaged in a business in the 
    seafood industry. We have added to Sec.  655.5 a definition of 
    ``seafood,'' which is defined as fresh or saltwater finfish, 
    crustaceans, other forms of aquatic animal life, including, but not 
    limited to, alligator, frog, aquatic turtle, jellyfish, sea cucumber, 
    and sea urchin and the roe of such animals, and all mollusks. Second, 
    any seafood industry employer that permits or requires its H-2B 
    nonimmigrant workers to enter the United States between 90 and 120 days 
    after the certified start date of need must complete a new assessment 
    of the local labor market during the period that begins at least 45 
    days after the certified start date of need and ends before the 90th 
    day after the certified start date of need, which must include: (A) 
    Listing the job in local newspapers on two separate Sundays; (B) 
    placing new job orders for the job opportunity with the SWA serving the 
    area of intended employment and posting the job opportunity at the 
    place of employment for at least 10 days; and (C) offering the job to 
    any equally or better qualified U.S. worker who applies for the job and 
    who will be available at the time and place of need. Seafood industry 
    employers who conduct the required additional recruitment should not 
    submit proof of the additional recruitment to OFLC. However, seafood 
    industry employers must retain the additional recruitment 
    documentation, together with their pre-filing recruitment 
    documentation, for a period of 3 years from the date of certification, 
    consistent with the document retention requirements under Sec.  655.56.
        In order to comply with this provision, a seafood industry employer 
    must prepare a written, signed attestation indicating its compliance 
    with the conditions outlined above.\15\ Employers must download the 
    official attestation, review the conditions contained in the 
    attestation, and indicate compliance by signing and
    
    [[Page 24061]]
    
    dating the attestation. An employer seeking to use this statutory and 
    regulatory provision must provide each H-2B nonimmigrant worker seeking 
    entry into the United States a copy of the signed and dated 
    attestation, with instructions that the worker must present the 
    documentation upon request to the Department of State's consular 
    officers when they apply for an H-2B visa, and/or DHS's U.S. Customs 
    and Border Protection officers when seeking entry into the United 
    States. Without this attestation, an H-2B nonimmigrant may be denied 
    admission to the United States if seeking to enter at any time other 
    than the designated 20-day period (10 days before and after the start 
    date) surrounding the start date stated in the petition. (The 
    attestation is not necessary when filing an amended petition based on a 
    worker that is being substituted under 8 CFR 214.2(h)(6)(viii)). The 
    attestation presented by an H-2B nonimmigrant worker in order to be 
    admitted to the United States in H-2B status must be the official 
    attestation downloaded from OFLC's Web site and may not be altered or 
    revised in any manner.
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        \15\ The official attestation is available in PDF-format on 
    OFLC's Web site at http://www.foreignlaborcert.doleta.gov/form.cfm. 
    The attestation was developed as a result of Congress's original and 
    temporary enactment of legislation permitting seafood industry 
    employers to stagger the entry of their H-2B workers into the U.S. 
    under section 113 of the Consolidated Appropriations Act, 2014, 
    Public Law 113-76, 128 Stat. 5 (Jan. 17, 2014).
    ---------------------------------------------------------------------------
    
    2. Sec.  655.16 Filing of the Job Order at the SWA
        The interim final rule requires the employer to submit its job 
    order directly to the SWA at the same time it files the Application for 
    Temporary Employment Certification and a copy of the job order with the 
    Chicago NPC, no more than 90 calendar days and no fewer than 75 
    calendar days before the employer's date of need. As discussed above, 
    we are continuing to rely on the SWAs' experience with the local labor 
    market, job requirements, and prevailing practices by requiring the SWA 
    to review the contents of the job order for compliance with Sec.  
    655.18 and to notify the CO of any deficiencies within 6 business days 
    of the SWA's receipt of the job order. By requiring such concurrent 
    filing and review, the CO can use the knowledge of the SWA, in addition 
    to its own review, in a single Notice of Deficiency before the employer 
    conducts its recruitment. SWAs can continue to rely on foreign labor 
    certification grant funding to support those functions. We conclude 
    that this continued cooperative relationship between the CO and the SWA 
    will ensure greater program integrity and efficiency.
        Under paragraph (c), the SWAs must circulate the job order in 
    intrastate clearance, and in interstate clearance by providing a copy 
    of the job order to other states as directed by the CO. Intrastate 
    clearance refers to placement of the job order within the SWA labor 
    exchange services system of the State to which the employer submitted 
    the job order and to which the NPC sent the Notice of Acceptance, and 
    interstate clearance refers to circulation of the job order to SWAs in 
    other States, including those with jurisdiction over listed worksites 
    and those the CO designates, for placement in their labor exchange 
    services systems. We note that, under Sec.  655.33(b)(4), the CO 
    directs the SWA in the Notice of Acceptance to circulate the job order 
    in the course of interstate clearance, ensuring that the employer is 
    also aware of the job order's exposure in the SWAs' labor exchange 
    services systems.
        Posting the job order in the SWA labor exchange system is but one 
    of the recruitment requirements contained in the interim final rule, 
    which together are designed to ensure maximum job opportunity exposure 
    for U.S. workers during the recruitment period. Also, in most cases, 
    the job order will be posted for at least 54 days, since the interim 
    final rule requires the employer to file its application no more than 
    90 calendar days and no less than 75 calendar days before its date of 
    need and the SWA to post the job order upon receipt of the Notice of 
    Acceptance and to keep the job order posted until 21 days before the 
    date of need, as discussed in the preamble to Sec.  655.20(t).
     3. Sec.  655.17 Emergency Situations
        The interim final rule permits an employer to file an H-2B 
    Registration fewer than 120 days before the date of need, and/or an 
    Application for Temporary Employment Certification with the job order 
    fewer than 75 days before the date of need, where an employer has good 
    and substantial cause and there is enough time for the employer to 
    undertake an adequate test of the labor market. This emergency 
    provision permits an employer to file fewer than 75 days before the 
    start date of need, but does not expand the earliest date an employer 
    is eligible to submit an H-2B Registration or Application for Temporary 
    Employment Certification. This provision represents a change from the 
    2008 rule, which did not allow for emergency filings, and affords 
    employers flexibility while maintaining the integrity of the 
    application and recruitment processes.
        To rely on this provision, the employer must provide the CO with 
    detailed information describing the ``good and substantial cause'' 
    necessitating the waiver. Such cause may include the substantial loss 
    of U.S. workers due to Acts of God, or a similar unforeseeable human-
    made catastrophic event that is wholly outside the employer's control, 
    unforeseeable changes in market conditions, or pandemic health issues. 
    The CO's denial of an H-2B Registration in accordance with the 
    procedures under Sec.  655.11 does not, standing alone, constitute good 
    and substantial cause for a waiver request.
        In processing an emergency H-2B Registration or Application for 
    Temporary Employment Certification and job order, the CO will review 
    the submissions in a manner consistent with this subpart and make a 
    determination in accordance with Sec.  655.50. If the CO grants the 
    waiver request, the CO will forward a Notice of Acceptance and the 
    approved job order to the SWA serving the area of intended employment 
    identified by the employer in the job order. If the CO determines that 
    the certification cannot be granted because, under paragraph (a) of 
    this section, the request for emergency filing is not justified and/or 
    there is not sufficient time to make a determination of temporary need 
    or ensure compliance with the criteria for certification contained in 
    Sec.  655.51, the CO will send a Final Determination letter to the 
    employer in accordance with Sec.  655.53. As discussed earlier, for 
    purposes of simultaneous filing, we use the term ``job order'' in this 
    provision, when the job order has yet to be created and posted by the 
    SWA. As a result, the employer must submit a draft document outlining 
    the details of the employer's job opportunity simultaneously with the 
    Application for Temporary Employment Certification, not the official 
    job order.
        Under the interim final rule, an H-2B Registration and/or 
    Application for Temporary Employment Certification processed under the 
    emergency situation provision is subject to the same recruitment 
    activities, audit processes, and enforcement mechanisms as a non-
    emergency H-2B Registration and/or Application for Temporary Employment 
    Certification. However, DOL intends to subject emergency applications 
    to a higher level of scrutiny than non-emergency applications in order 
    to make certain that the provision is not subject to abuse. The 
    regulation gives the CO the discretion not to accept the emergency 
    filing if the CO concludes there is insufficient time to thoroughly 
    test the U.S. labor market and make a final determination. Moreover, 
    under Sec.  655.46, the CO has the discretion to instruct an employer 
    to conduct additional recruitment. The CO will adjudicate the 
    foreseeability of the emergency based on the precise circumstances of 
    each situation presented. The burden of proof is on the
    
    [[Page 24062]]
    
    employer to demonstrate the unforeseeability leading to a request for a 
    filing on an emergency basis.
    4. Sec.  655.18 Job Order Assurances and Contents
        The job order is essential for U.S. workers to make informed 
    employment decisions. It must include not only standard information 
    about the job opportunity, but also several key assurances and 
    obligations to which the employer is committing by filing an 
    Application for Temporary Employment Certification for H-2B workers and 
    to which U.S. workers are also entitled. The job order must also be 
    provided to H-2B workers with its pertinent terms in a language the 
    worker understands, as required in Sec.  655.20(l) of this interim 
    final rule.
    Assurances
        There are two overarching assurances in Sec.  655.18(a) with which 
    the employer agrees to comply by filing an Application for Temporary 
    Employment Certification. These assurances, which pertain to the 
    prohibition against preferential treatment and bona fide job 
    requirements, need not be included in the job order verbatim; rather, 
    they are applicable to each job order insofar as they apply to each 
    listed term and condition of employment.
        a. Prohibition against preferential treatment, Sec.  655.18(a)(1). 
    Similar to the requirements under Sec.  655.22(a) of the 2008 rule, and 
    as described under Sec.  655.20(q) of this interim final rule, the 
    employer must provide to U.S. workers at least the same benefits, 
    wages, and working conditions that are being or will be offered or 
    provided to H-2B workers. The purpose of Sec.  655.18(a)(1) is to 
    protect U.S. workers by ensuring that employers do not understate wages 
    and/or benefits in an attempt to discourage U.S. applicants or to 
    provide preferential treatment to temporary foreign workers. Employers 
    are required to offer and provide H-2B workers at least the minimum 
    wages and benefits outlined in these regulations. So long as the 
    employer offers U.S. workers at least the same level of benefits, 
    wages, and working conditions as will be provided to the H-2B workers, 
    the employer will be in compliance with this provision. Section 
    655.18(a)(1) does not preclude an employer from offering a higher wage 
    rate or more generous benefits or working conditions to U.S. workers, 
    as long as the employer offers to U.S. workers all the wages, benefits, 
    and working conditions offered to and required for H-2B workers 
    pursuant to the certified Application for Temporary Employment 
    Certification.
        b. Bona fide job requirements, Sec.  655.18(a)(2). The job 
    qualifications and requirements listed in the job order must be bona 
    fide and consistent with the normal and accepted job qualifications and 
    requirements of employers that do not use H-2B workers for the same or 
    comparable occupations in the same area of intended employment.
        Under DOL's longstanding policy, job qualifications and 
    requirements must be customary; i.e., they may not be used to 
    discourage applicants from applying for the job opportunity. Including 
    requirements that do not meet this standard would undermine a true test 
    of the labor market. The standard for employment of H-2B workers is 
    that there are no U.S. workers capable and available to perform such 
    services or labor. For purposes of complying with this requirement, the 
    Departments have clarified in Sec.  655.20(e) the meaning of 
    qualifications and requirements. A qualification means a characteristic 
    that is necessary to the individual's ability to perform the job in 
    question. Such characteristics include but are not limited to, the 
    ability to use specific equipment or any education or experience 
    required for performing a certain job task. A requirement, on the other 
    hand, means a term or condition of employment which a worker is 
    required to accept to obtain or retain the job opportunity, e.g., the 
    willingness to complete the full period of employment or commute to and 
    from the worksite.
        This interpretation is consistent with program history, primarily 
    under the General Administration Letter 1-95,\16\ where the State 
    Employment Security Agencies (now SWAs) were specifically directed to 
    reject any restrictive job requirements. To the extent an employer has 
    requirements that are related to the U.S. workers' qualifications or 
    availability, DOL will examine those in consultation with the SWAs to 
    determine whether they are normal and accepted. For example, the 
    Departments recognize that background checks are used in private 
    industry and it is not our intent to preclude the employer from 
    conducting such checks to the extent that the requirement is a bona 
    fide, normal and accepted requirement applied by non-H-2B employers for 
    the occupation in the area of employment, and the employer applies the 
    same criteria to both H-2B and U.S. workers. However, where such job 
    requirements are included in the recruitment materials, DOL reserves 
    the right to inquire further as to whether such requirements are normal 
    and accepted by non-H-2B employers and by what methods the employer 
    will administer and evaluate such requirements.
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        \16\ General Administration Letter 1-95, Procedures for H-2B 
    Temporary Labor Certification in Nonagricultural Occupations (Dec. 
    31, 1995).
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    Contents
        In addition to complying with the assurances in paragraph (a) of 
    this section, Sec.  655.18(b) requires that the employer include at a 
    minimum the following contents in the job order.
        a. Benefits, wages and working conditions, Sec.  655.18(b)(2), (5), 
    (6), (9). Employers must list the following benefits, wages, and 
    working conditions in the job order: The rate of pay, frequency of pay, 
    the availability of overtime, and that the job opportunity concerns a 
    full-time position. These disclosures are critical to any applicant's 
    decision to apply for and accept the job opportunity.
        b. Board, lodging, or facilities, Sec.  655.18(b)(10). If an 
    employer provides the worker with the option of board, lodging, or 
    other facilities, including fringe benefits, or intends to assist 
    workers to secure such lodging, this must be listed in the job order 
    along with any wage deductions related to such provision of board, 
    lodging or other facilities. Assisting workers to secure lodging 
    consists of more than an employer's simple provision of information, 
    such as providing workers coming from remote locations with a list of 
    facilities providing short-term leases, or a list of extended-stay 
    motels. Assistance could be reserving a block of rooms for employees 
    and negotiating a discounted rate on the workers' behalf, or arranging 
    to have housing provided at a subsidized cost for employees. Any such 
    assistance may make it more feasible for a U.S. worker from outside the 
    area of intended employment to accept the job, and therefore it should 
    be included in the job order.
        The Departments note that the concept of ``facilities'' is defined 
    in 29 CFR 531.32, which has been construed and enforced by DOL for 
    several decades. The Departments have concluded that it is beneficial 
    for workers, employers, agents, and the WHD to ground enforcement of H-
    2B program obligations in DOL's decades of experience enforcing the 
    Fair Labor Standards Act (FLSA), and the decades of court decisions 
    interpreting the regulatory language we are adopting in these 
    regulations. Therefore, the Departments note throughout this preamble 
    where they rely on FLSA principles to explain the meaning of the 
    requirements of the H-2B program that use similar language.
    
    [[Page 24063]]
    
        DOL's longstanding position is that deductions or costs incurred 
    for facilities that are primarily for the benefit or convenience of the 
    employer will not be recognized as reasonable and therefore may not be 
    charged to the worker. See 29 CFR 531.3(d)(1). Thus, housing that is 
    provided by employers with a need for a mobile workforce, such as those 
    in the carnival or forestry industries where workers are in an area for 
    a short period of time, need to be available to work immediately, and 
    may not be able to procure temporary housing easily, is primarily for 
    the employer's benefit and convenience and cannot be charged to the 
    workers.
        c. Deductions, Sec.  655.18(b)(11). The job order must specify that 
    the employer will make all deductions from the worker's paycheck 
    required by law and specifically list all deductions not required by 
    law that the employer intends to make from the worker's paycheck. This 
    includes, if applicable, any wage deductions for the reasonable cost of 
    board, lodging, or other facilities. Any deductions not disclosed in 
    the job order are prohibited under Sec.  655.20(c) of this interim 
    final rule.
        Under the FLSA, there is no legal difference between deducting a 
    cost from a worker's wages and shifting a cost to an employee to bear 
    directly. As the U.S. Court of Appeals for the Eleventh Circuit stated 
    in Arriaga v. Florida Pacific Farms, L.L.C., 305 F.3d 1228, 1236 (11th 
    Cir. 2002):
    
        An employer may not deduct from employee wages the cost of 
    facilities which primarily benefit the employer if such deductions 
    drive wages below the minimum wage. See 29 CFR 531.36(b). This rule 
    cannot be avoided by simply requiring employees to make such 
    purchases on their own, either in advance of or during employment. 
    See id. Sec.  531.35; Ayres v. 127 Rest. Corp., 12 F.Supp.2d 305, 
    310 (S.D.N.Y. 1998).
    
    Consistent with the FLSA and the Departments' obligation to prevent 
    adverse effects on U.S. workers by protecting the integrity of the H-2B 
    offered wage, the offered wage will be considered the effective minimum 
    wage for H-2B and corresponding U.S. workers.
        d. Three-fourths guarantee, Sec.  655.18(b)(17). The employer must 
    list in the job order that the employer will guarantee to offer 
    employment for a total number of work hours equal to at least three-
    fourths of the workdays of each 12-week period (or 6-week period if the 
    employment covered by the job order is less than 120 days) and, if the 
    guarantee is not met, the employer will pay the worker what the worker 
    would have earned if the employer had offered the guaranteed number of 
    days, as required by Sec.  655.20(f) of this interim final rule.
        e. Transportation and visa fees, Sec.  655.18(b)(12)-(15). The 
    employer must detail in the job order how the worker will be provided 
    with or reimbursed for inbound transportation and subsistence costs if 
    the worker completes 50 percent of the period of employment covered by 
    the job order, consistent with Sec.  655.20(j)(1)(i) of this interim 
    final rule. The employer must also state that it will provide or pay 
    for the worker's outbound transportation and subsistence if the worker 
    completes the job order period or is dismissed early, consistent with 
    Sec.  655.20(j)(1)(ii) of this interim final rule. The employer must 
    also disclose that it will provide or reimburse inbound and outbound 
    transportation and daily subsistence costs for corresponding U.S. 
    workers who are not reasonably able to return to their residence within 
    the same workday. Finally, employers are required to disclose in the 
    job order that they will provide daily transportation to the worksite, 
    if they intend to do so, and that the employer will reimburse H-2B 
    workers for visa and related fees in the first workweek.
        f. Employer-provided items, Sec.  655.18(b)(16). The job order must 
    disclose that the employer will provide workers with all tools, 
    supplies, and equipment needed to perform the job at no cost to the 
    employee. This provision gives workers additional protection against 
    improper deductions from wages for items that primarily benefit the 
    employer, and assures workers that they will not be required to pay for 
    items necessary to perform the job.
        The Departments note that section 3(m) of the FLSA and DOL 
    regulations at 20 CFR part 531 prohibit deductions that are primarily 
    for the benefit of the employer that bring a worker's wage below the 
    applicable minimum wage, including deductions for tools, supplies, or 
    equipment that are incidental to carrying out the employer's business. 
    Consistent with the FLSA, Sec.  655.22(g)(1) in the 2008 rule (which 
    required all deductions to be reasonable), and the Departments' 
    obligation to prevent adverse effects on U.S. workers, this interim 
    final rule similarly protects the integrity of the H-2B offered wage by 
    treating it as the effective minimum wage. Therefore, deductions for 
    items such as damaged and lost equipment, which are encompassed within 
    deductions for equipment needed to perform a job, would not be 
    permissible where such deductions bring a worker's wage below the 
    offered wage.
        Employers must provide standard equipment that allows employees to 
    perform their job fully, but they are not required to provide, for 
    example, equipment such as custom-made skis that may be preferred, but 
    not needed by, ski instructors. This requirement does not prohibit 
    employees from electing to use their own equipment, nor does it 
    penalize employers whose employees voluntarily do so, so long as a bona 
    fide offer of adequate, appropriate equipment has been made.
        In addition to the provisions discussed above, this interim final 
    rule requires employers to list in the job order the following 
    information that is essential for providing U.S. workers sufficient 
    information about the job opportunity: The employer's name and contact 
    information (Sec.  655.18(b)(1)); a full description of the job 
    opportunity (Sec.  655.18(b)(3)); the specific geographic area of 
    intended employment (Sec.  655.18(b)(4)); if applicable, a statement 
    that on-the-job training will be provided to the worker (Sec.  
    655.18(b)(7)); a statement that the employer will use a single workweek 
    as its standard for computing wages due (Sec.  655.18(b)(8)); and 
    instructions for inquiring about the job opportunity or submitting 
    applications, indications of availability, and/or resumes to the 
    appropriate SWA (Sec.  655.18(b)(18)). This last requirement is 
    included to ensure that applicants who learn of the job opening through 
    the electronic job registry are provided with the opportunity to 
    contact the SWA for more information or referral.
        The Departments believe that the information employers are required 
    to include in the job order under Sec.  655.18 of this interim final 
    rule is necessary and sufficient to provide the worker with adequate 
    information to determine whether to accept the job opportunity, and 
    notes that the Department of State provides all H-2B nonimmigrants with 
    a detailed worker rights card at the visa application stage.\17\
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        \17\ The workers rights card is available at http://travel.state.gov/content/dam/visas/LegalRightsandProtections/WilberforcePamphletEnglishDoubleSidedPrinting12-22-2014.pdf.
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        Finally, the Departments view the terms and conditions of the job 
    order as binding. In the event that an employer does not provide a copy 
    of the job order to workers as required under Sec.  655.20(l) of this 
    interim final rule, the terms and conditions of the job order 
    nevertheless apply.
    5. Sec.  655.19 Job Contractor Filing Requirements
        This interim final rule establishes in Sec.  655.6 the limited 
    circumstances under which job contractors may continue to
    
    [[Page 24064]]
    
    participate in the H-2B program. DOL will no longer accept H-2B 
    temporary employment certification applications from job contractors if 
    the job contractor's employer-clients are not also included on the 
    temporary employment certification applications. However, both the 2008 
    rule and this interim final rule only permit one H-2B temporary 
    employment certification application to be filed for worksite(s) within 
    one area of intended employment for each job opportunity with an 
    employer. Accordingly, a job contractor and employer-client cannot 
    separately file an individual application for a single job opportunity.
        Job contractors and their employer-clients must file a single 
    application when acting as joint employers. Joint employment is defined 
    as circumstances in which two or more employers each have sufficient 
    definitional indicia of employment to be considered the employer of an 
    employee, in which case the employers may be considered to jointly 
    employ that employee. An employer may be considered a joint employer if 
    it has an employment relationship with an individual, even if the 
    individual may be considered the employee of another employer. See 
    Sec.  655.4. DOL has issued guidance on its Web site which addresses 
    the requirements and procedures for filing and processing applications 
    for joint employers (which could include job contractors and their 
    employer-client(s)) under the H-2B program.\18\
    ---------------------------------------------------------------------------
    
        \18\ See http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#h2b.
    ---------------------------------------------------------------------------
    
        In deciding whether to file as joint employers, the job contractor 
    and its employer-client should understand that employers are considered 
    to jointly employ an employee when they each, individually, have 
    sufficient definitional indicia of employment with respect to that 
    employee. As described in the definition of employee in Sec.  655.4, 
    some factors relevant to the determination of employment status 
    include, but are not limited to, the following: The right to control 
    the manner and means by which work is accomplished; the skill required 
    to perform the work; the source of the instrumentalities and tools for 
    accomplishing the work; the location of the work; discretion over when 
    and how long to work; and whether the work is part of the regular 
    business of the employer or employers. Whenever a job contractor and 
    its employer client file applications, each employer is responsible for 
    compliance with H-2B program assurances and obligations. In the event a 
    violation is determined to have occurred, either or both employers can 
    be found to be responsible for remedying the violation and attendant 
    penalties.
    
    D. Assurances and Obligations
    
    1. Sec.  655.20 Assurances and Obligations of H-2B Employers
        Section 655.20 of the interim final rule, which is similar to Sec.  
    655.22 of the 2008 rule, contains the employer obligations that WHD 
    will enforce to ensure that the employment of H-2B workers will not 
    adversely affect the wages and working conditions of U.S. workers 
    similarly employed. These assurances and obligations are consistent 
    with, and are intended to complement, DHS's regulations where they 
    address similar issues, such as transportation and recruitment fees. 
    Requiring compliance with the following conditions of employment is the 
    most effective way to meet this goal. As discussed in the preamble to 
    Sec.  655.5, workers engaged in corresponding employment are entitled 
    to the same protections and benefits, set forth below, that are 
    provided to H-2B workers.
        a. Rate of pay (Sec.  655.20(a)). Section 655.20(a)(1), like Sec.  
    655.22(e) in the 2008 rule, requires that employers pay the offered 
    wage during the entire certification period and that the offered wage 
    equal or exceed the highest of the prevailing wage, the applicable 
    Federal minimum wage, the State minimum wage, and any local minimum 
    wage. It also requires that such wages be paid free and clear. See 29 
    CFR 531.35. If, during the course of the period certified in the 
    Application for Temporary Employment Certification, the Federal, State 
    or local minimum wage increases to a level higher than the prevailing 
    wage certified in the Application, then the employer is obligated to 
    pay that higher rate for the work performed in that jurisdiction where 
    the higher minimum wage applies. Section 655.20(a)(2), similarly to 
    Sec.  655.22(g)(1) in the 2008 rule, provides that the wage may not be 
    based on commissions, bonuses, or other incentives unless the employer 
    guarantees the offered wage each workweek.
        With respect to productivity standards, Sec.  655.20(a)(3) requires 
    the employer to demonstrate that any productivity standards are normal 
    and usual for non-H-2B employers for the same occupation in the area of 
    intended employment. Unlike in the H-2A program, DOL does not conduct 
    prevailing practice surveys through the SWAs, which would provide such 
    information to enable a CO to make this decision. If an employer wishes 
    to provide productivity standards as a condition of job retention, the 
    burden of proof rests with that employer to show that such productivity 
    standards are normal and usual for employers not employing H-2B workers 
    in order to ensure there is no adverse effect on similarly employed 
    U.S. workers.
        Finally, pursuant to Sec.  655.20(a)(4), if an employer pays on a 
    piece-rate basis, it must demonstrate that the piece rate is no less 
    than the normal rate paid by non-H-2B employers to workers performing 
    the same activity in the area of intended employment, and that each 
    workweek the average hourly piece rate earnings result in an amount at 
    least equal to the offered wage (or the employer must make up the 
    difference).
        b. Wages free and clear (Sec.  655.20(b)). Section 655.20(b) 
    requires that wages be paid either in cash or negotiable instrument 
    payable at par, and that payment be made finally and unconditionally 
    and free and clear in accordance with WHD regulations at 29 CFR part 
    531. This assurance clarifies the pre-existing obligation for both 
    employers and employees to ensure that wages are not reduced below the 
    required rate.
        c. Deductions (Sec.  655.20(c)). Section 655.20(c) ensures payment 
    of the offered wage by limiting deductions which reduce wages to below 
    the required rate. The section limits authorized deductions to those 
    required by law, made under a court order, that are for the reasonable 
    cost or fair value of board, lodging, or facilities furnished that 
    primarily benefit the employee, or that are amounts paid to third 
    parties authorized by the employee or a collective bargaining 
    agreement. Similar to Sec.  655.22(g)(1) of the 2008 rule, this section 
    specifically provides that deductions not disclosed in the job order 
    are prohibited. The section also specifies deductions that would never 
    be permissible, including: Those for costs that are primarily for the 
    benefit of the employer; those not specified on the job order; 
    kickbacks paid to the employer or an employer representative; and 
    amounts paid to third parties which are unauthorized, unlawful, or from 
    which the employer or its foreign labor contractor, recruiter, agent, 
    or affiliated person benefits to the extent that such deductions reduce 
    the actual wage to below the required wage.
        This section refers to the FLSA and 29 CFR part 531 for further 
    guidance. Consistent with these and other authorities administered by 
    DOL, for purposes of Sec.  655.20(c) deductions must, among other 
    requirements, be truly voluntary, and may not be a
    
    [[Page 24065]]
    
    condition of employment under the totality of the circumstances in 
    order to be permissible.\19\ In evaluating whether an employee 
    voluntarily authorized an otherwise permissible deduction for purposes 
    of Sec.  655.20(c), it is important to evaluate whether the employee 
    had a meaningful choice in light of all the facts presented.
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        \19\ The scope and substance of DOL regulations in this interim 
    final rule relating to permissible deductions, prohibited payment of 
    fees by workers, and employer transportation obligations, see, e.g., 
    new 20 CFR 655.20(c), (j), and (o) (and identical provisions in new 
    29 CFR part 503) reflect DOL statutory and regulatory authorities 
    relating to worker protections, including under the FLSA; DOL H-2B 
    enforcement responsibilities, including pursuant to the DHS 
    delegation to DOL under 8 U.S.C. 1184(c)(14)(B), see also 8 CFR 
    214.2(h)(6)(ix); and DOL investigative capabilities. Similarly, the 
    scope and substance of DHS's separate and independent regulations 
    concerning prohibited fees and other compensation and transportation 
    obligations, see 8 CFR 214.2(h)(6)(i) and (vi)(E), reflect USCIS 
    operational realities inherent to the H-2B petition adjudication 
    process.
    ---------------------------------------------------------------------------
    
        Moreover, for purposes of Sec.  655.20(c), a deduction for any cost 
    that is primarily for the benefit of the employer is never reasonable 
    and therefore never permitted under this interim final rule. Some 
    examples of costs that DOL has long held to be primarily for the 
    benefit of the employer are: Tools of the trade and other materials and 
    services incidental to carrying on the employer's business; the cost of 
    any construction by and for the employer; the cost of uniforms (whether 
    purchased or rented) and of their laundering, where the nature of the 
    business requires the employee to wear a uniform; and transportation 
    charges where such transportation is an incident of and necessary to 
    the employment. This list is not an all-inclusive list of employer 
    business expenses. Further, the concept of de facto deductions 
    initially developed under the FLSA, where employees are required to 
    purchase items like uniforms or tools that are employer business 
    expenses, is equally applicable to purchases that bring H-2B workers' 
    wages below the required wage, as the payment of the prevailing wage is 
    necessary to ensure that the employment of foreign workers does not 
    adversely affect the wages and working conditions of similarly employed 
    U.S. workers. To allow deductions for business expenses, such as tools 
    of the trade, would undercut the prevailing wage concept and, as a 
    result, harm U.S. workers.
        d. Job opportunity is full-time (Sec.  655.20(d)). Section 
    655.20(d) requires that all job opportunities be full-time temporary 
    positions, consistent with language in Sec.  655.22(h) of the vacated 
    2008 rule, and that employers use a single workweek as the standard for 
    computing wages due. Additionally, consistent with the FLSA, this 
    section provides that the workweek is a fixed and regularly recurring 
    period of 168 hours or seven consecutive 24-hour periods which may 
    start on any day or hour of the day. This establishment of a clear 
    period for determining whether the employer has paid the required wage 
    will aid in enforcement.
        e. Job qualifications and requirements (Sec.  655.20(e)). Section 
    655.20(e), which clarifies Sec.  655.22(h) of the 2008 rule, states 
    that each job qualification and requirement listed in the job order 
    must be consistent with normal and accepted qualifications required by 
    non-H-2B employers for the same occupation in the area of intended 
    employment. Further, the employer's job qualifications and requirements 
    imposed on U.S. workers must be no less favorable than the 
    qualifications and requirements that the employer is imposing or will 
    impose on H-2B workers. A qualification means a characteristic that is 
    necessary to the individual's ability to perform the job in question. 
    In contrast, a requirement means a term or condition of employment 
    which a worker is required to accept in order to obtain the job 
    opportunity. Finally, the CO has the authority to require the employer 
    to substantiate any job qualifications or requirements specified in the 
    job order.
        This provision enables DOL to continue to review the job 
    qualifications and special requirements by looking at what non-H-2B 
    employers determine is normal and accepted to be required to perform 
    the duties of the job opportunity. The purpose of this review is to 
    avoid the consideration (and the subsequent imposition) of requirements 
    on the performance of the job duties that would serve to limit U.S. 
    worker access to the opportunity. OFLC has significant experience in 
    conducting this review and in making determinations based on a wide 
    range of sources assessing what is normal for a particular job, and 
    employers will continue to be held to an objective standard beyond 
    their mere assertion that a requirement is necessary. DOL will continue 
    to look at a wide range of available objective sources of such 
    information, including but not limited to O*NET and other job 
    classification materials and the experience of local treatment of 
    requirements at the SWA level. Ultimately, however, it is incumbent 
    upon the employer to provide sufficient justification for any 
    requirement outside the standards for the particular job opportunity.
        f. Three-fourths guarantee (Sec.  655.20(f)). Section 655.20(f) 
    requires employers to guarantee to offer employment for a total number 
    of work hours equal to at least three-fourths of the workdays of each 
    12-week period if the period of employment covered by the job order is 
    120 days or more and each 6-week period, if the period of employment 
    covered by the job order is less than 120 days. If the guarantee is not 
    met, the employer is required to pay the worker what the worker would 
    have earned if the employer had offered the guaranteed number of days. 
    These 12-week periods (6 weeks if the job order is less than 120 days) 
    begin the first workday after the worker's arrival at the place of 
    employment or the advertised contractual first date of need, whichever 
    is later, and end on the expiration date specified in the job order or 
    in any extensions. A workday is based on the workday hours stated in 
    the employer's job order, and the 12-week periods (6 weeks if the job 
    order is less than 120 days) are based on the employer's workweek for 
    pay purposes, with partial week increases for the initial period and 
    decreases for the last period on a pro rata basis, depending on which 
    day of the workweek the worker starts or ceases work.
        If a worker fails or refuses to work hours offered by the employer, 
    the employer may count any hours offered consistent with the job order 
    that a worker freely and without coercion chooses not to work, up to 
    the maximum number of daily hours on the job order, in the calculation 
    of guaranteed hours. The employer may offer the worker more than the 
    specified daily work hours, but the employer may not require the 
    employee to work such hours or count them as offered if the employee 
    chooses not to work the extra hours. However, the employer may include 
    all hours actually worked when determining whether the guarantee has 
    been met. Finally, as detailed in 20 CFR 655.20(g), the CO can 
    terminate the employer's obligations under the guarantee in the event 
    of fire, weather, or other Act of God that makes the fulfillment of the 
    job order impossible, or for a similar man-made catastrophic event such 
    as an oil spill or controlled flooding.
        The Departments believe that the interim final rule's approach 
    provides the benefits of having a wage guarantee, while offering 
    employers the flexibility to spread the required hours over a 
    sufficiently long period of time such that the vagaries of the weather 
    or other events out of their control that affect their need for labor 
    do not prevent employers from fulfilling their
    
    [[Page 24066]]
    
    guarantee. When employers file applications for H-2B labor 
    certifications, they represent that they have a need for full-time 
    workers during the entire certification period. Therefore, it is 
    important to the integrity of the program, which is a capped visa 
    program, to have a methodology for ensuring that employers have fairly 
    and accurately estimated their temporary need. The guarantee deters 
    employers from misusing the program by overstating their need for full-
    time, temporary workers, such as by carelessly calculating the starting 
    and ending dates of their temporary need, the hours of work needed per 
    week, or the total number of workers required to do the work available. 
    To the extent that employers more accurately describe the amount of 
    work available and the periods during which work is available, it gives 
    both U.S. and foreign workers a better chance to realistically evaluate 
    the desirability of the offered job. U.S. workers will not be induced 
    to abandon employment, to seek full-time work elsewhere at the 
    beginning of the season or near the end of the season because the 
    employer overstated the number of employees it actually needed to ramp 
    up or to wind down operations. Nor will U.S. workers be induced to 
    leave employment at the beginning of the season or near the end of the 
    season due to limited hours of work because the employer misstated the 
    months during which it reasonably could expect to perform the 
    particular type of work involved in that geographic area. Likewise, H-
    2B workers will not be induced to try to seek employment not permitted 
    under the terms of their H-2B nonimmigrant status. Not only will the 
    guarantee result in U.S. and H-2B workers actually working most of the 
    hours promised in the job order, but it also will make the capped H-2B 
    visas more available to other employers whose businesses need to use H-
    2B workers. Therefore, the Departments believe the guarantee is an 
    important element to ensure the integrity of the temporary labor 
    certification process, to ensure that the availability of U.S. workers 
    for full-time employment is appropriately tested, to ensure that there 
    is no adverse effect on U.S. workers from the presence of H-2B workers 
    who seek work not permitted under the terms of their H-2B nonimmigrant 
    status because the job that was promised does not exist, and to ensure 
    that H-2B visas are available to employers who truly have a need for 
    temporary labor for the dates and for the numbers of employees stated.
        DOL's recent experience in enforcing the H-2B regulations 
    demonstrates that its concerns about employers overstating their need 
    for workers are not unfounded. DOL's investigations have revealed that 
    some employers have stated on their H-2B temporary employment 
    certification applications that they would provide 40 hours of work per 
    week when, in fact, their workers averaged far fewer hours of work, 
    especially at the beginning and/or end of the season. Indeed, in some 
    weeks the workers have not worked at all. In addition, there has been 
    testimony before Congress involving similar cases in which employers 
    have overstated the period of need and/or the number of hours for which 
    the workers are needed. For example, H-2B workers testified at a 
    hearing before the Domestic Policy Subcommittee, House Committee on 
    Oversight and Government Reform, on April 23, 2009, that there were 
    several weeks in which they were offered no work; others testified that 
    their actual weekly hours--and hence their weekly earnings--were less 
    than half of the amount they had been promised in the job order. Daniel 
    Angel Castellanos Contreras, a Peruvian engineer, was promised 60 hours 
    per week at $10-$15 per hour. According to Mr. Contreras, ``[t]he 
    guarantee of 60 hours per week became an average of only 20 to 30 hours 
    per week--sometimes less. With so little work at such low pay [$6.02 to 
    $7.79 per hour] it was impossible to even cover our expenses in New 
    Orleans, let alone pay off the debt we incurred to come to work and 
    save money to send home.'' \20\ Miguel Angel Jovel Lopez, a plumber and 
    farmer from El Salvador, was recruited to do demolition work in 
    Louisiana with a guaranteed minimum of 40 hours of work per week. Mr. 
    Lopez testified, ``[i]nstead of starting work, however, I was dropped 
    off at an apartment and left for two weeks. Then I was told to attend a 
    two week training course. I waited three more weeks before working for 
    one day on a private home and then sitting for three more weeks.'' \21\ 
    Testimony at the same hearing by three attorneys who represent H-2B 
    workers stated that these witnesses' experiences were not aberrations 
    but were typical. Hearing on the H-2B Guestworker Program and Improving 
    the Department of Labor's Enforcement of the Rights of Guestworkers, 
    111th Cong. (Apr. 23, 2009).
    ---------------------------------------------------------------------------
    
        \20\ Testimony of Daniel Angel Castellanos Contreras before the 
    House Committee on Oversight and Government Reform Domestic Policy 
    Subcommittee 2 (Apr. 23, 2009), available at http://oversight.house.gov/wp-content/uploads/2012/01/20090423Contreras.pdf.
        \21\ Testimony of Miguel Angel Jovel Lopez before the House 
    Committee on Oversight and Government Reform Domestic Policy 
    Subcommittee 2 (Apr. 23, 2009), available at http://oversight.house.gov/wp-content/uploads/2012/01/20090423Lopez.pdf.
    ---------------------------------------------------------------------------
    
        Therefore, spreading the three-fourths guarantee over the entire 
    period covered by the job order would not adequately protect the 
    integrity of the program because it would not measure whether an 
    employer has appropriately estimated its need for temporary workers. It 
    would not prevent an employer from overstating the beginning date of 
    need and/or the ending date of need and then making up for the lack of 
    work in those two periods by offering employees 100 percent of the 
    advertised hours in the middle of the certification period. Indeed the 
    employer could offer employees more than 100 percent of the advertised 
    hours in the peak season and, although they would not be required to 
    work the excess hours, most employees could reasonably be expected to 
    do so in an effort to maximize their earnings.
        However, in order to meet the legitimate needs of employers for 
    adequate flexibility to respond to changes in climatic conditions (such 
    as too much or too little snow or rain, or temperatures too high or too 
    low) as well as the impact of other events beyond the employer's 
    control (such as a major customer who cancels a large contract), the 
    Departments are establishing the increment of time for measuring the 
    guarantee at 12 weeks (if the period of employment covered by the job 
    order is at least 120 days) and 6 weeks (if the employment is less than 
    120 days). The Departments believe this provides sufficient flexibility 
    to employers, while continuing to deter employers from requesting 
    workers for 9 months, for example, when they really only have a need 
    for their services for 7 months. If an employer needs fewer workers 
    during the shoulder months (at the beginning and end of the season) 
    than during the peak months, it should not attest to an inaccurate 
    statement of need by requesting the full number of workers for all the 
    months. Rather, the proper approach it should follow is to submit two 
    applications with separate dates of need, so that it engages in the 
    required recruitment of U.S. workers at the appropriate time when it 
    actually needs the workers.
        The Departments remind employers that they may count toward the 
    guarantee hours that are offered but that the employee fails to work, 
    up to the maximum number of hours specified in the job order for a 
    workday; thus, they do not have to pay an employee who voluntarily 
    chooses not to work. Similarly, they may count all hours the
    
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    employee actually works, even if they are in excess of the daily hours 
    specified in the job order.
        Finally, the Departments do not believe it would be appropriate to 
    impose a more protective guarantee, such as a 100 percent, 90 percent, 
    or weekly guarantee. The three-fourths guarantee is a reasonable 
    deterrent to potential carelessness and an important protection for 
    workers, while still providing employers with some flexibility relating 
    to the required hours, given that many common H-2B occupations involve 
    work that can be significantly affected by weather conditions. 
    Moreover, it is not just outdoor jobs such as landscaping that are 
    affected by weather. For example, indoor jobs such as housekeeping and 
    waiting on tables can be affected when a hurricane, flood, unseasonably 
    cool temperatures, or the lack of snow deters customers from traveling 
    to a resort location. The impact on business of such weather effects 
    may last for several weeks, although they are likely to be able to make 
    up for them in other weeks of the season. Moreover, the Departments 
    understand that it is difficult to predict with precision months in 
    advance exactly how many hours of work will be available, especially as 
    the period of time involved is shortened.
        g. Impossibility of fulfillment (Sec.  655.20(g)). Section 
    655.20(g) allows employers to terminate a job order in certain 
    narrowly-prescribed circumstances when approved by the CO, such as due 
    to fire, weather, other Acts of God, or a similar unforeseeable human-
    made catastrophic event (such as an oil spill or controlled flooding) 
    that is wholly outside the employer's control, that makes the 
    fulfillment of the job order impossible. In such an event, the employer 
    is required to meet the three-fourths guarantee discussed in paragraph 
    (f) of this section based on the starting date listed in the job order 
    or first workday after the arrival of the worker, whichever is later, 
    and ending on the date on which the job order is terminated due to the 
    event. The employer also is required to attempt to transfer the H-2B 
    worker (to the extent permitted by DHS) or worker in corresponding 
    employment to another comparable job. Actions employers could take 
    include reviewing the electronic job registry to locate other H-2B-
    certified employers in the area and contacting any known H-2B 
    employers, the SWA, or ETA for assistance in placing workers. Absent 
    such placement, the employer will be required to comply with the 
    transportation requirements in paragraph (j) of this section. We remind 
    employers that CO approval is required to terminate the job order; 
    simply submitting a request to the CO is insufficient to terminate the 
    three-fourths guarantee.
        h. Frequency of pay (Sec.  655.20(h)). Section 655.20(h) requires 
    that the employer indicate the frequency of pay in the job order and 
    that workers be paid at least every two weeks or according to the 
    prevailing practice in the area of intended employment, whichever is 
    more frequent. Further, it requires that wages be paid when due.
        The requirement that workers be paid at least every 2 weeks is 
    designed to protect financially vulnerable workers. Allowing an 
    employer to pay less frequently than every two weeks would impose an 
    undue burden on workers who are often paid low wages and may lack the 
    means to make their income stretch through a month until they get paid.
        i. Earnings statements (Sec.  655.20(i)). Section 655.20(i) 
    requires the employer to maintain accurate records of worker earnings 
    and provide the worker an appropriate earnings statement on or before 
    each payday, specifying the information that the employer must include 
    in such a statement (including, e.g., the worker's total earnings each 
    workweek, the hourly rate and/or piece rate, the hours offered and 
    worked, and an itemization of all deductions from pay).
        The Departments believe that any administrative burden resulting 
    from this provision will be outweighed by the importance of providing 
    workers with this crucial information, especially because an earnings 
    statement provides workers with an opportunity to quickly identify and 
    resolve any anomalies with the employer and hold employers accountable 
    for proper payment. Similar to Sec.  655.122(j)(3) in the H-2A program, 
    the interim final rule requires an employer to record the reasons why a 
    worker declined any offered hours of work, which will support DOL's 
    enforcement activities related to the three-fourths guarantee in Sec.  
    655.20(f). Additionally, this section, Sec.  655.16(i)(2)(iv), and 29 
    CFR 503.16(i)(l) require employers to maintain records of any additions 
    made to a worker's wages and to include such information in the 
    earnings statements furnished to the worker. Such additions could 
    include performance bonuses, cash advances, or reimbursements for costs 
    incurred by the worker. This requirement is consistent with the 
    recordkeeping requirements under the FLSA in 29 CFR part 516. See 29 
    CFR part 785 for guidance regarding what constitutes hours worked.
        j. Transportation and visa fees (Sec.  655.20(j)). Section 
    655.20(j)(1)(i) requires an employer to provide inbound transportation 
    and subsistence to H-2B employees and to U.S. employees who have 
    traveled to take the position from such a distance that they are not 
    reasonably able to return to their residence each day, if the workers 
    complete 50 percent of the period of employment covered by the job 
    order (not counting any extensions). The interim final rule provides 
    that employers may: Arrange and pay for the transportation and 
    subsistence directly; advance, at a minimum, the most economical and 
    reasonable common carrier cost and subsistence; or reimburse the 
    worker's reasonable costs. If the employer advances or provides 
    transportation and subsistence costs to foreign workers, or it is the 
    prevailing practice of non-H-2B employers to do so, the employer must 
    advance such costs or provide the services to workers in corresponding 
    employment traveling to the worksite. The interim final rule also 
    reminds employers that the FLSA imposes independent wage payment 
    obligations, where it applies.
        Section 655.20(j)(1)(ii) requires the employer, at the end of the 
    employment, to provide or pay for the U.S. or foreign worker's return 
    transportation and daily subsistence from the place of employment to 
    the place from which the worker departed to work for the employer, if 
    the worker has no immediate subsequent approved H-2B employment; 
    however, the obligation attaches only if the worker completes the 
    period of employment covered by the job order or if the worker is 
    dismissed from employment for any reason before the end of the period. 
    The employer is required to provide or pay for the return 
    transportation and daily subsistence of a worker who has completed the 
    period of employment listed on the certified Application for Temporary 
    Employment Certification, regardless of any subsequent extensions. An 
    employer is not required to provide return transportation if separation 
    is due to a worker's voluntary abandonment. If the worker has been 
    contracted to work for a subsequent and certified employer, the last H-
    2B employer to employ the worker is required to provide or pay the U.S. 
    or foreign worker's return transportation. Therefore, prior employers 
    are not obligated to pay for such return transportation costs.
        Section 655.20(j)(1)(iii) requires that all employer-provided 
    transportation--including transportation to and from the worksite, if 
    provided--must meet
    
    [[Page 24068]]
    
    applicable safety, licensure, and insurance standards. Furthermore, all 
    transportation and subsistence costs covered by the employer must be 
    disclosed in the job order (Sec.  655.20(j)(1)(iv)). Finally, Sec.  
    655.20(j)(2) requires employers to pay or reimburse the worker in the 
    first workweek for the H-2B worker's visa, visa processing, border 
    crossing, and other related fees including those fees mandated by the 
    government (the employer need not, but may, reimburse workers for 
    expenses that are primarily for the benefit of the employee, such as 
    passport expenses).
        Under the FLSA the transportation, subsistence, and visa and 
    related expenses for H-2B workers are for the primary benefit of 
    employers, as DOL explained in Wage and Hour's Field Assistance 
    Bulletin No. 2009-2 (Aug. 21, 2009). The employer benefits because it 
    obtains foreign workers where the employer has demonstrated that there 
    are not sufficient qualified U.S. workers available to perform the 
    work; the employer has demonstrated that unavailability by engaging in 
    prescribed recruiting activities that do not yield sufficient U.S. 
    workers. The H-2B workers, on the other hand, only receive the right to 
    work for a particular employer, in a particular location, and for a 
    temporary period of time; if they leave that specific job, they 
    generally must leave the country. Transporting these H-2B workers from 
    remote locations to the workplace thus primarily benefits the employer 
    who has sought authority to fill its workforce needs by bringing in 
    workers from foreign countries. Similarly, because an H-2B worker's 
    visa (including all the related expenses, which vary by country, 
    including the visa processing interview fee and border crossing fee) is 
    an incident of and necessary to employment under the program, the 
    employer is the primary beneficiary of such expenses. The visa does not 
    allow the employee to find work in the U.S. generally, but rather 
    permits the visa holder to apply for admission in H-2B nonimmigrant 
    status, which restricts the worker to the employer with an approved 
    temporary labor certification and to the particular approved work 
    described in the employer's application.
        Therefore, the interim final rule includes a reminder to employers 
    that the FLSA applies independently of the H-2B requirements. Employers 
    covered by the FLSA must pay such expenses to nonexempt employees in 
    the first workweek, to the level necessary to meet the FLSA minimum 
    wage (outside the Fifth Circuit, which covers Louisiana, Mississippi, 
    and Texas). See, e.g., Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892 
    (9th Cir. 2013); Arriaga v. Florida Pacific Farms, LLC, 305 F.3d 1228 
    (11th Cir. 2002); Morante-Navarro v. T&Y Pine Straw, Inc., 350 F.3d 
    1163 (11th Cir. 2003); Gaxiola v. Williams Seafood of Arapahoe, Inc., 
    2011 WL 806792 (E.D.N.C. 2011); Teoba v. Trugreen Landcare LLC, 2011 WL 
    573572 (W.D.N.Y. 2011); DeLeon-Granados v. Eller & Sons Trees, Inc., 
    581 F. Supp. 2d 1295 (N.D. Ga. 2008); Rosales v. Hispanic Employee 
    Leasing Program, 2008 WL 363479 (W.D. Mich. 2008); Rivera v. Brickman 
    Group, 2008 WL 81570 (E.D. Pa. 2008). But see Castellanos-Contreras v. 
    Decatur Hotels, LLC, 622 F.3d 393 (5th Cir. 2010). Payment sufficient 
    to satisfy the FLSA in the first workweek is also required because 
    Sec.  655.20(z) of the interim final rule, like Sec.  655.22(d) in the 
    2008 H-2B rule, specifically requires employers to comply with all 
    applicable Federal, State, and local employment-related laws. 
    Furthermore, because U.S. workers are entitled to receive at least the 
    same terms and conditions of employment as H-2B workers, in order to 
    prevent adverse effects on U.S. workers from the presence of foreign 
    workers, the interim final rule requires the same reimbursement for 
    U.S. workers in corresponding employment who are unable to return to 
    their residence each workday, such as those from another state who saw 
    the position advertised in a SWA posting or on DOL's electronic job 
    registry.
        The interim final rule separately requires employers to reimburse 
    these inbound transportation and subsistence expenses, up to the 
    offered wage rate, if the employee completes 50 percent of the period 
    of employment covered by the job order. The Departments believe this 
    approach is appropriate and adequately protects the interests of both 
    U.S. and H-2B workers and employers, because it does not require 
    employers to pay the inbound transportation and subsistence costs of 
    U.S. workers recruited pursuant to H-2B job orders who do not remain on 
    the job for more than a very brief period.
        Additionally, the interim final rule requires reimbursement of 
    outbound transportation and subsistence if the worker completes the job 
    order period or if the employer dismisses the worker before the end of 
    the period of employment in the job order, even if the employee has 
    completed less than 50 percent of the period of employment covered by 
    the job order. This requirement uses language contained in the DHS 
    regulation at 8 CFR 214.2(h)(6)(vi)(E), which states that employers 
    will be liable for reasonable return transportation costs if the 
    employer dismisses the worker for any reason before the end of the 
    period of authorized admission. See 8 U.S.C. 1184(c)(5)(A), INA section 
    214(c)(5)(A). For example, if there is a constructive discharge, such 
    as the employer's failure to offer any work or sexual harassment that 
    created an untenable working situation, the requirement to pay outbound 
    transportation applies. However, if separation from employment is due 
    to voluntary abandonment by an H-2B worker or a corresponding worker, 
    and the employer provides appropriate notification specified under 
    Sec.  655.20(y), the employer is not responsible for providing or 
    paying for return transportation and subsistence expenses of that 
    worker.
        This requirement to pay inbound transportation at the 50 percent 
    point and outbound transportation at the completion of the work period 
    is consistent with the rule under the H-2A visa program. Moreover, the 
    interim final rule fulfills the Departments' obligation to protect U.S. 
    workers from adverse effect due to the presence of temporary foreign 
    workers. As discussed above, under the FLSA, numerous courts have held 
    in the context of both H-2B and H-2A workers that the inbound and 
    outbound transportation costs associated with using such workers are an 
    inevitable and inescapable consequence of employers choosing to 
    participate in these visa programs. Moreover, the courts have held that 
    such transportation expenses are not ordinary living expenses, because 
    they have no substantial value to the employee independent of the job 
    and do not ordinarily arise in an employment relationship, unlike 
    normal daily home-to-work commuting costs. Therefore, the courts view 
    employers as the primary beneficiaries of such expenses under the FLSA; 
    in essence the courts have held that inbound and outbound 
    transportation are employer business expenses just like any other tool 
    of the trade. A similar analysis applies to the H-2B required wage. If 
    employers were permitted to shift their business expenses onto H-2B 
    workers, they would effectively be making a de facto deduction and 
    bringing the worker below the H-2B required wage, thereby risking 
    depression of the wages of U.S. workers in corresponding employment. 
    This regulatory requirement, therefore, ensures the integrity of the 
    full H-2B required wage, rather than just the FLSA minimum wage, over 
    the full term of employment; both H-2B workers and U.S. workers in 
    corresponding
    
    [[Page 24069]]
    
    employment will receive the H-2B required wage they were promised, as 
    well as reimbursement for the reasonable transportation and subsistence 
    expenses that primarily benefit the employer, over the full period of 
    employment. To enhance this protection, the interim final rule contains 
    the additional requirement that, where a worker pays out of pocket for 
    inbound transportation and subsistence, the employer must maintain 
    records of the cost of transportation and subsistence incurred by the 
    worker, the amount reimbursed, and the date(s) of reimbursement.
        Finally, to comply with this section, transportation must be 
    reimbursed from the place from which the worker has come to work for 
    the employer to the place of employment; therefore, the employer must 
    pay for transportation from the place of recruitment to the consular 
    city and then on to the worksite. Similarly, the employer must pay for 
    subsistence during that period, so if an overnight stay at a hotel in 
    the consular city is required while the employee is interviewing for 
    and obtaining a visa, that subsistence must be reimbursed. See Morales-
    Arcadio v. Shannon Produce Farms, Inc., 2007 WL 2106188 (S.D. Ga. 
    2007). Finally, if an employer provides daily transportation to the 
    worksite, the regulation requires both that the transportation must 
    comply with all applicable safety laws and that the employer must 
    disclose the fact that free transportation will be provided in the job 
    order.
        k. Employer-provided items (Sec.  655.20(k)). Section 655.20(k) 
    requires, consistent with the requirement under the FLSA regulations at 
    29 CFR part 531, that the employer provide to the worker without charge 
    all tools, supplies, and equipment necessary to perform the assigned 
    duties. The employer may not shift to the employee the burden to pay 
    for damage to, loss of, or normal wear and tear of, such items. This 
    provision gives workers additional protections against improper 
    deductions for the employer's business expenses from required wages.
        As discussed above with respect to the disclosure requirement in 
    Sec.  655.18(b), section 3(m) of the FLSA prohibits employers from 
    making deductions for items that are primarily for the benefit of the 
    employer if such deductions reduce the employee's wage below the 
    Federal minimum wage. Therefore an employer that does not provide tools 
    but requires its employees to bring their own would already be required 
    under the FLSA to reimburse its employees for the difference between 
    the weekly wage minus the cost of equipment and the weekly minimum 
    wage. This provision simply extends this protection to cover the 
    required H-2B offered wage, in order to protect the integrity of the 
    required H-2B wage rate and thereby avoid adverse effects on the wages 
    of U.S. workers. However, as discussed above with regard to Sec.  
    655.18(b), this requirement does not prohibit employees from 
    voluntarily choosing to use their own specialized equipment; it simply 
    requires employers to make available to employees adequate and 
    appropriate equipment.
        l. Disclosure of the job order (Sec.  655.20(l)). Section 655.20(l) 
    requires that the employer provide a copy of the job order to 
    prospective H-2B workers no later than the time of application for a 
    visa and to workers in corresponding employment no later than the first 
    day of work. For H-2B workers changing to a subsequent H-2B employer, 
    the job order must be provided no later than the time the subsequent 
    offer of employment is made. The job order must contain information 
    about the terms and conditions of employment and employer obligations 
    as provided in Sec.  655.18 and must be in a language understandable to 
    the workers, as necessary and reasonable. The purpose of the disclosure 
    is to provide workers with the terms and conditions of employment and 
    of employer obligations to strengthen worker protection and promote 
    program compliance.
        This section does not require written disclosure of the job order 
    at the time of recruitment, as required under the Migrant and Seasonal 
    Agricultural Worker Protection Act (MSPA). DOL notes that H-2B 
    employers that are subject to MSPA are bound by the requirements of 
    that Act, including disclosure of the appropriate job order at the time 
    of recruitment. The H-2B and MSPA programs are not analogous, however. 
    MSPA workers are often recruited domestically shortly before the start 
    date of the job order, making the provision of the job order at the 
    time of recruitment both logical and practical. In the H-2B program, as 
    in the H-2A program, recruitment is often less directly related to the 
    work start date, making immediate disclosure of the job order less 
    necessary. It thus is more practical to require disclosure of the job 
    order at the time the worker applies for a visa, to be sure that 
    workers fully understand the terms and conditions of their job offer 
    before they make a commitment to come to the United States. To clarify, 
    the time at which the worker applies for the visa means before the 
    worker has made any payment, whether to a recruiter or directly to the 
    consulate, to initiate the visa application process. Worker 
    notification is a vital component of worker protection and program 
    compliance, and the Departments believe that the requirement provides 
    workers with sufficient notice of the terms and conditions of the job 
    so that they can make an informed decision.
        In addition, providing the terms and conditions of employment to 
    each worker in a language that the individual understands is a key 
    element of much-needed worker protection. Therefore, DOL intends to 
    broadly interpret the necessary or reasonable qualification and apply 
    the exemption only in those situations where having the job order 
    translated into a particular language would both place an undue burden 
    on an employer and not significantly disadvantage an H-2B or 
    corresponding worker.
        m. Notice of worker rights (Sec.  655.20(m)). Section 655.20(m) 
    requires that the employer post a notice in English of worker rights 
    and protections in a conspicuous location and if necessary post the 
    notice in other appropriate languages if such translations are provided 
    by DOL.
        The poster, which will be printed and provided by DOL, will state 
    that workers who believe their rights under the program have been 
    violated may file confidential complaints and will display the number 
    for WHD's toll-free help line. While the purpose of this section would 
    be undermined if workers cannot read the notice, DOL cannot guarantee 
    that it will have available translations of the notice in any given 
    language, and cannot require employers to display a translation that 
    may not exist. Translations will be made in response to demand; 
    employers and organizations that work with H-2B workers are encouraged 
    to inform DOL about the language needs of the H-2B worker population. 
    If revised versions of the poster are created, DOL expects employers to 
    post the most recent version published by DOL.
        n. No unfair treatment (Sec.  655.20(n)). Section 655.20(n) 
    provides nondiscrimination and nonretaliation protections that are 
    fundamental to the statutes that DOL enforces. Worker rights cannot be 
    secured unless there is protection from all forms of intimidation or 
    discrimination resulting from any person's attempt to report or correct 
    perceived violations of the H-2B provisions. Therefore, workers are 
    protected from retaliation, including retaliation based on contact or 
    consultation with an attorney or an employee of a legal assistance 
    organization, or contact with labor
    
    [[Page 24070]]
    
    unions, worker centers, and community organizations, which frequently 
    have the first contact with temporary foreign workers when they seek 
    help to correct and/or report perceived violations of the H-2B 
    provisions. This provision applies to oral complaints and complaints 
    made internally to employers, and it applies to current, former and 
    prospective workers. As provided in 29 CFR 503.20, make-whole relief 
    would be available to victims of discrimination and retaliation under 
    this paragraph.
        This provision protects against discrimination and retaliation for 
    asserting rights specific to the H-2B program. For example, if workers 
    sought legal assistance in relation to their terms and conditions of 
    employment, such as legal assistance relating to employer-provided 
    housing because an employer charged for housing that was listed as free 
    of charge in the job order, this would be a protected act; however, a 
    routine landlord-tenant dispute may not fall under the protections of 
    this section. This section provides protection to U.S. workers and H-2B 
    workers alike. While H-2B workers are particularly vulnerable to 
    retaliation and need protection against employer retaliatory acts, it 
    is important to encourage all workers to come forward when there is a 
    potential workplace violation. Therefore, the Departments clarify that 
    Sec.  655.20(n) applies equally to H-2B workers and U.S. workers.
        o. Comply with the prohibitions against employees paying fees 
    (Sec.  655.20(o)). Section 655.20(o), similarly to Sec.  655.22(j) in 
    the 2008 rule, prohibits employers and their attorneys, agents, or 
    employees from seeking or receiving payment of any kind from workers 
    for any activity related to obtaining H-2B temporary labor 
    certification or employment, including recruitment costs. However, this 
    provision does allow employers and their agents to receive 
    reimbursement for fees that are primarily for the benefit of the 
    worker, such as passport fees, which can be used for personal travel or 
    for travel to another job.
        p. Contracts with third parties to comply with prohibitions (Sec.  
    655.20(p)). Section 655.20(p), similarly to Sec.  655.22(g)(2) in the 
    2008 rule, requires that an employer that engages any agent or 
    recruiter must prohibit in a written contract the agent or recruiter 
    from seeking or receiving payments from prospective employees. DOL 
    notes that the new requirements at Sec.  655.9 of this interim final 
    rule require disclosure of the employer's agreements with any agent or 
    recruiter whom it engages or plans to engage in the recruitment of 
    prospective H-2B workers, whether in the U.S. or abroad, as well as the 
    identity and geographic location of any persons or entities hired by or 
    working for the recruiter and the agents or employees of those persons 
    and entities. The Departments believe that public disclosure of the 
    identity of recruiters and the entities for which they work is 
    necessary to prevent abuse, and this issue is addressed under Sec.  
    655.9. DOL will maintain a publicly available list of agents and 
    recruiters who are party to such recruitment contracts, as well as a 
    list of the identity and location of any persons or entities hired by 
    or working for the recruiters to recruit prospective H-2B workers for 
    the H-2B job opportunities offered by the employer.
        The difference between Sec.  655.9, which requires the employer to 
    provide copies of such agreements to DOL when an employer files its 
    Application for Temporary Employment Certification, and this 
    provision's requirements is that the requirements in this provision are 
    of an ongoing nature. The employer must always prohibit the seeking or 
    collection of fees from prospective employees in any contract with 
    third parties whom the employer engages to recruit international 
    workers, and is required to provide a copy of such existing agreements 
    when the employer files its Application for Temporary Employment 
    Certification. For employers' convenience, and to facilitate the 
    processing of applications, the interim final rule contains the exact 
    language of the required contractual prohibition that must appear in 
    such agreements. Further guidance on how DOL interprets the employer 
    obligations in Sec.  655.20(o) and (p) regarding prohibited fees can be 
    found in Field Assistance Bulletin No. 2011-2 (May 2011), available at 
    http://www.dol.gov/whd/FieldBulletins/fab2011_2.htm.
        The Departments recognize the complexities of recruiters using 
    subcontractor recruiters and have accounted for this in Sec.  655.20(p) 
    by including language requiring the employer to contractually prohibit 
    in writing any agent or recruiter (or any agent or employee of such 
    agent or recruiter) whom the employer engages, either directly or 
    indirectly, from seeking or receiving payments from any prospective 
    employees. The specific language covers subcontractors. In addition, 
    the required contractual prohibition applies to the agents and 
    employees of the recruiting agent, and encompasses both direct and 
    indirect fees.
        q. Prohibition against preferential treatment of H-2B workers 
    (Sec.  655.20(q)). Section 655.20(q), similarly to Sec.  655.22(a) in 
    the 2008 rule, prohibits employers from providing better terms and 
    conditions of employment to H-2B workers than to U.S. workers. The 
    substance of this provision is identical to the assurance found at 
    Sec.  655.18(a)(1) of this interim final rule, relating to the job 
    order, and a discussion of it is set forth in the preamble to that 
    section.
        r. Non-discriminatory hiring practices Sec.  655.20(r). Section 
    655.20(r), like Sec.  655.22(c) of the 2008 rule, sets forth a non-
    discriminatory hiring provision; it clarifies that the employer's 
    obligation to hire U.S. workers continues throughout the period 
    described in Sec.  655.20(t). Under this provision, rejections of U.S. 
    workers continue to be permitted only for lawful, job-related reasons. 
    This section works together with Sec.  655.20(q), which specifies that 
    job qualifications and requirements imposed on U.S. workers must be no 
    less favorable than the qualifications and requirements that the 
    employer is imposing or will impose on H-2B workers. Thus, for example, 
    where an employer requires drug tests or criminal background checks for 
    U.S. workers and does not require the same tests and background checks 
    for H-2B workers, the employer has violated this provision. 
    Additionally, where an employer conducts criminal background checks on 
    prospective employees, in order to be lawful and job-related, the 
    employer's consideration of any arrest or conviction history must be 
    consistent with guidance from the Equal Employment Opportunity 
    Commission (EEOC) on employer consideration of arrest and conviction 
    history under Title VII of the Civil Rights Act of 1964. See EEOC 
    Policy Statement on the Issue of Conviction Records under Title VII of 
    the Civil Rights Act of 1964, available at http://www.eeoc.gov/policy/docs/convict1.html; EEOC, Pre-Employment Inquiries and Arrest & 
    Conviction, available at http://www.eeoc.gov/laws/practices/inquiries_arrest_conviction.cfm. Thus, employers may reject U.S. 
    workers solely for lawful, job-related reasons, and they must also 
    comply with all applicable employment-related laws, pursuant to Sec.  
    655.20(z).
        s. Recruitment requirements (Sec.  655.20(s)). Section 655.20(s) 
    requires employers to conduct required recruitment as described in 
    Sec. Sec.  655.40-.46, including any activities directed by the CO. 
    Such required recruitment activities are discussed in the preamble to 
    those sections.
        t. Continuing obligation to hire U.S. workers Sec.  655.20(t). 
    Section 655.20(t) requires employers to hire qualified U.S. workers 
    referred by the SWA or who respond to recruitment until 21 days
    
    [[Page 24071]]
    
    before the date of need. The provision corrects the inadequacy in the 
    2008 rule, under which an employer is under no obligation to hire U.S. 
    workers after submitting the recruitment report, which could occur 
    almost four months before the first date of need. U.S. applicants--
    particularly unemployed workers--applying for the kinds of temporary 
    positions typically offered by H-2B employers are often unable to make 
    informed decisions about jobs several months in advance; it is far more 
    likely that they are in need of a job beginning far sooner. In fact, 
    many of these potential applicants may not even be searching for work 
    as early as several months in advance and are therefore unlikely to see 
    SWA job orders in the 10 days they are posted or the newspaper 
    advertisements on the 2 days they are published in accordance with the 
    2008 rule's minimum recruitment requirements. This segment of the labor 
    force cannot afford to make plans around the possibility of a temporary 
    job several months in the future. The 2008 rule's recruitment and 
    hiring structure simply cannot be reconciled with the Departments' 
    obligation to protect U.S. workers and ensure that qualified U.S. 
    applicants are unavailable for a job opportunity before H-2B workers 
    are hired.
        Requiring a priority hiring period until 21 days before the date of 
    need is consistent with the DHS requirement that H-2B nonimmigrants not 
    be admitted to the United States until 10 days before the date of need, 
    see 8 CFR 214.2(h)(13)(i)(A), since it minimizes the possibility that a 
    U.S. applicant could displace an H-2B nonimmigrant who has been 
    recruited, traveled to the consulate, obtained a visa, or even begun 
    inbound transportation to the worksite. At the same time, the 21-day 
    provision still gives employers certainty regarding the timing of and 
    need for their efforts to recruit prospective H-2B workers. With regard 
    to travel expenses, the 21-day cutoff will be sufficient to allow for 
    the arrangement of inbound transportation without employers having to 
    bear any risk of last-minute cancellations, pay premiums for refundable 
    fares, or pay visa expenses that are ultimately not needed. Housing 
    arrangements should not present an issue, as Sec.  655.20(q) requires 
    an employer to offer U.S. workers the same benefits that it is 
    offering, intends to offer, or will provide to H-2B workers. If an 
    employer intends to offer housing to H-2B workers, such housing must 
    also be offered to all U.S. applicants who live outside the area of 
    intended employment. Housing secured for workers can just as easily be 
    occupied by U.S. workers as by H-2B workers, or some combination of 
    U.S. and H-2B workers.
        The 21-day provision also will prevent H-2B workers from being 
    dismissed after beginning travel from their home to the consulate or 
    even to the United States as the obligation to hire U.S. workers now 
    ends 11 days before the earliest date an H-2B worker may be admitted to 
    the United States. Additionally, in order to create appropriate 
    expectations for potential H-2B workers, when an employer recruits 
    foreign workers, it should put them on notice that the job opportunity 
    will be available to U.S. workers until 21 days before the date of 
    need; therefore, the job offer is conditional upon there being no 
    qualified and available U.S. workers to fill the positions.
        The Departments believe this 21-day requirement, which extends the 
    duration of the U.S. worker referral period by as much as 3 months 
    compared to the 2008 rule, is sufficient to protect the interests of 
    U.S. workers. Further, the Departments note that the extended 
    recruitment period is not the only provision of this interim final rule 
    enhancing U.S. applicants' access to vacancies: the number and breadth 
    of recruitment vehicles in place (i.e., contact of previous workers, a 
    national job registry, a 15-day job posting notice at worksites, among 
    others) have also expanded. The worker protections contained in this 
    interim final rule are intended to encourage U.S. applicants hired to 
    remain on the job. However, provisions such as those found at Sec.  
    655.20(y) (Abandonment/termination of employment) offer protection to 
    employers from workers who might accept the offer of employment but who 
    subsequently abandon the job, and Sec.  655.20(y) similarly relieves 
    the employer, under certain circumstances, of the responsibilities to 
    provide transportation and to fulfill the three-quarter work guarantee 
    obligation.
        The Departments note that regardless of the time when the 
    obligation to hire terminates, the H-2B employer has a high degree of 
    certainty that it will have access to workers, whether from within or 
    outside the United States. Further, the interim final rule's 21-day 
    obligation-to-hire cutoff should provide employers with time to 
    identify foreign workers if they are, in fact, needed and to initiate 
    their travel without substantial uncertainty. However, the primary 
    purpose of this provision is to ensure that available U.S. workers have 
    a viable opportunity to apply for H-2B job opportunities and to 
    facilitate the employment of these workers.
        State laws that require employers in some industries to submit 
    requests for background checks or drug testing for their employees 30 
    to 45 days before the date of need may affect the requirement that such 
    employers continue to hire U.S. workers until 21 days before the date 
    of need. A background check or drug test required for employment in a 
    State, if listed in the job order, would be considered a bona fide job 
    requirement, as long as it was clearly disclosed in the job order and 
    recruitment materials. An applicant who submitted an application for 
    employment after a State-established deadline and was therefore unable 
    to undergo such an evaluation would be considered not qualified for 
    employment in that State. However, consistent with Sec. Sec.  
    655.18(a)(2) and 655.20(e), such a requirement must be disclosed in the 
    job order, and the employer would bear the responsibility of 
    demonstrating that it is bona fide and consistent with the normal and 
    accepted requirements imposed by non-H-2B employers in the same 
    occupation and area of intended employment. Furthermore, employers 
    cannot treat U.S. workers less favorably than foreign workers with 
    regard to start date; employers may not conduct such screening for 
    prospective H-2B workers at a later date if the employer does not 
    provide the same late screening for U.S. workers who submit an 
    application after a State-established deadline.
        Finally, given that many employers' workforce needs vary throughout 
    the season and they require fewer workers in slow months at the 
    beginning and end of the season, the Departments wish to remind 
    employers about the requirements of the three-fourths guarantee. 
    Specifically, the guarantee begins on the first workday after the 
    arrival of the worker at the place of employment or the advertised 
    first date of need, whichever is later. An employer cannot delay the 
    three-fourths guarantee, such as by telling workers to come to work 
    three weeks after the advertised first date of need, because the 
    employer does not have a need for them at that time (but see the 
    provisions applicable to employers in the seafood industry discussed in 
    the preamble to Sec.  655.15). This means that when workers present 
    themselves at the place of employment on the advertised first date of 
    need, the three-fourths guarantee is triggered, whether or not the 
    employer has sufficient full-time work for all of them to perform.
        u. No strike or lockout (Sec.  655.20(u)). Section 655.20(u) 
    modifies the no strike or lockout language in the 2008 rule to
    
    [[Page 24072]]
    
    require employers to assure DOL that there is no strike or lockout at 
    any of the employer's worksites in the area of intended employment for 
    which the employer is requesting H-2B certification, rather than solely 
    no strike or lockout in the positions being filled by H-2B workers, 
    which is the requirement under Sec.  655.22(b) of the 2008 regulations. 
    If there is a strike or lockout at the worksite when the employer 
    requests H-2B workers, the CO may deny the H-2B certification.
        This provision is intended to decrease the chances that an 
    unscrupulous employer will circumvent the regulatory requirement by 
    transferring U.S. workers to fill positions vacated by striking workers 
    and employing H-2B workers in the positions those U.S. workers vacated. 
    The Departments believe that this extension will provide added 
    protection for workers whose employers have multiple locations within a 
    commuting distance where transferring employees among locations would 
    be relatively easy.
        With respect to annual layoffs that occur due to the end of the 
    peak season, Sec.  655.20(u) is not intended to include employer 
    layoffs; Sec.  655.20(v) addresses employer layoffs. Further, with 
    respect to the ability of a CO to deny an application due to a strike 
    or a lockout and whether that might complicate the application process 
    and increase delays, unsuccessful applications, and last-minute 
    refusals of H-2B workers, DOL does not anticipate that this will be a 
    problem as long as employers do not seek approval of an Application for 
    Temporary Employment Certification while there is a strike or lockout 
    at the worksite.
        v. No recent or future layoffs (Sec.  655.20(v)). Section 655.20(v) 
    modifies the dates of impermissible layoffs of U.S. workers in Sec.  
    655.22(i) of the 2008 rule, extending the period during which an H-2B 
    employer must not lay off any similarly employed U.S. workers from 120 
    days after the date of need to the end of the certification period. 
    Further, this section provides that H-2B workers must be laid off 
    before any U.S. worker in corresponding employment. However, the 
    provision specifically permits layoffs due to lawful, job-related 
    reasons, such as the end of the peak season or a natural or manmade 
    disaster, as long as, if applicable, the employer lays off its H-2B 
    workers first.
        w. Contact with former U.S. employees (Sec.  655.20(w)). Section 
    655.20(w) requires employers to contact former U.S. employees who 
    worked for the employer in the occupation and at the place of 
    employment listed on the Application for Temporary Employment 
    Certification within the last year, including any U.S. employees who 
    were laid off within 120 days before the date of need. This expands the 
    2008 rule's requirement at Sec.  655.15(h) that employers contact only 
    former employees who were laid off during the 120 days preceding the 
    date of need. The employer is not required to contact those who were 
    dismissed for cause or who abandoned the worksite. Note, however, that 
    voluntary abandonment is different from a constructive discharge, which 
    occurs when the ``working conditions have become so intolerable that a 
    reasonable person in the employee's position would have felt compelled 
    to resign.'' Pennsylvania State Police v. Suders, 542 U.S. 129, 141 
    (2004). DOL also reminds employers that if qualified former employees 
    apply during the recruitment period they, like all qualified U.S. 
    applicants, must be offered employment.
        x. Area of intended employment and job opportunity (Sec.  
    655.20(x)). Section 655.20(x) modifies Sec.  655.22(l) of the 2008 rule 
    by additionally prohibiting the employer from placing a worker in a job 
    opportunity not specified on the Application for Temporary Employment 
    Certification, clarifying that an H-2B worker is only permitted to work 
    in the job and in the location that OFLC approves unless the employer 
    obtains a new temporary labor certification.
        y. Abandonment/termination of employment (Sec.  655.20(y)). Section 
    655.20(y), which is largely consistent with the notification 
    requirement in Sec.  655.22(f) of the 2008 rule, requires that 
    employers notify OFLC within 2 days of the separation of an H-2B worker 
    or worker in corresponding employment if the separation occurs before 
    the end date certified on the Application for Temporary Employment 
    Certification and notify DHS. The section also deems that an 
    abandonment or abscondment begins after a worker fails to report for 
    work without the employer's consent for 5 consecutive working days, and 
    adds language relieving the employer of the subsequent transportation 
    requirements under Sec.  655.22(j) and 29 CFR 503.16(j) if the 
    separation is due to a worker's voluntary abandonment. Additionally, 
    the section clarifies that if a worker voluntarily abandons employment 
    or is terminated for cause, an employer is not required to guarantee 
    three-fourths of the work in the worker's final partial 6- or 12-week 
    period, as described in Sec.  655.22(f) and 29 CFR 503.16(f).
        This section provides employers with guidance regarding their 
    notification obligations, which is informed by DOL's enforcement 
    experience with the Sec.  655.22(f) of the 2008 rule, under which 
    neither WHD nor employers expressed confusion or concerns since its 
    introduction in the 2008 rule. DOL's enforcement experience under the 
    H-2A program suggests that the identical provision in its H-2A 
    regulations has not resulted in confusion for H-2A employers, many of 
    whom also participate in the H-2B program. The written notification 
    required under 20 CFR 655.20(y) must be provided by one of the 
    following means:
        1. By electronic mail (email) to: TLC.Chicago@dol.gov mailbox, or
        2. Employers without Internet access may instead send written 
    notification by:
        (a) Facsimile to: (312) 886-1688; or
        (b) U.S. Mail to: U.S. Department of Labor, Office of Foreign Labor 
    Certification, Chicago National Processing Center, Attention: H-2B 
    Program Unit, 11 West Quincy Court, Chicago, IL 60604-2105.
        In order to ensure prompt and effective processing of the 
    notification, DOL requests that the employer's notice include at a 
    minimum the following information:
        1. The reason(s) for notification or late notification, if 
    applicable;
        2. The H-2B temporary employment certification application Case 
    Number(s);
        3. The employer's name; address, telephone number, and Federal 
    Employer Identification Number (FEIN).
        4. The date of abandonment or separation from employment; and
        5. The number of H-2B worker(s) and/or other worker(s) in 
    corresponding employment who abandoned or was/were separated from 
    employment, and the name(s) of each such H-2B worker and/or worker in 
    corresponding employment and each employee's last known address.
        The Chicago NPC will also accept a copy of the written notification 
    of abandonment or separation from employment submitted by the employer 
    to DHS as long as it contains all of the information listed above and 
    is submitted to the Chicago NPC via one of the means enumerated in this 
    IFR. Employers must retain records in accordance with documentation 
    retention requirements outlined at 29 CFR 503.17. DOL penalties for 
    this violation are different from DHS fines. The notification 
    requirement serves different purposes for DHS and DOL, and DOL 
    concludes it is fair and consistent to treat this violation in the same 
    way it treats other violations of employers' H-2B obligations.
        The Departments emphasize that the notification requirements in 
    Sec.  655.20(y) are not intended to be used as threats
    
    [[Page 24073]]
    
    against vulnerable foreign workers to keep them in abusive work 
    situations. Further, the Departments caution that coercing workers into 
    performing labor by threatening potential deportation or immigration 
    enforcement may violate anti-trafficking laws. The Departments remind 
    the public that DHS regulations already compel employers to notify DHS 
    of early separations to assist the agency in keeping track of foreign 
    nationals in the United States. See 8 CFR 214.2(h)(6)(i)(F), 
    (h)(11)(i). Employers should note that DHS has its own notification 
    requirements under 8 CFR 214.2(h)(6)(i)(F) that employers must comply 
    with if: An H-2B worker fails to report for work within 5 work days 
    after the employment start date; the H-2B labor or services for which 
    H-2B workers were hired were completed more than 30 days early; or an 
    H-2B worker absconds from the worksite or is terminated prior to the 
    completion of the nonagricultural labor or services for which he or she 
    was hired. Both OFLC's (which may share information with WHD) and DHS's 
    awareness of early separations are critical to program integrity, 
    allowing the agencies to appropriately monitor and audit employer 
    actions. If not for proper notification, employers with histories of 
    frequent and unjustified early dismissals of workers could continue to 
    have an Application for Temporary Employment Certification certified 
    and an H-2B Petition approved.
        With respect to whether a termination actually was for cause, DOL 
    reminds the public that WHD, as part of its enforcement practices, may 
    investigate conditions behind the early termination of foreign workers 
    to ensure that the dismissals were not affected merely to relieve an 
    employer of its outbound transportation and three-quarter guarantee 
    obligations. Further, Sec.  655.20(n) already protects workers from a 
    dismissal in retaliation for protected activities. However, some 
    employer personnel rules set the abscondment threshold at 3 days. This 
    regulation does not intrude upon or supersede employer attendance 
    policies. The requirement that an employer provide appropriate 
    notification if a worker fails to report for 5 consecutive working days 
    does not preclude an employer from establishing a different standard 
    for dismissing its workers. Further, the Departments do not intend the 
    H-2B regulations to provide job protection to workers in the case of 
    illness or injury that may result in absences and considers such 
    determinations beyond its authority. The rule leaves it largely to 
    employers to determine the worker behaviors that trigger a dismissal 
    for cause, beyond the protected activities described in Sec.  655.20(n) 
    and the requirement in Sec.  655.20(z) that the employer comply with 
    all applicable employment-related laws.
        z. Compliance with applicable laws (Sec.  655.20(z)). Section 
    655.20(z) requires H-2B employers to comply with all other applicable 
    Federal, State, and local employment laws, similar to the 2008 rule's 
    provision at Sec.  655.22(d), and it explicitly references 18 U.S.C. 
    1592(a), which prohibits employers from holding or confiscating 
    workers' immigration documents such as passports or visas under certain 
    circumstances. Because the prohibition must include employers' 
    attorneys and agents in order to achieve the intended worker 
    protection, appropriate language is included in Sec.  655.20(z) of this 
    interim final rule to reflect that coverage.
        aa. Disclosure of foreign worker recruitment (Sec.  655.20(aa)). 
    Section 655.20(aa) requires the employer and its attorney and/or agents 
    to provide a copy of any agreements with an agent or recruiter whom it 
    engages or plans to engage in the recruitment of prospective H-2B 
    workers under this Application for Temporary Employment Certification 
    (Sec.  655.9), at the time of filing the application (Sec.  655.15(a)), 
    as well as to disclose those persons and entities hired by or working 
    for the recruiter or agent, and any of their agents or employees who 
    recruit prospective foreign workers for the H-2B job opportunities 
    offered by the employer. The Departments are adding this obligation to 
    the list of Assurances and Obligations in this interim final rule, as 
    it is a critical obligation that will significantly enhance the 
    recruitment process, as explained in the preamble to Sec. Sec.  655.9 
    and 655.15.
        bb. Cooperation with investigators (Sec.  655.20(bb)). Section 
    655.20(bb) requires the employer to cooperate with any DOL employee who 
    is exercising or attempting to exercise DOL's authority pursuant to 8 
    U.S.C. 1184(c), INA section 214(c). Including this provision in the 
    list of employer obligations will facilitate enforcement if an employer 
    fails to cooperate in any administrative or enforcement proceeding, and 
    if that failure is determined to be a violation under these 
    regulations. Requirements for employer cooperation with WHD 
    investigations are set forth more fully in 29 CFR 503.25.
    
    E. Processing of an Application for Temporary Employment Certification
    
    1. Sec.  655.30 Processing an Application and Job Order
        Under this provision, upon receipt of an Application for Temporary 
    Employment Certification and copy of the job order, the CO will 
    promptly conduct a comprehensive review. The CO's review of the 
    Application for Temporary Employment Certification, in most cases,\22\ 
    will no longer entail a determination of temporary need following H-2B 
    Registration. Instead, this aspect of the CO's review is limited to 
    verifying that the employer previously submitted a request for and was 
    granted H-2B Registration, and that the terms of the Application for 
    Temporary Employment Certification have not significantly changed from 
    those approved under the H-2B Registration.
    ---------------------------------------------------------------------------
    
        \22\ As provided in the discussion of Sec.  655.11, each 
    employer filing an Application for Temporary Employment 
    Certification is required under the interim final rule to establish 
    temporary need through the registration process. However, in limited 
    circumstances where the employer has applied for a temporary labor 
    certification on an emergency basis under emergency procedures in 
    Sec.  655.17 without an approved H-2B Registration, the CO may be 
    required to also make a determination of temporary need.
    ---------------------------------------------------------------------------
    
        The interim final rule also requires the use of next day delivery 
    methods, including electronic mail, for any notice or request sent by 
    the CO requiring a response from the employer and the employer's 
    response to such a notice or request. This provision also contains a 
    long-standing program requirement that the employer's response to the 
    CO's notice or request must be sent by the due date or the next 
    business day if the due date falls on a Saturday, Sunday, or a Federal 
    holiday.
    2. Sec.  655.31 Notice of Deficiency
        This provision requires the CO to issue a formal Notice of 
    Deficiency where the CO determines that the Application for Temporary 
    Employment Certification and/or job order contains errors or 
    inaccuracies, or fails to comply with applicable regulatory and program 
    requirements. The CO must issue the Notice of Deficiency within 7 
    business days from the date on which the Chicago NPC receives the 
    employer's Application for Temporary Employment Certification and job 
    order. Once the CO issues a Notice of Deficiency to the employer, the 
    CO will provide the SWA and the employer's attorney or agent, if 
    applicable, a copy of the notice. The Notice of Deficiency will include 
    the specific reason(s) why the Application for Temporary Employment
    
    [[Page 24074]]
    
    Certification and/or job order is deficient, identify the type of 
    modification necessary for the CO to issue a Notice of Acceptance, and 
    provide the employer with an opportunity to submit a modified 
    Application for Temporary Employment Certification and/or job order 
    within 10 business days from the date of the Notice of Deficiency. The 
    Notice of Deficiency will also inform the employer that it may, 
    alternatively, request administrative review before an Administrative 
    Law Judge (ALJ) within 10 business days of the date of the Notice of 
    Deficiency and instruct the employer how to file a request for such 
    review in accordance with the administrative review provision under 
    this subpart. Finally, the Notice of Deficiency will inform the 
    employer that failing to timely submit a modified Application for 
    Temporary Employment Certification and/or job order, or request 
    administrative review, will cause the CO to deny that employer's 
    Application for Temporary Employment Certification. The CO may issue 
    multiple Notices of Deficiency, if necessary, to provide the CO with 
    the needed flexibility to work with employers seeking to resolve 
    deficiencies that are preventing acceptance of their Application for 
    Temporary Employment Certification. For example, there are situations 
    in which a response to a Notice of Deficiency raises other issues that 
    must be resolved, requiring the CO to request more information. The CO 
    will have the ability to address these situations.
    3. Sec.  655.32 Submission of a Modified Application or Job Order
        The interim final rule permits the CO to deny any Application for 
    Temporary Employment Certification where the employer neither submits, 
    following request by the CO, a modification nor requests a timely 
    administrative review, and such a denial cannot be appealed. The 
    interim final rule also requires the CO to deny an Application for 
    Temporary Employment Certification if the modification(s) made by the 
    employer do not comply with the requirements for certification in Sec.  
    655.50. A denial of a modified Application for Temporary Employment 
    Certification may be appealed.
        If the CO deems a modified application acceptable, the CO will 
    issue a Notice of Acceptance and require the SWA to modify the job 
    order in accordance with the accepted modification(s), as necessary. In 
    addition to requiring modification before the acceptance of an 
    Application for Temporary Employment Certification, this provision 
    permits the CO to require the employer to modify a job order at any 
    time before the final determination to grant or deny the Application 
    for Temporary Employment Certification if the CO determines that the 
    job order does not contain all the applicable minimum benefits, wages, 
    and working conditions. The CO's ability to require modification(s) of 
    a job order strengthens H-2B program integrity. In some cases, 
    information may come to the CO's attention after acceptance indicating 
    that the job order does not contain all the applicable minimum 
    benefits, wages, and working conditions that are required for 
    certification. This provision enables the CO to ensure that the job 
    order meets all regulatory requirements.
        The provision requires the CO to update the electronic job registry 
    to reflect the necessary modification(s) and to direct the SWA(s) in 
    possession of the job order to replace the job order in their active 
    files with the modified job order. The provision also requires the 
    employer to disclose the modified job order to all workers recruited 
    under the original job order or Application for Temporary Employment 
    Certification.
    4. Sec.  655.33 Notice of Acceptance
        The interim final rule requires the CO to issue a formal notice 
    accepting the employer's Application for Temporary Employment 
    Certification for processing. Specifically, the CO will send a Notice 
    of Acceptance to the employer (and the employer's attorney or agent, if 
    applicable), with a copy to the SWA, within 7 business days from the 
    CO's receipt of the Application for Temporary Employment Certification 
    or modification, provided that the Application for Temporary Employment 
    Certification and job order meet all the program and regulatory 
    requirements.
        The Notice of Acceptance directs the SWA: (1) To place the job 
    order in intra- and interstate clearance, including (i) circulating the 
    job order to the SWAs in all other States listed on the employer's 
    Application for Temporary Employment Certification and job order as 
    anticipated worksites and (ii) to any States to which the CO directs 
    the SWA to circulate the job order; (2) to keep the job order on its 
    active file and continue to refer U.S. workers to the employer until 
    the end of the recruitment period defined in Sec.  655.40(c), as well 
    as transmit those instructions to all other SWAs to which it circulates 
    the job order; and (3) to circulate a copy of the job order to certain 
    labor organizations, where the job classification is traditionally or 
    customarily unionized.
        The Notice of Acceptance will direct the employer to recruit U.S. 
    workers in accordance with employer-conducted recruitment provisions in 
    Sec. Sec.  655.40-655.46, as well as to conduct any reasonable 
    additional recruitment the CO directs, consistent with Sec.  655.46, 
    within 14 calendar days from the date of the notice. The Notice of 
    Acceptance will inform the employer that such employer-conducted 
    recruitment is required in addition to SWA circulation of the job order 
    in intrastate and interstate clearance under Sec.  655.16. In addition, 
    the Notice of Acceptance will require the employer to submit a written 
    report of its recruitment efforts as specified in Sec.  655.48. 
    Finally, the Notice of Acceptance may require the employer to contact 
    appropriate designated community-based organizations with the notice of 
    the job opportunity.
    5. Sec.  655.34 Electronic Job Registry
        The CO will post employers' H-2B job orders, including 
    modifications and/or amendments approved by the CO, on an electronic 
    job registry to disseminate the job opportunities to the widest 
    audience possible. The electronic job registry was initially created to 
    accommodate the posting of H-2A job orders, and DOL will expand it to 
    include H-2B job orders. DOL will inform the public when the electronic 
    job registry is available for the H-2B program. Once the registry is 
    operational, the CO will post the job orders on the electronic job 
    registry, after accepting an Application for Temporary Employment 
    Certification, for the duration of the recruitment period, as provided 
    in Sec.  655.40(c). Although a job order may be circulated among 
    multiple SWAs, only the job order placed with the initial SWA, which 
    identifies all work locations, will be posted on the electronic job 
    registry. The electronic job registry will be accessible via the 
    internet to anyone seeking employment. We will work with the SWAs to 
    devise procedures to further publicize the electronic job registry. At 
    the conclusion of the recruitment period, we will maintain the job 
    order on the electronic job registry in inactive status, making the 
    information available for a variety of other public examination 
    purposes.
    6. Sec.  655.35 Amendments to an Application or Job Order
        This provision permits an employer to request to amend its 
    Application for Temporary Employment Certification and/or job order to 
    increase the number of workers, to change the period of employment, or 
    to make other changes to the application, before the CO makes a final 
    determination to grant or deny
    
    [[Page 24075]]
    
    the Application for Temporary Employment Certification. The provision 
    permits an employer to seek such amendments only before certification, 
    not after certification. This provision provides clarity to employers 
    and workers alike of the limitations on and processes for amending an 
    Application for Temporary Employment Certification and the need to 
    inform any U.S. workers already recruited of the changed job 
    opportunity. The provision recognizes that business is not static and 
    employers can face changed circumstances from varying sources--from 
    climatic conditions to cancelled contracts. Accordingly, we include 
    this provision to provide some flexibility to enable employers to 
    assess and respond to such changes.
        In considering whether to approve the request, the CO will 
    determine whether the proposed amendment(s) are sufficiently justified 
    and must take into account the effect of the changes on the underlying 
    labor market test for the job opportunity. We do not intend this 
    provision to allow employers to amend their applications beyond the 
    parameters contained in Sec.  655.12; rather, part of the CO's review 
    will involve comparing the requested amendments to the content of the 
    approved H-2B Registration.
        We have included certain limitations to ensure that these job 
    opportunities are not misrepresented or materially changed as a result 
    of such amendments. We expect that these parameters, which limit the 
    extent of the change in number of workers or period of need permitted, 
    and the CO review process to control the frequency with which post-
    acceptance and pre-certification job order amendments are requested or 
    approved and maintain the integrity of the H-2B Registration process.
        Specifically, the employer may request an amendment of the 
    Application for Temporary Employment Certification and/or job order to 
    increase the number of workers initially requested. However, amendments 
    to increase the number of workers must be limited to no more than 20 
    percent (50 percent for employers requesting fewer than 10 workers) 
    above the number specified in the H-2B Registration. In addition, the 
    provision permits minor changes to the period of employment at any time 
    before the CO's final determination. However, such amendments to the 
    period of employment may not exceed 14 days and may not cause the total 
    period to exceed 9 months, except in the event of a demonstrated one-
    time occurrence. This limitation to 14 days is designed to ensure that 
    the employer had a legitimate need before initiating the registration 
    process, and accurately estimated its dates of need. Although an H-2B 
    registration covers the entire period of need for up to 3 years, this 
    provision, by contrast, allows an employer to request a change of up to 
    14 days from the from the period listed on its Application for 
    Temporary Employment Certification, allowing for up to 2 such changes 
    from the initial dates provided in the registration, as long as the 
    deviations do not result in a total period of need exceeding 9 months.
        Under this provision, the employer must request any amendment(s) to 
    the Application for Temporary Employment Certification and/or job order 
    in writing and any such amendment(s) will not be effective until 
    approved by the CO. After reviewing an employer's request to amend its 
    Application for Temporary Employment Certification and/or job order, 
    the CO will approve these changes if the CO determines the proposed 
    amendment(s) are justified and will not negatively affect the CO's 
    ability to make a timely temporary labor certification determination, 
    including the ability to adequately test the U.S. labor market. Changes 
    will not be approved that affect the underlying H-2B registration. Once 
    the CO approves an amendment to the Application for Temporary 
    Employment Certification and/or job order, the CO will submit to the 
    SWA any necessary change(s) to the job order and update the electronic 
    job registry to reflect the approved amendment(s).
    
    F. Recruitment Requirements
    
        This interim final rule maintains and expands some of the 
    requirements relating to the recruitment of U.S. workers that were 
    contained in the 2008 rule. The Departments conclude that, with 
    expanded requirements, including the requirement that the employer 
    contact its former U.S. workers and the requirement to conduct 
    additional recruitment at the discretion of the CO, recruitment is more 
    likely to identify qualified and available U.S. workers than under the 
    2008 rule and will better protect against the potential for adverse 
    effect.
    1. Sec.  655.40 Employer-Conducted Recruitment
        Unlike under the 2008 rule, this interim final rule requires that 
    the employer conduct recruitment of U.S. workers after its Application 
    for Temporary Employment Certification is accepted for processing by 
    the CO.
        Paragraph (a) contains the general requirement that employers must 
    conduct recruitment of U.S. workers to ensure that there are not 
    qualified U.S. workers who will be available for the positions listed 
    in the Application for Temporary Employment Certification and provides 
    that U.S. applicants can be rejected only for lawful job-related 
    reasons. This general requirement to test the U.S. labor market is 
    needed to ensure that the importation of foreign workers will not have 
    an adverse effect on U.S. workers.
        Paragraph (b) requires that employers complete specific recruitment 
    steps outlined in Sec. Sec.  655.42 through 655.46 within 14 days from 
    the date of the Notice of Acceptance unless otherwise instructed by the 
    CO. This paragraph further requires that all employer-conducted 
    recruitment must be completed before the employer submits the 
    recruitment report as required in Sec.  655.48. We conclude that a 14-
    day recruitment period provides an appropriate timeframe for the 
    employer to conduct the recruitment described in Sec. Sec.  655.42 
    through 655.46, especially when combined with the longer SWA referral 
    period discussed further below.
        Paragraph (c) requires that employers must continue to accept 
    referrals and applications of all U.S. applicants interested in the 
    position until 21 days before the date of need. Separate from the 
    employer-conducted recruitment, this interim final rule at Sec.  655.16 
    requires the SWA, upon acceptance of the job order and Application for 
    Temporary Employment Certification by the CO, to circulate the job 
    order, and Sec.  655.34 of this interim final rule provides that the CO 
    will post the job order to the electronic job registry. The requirement 
    that employers continue to accept all qualified U.S. applicants 
    referred for employment by the SWA or who apply for the position 
    directly with the employer until 21 days before the date of need 
    balances the need to ensure an adequate test of the U.S. labor market 
    without requiring the employer to incur any additional costs in 
    conducting independent recruitment efforts beyond the sources and the 
    14 days specified in the Notice of Acceptance.
        Paragraph (d) provides that where the employer wishes to conduct 
    interviews with U.S. workers, it must do so by telephone or at a 
    location where workers can participate at little or no cost to the 
    workers. This provision does not require employers to conduct 
    employment interviews under this provision. Rather, employers are 
    barred from offering preferential treatment to potential H-2B workers, 
    including any requirement to interview for the job
    
    [[Page 24076]]
    
    opportunity. In addition, this interim final rule ensures that 
    employers conduct a fair labor market test by requiring employers that 
    conduct interviews to conduct them by phone or provide a procedure for 
    the interviews to be conducted in the location where the worker is 
    being recruited so that the worker incurs little or no cost. 
    Accordingly, an employer who requires a U.S. worker to undergo an 
    interview must provide such worker with a reasonable opportunity to 
    meet such a requirement. The purpose of these requirements is to ensure 
    that that the employer does not use the interview process to the 
    disadvantage of U.S. workers.
        To ensure no adverse effect to U.S. workers, paragraph (e) requires 
    that the employer must consider all U.S. applicants for the job 
    opportunity and that the employer must accept and hire any applicants 
    who are qualified and who will be available for the job opportunity.
        Paragraph (f) requires the employer to prepare a recruitment report 
    meeting the requirements of Sec.  655.48.
    2. Sec.  655.41 Advertising Requirements
        Section 655.41 of this interim final rule requires that all 
    employer recruitment contain terms and conditions of employment no less 
    favorable than those offered to the prospective H-2B workers and 
    provide the terms and conditions of employment necessary to apprise 
    U.S. workers of the job opportunity.
        Paragraph (a) requires that all recruitment must, at a minimum, 
    comply with the assurances applicable to job orders as set forth in 
    Sec.  655.18(a). While this requires advertising to conform to the job 
    order assurances and include the minimum terms and conditions of 
    employment, it does not require an advertisement to include the full 
    text of the assurances applicable to job orders. Consistent with Sec.  
    655.18(a), all job qualifications and requirements listed in the 
    employer's advertising must be bona fide and consistent with normal and 
    accepted job qualifications and requirements.
        Paragraph (b) provides a list of the minimum terms and conditions 
    of employment that must be included in all advertising, including a 
    requirement that the employer make the appropriate disclosure when it 
    is offering or providing board, lodging or facilities, as well as 
    identify any deductions, if applicable, that will be applied to the 
    employee's pay for the provision of such accommodations. In requiring 
    that advertisements comply with the assurances from the job order and 
    meet minimum content requirements, but not requiring that 
    advertisements contain all of the text of the assurances from the job 
    order, we strike a balance between the employer's cost in placing 
    potentially lengthy advertisements and the need to ensure that entities 
    disclose all necessary information to all potential applicants. In 
    addition, as a continuing practice in the program, employers will be 
    able to use abbreviations in the advertisements so long as the 
    abbreviation clearly and accurately captures the underlying content 
    requirement.
        In order to help employers comply with these requirements, we 
    provide below specific language which is sufficient on the issues of 
    transportation; the three-fourths guarantee; and tools, equipment, and 
    supplies to apprise U.S. applicants of those required items in the 
    advertisement. As provided above, the employer may also abbreviate some 
    of this language so long as the underlying guarantee can be clearly 
    understood by a prospective applicant. The following statements in an 
    employer's advertisements are permitted:
    
        1. Transportation: Transportation (including meals and, to the 
    extent necessary, lodging) to the place of employment will be 
    provided, or its cost to workers reimbursed, if the worker completes 
    half the employment period. Return transportation will be provided 
    if the worker completes the employment period or is dismissed early 
    by the employer. 2. Three-fourths guarantee: For certified periods 
    of employment lasting fewer than 120 days: The employer guarantees 
    to offer work for hours equal to at least three-fourths of the 
    workdays in each 6-week period of the total employment period. For 
    certified periods of employment lasting 120 days or more: The 
    employer guarantees to offer work for hours equal to at least three-
    fourths of the workdays in each 12-week period of the total 
    employment period. 3. Tools, equipment and supplies: The employer 
    will provide workers at no charge all tools, supplies, and equipment 
    required to perform the job.
    
        The interim final rule at Sec.  655.41(b)(14) requires all employer 
    advertisements to direct applicants to apply for the job at the nearest 
    SWA office because we conclude that allowing SWAs to apprise job 
    applicants of the terms and conditions of employment is an essential 
    aspect of ensuring an appropriate labor market test. However, 
    notwithstanding the many benefits of being referred to the job 
    opportunity by the SWA, U.S. workers may contact the employer directly, 
    and the interim final rule at Sec.  655.41(b)(1) requires that 
    employers include their contact information to enable such direct 
    contact. We anticipate that the enhanced role of the SWA in employee 
    referrals and the additional duties inherent in that role will be 
    offset through the elimination of the requirement for the SWA to 
    conduct employment verification activities as discussed further below.
    3. Sec.  655.42 Newspaper Advertisements
        As under the 2008 rule, this interim final rule at Sec.  655.42(a) 
    requires the employer to place two advertisements in a newspaper of 
    general circulation for the area of intended employment that is 
    appropriate to the occupation and the workers likely to apply for the 
    job opportunity, at least one appearing in a Sunday edition. In 
    addition this paragraph requires the employer to place the 
    advertisement(s) in a language other than English where the CO 
    determines it is appropriate. Further, we eliminate the employer's 
    option under the 2008 rule to replace one of the newspaper 
    advertisements with an advertisement in a professional, trade, or 
    ethnic newspaper.
        Newspapers of general circulation remain an important source for 
    recruiting U.S. workers, particularly those interested in positions 
    typically found in the H-2B program. Low-wage workers are less likely 
    to have internet access than more skilled workers, and are thus more 
    likely to search for jobs using traditional means. Particularly given 
    that the CO has authority to require the newspaper advertisement to be 
    published in a language other than English, newspapers continue to be a 
    valuable source for recruitment. In addition, newspaper advertisements 
    are also recognized as information sources likely to generate informal, 
    word of mouth referrals. No single alternative method of advertising 
    uniformly applies to the variety of H-2B job opportunities or is likely 
    to reach as broad a potential audience for these types of job 
    opportunities.
        Paragraph (b) provides the CO with discretion to direct the 
    employer, in place of a Sunday edition, to advertise in the regularly 
    published daily print edition with the widest circulation in the area 
    of intended employment if the job opportunity is located in a rural 
    area that does not have a newspaper with a Sunday edition. This 
    provision is similar to the 2008 rule, which required an employer to 
    advertise in the regularly published daily edition with the widest 
    circulation in the area of intended employment if the job opportunity 
    was located in such an area.
        Paragraph (c) provides that the newspaper advertisements must meet 
    the requirements in Sec.  655.41.
    
    [[Page 24077]]
    
        Paragraph (d) requires the employer to maintain documentation of 
    its newspaper advertisements in the form of copies of newspaper pages 
    (with date of publication and full copy of the advertisement), tear 
    sheets of the pages of the publication in which the advertisements 
    appeared, or other proof of publication furnished by the newspaper 
    containing the text of the printed advertisements and the dates of 
    publication, consistent with the document retention requirements in 
    Sec.  655.56. It further requires that if the advertisement was 
    required to be placed in a language other than English, the employer 
    must maintain a translation and retain it in accordance with Sec.  
    655.56.
    4. Sec.  655.43 Contact With Former U.S. Employees
        This provision requires employers to make reasonable efforts to 
    contact by mail or other effective means its former U.S. workers who 
    were employed by the employer in the same occupation at the place of 
    employment during the previous year before the date of need listed in 
    the Application for Temporary Employment Certification. This 
    requirement expands the 2008 rule's requirement that employers contact 
    former U.S. workers who have been laid off within 120 days of the 
    employer's date of need. However, employers are not required to contact 
    U.S. workers who were terminated for cause or who abandoned the 
    worksite, as defined in Sec.  655.20(y). The Departments believe that 
    this provision will help ensure that the greatest number of U.S. 
    workers, particularly those that have previously held these positions, 
    have awareness of and access to these job opportunities.
        Each employer must provide its former U.S. employees a full 
    disclosure of the terms and conditions of the job order, and solicit 
    their return to the job. Employers will be required to maintain 
    documentation to be submitted in the event of an audit or investigation 
    sufficient to prove contact with its former employees consistent with 
    document retention requirements under Sec.  655.56. This documentation 
    may consist of a copy of a form letter sent to all former employees, 
    along with evidence of its transmission (postage account, address list, 
    etc.).
        Although the requirement focuses on a longer period of time than 
    the requirement under the 2008 rule, it is unlikely that it will impose 
    a significantly greater burden on employers. Typically, employers will 
    have laid off seasonal or temporary U.S. workers at the end of the 
    period of need, which was up to 10 months under the 2008 rule. This 
    means that such workers are those whom the employer would have been 
    required to contact under Sec.  655.15(h) under the 2008 rule. If for 
    some reason, the employer did lay off some workers who were hired to 
    work during the employer's period of temporary need, before the end of 
    the period of need--e.g., additional workers who were hired for a 
    period of peakload need within the longer period of temporary need, the 
    Departments believe that it would be most appropriate to give those 
    workers the first opportunity to take the jobs. Generally, however, 
    there will be little practical difference between the operation of the 
    previous requirement and the operation of this requirement in the 
    interim final rule except perhaps for seasonal jobs. In a seasonal 
    program, reaching back to contact former employees who were employed 
    over a cycle of a full year would be the minimum amount of time 
    necessary to capture all of the seasonal activities for which H-2B 
    workers are sought. For example, an oceanfront resort employer hires 
    workers at the start of its season in May and releases them in 
    September. The employer then seeks H-2B workers the following March, 
    more than 60 days before the usual date of need. Reaching that 
    particular workforce requires the employer to reach back to the time 
    those employees were hired--the previous May--to ensure that the group 
    of employees most likely to return to the employment are given the 
    opportunity to do so.
        The Departments recognize that collective bargaining agreements may 
    require the employer to contact laid-off employees in accordance with 
    specific terms governing recall and a recall period. The requirement in 
    this section that the employer contact former employees employed by the 
    employer during the prior year would not substitute for the terms in a 
    collective bargaining agreement. The employer is separately obligated 
    to comply with the terms and conditions of the bargaining agreement, 
    which may include recall provisions that cover workers employed by the 
    employer beyond the prior year.
        The Departments also recognize that some unscrupulous employers may 
    use termination as a means of retaliating against workers who complain 
    about unlawful treatment or exercise their rights under the program. 
    However, the requirement in this interim final rule that each employer 
    affirmatively attest that it has not engaged in unfair treatment as 
    defined in Sec.  655.20(n), i.e., that it has not retaliated against 
    complaining employees, acts as a backstop against this prohibited 
    activity and the possibility that an employer would be released from 
    contacting such workers.
    5. Sec.  655.44 [Reserved]
    6. Sec.  655.45 Contact With Bargaining Representative, Posting 
    Requirements, and Other Contact Requirements
        Paragraph (a) of this section requires employers that are party to 
    a CBA to provide written notice to the bargaining representative(s) of 
    the employer's employees in the job classification in the area of 
    intended employment by providing a copy of the Application for 
    Temporary Employment Certification and the job order. The employer must 
    maintain documentation that the application and job order were sent to 
    the bargaining representative(s). This requirement will provide that 
    each employer's existing U.S. workers receive timely notice of the job 
    opportunities, thereby increasing the likelihood that those workers 
    will apply for the available positions for the subsequent temporary 
    period of need, and other U.S. workers, possibly including former 
    workers, will be more likely to learn of the job opportunities as well. 
    This paragraph further requires such employers to include information 
    in their recruitment reports that confirms that the bargaining 
    representative(s) was contacted and notified of the position openings 
    and whether the organization referred qualified U.S. worker(s), 
    including the number of referrals, or was non-responsive to the 
    employer's requests.
        Paragraph (b) requires that, where there is no bargaining 
    representative of the employer's employees, the employer must post a 
    notice to its employees of the job opportunities for at least 15 
    consecutive business days in at least two conspicuous locations at the 
    place of intended employment or in some other manner that provides 
    reasonable notification to all employees in the job classification and 
    area in which work will be performed by the H-2B workers. Web posting 
    can fulfill this requirement in some circumstances.
        The posting of the notice at the employer's worksite, in lieu of 
    formal contact with a representative when one does not exist, is 
    intended to provide that all of the employer's U.S. workers are 
    afforded the same access to the job opportunities for which the 
    employer intends to hire H-2B workers. In addition, the posting of the 
    notice may result in the sharing of information between the employer's 
    unionized and nonunionized workers and therefore result in more 
    referrals and a greater pool of qualified U.S. workers. This
    
    [[Page 24078]]
    
    interim final rule provides a degree of flexibility for complying with 
    this requirement; specifically, the regulation includes the language 
    ``or in some other manner that provides reasonable notification to all 
    employees in the job classification and area in which the work will be 
    performed by the H-2B workers.'' This permits the employer to devise an 
    alternative method for disseminating this information to the employer's 
    employees, for example, by posting the notice in the same manner and 
    location as for other notices, such as safety and health occupational 
    notices, that the employer is required by law to post. This provision 
    further provides that electronic posting, such as displaying the notice 
    prominently on any internal or external Web site that is maintained by 
    the employer and customarily used for notices to employees about terms 
    and conditions of employment, is sufficient to meet this posting 
    requirement as long as the posting otherwise meets the requirements of 
    this section. Finally, this paragraph requires the notice to meet the 
    requirements of Sec.  655.41 and that the employer maintain a copy of 
    the posted notice and identify where and when it was posted in 
    accordance with Sec.  655.56.
        Paragraph (c) provides, in addition to the requirements for 
    notification to bargaining representatives or employees in this 
    section, that the CO may also require the employer to contact 
    community-based organizations to disseminate the notice of the job 
    opportunity. Community-based organizations are an effective means of 
    reaching out to domestic workers interested in specific occupations. 
    ETA administers our nation's public exchange workforce system through a 
    series of One-Stop Career Centers. These One-Stop Centers provide a 
    wide range of employment and training services for workers through job 
    training and outreach programs such as job search assistance, job 
    referral and job placement services, and also provide recruitment 
    services to businesses seeking workers. Community-based organizations 
    with employment programs including workers who might be interested in 
    H-2B job opportunities have established relationships with the One-Stop 
    Career Center network. The One-Stop Center in or closest to the area of 
    intended employment will be, in most cases, the designated point of 
    contact the CO will give employers to use to provide notice of the job 
    opportunity. This provides the employer with access not only to the 
    community-based organization, but to a wider range of services of 
    assistance to its goal of meeting its workforce needs. This contact is 
    to be made when designated specifically by the CO in the Notice of 
    Acceptance as appropriate to the job opportunity and the area of 
    intended employment.
        We note that, not unlike additional recruitment (discussed below), 
    contact with community-based organizations is intended to broaden the 
    pool of potential applicants and assist the many unemployed U.S. 
    workers with finding meaningful job opportunities. These organizations 
    are especially valuable because they are likely to serve those workers 
    in greatest need of assistance in finding work and individuals who may 
    be seeking positions in H-2B occupations that require little or no 
    specialized knowledge. Although we will not require each employer to 
    make this type of contact, this provision, where directed by the CO, 
    will assist with fulfilling the intent of the H-2B program and 
    enhancing the integrity of the labor market test.
    7. Sec.  655.46 Additional Employer-Conducted Recruitment
        Where the CO determines that the employer-conducted recruitment 
    described in Sec. Sec.  655.42 through 655.45 is not sufficient to 
    attract qualified U.S. workers who are likely to be available for a job 
    opportunity, Sec.  655.46 of this interim final rule provides the CO 
    with discretion to require the employer to engage in additional 
    reasonable recruitment activities. Paragraph (a) provides the CO with 
    discretion to order additional reasonable recruitment where the CO has 
    determined that there is a likelihood that U.S. workers are qualified 
    and who will be available for the work, including, but not limited to, 
    where the job opportunity is located in an Area of Substantial 
    Unemployment. This discretion may be exercised, including in Areas of 
    Substantial Unemployment where appropriate, where additional 
    recruitment efforts will likely result in more opportunities for and a 
    greater response from available and qualified U.S. workers. In 
    addition, we recognize that the increased rate of technological 
    innovation, including its implications for communication of information 
    about job opportunities, is changing the way many U.S. workers search 
    for and find jobs. In part due to these changes, the inclusion of this 
    requirement is intended to allow the CO flexibility to keep pace with 
    the ever-changing labor market trends.
        Areas of Substantial Unemployment by their nature have a higher 
    likelihood of worker availability; DOL's recognition of worker 
    availability in these areas is a strong indicator that these open job 
    opportunities may have more receptive potential populations. However, 
    Areas of Substantial Unemployment are only one example of a situation 
    in which the CO has discretion to order additional recruitment. This 
    discretion permits DOL to ensure the appropriateness and integrity of 
    the labor market test and determine the appropriate level of 
    recruitment based on the specific situation. The COs (with advice from 
    the SWAs, which are familiar with local employment patterns and real-
    time market conditions), are well-positioned to judge where additional 
    recruitment may or may not be required as well as the sources that 
    should be used by the employer to conduct such additional recruitment. 
    It is also within the CO's discretion to determine that such additional 
    efforts are unlikely to result in additional meaningful applications 
    for the job opportunity.
        Additional positive recruitment under this paragraph will be 
    conducted in addition to, and occur within the same time period as, the 
    circulation of the job order and the other mandatory employer-conducted 
    recruitment described above. Thus, additional recruitment will not 
    result in any delay in certification.
        Paragraph (b) provides that, if the CO elects to require additional 
    recruitment, the CO will describe the number and type of additional 
    recruitment efforts required. This paragraph also provides a non-
    exclusive list of the types of additional recruitment that may be 
    required by the CO, including, where appropriate: advertising on the 
    employer's Web site or another Web site; contact with additional 
    community-based organizations that have contact with potential worker 
    populations; additional contact with labor unions; contact with faith-
    based organizations; and reasonable additional print advertising. When 
    assessing the appropriateness of a particular recruitment method, the 
    CO will take into consideration all options at her/his disposal, 
    including relying on the SWA experience and expertise with local labor 
    markets, where appropriate, and will consider both the cost and the 
    likelihood that the additional recruitment will identify qualified and 
    available U.S. workers, and where appropriate opt for the least 
    burdensome method(s). CO-ordered efforts to contact community-based 
    organizations and/or One-Stop Career Centers under this section are in 
    addition to the requirements in Sec. Sec.  655.16 and 655.45.
    
    [[Page 24079]]
    
        Paragraph (c) provides that, where the CO requires additional 
    recruitment, the CO will specify the documentation or other supporting 
    evidence that must be maintained by the employer as proof that the 
    additional recruitment requirements were met. Documentation must be 
    maintained as required in Sec.  655.56.
    8. Sec.  655.47 Referrals of U.S. Workers
        Section 655.47 of this interim final rule requires that SWAs refer 
    for employment only individuals who have been informed of the material 
    terms and conditions of the job opportunity and are qualified and will 
    be available for employment. Unlike the 2008 rule, this interim final 
    rule does not require that the SWAs conduct employment (I-9) 
    eligibility verification.
        In light of limited resources, we have determined that the 
    requirement under the 2008 rule that SWAs conduct employment 
    eligibility verification of job applicants was duplicative of the 
    employer's responsibility under the INA. In addition, the INA provides 
    that SWAs may, but are not required to, conduct such verification for 
    those job applicants they refer to employers. DHS regulations permit 
    employers to rely on the employment eligibility verification 
    voluntarily performed by a State employment agency in certain limited 
    circumstances.
        The elimination of the requirement that SWAs conduct employment 
    eligibility verification will allow the SWAs to focus their staff and 
    resources on ensuring that U.S. workers who come to them are apprised 
    of job opportunities for which the employer seeks to hire H-2B workers, 
    which is one of the basic functions of the SWAs under their foreign 
    labor certification grants, and to ensure such workers are qualified 
    and available for the job opportunities. This does not mean that every 
    referral must be assisted by SWA staff. To the contrary, many H-2B 
    referrals are not staff-assisted but are instead self-referrals (e.g., 
    electronic job matching systems), and we have no intention of 
    interfering with the current processes established by most SWAs to 
    handle these job orders, since the material terms and conditions of 
    employment will be available for self-review by U.S. applicants. 
    However, to the extent that SWA staff is directly involved in a 
    referral, we expect that the referrals made would be only of qualified 
    workers. If staff are directly involved in the screening process, SWAs 
    will be required to ascertain that the unemployed U.S. applicants who 
    request referral to the job opportunity are sufficiently informed about 
    the job opportunity, including the start and end dates of employment, 
    and that they commit to accepting the job offer if extended by the 
    employer. We do not expect this to be an additional burden on SWA 
    staff.
        The Departments do not presume that the judgment of the SWAs as to 
    an applicant's qualifications is irrebuttable or a substitute for the 
    employer's business judgment with respect to any candidate's 
    suitability for employment. However, to the extent that the employer 
    does not hire a SWA referral who was screened and assessed as 
    qualified, the employer will have a heightened burden to demonstrate to 
    DOL that the applicant was rejected only for lawful, job-related 
    reasons.
    9. Sec.  655.48 Recruitment Report
        Consistent with the requirements of the 2008 rule, paragraph (a) 
    continues to require the employer to submit to the Chicago NPC a signed 
    recruitment report. Unlike the 2008 rule, however, this interim final 
    rule requires the employer to send the recruitment report on a date 
    specified by the CO in the Notice of Acceptance instead of at the time 
    of filing its Application for Temporary Employment Certification. This 
    change accommodates the new recruitment model under this interim final 
    rule under which the employer does not begin its recruitment until 
    directed by the CO in the Notice of Acceptance. In addition, paragraph 
    (a) clarifies that where recruitment is conducted by a job contractor 
    or its employer-client, both joint employers must sign the recruitment 
    report, consistent with Sec.  655.19(e).
        Paragraph (a) further details the information the employer is 
    required to include in the recruitment report, including the 
    recruitment steps undertaken and their results, as well as other 
    pertinent information. The provision requires the employer to provide 
    the name and contact information of each U.S. worker who applied or was 
    referred for the job opportunity. This reporting allows DOL to ensure 
    the employer has met its obligation and the agency has met its 
    responsibility to determine whether there were insufficient U.S. 
    workers who are qualified and available to perform the job for which 
    the employer seeks certification. In addition, when WHD conducts an 
    investigation, WHD may contact U.S. workers listed in the report to 
    verify the reasons given by the employer as to why they were not hired, 
    where applicable.
        Paragraph (b) requires the employer to update the recruitment 
    report throughout the referral period to ensure that the employer 
    accounts for contact with each prospective U.S. worker. The employer is 
    not required to submit the updated recruitment report to DOL, but is 
    required to retain the report and make it available in the event of a 
    post-certification audit, a WHD investigation, or upon request by the 
    CO.
        DOL notes that it continues to reserve the right to post any 
    documents received in connection with the Application for Temporary 
    Employment Certification and will redact information accordingly.
    
    G. Temporary Labor Certification Determinations
    
    1. Sec.  655.50 Determinations
        This section corresponds to 20 CFR 655.32(a) and (b) in the 2008 
    rule. Paragraph (a) generally authorizes the OFLC Administrator and 
    center-based COs to certify or deny Applications for Temporary 
    Employment Certification for H-2B workers. It also authorizes the 
    Administrator to redirect applications to the OFLC National Office. 
    Paragraph (b) requires the CO to determine whether to certify 
    (including partially certify) or deny an application. It requires the 
    CO to certify an application only when the employer has fully complied 
    with requirements for H-2B temporary labor certification, including the 
    criteria established in Sec.  655.51.
    2. Sec.  655.51 Criteria for Certification
        This section requires, as conditions of certification, that the 
    employer have a valid H-2B Registration and have demonstrated full 
    compliance with the requirements of this subpart. In making a 
    determination about the availability of U.S. workers for the job 
    opportunity, the CO will treat, as available, individuals whom the 
    employer rejected for any reason that was not lawful or job-related. 
    Paragraph (c) makes clear that DOL will not grant certification to 
    employers that have failed to comply with one or more sanctions or 
    remedies imposed by final agency actions under the H-2B program.
    3. Sec.  655.52 Approved Certification
        This section generally corresponds to 20 CFR 655.32(d) in the 2008 
    rule, but has been updated to better reflect current practices and 
    DOL's experience. In cases where the application is approved, this 
    interim final rule requires that the CO use electronic mail or other 
    next day delivery methods to send the Final Determination letter to the 
    employer and, when applicable, a copy to the employer's representative. 
    The requirement for next-day delivery is designed to add efficiency and 
    economy
    
    [[Page 24080]]
    
    to the certification process. The requirement to advise the employer's 
    attorney or agent, when applicable, is based on DOL's program 
    experience with complications or miscommunications that can arise 
    between employers and their agents or attorneys. Even when an employer 
    is represented, it makes sense for that employer to receive and 
    maintain the original, approved certification, as the employer attests 
    to and is primarily responsible for meeting the obligations created by 
    the Application for Temporary Employment Certification. Should the 
    Application for Temporary Employment Certification be filed 
    electronically, the employer must retain the approved temporary labor 
    certification. As noted earlier in the discussion about electronic 
    filing, upon receipt of the original certified ETA Form 9142B, the 
    employer or its agent or attorney, if applicable, must complete the 
    footer on the original Appendix B, retain the original Appendix B, and 
    submit a signed copy of Appendix B, together with the original 
    certified ETA Form 9142B directly to USCIS. Under the document 
    retention requirements in Sec.  655.56, the employer must retain a copy 
    of the temporary labor certification and the original signed Appendix 
    B.
    4. Sec.  655.53 Denied Certification
        This section generally corresponds to 20 CFR 655.32(e) in the 2008 
    rule, but has been updated in ways similar to Sec.  655.52, above. In 
    cases where the application is denied, this provision, as in Sec.  
    655.52, requires that the CO use electronic mail or other means of next 
    day delivery to send the Final Determination letter to the employer 
    and, when applicable, a copy to the employer's attorney or agent. The 
    Final Determination letter must state the reasons for the denial, and 
    cite the relevant regulatory provisions that govern. The letter must 
    also advise the employer of its right to seek administrative review of 
    the determination and of the consequences, should the employer elect 
    not to appeal.
    5. Sec.  655.54 Partial Certification
        This section generally corresponds to 20 CFR 655.32(f) in the 2008 
    rule. It grants the CO authority to issue a partial certification that 
    reflects either a shorter-than-requested period of need or a lower-
    than-requested number of H-2B workers, or both. For each qualified, 
    available U.S. worker the SWA has referred or who applies directly with 
    the employer, and whom the employer has accepted or has rejected for 
    reasons that are unlawful or unrelated to the job, the CO will reduce 
    by one the number of H-2B workers certified. To issue a partial 
    certification, the CO will amend the application and return it and a 
    Final Determination letter to the employer, with a copy to the 
    employer's representative. The letter must state the reasons for the 
    reduction, and governing legal authority; when appropriate, address the 
    availability of U.S. workers in the occupation; explain the employer's 
    right to seek administrative review; and describe the consequences, 
    should the employer elect not to appeal.
    6. Sec.  655.55 Validity of Temporary Employment Certification
        This section mirrors 29 CFR 503.18 and corresponds to 20 CFR 
    655.34(a) and (b) in the 2008 rule, establishing the period of time and 
    scope for which an Application for Temporary Employment Certification 
    is valid. Under this provision, a temporary labor certification is 
    valid only for the period of authorized employment. The certification 
    is also valid only for the number of H-2B positions, the area of 
    intended employment, the job classification and specific services, and 
    the employer listed on the approved application. The sponsoring 
    employer may not transfer the certification to another employer, except 
    where the other employer is a successor in interest to the sponsoring 
    employer. These limitations on validity are critical to the integrity 
    of the certification and the broader H-2B program. They are also 
    consistent with the prohibition on transfers of an H-2B Registration, 
    and with the features DOL has put in place for certifications in the 
    permanent program. See Labor Certification for the Permanent Employment 
    of Aliens in the United States; Reducing the Incentives and 
    Opportunities for Fraud and Abuse and Enhancing Program Integrity; 
    Final Rule, 72 FR 27904, 27918 (May 17, 2007).
    7. Sec.  655.56 Document Retention Requirements of H-2B Employers
        This section brings together recordkeeping requirements that 
    appeared in separate paragraphs throughout the 2008 rule, including 20 
    CFR 655.6(e), 655.10(i), and 655.15(c) and (j). These requirements are 
    similar to those in the WHD provisions of this interim final rule, at 
    29 CFR 503.17. Under Sec.  655.56, employers must retain documents and 
    records proving compliance with this subpart and the WHD regulation at 
    29 CFR part 503, including but not limited to the documents listed in 
    paragraph (c). Paragraph (c) lists, among other things, the H-2B 
    Registration, the H-2B Petition, documents related to recruitment of 
    U.S. workers, payroll records, and copies of contracts with agents or 
    recruiters. Paragraph (b) requires the employer to retain relevant 
    records for three years from the date of certification (for approved 
    applications), date of adjudication (for denied applications), or date 
    DOL received the employer's letter of withdrawal (for withdrawn 
    applications). Employers must be prepared to produce these records and 
    documents for DOL or for other federal agencies in the event of an 
    audit or investigation. Under paragraph (d), employers must make these 
    documents and records available to WHD within 72 hours following a 
    request. This interim final rule also provides that, if the Application 
    for Temporary Employment Certification and the H-2B Registration are 
    filed electronically, the employer must sign and retain a copy of each 
    adjudicated Application for Temporary Employment Certification, 
    including any approved modifications, amendments, or extensions.
        This requirement is substantively similar to the record retention 
    requirement currently in place for H-2B employers. In addition, 
    employers keeping records under this provision may keep those records 
    electronically. Hence, this requirement does not create significant 
    additional burden. Further, the records this provision covers serve a 
    critical purpose in the operation and integrity of the H-2B program. 
    For example, in the past, DOL has used employer records to make basic 
    decisions related to the certification, verify compliance with program 
    requirements, and confirm the nature of payments under contracts with 
    agents or recruiters.
    8. Sec.  655.57 Determinations Based on the Unavailability of U.S. 
    Workers
        This section addresses employers for which certified numbers have 
    been reduced due to the existence of qualified, available U.S. workers 
    who later fail to report for work or fail to stay for the period of the 
    contract. In such cases, the employer may request a new determination 
    from the CO, who must make a determination within 72 hours after 
    receiving the complete request. The employer must submit its request 
    directly to the CO, attach a statement signed by the employer, and 
    include contact information for every U.S. worker whom the employer 
    claims has become unavailable and the reason for nonavailability.
        If the CO denies a new determination, the employer may appeal. If 
    the CO cannot identify sufficient available U.S. workers, the CO will 
    grant the
    
    [[Page 24081]]
    
    employer's request for a new determination. However, even when the CO 
    makes a new determination, the employer may submit additional requests 
    for new determinations in the future.
    
    H. Post Certification Activities
    
        Sections 655.60 through 655.63 concern actions an employer may take 
    after an Application for Temporary Employment Certification has been 
    adjudicated, including making a request for extension of certification, 
    appealing a decision of the CO, and withdrawing an Application for 
    Temporary Employment Certification. In addition, this interim final 
    rule codifies the DOL's practice of maintaining a publicly-accessible 
    electronic database of employers that have applied for H-2B 
    certification.
    1. Sec.  655.60 Extensions
        Under the interim final rule, there will be instances when an 
    employer will have a reasonable need for an extension of the time 
    period that was not foreseen at the time the employer originally filed 
    the Application for Temporary Employment Certification. This provision 
    provides flexibility to the employer in the event of such circumstances 
    while maintaining the integrity of the certification and the 
    determination of temporary need.
        The provision requires that the employer submit its request to the 
    CO in writing and provide documentation showing that the extension is 
    needed and that the employer could not have reasonably foreseen the 
    need. Except in extraordinary circumstances, extensions are available 
    only to employers whose original certified period of employment is less 
    than the 9-month maximum period allowable in this subpart.\23\ 
    Extensions differ from amendments to the period of need because 
    extensions are requested after certification, while amendments are 
    requested before certification. Extensions will only be granted if the 
    employer demonstrates that the need for the extension arose from 
    unforeseeable circumstances, such as weather conditions or other 
    factors beyond the control of the employer (including unforeseen 
    changes in market conditions). If an employer receives an extension, 
    the employer must immediately provide a copy of the approved extension 
    to its workers. An employer denied an extension may appeal the decision 
    by following the procedures set forth in Sec.  655.61.
    ---------------------------------------------------------------------------
    
        \23\ If extraordinary circumstances warrant an extension beyond 
    the 9-month period, consistent with DHS regulations, the maximum 
    period of H-2B employment including the extension period generally 
    cannot exceed one year. See 8 CFR 214.2(h)(6)(ii)(B).
    ---------------------------------------------------------------------------
    
    2. Sec.  655.61 Administrative Review
        This provision sets forth the procedures for BALCA review of a 
    decision of a CO. Subparagraph (a) provides the timeframe within which 
    requests must be made and sets forth the various requirements related 
    to the request, including that requests must contain only legal 
    argument and be limited to evidence that was actually submitted to the 
    CO before the date the CO's determination was issued. This provision 
    does not provide for de novo review.
        The substance of this provision is the same as that in the 2008 
    rule. However, this provision does not refer to the particular decision 
    of the CO that may be appealed, such as the denial of temporary labor 
    certification. Rather, this provision refers generally to the decisions 
    of the CO that may be appealed, where authorized in this subpart. These 
    decisions are identified in the section of the interim final rule that 
    discusses the CO's authority and procedure for making that particular 
    decision. Additionally, this provision increases from 5 business days 
    to 7 business days: the time in which the CO will assemble and submit 
    the appeal file in Sec.  655.61(b); the time in which the CO may file a 
    brief in Sec.  655.61(c); and the time BALCA should provide a decision 
    upon the submission of the CO's brief in Sec.  655.61(f).
    3. Sec.  655.62 Withdrawal of an Application for Temporary Employment 
    Certification
        Under this provision, an employer may withdraw an Application for 
    Temporary Employment Certification before it is adjudicated. Such 
    request must be made in writing.
    4. Sec.  655.63 Public Disclosure
        This provision codifies DOL's practice of maintaining, apart from 
    the electronic job registry, an electronic database accessible to the 
    public containing information on all employers that apply for H-2B 
    temporary labor certifications. The database will continue to include 
    non-privileged information such as the number of workers the employer 
    requests on an application, the date an application is filed, and the 
    final disposition of an application. The continued accessibility of 
    such information will increase the transparency of the H-2B program and 
    process and provide information to those currently seeking such 
    information from the Departments through FOIA requests.
    
    I. Integrity Measures
    
        Sections 655.70 through 655.73 have been grouped together under the 
    heading Integrity Measures, describing those actions DOL plans to take 
    to ensure that an Application for Temporary Employment Certification 
    filed with DOL in fact complies with the requirements of this subpart.
        The Departments have not elected to establish procedures to allow 
    for workers and organizations of workers to intervene and participate 
    in the audit, revocation, and debarment processes. Such procedures 
    would be administratively infeasible and inefficient and would cause 
    numerous delays in the adjudication process. For example, we would have 
    to identify which workers and/or organizations of workers should 
    receive notice and should be allowed to intervene. Processing delays 
    would be exacerbated by the fact that once identified, we would have to 
    provide additional time and resources to notify the parties and provide 
    them with the opportunity to prepare and present their information, 
    regardless of whether they have any specific interest or information 
    about the particular proceedings at hand. Workers and worker advocates 
    continue to have the opportunity to contact the OFLC or WHD with any 
    findings or concerns that they have about a particular employer or 
    certification, even without a formal notice and intervention process in 
    place.
    1. Sec.  655.70 Audits
        This section outlines the process under which the CO will conduct 
    audits of adjudicated temporary employment certification applications. 
    These provisions are similar to the 2008 rule. The Departments' mandate 
    to ensure that qualified workers in the United States are not available 
    and that the foreign worker's employment will not adversely affect 
    wages and working conditions of similarly employed U.S. workers serves 
    as the basis for the Departments' authority to audit adjudicated 
    applications, even if the employer's application was ultimately 
    withdrawn after adjudication or denied. Adjudicated applications 
    include those that have been certified, denied, or withdrawn after 
    certification. There is real value in auditing those applications 
    because they could be used to establish a record of employer compliance 
    or non-compliance with program requirements and because the information 
    they contain assists DOL in determining whether it needs to further 
    investigate or debar an employer or its
    
    [[Page 24082]]
    
    agent or attorney from future labor certifications.
        Paragraph (a) provides the CO with sole discretion to choose which 
    Applications for Temporary Employment Certification will be audited, 
    including selecting applications using a random assignment method. When 
    an Application for Temporary Employment Certification is selected for 
    audit, paragraph (b) requires the CO to send a letter to the employer 
    and, if appropriate, a copy of the letter to the employer's attorney or 
    agent, listing the documentation the employer must submit and the date 
    by which the documentation must be sent to the CO. Paragraph (b) also 
    provides that an employer's failure to fully comply with the audit 
    process may result in the revocation of its certification or in 
    debarment, under Sec. Sec.  655.72 and 655.73, respectively, or require 
    the employer to undergo assisted recruitment in future filings of an 
    Application for Temporary Employment Certification, under Sec.  655.71.
        Paragraph (c) permits the CO to request additional information and/
    or documentation from the employer as needed in order to complete the 
    audit. Paragraph (d) provides that the CO may provide any findings made 
    or documents received in the course of the audit to DHS or other 
    enforcement agencies, as well as WHD. The CO may also refer any 
    findings that an employer discriminated against a qualified U.S. worker 
    to the Department of Justice, Civil Rights Division, Office of Special 
    Counsel for Immigration-Related Unfair Employment Practices.
    2. Sec.  655.71 CO-Ordered Assisted Recruitment
        Paragraph (a) of this provision permits the CO to require an 
    employer to participate in assisted recruitment for any future 
    Application for Temporary Employment Certification, if the CO 
    determines as a result of an audit or otherwise that a violation that 
    does not warrant debarment has occurred. This provision will also 
    assist those employers that, due to either program inexperience or 
    confusion, have made mistakes in their Application for Temporary 
    Employment Certification that indicate a need for further assistance 
    from DOL.
        Under paragraph (b) the CO will notify the employer (and its 
    attorney or agent, if applicable) in writing of the requirement to 
    participate in assisted recruitment for any future filed Application 
    for Temporary Employment Certification for a period of up to 2 years. 
    The assisted recruitment will be at the discretion of the CO, and 
    determined based on the unique circumstances of the employer.
        As set forth in paragraph (c), the assisted recruitment may consist 
    of, but is not limited to, reviewing the employer's advertisements 
    before posting and directing the employer where such advertisements are 
    to be placed and for how long, requiring the employer to conduct 
    additional recruitment, requesting and reviewing copies of all 
    advertisements after they have been posted, and requiring the employer 
    to submit proof of contact with past U.S. workers, and proof of SWA 
    referrals of U.S. workers. If an employer materially fails to comply 
    with the requirements of this section, paragraph (d) provides that the 
    employer's application will be denied and the employer may be debarred 
    from future program participation under Sec.  655.73.
    3. Sec.  655.72 Revocation
        Under this section, OFLC can revoke an approved H-2B temporary 
    labor certification under certain conditions, including where there is 
    fraud or willful misrepresentation of a material fact in the 
    application process as defined in Sec.  655.73(d), or a substantial 
    failure to comply with the terms and conditions of the certification, 
    as defined in Sec.  655.73(d) and (e). Discussion of the standards used 
    in determining willful misrepresentations and substantial failures is 
    discussed in the preamble to 29 CFR 503.19 (Violations) of this interim 
    final rule. OFLC may also revoke a certification upon determining that 
    the employer failed to cooperate with a DOL investigation or with a DOL 
    official performing an investigation, inspection, audit, or law 
    enforcement function, or that the employer failed to comply with one or 
    more sanctions or remedies imposed by WHD, or with one or more 
    decisions or orders of the Secretary of Labor, with respect to the H-2B 
    program.
        The procedures for revocation begin with OFLC sending the employer 
    a Notice of Revocation. Upon receiving the Notice of Revocation, the 
    employer has two options: (1) It may submit rebuttal evidence or (2) 
    appeal the revocation under the procedures in Sec.  655.61. If the 
    employer does not file rebuttal evidence or an appeal within 10 
    business days of the date of the Notice of Revocation, the Notice will 
    be deemed final agency action and will take effect immediately at the 
    end of the 10-day period. If the employer chooses to file rebuttal 
    evidence, and the employer timely files that evidence, OFLC will review 
    it and inform the employer of the final determination on revocation 
    within 10 business days of receiving the rebuttal evidence.
        If OFLC determines that the certification should be revoked, OFLC 
    will inform the employer of its right to appeal under Sec.  655.61. The 
    employer must file the appeal of OFLC's determination within 10 
    business days, or OFLC's decision becomes the final decision of the 
    Secretary and will take effect immediately after the 10-day period.
        If the employer chooses to appeal either in lieu of submitting 
    rebuttal evidence, or after OFLC makes a determination on the rebuttal 
    evidence, the appeal will be conducted under the procedures contained 
    in Sec.  655.61. The timely filing of either the rebuttal evidence or 
    an administrative appeal stays the revocation pending the outcome of 
    those proceedings. If the temporary labor certification is ultimately 
    revoked, OFLC will notify DHS and the Department of State.
        Section 655.72(c) lists an employer's continuing obligations to its 
    H-2B and corresponding workers if the employer's H-2B certification is 
    revoked. The obligations include reimbursement of actual inbound 
    transportation, visa, and other expenses (if they have not been paid), 
    payment of the workers' outbound transportation expenses, payment to 
    the workers of the amount due under the three-fourths guarantee; and 
    payment of any other wages, benefits, and working conditions due or 
    owing to workers under this subpart.
        When an employer's certification is revoked, the revocation applies 
    to that particular certification only; violations relating to a 
    particular certification will not be imputed to an employer's other 
    certifications in which there has been no finding of employer 
    culpability. However, in some situations, OFLC may revoke all of an 
    employer's existing labor certifications where the underlying violation 
    applies to all of the employer's certifications. For instance, if OFLC 
    finds that the employer meets either the basis for revocation in 
    subparagraph (a)(3) of this section (failure to cooperate with a DOL 
    investigation or with a DOL official performing an investigation, 
    inspection, audit, or law enforcement function) or in subparagraph 
    (a)(4) of this section (failure to comply with sanctions or remedies 
    imposed by WHD or with decisions or orders of the Secretary of Labor 
    with respect to the H-2B program), this finding could provide a basis 
    for revoking any and all of the employer's existing labor 
    certifications. Additionally, where OFLC finds that violations of 
    paragraphs (a)(1) or (a)(2) of this section affect all of the
    
    [[Page 24083]]
    
    employer's certifications, such as where an employer misrepresents its 
    legal status, OFLC also may revoke that employer's certifications. 
    Lastly, where an employer's certification has been revoked, OFLC would 
    take a more careful look at the employer's other certifications to 
    determine if similar violations exist that would warrant their 
    revocation.
        The Departments recognize the seriousness of revocation as a 
    remedy; accordingly, the bases for revocation reflect violations that 
    significantly undermine the integrity of the H-2B program. OFLC intends 
    to use the authority to revoke only when an employer's actions warrant 
    such a severe consequence. OFLC does not intend to revoke 
    certifications if an employer commits minor mistakes.
     4. Sec.  655.73 Debarment
        This interim final rule revises the debarment provision from the 
    2008 rule to strengthen the enforcement of H-2B labor certification 
    requirements and to clarify the basis under which debarment may be 
    applied. Under Sec.  655.73(a), OFLC may debar an employer if it finds 
    that the employer: willfully misrepresented a material fact in its H-2B 
    Registration, approved Application for Temporary Employment 
    Certification, or H-2B Petition; substantially failed to meet any of 
    the terms and conditions of H-2B Registration, approved Application for 
    Temporary Employment Certification, or H-2B Petition; or willfully 
    misrepresented a material fact to the Department of State during the 
    visa application process. Section 655.73(a)(2) defines a ``substantial 
    failure'' to mean a willful failure to comply that constitutes a 
    significant deviation from the terms and conditions of such documents, 
    in accordance with the statutory definition of ``substantial failure'' 
    in 8 U.S.C. 1184(c)(14)(D), INA section 214(c)(14)(D).
        Section 655.73(d) provides the standard for determining whether a 
    violation was willful. Section 655.73(e) describes the factors that 
    OFLC may consider in determining whether a violation constitutes a 
    significant deviation from the terms and conditions of the H-2B 
    Registration, approved Application for Temporary Employment 
    Certification, or H-2B Petition. This list of factors is not exclusive, 
    but it offers some guidance as to what OFLC generally considers when 
    determining whether a violation would warrant debarment. The factors 
    are the same factors used by WHD to determine whether a violation is 
    significant under 29 CFR 503.19(c) of this interim final rule. The 
    preamble for 29 CFR 503.19 explains these definitions in detail.
        Section 655.73(f) provides a comprehensive but not exhaustive list 
    of violations that would warrant debarment where the standards in Sec.  
    655.73(d)-(e) are met. This is an updated list of debarrable violations 
    from the 2008 rule. The most significant differences are that a single 
    act, as opposed to a pattern or practice of such actions, would be 
    sufficient to merit debarment and that the following violations would 
    be considered debarrable:
         Improper layoff or displacement of U.S. workers or workers 
    in corresponding employment (Sec.  655.73(f)(4));
         A violation of the requirements of Sec.  655.20(o) or (p) 
    concerning fee shifting and related matters (Sec.  655.73(f)(10));
         A violation of any of the anti-discrimination provisions 
    listed in Sec.  655.20(r) (Sec.  655.73(f)(11));
         Failure to comply with the assisted recruitment process 
    (Sec.  655.73(f)(7)); and
         A material misrepresentation of fact during the 
    registration or application process (Sec.  655.73(f)(14)).
        The procedures for debarment are similar to the debarment 
    procedures contained in the 2008 rule. They begin with OFLC sending the 
    employer, attorney, or agent a Notice of Debarment. Upon receiving the 
    Notice of Debarment, the party has two options: It may submit rebuttal 
    evidence or request a hearing. If the party does not file rebuttal 
    evidence or request a hearing within 30 days, the Notice will be deemed 
    final agency action and will take effect immediately at the end of the 
    30-day period. If the party timely files rebuttal evidence, OFLC will 
    review it and inform the party of the final determination on debarment 
    within 30 days of receiving the rebuttal evidence. If OFLC determines 
    that the party should be debarred, OFLC will inform the party of its 
    right to request a hearing. The party must request a hearing of OFLC's 
    determination within 30 days, or OFLC's decision becomes the final 
    decision of the Secretary of Labor and will take effect immediately at 
    the end of the 30-day period. The timely filing of either the rebuttal 
    evidence or a hearing request stays the debarment pending the outcome 
    of those proceedings.
        If the employer chooses to request a hearing either in lieu of 
    submitting rebuttal evidence, or after OFLC makes a determination on 
    the rebuttal evidence, the hearing will be conducted before an 
    Administrative Law Judge (ALJ) under the procedures contained in 29 CFR 
    part 18. After the hearing, the ALJ must affirm, reverse, or modify 
    OFLC's determination. The ALJ's decision becomes the final agency 
    action unless either party seeks review of the decision with the 
    Administrative Review Board (ARB) within 30 days. If the ARB declines 
    to accept the petition or does not issue a notice accepting the 
    petition for review within 30 days, the ALJ's decision becomes the 
    final agency action. If the ARB accepts the petition for review, the 
    ALJ's decision is stayed until the ARB issues a decision.
        Paragraph (h) of this section provides that copies of final DOL 
    debarment decisions will be forwarded to DHS and DOS promptly. See also 
    8 CFR 214.1(k) (stating that upon debarment by the Department of Labor, 
    USCIS may deny any petition filed by that petitioner for nonimmigrant 
    status under section 101(a)(15)(H) for a period of at least 1 year but 
    not more than 5 years). Where it is warranted, DOL will notify 
    additional agencies, such as DOJ, of the violations.
        WHD also has independent debarment authority under this interim 
    final rule. See 29 CFR 503.24 and the corresponding preamble. Section 
    655.73(h) clarifies that while WHD and OFLC will have concurrent 
    debarment jurisdiction, the two agencies will coordinate their 
    activities so that a specific violation for which debarment is imposed 
    will be cited in a single debarment proceeding. An important 
    distinction between the OFLC and WHD debarment procedures is that the 
    WHD debarment procedures do not provide for a 30-day rebuttal period 
    because WHD debarments arise from investigations during which the 
    employer has ample opportunity to submit any evidence and arguments in 
    its favor.
        Finally, Sec.  655.73(i) provides that an employer, agent, or 
    attorney who is debarred by OFLC or WHD from the H-2B program will also 
    be debarred from all other foreign labor certification programs 
    administered by DOL for the time period in the final debarment 
    decision. Many employers, agents and attorneys participate in more than 
    one foreign labor certification program administered by DOL. However, 
    under the 2008 rule, a party that was debarred under the H-2B program 
    could continue to file applications under DOL's other foreign labor 
    programs. Under this interim final rule DOL will refuse to accept 
    applications filed by or on behalf of a debarred party under the H-2B 
    program in any of DOL's foreign labor certification programs.
        Although DOL does not have the authority to routinely seek 
    debarment of entities that are not listed on the ETA
    
    [[Page 24084]]
    
    Form 9142, in appropriate circumstances, DOL may pierce the corporate 
    veil in order to more effectively remedy the violations found. Piercing 
    the corporate veil may be necessary to foreclose the ability of 
    individual principals of a company or legal entity to reconstitute 
    under another business entity.
    Debarment of Agents and Attorneys
        This interim final rule does not limit debarment to employers. 
    Under Sec.  655.73(b), agents and attorneys of the employer may be 
    debarred for their own violations as well as their participation in an 
    employer's violation (under the 2008 rule agents could only be debarred 
    for their participation in an employer's violation). As discussed under 
    Sec.  655.8, the Departments have had concerns about the role of agents 
    in the program, and whether their presence and participation have 
    contributed to problems with program compliance, such as the passing on 
    of prohibited costs to employees. However, the Departments recognize 
    that the vast majority of employers file H-2B temporary employment 
    certification applications using an agent, and that many of these 
    agents are intimately familiar with the H-2B program requirements, and 
    help guide employers through the process. The Departments believe that, 
    in order to improve program integrity and compliance, these agents and 
    attorneys should be accountable for their own program violations, just 
    as their employer-clients are.
        The agents and attorneys who file applications on behalf of 
    employers certify under penalty of perjury on the ETA Form 9142B 
    Application for Temporary Employment Certification that everything 
    stated on the application is true and correct. However, for example, a 
    bad actor agent may pass on prohibited fees to workers in violation of 
    the prohibition on collecting such fees in Sec.  655.20(o) and 29 CFR 
    503.16(o) while affirming that everything on the application is true 
    and correct, including the employer's declaration that its agents and/
    or attorneys have not sought or received prohibited fees. In addition, 
    Sec.  655.20(p) and 29 CFR 503.16(p) require an employer to 
    contractually prohibit an agent or recruiter from seeking or receiving 
    payments from prospective employees. This creates a potential loophole, 
    under which an employer may contractually prohibit the attorney or 
    agent from collecting prohibited fees, yet the attorney or agent 
    independently charges the workers for prohibited fees. In this 
    situation, the employer will not be debarred for the independent 
    violation of the agent or attorney because the employer has not 
    committed any violation, provided the employer did not know or have 
    reason to know of such independent violation. The 2008 rule did not 
    provide a mechanism for holding the attorney or agent accountable for 
    such a violation absent a link to an employer violation. This interim 
    final rule closes that loophole by applying debarment to independent 
    violations by attorneys and agents, recognizing that agents and 
    attorneys should be held accountable for their own independent willful 
    violations of the H-2B program, separate from an employer's violation. 
    This concept applies throughout the program sanction sections, 
    including the OFLC and WHD debarment provisions at Sec.  655.73(b) and 
    29 CFR 503.24(b), as well as the WHD sanctions and remedies section, as 
    discussed further in the preamble at 29 CFR 503.20. These enhanced 
    compliance measures apply only to the agents and attorneys who are 
    signatories on the ETA Form 9142, as these agents and attorneys have 
    become directly involved with the H-2B program and have made 
    attestations to DOL.
        The Departments do not intend to make attorneys or agents strictly 
    liable for debarrable offenses committed by their employer clients, nor 
    do we intend to debar attorneys who obtain privileged information 
    during the course of representation about their client's violations or 
    whose clients disregard their legal advice and commit willful 
    violations. DOL will be sensitive to the facts and circumstances in 
    each particular instance when considering whether an attorney or agent 
    has participated in an employer's violation; DOL will seek to debar 
    only those attorneys or agents who work in collusion with their 
    employer-clients to either willfully misrepresent material facts or 
    willfully and substantially fail to comply with the regulations. 
    Similarly, where employers have colluded with their agents or attorneys 
    to commit willful violations, we will consider debarment of the 
    employer as well.
        OFLC and WHD publicly post a list of employers, agents, or 
    attorneys who have been debarred under all of the labor certification 
    programs. Where circumstances warrant, DOL may decide to report 
    debarred attorneys to State bar associations using the information 
    provided in the ETA Form 9142, which provides a field for the 
    attorney's State bar association number and State of the highest court 
    where the attorney is in good standing.
    Period of Debarment
        Under this interim final rule, an employer, attorney, or agent may 
    not be debarred for less than 1 year nor more than 5 years from the 
    date of the final debarment decision. This increases the maximum 
    debarment period, which was 3 years in the 2008 rule. The 1 to 5-year 
    range for the period of debarment is consistent with the H-2B 
    enforcement provisions in the INA, and the Departments believe that it 
    is appropriate to apply the same standard in our regulations. 8 U.S.C. 
    1184(c)(14)(A)(ii), INA section 214(c)(14)(A)(ii); see also 8 CFR 
    214.1(k). The Departments do not intend to debar employers, attorneys, 
    or agents who make minor, unintentional mistakes in complying with the 
    program, but rather those who commit a willful misrepresentation of a 
    material fact, or a substantial failure to meet the terms and 
    conditions, in the H-2B Registration, Application for Prevailing Wage 
    Determination, Application for Temporary Employment Certification, or 
    H-2B Petition. Additionally, just because OFLC has the authority to 
    debar a party for up to 5 years does not mean that would be the result 
    for all debarment determinations, as OFLC retains the discretion to 
    determine the appropriate period of debarment based on the severity of 
    the violation.
        The debarment timeline varies greatly depending on the timing of 
    when violations are discovered through OFLC audits, WHD targeted 
    investigations, or WHD investigations initiated by complaints. In other 
    words, there is no one time within a season when a debarment proceeding 
    might be initiated. Additionally, various factors affect the timing of 
    an investigation that may lead to debarment, including the complexity 
    of the case and the number of violations involved. Parties subject to 
    debarment also have the right to appeal the debarment decision. Thus, 
    DOL cannot ensure any particular timing for the debarment process, or 
    that the timing would align before an employer obtains authorization to 
    bring in H-2B workers for another season.
    
    V. Addition of 29 CFR Part 503
    
        Effective January 18, 2009, pursuant to INA section 214(c)(14)(B), 
    DHS transferred to DOL enforcement authority for the provisions in 
    section 214(c)(14)(A)(i) of the INA that govern petitions to admit H-2B 
    workers. See also 8 CFR 214.2(h)(6)(ix) (stating that the Secretary of 
    Labor may investigate employers to enforce compliance with the 
    conditions of a petition and Department of Labor-approved
    
    [[Page 24085]]
    
    temporary labor certification to admit or otherwise provide status to 
    an H-2B worker). This enforcement authority has been further delegated 
    within the DOL to the Administrator of WHD.\24\ The 2008 rule contained 
    the regulatory provisions governing ETA's processing of the employer's 
    Application for Temporary Employment Certification and WHD's 
    enforcement responsibilities in ensuring that the employer had not 
    willfully misrepresented a material fact or substantially failed to 
    meet a condition of such application or the DHS Form I-129, Petition 
    for a Nonimmigrant Worker for an H-2B worker.
    ---------------------------------------------------------------------------
    
        \24\ Sec'y of Labor Order No. 01-2014 (Dec. 19, 2014).
    ---------------------------------------------------------------------------
    
        The Departments have carefully reviewed the 2008 rule, and this 
    interim final rule provides substantive changes to both the 
    certification and enforcement processes to enhance protection of U.S. 
    and H-2B workers.
        This interim final rule includes a new part, 29 CFR part 503, to 
    further define and clarify the protections for workers. This part and 
    20 CFR part 655, subpart A, have added workers in corresponding 
    employment to the protected worker group, imposed additional 
    recruitment obligations and employer obligations for laid off U.S. 
    workers, and increased wage protections for H-2B workers and workers in 
    corresponding employment. Additionally, the Departments have enhanced 
    WHD's enforcement role in administrative proceedings following a WHD 
    investigation, such as by allowing WHD to pursue debarment rather than 
    simply recommending to ETA that it debar an employer as it did under 
    the 2008 rule.
        To ensure consistency and clear delineation of responsibilities 
    between DOL agencies implementing and enforcing H-2B provisions, this 
    new part 503 was written in close collaboration with ETA and is being 
    published concurrently with ETA's interim final rule in 20 CFR part 
    655, subpart A, to amend the employer certification process.
    
    A. General Provisions and Definitions
    
        Sections 503.0 through 503.8 provide general background information 
    about the H-2B program and its operation. Section 503.1 is similar to 
    the 2008 rule provision at 20 CFR 655.1; it explains the standards 
    governing the H-2B program, the respective roles of ETA and WHD, and 
    the consultative role played by DOL. Section 503.2 is similar to the 
    2008 rule provision at 20 CFR 655.2; it explains in particular that WHD 
    does not enforce compliance with the provisions of the H-2B program in 
    the Territory of Guam. Section 503.3 describes how DOL will coordinate 
    both internally and with other agencies.
    1. Sec.  503.4 Definition of Terms
        This section contains definitions that are identical to those 
    contained in 20 CFR part 655, subpart A, except that this section 
    contains only those definitions applicable to this part. The preamble 
    to 20 CFR 655.5 contains the relevant discussion of these definitions.
    2. Sec.  503.5 Temporary Need
        This section mirrors the requirements set forth in 20 CFR 655.6; 
    the preamble to that section includes a full discussion of this 
    provision.
    3. Sec.  503.6 Waiver of Rights Prohibited
        This section prohibits an employer from seeking to have workers 
    waive or modify any rights granted them under these regulations. Under 
    this provision, any agreement purporting to waive or modify such rights 
    is void, with limited exceptions. The Departments recognize the 
    vulnerability of foreign H-2B workers, and believe that the non-waiver 
    principle is important to ensure that unscrupulous employers do not 
    induce waiver of rights under the program. Such waiver would also 
    undermine the required H-2B wages and working conditions, which are 
    necessary to prevent an adverse effect on U.S. workers. This provision 
    is also consistent with similar prohibitions against waiver of rights 
    under other laws, such as the Family and Medical Leave Act, see 29 CFR 
    825.220(d), and the H-2A program, see 29 CFR 501.5.
    4. Sec.  503.7 Investigation Authority of Secretary of Labor
        This section retains the authority established under 20 CFR 655.50 
    of the 2008 rule, and affirms WHD's authority to investigate employer 
    compliance with these regulations and WHD's obligation to protect the 
    confidentiality of complainants. This section also discusses the 
    reporting of violations. Complaints may be filed by calling WHD at 866-
    4US-WAGE or by contacting a local WHD office. Contact information for 
    local offices is available online at http://www.dol.gov/whd/america2.htm.
    5. Sec.  503.8 Accuracy of Information, Statements, Data
        This section notes that information, statements, and data submitted 
    in compliance with 8 U.S.C. 1184(c), INA section 214(c), or these 
    regulations are subject to 18 U.S.C. 1001, under which entities that 
    make false representations to the government are subject to penalties, 
    including a fine of up to $250,000 and/or up to 5 years in prison.
    
    B. Enforcement Provisions
    
    1. Sec.  503.15 Enforcement
        This section provides that the investigation, inspection, and law 
    enforcement functions that carry out the provisions of 8 U.S.C. 
    1184(c), INA section 214(c), and the regulations in this interim final 
    rule pertain to the employment of H-2B workers, any worker in 
    corresponding employment, or any U.S. worker improperly rejected for 
    employment or improperly laid off or displaced. WHD investigates 
    complaints filed by both foreign and U.S. workers affected by the H-2B 
    program, as well as concerns raised by other federal agencies, such as 
    DHS or DOS, regarding particular employers and agents. WHD also 
    conducts targeted or directed (i.e., not complaint-based) 
    investigations of H-2B employers to evaluate program compliance. WHD's 
    enforcement authority is outlined in the preamble under 20 CFR 655.2 
    and the addition of 29 CFR part 503, and was discussed in detail in the 
    2008 rule, 73 FR 78020, 78046-47 (civil monetary penalties and 
    remedies). The Departments reaffirm that DOL--and within DOL, WHD--is 
    authorized to conduct the enforcement activities described in this 
    interim final rule.
        Corresponding workers, as defined under 20 CFR 655.5, are included 
    in these enforcement provisions in order to ensure that U.S. workers 
    are not adversely affected by the employment of H-2B workers. The 
    preamble at 20 CFR 655.5 discusses the rationale for including 
    corresponding workers in this interim final rule. The Departments 
    believe that giving corresponding workers this means of redress is 
    critical to effectuating their mandate to ensure that the certification 
    and employment of H-2B aliens does not harm similarly-situated U.S. 
    workers. Further, it helps to prevent situations where U.S. workers who 
    are employed alongside H-2B workers are not afforded the pay, benefits, 
    and worker protections that their H-2B counterparts enjoy.
    2. Sec.  503.16 Assurances and Obligations of H-2B Employers
        The assurances and obligations described in this section are 
    identical to those in 20 CFR 655.20. The preamble to 20 CFR 655.20 
    contains the relevant discussion of the assurances and obligations for 
    employers participating in the H-2B program.
    
    [[Page 24086]]
    
    3. Sec.  503.17 Document Retention Requirements of H-2B Employers
        The document retention requirements in this section are similar to 
    those in 20 CFR 655.56, with minor differences related to OFLC's and 
    WHD's separate interests. The preamble to 20 CFR 655.56 discusses these 
    recordkeeping requirements. Employers must retain documents and records 
    proving compliance with the regulations, including but not limited to 
    the specific documents listed in this section that require, for 
    example, retention of documentation showing employers' recruitment 
    efforts, workers' earnings, and reimbursement of transportation and 
    subsistence costs incurred by workers. This section does not require 
    employers to create any new documents, but simply to preserve those 
    documents that are already required for participation in the H-2B 
    program. The Departments believe that these documentation retention 
    requirements and a retention period of 3 years will be sufficient for 
    purposes of WHD's enforcement responsibilities in this interim final 
    rule, which, as discussed in the preamble introducing this part, have 
    been augmented by the addition of workers in corresponding employment 
    to the protected worker group, additional recruitment obligations and 
    employer obligations for laid off U.S. workers, and increased wage 
    protections for H-2B workers and workers in corresponding employment.
        Employers are required to make such records available to WHD within 
    72 hours following a request by WHD. This time frame is the same under 
    the FLSA, where employers who maintain records at a central 
    recordkeeping office, other than in the place(s) of employment, are 
    required to make records available within 72 hours following notice 
    from WHD. See 29 CFR 516.7. This provision, which has been in place for 
    decades, has not created undue burden for employers; indeed, as many H-
    2B employers are likely covered by the FLSA, this provision results in 
    no additional burden. A full discussion of the use of electronic 
    records can be found in the preamble to 20 CFR 655.56.
    4. Sec.  503.18 Validity of Temporary Labor Certification
        This section mirrors 20 CFR 655.55, and corresponds to 20 CFR 
    655.34 (a) and (b) in the 2008 rule, providing the time frame and scope 
    for which an Application for Temporary Employment Certification is 
    valid. It explains that the temporary labor certification is only valid 
    for the period of time between the beginning and ending dates of 
    employment, and is only valid for the number of H-2B positions, the job 
    classification and specific services to be performed, and the employer 
    listed on the certification. Further, the certification may not be 
    transferred to another employer unless that employer is a successor in 
    interest to the employer to which the certification was issued.
    5. Sec.  503.19 Violations
        Under this section, the Departments specify the types of violations 
    that may be cited as a result of an investigation. However, the 
    definitions and concepts used in this section apply to all violations 
    under the H-2B program, regardless of whether the violation results in 
    revocation imposed by OFLC pursuant to 20 CFR 655.72, debarment imposed 
    by OFLC pursuant to 20 CFR 655.73 or WHD pursuant to Sec.  503.24, 
    monetary or other remedies assessed by WHD pursuant to Sec.  503.20, or 
    civil money penalties assessed by WHD pursuant to Sec.  503.23.
        Under paragraphs (a)(1) and (3) of this section, a violation may 
    consist of a willful misrepresentation of a material fact on the H-2B 
    Registration, the Application for Temporary Employment Certification, 
    or the H-2B Petition, or to the Department of State during the visa 
    application process. Under paragraph (a)(2) of this section, a 
    violation may consist of a substantial failure to meet any of the 
    conditions of the H-2B Registration, Application for Temporary 
    Employment Certification, or H-2B Petition. A ``substantial failure'' 
    is defined as ``a willful failure to comply that constitutes a 
    significant deviation from the terms and conditions of such 
    documents.''
        Violations under the H-2B program, both in the 2008 rule and this 
    interim final rule, have been defined in accordance with the INA's 
    provisions regarding H-2B violations. Specifically, INA section 
    214(c)(14)(A), 8 U.S.C. 1184(c)(14)(A), sets forth two potential 
    violations under the H-2B program: (1) ``a substantial failure to meet 
    any of the conditions of the petition'' and (2) ``a willful 
    misrepresentation of a material fact in such petition.'' The INA 
    further defines a ``substantial failure'' to be a ``willful failure to 
    comply . . . that constitutes a significant deviation from the terms 
    and conditions of a petition.'' 8 U.S.C. 1184(c)(14)(D), INA section 
    214(c)(14)(D). The H-2B Petition includes the approved Application for 
    Temporary Employment Certification. See Sec.  503.4; 20 CFR 655.5.
        Based on this statutory language, it is the Departments' view that 
    non-willful violations are not cognizable under the H-2B program. In 
    this interim final rule, the basis for determining violations continues 
    to be either a misrepresentation of material fact or a substantial 
    failure to comply with terms and conditions, both of which will be 
    determined to be a violation if the evidence surrounding the violation 
    establishes that it is willful. See Sec.  503.19(a)(1) & (2) (WHD 
    violations, which lead to remedies, civil monetary penalties, and/or 
    debarment), 20 CFR 655.72(a)(1) & (2) (OFLC revocation), 20 CFR 
    655.73(a)(1)-(3) (OFLC debarment). Paragraph (b) of this section sets 
    out when a violation qualifies as willful. To determine whether a 
    violation is willful, DOL will consider whether the employer, attorney, 
    or agent knows its statement is false or that its conduct is in 
    violation, or shows reckless disregard for the truthfulness of its 
    representation or for whether its conduct satisfies the required 
    conditions. See Sec.  503.19(b); 20 CFR 655.73(d). This is consistent 
    with the longstanding definition of willfulness. See McLaughlin v. 
    Richland Shoe Co., 486 U.S. 128 (1988); see also Trans World Airlines, 
    Inc. v. Thurston, 469 U.S. 111 (1985).
        Further, tracking the INA language, 8 U.S.C. 1184(c)(14)(D), INA 
    section 214(c)(14)(D), a substantial failure continues to be defined as 
    willful as well as a significant deviation from the terms or conditions 
    of a petition. See Sec.  503.19(a)(2), 20 CFR 655.72(a)(2), 20 CFR 
    655.73(a)(2). Paragraph (c) of this section provides guidance on 
    determining whether a failure to comply constitutes a significant 
    deviation from the terms and conditions of the H-2B Registration, 
    Application for Temporary Employment Certification, or H-2B Petition, 
    and provides a non-exhaustive list of factors that WHD may consider. 
    The factors are the same factors used by OFLC to determine whether a 
    substantial failure is a ``significant deviation'' for purposes of 
    debarment under 20 CFR 655.73 and are similar to the factors used by 
    WHD to determine the amount of civil monetary penalties (CMPs) to be 
    assessed under Sec.  503.23.
        When WHD encounters violations that do not rise to the level of 
    willfulness, it puts the party on notice regarding future compliance. 
    WHD will consider subsequent violations committed with the knowledge 
    that such acts or omissions violate H-2B program requirements to be 
    willful. In evaluating whether a first-time violation constitutes a 
    willful violation, WHD will look at all circumstances, including the 
    fact that employers submit a signed Application for Temporary 
    Employment Certification attesting under penalty of perjury that that 
    they know and accept the obligations of the program, which
    
    [[Page 24087]]
    
    are listed clearly in Appendix B of the Application, as well as 
    submitting a signed H-2B Petition, which requires employers to certify 
    under penalty of perjury that the information is true and accurate to 
    the best of their knowledge. See Sec.  503.19(d).
    6. Sec.  503.20 Sanctions and Remedies--General
        This section sets forth the remedies that WHD will pursue when it 
    determines that there has been a violation(s), as described in Sec.  
    503.19. These remedies are largely the same types of remedies WHD 
    pursued in its enforcement under the 2008 rule, see 20 CFR 655.65, upon 
    determining that a violation had occurred. Remedies include but are not 
    limited to the recovery of unpaid wages, recovery of prohibited 
    recruitment fees paid or impermissible deductions, and wages due for 
    improperly placing workers in areas of employment or in occupations 
    other than those identified on the Application for Temporary Employment 
    Certification; enforcement of the provisions of the job order, 8 U.S.C. 
    1184(c), INA section 214(c), 29 CFR part 655, subpart A, or the 
    regulations in this part; assessment of civil money penalties (CMPs); 
    and make-whole relief for any person who has been discriminated 
    against, as well as reinstatement and other make-whole relief for U.S. 
    workers who were improperly denied employment. These remedies may be 
    sought from the employer, the employer's successor in interest, or from 
    the employer's agent or attorney, as appropriate. WHD may also seek 
    debarment, concurrent with ETA's debarment authority. WHD's debarment 
    authority is discussed under Sec.  503.24.
        a. Liability for prohibited fees collected by foreign labor 
    recruiters. As the preamble to the 2008 rule emphasized, see 73 FR 
    78037, and as DHS regulations have made clear, see 8 CFR 
    214.2(h)(6)(i)(B), the recruitment of foreign workers is an expense to 
    be borne primarily by the employer and not by the foreign worker, who 
    generally should not have to pay a fee as a condition of obtaining 
    access to the job opportunity. Examples of exploitation of foreign 
    workers, who in some instances have been required to give recruiters 
    thousands of dollars to secure a job, have been widely reported. The 
    Departments are concerned about the exploitation of workers who have 
    heavily indebted themselves to secure a place in the H-2B program, and 
    believe that such exploitation may adversely affect the wages and 
    working conditions of U.S. workers, driving down wages and working 
    conditions for all workers, foreign and domestic. The Departments' 
    general prohibition on collecting placement or recruitment fees, 
    directly or indirectly, as a condition of H-2B employment is consistent 
    with Executive Order and regulatory changes in the federal contracting 
    arena, prohibiting charging of recruitment fees to employees as part of 
    the Federal Government's efforts to enhance protections against 
    trafficking in persons. See, e.g., Strengthening Protections Against 
    Trafficking in Persons in Federal Contracts, Exec. Order No. 13627 
    (Sept. 25, 2012); 80 FR 4967 (Jan. 29, 2015); see also 8 U.S.C. 1375b 
    (requiring pamphlet advising of temporary workers' rights and available 
    protections against human trafficking).
        The Departments believe that requiring employers to incur the costs 
    of recruitment is reasonable, even when taking place in a foreign 
    country. However, the Departments recognize that an employer's ability 
    to control the actions of agents and subcontractors across 
    international borders is constrained, just as the Departments' ability 
    to enforce regulations across international borders is constrained. As 
    discussed in the preamble to 20 CFR 655.20(p), the Departments are 
    requiring that the employer, as a condition of applying for temporary 
    labor certification for H-2B workers, contractually forbid any foreign 
    labor contractor or recruiter (or any agent or employee of such agent 
    or recruiter) whom the employer engages in recruitment of prospective 
    H-2B workers to seek or receive payments from prospective employees. 
    DOL will attempt to ensure the bona fides of such contracts and will 
    work together with DHS, whose regulations also generally preclude the 
    approval of an H-2B Petition and provide for denial or revocation if 
    the employer knows or has reason to know that the worker has paid, or 
    has agreed to pay, prohibited fees to a recruiter, facilitator, agent, 
    and similar employment service as a condition of an offer or 
    maintaining condition of H-2B employment. See 8 CFR 214.2(h)(6)(i)(B). 
    As explained in WHD Field Assistance Bulletin No. 2011-2, any fee that 
    facilitates an employee obtaining the visa in order to be able to work 
    for that employer will be considered a recruitment fee, which must be 
    borne by the H-2B employer. This is consistent with the DHS 
    regulations. Although employees may voluntarily pay some fees to 
    independent third-party facilitators for services such as assisting the 
    employee to access the internet or in dealing with DOS, such fees may 
    be paid by employees only if they are truly voluntary and not made a 
    condition of access to the job opportunity.
        When employers use recruiters, and in particular when they impose 
    the contractual prohibition on collecting prohibited fees, they must 
    make it abundantly clear that the recruiter and its agents or 
    employees, whether in the United States or abroad, are not to receive 
    remuneration from the foreign worker recruited in exchange for access 
    to a job opportunity or in exchange for having that worker maintain 
    that job opportunity. For example, evidence showing that the employer 
    paid the recruiter no fee or an extraordinarily low fee, or continued 
    to use a recruiter about whom the employer had received credible 
    complaints, could be an indication that the contractual prohibition was 
    not bona fide. In addition, where WHD determines that workers have paid 
    these fees and the employer cannot demonstrate the requisite bona fide 
    contractual prohibitions, WHD will require the employer to reimburse 
    the workers in the amount of these prohibited fees. However, where an 
    employer has complied in good faith with this provision and has 
    contractually prohibited the collection of prohibited fees from 
    workers, and exercised reasonable diligence to ensure that its agents 
    and others involved in the recruitment process, whether in the United 
    States or abroad, adhere to this contractual prohibition, there is no 
    willful violation.
        b. Agent and attorney liability. For the reasons stated in the 
    discussion under Debarment of Agents and Attorneys in 20 CFR 655.73, 
    agent and attorney signatories to Form 9142B will be liable for their 
    independent willful violations of the H-2B program, as well as their 
    participation in an employer's violation. As noted earlier under Sec.  
    503.19 a willful misrepresentation of a material fact or a willful 
    failure to meet the required terms and conditions occurs when the 
    employer, attorney, or agent knows its statement is false or that its 
    conduct is in violation, or shows reckless disregard for the 
    truthfulness of its representation or for whether its conduct satisfies 
    the required conditions. Under Sec.  503.20(b), remedies will be sought 
    directly from the employer or its successor, or from the employer's 
    agent or attorney, where appropriate. For example, it would be 
    appropriate to seek reimbursement of prohibited fees to affected 
    workers from an attorney or agent, as opposed to an employer, where the 
    employer has contractually prohibited the attorney or agent from 
    collecting such fees, the employer has exercised reasonable
    
    [[Page 24088]]
    
    diligence in determining such fees were not collected, yet the agent or 
    attorney does so unbeknownst to the employer, despite the employer 
    having affirmed on the Application for Temporary Employment 
    Certification that everything in the application is true and correct, 
    including the employer's attestation that ``[t]he employer and its 
    attorney, agents and/or employees have not sought or received payment 
    of any kind from the H-2B worker for any activity related to obtaining 
    temporary labor certification, including but not limited to payment of 
    the employer's attorney or agent fees, application fees, or recruitment 
    costs.'' On the other hand, it would not be appropriate to hold the 
    attorney or agent liable for unpaid wages when an employer fails to pay 
    the required wage during the period of the application where the 
    attorney or agent was uninvolved in such a violation.
        c. Make-whole relief. Make-whole relief in this section means that 
    the party subjected to the violation is restored to the position, both 
    economically and in terms of employment status, that the party would 
    have occupied had the violation never taken place. Make-whole relief 
    includes equitable and monetary relief such as reinstatement, hiring, 
    front pay, reimbursement of monies illegally demanded or withheld, or 
    the provision of specific relief such as the cash value of 
    transportation or subsistence payments that the employer was required 
    to, but failed to provide, in addition to the recovery of back wages, 
    where appropriate.
        d. Workers who have returned to their home countries. The 
    Departments recognize that workers who have been subjected to H-2B 
    violations often return to their home countries, and that it is more 
    difficult for workers who live outside the United States to participate 
    in investigations or proceedings and recover damages. The Departments 
    do not prohibit such participation by workers who may have returned to 
    their home country, and DOL often distributes back wages to workers who 
    have experienced violations and have returned to their home countries. 
    Where appropriate given the circumstances in any specific investigation 
    or proceeding, the Departments might seek a means for the worker to 
    travel to the U.S. to participate in such proceedings.
    7. Sec.  503.21 Concurrent Actions
        Under this section, the Departments clarify the different roles and 
    responsibilities of OFLC and WHD, and note that both agencies have 
    concurrent jurisdiction to impose debarment. Section 503.3(c) is 
    intended to protect the employer from being debarred by both entities 
    for a single violation.
    8. Sec.  503.22 Representation of the Secretary of Labor
        The Solicitor of Labor will continue to represent the 
    Administrator, WHD and the Secretary of Labor in all administrative 
    hearings under 8 U.S.C. 1184(c)(14), INA section 214(c), and these 
    regulations.
    9. Sec.  503.23 Civil Money Penalty Assessment
        This interim final rule utilizes a CMP assessment scheme similar to 
    the CMP assessment contained in the 2008 rule, with additional and 
    clarifying language specifying that WHD may find a separate violation 
    for each failure to pay an individual worker properly or to honor the 
    terms or conditions of the worker's employment, as long as the 
    violation meets the willfulness standard and/or substantial failure 
    standard in Sec.  503.19. CMPs represent a penalty for non-compliance, 
    and are payable to WHD for deposit with the Treasury.
        Similar to the CMPs in the 2008 rule, the CMP assessments set CMPs 
    at the amount of back wages owed for violations related to wages and 
    impermissible deductions or prohibited fees, and at the amount that 
    would have been earned but for an illegal layoff or failure to hire, up 
    to $10,000 per violation. There is also a catch-all CMP provision for 
    any other violation that meets the standards in Sec.  503.19. Section 
    503.23(e) sets forth the factors WHD will consider in determining the 
    level of penalties to assess for all violations but wage violations, 
    which are similar to the factors WHD used to determine the level of 
    CMPs assessed under 20 CFR 655.65(g) in the 2008 rule. The maximum CMP 
    amount is set at $10,000 in order to be consistent with the statutory 
    limit under 8 U.S.C. 1184(c)(14)(A), INA section 214(c)(14)(A).
    10. Sec.  503.24 Debarment
        Under this section, WHD has the authority, upon finding a violation 
    that meets the standards in Sec.  503.19, to debar an employer, agent 
    or attorney for not less than 1 year or more than 5 years. Section 
    503.24(a) contains a non-exhaustive list of acts or omissions that may 
    constitute debarrable violations. Section 503.24(e) clarifies that 
    while WHD and OFLC will have concurrent debarment jurisdiction, the two 
    agencies will coordinate their activities so that a specific violation 
    for which debarment is imposed will be cited in a single debarment 
    proceeding. While OFLC has more expertise in the application and 
    recruitment process, and will retain specific authority to debar for 
    failure to comply with the Notice of Deficiency and assisted 
    recruitment processes, WHD has extensive expertise in conducting 
    workplace investigations under numerous statutes, and has been 
    enforcing H-2B program violations since the 2008 rule became effective 
    on January 18, 2009.
        Providing WHD with the ability to order debarment, along with or in 
    lieu of other remedies, will streamline and simplify the administrative 
    process, and eliminate unnecessary bureaucratic hurdles by removing 
    extra steps. Under the 2008 rule, WHD conducted investigations of H-2B 
    employers and assessed back wages, civil money penalties, and other 
    remedies, which the employer had the right to challenge 
    administratively. However, WHD could not order debarment, no matter how 
    egregious the violations, and instead was required to take the extra 
    step of recommending that OFLC issue a Notice of Debarment based on the 
    exact same facts, which then had to be litigated again by OFLC. 
    Allowing WHD to impose debarment along with the other remedies it can 
    already impose in a single proceeding will simplify and speed up this 
    duplicative enforcement process, and result in less bureaucracy for 
    employers who have received a debarment determination. Instead, 
    administrative hearings and appeals of back wage and civil money 
    penalties, which the WHD already handles, will now be consolidated with 
    challenges to debarment actions based on the same facts, so that an 
    employer need only litigate one case and file one appeal rather than 
    two. This means that both matters can be resolved more expeditiously.
        Moreover, WHD has extensive debarment experience under regulations 
    implementing other programs, such as H-2A, H-1B, the Davis-Bacon Act, 
    and the Service Contract Act. See, e.g., 29 CFR 5.12. As discussed in 
    the preamble to the 2008 rule, ``[t]he debarment of entities from 
    participating in a government program is an inherent part of an 
    agency's responsibility to maintain the integrity or that program.'' 73 
    FR 78020, 78044. WHD can assist OFLC to regulate the entities that 
    appear before DOL, and in particular, can take more efficient action to 
    debar based on violations WHD finds as a result of its investigations.
        WHD's debarment procedures at Sec.  503.24(d) include procedural 
    protections similar to the procedures in OFLC's debarment proceedings 
    at 20 CFR 655.73, including notice of
    
    [[Page 24089]]
    
    debarment, the right to a hearing before an Administrative Law Judge 
    (ALJ), and the right to seek review of an ALJ's decision by the 
    Administrative Review Board (ARB). However, an important distinction 
    between the OFLC and WHD debarment procedures is that the WHD debarment 
    procedures do not provide for a 30-day rebuttal period because WHD 
    debarments arise from investigations during which the employer has 
    ample opportunity to submit any evidence and arguments in its favor. 
    During the course of an investigation, WHD contacts and interviews both 
    the employer and workers. WHD investigators discuss potential 
    violations with the employer and, when requested, with his or her legal 
    representative, providing the employer ample notice and an opportunity 
    to provide any information relevant to WHD's final determination. 
    Rather than a formal, 30-day rebuttal period, employers have numerous 
    opportunities during the course of a WHD investigation and during a 
    final conference to provide critical information regarding violations 
    that may lead to debarment.
        The discussion of the time period for debarment in the preamble to 
    OFLC's debarment provision at 20 CFR 655.73 applies equally to WHD's 
    period of debarment. For the reasons stated under Debarment of Agents 
    and Attorneys in 20 CFR 655.73, WHD may also debar agents and attorneys 
    for their own independent violations as well as their participation in 
    employer violations.
        Section 503.24(f) provides that an employer, agent, or attorney who 
    is debarred by OFLC or WHD from the H-2B program will also be debarred 
    from all other foreign labor certification programs administered by DOL 
    for the time period in the final debarment decision. Many employers, 
    agents and attorneys participate in more than one foreign labor 
    certification program administered by DOL. However, under the 2008 
    rule, a party that was debarred under the H-2B program could continue 
    to file applications under DOL's other foreign labor programs. Under 
    this interim final rule, DOL will refuse to accept applications filed 
    by or on behalf of a debarred party under the H-2B program in any of 
    DOL's foreign labor certification programs. Paragraph (e) of this 
    section also provides that copies of final debarment decisions will be 
    forwarded to DHS and DOS promptly.
        Although DOL does not have the authority to routinely seek 
    debarment of entities that are not listed on the ETA Form 9142, in 
    appropriate circumstances, DOL may pierce the corporate veil in order 
    to more effectively remedy the violations found. Piercing the corporate 
    veil may be necessary to foreclose the ability of individual principals 
    of a company or legal entity to reconstitute under another business 
    entity.
    11. Sec.  503.25 Failure To Cooperate With Investigators
        This provision prohibits interference or refusal to cooperate with 
    a DOL investigation or enforcement action. In addition, it describes 
    the penalties for failure to cooperate. Specifically, it notes the 
    federal criminal laws prohibiting interference with federal officers in 
    the course of official duties and permits WHD to recommend revocation 
    to OFLC, initiate debarment proceedings, and/or assess CMPs for 
    failures to cooperate that meet the violation standards set forth in 
    Sec.  503.19.
    12. Sec.  503.26 Civil Money Penalties--Payment and Collection
        This provision instructs employers regarding how to submit payment 
    of any CMPs owed. This section is administrative in nature and slightly 
    modifies the provision from the 2008 rule at 20 CFR 655.65(j).
    
    C. Administrative Proceedings
    
        This interim final rule generally adopts the applicable 
    administrative proceedings from the 2008 rule at 20 CFR 655.70-655.80. 
    See 29 CFR 503.40-503.56. As explained in Sec.  503.40(a), these 
    procedures and rules prescribe the administrative appeal process that 
    will be applied with respect to a WHD determination to assess CMPs, to 
    debar, to enforce provisions of the job order or obligations under 8 
    U.S.C. 1184(c), INA section 214(c), 20 CFR part 655, subpart A, or the 
    regulations in this part, and/or to the collection of monetary relief. 
    Paragraph (b) of Sec.  503.40 provides that the administrative appeals 
    process prescribed by subpart C will apply to determinations (as 
    described in paragraph (a)) involving the H-2B Petition regardless of 
    the date of the violation. As discussed supra, WHD has been delegated 
    enforcement authority for the provisions of section 214(c)(14)(A)(i) of 
    the INA. Under this authority, WHD may impose administrative remedies 
    (including civil money penalties) that it determines to be appropriate 
    where it finds, after notice and the opportunity for a hearing, a 
    violation of the H-2B Petition (i.e., a substantial failure to meet any 
    of the conditions of or a willful misrepresentation of a material fact 
    on the H-2B Petition). The administrative appeals process prescribed by 
    subpart C of this interim final rule will apply to such determinations 
    and hearings, regardless of the date of the violation, as subpart C 
    contains procedural rules; therefore, they apply to the enforcement 
    proceedings for violations that occurred before the enactment of this 
    interim final rule.
        The administrative procedures begin with WHD notifying the party in 
    writing regarding WHD's determination (Sec. Sec.  503.41, 503.42). A 
    party that wishes to appeal WHD's determination must request an ALJ 
    hearing within 30 days after the date of the determination (Sec.  
    503.43). The determination will take effect unless the appeal is timely 
    filed, staying the determination pending the outcome of the appeal 
    proceedings (Sec.  503.43(e)).
        The ALJ hearing will be conducted in accordance with 29 CFR part 18 
    (Sec.  503.44). The ALJ will prepare a decision following a hearing 
    within 60 days after completion of the hearing and closing of the 
    record (Sec.  503.50(a)). This decision will constitute the final 
    agency order unless a party petitions the ARB to review the decision 
    within 30 days and the ARB accepts a party's petition for review (Sec.  
    503.50(e)).
        A party that wishes to review the ALJ's decision must, within 30 
    days, petition the ARB to review the decision, specifying the issue(s) 
    stated in the ALJ decision giving rise to the petition and the 
    reason(s) why the party believes the decision is in error (Sec.  
    503.51(a)-(b)). If the ARB does not accept the petition for review 
    within 30 days, the decision of the ALJ is deemed the final agency 
    action (Sec.  503.51(c)). When the ARB determines to review a petition, 
    either on its own or by accepting a party's petition, it will serve 
    notice on the ALJ and all parties to the proceeding (Sec.  503.51(d)). 
    The ARB will notify the parties of the issue(s) raised, the form in 
    which submissions will be made and the timeframe for doing so (Sec.  
    503.53). Upon receipt of the ARB's notice, the Office of Administrative 
    Law Judges (OALJ) will forward a copy of the hearing record to the ARB 
    (Sec.  503.52).
        Section 503.54 provides the requirements for submission of 
    documents to the ARB. The ARB's decision will be issued within 90 days 
    from the notice granting the petition (Sec.  503.55). The official 
    record of every completed administrative hearing will be maintained by 
    the Chief ALJ, or, where the case was the subject of administrative 
    review, the ARB (Sec.  503.56).
        For the reasons stated in the preamble under Integrity Measures (20 
    CFR 655.70-655.73), the Departments have not adopted additional 
    procedures allowing workers a right to intervene
    
    [[Page 24090]]
    
    and participate in every case. The importance of worker communication 
    with WHD by filing complaints, participating in investigations, and 
    serving as witnesses in administrative or judicial proceedings cannot 
    be overstated; it is essential in carrying out WHD's enforcement 
    obligations. However, WHD notes that workers already participate in WHD 
    investigations, which involve interviews with workers regarding program 
    compliance. It is WHD's practice to provide notice to the individual 
    complainants and their designated representatives and/or any third-
    party complainants when WHD completes an investigation by providing 
    them a copy of the WHD Determination Letter. To further protect their 
    interests, workers can seek, and have sought, intervention upon appeal 
    to an ALJ. See 20 CFR 18.10(c) and (d).
    
    VI. Administrative Information
    
    A. Executive Orders 12866 and 13563
    
        Under Executive Order (E.O.) 12866 and E.O. 13563, the Departments 
    must determine whether a regulatory action is significant and, 
    therefore, subject to the requirements of the E.O. and to review by the 
    OMB. Section 3(f) of the E.O. defines an economically significant 
    regulatory action as an action that is likely to result in a rule that: 
    (1) Has an annual effect on the economy of $100 million or more, or 
    adversely and materially affects a sector of the economy, productivity, 
    competition, jobs, the environment, public health or safety, or State, 
    local or tribal governments or communities (also referred to as 
    economically significant); (2) creates serious inconsistency or 
    otherwise interferes with an action taken or planned by another agency; 
    (3) materially alters the budgetary impacts of entitlement grants, user 
    fees, or loan programs, or the rights and obligations of recipients 
    thereof; or (4) raises novel legal or policy issues arising out of 
    legal mandates, the President's priorities, or the principles set forth 
    in the E.O.
        The Departments have determined that this rule is an economically 
    significant regulatory action under section 3(f)(1) of E.O. 12866. This 
    regulation would have an annual effect on the economy of $100 million 
    or more; however, it would not adversely affect the economy or any 
    sector thereof, productivity, competition, jobs, the environment, or 
    public health or safety in a material way. The Departments also have 
    determined that this rule is a significant regulatory action under sec. 
    3(f)(4) of E.O. 12866. Accordingly, OMB has reviewed this rule.
        The results of the Departments' cost-benefit analysis under this 
    Part (VI.A) are meant to satisfy the analytical requirements under 
    Executive Orders 12866 and 13563. These longstanding requirements 
    ensure that agencies select those regulatory approaches that maximize 
    net benefits--including potential economic, environmental, public 
    health and safety, and other advantages; distributive impacts; and 
    equity--unless otherwise required by statute. The Departments did not 
    use the cost-benefit analysis under this Part (VI.A) for purposes 
    forbidden by or inconsistent with the Immigration and Nationality Act, 
    as amended
    Need for Regulation
        The Departments have determined that there is a need for this 
    interim final rule in light of the litigation, described in the 
    preamble, challenging DOL's authority to independently issue its own 
    legislative rules in the H-2B program. See Bayou Lawn & Landscape 
    Servs. et al. v. Sec'y of Labor, 613 F.3d 1080 (11th Cir. 2013) 
    (holding that employers are likely to prevail on their allegation that 
    DOL lacks H-2B rulemaking authority). But see La. Forestry ***'n v. 
    Perez, 745 F.3d 653 (3d Cir. 2014) (holding that DOL does have H-2B 
    rulemaking authority). In particular, because of the district court's 
    order in Perez v. Perez, No. 14-cv-682 (N.D. Fla. Mar. 4, 2015), 
    vacating the 2008 rule and permanently enjoining DOL from enforcing it, 
    DOL immediately ceased processing requests for prevailing wage 
    determinations and applications for temporary labor certification in 
    the H-2B program. Although on March 18, 2015, the Perez district court 
    temporarily stayed the vacatur order, DOL cannot operate the H-2B 
    program and cannot fulfill its consultative role and provide advice to 
    DHS without regulations that set the framework, procedures, and 
    applicable standards for receiving, reviewing, and issuing H-2B 
    prevailing wages and temporary labor certifications.\25\ Without advice 
    from DOL, DHS in turn has no means by which to adequately test the 
    domestic labor market or determine whether there are available U.S. 
    workers to fill the employer's job opportunity. Moreover, DHS is 
    precluded by regulation from processing any H-2B petition without a 
    temporary labor certification from DOL. See 8 CFR 214.2(h)(6)(iii)(C). 
    Therefore, the Departments have determined that this interim final rule 
    is necessary in order to ensure the continued operation and enforcement 
    of the H-2B program.
    ---------------------------------------------------------------------------
    
        \25\ On April 15, 2015, the federal district court in the 
    Northern District of Florida issued an order effectively permitting 
    DOL to continue issuing temporary labor certifications under the H-
    2B program through May 15, 2015.
    ---------------------------------------------------------------------------
    
    1. Alternatives
        The Departments considered a number of alternatives: (1) 
    Promulgating the policy changes contained in the interim final rule; 
    (2) issuing the 2008 rule as the interim final rule; (3) and adopting 
    various aspects of those two rules. The Departments conclude that this 
    interim final rule retains the best features of the 2008 rule and 
    adopts additional provisions to allow DOL to best achieve its policy 
    objectives, consistent with its mandate under the H-2B program.
        DOL had previously examined these same issues in a notice-and-
    comment rulemaking that was finalized in 2012; before issuing the 2012 
    final rule, DOL carefully considered the hundreds of substantive 
    comments that were received and made a number of modifications to the 
    provisions that had been in the proposed rule based upon those 
    comments. DOL's implementation of the 2012 final rule was enjoined in 
    the Bayou litigation, and DOL continued to operate the H-2B program 
    based on the 2008 rule.
        However, in light of the Perez vacatur order, the Departments have 
    reevaluated the policy choices made in both the 2008 and the 2012 final 
    rules, to determine the best ways for DOL to fulfill its responsibility 
    to grant H-2B temporary labor certifications only when there are not 
    sufficient U.S. workers who are qualified and who will be available to 
    perform the temporary services or labor for which an employer desires 
    to hire foreign workers, and when the employment of H-2B workers will 
    not adversely affect the wages and working conditions of U.S. workers 
    similarly employed. The Departments conclude, as DOL discussed in the 
    preamble to the 2012 final rule, that the provisions of the 2008 rule 
    do not adequately protect U.S. workers and fail to ensure the integrity 
    of the program. The Departments conclude that the policy choices made 
    in this interim final rule best allow DOL to fulfill its 
    responsibilities under the H-2B program and to provide the appropriate 
    consultation to DHS.
    3. Economic Analysis
        DOL derives its estimates by comparing the baseline, that is, the 
    program benefits and costs under the 2008 rule, against the benefits 
    and costs associated with the implementation of the provisions in this 
    interim final rule. The benefits and costs of the provisions of this 
    interim final rule are estimated as incremental impacts relative to the
    
    [[Page 24091]]
    
    baseline. Thus, benefits and costs attributable to the 2008 rule are 
    not considered as benefits and costs of this interim final rule. We 
    explain how the actions of workers, employers, and government agencies 
    resulting from the interim final rule are linked to the expected 
    benefits and costs.
        DOL sought to quantify and monetize the benefits and costs of this 
    interim final rule where feasible. Where DOL was unable to quantify 
    benefits and costs--for example, due to data limitations--DOL described 
    them qualitatively. The analysis covers 10 years (2015 through 2024) to 
    ensure it captures major benefits and costs that accrue over time.\26\ 
    DOL has sought to present benefits and costs both undiscounted and 
    discounted at 7 percent and 3 percent.
    ---------------------------------------------------------------------------
    
        \26\ For the purposes of the cost-benefit analysis, the 10-year 
    period starts on June 1, 2015.
    ---------------------------------------------------------------------------
    
        In addition, DOL provides an assessment of transfer payments 
    associated with certain provisions of the interim final rule.\27\ 
    Transfer payments, as defined by OMB Circular A-4, are payments from 
    one group to another that do not affect total resources available to 
    society. Transfer payments are associated with a distributional effect, 
    but do not result in additional benefits or costs to society. The rule 
    would alter the transfer patterns and increase the transfers from 
    employers to workers. The primary recipients of transfer payments 
    reflected in this analysis are U.S. workers and H-2B workers. The 
    primary payors of transfer payments reflected in this analysis are H-2B 
    employers, and under the rule, those employers who choose to 
    participate are likely to be those that have the greatest need to 
    access the H-2B program. When summarizing the benefits or costs of 
    specific provisions of this interim final rule, DOL presents the 10-
    year averages to reflect the typical annual effect.
    ---------------------------------------------------------------------------
    
        \27\ The specific provisions associated with transfer payments 
    are: Wages paid to corresponding workers; payments for 
    transportation, subsistence, and lodging for travel to and from the 
    place of employment; and visa-related fees.
    ---------------------------------------------------------------------------
    
        The inputs used to calculate the costs of this interim final rule 
    are described below.
    a. Number of H-2B Workers
        DOL estimates that from FY 2013-2014, an average of 87,998 H-2B 
    positions were certified per year. Because the number of H-2B visas is 
    statutorily limited, only a portion of these certified positions were 
    ultimately filled by foreign workers.
        The number of visas available in any given year in the H-2B program 
    is 66,000, assuming no statutory changes in the number of visas 
    available. Some costs, such as travel, subsistence, visa and border 
    crossing, and reproducing the job order apply to these 66,000 workers. 
    Employment in the H-2B program represents a very small fraction of the 
    total employment in the U.S. economy, both overall and in the 
    industries represented in this program. The H-2B program's annual cap 
    of 66,000 visas issued per year (33,000 allocated semi-annually) 
    represents approximately 0.05 percent of total nonfarm employment in 
    the U.S. economy (134.8 million).\28\ The number of visas per year does 
    not fully capture the number of H-2B workers in the United States at 
    any given time as there are exceptions to the H-2B cap; additionally, a 
    nonimmigrant's H-2B classification may be extended for qualifying 
    employment for a total stay of up to three years without being counted 
    against the cap. DOL assumes that half of all H-2B workers entering the 
    United States (33,000) in any year stay at least one additional year, 
    and half of those workers (16,500) will stay a third year, for a total 
    of 115,500 H-2B workers employed at any given time. This suggests that 
    57 percent of H-2B workers (66,000/115,500) are new entrants in a given 
    year. Extending the analysis to the 115,500 H-2B workers we estimate 
    are in the country at any given time, the number of H-2B workers 
    represents approximately 0.09 percent of total nonfarm employment.
    ---------------------------------------------------------------------------
    
        \28\ U.S. Bureau of Labor Statistics (BLS). 2015. Employees on 
    Nonfarm Payrolls by Major Industry Sector, 2005-2014. Available at 
    http://www.bls.gov/webapps/legacy/cesbtab1.htm.
    ---------------------------------------------------------------------------
    
        According to H-2B program data for FY 2013-2014, the average annual 
    numbers of H-2B positions certified in the top five industries were as 
    follows:
    
    Landscaping Services--33,438
    Construction--8,357
    Amusement, Gambling, and Recreation--7,939
    Food Services and Drinking Places--7,098
    Janitorial Services--5,857 \29\
    
        \29\ Another industry, Forest Services, made the initial list of 
    the top five industries, but it is not included in this analysis 
    because the only data available for forestry also include various 
    agriculture, fishing and hunting activities. Relevant data for 
    forestry only were not available.
    ---------------------------------------------------------------------------
    
    These employment numbers represent the following percentages of the 
    total employment in each of these industries: \30\
    
        \30\ U.S. Census Bureau. 2015. Available at http://www.census.gov/econ/census/. DOL obtained 2012 Economic Census data 
    for the following industries: Landscaping Services; Janitorial 
    Services; Food Services and Drinking Places; and Amusement, 
    Gambling, and Recreation. The 2012 Economic Census did not publish 
    data for the Construction industry because the data did not meet 
    publication standards. In its place, DOL uses 2007 Economic Census 
    data for the Construction industry.
    ---------------------------------------------------------------------------
    
    Landscaping Services--5.78 percent (33,438/578,970)
    Construction--0.11 percent (8,357/7,316,240)
    Amusement, Gambling, and Recreation--0.52 percent (7,939/1,518,405)
    Food Services and Drinking Places--0.07 percent (7,098/10,057,301)
    Janitorial Services--0.59 percent (5,857/991,423)
    
        As these data illustrate, the H-2B program represents a small 
    fraction of the total employment even in each of the top five 
    industries in which H-2B workers are found.
    b. Number of Affected Employers
        DOL estimates that from FY 2013-2014, an average of 4,657 unique 
    employers applied for H-2B workers,\31\ and of these, an average of 
    3,955 were granted certifications. Several of the interim final rule's 
    provisions (the requirement for employers to translate the job order 
    from English to a language understood by the foreign workers, and 
    payment of visa and visa-related fees) will predominantly or only apply 
    to employers that ultimately employ H-2B workers. As there is no 
    available source of data on the number of H-2B employer applicants who 
    ultimately employ H-2B workers, DOL conservatively assumes that all 
    certified H-2B employer applicants who are granted certification for H-
    2B workers will ultimately employ H-2B workers.
    ---------------------------------------------------------------------------
    
        \31\ DOL estimates the number of unique employer applicants for 
    FY 2013-2014 by multiplying the number of unique employers granted 
    certification (3,955) by the ratio of unique applicants to unique 
    employers granted certification over FY 2007-2009 (1.1774).
    ---------------------------------------------------------------------------
    
    c. Number of Corresponding Workers
        Several provisions of the interim final rule extend to workers in 
    corresponding employment, defined as those non-H-2B workers who perform 
    work for an H-2B employer, where such work is substantially the same as 
    the work included in the job order, or is substantially the same as 
    other work performed by H-2B workers.\32\ Corresponding workers are 
    U.S. workers employed by the same employer performing substantially the 
    same tasks at the same locations as the H-2B workers, and they are 
    entitled to at least the same terms and conditions of employment as the 
    H-2B workers. Corresponding workers might be
    
    [[Page 24092]]
    
    temporary or permanent; that is, they could be employed under the same 
    job order as the H-2B workers for the same period of employment, or 
    they could have been employed before the H-2B workers, and might remain 
    after the H-2B workers leave. However, the interim final rule excludes 
    two categories of workers from the definition of corresponding 
    employment. Corresponding workers are entitled to the same wages and 
    benefits that the employer provides to H-2B workers, including the 
    three-fourths guarantee, during the period covered by the job order. 
    The corresponding workers would also be eligible for the same 
    transportation and subsistence payments as the H-2B workers if they 
    travel a long distance to reach the job site and cannot reasonably 
    return to their residence each workday. In addition, as a result of the 
    enhanced recruiting in this rule, including the new electronic job 
    registry, certain costs may be avoided as employers are able to find 
    U.S. workers in lieu of some H-2B workers. DOL believes that the costs 
    associated with hiring a new U.S. worker would be lower than the costs 
    associated with hiring an H-2B worker brought to the United States from 
    abroad because the costs of visa and border crossing fees to be paid 
    for by the employer will be avoided and travel costs may likely be less 
    (or zero for workers who are able to return to their residence each 
    day).
    ---------------------------------------------------------------------------
    
        \32\ This analysis sometimes uses the shorthand ``U.S. workers'' 
    to refer to these workers.
    ---------------------------------------------------------------------------
    
        There are no reliable data sources on the number of corresponding 
    workers at work sites for which H-2B workers are requested or the 
    hourly wages of those workers. DOL does not systematically collect data 
    regarding what have been defined as corresponding employees, and 
    therefore cannot identify the numbers of workers to whom the 
    obligations would apply. DOL extensively examined alternative data 
    sources that might be used to accurately estimate the number of 
    corresponding workers.
        First, DOL evaluated whether WHD field staff could provide reliable 
    information on the number of corresponding workers employed by H-2B 
    employers based on the data gathered during investigations. This 
    information has not been relevant to WHD investigations because the 
    2008 rule did not have a definition of corresponding employees and did 
    not protect such incumbent workers; it protected only workers who were 
    newly hired in response to the employer's required H-2B recruitment 
    activities. Anecdotal information from investigations indicates that 
    the number of U.S. workers similarly employed varies widely among the 
    companies investigated. However, no reliable data on the number of 
    workers in corresponding employment compared to the number of H-2B 
    workers is available, because no definition of corresponding employment 
    existed in the 2008 rule. It also is unclear whether the limited 
    numbers available in WHD investigations reflect the number of U.S. 
    workers who were working during the pay period that WHD conducted the 
    on-site investigation or the number who worked there at any point 
    during the two-year period typically covered by an investigation. 
    Further, there is no data regarding the length of the employment of the 
    U.S. workers. Therefore, it is impossible to compare the pattern of 
    employment of U.S. and H-2B workers. Finally, the limited data that is 
    available did not represent a random sample of H-2B employers, but just 
    the subset of employers that WHD had some reason to investigate.
        Second, DOL reviewed a random sample of 225 certified and partially 
    certified applications from FY 2010 submitted by employers in response 
    to Requests for Information (RFIs) during the application process. 
    While the 2011 version of ETA Form 9142B includes an optional item on 
    the number of non-family full-time equivalent employees, that number 
    includes all employees and not only the employees in corresponding 
    employment. (See also the instructions to the Form 9142, which inform 
    the employer to ``[e]nter the number of full-time equivalent (FTE) 
    workers the employer employs.'') Moreover, even if this number 
    accounted for the number of corresponding employees, none of the 
    applications in the random sample used the 2011 version of the form. Of 
    the 225 applications reviewed, two applications gave the current number 
    of employees as part of the other information submitted. Additionally, 
    DOL examined data in 34 payroll tables that were provided to supplement 
    the application. The payroll tables reported data by month for at least 
    one year from 2007 to 2010 and included information such as the total 
    number of workers, hours worked, and earnings for all workers 
    performing work covered by the job order. These workers were broken 
    down into categories for permanent workers (those already employed and 
    performing the certified job) and for temporary workers (both H-2B 
    workers and U.S. workers similarly employed who responded to the job 
    order). DOL divided the total payroll by the total hours worked across 
    the two categories of workers to estimate an average hourly wage per 
    permanent and temporary worker. DOL compared the total number of 
    workers in months where permanent workers were paid either more than or 
    less than temporary employees for those months in which both were 
    employed.
        DOL found 7,548 temporary and 10,310 permanent worker-months 
    (defined as one worker, whether full- or part-time, employed one month) 
    in the 34 payroll tables examined. Of these, permanent employees were 
    paid more than temporary employees in 9,007 worker-months, and were 
    paid less than temporary employees in 1,303 worker-months. This 
    suggests that the rule would have no impact on wages for 87 percent of 
    permanent workers (9,007/10,310). Conversely, 13 percent of permanent 
    workers (1,303/10,310) were paid less than temporary employees and 
    would receive an increase in wages as a result of the rule. Calculating 
    the ratio of 1,303 permanent worker-months to 7,548 temporary worker-
    months when permanent workers are paid less than temporary workers 
    suggests that for every temporary worker-month, there are 0.17 worker-
    months where the permanent worker wage is less than the temporary 
    worker wage. Extrapolating this ratio based on DOL's estimate that 
    there are a total of 115,500 H-2B employees at any given time, suggests 
    that 19,939 permanent workers (115,500 x 0.17) would be eligible for 
    pay raises due to the rule.
        DOL also calculated the percentage difference in the corresponding 
    and temporary worker wages in months where temporary workers were paid 
    more. On average, corresponding workers earning less than temporary 
    employees would need their wages to be increased by 4.5 percent to 
    match temporary worker wages.
        For several reasons, however, DOL did not believe it was 
    appropriate to use the data in the payroll tables to extrapolate to the 
    entire universe of H-2B employers. First, because of the selective way 
    in which these payroll records were collected by DOL, the distribution 
    of occupations represented in the payroll tables is not representative 
    of the distribution of occupations in H-2B temporary employment 
    certification applications. The 34 payroll tables examined by DOL 
    included the following occupations:
    
    Nonfarm Animal Caretakers (12 payroll tables)
    Landscaping and Groundskeeping Workers (4 payroll tables)
    Maids and Housekeeping Cleaners (4 payroll tables)
    Cooks (2 payroll tables)
    Waiters and Waitresses (2 payroll tables)
    
    [[Page 24093]]
    
    Forest and Conservation Workers (2 payroll tables)
    Dishwashers (1 payroll table)
    Dining Room and Cafeteria Attendants and Bartender Helpers (1 payroll 
    table)
    Separating, Filtering, Clarifying, Precipitating, and Still Machine 
    Setters, Operators, and Tenders (1 payroll table)
    Food Cooking Machine Operators and Tenders (1 payroll table)
    Floor Sanders and Finishers (1 payroll table)
    Production Workers, All Other (1 payroll table)
    Receptionists and Information Clerks (1 payroll table)
    Grounds Maintenance Workers, All Other (1 payroll table)
    
        The four payroll tables for landscaping and groundskeeping workers 
    made up only 12 percent of the payroll tables, while applications for 
    these workers represented 35 percent of FY 2010 applications.\33\ 
    Conversely, the 12 payroll tables from nonfarm animal caretakers made 
    up 35 percent of the payroll tables in the sample, while applications 
    for such workers made up only six percent of the FY 2010 
    applications.\34\
    ---------------------------------------------------------------------------
    
        \33\ Applications for landscaping and groundskeeping workers 
    similarly made up 35 percent of the total number (1,893/5,467) of 
    applications in FY 2014.
        \34\ In FY 2014, applications for nonfarm animal caretakers made 
    up only 3 percent of the total number of applications (178/5,467).
    ---------------------------------------------------------------------------
    
        Second, the total number of payroll tables or payroll records 
    provided to DOL was very small. DOL found only 34 payroll tables in 225 
    randomly selected applications. Furthermore, payroll records in H-2B 
    temporary employment certification applications are provided in 
    specific response to an RFI or in the course of a post-adjudication 
    audit. In both instances the primary purpose of these records is to 
    demonstrate compliance with program requirements, usually either to 
    demonstrate proactively that the need for workers is a temporary need, 
    or to demonstrate retroactively compliance with the wage obligation. 
    Because payroll tables were submitted in response to an RFI rather than 
    as a matter of routine in the application process, it is not clear that 
    the data in the limited number of payroll tables for a given occupation 
    are representative of all workers within that occupation in the H-2B 
    program. Something triggered the RFI, presumably some indication that 
    the need for temporary workers was not apparent, and therefore these 
    applications are not representative of the 85 percent of applications 
    that did not require a payroll table.
        Third, the payroll wage information in these tables is provided at 
    the group level, and DOL is unable to estimate how many individual 
    corresponding workers are paid less than temporary workers in any given 
    month. The payroll tables only allow a gross estimate of whether 
    corresponding or temporary workers were paid more, on average, in a 
    given month. Because wages would only increase for those U.S. workers 
    currently making less than the prevailing wage, this information is 
    necessary to determine the effect the rule would have on workers in 
    corresponding employment. Finally, DOL has no data regarding the number 
    of employees who would fall under the two exclusions in the definition 
    of corresponding employment.
        DOL, therefore, cannot confidently rely on the payroll tables alone 
    and has no other statistically valid data to quantify the total number 
    of corresponding workers or the number that would be eligible for a 
    wage increase to match the H-2B workers. Nevertheless, DOL believes 
    that the payroll tables show that the impact of the corresponding 
    employment provision would be relatively limited, both as to the number 
    of corresponding workers who would be paid more and as to the amount 
    their wages would increase.
        Based on all the information available to us, including the payroll 
    tables and DOL's enforcement experience, DOL attempted to quantify the 
    impact of the corresponding employment provision. DOL notes that the 
    2008 rule already protected U.S. workers hired in response to the 
    required recruitment, including those U.S. workers who were laid off 
    within 120 days of the date of need and offered reemployment. 
    Therefore, this interim final rule will have no impact on their wages. 
    This interim final rule simply extends the same protection to other 
    employees performing substantially the same work included in the job 
    order or substantially the same work that is actually performed by the 
    H-2B workers, with the exception of the aforementioned incumbent 
    employees. DOL believes that a reasonable estimate is that H-2B workers 
    make up 75 to 90 percent of the workers in the particular job and 
    location covered by a job order; DOL assumes, therefore, that 10 to 25 
    percent of the workers will be U.S. workers newly covered by the 
    interim final rule's coverage of corresponding workers. This assumption 
    does not discount for the fact, as noted above, that some of these U.S. 
    workers are already covered by the prevailing wage requirement or could 
    be covered by one of the two exclusions from the definition of 
    corresponding employment. Carrying forward with its estimate that there 
    are a total of 115,500 H-2B workers employed at any given time, DOL 
    thus estimates that there will be between 12,833 (if 90 percent are H-
    2B workers) and 38,500 (if 75 percent are H-2B workers) U.S. workers 
    newly covered by the corresponding employment provision.
    d. Wages Used in the Analysis
        In this analysis, DOL uses the most recent OES wage data available 
    from BLS, and its most recent estimate of the ratio of fringe benefit 
    costs to wages, 44.1 percent.\35\ To represent the hourly compensation 
    rate for an administrative assistant/executive secretary, DOL uses the 
    median hourly wage ($23.70) for SOC 43-6011 (Executive Secretaries and 
    Executive Administrative Assistants).\36\ The hourly compensation rate 
    for a human resources manager is the median hourly wage of $48.46 for 
    SOC 11-3121 (Human Resources Managers).\37\ Both wage rates are 
    multiplied by 1.441 to account for private-sector employee benefits.
    ---------------------------------------------------------------------------
    
        \35\ U.S. Bureau of Labor Statistics (BLS). 2015. Employer Costs 
    for Employee Compensation, December 2014, news release text. March 
    11, 2015. Available at http://www.bls.gov/news.release/ecec.nr0.htm 
    (accessed on March 12, 2015).
        \36\ U.S. Bureau of Labor Statistics (BLS). 2014a. Occupational 
    Employment and Wages, May 2013, 43-6011 Executive Secretaries and 
    Executive Administrative Assistants. April 1, 2014. Available at 
    http://www.bls.gov/oes/current/oes436011.htm (accessed on March 12, 
    2015).
        \37\ U.S. Bureau of Labor Statistics (BLS). 2014b. Occupational 
    Employment and Wages, May 2013, 11-3121 Human Resources Managers. 
    April 1, 2014. Available at http://www.bls.gov/oes/current/oes113121.htm (accessed on March 12, 2015).
    ---------------------------------------------------------------------------
    
        For registry development and maintenance activities, DOL uses fully 
    loaded rates based on an Independent Government Cost Estimate (IGCE) 
    produced by OFLC in 2010,\38\ which are inclusive of direct labor and 
    overhead costs for each labor category.\39\ DOL inflates these fully 
    loaded wage rates to 2014 values using the CPI-U, published by the U.S. 
    Bureau of Labor Statistics.\40\
    ---------------------------------------------------------------------------
    
        \38\ OFLC. 2010. Independent Government Cost Estimates.
        \39\ DOL would not typically use a wage that included overhead 
    costs, but here DOL uses the services of a contractor to develop the 
    registry, and therefore the fully loaded wage is more reflective of 
    costs.
        \40\ U.S. Bureau of Labor Statistics. 2015. Available at http://data.bls.gov/cgi-bin/surveymost?cu (accessed on March 18, 2015).
    ---------------------------------------------------------------------------
    
        The 2014 wages used in the analysis are summarized in Table 3.
    
    [[Page 24094]]
    
    
    
                                           Table 3--Wages Used in the Analysis
    ----------------------------------------------------------------------------------------------------------------
                                                                                        Loaded wage   CPI-U adjusted
                               Occupation                               Hourly wage         \a\          wage \b\
    ----------------------------------------------------------------------------------------------------------------
    Administrative Assistant........................................             $24             $34             N/A
    HR Manager......................................................              48              70             N/A
    Program Manager.................................................             N/A             138             150
    Computer Systems Analyst II.....................................             N/A              92             100
    Computer Systems Analyst III....................................             N/A             110             119
    Computer Programmer III.........................................             N/A              90              98
    Computer Programmer IV..........................................             N/A             108             117
    Computer Programmer Manager.....................................             N/A             124             135
    Data Architect..................................................             N/A             105             114
    Web Designer....................................................             N/A             125             136
    Database Analyst................................................             N/A              78              85
    Technical Writer II.............................................             N/A              85              92
    Help Desk Support Analyst.......................................             N/A              55              60
    Production Support Manager......................................             N/A             126             137
    ----------------------------------------------------------------------------------------------------------------
    \a\ Source: OFLC. 2010. Independent Government Cost Estimate (IGCE). Accounts for 44.1 percent fringe.
    \b\ Adjusted using CPI-U (2014 annual) and CPI-U (2010 annual), or 236.736/218.056
    N/A: Not applicable.
    Sources: BLS, 2015; BLS, 2014a; BLS, 2014b.
    
    e. H-2B Employment in the Territory of Guam
        Subject to the transfer of authority to DOL, this interim final 
    rule applies to H-2B employers in the Territory of Guam only in that it 
    requires them to obtain prevailing wage determinations in accordance 
    with the process defined at 20 CFR 655.10. Because that transfer has 
    not been effectuated, this analysis does not reflect any costs related 
    to employment in Guam.
    4. Subject-by-Subject Analysis
        DOL's analysis below considers the expected impacts of the interim 
    final rule provisions against the baseline (i.e., the 2008 rule). The 
    sections detail the costs of provisions that provide additional 
    benefits for H-2B and/or workers in corresponding employment, expand 
    efforts to recruit U.S. workers, enhance transparency and worker 
    protections, and reduce the administrative burden on SWAs.
    a. Three-Fourths Guarantee
        In order to ensure that the capped H-2B visas are appropriately 
    made available to employers based on their actual need for workers, and 
    to ensure that U.S. workers can realistically evaluate the job 
    opportunity, DOL asserts that employers should accurately state their 
    beginning and end dates of need and the number of H-2B workers needed. 
    To the extent that employers submit Applications for Temporary 
    Employment Certification accurately reflecting their needs, the three-
    fourths guarantee provision should not represent a cost to employers, 
    particularly given the 12-week and 6-week periods over which to 
    calculate the guarantee.
    b. Application of H-2B Wages to Corresponding Workers
        There are two cohorts of corresponding workers: (1) The U.S. 
    workers hired in the recruitment process and (2) other U.S. workers who 
    work for the employer and who perform the substantially the same work 
    as the H-2B workers, other than those that fall under one of the two 
    exclusions in the definition. The former are part of the baseline for 
    purposes of the wage obligation, as employers have always been required 
    to pay U.S. workers recruited under the H-2B program the same 
    prevailing wage that H-2B workers get. Of the latter group of 
    corresponding workers, some will already be paid a wage equal to or 
    exceeding the H-2B prevailing wage so their wages represent no 
    additional cost to the employer. Those who are currently paid less than 
    the H-2B prevailing wage will have to be paid at a higher rate, with 
    the additional cost to the employer equal to the difference between the 
    former wage and the H-2B wage.
        As discussed above, DOL was unable to identify a reliable source of 
    data providing the number of corresponding workers at work sites for 
    which H-2B workers are requested or the hourly wages of those workers. 
    Nevertheless, DOL has attempted to quantify the impacts associated with 
    this provision. All increases in wages paid to corresponding workers 
    under this provision represent a transfer from participating employers 
    to U.S. workers.
        In the absence of reliable data, DOL can reasonably assume that H-
    2B workers make up 75 to 90 percent of the workers in a particular job 
    and location covered by the job order, with the remaining 10 to 25 
    percent of workers being corresponding workers newly covered by the 
    rule's wage requirement. When these rates are applied to its estimate 
    of the total number of H-2B workers (115,500) employed at any given 
    time, DOL estimates that the number of corresponding workers newly 
    covered by the corresponding employment provision will be between 
    12,833 and 38,500. This is an overestimate of the rule's impact since 
    some of the employees included in the 10-25 percent proportion of 
    corresponding workers are those hired in response to required 
    recruitment and are therefore already covered by the existing 
    regulation, and some employees will fall within one of the two 
    exclusions under the definition.
        The prevailing wage calculation represents a typical worker's wage 
    for a given type of work. The prevailing wage calculation is based on 
    the current wages received by all workers in the occupation and area of 
    intended employment. Based on OES data,\41\ DOL estimated that the 
    weighted mean wage for the top five occupations in the H-2B program 
    \42\ reflects approximately the 60th percentile of the wage 
    distribution of those occupations. Therefore, it is reasonable to 
    assume that 40 percent of the corresponding workforce earns a wage that 
    is equal to or greater than the calculated prevailing wage. Conversely,
    
    [[Page 24095]]
    
    it would be reasonable to assume that 60 percent of the workers in 
    corresponding employment earn less than the prevailing wage and would 
    have their wages increased as a result of the interim final rule. 
    Applying this rate to DOL's estimate of the number of workers covered 
    by the corresponding employment provision would mean that the number of 
    newly covered workers who would receive a wage increase is between 
    7,700 and 23,100.
    ---------------------------------------------------------------------------
    
        \41\ Bureau of Labor Statistics, Occupational Employment 
    Statistics, May 2014 data, http://www.bls.gov/oes/#data.
        \42\ Landscaping and Groundskeeping Workers (SOC code: 37-3011); 
    Maids and Housekeeping (SOC code: 37-2012); Amusement and Recreation 
    Attendants (SOC code: 39-3091); Forest and Conservation Workers (SOC 
    code: 45-4011); and Meat, Poultry, and Fish Cutters and Trimmers 
    (SOC code: 51-3022).
    ---------------------------------------------------------------------------
    
        These newly covered U.S. workers who are currently paid below the 
    new H-2B prevailing wage as established in the final wage rule 
    promulgated simultaneously with this interim final rule (generally the 
    OES mean in the area of intended employment) are likely to receive a 
    wage increase that would be the difference between the new H-2B 
    prevailing wage and their current wage. DOL estimated the weighted wage 
    differences between workers at the 10th percentile and workers at the 
    OES mean ($3.22), between workers at the 25th percentile and workers at 
    the OES mean ($2.39), and between workers at the 50th percentile and 
    workers at the OES mean ($1.03), respectively, for the top five 
    occupations of the H-2B program. Using these weighted average hourly 
    wage differences, DOL assumes that the wage increases for newly covered 
    corresponding workers will be distributed between three hourly wage 
    intervals: 10 percent of newly covered corresponding workers will 
    receive an average hourly wage increase of $3.22; 15 percent will 
    receive an average hourly wage increase of $2.39; and 35 percent will 
    receive an hourly wage increase of $1.03.
        Finally, DOL estimates that these workers in corresponding 
    employment will have their wages increased for 1,365 hours of work. 
    This assumes that every H-2B employer is certified for the maximum 
    period of employment of nine months (39 weeks), and that every 
    corresponding worker averages 35 hours of work per week for each of the 
    39 weeks. This is an upper-bound estimate since it is based on every 
    employer voluntarily providing in excess of the number of hours of work 
    required by the three-fourths guarantee for the maximum number of weeks 
    that can be certified.
        Therefore, based on all the assumptions noted above, DOL estimates 
    the total annual transfer incurred due to the increase in wages for 
    newly covered workers in corresponding employment ranges from $18.21 
    million to $54.62 million. See Table 4.
    
                                     Table 4--Transfer of Corresponding Worker Wages
    ----------------------------------------------------------------------------------------------------------------
                                                                          Percent
                          Hourly wage increase                         corresponding   Corresponding    Total cost
                                                                         employees       employees
    ----------------------------------------------------------------------------------------------------------------
                                       H-2B Workers Are 90% of Occupation at Firm
    ----------------------------------------------------------------------------------------------------------------
    $0.00...........................................................              40           5,133              $0
    $3.22...........................................................              10           1,283       5,633,075
    $2.39...........................................................              15           1,925       6,271,563
    $1.03...........................................................              35           4,492       6,303,264
                                                                     -----------------------------------------------
        Total.......................................................             100          12,833      18,207,902
    ----------------------------------------------------------------------------------------------------------------
                                       H-2B Workers Are 75% of Occupation at Firm
    ----------------------------------------------------------------------------------------------------------------
    $0.00...........................................................              40          15,400              $0
    $3.22...........................................................              10           3,850      16,903,617
    $2.39...........................................................              15           5,775      18,814,688
    $1.03...........................................................              35          13,475      18,898,641
                                                                     -----------------------------------------------
        Total.......................................................             100          38,500      54,616,946
    ----------------------------------------------------------------------------------------------------------------
    Source: DOL assumptions
    
        Also, based on DOL's review of available information on the 
    characteristics of industries employing H-2B workers, there will be 
    natural limit on the number of corresponding workers whose wages might 
    be affected by the revised rule. DOL found that two of the top five 
    industries that most commonly employ H-2B workers are landscaping 
    services and janitorial services. Establishments in these industries 
    tend to be small: Approximately seven percent of janitorial service and 
    three percent of landscaping establishments have more than 50 year-
    round employees; and 83 percent of janitorial services and 91 percent 
    of landscaping establishments have fewer than 20 year-round 
    employees.\43\ Further, 20 percent of janitorial service firms and 30 
    percent of firms in landscaping do not operate year-round.\44\ 
    Therefore, DOL believes that a majority of H-2B employers are small-
    sized firms whose workforces are composed predominately of H-2B 
    workers.
    ---------------------------------------------------------------------------
    
        \43\ United States Census Bureau, 2007 Economic Census, http://www.census.gov/econ/census/data/.
        \44\ United States Census Bureau, 2007 Economic Census, http://www.census.gov/econ/census/data/.
    ---------------------------------------------------------------------------
    
        Finally, to the extent that firms in landscaping and janitorial 
    services incur increased payroll costs, those increased costs are 
    unlikely to have a significant aggregate impact. A U.S. Bureau of 
    Economic Analysis (BEA) input-output analysis of the economy 
    demonstrates that the demand for ``Services to Buildings and 
    Dwellings'' (the sector in which janitorial and landscaping services 
    are classified) is highly diffused throughout the economy.\45\
    ---------------------------------------------------------------------------
    
        \45\ U.S. Department of Commerce, Bureau of Economic Analysis, 
    Direct Requirements/After Redefinitions/Producer Value (2007), 
    http://www.bea.gov/industry/io_annual.htm..
    ---------------------------------------------------------------------------
    
        BEA calculates Direct Requirements tables that indicate the dollar 
    amount of input from each industry necessary to produce one dollar of a 
    specified industry's output. These results show that building services 
    account for a relatively negligible proportion of production costs: Of 
    389 sectors, building services account for less than $0.01 for each 
    dollar of output in 379 sectors, and less than $0.005 for each dollar 
    of output in 369 sectors. The largest users of these services tend to 
    be
    
    [[Page 24096]]
    
    retail trade, government and educational facilities, hotels, 
    entertainment, and similar sectors. In other words, these services do 
    not impact industrial productivity or the production of commodities 
    that will result in large impacts that ripple throughout the economy. 
    To further place this in perspective, Services to Buildings and 
    Dwellings, upon which this characterization is based, includes more 
    than just the janitorial and landscaping service industries. The 
    estimated 39,295 H-2B workers hired by these industries account for 
    only 2.2 percent of employment in the Services to Buildings and 
    Dwellings sector, even including impacts through corresponding employee 
    provisions (described above as limited), and are only a small fraction 
    of the already small direct requirements figures for this sector.
        Therefore, based on the characteristics of industries that use H-2B 
    workers, only a relatively small fraction of employees and firms in 
    those industries likely will be affected by corresponding worker 
    provisions.
        However, because DOL does not have data on the number of 
    corresponding workers or their wages relative to prevailing wages, it 
    cannot project firm-level impacts to those firms that do have permanent 
    corresponding workers. Standard labor economic models suggest that an 
    increase in the cost of employing U.S. workers in corresponding 
    employment would reduce the demand for their labor. Because employers 
    cannot replace U.S. workers laid off 120 days before the date of need 
    or through the period of certification with H-2B workers, DOL concludes 
    that there would be no short-term reduction in the employment of 
    corresponding workers among participating employers. In the long-run, 
    however, these firms might be reluctant to hire additional permanent 
    staff. The extent to which such unemployment effects might result from 
    the prevailing wage provision will be a function of: The number of 
    permanent staff requiring wage increases; the underlying demand for the 
    product or service provided by the firm during off-peak periods; and 
    the firm's ability to substitute for labor to meet that off-peak demand 
    for its products or services. First, the fewer the number of permanent 
    staff receiving wage increases, the smaller the increase in the cost of 
    producing the good or service. Second, the demand for labor services is 
    a ``derived demand.'' That is, if the product or service provided has 
    few substitutes, purchasers would prefer to pay a higher price rather 
    than do without the product. Third, some goods and services are more 
    difficult to produce than others by substituting equipment or other 
    inputs for labor services. In summary, if increased wages result in a 
    small overall cost increase, demand for the product is inelastic, and 
    there are few suitable substitutes for labor in production, then 
    unemployment effects are likely to be relatively small.
    c. Transportation to and From the Place of Employment for H-2B Workers
        The interim final rule requires H-2B employers to provide workers--
    both H-2B workers and those in corresponding employment who are unable 
    to reasonably return to their permanent residences each day--with 
    transportation and daily subsistence to the place of employment from 
    the place from which the worker has come to work for the employer, 
    whether in the United States or abroad, if the worker completes 50 
    percent of the period of the job order. The employer must also pay for 
    or provide the worker with return transportation and daily subsistence 
    from the place of employment to the place from which the worker, 
    disregarding intervening employment, departed to work for the employer 
    if the worker completes the period of the job order or is dismissed 
    early. The impacts of requiring H-2B employers to pay for employees' 
    transportation and subsistence represent transfers from H-2B employers 
    to workers because they represent distributional effects, not a change 
    in society's resources.\46\
    ---------------------------------------------------------------------------
    
        \46\ For the purpose of this analysis, H-2B workers are 
    considered temporary residents of the United States.
    ---------------------------------------------------------------------------
    
        To estimate the transfer related to transportation, DOL first 
    calculated the average number of certified H-2B positions per year 
    during FY 2013-2014 from the 10 most common countries of origin, along 
    with each country's proportion of this total.\47\ These figures, 
    presented in Table 5, are used to create weighted averages of travel 
    costs in the analysis below.
    ---------------------------------------------------------------------------
    
        \47\ U.S. Department of Homeland Security (DHS). 2013. Yearbook 
    of Immigration Statistics. Available at http://www.dhs.gov/sites/default/files/publications/immigration-statistics/yearbook/2013/NI/nonimmsuptable2d.xls (accessed on March 18, 2015).
    
          Table 5--Number of H-2B Workers by Country of Origin, FY 2013
    ------------------------------------------------------------------------
                                                Number of       Percent of
                    Country                      workers          total
    ------------------------------------------------------------------------
    Mexico.................................          88,322             84.1
    Jamaica................................           5,827              5.6
    Guatemala..............................           2,734              2.6
    United Kingdom.........................           1,414              1.3
    South Africa...........................           1,009              1.0
    Philippines............................             922              0.9
    El Salvador............................             478              0.5
    Honduras...............................             409              0.4
    Canada.................................             337              0.3
    Romania................................             306              0.3
                                            --------------------------------
        Total..............................         104,984            100
    ------------------------------------------------------------------------
    Source: Department of Homeland Security, 2015.
    
        DOL calculates transportation costs by adding two components: The 
    estimated cost of a bus or ferry trip from a regional city \48\ to the 
    consular city to obtain a visa, and the estimated cost of a trip from 
    the consular city to St. Louis. Workers from Mexico and Canada (85 
    percent of the total) are assumed to travel by bus; workers from all 
    other
    
    [[Page 24097]]
    
    countries, by air. Because this interim final rule requires an employer 
    to hire U.S. applicants until 21 days before the date of need, 
    employers will not have to pay a premium for refundable fares. This 
    analysis, therefore, includes only the cost for non-refundable tickets.
    ---------------------------------------------------------------------------
    
        \48\ Where possible, DOL used a selection of cities to represent 
    travel from different regions of the country.
    ---------------------------------------------------------------------------
    
        The travel cost estimates are presented in Table 6. DOL estimated 
    the round-trip transportation costs by doubling the weighted average 
    one-way cost (for a round-trip travel cost of $836), then multiplying 
    by the annual number of H-2B workers entering the United States 
    (66,000). DOL estimates average annual transfer payments associated 
    with transportation expenditures to be approximately $55.2 million. 
    Employers likely are already paying some of this cost, either 
    voluntarily in order to secure the workers or because of the employer's 
    obligations under the FLSA Under the FLSA, the majority of H-2B 
    employers are required to pay for the proportion of inbound and 
    outbound transportation costs that would otherwise bring a worker's 
    earnings below the minimum wage in the first and last workweeks of 
    employment. However, it is not possible to determine how much of the 
    cost of transportation employers currently are paying. To the extent 
    that this does already occur, this transportation transfer is an upper-
    bound estimate. DOL also believes it has over-estimated this transfer 
    for the additional reason that inbound transportation is only due for 
    workers who complete 50 percent of the job order and outbound 
    transportation is due only for those who complete the full job order or 
    are dismissed early.
    
                    Table 6--Cost of Travel for H-2B Workers
    ------------------------------------------------------------------------
                          Item                                Value
    ------------------------------------------------------------------------
    New entrants per year..........................                   66,000
    ------------------------------------------------------------------------
                                     Mexico
    ------------------------------------------------------------------------
    One way travel (bus)--Hometown to Monterrey                          $52
     \49\..........................................
    One way travel (bus)--Monterrey to Juarez \50\.                       78
    One way travel (bus)--El Paso to St. Louis \51\                      230
                                                    ------------------------
        Total one way travel.......................                      360
    ------------------------------------------------------------------------
                                     Jamaica
    ------------------------------------------------------------------------
    One way travel (bus)--Hometown to Kingston \52\                        1
    One way travel (air)--Kingston to St. Louis                          502
     \53\..........................................
                                                    ------------------------
        Total one way travel.......................                      503
    ------------------------------------------------------------------------
                                    Guatemala
    ------------------------------------------------------------------------
    One way travel (bus)--Hometown to Guatemala                            2
     City \54\.....................................
    One way travel (air)--Guatemala City to St.                          758
     Louis \55\....................................
                                                    ------------------------
        Total one way travel.......................                      760
    ------------------------------------------------------------------------
                                 United Kingdom
    ------------------------------------------------------------------------
    One way travel (bus or rail)--Hometown to                             32
     London \56\...................................
    One way travel (air)--London to St. Louis \57\.                    2,006
                                                    ------------------------
        Total one way travel.......................                    1,143
    ------------------------------------------------------------------------
                                  South Africa
    ------------------------------------------------------------------------
    One way travel (bus)--Hometown to Johannesburg                        57
     \58\..........................................
    One way travel (air)--Johannesburg to St. Louis                    1,323
     \59\..........................................
                                                    ------------------------
        Total one way travel.......................                    1,380
    ------------------------------------------------------------------------
                                   Philippines
    ------------------------------------------------------------------------
    One way travel (ferry)--Hometown to Manila \60\                       40
    One way travel (air)--Manila to St. Louis \61\.                    1,735
                                                    ------------------------
        Total one way travel.......................                    1,775
    ------------------------------------------------------------------------
                                   El Salvador
    ------------------------------------------------------------------------
    One way travel (bus)--Hometown to San Salvador                         1
     \62\..........................................
    One way travel (air)--San Salvador to St. Louis                      472
     \63\..........................................
                                                    ------------------------
        Total one way travel.......................                      473
    ------------------------------------------------------------------------
                                    Honduras
    ------------------------------------------------------------------------
    One way travel (bus)--Hometown to Tegucigalpa                         23
     \64\..........................................
    
    [[Page 24098]]
    
     
    One way travel (air)--Tegucigalpa to St. Louis                       748
     \65\..........................................
                                                    ------------------------
        Total one way travel.......................                      771
    ------------------------------------------------------------------------
                                     Canada
    ------------------------------------------------------------------------
    One way travel (air)--Hometown to Ottawa \66\..                      175
    One way travel (bus)--Ottawa to St. Louis \67\.                      189
                                                    ------------------------
        Total one way travel.......................                      353
    ------------------------------------------------------------------------
                                     Romania
    ------------------------------------------------------------------------
    One way travel (bus)--Hometown to Bucharest                           28
     \68\..........................................
    One way travel (air)--Bucharest to St. Louis                       1,396
     \69\..........................................
                                                    ------------------------
        Total one way travel.......................                    1,424
    ------------------------------------------------------------------------
                                       All
    ------------------------------------------------------------------------
    One way travel--Weighted average...............                      418
    Roundtrip travel--Weighted average.............                      836
                                                    ------------------------
        Total Travel Costs--H-2B Workers...........               55,190,325
    ------------------------------------------------------------------------
    
    d. Transportation to and From the Place of Employment for Corresponding 
    Workers
    ---------------------------------------------------------------------------
    
        \49\ Omnibus de M[eacute]xico. 2015. Venta en L[iacute]nea. 
    Available at http://www.odm.com.mx/ (accessed on March 12, 2015). 
    Averages cost of a bus ticket to Monterrey from: Tampico (690 
    pesos), Actopan (875 pesos); and Ac[aacute]mbaro (835 pesos). 
    Converted from pesos to U.S. dollars at the rate of 0.065 pesos per 
    dollar for an average cost of $52.
        \50\ Omnibus de M[eacute]xico. 2015. Venta en L[iacute]nea. 
    Available at http://www.odm.com.mx/ (accessed on March 12, 2015). 
    The cost of a bus ticket from Monterrey to Ciudad Juarez is 1200 
    pesos, converted from pesos to U.S. dollars at the rate of 0.065 
    pesos per dollar for a cost of $78.
        \51\ Greyhound. 2015. Tickets. Available at https://www.greyhound.com/farefinder/ (accessed on March 12, 2015).
        \52\ Jamaica Guide. 2015. Jamaica Buses. Available at http://caribya.com/jamaica/buses/ (accessed on March 12, 2015).
        \53\ Orbitz. 2015. Home page. Available at http://www.orbitz.com/ (accessed on March 12, 2015).
        \54\ Virtual Tourist. 2015. Guatemala City Transportation. 
    Available at http://www.virtualtourist.com/travel/Caribbean_and_Central_America/Guatemala/Departamento_de_Guatemala/Guatemala_City-1671108/Transportation-Guatemala_City-TG-C-1.html 
    (accessed on March 12, 2015).
        \55\ Orbitz. 2015. Home page. Available at http://www.orbitz.com/ (accessed on March 12, 2015).
        \56\ Megabus. 2011. Megabus UK home page. Available at http://uk.megabus.com/default.aspxhttp\:uk.megabus.com (accessed on July 
    10, 2011) and Raileasy. 2011. Raileasy home page. Available at 
    https://www.raileasy.co.uk/ (accessed on July 10, 2011); average of 
    the cost of a bus ticket from three cities in England to London (GBP 
    15) and a train from Northern Ireland to London (GBP 50); Converted 
    at the rate of 1.36 GBP per USD for an average of $32.
        \57\ Orbitz. 2015. Home page. Available at http://www.orbitz.com/ (accessed on March 12, 2015).
        \58\ Computicket. 2015. Computicket home page. Available at 
    http://www.computicket.com/web/bus_tickets/ (accessed on March 12, 
    2015). The maximum bus fare from one of the farthest cities (Cape 
    Town) to Johannesburg is 715 Rand, which is approximately $57 (= 715 
    Rand x 0.08).
        \59\ Orbitz. 2015. Home page. Available at http://www.orbitz.com/ (accessed on March 12, 2015).
        \60\ Lonely Planet. 2015. Ferry travel in the Philippines. 
    Available at http://www.lonelyplanet.com/philippines/transport/getting-around (accessed on March 12, 2015).
        \61\ Orbitz. 2015. Home page. Available at http://www.orbitz.com/ (accessed on March 12, 2015).
        \62\ Rome2Rio. 2015. Home page. Available at https://www.rome2rio.com/s/Santa-Ana-El-Salvador/San-Salvador (accessed on 
    March 18, 2015).
        \63\ Orbitz. 2015. Home page. Available at http://www.orbitz.com/ (accessed on March 18, 2015).
        \64\ Rome2Rio. 2015. Home page. Available at http://www.rome2rio.com/s/Tegucigalpa/San-Pedro-Sula (accessed on March 18, 
    2015).
        \65\ Orbitz. 2015. Home page. Available at http://www.orbitz.com/ (accessed on March 18, 2015).
        \66\ Air Canada. 2011. Air Canada home page. Available at http://www.aircanada.com (accessed on July 10, 2011).
        \67\ Greyhound. 2015. Tickets. Available at https://www.greyhound.com/farefinder/ (accessed on March 12, 2015).
        \68\ Lonely Planet. 2015. Getting around Romania. Available at 
    http://www.lonelyplanet.com/romania/transport/getting-around/bus/ 
    (accessed on March 12, 2015). According to Lonely Planet, ``Figure 
    on about 3 to 4 lei for every 20km travelled.'' The travel distance 
    from one of the farthest cities (Baia Mare) to Bucharest is 
    approximately 600 km, so the maximum cost would be 120 lei (= 4 lei 
    x 600km/20km), which is approximately $28 (= 120 lei x 0.236).
        \69\ Orbitz. 2015. Home page. Available at http://www.orbitz.com/ (accessed on March 12, 2015).
    ---------------------------------------------------------------------------
    
        The interim final rule also requires the employer provide inbound 
    and outbound transportation to and from the place of employment for 
    corresponding workers who are unable to return daily to their permanent 
    residences. DOL estimates an approximate unit cost for each traveling 
    corresponding worker by taking the average of the cost of a bus ticket 
    to St. Louis from Fort Wayne, IN ($86), Pittsburgh, PA ($135), Omaha, 
    NE ($88), Nashville, TN ($81), and Palmdale, CA ($230).\70\ Averaging 
    the cost of travel from these five cities results in an average one way 
    cost of $124, and a round-trip cost of $248 (see Table 7).
    ---------------------------------------------------------------------------
    
        \70\ Greyhound. 2015. Tickets. Available at https://www.greyhound.com/farefinder/ (accessed on March 12, 2015).
    
               Table 7--Unit Costs of Corresponding Worker Travel
    ------------------------------------------------------------------------
                One way travel to  St. Louis, MO                   Cost
    ------------------------------------------------------------------------
    Fort Wayne, IN..........................................             $86
    Pittsburgh, PA..........................................             135
    Omaha, NE...............................................              88
    Nashville, TN...........................................              81
    Palmdale, CA............................................             230
    One way travel--Average.................................             124
    Round-trip travel.......................................             248
    ------------------------------------------------------------------------
    Source: Greyhound, 2015.
    
        Because DOL has no basis for estimating the number of workers in 
    corresponding employment who will travel to the job from such a 
    distance that they are unable to return daily to their permanent 
    residence, or to estimate what percentage of them will remain on the 
    job through at least half or all of the job order period, DOL is unable 
    to further estimate the total transfer involved.
    
    [[Page 24099]]
    
    e. Subsistence Payments
        DOL estimated the transfer related to subsistence payments by 
    multiplying the annual cap set for the number of H-2B workers generally 
    entering the United States (66,000) by the subsistence per diem 
    ($11.86), and the round-trip travel time for the top 10 H-2B countries 
    (4 days--3 days to account for travel from the worker's home town to 
    the consular city to obtain a visa and from the consular city to the 
    place of employment, and 1 day to account for the workers' 
    transportation back to their home town). Multiplying by 66,000 new 
    entrants per year and the subsistence per diem of $11.86 results in 
    average annual transfers associated with the subsistence per diem of 
    approximately $3.1 million (see Table 8). Again, this is an upper-bound 
    estimate because the inbound subsistence reimbursement only is due for 
    workers who complete 50 percent of the period of the job order and 
    outbound subsistence is due only for those who complete the full job 
    order period or are dismissed early.
    
                    Table 8--Transfer of Subsistence Payments
    ------------------------------------------------------------------------
                           Cost component                           Value
    ------------------------------------------------------------------------
    New entrants per year......................................       66,000
    Subsistence Per Diem.......................................       $11.86
    One way travel days--Inbound...............................            3
    One way travel days--Outbound..............................            1
    Round-trip travel days.....................................            4
                                                                ------------
      Total annual subsistence transfer for H-2B workers.......    3,131,040
    ------------------------------------------------------------------------
    
        This provision applies not only to H-2B workers, but also to 
    workers in corresponding employment on H-2B worksites who are recruited 
    from a distance at which the workers cannot reasonably return to their 
    residence within the same workday. Assuming that each worker can reach 
    the place of employment within 1 day and thus would be reimbursed for a 
    total of 2 round-trip travel days at a rate of $11.86 per day, each 
    corresponding worker would receive $23.72 in subsistence payments. DOL 
    was unable to identify adequate data to estimate the number of 
    corresponding workers who are unable to return to their residence daily 
    or, as a consequence, the percent of corresponding workers requiring 
    payment of subsistence costs; thus, the total cost of this transfer 
    could not be estimated.
    f. Lodging for H-2B Workers
        Any expenses incurred between a worker's hometown and the consular 
    city are within the scope of inbound transportation and subsistence 
    costs, which also includes lodging costs while H-2B workers travel from 
    their hometown to the consular city to wait to obtain a visa and from 
    there to the place of employment. DOL estimates that H-2B workers will 
    spend an average of two nights in an inexpensive hostel-style 
    accommodation and the costs of those stays in consular cities of the 10 
    most common countries of origin are as follows: Monterrey (Mexico), 
    $13.81; Kingston (Jamaica), $22.72; Guatemala City (Guatemala), $13.25; 
    London (United Kingdom), $38.66; Pretoria (South Africa), $17.55; 
    Manila (Philippines), $11.25; San Salvador (El Salvador), $10.00; 
    Tegucigalpa (Honduras), $15.78; Ottawa (Canada), $25.06; and Bucharest 
    (Romania), $10.38.\71\ Using the number of certified H-2B workers from 
    the top 10 countries of origin, DOL calculates a weighted average of 
    $14.13 for one night's stay, and $28.27 for two nights' stay. 
    Multiplying by the 66,000 new entrants per year suggests total 
    transfers associated with travel lodging of $1.9 million per year (see 
    Table 9). This cost would not apply to U.S. workers.
    ---------------------------------------------------------------------------
    
        \71\ HostelWorld.com. Available at http://www.hostelworld.com/ 
    (accessed on March 13, 2015).
    
                    Table 9--Cost of Lodging for H-2B Workers
    ------------------------------------------------------------------------
                         Cost component                            Value
    ------------------------------------------------------------------------
    New entrants per year...................................          66,000
    Nights in hostel........................................               2
    ------------------------------------------------------------------------
                              City                             Lodging Cost
    ------------------------------------------------------------------------
    Monterrey (Mexico)......................................          $13.18
    Kingston (Jamaica)*.....................................           22.72
    Guatemala City (Guatemala)..............................           13.25
    London (United Kingdom).................................           38.66
    Pretoria (South Africa).................................           17.55
    Manila (Philippines)....................................           11.15
    San Salvador (El Salvador)..............................           10.00
    Tegucigalpa (Honduras)..................................           15.78
    Ottawa (Canada).........................................           25.06
    Bucharest (Romania).....................................           10.38
    Weighted Average--One Night.............................           14.13
    Weighted Average--Two Nights............................           28.27
                                                             ---------------
        Total Cost of Lodging...............................       1,865,637
    ------------------------------------------------------------------------
    Source: Assumed foreign workers stayed in dormitory style accommodations
      at these hostels unless otherwise noted. *Foreign workers will stay at
      private accommodations at this hostel since dormitory style facilities
      were not provided.
    
    g. Visa and Consular Fees
        Under the 2008 rule, visa-related fees--including fees required by 
    the Department of State for scheduling and/or conducting an interview 
    at the Consulate--may be paid by the temporary worker. This interim 
    final rule, however, requires employers to pay visa fees and associated 
    consular expenses. Requiring employers to bear the full cost of their 
    decision to hire foreign workers is a necessary step
    
    [[Page 24100]]
    
    toward preventing the exploitation of foreign workers with its 
    concomitant adverse effect on U.S. workers. As explained in the 
    Preamble, government-mandated fees such as these are integral to the 
    employer's choice to use the H-2B program to bring temporary foreign 
    workers into the United States.
        The reimbursement by employers of visa application fees and fees 
    for scheduling and/or conducting an interview at the consular post is a 
    transfer from employers to H-2B workers. DOL estimates the total cost 
    of these expenses by adding the cost of an H-2B visa and any applicable 
    appointment and reciprocity fees. The H-2B visa fee is $160 in all of 
    the 10 most common countries of origin. We have not attributed a cost 
    with respect to Canada because Canadian citizens traveling to the 
    United States for temporary employment generally do not need a 
    visa,\72\ resulting in a weighted average visa fee of $159. The same 
    countries charge the following appointment fees: Mexico ($0),\73\ 
    Jamaica ($10),\74\ Guatemala ($12),\75\ the U.K. ($0),\76\ South Africa 
    ($0),\77\ Philippines ($10),\78\ El Salvador ($0), Honduras ($0), 
    Canada ($0),\79\ and Romania ($11),\80\ for a weighted average 
    appointment fee of $1.02. Additionally, South Africa charges a 
    reciprocity fee of $85, resulting in a weighted average of $0.84.\81\ 
    Multiplying the weighted average visa cost, appointment fee, and 
    reciprocity fee by the 66,000 H-2B workers entering the United States 
    annually results in an annual average transfer of visa-related fees 
    from H-2B employers to H-2B workers of $10.6 million (see Table 10). 
    Again, this is an upper-bound estimate because many H-2B employers 
    already are paying these fees in order to ensure compliance with the 
    FLSA's minimum wage requirements.
    ---------------------------------------------------------------------------
    
        \72\ U.S. Department of State. 2015. Citizens of Canada and 
    Bermuda--http://travel.state.gov/content/visas/english/visit/canada-bermuda.html (accessed on March 13, 2015).
        \73\ Consulate General of the United States--Monterrey--Mexico. 
    2015. Temporary worker. Available at http://monterrey.usconsulate.gov/work_visa.html (accessed on March 13, 
    2015).
        \74\ The U.S. Visa Information Service in Jamaica. 2011. How the 
    Online System Works. Available at http://www.usvisa-jamaica.com/jam/ 
    (accessed on July 22, 2011).
        \75\ Embassy of the United States--Guatemala. 2011. Application 
    Process. Available at http://guatemala.usembassy.gov/niv_how_to_apply.html#appointment (accessed on July 22, 2011).
        \76\ Embassy of the United States--London--U.K. 2011. MRV 
    Application Fee. Available at http://london.usembassy.gov/fee.html 
    (accessed on July 22, 2011).
        \77\ The U.S. Visa Information Service in South Africa. 2011. 
    Fee Payment Options. Available at http://usvisa-info.com/en-ZA/selfservice/us_fee_payment_options (accessed on July 22, 2011).
        \78\ Embassy of the United States--Manila--Philippines. 2011. 
    Visa PointTM--The Online Visa Information and Appointment 
    System. Available at http://manila.usembassy.gov/wwwhvpnt.html 
    (accessed on July 22, 2011).
        \79\ U.S. Department of State. 2011a. Citizens of Canada, 
    Bermuda and Mexico--When is a Visa Required? Available at http://travel.state.gov/visa/temp/without/without_1260.html (accessed on 
    July 22, 2011).
        \80\ Embassy of the United States--Bucharest--Romania. 2011. Non 
    Immigrant Visas. Available at http://romania.usembassy.gov/visas/visa_application_process.html (accessed on July 22, 2011).
        \81\ U.S. Department of State. 2015. Reciprocity by Country. 
    Available at http://travel.state.gov/content/visas/english/fees/reciprocity-by-country.html (accessed on March 13, 2015).
    
                    Table 10--Cost of Visa and Consular Fees
    ------------------------------------------------------------------------
                         Cost component                            Value
    ------------------------------------------------------------------------
    New Entrants per Year...................................          66,000
    ------------------------------------------------------------------------
                              Visa Application Fee
    ------------------------------------------------------------------------
    Mexico..................................................            $160
    Jamaica.................................................             160
    Guatemala...............................................             160
    United Kingdom..........................................             160
    South Africa............................................             160
    Philippines.............................................             160
    El Salvador.............................................             160
    Honduras................................................             160
    Canada..................................................               0
    Romania.................................................             160
    Weighted Average Visa Fee...............................             159
    H-2B Visa--Total Costs..................................      10,525,028
    ------------------------------------------------------------------------
                                 Appointment Fee
    ------------------------------------------------------------------------
    Mexico..................................................            0.00
    Jamaica.................................................           10.00
    Guatemala...............................................           12.00
    United Kingdom..........................................            0.00
    South Africa............................................            0.00
    Philippines.............................................           10.00
    El Salvador.............................................            0.00
    Honduras................................................            0.00
    Canada..................................................            0.00
    Romania.................................................           11.00
    Weighted Average Appointment Fee........................            1.02
    Appointment Fee--Total Costs............................          67,236
    ------------------------------------------------------------------------
                                 Reciprocity Fee
    ------------------------------------------------------------------------
    Mexico..................................................            0.00
    Jamaica.................................................            0.00
    Guatemala...............................................            0.00
    United Kingdom..........................................            0.00
    South Africa............................................           85.00
    Philippines.............................................            0.00
    El Salvador.............................................            0.00
    Honduras................................................            0.00
    Canada..................................................            0.00
    Romania.................................................            0.00
    Weighted Average Reciprocity Fee........................            0.84
    Reciprocity Fee--Total Costs............................          55,627
    ------------------------------------------------------------------------
                                   Total Costs
    ------------------------------------------------------------------------
    Total Visa and Consular Fees............................      10,647,891
    ------------------------------------------------------------------------
    Sources: Given in text.
    
    h. Enhanced U.S. Worker Referral Period
        The interim final rule ensures that U.S. workers are provided with 
    better access to H-2B job opportunities by requiring employers to 
    continue to hire any qualified and available U.S. worker referred to 
    them from the SWA until 21 days before the date of need, representing 
    an increase in the recruitment period compared to the baseline. The 
    rule also introduces expanded recruitment provisions, including 
    requiring employers to notify their current workforce of the job 
    opportunity and contact their former U.S. employees from the previous 
    year. The enhanced recruitment period and activities improve the 
    information exchange between employers, SWAs, the public, and workers 
    about job availability, increasing the likelihood that U.S. workers 
    will be hired for those jobs.
        The benefits to U.S. workers also apply to sections ``i'' through 
    ``j'' below, which discuss additional provisions aimed at further 
    improving the recruitment of U.S. workers.
        The extension of the referral period in this interim final rule 
    will likely result in more U.S. workers applying for these jobs, 
    requiring more SWA staff time to process additional referrals. DOL does 
    not have estimates of the additional number of U.S. applicants, and 
    thus is unable to estimate the costs to SWAs associated with this 
    provision.
        DOL believes that hiring a U.S. worker will cost employers less 
    than hiring an H-2B worker, as transportation and subsistence expenses 
    will likely be reduced, if not avoided entirely. The cost of visa fees 
    will be entirely avoided if U.S. workers are hired. Because DOL has not 
    identified appropriate data to estimate any increase in the number of 
    U.S. workers that might be hired as a result of the interim final 
    rule's enhanced recruitment, it is unable to estimate total cost 
    savings. Likewise, the enhanced recruitment period along with more 
    extensive recruitment activities and a number of program changes that 
    should make these job opportunities more desirable should generate an 
    increased number of local referrals for whom no
    
    [[Page 24101]]
    
    transportation or subsistence costs will be incurred. Since the number 
    of such workers cannot be estimated with precision, these cost saving 
    are not factored into this analysis; however, DOL is confident the 
    actual overall costs to employers for transportation and subsistence 
    will be lower than the estimates provided here.
    i. Additional Recruitment Directed by the CO
        Under the interim final rule, an employer may be directed by the CO 
    to conduct additional recruitment if the CO has determined that there 
    may be qualified U.S. workers available, particularly when the job 
    opportunity is located in an area of substantial unemployment. This 
    provision applies to all employer applicants regardless of whether they 
    ultimately employ H-2B workers. Therefore, DOL estimates costs using 
    the estimated number of unique employer applicants for FY 2013-2014 
    (4,657). DOL conservatively estimates that 50 percent of these employer 
    applicants (2,329) will be directed by the CO to conduct additional 
    recruitment.
        To estimate the cost of a newspaper advertisement, DOL calculates 
    the cost of placing a classified advertisement in the following 
    newspapers: The Virginian Pilot ($574.00),\82\ The Austin Chronicle 
    ($76.60),\83\ The Gainesville Sun ($569.24),\84\ Plaquemines (LA) 
    Gazette ($70.00),\85\ Aspen Times ($513.00),\86\ and Branson Tri-Lakes 
    News ($104.00),\87\ for an average cost of $318. Employers may use 
    other means of recruiting, such as listings on Monster.com ($375) \88\ 
    and Career Builder ($419).\89\ Because so many newspapers include 
    posting of the advertisement on their Web sites and/or Career Builder 
    in the cost of the print advertisement, DOL bases the estimate on the 
    cost of newspaper recruiting. Multiplying the number of unique employer 
    applicants who will be directed to conduct additional recruitment 
    (2,329) by the average cost of a newspaper advertisement ($318) results 
    in a total cost for newspaper ads of $0.7 million.
    ---------------------------------------------------------------------------
    
        \82\ The Virginian Pilot, available at http://selfserve.pilotezads.com/vp-adportal/classified/index.html. Selected 
    the Platinum package for 14 days (accessed on March 12, 2015).
        \83\ The Austin Chronicle. 2015. Place an Ad. Selected the Gold 
    Plan. Available at http://austinchronicle.adperfect.com/?catid=33631&chanid=C0A801411d5931FD07Ggh2E376AE&clsid=621631 
    (accessed on March 12, 2015).
        \84\ The Gainesville Sun, available at http://gainesvillesun.adperfect.com/. Selected Employment Print and Online 
    option (Thursday through Sunday). The latter option was for two 
    weeks.
        \85\ The Plaquemines Gazette, available at http://plaqueminesgazette.com/?page_id=118. For this newspaper selected $5 
    per day ad for 14 days.
        \86\ Contacted the classified ad staff for the Aspen Times. They 
    do not give quotes over the phone because it depends on the number 
    of lines, length of time published, and other variables. The staff 
    member stated employment classifieds could run at least $300 up to 
    $1,000. The rate of $513 was used for this publication.
        \87\ Contacted the classified ad staff on March 12, 2015. The 
    paper is only published on Wednesday and Saturdays of each week. For 
    a 30-word ad, for one week is $32 and for two weeks is $64. For one 
    month, it is $104.
        \88\ Monster.com. 2015. Job Postings Inventory. Available at 
    http://hiring.monster.com/indexProspect.Redux.aspx (accessed on 
    March 12, 2015).
        \89\ CareerBuilder. 2015. Job Posting. Available at https://www.careerbuilder.com/JobPoster/ECommerce/CartOrderSummary.aspx?cblid=epjobbtn&sc_cmp2=JP_HP_PostJobButton&sslRedirectCnt=1 (accessed on March 12, 2015).
    ---------------------------------------------------------------------------
    
        DOL estimates that no more than 10 percent of employer applicants 
    (i.e., 20 percent of those directed to conduct additional recruiting) 
    will need to translate the advertisement in order to recruit workers 
    whose primary language is not English. DOL calculated translation costs 
    for translating a one-page document from English to any language to be 
    $21.95.\90\ Multiplying the number of employers performing translation 
    (466) by the translation cost results in total translation costs of 
    $0.01 million.
    ---------------------------------------------------------------------------
    
        \90\ ServiceScape. 2015. How it Works--Cost Calculator. 
    Available at http://www.servicescape.com/help.asp (accessed on March 
    12, 2015).
    ---------------------------------------------------------------------------
    
        To account for labor costs in posting additional ads, DOL 
    multiplies the estimated number of unique employer applicants required 
    to conduct additional recruiting (2,329) by the estimated time required 
    to post the advertisement (0.08 hours, or 5 minutes) and the loaded 
    hourly compensation rate of an administrative assistant/executive 
    secretary ($34.15). The result, $0.01 million, is added to the average 
    annual cost of CO-directed recruiting activities for a total of 
    approximately $0.8 million (see Table 11).
    
                     Table 11--Cost of Additional Recruiting
    ------------------------------------------------------------------------
                         Cost component                            Value
    ------------------------------------------------------------------------
    Number of unique H-2B employer applicants...............           4,657
    Percent directed to conduct additional recruiting.......             50%
    Employer applicants conducting additional recruiting....           2,329
    Newspaper advertisement--Unit cost......................            $318
                                                             ---------------
      Total Cost of Newspaper Ad............................        $740,463
    Percent of employer applicants needing to perform                    10%
     translation............................................
    Employers performing translation........................             466
    English to any language (two day delivery)..............             $22
                                                             ---------------
      Total Cost of Translation.............................         $10,222
    Time to post advertisement (hours)......................            0.08
    Administrative Assistant hourly wage w/fringe...........          $34.15
                                                             ---------------
      Total Cost of Labor to Post Newspaper Ad..............          $6,362
    ------------------------------------------------------------------------
                                   Total Cost
    ------------------------------------------------------------------------
    Total Cost of Additional Recruiting.....................        $757,047
    ------------------------------------------------------------------------
    Sources: BLS, 2011a; BLS, 2011b; U.S. Census, 2008; ServiceScape 2015;
      Consulted the following publications for their rates on employment
      classifieds: Branson Tri-Lake News; Aspen Times; The Austin Chronicle;
      The Gainesville Sun; Plaquemines Gazette; The Virginian Pilot.
    
        It is possible that employers will incur costs from interviewing 
    applicants who are referred to H-2B employers by the additional 
    recruiting activities. However, DOL is unable to quantify the impact.
    j. Electronic Job Registry
        Under the interim final rule, DOL will post and maintain employers' 
    H-2B job orders, including modifications approved by the CO, in a 
    national and publicly accessible electronic job registry. The 
    electronic job registry will serve as a public repository of H-2B job 
    orders for the duration of the referral period. The job orders will be 
    posted in the registry by the CO upon the acceptance of each submitted 
    Application for Temporary Employment Certification. The posting of the 
    job orders will not require any additional effort on the part of H-2B 
    employers or SWAs.
    i. Benefits
        The electronic job registry will improve the visibility of H-2B 
    jobs to U.S. workers. In conjunction with the longer referral period 
    under the interim final rule, the electronic job registry will expand 
    the availability of information about these jobs to U.S. workers, and 
    therefore improve their employment opportunities. In addition, the 
    establishment of an electronic job registry will provide greater 
    transparency of DOL's administration of
    
    [[Page 24102]]
    
    the H-2B program to the public, members of Congress, and other 
    stakeholders. Transferring these job orders into electronic records for 
    the electronic job registry will result in a more complete, real-time 
    record of job opportunities for which H-2B workers are sought. 
    Employers seeking temporary workers, in turn, will likely experience an 
    increase in job applications from U.S. workers, and thus may not incur 
    the additional expenses of hiring H-2B workers. DOL, however, is not 
    able to estimate the increase in job applications resulting from the 
    electronic job registry, and thus is unable to quantify this benefit.
    ii. Costs
        The establishment of an electronic job registry in this interim 
    final rule represents increased maintenance costs to DOL. DOL estimates 
    that first-year costs will be 25 percent of the first-year costs under 
    the H-2A program (25 percent of $561,365, or $140,341) and that 
    subsequent year costs will be 10 percent of the costs under the H-2A 
    program (10 percent of $464,341, or $46,434). Using the loaded hourly 
    rate for all relevant labor categories ($1,342) suggests that 105 labor 
    hours will be required in the first year, and 35 labor hours will be 
    required in subsequent years (see Table 12).
    
                    Table 12--Cost of Electronic Job Registry
    ------------------------------------------------------------------------
                         Cost component                            Value
    ------------------------------------------------------------------------
    Sum of All Labor Category Loaded Wages..................          $1,342
    Registry development and maintenance hours--Year 1......             105
    Registry maintenance hours--Year 2-10...................              35
    Cost to DOL to Develop and Maintain Job Registry--Year 1        $140,341
    Cost to DOL to Maintain Job Registry--Year 2-10.........         $46,434
    ------------------------------------------------------------------------
    
    k. Disclosure of Job Order
        The interim final rule requires an employer to provide a copy of 
    the job order to H-2B workers outside the United States no later than 
    the time at which the worker applies for the visa, and to workers in 
    corresponding employment no later than the day that work starts. For H-
    2B workers changing employment from one certified H-2B employer to 
    another, the copy must be provided no later than the time the 
    subsequent H-2B employer makes an offer of employment. The job order 
    must be translated to a language understood by the worker.
        DOL estimates two cost components for the disclosure of job orders: 
    the cost of reproducing the document containing the terms and 
    conditions of employment, and the cost of translation.
        The cost of reproducing job orders does not apply to employers of 
    reforestation workers because the Migrant and Seasonal Agricultural 
    Worker Protection Act already requires these employers to make this 
    disclosure in a language common to the worker. According to H-2B 
    program data for FY 2013-2014, 89.1 percent of H-2B workers work in an 
    industry other than reforestation, suggesting that the job order will 
    need to be reproduced for 102,911 (89.1 percent of 115,500) H-2B 
    workers. DOL estimates the cost of reproducing the terms and conditions 
    document by multiplying the number of affected H-2B workers (102,911) 
    by the number of pages to be photocopied (3) and by the cost per 
    photocopy ($0.09). DOL estimates average annual costs of reproducing 
    the document containing the terms and conditions of employment to be 
    approximately $0.03 million (see Table 13).
        DOL estimates that 91.6 percent of H-2B workers from the top 10 
    countries of origin do not speak English,\91\ so approximately 3,621 H-
    2B employers will need to translate their job orders. DOL assumes that 
    an employer hires all of its H-2B workers from a country or set of 
    countries that speak the same foreign language; thus, only one 
    translation is necessary per employer needing translation. The estimate 
    of the cost of translating a 3-page document into English from 
    languages spoken in the top 10 countries of origin is $56.85.\92\ 
    Multiplying the number of H-2B employers who will need to translate the 
    job order (3,621) by the cost of translation ($56.85) suggests that 
    translation costs will total $0.2 million (see Table 13).
    ---------------------------------------------------------------------------
    
        \91\ U.S. Department of Homeland Security (DHS). 2013. Yearbook 
    of Immigration Statistics. Available at http://www.dhs.gov/sites/default/files/publications/immigration-statistics/yearbook/2013/NI/nonimmsuptable2d.xls (accessed on March 18, 2015).
        \92\ ServiceScape. 2015. How it Works--Cost Calculator. 
    Available at http://www.servicescape.com/help.asp (accessed on March 
    12, 2015).
    ---------------------------------------------------------------------------
    
        Summing the costs of reproducing and translating the job order 
    results in total costs related to disclosure of the job order of $0.2 
    million (see Table 13).
    
                    Table 13--Cost of Disclosure of Job Order
    ------------------------------------------------------------------------
                         Cost component                            Value
    ------------------------------------------------------------------------
                              Reproducing Job Order
    ------------------------------------------------------------------------
    H-2B workers............................................         115,500
    Percent workers not in reforestation....................           89.1%
    Affected workers........................................         102,911
    Pages to be photocopied.................................               3
    Cost per page...........................................           $0.09
    Cost per job order......................................           $0.27
                                                             ---------------
        Total Cost of Reproducing Document..................         $27,786
    ------------------------------------------------------------------------
                              Translating Job Order
    ------------------------------------------------------------------------
    Number of unique certified H-2B employers...............           3,955
    Percent workers needing translation.....................           91.6%
    
    [[Page 24103]]
    
     
    Employers performing translation........................           3,621
    English to any language--3 page document, 2 day delivery          $56.85
                                                             ---------------
        Total Translation Cost..............................        $205,868
    ------------------------------------------------------------------------
                                   Total Cost
    ------------------------------------------------------------------------
    Total Cost of Disclosure of Job Order...................        $233,654
    ------------------------------------------------------------------------
    Sources: DHS, 2009; ServiceScape, 2015.
    
     l. Use of Post-Filing Recruitment Model
        The 2008 rule used an attestation-based model: employers conducted 
    the required recruitment before submitting an Application for Temporary 
    Employment Certification and, based on the results of that effort, 
    applied for certification from DOL for a number of foreign workers to 
    fill the remaining openings. Employers simply attested that they had 
    undertaken the necessary activities and made the required assurances to 
    workers. DOL has determined that this attestation-based model did not 
    provide sufficient protection to workers. The recruitment process under 
    this interim final rule occurs after the Application for Temporary 
    Certification is filed so that employers have to demonstrate--and not 
    merely attest--that they have performed an adequate test of the labor 
    market. Therefore, the primary effect of the interim final rule is to 
    change the timing of recruitment rather than to change the substantive 
    requirements.
        Using a post-filing recruitment model in which employers 
    demonstrate compliance with program obligations before certification 
    will improve worker protections and reduce various costs for several 
    different stakeholders. Greater compliance will provide improved 
    administration of the program, conserving government resources at both 
    the State and Federal levels. In addition, employers will be subject to 
    fewer requests for additional information and denials of Applications, 
    decreasing the time and expense of responding to these DOL actions. 
    Finally, it will result in the intangible benefit of increased H-2B 
    visa availability to those employers who have conducted bona fide 
    recruitment around an actual date of need. DOL, however, is not able to 
    estimate the economic impacts of these several effects and is therefore 
    unable to quantify the related benefits.
        Requiring post-filing recruitment will impose minimal costs on 
    employers because they will not be required to produce new documents, 
    but only to supplement their recruitment report with additional 
    information (including the additional recruitment conducted, means of 
    posting the job opportunity, contact with former U.S. workers, and 
    contact with labor organizations where the occupation is customarily 
    unionized).
        DOL estimated two costs for post-filing recruitment: the material 
    cost of reproducing and mailing the documents, and the associated labor 
    cost. DOL estimated material costs equal to $2,492, calculated by 
    multiplying the number of unique certified H-2B employers (3,955) by 
    the estimated additional number of pages that must be submitted (3) and 
    the additional postage required to ship those pages ($0.21). DOL 
    estimated labor cost of $10,806 by multiplying the number of unique 
    certified H-2B employers (3,955) by the time needed to reproduce and 
    mail the documents (0.08 hours, or 5 minutes) and the hourly labor 
    compensation of an administrative assistant/executive secretary 
    ($34.15). Summing these two components results in incremental costs of 
    $0.01 million per year associated with post-filing recruitment (see 
    Table 14).
    
                    Table 14--Cost of Post-Filing Recruitment
    ------------------------------------------------------------------------
                  Cost component                            Value
    ------------------------------------------------------------------------
                                  Postage Costs
    ------------------------------------------------------------------------
    Number of unique certified H-2B employers.                         3,955
    Additional pages to submit................                             3
    Additional postage........................                         $0.21
                                               -----------------------------
        Total Postage Costs...................                        $2,492
    ------------------------------------------------------------------------
                   Labor Costs to Photocopy and Mail Documents
    ------------------------------------------------------------------------
    Number of unique certified H-2B employers.                         3,955
    Labor time to photocopy and mail documents                          0.08
     (hours)..................................
    Administrative Assistant hourly wage with                         $34.15
     fringe...................................
                                               -----------------------------
        Total Labor Costs to Photocopy and                           $10,806
         Mail Documents.......................
    ------------------------------------------------------------------------
                                   Total Cost
    ------------------------------------------------------------------------
    Total Costs of Post-Filing Recruitment....                       $13,297
    ------------------------------------------------------------------------
    Sources: In January 2014, first class mail increased temporarily to 49
      cents for one ounce while two ounces would be 70 cents. So the extra
      postage is 70 cents-49 cents, or 21 cents. See the latest first class
      mail prices at http://pe.usps.com/cpim/ftp/manuals/dmm300/Notice123.pdf on page 1 (accessed on March 12, 2015).
    
    
    [[Page 24104]]
    
    n. Document Retention
        Under the interim final rule, H-2B employers must retain 
    documentation in addition to that required by the 2008 rule. DOL 
    assumes that each H-2B employer will purchase a filing cabinet at a 
    cost of $67.99 \93\ in which to store the additional documents starting 
    in the first year of the rule. To obtain the cost of storing documents, 
    DOL multiplies the number of unique certified H-2B employers (3,955) by 
    the cost per file cabinet for a total one-time cost of $0.3 million 
    (see Table 15). This cost is likely an overestimate since the 2008 rule 
    also required document retention and many employers who already use the 
    H-2B program will already have bought a file cabinet to store the 
    documents they were required to retain under that rule.
    ---------------------------------------------------------------------------
    
        \93\ Price at Office Depot. Vertical file cabinets. Available at 
    http://www.officedepot.com/a/browse/vertical-metal-file-cabinets/N=5+501585&cbxRefine=311457&recordsPerPageNumber=24&No=0/ (accessed 
    on March 12, 2015).
    
                      Table 15--Cost of Document Retention
    ------------------------------------------------------------------------
                         Cost component                            Value
    ------------------------------------------------------------------------
    Number of unique certified H-2B employers...............           3,955
    Filing cabinet..........................................          $67.99
                                                             ---------------
        Total Document Retention Costs......................        $268,900
    ------------------------------------------------------------------------
    Source: Office Depot, 2015.
    
    m. SWA Administrative Burden
        Under this interim final rule, SWAs will see both additions to and 
    reductions from the baseline workload. Additional responsibilities that 
    the SWAs will take on include contacting labor organizations to inform 
    them about a job opportunity when the occupation or industry is 
    customarily unionized, and accepting and processing a likely larger 
    number of U.S. applicants during the extended recruitment period. DOL, 
    however, does not have reliable data to measure these increased 
    activities and is therefore unable to provide an estimate of the 
    increased workload.
        In contrast, SWAs will not be responsible for conducting employment 
    eligibility verification activities. These activities included 
    completion of Form I-9 and vetting of application documents by SWA 
    personnel.
        Under the 2008 rule, SWAs were required to complete Form I-9 for 
    applicants who are referred through the SWA to non-agricultural job 
    orders, and inspect and verify the employment eligibility documents 
    furnished by the applicants. Under this interim final rule, SWAs will 
    not be required to complete this process, resulting in cost savings. 
    Due to a lack of data on the number of SWA referrals, DOL is not able 
    to quantify this cost reduction.
    n. Read and Understand the Rule
        During the first year that the interim final rule will be in 
    effect, H-2B employer applicants will need to learn about the new 
    processes and requirements. DOL estimates the cost to read and 
    understand the rule by multiplying the average number of unique H-2B 
    employer applicants in FY 2013-2014 (4,657) by the time required to 
    read the new rule and associated educational and outreach materials (3 
    hours), and the loaded hourly wage of a human resources manager 
    ($69.83). In the first year of the rule, this amounts to labor costs of 
    approximately $1.0 million (see Table 16).
    
                   Table 16--Cost To Read and Understand Rule
    ------------------------------------------------------------------------
                         Cost component                           Value6
    ------------------------------------------------------------------------
    Number of unique H-2B employer applicants...............           4,657
    Time to read rule and materials (hours).................               3
    HR Manager hourly wage..................................          $69.83
                                                             ---------------
        Total Cost to Read and Understand Rule..............        $975,607
    ------------------------------------------------------------------------
    Sources: The median hourly wage rate was obtained Occupational and
      Employment Statistics, 2013, Bureau of Labor Statistics, accessed
      from: http://www.bls.gov/oes/current/oes_nat.htm#13-0000.
    
    o. Job Posting Requirement
        The interim final rule requires employers applying for H-2B 
    certification to post a notice of the job opportunity in two 
    conspicuous locations at the place of anticipated employment (when 
    there is no union representative) for at least 15 consecutive days. 
    This provision entails additional reproduction costs. To obtain the 
    total cost incurred due to the job posting requirement, DOL multiplied 
    the average number of unique H-2B employer applicants FY 2013-2014 
    (4,657) by the cost per photocopy ($0.09) and the number of postings 
    per place of employment (2), which amounts to $838 per year (see Table 
    17).
    
                    Table 17--Cost of Job Posting Requirement
    ------------------------------------------------------------------------
                         Cost component                            Value
    ------------------------------------------------------------------------
    Number of unique H-2B employer applicants...............           4,657
    Job postings per work site..............................               2
    Cost per photocopy......................................           $0.09
                                                             ---------------
        Total Cost to Post Job Opportunity..................            $838
    ------------------------------------------------------------------------
    
    p. Workers' Rights Poster
        In addition, the interim final rule requires employers to post and 
    maintain in a conspicuous location at the place of employment a poster 
    provided by DOL which sets out the rights and protections for workers. 
    The poster must be in English and, to the extent necessary and as 
    provided by DOL, foreign language(s) common to a significant portion of 
    the workers if they are not fluent in English. To estimate the cost of 
    producing workers' rights posters, DOL multiplied the estimated number 
    of unique certified H-2B employers (3,955) by the cost of downloading 
    and printing the poster ($0.09). In total, the cost of producing 
    workers' rights posters is $356 per year (see Table 18). If an employer 
    needs to download and print additional versions of the poster in 
    languages other than English, this would result in increased costs.
    
                     Table 18--Cost of Workers' Right Poster
    ------------------------------------------------------------------------
                         Cost component                            Value
    ------------------------------------------------------------------------
    Number of unique certified H-2B employers...............           3,955
    Cost per poster.........................................           $0.09
                                                             ---------------
        Total Cost of Workers' Rights Poster................            $356
    ------------------------------------------------------------------------
    
    5. Summary of Cost-Benefit Analysis
        Table 19 presents a summary of the costs associated with this 
    interim final rule. Because of data limitations on the number of 
    corresponding workers and U.S. workers expected to fill positions 
    currently held by H-2B workers, DOL was not able to monetize any costs 
    of the rule that would arise as a result of deadweight losses 
    associated with higher employment costs under the interim final rule. 
    However, because the size of the H-2B program is limited, DOL expects 
    that any deadweight loss would be small. The monetized costs displayed 
    are the annual summations of the calculations described above. The 
    total undiscounted costs of the rule in
    
    [[Page 24105]]
    
    Years 1-10 are expected to total approximately $11.85 million.
    
                                    Table 19--Total Costs and Transfers--Undiscounted
    ----------------------------------------------------------------------------------------------------------------
                Cost component                   Year 1 costs           Year 2-10 costs          Year 1-10 costs
    ----------------------------------------------------------------------------------------------------------------
                                                        Transfers
    ----------------------------------------------------------------------------------------------------------------
    Corresponding Workers' Wages--90       $18,207,902............  $18,207,902............  $182,079,024
     Percent.
    Corresponding Workers' Wages--75       $54,616,946............  $54,616,946............  $546,169,461
     percent.
    Transportation.......................  $55,190,325............  $55,190,325............  $551,903,254
    Subsistence..........................  $3,131,040.............  $3,131,040.............  $31,310,400
    Lodging..............................  $1,865,637.............  $1,865,637.............  $18,656,366
    Visa and Border Crossing Fees........  $10,647,891............  $10,647,891............  $106,478,908
    Total Transfers--Low.................  $87,241,061............  $87,241,061............  $890,427,952.48
    Total Transfers--High................  $125,451,839...........  $125,451,839...........  $1,254,518,389.50
    ----------------------------------------------------------------------------------------------------------------
                                                Annual Costs to Employers
    ----------------------------------------------------------------------------------------------------------------
    Additional Recruiting................  $757,047...............  $757,047...............  $7,570,469
    Disclosure of Job Order..............  $233,654...............  $233,654...............  $2,336,540
    Elimination of Attestation-Based       $13,297................  $13,297................  $132,972
     Model.
    Post Job Opportunity.................  $838...................  $838...................  $8,383
    Workers' Rights Poster...............  $356...................  $356...................  $3,560
                                          --------------------------------------------------------------------------
        Total Annual Costs to Employers..  $1,005,192.............  $1,005,192.............  $10,051,923
    ----------------------------------------------------------------------------------------------------------------
                                              First Year Costs to Employers
    ----------------------------------------------------------------------------------------------------------------
    Read and Understand Rule.............  $975,607...............  $0.....................  $975,607
    Document Retention...................  $268,900...............  $0.....................  $268,900
                                          --------------------------------------------------------------------------
        Total First Year Costs to          $1,244,507.............  $0.....................  $1,244,507
         Employers.
    ----------------------------------------------------------------------------------------------------------------
                                                   Costs to Government
    ----------------------------------------------------------------------------------------------------------------
    Electronic Job Registry..............  $140,341...............  $46,434................  $558,248
    Enhanced U.S. Worker Referral Period.  Not Estimated..........  Not Estimated..........  Not Estimated
                                          --------------------------------------------------------------------------
        Total Costs to Government........  $140,341...............  $46,434................  $558,248
    ----------------------------------------------------------------------------------------------------------------
                                                       Total Costs
    ----------------------------------------------------------------------------------------------------------------
    Total Costs and Transfers--Low.......  $91,432,836............  $90,094,422............  $902,282,631
    Total Costs and Transfers--High......  $127,841,880...........  $126,503,465...........  $1,266,373,068
    Total Transfers--Low.................  $89,042,795............  $89,042,795............  $890,427,952
    Total Transfers--High................  $125,451,839...........  $125,451,839...........  $1,254,518,390
    Total Costs..........................  $2,390,041.............  $1,051,626.............  $11,854,679
    ----------------------------------------------------------------------------------------------------------------
    Note: Totals may not sum due to rounding.
    
        Summing the present value of the costs in Years 1-10 results in 
    total discounted costs over 10 years of $9.24 million to $10.58 million 
    (with 7 percent and 3 percent discounting, respectively) (see Table 
    20). The total transfers over 10 years range from $669.18 million to 
    $942.80 million and from $792.92 million to $1,112.81 million with 7 
    percent and 3 percent discounting, respectively. The annual average 
    cost is $0.92 million with 7 percent discounting and $1.06 million with 
    3 percent discounting. The annual average transfers range from $66.92 
    million to $94.28 million with 7 percent discounting and from $79.29 to 
    $111.28 million with 3 percent discounting.
    
           Table 20--Total Costs and Transfers--Sum of Present Values
    ------------------------------------------------------------------------
                       Cost component                       Year 1-10 costs
    ------------------------------------------------------------------------
                          Present Value--7% Discounting
    ------------------------------------------------------------------------
    Total Costs & Transfers--Low........................        $678,418,918
    Total Costs & Transfers--High.......................         952,041,337
    Total Transfers--Low................................         669,177,286
    Total Transfers--High...............................         942,799,706
    Total Costs.........................................           9,241,631
    ------------------------------------------------------------------------
                          Present Value--3% Discounting
    ------------------------------------------------------------------------
    Total Costs & Transfers--Low........................        $792,917,817
    Total Costs & Transfers--High.......................       1,112,811,640
    Total Transfers--Low................................         782,339,698
    Total Transfers--High...............................       1,102,233,521
    
    [[Page 24106]]
    
     
    Total Costs.........................................          10,578,119
    ------------------------------------------------------------------------
    Note: Totals may not sum due to rounding.
    
        Because DOL was not able to monetize any benefits for this interim 
    final rule due to the lack of adequate data, the monetized costs exceed 
    the monetized benefits both at a 7 percent and a 3 percent discount 
    rate.
        DOL was unable to identify data to provide monetary estimates of 
    several important benefits to society, including increased employment 
    opportunities for U.S. workers and enhancement of worker protections 
    for U.S. and H-2B workers. These important benefits (and cost 
    reductions) result from the following provisions of this interim final 
    rule: the enhanced U.S. worker referral period, additional recruiting 
    directed by the CO, the electronic job registry, transportation to and 
    from the place of employment, payment of visa and consular fees, the 
    job posting requirement, and enhanced integrity and enforcement 
    provisions. Because the enhanced referral period extends the time 
    during which jobs are available to U.S. workers, it increases the 
    likelihood that U.S. workers are hired for those jobs. In addition, the 
    electronic job registry will improve the visibility of H-2B jobs to 
    U.S. workers and enhance their employment opportunities. In addition, 
    the establishment of an electronic job registry will provide greater 
    transparency with respect to DOL's administration of the H-2B program 
    to the public, members of Congress, and other stakeholders.
        The changes and increased protections for workers will result in an 
    improved ability on the part of workers and their families to meet 
    their costs of living and spend money in their local communities. These 
    protections may also decrease turnover among U.S. workers and thereby 
    decrease the costs of recruitment and retention to employers. Reduced 
    worker turnover is associated with lower costs to employers arising 
    from recruiting and training replacement workers. Because seeking and 
    training new workers is costly, reduced turnover leads to savings for 
    employers. Research indicates that decreased turnover costs partially 
    offset increased labor costs.\94\ In addition, greater worker 
    protections may increase a worker's productivity by incentivizing the 
    worker to work harder. Thus, the additional costs may be partially 
    offset by higher productivity. A strand of economic research, commonly 
    referred to as ``efficiency wages,'' indicates that employees may 
    interpret the greater protections as a signal of the employer's good 
    will and reciprocate by working harder, or they put in more effort in 
    order to reduce the risk of losing the job because it is now seen as 
    more valuable.\95\ All of these benefits, however, are difficult to 
    quantify due to data limitations.
    ---------------------------------------------------------------------------
    
        \94\ Reich, Michael, Peter Hall and Ken Jacobs, ``Living Wages 
    and Economic Performance: The San Francisco Airport Model,'' 
    Institute of Industrial Relations, University of California, 
    Berkeley, March 2003. Fairris, David, David Runsten, Carolina 
    Briones, and Jessica Goodheart, ``Examining the Evidence: The Impact 
    of the Los Angeles Living Wage Ordinance on Workers and 
    Businesses,'' LAANE, 2005.
        \95\ Akerlof, G.A. (1982), ``Labor Contracts as Partial Gift 
    Exchange,'' The Quarterly Journal of Economics, 97(4), 543-569; 
    Shapiro, C. and Stiglitz, J.E. (1984), ``Equilibrium Unemployment as 
    a Worker Discipline Device,'' The American Economic Review, 74(3), 
    433-444.
    ---------------------------------------------------------------------------
    
        Several unquantifiable benefits result in the form of cost savings. 
    As more U.S. workers are hired as a result of this interim final rule, 
    employers will avoid visa and consular fees for positions that might 
    have otherwise been filled with H-2B workers; it is also likely that 
    transportation costs will be lower. Under the 2008 rule, SWAs were 
    required to complete Form I-9 for non-agricultural job orders, and 
    inspect and verify the employment eligibility documents furnished by 
    the applicants. Under this interim final rule, SWAs will not be 
    required to complete this process, resulting in cost savings to SWAs. 
    DOL was not able to quantify these cost savings due to a lack of data 
    regarding the number of I-9 verifications SWAs have been performing for 
    H-2B referrals.
        After considering both the quantitative and qualitative impacts of 
    this interim final rule, DOL has concluded that the societal benefits 
    of the rule justify the societal costs.
    
    B. Regulatory Flexibility Act
    
        The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), imposes 
    certain requirements on Federal agency rules that are subject to the 
    notice and comment requirements the APA, 5 U.S.C. 553(b), and that are 
    likely to have a significant economic impact on a substantial number of 
    small entities. Under the APA, a general notice of proposed rulemaking 
    is not required when an agency, for good cause, finds that notice and 
    public comment thereon are impracticable, unnecessary, or contrary to 
    the public interest. 5 U.S.C. 553(b)(B). This interim final rule is 
    exempt from the requirements of the APA because DOL and DHS have made a 
    good cause finding, supra, that a general notice of proposed rulemaking 
    is impracticable and contrary to the public interest under 5 U.S.C. 
    553(b)(B). Therefore, the requirements of the RFA applicable to notices 
    of proposed rulemaking, 5 U.S.C. 603, do not apply to this interim 
    final rule. Accordingly, the Departments are not required to either 
    certify that the interim final rule would not have a significant 
    economic impact on a substantial number of small entities or conduct a 
    regulatory flexibility analysis. Nevertheless, for informational 
    purposes DOL and DHS refer the public to the initial and final 
    regulatory flexibility analyses that DOL completed in the 2012 
    rulemaking process. See 76 FR 15166; 77 FR 10132. DOL and DHS refer to 
    the public to the rulemaking docket on regulations.gov in connection 
    with that rule (RIN 1205-AB58) to obtain further information about 
    DOL's regulatory flexibility analyses under the 2012 rule.
    
    C. Unfunded Mandates Reform Act of 1995
    
        Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
    1531) directs agencies to assess the effects of Federal regulatory 
    actions on State, local, and tribal governments, and the private 
    sector. The interim final rule has no Federal mandate, which is defined 
    in 2 U.S.C. 658(6) to include either a Federal intergovernmental 
    mandate or a Federal private sector mandate. A Federal mandate is any 
    provision in a regulation that imposes an enforceable duty upon State, 
    local, or tribal governments, or imposes a duty upon the private sector 
    that is not voluntary. A decision by a private entity to obtain an H-2B 
    worker is purely voluntary and is, therefore, excluded from any 
    reporting requirement under the Act.
        SWAs are mandated to perform certain activities for the Federal 
    Government under the H-2B program, and receive grants to support the 
    performance of these activities. Under the 2008 rule, the SWA role was 
    changed to accommodate the attestation-based process. The current 
    regulation requires SWAs to accept and place job orders into intra- and 
    interstate clearance, review referrals, and verify employment 
    eligibility of the applicants who apply to the SWA to be referred to 
    the job opportunity. Under the interim final rule the SWA will continue 
    to play a significant and active role. The Departments continue to 
    require that employers submit their job orders to the SWA having 
    jurisdiction over the area of intended employment as is the case in the 
    current regulation,
    
    [[Page 24107]]
    
    with the added requirement that the SWA review the job order prior to 
    posting it. The interim final rule further requires that the employer 
    provide a copy of the Application for Temporary Employment 
    Certification to the SWA; however, this is simply a copy for disclosure 
    purposes and would require no additional information collection or 
    review activities by the SWA. DOL will also continue to require SWAs to 
    place job orders into clearance, as well as provide employers with 
    referrals received in connection with the job opportunity. 
    Additionally, the interim final rule requires SWAs to contact labor 
    organizations where union representation is customary in the occupation 
    and area of intended employment. DOL recognizes that SWAs may 
    experience a slight increase in their workload in terms of review, 
    referrals, and employer guidance. However, DOL is eliminating the 
    employment verification responsibilities the SWA has under the current 
    regulations. The elimination of workload created by the employment 
    verification requirement will allow the SWAs to apply those resources 
    to the additional recruitment requirements under this rule.
        SWA activities under the H-2B program are currently funded by DOL 
    through grants provided under the Wagner-Peyser Act. 29 U.S.C. 49 et 
    seq., and directly through appropriated funds for administration of 
    DOL's foreign labor certification program.
    
    D. Executive Order 13132--Federalism
    
        We have reviewed this interim final rule in accordance with E.O. 
    13132 on federalism and have determined that it does not have 
    federalism implications. The interim final rule does not have 
    substantial direct effects on States, on the relationship between the 
    States, or on the distribution of power and responsibilities among the 
    various levels of government as described by E.O. 13132. Therefore, we 
    have determined that this interim final rule will not have a sufficient 
    federalism implication to warrant the preparation of a summary impact 
    statement.
    
    E. Executive Order 13175--Indian Tribal Governments
    
        We reviewed this interim final rule under the terms of E.O. 13175 
    and determined it not to have tribal implications. The interim final 
    does not have substantial direct effects on one or more Indian tribes, 
    on the relationship between the Federal Government and Indian tribes, 
    or on the distribution of power and responsibilities between the 
    Federal Government and Indian tribes. As a result, no tribal summary 
    impact statement has been prepared.
    
    F. Assessment of Federal Regulations and Policies on Families
    
        Section 654 of the Treasury and General Government Appropriations 
    Act, enacted as part of the Omnibus Consolidated and Emergency 
    Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 
    2681) requires us to assess the impact of this interim final rule on 
    family well-being. A rule that is determined to have a negative effect 
    on families must be supported with an adequate rationale. We have 
    assessed this interim final rule and determined that it will not have a 
    negative effect on families.
    
    G. Executive Order 12630--Government Actions and Interference With 
    Constitutionally Protected Property Rights
    
        The interim final rule is not subject to E.O. 12630, Governmental 
    Actions and Interference with Constitutionally Protected Property 
    Rights, because it does not involve implementation of a policy with 
    takings implications.
    
    H. Executive Order 12988--Civil Justice
    
        The interim final rule has been drafted and reviewed in accordance 
    with E.O. 12988, Civil Justice Reform, and will not unduly burden the 
    Federal court system. The Departments have developed the interim final 
    rule to minimize litigation and provide a clear legal standard for 
    affected conduct, and has reviewed the interim final rule carefully to 
    eliminate drafting errors and ambiguities.
    
    I. Plain Language
    
        We drafted this interim final rule in plain language.
    
    J. Paperwork Reduction Act
    
        In accordance with the Paperwork Reduction Act of 1995 (PRA) (44 
    U.S.C. 3501 et seq.) information collection requirements, which must be 
    implemented as a result of this regulation, a clearance package 
    containing proposed changes to the already previously collection was 
    submitted to OMB under the emergency provisions of the PRA, 5 CFR 
    1320.13, in order to have the information collection take effect on the 
    same date as all other parts of the interim final rule. OMB approved 
    the information collection for 6 months, during which time DOL will 
    publish Notices in the Federal Register that invite public comment on 
    the collection requirements, in anticipation of extending the ICR.
        The Departments note that a Federal agency generally cannot conduct 
    or sponsor a collection of information, and the public is generally not 
    required to respond to an information collection, unless it is approved 
    by the OMB under the PRA and displays a currently valid OMB Control 
    Number. In addition, notwithstanding any other provisions of law, no 
    person shall generally be subject to penalty for failing to comply with 
    a collection of information that does not display a valid Control 
    Number. See 5 CFR 1320.5(a), 1320.6, and 1320.11(k)(1).
        The forms used to comply with this interim final rule include those 
    that have been required in the H-2B program over the last few years of 
    program operation, except that Form ETA-9142, Appendix B has been 
    modified to reflect the assurances and obligations of the H-2B employer 
    as required under the compliance-based system of this interim final 
    rule. Also, a new form was created for registering as an H-2B 
    employer--the Form ETA-9155, H-2B Registration. DOL continues to 
    include the Seafood Industry Attestation, but has made slight changes 
    to it for clarity and accuracy. Changes to the program as reflected in 
    the new regulations and which have PRA implications, have increased the 
    hourly and cost burdens for employers. Those burdens and costs are 
    outlined below. The Form ETA-9142B with Appendix B has a public 
    reporting burden estimated to average 1 hour per response or 
    application filed. Additionally, the Form ETA-9155 has a public 
    reporting burden estimated to average 1 hour per response or 
    application filed. For an additional explanation of how the Departments 
    calculated the burden hours and related costs, the PRA package for this 
    information collection may be obtained from the RegInfo.gov Web site at 
    http://www.reginfo.gov/public/do/PRAMain or by contacting the DOL at: 
    Office of Policy Development and Research, U.S. Department of Labor, 
    200 Constitution Ave. NW., Washington, DC 20210 or by phone request to 
    202-693-3700 (this is not a toll-free number) or by email at 
    DOL_PRA_PUBLIC@dol.gov.
    Overview of Information Collection
        Type of Review: Emergency.
        Agency: Employment and Training Administration.
        Title: H-2B Application for Temporary Employment Certification; H-
    2B Registration; and Seafood Industry Attestation.
        OMB Number: 1205-0509.
        Agency Number(s): Forms ETA-9142B (including Appendix B) and ETA-
    9155.
    
    [[Page 24108]]
    
        Annual Frequency: On occasion.
        Affected Public: Individuals or Households, Private Sector--
    businesses or other for profits, Government, State, Local and Tribal 
    Governments.
        Total Respondents: 7,355.
        Total Responses: 184,442.
        Estimated Total Burden Hours: 47,992.
        Total Burden Cost (capital/startup): 0.
        Total Burden Cost (operating/maintaining): $351,800.
        The information collection aspects of this rulemaking are taking 
    effect immediately, but DOL will be following the normal approval 
    process for the extension of this collection within the next 6 months.
    
    List of Subjects
    
    8 CFR Part 214
    
        Administrative practice and procedure, Aliens, Cultural exchange 
    programs, Employment, Foreign officials, Health professions, Reporting 
    and recordkeeping requirements, Students.
    
    20 CFR Part 655
    
        Administrative practice and procedure, Employment, Employment and 
    training, Enforcement, Foreign workers, Forest and forest products, 
    Fraud, Health professions, Immigration, Labor, Longshore and harbor 
    work, Migrant workers, Nonimmigrant workers, Passports and visas, 
    Penalties, Reporting and recordkeeping requirements, Unemployment, 
    Wages, Working conditions.
    
    29 CFR Part 503
    
        Administrative practice and procedure, Employment, Foreign Workers, 
    Housing, Housing standards, Immigration, Labor, Nonimmigrant workers, 
    Penalties, Transportation, Wages.
    
    Department of Homeland Security
    
    8 CFR Chapter I
    
        Accordingly, for the reasons stated in the joint preamble, part 214 
    of chapter I of title 8 of the Code of Federal Regulations is amended 
    as follows:
    
    PART 214--NONIMMIGRANT CLASSES
    
    0
    1. The authority citation for part 214 continues to read as follows:
    
        Authority:  8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 
    1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110 
    Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-1480; section 141 of 
    the Compacts of Free Association with the Federated States of 
    Micronesia and the Republic of the Marshall Islands, and with the 
    Government of Palau, 48 U.S.C. 1901 note, and 1931 note, 
    respectively; 48 U.S.C. 1806; 8 CFR part 2.
    
    
    0
    2. Section 214.1 is amended by revising paragraph (k) to read as 
    follows:
    
    
    Sec.  214.1  Requirements for admission, extension, and maintenance of 
    status.
    
    * * * * *
        (k) Denial of petitions under section 214(c) of the Act based on a 
    finding by the Department of Labor. Upon debarment by the Department of 
    Labor pursuant to 20 CFR part 655, USCIS may deny any petition filed by 
    that petitioner for nonimmigrant status under section 101(a)(15)(H) 
    (except for status under sections 101(a)(15)(H)(i)(b1)), (L), (O), and 
    (P)(i) of the Act) for a period of at least 1 year but not more than 5 
    years. The length of the period shall be based on the severity of the 
    violation or violations. The decision to deny petitions, the time 
    period for the bar to petitions, and the reasons for the time period 
    will be explained in a written notice to the petitioner.
    
    0
    3. Section 214.2 is amended by revising paragraph (h)(9)(iii)(B) to 
    read as follows:
    
    
    Sec.  214.2  Special requirements for admission, extension, and 
    maintenance of status.
    
    * * * * *
        (h) * * *
        (9) * * *
        (iii) * * *
        (B) H-2B petition. The approval of the petition to accord an alien 
    a classification under section 101(a)(15)(H)(ii)(b) of the Act shall be 
    valid for the period of the approved temporary labor certification.
    * * * * *
    
    Department of Labor
    
        Accordingly, for the reasons stated in the joint preamble, 20 CFR 
    part 655 is amended and 29 CFR part 503 is added as follows:
    
    Title 20--EMPLOYEES' BENEFITS
    
    PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED 
    STATES
    
    0
    4. The authority citation for part 655 is revised to read as follows:
    
        Authority:  Section 655.0 issued under 8 U.S.C. 
    1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 
    1103(a)(6), 1182(m), (n) and (t), 1184(c), (g), and (j), 1188, and 
    1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 
    (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 
    5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105 
    Stat. 733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 
    107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 
    U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 
    (8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 
    2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR 
    214.2(h)(4)(i); and 8 CFR 214.2(h)(6)(iii).
        Subpart A issued under 8 CFR 214.2(h).
        Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), 
    and 1188; and 8 CFR 214.2(h).
        Subparts F and G issued under 8 U.S.C. 1288(c) and (d); and sec. 
    323(c), Pub. L. 103-206, 107 Stat. 2428.
        Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and 
    (b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. 
    L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), 
    Pub. L. 105-277, 112 Stat. 2681; and 8 CFR 214.2(h).
        Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 
    1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 
    1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
    
    0
    5. Revise subpart A to read as follows:
    
    Subpart A--Labor Certification Process for Temporary Non-
    Agricultural Employment in the United States (H-2B Workers)
    
    Sec.
    655.1 Scope and purpose of this subpart.
    655.2 Authority of the agencies, offices, and divisions in the 
    Department of Labor.
    655.3 Territory of Guam.
    655.4 Transition procedures.
    655.5 Definition of terms.
    655.6 Temporary need.
    655.7 Persons and entities authorized to file.
    655.8 Requirements for agents.
    655.9 Disclosure of foreign worker recruitment.
    
    Prefiling Procedures
    
    655.10 Determination of prevailing wage for temporary labor 
    certification purposes.
    655.11 Registration of H-2B employers.
    655.12 Use of registration of H-2B employers.
    655.13 Review of PWDs.
    655.14 [Reserved]
    
    Application for Temporary Employment Certification Filing Procedures
    
    655.15 Application filing requirements.
    655.16 Filing of the job order at the SWA.
    655.17 Emergency situations.
    655.18 Job order assurances and contents.
    655.19 Job contractor filing requirements.
    
    Assurances and Obligations
    
    655.20 Assurances and obligations of H-2B employers.
    655.21-655.29 [Reserved]
    
    Processing of An Application for Temporary Employment Certification
    
    655.30 Processing of an application and job order.
    655.31 Notice of deficiency.
    655.32 Submission of a modified application or job order.
    655.33 Notice of acceptance.
    
    [[Page 24109]]
    
    655.34 Electronic job registry.
    655.35 Amendments to an application or job order.
    655.36-655.39 [Reserved]
    
    Post-Acceptance Requirements
    
    655.40 Employer-conducted recruitment.
    655.41 Advertising requirements.
    655.42 Newspaper advertisements.
    655.43 Contact with former U.S. employees.
    655.44 [Reserved]
    655.45 Contact with bargaining representative, posting and other 
    contact requirements.
    655.46 Additional employer-conducted recruitment.
    655.47 Referrals of U.S. workers.
    655.48 Recruitment report.
    655.49 [Reserved]
    
    Labor Certification Determinations
    
    655.50 Determinations.
    655.51 Criteria for certification.
    655.52 Approved certification.
    655.53 Denied certification.
    655.54 Partial certification.
    655.55 Validity of temporary labor certification.
    655.56 Document retention requirements of H-2B employers.
    655.57 Request for determination based on nonavailability of U.S. 
    workers.
    655.5-655.59 [Reserved]
    
    Post Certification Activities
    
    655.60 Extensions.
    655.61 Administrative review.
    655.62 Withdrawal of an Application for Temporary Employment 
    Certification.
    655.63 Public disclosure.
    655.64-655.69 [Reserved]
    
    Integrity Measures
    
    655.70 Audits.
    655.71 CO-ordered assisted recruitment.
    655.72 Revocation.
    655.73 Debarment.
    655.74-655.76 [Reserved]
    655.80-655.99 [Reserved]
    
    
    Sec.  655.1  Scope and purpose of this subpart.
    
        Section 214(c)(1) of the Immigration and Nationality Act (INA), 8 
    U.S.C. 1184(c)(1), requires the Secretary of Homeland Security to 
    consult with appropriate agencies before authorizing the classification 
    of aliens as H-2B workers. Department of Homeland Security (DHS) 
    regulations at 8 CFR 214.2(h)(6)(iii)(D) designate the Secretary of 
    Labor as an appropriate authority with whom DHS consults regarding the 
    H-2B program, and specifies that the Secretary of Labor, in carrying 
    out this consultative function, shall issue regulations regarding the 
    issuance of temporary labor certifications. DHS regulations at 8 CFR 
    214.2(h)(6)(iv) further provide that an employer's petition to employ 
    H-2B nonimmigrant workers for temporary non-agricultural employment in 
    the United States (U.S.), except for Guam, must be accompanied by an 
    approved temporary labor certification from the Secretary of Labor 
    (Secretary).
        (a) Purpose. The temporary labor certification reflects a 
    determination by the Secretary that:
        (1) There are not sufficient U.S. workers who are qualified and who 
    will be available to perform the temporary services or labor for which 
    an employer desires to hire foreign workers, and that
        (2) The employment of the H-2B worker(s) will not adversely affect 
    the wages and working conditions of U.S. workers similarly employed.
        (b) Scope. This subpart sets forth the procedures governing the 
    labor certification process for the temporary employment of 
    nonimmigrant foreign workers in the H-2B nonimmigrant classification, 
    as defined in 8 U.S.C. 1101(a)(15)(H)(ii)(b), section 
    101(a)(15)(H)(ii)(b) of the INA. It also establishes obligations with 
    respect to the terms and conditions of the temporary labor 
    certification with which H-2B employers must comply, as well as their 
    obligations to H-2B workers and workers in corresponding employment. 
    Additionally, this subpart sets forth integrity measures for ensuring 
    employers' continued compliance with the terms and conditions of the 
    temporary labor certification.
    
    
    Sec.  655.2  Authority of the agencies, offices, and divisions in the 
    Department of Labor.
    
        (a) Authority and role of the Office of Foreign Labor Certification 
    (OFLC). The Secretary has delegated authority to make determinations 
    under this subpart, pursuant to 8 CFR 214.2(h)(6)(iii)(D) and 
    (h)(6)(iv), to the Assistant Secretary for the Employment and Training 
    Administration (ETA), who in turn has delegated that authority to OFLC. 
    Determinations on an Application for Temporary Employment Certification 
    in the H-2B program are made by the Administrator, OFLC who, in turn, 
    may delegate this responsibility to designated staff members, e.g., a 
    Certifying Officer (CO).
        (b) Authority of the Wage and Hour Division (WHD). Pursuant to its 
    authority under section 214(c)(14)(B) of the INA, 8 U.S.C. 
    1184(c)(l4)(B), DHS has delegated to the Secretary certain 
    investigatory and enforcement functions with respect to terms and 
    conditions of employment in the H-2B program. The Secretary has, in 
    turn, delegated that authority to WHD. The regulations governing WHD 
    investigation and enforcement functions, including those related to the 
    enforcement of temporary labor certifications, issued under this 
    subpart, may be found in 29 CFR part 503.
        (c) Concurrent authority. OFLC and WHD have concurrent authority to 
    impose a debarment remedy under Sec.  655.73 or under 29 CFR 503.24.
    
    
    Sec.  655.3  Territory of Guam.
    
        This subpart does not apply to temporary employment in the 
    Territory of Guam, except that an employer who applies for a temporary 
    labor certification for a job opportunity on Guam will need to obtain a 
    prevailing wage from the U.S. Department of Labor (DOL) in accordance 
    with Sec.  655.10, subject to the transfer of authority to set the 
    prevailing wage for a job opportunity on Guam to DOL in title 8 of the 
    Code of Federal Regulations. DOL does not certify to DHS the temporary 
    employment of H-2B nonimmigrant foreign workers, or enforce compliance 
    with the provisions of the H-2B visa program, in the Territory of Guam.
    
    
    Sec.  655.4  Transition procedures.
    
        (a) The NPWC shall continue to process an Application for 
    Prevailing Wage Determination submitted prior to April 29, 2015, in 
    accordance with the prevailing wage methodology at 20 CFR part 655, 
    subpart A, revised as of April 1, 2009, except for Sec.  655.10(b)(2), 
    see 20 CFR part 655, subpart A, revised as of April 1, 2014. Employers 
    with a pending Application for Prevailing Wage Determination who seek a 
    prevailing wage based on an alternate wage source must submit a new 
    Application for Prevailing Wage Determination.
        (b) The NPWC shall process an Application for a Prevailing Wage 
    Determination submitted on or after April 29, 2015, in accordance with 
    the wage methodology established in Sec.  655.10 of the final 
    prevailing wage rule.
        (c) The NPC shall continue to process an Application for Temporary 
    Employment Certification submitted prior to April 29, 2015, in 
    accordance with 20 CFR part 655, subpart A, revised as of April 1, 
    2009.
        (d) The NPC shall process an Application for Temporary Employment 
    Certification submitted on or after April 29, 2015, and that has a 
    start date of need prior to October 1, 2015, as follows:
        (1) Employers will be permitted to file an Application for 
    Temporary Employment Certification job order with the NPC using the 
    emergency situations provision at Sec.  655.17. The Application for 
    Temporary Employment Certification must include a signed and dated copy 
    of the new Appendix B associated with the ETA Form 9142B containing the 
    requisite program
    
    [[Page 24110]]
    
    assurances and obligations under this rule. In the case of a job 
    contractor filing as a joint employer with its employer-client, the NPC 
    must receive a separate attachment containing the employer-client's 
    business and contact information (i.e., sections C and D of the ETA 
    Form 9142B) as well as a separate signed and dated copy of the Appendix 
    B for its employer-client, as required by Sec.  655.19.
        (2) The NPC will waive the regulatory filing timeframe under Sec.  
    655.15 and process the Application for Temporary Employment 
    Certification and job order in a manner consistent with the handling of 
    applications under Sec.  655.17 for emergency situations, including the 
    recruitment of U.S. workers on an expedited basis, and make a 
    determination as required by Sec.  655.50. The recruitment of U.S. 
    workers on an expedited basis will consist of placing a new job order 
    with the SWA serving the area of intended employment that contains the 
    job assurances and contents set forth in Sec.  655.18 for a period of 
    not less than 10 calendar days. In addition, employers who have not 
    placed any newspaper advertisements under the rule published at 20 CFR 
    part 655, subpart A, revised as of April 1, 2009. must place one 
    newspaper advertisement, which may be published on any day of the week, 
    meeting the advertising requirements of Sec.  655.41, during the period 
    of time the SWA is actively circulating the job order for intrastate 
    clearance.
        (3) If the Chicago NPC grants a temporary labor certification, the 
    employer will receive an original certified ETA Form 9142B and a Final 
    Determination letter. Upon receipt of the original certified ETA Form 
    9142B, the employer or its agent or attorney, if applicable, must 
    complete the footer on the original Appendix B of the Application for 
    Temporary Employment Certification, retain the original Appendix B, and 
    submit a signed copy of Appendix B, together with the original 
    certified ETA Form 9142B directly to USCIS. Under the document 
    retention requirements in Sec.  655.56, the employer must retain a copy 
    of the temporary labor certification and the original signed Appendix 
    B.
        (4) An employer who did not submit an Application for a Prevailing 
    Wage Determination prior to April 29, 2015, but who has a start date of 
    need prior to October 1, 2015 may submit a completed Application for a 
    Prevailing Wage Determination to the NPC with its emergency Application 
    for Temporary Employment Certification requesting a prevailing wage 
    determination for the job opportunity. Upon receipt, the NPC will 
    transmit, on behalf of the employer, a copy of the Application for a 
    Prevailing Wage Determination to the NPWC for processing and issuance 
    of a prevailing wage determination using the wage methodology 
    established in Sec.  655.10.
        (e) The NPC shall process an Application for Temporary Employment 
    Certification submitted on or after April 29, 2015, and that has a 
    start date of need after October 1, 2015, in accordance with all 
    application filing requirements under this rule, and the employer must 
    obtain a valid prevailing wage determination under the wage methodology 
    established in Sec.  655.10 prior to filing the job order with the SWA 
    under Sec.  655.16.
        (f) Employers with a prevailing wage determination issued by the 
    NPWC, or who have a pending or granted Application for Temporary 
    Employment Certification on April 29, 2015, may seek a supplemental 
    prevailing wage determination (SPWD) in order to obtain a prevailing 
    wage based on an alternate wage source under this rule.
        (1) The SPWD will apply during the validity period of the 
    certification, except that such SPWD will be applicable only to those 
    H-2B workers who are not yet employed in the certified position on the 
    date of the issuance of the SPWD. The SPWD will not be applicable to H-
    2B workers who are already employed in the certified position at the 
    time of the issuance of the SPWD, and it will not apply to U.S. workers 
    recruited and hired under the original job order. For seafood employers 
    whose workers' entry into the U.S. may be staggered under Sec.  
    655.15(f), an SPWD issued under this provision will apply only to those 
    H-2B workers who have not yet entered the U.S. and are therefore not 
    yet employed in the certified position at the time of the issuance of 
    the SPWD.
        (2) In order to receive an SPWD under this provision, the employer 
    must submit a new ETA Form 9141 to the NPWC that contains in Section 
    E.a.5 Job Duties the original PWD tracking number (starting with P-
    400), the H-2B temporary employment certification application number 
    (starting with H-400), and the words ``Request for a Supplemental 
    Prevailing Wage Determination.'' Electronic submission through the 
    iCERT Visa Portal System is preferred. Upon receipt of the request, the 
    NPWC will issue to the employer, or if applicable, the employer's 
    attorney or agent, an SPWD in an expedited manner and provide a copy to 
    the Chicago NPC.
    
    
    Sec.  655.5  Definition of terms.
    
        For purposes of this subpart:
        Act means the Immigration and Nationality Act or INA, as amended, 8 
    U.S.C. 1101 et seq.
        Administrative Law Judge (ALJ) means a person within the 
    Department's Office of Administrative Law Judges appointed under 5 
    U.S.C. 3105.
        Administrator, Office of Foreign Labor Certification (OFLC) means 
    the primary official of the Office of Foreign Labor Certification, ETA, 
    or the Administrator's designee.
        Administrator, Wage and Hour Division (WHD) means the primary 
    official of the WHD, or the Administrator's designee.
        Agent means:
        (1) A legal entity or person who:
        (i) Is authorized to act on behalf of an employer for temporary 
    nonagricultural labor certification purposes;
        (ii) Is not itself an employer, or a joint employer, as defined in 
    this part with respect to a specific application; and
        (iii) Is not an association or other organization of employers.
        (2) No agent who is under suspension, debarment, expulsion, 
    disbarment, or otherwise restricted from practice before any court, the 
    Department of Labor, the Executive Office for Immigration Review under 
    8 CFR 1003.101, or DHS under 8 CFR 292.3 may represent an employer 
    under this part.
        Agricultural labor or services means those duties and occupations 
    defined in subpart B of this part.
        Applicant means a U.S. worker who is applying for a job opportunity 
    for which an employer has filed an Application for Temporary Employment 
    Certification (ETA Form 9142B and the appropriate appendices).
        Application for Temporary Employment Certification means the Office 
    of Management and Budget (OMB)-approved ETA Form 9142B and the 
    appropriate appendices, a valid wage determination, as required by 
    Sec.  655.10, and a subsequently-filed U.S. worker recruitment report, 
    submitted by an employer to secure a temporary labor certification 
    determination from DOL.
        Area of intended employment means the geographic area within normal 
    commuting distance of the place (worksite address) of the job 
    opportunity for which the certification is sought. There is no rigid 
    measure of distance that constitutes a normal commuting distance or 
    normal commuting area, because there may be widely varying factual 
    circumstances among different areas (e.g., average commuting times, 
    barriers to reaching the worksite, or quality of the regional 
    transportation network). If the place of intended employment is within 
    a Metropolitan Statistical Area (MSA),
    
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    including a multistate MSA, any place within the MSA is deemed to be 
    within normal commuting distance of the place of intended employment. 
    The borders of MSAs are not controlling in the identification of the 
    normal commuting area; a location outside of an MSA may be within 
    normal commuting distance of a location that is inside (e.g., near the 
    border of) the MSA.
        Area of substantial unemployment means a contiguous area with a 
    population of at least 10,000 in which there is an average unemployment 
    rate equal to or exceeding 6.5 percent for the 12 months preceding the 
    determination of such areas made by the ETA.
        Attorney means any person who is a member in good standing of the 
    bar of the highest court of any State, possession, territory, or 
    commonwealth of the U.S., or the District of Columbia. No attorney who 
    is under suspension, debarment, expulsion, disbarment, or otherwise 
    restricted from practice before any court, the Department of Labor, the 
    Executive Office for Immigration Review under 8 CFR 1003.101, or DHS 
    under 8 CFR 292.3 may represent an employer under this subpart.
        Board of Alien Labor Certification Appeals (BALCA or Board) means 
    the permanent Board established by part 656 of this chapter, chaired by 
    the Chief Administrative Law Judge (Chief ALJ), and consisting of ALJs 
    assigned to the Department of Labor and designated by the Chief ALJ to 
    be members of BALCA.
        Certifying Officer (CO) means an OFLC official designated by the 
    Administrator, OFLC to make determinations on applications under the H-
    2B program. The Administrator, OFLC is the National CO. Other COs may 
    also be designated by the Administrator, OFLC to make the 
    determinations required under this subpart.
        Chief Administrative Law Judge (Chief ALJ) means the chief official 
    of the Department's Office of Administrative Law Judges or the Chief 
    Administrative Law Judge's designee.
        Corresponding employment means:
        (1) The employment of workers who are not H-2B workers by an 
    employer that has a certified H-2B Application for Temporary Employment 
    Certification when those workers are performing either substantially 
    the same work included in the job order or substantially the same work 
    performed by the H-2B workers, except that workers in the following two 
    categories are not included in corresponding employment:
        (i) Incumbent employees continuously employed by the H-2B employer 
    to perform substantially the same work included in the job order or 
    substantially the same work performed by the H-2B workers during the 52 
    weeks prior to the period of employment certified on the Application 
    for Temporary Employment Certification and who have worked or been paid 
    for at least 35 hours in at least 48 of the prior 52 workweeks, and who 
    have worked or been paid for an average of at least 35 hours per week 
    over the prior 52 weeks, as demonstrated on the employer's payroll 
    records, provided that the terms and working conditions of their 
    employment are not substantially reduced during the period of 
    employment covered by the job order. In determining whether this 
    standard was met, the employer may take credit for any hours that were 
    reduced by the employee voluntarily choosing not to work due to 
    personal reasons such as illness or vacation; or
        (ii) Incumbent employees covered by a collective bargaining 
    agreement or an individual employment contract that guarantees both an 
    offer of at least 35 hours of work each workweek and continued 
    employment with the H-2B employer at least through the period of 
    employment covered by the job order, except that the employee may be 
    dismissed for cause.
        (2) To qualify as corresponding employment, the work must be 
    performed during the period of the job order, including any approved 
    extension thereof.
        Date of need means the first date the employer requires services of 
    the H-2B workers as listed on the Application for Temporary Employment 
    Certification.
        Department of Homeland Security (DHS) means the Federal Department 
    having jurisdiction over certain immigration-related functions, acting 
    through its component agencies, including USCIS.
        Employee means a person who is engaged to perform work for an 
    employer, as defined under the general common law. Some of the factors 
    relevant to the determination of employee status include: The hiring 
    party's right to control the manner and means by which the work is 
    accomplished; the skill required to perform the work; the source of the 
    instrumentalities and tools for accomplishing the work; the location of 
    the work; the hiring party's discretion over when and how long to work; 
    and whether the work is part of the regular business of the hiring 
    party. Other applicable factors may be considered and no one factor is 
    dispositive. The terms employee and worker are used interchangeably in 
    this subpart.
        Employer means a person (including any individual, partnership, 
    association, corporation, cooperative, firm, joint stock company, 
    trust, or other organization with legal rights and duties) that:
        (1) Has a place of business (physical location) in the U.S. and a 
    means by which it may be contacted for employment;
        (2) Has an employer relationship (such as the ability to hire, pay, 
    fire, supervise or otherwise control the work of employees) with 
    respect to an H-2B worker or a worker in corresponding employment; and
        (3) Possesses, for purposes of filing an Application for Temporary 
    Employment Certification, a valid Federal Employer Identification 
    Number (FEIN).
        Employer-client means an employer that has entered into an 
    agreement with a job contractor and that is not an affiliate, branch or 
    subsidiary of the job contractor, under which the job contractor 
    provides services or labor to the employer on a temporary basis and 
    will not exercise substantial, direct day-to-day supervision and 
    control in the performance of the services or labor to be performed 
    other than hiring, paying and firing the workers.
        Employment and Training Administration (ETA) means the agency 
    within the Department of Labor that includes OFLC and has been 
    delegated authority by the Secretary to fulfill the Secretary's mandate 
    under the DHS regulations for the administration and adjudication of an 
    Application for Temporary Employment Certification and related 
    functions.
        Federal holiday means a legal public holiday as defined at 5 U.S.C. 
    6103.
        Full-time means 35 or more hours of work per week.
        H-2B Petition means the DHS Form I-129 Petition for a Nonimmigrant 
    Worker, with H Supplement or successor form or supplement, and 
    accompanying documentation required by DHS for employers seeking to 
    employ foreign persons as H-2B nonimmigrant workers
        H-2B Registration means the OMB-approved ETA Form 9155, submitted 
    by an employer to register its intent to hire H-2B workers and to file 
    an Application for Temporary Employment Certification.
        H-2B worker means any temporary foreign worker who is lawfully 
    present in the U.S. and authorized by DHS to perform nonagricultural 
    labor or services of a temporary or seasonal nature under 8 U.S.C. 
    1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b).
    
    [[Page 24112]]
    
        Job contractor means a person, association, firm, or a corporation 
    that meets the definition of an employer and that contracts services or 
    labor on a temporary basis to one or more employers, which is not an 
    affiliate, branch or subsidiary of the job contractor and where the job 
    contractor will not exercise substantial, direct day-to-day supervision 
    and control in the performance of the services or labor to be performed 
    other than hiring, paying and firing the workers.
        Job offer means the offer made by an employer or potential employer 
    of H-2B workers to both U.S. and H-2B workers describing all the 
    material terms and conditions of employment, including those relating 
    to wages, working conditions, and other benefits.
        Job opportunity means one or more openings for full-time employment 
    with the petitioning employer within a specified area(s) of intended 
    employment for which the petitioning employer is seeking workers.
        Job order means the document containing the material terms and 
    conditions of employment relating to wages, hours, working conditions, 
    worksite and other benefits, including obligations and assurances under 
    29 CFR part 503 and this subpart that is posted between and among the 
    State Workforce Agencies (SWAs) on their job clearance systems.
        Joint employment means that where two or more employers each have 
    sufficient definitional indicia of being an employer to be considered 
    the employer of a worker, those employers will be considered to jointly 
    employ that worker. Each employer in a joint employment relationship to 
    a worker is considered a joint employer of that worker.
        Layoff means any involuntary separation of one or more U.S. 
    employees without cause.
        Metropolitan Statistical Area (MSA) means a geographic entity 
    defined by OMB for use by Federal statistical agencies in collecting, 
    tabulating, and publishing Federal statistics. A metro area contains a 
    core urban area of 50,000 or more population, and a micro area contains 
    an urban core of at least 10,000 (but fewer than 50,000) population. 
    Each metro or micro area consists of one or more counties and includes 
    the counties containing the core urban area, as well as any adjacent 
    counties that have a high degree of social and economic integration (as 
    measured by commuting to work) with the urban core.
        National Prevailing Wage Center (NPWC) means that office within 
    OFLC from which employers, agents, or attorneys who wish to file an 
    Application for Temporary Employment Certification receive a prevailing 
    wage determination (PWD).
        NPWC Director means the OFLC official to whom the Administrator, 
    OFLC has delegated authority to carry out certain NPWC operations and 
    functions.
        National Processing Center (NPC) means the office within OFLC which 
    is charged with the adjudication of an Application for Temporary 
    Employment Certification or other applications. For purposes of this 
    subpart, the NPC receiving a request for an H-2B Registration and an 
    Application for Temporary Employment Certification is the Chicago NPC 
    whose address is published in the Federal Register.
        NPC Director means the OFLC official to whom the Administrator, 
    OFLC has delegated authority for purposes of certain Chicago NPC 
    operations and functions.
        Non-agricultural labor and services means any labor or services not 
    considered to be agricultural labor or services as defined in subpart B 
    of this part. It does not include the provision of services as members 
    of the medical profession by graduates of medical schools.
        Occupational employment statistics (OES) survey means the program 
    under the jurisdiction of the Bureau of Labor Statistics (BLS) that 
    provides annual wage estimates for occupations at the State and MSA 
    levels.
        Offered wage means the wage offered by an employer in an H-2B job 
    order. The offered wage must equal or exceed the highest of the 
    prevailing wage or Federal, State or local minimum wage.
        Office of Foreign Labor Certification (OFLC) means the 
    organizational component of the ETA that provides national leadership 
    and policy guidance and develops regulations to carry out the 
    Secretary's responsibilities, including determinations related to an 
    employer's request for H-2B Registration, Application for Prevailing 
    Wage Determination, or Application for Temporary Employment 
    Certification.
        Prevailing wage determination (PWD) means the prevailing wage for 
    the position, as described in Sec.  655.10, that is the subject of the 
    Application for Temporary Employment Certification. The PWD is made on 
    ETA Form 9141, Application for Prevailing Wage Determination.
        Professional athlete means an individual who is employed as an 
    athlete by:
        (1) A team that is a member of an association of six or more 
    professional sports teams whose total combined revenues exceed 
    $10,000,000 per year, if the association governs the conduct of its 
    members and regulates the contests and exhibitions in which its member 
    teams regularly engage; or
        (2) Any minor league team that is affiliated with such an 
    association.
        Seafood is defined as fresh or saltwater finfish, crustaceans, 
    other forms of aquatic animal life, including, but not limited to, 
    alligator, frog, aquatic turtle, jellyfish, sea cucumber, and sea 
    urchin and the roe of such animals, and all mollusks.
        Secretary means the Secretary of Labor, the chief official of the 
    U.S. Department of Labor, or the Secretary's designee.
        Secretary of Homeland Security means the chief official of the U.S. 
    Department of Homeland Security (DHS) or the Secretary of Homeland 
    Security's designee.
        Secretary of State means the chief official of the U.S. Department 
    of State or the Secretary of State's designee.
        State Workforce Agency (SWA) means a State government agency that 
    receives funds under the Wagner-Peyser Act (29 U.S.C. 49 et seq.) to 
    administer the State's public labor exchange activities.
        Strike means a concerted stoppage of work by employees as a result 
    of a labor dispute, or any concerted slowdown or other concerted 
    interruption of operation (including stoppage by reason of the 
    expiration of a collective bargaining agreement).
        Successor in interest means:
        (1) Where an employer has violated 29 CFR part 503, or this 
    subpart, and has ceased doing business or cannot be located for 
    purposes of enforcement, a successor in interest to that employer may 
    be held liable for the duties and obligations of the violating employer 
    in certain circumstances. The following factors, as used under Title 
    VII of the Civil Rights Act and the Vietnam Era Veterans' Readjustment 
    Assistance Act, may be considered in determining whether an employer is 
    a successor in interest; no one factor is dispositive, but all of the 
    circumstances will be considered as a whole:
        (i) Substantial continuity of the same business operations;
        (ii) Use of the same facilities;
        (iii) Continuity of the work force;
        (iv) Similarity of jobs and working conditions;
        (v) Similarity of supervisory personnel;
        (vi) Whether the former management or owner retains a direct or 
    indirect interest in the new enterprise;
        (vii) Similarity in machinery, equipment, and production methods;
        (viii) Similarity of products and services; and
    
    [[Page 24113]]
    
        (ix) The ability of the predecessor to provide relief.
        (2) For purposes of debarment only, the primary consideration will 
    be the personal involvement of the firm's ownership, management, 
    supervisors, and others associated with the firm in the violation(s) at 
    issue.
        United States (U.S.) means the continental United States, Alaska, 
    Hawaii, the Commonwealth of Puerto Rico, Guam, the U.S. Virgin Islands, 
    and the Commonwealth of the Northern Mariana Islands (CNMI).
        U.S. Citizenship and Immigration Services (USCIS) means the Federal 
    agency within DHS that makes the determination under the INA whether to 
    grant petitions filed by employers seeking H-2B workers to perform 
    temporary non-agricultural work in the U.S.
        United States worker (U.S. worker) means a worker who is:
        (1) A citizen or national of the U.S.;
        (2) An alien who is lawfully admitted for permanent residence in 
    the U.S., is admitted as a refugee under 8 U.S.C. 1157, section 207 of 
    the INA, is granted asylum under 8 U.S.C. 1158, section 208 of the INA, 
    or is an alien otherwise authorized under the immigration laws to be 
    employed in the U.S.; or
        (3) An individual who is not an unauthorized alien (as defined in 8 
    U.S.C. 1324a(h)(3), section 274a(h)(3) of the INA) with respect to the 
    employment in which the worker is engaging.
        Wage and Hour Division (WHD) means the agency within the Department 
    of Labor with investigatory and law enforcement authority, as delegated 
    from DHS, to carry out the provisions under 8 U.S.C. 1184(c), section 
    214(c) of the INA.
        Wages mean all forms of cash remuneration to a worker by an 
    employer in payment for personal services.
    
    
    Sec.  655.6  Temporary need.
    
        (a) An employer seeking certification under this subpart must 
    establish that its need for non-agricultural services or labor is 
    temporary, regardless of whether the underlying job is permanent or 
    temporary.
        (b) The employer's need is considered temporary if justified to the 
    CO as one of the following: A one-time occurrence; a seasonal need; a 
    peakload need; or an intermittent need, as defined by DHS regulations. 
    Except where the employer's need is based on a one-time occurrence, the 
    CO will deny a request for an H-2B Registration or an Application for 
    Temporary Employment Certification where the employer has a need 
    lasting more than 9 months.
        (c) A job contractor will only be permitted to seek certification 
    if it can demonstrate through documentation its own temporary need, not 
    that of its employer-client(s). A job contractor will only be permitted 
    to file applications based on a seasonal need or a one-time occurrence.
        (d) Nothing in this paragraph (d) is intended to limit the 
    authority of the Secretary of Homeland Security, in the course of 
    adjudicating an H-2B petition, to make the final determination as to 
    whether a prospective H-2B employer's need is temporary in nature.
    
    
    Sec.  655.7  Persons and entities authorized to file.
    
        (a) Persons authorized to file. In addition to the employer 
    applicant, a request for an H-2B Registration or an Application for 
    Temporary Employment Certification may be filed by an attorney or 
    agent, as defined in Sec.  655.5.
        (b) Employer's signature required. Regardless of whether the 
    employer is represented by an attorney or agent, the employer is 
    required to sign the H-2B Registration and Application for Temporary 
    Employment Certification and all documentation submitted to the 
    Department of Labor.
    
    
    Sec.  655.8  Requirements for agents.
    
        An agent filing an Application for Temporary Employment 
    Certification on behalf of an employer must provide:
        (a) A copy of the agent agreement or other document demonstrating 
    the agent's authority to represent the employer; and
        (b) A copy of the Migrant and Seasonal Agricultural Worker 
    Protection Act (MSPA) Farm Labor Contractor Certificate of 
    Registration, if the agent is required under MSPA, at 29 U.S.C. 1801 et 
    seq., to have such a certificate, identifying the specific farm labor 
    contracting activities the agent is authorized to perform.
    
    
    Sec.  655.9  Disclosure of foreign worker recruitment.
    
        (a) The employer, and its attorney or agent, as applicable, must 
    provide a copy of all agreements with any agent or recruiter whom it 
    engages or plans to engage in the recruitment of H-2B workers under 
    this Application for Temporary Employment Certification. These 
    agreements must contain the contractual prohibition against charging 
    fees as set forth in Sec.  655.20(p).
        (b) The employer, and its attorney or agent, as applicable, must 
    also provide the identity and location of all persons and entities 
    hired by or working for the recruiter or agent referenced in paragraph 
    (a) of this section, and any of the agents or employees of those 
    persons and entities, to recruit prospective foreign workers for the H-
    2B job opportunities offered by the employer.
        (c) The Department of Labor will maintain a publicly available list 
    of agents and recruiters who are party to the agreements referenced in 
    paragraph (a) of this section, as well as the persons and entities 
    referenced in paragraph (b) of this section and the locations in which 
    they are operating.
    
    Prefiling Procedures
    
    
    Sec.  655.10  Determination of prevailing wage for temporary labor 
    certification purposes.
    
        (a) Offered wage. The employer must advertise the position to all 
    potential workers at a wage at least equal to the prevailing wage 
    obtained from the NPWC, or the Federal, State or local minimum wage, 
    whichever is highest. The employer must offer and pay this wage (or 
    higher) to both its H-2B workers and its workers in corresponding 
    employment. The issuance of a PWD under this section does not permit an 
    employer to pay a wage lower than the highest wage required by any 
    applicable Federal, State or local law.
        (b) [Reserved]
        (c) Request for PWD. (1) An employer must request and receive a PWD 
    from the NPWC before filing the job order with the SWA.
        (2) The PWD must be valid on the date the job order is posted.
        (d) Multiple worksites. If the job opportunity involves multiple 
    worksites within an area of intended employment and different 
    prevailing wage rates exist for the opportunity within the area of 
    intended employment, the prevailing wage is the highest applicable wage 
    among all the worksites.
        (e) NPWC action. The NPWC will provide the PWD, indicate the 
    source, and return the Application for Prevailing Wage Determination 
    (ETA Form 9141) with its endorsement to the employer.
        (f) [Reserved]
        (g) Review of employer-provided surveys. (1) If the NPWC finds an 
    employer-provided survey not to be acceptable, the NPWC shall inform 
    the employer in writing of the reasons the survey was not accepted.
        (2) The employer, after receiving notification that the survey it 
    provided for consideration is not acceptable, may request review under 
    Sec.  655.13.
        (h) Validity period. The NPWC must specify the validity period of 
    the
    
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    prevailing wage, which in no event may be more than 365 days and no 
    less than 90 days from the date that the determination is issued.
        (i) Professional athletes. In computing the prevailing wage for a 
    professional athlete when the job opportunity is covered by 
    professional sports league rules or regulations, the wage set forth in 
    those rules or regulations is considered the prevailing wage.
        (j) Retention of documentation. The employer must retain the PWD 
    for 3 years from the date of issuance or the date of a final 
    determination on the Application for Temporary Employment 
    Certification, whichever is later, and submit it to a CO if requested 
    by a Notice of Deficiency, described in Sec.  655.31, or audit, as 
    described in Sec.  655.70, or to a WHD representative during a WHD 
    investigation.
        (k) Guam. The requirements of this section apply to any request 
    filed for an H-2B job opportunity on Guam, subject to the transfer of 
    authority to set the prevailing wage for a job opportunity on Guam to 
    DOL in Title 8 of the Code of Federal Regulations.
    
    
    Sec.  655.11  Registration of H-2B employers.
    
        All employers, including job contractors, that desire to hire H-2B 
    workers must establish their need for services or labor is temporary by 
    filing an H-2B Registration with the Chicago NPC.
        (a) Registration filing. An employer must file an H-2B 
    Registration. The H-2B Registration must be accompanied by 
    documentation evidencing:
        (1) The number of positions that will be sought in the first year 
    of registration;
        (2) The time period of need for the workers requested;
        (3) That the nature of the employer's need for the services or 
    labor to be performed is non-agricultural and temporary, and is 
    justified as either a one-time occurrence, a seasonal need, a peakload 
    need, or an intermittent need, as defined by DHS regulations and Sec.  
    655.6 (or in the case of job contractors, a seasonal need or one-time 
    occurrence); and
        (4) For job contractors, the job contractor's own seasonal need or 
    one-time occurrence, such as through the provision of payroll records.
        (b) Original signature. The H-2B Registration must bear the 
    original signature of the employer (and that of the employer's attorney 
    or agent if applicable). If and when the H-2B Registration is permitted 
    to be filed electronically, the employer will satisfy this requirement 
    by signing the H-2B Registration as directed by the CO.
        (c) Timeliness of registration filing. A completed request for an 
    H-2B Registration must be received by no less than 120 calendar days 
    and no more than 150 calendar days before the employer's date of need, 
    except where the employer submits the H-2B Registration in support of 
    an emergency filing under Sec.  655.17.
        (d) Temporary need. (1) The employer must establish that its need 
    for non-agricultural services or labor is temporary, regardless of 
    whether the underlying job is permanent or temporary, consistent with 
    DHS regulations. A job contractor must also demonstrate through 
    documentation its own seasonal need or one-time occurrence.
        (2) The employer's need will be assessed in accordance with the 
    definitions provided by the Secretary of Homeland Security and as 
    further defined in Sec.  655.6.
        (e) NPC review. The CO will review the H-2B Registration and its 
    accompanying documentation for completeness and make a determination 
    based on the following factors:
        (1) The job classification and duties qualify as non-agricultural;
        (2) The employer's need for the services or labor to be performed 
    is temporary in nature, and for job contractors, demonstration of the 
    job contractor's own seasonal need or one-time occurrence;
        (3) The number of worker positions and period of need are 
    justified; and
        (4) The request represents a bona fide job opportunity.
        (f) Mailing and postmark requirements. Any notice or request 
    pertaining to an H-2B Registration sent by the CO to an employer 
    requiring a response will be mailed to the address provided on the H-2B 
    Registration using methods to assure next day delivery, including 
    electronic mail. The employer's response to the notice or request must 
    be mailed using methods to assure next day delivery, including 
    electronic mail, and be sent by the due date specified by the CO or by 
    the next business day if the due date falls on a Saturday, Sunday or 
    Federal holiday.
        (g) Request for information (RFI). If the CO determines the H-2B 
    Registration cannot be approved, the CO will issue an RFI. The RFI will 
    be issued within 7 business days of the CO's receipt of the H-2B 
    Registration. The RFI will:
        (1) State the reason(s) why the H-2B Registration cannot be 
    approved and what supplemental information or documentation is needed 
    to correct the deficiencies;
        (2) Specify a date, no later than 7 business days from the date the 
    RFI is issued, by which the supplemental information or documentation 
    must be sent by the employer;
        (3) State that, upon receipt of a response to the RFI, the CO will 
    review the H-2B Registration as well as any supplemental information 
    and documentation and issue a Notice of Decision on the H-2B 
    Registration. The CO may, at his or her discretion, issue one or more 
    additional RFIs before issuing a Notice of Decision on the H-2B 
    Registration; and
        (4) State that failure to comply with an RFI, including not 
    responding in a timely manner or not providing all required 
    documentation within the specified timeframe, will result in a denial 
    of the H-2B Registration.
        (h) Notice of Decision. The CO will notify the employer in writing 
    of the final decision on the H-2B Registration.
        (1) Approved H-2B Registration. If the H-2B Registration is 
    approved, the CO will send a Notice of Decision to the employer, and a 
    copy to the employer's attorney or agent, if applicable. The Notice of 
    Decision will notify the employer that it is eligible to seek H-2B 
    workers in the occupational classification for the anticipated number 
    of positions and period of need stated on the approved H-2B 
    Registration. The CO may approve the H-2B Registration for a period of 
    up to 3 consecutive years.
        (2) Denied H-2B Registration. If the H-2B Registration is denied, 
    the CO will send a Notice of Decision to the employer, and a copy to 
    the employer's attorney or agent, if applicable. The Notice of Decision 
    will:
        (i) State the reason(s) why the H-2B Registration is denied;
        (ii) Offer the employer an opportunity to request administrative 
    review under Sec.  655.61 within 10 business days from the date the 
    Notice of Decision is issued and state that if the employer does not 
    request administrative review within that period the denial is final.
        (i) Retention of documents. All employers filing an H-2B 
    Registration are required to retain any documents and records not 
    otherwise submitted proving compliance with this subpart. Such records 
    and documents must be retained for a period of 3 years from the date of 
    certification of the last Application for Temporary Employment 
    Certification supported by the H-2B Registration, if approved, or 3 
    years from the date the decision is issued if the H-2B Registration is 
    denied or 3 years from the day the Department of Labor receives written 
    notification from the employer withdrawing its pending H-2B 
    Registration.
    
    [[Page 24115]]
    
        (j) Transition period. In order to allow OFLC to make the necessary 
    changes to its program operations to accommodate the new registration 
    process, OFLC will announce in the Federal Register a separate 
    transition period for the registration process, and until that time, 
    will continue to adjudicate temporary need during the processing of 
    applications.
    
    
    Sec.  655.12  Use of registration of H-2B employers.
    
        (a) Upon approval of the H-2B Registration, the employer is 
    authorized for the specified period of up to 3 consecutive years from 
    the date the H-2B Registration is approved to file an Application for 
    Temporary Employment Certification, unless:
        (1) The number of workers to be employed has increased by more than 
    20 percent (or 50 percent for employers requesting fewer than 10 
    workers) from the initial year;
        (2) The dates of need for the job opportunity have changed by more 
    than a total of 30 calendar days from the initial year for the entire 
    period of need;
        (3) The nature of the job classification and/or duties has 
    materially changed; or
        (4) The temporary nature of the employer's need for services or 
    labor to be performed has materially changed.
        (b) If any of the changes in paragraphs (a)(1) through (4) of this 
    section apply, the employer must file a new H-2B Registration in 
    accordance with Sec.  655.11.
        (c) The H-2B Registration may not be transferred from one employer 
    to another unless the employer to which it is transferred is a 
    successor in interest to the employer to which it was issued.
    
    
    Sec.  655.13  Review of PWDs.
    
        (a) Request for review of PWDs. Any employer desiring review of a 
    PWD must make a written request for such review to the NPWC Director 
    within 7 business days from the date the PWD is issued. The request for 
    review must clearly identify the PWD for which review is sought; set 
    forth the particular grounds for the request; and include any materials 
    submitted to the NPWC for purposes of securing the PWD.
        (b) NPWC review. Upon the receipt of the written request for 
    review, the NPWC Director will review the employer's request and 
    accompanying documentation, including any supplementary material 
    submitted by the employer, and after review shall issue a Final 
    Determination letter; that letter may:
        (1) Affirm the PWD issued by the NPWC; or
        (2) Modify the PWD.
        (c) Request for review by BALCA. Any employer desiring review of 
    the NPWC Director's decision on a PWD must make a written request for 
    review of the determination by BALCA within 10 business days from the 
    date the Final Determination letter is issued.
        (1) The request for BALCA review must be in writing and addressed 
    to the NPWC Director who made the final determinations. Upon receipt of 
    a request for BALCA review, the NPWC will prepare an appeal file and 
    submit it to BALCA.
        (2) The request for review, statements, briefs, and other 
    submissions of the parties must contain only legal arguments and may 
    refer to only the evidence that was within the record upon which the 
    decision on the PWD was based.
        (3) BALCA will handle appeals in accordance with Sec.  655.61.
    
    
    Sec.  655.14  [Reserved]
    
    Application for Temporary Employment Certification Filing Procedures
    
    
    Sec.  655.15  Application filing requirements.
    
        All registered employers that desire to hire H-2B workers must file 
    an Application for Temporary Employment Certification with the NPC 
    designated by the Administrator, OFLC. Except for employers that 
    qualify for emergency procedures at Sec.  655.17, employers that fail 
    to register under the procedures in Sec.  655.11 and/or that fail to 
    submit a PWD obtained under Sec.  655.10 will not be eligible to file 
    an Application for Temporary Employment Certification and their 
    applications will be returned without review.
        (a) What to file. A registered employer seeking H-2B workers must 
    file a completed Application for Temporary Employment Certification 
    (ETA Form 9142B and the appropriate appendices and valid PWD), a copy 
    of the job order being submitted concurrently to the SWA serving the 
    area of intended employment, as set forth in Sec.  655.16, and copies 
    of all contracts and agreements with any agent and/or recruiter, 
    executed in connection with the job opportunities and all information 
    required, as specified in Sec. Sec.  655.8 and 655.9.
        (b) Timeliness. A completed Application for Temporary Employment 
    Certification must be filed no more than 90 calendar days and no less 
    than 75 calendar days before the employer's date of need.
        (c) Location and method of filing. The employer must submit the 
    Application for Temporary Employment Certification and all required 
    supporting documentation to the NPC either electronically or by mail.
        (d) Original signature. The Application for Temporary Employment 
    Certification must bear the original signature of the employer (and 
    that of the employer's authorized attorney or agent if the employer is 
    so represented). If the Application for Temporary Employment 
    Certification is filed electronically, the employer must satisfy this 
    requirement by signing the Application for Temporary Employment 
    Certification as directed by the CO.
        (e) Requests for multiple positions. Certification of more than one 
    position may be requested on the Application for Temporary Employment 
    Certification as long as all H-2B workers will perform the same 
    services or labor under the same terms and conditions, in the same 
    occupation, in the same area of intended employment, and during the 
    same period of employment.
        (f) Separate applications. Except as otherwise permitted by this 
    paragraph (f), only one Application for Temporary Employment 
    Certification may be filed for worksite(s) within one area of intended 
    employment for each job opportunity with an employer for each period of 
    employment. Except where otherwise permitted under Sec.  655.4, an 
    association or other organization of employers is not permitted to file 
    master applications on behalf of its employer-members under the H-2B 
    program.
        (1) Subject to paragraph (f)(2) of this section, if a petition for 
    H-2B nonimmigrants filed by an employer in the seafood industry is 
    granted, the employer may bring the nonimmigrants described in the 
    petition into the United States at any time during the 120-day period 
    beginning on the start date for which the employer is seeking the 
    services of the nonimmigrants without filing another petition.
        (2) An employer in the seafood industry may not bring H-2B 
    nonimmigrants into the United States after the date that is 90 days 
    after the start date for which the employer is seeking the services of 
    the nonimmigrants unless the employer conducts new recruitment, that 
    begins at least 45 days after, and ends before the 90th day after, the 
    certified start date of need as follows:
        (i) Completes a new assessment of the local labor market by--
        (A) Listing the job orders in local newspapers on 2 separate 
    Sundays; and
        (B) Placing new job orders for the job opportunity with the State 
    Workforce Agency serving the area of intended employment and posting 
    the job opportunity at the place of employment for at least 10 days; 
    and
    
    [[Page 24116]]
    
        (C) Offering the job to an equally or better qualified United 
    States worker who--
        (1) Applies for the job; and
        (2) Will be available at the time and place of need.
        (3) In order to comply with this provision, employers in the 
    seafood industry must--
        (1) Sign and date an attestation form stating the employer's 
    compliance with this subparagraph. The attestation form is available at 
    http://www.foreignlaborcert.doleta.gov/form.cfm;
        (2) Provide each H-2B nonimmigrant worker seeking admission to the 
    United States a copy of the signed and dated attestation, with 
    instructions that the worker must present the documentation upon 
    request to the Department of State's consular officers when they apply 
    for a visa and/or the Department of Homeland Security's U.S Customs and 
    Border Protection officers when seeking admission to the United States. 
    Without this attestation, an H-2B nonimmigrant may be denied a visa or 
    admission to the United States if seeking to enter at any time other 
    than the start date stated in the petition. (The attestation is not 
    necessary when filing an amended petition based on a worker who is 
    being substituted in accordance with DHS regulations.) The attestation 
    presented by an H-2B nonimmigrant worker must be the official 
    attestation downloaded from OFLC's Web site and may not be altered or 
    revised in any manner; and
        (3) Retain the additional recruitment documentation, together with 
    their prefiling recruitment documentation, for a period of 3 years from 
    the date of certification, consistent with the document retention 
    requirements under Sec.  655.56. Seafood industry employers who conduct 
    the required additional recruitment should not submit proof of the 
    additional recruitment to the Office of Foreign Labor Certification.
        (g) One-time occurrence. Where a one-time occurrence lasts longer 
    than 1 year, the CO will instruct the employer on any additional 
    recruitment requirements with respect to the continuing validity of the 
    labor market test or offered wage obligation.
        (h) Information dissemination. Information received in the course 
    of processing a request for an H-2B Registration, an Application for 
    Temporary Employment Certification or program integrity measures such 
    as audits may be forwarded from OFLC to WHD, or any other Federal 
    agency as appropriate, for investigative and/or enforcement purposes.
    
    
    Sec.  655.16  Filing of the job order at the SWA.
    
        (a) Submission of the job order. (1) The employer must submit the 
    job order to the SWA serving the area of intended employment at the 
    same time it submits the Application for Temporary Employment 
    Certification and a copy of the job order to the NPC in accordance with 
    Sec.  655.15. If the job opportunity is located in more than one State 
    within the same area of intended employment, the employer may submit 
    the job order to any one of the SWAs having jurisdiction over the 
    anticipated worksites, but must identify the receiving SWA on the copy 
    of the job order submitted to the NPC with its Application for 
    Temporary Employment Certification. The employer must inform the SWA 
    that the job order is being placed in connection with a concurrently 
    submitted Application for Temporary Employment Certification for H-2B 
    workers.
        (2) In addition to complying with State-specific requirements 
    governing job orders, the job order submitted to the SWA must satisfy 
    the requirements set forth in Sec.  655.18.
        (b) SWA review of the job order. The SWA must review the job order 
    and ensure that it complies with criteria set forth in Sec.  655.18. If 
    the SWA determines that the job order does not comply with the 
    applicable criteria, the SWA must inform the CO at the NPC of the noted 
    deficiencies within 6 business days of receipt of the job order.
        (c) Intrastate and interstate clearance. Upon receipt of the Notice 
    of Acceptance, as described in Sec.  655.33, the SWA must promptly 
    place the job order in intrastate clearance, and in interstate 
    clearance by providing a copy of the job order to other states as 
    directed by the CO.
        (d) Duration of job order posting and SWA referral of U.S. workers. 
    Upon receipt of the Notice of Acceptance, any SWA in receipt of the 
    employer's job order must keep the job order on its active file until 
    the end of the recruitment period, as set forth in Sec.  655.40(c), and 
    must refer to the employer in a manner consistent with Sec.  655.47 all 
    qualified U.S. workers who apply for the job opportunity or on whose 
    behalf a job application is made.
        (e) Amendments to a job order. The employer may amend the job order 
    at any time before the CO makes a final determination, in accordance 
    with procedures set forth in Sec.  655.35.
    
    
    Sec.  655.17  Emergency situations.
    
        (a) Waiver of time period. The CO may waive the time period(s) for 
    filing an H-2B Registration and/or an Application for Temporary 
    Employment Certification for employers that have good and substantial 
    cause, provided that the CO has sufficient time to thoroughly test the 
    domestic labor market on an expedited basis and to make a final 
    determination as required by Sec.  655.50.
        (b) Employer requirements. The employer requesting a waiver of the 
    required time period(s) must submit to the NPC a request for a waiver 
    of the time period requirement, a completed Application for Temporary 
    Employment Certification and the proposed job order identifying the SWA 
    serving the area of intended employment, and must otherwise meet the 
    requirements of Sec.  655.15. If the employer did not previously apply 
    for an H-2B Registration, the employer must also submit a completed H-
    2B Registration with all supporting documentation, as required by Sec.  
    655.11. If the employer did not previously apply for a PWD, the 
    employer must also submit a completed PWD request. The employer's 
    waiver request must include detailed information describing the good 
    and substantial cause that has necessitated the waiver request. Good 
    and substantial cause may include, but is not limited to, the 
    substantial loss of U.S. workers due to Acts of God, or a similar 
    unforeseeable man-made catastrophic event (such as an oil spill or 
    controlled flooding) that is wholly outside of the employer's control, 
    unforeseeable changes in market conditions, or pandemic health issues. 
    A denial of a previously submitted H-2B Registration in accordance with 
    the procedures set forth in Sec.  655.11 does not constitute good and 
    substantial cause necessitating a waiver under this section.
        (c) Processing of emergency applications. The CO will process the 
    emergency H-2B Registration and/or Application for Temporary Employment 
    Certification and job order in a manner consistent with the provisions 
    of this subpart and make a determination on the Application for 
    Temporary Employment Certification in accordance with Sec.  655.50. If 
    the CO grants the waiver request, the CO will forward a Notice of 
    Acceptance and the approved job order to the SWA serving the area of 
    intended employment identified by the employer in the job order. If the 
    CO determines that the certification cannot be granted because, under 
    paragraph (a) of this section, the request for emergency filing is not 
    justified and/or there is not sufficient time to make a determination 
    of temporary need or ensure compliance with the criteria for 
    certification contained in Sec.  655.51, the CO will send a Final 
    Determination
    
    [[Page 24117]]
    
    letter to the employer in accordance with Sec.  655.53.
    
    
    Sec.  655.18  Job order assurances and contents.
    
        (a) General. Each job order placed in connection with an 
    Application for Temporary Employment Certification must at a minimum 
    include the information contained in paragraph (b) of this section. In 
    addition, by submitting the Application for Temporary Employment 
    Certification, an employer agrees to comply with the following 
    assurances with respect to each job order:
        (1) Prohibition against preferential treatment. The employer's job 
    order must offer to U.S. workers no less than the same benefits, wages, 
    and working conditions that the employer is offering, intends to offer, 
    or will provide to H-2B workers. Job offers may not impose on U.S. 
    workers any restrictions or obligations that will not be imposed on the 
    employer's H-2B workers. This does not relieve the employer from 
    providing to H-2B workers at least the minimum benefits, wages, and 
    working conditions which must be offered to U.S. workers consistent 
    with this section.
        (2) Bona fide job requirements. Each job qualification and 
    requirement must be listed in the job order and must be bona fide and 
    consistent with the normal and accepted qualifications and requirements 
    imposed by non-H-2B employers in the same occupation and area of 
    intended employment.
        (b) Contents. In addition to complying with the assurances in 
    paragraph (a) of this section, the employer's job order must meet the 
    following requirements:
        (1) State the employer's name and contact information;
        (2) Indicate that the job opportunity is a temporary, full-time 
    position, including the total number of job openings the employer 
    intends to fill;
        (3) Describe the job opportunity for which certification is sought 
    with sufficient information to apprise U.S. workers of the services or 
    labor to be performed, including the duties, the minimum education and 
    experience requirements, the work hours and days, and the anticipated 
    start and end dates of the job opportunity;
        (4) Indicate the geographic area of intended employment with enough 
    specificity to apprise applicants of any travel requirements and where 
    applicants will likely have to reside to perform the services or labor;
        (5) Specify the wage that the employer is offering, intends to 
    offer, or will provide to H-2B workers, or, in the event that there are 
    multiple wage offers, the range of wage offers, and ensure that the 
    wage offer equals or exceeds the highest of the prevailing wage or the 
    Federal, State, or local minimum wage;
        (6) If applicable, specify that overtime will be available to the 
    worker and the wage offer(s) for working any overtime hours;
        (7) If applicable, state that on-the-job training will be provided 
    to the worker;
        (8) State that the employer will use a single workweek as its 
    standard for computing wages due;
        (9) Specify the frequency with which the worker will be paid, which 
    must be at least every 2 weeks or according to the prevailing practice 
    in the area of intended employment, whichever is more frequent;
        (10) If the employer provides the worker with the option of board, 
    lodging, or other facilities, including fringe benefits, or intends to 
    assist workers to secure such lodging, disclose the provision and cost 
    of the board, lodging, or other facilities, including fringe benefits 
    or assistance to be provided;
        (11) State that the employer will make all deductions from the 
    worker's paycheck required by law. Specify any deductions the employer 
    intends to make from the worker's paycheck which are not required by 
    law, including, if applicable, any deductions for the reasonable cost 
    of board, lodging, or other facilities;
        (12) Detail how the worker will be provided with or reimbursed for 
    transportation and subsistence from the place from which the worker has 
    come to work for the employer, whether in the U.S. or abroad, to the 
    place of employment, if the worker completes 50 percent of the period 
    of employment covered by the job order, consistent with Sec.  
    655.20(j)(1)(i);
        (13) State that the employer will provide or pay for the worker's 
    cost of return transportation and daily subsistence from the place of 
    employment to the place from which the worker, disregarding intervening 
    employment, departed to work for the employer, if the worker completes 
    the certified period of employment or is dismissed from employment for 
    any reason by the employer before the end of the period, consistent 
    with Sec.  655.20(j)(1)(ii);
        (14) If applicable, state that the employer will provide daily 
    transportation to and from the worksite;
        (15) State that the employer will reimburse the H-2B worker in the 
    first workweek for all visa, visa processing, border crossing, and 
    other related fees, including those mandated by the government, 
    incurred by the H-2B worker (but need not include passport expenses or 
    other charges primarily for the benefit of the worker);
        (16) State that the employer will provide to the worker, without 
    charge or deposit charge, all tools, supplies, and equipment required 
    to perform the duties assigned, in accordance with Sec.  655.20(k);
        (17) State the applicability of the three-fourths guarantee, 
    offering the worker employment for a total number of work hours equal 
    to at least three-fourths of the workdays of each 12-week period, if 
    the period of employment covered by the job order is 120 or more days, 
    or each 6-week period, if the period of employment covered by the job 
    order is less than 120 days, in accordance with Sec.  655.20(f); and
        (18) Instruct applicants to inquire about the job opportunity or 
    send applications, indications of availability, and/or resumes directly 
    to the nearest office of the SWA in the State in which the 
    advertisement appeared and include the SWA contact information.
    
    
    Sec.  655.19  Job contractor filing requirements.
    
        (a) Provided that a job contractor and any employer-client are 
    joint employers, a job contractor may submit an Application for 
    Temporary Employment Certification on behalf of itself and that 
    employer-client.
        (b) A job contractor must have separate contracts with each 
    different employer-client. Each contract or agreement may support only 
    one Application for Temporary Employment Certification for each 
    employer-client job opportunity within a single area of intended 
    employment.
        (c) Either the job contractor or its employer-client may submit an 
    ETA Form 9141, Application for Prevailing Wage Determination, 
    describing the job opportunity to the NPWC. However, each of the joint 
    employers is separately responsible for ensuring that the wage offer 
    listed on the Application for Temporary Employment Certification, ETA 
    Form 9142B, and related recruitment at least equals the prevailing wage 
    rate determined by the NPWC and that all other wage obligations are 
    met.
        (d)(1) A job contractor that is filing as a joint employer with its 
    employer-client must submit to the NPC a completed Application for 
    Temporary Employment Certification, ETA Form 9142, that clearly 
    identifies the joint employers (the job contractor and its employer-
    client) and the employment relationship (including the actual 
    worksite), in accordance with the instructions provided by the
    
    [[Page 24118]]
    
    Department of Labor. The Application for Temporary Employment 
    Certification must bear the original signature of the job contractor 
    and the employer-client and be accompanied by the contract or agreement 
    establishing the employers' relationship related to the workers sought.
        (2) By signing the Application for Temporary Employment 
    Certification, each employer independently attests to the conditions of 
    employment required of an employer participating in the H-2B program 
    and assumes full responsibility for the accuracy of the representations 
    made in the application and for all of the responsibilities of an 
    employer in the H-2B program.
        (e)(1) Either the job contractor or its employer-client may place 
    the required job order and conduct recruitment as described in Sec.  
    655.16 and Sec. Sec.  655.42 through 655.46. Also, either one of the 
    joint employers may assume responsibility for interviewing applicants. 
    However, both of the joint employers must sign the recruitment report 
    that is submitted to the NPC with the Application for Temporary 
    Employment Certification, ETA Form 9142B.
        (2) The job order and all recruitment conducted by joint employers 
    must satisfy the content requirements identified in Sec. Sec.  655.18 
    and 655.41. Additionally, in order to fully apprise applicants of the 
    job opportunity and avoid potential confusion inherent in a job 
    opportunity involving two employers, joint employer recruitment must 
    clearly identify both employers (the job contractor and its employer-
    client) by name and must clearly identify the worksite location(s) 
    where workers will perform labor or services.
        (3)(i) Provided that all of the employer-clients' job opportunities 
    are in the same occupation and area of intended employment and have the 
    same requirements and terms and conditions of employment, including 
    dates of employment, a job contractor may combine more than one of its 
    joint employer employer-clients' job opportunities in a single 
    advertisement. Each advertisement must fully apprise potential workers 
    of the job opportunity available with each employer-client and 
    otherwise satisfy the advertising content requirements required for all 
    H-2B-related advertisements, as identified in Sec.  655.41. Such a 
    shared advertisement must clearly identify the job contractor by name, 
    the joint employment relationship, and the number of workers sought for 
    each job opportunity, identified by employer-client name and location 
    (e.g. 5 openings with Employer-Client 1 (worksite location), 3 openings 
    with Employer-Client 2 (worksite location)).
        (ii) In addition, the advertisement must contain the following 
    statement: ``Applicants may apply for any or all of the jobs listed. 
    When applying, please identify the job(s) (by company and work 
    location) you are applying to for the entire period of employment 
    specified.'' If an applicant fails to identify one or more specific 
    work location(s), that applicant is presumed to have applied to all 
    work locations listed in the advertisement.
        (f) If an application for joint employers is approved, the NPC will 
    issue one certification and send it to the job contractor. In order to 
    ensure notice to both employers, a courtesy copy of the certification 
    cover letter will be sent to the employer-client. (g) When submitting a 
    certified Application for Temporary Employment Certification to USCIS, 
    the job contractor should submit the complete ETA Form 9142B containing 
    the original signatures of both the job contractor and employer-client.
    
    Assurances and Obligations
    
    
    Sec.  655.20  Assurances and obligations of H-2B employers.
    
        An employer employing H-2B workers and/or workers in corresponding 
    employment under an Application for Temporary Employment Certification 
    has agreed as part of the Application for Temporary Employment 
    Certification that it will abide by the following conditions with 
    respect to its H-2B workers and any workers in corresponding 
    employment:
        (a) Rate of pay. (1) The offered wage in the job order equals or 
    exceeds the highest of the prevailing wage or Federal minimum wage, 
    State minimum wage, or local minimum wage. The employer must pay at 
    least the offered wage, free and clear, during the entire period of the 
    Application for Temporary Employment Certification granted by OFLC.
        (2) The offered wage is not based on commissions, bonuses, or other 
    incentives, including paying on a piece-rate basis, unless the employer 
    guarantees a wage earned every workweek that equals or exceeds the 
    offered wage.
        (3) If the employer requires one or more minimum productivity 
    standards of workers as a condition of job retention, the standards 
    must be specified in the job order and the employer must demonstrate 
    that they are normal and usual for non-H-2B employers for the same 
    occupation in the area of intended employment.
        (4) An employer that pays on a piece-rate basis must demonstrate 
    that the piece rate is no less than the normal rate paid by non-H-2B 
    employers to workers performing the same activity in the area of 
    intended employment. The average hourly piece rate earnings must result 
    in an amount at least equal to the offered wage. If the worker is paid 
    on a piece rate basis and at the end of the workweek the piece rate 
    does not result in average hourly piece rate earnings during the 
    workweek at least equal to the amount the worker would have earned had 
    the worker been paid at the offered hourly wage, then the employer must 
    supplement the worker's pay at that time so that the worker's earnings 
    are at least as much as the worker would have earned during the 
    workweek if the worker had instead been paid at the offered hourly wage 
    for each hour worked.
        (b) Wages free and clear. The payment requirements for wages in 
    this section will be satisfied by the timely payment of such wages to 
    the worker either in cash or negotiable instrument payable at par. The 
    payment must be made finally and unconditionally and ``free and 
    clear.'' The principles applied in determining whether deductions are 
    reasonable and payments are received free and clear and the 
    permissibility of deductions for payments to third persons are 
    explained in more detail in 29 CFR part 531.
        (c) Deductions. The employer must make all deductions from the 
    worker's paycheck required by law. The job order must specify all 
    deductions not required by law which the employer will make from the 
    worker's pay; any such deductions not disclosed in the job order are 
    prohibited. The wage payment requirements of paragraph (b) of this 
    section are not met where unauthorized deductions, rebates, or refunds 
    reduce the wage payment made to the worker below the minimum amounts 
    required by the offered wage or where the worker fails to receive such 
    amounts free and clear because the worker ``kicks back'' directly or 
    indirectly to the employer or to another person for the employer's 
    benefit the whole or part of the wages delivered to the worker. 
    Authorized deductions are limited to: Those required by law, such as 
    taxes payable by workers that are required to be withheld by the 
    employer and amounts due workers which the employer is required by 
    court order to pay to another; deductions for the reasonable cost or 
    fair value of board, lodging, and facilities furnished; and deductions 
    of amounts which are authorized to be paid to third persons for the 
    worker's account and benefit through his or her
    
    [[Page 24119]]
    
    voluntary assignment or order or which are authorized by a collective 
    bargaining agreement with bona fide representatives of workers which 
    covers the employer. Deductions for amounts paid to third persons for 
    the worker's account and benefit which are not so authorized or are 
    contrary to law or from which the employer, agent or recruiter 
    including any agents or employees of these entities, or any affiliated 
    person derives any payment, rebate, commission, profit, or benefit 
    directly or indirectly, may not be made if they reduce the actual wage 
    paid to the worker below the offered wage indicated on the Application 
    for Temporary Employment Certification.
        (d) Job opportunity is full-time. The job opportunity is a full-
    time temporary position, consistent with Sec.  655.5, and the employer 
    must use a single workweek as its standard for computing wages due. An 
    employee's workweek must be a fixed and regularly recurring period of 
    168 hours--seven consecutive 24-hour periods. It need not coincide with 
    the calendar week but may begin on any day and at any hour of the day.
        (e) Job qualifications and requirements. Each job qualification and 
    requirement must be listed in the job order and must be bona fide and 
    consistent with the normal and accepted qualifications and requirements 
    imposed by non-H-2B employers in the same occupation and area of 
    intended employment. The employer's job qualifications and requirements 
    imposed on U.S. workers must not be less favorable than the 
    qualifications and requirements that the employer is imposing or will 
    impose on H-2B workers. A qualification means a characteristic that is 
    necessary to the individual's ability to perform the job in question. A 
    requirement means a term or condition of employment which a worker is 
    required to accept in order to obtain the job opportunity. The CO may 
    require the employer to submit documentation to substantiate the 
    appropriateness of any job qualification and/or requirement specified 
    in the job order.
        (f) Three-fourths guarantee. (1) The employer must guarantee to 
    offer the worker employment for a total number of work hours equal to 
    at least three-fourths of the workdays in each 12-week period (each 6-
    week period if the period of employment covered by the job order is 
    less than 120 days) beginning with the first workday after the arrival 
    of the worker at the place of employment or the advertised first date 
    of need, whichever is later, and ending on the expiration date 
    specified in the job order or in its extensions, if any. See the 
    exception in paragraph (y) of this section.
        (2) For purposes of this paragraph (f) a workday means the number 
    of hours in a workday as stated in the job order. The employer must 
    offer a total number of hours of work to ensure the provision of 
    sufficient work to reach the three-fourths guarantee in each 12-week 
    period (each 6-week period if the period of employment covered by the 
    job order is less than 120 days) during the work period specified in 
    the job order, or during any modified job order period to which the 
    worker and employer have mutually agreed and that has been approved by 
    the CO.
        (3) In the event the worker begins working later than the specified 
    beginning date the guarantee period begins with the first workday after 
    the arrival of the worker at the place of employment, and continues 
    until the last day during which the job order and all extensions 
    thereof are in effect.
        (4) The 12-week periods (6-week periods if the period of employment 
    covered by the job order is less than 120 days) to which the guarantee 
    applies are based upon the workweek used by the employer for pay 
    purposes. The first 12-week period (or 6-week period, as appropriate) 
    also includes any partial workweek, if the first workday after the 
    worker's arrival at the place of employment is not the beginning of the 
    employer's workweek, with the guaranteed number of hours increased on a 
    pro rata basis (thus, the first period may include up to 12 weeks and 6 
    days (or 6 weeks and 6 days, as appropriate)). The final 12-week period 
    (or 6-week period, as appropriate) includes any time remaining after 
    the last full 12-week period (or 6-week period) ends, and thus may be 
    as short as 1 day, with the guaranteed number of hours decreased on a 
    pro rata basis.
        (5) Therefore, if, for example, a job order is for a 32-week period 
    (a period greater than 120 days), during which the normal workdays and 
    work hours for the workweek are specified as 5 days a week, 7 hours per 
    day, the worker would have to be guaranteed employment for at least 315 
    hours in the first 12-week period (12 weeks x 35 hours/week = 420 hours 
    x 75 percent = 315), at least 315 hours in the second 12-week period, 
    and at least 210 hours (8 weeks x 35 hours/week = 280 hours x 75 
    percent = 210) in the final partial period. If the job order is for a 
    16-week period (less than 120 days), during which the normal workdays 
    and work hours for the workweek are specified as 5 days a week, 7 hours 
    per day, the worker would have to be guaranteed employment for at least 
    157.5 hours (6 weeks x 35 hours/week = 210 hours x 75 percent = 157.5) 
    in the first 6-week period, at least 157.5 hours in the second 6-week 
    period, and at least 105 hours (4 weeks x 35 hours/week = 140 hours x 
    75 percent = 105) in the final partial period.
        (6) If the worker is paid on a piece rate basis, the employer must 
    use the worker's average hourly piece rate earnings or the offered 
    wage, whichever is higher, to calculate the amount due under the 
    guarantee.
        (7) A worker may be offered more than the specified hours of work 
    on a single workday. For purposes of meeting the guarantee, however, 
    the worker will not be required to work for more than the number of 
    hours specified in the job order for a workday. The employer, however, 
    may count all hours actually worked in calculating whether the 
    guarantee has been met. If during any 12-week period (6-week period if 
    the period of employment covered by the job order is less than 120 
    days) during the period of the job order the employer affords the U.S. 
    or H-2B worker less employment than that required under paragraph 
    (f)(1) of this section, the employer must pay such worker the amount 
    the worker would have earned had the worker, in fact, worked for the 
    guaranteed number of days. An employer has not met the work guarantee 
    if the employer has merely offered work on three-fourths of the 
    workdays in an 12-week period (or 6-week period, as appropriate) if 
    each workday did not consist of a full number of hours of work time as 
    specified in the job order.
        (8) Any hours the worker fails to work, up to a maximum of the 
    number of hours specified in the job order for a workday, when the 
    worker has been offered an opportunity to work in accordance with 
    paragraph (f)(1) of this section, and all hours of work actually 
    performed (including voluntary work over 8 hours in a workday), may be 
    counted by the employer in calculating whether each 12-week period (or 
    6-week period, as appropriate) of guaranteed employment has been met. 
    An employer seeking to calculate whether the guaranteed number of hours 
    has been met must maintain the payroll records in accordance with this 
    part.
        (g) Impossibility of fulfillment. If, before the expiration date 
    specified in the job order, the services of the worker are no longer 
    required for reasons beyond the control of the employer due to fire, 
    weather, or other Act of God, or similar unforeseeable man-made 
    catastrophic event (such as an oil spill or controlled flooding) that 
    is wholly outside the employer's control that
    
    [[Page 24120]]
    
    makes the fulfillment of the job order impossible, the employer may 
    terminate the job order with the approval of the CO. In the event of 
    such termination of a job order, the employer must fulfill a three-
    fourths guarantee, as described in paragraph (f) of this section, for 
    the time that has elapsed from the start date listed in the job order 
    or the first workday after the arrival of the worker at the place of 
    employment, whichever is later, to the time of its termination. The 
    employer must make efforts to transfer the H-2B worker or worker in 
    corresponding employment to other comparable employment acceptable to 
    the worker and consistent with the INA, as applicable. If a transfer is 
    not effected, the employer must return the worker, at the employer's 
    expense, to the place from which the worker (disregarding intervening 
    employment) came to work for the employer, or transport the worker to 
    the worker's next certified H-2B employer, whichever the worker 
    prefers.
        (h) Frequency of pay. The employer must state in the job order the 
    frequency with which the worker will be paid, which must be at least 
    every 2 weeks or according to the prevailing practice in the area of 
    intended employment, whichever is more frequent. Employers must pay 
    wages when due.
        (i) Earnings statements. (1) The employer must keep accurate and 
    adequate records with respect to the workers' earnings, including but 
    not limited to: Records showing the nature, amount and location(s) of 
    the work performed; the number of hours of work offered each day by the 
    employer (broken out by hours offered both in accordance with and over 
    and above the three-fourths guarantee in paragraph (f) of this 
    section); the hours actually worked each day by the worker; if the 
    number of hours worked by the worker is less than the number of hours 
    offered, the reason(s) the worker did not work; the time the worker 
    began and ended each workday; the rate of pay (both piece rate and 
    hourly, if applicable); the worker's earnings per pay period; the 
    worker's home address; and the amount of and reasons for any and all 
    deductions taken from or additions made to the worker's wages.
        (2) The employer must furnish to the worker on or before each 
    payday in one or more written statements the following information:
        (i) The worker's total earnings for each workweek in the pay 
    period;
        (ii) The worker's hourly rate and/or piece rate of pay;
        (iii) For each workweek in the pay period the hours of employment 
    offered to the worker (showing offers in accordance with the three-
    fourths guarantee as determined in paragraph (f) of this section, 
    separate from any hours offered over and above the guarantee);
        (iv) For each workweek in the pay period the hours actually worked 
    by the worker;
        (v) An itemization of all deductions made from or additions made to 
    the worker's wages;
        (vi) If piece rates are used, the units produced daily;
        (vii) The beginning and ending dates of the pay period; and
        (viii) The employer's name, address and FEIN.
        (j) Transportation and visa fees. (1)(i) Transportation to the 
    place of employment. The employer must provide or reimburse the worker 
    for transportation and subsistence from the place from which the worker 
    has come to work for the employer, whether in the U.S. or abroad, to 
    the place of employment if the worker completes 50 percent of the 
    period of employment covered by the job order (not counting any 
    extensions). The employer may arrange and pay for the transportation 
    and subsistence directly, advance at a minimum the most economical and 
    reasonable common carrier cost of the transportation and subsistence to 
    the worker before the worker's departure, or pay the worker for the 
    reasonable costs incurred by the worker. When it is the prevailing 
    practice of non-H-2B employers in the occupation in the area to do so 
    or when the employer extends such benefits to similarly situated H-2B 
    workers, the employer must advance the required transportation and 
    subsistence costs (or otherwise provide them) to workers in 
    corresponding employment who are traveling to the employer's worksite. 
    The amount of the transportation payment must be no less (and is not 
    required to be more) than the most economical and reasonable common 
    carrier transportation charges for the distances involved. The amount 
    of the daily subsistence must be at least the amount permitted in Sec.  
    655.173. Where the employer will reimburse the reasonable costs 
    incurred by the worker, it must keep accurate and adequate records of: 
    The costs of transportation and subsistence incurred by the worker; the 
    amount reimbursed; and the date(s) of reimbursement. Note that the FLSA 
    applies independently of the H-2B requirements and imposes obligations 
    on employers regarding payment of wages.
        (ii) Transportation from the place of employment. If the worker 
    completes the period of employment covered by the job order (not 
    counting any extensions), or if the worker is dismissed from employment 
    for any reason by the employer before the end of the period, and the 
    worker has no immediate subsequent H-2B employment, the employer must 
    provide or pay at the time of departure for the worker's cost of return 
    transportation and daily subsistence from the place of employment to 
    the place from which the worker, disregarding intervening employment, 
    departed to work for the employer. If the worker has contracted with a 
    subsequent employer that has not agreed in the job order to provide or 
    pay for the worker's transportation from the employer's worksite to 
    such subsequent employer's worksite, the employer must provide or pay 
    for that transportation and subsistence. If the worker has contracted 
    with a subsequent employer that has agreed in the job order to provide 
    or pay for the worker's transportation from the employer's worksite to 
    such subsequent employer's worksite, the subsequent employer must 
    provide or pay for such expenses.
        (iii) Employer-provided transportation. All employer-provided 
    transportation must comply with all applicable Federal, State, and 
    local laws and regulations and must provide, at a minimum, the same 
    vehicle safety standards, driver licensure requirements, and vehicle 
    insurance as required under 49 CFR parts 390, 393, and 396.
        (iv) Disclosure. All transportation and subsistence costs that the 
    employer will pay must be disclosed in the job order.
        (2) The employer must pay or reimburse the worker in the first 
    workweek for all visa, visa processing, border crossing, and other 
    related fees (including those mandated by the government) incurred by 
    the H-2B worker, but not for passport expenses or other charges 
    primarily for the benefit of the worker.
        (k) Employer-provided items. The employer must provide to the 
    worker, without charge or deposit charge, all tools, supplies, and 
    equipment required to perform the duties assigned.
        (l) Disclosure of job order. The employer must provide to an H-2B 
    worker outside of the U.S. no later than the time at which the worker 
    applies for the visa, or to a worker in corresponding employment no 
    later than on the day work commences, a copy of the job order including 
    any subsequent approved modifications. For an H-2B worker changing 
    employment from an H-2B employer to a subsequent H-2B employer, the 
    copy must be provided no later than the time an offer of employment is 
    made by the subsequent H-2B employer. The disclosure of all
    
    [[Page 24121]]
    
    documents required by this paragraph (l) must be provided in a language 
    understood by the worker, as necessary or reasonable.
        (m) Notice of worker rights. The employer must post and maintain in 
    a conspicuous location at the place of employment a poster provided by 
    the Department of Labor that sets out the rights and protections for H-
    2B workers and workers in corresponding employment. The employer must 
    post the poster in English. To the extent necessary, the employer must 
    request and post additional posters, as made available by the 
    Department of Labor, in any language common to a significant portion of 
    the workers if they are not fluent in English.
        (n) No unfair treatment. The employer has not and will not 
    intimidate, threaten, restrain, coerce, blacklist, discharge or in any 
    manner discriminate against, and has not and will not cause any person 
    to intimidate, threaten, restrain, coerce, blacklist, discharge, or in 
    any manner discriminate against, any person who has:
        (1) Filed a complaint under or related to 8 U.S.C. 1184(c), section 
    214(c) of the INA, 29 CFR part 503, or this subpart, or any other 
    regulation promulgated thereunder;
        (2) Instituted or caused to be instituted any proceeding under or 
    related to 8 U.S.C. 1184(c), section 214(c) of the INA, 29 CFR part 
    503, or this subpart or any other regulation promulgated thereunder;
        (3) Testified or is about to testify in any proceeding under or 
    related to 8 U.S.C. 1184(c), section 214(c) of the INA, 29 CFR part 
    503, or this subpart or any other regulation promulgated thereunder;
        (4) Consulted with a workers' center, community organization, labor 
    union, legal assistance program, or an attorney on matters related to 8 
    U.S.C. 1184(c), section 214(c) of the INA, 29 CFR part 503, or this 
    subpart or any other regulation promulgated thereunder; or
        (5) Exercised or asserted on behalf of himself/herself or others 
    any right or protection afforded by 8 U.S.C. 1184(c), section 214(c) of 
    the INA, 29 CFR part 503, or this subpart or any other regulation 
    promulgated thereunder.
        (o) Comply with the prohibitions against employees paying fees. The 
    employer and its attorney, agents, or employees have not sought or 
    received payment of any kind from the worker for any activity related 
    to obtaining H-2B labor certification or employment, including payment 
    of the employer's attorney or agent fees, application and H-2B Petition 
    fees, recruitment costs, or any fees attributed to obtaining the 
    approved Application for Temporary Employment Certification. For 
    purposes of this paragraph (o), payment includes, but is not limited 
    to, monetary payments, wage concessions (including deductions from 
    wages, salary, or benefits), kickbacks, bribes, tributes, in-kind 
    payments, and free labor. All wages must be paid free and clear. This 
    provision does not prohibit employers or their agents from receiving 
    reimbursement for costs that are the responsibility and primarily for 
    the benefit of the worker, such as government-required passport fees.
        (p) Contracts with third parties to comply with prohibitions. The 
    employer must contractually prohibit in writing any agent or recruiter 
    (or any agent or employee of such agent or recruiter) whom the employer 
    engages, either directly or indirectly, in recruitment of H-2B workers 
    to seek or receive payments or other compensation from prospective 
    workers. The contract must include the following statement: ``Under 
    this agreement, [name of agent, recruiter] and any agent of or employee 
    of [name of agent or recruiter] are prohibited from seeking or 
    receiving payments from any prospective employee of [employer name] at 
    any time, including before or after the worker obtains employment. 
    Payments include but are not limited to, any direct or indirect fees 
    paid by such employees for recruitment, job placement, processing, 
    maintenance, attorneys' fees, agent fees, application fees, or petition 
    fees.''
        (q) Prohibition against preferential treatment of foreign workers. 
    The employer's job offer must offer to U.S. workers no less than the 
    same benefits, wages, and working conditions that the employer is 
    offering, intends to offer, or will provide to H-2B workers. Job offers 
    may not impose on U.S. workers any restrictions or obligations that 
    will not be imposed on the employer's H-2B workers. This does not 
    relieve the employer from providing to H-2B workers at least the 
    minimum benefits, wages, and working conditions which must be offered 
    to U.S. workers consistent with this section.
        (r) Non-discriminatory hiring practices. The job opportunity is, 
    and through the period set forth in paragraph (t) of this section must 
    continue to be, open to any qualified U.S. worker regardless of race, 
    color, national origin, age, sex, religion, disability, or citizenship. 
    Rejections of any U.S. workers who applied or apply for the job must 
    only be for lawful, job-related reasons, and those not rejected on this 
    basis have been or will be hired. In addition, the employer has and 
    will continue to retain records of all hired workers and rejected 
    applicants as required by Sec.  655.56.
        (s) Recruitment requirements. The employer must conduct all 
    required recruitment activities, including any additional employer-
    conducted recruitment activities as directed by the CO, and as 
    specified in Sec. Sec.  655.40 through 655.46.
        (t) Continuing requirement to hire U.S. workers. The employer has 
    and will continue to cooperate with the SWA by accepting referrals of 
    all qualified U.S. workers who apply (or on whose behalf a job 
    application is made) for the job opportunity, and must provide 
    employment to any qualified U.S. worker who applies to the employer for 
    the job opportunity, until 21 days before the date of need.
        (u) No strike or lockout. There is no strike or lockout at any of 
    the employer's worksites within the area of intended employment for 
    which the employer is requesting H-2B certification at the time the 
    Application for Temporary Employment Certification is filed.
        (v) No recent or future layoffs. The employer has not laid off and 
    will not lay off any similarly employed U.S. worker in the occupation 
    that is the subject of the Application for Temporary Employment 
    Certification in the area of intended employment within the period 
    beginning 120 calendar days before the date of need through the end of 
    the period of certification. A layoff for lawful, job-related reasons 
    such as lack of work or the end of a season is permissible if all H-2B 
    workers are laid off before any U.S. worker in corresponding 
    employment.
        (w) Contact with former U.S. employees. The employer will contact 
    (by mail or other effective means) its former U.S. workers, including 
    those who have been laid off within 120 calendar days before the date 
    of need (except those who were dismissed for cause or who abandoned the 
    worksite), employed by the employer in the occupation at the place of 
    employment during the previous year, disclose the terms of the job 
    order, and solicit their return to the job.
        (x) Area of intended employment and job opportunity. The employer 
    must not place any H-2B workers employed under the approved Application 
    for Temporary Employment Certification outside the area of intended 
    employment or in a job opportunity not listed on the approved 
    Application for Temporary Employment Certification unless the employer 
    has obtained a new approved Application for Temporary Employment 
    Certification.
    
    [[Page 24122]]
    
        (y) Abandonment/termination of employment. Upon the separation from 
    employment of worker(s) employed under the Application for Temporary 
    Employment Certification or workers in corresponding employment, if 
    such separation occurs before the end date of the employment specified 
    in the Application for Temporary Employment Certification, the employer 
    must notify OFLC in writing of the separation from employment not later 
    than 2 work days after such separation is discovered by the employer. 
    In addition, the employer must notify DHS in writing (or any other 
    method specified by the Department of Labor or DHS in the Federal 
    Register or the Code of Federal Regulations) of such separation of an 
    H-2B worker. An abandonment or abscondment is deemed to begin after a 
    worker fails to report for work at the regularly scheduled time for 5 
    consecutive working days without the consent of the employer. If the 
    separation is due to the voluntary abandonment of employment by the H-
    2B worker or worker in corresponding employment, and the employer 
    provides appropriate notification specified under this paragraph (y), 
    the employer will not be responsible for providing or paying for the 
    subsequent transportation and subsistence expenses of that worker under 
    this section, and that worker is not entitled to the three-fourths 
    guarantee described in paragraph (f) of this section. The employer's 
    obligation to guarantee three-fourths of the work described in 
    paragraph (f) ends with the last full 12-week period (or 6-week period, 
    as appropriate) preceding the worker's voluntary abandonment or 
    termination for cause.
        (z) Compliance with applicable laws. During the period of 
    employment specified on the Application for Temporary Employment 
    Certification, the employer must comply with all applicable Federal, 
    State and local employment-related laws and regulations, including 
    health and safety laws. This includes compliance with 18 U.S.C. 
    1592(a), with respect to prohibitions against employers, the employer's 
    agents or their attorneys knowingly holding, destroying or confiscating 
    workers' passports, visas, or other immigration documents.
        (aa) Disclosure of foreign worker recruitment. The employer, and 
    its attorney or agent, as applicable, must comply with Sec.  655.9 by 
    providing a copy of all agreements with any agent or recruiter whom it 
    engages or plans to engage in the recruitment of H-2B workers, and the 
    identity and location of the persons or entities hired by or working 
    for the agent or recruiter and any of the agents or employees of those 
    persons and entities, to recruit foreign workers. Pursuant to Sec.  
    655.15(a), the agreements and information must be filed with the 
    Application for Temporary Employment Certification.
        (bb) Cooperation with investigators. The employer must cooperate 
    with any employee of the Secretary who is exercising or attempting to 
    exercise the Department's authority pursuant to 8 U.S.C. 
    1184(c)(14)(B), section 214(c)(14)(B) of the INA.
    
    
    Sec. Sec.  655.21-655.29   [Reserved]
    
    Processing of an Application for Temporary Employment Certification
    
    
    Sec.  655.30  Processing of an application and job order.
    
        (a) NPC review. The CO will review the Application for Temporary 
    Employment Certification and job order for compliance with all 
    applicable program requirements.
        (b) Mailing and postmark requirements. Any notice or request sent 
    by the CO to an employer requiring a response will be mailed to the 
    address provided in the Application for Temporary Employment 
    Certification using methods to assure next day delivery, including 
    electronic mail. The employer's response to such a notice or request 
    must be mailed using methods to assure next day delivery, including 
    electronic mail, and be sent by the due date or the next business day 
    if the due date falls on a Saturday, Sunday or Federal holiday.
        (c) Information dissemination. OFLC may forward information 
    received in the course of processing an Application for Temporary 
    Employment Certification and program integrity measures to WHD, or any 
    other Federal agency, as appropriate, for investigation and/or 
    enforcement purposes.
    
    
    Sec.  655.31  Notice of deficiency.
    
        (a) Notification timeline. If the CO determines the Application for 
    Temporary Employment Certification and/or job order is incomplete, 
    contains errors or inaccuracies, or does not meet the requirements set 
    forth in this subpart, the CO will notify the employer within 7 
    business days from the CO's receipt of the Application for Temporary 
    Employment Certification. If applicable, the Notice of Deficiency will 
    include job order deficiencies identified by the SWA under Sec.  
    655.16. The CO will send a copy of the Notice of Deficiency to the SWA 
    serving the area of intended employment identified by the employer on 
    its job order, and if applicable, to the employer's attorney or agent.
        (b) Notice content. The Notice of Deficiency will:
        (1) State the reason(s) why the Application for Temporary 
    Employment Certification or job order fails to meet the criteria for 
    acceptance and state the modification needed for the CO to issue a 
    Notice of Acceptance;
        (2) Offer the employer an opportunity to submit a modified 
    Application for Temporary Employment Certification or job order within 
    10 business days from the date of the Notice of Deficiency. The Notice 
    will state the modification needed for the CO to issue a Notice of 
    Acceptance;
        (3) Offer the employer an opportunity to request administrative 
    review of the Notice of Deficiency before an ALJ under provisions set 
    forth in Sec.  655.61. The Notice will inform the employer that it must 
    submit a written request for review to the Chief ALJ of DOL within 10 
    business days from the date the Notice of Deficiency is issued by 
    facsimile or other means normally assuring next day delivery, and that 
    the employer must simultaneously serve a copy on the CO. The Notice 
    will also state that the employer may submit any legal arguments that 
    the employer believes will rebut the basis of the CO's action; and
        (4) State that if the employer does not comply with the 
    requirements of this section by either submitting a modified 
    application within 10 business days or requesting administrative review 
    before an ALJ under Sec.  655.61, the CO will deny the Application for 
    Temporary Employment Certification. The Notice will inform the employer 
    that the denial of the Application for Temporary Employment 
    Certification is final, and cannot be appealed. The Department of Labor 
    will not further consider that Application for Temporary Employment 
    Certification.
    
    
    Sec.  655.32  Submission of a modified application or job order.
    
        (a) Review of a modified Application for Temporary Employment 
    Certification or job order. Upon receipt of a response to a Notice of 
    Deficiency, including any modifications, the CO will review the 
    response. The CO may issue one or more additional Notices of Deficiency 
    before issuing a decision. The employer's failure to comply with a 
    Notice of Deficiency, including not responding in a timely manner or 
    not providing all required documentation, will result in a denial of 
    the Application for Temporary Employment Certification.
        (b) Acceptance of a modified Application for Temporary Employment 
    Certification or job order. If the CO
    
    [[Page 24123]]
    
    accepts the modification(s) to the Application for Temporary Employment 
    Certification and/or job order, the CO will issue a Notice of 
    Acceptance to the employer. The CO will send a copy of the Notice of 
    Acceptance to the SWA instructing it to make any necessary 
    modifications to the not yet posted job order and, if applicable, to 
    the employer's attorney or agent, and follow the procedure set forth in 
    Sec.  655.33.
        (c) Denial of a modified Application for Temporary Employment 
    Certification or job order. If the CO finds the response to Notice of 
    Deficiency unacceptable, the CO will deny the Application for Temporary 
    Employment Certification in accordance with the labor certification 
    determination provisions in Sec.  655.51.
        (d) Appeal from denial of a modified Application for Temporary 
    Employment Certification or job order. The procedures for appealing a 
    denial of a modified Application for Temporary Employment Certification 
    and/or job order are the same as for appealing the denial of a non-
    modified Application for Temporary Employment Certification outlined in 
    Sec.  655.61.
        (e) Post acceptance modifications. Irrespective of the decision to 
    accept the Application for Temporary Employment Certification, the CO 
    may require modifications to the job order at any time before the final 
    determination to grant or deny the Application for Temporary Employment 
    Certification if the CO determines that the offer of employment does 
    not contain all the minimum benefits, wages, and working condition 
    provisions as set forth in Sec.  655.18. The employer must make such 
    modification, or certification will be denied under Sec.  655.53. The 
    employer must provide all workers recruited in connection with the job 
    opportunity in the Application for Temporary Employment Certification 
    with a copy of the modified job order no later than the date work 
    commences, as approved by the CO.
    
    
    Sec.  655.33  Notice of acceptance.
    
        (a) Notification timeline. If the CO determines the Application for 
    Temporary Employment Certification and job order are complete and meet 
    the requirements of this subpart, the CO will notify the employer in 
    writing within 7 business days from the date the CO received the 
    Application for Temporary Employment Certification and job order or 
    modification thereof. A copy of the Notice of Acceptance will be sent 
    to the SWA serving the area of intended employment identified by the 
    employer on its job order and, if applicable, to the employer's 
    attorney or agent.
        (b) Notice content. The notice will:
        (1) Direct the employer to engage in recruitment of U.S. workers as 
    provided in Sec. Sec.  655.40 through 655.46, including any additional 
    recruitment ordered by the CO under Sec.  655.46;
        (2) State that such employer-conducted recruitment is in addition 
    to the job order being circulated by the SWA(s) and that the employer 
    must conduct recruitment within 14 calendar days from the date the 
    Notice of Acceptance is issued, consistent with Sec.  655.40;
        (3) Direct the SWA to place the job order into intra- and 
    interstate clearance as set forth in Sec.  655.16 and to commence such 
    clearance by:
        (i) Sending a copy of the job order to other States listed as 
    anticipated worksites in the Application for Temporary Employment 
    Certification and job order, if applicable; and
        (ii) Sending a copy of the job order to the SWAs for all States 
    designated by the CO for interstate clearance;
        (4) Instruct the SWA to keep the approved job order on its active 
    file until the end of the recruitment period as defined in Sec.  
    655.40(c), and to transmit the same instruction to other SWAs to which 
    it circulates the job order in the course of interstate clearance;
        (5) Where the occupation or industry is traditionally or 
    customarily unionized, direct the SWA to circulate a copy of the job 
    order to the following labor organizations:
        (i) The central office of the State Federation of Labor in the 
    State(s) in which work will be performed; and
        (ii) The office(s) of local union(s) representing employees in the 
    same or substantially equivalent job classification in the area(s) in 
    which work will be performed;
        (6) Advise the employer, as appropriate, that it must contact the 
    appropriate designated community-based organization(s) with notice of 
    the job opportunity; and
        (7) Require the employer to submit a report of its recruitment 
    efforts as specified in Sec.  655.48.
    
    
    Sec.  655.34  Electronic job registry.
    
        (a) Location of and placement in the electronic job registry. Upon 
    acceptance of the Application for Temporary Employment Certification 
    under Sec.  655.33, the CO will place for public examination a copy of 
    the job order posted by the SWA on the Department's electronic job 
    registry, including any amendments or required modifications approved 
    by the CO.
        (b) Length of posting on electronic job registry. The Department of 
    Labor will keep the job order posted on the electronic job registry 
    until the end of the recruitment period, as set forth in Sec.  
    655.40(c).
        (c) Conclusion of active posting. Once the recruitment period has 
    concluded the job order will be placed in inactive status on the 
    electronic job registry.
    
    
    Sec.  655.35  Amendments to an application or job order.
    
        (a) Increases in number of workers. The employer may request to 
    increase the number of workers noted in the H-2B Registration by no 
    more than 20 percent (50 percent for employers requesting fewer than 10 
    workers). All requests for increasing the number of workers must be 
    made in writing and will not be effective until approved by the CO. In 
    considering whether to approve the request, the CO will determine 
    whether the proposed amendment(s) are sufficiently justified and must 
    take into account the effect of the changes on the underlying labor 
    market test for the job opportunity. Upon acceptance of an amendment, 
    the CO will submit to the SWA any necessary changes to the job order 
    and update the electronic job registry. The employer must promptly 
    provide copies of any approved amendments to all U.S. workers hired 
    under the original job order.
        (b) Minor changes to the period of employment. The employer may 
    request minor changes to the total period of employment listed on its 
    Application for Temporary Employment Certification and job order, for a 
    period of up to 14 days, but the period of employment may not exceed a 
    total of 9 months, except in the event of a one-time occurrence. All 
    requests for minor changes to the total period of employment must be 
    made in writing and will not be effective until approved by the CO. In 
    considering whether to approve the request, the CO will determine 
    whether the proposed amendment(s) are sufficiently justified and must 
    take into account the effect of the changes on the underlying labor 
    market test for the job opportunity. Upon acceptance of an amendment, 
    the CO will submit to the SWA any necessary changes to the job order 
    and update the electronic job registry. The employer must promptly 
    provide copies of any approved amendments to all U.S. workers hired 
    under the original job order
        (c) Other amendments to the Application for Temporary Employment 
    Certification and job order. The employer may request other
    
    [[Page 24124]]
    
    amendments to the Application for Temporary Employment Certification 
    and job order. All such requests must be made in writing and will not 
    be effective until approved by the CO. In considering whether to 
    approve the request, the CO will determine whether the proposed 
    amendment(s) are sufficiently justified and must take into account the 
    effect of the changes on the underlying labor market test for the job 
    opportunity. Upon acceptance of an amendment, the CO will submit to the 
    SWA any necessary changes to the job order and update the electronic 
    job registry.
        (d) Amendments after certification are not permitted. The employer 
    must promptly provide copies of any approved amendments to all U.S. 
    workers hired under the original job order.
    
    
    Sec. Sec.  655.36-655.39  [Reserved]
    
    Post-Acceptance Requirements
    
    
    Sec.  655.40  Employer-conducted recruitment.
    
        (a) Employer obligations. Employers must conduct recruitment of 
    U.S. workers to ensure that there are not qualified U.S. workers who 
    will be available for the positions listed in the Application for 
    Temporary Employment Certification. U.S. Applicants can be rejected 
    only for lawful job-related reasons.
        (b) Employer-conducted recruitment period. Unless otherwise 
    instructed by the CO, the employer must conduct the recruitment 
    described in Sec. Sec.  655.42 through 655.46 within 14 calendar days 
    from the date the Notice of Acceptance is issued. All employer-
    conducted recruitment must be completed before the employer submits the 
    recruitment report as required in Sec.  655.48.
        (c) U.S. workers. Employers must continue to accept referrals and 
    applications of all U.S. applicants interested in the position until 21 
    days before the date of need.
        (d) Interviewing U.S. workers. Employers that wish to require 
    interviews must conduct those interviews by phone or provide a 
    procedure for the interviews to be conducted in the location where the 
    worker is being recruited so that the worker incurs little or no cost. 
    Employers cannot provide potential H-2B workers with more favorable 
    treatment with respect to the requirement for, and conduct of, 
    interviews.
        (e) Qualified and available U.S. workers. The employer must 
    consider all U.S. applicants for the job opportunity. The employer must 
    accept and hire any applicants who are qualified and who will be 
    available.
        (f) Recruitment report. The employer must prepare a recruitment 
    report meeting the requirements of Sec.  655.48.
    
    
    Sec.  655.41  Advertising requirements.
    
        (a) All recruitment conducted under Sec. Sec.  655.42 through 
    655.46 must contain terms and conditions of employment that are not 
    less favorable than those offered to the H-2B workers and, at a 
    minimum, must comply with the assurances applicable to job orders as 
    set forth in Sec.  655.18(a).
        (b) All advertising must contain the following information:
        (1) The employer's name and contact information;
        (2) The geographic area of intended employment with enough 
    specificity to apprise applicants of any travel requirements and where 
    applicants will likely have to reside to perform the services or labor;
        (3) A description of the job opportunity for which certification is 
    sought with sufficient information to apprise U.S. workers of the 
    services or labor to be performed, including the duties, the minimum 
    education and experience requirements, the work hours and days, and the 
    anticipated start and end dates of the job opportunity;
        (4) A statement that the job opportunity is a temporary, full-time 
    position including the total number of job openings the employer 
    intends to fill;
        (5) If applicable, a statement that overtime will be available to 
    the worker and the wage offer(s) for working any overtime hours;
        (6) If applicable, a statement indicating that on-the-job training 
    will be provided to the worker;
        (7) The wage that the employer is offering, intends to offer or 
    will provide to the H-2B workers or, in the event that there are 
    multiple wage offers, the range of applicable wage offers, each of 
    which must equal or exceed the highest of the prevailing wage or the 
    Federal, State, or local minimum wage;
        (8) If applicable, any board, lodging, or other facilities the 
    employer will offer to workers or intends to assist workers in 
    securing;
        (9) All deductions not required by law that the employer will make 
    from the worker's paycheck, including, if applicable, reasonable 
    deduction for board, lodging, and other facilities offered to the 
    workers;
        (10) A statement that transportation and subsistence from the place 
    where the worker has come to work for the employer to the place of 
    employment and return transportation and subsistence will be provided, 
    as required by Sec.  655.20(j)(1);
        (11) If applicable, a statement that work tools, supplies, and 
    equipment will be provided to the worker without charge;
        (12) If applicable, a statement that daily transportation to and 
    from the worksite will be provided by the employer;
        (13) A statement summarizing the three-fourths guarantee as 
    required by Sec.  655.20(f); and
        (14) A statement directing applicants to apply for the job 
    opportunity at the nearest office of the SWA in the State in which the 
    advertisement appeared, the SWA contact information, and, if 
    applicable, the job order number.
    
    
    Sec.  655.42  Newspaper advertisements.
    
        (a) The employer must place an advertisement (which must be in a 
    language other than English, where the CO determines appropriate) on 2 
    separate days, which may be consecutive, one of which must be a Sunday 
    (except as provided in paragraph (b) of this section), in a newspaper 
    of general circulation serving the area of intended employment and 
    appropriate to the occupation and the workers likely to apply for the 
    job opportunity.
        (b) If the job opportunity is located in a rural area that does not 
    have a newspaper with a Sunday edition, the CO may direct the employer, 
    in place of a Sunday edition, to advertise in the regularly published 
    daily edition with the widest circulation in the area of intended 
    employment.
        (c) The newspaper advertisements must satisfy the requirements in 
    Sec.  655.41.
        (d) The employer must maintain copies of newspaper pages (with date 
    of publication and full copy of the advertisement), or tear sheets of 
    the pages of the publication in which the advertisements appeared, or 
    other proof of publication furnished by the newspaper containing the 
    text of the printed advertisements and the dates of publication, 
    consistent with the document retention requirements in Sec.  655.56. If 
    the advertisement was required to be placed in a language other than 
    English, the employer must maintain a translation and retain it in 
    accordance with Sec.  655.56.
    
    
    Sec.  655.43  Contact with former U.S. employees.
    
        The employer must contact (by mail or other effective means) its 
    former U.S. workers, including those who have been laid off within 120 
    calendar days before
    
    [[Page 24125]]
    
    the date of need, employed by the employer in the occupation at the 
    place of employment during the previous year (except those who were 
    dismissed for cause or who abandoned the worksite), disclose the terms 
    of the job order, and solicit their return to the job. The employer 
    must maintain documentation sufficient to prove such contact in 
    accordance with Sec.  655.56.
    
    
    Sec.  655.44  [Reserved]
    
    
    Sec.  655.45  Contact with bargaining representative, posting and other 
    contact requirements.
    
        (a) If there is a bargaining representative for any of the 
    employer's employees in the occupation and area of intended employment, 
    the employer must provide written notice of the job opportunity, by 
    providing a copy of the Application for Temporary Employment 
    Certification and the job order, and maintain documentation that it was 
    sent to the bargaining representative(s). An employer governed by this 
    paragraph (a) must include information in its recruitment report that 
    confirms that the bargaining representative(s) was contacted and 
    notified of the position openings and whether the organization referred 
    qualified U.S. worker(s), including the number of referrals, or was 
    non-responsive to the employer's requests.
        (b) If there is no bargaining representative, the employer must 
    post the availability of the job opportunity in at least 2 conspicuous 
    locations at the place(s) of anticipated employment or in some other 
    manner that provides reasonable notification to all employees in the 
    job classification and area in which the work will be performed by the 
    H-2B workers. Electronic posting, such as displaying the notice 
    prominently on any internal or external Web site that is maintained by 
    the employer and customarily used for notices to employees about terms 
    and conditions of employment, is sufficient to meet this posting 
    requirement as long as it otherwise meets the requirements of this 
    section. The notice must meet the requirements under Sec.  655.41 and 
    be posted for at least 15 consecutive business days. The employer must 
    maintain a copy of the posted notice and identify where and when it was 
    posted in accordance with Sec.  655.56.
        (c) If appropriate to the occupation and area of intended 
    employment, as indicated by the CO in the Notice of Acceptance, the 
    employer must provide written notice of the job opportunity to a 
    community-based organization, and maintain documentation that it was 
    sent to any designated community-based organization. An employer 
    governed by this paragraph (c) must include information in its 
    recruitment report that confirms that the community-based organization 
    was contacted and notified of the position openings and whether the 
    organization referred qualified U.S. worker(s), including the number of 
    referrals, or was non-responsive to the employer's requests.
    
    
    Sec.  655.46  Additional employer-conducted recruitment.
    
        (a) Requirement to conduct additional recruitment. The employer may 
    be instructed by the CO to conduct additional reasonable recruitment. 
    Such recruitment may be required at the discretion of the CO where the 
    CO has determined that there is a likelihood that U.S. workers who are 
    qualified and will be available for the work, including but not limited 
    to where the job opportunity is located in an Area of Substantial 
    Unemployment.
        (b) Nature of the additional employer-conducted recruitment. The CO 
    will describe the precise number and nature of the additional 
    recruitment efforts. Additional recruitment may include, but is not 
    limited to, posting on the employer's Web site or another Web site, 
    contact with additional community-based organizations, additional 
    contact with State One-Stop Career Centers, and other print 
    advertising, such as using a professional, trade or ethnic publication 
    where such a publication is appropriate for the occupation and the 
    workers likely to apply for the job opportunity. When assessing the 
    appropriateness of a particular recruitment method, the CO will 
    consider the cost of the additional recruitment and the likelihood that 
    the additional recruitment method(s) will identify qualified and 
    available U.S. workers.
        (c) Proof of the additional employer-conducted recruitment. The CO 
    will specify the documentation or other supporting evidence that must 
    be maintained by the employer as proof that the additional recruitment 
    requirements were met. Documentation must be maintained as required in 
    Sec.  655.56.
    
    
    Sec.  655.47  Referrals of U.S. workers.
    
        SWAs may only refer for employment individuals who have been 
    apprised of all the material terms and conditions of employment and who 
    are qualified and will be available for employment.
    
    
    Sec.  655.48  Recruitment report.
    
        (a) Requirements of the recruitment report. The employer must 
    prepare, sign, and date a recruitment report. Where recruitment was 
    conducted by a job contractor or its employer-client, both joint 
    employers must sign the recruitment report in accordance with Sec.  
    655.19(e). The recruitment report must be submitted by a date specified 
    by the CO in the Notice of Acceptance and contain the following 
    information:
        (1) The name of each recruitment activity or source (e.g., job 
    order and the name of the newspaper);
        (2) The name and contact information of each U.S. worker who 
    applied or was referred to the job opportunity up to the date of the 
    preparation of the recruitment report, and the disposition of each 
    worker's application. The employer must clearly indicate whether the 
    job opportunity was offered to the U.S. worker and whether the U.S. 
    worker accepted or declined;
        (3) Confirmation that former U.S. employees were contacted, if 
    applicable, and by what means;
        (4) Confirmation that the bargaining representative was contacted, 
    if applicable, and by what means, or that the employer posted the 
    availability of the job opportunity to all employees in the job 
    classification and area in which the work will be performed by the H-2B 
    workers;
        (5) Confirmation that the community-based organization designated 
    by the CO was contacted, if applicable;
        (6) If applicable, confirmation that additional recruitment was 
    conducted as directed by the CO; and
        (7) If applicable, for each U.S. worker who applied for the 
    position but was not hired, the lawful job-related reason(s) for not 
    hiring the U.S. worker.
        (b) Duty to update recruitment report. The employer must continue 
    to update the recruitment report throughout the recruitment period. In 
    a joint employment situation, either the job contractor or the 
    employer-client may update the recruitment report. The updated report 
    must be signed, dated and need not be submitted to the Department of 
    Labor, but must be made available in the event of a post-certification 
    audit or upon request by DOL.
    
    
    Sec.  655.49  [Reserved]
    
    Labor Certification Determinations
    
    
    Sec.  655.50  Determinations.
    
        (a) Certifying Officers (COs). The Administrator, OFLC is the 
    Department's National CO. The Administrator, OFLC and the CO(s), by 
    virtue of delegation from the Administrator, OFLC, have the authority 
    to certify or deny Applications for Temporary Employment Certification 
    under the H-2B nonimmigrant
    
    [[Page 24126]]
    
    classification. If the Administrator, OFLC directs that certain types 
    of temporary labor certification applications or a specific Application 
    for Temporary Employment Certification under the H-2B nonimmigrant 
    classification be handled by the OFLC's National Office, the Director 
    of the NPC will refer such applications to the Administrator, OFLC.
        (b) Determination. Except as otherwise provided in this paragraph 
    (b), the CO will make a determination either to certify or deny the 
    Application for Temporary Employment Certification. The CO will certify 
    the application only if the employer has met all the requirements of 
    this subpart, including the criteria for certification in Sec.  655.51, 
    thus demonstrating that there is an insufficient number of U.S. workers 
    who are qualified and who will be available for the job opportunity for 
    which certification is sought and that the employment of the H-2B 
    workers will not adversely affect the wages and working conditions of 
    similarly employed U.S. workers.
    
    
    Sec.  655.51  Criteria for certification.
    
        (a) The criteria for certification include whether the employer has 
    a valid H-2B Registration to participate in the H-2B program and has 
    complied with all of the requirements necessary to grant the labor 
    certification.
        (b) In making a determination whether there are insufficient U.S. 
    workers to fill the employer's job opportunity, the CO will count as 
    available any U.S. worker referred by the SWA or any U.S. worker who 
    applied (or on whose behalf an application is made) directly to the 
    employer, but who was rejected by the employer for other than a lawful 
    job-related reason.
        (c) A certification will not be granted to an employer that has 
    failed to comply with one or more sanctions or remedies imposed by 
    final agency actions under the H-2B program.
    
    
    Sec.  655.52  Approved certification.
    
        If a temporary labor certification is granted, the CO will send the 
    approved Application for Temporary Employment Certification and a Final 
    Determination letter to the employer by means normally assuring next 
    day delivery, including electronic mail, and a copy, if applicable, to 
    the employer's attorney or agent. If the Application for Temporary 
    Employment Certification is electronically filed, the employer must 
    sign the certified Application for Temporary Employment Certification 
    as directed by the CO. The employer must retain a signed copy of the 
    Application for Temporary Employment Certification and the original 
    signed Appendix B of the Application, as required by Sec.  655.56.
    
    
    Sec.  655.53  Denied certification.
    
        If a temporary labor certification is denied, the CO will send the 
    Final Determination letter to the employer by means normally assuring 
    next day delivery, including electronic mail, and a copy, if 
    applicable, to the employer's attorney or agent. The Final 
    Determination letter will:
        (a) State the reason(s) certification is denied, citing the 
    relevant regulatory standards;
        (b) Offer the employer an opportunity to request administrative 
    review of the denial under Sec.  655.61; and
        (c) State that if the employer does not request administrative 
    review in accordance with Sec.  655.61, the denial is final and the 
    Department of Labor will not accept any appeal on that Application for 
    Temporary Employment Certification.
    
    
    Sec.  655.54  Partial certification.
    
        The CO may issue a partial certification, reducing either the 
    period of need or the number of H-2B workers or both for certification, 
    based upon information the CO receives during the course of processing 
    the Application for Temporary Employment Certification. The number of 
    workers certified will be reduced by one for each U.S. worker who is 
    qualified and who will be available at the time and place needed to 
    perform the services or labor and who has not been rejected for lawful 
    job-related reasons. If a partial labor certification is issued, the CO 
    will amend the Application for Temporary Employment Certification and 
    then return it to the employer with a Final Determination letter, with 
    a copy to the employer's attorney or agent, if applicable. The Final 
    Determination letter will:
        (a) State the reason(s) why either the period of need and/or the 
    number of H-2B workers requested has been reduced, citing the relevant 
    regulatory standards;
        (b) If applicable, address the availability of U.S. workers in the 
    occupation;
        (c) Offer the employer an opportunity to request administrative 
    review of the partial certification under Sec.  655.61; and
        (d) State that if the employer does not request administrative 
    review in accordance with Sec.  655.61, the partial certification is 
    final and the Department of Labor will not accept any appeal on that 
    Application for Temporary Employment Certification.
    
    
    Sec.  655.55  Validity of temporary labor certification.
    
        (a) Validity period. A temporary labor certification is valid only 
    for the period as approved on the Application for Temporary Employment 
    Certification. The certification expires on the last day of authorized 
    employment.
        (b) Scope of validity. A temporary labor certification is valid 
    only for the number of H-2B positions, the area of intended employment, 
    the job classification and specific services or labor to be performed, 
    and the employer specified on the approved Application for Temporary 
    Employment Certification, including any approved modifications. The 
    temporary labor certification may not be transferred from one employer 
    to another unless the employer to which it is transferred is a 
    successor in interest to the employer to which it was issued.
    
    
    Sec.  655.56  Document retention requirements of H-2B employers.
    
        (a) Entities required to retain documents. All employers filing an 
    Application for Temporary Employment Certification requesting H-2B 
    workers are required to retain the documents and records proving 
    compliance with 29 CFR part 503 and this subpart, including but not 
    limited to those specified in paragraph (c) of this section.
        (b) Period of required retention. The employer must retain records 
    and documents for 3 years from the date of certification of the 
    Application for Temporary Employment Certification, or from the date of 
    adjudication if the Application for Temporary Employment Certification 
    is denied, or 3 years from the day the Department of Labor receives the 
    letter of withdrawal provided in accordance with Sec.  655.62. For the 
    purposes of this section, records and documents required to be retained 
    in connection with an H-2B Registration must be retained in connection 
    with all of the Applications for Temporary Employment Certification 
    that are supported by it.
        (c) Documents and records to be retained by all employer 
    applicants. All employers filing an H-2B Registration and an 
    Application for Temporary Employment Certification must retain the 
    following documents and records and must provide the documents and 
    records to the Department of Labor and other Federal agencies in the 
    event of an audit or investigation:
        (1) Documents and records not previously submitted during the 
    registration process that substantiate temporary need;
    
    [[Page 24127]]
    
        (2) Proof of recruitment efforts, as applicable, including:
        (i) Job order placement as specified in Sec.  655.16;
        (ii) Advertising as specified in Sec. Sec.  655.41 and 655.42;
        (iii) Contact with former U.S. workers as specified in Sec.  
    655.43;
        (iv) Contact with bargaining representative(s), or a copy of the 
    posting of the job opportunity, if applicable, as specified in Sec.  
    655.45(a) or (b); and
        (v) Additional employer-conducted recruitment efforts as specified 
    in Sec.  655.46;
        (3) Substantiation of the information submitted in the recruitment 
    report prepared in accordance with Sec.  655.48, such as evidence of 
    nonapplicability of contact with former workers as specified in Sec.  
    655.43;
        (4) The final recruitment report and any supporting resumes and 
    contact information as specified in Sec.  655.48;
        (5) Records of each worker's earnings, hours offered and worked, 
    location(s) of work performed, and other information as specified in 
    Sec.  655.20(i);
        (6) If appropriate, records of reimbursement of transportation and 
    subsistence costs incurred by the workers, as specified in Sec.  
    655.20(j).
        (7) Evidence of contact with U.S. workers who applied for the job 
    opportunity in the Application for Temporary Employment Certification, 
    including documents demonstrating that any rejections of U.S. workers 
    were for lawful, job-related reasons, as specified in Sec.  655.20(r);
        (8) Evidence of contact with any former U.S. worker in the 
    occupation at the place of employment in the Application for Temporary 
    Employment Certification, including documents demonstrating that the 
    U.S. worker had been offered the job opportunity in the Application for 
    Temporary Employment Certification, as specified in Sec.  655.20(w), 
    and that the U.S. worker either refused the job opportunity or was 
    rejected only for lawful, job-related reasons, as specified in Sec.  
    655.20(r);
        (9) The written contracts with agents or recruiters as specified in 
    Sec. Sec.  655.8 and 655.9, and the list of the identities and 
    locations of persons hired by or working for the agent or recruiter and 
    these entities' agents or employees, as specified in Sec.  655.9;
        (10) Written notice provided to and informing OFLC that an H-2B 
    worker or worker in corresponding employment has separated from 
    employment before the end date of employment specified in the 
    Application for Temporary Employment Certification, as specified in 
    Sec.  655.20(y);
        (11) The H-2B Registration, job order and a copy of the Application 
    for Temporary Employment Certification and the original signed Appendix 
    B of the Application. If the Application for Temporary Employment 
    Certification and H-2B Registration is electronically filed, a printed 
    copy of each adjudicated Application for Temporary Employment 
    Certification, including any modifications, amendments or extensions 
    must be signed by the employer as directed by the CO and retained;
        (12) The H-2B Petition, including all accompanying documents; and
        (13) Any collective bargaining agreement(s), individual employment 
    contract(s), or payroll records from the previous year necessary to 
    substantiate any claim that certain incumbent workers are not included 
    in corresponding employment, as specified in Sec.  655.5.
        (d) Availability of documents for enforcement purposes. An employer 
    must make available to the Administrator, WHD within 72 hours following 
    a request by the WHD the documents and records required under 29 CFR 
    part 503 and this section so that the Administrator, WHD may copy, 
    transcribe, or inspect them.
    
    
    Sec.  655.57  Request for determination based on nonavailability of 
    U.S. workers.
    
        (a) Standards for requests. If a temporary labor certification has 
    been partially granted or denied, based on the CO's determination that 
    qualified U.S. workers are available, and, on or after 21 calendar days 
    before the date of need, some or all of those qualified U.S. workers 
    are, in fact no longer available, the employer may request a new 
    temporary labor certification determination from the CO. Prior to 
    making a new determination the CO will promptly ascertain (which may be 
    through the SWA or other sources of information on U.S. worker 
    availability) whether specific qualified replacement U.S. workers are 
    available or can be reasonably expected to be present at the employer's 
    establishment within 72 hours from the date the employer's request was 
    received. The CO will expeditiously, but in no case later than 72 hours 
    after the time a complete request (including the signed statement 
    included in paragraph (b) of this section) is received, make a 
    determination on the request. An employer may appeal a denial of such a 
    determination in accordance with procedures contained in Sec.  655.61.
        (b) Unavailability of U.S. workers. The employer's request for a 
    new determination must be made directly to the CO by electronic mail or 
    other appropriate means and must be accompanied by a signed statement 
    confirming the employer's assertion. In addition, unless the employer 
    has provided to the CO notification of abandonment or termination of 
    employment as required by Sec.  655.20(y), the employer's signed 
    statement must include the name and contact information of each U.S. 
    worker who became unavailable and must supply the reason why the worker 
    has become unavailable.
        (c) Notification of determination. If the CO determines that U.S. 
    workers have become unavailable and cannot identify sufficient 
    available U.S. workers who are qualified or who are likely to become 
    available, the CO will grant the employer's request for a new 
    determination. However, this does not preclude an employer from 
    submitting subsequent requests for new determinations, if warranted, 
    based on subsequent facts concerning purported nonavailability of U.S. 
    workers or referred workers not being qualified because of lawful job-
    related reasons.
    
    
    Sec. Sec.  655.58-655.59   [Reserved]
    
    Post Certification Activities
    
    
    Sec.  655.60  Extensions.
    
        An employer may apply for extensions of the period of employment in 
    the following circumstances. A request for extension must be related to 
    weather conditions or other factors beyond the control of the employer 
    (which may include unforeseeable changes in market conditions), and 
    must be supported in writing, with documentation showing why the 
    extension is needed and that the need could not have been reasonably 
    foreseen by the employer. The CO will notify the employer of the 
    decision in writing. Except in extraordinary circumstances, the CO will 
    not grant an extension where the total work period under that 
    Application for Temporary Employment Certification and the authorized 
    extension would exceed 9 months for employers whose temporary need is 
    seasonal, peakload, or intermittent, or 3 years for employers that have 
    a one-time occurrence of temporary need. The employer may appeal a 
    denial of a request for an extension by following the procedures in 
    Sec.  655.61. The H-2B employer's assurances and obligations under the 
    temporary labor certification will continue to apply during the 
    extended period of employment. The employer must immediately provide to 
    its workers a copy of any approved extension.
    
    [[Page 24128]]
    
    Sec.  655.61  Administrative review.
    
        (a) Request for review. Where authorized in this subpart, employers 
    may request an administrative review before the BALCA of a 
    determination by the CO. In such cases, the request for review:
        (1) Must be sent to the BALCA, with a copy simultaneously sent to 
    the CO who issued the determination, within 10 business days from the 
    date of determination;
        (2) Must clearly identify the particular determination for which 
    review is sought;
        (3) Must set forth the particular grounds for the request;
        (4) Must include a copy of the CO's determination; and
        (5) May contain only legal argument and such evidence as was 
    actually submitted to the CO before the date the CO's determination was 
    issued.
        (b) Appeal file. Upon the receipt of a request for review, the CO 
    will, within 7 business days, assemble and submit the Appeal File using 
    means to ensure same day or next day delivery, to the BALCA, the 
    employer, and the Associate Solicitor for Employment and Training Legal 
    Services, Office of the Solicitor, U.S. Department of Labor.
        (c) Briefing schedule. Within 7 business days of receipt of the 
    Appeal File, the counsel for the CO may submit, using means to ensure 
    same day or next day delivery, a brief in support of the CO's decision.
        (d) Assignment. The Chief ALJ may designate a single member or a 
    three member panel of the BALCA to consider a particular case.
        (e) Review. The BALCA must review the CO's determination only on 
    the basis of the Appeal File, the request for review, and any legal 
    briefs submitted and must:
        (1) Affirm the CO's determination; or
        (2) Reverse or modify the CO's determination; or
        (3) Remand to the CO for further action.
        (f) Decision. The BALCA should notify the employer, the CO, and 
    counsel for the CO of its decision within 7 business days of the 
    submission of the CO's brief or 10 business days after receipt of the 
    Appeal File, whichever is later, using means to ensure same day or next 
    day delivery.
    
    
    Sec.  655.62  Withdrawal of an Application for Temporary Employment 
    Certification.
    
        Employers may withdraw an Application for Temporary Employment 
    Certification after it has been accepted and before it is adjudicated. 
    The employer must request such withdrawal in writing.
    
    
    Sec.  655.63  Public disclosure.
    
        The Department of Labor will maintain an electronic file accessible 
    to the public with information on all employers applying for temporary 
    nonagricultural labor certifications. The database will include such 
    information as the number of workers requested, the date filed, the 
    date decided, and the final disposition.
    
    
    Sec.  655.64-655.69  [Reserved]
    
    Integrity Measures
    
    
    Sec.  655.70  Audits.
    
        The CO may conduct audits of adjudicated temporary employment 
    certification applications.
        (a) Discretion. The CO has the sole discretion to choose the 
    applications selected for audit.
        (b) Audit letter. Where an application is selected for audit, the 
    CO will send an audit letter to the employer and a copy, if 
    appropriate, to the employer's attorney or agent. The audit letter 
    will:
        (1) Specify the documentation that must be submitted by the 
    employer;
        (2) Specify a date, no more than 30 calendar days from the date the 
    audit letter is issued, by which the required documentation must be 
    sent to the CO; and
        (3) Advise that failure to fully comply with the audit process may 
    result:
        (i) In the requirement that the employer undergo the assisted 
    recruitment procedures in Sec.  655.71 in future filings of H-2B 
    temporary employment certification applications for a period of up to 2 
    years, or
        (ii) In a revocation of the certification and/or debarment from the 
    H-2B program and any other foreign labor certification program 
    administered by the Department Labor.
        (c) Supplemental information request. During the course of the 
    audit examination, the CO may request supplemental information and/or 
    documentation from the employer in order to complete the audit. If 
    circumstances warrant, the CO can issue one or more requests for 
    supplemental information.
        (d) Potential referrals. In addition to measures in this subpart, 
    the CO may decide to provide the audit findings and underlying 
    documentation to DHS, WHD, or other appropriate enforcement agencies. 
    The CO may refer any findings that an employer discouraged a qualified 
    U.S. worker from applying, or failed to hire, discharged, or otherwise 
    discriminated against a qualified U.S. worker to the Department of 
    Justice, Civil Rights Division, Office of Special Counsel for Unfair 
    Immigration Related Employment Practices.
    
    
    Sec.  655.71  CO-ordered assisted recruitment.
    
        (a) Requirement of assisted recruitment. If, as a result of audit 
    or otherwise, the CO determines that a violation has occurred that does 
    not warrant debarment, the CO may require the employer to engage in 
    assisted recruitment for a defined period of time for any future 
    Application for Temporary Employment Certification.
        (b) Notification of assisted recruitment. The CO will notify the 
    employer (and its attorney or agent, if applicable) in writing of the 
    assisted recruitment that will be required of the employer for a period 
    of up to 2 years from the date the notice is issued. The notification 
    will state the reasons for the imposition of the additional 
    requirements, state that the employer's agreement to accept the 
    conditions will constitute their inclusion as bona fide conditions and 
    terms of an application for temporary employment certification, and 
    offer the employer an opportunity to request an administrative review. 
    If administrative review is requested, the procedures in Sec.  655.61 
    apply.
        (c) Assisted recruitment. The assisted recruitment process will be 
    in addition to any recruitment required of the employer by Sec. Sec.  
    655.41 through 655.46 and may consist of, but is not limited to, one or 
    more of the following:
        (1) Requiring the employer to submit a draft advertisement to the 
    CO for review and approval at the time of filing the Application for 
    Temporary Employment Certification;
        (2) Designating the sources where the employer must recruit for 
    U.S. workers, including newspapers and other publications, and 
    directing the employer to place the advertisement(s) in such sources;
        (3) Extending the length of the placement of the advertisement and/
    or job order;
        (4) Requiring the employer to notify the CO and the SWA in writing 
    when the advertisement(s) are placed;
        (5) Requiring an employer to perform any additional assisted 
    recruitment directed by the CO;
        (6) Requiring the employer to provide proof of the publication of 
    all advertisements as directed by the CO, in addition to providing a 
    copy of the job order;
        (7) Requiring the employer to provide proof of all SWA referrals 
    made in response to the job order;
        (8) Requiring the employer to submit any proof of contact with all 
    referrals and past U.S. workers; and/or
        (9) Requiring the employer to provide any additional documentation 
    verifying it conducted the assisted recruitment as directed by the CO.
    
    [[Page 24129]]
    
        (d) Failure to comply. If an employer materially fails to comply 
    with requirements ordered by the CO under this section, the 
    certification will be denied and the employer and/or its attorney or 
    agent may be debarred under Sec.  655.73.
    
    
    Sec.  655.72  Revocation.
    
        (a) Basis for DOL revocation. The Administrator, OFLC may revoke a 
    temporary labor certification approved under this subpart, if the 
    Administrator, OFLC finds:
        (1) The issuance of the temporary labor certification was not 
    justified due to fraud or willful misrepresentation of a material fact 
    in the application process, as defined in Sec.  655.73(d);
        (2) The employer substantially failed to comply with any of the 
    terms or conditions of the approved temporary labor certification. A 
    substantial failure is a willful failure to comply that constitutes a 
    significant deviation from the terms and conditions of the approved 
    certification and is further defined in Sec.  655.73(d) and (e);
        (3) The employer failed to cooperate with a DOL investigation or 
    with a DOL official performing an investigation, inspection, audit 
    (under Sec.  655.73), or law enforcement function under 29 CFR part 503 
    or this subpart; or
        (4) The employer failed to comply with one or more sanctions or 
    remedies imposed by WHD, or with one or more decisions or orders of the 
    Secretary with the respect to the H-2B program.
        (b) DOL procedures for revocation--(1) Notice of Revocation. If the 
    Administrator, OFLC makes a determination to revoke an employer's 
    temporary labor certification, the Administrator, OFLC will send to the 
    employer (and its attorney or agent, if applicable) a Notice of 
    Revocation. The notice will contain a detailed statement of the grounds 
    for the revocation and inform the employer of its right to submit 
    rebuttal evidence or to appeal. If the employer does not file rebuttal 
    evidence or an appeal within 10 business days from the date the Notice 
    of Revocation is issued, the notice is the final agency action and will 
    take effect immediately at the end of the 10-day period.
        (2) Rebuttal. If the employer timely submits rebuttal evidence, the 
    Administrator, OFLC will inform the employer of the final determination 
    on the revocation within 10 business days of receiving the rebuttal 
    evidence. If the Administrator, OFLC determines that the certification 
    should be revoked, the Administrator, OFLC will inform the employer of 
    its right to appeal according to the procedures of Sec.  655.61. If the 
    employer does not appeal the final determination, it will become the 
    final agency action.
        (3) Appeal. An employer may appeal a Notice of Revocation, or a 
    final determination of the Administrator, OFLC after the review of 
    rebuttal evidence, according to the appeal procedures of Sec.  655.61. 
    The ALJ's decision is the final agency action.
        (4) Stay. The timely filing of rebuttal evidence or an 
    administrative appeal will stay the revocation pending the outcome of 
    those proceedings.
        (5) Decision. If the temporary labor certification is revoked, the 
    Administrator, OFLC will send a copy of the final agency action to DHS 
    and the Department of State.
        (c) Employer's obligations in the event of revocation. If an 
    employer's temporary labor certification is revoked, the employer is 
    responsible for:
        (1) Reimbursement of actual inbound transportation and other 
    expenses;
        (2) The workers' outbound transportation expenses;
        (3) Payment to the workers of the amount due under the three-
    fourths guarantee; and
        (4) Any other wages, benefits, and working conditions due or owing 
    to the workers under this subpart.
    
    
    Sec.  655.73  Debarment.
    
        (a) Debarment of an employer. The Administrator, OFLC may not issue 
    future labor certifications under this subpart to an employer or any 
    successor in interest to that employer, subject to the time limits set 
    forth in paragraph (c) of this section, if the Administrator, OFLC 
    finds that the employer committed the following violations:
        (1) Willful misrepresentation of a material fact in its H-2B 
    Registration, Application for Prevailing Wage Determination, 
    Application for Temporary Employment Certification, or H-2B Petition;
        (2) Substantial failure to meet any of the terms and conditions of 
    its H-2B Registration, Application for Prevailing Wage Determination, 
    Application for Temporary Employment Certification, or H-2B Petition. A 
    substantial failure is a willful failure to comply that constitutes a 
    significant deviation from the terms and conditions of such documents; 
    or
        (3) Willful misrepresentation of a material fact to the DOS during 
    the visa application process.
        (b) Debarment of an agent or attorney. If the Administrator, OFLC 
    finds, under this section, that an attorney or agent committed a 
    violation as described in paragraphs (a)(1) through (3) of this section 
    or participated in an employer's violation, the Administrator, OFLC may 
    not issue future labor certifications to an employer represented by 
    such agent or attorney, subject to the time limits set forth in 
    paragraph (c) of this section.
        (c) Period of debarment. Debarment under this subpart may not be 
    for less than 1 year or more than 5 years from the date of the final 
    agency decision.
        (d) Determining whether a violation is willful. A willful 
    misrepresentation of a material fact or a willful failure to meet the 
    required terms and conditions occurs when the employer, attorney, or 
    agent knows a statement is false or that the conduct is in violation, 
    or shows reckless disregard for the truthfulness of its representation 
    or for whether its conduct satisfies the required conditions.
        (e) Determining whether a violation is significant. In determining 
    whether a violation is a significant deviation from the terms and 
    conditions of the H-2B Registration, Application for Prevailing Wage 
    Determination, Application for Temporary Employment Certification, or 
    H-2B Petition, the factors that the Administrator, OFLC may consider 
    include, but are not limited to, the following:
        (1) Previous history of violation(s) under the H-2B program;
        (2) The number of H-2B workers, workers in corresponding 
    employment, or improperly rejected U.S. applicants who were and/or are 
    affected by the violation(s);
        (3) The gravity of the violation(s);
        (4) The extent to which the violator achieved a financial gain due 
    to the violation(s), or the potential financial loss or potential 
    injury to the worker(s); and
        (5) Whether U.S. workers have been harmed by the violation.
        (f) Violations. Where the standards set forth in paragraphs (d) and 
    (e) in this section are met, debarrable violations would include but 
    would not be limited to one or more acts of commission or omission 
    which involve:
        (1) Failure to pay or provide the required wages, benefits or 
    working conditions to the employer's H-2B workers and/or workers in 
    corresponding employment;
        (2) Failure, except for lawful, job-related reasons, to offer 
    employment to qualified U.S. workers who applied for the job 
    opportunity for which certification was sought;
        (3) Failure to comply with the employer's obligations to recruit 
    U.S. workers;
        (4) Improper layoff or displacement of U.S. workers or workers in 
    corresponding employment;
    
    [[Page 24130]]
    
        (5) Failure to comply with one or more sanctions or remedies 
    imposed by the Administrator, WHD for violation(s) of obligations under 
    the job order or other H-2B obligations, or with one or more decisions 
    or orders of the Secretary or a court under this subpart or 29 CFR part 
    503;
        (6) Failure to comply with the Notice of Deficiency process under 
    this subpart;
        (7) Failure to comply with the assisted recruitment process under 
    this subpart;
        (8) Impeding an investigation of an employer under 29 CFR part 503 
    or an audit under this subpart;
        (9) Employing an H-2B worker outside the area of intended 
    employment, in an activity/activities not listed in the job order, or 
    outside the validity period of employment of the job order, including 
    any approved extension thereof;
        (10) A violation of the requirements of Sec.  655.20(o) or (p);
        (11) A violation of any of the provisions listed in Sec.  
    655.20(r);
        (12) Any other act showing such flagrant disregard for the law that 
    future compliance with program requirements cannot reasonably be 
    expected;
        (13) Fraud involving the H-2B Registration, Application for 
    Prevailing Wage Determination, Application for Temporary Employment 
    Certification, or the H-2B Petition; or
        (14) A material misrepresentation of fact during the registration 
    or application process.
        (g) Debarment procedure--(1) Notice of Debarment. If the 
    Administrator, OFLC makes a determination to debar an employer, 
    attorney, or agent, the Administrator, OFLC will send the party a 
    Notice of Debarment. The Notice will state the reason for the debarment 
    finding, including a detailed explanation of the grounds for and the 
    duration of the debarment and inform the party subject to the notice of 
    its right to submit rebuttal evidence or to request a debarment 
    hearing. If the party does not file rebuttal evidence or request a 
    hearing within 30 calendar days of the date of the Notice of Debarment, 
    the notice is the final agency action and the debarment will take 
    effect at the end of the 30-day period. The timely filing of an 
    rebuttal evidence or a request for a hearing stays the debarment 
    pending the outcome of the appeal as provided in paragraphs (g)(2) 
    through (6) of this section.
        (2) Rebuttal. The party who received the Notice of Debarment may 
    choose to submit evidence to rebut the grounds stated in the notice 
    within 30 calendar days of the date the notice is issued. If rebuttal 
    evidence is timely filed, the Administrator, OFLC will issue a final 
    determination on the debarment within 30 calendar days of receiving the 
    rebuttal evidence. If the Administrator, OFLC determines that the party 
    should be debarred, the Administrator, OFLC will inform the party of 
    its right to request a debarment hearing according to the procedures in 
    this section. The party must request a hearing within 30 calendar days 
    after the date of the Administrator, OFLC's final determination, or the 
    Administrator OFLC's determination will be the final agency order and 
    the debarment will take effect at the end of the 30-day period.
        (3) Hearing. The recipient of a Notice of Debarment seeking to 
    challenge the debarment must request a debarment hearing within 30 
    calendar days of the date of a Notice of Debarment or the date of a 
    final determination of the Administrator, OFLC after review of rebuttal 
    evidence submitted under paragraph (g)(2) of this section. To obtain a 
    debarment hearing, the recipient must, within 30 days of the date of 
    the Notice or the final determination, file a written request with the 
    Chief ALJ, United States Department of Labor, 800 K Street NW., Suite 
    400-N, Washington, DC 20001-8002, and simultaneously serve a copy on 
    the Administrator, OFLC. The debarment will take effect 30 calendar 
    days from the date the Notice of Debarment or final determination is 
    issued, unless a request for review is timely filed. Within 10 business 
    days of receipt of the request for a hearing, the Administrator, OFLC 
    will send a certified copy of the ETA case file to the Chief ALJ by 
    means normally assuring next day delivery. The Chief ALJ will 
    immediately assign an ALJ to conduct the hearing. The procedures in 29 
    CFR part 18 apply to such hearings, except that the request for a 
    hearing will not be considered to be a complaint to which an answer is 
    required.
        (4) Decision. After the hearing, the ALJ must affirm, reverse, or 
    modify the Administrator, OFLC's determination. The ALJ will prepare 
    the decision within 60 calendar days after completion of the hearing 
    and closing of the record. The ALJ's decision will be provided to the 
    parties to the debarment hearing by means normally assuring next day 
    delivery. The ALJ's decision is the final agency action, unless either 
    party, within 30 calendar days of the ALJ's decision, seeks review of 
    the decision with the Administrative Review Board (ARB).
        (5) Review by the ARB. (i) Any party wishing review of the decision 
    of an ALJ must, within 30 calendar days of the decision of the ALJ, 
    petition the ARB to review the decision. Copies of the petition must be 
    served on all parties and on the ALJ. The ARB will decide whether to 
    accept the petition within 30 calendar days of receipt. If the ARB 
    declines to accept the petition, or if the ARB does not issue a notice 
    accepting a petition within 30 calendar days after the receipt of a 
    timely filing of the petition, the decision of the ALJ is the final 
    agency action. If a petition for review is accepted, the decision of 
    the ALJ will be stayed unless and until the ARB issues an order 
    affirming the decision. The ARB must serve notice of its decision to 
    accept or not to accept the petition upon the ALJ and upon all parties 
    to the proceeding.
        (ii) Upon receipt of the ARB's notice to accept the petition, the 
    Office of Administrative Law Judges will promptly forward a copy of the 
    complete hearing record to the ARB.
        (iii) Where the ARB has determined to review the decision and 
    order, the ARB will notify each party of the issue(s) raised, the form 
    in which submissions must be made (e.g., briefs or oral argument), and 
    the time within which the presentation must be submitted.
        (6) ARB Decision. The ARB's final decision must be issued within 90 
    calendar days from the notice granting the petition and served upon all 
    parties and the ALJ.
        (h) Concurrent debarment jurisdiction. OFLC and the WHD have 
    concurrent jurisdiction to debar under this section or under 29 CFR 
    503.24. When considering debarment, OFLC and the WHD will coordinate 
    their activities. A specific violation for which debarment is imposed 
    will be cited in a single debarment proceeding. Copies of final 
    debarment decisions will be forwarded to DHS and DOS promptly.
        (i) Debarment from other foreign labor programs. Upon debarment 
    under this subpart or 29 CFR 503.24, the debarred party will be 
    disqualified from filing any labor certification applications or labor 
    condition applications with the Department of Labor by, or on behalf 
    of, the debarred party for the same period of time set forth in the 
    final debarment decision.
    
    
    Sec. Sec.  655.74-655.76  [Reserved]
    
    
    Sec. Sec.  655.80-655.99  [Reserved]
    
    Title 29--Labor
    
    0
    6. Revise part 503 to read as follows:
    
    [[Page 24131]]
    
    PART 503--ENFORCEMENT OF OBLIGATIONS FOR TEMPORARY NONIMMIGRANT 
    NON-AGRICULTURAL WORKERS DESCRIBED IN THE IMMIGRATION AND 
    NATIONALITY ACT
    
    Subpart A--General Provisions
    Sec.
    503.0 Introduction.
    503.1 Scope and purpose.
    503.2 Territory of Guam.
    503.3 Coordination among Governmental agencies.
    503.4 Definition of terms.
    503.5 Temporary need.
    503.6 Waiver of rights prohibited.
    503.7 Investigation authority of Secretary.
    503.8 Accuracy of information, statements, data.
    Subpart B--Enforcement
    503.15 Enforcement.
    503.16 Assurances and obligations of H-2B employers.
    503.17 Documentation retention requirements of H-2B employers.
    503.18 Validity of temporary labor certification.
    503.19 Violations.
    503.20 Sanctions and remedies--general.
    503.21 Concurrent actions within the Department of Labor.
    503.22 Representation of the Secretary.
    503.23 Civil money penalty assessment.
    503.24 Debarment.
    503.25 Failure to cooperate with investigators.
    503.26 Civil money penalties--payment and collection.
    Subpart C--Administrative Proceedings
    503.40 Applicability of procedures and rules.
    
    Procedures Related to Hearing
    
    503.41 Administrator, WHD's determination.
    503.42 Contents of notice of determination.
    503.43 Request for hearing.
    
    Rules of Practice
    
    503.44 General.
    503.45 Service of pleadings.
    503.46 Commencement of proceeding.
    503.47 Caption of proceeding.
    503.48 Conduct of proceeding.
    
    Procedures Before Administrative Law Judge
    
    503.49 Consent findings and order.
    
    Post-Hearing Procedures
    
    503.50 Decision and order of Administrative Law Judge.
    
    Review of Administrative Law Judge's Decision
    
    503.51 Procedures for initiating and undertaking review.
    503.52 Responsibility of the Office of Administrative Law Judges 
    (OALJ).
    503.53 Additional information, if required.
    503.54 Submission of documents to the Administrative Review Board.
    503.55 Final decision of the Administrative Review Board.
    
    Record
    
    503.56 Retention of official record.
    
        Authority:  8 U.S.C. 1101(a)(15)(H)(ii)(b); 8 U.S.C. 1184(c); 8 
    CFR 214.2(h).
    
    Subpart A--General Provisions
    
    
    Sec.  503.0  Introduction.
    
        The regulations in this part cover the enforcement of all statutory 
    and regulatory obligations, including requirements under 8 U.S.C. 
    1184(c), section 214(c) of the INA and 20 CFR part 655, subpart A, 
    applicable to the employment of H-2B workers in nonimmigrant status 
    under the Immigration and Nationality Act (INA), 8 U.S.C. 
    1101(a)(15)(H)(ii)(b), section 101(a)(15)(H)(ii)(b) of the INA, and 
    workers in corresponding employment, including obligations to offer 
    employment to eligible United States (U.S.) workers and to not lay off 
    or displace U.S. workers in a manner prohibited by the regulations in 
    this part or 20 CFR part 655, subpart A.
    
    
    Sec.  503.1  Scope and purpose.
    
        (a) Consultation standard. Section 214(c)(1) of the INA, 8 U.S.C. 
    1184(c)(1), requires the Secretary of Homeland Security to consult with 
    appropriate agencies before authorizing the classification of aliens as 
    H-2B workers. Department of Homeland Security (DHS) regulations at 8 
    CFR 214.2(h)(6)(iii)(D) recognize the Secretary of Labor as the 
    appropriate authority with whom DHS consults regarding the H-2B 
    program, and recognize the Secretary of Labor's authority in carrying 
    out the Secretary of Labor's consultative function to issue regulations 
    regarding the issuance of temporary labor certifications. DHS 
    regulations at 8 CFR 214.2(h)(6)(iv) provide that an employer's 
    petition to employ nonimmigrant workers on H-2B visas for temporary 
    non-agricultural employment in the United States (U.S.), except for 
    Guam, must be accompanied by an approved temporary labor certification 
    from the Secretary of Labor. The temporary labor certification reflects 
    a determination by the Secretary that:
        (1) There are not sufficient U.S. workers who are qualified and who 
    will be available to perform the temporary services or labor for which 
    an employer desires to hire foreign workers; and
        (2) The employment of the foreign worker will not adversely affect 
    the wages and working conditions of U.S. workers similarly employed.
        (b) Role of the Employment and Training Administration (ETA). The 
    issuance and denial of labor certifications for purposes of satisfying 
    the consultation requirement in 8 U.S.C. 1184(c), INA section 214(c), 
    has been delegated by the Secretary to ETA, an agency within the U.S. 
    Department of Labor (DOL), which in turn has delegated that authority 
    to the Office of Foreign Labor Certification (OFLC). In general, 
    matters concerning the obligations of an H-2B employer related to the 
    temporary labor certification process are administered by OFLC, 
    including obligations and assurances made by employers, overseeing 
    employer recruitment, and assuring program integrity. The regulations 
    pertaining to the issuance, denial, and revocation of labor 
    certification for temporary foreign workers by the OFLC are found in 20 
    CFR part 655, subpart A.
        (c) Role of the Wage and Hour Division (WHD). Effective January 18, 
    2009, DHS has delegated to the Secretary under 8 U.S.C. 1184(c)(14)(B), 
    section 214(c)(14)(B) of the INA, certain investigatory and law 
    enforcement functions to carry out the provisions under 8 U.S.C. 
    1184(c), INA section 214(c). The Secretary has delegated these 
    functions to the WHD. In general, matters concerning the rights of H-2B 
    workers and workers in corresponding employment under this part and the 
    employer's obligations are enforced by the WHD, including whether 
    employment was offered to U.S. workers as required under 20 CFR part 
    655, subpart A, or whether U.S. workers were laid off or displaced in 
    violation of program requirements. The WHD has the responsibility to 
    carry out investigations, inspections, and law enforcement functions 
    and in appropriate instances to impose penalties, to debar from future 
    certifications, to recommend revocation of existing certifications, and 
    to seek remedies for violations, including recovery of unpaid wages and 
    reinstatement of improperly laid off or displaced U.S. workers.
        (d) Effect of regulations. The enforcement functions carried out by 
    the WHD under 8 U.S.C. 1184(c), INA section 214(c), 20 CFR part 655, 
    subpart A, and the regulations in this part apply to the employment of 
    any H-2B worker and any worker in corresponding employment as the 
    result of an Application for Temporary Employment Certification filed 
    with the Department of Labor on or after April 29, 2015.
    
    
    Sec.  503.2  Territory of Guam.
    
        This part does not apply to temporary employment in the Territory 
    of Guam. The Department of Labor does not certify to DHS the temporary 
    employment of nonimmigrant foreign
    
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    workers or enforce compliance with the provisions of the H-2B visa 
    program in the Territory of Guam.
    
    
    Sec.  503.3  Coordination among Governmental agencies.
    
        (a) Complaints received by ETA or any State Workforce Agency (SWA) 
    regarding noncompliance with H-2B statutory or regulatory labor 
    standards will be immediately forwarded to the appropriate WHD office 
    for suitable action under the regulations in this part.
        (b) Information received in the course of processing registrations 
    and applications, program integrity measures, or enforcement actions 
    may be shared between OFLC and WHD or, where applicable to employer 
    enforcement under the H-2B program, may be forwarded to other agencies 
    as appropriate, including the Department of State (DOS) and DHS.
        (c) A specific violation for which debarment is sought will be 
    cited in a single debarment proceeding. OFLC and the WHD will 
    coordinate their activities to achieve this result. Copies of final 
    debarment decisions will be forwarded to DHS promptly.
    
    
    Sec.  503.4  Definition of terms.
    
        For purposes of this part:
        Act means the Immigration and Nationality Act or INA, as amended, 8 
    U.S.C. 1101 et seq.
        Administrative Law Judge (ALJ) means a person within the 
    Department's Office of Administrative Law Judges appointed under 5 
    U.S.C. 3105.
        Administrator, Office of Foreign Labor Certification (OFLC) means 
    the primary official of the Office of Foreign Labor Certification, ETA, 
    or the Administrator's designee.
        Administrator, Wage and Hour Division (WHD) means the primary 
    official of the WHD, or the Administrator's designee.
        Agent means:
        (1) A legal entity or person who:
        (i) Is authorized to act on behalf of an employer for temporary 
    nonagricultural labor certification purposes;
        (ii) Is not itself an employer, or a joint employer, as defined in 
    this part with respect to a specific application; and
        (iii) Is not an association or other organization of employers.
        (2) No agent who is under suspension, debarment, expulsion, 
    disbarment, or otherwise restricted from practice before any court, the 
    Department of Labor, the Executive Office for Immigration Review under 
    8 CFR 1003.101, or DHS under 8 CFR 292.3 may represent an employer 
    under this part.
        Agricultural labor or services means those duties and occupations 
    defined in 20 CFR part 655, subpart B.
        Applicant means a U.S. worker who is applying for a job opportunity 
    for which an employer has filed an Application for Temporary Employment 
    Certification (ETA Form 9142B and the appropriate appendices).
        Application for Temporary Employment Certification means the Office 
    of Management and Budget (OMB)-approved ETA Form 9142B and the 
    appropriate appendices, a valid wage determination, as required by 20 
    CFR 655.10, and a subsequently-filed U.S. worker recruitment report, 
    submitted by an employer to secure a temporary labor certification 
    determination from DOL.
        Area of intended employment means the geographic area within normal 
    commuting distance of the place (worksite address) of the job 
    opportunity for which the certification is sought. There is no rigid 
    measure of distance that constitutes a normal commuting distance or 
    normal commuting area, because there may be widely varying factual 
    circumstances among different areas (e.g., average commuting times, 
    barriers to reaching the worksite, or quality of the regional 
    transportation network). If the place of intended employment is within 
    a Metropolitan Statistical Area (MSA), including a multistate MSA, any 
    place within the MSA is deemed to be within normal commuting distance 
    of the place of intended employment. The borders of MSAs are not 
    controlling in the identification of the normal commuting area; a 
    location outside of an MSA may be within normal commuting distance of a 
    location that is inside (e.g., near the border of) the MSA.
        Attorney means any person who is a member in good standing of the 
    bar of the highest court of any State, possession, territory, or 
    commonwealth of the U.S., or the District of Columbia. No attorney who 
    is under suspension, debarment, expulsion, disbarment, or otherwise 
    restricted from practice before any court, the Department of Labor, the 
    Executive Office for Immigration Review under 8 CFR 1003.101, or DHS 
    under 8 CFR 292.3 may represent an employer under this part.
        Certifying Officer (CO) means an OFLC official designated by the 
    Administrator, OFLC to make determinations on applications under the H-
    2B program. The Administrator, OFLC is the National CO. Other COs may 
    also be designated by the Administrator, OFLC to make the 
    determinations required under 20 CFR part 655, subpart A.
        Chief Administrative Law Judge (Chief ALJ) means the chief official 
    of the Department's Office of Administrative Law Judges or the Chief 
    Administrative Law Judge's designee.
        Corresponding employment means:
        (1) The employment of workers who are not H-2B workers by an 
    employer that has a certified H-2B Application for Temporary Employment 
    Certification when those workers are performing either substantially 
    the same work included in the job order or substantially the same work 
    performed by the H-2B workers, except that workers in the following two 
    categories are not included in corresponding employment:
        (i) Incumbent employees continuously employed by the H-2B employer 
    to perform substantially the same work included in the job order or 
    substantially the same work performed by the H-2B workers during the 52 
    weeks prior to the period of employment certified on the Application 
    for Temporary Employment Certification and who have worked or been paid 
    for at least 35 hours in at least 48 of the prior 52 workweeks, and who 
    have worked or been paid for an average of at least 35 hours per week 
    over the prior 52 weeks, as demonstrated on the employer's payroll 
    records, provided that the terms and working conditions of their 
    employment are not substantially reduced during the period of 
    employment covered by the job order. In determining whether this 
    standard was met, the employer may take credit for any hours that were 
    reduced by the employee voluntarily choosing not to work due to 
    personal reasons such as illness or vacation; or
        (ii) Incumbent employees covered by a collective bargaining 
    agreement or an individual employment contract that guarantees both an 
    offer of at least 35 hours of work each workweek and continued 
    employment with the H-2B employer at least through the period of 
    employment covered by the job order, except that the employee may be 
    dismissed for cause.
        (2) To qualify as corresponding employment, the work must be 
    performed during the period of the job order, including any approved 
    extension thereof.
        Date of need means the first date the employer requires services of 
    the H-2B workers as listed on the Application for Temporary Employment 
    Certification.
        Department of Homeland Security (DHS) means the Federal Department 
    having jurisdiction over certain immigration-related functions, acting 
    through its component agencies, including U.S. Citizenship and 
    Immigration Services (USCIS).
        Employee means a person who is engaged to perform work for an
    
    [[Page 24133]]
    
    employer, as defined under the general common law. Some of the factors 
    relevant to the determination of employee status include: The hiring 
    party's right to control the manner and means by which the work is 
    accomplished; the skill required to perform the work; the source of the 
    instrumentalities and tools for accomplishing the work; the location of 
    the work; the hiring party's discretion over when and how long to work; 
    and whether the work is part of the regular business of the hiring 
    party. Other applicable factors may be considered and no one factor is 
    dispositive. The terms employee and worker are used interchangeably in 
    this part.
        Employer means a person (including any individual, partnership, 
    association, corporation, cooperative, firm, joint stock company, 
    trust, or other organization with legal rights and duties) that:
        (1) Has a place of business (physical location) in the U.S. and a 
    means by which it may be contacted for employment;
        (2) Has an employer relationship (such as the ability to hire, pay, 
    fire, supervise or otherwise control the work of employees) with 
    respect to an H-2B worker or a worker in corresponding employment; and
        (3) Possesses, for purposes of filing an Application for Temporary 
    Employment Certification, a valid Federal Employer Identification 
    Number (FEIN).
        Employment and Training Administration (ETA) means the agency 
    within the Department of Labor that includes OFLC and has been 
    delegated authority by the Secretary to fulfill the Secretary's mandate 
    under the DHS regulations for the administration and adjudication of an 
    Application for Temporary Employment Certification and related 
    functions.
        Federal holiday means a legal public holiday as defined at 5 U.S.C. 
    6103.
        Full-time means 35 or more hours of work per week.
        H-2B Petition means the DHS Form I-129 Petition for a Nonimmigrant 
    Worker, with H Supplement, or successor form or supplement, and 
    accompanying documentation required by DHS for employers seeking to 
    employ foreign persons as H-2B nonimmigrant workers.
        H-2B Registration means the OMB-approved ETA Form 9155, submitted 
    by an employer to register its intent to hire H-2B workers and to file 
    an Application for Temporary Employment Certification.
        H-2B worker means any temporary foreign worker who is lawfully 
    present in the U.S. and authorized by DHS to perform nonagricultural 
    labor or services of a temporary or seasonal nature under 8 U.S.C. 
    1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b).
        Job contractor means a person, association, firm, or a corporation 
    that meets the definition of an employer and that contracts services or 
    labor on a temporary basis to one or more employers, which is not an 
    affiliate, branch or subsidiary of the job contractor and where the job 
    contractor will not exercise substantial, direct day-to-day supervision 
    and control in the performance of the services or labor to be performed 
    other than hiring, paying and firing the workers.
        Job offer means the offer made by an employer or potential employer 
    of H-2B workers to both U.S. and H-2B workers describing all the 
    material terms and conditions of employment, including those relating 
    to wages, working conditions, and other benefits.
        Job opportunity means one or more openings for full-time employment 
    with the petitioning employer within a specified area(s) of intended 
    employment for which the petitioning employer is seeking workers.
        Job order means the document containing the material terms and 
    conditions of employment relating to wages, hours, working conditions, 
    worksite and other benefits, including obligations and assurances under 
    29 CFR part 655, subpart A and this subpart that is posted between and 
    among the SWAs on their job clearance systems.
        Joint employment means that where two or more employers each have 
    sufficient definitional indicia of being an employer to be considered 
    the employer of a worker, those employers will be considered to jointly 
    employ that worker. Each employer in a joint employment relationship to 
    a worker is considered a joint employer of that worker.
        Layoff means any involuntary separation of one or more U.S. 
    employees without cause.
        Metropolitan Statistical Area (MSA) means a geographic entity 
    defined by OMB for use by Federal statistical agencies in collecting, 
    tabulating, and publishing Federal statistics. A metro area contains a 
    core urban area of 50,000 or more population, and a micro area contains 
    an urban core of at least 10,000 (but fewer than 50,000) population. 
    Each metro or micro area consists of one or more counties and includes 
    the counties containing the core urban area, as well as any adjacent 
    counties that have a high degree of social and economic integration (as 
    measured by commuting to work) with the urban core.
        National Processing Center (NPC) means the office within OFLC which 
    is charged with the adjudication of an Application for Temporary 
    Employment Certification or other applications.
        Non-agricultural labor and services means any labor or services not 
    considered to be agricultural labor or services as defined in 20 CFR 
    part 655, subpart B. It does not include the provision of services as 
    members of the medical profession by graduates of medical schools.
        Offered wage means the wage offered by an employer in an H-2B job 
    order. The offered wage must equal or exceed the highest of the 
    prevailing wage or Federal, State or local minimum wage.
        Office of Foreign Labor Certification (OFLC) means the 
    organizational component of the ETA that provides national leadership 
    and policy guidance and develops regulations to carry out the 
    Secretary's responsibilities, including determinations related to an 
    employer's request for H-2B Registration, Application for Prevailing 
    Wage Determination, or Application for Temporary Employment 
    Certification.
        Prevailing wage determination (PWD) means the prevailing wage for 
    the position, as described in 20 CFR 655.10, that is the subject of the 
    Application for Temporary Employment Certification.
        Secretary means the Secretary of Labor, the chief official of the 
    U.S. Department of Labor, or the Secretary's designee.
        Secretary of Homeland Security means the chief official of the U.S. 
    Department of Homeland Security (DHS) or the Secretary of Homeland 
    Security's designee.
        State Workforce Agency (SWA) means a State government agency that 
    receives funds under the Wagner-Peyser Act (29 U.S.C. 49 et seq.) to 
    administer the State's public labor exchange activities.
        Strike means a concerted stoppage of work by employees as a result 
    of a labor dispute, or any concerted slowdown or other concerted 
    interruption of operation (including stoppage by reason of the 
    expiration of a collective bargaining agreement).
        Successor in interest means:
        (1) Where an employer has violated 20 CFR part 655, subpart A, or 
    this part, and has ceased doing business or cannot be located for 
    purposes of enforcement, a successor in interest to that employer may 
    be held liable for the duties and obligations of the violating employer 
    in certain circumstances. The following factors, as used under Title 
    VII of the Civil Rights Act and the Vietnam Era Veterans' Readjustment 
    Assistance Act,
    
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    may be considered in determining whether an employer is a successor in 
    interest; no one factor is dispositive, but all of the circumstances 
    will be considered as a whole:
        (i) Substantial continuity of the same business operations;
        (ii) Use of the same facilities;
        (iii) Continuity of the work force;
        (iv) Similarity of jobs and working conditions;
        (v) Similarity of supervisory personnel;
        (vi) Whether the former management or owner retains a direct or 
    indirect interest in the new enterprise;
        (vii) Similarity in machinery, equipment, and production methods;
        (viii) Similarity of products and services; and
        (ix) The ability of the predecessor to provide relief.
        (2) For purposes of debarment only, the primary consideration will 
    be the personal involvement of the firm's ownership, management, 
    supervisors, and others associated with the firm in the violation(s) at 
    issue.
        United States (U.S.) means the continental United States, Alaska, 
    Hawaii, the Commonwealth of Puerto Rico, Guam, the U.S. Virgin Islands, 
    and the Commonwealth of the Northern Mariana Islands (CNMI).
        U.S. Citizenship and Immigration Services (USCIS) means the Federal 
    agency within DHS that makes the determination under the INA whether to 
    grant petitions filed by employers seeking H-2B workers to perform 
    temporary non-agricultural work in the U.S.
        United States worker (U.S. worker) means a worker who is:
        (1) A citizen or national of the U.S.;
        (2) An alien who is lawfully admitted for permanent residence in 
    the U.S., is admitted as a refugee under 8 U.S.C. 1157, section 207 of 
    the INA, is granted asylum under 8 U.S.C. 1158, section 208 of the INA, 
    or is an alien otherwise authorized under the immigration laws to be 
    employed in the U.S.; or
        (3) An individual who is not an unauthorized alien (as defined in 8 
    U.S.C. 1324a(h)(3), section 274a(h)(3) of the INA) with respect to the 
    employment in which the worker is engaging.
        Wage and Hour Division (WHD) means the agency within the Department 
    of Labor with investigatory and law enforcement authority, as delegated 
    from DHS, to carry out the provisions under 8 U.S.C. 1184(c), section 
    214(c) of the INA.
        Wages mean all forms of cash remuneration to a worker by an 
    employer in payment for personal services.
    
    
    Sec.  503.5  Temporary need.
    
        (a) An employer seeking certification under 20 CFR part 655, 
    subpart A, must establish that its need for non-agricultural services 
    or labor is temporary, regardless of whether the underlying job is 
    permanent or temporary.
        (b) The employer's need is considered temporary if justified to the 
    CO as one of the following: A one-time occurrence; a seasonal need; a 
    peakload need; or an intermittent need, as defined by DHS regulations.
    
    
    Sec.  503.6  Waiver of rights prohibited.
    
        A person may not seek to have an H-2B worker, a worker in 
    corresponding employment, or any other person, including but not 
    limited to a U.S. worker improperly rejected for employment or 
    improperly laid off or displaced, waive or modify any rights conferred 
    under 8 U.S.C. 1184(c), INA section 214(c), 20 CFR part 655, subpart A, 
    or the regulations in this part. Any agreement by an employee 
    purporting to waive or modify any rights given to said person under 
    these provisions will be void as contrary to public policy except as 
    follows:
        (a) Waivers or modifications of rights or obligations hereunder in 
    favor of the Secretary will be valid for purposes of enforcement; and
        (b) Agreements in settlement of private litigation are permitted.
    
    
    Sec.  503.7  Investigation authority of Secretary.
    
        (a) Authority of the Administrator, WHD. The Secretary of Homeland 
    Security has delegated to the Secretary, under 8 U.S.C. 1184(c)(14)(B), 
    INA section 214(c)(14)(B), authority to perform investigative and 
    enforcement functions. Within the Department of Labor, the 
    Administrator, WHD will perform all such functions.
        (b) Conduct of investigations. The Secretary, through the WHD, may 
    investigate to determine compliance with obligations under 8 U.S.C. 
    1184(c), INA section 214(c), 20 CFR part 655, subpart A, or the 
    regulations in this part, either under a complaint or otherwise, as may 
    be appropriate. In connection with such an investigation, WHD may enter 
    and inspect any premises, land, property, worksite, vehicles, 
    structure, facility, place and records (and make transcriptions, 
    photographs, scans, videos, photocopies, or use any other means to 
    record the content of the records or preserve images of places or 
    objects), question any person, or gather any information, in whatever 
    form, as may be appropriate.
        (c) Confidential investigation. The WHD will conduct investigations 
    in a manner that protects the confidentiality of any complainant or 
    other person who provides information to the Secretary in good faith.
        (d) Report of violations. Any person may report a violation of the 
    obligations imposed by 8 U.S.C. 1184(c), INA section 214(c), 20 CFR 
    part 655, subpart A, or the regulations in this part to the Secretary 
    by advising any local office of the SWA, ETA, WHD or any other 
    authorized representative of the Secretary. The office or person 
    receiving such a report will refer it to the appropriate office of WHD 
    for the geographic area in which the reported violation is alleged to 
    have occurred.
    
    
    Sec.  503.8  Accuracy of information, statements, data.
    
        Information, statements, and data submitted in compliance with 8 
    U.S.C. 1184(c), INA section 214(c), or the regulations in this part are 
    subject to 18 U.S.C. 1001, which provides, with regard to statements or 
    entries generally, that whoever, in any matter within the jurisdiction 
    of any department or agency of the U.S., knowingly and willfully 
    falsifies, conceals, or covers up a material fact by any trick, scheme, 
    or device, or makes any false, fictitious, or fraudulent statements or 
    representations, or makes or uses any false writing or document knowing 
    the same to contain any false, fictitious, or fraudulent statement or 
    entry, will be fined not more than $250,000 or imprisoned not more than 
    5 years, or both.
    
    Subpart B--Enforcement
    
    
    Sec.  503.15  Enforcement.
    
        The investigation, inspection, and law enforcement functions that 
    carry out the provisions of 8 U.S.C. 1184(c), INA section 214(c), 20 
    CFR part 655, subpart A, or the regulations in this part pertain to the 
    employment of any H-2B worker, any worker in corresponding employment, 
    or any U.S. worker improperly rejected for employment or improperly 
    laid off or displaced.
    
    
    Sec.  503.16  Assurances and obligations of H-2B employers.
    
        An employer employing H-2B workers and/or workers in corresponding 
    employment under an Application for Temporary Employment Certification 
    has agreed as part of the Application for Temporary Employment 
    Certification that it will abide by the following conditions with 
    respect to its H-2B workers and any workers in corresponding 
    employment:
    
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        (a) Rate of pay. (1) The offered wage in the job order equals or 
    exceeds the highest of the prevailing wage or Federal minimum wage, 
    State minimum wage, or local minimum wage. The employer must pay at 
    least the offered wage, free and clear, during the entire period of the 
    Application for Temporary Employment Certification granted by OFLC.
        (2) The offered wage is not based on commissions, bonuses, or other 
    incentives, including paying on a piece-rate basis, unless the employer 
    guarantees a wage earned every workweek that equals or exceeds the 
    offered wage.
        (3) If the employer requires one or more minimum productivity 
    standards of workers as a condition of job retention, the standards 
    must be specified in the job order and the employer must demonstrate 
    that they are normal and usual for non-H-2B employers for the same 
    occupation in the area of intended employment.
        (4) An employer that pays on a piece-rate basis must demonstrate 
    that the piece rate is no less than the normal rate paid by non-H-2B 
    employers to workers performing the same activity in the area of 
    intended employment. The average hourly piece rate earnings must result 
    in an amount at least equal to the offered wage. If the worker is paid 
    on a piece rate basis and at the end of the workweek the piece rate 
    does not result in average hourly piece rate earnings during the 
    workweek at least equal to the amount the worker would have earned had 
    the worker been paid at the offered hourly wage, then the employer must 
    supplement the worker's pay at that time so that the worker's earnings 
    are at least as much as the worker would have earned during the 
    workweek if the worker had instead been paid at the offered hourly wage 
    for each hour worked.
        (b) Wages free and clear. The payment requirements for wages in 
    this section will be satisfied by the timely payment of such wages to 
    the worker either in cash or negotiable instrument payable at par. The 
    payment must be made finally and unconditionally and ``free and 
    clear.'' The principles applied in determining whether deductions are 
    reasonable and payments are received free and clear and the 
    permissibility of deductions for payments to third persons are 
    explained in more detail in 29 CFR part 531.
        (c) Deductions. The employer must make all deductions from the 
    worker's paycheck required by law. The job order must specify all 
    deductions not required by law which the employer will make from the 
    worker's pay; any such deductions not disclosed in the job order are 
    prohibited. The wage payment requirements of paragraph (b) of this 
    section are not met where unauthorized deductions, rebates, or refunds 
    reduce the wage payment made to the worker below the minimum amounts 
    required by the offered wage or where the worker fails to receive such 
    amounts free and clear because the worker ``kicks back'' directly or 
    indirectly to the employer or to another person for the employer's 
    benefit the whole or part of the wages delivered to the worker. 
    Authorized deductions are limited to: those required by law, such as 
    taxes payable by workers that are required to be withheld by the 
    employer and amounts due workers which the employer is required by 
    court order to pay to another; deductions for the reasonable cost or 
    fair value of board, lodging, and facilities furnished; and deductions 
    of amounts which are authorized to be paid to third persons for the 
    worker's account and benefit through his or her voluntary assignment or 
    order or which are authorized by a collective bargaining agreement with 
    bona fide representatives of workers which covers the employer. 
    Deductions for amounts paid to third persons for the worker's account 
    and benefit which are not so authorized or are contrary to law or from 
    which the employer, agent or recruiter, including any agents or 
    employees of these entities, or any affiliated person derives any 
    payment, rebate, commission, profit, or benefit directly or indirectly, 
    may not be made if they reduce the actual wage paid to the worker below 
    the offered wage indicated on the Application for Temporary Employment 
    Certification.
        (d) Job opportunity is full-time. The job opportunity is a full-
    time temporary position, consistent with Sec.  503.4, and the employer 
    must use a single workweek as its standard for computing wages due. An 
    employee's workweek must be a fixed and regularly recurring period of 
    168 hours--seven consecutive 24-hour periods. It need not coincide with 
    the calendar week but may begin on any day and at any hour of the day.
        (e) Job qualifications and requirements. Each job qualification and 
    requirement must be listed in the job order and must be bona fide and 
    consistent with the normal and accepted qualifications and requirements 
    imposed by non-H-2B employers in the same occupation and area of 
    intended employment. The employer's job qualifications and requirements 
    imposed on U.S. workers must not be less favorable than the 
    qualifications and requirements that the employer is imposing or will 
    impose on H-2B workers. A qualification means a characteristic that is 
    necessary to the individual's ability to perform the job in question. A 
    requirement means a term or condition of employment which a worker is 
    required to accept in order to obtain the job opportunity. The CO may 
    require the employer to submit documentation to substantiate the 
    appropriateness of any job qualification and/or requirement specified 
    in the job order.
        (f) Three-fourths guarantee. (1) The employer must guarantee to 
    offer the worker employment for a total number of work hours equal to 
    at least three-fourths of the workdays in each 12-week period (each 6-
    week period if the period of employment covered by the job order is 
    less than 120 days) beginning with the first workday after the arrival 
    of the worker at the place of employment or the advertised first date 
    of need, whichever is later, and ending on the expiration date 
    specified in the job order or in its extensions, if any. See the 
    exception in paragraph (y) of this section.
        (2) For purposes of this paragraph (f) a workday means the number 
    of hours in a workday as stated in the job order. The employer must 
    offer a total number of hours of work to ensure the provision of 
    sufficient work to reach the three-fourths guarantee in each 12-week 
    period (each 6-week period if the period of employment covered by the 
    job order is less than 120 days) during the work period specified in 
    the job order, or during any modified job order period to which the 
    worker and employer have mutually agreed and that has been approved by 
    the CO.
        (3) In the event the worker begins working later than the specified 
    beginning date the guarantee period begins with the first workday after 
    the arrival of the worker at the place of employment, and continues 
    until the last day during which the job order and all extensions 
    thereof are in effect.
        (4) The 12-week periods (6-week periods if the period of employment 
    covered by the job order is less than 120 days) to which the guarantee 
    applies are based upon the workweek used by the employer for pay 
    purposes. The first 12-week period (or 6-week period, as appropriate) 
    also includes any partial workweek, if the first workday after the 
    worker's arrival at the place of employment is not the beginning of the 
    employer's workweek, with the guaranteed number of hours increased on a 
    pro rata basis (thus, the first period may include up to 12 weeks and 6 
    days (or 6 weeks and 6 days, as appropriate)). The final 12-week period 
    (or 6-week period, as appropriate) includes any
    
    [[Page 24136]]
    
    time remaining after the last full 12-week period (or 6-week period) 
    ends, and thus may be as short as 1 day, with the guaranteed number of 
    hours decreased on a pro rata basis.
        (5) Therefore, if, for example, a job order is for a 32-week period 
    (a period greater than 120 days), during which the normal workdays and 
    work hours for the workweek are specified as 5 days a week, 7 hours per 
    day, the worker would have to be guaranteed employment for at least 315 
    hours in the first 12-week period (12 weeks x 35 hours/week = 420 hours 
    x 75 percent = 315), at least 315 hours in the second 12-week period, 
    and at least 210 hours (8 weeks x 35 hours/week = 280 hours x 75 
    percent = 210) in the final partial period. If the job order is for a 
    16-week period (less than 120 days), during which the normal workdays 
    and work hours for the workweek are specified as 5 days a week, 7 hours 
    per day, the worker would have to be guaranteed employment for at least 
    157.5 hours (6 weeks x 35 hours/week = 210 hours x 75 percent = 157.5) 
    in the first 6-week period, at least 157.5 hours in the second 6-week 
    period, and at least 105 hours (4 weeks x 35 hours/week = 140 hours x 
    75 percent = 105) in the final partial period.
        (6) If the worker is paid on a piece rate basis, the employer must 
    use the worker's average hourly piece rate earnings or the offered 
    wage, whichever is higher, to calculate the amount due under the 
    guarantee.
        (7) A worker may be offered more than the specified hours of work 
    on a single workday. For purposes of meeting the guarantee, however, 
    the worker will not be required to work for more than the number of 
    hours specified in the job order for a workday. The employer, however, 
    may count all hours actually worked in calculating whether the 
    guarantee has been met. If during any 12-week period (6-week period if 
    the period of employment covered by the job order is less than 120 
    days) during the period of the job order the employer affords the U.S. 
    or H-2B worker less employment than that required under paragraph 
    (f)(1) of this section, the employer must pay such worker the amount 
    the worker would have earned had the worker, in fact, worked for the 
    guaranteed number of days. An employer has not met the work guarantee 
    if the employer has merely offered work on three-fourths of the 
    workdays in an 12-week period (or 6-week period, as appropriate) if 
    each workday did not consist of a full number of hours of work time as 
    specified in the job order.
        (8) Any hours the worker fails to work, up to a maximum of the 
    number of hours specified in the job order for a workday, when the 
    worker has been offered an opportunity to work in accordance with 
    paragraph (f)(1) of this section, and all hours of work actually 
    performed (including voluntary work over 8 hours in a workday), may be 
    counted by the employer in calculating whether each 12-week period (or 
    6-week period, as appropriate) of guaranteed employment has been met. 
    An employer seeking to calculate whether the guaranteed number of hours 
    has been met must maintain the payroll records in accordance with this 
    part.
        (g) Impossibility of fulfillment. If, before the expiration date 
    specified in the job order, the services of the worker are no longer 
    required for reasons beyond the control of the employer due to fire, 
    weather, or other Act of God, or similar unforeseeable man-made 
    catastrophic event (such as an oil spill or controlled flooding) that 
    is wholly outside the employer's control that makes the fulfillment of 
    the job order impossible, the employer may terminate the job order with 
    the approval of the CO. In the event of such termination of a job 
    order, the employer must fulfill a three-fourths guarantee, as 
    described in paragraph (f) of this section, for the time that has 
    elapsed from the start date listed in the job order or the first 
    workday after the arrival of the worker at the place of employment, 
    whichever is later, to the time of its termination. The employer must 
    make efforts to transfer the H-2B worker or worker in corresponding 
    employment to other comparable employment acceptable to the worker and 
    consistent with the INA, as applicable. If a transfer is not effected, 
    the employer must return the worker, at the employer's expense, to the 
    place from which the worker (disregarding intervening employment) came 
    to work for the employer, or transport the worker to the worker's next 
    certified H-2B employer, whichever the worker prefers.
        (h) Frequency of pay. The employer must state in the job order the 
    frequency with which the worker will be paid, which must be at least 
    every 2 weeks or according to the prevailing practice in the area of 
    intended employment, whichever is more frequent. Employers must pay 
    wages when due.
        (i) Earnings statements. (1) The employer must keep accurate and 
    adequate records with respect to the workers' earnings, including but 
    not limited to: records showing the nature, amount and location(s) of 
    the work performed; the number of hours of work offered each day by the 
    employer (broken out by hours offered both in accordance with and over 
    and above the three-fourths guarantee in paragraph (f) of this 
    section); the hours actually worked each day by the worker; if the 
    number of hours worked by the worker is less than the number of hours 
    offered, the reason(s) the worker did not work; the time the worker 
    began and ended each workday; the rate of pay (both piece rate and 
    hourly, if applicable); the worker's earnings per pay period; the 
    worker's home address; and the amount of and reasons for any and all 
    deductions taken from or additions made to the worker's wages.
        (2) The employer must furnish to the worker on or before each 
    payday in one or more written statements the following information:
        (i) The worker's total earnings for each workweek in the pay 
    period;
        (ii) The worker's hourly rate and/or piece rate of pay;
        (iii) For each workweek in the pay period the hours of employment 
    offered to the worker (showing offers in accordance with the three-
    fourths guarantee as determined in paragraph (f) of this section, 
    separate from any hours offered over and above the guarantee);
        (iv) For each workweek in the pay period the hours actually worked 
    by the worker;
        (v) An itemization of all deductions made from or additions made to 
    the worker's wages;
        (vi) If piece rates are used, the units produced daily;
        (vii) The beginning and ending dates of the pay period; and
        (viii) The employer's name, address and FEIN.
        (j) Transportation and visa fees--(1)(i) Transportation to the 
    place of employment. The employer must provide or reimburse the worker 
    for transportation and subsistence from the place from which the worker 
    has come to work for the employer, whether in the U.S. or abroad, to 
    the place of employment if the worker completes 50 percent of the 
    period of employment covered by the job order (not counting any 
    extensions). The employer may arrange and pay for the transportation 
    and subsistence directly, advance at a minimum the most economical and 
    reasonable common carrier cost of the transportation and subsistence to 
    the worker before the worker's departure, or pay the worker for the 
    reasonable costs incurred by the worker. When it is the prevailing 
    practice of non-H-2B employers in the occupation in the area to do so 
    or when the employer extends such benefits to similarly situated H-2B 
    workers, the employer must advance the required transportation and 
    subsistence
    
    [[Page 24137]]
    
    costs (or otherwise provide them) to workers in corresponding 
    employment who are traveling to the employer's worksite. The amount of 
    the transportation payment must be no less (and is not required to be 
    more) than the most economical and reasonable common carrier 
    transportation charges for the distances involved. The amount of the 
    daily subsistence must be at least the amount permitted in 20 CFR 
    655.173. Where the employer will reimburse the reasonable costs 
    incurred by the worker, it must keep accurate and adequate records of: 
    the costs of transportation and subsistence incurred by the worker; the 
    amount reimbursed; and the date(s) of reimbursement. Note that the Fair 
    Labor Standards Act (FLSA) applies independently of the H-2B 
    requirements and imposes obligations on employers regarding payment of 
    wages.
        (ii) Transportation from the place of employment. If the worker 
    completes the period of employment covered by the job order (not 
    counting any extensions), or if the worker is dismissed from employment 
    for any reason by the employer before the end of the period, and the 
    worker has no immediate subsequent H-2B employment, the employer must 
    provide or pay at the time of departure for the worker's cost of return 
    transportation and daily subsistence from the place of employment to 
    the place from which the worker, disregarding intervening employment, 
    departed to work for the employer. If the worker has contracted with a 
    subsequent employer that has not agreed in the job order to provide or 
    pay for the worker's transportation from the employer's worksite to 
    such subsequent employer's worksite, the employer must provide or pay 
    for that transportation and subsistence. If the worker has contracted 
    with a subsequent employer that has agreed in the job order to provide 
    or pay for the worker's transportation from the employer's worksite to 
    such subsequent employer's worksite, the subsequent employer must 
    provide or pay for such expenses.
        (iii) Employer-provided transportation. All employer-provided 
    transportation must comply with all applicable Federal, State, and 
    local laws and regulations and must provide, at a minimum, the same 
    vehicle safety standards, driver licensure requirements, and vehicle 
    insurance as required under 49 CFR parts 390, 393, and 396.
        (iv) Disclosure. All transportation and subsistence costs that the 
    employer will pay must be disclosed in the job order.
        (2) The employer must pay or reimburse the worker in the first 
    workweek for all visa, visa processing, border crossing, and other 
    related fees (including those mandated by the government) incurred by 
    the H-2B worker, but not for passport expenses or other charges 
    primarily for the benefit of the worker.
        (k) Employer-provided items. The employer must provide to the 
    worker, without charge or deposit charge, all tools, supplies, and 
    equipment required to perform the duties assigned.
        (l) Disclosure of job order. The employer must provide to an H-2B 
    worker outside of the U.S. no later than the time at which the worker 
    applies for the visa, or to a worker in corresponding employment no 
    later than on the day work commences, a copy of the job order including 
    any subsequent approved modifications. For an H-2B worker changing 
    employment from an H-2B employer to a subsequent H-2B employer, the 
    copy must be provided no later than the time an offer of employment is 
    made by the subsequent H-2B employer. The disclosure of all documents 
    required by this paragraph (l) must be provided in a language 
    understood by the worker, as necessary or reasonable.
        (m) Notice of worker rights. The employer must post and maintain in 
    a conspicuous location at the place of employment a poster provided by 
    the Department of Labor that sets out the rights and protections for H-
    2B workers and workers in corresponding employment. The employer must 
    post the poster in English. To the extent necessary, the employer must 
    request and post additional posters, as made available by the 
    Department of Labor, in any language common to a significant portion of 
    the workers if they are not fluent in English.
        (n) No unfair treatment. The employer has not and will not 
    intimidate, threaten, restrain, coerce, blacklist, discharge or in any 
    manner discriminate against, and has not and will not cause any person 
    to intimidate, threaten, restrain, coerce, blacklist, discharge, or in 
    any manner discriminate against, any person who has:
        (1) Filed a complaint under or related to 8 U.S.C. 1184(c), section 
    214(c) of the INA, 20 CFR part 655, subpart A, or this part or any 
    other regulation promulgated thereunder;
        (2) Instituted or caused to be instituted any proceeding under or 
    related to 8 U.S.C. 1184(c), section 214(c) of the INA, 20 CFR part 
    655, subpart A, or this part or any other regulation promulgated 
    thereunder;
        (3) Testified or is about to testify in any proceeding under or 
    related to 8 U.S.C. 1184(c), section 214(c) of the INA, 20 CFR part 
    655, subpart A, or this part or any other regulation promulgated 
    thereunder;
        (4) Consulted with a workers' center, community organization, labor 
    union, legal assistance program, or an attorney on matters related to 8 
    U.S.C. 1184(c), section 214(c) of the INA, 20 CFR part 655, subpart A, 
    or this part or any other regulation promulgated thereunder; or
        (5) Exercised or asserted on behalf of himself or herself or others 
    any right or protection afforded by 8 U.S.C. 1184(c), section 214(c) of 
    the INA, 20 CFR part 655, subpart A, or this part or any other 
    regulation promulgated thereunder.
        (o) Comply with the prohibitions against employees paying fees. The 
    employer and its attorney, agents, or employees have not sought or 
    received payment of any kind from the worker for any activity related 
    to obtaining H-2B labor certification or employment, including payment 
    of the employer's attorney or agent fees, application and H-2B Petition 
    fees, recruitment costs, or any fees attributed to obtaining the 
    approved Application for Temporary Employment Certification. For 
    purposes of this paragraph (o), payment includes, but is not limited 
    to, monetary payments, wage concessions (including deductions from 
    wages, salary, or benefits), kickbacks, bribes, tributes, in-kind 
    payments, and free labor. All wages must be paid free and clear. This 
    provision does not prohibit employers or their agents from receiving 
    reimbursement for costs that are the responsibility and primarily for 
    the benefit of the worker, such as government-required passport fees.
        (p) Contracts with third parties to comply with prohibitions. The 
    employer must contractually prohibit in writing any agent or recruiter 
    (or any agent or employee of such agent or recruiter) whom the employer 
    engages, either directly or indirectly, in recruitment of H-2B workers 
    to seek or receive payments or other compensation from prospective 
    workers. The contract must include the following statement: ``Under 
    this agreement, [name of agent, recruiter] and any agent of or employee 
    of [name of agent or recruiter] are prohibited from seeking or 
    receiving payments from any prospective employee of [employer name] at 
    any time, including before or after the worker obtains employment. 
    Payments include but are not limited to, any direct or indirect fees 
    paid by such employees for recruitment, job placement, processing, 
    maintenance, attorneys'
    
    [[Page 24138]]
    
    fees, agent fees, application fees, or petition fees.''
        (q) Prohibition against preferential treatment of foreign workers. 
    The employer's job offer must offer to U.S. workers no less than the 
    same benefits, wages, and working conditions that the employer is 
    offering, intends to offer, or will provide to H-2B workers. Job offers 
    may not impose on U.S. workers any restrictions or obligations that 
    will not be imposed on the employer's H-2B workers. This does not 
    relieve the employer from providing to H-2B workers at least the 
    minimum benefits, wages, and working conditions which must be offered 
    to U.S. workers consistent with this section.
        (r) Non-discriminatory hiring practices. The job opportunity is, 
    and through the period set forth in paragraph (t) of this section must 
    continue to be, open to any qualified U.S. worker regardless of race, 
    color, national origin, age, sex, religion, disability, or citizenship. 
    Rejections of any U.S. workers who applied or apply for the job must 
    only be for lawful, job-related reasons, and those not rejected on this 
    basis have been or will be hired. In addition, the employer has and 
    will continue to retain records of all hired workers and rejected 
    applicants as required by Sec.  503.17.
        (s) Recruitment requirements. The employer must conduct all 
    required recruitment activities, including any additional employer-
    conducted recruitment activities as directed by the CO, and as 
    specified in 20 CFR 655.40 through 655.46.
        (t) Continuing requirement to hire U.S. workers. The employer has 
    and will continue to cooperate with the SWA by accepting referrals of 
    all qualified U.S. workers who apply (or on whose behalf a job 
    application is made) for the job opportunity, and must provide 
    employment to any qualified U.S. worker who applies to the employer for 
    the job opportunity, until 21 days before the date of need.
        (u) No strike or lockout. There is no strike or lockout at any of 
    the employer's worksites within the area of intended employment for 
    which the employer is requesting H-2B certification at the time the 
    Application for Temporary Employment Certification is filed.
        (v) No recent or future layoffs. The employer has not laid off and 
    will not lay off any similarly employed U.S. worker in the occupation 
    that is the subject of the Application for Temporary Employment 
    Certification in the area of intended employment within the period 
    beginning 120 calendar days before the date of need through the end of 
    the period of certification. A layoff for lawful, job-related reasons 
    such as lack of work or the end of a season is permissible if all H-2B 
    workers are laid off before any U.S. worker in corresponding 
    employment.
        (w) Contact with former U.S. employees. The employer will contact 
    (by mail or other effective means) its former U.S. workers, including 
    those who have been laid off within 120 calendar days before the date 
    of need (except those who were dismissed for cause or who abandoned the 
    worksite), employed by the employer in the occupation at the place of 
    employment during the previous year, disclose the terms of the job 
    order, and solicit their return to the job.
        (x) Area of intended employment and job opportunity. The employer 
    must not place any H-2B workers employed under the approved Application 
    for Temporary Employment Certification outside the area of intended 
    employment or in a job opportunity not listed on the approved 
    Application for Temporary Employment Certification unless the employer 
    has obtained a new approved Application for Temporary Employment 
    Certification.
        (y) Abandonment/termination of employment. Upon the separation from 
    employment of worker(s) employed under the Application for Temporary 
    Employment Certification or workers in corresponding employment, if 
    such separation occurs before the end date of the employment specified 
    in the Application for Temporary Employment Certification, the employer 
    must notify OFLC in writing of the separation from employment not later 
    than 2 work days after such separation is discovered by the employer. 
    In addition, the employer must notify DHS in writing (or any other 
    method specified by the Department of Labor or DHS in the Federal 
    Register or the Code of Federal Regulations) of such separation of an 
    H-2B worker. An abandonment or abscondment is deemed to begin after a 
    worker fails to report for work at the regularly scheduled time for 5 
    consecutive working days without the consent of the employer. If the 
    separation is due to the voluntary abandonment of employment by the H-
    2B worker or worker in corresponding employment, and the employer 
    provides appropriate notification specified under this paragraph (y), 
    the employer will not be responsible for providing or paying for the 
    subsequent transportation and subsistence expenses of that worker under 
    this section, and that worker is not entitled to the three-fourths 
    guarantee described in paragraph (f) of this section. The employer's 
    obligation to guarantee three-fourths of the work described in 
    paragraph (f) ends with the last full 12-week period (or 6-week period, 
    as appropriate) preceding the worker's voluntary abandonment or 
    termination for cause.
        (z) Compliance with applicable laws. During the period of 
    employment specified on the Application for Temporary Employment 
    Certification, the employer must comply with all applicable Federal, 
    State and local employment-related laws and regulations, including 
    health and safety laws. This includes compliance with 18 U.S.C. 
    1592(a), with respect to prohibitions against employers, the employer's 
    agents or their attorneys knowingly holding, destroying or confiscating 
    workers' passports, visas, or other immigration documents.
        (aa) Disclosure of foreign worker recruitment. The employer, and 
    its attorney or agent, as applicable, must comply with 20 CFR 655.9 by 
    providing a copy of all agreements with any agent or recruiter whom it 
    engages or plans to engage in the recruitment of H-2B workers, and the 
    identity and location of the persons or entities hired by or working 
    for the agent or recruiter, and any of the agents or employees of those 
    persons and entities, to recruit foreign workers. Pursuant to 20 CFR 
    655.15(a), the agreements and information must be filed with the 
    Application for Temporary Employment Certification.
        (bb) Cooperation with investigators. The employer must cooperate 
    with any employee of the Secretary who is exercising or attempting to 
    exercise the Department's authority pursuant to 8 U.S.C. 
    1184(c)(14)(B), section 214(c)(14)(B) of the INA.
    
    
    Sec.  503.17  Document retention requirements of H-2B employers.
    
        (a) Entities required to retain documents. All employers filing an 
    Application for Temporary Employment Certification requesting H-2B 
    workers are required to retain the documents and records proving 
    compliance with 20 CFR part 655, subpart A and this part, including but 
    not limited to those specified in paragraph (c) of this section.
        (b) Period of required retention. The employer must retain records 
    and documents for 3 years from the date of certification of the 
    Application for Temporary Employment Certification or from the date of 
    adjudication if the Application for Temporary Employment Certification 
    is denied or 3 years from the day the Department of Labor receives the 
    letter of withdrawal provided in accordance with 20 CFR 655.62.
    
    [[Page 24139]]
    
        (c) Documents and records to be retained by all employer 
    applicants. All employers filing an H-2B Registration and an 
    Application for Temporary Employment Certification must retain the 
    following documents and records and must provide the documents and 
    records in the event of an audit or investigation:
        (1) Documents and records not previously submitted during the 
    registration process that substantiate temporary need;
        (2) Proof of recruitment efforts, as applicable, including:
        (i) Job order placement as specified in 20 CFR 655.16;
        (ii) Advertising as specified in 20 CFR 655.41 and 655.42;
        (iii) Contact with former U.S. workers as specified in 20 CFR 
    655.43;
        (iv) Contact with bargaining representative(s), copy of the posting 
    of the job opportunity, and contact with community-based organizations, 
    if applicable, as specified in 20 CFR 655.45(a), (b) and (c); and
        (v) Additional employer-conducted recruitment efforts as specified 
    in 20 CFR 655.46;
        (3) Substantiation of the information submitted in the recruitment 
    report prepared in accordance with 20 CFR 655.48, such as evidence of 
    nonapplicability of contact with former workers as specified in 20 CFR 
    655.43;
        (4) The final recruitment report and any supporting resumes and 
    contact information as specified in 20 CFR 655.48;
        (5) Records of each worker's earnings, hours offered and worked, 
    and other information as specified in Sec.  503.16(i);
        (6) If appropriate, records of reimbursement of transportation and 
    subsistence costs incurred by the workers, as specified in Sec.  
    503.16(j).
        (7) Evidence of contact with U.S. workers who applied for the job 
    opportunity in the Application for Temporary Employment Certification, 
    including documents demonstrating that any rejections of U.S. workers 
    were for lawful, job-related reasons, as specified in Sec.  503.16(r);
        (8) Evidence of contact with any former U.S. worker in the 
    occupation and the area of intended employment in the Application for 
    Temporary Employment Certification, including documents demonstrating 
    that the U.S. worker had been offered the job opportunity in the 
    Application for Temporary Employment Certification, as specified in 
    Sec.  503.16(w), and that the U.S. worker either refused the job 
    opportunity or was rejected only for lawful, job-related reasons, as 
    specified in Sec.  503.16(r);
        (9) The written contracts with agents or recruiters, as specified 
    in 20 CFR 655.8 and 655.9, and the list of the identities and locations 
    of persons hired by or working for the agent or recruiter and these 
    entities' agents or employees, as specified in 20 CFR 655.9;
        (10) Written notice provided to and informing OFLC that an H-2B 
    worker or worker in corresponding employment has separated from 
    employment before the end date of employment specified in the 
    Application for Temporary Employment Certification, as specified in 
    Sec.  503.16(y);
        (11) The H-2B Registration, job order, and a copy of the 
    Application for Temporary Employment Certification and the original 
    signed Appendix B of the Application.
        (12) The approved H-2B Petition, including all accompanying 
    documents; and
        (13) Any collective bargaining agreement(s), individual employment 
    contract(s), or payroll records from the previous year necessary to 
    substantiate any claim that certain incumbent workers are not included 
    in corresponding employment, as specified in Sec.  503.4.
        (d) Availability of documents for enforcement purposes. An employer 
    must make available to the Administrator, WHD within 72 hours following 
    a request by the WHD the documents and records required under 20 CFR 
    part 655, subpart A and this section so that the Administrator, WHD may 
    copy, transcribe, or inspect them.
    
    
    Sec.  503.18  Validity of temporary labor certification.
    
        (a) Validity period. A temporary labor certification is valid only 
    for the period of time between the beginning and ending dates of 
    employment, as approved on the Application for Temporary Employment 
    Certification. The certification expires on the last day of authorized 
    employment.
        (b) Scope of validity. A temporary labor certification is valid 
    only for the number of H-2B positions, the area of intended employment, 
    the job classification and specific services or labor to be performed, 
    and the employer specified on the approved Application for Temporary 
    Employment Certification. The temporary labor certification may not be 
    transferred from one employer to another unless the employer to which 
    it is transferred is a successor in interest to the employer to which 
    it was issued.
    
    
    Sec.  503.19  Violations.
    
        (a) Types of violations. Pursuant to the statutory provisions 
    governing enforcement of the H-2B program, 8 U.S.C. 1184(c)(14), a 
    violation exists under this part where the Administrator, WHD 
    determines that there has been a:
        (1) Willful misrepresentation of a material fact on the H-2B 
    Registration, Application for Prevailing Wage Determination, 
    Application for Temporary Employment Certification, or H-2B Petition;
        (2) Substantial failure to meet any of the terms and conditions of 
    the H-2B Registration, Application for Prevailing Wage Determination, 
    Application for Temporary Employment Certification, or H-2B Petition. A 
    substantial failure is a willful failure to comply that constitutes a 
    significant deviation from the terms and conditions of such documents; 
    or
        (3) Willful misrepresentation of a material fact to the Department 
    of State during the H-2B nonimmigrant visa application process.
        (b) Determining whether a violation is willful. A willful 
    misrepresentation of a material fact or a willful failure to meet the 
    required terms and conditions occurs when the employer, attorney, or 
    agent knows its statement is false or that its conduct is in violation, 
    or shows reckless disregard for the truthfulness of its representation 
    or for whether its conduct satisfies the required conditions.
        (c) Determining whether a violation is significant. In determining 
    whether a violation is a significant deviation from the terms and 
    conditions of the H-2B Registration, Application for Prevailing Wage 
    Determination, Application for Temporary Employment Certification, or 
    H-2B Petition, the factors that the Administrator, WHD may consider 
    include, but are not limited to, the following:
        (1) Previous history of violation(s) under the H-2B program;
        (2) The number of H-2B workers, workers in corresponding 
    employment, or U.S. workers who were and/or are affected by the 
    violation(s);
        (3) The gravity of the violation(s);
        (4) The extent to which the violator achieved a financial gain due 
    to the violation(s), or the potential financial loss or potential 
    injury to the worker(s); and
        (5) Whether U.S. workers have been harmed by the violation.
        (d) Employer acceptance of obligations. The provisions of this part 
    become applicable upon the date that the employer's Application for 
    Temporary Employment Certification is accepted. The employer's 
    submission of the approved H-2B Registration, Application for 
    Prevailing Wage
    
    [[Page 24140]]
    
    Determination, the employer's survey attestation (Form ETA-9165), 
    Appendix B of the Application for Temporary Employment Certification, 
    and H-2B Petition constitute the employer's representation that the 
    statements on the forms are accurate and that it knows and accepts the 
    obligations of the program.
    
    
    Sec.  503.20  Sanctions and remedies--general.
    
        Whenever the Administrator, WHD determines that there has been a 
    violation(s), as described in Sec.  503.19, such action will be taken 
    and such proceedings instituted as deemed appropriate, including (but 
    not limited to) the following:
        (a) Institute administrative proceedings, including for: the 
    recovery of unpaid wages (including recovery of prohibited recruitment 
    fees paid or impermissible deductions from pay, and recovery of wages 
    due for improperly placing workers in areas of employment or in 
    occupations other than those identified on the Application for 
    Temporary Employment Certification and for which a prevailing wage was 
    not obtained); the enforcement of provisions of the job order, 8 U.S.C. 
    1184(c), 20 CFR part 655, subpart A, or the regulations in this part; 
    the assessment of a civil money penalty; make whole relief for any 
    person who has been discriminated against; reinstatement and make whole 
    relief for any U.S. worker who has been improperly rejected for 
    employment, laid off or displaced; or debarment for no less than 1 or 
    no more than 5 years.
        (b) The remedies referenced in paragraph (a) of this section will 
    be sought either directly from the employer, or from its successor in 
    interest, or from the employer's agent or attorney, as appropriate.
    
    
    Sec.  503.21  Concurrent actions within the Department of Labor.
    
        OFLC has primary responsibility to make all determinations 
    regarding the issuance, denial, or revocation of a labor certification 
    as described in Sec.  503.1(b) and in 20 CFR part 655, subpart A. The 
    WHD has primary responsibility to make all determinations regarding the 
    enforcement functions as described in Sec.  503.1(c). The taking of any 
    one of the actions referred to above will not be a bar to the 
    concurrent taking of any other action authorized by 8 U.S.C. 1184(c), 
    20 CFR part 655, subpart A, or the regulations in this part. OFLC and 
    the WHD have concurrent jurisdiction to impose a debarment remedy under 
    20 CFR 655.73 or under Sec.  503.24.
    
    
    Sec.  503.22  Representation of the Secretary.
    
        The Solicitor of Labor, through authorized representatives, will 
    represent the Administrator, WHD and the Secretary in all 
    administrative hearings under 8 U.S.C. 1184(c)(14) and the regulations 
    in this part.
    
    
    Sec.  503.23  Civil money penalty assessment.
    
        (a) A civil money penalty may be assessed by the Administrator, WHD 
    for each violation that meets the standards described in Sec.  503.19. 
    Each such violation involving the failure to pay an individual worker 
    properly or to honor the terms or conditions of a worker's employment 
    required by the H-2B Registration, Application for Prevailing Wage 
    Determination, Application for Temporary Employment Certification, or 
    H-2B Petition, constitutes a separate violation. Civil money penalty 
    amounts for such violations are determined as set forth in paragraphs 
    (b) to (e) of this section.
        (b) Upon determining that an employer has violated any provisions 
    of Sec.  503.16 related to wages, impermissible deductions or 
    prohibited fees and expenses, the Administrator, WHD may assess civil 
    money penalties that are equal to the difference between the amount 
    that should have been paid and the amount that actually was paid to 
    such worker(s), not to exceed $10,000 per violation.
        (c) Upon determining that an employer has terminated by layoff or 
    otherwise or has refused to employ any worker in violation of Sec.  
    503.16(r), (t), or (v), within the periods described in those sections, 
    the Administrator, WHD may assess civil money penalties that are equal 
    to the wages that would have been earned but for the layoff or failure 
    to hire, not to exceed $10,000 per violation. No civil money penalty 
    will be assessed, however, if the employee refused the job opportunity, 
    or was terminated for lawful, job-related reasons.
        (d) The Administrator, WHD may assess civil money penalties in an 
    amount not to exceed $10,000 per violation for any other violation that 
    meets the standards described in Sec.  503.19.
        (e) In determining the amount of the civil money penalty to be 
    assessed under paragraph (d) of this section, the Administrator, WHD 
    will consider the type of violation committed and other relevant 
    factors. In determining the level of penalties to be assessed, the 
    highest penalties will be reserved for willful failures to meet any of 
    the conditions of the Application for Temporary Employment 
    Certification and H-2B Petition that involve harm to U.S. workers. 
    Other factors which may be considered include, but are not limited to, 
    the following:
        (1) Previous history of violation(s) of 8 U.S.C. 1184(c), 20 CFR 
    part 655, subpart A, or the regulations in this part;
        (2) The number of H-2B workers, workers in corresponding 
    employment, or improperly rejected U.S. applicants who were and/or are 
    affected by the violation(s);
        (3) The gravity of the violation(s);
        (4) Efforts made in good faith to comply with 8 U.S.C. 1184(c), 20 
    CFR part 655, subpart A, and the regulations in this part;
        (5) Explanation from the person charged with the violation(s);
        (6) Commitment to future compliance, taking into account the public 
    health, interest or safety; and
        (7) The extent to which the violator achieved a financial gain due 
    to the violation, or the potential financial loss or potential injury 
    to the workers.
    
    
    Sec.  503.24  Debarment.
    
        (a) Debarment of an employer. The Administrator, OFLC may not issue 
    future labor certifications under 20 CFR part 655, subpart A to an 
    employer or any successor in interest to that employer, subject to the 
    time limits set forth in paragraph (c) of this section, if the 
    Administrator, WHD finds that the employer committed a violation that 
    meets the standards of Sec.  503.19. Where these standards are met, 
    debarrable violations would include but not be limited to one or more 
    acts of commission or omission which involve:
        (1) Failure to pay or provide the required wages, benefits, or 
    working conditions to the employer's H-2B workers and/or workers in 
    corresponding employment;
        (2) Failure, except for lawful, job-related reasons, to offer 
    employment to qualified U.S. workers who applied for the job 
    opportunity for which certification was sought;
        (3) Failure to comply with the employer's obligations to recruit 
    U.S. workers;
        (4) Improper layoff or displacement of U.S. workers or workers in 
    corresponding employment;
        (5) Failure to comply with one or more sanctions or remedies 
    imposed by the Administrator, WHD for violation(s) of obligations under 
    the job order or other H-2B obligations, or with one or more decisions 
    or orders of the Secretary or a court under 20 CFR part 655, subpart A 
    or this part;
        (6) Impeding an investigation of an employer under this part;
        (7) Employing an H-2B worker outside the area of intended
    
    [[Page 24141]]
    
    employment, in an activity/activities not listed in the job order, or 
    outside the validity period of employment of the job order, including 
    any approved extension thereof;
        (8) A violation of the requirements of Sec.  503.16(o) or (p);
        (9) A violation of any of the provisions listed in Sec.  503.16(r);
        (10) Any other act showing such flagrant disregard for the law that 
    future compliance with program requirements cannot reasonably be 
    expected;
        (11) Fraud involving the H-2B Registration, Application for 
    Prevailing Wage Determination, Application for Temporary Employment 
    Certification, or H-2B Petition; or
        (12) A material misrepresentation of fact during the registration 
    or application process.
        (b) Debarment of an agent or attorney. If the Administrator, WHD 
    finds, under this section, that an agent or attorney committed a 
    violation as described in paragraph (a) of this section or participated 
    in an employer's violation, the Administrator, OFLC may not issue 
    future labor certifications to an employer represented by such agent or 
    attorney, subject to the time limits set forth in paragraph (c) of this 
    section.
        (c) Period of debarment. Debarment under this subpart may not be 
    for less than 1 year or more than 5 years from the date of the final 
    agency decision.
        (d) Debarment procedure. If the Administrator, WHD makes a 
    determination to debar an employer, attorney, or agent, the 
    Administrator, WHD will send the party a Notice of Debarment. The 
    notice will state the reason for the debarment finding, including a 
    detailed explanation of the grounds for and the duration of the 
    debarment and inform the party subject to the notice of its right to 
    request a debarment hearing and the timeframe under which such rights 
    must be exercised under Sec.  503.43. If the party does not request a 
    hearing within 30 calendar days of the date of the Notice of Debarment, 
    the notice is the final agency action and the debarment will take 
    effect at the end of the 30-day period. The timely filing of an 
    administrative appeal stays the debarment pending the outcome of the 
    appeal as provided in Sec.  503.43(e).
        (e) Concurrent debarment jurisdiction. OFLC and the WHD have 
    concurrent jurisdiction debar under 20 CFR 655.73 or under this part. 
    When considering debarment, OFLC and the WHD will coordinate their 
    activities. A specific violation for which debarment is imposed will be 
    cited in a single debarment proceeding. Copies of final debarment 
    decisions will be forwarded to DHS and DOS promptly.
        (f) Debarment from other labor certification programs. Upon 
    debarment under this part or 20 CFR 655.73, the debarred party will be 
    disqualified from filing any labor certification applications or labor 
    condition applications with the Department of Labor by, or on behalf 
    of, the debarred party for the same period of time set forth in the 
    final debarment decision.
    
    
    Sec.  503.25  Failure to cooperate with investigators.
    
        (a) No person will interfere or refuse to cooperate with any 
    employee of the Secretary who is exercising or attempting to exercise 
    the Department's investigative or enforcement authority under 8 U.S.C. 
    1184(c). Federal statutes prohibiting persons from interfering with a 
    Federal officer in the course of official duties are found at 18 U.S.C. 
    111 and 18 U.S.C. 114.
        (b) Where an employer (or employer's agent or attorney) interferes 
    or does not cooperate with an investigation concerning the employment 
    of an H-2B worker or a worker in corresponding employment, or a U.S. 
    worker who has been improperly rejected for employment or improperly 
    laid off or displaced, WHD may make such information available to OFLC 
    and may recommend that OFLC revoke the existing certification that is 
    the basis for the employment of the H-2B workers giving rise to the 
    investigation. In addition, WHD may take such action as appropriate 
    where the failure to cooperate meets the standards in Sec.  503.19, 
    including initiating proceedings for the debarment of the employer from 
    future certification for up to 5 years, and/or assessing civil money 
    penalties against any person who has failed to cooperate with a WHD 
    investigation. The taking of any one action will not bar the taking of 
    any additional action.
    
    
    Sec.  503.26  Civil money penalties--payment and collection.
    
        Where a civil money penalty is assessed in a final order by the 
    Administrator, WHD, by an ALJ, or by the ARB, the amount of the penalty 
    must be received by the Administrator, WHD within 30 calendar days of 
    the date of the final order. The person assessed the penalty will remit 
    the amount ordered to the Administrator, WHD by certified check or by 
    money order, made payable to the Wage and Hour Division, United States 
    Department of Labor. The remittance will be delivered or mailed to the 
    WHD Regional Office for the area in which the violations occurred.
    
    Subpart C--Administrative Proceedings
    
    
    Sec.  503.40  Applicability of procedures and rules.
    
        (a) The procedures and rules contained in this subpart prescribe 
    the administrative appeal process that will be applied with respect to 
    a determination to assess civil money penalties, to debar, to enforce 
    provisions of the job order or provisions under 8 U.S.C. 1184(c), 20 
    CFR part 655, subpart A, or the regulations in this part, or to the 
    collection of monetary relief due as a result of any violation.
        (b) With respect to determinations as listed in paragraph (a) 
    involving provisions under 8 U.S.C. 1184(c), the procedures and rules 
    contained in this subpart will apply regardless of the date of 
    violation.
    
    Procedures Related to Hearing
    
    
    Sec.  503.41  Administrator, WHD's determination.
    
        (a) Whenever the Administrator, WHD decides to assess a civil money 
    penalty, to debar, or to impose other appropriate administrative 
    remedies, including for the recovery of monetary relief, the party 
    against which such action is taken will be notified in writing of such 
    determination.
        (b) The Administrator, WHD's determination will be served on the 
    party by personal service or by certified mail at the party's last 
    known address. Where service by certified mail is not accepted by the 
    party, the Administrator may exercise discretion to serve the 
    determination by regular mail.
    
    
    Sec.  503.42  Contents of notice of determination.
    
        The notice of determination required by Sec.  503.41 will:
        (a) Set forth the determination of the Administrator, WHD, 
    including:
        (1) The amount of any monetary relief due; or
        (2) Other appropriate administrative remedies; or
        (3) The amount of any civil money penalty assessment; or
        (4) Whether debarment is sought and the term; and
        (5) The reason or reasons for such determination.
        (b) Set forth the right to request a hearing on such determination;
        (c) Inform the recipient(s) of the notice that in the absence of a 
    timely request for a hearing, received by the Chief ALJ within 30 
    calendar days of the date of the determination, the
    
    [[Page 24142]]
    
    determination of the Administrator, WHD will become final and not 
    appealable;
        (d) Set forth the time and method for requesting a hearing, and the 
    related procedures for doing so, as set forth in Sec.  503.43, and give 
    the addresses of the Chief ALJ (with whom the request must be filed) 
    and the representative(s) of the Solicitor of Labor (upon whom copies 
    of the request must be served); and
        (e) Where appropriate, inform the recipient(s) of the notice that 
    the Administrator, WHD will notify OFLC and DHS of the occurrence of a 
    violation by the employer.
    
    
    Sec.  503.43  Request for hearing.
    
        (a) Any party desiring review of a determination issued under Sec.  
    503.41, including judicial review, must make a request for such an 
    administrative hearing in writing to the Chief ALJ at the address 
    stated in the notice of determination. In such a proceeding, the 
    Administrator will be the plaintiff, and the party will be the 
    respondent. If such a request for an administrative hearing is timely 
    filed, the Administrator, WHD's determination will be inoperative 
    unless and until the case is dismissed or the ALJ issues an order 
    affirming the decision.
        (b) No particular form is prescribed for any request for hearing 
    permitted by this section. However, any such request will:
        (1) Be dated;
        (2) Be typewritten or legibly written;
        (3) Specify the issue or issues stated in the notice of 
    determination giving rise to such request;
        (4) State the specific reason or reasons why the party believes 
    such determination is in error;
        (5) Be signed by the party making the request or by the agent or 
    attorney of such party; and
        (6) Include the address at which such party or agent or attorney 
    desires to receive further communications relating thereto.
        (c) The request for such hearing must be received by the Chief ALJ, 
    at the address stated in the Administrator, WHD's notice of 
    determination, no later than 30 calendar days after the date of the 
    determination. A party which fails to meet this 30-day deadline for 
    requesting a hearing may thereafter participate in the proceedings only 
    by consent of the ALJ.
        (d) The request may be filed in person, by facsimile transmission, 
    by certified or regular mail, or by courier service within the time set 
    forth in paragraph (c) of this section. For the requesting party's 
    protection, if the request is by mail, it should be by certified mail. 
    If the request is by facsimile transmission, the original of the 
    request, signed by the party or its attorney or agent, must be filed 
    within 25 days.
        (e) The determination will take effect on the start date identified 
    in the written notice of determination, unless an administrative appeal 
    is properly filed. The timely filing of an administrative appeal stays 
    the determination pending the outcome of the appeal proceedings.
        (f) Copies of the request for a hearing will be sent by the party 
    or attorney or agent to the WHD official who issued the notice of 
    determination on behalf of the Administrator, WHD, and to the 
    representative(s) of the Solicitor of Labor identified in the notice of 
    determination.
    
    Rules of Practice
    
    
    Sec.  503.44  General.
    
        (a) Except as specifically provided in the regulations in this part 
    and to the extent they do not conflict with the provisions of this 
    part, the Rules of Practice and Procedure for Administrative Hearings 
    Before the Office of Administrative Law Judges established by the 
    Secretary at 29 CFR part 18 will apply to administrative proceedings 
    described in this part.
        (b) As provided in the Administrative Procedure Act, 5 U.S.C. 556, 
    any oral or documentary evidence may be received in proceedings under 
    this part. The Federal Rules of Evidence and subpart B of the Rules of 
    Practice and Procedure for Administrative Hearings Before the Office of 
    Administrative Law Judges (29 CFR part 18, subpart B) will not apply, 
    but principles designed to ensure production of relevant and probative 
    evidence will guide the admission of evidence. The ALJ may exclude 
    evidence which is immaterial, irrelevant, or unduly repetitive.
    
    
    Sec.  503.45  Service of pleadings.
    
        (a) Under this part, a party may serve any pleading or document by 
    regular mail. Service on a party is complete upon mailing to the last 
    known address. No additional time for filing or response is authorized 
    where service is by mail. In the interest of expeditious proceedings, 
    the ALJ may direct the parties to serve pleadings or documents by a 
    method other than regular mail.
        (b) Two copies of all pleadings and other documents in any ALJ 
    proceeding must be served on the attorneys for the Administrator, WHD. 
    One copy must be served on the Associate Solicitor, Division of Fair 
    Labor Standards, Office of the Solicitor, U.S. Department of Labor, 200 
    Constitution Avenue NW., Room N-2716, Washington, DC 20210, and one 
    copy must be served on the attorney representing the Administrator in 
    the proceeding.
        (c) Time will be computed beginning with the day following service 
    and includes the last day of the period unless it is a Saturday, 
    Sunday, or Federally-observed holiday, in which case the time period 
    includes the next business day.
    
    
    Sec.  503.46  Commencement of proceeding.
    
        Each administrative proceeding permitted under 8 U.S.C. 1184(c)(14) 
    and the regulations in this part will be commenced upon receipt of a 
    timely request for hearing filed in accordance with Sec.  503.43.
    
    
    Sec.  503.47  Caption of proceeding.
    
        (a) Each administrative proceeding instituted under 8 U.S.C. 
    1184(c)(14), INA section 214(c)(14) and the regulations in this part 
    will be captioned in the name of the person requesting such hearing, 
    and will be styled as follows:
        In the Matter of __________, Respondent.
        (b) For the purposes of such administrative proceedings the 
    Administrator, WHD will be identified as plaintiff and the person 
    requesting such hearing will be named as respondent.
    
    
    Sec.  503.48  Conduct of proceeding.
    
        (a) Upon receipt of a timely request for a hearing filed under and 
    in accordance with Sec.  503.43, the Chief ALJ will promptly appoint an 
    ALJ to hear the case.
        (b) The ALJ will notify all parties of the date, time and place of 
    the hearing. Parties will be given at least 30 calendar days' notice of 
    such hearing.
        (c) The ALJ may prescribe a schedule by which the parties are 
    permitted to file a prehearing brief or other written statement of fact 
    or law. Any such brief or statement must be served upon each other 
    party. Post-hearing briefs will not be permitted except at the request 
    of the ALJ. When permitted, any such brief must be limited to the issue 
    or issues specified by the ALJ, will be due within the time prescribed 
    by the ALJ, and must be served on each other party.
    
    Procedures Before Administrative Law Judge
    
    
    Sec.  503.49  Consent findings and order.
    
        (a) General. At any time after the commencement of a proceeding 
    under this part, but before the reception of evidence in any such 
    proceeding, a party may move to defer the receipt of any evidence for a 
    reasonable time to
    
    [[Page 24143]]
    
    permit negotiation of an agreement containing consent findings and an 
    order disposing of the whole or any part of the proceeding. The 
    allowance of such deferment and the duration thereof will be at the 
    discretion of the ALJ, after consideration of the nature of the 
    proceeding, the requirements of the public interest, the 
    representations of the parties, and the probability of an agreement 
    being reached which will result in a just disposition of the issues 
    involved.
        (b) Content. Any agreement containing consent findings and an order 
    disposing of a proceeding or any part thereof will also provide:
        (1) That the order will have the same force and effect as an order 
    made after full hearing;
        (2) That the entire record on which any order may be based will 
    consist solely of the notice of administrative determination (or 
    amended notice, if one is filed), and the agreement;
        (3) A waiver of any further procedural steps before the ALJ; and
        (4) A waiver of any right to challenge or contest the validity of 
    the findings and order entered into in accordance with the agreement.
        (c) Submission. On or before the expiration of the time granted for 
    negotiations, the parties or their attorney or agent may:
        (1) Submit the proposed agreement for consideration by the ALJ; or
        (2) Inform the ALJ that agreement cannot be reached.
        (d) Disposition. In the event an agreement containing consent 
    findings and an order is submitted within the time allowed therefore, 
    the ALJ, within 30 days thereafter, will, if satisfied with its form 
    and substance, accept such agreement by issuing a decision based upon 
    the agreed findings.
    
    Post-Hearing Procedures
    
    
    Sec.  503.50  Decision and order of Administrative Law Judge.
    
        (a) The ALJ will prepare, within 60 days after completion of the 
    hearing and closing of the record, a decision on the issues referred by 
    the Administrator, WHD.
        (b) The decision of the ALJ will include a statement of the 
    findings and conclusions, with reasons and basis therefore, upon each 
    material issue presented on the record. The decision will also include 
    an appropriate order which may affirm, deny, reverse, or modify, in 
    whole or in part, the determination of the Administrator, WHD. The 
    reason or reasons for such order will be stated in the decision.
        (c) In the event that the Administrator, WHD assesses back wages 
    for wage violation(s) of Sec.  503.16 based upon a PWD obtained by the 
    Administrator from OFLC during the investigation and the ALJ determines 
    that the Administrator's request was not warranted, the ALJ will remand 
    the matter to the Administrator for further proceedings on the 
    Administrator's determination. If there is no such determination and 
    remand by the ALJ, the ALJ will accept as final and accurate the wage 
    determination obtained from OFLC or, in the event the party filed a 
    timely appeal under 20 CFR 655.13 the final wage determination 
    resulting from that process. Under no circumstances will the ALJ 
    determine the validity of the wage determination or require submission 
    into evidence or disclosure of source data or the names of 
    establishments contacted in developing the survey which is the basis 
    for the PWD.
        (d) The decision will be served on all parties.
        (e) The decision concerning civil money penalties, debarment, 
    monetary relief, and/or other administrative remedies, when served by 
    the ALJ will constitute the final agency order unless the ARB, as 
    provided for in Sec.  503.51, determines to review the decision.
    
    Review of Administrative Law Judge's Decision
    
    
    Sec.  503.51  Procedures for initiating and undertaking review.
    
        (a) A respondent, the WHD, or any other party wishing review, 
    including judicial review, of the decision of an ALJ will, within 30 
    days of the decision of the ALJ, petition the ARB to review the 
    decision. Copies of the petition will be served on all parties and on 
    the ALJ.
        (b) No particular form is prescribed for any petition for the ARB's 
    review permitted by this part. However, any such petition will:
        (1) Be dated;
        (2) Be typewritten or legibly written;
        (3) Specify the issue or issues stated in the ALJ decision and 
    order giving rise to such petition;
        (4) State the specific reason or reasons why the party petitioning 
    for review believes such decision and order are in error;
        (5) Be signed by the party filing the petition or by an authorized 
    representative of such party;
        (6) Include the address at which such party or authorized 
    representative desires to receive further communications relating 
    thereto; and
        (7) Include as an attachment the ALJ's decision and order, and any 
    other record documents which would assist the ARB in determining 
    whether review is warranted.
        (c) If the ARB does not issue a notice accepting a petition for 
    review of the decision within 30 days after receipt of a timely filing 
    of the petition, or within 30 days of the date of the decision if no 
    petition has been received, the decision of the ALJ will be deemed the 
    final agency action.
        (d) Whenever the ARB, either on the ARB's own motion or by 
    acceptance of a party's petition, determines to review the decision of 
    an ALJ, a notice of the same will be served upon the ALJ and upon all 
    parties to the proceeding.
    
    
    Sec.  503.52  Responsibility of the Office of Administrative Law Judges 
    (OALJ).
    
        Upon receipt of the ARB's notice under Sec.  503.51, the OALJ will 
    promptly forward a copy of the complete hearing record to the ARB.
    
    
    Sec.  503.53  Additional information, if required.
    
        Where the ARB has determined to review such decision and order, the 
    ARB will notify the parties of:
        (a) The issue or issues raised;
        (b) The form in which submissions will be made (i.e., briefs, oral 
    argument); and
        (c) The time within which such presentation will be submitted.
    
    
    Sec.  503.54  Submission of documents to the Administrative Review 
    Board.
    
        All documents submitted to the ARB will be filed with the 
    Administrative Review Board, U.S. Department of Labor, 200 Constitution 
    Avenue NW., Room S-5220, Washington, DC 20210. An original and two 
    copies of all documents must be filed. Documents are not deemed filed 
    with the ARB until actually received by the ARB. All documents, 
    including documents filed by mail, must be received by the ARB either 
    on or before the due date. Copies of all documents filed with the ARB 
    must be served upon all other parties involved in the proceeding.
    
    
    Sec.  503.55  Final decision of the Administrative Review Board.
    
        The ARB's final decision will be issued within 90 days from the 
    notice granting the petition and served upon all parties and the ALJ.
    
    [[Page 24144]]
    
    Record
    
    
    Sec.  503.56  Retention of official record.
    
        The official record of every completed administrative hearing 
    provided by the regulations in this part will be maintained and filed 
    under the custody and control of the Chief ALJ, or, where the case has 
    been the subject of administrative review, the ARB.
    
        Signed: at Washington, DC this 22nd of April 2015.
    Thomas E. Perez,
    Secretary of Labor.
        Signed: at Washington, DC this 22nd of April 2015.
    Jeh Charles Johnson,
    Secretary of Homeland Security.
    [FR Doc. 2015-09694 Filed 4-28-15; 8:45 am]
     BILLING CODE 4510-FP-P; 4510-27-P; 9111-97-P
    
    
    
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