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ETA Final Rules

Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing (H-2B Workers)   [12/19/2008]
[PDF]
FR Doc E8-29995
[Federal Register: December 19, 2008 (Volume 73, Number 245)]
[Rules and Regulations]               
[Page 78019-78069]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19de08-19]                         


[[Page 78019]]

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Part V





Department of Labor





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Employment and Training Administration



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20 CFR Parts 655 and 656



Labor Certification Process and Enforcement for Temporary Employment in 
Occupations Other Than Agriculture or Registered Nursing in the United 
States (H-2B Workers), and Other Technical Changes; Final Rule


[[Page 78020]]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Parts 655 and 656

RIN 1205-AB54

 
Labor Certification Process and Enforcement for Temporary 
Employment in Occupations Other Than Agriculture or Registered Nursing 
in the United States (H-2B Workers), and Other Technical Changes

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

ACTION: Final rule.

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SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (DOL or the Department) is amending its regulations 
to modernize the procedures for the issuance of labor certifications to 
employers sponsoring H-2B nonimmigrants for admission to perform 
temporary nonagricultural labor or services and the procedures for 
enforcing compliance with attestations made by those employers. 
Specifically, this Final Rule re-engineers the application filing and 
review process by centralizing processing and by enabling employers to 
conduct pre-filing recruitment of United States (U.S.) workers. In 
addition, the rule enhances the integrity of the H-2B program through 
the introduction of post-adjudication audits and procedures for 
penalizing employers who fail to comply with program requirements. This 
rule also makes technical changes to the regulations relating to both 
the H-1B program and the permanent labor certification program to 
reflect operational changes stemming from this regulation.
    Although Congress has conferred the statutory authority to enforce 
H-2B program requirements on the Department of Homeland Security (DHS), 
recent discussions between DHS and the Department have yielded an 
agreement for the delegation of H-2B enforcement authority from DHS to 
the Department. This Final Rule contains the Wage and Hour Division 
(WHD) regulations establishing the H-2B enforcement procedures that the 
Department will institute pursuant to that agreement. Separately, this 
Final Rule institutes conditions and procedures for the debarment of 
employers, attorneys, and agents participating in the H-2B foreign 
labor certification process. As discussed further below, the Department 
intends to exercise its inherent authority under case law and general 
principles of program administration to determine what entities 
practice before it.

DATES: This Final Rule is effective January 18, 2009.

FOR FURTHER INFORMATION CONTACT: For information on the H-2B labor 
certification process governed by 20 CFR 655.1 to 655.35, contact 
William L. Carlson, Administrator, Office of Foreign Labor 
Certification, Employment and Training Administration, U.S. Department 
of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 
20210. Telephone: (202) 693-3010 (this is not a toll-free number). 
Individuals with hearing or speech impairments may access the telephone 
via TTY by calling the toll-free Federal Information Relay Service at 
1-800-877-8339.
    For information on the H-2B enforcement process governed by 20 CFR 
655.50 to 655.80, contact Michael Ginley, Office of Enforcement Policy, 
Wage and Hour Division, Employment Standards Administration, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Room S-3502, 
Washington, DC 20210. Telephone (202) 693-0745 (this is not a toll-free 
number). Individuals with hearing or speech impairments may access the 
telephone number above via TTY by calling the toll-free Federal 
Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background Leading to the NPRM

A. Statutory Standard and Current Department of Labor Regulations

    Section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act 
(INA or the Act) defines an H-2B worker as a nonimmigrant admitted to 
the U.S. on a temporary basis to perform temporary nonagricultural 
labor or services. 8 U.S.C. 1101(a)(15)(H)(ii)(b).
    Section 214(c)(1) of the INA requires DHS to consult with 
``appropriate agencies of the Government'' before granting any H-2B 
visa petition submitted by an employer. 8 U.S.C. 1184(c)(1). The 
regulations for the U.S. Citizenship and Immigration Services (USCIS), 
the agency within DHS charged with the adjudication of nonimmigrant 
benefits such as H-2B status, currently require, at 8 CFR 214.2(h)(6), 
that the intending employer (other than in the Territory of Guam) first 
apply for a temporary labor certification from the Secretary of Labor 
(the Secretary) advising USCIS whether U.S. workers capable of 
performing the services or labor are available, and whether the 
employment of the foreign worker(s) will adversely affect the wages and 
working conditions of similarly employed U.S. workers.
    The Department's role in the H-2B visa program stems from its 
obligation, outlined in DHS regulations, to certify, upon application 
by a U.S. employer intending to petition DHS to admit H-2B workers, 
that there are not enough able and qualified U.S. workers available for 
the position sought to be filled and that the employment of the foreign 
worker(s) will not adversely affect the wages and working conditions of 
similarly employed U.S. workers. 8 U.S.C. 1101(a)(15)(H)(ii)(b); 8 
U.S.C. 1184(c)(1); see also 8 CFR 214.2(h)(6).
    The Department's role in the H-2B process is currently advisory to 
DHS. 8 CFR 214.2(h)(6)(iii)(A). DHS regulations provide that an 
employer may not file a petition with DHS for an H-2B temporary worker 
unless it has received a labor certification from the Department (or 
the Governor of Guam, as appropriate), or received a notice from either 
that a certification cannot be issued. 8 CFR 214.2(h)(6)(iii)(C), 
(iv)(A), (vi)(A).
    Currently, the Department's regulations at 20 CFR part 655, Subpart 
A, ``Labor Certification Process for Temporary Employment in 
Occupations other than Agriculture, Logging or Registered Nursing in 
the United States (H-2B Workers),'' govern the H-2B labor certification 
process. Applications for labor certification are processed by the 
Office of Foreign Labor Certification (OFLC) in ETA, the agency to 
which the Secretary of Labor has delegated her advisory 
responsibilities described in the DHS H-2B regulations, after they are 
processed by the State Workforce Agency (SWA) having jurisdiction over 
the area of intended employment.\1\ The SWA reviews the employer's 
application and job offer (comparing the employer's offered wage 
against the prevailing wage for the position); supervises U.S. worker 
recruitment; and forwards completed applications to OFLC for further 
review and final determination.
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    \1\ The SWAs are agencies of State Government that receive 
Federal Workforce Investment Act (WIA), Wagner-Peyser Act, and other 
funds to administer our nation's state-based employment services 
system and perform certain activities on behalf of the Federal 
Government.
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    Under current procedures, the employer must demonstrate that its 
need for the services or labor is temporary as defined by one of four 
regulatory standards: (1) A one-time occurrence; (2) a seasonal need; 
(3) a

[[Page 78021]]

peakload need; or (4) an intermittent need. 8 CFR 214.2(h)(6)(ii)(B). 
The employer or its authorized representative must currently submit to 
the SWA a detailed statement of temporary need and supporting 
documentation with the application for H-2B labor certification. Such 
documentation must provide a description of the employer's business 
activities and schedule of operations throughout the year, explain why 
the job opportunity and the number of workers requested reflects its 
temporary need, and demonstrate how the employer's need meets one of 
these four regulatory standards. Based on longstanding practice and DOL 
program guidance, the employer must also establish that the temporary 
position is full-time and that the period of need is generally one year 
or less, consistent with the standard under DHS regulations at 8 CFR 
214.2h(6). This Final Rule clarifies that full-time employment, for 
purposes of temporary labor certification employment, means at least 30 
hours per week, except that where a State or an established practice in 
an industry has developed a definition of full-time employment for any 
occupation that is less than 30 hours per week, that definition 
governs.
    Additionally, the employer must recruit from the U.S. labor market 
to determine if a qualified U.S. worker is available for the position. 
In addition, in order to ensure an adequate test of the labor market 
for the position sought to be filled, the employer must comply with 
other program requirements. For example, it must offer and subsequently 
pay throughout the period of employment a wage that is equal to or 
higher than the prevailing wage for the occupation at the skill level 
and in the area of intended employment; provide terms and conditions of 
employment that are not less favorable than those offered to the 
foreign worker(s); and not otherwise inhibit the effective recruitment 
and consideration of U.S. workers for the job.
    Historically, the Department's review and adjudication of permanent 
and temporary labor certification applications (including H-2B) took 
place through ETA's Regional Offices. However, in December 2004, the 
Department opened two new National Processing Centers (NPCs), one each 
located in Atlanta, Georgia, and Chicago, Illinois, to centralize 
processing of permanent and temporary foreign labor certification cases 
at the Federal level. The Department published a notice in the Federal 
Register, at 70 FR 41430, Jul. 19, 2005, clarifying that employers 
seeking H-2B labor certifications must file two originals of Form ETA 
750, Part A, directly with the SWA serving the area of intended 
employment. Once the application is reviewed by the SWA and after the 
employer conducts its required recruitment, the SWA sends the complete 
application to the appropriate NPC. The NPC Certifying Officer (CO) 
issues a labor certification for temporary employment under the H-2B 
program, denies the certification, or issues a notice including the 
reasons why such certification cannot be made. Prior to June 1, 2008, 
the NPCs shared responsibility for processing of temporary labor 
certification applications; each NPC had jurisdiction over and 
processed applications from a different subset of states and 
territories. Effective June 1, 2008, the NPCs specialized, each 
assuming responsibility for different types of applications. Now, H-2B 
temporary labor certification applications approved by the SWAs are 
processed exclusively by the Chicago NPC. 73 FR 11944, Mar. 5, 2008.
    Currently, the Department has no enforcement authority or process 
to ensure H-2B workers who are admitted to the U.S. are employed in 
compliance with H-2B labor certification requirements. Congress vested 
DHS with that enforcement authority in 2005. See 8 U.S.C. 1184, as 
amended by the Emergency Supplemental Appropriations Act for Defense, 
the Global War on Terror, and Tsunami Relief of 2005, Public Law 109-
13, 119 Stat. 231. As described more fully below, the Department in 
this Final Rule establishes the H-2B regulatory enforcement regime 
proposed in the NPRM, consistent with the agreement for a delegation of 
enforcement authority reached by the Department and DHS pursuant to 8 
U.S.C. 1184(c)(14)(B). This enforcement regime also includes debarment 
procedures for ETA and the Employment Standards Administration, Wage 
and Hour Division (WHD), under the Department's inherent debarment 
authority, which is explained in greater detail below.

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

    On January 27, 2005, DHS and the Department issued companion NPRMs 
to significantly revise each agency's H-2B processing procedures. 70 FR 
3984, Jan. 27, 2005; 70 FR 3993, Jan. 27, 2005. As proposed, those 
changes to both agencies' regulations would have eliminated in whole 
the Department's adjudicatory role, ending the current labor 
certification process for most H-2B occupations and requiring employers 
to submit labor-related attestations directly to USCIS as part of a 
revised supplement accompanying the H-2B petition.
    The two agencies received numerous comments on the joint NPRMs in 
2005. Most commenters opposed the proposals to move the program 
adjudication to USCIS and to eliminate the Department's role in 
reviewing the need of employers and the recruitment of U.S. workers 
except in post-adjudication audits. Commenter concerns focused in part 
on the loss of the Department's experience in adjudicating issues of 
temporary need and the potential adverse impact on U.S. workers. Based 
on the significant concerns posed in those comments, and after further 
deliberation within each agency, the Department and DHS have not 
pursued their 2005 proposals. Consequently, the NPRM published by the 
Department on January 27, 2005 (RIN 1205-AB36) was withdrawn in the 
Department of Labor's Fall 2007 Regulatory Agenda. See http://
www.reginfo.gov/public/do/eAgendaViewRule?ruleID=221117.
    As stated in the May 22, 2008, NPRM preceding this Final Rule, the 
Department continued, however, to closely review the H-2B program 
procedures in order to determine appropriate revisions to the H-2B 
labor certification process. This ongoing systematic review was 
accelerated in light of considerable workload increases for both the 
Department and the SWAs (an approximate 30 percent increase in 
applications in Fiscal Year (FY) 2007 over those received in FY 2006, 
and a similar increase during the first half of FY 2008) as well as 
limited appropriations funding program-related operations.
    On April 4, 2007, ETA issued Training and Employment Guidance 
Letter (TEGL) No. 21-06, 72 FR 19961, Apr. 20, 2007, to replace its 
previous guidance for the processing of H-2B applications (General 
Administration Letter No. 1-95, 60 FR 7216, Feb. 7, 1995) and update 
procedures for SWAs and NPCs to use in the processing of temporary 
labor certification applications. The Department then held national 
briefing sessions in Chicago and Atlanta on May 1 and May 4, 2007, 
respectively, to inform employers and other stakeholders of the updated 
processing guidance contained in TEGL 21-06. Attendees at those 
briefing sessions raised important questions and concerns with regard 
to the effective implementation of TEGL 21-06 by the SWAs and ETA's 
National Processing Centers (NPCs). In response to the

[[Page 78022]]

substantive concerns that were raised, the Department further refined 
the process of reviewing applications in TEGL 27-06 (June 12, 2007), 
providing special procedures for dealing with forestry related 
occupations, and TEGL No. 21-06, Change 1 (June 25, 2007), and updating 
procedures by allowing the NPC Certifying Officer (CO) to request 
additional information from employers to facilitate the processing of 
H-2B applications. 72 FR 36501, Jul. 3, 2007; 72 FR 38621, Jul. 13, 
2007. Several issues were not addressed by those refinements, 
particularly concerns relating to increasing workload and processing 
delays, which required regulatory changes. This Final Rule addresses a 
number of those unresolved issues.

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

    As described in the May 22, 2008, NPRM, the process for obtaining a 
temporary labor certification has been described to the Department as 
complicated, time-consuming, inefficient, and dependent upon the 
expenditure of considerable resources by employers. The current, 
duplicative process requires the employer to first file a temporary 
labor certification with the SWA, which reviews the application, 
compares the wage offer to the prevailing wage for the occupation, 
oversees the recruitment of U.S. workers, and then transfers the 
application to the applicable ETA NPC, which conducts a final review of 
the application. This process has been criticized for its length, 
overlap of effort, and resulting delays. Application processing delays, 
regardless of origin, can lead to adverse results with serious 
repercussions for a business, especially given the numerical limitation 
or ``cap'' on visas under this program, as a result of which any 
processing delay may prevent an employer from securing visas for H-2B 
workers during any given half year period for which numbers are 
available. This occurs because employer demand for the limited number 
of visas greatly exceeds their supply, and all visas are typically 
allocated in the early weeks of availability. See 8 U.S.C. 
1184(g)(1)(B) (setting H-2B annual visa cap at 66,000) and 8 U.S.C. 
1184(g)(10) (setting a cap of 33,000 as the number of H-2B visas that 
may be allocated during each 6-month period of a fiscal year).
    The increasing workload of the Department and SWAs poses a growing 
challenge to the efficient and timely processing of applications. As 
stated in the NPRM, the H-2B foreign labor certification program 
continues to increase in popularity among employers. While the annual 
number of visas available is limited by statute, the number of labor 
certifications is not. The number of H-2B labor certification 
applications has increased 129 percent since FY 2000. In FY 2007, the 
Department experienced a nearly 30 percent increase in H-2B temporary 
labor certification application filings over the previous fiscal year. 
This increasing workload is exacerbated because the INA does not 
authorize the Department to charge a fee to employers for processing H-
2B applications.\2\ At the same time, appropriated funds have not kept 
pace with the increased workload at the State or Federal level. This 
has resulted in significant disparities in processing times among the 
SWAs. Some observers have noted these disparities among States unfairly 
advantage one set of employers (those in which the SWAs are able to 
timely process applications) over others (those in which SWAs 
experience delays due to backlogs resulting from inadequate staffing or 
funding, or other causes).\3\
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    \2\ On June 17, 2008, the Department transmitted draft 
legislation to the Congress that would amend the INA to provide the 
Department with authority to charge and retain a fee to recoup the 
costs of administering the H-2B labor certification program.
    \3\ The growth in the number of applications is explained in 
part by the increasing desire of employers for a legal temporary 
workforce and by legislation that permitted greater numbers of H-2B 
workers into the U.S. by exempting from the 66,000 annual cap any H-
2B worker who had been counted against the numerical cap in previous 
years. See Save Our Small and Seasonal Businesses Act of 2005, 
Public Law 109-13, Div. B, Title IV, 119 Stat. 318 (effective May 
11, 2005) (exempting from numerical cap for FY 2005 and FY 2006 
returning H-2B workers who had counted against the cap in one of the 
three fiscal years preceding the fiscal year in which the visa 
petition was filed), and Save Our Small and Seasonal Businesses Act 
of 2006, included in the Defense Authorization Act for FY 2007, Sec. 
1074, Public Law 109-364 (making amendment retroactive to October 1, 
2006, and extending the exemption through FY 2007). These returning 
worker provisions expired September 30, 2007. 8 U.S.C. 1184(g)(9) 
(2007); INA sec. 214(g)(9); see also Sec. 14006, Public Law 108-287, 
118 Stat. 951, 1014 (August 6, 2004) (exempting some fish roe 
occupations from the cap).
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    In light of these recurring experiences, this Final Rule institutes 
several significant measures to reengineer the Department's 
administration of the program. These changes improve the process by 
which employers obtain labor certification and where our program 
experience has demonstrated additional measures would assist the 
Department in protecting the job opportunities and wages of U.S. 
workers. The Final Rule also provides greater accountability for 
employers through penalties, up to and including debarment, as an 
additional safeguard against abuse of the program.

 D. Overview of Redesigned H-2B Foreign Labor Certification Process

    As proposed in the NPRM and finalized in this rule, the redesigned 
application process will require employers to complete recruitment 
steps similar to those now required, but will require them to do so 
prior to filing the application for labor certification. Once 
recruitment is complete, this Final Rule maintains the requirement 
proposed in the NPRM that the completed application be submitted 
directly to DOL instead of being filed with a SWA. This Final Rule 
eliminates the SWA duplicative review of the H-2B application. In 
association with this Final Rule, the Department has redesigned the 
application form currently used for the H-2A and H-2B temporary labor 
certification programs and proposed a new ETA Form 9142. Additional 
information about the new application form appears in the 
Administrative Information section of this preamble. This rule does not 
eliminate or federalize SWA activities (e.g., the job order and 
interstate clearance process) that may ultimately support an employer's 
H-2B application but are funded and governed independently under the 
Wagner-Peyser Act. This rule does federalize prevailing wage 
determinations, previously performed by the SWAs under this program.
    To test the U.S. labor market appropriately, employers will be 
required to first obtain from the Chicago NPC a prevailing wage rate to 
be used in the recruitment of U.S. workers. To make this request, 
employers in the non-agricultural labor certification programs will use 
a new ETA Form 9141, which was designed and will be implemented in 
conjunction with this Final Rule. As with the Form 9142, additional 
information about the Form 9141 appears in the Administrative 
Information section of the preamble. The employer will then follow 
recruitment steps similar to those required under the current program. 
The NPRM proposed increasing the number of required advertisements to 
three. However, in response to comments, the Final Rule returns to the 
current requirement of two advertisements, although it retains the 
proposed requirement that one of those advertisements be placed on a 
Sunday.
    Consistent with the NPRM, this Final Rule requires the employer to 
attest to and enumerate its recruitment efforts as part of the 
application but does not require the employer to submit

[[Page 78023]]

supporting documentation with its application. To ensure the integrity 
of the process, the Final Rule requires the employer to retain 
documentation of its recruitment, as well as other documentation 
specified in the regulations, for 3 years from the date of 
certification. The employer will be required to provide this 
documentation in response to a request for additional information by 
the Certifying Officer (CO) before certification or by ETA pursuant to 
an audit or in the course of an investigation by the Wage and Hour 
Division (WHD) after a determination on the application has been 
issued. The Department has set the document retention requirement at 3 
years rather than the proposed 5 years in response to comments received 
expressing concerns that five years would impose an unnecessary burden 
on small employers, especially those that are mobile or have a mobile 
component.
    Employers or their authorized representatives (attorneys or agents) 
will be required to submit applications using a new form designed to 
demonstrate the employer's compliance with the obligations of the H-2B 
program. As described in the NPRM and the Final Rule, the application 
form will collect, in the form of attestations, information that is 
largely required already by the current H-2B labor certification 
process. These attestations are required from the employer to ensure 
adherence to program requirements and to establish accountability. As 
with recruitment, employers are required to retain records documenting 
their compliance with all program requirements. An application that is 
complete will be accepted by the NPC for processing and will undergo 
final review by the Department.
    Based on the Department's experience, and in response to concerns 
voiced in public comments about the need for H-2B stakeholder guidance 
and ETA staff training, we have added a transition period to the Final 
Rule at new Sec.  655.5. Although the Final Rule takes effect 30 days 
from publication, it phases in implementation based on employment start 
dates listed in the application. Employers with a date of need on or 
after October 1, 2009, will be governed by these new regulations. 
Employers with a date of need on or after the rule's effective date but 
prior to October 1, 2009, will follow the transitional process 
described in Sec.  655.5. Additional information about the transition 
process appears below.
    In order to further protect the integrity of the program, specific 
verification steps, such as verifying the employer's Federal Employer 
Identification Number (FEIN) to ensure the employer is a bona fide 
business entity, will occur during processing to ensure the accuracy of 
the information supplied by the employer. If an application does not 
appear to be complete or merit approval on its face but requires 
additional information in order to be adjudicated, the CO will issue a 
Request for Further Information (RFI), a process the program already 
employs. After Departmental review, an application will be certified or 
denied.
    As proposed in the NPRM and adopted in the Final Rule, the 
introduction of new post-adjudication audits will serve, along with WHD 
investigations, as both a quality control measure and a means of 
ensuring program compliance. Audits will be conducted on adjudicated 
applications meeting certain criteria, as well as on randomly-selected 
applications. In the event of an audit or WHD investigation, employers 
will be required to provide information supporting the attestations 
made in the application. Failure to meet the required standards or to 
provide information in response to an audit or investigation may result 
in an adverse finding on the application in question, initiate 
Departmental supervised recruitment in future applications, and 
penalties.\4\
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    \4\ Further sanctions may be imposed by DHS. See 8 U.S.C. 
1184(c)(14).
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    As stated in the NPRM, the Department expects the modernized 
processing of applications will yield a reduction in the overall 
average time needed to process H-2B labor certification applications. 
This process is expected to lead to greater certainty and 
predictability for employers by reducing processing times which have 
exceeded our historical 60-day combined State and Federal processing 
timeframe.

II. Discussion of Comments on the Proposed Rule

    In response to the proposed rule, the Department received 134 
comments, of which 88 were unique and another 46 were duplicate form 
comments. Commenters represented a broad range of constituencies for 
the H-2B program, including individual employers, agents, industry 
coalitions and trade groups, advocacy and legal aid organizations, 
labor unions, a bar association, congressional oversight and 
authorizing committees, and individual members of the public.
    The Department received comments both in support and opposition to 
the proposed regulation. Comments supported, for example, the 
anticipated efficiencies of the proposed streamlined process and the 
potential conversion to electronic filing. Broadly, other commenters 
opposed the rule because they felt it would undermine program integrity 
or weaken worker protections and U.S. worker access to job 
opportunities. Still others believed the rulemaking untimely, given the 
general weakening of the economy, or that the proposed rule failed to 
address what they believed to be key problems underlying the program. 
Several of those problems, such as the annual cap of 66,000 H-2B visas 
per year, are statutory and cannot be changed through regulation.
    In addition, as described in greater detail below, the Department 
received comments raising a variety of concerns with specific proposals 
and provisions within the rule. After reviewing those comments 
thoughtfully and systematically, the Department has modified several 
provisions and retained others as originally proposed in the NPRM.
    Provisions of the NPRM that received comments are discussed below; 
provisions that were not commented on or revised for technical reasons 
have been adopted as proposed. The Department has made some technical 
changes to the regulatory text for clarity and to improve readability, 
but those changes were not designed to alter the meaning or intent of 
the regulation.

A. Section 655.2--Territory of Guam

    In the Final Rule, the Department has revised the discussion on the 
authority of the Governor of Guam to clarify that the enforcement of 
the provisions of the H-2B visa program in Guam resides with the 
Governor, pursuant to DHS regulations.

B. Section 655.4--Definitions

    Of the definitions proposed in the NPRM, comments were received on 
the definitions for ``agent,'' ``attorney,'' ``employ,'' ``employer,'' 
``full time,'' ``representative,'' and ``United States worker.''
    The proposed rule defined an agent as ``a legal entity or person 
which is authorized to act on behalf of the employer for temporary 
agricultural labor certification purposes, and is not itself an 
employer as defined in this subpart. The term `agent' specifically 
excludes associations or other organizations of employers.'' In 
response to comments, the Department has corrected the typographical 
error and replaced ``agricultural'' with ``nonagricultural.''
    Some commenters supported the proposed definition of agent with 
regard to its barring of associations or organizations of employers. 
One bar

[[Page 78024]]

association commented there had been many abuses by agents in the past, 
including the unauthorized practice of law, and recommended the 
Department adopt the definition under DHS regulations at 8 CFR 292.1. 
We have reviewed the guidelines under that section and concluded it is 
inappropriate for the labor certification process. The standard set by 
8 CFR 292.1 is not tailored to the Department's needs. For example, it 
includes, among others, law students and ``reputable individuals.'' We 
have determined such persons may not be appropriate to practice before 
the Department, in particular for purposes of foreign labor 
certification activities. That definition was designed to fit the needs 
of another Federal agency and would eliminate many current individuals 
who act on behalf of employers in the labor certification process with 
the Department.
    The Department acknowledges that allowing agents who are not 
attorneys does not fit into the categories recognized by DHS and 
creates a difference between the two agencies. The Department has 
permitted agents who do not meet these criteria to appear before it for 
decades. Agents who are not attorneys have represented claimants before 
the Department in a wide variety of activities since long before the 
development of H-2A program, and DOL's programs, where they intersect 
with those of DHS, permit a broader range of representation. To change 
such a long-standing practice in the context of this rulemaking would 
represent a major change in policy that the Department is not prepared 
to make at this time and was suggested in the NPRM seeking comments. 
Consequently, the Department has not adopted this recommendation. The 
Department will maintain its long-standing practice and policy with 
respect to who may represent employers.
    For greater clarity, a definition for ``Administrator, Wage and 
Hour Division (WHD)'' has been added to the definition section of the 
regulation to distinguish this official from the ``Administrator, 
Office of Foreign Labor Certification (OFLC).'' Regulatory text has 
been added where needed to distinguish between these officials.
    The proposed rule defined an attorney as:

    Any person who is a member in good standing of the bar of the 
highest court of any State, possession, territory, or commonwealth 
of the U.S., or the District of Columbia, and who is not under 
suspension or disbarment from practice before any court or before 
DHS or the U.S. Department of Justice's Executive Office for 
Immigration Review. Such a person is permitted to act as an attorney 
or representative for an employer under this part; however, an 
attorney who acts as a representative must do so only in accordance 
with the definition of ``representative'' in this section.

In the Final Rule, the Department has reworded the definition to 
provide more clarity regarding the bodies or courts that could suspend 
or disbar an attorney. The Department has also revised the final 
sentence in the definition to read: ``Such a person is permitted to act 
as an agent or attorney for an employer and/or foreign worker under 
this subpart.''
    In the NPRM, the Department added a definition for ``employ'' and 
made revisions to the definition of ``employer.'' A trade association 
suggested that the Department eliminate the definition of ``employ'' 
but retain the definition of ``employer,'' stating that the definition 
of ``employ'' adds nothing to clarify status or legal obligations under 
the H-2B program and insinuates broad legal concepts that add 
unnecessary confusion. As suggested by commenters, the Department has 
deleted the definition of ``employ.'' We agree this definition did not 
provide any additional clarification regarding status or legal 
obligations related to the H-2B program and may generate some confusion 
with other statutes.
    The Department received comments that the requirement for a Federal 
Employer Identification Number (FEIN) as incorporated in the definition 
of ``employer'' could be problematic for some employers. One commenter 
recommended the use of the DUNS number as a complement to the FEIN. The 
``data universal numbering system'' (DUNS), which is operated by Dunn & 
Bradstreet, issues nine-digit numbers that serve as unique identifiers 
and are used, in cases, by the Federal Government or individual 
businesses to track business entities. The Department has decided to 
retain the definition as proposed, and notes that it is easy for 
employers to obtain FEINs, which have the advantage of being assigned 
by the Internal Revenue Service, although in paragraph (1)(iii) of the 
definition we have added the phrase ``for purposes of the filing of an 
application,'' to clarify the FEIN is information gathered specifically 
at the point of application for H-2B labor certification. In paragraph 
(1)(i) of the definition, the Department has replaced ``may'' with 
``must'' to clarify U.S. workers must be referred to a U.S. location 
for employment.
    Commenters supported the inclusion of a definition for ``full 
time.'' The Department agrees with one commenter's assertion that, 
consistent with program practice, the definition should not be 
construed to establish an actual obligation of the number of hours that 
must be guaranteed each week. The parameters set forth in the 
definition of ``full time'' refer to the number of hours that are 
generally perceived to constitute that type of employment, as 
distinguished from ``part time,'' and are not a requirement that an 
employer offer a certain number of hours or any other terms or 
conditions of employment.
    The Department has also made changes to the definition of a job 
contractor for purposes of clarity. The changes make clear that the job 
contractor, rather than the contractor's client, must control the work 
of the individual employee.
    One trade association commented that to the extent the intent of 
the rule is to define the respective liability of agents and 
representatives, it should articulate a clear set of standards for 
liability. The association found the definition of ``representative'' 
to be problematic and suggested deleting or revising it. The commenter 
questioned whether the intent of the regulation was to make the 
representative liable for any misrepresentations in an attestation made 
on behalf of an employer. Because of potential overlaps with the 
definition and role of agent, the commenter also requested the rule 
clarify if, and under what circumstances, an agent is liable for 
activities undertaken on behalf of an employer. The commenter 
recommended the Department delete the provision on the representative's 
role in the consideration of U.S. workers, questioning what rationale 
the Department had for dictating under what circumstances an attorney 
or other person can interview U.S. applicants for the job, and why the 
Department is ``singling out'' attorneys within the definition.
    The Department disagrees with the commenter's interpretation of the 
liability of an agent or attorney for the acts of the employer. The 
duties of an agent or attorney may vary widely and not all duties that 
an agent or attorney undertakes may lead to liability. The Department 
recognizes, however, that some of an agent's or attorney's duties in 
representing an employer may put the agent or attorney in the role of 
the employer and be a basis for assigning liability for the employer's 
acts or omissions. For example, in undertaking to represent an employer 
in the H-2A program, an agent or attorney not only performs 
administrative tasks but also

[[Page 78025]]

submits attestations regarding the employer's obligations under the 
program. Attorneys and agents undertake a significant duty in making 
such representations. They are, therefore, responsible for reasonable 
due diligence in ensuring that employers understand their 
responsibilities under the program and are prepared to execute those 
obligations. Agents and attorneys do not themselves make the factual 
attestations and are not required to have personal knowledge that the 
attestations they submit are accurate. They are, however, required to 
inform the employers they represent of the employers' obligations under 
the program, including the employers' liability for making false 
attestations, and the prohibition on submitting applications containing 
attestations they know or should know are false. Failure to perform 
these responsibilities may render the agent or attorney personally 
liable for false attestations. The Department has decided to retain the 
definition as proposed.
    One commenter believed that the definition of ``United States 
worker'' presented in the NPRM was too narrow and that there are other 
persons in the United States legally entitled to work in addition to 
those in the categories listed. The Department disagrees and has 
retained the proposed definition, as it is inclusive and consistent 
with other provisions of immigration law and regulations that define 
U.S. workers and persons authorized to work in the U.S.
    The Department also added definitions for the terms 
``Administrative Law Judge,'' ``Chief Administrative Law Judge,'' 
``Department of Homeland Security,'' and ``United States Citizenship 
and Immigration Services,'' mirroring the definitions in the 
Department's H-2A Final Rule. These terms and definitions were 
inadvertently omitted from the proposed rule.
    The Department has added a definition of the term ``strike'' to the 
Final Rule. The definition clarifies that the Department will evaluate 
whether job opportunities are vacant because of a strike, lockout, or 
work stoppage on an individualized, position-by-position basis.
    The Department also has added a definition of ``successor in 
interest'' to make clear that the Department will consider the facts of 
each case to determine whether the successor and its agents were 
personally involved in the violations that led to debarment in 
determining whether the successor constitutes a ``successor in 
interest'' for purposes of the rule.

C. Section 655.5--Transition

    The Department recognizes that implementing the provisions of the 
Final Rule may be somewhat difficult for employers who have already 
filed their applications with the SWA to begin recruiting U.S. workers. 
Even though the NPRM put current and future users of H-2B workers on 
notice regarding the Department's intention to publish a Final Rule, 
the rule represents a departure from the current administration of the 
program. H-2B employers, including those who expressed concern 
regarding the time frame for a Final Rule, will require some period of 
time to prepare and adjust their requests for nonimmigrant workers to 
perform temporary or seasonal nonagricultural services or labor, 
particularly in tandem with changes to DHS processing of cases, and 
understand how to complete the Department's new forms for requesting a 
prevailing wage and applying for temporary employment certification.
    In response to comments, the Department is accordingly adopting a 
transition period, outlined in new Sec.  655.5 (previously reserved). 
Employers filing applications for H-2B workers on or after the 
effective date of these regulations where the date of need for the 
services or labor to be performed is before October 1, 2009, will be 
required to obtain a prevailing wage determination from the SWA serving 
the area of intended employment, rather than the NPC, but must meet all 
of the other pre-filing recruitment requirements outlined in this 
regulation before an Application for Temporary Employment Certification 
can be filed with the NPC. However, employers filing applications on or 
after the effective date of these regulations where the date of need 
for H-2B workers is on or after October 1, 2009, must obtain a 
prevailing wage determination from the NPC and comply with all of the 
obligations and assurances detailed in this subpart. The SWAs will no 
longer accept for processing applications filed by employers for H-2B 
workers on or after the effective date of these regulations. Rather, 
the SWAs will assist the Department's transition efforts by issuing 
prevailing wage determinations where the employer's need for H-2B 
workers is prior to October 1, 2009. This will allow the rest of the 
pre-filing recruitment requirements, obligations and assurances to 
become effective immediately. During this transition period, the 
Department expects that SWAs will continue to allow employers to file 
prevailing wage requests on forms they currently use in other visa 
programs in order to minimize any confusion and expedite the prevailing 
wage review process.
    In order to complete the processing of applications filed with the 
SWAs prior to the effective date of these regulations, the transition 
procedures require the SWAs to continue to process all active 
applications under the former regulations and transmit all completed 
applications to the NPC for review and issuance of a final 
determination. In circumstances where the SWA has already transmitted 
the completed application to the NPC, the NPC will complete its review 
in accord with the former regulations and issue a final determination. 
OFLC intends to conduct several national stakeholder briefings to 
familiarize program users with these requirements.

D. Section 655.6--Temporary Need

    Congress mandated the H-2B program be used to fill only the 
temporary needs of employers where no unemployed U.S. workers capable 
of performing the work can be found. 8 U.S.C. 1101(a)(15)(H)(ii)(b). 
Therefore, as explained in the NPRM, the Department will continue to 
determine whether the employer has demonstrated that it has a need for 
foreign labor that cannot be met by U.S. workers and that the need is 
temporary in nature.
    The controlling factor continues to be the employer's temporary 
need and not the nature of the job duties. Matter of Artee Corp., 18 
I&N Dec. 366 (Comm. 1982); cf. Global Horizons, Inc. v. DOL, 2007-TLC-1 
(Nov. 30, 2006) (upholding the Department's position that a failure to 
prove a specific temporary need precludes acceptance of temporary H-2A 
application).
    DHS regulations at 8 CFR 214.2(h)(6)(ii)(B) provide that a 
petitioner's need be one of the following: (1) A one-time occurrence, 
in which an employer demonstrates it has not had a need in the past for 
the labor or service and will not need it in the future, but needs it 
at the present time; (2) a seasonal need, in which the employer 
establishes that the service or labor is recurring and is traditionally 
tied to a season of the year; (3) a peakload need, in which the 
employer needs to supplement its permanent staff on a temporary basis 
due to a short-term demand; or (4) an intermittent need, in which the 
employer demonstrates it occasionally or intermittently needs temporary 
workers to perform services or labor for short periods.
    As proposed in the NPRM, for purposes of a one-time occurrence, 
under this Final Rule the Department will consider a position to be 
temporary

[[Page 78026]]

as long as the employer's need for the duties to be performed is 
temporary or finite, regardless of whether the underlying job is 
temporary or permanent in nature, and as long as that temporary need--
as demonstrated by the employer's attestations, temporary need 
narrative, and other relevant information--is less than 3 consecutive 
years. This interpretation is consistent with the rule proposed by 
USCIS on August 20, 2008, 73 FR 49109, which is being finalized in 
conjunction with this regulation.
    Consistent with the final USCIS regulations, the Department 
proposed--and the Final Rule permits--a one-time occurrence to include 
one-time temporary events that have created the need for temporary 
workers for up to 3 years. The Final Rule requires those employers to 
request annual labor certifications based on new tests of the U.S. 
labor market. As stated in the NPRM, we believe this is the best method 
by which to ensure U.S. worker access to these job opportunities, but 
recognize that an employer's need for workers to fill positions could, 
in some cases, last more than one year.
    The Department received a number of comments in response to the 
proposed expansion of the one-time occurrence definition. A job 
contractor commented that it did not believe the Department needed to 
specifically authorize the possibility of a 3-year, one-time need, 
since it could be inferred as already having the authority to certify 
such situations as long as the employer's situation as described in the 
application was compelling. However, the commenter believed that 
establishing a maximum 3-year stay may be limiting under certain 
circumstances such as rebuilding after natural disasters. It also 
creates confusion and complexity for the employer applicants who may 
not understand the distinction between a 3-year labor need broadly 
speaking and a one-time occurrence. Under the NPRM and this Final Rule, 
the extension of the temporary need definition from 1 year or less to 
potentially up to 3 years does not apply to all categories of need. The 
Department believes employers should understand that an H-2B visa will 
only be granted for longer than 1 year in the case of a one-time 
occurrence.
    Neither the Department nor DHS is changing the long-established 
definition of one-time occurrence which encompasses both unique non-
recurring situations but also any ``temporary event of a short duration 
[that] has created the need for a temporary worker.'' For example, an 
employer could utilize the H-2B program to secure a worker to replace a 
permanent employee who was injured. Further, if that permanent 
employee, upon returning to work, subsequently suffered another injury, 
the same employer could utilize the H-2B program again to replace the 
injured employee on the basis of a one-time occurrence. A one-time 
occurrence might also arise when a specific project creates a need for 
additional workers over and above an employer's normal workforce. For 
example, if a shipbuilder got a contract to build a ship that was over 
and above its normal workload, that might be a one-time occurrence. 
However, the Department would not consider it a one-time occurrence if 
the same employer filed serial requests for H-2B workers for each ship 
it built.
    The NPRM required that employers request recertification annually 
where their one-time occurrence extends beyond 1 year. The Department 
agrees with public comments that, where the need is one-time only, the 
added burden and expense of an additional labor market test does not 
make sense where the total period of need is less than 18 months. 
Therefore, an employer with a one-time need that has been approved for 
more than 1 year but less than 18 months will receive a labor 
certification covering the entire period of need, and will not be 
required to conduct another labor market test for the portion of time 
beyond 12 months. An employer requesting certification based on a one-
time occurrence it expects to last 18 months or longer, however, will 
be required to conduct one or more additional labor market tests.
    A number of individual small business commenters were concerned 
that the proposed changes went beyond the original intent of the 
program and would leave the seasonal and peakload businesses for which 
it was intended without adequate numbers of visas. They raised 
longstanding concerns with what many believe is an arbitrarily low visa 
cap and the strong competition among industries for the limited visas. 
These commenters posited that expanding the term to 3 years would open 
up the program to a wider number of industries, further increasing 
competition for visas and effectively crowding out those employers for 
which these commenters believe the visa was intended. One small 
employer thought it would allow high tech businesses to participate in 
the H-2B program to use up all the visas and leave other employers with 
real peakload needs wanting. This employer also thought it would create 
a security threat by letting visas be sold on the black market. SWAs 
commenting also questioned the change in definition as being what they 
described as a significant program change. While most employers of 
highly skilled workers currently avail themselves of the H-1B visa 
program, they are not precluded from seeking, as an alternative, H-2B 
nonimmigrant status, if they otherwise meet the requirements of the H-
2B program. None of the changes proposed by the Department would make 
the H-2B visa program any more or less available to highly skilled 
workers or provide employers who might wish to use such persons as H-2B 
workers with any greater advantage than other H-2B employers. In 
addition, with respect to visas issued by the State Department based on 
an approved DHS petition, the Department is unaware of any contemplated 
change in this or the DHS rulemaking that would create an automatic 3-
year H-2B visa. Depending on reciprocity schedules, under current State 
Department regulations, an initial H-2B visa is generally issued for a 
year or less, or for the validity period of the approved H-2B petition, 
but can be extended for additional periods of time to correspond to any 
period of time DHS might extend such H-2B petition. Nothing in this 
rule would change that.
    Several Members of Congress submitted separate comments on behalf 
of congressional committees. One U.S. Senator opposed the expansion of 
the definition of a one-time occurrence as contrary to the 1987 legal 
opinion of the Department of Justice, Office of the Legal Counsel. The 
comment stated that the Department of Justice considered various views 
of the proposed construction of ``temporarily'' in the context of the 
H-2A visa program and declined to define temporary as up to 3 years. 
According to the comment, the Justice opinion concluded that the 
statutory text, Congressional intent, and sound policy compelled a 
definition of temporary to be 1 year or less for all H-2 
classifications. The comment also pointed to the Department's and DHS's 
proposed rules on the H-2A program that retained the one year or less 
definition of temporary (absent extraordinary circumstances) as 
evidence that the current construction should be retained. The 
commenter was concerned that the regulation would lead to abuse of the 
H-2B program by encouraging some employers who want to take advantage 
of the program to characterize long-term or permanent jobs as 
temporary. The commenter believed that these longer-term jobs should be 
filled by U.S. workers and, if none are available, only then through 
the employment-based immigration visa process.
    Several labor unions also commented on this provision, largely in 
opposition.

[[Page 78027]]

One believed the proposal to be at odds with years of precedent and 
immigration and workforce policy, as well as current law. The commenter 
asserted that expanding the definition conflicts with DHS regulations, 
runs counter to the purpose of the H-2B program, and undermines the 
Congressional mandate to protect U.S. workers. Another labor 
organization contended that if an employer's need is longer than a 
short duration it is not a temporary need, and a period longer than a 
year is not of short duration. This commenter opposed the inclusion of 
this provision and urged the Department to withdraw this proposed 
change. Another union proposed temporary employment be limited to six 
months and ``certainly no longer than [1] year.'' Another labor 
organization opposing the proposed provision did not believe that the 
requirement that employers retest the labor market each year 
represented a meaningful safeguard for domestic workers, particularly 
if the Department were to adopt an attestation-based system where 
recruitment of U.S. workers is not actively supervised by the SWAs. It 
recommended the H-2B program be made consistent with the H-2A program 
concerning the definition of temporary.
    Several worker advocacy organizations also opposed this provision, 
indicating their belief it was not in keeping with the objectives of 
the program and would open most construction jobs in the country to be 
potentially part of the program. An individual employer commented that 
seasonal should mean 8 months or less so as to not compete with local 
permanent jobs.
    A law firm commented that the proposed changes went beyond what it 
believed Congress intended and claimed anecdotally it would directly 
and proportionally adversely affect the industries for which it felt 
the program was designed. It believed that the problems with the 
program are more associated with the delays and uncertainties related 
to the inadequate number of visas as well as inadequate budget and 
staffing at all levels of the application process. The commenter 
recommended these problems would be best addressed by Congress and by 
increased fees at each step. It also believed that this expansion of 
the definition would encourage additional industries, most notably the 
information technology industry, to participate and to put undue 
pressure on an already pressured program.
    Conversely, several employer and trade associations supported the 
expanded provision. One employer association welcomed the change as 
long in coming. Another supported it as a means to provide greater 
flexibility across industries and regions. Still another recommended 
that the 3-year provision be expanded beyond ``one-time need'' to the 
other three categories of temporary need.
    A legal association supported the proposal to expand temporary need 
but suggested the Department rethink the requirement that employers 
retest the market each year. According to the comment, requiring 
employers to get a new prevailing wage and perform additional 
recruitment and filing each year would increase workload for the 
Department, increase costs to employers, and fails to recognize the 
advantages of the employer having the availability of trained, 
experienced workers. It recommended that a reasonable alternative would 
be for employers to check the prevailing wage determination annually to 
ensure that the workers are being paid the appropriate wage but not to 
have to undertake further recruitment efforts.
    Many SWAs commented on the proposed rule. On the issue of 
temporariness, one SWA stated its support for retesting the labor 
market each year. An employer association supported retesting the labor 
market each year only in situations where there was a significant time 
period beyond the ordinary 10-month period left on the labor 
certification. It believed that this requirement would be too onerous 
on employers if applied to jobs lasting only 18 months, for example.
    Finally, a worker advocacy group recommended the addition of a 
process either through the Department or the SWAs under which workers 
could challenge the determination that the jobs are temporary.
    The Department defers to the Department of Homeland Security and 
will use their definition of temporary need as published in their Final 
Rule on H-2B. Currently, that definition, including the four categories 
of need, appears at 8 CFR 214.2(h)(6)(ii), and requires the employer 
show extraordinary circumstances in order to establish a need for 
longer than 1 year. DHS's Final Rule amends 8 CFR 214.2(h)(6)(ii)(B) to 
eliminate the requirement for extraordinary circumstances and clarify 
that a temporary need is one that ends in the near, definable future, 
which in the case of a one-time occurrence could last longer than 1 
year and up to 3 years. Accordingly, we have deleted the definitions we 
had in our regulatory text in the NPRM and instead provided a reference 
to the DHS regulations.

E. Section 655.10--Determination of Prevailing Wage for Labor 
Certification Purposes

1. Federalizing Prevailing Wage Determinations
    The Department proposed a new reengineered system to federalize the 
issuance of prevailing wages, under which employers would obtain the 
prevailing wage for the job opportunity directly from the NPC. As 
proposed, the new federalized process would allow employers to file 
prevailing wage requests with the appropriate NPC--designated as the 
Chicago NPC for prevailing wage requests--no more than 90 days before 
the start of recruitment. The proposed rule also clarified the validity 
period for wage determinations. Based on annual updates to the 
Occupational Employment Survey (OES) database, and depending on the 
time of year that the prevailing wage determination (PWD) was obtained 
from the Department, relative to the date of the most recent update, 
the wage determination provided could be valid from several months up 
to 1 year. The NPRM sought comments from employers who had utilized the 
program in the past on the efficacy of this proposed action.
    The Department received numerous comments on this new process. 
After consideration of all comments, we have decided to implement the 
PWD process as proposed in the NPRM. However, to reflect the transition 
from the current system to the new, the Final Rule now clarifies that 
employers with a date of need on or after October 1, 2009, must seek a 
PWD from the Chicago NPC prior to beginning recruitment, while 
employers with prior dates of need will continue to seek PWDs from the 
SWAs. However, consistent with the Department's intent to immediately 
implement the Final Rule, and as set forth in Sec.  655.5 of this Final 
Rule, SWAs will be required to follow the procedures instituted under 
Sec.  655.10 for any prevailing wage determination requests submitted 
on or after the date this Final Rule takes effect.
    Overwhelmingly, commenters were concerned about the capability of 
the NPC to provide timely and accurate prevailing wage determinations. 
Commenters supporting the new centralized process included trade 
associations, employer-based organizations, businesses, and individual 
professionals with significant experience in the foreign labor 
certification field. Of those, some requested reassurance that the 
Department would allocate sufficient resources and training to the PWD

[[Page 78028]]

activity at the NPCs to prevent processing delays. They urged the 
Department to institute mechanisms to ensure consistency between NPCs 
and across job titles, descriptions, and requirements; and to offer 
comprehensive training to employers, attorneys, and agents prior to 
implementation.
    Many commenters, including labor unions, advocacy organizations, 
academic institutions, and SWAs expressed concern that the NPC staff 
would not possess the same level of expertise, particularly locally-
oriented expertise, required to provide accurate, context-appropriate 
prevailing wage determinations as the SWA staff. They believed this 
could lead to reduced scrutiny, inaccuracy, backlogs, and delays, and 
adversely affect U.S. worker wages and job opportunities. The SWAs that 
commented on this issue were concerned that transferring the 
determination to the NPCs would also degrade customer service, and some 
questioned whether OES really keeps pace with changes in local 
standards. One state has had success with its own system and 
recommended the Department replicate that system on a national scale.
    One advocacy organization expressed the view that centralization 
would be particularly harmful to amusement park industry workers, which 
currently use a weekly rate rather than an hourly rate. One employer 
was concerned that NPC-issued PWDs would be inaccurate and biased in 
favor of higher wages, raising program costs. Several commenters 
opposed PWD federalization in its entirety and proposed full funding of 
SWAs for these activities. In the alternative, they recommended that, 
if the Department were to move forward, it hire staff with strong PWD 
backgrounds and create a separate PWD unit within the NPC.
    To guard against potential delays, some commenters requested that a 
timeframe for the process be established, or recommended adjustments to 
the process as proposed. A small business coalition recommended the 
Department permit employers to recruit without first getting the PWD 
from the NPC, so long as the employer accompanied its H-2B application 
with a printout of a current and appropriate wage from O*NET, which is 
the Internet wage survey the Department updates on an annual basis. A 
large trade association made a similar recommendation, with a proviso 
that if the employer has not used the correct wage from the database, 
it would be required to restart the application process after obtaining 
a PWD from the NPC. The Department also received a suggestion that 
employers be allowed to get the OES rate themselves unless they want a 
safe harbor which would be provided by getting the wage rate from the 
NPC or SWA. Another commenter was concerned that employer surveys do 
not provide the same safe harbor as SWA determinations and another 
commenter was concerned that eliminating the SWA from the process meant 
that the safe harbor would also be eliminated.
    This Final Rule establishes rules under which employers may provide 
their own information. Apart from those instances, the Department 
believes there is greater value and potential for greater consistency 
and efficiency in having the NPC provide the wage. The Department 
believes that continued oversight at the Federal level is essential to 
ensuring that the job opportunities are advertised and paid at the 
required wage and therefore does not adversely affect U.S. worker 
wages.
    A number of commenters urged that within this new process, the 
Department provide a vehicle for communication between program users 
and NPC staff to resolve disagreements on the job opportunity or wage 
level and educate program users on the Department's methodology. One 
trade association recommended the Department disclose its methodology 
for a PWD upon request from an employer with sufficient time to avoid 
delaying the application. Other organizations conditioned their support 
of the new process specifically on the creation of a mechanism for 
communicating or interacting with the public. Some commenters observed 
that the appeal process for wage determinations can be quite lengthy, 
and not a viable option in the context of H-2B or H-1B, where timing is 
critical; those commenters were particularly concerned that without 
such communication the timeframe for resolving any prevailing wage 
determination issues would be lengthened.
    The Department recognizes its responsibility to provide an 
efficient process for prevailing wage determinations. Now that the 
backlog in the permanent labor program has been eliminated, resources 
are being redirected to other OFLC priorities, including offsetting 
some costs associated with the re-engineering of the temporary labor 
certification programs. As the new program design is implemented, we 
will allocate available appropriated resources to key activities, 
including the PWD function. As part of this process, the Department 
will focus on identifying areas where improvements could be made, 
including developing and providing needed training. The Department will 
also look to its stakeholder community for input and suggestions for 
improvements.
    The Department will provide stakeholder briefings on H-2B Final 
Rule, is updating its Prevailing Wage Guidance for agricultural and 
nonagricultural programs, and will provide additional training and 
educational material as appropriate.
    The Department will, to the extent feasible and within available 
resources, seek to hire qualified staff, will train staff already on 
board, and if appropriate, will consider establishing a separate PWD 
unit at the Chicago NPC. In addition, the Department will strive to 
provide timely, appropriate guidance to program users and SWAs to 
ensure a successful transition and implementation. We remain confident 
that federalizing the prevailing wage application component will 
instill a high level of efficiency and consistency in the process which 
has been a past problem. This increased efficiency and consistency will 
help ensure more accurate wage determinations, which result in improved 
protections for U.S. workers.
    As stated in the NPRM, the Department strongly believes that 
shifting wage determination activities to NPC staff will reduce the 
risk of job misclassification because of centralized staff experience, 
thereby not only strengthening program integrity, but also ensuring 
consistency in classification across States, resulting in improved 
protections for U.S. workers.
    As discussed in the NPRM, the Department has received numerous 
reports that in cases where job descriptions are complex and contain 
more than one different and definable job opportunity, some SWAs have 
made inconsistent classifications that resulted in inconsistent PWDs. 
Furthermore, where H-2B workers are required to work in several 
different geographic areas that may be in the jurisdiction of several 
SWAs (examples include the New York, New Jersey, Connecticut ``Tri-
state Region'' or the Washington, DC-Maryland-Virginia metropolitan 
area), questions have arisen about where to file a prevailing wage 
request and how that wage should be determined. Utilizing a federalized 
system will alleviate such confusion. Moreover, the Department's 
current prevailing wage guidance requires SWAs refer--with certain 
exceptions--to federally provided OES data to determine the appropriate 
prevailing wage for jobs. Therefore, the NPC can provide the data

[[Page 78029]]

and there is no requirement for any local input or expertise.
    The Department understands the desire for a fixed timeframe within 
which an employer will receive a prevailing wage determination. The 
timeframe depends on a number of factors, including the volume and 
timing of requests received, the method by which the requests are 
received (whether paper or electronic), the complexity of the request, 
and the resources available. Nevertheless, the Department has committed 
as part of the Final Rule to processing employer requests for 
prevailing wage determinations within 30 days of receipt.
    However, the Department acknowledges that this process of obtaining 
a prevailing wage may endure a period of processing time fluctuation as 
a result of the transition. We therefore recommend that, as an initial 
matter, employers filing H-2B applications should file a Prevailing 
Wage Determination Request, Form 9141, with the NPC at least 60 days in 
advance of their initial recruitment efforts. The Department will make 
every effort to process these requests within the 60 days. The 
Department will analyze its experience with application patterns and 
workload, as the NPCs take on the prevailing wage determinations in the 
other programs handled by OFLC. During that time, the Department will 
review not only the level of requests it receives, but the information 
contained in the requests and whether the information received is 
typically sufficient to be able to generate accurate prevailing wages, 
or whether employers are providing deficient information. The 
Department's intent is to substantially reduce the response time for 
prevailing wage determinations and to design procedures, based upon the 
results of its analyses to provide employers with greater certainty in 
their expectation of response time from the NPC.
    One commenter thought the prevailing wages would be based on a 
national average as a result of the centralization in the NPC. That 
commenter misunderstood the proposal; the wages will continue to be 
based on applicable data for the area of intended employment. The 
Department did not propose any change to the methodology used to 
determine the wage rates under the H-2B program and continues to 
support the use of OES data as the basis for the prevailing wage 
determinations. The OES program produces occupational estimates by 
geographic area and by industry. Estimates based on geographic areas 
are available at the national, State, and metropolitan area levels. 
Industry estimates are available for over 450 industry classifications 
at the national level. The industry classifications correspond to the 
sector, 3, 4, and 5-digit North American Industry Classification System 
industrial groups. The OES program also provides data at the substate 
level in addition to the State level. Data is compiled for each 
metropolitan statistical area and for additional areas that completely 
cover the balance of each state. It also offers the ability to 
establish four wage-level benchmarks commonly associated with the 
concepts of experience, skill, responsibility and difficulty variations 
within each occupation.
    In the Final Rule, the Department has revised Sec.  655.10(d) to 
clarify that where the duration of a job opportunity is less than one 
year or less, the prevailing wage determination will be valid for the 
duration of the job opportunity.
2. Automating the PWD Process
    Initially the PWD process will be a manual process. It is the 
Department's goal to allow the PWD activity eventually to be conducted 
electronically between the NPC and the employer. The Department sought 
comment from potential program users on all aspects of its PWD 
proposal, but in particular regarding the required use of an online 
prevailing wage system and corresponding form for interaction with the 
NPC.
    The Department received several comments in support of an 
electronic process. One commenter suggested the centralization of 
prevailing wage determinations be delayed until the electronic process 
was available. Another commenter suggested the electronic process 
should not be mandatory for all employers, since not all employers have 
access to the Internet. One commenter expressed concern that employers 
would use an electronic system to ``shop'' for occupations with the 
lowest wages to use in describing their job opportunities. The 
Department disagrees with the suggestion we delay implementation of the 
prevailing wage function until an electronic version is available. If 
and when the Department implements an electronic application system, it 
customarily makes special provisions for those who cannot access the 
electronic system, and advises the public accordingly. The Department 
appreciates the input on an electronic system and will take the 
comments into consideration should a new system be proposed.
3. Extending the PWD Model to PERM, H-1B/H-1B1, E-3, and H-1C Programs
    The Department received comments on its proposal to extend the 
federalized wage determination process to other permanent and temporary 
worker programs. Some believed that the Department should not include 
other programs in an H-2B rulemaking. One commenter suggested that the 
process should not be extended until the new system has proven to be 
workable. Another commenter was concerned that extending the process to 
these other programs would result in the total elimination of the 
States when enforcement capacity is best kept at the State level. One 
commenter who supported the federalization mentioned that the 
assignment of occupational codes from the Standard Occupational 
Classification (SOC) system is also key and should be reviewed. The SOC 
system is used by many Federal agencies to classify workers into 
occupational categories.
a. H-1B and PERM Programs
    As proposed in the NPRM, for consistency and greater efficiency 
across non-agricultural programs, this Final Rule extends the new 
prevailing wage request processing model to the permanent labor 
certification program, as well as to the H-1B, H-1B1, H-1C and E-3 
specialty occupation nonimmigrant programs. As stated in the NPRM, the 
new process will not alter the substantive requirements of foreign 
labor certification programs, and we anticipate that, at least in the 
foreseeable future, the methodology for determining appropriate wage 
rates will remain much the same as it stands today. Our intent is to 
modernize, centralize, and make the mechanics and analysis behind wage 
determination more consistent. Much as the SWAs do now, the NPCs will 
evaluate the particulars of the employer's job offer, such as the job 
duties and requirements for the position and the geographic area in 
which the job is located, to arrive at the correct PWD based on OES 
data, CBA rates, employer-provided surveys, or other appropriate 
information. The Department's current prevailing wage guidance for non-
agricultural foreign labor certification programs has been in effect 
since 2005 and is posted in the form of a memorandum on the OFLC Web 
site. In the near term, the Department will update and formalize its 
guidance for making prevailing wage determinations to maintain some 
existing procedures and revise others such as to conform to these 
regulations. As program experience administering

[[Page 78030]]

the PWD process grows, the Department may revise its guidance to 
explain and assist employers in navigating the process.
    To implement and standardize the new process, ETA has developed a 
new standard Prevailing Wage Determination Request (PWDR) form for 
employers to use in requesting the applicable wage regardless of 
program or job classification. As stated in the NPRM, the Department is 
considering means by which eventually such requests could be submitted, 
and a prevailing wage provided, electronically.
    For purposes of the permanent labor certification (PERM) program, 
this rule amends the regulations at 20 CFR part 656 to reflect the 
transfer of prevailing wage determination functions from the SWAs to 
the NPCs and makes final the technical changes described in the 
proposed rule.
    For purposes of the H-1B program, this rule amends the regulations 
at 20 CFR part 655 to reflect the transfer of PWD functions from the 
SWAs to the NPCs and makes final the technical changes described in the 
proposed rule. Department regulations covering the H-1B program also 
govern the H-1B1 and E-3 programs, which both require the filing and 
approval of a ``Labor Condition Application,'' or LCA, rather than a 
``labor certification application.'' The Final Rule also amends Sec.  
655.1112 governing the H-1C program, to provide for the federalization 
of prevailing wage determinations.
    As described in the NPRM and included in the Final Rule, under the 
new process, for purposes of H-2B job classifications, NPC staff will 
follow the requirements outlined under new Sec. Sec.  655.10 and 655.11 
when reviewing each position and determining the appropriate wage rate. 
These new regulatory sections are consistent with existing provisions 
at 20 CFR 656.40 and the Department's May 2005 Prevailing Wage 
Determination Policy Guidance, Nonagricultural Immigration Programs, 
but would supersede current regulations and guidance for the H-2B 
program to the extent there are any perceived inconsistencies.
    These new regulatory sections supersede current regulations and 
guidelines for all prevailing wage requests in the H-1B, H-1B1, E-3 and 
PERM programs made on or after January 1, 2010, and for H-1C prevailing 
wage requests made on or after the effective date of this Final Rule. 
The Department appreciates that employers will require some time to 
become accustomed to the new method of securing a prevailing wage 
determination. The SWAs will also need a time of transition to complete 
pending prevailing wage determination requests, just as the NPC will 
require a corresponding time to fully implement the new form and 
process. The Department believes keeping PWD activities with the SWAs 
for PERM, H-1B and related programs until January 2010 will facilitate 
the transition of Federal staff and program users to complete 
federalization of prevailing wage determinations. Therefore, the 
Chicago NPC will begin to provide prevailing wage determinations in 
programs other than H-2B and H-1C on January 1, 2010. Given the limited 
size of the H-1C program, and the possibility it may sunset in 2009, 
the Department believes it can begin processing prevailing wage 
determination requests shortly after this Final Rule takes effect. 
Prevailing wage requests under the H-1C program made prior to the 
effective date of this Final Rule will be governed by the Department's 
current procedures and its 2005 guidance. Any prevailing wage requests 
for other non-H-2B programs governed by this regulation made prior to 
January 1, 2010, must be submitted to the SWA having jurisdiction over 
the area of intended employment and will be valid for the period listed 
on the determination issued by the SWA. Prevailing wage determinations 
issued prior to January 1, 2010, by a SWA will be valid after October 
1, 2010, if so determined by the SWA issuing them, and fully 
enforceable as determined by the applicable regulation (H-1B, H-1B1, E-
3, H-1C or PERM).
b. H-1C Program
    In the same way that the Department is in this Final Rule 
establishing national processing for the obtaining of prevailing wages 
through its National Processing Center for both H-1B (and by extension 
H-1B1 and E-3) and PERM, it will also amend its H-1C regulations to 
incorporate the same changes. This program, whose prevailing wage 
processing amendments were inadvertently removed from the NPRM, 
previously lapsed, but was reauthorized in December 2006, and is 
scheduled to sunset again in December 2009.\5\ The Department has 
determined that it is administratively prudent to move the prevailing 
wage determination function to the Chicago NPC in the H-1C program as 
in the other programs. This affects a very small number of employers 
(only 14 hospitals are eligible to participate) and is consistent with 
the reasoning for federalizing prevailing wage determinations that 
applies to the other programs. As stated in the preamble to the NPRM, 
the conversion to a federalized prevailing wage system has no effect on 
the substantive requirements of foreign labor certification programs or 
on the methodology by which the NPC will determine the prevailing wage 
for workers to be admitted under any of the applicable visas. This 
applies equally to H-1C. In fact, the majority of prevailing wage 
determinations in the H-1C program are based on the wages contained in 
collective bargaining agreements, making the need to obtain a wage 
determination by the NPC frequently unnecessary. Facilities may begin 
submitting H-1C prevailing wage requests to the Chicago NPC on the date 
this Final Rule takes effect.
---------------------------------------------------------------------------

    \5\ The Nursing Relief for Disadvantaged Areas Reauthorization 
Act of 2005, Public Law 109-423, took effect December 20, 2006. The 
Act reauthorized the H-1C nonimmigrant nurses program, a program 
originally created by the Nursing Relief for Disadvantaged Areas Act 
of 1999.
---------------------------------------------------------------------------

4. Section 655.10(b)(3)--Paying the Highest Prevailing Wage Across MSAs
    As proposed in the NPRM, this Final Rule requires that, where a job 
opportunity involves multiple worksites in areas of intended employment 
and cross multiple Metropolitan Statistical Areas (MSAs) in multiple 
counties or States with different prevailing wage rates, an employer 
must pay the highest applicable wage rate of the applicable MSAs 
throughout the term of employment. The U.S. worker responding to 
recruitment and the foreign H-2B worker are entitled to know and rely 
on the wage to be paid for the entire period of temporary employment.
    The Department received comments on this requirement, both in 
support and in opposition. One trade association supported the 
proposal, concluding it would strengthen protections for U.S. workers 
while not adding burden to its members, whom it said already paid the 
highest prevailing wage rate in every MSA. A number of other employer 
associations opposed the proposal, stating it was arbitrary, unfair, 
would artificially increase costs for H-2B labor, and would undermine 
the basic decision-making of many employers, who locate in areas with 
low labor costs in order to save money.
    The Department has decided to retain the requirement that employers 
advertise and pay the highest of the applicable prevailing wages when 
the job opportunity involves multiple worksites across multiple MSAs 
with varying prevailing wage rates for that occupation and at those 
worksites. This provision is retained because it provides greater 
consistency and predictability

[[Page 78031]]

for both employers and the workers and ensures that U.S. workers who 
are interested in the job opportunity would not be deterred due to 
varying wage rates. It also ensures greater protection for workers 
against possible wage manipulation by unscrupulous employers.
5. General Process or Data Integrity Concerns
    Some commenters raised concerns about the integrity of the data 
currently being used for prevailing wage determinations and recommended 
changes to the OES survey itself. Others commented on different aspects 
of the methodology and procedures. One commenter suggested that the 
Department set the minimum wage rate for H-2B workers at or above the 
wage (presumably the adverse effect wage rate) for H-2A workers in that 
State. Another commenter suggested the Department require employers in 
the construction industry to use, first, the Davis-Bacon Act (DBA) 
survey wage rate; second, if no DBA wage existed, the collective 
bargaining agreement rate; and as a last resort, the OES rate, if 
neither of the other rates was available. Another commenter suggested 
that the provision regarding when an employer may utilize a wage 
determination under the Davis-Bacon Act also cover when an employer can 
choose not to utilize that wage rate. One commenter believed that the 
proposal did not correct what they claimed was a problem with the 
Department's Bureau of Labor Statistics (BLS) wage rates being 2 years 
out of date and also expressed concerns that piece rate policies have 
led to depressed wages and suggested that the Department should require 
advance written disclosure of piece rates on the job orders.
    The Department appreciates these suggestions and concerns. However, 
the Department did not propose changes to the sources of data to be 
used for prevailing wage determinations and, therefore, these comments 
are beyond the scope of the current rulemaking. The Department notes 
that the proposed procedures that were retained in the Final Rule 
already cover the use of wages specified in a collective bargaining 
agreement. Similarly, these procedures provide that an employer may use 
the Davis-Bacon wage and that such use is at the employer's option 
unless the employer is a Federal construction contractor. There is a 
similar provision that applies to Service Contract Act wage rates.
    Some commenters suggested that employers should not be allowed to 
submit their own wage surveys. The Department, however, believes that 
employers should continue to have the flexibility to submit pertinent 
wage information and therefore, the Final Rule continues the 
Department's policy of permitting employers to provide an independent 
wage survey under certain guidelines. It also continues to provide for 
an appeal process in the event of a dispute over the applicable 
prevailing wage.

F. Section 655.15--Employer Conducted Pre-Filing Recruitment

    Under the Final Rule, employers will continue to be required to 
test the labor market for qualified U.S. workers at prevailing wages no 
more than 120 days before the date the work must begin (``date of 
need''). This will ensure the jobs are made available to U.S. workers 
most likely to qualify for the positions in question. As described in 
the NPRM and finalized under this rule, U.S. worker recruitment will 
continue to consist of prescribed steps designed to reflect what the 
Department has determined, based on program experience, are most 
appropriate to test the labor market. These steps are similar to those 
required under the current H-2B program. However, application 
processing and consistency will be improved by having employers conduct 
the recruitment before forwarding the recruitment report and 
application to the Department for review. Additionally, we will 
continue the Department's current requirement that recruitment take 
place no more than 120 days before the date of need to ensure jobs are 
advertised to U.S. workers with adequate notice.
    This Final Rule retains the requirement in the proposal that 
employer recruitment efforts be documented and retained for production 
to the Department or other Federal agencies. As stated in the NPRM, the 
recruitment documentation requirements will be satisfied by copies of 
the pages containing the advertisement from the newspapers in which the 
job opportunity appeared and, if appropriate, correspondence signed by 
the employer demonstrating that labor or trade organizations were 
contacted. Documentation of a SWA job order will be satisfied by copies 
of the job order downloaded from the Internet showing the beginning and 
the ending date of the posting or a copy of the job order provided by 
the SWA with the dates of posting listed, or other proof of publication 
from the SWA containing the text of the job order. However, in response 
to public comments, the Final Rule requires record retention for 3 
years, which is 2 years less than the Department originally proposed.
    As proposed, the Final Rule permits employers to place their own 
newspaper advertisements. The Department has revised the proposed 
requirement of three advertisements and will in this Final Rule revert 
to the current requirement of two advertisements. The Department, 
however, has maintained in this Final Rule the proposed requirement 
that one of the two advertisements must be placed in a Sunday edition 
of a newspaper closest to the area of intended employment. The 
Department has also added a clarification that the newspaper chosen 
needs to have a reasonable distribution.
    The Department received several comments that supported the shift 
to a pre-filing recruitment model. One of these commenters recommended 
that the job order process should also be centralized or that timelines 
for posting job orders should be established and SWAs should have staff 
dedicated to working with H-2B job orders. The centralization of the 
job order process was not envisioned by this regulation, and would 
require separate rulemaking. Moreover, posting job orders and referring 
individuals to those jobs is a core function of the SWAs and one that 
remains at the local level in this rule. Additionally, the Department 
believes the SWAs must have the flexibility to assign their limited 
resources based on needs and priorities and declines to establish a 
timeline for SWAs to post job orders.
    The Department received a number of comments about the proposed 
timeframe for pre-filing recruitment; some opposing recruitment so far 
in advance of the date of need and others suggesting the timeframe be 
lengthened. The commenters who were opposed to the proposal generally 
believed that U.S. workers would not be able or willing to commit to 
temporary jobs so far ahead of the actual start date or would indicate 
they would accept the jobs but then fail to report on the actual start 
date. These commenters believed this would result in delays, additional 
costs to employers and the Department, and the late arrival of H-2B 
workers because new applications would have to be filed. One commenter 
opposed the early pre-filing recruitment and believed the result would 
be a false indication that no U.S. workers were available. Another 
commenter opined that employer compliance would be reduced due to the 
pre-filing recruitment. One SWA recommended that the period for 
recruitment be shortened because 120 days in advance is not suitable 
when serious job seekers are looking for

[[Page 78032]]

temporary employment and stating their view that those U.S. workers who 
apply are rarely offered employment because the employer knows foreign 
workers are available. The commenter was further concerned that the 
U.S. workers who are hired that far in advance of the date of need are 
not reliable and will not report for work. In contrast, two commenters 
suggested a longer recruitment period--one recommended 180 days in 
advance of the date of need--to provide employers with greater 
flexibility. The Department declines to extend the period of 
recruitment to 180 days prior to the date of need because we do not 
believe recruitment that far in advance would be effective given the 
concerns expressed by some of the commenters and our own extensive 
program experience.
    One commenter was concerned that the proposed pre-filing 
recruitment period, when combined with a prevailing wage determination 
request submission 90 days prior to the recruitment start date, 
advanced the timeframe for beginning the application to more than 6 
months prior to the date of need. This commenter stated this was not 
characteristic of a user-friendly program. The Department understands 
that there are trade-offs when designing a new system. In this case, in 
order to provide the employer more flexibility and eliminate an extra 
layer of government bureaucracy, the process must begin earlier.
    One commenter was concerned about the validity of the pre-filing 
recruitment when, after completing the recruitment and submitting the 
application, the employer's needs change and it requires a modification 
to a term or condition on the application. This commenter questioned 
whether the recruitment would be considered a valid test of the labor 
market since, unlike the current process, the underlying application 
and job order will not have been approved prior to the recruitment 
effort. The commenter recommended that the Department provide in the 
regulation that as long as the recruitment was conducted based on the 
job description and offered wage as determined by the CO and the job 
order was accepted by the SWA, the recruitment would be considered 
valid irrespective of any required modifications. It is unclear what 
kind of modifications would be warranted and, therefore, the Department 
cannot respond directly to this comment. For example, if a timely-filed 
application requires a technical modification, but the modification 
cures the defect and allows the application to resume processing, then 
the recruitment will continue to be valid for as long as the petition 
is pending at the NPC and valid for purposes of a final determination. 
However, if an employer's needs change in a way that requires a 
substantive correction in one or more key terms and conditions of 
employment--for example, wages or occupation--the NPC will require that 
the position be readvertised. Changes in terms of employment contained 
in the underlying job offer will trigger a requirement for a new labor 
market test.
    The Department's requirement that the employer submit an acceptable 
job order to the appropriate SWA for posting mandates that the employer 
complete and submit information regarding all of the job duties and 
terms and conditions of the job offer: The job duties, the minimum 
qualifications required for the position (if any), any special 
requirements, and the rate of pay. This information is normally 
submitted to the SWA for acceptance prior to the employer's 
recruitment; as long as the employer's advertisements do not depart 
from the descriptions contained in the accepted job order, they will be 
deemed acceptable by the Department. At the same time, the SWA will be 
the arbiter of the job's acceptability for the job order, and as the 
job order must be accepted prior to the commencing of recruitment in 
this Final Rule, all recruitment must reflect the job as accepted by 
the SWA as well.
    The Department has decided to eliminate the document retention 
requirement in its entirety with respect to applications not certified; 
therefore, any employer whose application has been denied can discard 
the records relevant to the denied application immediately upon 
receiving the denial notice or whenever the decision becomes final if 
the employer appeals the decision. If the denial is overturned, the 
application becomes subject to the document retention requirements for 
approved cases. The Department determined that a document retention 
requirement in such cases serves no governmental purpose and is 
unnecessarily burdensome on employers. The Department would, in 
virtually all such cases, already have copies of the employer's 
supporting documentation rendering such a retention requirement 
unnecessary.
1. Section 655.15(g)--Unions as a Source of Labor
    As proposed, the rule would have required that if the job 
opportunity were in an industry, region and occupation in which union 
recruitment is customary, the appropriate union organization must be 
contacted. A number of commenters were concerned that the proposed 
provision placed too great a reliance on the employer's ability to 
determine what the Department will later decide is ``appropriate for 
the occupation and customary to the industry and area of intended 
employment.'' One of these commenters suggested that even if contacting 
a union may be appropriate in some industries, it would be entirely 
inappropriate in the construction industry and, at a minimum, the 
construction industry should be expressly excluded from this 
requirement under a Final Rule. Another commenter suggested that the 
requirement was unnecessary, as the required newspaper advertising 
would reach the same pool of applicants. Another commenter believed the 
requirement was not authorized by statute and the Department has no 
basis to impose it. Additionally, the commenter expressed concern that 
the requirement also has the potential to subject non-unionized 
employers to ``salting'' campaigns, during which union organizers 
retain employment in union shops for the sole purpose of organizing the 
workforce. According to this commenter, the requirement could unfairly 
and unnecessarily inject the Department into an area in which it should 
not be involved.
    One specialty bar association opined that the requirement to use 
unions as a recruitment source would be unworkable in practice, stating 
that in their experience, unions will not refer workers to non-union 
shops. The commenter recommended the regulation instead use the 
approach of the permanent labor certification program, which requires 
union contact for unionized employers only.
    The Department has considered these comments and agrees with the 
many concerns raised about the proposed requirement, in particular 
concerns about vagueness and ambiguity, and the dilemma employers would 
face in trying to interpret and implement the requirement. Accordingly, 
we have revised the provision to require an employer to contact a labor 
organization only in cases where the employer is already a party to a 
collective bargaining agreement that covers the occupation at the 
worksite that is the subject of the H-2B application. The employer's 
obligation is only to contact the local affiliate of labor organization 
that is party to the existing collective bargaining agreement that 
covers the occupation at the worksite that is the subject of the H-2B 
application.

[[Page 78033]]

2. Section 655.15(i)--Referral of U.S. Workers and SWA Employment 
Verification
    To strengthen the integrity of the Secretary's determination of the 
availability of U.S. workers, and to help bolster employers' confidence 
in their local SWAs and the H-2B program, the Department proposed that 
SWAs verify the employment eligibility of U.S. workers they refer for 
nonagricultural employment services with the SWA. The Department 
received a significant number of comments on the practicality of this 
provision.
    Comments on this subject were received from national associations, 
numerous SWAs, several labor advocacy organizations, and members of 
Congress. Commenters generally opposed the proposal for a variety of 
legal, programmatic, resource-related, and policy-based reasons.
    Most of the commenters were SWAs that noted the burden this new 
provision would create. Many saw it as an unfunded Federal mandate in 
violation of the Unfunded Mandates Reform Act. More than one referred 
to the Department's recent inclusion of the requirement as a condition 
for receiving further labor certification grant funding.
    As stated in the preamble to the NPRM, the Department is not 
insensitive to the resource constraints facing state agencies in their 
administration of the H-2B program. However, as we stated in the NPRM, 
we do not believe that the requirement will result in a significant 
increase in workload or administrative burden not covered by 
Department-provided resources.
    In addition, notwithstanding funding limitations, there is a 
strong, longstanding need for a consistent verification requirement at 
the State government level. The Department is not leaving States to 
their own devices. Precisely to ensure that available Federal funding 
supports verification activities, the Department has added the 
verification requirement as an allowable cost under the foreign labor 
certification grant agreement. The Department also funds State 
employment services under the Wagner-Peyser Act, and for many years 
States have made Wagner-Peyser grant funding a part of their annual 
financial plan. To the extent that State functions related to foreign 
labor certification depend extensively on activities that are already 
part and parcel of the employment service system, State labor agencies 
can continue to rely on Wagner-Peyser to support that portion of 
activity. Ultimately, while cognizant of the challenges posed by 
funding limitations, we expect States to comply as they do with other 
regulatory requirements and other terms and conditions of their foreign 
labor certification grant.
    SWAs also expressed concern about possible discrimination suits. 
The requirement to verify employment eligibility does not violate 
constitutional prohibitions against disparate impact. The eligibility 
requirement is similar to verification requirements to gain access to 
other similar public benefits.
    One SWA said it would be impossible to implement verification of 
work eligibility because they have a virtual one-stop system that is 
self-service for both employers and job seekers and the SWA would be 
unable to certify that applicants referred to those job orders are 
employment-eligible. While we do not disagree that an in-person 
verification requirement may impact the decisions of a limited number 
of otherwise eligible workers, such impact does not outweigh the 
significant value of verification. Moreover, SWAs can respond to any 
possible inconvenience to workers by designating or creating additional 
in-person locations where eligibility can be verified. This is not a 
problem unique to SWAs--workers may be required to travel great 
distances to reach a prospective employer, who then (absent a SWA 
certification) would be required to verify work eligibility. In the 
end, although employment eligibility verification does require some 
amount of extra time and effort, the Department has determined that 
simple convenience must cede to the overarching goal of a legal 
workforce and has drafted its regulations accordingly.
    Several SWAs also pointed out that under the new regulations it 
will be impossible to identify H-2B job orders, especially now that the 
SWA will no longer receive a copy of the application or determine 
prevailing wages and be only responsible for placing the job order. The 
Final Rule now requires the job order carry a notation identifying it 
as a job order to be placed in connection with a future application for 
H-2B workers.
    Several other commenters supported the contention made by the SWAs 
that this requirement will drain SWA resources. A few commenters seem 
to have interpreted this requirement as mandating the use of the ``E-
Verify'' electronic system. However, although both the NPRM and the 
Final Rule require the use of the DHS process, which requires the 
completion of I-9 forms and process, the use of the electronic E-verify 
system is optional.
    The Department's expectation is that SWAs will not expend public 
resources to refer undocumented workers to H-2B job opportunities. The 
employment verification provisions included in this regulation are part 
of a concerted effort--one that includes regulation, written guidance, 
and ongoing outreach and education--to address longstanding weaknesses 
and to strengthen the integrity of the program.
3. Section 655.15(h)--Layoff Provisions
    Under the NPRM, an employer seeking to employ H-2B workers would 
have been required to attest that it is not displacing any similarly 
employed permanent U.S. worker in the occupation in the area of 
intended employment within the period beginning 120 days before the 
date of need and throughout the entire employment of the H-2B 
worker(s). The Department received a number of comments from various 
groups on this provision. We have addressed those below, in conjunction 
with comments on the layoff provisions at Sec.  655.22(k).

G. Section 655.17--Advertising Requirements

    As proposed in the NPRM, the Final Rule requires employers to 
advertise for available U.S. workers. The advertisement must: (1) 
Identify the employer with sufficient clarity to notify the potential 
pool of U.S. workers (by legal and trade name, for example); (2) 
provide a specific job location or geographic area of employment with 
enough specificity to apprise applicants of travel or commuting 
requirements, if any, and where applicants will likely have to reside 
to perform the services or labor; (3) provide a description of the job 
with sufficient particularity to apprise U.S. workers of the duties or 
services to be performed and whether any overtime will be available; 
(4) list minimum education and experience requirements for the 
position, if any, or state that no experience is required; (5) list the 
benefits, if any, and the wage for the position, which must equal or 
exceed the applicable prevailing wage as provided by the NPC; (6) 
contain the word ``temporary'' to clearly identify the temporary nature 
of the position; (7) list the total number of job openings that are 
available, which must be no less than the number of openings the 
employer lists on the application (ETA Form 9141); and (8) provide 
clear contact information to enable U.S. workers to apply for the job 
opportunity. The advertisement cannot contain a job description or 
duties which are in addition to or exceed the duties listed on the 
Prevailing Wage Determination Request or on the application, and must 
not contain terms and conditions of

[[Page 78034]]

employment which are less favorable than those that would be offered to 
an H-2B worker.
    The Department received multiple comments on the newspaper 
advertising requirements. Several commenters believed that the 
requirements, especially the requirement for three ads that was 
proposed in the NPRM (rather than the two required under the current 
program), would increase employer costs and time devoted to the 
application process but not yield additional U.S. workers. The 
requirement for advertising in a Sunday edition of a newspaper was seen 
as particularly objectionable due to the higher costs for Sunday ads 
and the belief that many nonprofessional workers do not read Sunday 
newspaper editions. Some commenters suggested employers should have the 
flexibility to use other recruitment methods, such as Web sites that 
have proved successful in locating seasonal workers. Others were 
concerned that without SWA guidance, employers would have to guess as 
to the correctness of their ads, risking that if the CO subsequently 
determined there were errors in the advertisements, it would be too 
late to get the workers needed. One commenter was concerned that no 
process was provided for requiring an employer to revise its ad if the 
content was determined to be unduly restrictive.
    As previously discussed, this Final Rule requires two newspaper 
advertisements which must include one Sunday edition. Sunday editions 
have traditionally provided the most comprehensive job advertisements 
and many U.S. workers potentially seeking employment would normally 
choose the Sunday paper to review. Employers can, however, always 
conduct more recruitment than is required, such as posting the 
opportunity on job search Web sites.
    One commenter inquired about the process for employers to follow in 
selecting an alternate publication in lieu of one of the newspaper ads. 
Other commenters were concerned about the choice of the specific 
newspaper in which to advertise and believed that the NPC would not be 
able to determine the most appropriate newspaper in all cases. One 
commenter suggested that the SWA should be involved in the process and 
provide guidance regarding newspaper choices. Another commenter asked 
whether there would be specific guidance regarding advertisements for 
live-in jobs, such as those for housekeepers, child monitors, and 
similar positions. The Department believes that staff at the NPC will 
be able to handle such issues. The Department declines in the Final 
Rule to specify the requirements to a high level of detail, as 
appropriate publication may vary, for example by industry or industry 
practice, and as the Department normally issues such guidance in the 
form of Standard Operating Procedures or other policy guidance.

H. Section 655.20--Direct Filing With the NPC and Elimination of SWA 
Role

    Consistent with the proposed rule, the Final Rule eliminates the 
role of the SWAs in accepting and reviewing H-2B labor certification 
applications. Once the Final Rule is effective, employers will file H-
2B applications directly with the NPC, consistent with the transition 
provisions of the regulation and with the Department's specialization 
of its two processing centers effective June 1, 2008. Employers with 
dates of need prior to October 1, 2009, will submit prevailing wage 
determination requests SWA, which will process them under the PWD 
procedures established under Sec.  655.10 of this Final Rule. In the 
long term, under these regulations, each employer will continue to be 
required to place a job order with the appropriate SWA as part of pre-
filing recruitment, and SWAs will continue to place H-2B-associated job 
orders in their respective Employment Service systems. This proposal 
received comments from a broad range of constituencies, including 
employers, employer associations, advocacy organizations, labor unions, 
State agencies, and elected officials. Most of the commenters opposed 
this provision.
    Many commenters remarked that the elimination of the SWA portion of 
the process only shifted activities previously performed by the SWAs to 
the NPCs without actually improving the process. These commenters 
believed that eliminating the duplicate SWA review and increasing the 
Federal role in reviewing applications would result in increased 
delays, particularly when the Department has acknowledged that its 
funding has not kept pace with increased workloads in the H-2B program. 
Others also mentioned possible processing delays and were especially 
concerned that those industries with later dates of need could be 
locked out of the program.
    Other commenters were concerned the new process would result in the 
loss of local labor market and prevailing practice expertise in the 
review process, including checks and balances now in the system, and 
would increase the potential for fraud. These commenters asserted that 
the knowledge and expertise of local staff in reviewing and processing 
applications was essential to the integrity of the H-2B certification 
process. Some commenters also criticized the NPCs for what they view as 
``ignoring their own regulations'' and ``misconstruing the 
certification process.'' Several commenters also believed elimination 
of the duplicate SWA review would result in decreased assistance for 
employers. One SWA stated that employers would be left without a source 
for guidance which would drive up the demand for agents, thereby 
increasing the costs to employers. An employer expressed the opinion 
that the new process would replace longstanding relationships with SWA 
employees and reliable determinations with unpredictable determinations 
and potentially overly stringent penalties.
    The Department remains committed to modernizing the application 
process and continues to believe that the submission of applications 
directly to the NPC is the most effective way of accomplishing this 
goal. Processing of H-2B applications by NPC staff will allow for 
greater consistency for employers, regardless of their industry or 
location, in both the time required and quality of the application 
review. The Department believes that by specializing in H-2B 
application processing, NPC staff will have greater program expertise 
than SWA staff who are often required to implement a number of diverse 
programs during the course of their workday, and will generate 
additional efficiencies in application processing. Therefore, this 
federalized review of applications will lead to more efficient 
processing, greater consistency of review, and more effective 
administration. It will also enable the Department to better identify 
and implement program improvements.
    Eliminating the SWAs' participation in the application review 
process will provide more efficient review of applications, as well as 
greater consistency of review. The Department disagrees that NPC staff 
have insufficient knowledge to undertake this role given that they 
already perform it. In fact, NPC reviewers who currently review H-2B 
applications have, in some cases, more experience with such 
applications than many SWA staff.
    Moreover, the SWAs have not been removed from the process--they 
will continue their traditional role in the recruitment process and 
working with employers on the specifics of the job order. SWAs will be 
responsible for clearing and posting job orders, both intrastate and 
interstate, thus reducing the risk for employers to make mistakes with 
respect to job descriptions,

[[Page 78035]]

minimum requirements, and other application particulars. SWAs will, as 
part of these duties, review the job offer, its terms and conditions, 
any special requirements, and the justifications as part of the SWAs' 
duties to clear and post such orders.

I. Section 655.20--Form Submission and Electronic Filing

    The Final Rule requires employers to submit applications on paper, 
through an information collection (form) modified significantly from 
the current form to reflect an attestation-based filing process. As 
stated in the NPRM, the Department will consider in the future an 
electronic submission system similar to that employed in other programs 
administered by OFLC, should resources be made available.
    The Department received a number of comments from SWAs, a specialty 
bar association, a large trade association, a small-business coalition, 
and several industry groups largely supportive of the potential 
conversion to electronic applications. One commenter encouraged prompt 
migration to electronic filing, as the commenter felt this would make 
program data easier to gather, more accurate, and more shareable across 
federal agencies. A few comments expressed concern that electronic 
filing would be mandatory for everyone, and recommended that, in the 
event the Department converted to electronic submission, it maintain 
paper filing as an option. Two commenters were concerned making 
electronic submission mandatory could cause undue hardship to employers 
that do not have Internet access, are not computer literate, or do not 
have access to a computer. One bar association recommended the 
Department not require electronic filing until the system was error-
free, that any electronic filing system not include system-generated 
denials as the PERM system does, and that any defects receive an RFI. 
The Department takes seriously these recommendations. We will determine 
appropriate timing for the development and implementation of an 
electronic system based on program need and available resources. We 
have learned--as have programs users--from our experience with the 
electronic filing process used in the permanent program, and will apply 
those lessons to any system we institute for the H-2B program.

J. Section 655.21--Supporting Evidence of Temporary Need

    As proposed, this Final Rule provides the employer a variety of 
options for documenting the basis of its temporary need, to be retained 
by the employer and submitted in the event of a Request for Further 
Information (RFI), a post-adjudication audit, a WHD investigation, or 
another agency investigation. As explained in the NPRM, for most 
employers participating in the H-2B program, demonstrating a seasonal 
or peakload temporary need can best be evidenced by summarized monthly 
payroll records for a minimum of one previous calendar year that 
identify, for each month and separately for full-time permanent and 
temporary employment in the requested occupation, the total number of 
workers employed, the total hours worked. Such records, however, are 
not the only means by which employers can choose to document their 
temporary need. The proposed regulation accordingly leaves it to the 
employer to retain other types of documentation, including but not 
limited to work contracts, invoices, client letters of intent, and 
other evidence that demonstrates that the job opportunity that is the 
subject of the application exists and is temporary in nature. Contracts 
and other documents used to demonstrate temporary need would be 
required to plainly show the finite nature of that need by clearly 
indicating an end date to the activity requested.
    The Department's new H-2B temporary labor certification application 
form is designed to require both a short narrative on the nature of the 
temporary need and responses to questions to determine the time of need 
and the basis for the need. The narrative will enable the employer to 
demonstrate in its own words the scope and basis of the need in a way 
that will enable the Department to confirm the need meets the 
regulatory standard, with additional questions on the form providing 
context and clarification. If further clarification is required, the 
RFI process will be employed. The form also contains an attestation to 
be signed under penalty of perjury to confirm the employer's temporary 
H-2B need.
    As explained in the NPRM and consistent with current program 
practice, employers should be wary of using documents demonstrating a 
``season'' in general terms (hotel occupancy rates, weather charts, 
newspaper accounts); in the Department's experience, such generalized 
statements fail to link a season to a specific position sought to be 
filled by the employer, which is required under the program. The 
Department also recognizes that conventional evidence such as payroll 
information may not be sufficient to demonstrate a one-time or 
intermittent need, or seasonal or peakload need in cases in which the 
employer's need has changed significantly from the previous year. In 
such cases, the employer should retain other kinds of documentation 
with the application that demonstrates the temporary need.

K. Section 655.22--Obligations of H-2B Employers and Attestation-Based 
Application

    The Department proposed, and this Final Rule institutes, the shift 
to an attestation-based filing system. The new application form 
contains a series of attestations to confirm employers' adherence to 
its obligations under the H-2B program. The information and 
attestations on the form will provide the necessary assurances for the 
Department to initially verify program compliance. As described in the 
NPRM, the Department anticipates the shift to an attestation-based 
application will have a number of benefits, including a reduction in 
processing times while maintaining program integrity.
    The Department received numerous comments, many of them negative, 
on the move to an attestation-based application. Some commenters 
believed that an attestation-based application would reduce the role of 
the SWA and thus eliminate local expertise; decrease employer 
compliance; increase erroneous approvals; and increase the likelihood 
that the Department will simply ``rubber stamp'' the certifications and 
weaken U.S. worker protections. The Department disagrees with these 
assumptions and conclusions. The Department believes that an 
attestation-based application, backed by audits, is within the 
Secretary's statutory discretion to implement and is an effective means 
to ensure that all statutory and regulatory criteria are met and all 
program requirements are satisfied. Similar approaches have been used 
successfully by the Department in other contexts, such as in the 
current permanent labor certification process.
    One commenter suggested the Department require that the employer 
always be the applicant, even if an agent is used, because neither an 
agent nor the employer would be able to attest to all of the required 
obligations. This commenter also feared that an employer could shield 
itself from responsibility by using an agent for such prohibited acts 
as requiring recruitment fees to be paid by the foreign worker. The 
Department disagrees with this commenter. In the H-2B program, the 
agent simply represents the employer in the labor certification 
process. The employer is ultimately responsible for its obligations 
under the program and it

[[Page 78036]]

is the employer who signs the application form, and attests to the 
veracity of the information provided and that it will meet all of its 
obligations.
    One commenter appeared to confuse the H-2B and H-2A programs. This 
commenter referred to the 50 percent rule, an H-2A program feature, and 
requested that the Department include a grace period for a foreign 
worker to find another employer if dismissed under the 50 percent rule. 
In the current H-2A temporary agricultural program, employers must hire 
a qualified U.S. worker who applies for a position certified under a 
temporary labor certification, if that worker applies during the first 
half of the certified period of employment. The H-2B program has no 
such provision and the Department declines to impose one, especially as 
this was not proposed in the NPRM.
    The Department received a number of comments on the specific 
obligations of H-2B employers outlined in the proposed rule. One 
commenter pointed out a semantic error in proposed Sec.  655.22(a), 
which stated the employer must attest that ``no U.S. workers'' are 
available. The commenter correctly pointed out that an employer cannot 
possibly have such broad knowledge and that the statute does not 
require such knowledge. The Department has deleted that provision. 
There were other comments about word choice and semantics and, where 
appropriate, the Department has changed the wording to make the 
attestations easier to understand.
    The Department has also added language to the provision, in Sec.  
655.22(a), that requires that H-2B job opportunities offer terms and 
working conditions that are ``normal to U.S. workers similarly 
employed'' to clarify that normal is synonymous with not unusual. This 
is within the range of generally accepted meanings of the term. See, 
e.g., Black's Law Dictionary 1086 (8th ed. 2004) (``The term describes 
not just forces that are constantly and habitually operating but also 
forces that operate periodically or with some degree of frequency. In 
this sense, its common antonyms are unusual and extraordinary.''); 
Webster's Unabridged Dictionary 1321 (2d ed. 2001) (supplying ``not 
abnormal'' as one of several definitions). Thus, ``normal'' does not 
require that a majority of employers in the area use the same terms or 
working conditions. If there are no other workers in the area of 
intended employment who are performing the same work activity, the 
Department will look to workers outside the area of intended employment 
to assess the normality of an employer's proposed productivity 
standard.
    Unless otherwise noted, no substantive change is intended. Below, 
we respond to comments on specific obligations and describe substantive 
changes made to those subsections. In cases where the Final Rule 
deletes or adds provisions, the numbering has changed accordingly from 
that published in the NPRM.
1. Section 655.22(a)--U.S. Worker Unavailability
    The Department proposed that employers seeking to hire H-2B workers 
attest there were no U.S. workers in the area of intended employment 
capable of performing the temporary services or labor in the job 
opportunity. Comments on this provision reflected strong concern that 
employers cannot attest to the actual unavailability of U.S. workers, 
but simply that the employer has tested the labor market appropriately 
and in good faith to demonstrate that capable U.S. workers did not 
respond to its recruitment efforts or ultimately were not available 
(either due to lawful rejection by the employer, failure on the 
worker's part to follow through or remain on the job, etc.) to perform 
the labor or services. The Department agrees and has deleted this 
provision from the Final Rule.
2. Section 655.22(f)--Worker Abandonment and Employer Notification to 
the Department and DHS
    The Department's NPRM would have required employers to notify the 
Department and DHS within 48 hours if an H-2B worker separated from 
employment prior to the end date of employment in the labor 
certification. This notification requirement would have also applied if 
the H-2B worker absconded from or abandoned employment prior to the end 
date of employment. This requirement was included to ensure that if the 
basis for the worker's status ended before the end date on the 
application, both DHS and the Department could take appropriate action 
to monitor the program.
    The Department received a number of comments in opposition to this 
requirement, primarily from employers and employer and trade 
associations. Several employer associations shared the concern that, in 
their view, the requirement represented a new and unfair liability for 
employers, opening them up to potential legal action from H-2B 
employees if the employee left to pursue other legal employment before 
the end of the contract period. One association found it problematic, 
given the perception that this worker population is more transient than 
the workforce at large. It also was concerned about the administrative 
burden on employers to comply with the requirement. It asserted that 
employers were unlikely to know the real circumstances of the worker's 
departure, if it was a legal extension or change of status or something 
else. Consistent with a number of other comments either seeking or 
recommending clarification to the notice requirement, this association 
stated that such status determinations are complex legal issues and 
employers should not be required to make them. It also believed that 
the reporting requirement was unlikely to accomplish anything without 
imposing additional significant burdens on employers and that it was 
unlikely that DHS would pursue individuals who are the subject of these 
reports. A small business association agreed about the unreasonableness 
of the potential burden on employers and was concerned that the 
requirement would ask small businesses to become unpaid Immigration 
Service agents responsible for enforcing immigration laws.
    A trade association found the required 48 hours for notification to 
be an extremely limited period of time for notification, and a burden 
on employers. It recommended that, if the requirement were continued, 
it should be extended to 30 days. Further, this trade association 
recommended that DHS create a simple reporting method to allow 
employers to provide the information directly through the Internet or 
by telephone. The requirement was described as too vague and not 
providing enough specifics as to when the employer would be required to 
do such notification.
    An individual employer found insufficient safeguards in the 
proposal, as there was no indication of actions that the bureaucracy at 
the Department or DHS would take based on the information. The employer 
wanted the two departments to be more specific as to how the 
information was to be used.
    An employer agent believed the requirement was inappropriate in 
these regulations, as it was tangential to the Department's role 
regarding the availability of U.S. workers or preventing adverse affect 
on U.S. workers, and believed that it created additional confusion and 
potential liability for employers. Similarly, an employer association 
thought the requirement inappropriate and did not clearly outline the 
process by which employers would make such notifications. Additionally, 
the employer association asked for

[[Page 78037]]

additional guidance as to what information would be required for 
employers to document separation or job abandonment and was concerned 
that violations of this provision could lead to debarment from future 
participation in the program.
    The Department reviewed the comments received on this specific 
reporting requirement and the concerns raised by the employers and 
associations on its implementation. The Department acknowledges that 
many of these concerns have merit, and has therefore sought to provide 
clarifications and limitations in the Final Rule to address these 
concerns. The Department did not, however, discern sufficient 
justification from these comments to eliminate the requirement in its 
entirety. The notification is necessary in all circumstances because 
the early separation of a worker impacts not only the rights and 
responsibilities of the employer and worker but also implicates DOL's 
and DHS's enforcement responsibilities. Although any abscondment is a 
loss to the employer, the Government requires notification to be able 
to better track workers who are in the country on a temporary basis 
with limited work authorization.
    The Department acknowledges the need for clarification in the 
provision to ensure that the 48-hour requirement begins to run only 
when the abandonment is actually discovered. The Department has 
therefore added language to the provision clarifying that the employer 
must notify DOL no later than 2 work days after such abandonment or 
termination is discovered by the employer. The Department has added 
further clarification to ensure that employers must meet the identical 
standards for notification to DOL as to DHS, so that an abscondment 
occurs when the worker has not reported for work for a period of 5 
consecutive work days without the consent of the employer to that non-
reporting. This is intended to clarify for the employer that the same 
standard of reporting applies across both agencies, making it easier on 
the employer to make the report. There is no requirement that the 
notification be made by certified mail, however. A file copy of a 
letter sent by normal U.S. mail, with notation of the posting date, 
will suffice. However, in addition, the Department revised the 
notification requirement to reflect a time period of no later than 2 
work days after the employer discovers the employee has absconded, 
which, consistent with DHS, has been defined as 5 consecutive work days 
of not reporting for work. To make the standard further consistent 
across agencies, for purposes of this provision the Department will 
defer to DHS on the definition of the term ``working day.''
3. Section 655.22(g)--Deductions and Prohibition on Transfer of Costs
    The NPRM prohibited deductions by the employer or any third party, 
including a recruiter, for any expenses including recruitment fees and 
any other deductions not expressly permitted by law. Both worker 
advocacy organizations and an employer of H-2B workers commented that 
the provision was confusing and ambiguous. Worker advocates objected 
that it was unclear whether employees could be required to pay 
recruiting costs directly, while an employer objected to the payment of 
recruiting costs that were not clearly defined in the proposal. We 
agree that the rule as proposed was confusing. The confusion resulted 
in part from the fact that employer cost shifting is addressed 
elsewhere in the regulations, in Sec.  655.22(j). Further, cost 
shifting by third parties presents an identical problem under the H-2A 
program but was dealt with in a different manner in the NPRM. 
Accordingly we are revising the language concerning cost shifting by 
third parties to mirror Sec.  655.105(p) of the H-2A Final Rule to read 
as follows: ``The employer has contractually forbidden any foreign 
labor contractor or recruiter whom the employer engages in 
international recruitment of H-2A workers to seek or receive payments 
from prospective employees, except as provided for in DHS regulations 
at 8 CFR 214.2(h)(5)(xi)(A).''
    The Final Rule makes clear that recruiters may not pass on expenses 
to H-2B workers. Examples of exploitation of foreign workers, who in 
some instances have been required to give recruiters thousands of 
dollars to secure a job, have been widely reported. The Department is 
concerned that workers who heavily indebt themselves to secure a place 
in the H-2B program may be subject to exploitation in ways that would 
adversely affect the wages and working conditions of U.S. workers by 
creating conditions akin to indentured servitude, driving down wages 
and working conditions for all workers, foreign and domestic. We 
believe that requiring employers to incur the costs of recruitment is 
reasonable, even when taking place in a foreign country. Employers may 
easily band together for purposes of recruitment to defray costs. The 
fact that a recruiter is essential to the securing of such worker does 
not dissuade the Department from requiring the employer to bear the 
expense; rather, it underscores the classification of that payment as a 
cost allocable to the employer.
    The Department recognizes that its power to enforce regulations 
across international borders is constrained. However, it can and should 
do as much as possible in the U.S. to protect workers from unscrupulous 
recruiters. Consequently, the Department is requiring that the employer 
make, as a condition of applying for labor certification, the 
commitment that the employer is contractually forbidding any foreign 
labor contractor or recruiter whom the employer engages in 
international recruitment of H-2B workers to seek or receive payments 
from prospective employees.
    The Department has also revised this section in the Final Rule to 
omit restrictions on deductions that are already covered in Sec.  
655.22(j), and we are incorporating the following language which is 
identical to the language in 20 CFR 655.104(p) of the H-2A Final Rule: 
``The employer must make all deductions from the worker's paychecks 
that are required by law. The job offer must specify all deductions not 
required by law that the employer will make from the worker's paycheck. 
All deductions must be reasonable. However, an employer subject to the 
FLSA may not make deductions that would violate the FLSA.''
4. Section 655.22(h) [(g) in Final Rule]--Basis for Offered Wage
    This provision requires that the offered wage not be based on 
commission, bonuses, or other incentives unless the employer guarantees 
that the wage paid will equal or exceed the prevailing wage. The second 
sentence of the proposed provision further stated that ``the offered 
wage shall be held to exclude any deductions for reimbursement of the 
employer or any third party by the employee for expenses in connection 
with obtaining or maintaining the H-2B employment including but not 
limited to international recruitment, legal fees not otherwise 
prohibited by this section, visa fees, items such as tools of the 
trade, and other items not expressly permitted by law.'' This sentence 
received several comments. A worker's rights advocacy group claimed the 
Department will not achieve its objective of protecting foreign workers 
from paying fees that should be paid by the employer. This commenter 
provided an example of a practice by one employer who required workers 
to pay for tests to determine their welding and fitting skills in 
preparation for employment in the United States. This

[[Page 78038]]

commenter further recommended that this section should clarify that 
costs paid directly by workers are de facto deductions for the purpose 
of calculating compliance with the offered wage, even if employers do 
not directly deduct them and also that DOL should clarify its position 
on which costs are considered to benefit employers and thus require 
reimbursement and include specific examples of such costs. This 
commenter also believed that similar language in the FLSA was 
confusing. The Department appreciates the detailed analysis provided by 
this commenter, but we believe the statutory requirements, which are 
based on decades of administration of the Federal wage and hour laws, 
are clear and that it is not necessary to make the recommended changes.
5. Section 655.22(i) [(h) in Final Rule]--Position Is Temporary and 
Full-Time
    The Department proposed that an employer seeking to employ H-2B 
workers be required to attest that the job opportunity is for a full-
time, temporary position. One commenter suggested the proposed 
regulation could harm U.S. workers by guaranteeing full-time work for 
the period to foreign workers, while there is no such guarantee 
provided to U.S. workers in any seasonal position. The commenter also 
stated that while employers can state their intention to hire temporary 
workers full-time, if the weather does not cooperate, the employer may 
have no choice but to reduce hours in a particular week and that under 
this provision, the employer would not be able to do this, causing 
significant harm to the business and the U.S. workers whose hours would 
need to be reduced even further in order to ensure that foreign workers 
were paid a full-time wage. The commenter recommended a revised 
attestation stating: ``The job opportunity is a bona fide, temporary 
position and hours worked will be comparable to the full time hours 
worked by associates in the same position at the employment site.'' As 
stated in the preamble to the NPRM, the H-2B program has always 
required that the positions being offered be temporary and full-time in 
nature, and the Department recognizes that some industries, occupations 
and States have differing definitions of what constitutes full-time 
employment. For example, certain landscaping positions are often 
classified as full-time for a 35-hour work week. To provide additional 
clarity, the Department, in Sec.  655.4 has provided a definition of 
full-time employment that reflects our experience in the administration 
of this program. We will continue to make determinations of whether 
work is full-time for foreign labor certification purposes based on the 
facts, program experience, customary practice in the industry, and any 
investigation of the attestation. The Department has therefore decided 
to retain the proposed language.
6. Section 655.22(k) [(i) in Final Rule]--Layoff Provisions
    Under the NPRM, an employer seeking to employ H-2B workers would 
have been required to attest that it is not displacing any similarly 
employed U.S. worker(s) in the occupation in the area of intended 
employment within the period beginning 120 days before the date of need 
and throughout the entire employment of the H-2B worker. The Department 
received a number of comments from various groups on this provision.
    A number of commenters favored the requirement, noting that it 
assisted efforts to ensure that employers cannot lay off U.S. workers 
after seeking to hire H-2B workers to perform the same services. Other 
commenters, however, had concerns regarding the implementation of the 
prohibition and the potential liability.
    Several commenters were concerned that the requirement to contact 
former employees who had been laid off would be onerous, given the 
difficulties in reaching what is purportedly a transient population, 
making such contact unduly burdensome. The Department finds this 
argument unpersuasive. The commenter did not support the summary 
statements that all temporary or seasonal help is transient and 
rootless in the communities in which the work is performed. Even 
assuming that such workers do not have lasting ties to the employer, 
employers generally maintain continuing contact with former employees 
for many purposes--including, but not limited to, the provision of 
payroll tax information the following year and the transfer or 
disposition of benefits (including unemployment benefits). Moreover, by 
limiting the requirement for such contact to the 120 days or less 
before the employer's date of need for the H-2B workers, the employer's 
last contact information would likely be current, making such contact, 
generally speaking, relatively simple.
    One commenter asserted that the layoff provision conflicts with the 
definition of seasonality, noting that by definition a seasonal 
employee will always be laid off within the period set forth in an 
annual cycle. An employer association also objected to the provision on 
the ground that requiring the consideration of U.S. workers would force 
employers who laid off U.S. workers at the end of one season to hire 
them again at the commencement of the next season because the timing 
would put the next season within the 120-day window.
    In response to these comments, the Department has limited the 
applicability of the layoff provision to 120 days on either side of the 
date of need. This broad period of time, covering two thirds of the 
year, will protect U.S. workers near the time of recruiting for and 
hiring H-2B workers, which is when U.S. workers are most vulnerable, 
but avoids the complications of overlapping seasons noted by some 
commenters.
    The Department notes that much of the concern of those commenters 
regarding the re-hiring of U.S. workers stems from a belief that such 
workers will not show up or be interested in being re-hired. But, by 
limiting the applicability of the provision to within 120 days of the 
date of need (as well as the actual occupation and the area of intended 
employment of the sought-after H-2B certification), this provision 
affords laid off workers a reasonable opportunity to apply for 
vacancies for which they qualify, striking an appropriate balance 
between worker protection and employer needs.
    Some commenters noted the need for a strengthening of the layoff 
provision, calling for additional safeguards against massive layoffs of 
U.S. workers by strengthening requirements for how employers will 
demonstrate they have made efforts to contact former employees. The 
Department declines to do so at this time. Employers will be allowed to 
document their contact of former employees using any objective means at 
their disposal in a manner guaranteed to ensure a good faith contact 
effort has been made. The Department does not have evidence at this 
time that employers will engage in fraudulent behavior with respect to 
this requirement. The Department will monitor this attestation, and all 
other employer attestations, through post-certification audits and will 
note the need for program modifications through that process.
7. Section 655.22(l) [(j) in Final Rule]--Prohibition Against Payments
    As in the proposal, the Final Rule requires that an employer attest 
that it has not and will not shift the costs of preparing or filing the 
H-2B temporary labor certification application to the temporary worker, 
including the costs of domestic recruitment or attorneys' and agent 
fees. The domestic recruitment, legal, and other costs associated with

[[Page 78039]]

obtaining the labor certification are business expenses necessary for 
or, in the case of legal fees, desired by, the employer to complete the 
labor certification application and labor market test. The employer's 
responsibility to pay these costs exists separate and apart from any 
benefit that may accrue to the foreign worker. Prohibiting the employer 
from passing these costs on to foreign workers allows the Department to 
protect the integrity of the process and protect the wages of the 
foreign worker from deterioration by unwarranted deduction. The 
Department will continue to permit employers, consistent with the Fair 
Labor Standards Act (FLSA), to make deductions from a worker's pay for 
the reasonable cost of furnishing housing and transportation, as well 
as worker expenses such as passport and visa fees (see fuller 
discussion below concerning transportation costs under the FLSA).
    This section, pertaining to the receipt of payments by the employer 
from the employee or a third party, received many comments. Some of the 
commenters opposed the provision in its entirety, arguing it will make 
the program prohibitively expensive for employers. Other commenters 
were concerned the requirement would eliminate the current practice of 
having the employee pay for part of the recruiting and visa costs as an 
incentive for the workers not to leave the employer. Others supported 
this provision in its entirety, while still others agreed with the 
intent of the provision but found the language ambiguous. One specialty 
bar association not only supported the prohibition on cost-shifting for 
recruitment, but asked the Department to strengthen the prohibition 
language. However, this commenter was adamantly opposed to the 
prohibition against foreign workers paying the attorney's fees. The 
Department disagrees with the comments opposing this provision. We 
believe that these expenses are the costs of doing business and should 
be borne by the employer. The Department took all comments into 
consideration and modified the provision to clarify and strengthen the 
prohibition. The Final Rule applies the prohibition to attorneys and 
agents, not simply to employers. As rewritten, the provision eliminates 
reference to payments from ``any other party;'' it applies only to 
payments from the employees.
    This section in the NPRM also would have prohibited the employer 
from receiving payments ``of any kind for any activity related to the 
labor certification'' process. The Department received a comment 
arguing that the phrase ``received payment * * * as an incentive or 
inducement to file'' is ambiguous. The Department took this comment 
into consideration and removed reference to incentive or inducement.
    In addition, and based upon the comments received, the Department 
has revised the provision on cost-shifting for greater clarity. As 
mentioned above, the Department has eliminated the qualifying language 
regarding the incentive and inducement to filing, again to simplify for 
all employers engaging in recruitment activities what is prohibited. By 
simplifying the provision to prohibit employers who submit applications 
from seeking or receiving payment for any activity related to the 
recruitment of H-2B workers, the Department hopes to achieve consistent 
and enforceable compliance.
    With regard to the application of the FLSA to H-2B workers' inbound 
subsistence and transportation costs, we note that a number of district 
courts have issued decisions on this question. See De Leon-Granados v. 
Eller & Sons Trees Inc., 2008 WL 4531813 (N.D. Ga., Oct. 7, 2008); 
Rosales v. Hispanic Employee Leasing Program, 2008 WL 363479 (W.D. 
Mich. Feb. 11, 2008); Rivera v. Brickman Group, 2008 WL 81570 (E.D. Pa. 
Jan. 7, 2008); Castellanos-Contreras v. Decatur Hotels, LLC, 488 F. 
Supp. 2d 565 (E.D. La. 2007); Recinos-Recinos v. Express Forestry Inc., 
2006 WL 197030 (E.D. La. Jan. 24, 2006). These district courts have 
referenced the appellate court's decision in Arriaga v. Florida Pacific 
Farms, L.L.C., 305 F.3d 1228 (11th Cir. 2002), which held that growers 
violated the minimum wage provisions of the FLSA by failing to 
reimburse farmworkers during their first workweek for travel expenses 
(and visa and immigration fees) paid by the workers employed by the 
growers under the H-2A program. Under the FLSA, pre-employment expenses 
incurred by workers that are properly business expenses of the employer 
and primarily for the benefit of the employer are considered ``kick-
backs'' of wages to the employer and are treated as deductions from the 
employees' wages during the first workweek. 29 CFR 531.35. Such 
deductions must be reimbursed by the employer during the first workweek 
to the extent that they effectively result in workers' weekly wages 
being below the minimum wage. 29 CFR 531.36. Although the employer in 
the Arriaga case did not itself make direct deductions from the 
workers' wages, the Court held that the costs incurred by the workers 
amounted to ``de facto deductions'' that the workers absorbed, thereby 
driving the workers' wages below the statutory minimum. The Eleventh 
Circuit reasoned that the transportation and visa costs incurred by the 
workers were primarily for the benefit of the employer and necessary 
and incidental to the employment of the workers and stated that 
``[t]ransportation charges are an inevitable and inescapable 
consequence of having H-2A foreign workers employed in the United 
States; these are costs which arise out of the employment of H-2A 
workers.'' Finally, the court held that the growers' practices violated 
the FLSA minimum wage provisions, even though the H-2A regulations 
provide that the transportation costs need not be repaid until the 
workers complete 50 percent of the contract work period. The Eleventh 
Circuit noted that the H-2A regulations require employers to comply 
with applicable federal laws, and in accepting the contract orders in 
this case, the ETA Regional Administrator informed the growers in 
writing that their obligation to pay the full FLSA minimum wage is not 
overridden by the H-2A regulations.
    The Department believes that the better reading of the FLSA and the 
Department's own regulations is that relocation costs under the H-2A 
program are not primarily for the benefit of the employer, that 
relocation costs paid for by H-2A workers do not constitute kickbacks 
within the meaning of 29 CFR 531.35, and that reimbursement of workers 
for such costs in the first paycheck is not required by the FLSA.
    The FLSA requires employers to pay their employees set minimum 
hourly wages. 29 U.S.C. 206(a). The FLSA allows employers to count as 
wages (and thus count toward the satisfaction of the minimum wage 
obligation) the reasonable cost of ``furnishing [an] employee with 
board, lodging, or other facilities, if such board, lodging, or other 
facilities are customarily furnished by such employer to his 
employees.'' 29 U.S.C. 203(m). The FLSA regulations provide that 
``[t]he cost of furnishing `facilities' found by the Administrator to 
be primarily for the benefit or convenience of the employer will not be 
recognized as reasonable [costs within the meaning of the statute] and 
may not therefore be included in computing wages.'' 29 CFR 531.3(d)(1). 
The FLSA regulations further provide examples of various items that the 
Department has deemed generally to be qualifying facilities within the 
meaning of 29 U.S.C. 203(m) (see also 29 CFR 531.32(a)), as well as 
examples of

[[Page 78040]]

various items that the Department has deemed generally not to be 
qualifying facilities (see 29 CFR 531.3(d)(2), 29 CFR 531.32(c)).
    Separate from the question whether items or expenses furnished or 
paid for by the employer can be counted as wages paid to the employee, 
the FLSA regulations contain provisions governing the treatment under 
the FLSA of costs and expenses incurred by employees. The regulations 
specify that wages, whether paid in cash or in facilities, cannot be 
considered to have been paid by the employer and received by the 
employee unless they are paid finally and unconditionally, or ``free 
and clear.'' 29 CFR 531.35. Thus, ``[t]he wage requirements of the Act 
will not be met where the employee `kicks-back' directly or indirectly 
to the employer or to another person for the employer's benefit the 
whole or part of the wage delivered to the employee. This is true 
whether the `kick-back' is made in cash or in other than cash. For 
example, if the employer requires that the employee must provide tools 
of the trade that will be used in or are specifically required for the 
performance of the employer's particular work, there would be a 
violation of the Act in any workweek when the cost of such tools 
purchased by the employee cuts into the minimum or overtime wages 
required to be paid him under the Act.'' Id. The regulations treat 
employer deductions from an employee's wages for costs incurred by the 
employer as though the deductions were a payment from the employee to 
the employer for the items furnished or services rendered by the 
employer, and applies the standards set forth in the ``kick-back'' 
provisions at 29 CFR 531.35 to those payments. Thus, ``[d]eductions for 
articles such as tools, miners' lamps, dynamite caps, and other items 
which do not constitute `board, lodging, or other facilities' '' are 
illegal ``to the extent that they reduce the wages of the employee in 
any such workweek below the minimum required by the Act.'' 29 CFR 
531.36(b).
    In sum, where an employer has paid for a particular item or 
service, under certain circumstances it may, pursuant to 29 U.S.C. 
203(m), count that payment as wages paid to the employee. On the other 
hand, when an employee has paid for such an item or service, an 
analysis under 29 CFR 531.35 is required to determine whether the 
payment constitutes a ``kick-back'' of wages to the employer that 
should be treated as a deduction from the employee's wages.
    The Arriaga court seems to have assumed that all expenses 
necessarily fall into one of these two categories--that either they 
qualify as wages under 29 U.S.C. 203(m) or they constitute a ``kick-
back'' under 29 CFR 531.35. See Arriaga, 305 F.3d at 1241-42 (stating 
that if a payment ``may not be counted as wages'' under 29 U.S.C. 
203(m), then ``the employer therefore would be required to reimburse 
the expense up to the point the FLSA minimum wage provisions have been 
met'' under 29 CFR 531.35 and 29 CFR 531.36). That is incorrect. For 
example, if an employer were to give an employee a valuable item that 
was not ``customarily furnished'' to his or her employees, the employer 
would not be able to count the value of that item as wages under 29 
U.S.C. 203(m) unless the employer ``customarily furnished'' the item to 
his or her employees. Nevertheless, since the employee paid nothing for 
that item, it clearly would not constitute a ``kick-back'' of wages to 
the employer that would have to be deducted from the employee's wages 
for purposes of determining whether the employer met its minimum wage 
obligations under 29 U.S.C. 206(a). Similarly, if a grocery employee 
bought a loaf of bread off the shelf at the grocery store where he or 
she worked as part of an arms-length commercial transaction, the 
payment made by the employee to the employer would not constitute a 
``kick-back'' of wages to the employer, nor would the loaf of bread 
sold by the employer to the employee be able to be counted toward the 
employee's wages under 29 U.S.C. 203(m). Both parties would presumably 
benefit equally from such a transaction--it would neither be primarily 
for the benefit of the employer, nor would it be primarily for the 
benefit of the employee.
    Expenses paid by an employer that are primarily for the employer's 
benefit cannot be counted toward wages under 29 U.S.C. 203(m). See 29 
CFR 531.3(d). Similarly, expenses paid by an employee cannot constitute 
a ``kick-back'' unless they are for the employer's benefit. See 29 CFR 
531.35. An analysis conducted under 29 U.S.C. 203(m) determining that a 
particular kind of expense is primarily for the benefit of the employer 
will thus generally carry through to establish that the same kind of 
expense is primarily for the benefit of the employer under 29 CFR 
531.35. Each expense, however, must be analyzed separately in its 
proper context.
    The question at issue here is whether payments made by H-2B 
employees for the cost of relocating to the United States, whether paid 
to a third party transportation provider or paid directly to the 
employer, constitutes a ``kick-back'' of wages within the meaning of 29 
CFR 531.35. If the payment does constitute a ``kick-back,'' then the 
payment must, as the Arriaga court decided, be counted as a deduction 
from the employee's first week of wages under the FLSA for purposes of 
determining whether the employer's minimum wage obligations have been 
met.
    The Department does not believe that an H-2B worker's payment of 
his or her own relocation expenses constitutes a ``kick-back'' to the 
H-2B employer within the meaning of 29 CFR 531.35. It is a necessary 
condition to be considered a ``kick-back'' that an employee-paid 
expense be primarily for the benefit of the employer. The Department 
need not decide for present purposes whether an employee-paid expense's 
status as primarily for the benefit of the employer is a sufficient 
condition for it to qualify as a ``kick-back,'' because the Department 
does not consider an H-2B employee's payment of his or her own 
relocation expenses to be primarily for the benefit of the H-2B 
employer.
    Both as a general matter and in the specific context of guest 
worker programs, employee relocation costs are not typically considered 
to be ``primarily for the benefit'' of the employer. Rather, in the 
Department's view, an H-2B worker's inbound transportation costs either 
primarily benefit the employee, or equally benefit the employee and the 
employer. In either case, the FLSA and its implementing regulations do 
not require H-2B employers to pay the relocation costs of H-2B 
employees. Arriaga and the district courts that followed its reasoning 
in the H-2B context misconstrued the Department's regulations and are 
wrongly decided.
    As an initial matter, any weighing of the relative balance of 
benefits derived by H-2B employers and employees from inbound 
transportation costs must take into account the fact that H-2B workers 
derive very substantial benefits from their relocation. Foreign workers 
seeking employment under the H-2B nonimmigrant visa program often 
travel great distances, far from family, friends, and home, to accept 
the offer of employment. Their travel not only allows them to earn 
money--typically far more money than they could have in their home 
country over a similar period of time--but also allows them to live and 
engage in non-work activities in the U.S. These twin benefits are so 
valuable to foreign workers that these workers have proven willing in 
many instances to pay recruiters thousands of dollars (a practice that 
the Department is now taking measures to curtail) just to gain access 
to the job opportunities, at times

[[Page 78041]]

going to great lengths to raise the necessary funds. The fact that H-2B 
workers travel such great distances and make such substantial 
sacrifices to obtain work in the United States indicates that the 
travel greatly benefits those employees.
    Most significantly, however, the Department's regulations 
explicitly state that ``transportation furnished employees between 
their homes and work where the travel time does not constitute hours 
worked compensable under the Act and the transportation is not an 
incident of and necessary to the employment'' are qualifying 
``facilities'' under 29 U.S.C. 203(m). 29 CFR 531.32(a). As qualifying 
facilities, such expenses cannot by definition be primarily for the 
benefit of the employer. 29 CFR 531.32(c). The wording of the 
regulation does not distinguish between commuting and relocation costs, 
and in the context of the H-2B program, inbound relocation costs fit 
well within the definition as they are between the employee's home 
country and the place of work.
    The Arriaga court ruled that H-2A relocation expenses are primarily 
for the benefit of the employer in part because it believed that under 
29 CFR 531.32, ``a consistent line'' is drawn ``between those costs 
arising from the employment itself and those that would arise in the 
ordinary course of life.'' 305 F.3d at 1242. The court held that 
relocation costs do not arise in the ordinary course of life, but 
rather arise from employment. Id. Commuting costs and relocation costs 
cannot be distinguished on those grounds, however. Both kinds of 
expenses are incurred by employees for the purpose of getting to a work 
site to work. Moreover, an employee would not rationally incur either 
kind of expense but for the existence of the job. Both the employer and 
the employee derive benefits from the employment relationship, and, 
absent unusual circumstances, an employee's relocation costs to start a 
new job cannot be said to be primarily for the benefit of the employer.
    That is not to say that travel and relocation costs are never 
properly considered to be primarily for the benefit of an employer. The 
regulations state that travel costs will be considered to be primarily 
for the benefit of the employer when they are ``an incident of and 
necessary to the employment.'' 29 CFR 531.32(c). This might include, 
for example, a business trip, or an employer-imposed requirement that 
an employee relocate in order to retain his or her job. Relocation 
costs to start a new job will rarely satisfy this test, however.
    In a literal sense it may be necessary to travel to a new job 
opportunity in order to perform the work, but that fact, without more, 
does not render the travel an ``incident'' of the employment. Inbound 
relocation costs are not, absent unusual circumstances, any more an 
``incident of * * * employment'' than is commuting to a job each day. 
Indeed, inbound relocation costs are quite similar to commuting costs 
in many respects, which generally are not considered compensable. Cf. 
DOL Opinion Letter WH-538 (Aug. 5, 1994) (stating that travel time from 
home to work is ``ordinary home-to-work travel and is not compensable'' 
under the FLSA); Vega ex rel. Trevino v. Gasper, 36 F.3d 417 (5th Cir. 
1994) (finding travel to and from work and home not compensable 
activity under Portal-to-Portal Act). In fact, there is no reason to 
believe that the drafters of 29 U.S.C. 203(m) and 206(a) ever intended 
for those provisions to indirectly require employers to pay for their 
employees' relocation and commuting expenses. To qualify as an 
``incident of * * * employment'' under the Department's regulations, 
transportation costs must have a more direct and palpable connection to 
the job in question than merely serving to bring the employee to the 
work site.
    Taking the Arriaga court's logic to its ultimate conclusion would 
potentially subject employers across the U.S. to a requirement to pay 
relocation expenses for all newly hired employees--or at least to pay 
relocation expenses for all newly hired foreign employees, since 
international relocation is perhaps less ``ordinary'' than 
intranational relocation. That simply cannot be correct. The language 
of 29 U.S.C. 203(m) and 206(a) and their implementing regulations 
provide a very thin reed on which to hang such a seismic shift in 
hiring practices, particularly so many years after those provisions 
have gone into effect. Nor does the fact that H-2B workers are 
temporary guest workers change the equation. Even assuming that H-2B 
workers derive somewhat less benefit from their jobs because they are 
only temporary, that fact alone would not render the worker's 
relocation expenses an ``incident'' of the temporary job. If it did, 
ski resorts, camp grounds, shore businesses, and hotels would all be 
legally required to pay relocation costs for their employees at the 
beginning of each season--again, a result that is very difficult to 
square with the language and purpose of 29 U.S.C. 203(m) and 29 CFR 
531.35.
    A stronger argument could be made, perhaps, that employers derive a 
greater-than-usual benefit from relocation costs when they hire foreign 
guest workers such as H-2B workers, because employers generally are not 
allowed to hire guest workers unless they have first attempted but 
failed to recruit U.S. workers. Thus, such employers have specifically 
stated a need to hire non-local workers. Given the substantially 
greater benefit that foreign guest workers generally derive from work 
opportunities in the United States than they do from employment 
opportunities in their home countries, however, the Department believes 
that this at most brings the balance of benefits between the employer 
and the worker into equipoise. Moreover, the employer's need for non-
local workers does nothing to transform the relocation costs into an 
``incident'' of the job opportunity in a way that would render the 
employee's payment of the relocation expenses a ``kick-back'' to the 
employer. If it did, courts would soon be called upon every time an 
employer hired an out-of-state worker to assess just how great the 
employer's need for the out-of-state employee was in light of local 
labor market conditions. Conversely, the courts would also have to 
inquire into the employee's circumstances, and whether the employee had 
reasonably comparable job prospects in the area from which the employee 
relocated. Again, the Department does not believe such a result is 
consistent with the text or the intent of the FLSA or the Department's 
implementing regulations.
    It is true, of course, that H-2B employers derive some benefit from 
an H-2B worker's inbound travel. To be compensable under the FLSA, 
however, the question is not whether an employer receives some benefit 
from an item or paid-for cost, but rather whether they receive the 
primary benefit. Significantly, despite the fact that employers nearly 
always derive some benefit from the hiring of state-side workers as 
well, such workers' relocation costs generally have not been considered 
to be ``primarily for the benefit of the employer.'' That is so because 
the worker benefits from the travel either more than or just as much as 
the employer.
    In sum, the Department believes that the costs of relocation to the 
site of the job opportunity generally is not an ``incident'' of an H-2B 
worker's employment within the meaning of 29 CFR 531.32, and is not 
primarily for the benefit of the H-2B employer. The Department states 
this as a definitive interpretation of its own regulations and expects 
that courts will defer to that interpretation.

[[Page 78042]]

8. Section 655.22(m) [(k) in Final Rule]--Bona Fide Inquiry
    As proposed in the NPRM, the Final Rule at Sec.  655.22(k) requires 
an employer that is a job contractor to attest that if it places its 
employees at the job sites of other employers, it has made a written 
bona fide inquiry into whether the other employer has displaced or 
intends to displace a similarly employed U.S. worker within the area of 
intended employment within the 120 days of the date of need. To comply 
with this attestation, the Department is requiring the employer to 
inquire in writing to and receive a written response from the employer 
where the relevant H-2B worker will be placed. This can be done by 
exchange of correspondence or attested to by the secondary employer in 
the contract for labor services with the employer petitioning to bring 
in H-2B workers. This proposed attestation at Sec.  655.22(k) also 
requires the employer to attest that all worksites where the H-2B 
employee will work are listed on the Application for Temporary 
Employment Certification.
    The Department received several comments on this secondary 
placement attestation provision. While some were in favor of the 
requirement, some employer associations expressed concern that making 
such an inquiry of their clients was unfair and unduly burdensome. The 
Department acknowledges that this attestation imposes an additional 
level of inquiry between job contractors and their clients where the 
contractor will be providing H-2B workers at a client site. The INA's 
mandate of the unavailability of persons capable of performing the job 
duties for which the H-2B workers are sought is at the heart of this 
requirement.
    It is the H-2B worker's job activity, rather than the identity of 
the H-2B worker's employer, which is required to be measured against 
the availability of U.S. workers; the H-2B worker can be admitted only 
upon assurances of the unavailability of unemployed persons able to 
take the H-2B job opportunity. As a result, an H-2B worker performing 
duties at company X, for which company Y has hired him and pays him, 
may have an adverse effect not only on employees at the petitioning job 
contractor company employing him but also the company benefiting from 
his or her services. The limitations imposed by the Department--area of 
intended employment, occupation, and timing--provide parameters to 
reassure employers while at the same time enabling them to ensure full 
compliance with the mandates of the H-2B program.
    One commenter agreed with this provision but did not believe a 
labor contractor should be held liable for the statements provided by 
those entities. The Department believes this commenter misinterpreted 
this section. The job contractor should make a bona fide inquiry and 
document the inquiry and response. If it later turns out that the 
employer who received the H-2B worker from the job contractor displaced 
a U.S. worker during the stated timeframe, proof of the employer's 
negative response to the job contractor's bona fide inquiry will 
relieve the job contractor of liability for that violation.
    Another commenter requested that we strike this provision in its 
entirety because it does not allow for change in circumstances that 
would warrant displacing U.S. workers. The Department sees no reason 
why the U.S. worker would have to be displaced over the foreign worker 
and therefore, declines to eliminate this provision.
    Finally, an industry association commented that H-2B workers 
employed by carnivals and circuses are constantly being placed on job 
sites of other employers as they travel the circuit and that this 
requirement is too difficult to comply with. It is difficult for the 
Department to discern, from the manner in which this comment was 
written, whether the H-2B workers are being paid by one petitioning 
employer throughout the itinerary or whether these H-2B workers are 
placed on the payroll of the fixed-site employer at each location. The 
Department has not made any changes to this section, as no compliance 
challenge was clearly communicated.
9. Section 655.22(o) [(m) in Final Rule]--Notice to Worker of Required 
Departure
    Under the Final Rule, employers have a responsibility to inform 
foreign workers of their duty to leave the United States at the end of 
the authorized period of stay, and to pay for the return transportation 
of the H-2B worker if that worker is dismissed early. As stated in the 
NPRM, DHS will establish a new land-border exit pilot program for 
certain H-2B and other foreign workers to help ensure that departure 
follows the end of work authorization, regardless of whether it flows 
from a premature end or from the end of the authorized labor 
certification.
    The Department received one comment on the duty to inform the 
worker of the obligation to depart from the country. This commenter 
opined that it is not the responsibility of employers to become unpaid 
immigration officers. The Department is not suggesting that it is 
placing any burden on employers to act as immigration officers. The 
Department has retained the requirement, while clarifying it to be 
consistent with DHS's regulations on this issue.
10. Section 655.22(p) [(n) in Final Rule]--Representation of Need
    The Final Rule requires the employer to attest that it truly and 
accurately stated the number of workers needed, the dates of need, and 
the reasons underlying the temporary need in its labor certification 
request. The Department received two comments on this provision. One 
requested that we change the words ``truly and accurately'' to 
``reasonable and good faith'' based on estimates from information 
available at the time of filing the certification. The Department has 
considered this change but declines to amend the regulatory language. 
The concern of the commenter of the need for flexibility is found in 
the provision in both the NPRM and this Final Rule regarding amendments 
(Sec.  655.34(c)(2)) of the start date of the certification. Any need 
for additional flexibility on the part of the Department must be 
balanced against the Department's need to ensure integrity in an 
attestation-based program; giving freedom to change its dates of need 
allows unscrupulous employers to submit applications not based on an 
actual need, thus circumventing the entire process in an attempt to 
obtain limited visas.
    The second commenter expressed concern with the date of need 
requirement and requested the Department change several sections on 
which this attestation is predicated. One of the major concerns of this 
commenter was the potential need to amend start dates after 
certification if an employer must wait for visa numbers to become 
available. The Department has, however, retained the underlying 
provision for this attestation. While the Department permits amendment 
of the start date of the certification by the employer both prior to 
certification (Sec.  655.34(c)(2)) and after certification to certify a 
late adjudication (Sec.  655.34(c)(4)), the reconciliation of the start 
date becomes an issue for DHS adjudication. The Department notes that a 
regulatory provision allowing movement of the date of need after 
certification would be inconsistent with the DHS proposed rule, which 
would not permit the filing of a petition whose start date was 
inconsistent with the start date of the labor certification.
    This commenter also proposed, in the alternative, that employers be 
allowed

[[Page 78043]]

to submit their I-129 labor certification applications to DHS with a 
note that they have submitted their request for an amendment to the 
Department and that the Department be required to adjudicate the 
request for amendment within five days. The Department considered the 
comment and has decided not to establish a deadline for the processing 
of amendment requests. We defer to DHS to determine what is appropriate 
for its adjudication of I-129 petitions which falls exclusively under 
its jurisdiction.

L. Retention of Supporting Documentation

    The Final Rule contains a modified requirement that employers 
retain specified documentation outlined in the proposed regulations to 
demonstrate compliance with program requirements. The proposed 
retention period was for 5 years. This documentation must be provided 
in the event of an RFI, post-adjudication audit, WHD investigation or 
other similar activity. The Department received a few comments in 
response to this proposed requirement. One small business coalition 
expressed its support, while another organization expressed concern 
that a 5-year document retention requirement was too long, especially 
for small employers, or employers like circuses and carnivals that are 
mobile or have a mobile component. Another commenter requested the 
Department prepare and provide a list to H-2B employers in one place, 
in plain language--perhaps as part of broad stakeholder compliance 
assistance--the documentation that should be retained. In response to 
concerns about the length of time for records retention, the Department 
has reduced the requirement from 5 years to 3 years. The documentation 
required will support specific attestations by the employer under the 
program. We will provide additional guidance in the course of 
individual and broad-based technical assistance and educational 
outreach to the employer community, including on the OFLC Web site. We 
will consider the issuance of additional written guidance, as 
appropriate.

M. Section 655.23(c)--Request for Further Information

    The Department proposed to issue a Request for Further Information 
(RFI) within 14 days of receiving the application, if needed, for the 
purpose of adjudicating the application for labor certification. All of 
those who commented on this provision requested that the timeframes be 
changed, but most also recommended an additional provision that would 
obligate the Department to process and respond to the information 
received through the RFI within a certain period of time. The 
Department agrees and shortened both the issuance and response time to 
7 days. The Department also has added a provision that obligates the CO 
to issue a Final Determination within 7 business days of receiving the 
employer's response, or by 60 days before the date of need, whichever 
is greater.

N. Section 655.24--Post-Adjudication Audits

    The Department proposed to use various selection criteria for 
identifying applications for audit review after the application has 
been adjudicated in an effort to maintain and enhance program 
integrity. The audits are meant to permit the Department to ensure 
compliance with the terms and conditions by an employer and to fulfill 
the Secretary's statutory mandate to certify applications only where 
unemployed U.S. workers capable of performing such services cannot be 
found. Failure by an employer to respond to the audit could lead to 
debarment from the program as could a finding by the Department that 
the employer has not been complying with the terms and conditions 
attested to in the application. The Department received many comments 
on this provision. They were equally divided between those that opposed 
post-adjudication audits and those that believed audits are an 
effective tool to enhance integrity. Those who opposed the post-
adjudication audits did not make any alternative suggestions on how the 
Department could determine compliance with the program. Therefore, with 
no other alternatives available, the Department believes its initial 
analysis is correct and, therefore, has not made any substantive 
changes to this section, save for including the option for the CO to 
refer any findings that an employer violated the terms and conditions 
of the program with respect to eligible U.S. workers to the Department 
of Justice, Civil Rights Division, Office of Special Counsel for Unfair 
Immigration Related Employment Practices, as suggested by one 
commenter.

O. Section 655.30--Supervised Recruitment

    The Department proposed to require certain employers to engage in 
supervised pre-filing recruitment to ensure compliance with recruitment 
requirements. One comment was received on this provision. The commenter 
believes that the NPC will be unable to handle such a responsibility as 
effectively and as efficiently as did the local SWAs and that it will 
affect the integrity of the program. The Department respectfully 
disagrees with this commenter and has retained the provision as 
proposed. We believe that centralizing the process will provide 
uniformity and expertise that will enhance program integrity. Further, 
in the permanent labor certification program, supervised recruitment is 
conducted under Federal guidance and not SWA supervision.

P. Section 655.31--Debarment

    The Department's NPRM proposed a mechanism allowing the Department 
to debar an employer/attorney/agent from the H-2B program for a period 
of up to 3 calendar years. Debarment from the program is a necessary 
and reasonable mechanism to enforce H-2B labor certification 
requirements and ensure compliance with the program's statutory 
requirements. Further, debarment and other enforcement mechanisms, 
e.g., audits, are necessary and reasonable program compliance checks to 
balance the transition to an attestation-based filing system. The 
proposed rule would permit the Department to debar an employer, 
attorney, and/or agent for a period of up to 3 calendar years for 
misrepresenting a material fact or for making a fraudulent statement on 
an H-2B application, for a material or substantial failure to comply 
with the terms of the attestations, for failure to cooperate with the 
audit process or ordered supervised recruitment, or if the employer/
attorney/agent has been found by a court of law, WHD, DHS, or the DOS 
to have committed fraud or willful misrepresentation involving any OFLC 
employment-based immigration program.
    Upon further consideration, based in part upon the Department's 
recent efforts to modernize its H-2A labor certification regulations, 
the Department has decided to modify the debarment provision so that it 
more closely parallels the debarment provision for the H-2A regulation 
at 20 CFR 655.118, given the similarity of the H-2A and H-2B labor 
certification programs. While many of the grounds for debarment are 
substantially similar in the Final Rule as in the NPRM, the Final Rule 
contains additional safeguards for both workers and employers, which 
are explained in greater detail below.
1. Debarment Authority
    An advocacy organization questioned the Department's authority to 
debar attorneys, agents, or employers from the H-2B program and 
asserted that a determination of a violation should only be made after 
notice of violation and an

[[Page 78044]]

opportunity for a hearing. The debarment of entities from participating 
in a government program is an inherent part of an agency's 
responsibility to maintain the integrity of that program. As the Second 
Circuit found in Janik Paving & Construction, Inc. v. Brock, 828 F.2d 
84 (2d Cir. 1987), the Department possesses an inherent authority to 
refuse to provide a benefit or lift a restriction for an employer that 
has acted contrary to the welfare of U.S. workers. In assessing the 
Department's authority to debar violators, the court found that ``[t]he 
Secretary may * * * make such rules and regulations allowing reasonable 
variations, tolerances, and exemptions to and from any or all 
provisions * * * as [s]he may find necessary and proper in the public 
interest to prevent injustice of undue hardship or to avoid serious 
impairment of the conduct of Government business.'' Id. at 89.
    In addition, although the Administrative Procedure Act provides 
that parties are entitled to appear before the agency with legal 
counsel, see 5 U.S.C. 555(b), this provision ``leaves intact the 
agencies' control over both lawyers and non-lawyers who practice before 
them,'' Attorney General's Manual on the APA (1947) at 65. The 
Department's debarment of attorneys and agents under the H-2B program 
is also consistent with the Department's longstanding practice of 
regulating attorneys and representatives who appear before the agency. 
See, e.g., In re judicial inquiry re Miroslaw Kusmirek, 2000-INA-116 
(Sept. 18, 2002) (sanctioning a representative for providing forged 
documents to the Department of Labor).
    In order to encourage compliance, the regulatory scheme for the H-
2B program relies on attestations, audits, investigations and the 
remedial measure of debarment. Use of debarment as a mechanism to 
encourage compliance has been endorsed in the INA for a number of 
foreign labor certification and attestation programs. Ensuring the 
integrity of a statutory program enacted to protect U.S. workers is an 
important part of the Department's mission.
    As part of the Department's inherent debarment authority, the 
Department may determine the particular procedures that may apply to 
the process. Accordingly, it is within the Department's authority to 
require the OFLC Administrator to issue a Notice of Intent to Debar no 
later than 2 years after the occurrence of the violation; offer the 
employer an opportunity to submit evidence in rebuttal; and if the 
rebuttal evidence is not timely filed or if the Administrator 
determines that the employer, attorney, or agent more likely than not 
meets one or more of the bases for debarment, issue a Notice of 
Debarment which may be subject to administrative appeal through the 
Department's Board of Alien Labor Certification Appeals (BALCA). Like 
the NPRM, the Final Rule provides that the Notice of Debarment shall be 
in writing, state the reason for the debarment finding and duration of 
debarment, and identify the appeal rights. Additionally, the Final Rule 
provides that the debarment will take effect on the start date 
identified in the Notice of Debarment unless the administrative appeal 
is properly filed within 30 days of the date of the Notice, thereby, 
staying the debarment pending the outcome of the appeal.
2. Grounds for Debarment
    While a union and a state agency expressed their support for the 
debarment provisions, a law firm asserted that the debarment was an 
unduly strict sanction for minor violations of new procedures, the 
details of which are still not clear. We disagree with the commenter's 
characterization of violations warranting debarment as ``minor.'' The 
Department will not debar for ``minor'' violations. Rather most of the 
violations that will be the basis of potential debarment actions 
require a pattern or practice of acts that: (1) Are significantly 
injurious to the wages or benefits offered under the H-2B program or 
working conditions of a significant number of the employer's U.S. or H-
2B workers; (2) reflect a significant failure to offer employment to 
each qualified domestic worker who applied for the job opportunity for 
which certification was being sought, except for lawful job-related 
reasons; (3) reflect a significant failure to comply with the 
employer's obligations to recruit U.S. workers; (4) reflect a 
significant failure to comply with the RFI or audit process; (5) 
reflect the employment of an H-2B worker outside the area of intended 
employment, or in an activity/activities not listed in the job order 
(other than an activity minor and incidental to the activity/activities 
listed in the job order), or after the period of employment specified 
in the job order and any approved extension; or (6) reflect a 
significant failure to comply with supervised recruitment. However, the 
Department recognizes that there are some acts which the Department 
would have no other available remedy to enforce would warrant debarment 
even without a pattern or practice. These acts are set forth separately 
under Sec.  655.31(d)(2) through (5). These acts are: Fraud; the 
failure to cooperate with a DOL investigation or with a DOL official 
performing an investigation, inspection or law enforcement function; 
the failure to comply with one or more sanctions or remedies imposed by 
the ESA, or with one or more decisions of the Secretary or court; and a 
single heinous act showing such flagrant disregard for the law that 
future compliance with program requirements cannot reasonably be 
expected.
    As to the details of the violation not being clear, we believe that 
the regulations are quite clear in setting forth the various grounds 
under which an employer, attorney or agent may be debarred. The 
Department understands the seriousness of debarment as a penalty and, 
in considering the comments received in response to the NPRM, believes 
that the resulting debarment provision upholds the integrity of the H-
2B labor certification program and puts employers on notice of what 
violations are sufficiently serious that could result in potential 
debarment.
    Additionally, the law firm requested a provision for training prior 
to being subject to sanctions such as debarment. While we do not think 
that it is necessary to address such training directly in the 
regulation, OFLC will issue further guidance, as appropriate, to orient 
stakeholders and staff to these new provisions.
3. Debarment of Attorneys and Agents
    An international recruiting company requested that the Department 
apply a different standard for the debarment of attorneys and agents 
from the debarment of employers. In particular, the commenter asserted 
that the evidence to debar the agent or attorney would need to be 
legally significant since they do not share in the task of employment 
and stated that many agents accept information from the employer at 
face value and accept information as true. While attorneys and agents 
are not strictly liable for all actions of the employers they represent 
they do have responsibilities attendant to their participation in the 
program. Employers, agents, and attorneys each must remain aware of 
their particular responsibilities under the labor certification process 
and of the consequences of submitting false or misleading information 
to a Federal agency. Accordingly, the regulation provides that the 
Administrator may debar agents and attorneys not only for participating 
in, but also having knowledge of, or having reason to know of, the 
employer's substantial violation.
    An advocacy organization objected to the omission of appeal rights 
for

[[Page 78045]]

attorneys and agents with respect to a Notice of Debarment. The 
commenter stressed that since attorneys and agents may themselves be 
subject to a Notice of Debarment, they ought to have recourse to 
correct a conceivably incurred or unfair decision. The commenter also 
noted that there may be certain instances where the interests of an 
employer and attorney or agent may diverge with respect to pursuing an 
appeal and the latter would be harmed due to the lack of appeal rights. 
The commenter also noted that the Department's permanent labor 
certification regulations provide not only the employer but any 
debarred person or entity the right to appeal the debarment decision. 
We agree with commenter's concern and have included references to 
attorneys' and agents' rebuttal and appeal rights, in additional to 
that of employers.
4. Use of Labor Contractors
    An advocacy organization expressed a concern that employers would 
manipulate their legal identities resulting in abuses that would not be 
cured by debarment. In particular, the commenter set forth a scenario 
in which a company would retain a labor contractor or temporary agency 
to serve as the ``employer'' for a group of foreign workers at the 
company's work site. The commenter was concerned that the company would 
take advantage of a labor contractor's false claim that no domestic 
workers could be found, yet only the labor contractor would be debarred 
as the ``employer,'' thus allowing the company to hire another labor 
contractor to repeat the same abuses.
    The commenter seems to presume all labor contractors would commit 
violations of the program, which is a generalization that unfairly 
portrays law abiding labor contractors in a negative light. 
Nonetheless, this is a situation that would be of concern to the 
Department and, if appropriate, we would pursue administrative means to 
ascertain the veracity of applications and information submitted to the 
Department.
5. Review of Debarment Determinations
    The Department did not receive comments about the procedures for 
the review of the Administrator, OFLC's debarment determinations. 
However, to ensure consistency across programs, the Department has 
included in the Final Rule procedures, identical to those set forth in 
the Department's H-2A Final Rule, for hearings before an administrative 
law judge and review of the administrative law judge's decision by the 
Administrative Review Board. Under the Final Rule, a debarred party may 
request a hearing which would be governed by the procedures in 29 CFR 
part 18, and administrative law judge decisions would not be required 
to be issued within a set period of time. We believe that this process 
provides a period of time that is both sufficient for thorough 
consideration of the grounds for debarment and expedient enough so as 
to allow the Department to debar bad actors before they can cause any 
additional harm while also minimizing the period of uncertainty for 
employers in the case of a successful appeal.

Q. Section 655.32--Labor Certification Determinations

    The proposed language delineated the criteria by which the 
Administrator of OFLC will certify or deny applications. The 
commenters, though citing this particular section of the NPRM, actually 
commented on the attestation-based process in general. Their comments 
were incorporated into that discussion above.

R. Section 655.33--Appeals to the BALCA

    The Department's and DHS's NPRMs proposed a new model for the 
adjudication of H-2B applications. Under current procedures, the 
Department does not provide for any administrative review of decisions 
either denying H-2B labor certification applications or rendering a 
non-determination. Currently, the Department's decisions are advisory 
to DHS and employers whose applications are denied or issued a non-
determination by the Department may submit countervailing evidence to 
DHS and have access to administrative review under DHS procedures. 
Under the DHS NPRM, the countervailing evidence process is eliminated 
and employers seeking to file H-2B visa petitions will be required to 
present an approved labor certification from DOL. Since DOL decisions 
denying H-2B labor certification will no longer be subject to 
additional review outside of the Department, we concluded that it would 
be appropriate to provide an employer whose labor certification 
application is denied an opportunity to seek review in the Department. 
The Department's NPRM included such a procedure providing for 
administrative review before the BALCA.
    The Department received a number of comments on this portion of the 
NPRM, the majority of which expressed dissatisfaction with the 
proposal. We have carefully reviewed these comments and made several 
changes in response. Several commenters expressed satisfaction with the 
current appeal process and requested that it not be changed. To the 
extent these comments related to concerns about the length of that 
process, that question is discussed below. To the extent the commenters 
expressed a preference for the retention of the current practice in 
which countervailing evidence can be submitted to DHS when an H-2B 
labor certification application is denied, similar comments were 
submitted to DHS in response to its NPRM and DHS made no change in its 
Final Rule. We defer to and adopt DHS's response on this issue. 
Likewise, the concern expressed by one commenter that the time spent 
utilizing the Department's appeals procedures will delay employers 
getting into the queue at DHS for the limited number of available H-2B 
visas, is a matter that is addressed by DHS in their Final Rule.
    With regard to matters directly related to the Department's 
proposal, a number of commenters objected to the provision that 
precluded the submission of new evidence to the BALCA. We believe these 
commenters do not recognize the totality of the proposal. The NPRM 
provides that before a CO can deny an H-2B application, the CO must 
issue an RFI that apprises the employer of the grounds for the proposed 
denial and provides an opportunity to submit additional information. 
The Department does not see any reason to provide another opportunity 
to submit necessary information. In addition, providing such an 
opportunity would inevitably delay issuance of final decisions from the 
BALCA. Concerns about delays at the BALCA were expressed by a number of 
commenters even in the absence of any authorization for the submission 
of new evidence.
    Several commenters expressed concern that the appeal process before 
the BALCA would take too long. One noted specifically that no time 
limit was contained for the BALCA to issue its docketing statement and 
a briefing schedule. It was also pointed out that the NPRM provided 
merely that the BALCA ``should'' notify the employer of its decision 
within 20 days of the filing of the CO's brief. In response to comments 
reflecting concerns about the timeliness of the appeal process, the 
Final Rule reflects significantly shorter time frames, with the BALCA 
decision due no later than 15 business days after the request for 
review is filed.
    One commenter suggested the possibility of allowing worker 
representatives to participate in the administrative appeal process. We 
have rejected that suggestion. Generally, the

[[Page 78046]]

Department's labor certification procedures do not involve 
participation by third parties and we do not believe that their 
involvement would enhance the process given the nature of the labor 
certification determination.

S. Section 655.34(c)--Amendments

    The Department received several comments on the provision requiring 
the amendment of labor certifications if the start dates change and/or 
the number of workers change. All commenters opposed this change. One 
commenter admitted that employers set their start date based on the 
availability of visa numbers. Other commenters claimed that this 
provision makes it impracticable to adjust to market fluctuations 
during the season. The Department appreciates the candid comments about 
the difficulties this new requirement will create. However, the 
Department's experience is that many times dates of need or number of 
workers needed are changed to such a degree that the recruitment 
previously done is stale by the time USCIS receives the application. 
Changes to start dates, especially as the practice has become more 
common, also raise a concern that U.S. workers who might indeed be 
available for work on the new start date were not given the chance to 
apply originally. Therefore, this requirement represents a reasonable 
and logical solution. The only changes made to the section were for 
clarification purposes.

T. Section 655.35--Required Departure

    In consultation with DHS, the Department proposed to include, as 
part of the employer's obligations, the requirement that employers 
provide notice to the H-2B workers of their required departure at the 
end of their authorized stay or separation from employment, whichever 
occurs first. This section was designed in anticipation of DHS 
establishing a registration of departure program. The provision 
requires employers to inform their H-2B workers of their obligation to 
register their departure at the port of exit. The Department received 
one comment suggesting that we eliminate this provision because it is 
unworkable due to the requirement for specific entry and exit points, 
which is inevitably a guarantee for violations occurring. This 
commenter also suggested we work with DHS instead. The Department 
respectfully declines to eliminate this language. The entry-exit ports 
and requirements continue to be matters of immigration under DHS's 
jurisdiction; this language simply makes it an employer's obligation to 
inform foreign workers of the workers' responsibility. The Department 
did consult with DHS on this language to establish this employer 
obligation and lay the appropriate groundwork as DHS continues to build 
their next-generation entry-exit system.

U. Delegation of Enforcement Authority

    As previously discussed, the INA provides the Department no direct 
authority to enforce any conditions concerning the employment of H-2B 
workers, including the prevailing wage attestation. DHS possesses that 
authority pursuant to secs. 103 and 214(a) and (c) of the INA. 8 U.S.C. 
1103 and 8 U.S.C. 1184(c)(14)(A). DHS may also delegate its authority 
to the Department under secs. 103(a)(6) and 214(c)(14)(B) of the INA. 8 
U.S.C. 1103(a)(6) and 8 U.S.C. 1184(c)(14)(B). DHS has chosen to 
delegate its enforcement authority to DOL, which provides the basis for 
the new enforcement provisions of this subpart. The delegation will not 
take effect until this rule becomes effective.

V. Section 655.50(c)--Availability of Records in the Enforcement 
Process

    Language has been added to Sec.  655.50(c) to describe the 
employer's responsibility to make records available when those records 
are maintained in a central office.

W. Section 655.60--Compliance With Application Attestations

    The NPRM proposed a WHD enforcement program addressing H-2B 
employers' compliance with attestations made as a condition of securing 
authorization to employ H-2B workers. The proposed enforcement program 
also covered statements made to DHS as part of the petition for an H-2B 
worker on the DHS Form I-129, Petition for a Nonimmigrant Worker. 
Compliance with attestations and the DHS petition are designed to 
protect U.S. workers and would be reviewed in WHD enforcement actions. 
This Final Rule adopts this proposal.
    A trade union and U.S. Senator commented that the proposal did not 
include a mechanism for accepting complaints of potential violations. 
The Department intends to accept complaints, as it does under other 
statutes it administers such as the Fair Labor Standards Act (FLSA), 29 
U.S.C. 201 et seq., which does not have a specific regulatory mechanism 
for the acceptance of complaints. Thus, the Department has not added a 
specific regulatory procedure here.
    Another trade union commented that the Department should adopt the 
definition of ``employ'' found in the FLSA, which defines the term to 
include ``suffer or permit to work.'' In fact, the proposed regulations 
included such a definition. However, the terms ``employer'' and 
``employee'' were defined in terms of the common law test of employment 
which does not include ``suffer or permit to work.'' Since the two 
concepts are different and the use of the ``suffer or permit'' test is 
precluded by the U.S. Supreme Court opinion in Nationwide Mutual Ins. 
v. Darden, 503 U.S. 318, 322-323 (1992), the reference to ``suffer or 
permit to work'' has been removed.

X. Section 655.65--Remedies for Violations of H-2B Attestations

1. Section 655.65(a) and (b)--Assessment of Civil Money Penalties
    Under the proposed rule, the WHD would assess civil monetary 
penalties in an amount not to exceed $10,000 per violation for a 
substantial failure to meet conditions of the H-2B labor condition 
application or of the DHS Form I-129, Petition for a Nonimmigrant 
Worker for an H-2B worker; or for a willful misrepresentation of a 
material fact on the DOL application or DHS petition; or a failure to 
cooperate with a Department of Labor audit or investigation. No comment 
addressed this provision and it is adopted in the Final Rule, with one 
change--in accordance with the statutory provisions, the Final Rule 
clearly reflects that the WHD Administrator may access civil money 
penalties when appropriate.
2. Section 655.65(i)--Reinstatement of Illegally Displaced U.S. Workers
    Under the NPRM the WHD would seek reinstatement of similarly 
employed U.S. workers who were illegally laid off by the employer in 
the area of intended employment. Such unlawful terminations are 
prohibited if they occur less than 120 days before the date of 
requested need for the H-2B workers or during the entire period of 
employment of the H-2B workers. No comments addressed this proposal and 
it is adopted in the Final Rule.
3. Section 655.65(i)--Other Appropriate Remedies
    WHD may seek remedies under other laws that may be applicable to 
the work situation including, but not limited to, remedies available 
under the FLSA (29 U.S.C. 201 et seq.), the Migrant and Seasonal 
Agricultural Worker Protection Act (29 U.S.C. 1801 et seq.), and the 
McNamara-O'Hara Service Contract Act (41 U.S.C. 351 et seq.). WHD also 
may seek other administrative remedies for violations as it determines 
to be appropriate.

[[Page 78047]]

    The Department sought public comments on whether back wages can be 
assessed under the H-2B program when an employer fails to pay the 
prevailing wage rate. The most extensive comments received were from a 
U.S. Senator asserting that the lack of back pay as a remedy is a 
``weakness of the Department's enforcement proposal'' and that back pay 
is ``an essential make-whole remedy for both H-2B program participants 
and American workers * * * [and] would provide a key incentive for 
otherwise vulnerable workers to come forward and protect their 
rights.'' The Senator also stated that ``[t]here is ample authority 
establishing that similarly broad grants of remedial authority are 
sufficient to authorize an award of back [pay], even when this remedy 
is not specifically enumerated.''
    The Department has carefully considered whether Congress has 
provided authority to assess back wages under the H-2B provisions. The 
Department concludes that the H-2B statutory provisions provide the 
Secretary with the authority to seek back wages for failure to pay the 
required wage even though the statute does not specifically list this 
remedy. The INA broadly authorizes DHS to, ``in addition to any other 
remedy authorized by law, impose such administrative remedies 
(including civil monetary penalties * * *) as the Secretary of Homeland 
Security determines to be appropriate[.]'' 8 U.S.C. 1184(c)(14)(i). As 
noted above, that authority has been delegated to the Department of 
Labor. Awarding back pay is unquestionably the most appropriate remedy 
for failure to pay the required wage. It is also consistent with the 
statutory grant of authority and will further the purposes of the H-2B 
program because it will reduce employers' incentives to bypass U.S. 
workers in order to hire and exploit H-2B foreign workers, and guard 
against depressing U.S. workers' wage rates.
    A number of courts have concluded that, under similarly broad 
grants of remedial authority, the Secretary may establish back pay as 
an appropriate sanction even in the absence of explicit statutory 
authority. See, e.g., Commonwealth of Kentucky Dept. of Human Resources 
v. Donovan, 704 F.2d 288, 294-96 (6th Cir. 1983) (ruling that the 
Secretary of Labor had authority to award back pay under Comprehensive 
Employment and Training Act (CETA) both prior to the 1978 statutory and 
regulatory amendments and pursuant to the 1978 amendments); City of 
Philadelphia v. U.S. Dept. of Labor, 723 F.2d 330, 332 (3d Cir. 1983); 
United States v. Duquesne Light Co., 423 F. Supp. 507, 509 (W.D. Pa. 
1976) (in government contracting case, back pay appropriate under E.O. 
11246).
    The preamble to the NPRM, 73 FR 29946, noted that the H-1B 
provisions of the INA, unlike the H-2B provisions, contain a separate 
provision requiring that the Secretary assess back wages in cases where 
an employer has failed to pay the LCA-specified wages. 8 U.S.C. 
1182(n)(2)(D) (``If the Secretary finds, after notice and opportunity 
for a hearing, that an employer has not paid wages at the wage level 
specified under the [LCA] * * * the Secretary shall order the employer 
to provide for payment of such amounts of back pay as may be required 
to comply with the [H-1B] requirements * * * whether or not [other 
penalties have] been imposed.''). The H-1B back pay provision is, 
however, different from either programs' general, broad grant of 
remedial authority by being mandatory and by imposing no standard for 
the severity of wage violations (e.g., willfulness or ``substantial 
violation'') for the collection of back wages. Therefore, the failure 
to include the mandate in H-2B simply means that the Secretary is not 
required to seek back pay in cases where the employer has failed to pay 
the LCA-specified wages; it does not bear on the Secretary's discretion 
to seek back pay in such cases. The Department concludes that the 
statutory language of the H-2B program provides the Secretary with the 
discretionary authority to seek back pay, provided there is a finding 
of a ``substantial violation'' or willfulness, in cases where the 
employer has failed to pay the LCA-specified wages. See 8 U.S.C. 
1184(c)(14)(A)(i). The Department has modified the Final Rule 
accordingly.

Y. Comments Beyond the Scope

    In addition to those discussed above, the Department received 
numerous comments that were beyond the scope of or not directly 
relevant to the proposed regulation. We did not respond to these 
comments, but find it appropriate to note them. They included: Calls 
for the Department to work with Congress to extend the Save Our Small 
and Seasonal Business Act returning workers provision; calls for the 
Congress to raise the H-2B 66,000 annual visa cap, or to allocate visa 
numbers more equitably across States; calls for the government to 
``recapture'' H-2B visa numbers that expire the same year they are 
issued so they can be used for different workers; calls for the 
Congress to increase funding for all Federal agencies administering the 
H-2B visa program, and the SWAs, either through appropriations, or 
applications or fraud preventions fees; requests that DHS establish a 
special fraud investigative unit for certain visa related crimes and 
offenses; concerns about the requirement that workers use DHS's 
designated entry-exit system, and about the burdens and policies behind 
such a system; a request that foreign workers be given a two-month 
grace period between employers when the worker needs an extension but 
the workers' visas terminate before the beginning of their next 
employment; a request that employers have the authority to activate or 
deactivate the H-2B visa like a credit card to allow immediate action 
and loss of status if the worker fails to comply with the terms of the 
H-2B contract; calls for the government to require that H-2B workers 
(over whom the Department has no jurisdiction save for the areas 
covered in this Final Rule) purchase travel insurance or prohibit H-2B 
workers from identifying themselves as ``self-employed'' on their 
federal tax forms, or to eliminate the requirement that H-2B workers 
pay Social Security or Medicare; opinions that the United States has 
sufficient foreign workers to meet the needs of U.S. employers, 
especially at a time when the economy is slowing down and many U.S. 
workers are unemployed; calls for U.S. employers to provide higher 
wages and better working conditions; and a call for H-2B workers to be 
permitted representation by Federally-funded legal services 
corporations, and that resources for such counsel be increased.

III. Administrative Information

A. Executive Order 12866--Regulatory Planning and Review

    Under Executive Order (E.O.) 12866, the Department must determine 
whether a regulatory action is ``significant'' and therefore, subject 
to the requirements of the E.O. and subject to review by the Office of 
Management and Budget (OMB). Section 3(f) of the E.O. defines a 
``significant regulatory action'' as an action that is likely to result 
in a rule that: (1) Has an annual effect on the economy of $100 million 
or more or adversely and materially affects a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local or tribal governments or communities (also 
referred to as ``economically significant''); (2) creates serious 
inconsistency or otherwise interferes with an action taken or planned 
by another agency; (3) materially alters the budgetary impacts of 
entitlement grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raises novel legal or policy 
issues

[[Page 78048]]

arising out of legal mandates, the President's priorities, or the 
principles set forth in the E.O.
    The Department determined that this regulation is a ``significant 
regulatory action'' under sec. 3(f)(4). This Final Rule implements a 
significant policy related to the President's policies on immigration. 
However, the Department determined that this rule is not an 
``economically significant'' rule under E.O. 12866 because it will not 
have an annual effect on the economy of $100 million or more.
Analysis Considerations
    The direct incremental costs employers will incur because of this 
Final Rule, above and beyond the current costs required by the program 
as it is currently implemented, are not economically significant. The 
total annual cost associated with this Final Rule is approximately 
$1,872,769 per year or $166 per employer. The only additional costs on 
employers resulting from this Final Rule are those involved in (1) the 
placement of a Sunday advertisement, which replaces one of the former 
daily advertisement and the additional paperwork costs; (2) the new 
paperwork and retention requirements; and (3) contacting laid-off 
workers to notify them of a job opportunity.\6\
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    \6\ The Department notes that this cost is not new to the H-2B 
program because it has been required in program guidance. However, 
because it is new to the regulation, we have included it in this 
analysis.
---------------------------------------------------------------------------

Cost of the Sunday Advertisement
    The cost range for advertising and recruitment is taken from a 
recent (October 2008) sample of newspapers in various urban and rural 
U.S. cities, and reflects approximate costs for placing one 10-line 
advertisement in those newspapers. The cost of advertising in a Sunday 
paper instead of during the week is approximately $234, which 
represents an increase of approximately $31.16 over the weekday 
advertisement.\7\ The additional total cost for the 11,267 employers 
utilizing the H-2B program of one Sunday ad would average approximately 
$351,080 assuming that such ads would not have been placed by the 
business as part of its normal practices to recruit U.S. workers.\8\
---------------------------------------------------------------------------

    \7\ The Department based this average on 10 locations with the 
highest number of H-2B applications, including the following: 
Houston, Texas; Orlando, Florida; Vail, Colorado; Orange County, 
California; Cape Cod, Massachusetts; Detroit, Michigan; Baton Rouge, 
Louisiana; Houma, Louisiana; Columbus, Ohio; and Washington, DC.
    \8\ The Department notes that this cost is based on the highest 
costs in each location. Fees are likely to be lower given that many 
newspapers offer lower rates for consecutive ads, for placing two 
ads in the same week, or for purchasing a Sunday and weekday ad.
---------------------------------------------------------------------------

Cost of Paperwork and Record Retention Requirements
    The paperwork and record retention costs are minimal, as records 
will require a burden of approximately 1.35 hours per year per 
application. Based on the median hourly wage rate for a Human Resources 
Manager ($40.47), as published by the Department's Occupational 
Information Network, O*Net OnLine, and increased by a factor of 1.42 to 
account for employee benefits and other compensation, a total 
cumulative burden of 15,210 hours will result in a total cost of 
$874,118, or $77.58 per employer.
Cost To Notify Laid-Off Workers of Job Opportunity
    A final cost to employers for implementing the requirements of this 
Final Rule is the cost associated with notifying laid-off workers of a 
job opportunity. The Department estimates that the total cost to meet 
this requirement is $647,571 or $57.48 per employer. To make this cost 
determination, the Department estimated it would take an employer's 
Human Resources Manager approximately 3 minutes to notify each laid-off 
worker. The Department does not have data to determine how many laid-
off workers an employer would be required to notify. Therefore, the 
Department projected this number based on the total number of employees 
requested on the applications. Based on PY 2006 data, employers 
requested visas for 247,287 foreign workers, for an average of 22 
employees per employer. We then multiplied this number by 3 minutes 
(the time estimate to notify each laid-off worker) to determine that it 
will take each employer approximately one hour to meet this 
requirement. Thus, the cost per employer is the hourly salary for the 
Human Resource Manager to make the calls or $57.47.
Benefits
    We also project that employers will experience significant time-
savings as a result of the reengineered process. The Department 
estimates the average time-savings to employers will be at least 28 
days from the current process, based on the current average H-2B 
application processing time of 73 days in the fiscal year (FY) 2007 
(October 1, 2006-September 30, 2007). Although the Department cannot 
estimate the cost savings as a result of this time saved, it believes 
that employers will experience a variety of economic benefits, 
including benefits from predictability of workforce size and 
availability regardless of geographic area, as a result of 
reengineering the application process.
    The Department received seven comments related to the cost of this 
rulemaking. One comment was directed at the cost to small businesses 
and has been addressed in Section B of this section of the preamble 
below. The remaining six comments were related to the costs to the 
SWAs, which is not a cost calculated in the total cost of this Final 
Rule because they are considered transfer costs under OMB Circular A-4. 
Therefore, the Department has addressed those comments in Section C of 
this section of the preamble. The Department notes, however, that based 
on the comments, it reduced the number of required advertisements from 
three in the preamble to two in this Final Rule, which is reflected in 
the cost analysis above.

B. Regulatory Flexibility Analysis/SBREFA

    The Regulatory Flexibility Act (RFA) at 5 U.S.C. 603 requires 
agencies to prepare a regulatory flexibility analysis to determine 
whether a regulation will have a significant economic impact on a 
substantial number of small entities. Section 605 of the RFA allows an 
agency to certify a rule in lieu of preparing an analysis if the 
regulation is not expected to have a significant economic impact on a 
substantial number of small entities. A significant economic impact is 
defined as eliminating more than 10 percent of the businesses' profits; 
exceeding 1 percent of the gross revenue of the entities in a 
particular sector; or exceeding 5 percent of the labor costs of the 
entities in the sector. Further under the Small Business Regulatory 
Enforcement Fairness Act of 1996, 5 U.S.C. 801 (SBREFA), an agency is 
required to produce compliance guidance for small entities if the rule 
has a significant economic impact. Although the RFA and the SBREFA 
analyses were included as separate preamble sections in the proposed 
rule, the Department has included them in one preamble section in this 
Final Rule to avoid unnecessary duplication. The Department has 
certified that this Final Rule does not have a significant economic 
impact on a substantial number of small entities.
1. Definition of a Small Entity
    A small entity is one that is ``independently owned and operated 
and which is not dominant in its field of operation.'' The definition 
of small business varies from industry to

[[Page 78049]]

industry to the extent necessary to properly reflect industry size 
differences. An agency must either use the SBA definition for a small 
entity, or, establish an alternative definition. Given that this 
rulemaking crosses industry sectors, the Department has adopted the SBA 
size standards defined in 13 CFR 121.201. The SBA utilizes annual 
revenue in some industries, while utilizing number of employees in 
others to determine whether or not a business is considered a small 
business. Historically however, the Department has not collected 
information about an employer's industry classification, annual 
revenues, or number of employees currently on payroll in the H-2B 
program. Therefore, the Department cannot accurately and 
comprehensively categorize each applicant-employer for the purpose of 
conducting the RFA analysis by industry and size standard. In lieu of 
the industry and size standard analysis, the Department based the 
estimated costs of the reformed H-2B process assuming all employers-
applicants were small entities.
2. Factual Basis for Certification
    The factual basis for such a certification is that this Final Rule 
does not affect a substantial number of small entities and there will 
not be a significant economic impact on them. The Department receives 
more than 10,000 applications a year under this program. In FY 2006 
(October 1, 2005-September 30, 2006), ETA received from SWAs 11,267 
applications from employers seeking temporary labor certification under 
the H-2B program. As mentioned earlier, the Department does not collect 
information regarding the numbers of small entities participating in 
the H-2B program. The Department believes that this rule may 
potentially affect as many as 11,267 employers participating in this 
program, assuming that each employer only has one application.
    Although there may be a substantial number of small entities 
impacted by this Final Rule, the Department has determined that this 
rule will not have a significant economic impact on those small 
businesses that utilize the program. The RFA and the SBREFA, which 
amended the RFA, require that an agency promulgating regulations 
segment and analyze industrial sectors into several appropriate size 
categories for the industry being regulated. Even though the foreign 
labor certification programs are open to all industries, the Department 
does not have sufficient data to analyze the universe of H-2B 
applicants by industry sector. However, the Department was able to 
analyze the PY 2006 data to determine that landscape occupations \9\ 
accounted for approximately 31 percent of all the applications filed. 
According to SBA guidelines for the landscape industry, all employers 
with annual receipts at or below $6.5 million are considered small 
businesses. The cost of this rule for those employers at this threshold 
would be approximately .003 percent of their annual revenues; even for 
employers with annual receipts of only $500,000, the cost would 
represent only .036 percent of revenues.\10\ The Department also 
recognizes that there are potentially very small business that might be 
affected. Therefore, for purposes of comparing costs, this rule would 
cost small entities that had gross annual receipts of $120,000 and 
profits of $12,000 approximately .15 percent of their revenues, which 
would not be significant.
---------------------------------------------------------------------------

    \9\ The Department notes that this was the only occupation that 
could be paralleled with the industry classifications required by 
the SBA and described in 13 CFR 121.201. The landscape industry 
includes grounds keeping, lawn services, landscaping, tree planting, 
tree trimming, and tree surgeons. However, the Department does not 
require employers to list a North American Industry Classification 
System (NAICS) code for each employment position under the H-2B 
program, and therefore, the data calculated for this example is not 
as accurate as it would be with NAICS coding. For instance, some 
landscaping duties require bricklaying, which we note has been used 
as a separate employment category on some of the applications. 
Without the coding it is not possible to categorize occupations 
accurately. Therefore, the Department notes that we used this 
industry merely to provide an example of how this rule could affect 
a category of employers.
    \10\ The cost of the rule ($166) divided by the projected annual 
receipts of the business.
---------------------------------------------------------------------------

    The Department believes that the costs incurred by employers under 
this Final Rule will not be substantially different from those incurred 
under the current application filing process. Employers seeking to hire 
foreign workers on a temporary basis under the H-2B program must 
continue to establish to the Secretary's satisfaction that their 
recruitment attempts have not yielded enough qualified and available 
U.S. workers. Similar to the current process, employers under this H-2B 
process will file a standardized application but will retain 
recruitment documentation, a recruitment report, and any supporting 
evidence or documentation justifying the temporary need for the 
services or labor to be performed. To estimate the cost of this 
reformed H-2B process on employers, the Department calculated each 
employer will pay an additional $31.16 to meet the advertising 
requirements for a job opportunity, and will spend an additional 1.35 
hours staff time preparing the standardized application, narrative 
statement of temporary need, final recruitment report, and retaining 
all other required documentation (e.g., newspaper ads, business 
necessity) for audit purposes or $81.57 per employer. The Department 
also estimated that it will take an employer approximately one hour to 
notify laid-off workers of a job opportunity, or $66.46.
    Using the RFA standard to determine whether a rule will have a 
substantial impact on a significant number of small businesses, the 
Department determined that this Final Rule will not eliminate more than 
10 percent of the businesses' profits; exceed 1 percent of the gross 
revenue of the entities in a particular sector; or exceed 5 percent of 
the labor costs of the entities in the sector. The total cost per 
employer is approximately $179, which represents .15 percent of the 
gross receipts and profits of a small entity with $120,000 in revenues 
and $12,000 profits. Therefore, this rule will not have a significant 
impact on a substantial number of small businesses.
    The Department received one comment on this section, which 
generally stated that the rule would increase the cost to employers, 
especially given the changes to advertising. Although this statement is 
partly true given that the cost of the rule increased by approximately 
$179, in light of the other non-quantifiable benefits, the Final Rule 
will likely represent a cost-savings to the employer. Therefore, for 
the reasons stated, the Department believes that total costs for any 
small entities affected by this program will be reduced or stay the 
same as the costs for participating in the current program. Even 
assuming that all entities who file H-2B labor certification 
applications qualify as small businesses, there will be no net negative 
economic effect.

C. Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act (UMRA) of 1995 (2 
U.S.C. 1501 et seq.) directs agencies to assess the effects of a 
Federal regulatory action on State, local, and tribal governments, and 
the private sector to determine whether the regulatory action imposes a 
Federal mandate. A Federal mandate is defined in the Act at 2 U.S.C. 
658(5)-(7) to include any provision in a regulation that imposes an 
enforceable duty upon State, local, or tribal governments, or imposes a 
duty upon the private sector which is not voluntary. A decision by a 
private entity to obtain an H-2B worker is purely voluntary and is, 
therefore,

[[Page 78050]]

excluded from any reporting requirement under the Act.
    The Department received six comments on this section from SWAs 
related to the increase in cost and workload and/or the lack of funding 
to support the new H-2B processing requirements. One commenter 
generally noted that its jurisdiction was neither financially nor 
functionally prepared to take on this added workload. Three States 
specifically stated that the funds provided under the Wagner-Peyser Act 
were insufficient to carry out their H-2B responsibilities prior to the 
changes in this rule, and the new eligibility verification requirements 
increased their funding challenges. Three States specifically related 
the lack of resources to the additional cost of storing and processing 
the I-9 documents related to the eligibility verification requirements.
    The Department disagrees that this Final Rule imposes an unfunded 
mandate. As noted in the proposed rule, the Department is not 
insensitive to the resource and time constraints facing SWAs in their 
administration of H-2B activities and the difficulties inherent in 
making informed referrals on a population of workers that may be 
itinerant and difficult to contact. 73 FR 29950, May 28, 2008. However, 
we do not believe that this requirement will result in a significant 
workload increase or administrative burden. The Department points out 
that although there may be some new requirements for SWAs, there are 
also many requirements for SWAs that have been eliminated in this Final 
Rule given the reengineered approach. The Department believes reduced 
burden from the old requirements more than offsets any additional 
burden finalized here. The SWAs will experience a direct impact on 
their foreign labor certification activities in the elimination of 
certain H-2B activities under this Final Rule. These eliminated 
activities are currently funded by the Department under grants provided 
under the Wagner-Peyser Act, 29 U.S.C. 49 et seq. In addition, other 
tools will be available to the SWAs to make this requirement relatively 
easy to implement, such as the E-Verify system. As a result, the net 
effect of this Final Rule will likely be to ensure the amounts of such 
grants available to each State correspond or even increase relative to 
its workload under the H-2B program in the receipt, processing and 
monitoring of each application.
    One State commented that the new eligibility verification 
requirements could lead to discriminatory practices subject to legal 
challenge, which in this commenter's opinion, the legal costs 
associated with any defense also represented an unfunded mandate. The 
Department believes it is premature to presume that the States will 
have to bear a significant cost to defend against any potential 
litigation associated with the implementation of this Final Rule, and 
which is typically considered part of a grantee's programmatic 
responsibility, should it occur.
    Therefore, for the reasons stated above, the Department finds that 
this Final Rule does not impose an unfunded mandate.

D. Executive Order 13132--Federalism

    Executive Order 13132 addresses the Federalism impact of an 
agency's regulations on the States' authority. Under E.O. 13132, 
Federal agencies are required to consult with States prior to and 
during the implementation of national policies that have a direct 
effect on the States, the relationship between the Federal Government 
and the States, or on the distribution of power and responsibilities 
among the various levels of government. Further, an agency is permitted 
to limit a State's discretion when it has statutory authority and the 
regulation is a national activity that addresses a problem of national 
significance.
    The Department received one comment on this section. This commenter 
stated that the Department's reversal of a long-standing position on 
U.S. worker self-attestation creates a Federalism impact. According to 
this commenter, TEGL 11-07, Change 1, mandates that SWAs perform pre-
employment eligibility verifications on every U.S. worker that requests 
a referral to an H-2A job order. This commenter requests that the 
Department prepare a summary impact statement and acknowledge that many 
States currently have attestation-based systems for U.S. worker access 
to public labor exchange services.
    The Department disagrees with this commenter's assessment of a 
Federalism impact and therefore, the need for a summary impact 
statement. In this case there is no direct effect on the States because 
the States are not in the best position to address the needs to re-
engineer a Federal program to relieve the backlog that has occurred due 
to inadequate staffing, funding, or other issues of concern. The issues 
addressed by the regulations are of national concern to ensure an 
effective program that regulates temporary alien workers and protects 
U.S. workers.
    As noted elsewhere in this preamble, the Department attempted to 
reform this program in 2005. To meet the demands of the considerable 
workload increases for both the Department and the SWAs and limited 
appropriations, the Department determined that regulatory changes were 
still necessary. These changes are consistent with the Department's 
review, program experience, and years of stakeholder feedback on 
longstanding concerns about the integrity of the prior program. 
Therefore, as a program of national scope, the Department is 
implementing requirements that apply uniformly to all States.
    Even if there were an argument that the Department should defer to 
the States on the eligibility verification requirements, the Department 
is authorized by the INA to implement Federal regulations to ensure 
consistency across States on immigration matters. Therefore, rather 
than having separate eligibility verification processes that vary from 
State to State, the Department is exercising its right under the INA to 
impose consistent requirements for all participants across the H-2B 
program. In addition, given that the H-2B program is an immigration-
related program, it also is a program of national security and 
therefore, of national significance with Federal oversight and 
uniformity. The verification requirement is designed to strengthen the 
integrity of the temporary labor certification process, afford 
employers a legal pool of applicants, protect U.S. workers, and improve 
confidence in and use of the H-2B program.
    Further, the relationship the States have with this program and the 
Federal Government is through grants from the Department to the States 
for the sole purpose of maintaining consistency across States. As a 
voluntary Federal program, the Department may change the direction from 
time to time as dictated by the changes to immigration-related 
concerns, but at the same time are consistent with the underlying 
legislation.
    Therefore, for the reasons stated, the Department has determined 
that this rule does not have sufficient Federalism implications to 
warrant the preparation of a summary impact statement.

E. Executive Order 13175--Indian Tribal Governments

    Executive Order 13175 requires Federal agencies to develop policies 
in consultation with tribal officials when those policies have tribal 
implications. This Final Rule regulates the H-2B visa program and does 
not have tribal implications. Therefore, the Department has determined 
that this E.O. does not apply to this rulemaking. The Department did 
not receive any comments related to this section.

[[Page 78051]]

F. Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact 
of Federal regulations and policies on families. The assessment must 
address whether the regulation strengthens or erodes the stability, 
integrity, autonomy, or safety of the family.
    The Final Rule does not have an impact on the autonomy or integrity 
of the family as an institution, as it is described under this 
provision. The Department did not receive any comments related to this 
section.

G. Executive Order 12630--Protected Property Rights

    Executive Order 12630, Governmental Actions and the Interference 
with Constitutionality Protected Property Rights, prevents the Federal 
government from taking private property for public use without 
compensation. It further institutes an affirmative obligation that 
agencies evaluate all policies and regulations to ensure there is no 
impact on constitutionally protected property rights. Such policies 
include rules and regulations that propose or implement licensing, 
permitting, or other condition requirements or limitations on private 
property use, or that require dedications or exactions from owners of 
private property.
    The Department did not receive any comments on this section. The 
Department certifies that this Final Rule does not infringe on 
protected property rights.

H. Executive Order 12988--Civil Justice Reform

    Section 3 of E.O. 12988, Civil Justice Reform, requires Federal 
agencies to draft regulations in a manner that will reduce needless 
litigation and will not unduly burden the Federal court system. 
Therefore, agencies are required to review regulations for drafting 
errors and ambiguity; to minimize litigation; ensure that it provides a 
clear legal standard for affected conduct rather than a general 
standard; and promote simplification and burden reduction.
    The rule has been drafted in clear language and with detailed 
provisions that aim to minimize litigation. The purpose of this Final 
Rule is to reengineer the H-2B program and simplify the application 
process. Therefore, the Department has determined that the regulation 
meets the applicable standards set forth in sec. 3 of E.O. 12988. The 
Department received no comments regarding this section.

I. Plain Language

    Every Federal agency is required to draft regulations that are 
written in plain language to better inform the public about policies. 
The Department has assessed this Final Rule under the plain language 
requirements and determined that it follows the Government's standards 
requiring documents to be accessible and understandable to the public. 
The Department did not receive any comments related to this section.

J. Executive Order 13211--Energy Supply

    This Final Rule is not subject to E.O. 13211, which assesses 
whether a regulation is likely to have a significant adverse effect on 
the supply, distribution, or use of energy. Accordingly, the Department 
has determined that this rule does not represent a significant energy 
action and does not warrant a Statement of Energy Effects. The 
Department did not receive any comments related to this section.

K. Paperwork Reduction Act

1. Summary
    As part of its continuing effort to reduce paperwork and respondent 
burden, the Department of Labor conducts a preclearance consultation 
program to provide the general public and Federal agencies with an 
opportunity to comment on proposed and continuing collections of 
information in accordance with the Paperwork Reduction Act of 1995 
(PRA) (44 U.S.C. 3506(c)(2)(A)). This helps to ensure that requested 
data can be provided in the desired format, reporting burden (time and 
financial resources) is minimized, collection instruments are clearly 
understood, and the impact of collection requirements on respondents 
can be properly assessed.
    In accordance with the Paperwork Reduction Act (44 U.S.C. 3501), 
information collection requirements, which must be implemented as a 
result of this regulation, a clearance package containing proposed 
forms was submitted to OMB on February 14, 2008, along with its 
proposed rule to reform the H-2A agricultural foreign labor 
certification program, and then again on May 22, 2008, in conjunction 
with the H-2B proposed rulemaking preceding this Final Rule. Therefore, 
the public was given 60 days to comment on this information collection 
with both submissions, for a total of 120 days. All comments received 
were taken into consideration and a final package was submitted to OMB. 
The collection of information for the current H-2B program under the 
regulations in effect prior to the effective date of this rule were 
approved under OMB control number 1205-0015 (Form ETA 750).
    This Final Rule implements the use of the new information 
collection, which OMB approved on November 21, 2008 under OMB control 
number 1205-0466. The Expiration Date is November 30, 2011. The new 
forms, ETA 9141 and ETA 9142, have a public reporting burden estimated 
to average 55 minutes for Form ETA 9141 and 2.75 hours for Form ETA 
9142 per response or application filed.
    This paperwork package applies--as does this Final Rule--to the H-
2B, H-1B, H-1B1, H-1C, E-3, and PERM programs. The burden hours 
associated with the additional programs are a result of the wage 
determination and retention of document requirements. Under this Final 
Rule, and the implementation schedule it establishes, employers 
applying to any of these programs must use the ETA Form 9141, a single, 
Federal form that replaces the State-specific forms previously used to 
obtain prevailing wage determinations. There are no additional costs to 
the employer associated with the implementation of this new form, as 
costs are defined by the Paperwork Reduction Act. As the Department 
notes elsewhere in this preamble, the H-1C program was inadvertently 
removed. Consistent with the proposed rule at 73 FR 29947, May 28, 
2008, it was the Department's intention to standardize all forms for 
better program effectiveness and efficiency in its non-agricultural 
programs, which necessarily extends also to the H-1C program.
    For an additional explanation of how the Department calculated the 
burden hours and related costs, the Paperwork Reduction Act package for 
this information collection may be obtained from the RegInfo.gov Web 
site at http://www.reginfo.gov/public/do/PRAMain or by contacting the 
Department at: Office of Policy Development and Research, Department of 
Labor, 200 Constitution Ave., NW., Washington, DC 20210 or by phone 
request to 202-693-3700 (this is not a toll-free number) or by e-mail 
at DOL_PRA_PUBLIC@dol.gov.
    The Department received six comments on this section, all related 
to the H-2B program. One commenter stated that the form ETA 9141 was 
unnecessarily long and complex and should be simplified. The Department 
has attempted to shorten the form and make it easier to use. It has 
been reduced from seven pages to four pages.

[[Page 78052]]

    Three of the comments related to the burden associated with the 
paperwork requirements. Two final commenters stated that they did not 
have the funding or staff time to manage the record retention 
requirements or to process and store the paperwork. None of the 
commenters specifically addressed the issue of our methodology or 
assumptions, or the other programs to which the ETA 9141 now applies.
    The paperwork burden estimate for the form used for the H-2B 
program under the regulations in effect prior to the effective date of 
this Final Rule, (form ETA 750--OMB control number 1205-0015) was 
approximately 1.4 hours. Under this new collection of information, the 
Department estimates that the burden will be approximately 2.75 hours 
for Form ETA 9142. We based this calculation on a burden estimate of 
1.4 hours for those program requirements that remained the same and 
allocated approximately 1.35 hours for the additional information 
requirements.
    Although the Department did not receive any comments related to the 
remaining programs (H-1B, H-1B1, E-3, H-1C, and PERM), it notes that 
only the Form ETA 9141 applies to these programs. This Form will be 
used in lieu of the State form for submitting a prevailing wage 
request. Although the burden hours for each State application vary, the 
Department estimates the burden hours to complete the State forms to be 
approximately 1.0 hour. As a result, and for the reasons discussed 
elsewhere in this preamble, the Department does not expect the 
paperwork burden hours to increase for these programs.
    In sum, without more persuasive analysis rebutting the analysis 
used by the Department, we assume our calculations are representative 
of the actual hourly burden for the new collection, which represents no 
increase for most programs and a minimal increase for the H-2B program.

L. Catalog of Federal Domestic Assistance Number

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

List of Subjects

20 CFR Part 655

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

20 CFR Part 656

    Administrative practice and procedure, Agriculture, Aliens, 
Employment, Employment and training, Enforcement, Forest and forest 
products, Fraud, Guam, Health professions, Immigration, Labor, 
Passports and visas, Penalties, Reporting and recordkeeping 
requirements, Students, Unemployment, Wages, Working conditions.

0
For the reasons stated in the preamble, the Department of Labor amends 
20 CFR parts 655 and 656 as follows:

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

0
1. The authority citation for part 655 is revised to read as follows:

    Authority: Section 655.0 issued under 8 U.S.C. 
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 1182(m), (n) and 
(t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1), 
Public Law 101-238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 
221(a), Public Law 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 
note); sec. 303(a)(8), Public Law 102-232, 105 Stat. 1733, 1748 (8 
U.S.C. 1101 note); sec. 323(c), Public Law 103-206, 107 Stat. 2428; 
sec. 412(e), Public Law 105-277, 112 Stat. 2681 (8 U.S.C. 1182 
note); sec. 2(d), Public Law 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 
1182 note); Public Law 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).

    Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 
1184(c), and 1188; and 8 CFR 214.2(h).
    Subpart A issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b), 1103(a), 
and 1184(a) and (c); and 8 CFR 214.2(h).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), 
and 1188; and 8 CFR 214.2(h).
    Subpart C issued under 8 CFR 214.2(h).
    Subparts D and E authority repealed.
    Subparts F and G issued under 8 U.S.C. 1288(c) and (d); and sec. 
323(c), Public Law 103-206, 107 Stat. 2428.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and 
(b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Public 
Law 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), 
Public Law 105-277, 112 Stat. 2681; and 8 CFR 214.2(h).
    Subparts J and K authority repealed.
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 
1182(m); sec. 2(d), Public Law 106-95, 113 Stat. 1312, 1316 (8 
U.S.C. 1182 note); Public Law 109-423, 120 Stat. 2900; and 8 CFR 
214.2(h).


0
2. Revise the heading of Part 655 to read as set forth above.

0
3. Revise subpart A to read as follows:
Subpart A--Labor Certification Process and Enforcement of Attestations 
for Temporary Employment in Occupations Other Than Agriculture or 
Registered Nursing in the United States (H-2B Workers)
Sec.
655.1 Purpose and scope of subpart A.
655.2 Territory of Guam.
655.3 Special procedures.
655.4 Definitions of terms used in this subpart.
655.5 Application Filing Transition.
655.6 Temporary need.
655.7 [Reserved]
655.8 [Reserved]
655.9 [Reserved]
655.10 Determination of prevailing wage for temporary labor 
certification purposes.
655.11 Certifying officer review of prevailing wage determinations.
655.12 [Reserved]
655.13 [Reserved]
655.14 [Reserved]
655.15 Required pre-filing recruitment.
655.17 Advertising requirements.
655.18 [Reserved]
655.19 [Reserved]
655.20 Applications for temporary employment certification.
655.21 Supporting evidence for temporary need.
655.22 Obligations of H-2B employers.
655.23 Receipt and processing of applications.
655.24 Audits.
655.25 [Reserved]
655.26 [Reserved]
655.27 [Reserved]
655.28 [Reserved]
655.29 [Reserved]
655.30 Supervised recruitment.
655.31 Debarment.
655.32 Labor certification determinations.
655.33 Administrative review.
655.34 Validity of temporary labor certifications.
655.35 Required departure.
655.50 Enforcement process.
655.55 Complaints.
655.60 Violations.
655.65 Remedies for violations.
655.70 WHD Administrator's determination.
655.71 Request for hearing.
655.72 Hearing rules of practice.
655.73 Service of pleadings.
655.74 Conduct of proceedings.
655.75 Decision and order of administrative law judge.
655.76 Appeal of administrative law judge decision.
655.80 Notice to OFLC and DHS.

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


Sec.  655.1  Purpose and scope of subpart A.

    (a) Before granting the petition of an employer to admit 
nonimmigrant workers on H-2B visas for temporary

[[Page 78053]]

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


Sec.  655.2  Territory of Guam.

    Subpart A of this part does not apply to temporary employment in 
the Territory of Guam, and the Department of Labor (Department or DOL) 
does not certify to the USCIS of DHS the temporary employment of 
nonimmigrant foreign workers under H-2B visas, or enforce compliance 
with the provisions of the H-2B visa program provisions in the 
Territory of Guam. Pursuant to DHS regulations, 8 CFR 214.2(h)(6)(v) 
administration of the H-2B temporary labor certification program is 
performed by the Governor of Guam, or the Governor's designated 
representative.


Sec.  655.3  Special procedures.

    (a) Systematic process. This subpart provides procedures for the 
processing of H-2B applications from employers for the certification of 
employment of nonimmigrant positions in nonagricultural employment.
    (b) Establishment of special procedures. The Office of Foreign 
Labor Certification (OFLC) Administrator has the authority to establish 
or to devise, continue, revise, or revoke special procedures in the 
form of variances for the processing of certain H-2B applications when 
employers can demonstrate, upon written application to the OFLC 
Administrator, that special procedures are necessary. These include 
special procedures currently in effect for the handling of applications 
for tree planters and related reforestation workers, professional 
athletes, boilermakers coming to the U.S. on an emergency basis, and 
professional entertainers. Prior to making determinations under this 
paragraph (b), the OFLC Administrator may consult with employer and 
worker representatives.


Sec.  655.4  Definitions of terms used in this subpart.

    For the purposes of this subpart:
    Act means the Immigration and Nationality Act or INA, as amended, 8 
U.S.C. 1101 et seq.
    Administrative Law Judge means a person within the Department's 
Office of Administrative Law Judges appointed pursuant to 5 U.S.C. 
3105, or a panel of such persons designated by the Chief Administrative 
Law Judge from the Board of Alien Labor Certification Appeals 
established by part 656 of this chapter, which will hear and decide 
appeals as set forth in Sec.  655.115.
    Administrator, Office of Foreign Labor Certification (OFLC) means 
the primary official of the Office of Foreign Labor Certification, ETA, 
or the Administrator's designee.
    Administrator, Wage and Hour Division (WHD), Employment Standards 
Administration means the primary official of the WHD, or the 
Administrator's designee.
    Agent means a legal entity or person authorized to act on behalf of 
the employer for temporary non-agricultural labor certification 
purposes that is not itself an employer as defined in this subpart. The 
term ``agent''' specifically excludes associations or other 
organizations of employers.
    Applicant means a lawful U.S. worker who is applying for a job 
opportunity for which an employer has filed an Application for 
Temporary Employment Certification (Form ETA 9142).
    Application for Temporary Employment Certification means the Office 
of Management and Budget (OMB)-approved form submitted by an employer 
to secure a temporary nonagricultural labor certification determination 
from DOL. A complete submission of the Application for Temporary 
Employment Certification includes the form, all valid wage 
determinations as required by Sec.  655.101(a)(1) and the U.S. worker 
recruitment report.
    Area of Intended Employment means the geographic area within normal 
commuting distance of the place (worksite address) of intended 
employment of the job opportunity for which the certification is 
sought. There is no rigid measure of distance which constitutes a 
normal commuting distance or normal commuting area, because there may 
be widely varying factual circumstances among different areas (e.g., 
average commuting times, barriers to reaching the worksite, quality of 
regional transportation network, etc.). If the place of intended 
employment is within a Metropolitan Statistical Area (MSA), including a 
multistate MSA, any place within the MSA is deemed to be within normal 
commuting distance of the place of intended employment. The borders of 
MSAs are not controlling in the identification of the normal commuting 
area; a location outside of an MSA may be within normal commuting 
distance of a location that is inside (e.g., near the border of) the 
MSA.
    Attorney means any person who is currently a member in good 
standing of the bar of the highest court of any State, possession, 
territory, or commonwealth of the United States, or the District of 
Columbia, and who is not under suspension, debarment or disbarment from 
practice before any court or the Department, the Board of Immigration 
Appeals, the immigration judges, or DHS under 8 CFR 292.3, 1003.101. 
Such a person is permitted to act as an agent or attorney for an 
employer under this subpart.
    Board of Alien Labor Certification Appeals (BALCA or Board) means 
the permanent Board established by part 656 of this chapter, chaired by 
the Chief Administrative Law Judge, and consisting of Administrative 
Law Judges assigned to the Department and designated by the Chief 
Administrative Law Judge to be members of BALCA.

[[Page 78054]]

The Board is located in Washington, DC, and reviews and decides appeals 
in Washington, DC.
    Center Director means the OFLC official to whom the OFLC 
Administrator has delegated his authority for purposes of National 
Processing Center (NPC) operations and functions.
    Certifying Officer (CO) means the OFLC official designated by the 
Administrator, OFLC with making programmatic determinations on 
employer-filed applications under the H-2B program.
    Chief Administrative Law Judge means the chief official of the 
Department's Office of Administrative Law Judges or the Chief 
Administrative Law Judge's designee.
    Date of need means the first date the employer requires services of 
the H-2B workers as listed on the application.
    Department of Homeland Security (DHS) means the Federal agency 
having jurisdiction over certain immigration-related functions, acting 
through its agencies, including the U.S. Citizenship and Immigration 
Services.
    Eligible worker means an individual who is not an unauthorized 
alien (as defined in sec. 274A(h)(3) of the INA, 8 U.S.C. 1324a(h)(3), 
or in this paragraph (c)) with respect to the employment in which the 
worker is engaging.
    Employee means employee as defined under the general common law of 
agency. Some of the factors relevant to the determination of employee 
status include: The hiring party's right to control the manner and 
means by which the work is accomplished; the skill required to perform 
the work; the source of the instrumentalities and tools for 
accomplishing the work; the location of the work; the hiring party's 
discretion over when and how long to work; and whether the work is part 
of the regular business of the hiring party. Other applicable factors 
should be considered and no one factor is dispositive.
    Employer means:
    (1) A person, firm, corporation or other association or 
organization:
    (i) Has a place of business (physical location) in the U.S. and a 
means by which it may be contacted;
    (ii) Has an employer relationship with respect to H-2B employees or 
related U.S. workers under this part; and
    (iii) Possesses, for purposes of the filing of an application, a 
valid Federal Employer Identification Number (FEIN).
    (2) Where two or more employers each have the definitional indicia 
of employment with respect to an employee, those employers may be 
considered to jointly employ that employee.
    Employment and Training Administration or ETA means the agency 
within the Department, which includes the OFLC and has been delegated 
authority by the Secretary to fulfill the Secretary's mandate under the 
Act.
    ETA National Processing Center (NPC) means a National Processing 
Center established by the OFLC for the processing of applications 
submitted in connection with the Department's mandate pursuant to the 
INA.
    Full-time, for purposes of temporary labor certification 
employment, means 30 or more hours per week, except that where a State 
or an established practice in an industry has developed a definition of 
full-time employment for any occupation that is less than 30 hours per 
week, that definition shall have precedence.
    H-2B Petition means the form and accompanying documentation 
required by DHS for employers seeking to employ foreign persons as H-2B 
nonimmigrant workers.
    INA means the Immigration and Nationality Act, as amended, 8 U.S.C. 
1101 et seq.
    Job contractor means a person, association, firm, or a corporation 
that meets the definition of an employer and who contracts services or 
labor on a temporary basis to one or more employers, which is not an 
affiliate, branch or subsidiary of the job contractor, and where the 
job contractor will not exercise any supervision or control in the 
performance of the services or labor to be performed other than hiring, 
paying, and firing the workers.
    Job opportunity means one or more job openings with the petitioning 
employer for temporary employment at a place in the U.S. to which U.S. 
workers can be referred. Job opportunities consisting solely of job 
duties that will be performed totally outside the United States, its 
territories, possessions, or commonwealths cannot be the subject of an 
Application for Temporary Employment Certification.
    Joint employment means that where two or more employers each have 
sufficient definitional indicia of employment to be considered the 
employer of an employee, those employers may be considered to jointly 
employ that employee. An employer in a joint employment relationship to 
an employee may be considered a ``joint employer'' of that employee.
    Layoff means any involuntary separation of one or more U.S. 
employees without cause or prejudice.
    Metropolitan Statistical Area (MSA) means those geographic entities 
defined by the U.S. Office of Management and Budget (OMB) for use by 
Federal statistical agencies in collecting, tabulating, and publishing 
Federal statistics. A metro area contains a core urban area of 50,000 
or more population, and a micro area contains an urban core of at least 
10,000 (but less than 50,000) population. Each metro or micro area 
consists of one or more counties and includes the counties containing 
the core urban area, as well as any adjacent counties that have a high 
degree of social and economic integration (as measured by commuting to 
work) with the urban core.
    Offered Wage means the highest of the prevailing wage, Federal 
minimum wage, the State minimum wage, or local minimum wage.
    Office of Foreign Labor Certification (OFLC) means the 
organizational component within ETA that provides national leadership 
and policy guidance and develops regulations and procedures by which it 
carries out the responsibilities of the Secretary under the INA, as 
amended, concerning foreign workers seeking admission to the U.S. in 
order to work under sec. 101(a)(15)(H)(ii)(b) of the INA, as amended.
    Occupational Employment Statistics Survey (OES) means that program 
under the jurisdiction of the Bureau of Labor Statistics (BLS) that 
provides annual wage estimates for occupations at the State and MSA 
levels.
    Prevailing Wage Determination (PWD) means the prevailing wage for 
the position, as described in Sec.  655.10(b), that is the subject of 
the Application for Temporary Employment Certification.
    Professional Athlete shall have the meaning ascribed to it in INA 
sec. 212(a)(5)(A)(iii)(II), which defines ``professional athlete'' as 
an individual who is employed as an athlete by:
    (1) A team that is a member of an association of six or more 
professional sports teams whose total combined revenues exceed 
$10,000,000 per year, if the association governs the conduct of its 
members and regulates the contests and exhibitions in which its member 
teams regularly engage; or
    (2) Any minor league team that is affiliated with such an 
association.
    Representative means an individual employed by or authorized to act 
on behalf of the employer with respect to the recruitment activities 
entered into for and attestations made with respect to the Application 
for Temporary Employment Certification. A representative who interviews 
and/or considers U.S. workers for the job that is subject of the 
Application must be the person who normally interviews or

[[Page 78055]]

considers, on behalf of the employer, applicants for job opportunities 
such as that offered in the application, but which do not involve labor 
certifications.
    Secretary means the Secretary of Labor, the chief official of the 
U.S. Department of Labor, or the Secretary's designee.
    Secretary of Homeland Security means the chief official of the 
Department of Homeland Security or the Secretary of Homeland Security's 
designee.
    Secretary of State means the chief official of the U.S. Department 
of State or the Secretary of State's designee.
    State Workforce Agency (SWA), formerly known as State Employment 
Security Agency, means the State government agency that receives funds 
pursuant to the Wagner-Peyser Act to administer public labor exchange 
delivered through the State's one-stop delivery system in accordance 
with the Wagner-Peyser Act. (29 U.S.C. 49 et seq.).
    Strike means a labor dispute wherein employees engage in a 
concerted stoppage of work (including stoppage by reason of the 
expiration of a collective-bargaining agreement) or engage in any 
concerted slowdown or other concerted interruption of operations. 
Whether a job opportunity is vacant by reason of a strike or lock out 
will be determined by evaluating for each position identified as vacant 
in the Application for Temporary Employment Certification whether the 
specific vacancy has been caused by the strike or lock out.
    Successor in Interest means that, in determining whether an 
employer is a successor in interest, the factors used under Title VII 
of the Civil Rights Act and the Vietnam Era Veterans' Readjustment 
Assistance Act will be considered. When considering whether an employer 
is a successor, the primary consideration will be the personal 
involvement of the firm's ownership, management, supervisors, and 
others associated with the firm in the violations resulting in 
debarment. Normally, wholly new management or ownership of the same 
business operation, one in which the former management or owner does 
not retain a direct or indirect interest, will not be deemed to be a 
successor in interest for purposes of debarment. A determination of 
whether or not a successor in interest exists is based on the entire 
circumstances viewed in their totality. The factors to be considered 
include:
    (1) Substantial continuity of the same business operations;
    (2) Use of the same facilities;
    (3) Continuity of the work force;
    (4) Similarity of jobs and working conditions;
    (5) Similarity of supervisory personnel;
    (6) Similarity in machinery, equipment, and production methods;
    (7) Similarity of products and services; and
    (8) The ability of the predecessor to provide relief.
    United States (U.S.), when used in a geographic sense, means the 
continental United States, Alaska, Hawaii, the Commonwealth of Puerto 
Rico, and the territories of Guam, the Virgin Islands, and, as of the 
transition program effective date, as defined in the Consolidated 
Natural Resources Act of 2008, Public Law 110-229, Title VII, the 
Commonwealth of the Northern Mariana Islands.
    United States Citizenship and Immigration Services (USCIS) means 
the Federal agency within DHS making the determination under the INA 
whether to grant petitions filed by employers seeking H-2B workers to 
perform temporary nonagricultural work in the U.S.
    United States Worker (U.S. Worker) means a worker who is either
    (1) A citizen or national of the U.S.; or
    (2) An alien who is lawfully admitted for permanent residence in 
the U.S., is admitted as a refugee under sec. 207 of the INA, is 
granted asylum under sec. 208 of the INA, or is an immigrant otherwise 
authorized (by the INA or by DHS) to be employed in the U.S.
    Within [number and type] days will, for purposes of determining an 
employer's compliance with timing requirements with respect to appeals 
and requests for review, begin to run on the first business day after 
the Department sends a notice to the employer by means normally 
assuring next-day delivery, and will end on the day that the employer 
sends whatever communication is required by these rules back to the 
Department, as evidenced by a postal mark or other similar receipt.


Sec.  655.5  Application Filing Transition.

    (a) Compliance with these regulations. Except as provided in 
paragraphs (b) and (c) of this section, employers filing applications 
for H-2B workers on or after the effective date of these regulations 
where the date of need for the services or labor to be performed is on 
or after October 1, 2009, must comply with all of the obligations and 
assurances in this subpart. SWAs will no longer accept for processing 
applications filed by employers for H-2B workers for temporary or 
seasonal nonagricultural services on or after January 18, 2009.
    (b) Applications filed under former regulations. (1) For 
applications filed with the SWAs serving the area of intended 
employment prior to the effective date of these regulations, the SWAs 
shall continue to process all active applications under the former 
regulations and transmit all completed applications to the appropriate 
NPC for review and issuance of a labor certification determination.
    (2) For applications filed with the SWAs serving the area of 
intended employment prior to the effective date of these regulations 
that were completed and transmitted to the NPC, the NPC shall continue 
to process all active applications under the former regulations and 
issue a labor certification determination.
    (c) Applications filed with the NPC under these regulations. 
Employers filing applications on or after the effective date of these 
regulations where their date of need for H-2B workers is prior to 
October 1, 2009, must receive a prevailing wage determination from the 
SWA serving the area of intended employment. The SWA shall process such 
requests in accordance with the provisions of Sec.  655.10. Once the 
employer receives its prevailing wage determination from the SWA, it 
must conduct all of the pre-filing recruitment steps set forth under 
this subpart prior to filing an Application for Temporary Employment 
Certification with the NPC.


Sec.  655.6  Temporary need.

    (a) To use the H-2B program, the employer must establish that its 
need for nonagricultural services or labor is temporary, regardless of 
whether the underlying job is permanent or temporary. 8 CFR 
214.2(h)(6)(ii).
    (b) The employer's need is considered temporary if justified to the 
Secretary as either a one-time occurrence, a seasonal need, a peakload 
need, or an intermittent need, as defined by the Department of Homeland 
Security. 8 CFR 214.2(h)(6)(ii)(B).
    (c) Except where the employer's need is based on a one-time 
occurrence, the Secretary will, absent unusual circumstances, deny an 
Application for Temporary Employment Certification where the employer 
has a recurring, seasonal or peakload need lasting more than 10 months.
    (d) The temporary nature of the work or services to be performed in 
applications filed by job contractors will be determined by examining 
the job contractor's own need for the services or labor to be performed 
in addition to the needs of each individual employer with

[[Page 78056]]

whom the job contractor has agreed to provide workers as part of a 
signed work contract or labor services agreement.
    (e) The employer filing the application must maintain documentation 
evidencing the temporary need and be prepared to submit this 
documentation in response to a Request for Further Information (RFI) 
from the CO prior to rendering a Final Determination or in the event of 
an audit examination. The documentation required in this section must 
be retained by the employer for a period of no less than 3 years from 
the date of the labor certification.


Sec. Sec.  655.7-655.9  [Reserved]


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

    (a) Application process. (1) The employer must request a prevailing 
wage determination from the NPC in accordance with the procedures 
established by this regulation.
    (2) The employer must obtain a prevailing wage determination that 
is valid either on the date recruitment begins or the date of filing a 
complete Application for Temporary Employment Certification with the 
Department.
    (3) The employer must offer and advertise the position to all 
potential workers at a wage at least equal to the prevailing wage 
obtained from the NPC.
    (b) Determinations. Prevailing wages shall be determined as 
follows:
    (1) Except as provided in paragraph (e) of this section, if the job 
opportunity is covered by a collective bargaining agreement (CBA) that 
was negotiated at arms' length between the union and the employer, the 
wage rate set forth in the CBA is considered as not adversely affecting 
the wages of U.S. workers, that is, it is considered the ``prevailing 
wage'' for labor certification purposes.
    (2) If the job opportunity is not covered by a CBA, the prevailing 
wage for labor certification purposes shall be the arithmetic mean, 
except as provided in paragraph (b)(4) of this section, of the wages of 
workers similarly employed at the skill level in the area of intended 
employment. The wage component of the BLS Occupational Employment 
Statistics Survey (OES) shall be used to determine the arithmetic mean, 
unless the employer provides a survey acceptable to OFLC under 
paragraph (f) of this section.
    (3) If the job opportunity involves multiple worksites within an 
area of intended employment and different prevailing wage rates exist 
for the same opportunity and staff level within the area of intended 
employment, the prevailing wage shall be based on the highest 
applicable wage among all relevant worksites.
    (4) If the employer provides a survey acceptable under paragraph 
(f) of this section that provides a median but does not provide an 
arithmetic mean, the prevailing wage applicable to the employer's job 
opportunity shall be the median of the wages of U.S. workers similarly 
employed in the area of intended employment.
    (5) The employer may use a current wage determination in the area 
determined under the Davis-Bacon Act, 40 U.S.C. 276a et seq., 29 CFR 
part 1, or the McNamara-O'Hara Service Contract Act, 41 U.S.C. 351 et 
seq.
    (6) The NPC will enter its wage determination on the form it uses 
for these purposes, indicate the source, and return the form with its 
endorsement to the employer within 30 days of receipt of the request 
for a prevailing wage determination. The employer must offer this wage 
(or higher) to both its H-2B workers and any similarly employed U.S. 
worker hired in response to the recruitment required as part of the 
application.
    (c) Similarly Employed. For purposes of this section, ``similarly 
employed'' means having substantially comparable jobs in the 
occupational category in the area of intended employment, except that, 
if a representative sample of workers in the occupational category 
cannot be obtained in the area of intended employment, similarly 
employed means:
    (1) Having jobs requiring a substantially similar level of 
comparable skills within the area of intended employment; or
    (2) If there are no substantially comparable jobs in the area of 
intended employment, having substantially comparable jobs with 
employers outside of the area of intended employment.
    (d) Validity period. The NPC must specify the validity period of 
the prevailing wage, which in no event may be more than 1 year or less 
than 3 months from the determination date. For employment that is less 
than one year in duration, the prevailing wage determination shall 
apply and shall be paid the prevailing wage by the employer, at a 
minimum, for the duration of the employment.
    (e) Professional athletes. In computing the prevailing wage for a 
professional athlete when the job opportunity is covered by 
professional sports league rules or regulations, the wage set forth in 
those rules or regulations is considered the prevailing wage (see sec. 
212(p)(2) of the INA).
    (f) Employer-provided wage information. (1) If the job opportunity 
is not covered by a CBA, or by a professional sports league's rules or 
regulations, the NPC will consider wage information provided by the 
employer in making a Prevailing Wage Determination. An employer survey 
can be submitted either initially or after NPC issuance of a PWD 
derived from the OES survey.
    (2) In each case where the employer submits a survey or other wage 
data for which it seeks acceptance, the employer must provide specific 
information about the survey methodology, including such items as 
sample size and source, sample selection procedures, and survey job 
descriptions, to allow a determination of the adequacy of the data 
provided and validity of the statistical methodology used in conducting 
the survey in accordance with guidance issued by the OFLC national 
office.
    (3) The survey must be based upon recently collected data:
    (i) Any published survey must have been published within 24 months 
of the date of submission, must be the most current edition of the 
survey, and must be based on data collected not more than 24 months 
before the publication date.
    (ii) A survey conducted by the employer must be based on data 
collected within 24 months of the date it is submitted for 
consideration.
    (4) If the employer-provided survey is found not to be acceptable, 
the NPC shall inform the employer in writing of the reasons the survey 
was not accepted.
    (5) The employer, after receiving notification that the survey it 
provided for consideration is not acceptable, may file supplemental 
information as provided in paragraph (g) of this section, file a new 
request for a PWD, appeal under Sec.  655.11, or, if the initial PWD 
was requested prior to submission of the employer survey, acquiesce to 
the initial PWD.
    (g) Submission of supplemental information by employer. (1) If the 
employer disagrees with the wage level assigned to its job opportunity, 
or if the NPC informs the employer its survey is not acceptable, or if 
there is another legitimate basis for such a review, the employer may 
submit supplemental information to the NPC.
    (2) The NPC must consider one supplemental submission relating to 
the employer's survey, the skill level assigned to the job opportunity, 
or any other legitimate basis for the employer to request such a 
review. If the NPC does not accept the employer's survey after 
considering the supplemental information, or affirms its determination 
concerning the skill level, the NPC must

[[Page 78057]]

inform the employer, in writing, of the reasons for its decision.
    (3) The employer may then apply for a new wage determination, 
appeal under Sec.  655.11, or acquiesce to the initial PWD.
    (h) The prevailing wage cannot be lower than required by any other 
law. No PWD for labor certification purposes made under this section 
permits an employer to pay a wage lower than the highest wage required 
by any applicable Federal, State, or local law.
    (i) Retention of Documentation. The employer must retain the PWD 
for 3 years and submitted to a CO in the event it is requested in an 
RFI or an audit or to a Wage and Hour representative in the event of a 
Wage and Hour investigation.


Sec.  655.11  Certifying officer review of prevailing wage 
determinations.

    (a) Request for review of prevailing wage determinations. Any 
employer desiring review of a PWD must make a written request for such 
review within 10 days of the date from when the final PWD was issued. 
The request for review must be sent to the NPC postmarked no later than 
10 days after the determination; clearly identify the PWD for which 
review is sought; set forth the particular grounds for the request; and 
include all materials submitted to the NPC for purposes of securing the 
PWD.
    (b) NPC Review. Upon the receipt of a written request for review, 
the NPC shall review the employer's request and accompanying 
documentation, including any supplementary material submitted by the 
employer.
    (c) Designations. The Director of the NPC will determine which CO 
will review the employer's request for review.
    (d) Review on the record. The CO shall review the PWD solely on the 
basis upon which the PWD was made and after review may:
    (1) Affirm the PWD issued by the NPC; or
    (2) Modify the PWD.
    (e) Request for review by BALCA. Any employer desiring review of a 
CO's decision on a PWD must make a written request for review of the 
determination by BALCA within 30 calendar days of the date of the 
decision of the CO. The CO must receive the written request for BALCA 
review no later than the 30th day after the date of its final 
determination including the date of the final determination.
    (1) The request for review, statements, briefs, and other 
submissions of the parties and amicus curiae must contain only legal 
arguments and only such evidence that was within the record upon which 
the decision on the PWD by the NPC was based.
    (2) The request for review must be in writing and addressed to the 
CO who made the determination. Upon receipt of a request for a review, 
the CO must immediately assemble an indexed appeal file in reverse 
chronological order, with the index on top followed by the most recent 
document.
    (3) The CO must send the Appeal File to the Office of 
Administrative Law Judges, Board of Alien Labor Certification Appeals, 
800 K Street, NW., Suite 400-N, Washington, DC 20001-8002.
    (4) The BALCA shall handle appeals in accordance with Sec.  655.33.


Sec. Sec.  655.12-655.14  [Reserved]


Sec.  655.15  Required pre-filing recruitment.

    (a) Time of Filing of Application. An employer may not file an 
Application for Temporary Employment Certification before all of the 
pre-filing recruitment steps set forth in this section have been fully 
satisfied, except where specifically exempted from some or all of those 
requirements by these regulations or special procedures. Applications 
submitted not meeting this requirement shall not be accepted for 
processing.
    (b) General Attestation Obligation. An employer must attest on the 
Application for Temporary Employment Certification to having performed 
all required steps of the recruitment process as specified in this 
section.
    (c) Retention of documentation. The employer filing the Application 
for Temporary Employment Certification must maintain documentation of 
its advertising and recruitment efforts, including prevailing wage 
determinations, as required in this subpart and be prepared, upon 
written request, to submit this documentation in response to an RFI 
from the CO prior to the CO rendering a Final Determination or in the 
event of a CO-directed audit examination. The documentation required in 
this section must be retained by the employer for a period of no less 
than 3 years from the date of the certification.
    (d) Recruitment Steps. An employer filing an application must:
    (1) Obtain a prevailing wage determination from the NPC in 
accordance with procedures in Sec.  655.10;
    (2) Submit a job order to the SWA serving the area of intended 
employment;
    (3) Publish two print advertisements (one of which must be on a 
Sunday, except as provided in paragraph (f)(4) of this section); and
    (4) Where the employer is a party to a collective bargaining 
agreement governing the job classification that is the subject of the 
H-2B labor certification application, the employer must formally 
contact the local union that is party to the collective bargaining 
agreement as a recruitment source for able, willing, qualified, and 
available U.S. workers.
    (e) Job Order. (1) The employer must place an active job order with 
the SWA serving the area of intended employment no more than 120 
calendar days before the employer's date of need for H-2B workers, 
identifying it as a job order to be placed in connection with a future 
application for H-2B workers. Unless otherwise directed by the CO, the 
SWA must keep the job order open for a period of not less than 10 
calendar days. Documentation of this step shall be satisfied by 
maintaining a copy of the SWA job order downloaded from the SWA 
Internet job listing site, a copy of the job order provided by the SWA, 
or other proof of publication from the SWA containing the text of the 
job order and the start and end dates of posting. If the job 
opportunity contains multiple work locations within the same area of 
intended employment and the area of intended employment is found in 
more than one State, the employer shall place a job order with the SWA 
having jurisdiction over the place where the work has been identified 
to begin. Upon placing a job order, the SWA receiving the job order 
under this paragraph shall promptly transmit, on behalf of the 
employer, a copy of the active job order to all States listed in the 
application as anticipated worksites.
    (2) The job order submitted by the employer to the SWA must satisfy 
all the requirements for newspaper advertisements contained in Sec.  
655.17.
    (f) Newspaper Advertisements. (1) During the period of time that 
the job order is being circulated for intrastate clearance by the SWA 
under paragraph (e) of this section, the employer must publish an 
advertisement on 2 separate days, which may be consecutive, one of 
which must be a Sunday advertisement (except as provided in paragraph 
(f)(2) of this section), in a newspaper of general circulation serving 
the area of intended employment that has a reasonable distribution and 
is appropriate to the occupation and the workers likely to apply for 
the job opportunity. Both newspaper advertisements must be published 
only after the job order is placed for active recruitment by the SWA.
    (2) If the job opportunity is located in a rural area that does not 
have a newspaper with a Sunday edition, the

[[Page 78058]]

employer must, in place of a Sunday edition advertisement, advertise in 
the regularly published daily edition with the widest circulation in 
the area of intended employment.
    (3) The newspaper advertisements must satisfy the requirements 
contained in Sec.  655.17. The employer must maintain copies of 
newspaper pages (with date of publication and full copy of 
advertisement), or tear sheets of the pages of the publication in which 
the advertisements appeared, or other proof of publication containing 
the text of the printed advertisements and the dates of publication 
furnished by the newspaper.
    (4) If a professional, trade or ethnic publication is more 
appropriate for the occupation and the workers likely to apply for the 
job opportunity than a general circulation newspaper, and is the most 
likely source to bring responses from able, willing, qualified, and 
available U.S. workers, then the employer may use a professional, trade 
or ethnic publication in place of one of the newspaper advertisements, 
but may not replace the Sunday advertisement (or the substitute 
permitted by paragraph (f)(2) of this section).
    (g) Labor Organizations. During the period of time that the job 
order is being circulated for intrastate clearance by the SWA under 
paragraph (e) of this section, an employer that is already a party to a 
collective bargaining agreement governing the job classification that 
is the subject of the H-2B labor certification application must 
formally contact by U.S. Mail or other effective means the local union 
that is party to the collective bargaining agreement. An employer 
governed by this paragraph must maintain dated logs demonstrating that 
such organizations were contacted and notified of the position openings 
and whether they referred qualified U.S. worker(s), including number of 
referrals, or were non-responsive to the employer's request.
    (h) Layoff. If there has been a layoff of U.S. workers by the 
applicant employer in the occupation in the area of intended employment 
within 120 days of the first date on which an H-2B worker is needed as 
indicated on the submitted Application for Temporary Employment 
Certification, the employer must document it has notified or will 
notify each laid-off worker of the job opportunity involved in the 
application and has considered or will consider each laid-off worker 
who expresses interest in the opportunity, and the result of the 
notification and consideration.
    (i) Referral of U.S. workers. SWAs may only refer for employment 
individuals for whom they have verified identity and employment 
authorization through the process for employment verification of all 
workers that is established by INA sec. 274A(b). SWAs must provide 
documentation certifying the employment verification that satisfies the 
standards of INA sec. 274A(a)(5) and its implementing regulations at 8 
CFR 274a.6.
    (j) Recruitment Report. (1) No fewer than 2 calendar days after the 
last date on which the job order was posted and no fewer than 5 
calendar days after the date on which the last newspaper or journal 
advertisement appeared, the employer must prepare, sign, and date a 
written recruitment report. The employer may not submit the H-2B 
application until the recruitment report is completed. The recruitment 
report must be submitted to the NPC with the application. The employer 
must retain a copy of the recruitment report for a period of 3 years.
    (2) The recruitment report must:
    (i) Identify each recruitment source by name;
    (ii) State the name and contact information of each U.S. worker who 
applied or was referred to the job opportunity up to the date of the 
preparation of the recruitment report, and the disposition of each 
worker, including any applicable laid-off workers;
    (iii) If applicable, explain the lawful job-related reason(s) for 
not hiring any U.S. workers who applied or were referred to the 
position.
    (3) The employer must retain r[eacute]sum[eacute]s (if available) 
of, and evidence of contact with (which may be in the form of an 
attestation), each U.S. worker who applied or was referred to the job 
opportunity. Such r[eacute]sum[eacute]s and evidence of contact must be 
retained along with the recruitment report for a period of no less than 
3 years, and must be provided in response to an RFI or in the event of 
an audit or an investigation.


Sec.  655.17  Advertising requirements.

    All advertising conducted to satisfy the required recruitment steps 
under Sec.  655.15 before filing the Application for Temporary 
Employment Certification must meet the requirements set forth in this 
section and must contain terms and conditions of employment which are 
not less favorable than those to be offered to the H-2B workers. All 
advertising must contain the following information:
    (a) The employer's name and appropriate contact information for 
applicants to send r[eacute]sum[eacute]s directly to the employer;
    (b) The geographic area of employment with enough specificity to 
apprise applicants of any travel requirements and where applicants will 
likely have to reside to perform the services or labor;
    (c) If transportation to the worksite(s) will be provided by the 
employer, the advertising must say so;
    (d) A description of the job opportunity (including the job duties) 
for which labor certification is sought with sufficient detail to 
apprise applicants of services or labor to be performed and the 
duration of the job opportunity;
    (e) The job opportunity's minimum education and experience 
requirements and whether or not on-the-job training will be available;
    (f) The work hours and days, expected start and end dates of 
employment, and whether or not overtime will be available;
    (g) The wage offer, or in the event that there are multiple wage 
offers, the range of applicable wage offers, each of which must not be 
less than the highest of the prevailing wage, the Federal minimum wage, 
State minimum wage, or local minimum wage applicable throughout the 
duration of the certified H-2B employment; and
    (h) That the position is temporary and the total number of job 
openings the employer intends to fill.


Sec. Sec.  655.18-655.19  [Reserved]


Sec.  655.20  Applications for temporary employment certification.

    (a) Application Filing Requirements. An employer who desires to 
apply for labor certification of temporary employment for one or more 
nonimmigrant foreign positions must file a completed Application for 
Temporary Employment Certification form, and a copy of the recruitment 
report completed in accordance with Sec.  655.15(j).
    (b) Filing. An employer must complete the Application for Temporary 
Employment Certification and send it by U.S. Mail or private mail 
courier to the NPC. Employers are strongly encouraged to keep receipts 
of any mailings. The Department will publish a Notice in the Federal 
Register identifying the address or addresses to which applications 
must be mailed, and will also post these addresses on the Department's 
Internet Web site at http://www.foreignlaborcert.doleta.gov/. The form 
must bear the original signature of the employer (and that of the 
employer's authorized attorney or agent if the employer is represented 
by an attorney or agent). The Department

[[Page 78059]]

may, at a future date, require applications to be filed electronically 
in addition to or instead of by U.S. Mail or private mail courier.
    (c) Except where otherwise permitted under Sec.  655.3, an 
association or other organization of employers is not permitted to file 
master applications on behalf of its employer-members under the H-2B 
program.
    (d) Certification of more than one position may be requested on the 
application as long as all H-2B workers will perform the same services 
or labor on the same terms and conditions, in the same occupation, in 
the same area of intended employment, and during the same period of 
employment.
    (e) Except where otherwise permitted under Sec.  655.3, only one 
Application for Temporary Employment Certification may be filed for 
worksite(s) within one area of intended employment for each job 
opportunity with an employer.
    (f) Where a one-time occurrence lasts longer than one year, but 
less than 18 months, the employer will be issued a labor certification 
for the entire period of need. Where a one-time occurrence lasts 18 
months or longer, the employer will be required to conduct another 
labor market for the portion of time beyond 12 months.


Sec.  655.21  Supporting evidence for temporary need.

    (a) Statement of Temporary Need. Each Application for Temporary 
Employment Certification must include attestations regarding temporary 
need in the appropriate sections. The employer must include a detailed 
statement of temporary need containing the following:
    (1) A description of the employer's business history and activities 
(i.e., primary products or services) and schedule of operations 
throughout the year;
    (2) An explanation regarding why the nature of the employer's job 
opportunity and number of foreign workers being requested for 
certification reflect a temporary need;
    (3) An explanation regarding how the request for temporary labor 
certification meets one of the regulatory standards of a one-time 
occurrence, seasonal, peakload, or intermittent need under Sec.  
655.6(b) as defined by DHS under 8 CFR 214.2(h)(6)(ii)(B); and
    (4) If applicable, a statement justifying any increase or decrease 
in the number of H-2B positions being requested for certification from 
the previous year.
    (b) Request for Supporting Evidence. In circumstances where the CO 
requests evidence or documentation substantiating the employer's 
temporary need through a RFI under Sec.  655.23(c) to support a Final 
Determination, or notifies the employer that its application is being 
audited under Sec.  655.24, the employer must timely furnish the 
requested supplemental information or evidence or documentation. 
Failure to provide the information requested or late submissions may be 
grounds for the denial of the application. All such documentation or 
evidence becomes part of the record of the application.
    (c) Retention of documentation. The documentation required in this 
section and any other supporting evidence justifying the temporary need 
by the employer filing the Application for Temporary Employment 
Certification must be retained for a period of no less than 3 years 
from the date of the certification.


Sec.  655.22  Obligations of H-2B employers.

    An employer seeking H-2B labor certification must attest as part of 
the Application for Temporary Employment Certification that it will 
abide by the following conditions of this subpart:
    (a) The employer is offering terms and working conditions normal to 
U.S. workers similarly employed in the area of intended employment, 
meaning that they may not be unusual for workers performing the same 
activity in the area of intended employment, and which are not less 
favorable than those offered to the H-2B worker(s) and are not less 
than the minimum terms and conditions required by this subpart.
    (b) The specific job opportunity for which the employer is 
requesting H-2B certification is not vacant because the former 
occupant(s) is (are) on strike or locked out in the course of a labor 
dispute involving a work stoppage.
    (c) The job opportunity is open to any qualified U.S. worker 
regardless of race, color, national origin, age, sex, religion, 
handicap, or citizenship, and the employer has conducted the required 
recruitment, in accordance with the regulations, and has been 
unsuccessful in locating sufficient numbers of qualified U.S. 
applicants for the job opportunity for which labor certification is 
sought. Any U.S. worker applicants were rejected only for lawful, job-
related reasons, and the employer must retain records of all 
rejections.
    (d) During the period of employment that is the subject of the 
labor certification application, the employer will comply with 
applicable Federal, State and local employment-related laws and 
regulations, including employment-related health and safety laws;
    (e) The offered wage equals or exceeds the highest of the 
prevailing wage, the applicable Federal minimum wage, the State minimum 
wage, and local minimum wage, and the employer will pay the offered 
wage during the entire period of the approved H-2B labor certification.
    (f) Upon the separation from employment of H-2B worker(s) employed 
under the labor certification application, if such separation occurs 
prior to the end date of the employment specified in the application, 
the employer will notify the Department and DHS in writing (or any 
other method specified by the Department or DHS in the Federal Register 
or the Code of Federal Regulations) of the separation from employment 
not later than 2 work days after such separation is discovered by the 
employer. An abandonment or abscondment shall be deemed to begin after 
a worker fails to report for work at the regularly scheduled time for 5 
consecutive working days without the consent of the employer. Employees 
may be terminated for cause.
    (g)(1) The offered wage is not based on commissions, bonuses, or 
other incentives, unless the employer guarantees a wage paid on a 
weekly, bi-weekly, or monthly basis that equals or exceeds the 
prevailing wage, or the legal Federal, State, or local minimum wage, 
whichever is highest. The employer must make all deductions from the 
worker's paychecks that are required by law. The job offer must specify 
all deductions not required by law that the employer will make from the 
worker's paycheck. All deductions must be reasonable. However, an 
employer subject to the FLSA may not make deductions that would violate 
the FLSA.
    (2) The employer has contractually forbidden any foreign labor 
contractor or recruiter whom the employer engages in international 
recruitment of H-2B workers to seek or receive payments from 
prospective employees, except as provided for in DHS regulations at 8 
CFR 214.2(h)(5)(xi)(A). This provision does not prohibit employers or 
their agents from receiving reimbursement for costs that are the 
responsibility of the worker, such as government required passport or 
visa fees.
    (h) The job opportunity is a bona fide, full-time temporary 
position, the qualifications for which are consistent with the normal 
and accepted qualifications required by non-H-2B employers in the same 
or comparable occupations.
    (i) The employer has not laid off and will not lay off any 
similarly employed U.S. worker in the occupation that is the subject of 
the Application for

[[Page 78060]]

Temporary Employment Certification in the area of intended employment 
within the period beginning 120 calendar days before the date of need 
through 120 calendar days after the date of need, except where the 
employer also attests that it offered the job opportunity that is the 
subject of the application to those laid off U.S. worker(s) and the 
U.S. worker(s) either refused the job opportunity or was rejected for 
the job opportunity only for lawful, job-related reasons.
    (j) The employer and its attorney or agents have not sought or 
received payment of any kind from the employee for any activity related 
to obtaining the labor certification, including payment of the 
employer's attorneys' or agent fees, Application for Temporary 
Employment Certification, or recruitment costs. For purposes of this 
paragraph, payment includes, but is not limited to, monetary payments, 
wage concessions (including deductions from wages, salary, or 
benefits), kickbacks, bribes, tributes, in kind payments, and free 
labor.
    (k) If the employer is a job contractor, it will not place any H-2B 
workers employed pursuant to the labor certification application with 
any other employer or at another employer's worksite unless:
    (1) The employer applicant first makes a written bona fide inquiry 
as to whether the other employer has displaced or intends to displace 
any similarly employed U.S. workers within the area of intended 
employment within the period beginning 120 days before through 120 
calendar days after the date of need, and the other employer provides 
written confirmation that it has not so displaced and does not intend 
to displace such U.S. workers, and
    (2) All worksites are listed on the certified Application for 
Temporary Employment Certification, including amendments or 
modifications.
    (l) The employer will not place any H-2B workers employed pursuant 
to this application outside the area of intended employment listed on 
the Application for Temporary Employment Certification unless the 
employer has obtained a new temporary labor certification from the 
Department.
    (m) Unless the H-2B worker will be sponsored by another subsequent 
employer, the employer will inform H-2B workers of the requirement that 
they leave the U.S. at the end of the authorized period of stay 
provided by DHS or separation from the employer, whichever is earlier, 
as required in Sec.  655.35 of this part (absent any extension or 
change of such worker's status or grace period pursuant to DHS 
regulations), and that if dismissed by the employer prior to the end of 
the period, the employer is liable for return transportation.
    (n) The dates of temporary need, reason for temporary need, and 
number of positions being requested for labor certification have been 
truly and accurately stated on the application.


Sec.  655.23  Receipt and processing of applications.

    (a) Filing Date. Applications received by U.S. Mail or private 
courier shall be considered filed when determined by the NPC to be 
complete. Incomplete applications shall not be accepted for processing 
or assigned a receipt date, but shall be returned by U.S. Mail to the 
employer or the employer's representative as incomplete.
    (b) Processing. The CO will review complete applications for an 
absence of errors that would prevent certification and for compliance 
with the criteria for certification. The CO will make a determination 
to certify, deny, or issue a Request for Further Information prior to 
making a Final Determination on the application. Criteria for 
certification, as used in this subpart, are whether the employer has: 
established the need for the nonagricultural services or labor to be 
performed is temporary in nature; established that the number of worker 
positions being requested for certification is justified and represent 
bona fide job opportunities; made all the assurances and met all the 
obligations required by Sec.  655.22; and complied with all 
requirements of the program.
    (c) Request for Further Information. (1) If the CO determines that 
the employer has made all necessary attestations and assurances, but 
the application fails to comply with one or more of the criteria for 
certification in paragraph (b) of this section, the CO must issue a RFI 
to the employer. The CO will issue the written RFI within 7 calendar 
days of the receipt of the application, and send it by means normally 
assuring next-day delivery.
    (2) The RFI must:
    (i) Specify the reason(s) why the application is not sufficient to 
grant temporary labor certification, citing the relevant regulatory 
standard(s) and/or special procedure(s);
    (ii) Specify a date, no later than 7 calendar days from the date of 
the written RFI, by which the supplemental information and 
documentation must be received by the CO to be considered; and
    (iii) State that, upon receipt of a response to the written RFI, or 
expiration of the stated deadline for receipt of the response, the CO 
will review the existing application as well as any supplemental 
materials submitted by the employer and issue a Final Determination. If 
unusual circumstances warrant, the CO may issue one or more additional 
RFIs prior to issuing a Final Determination.
    (3) The CO will issue the Final Determination or the additional RFI 
within 7 business days of receipt of the employer's response, or within 
60 days of the employer's date of need, whichever is later.
    (4) Compliance with an RFI does not guarantee that the employer's 
application will be certified after submitting the information. The 
employer's documentation must justify its chosen standard of temporary 
need or otherwise overcome the stated deficiency in the application.
    (d) Failure to comply with an RFI, including not providing all 
documentation within the specified time period, may result in a denial 
of the application. Such failure to comply with an RFI may also result 
in a finding by the CO requiring supervised recruitment under Sec.  
655.30 in future filings of H-2B temporary labor certification 
applications.


Sec.  655.24  Audits.

    (a) Discretion. OFLC will conduct audits of H-2B temporary labor 
certification applications. The applications selected for audit will be 
chosen within the sole discretion of OFLC.
    (b) Audit Letter. When an application is selected for audit, the CO 
shall issue an audit letter to the employer. The audit letter will:
    (1) State the application has been selected for audit and note 
documentation that must be submitted by the employer;
    (2) Specify a date, no fewer than 14 days and no more than 30 days 
from the date of the audit letter's issuance, by which the required 
documentation must be received by the CO; and
    (3) Advise that failure to comply with the audit process may result 
in a finding by the CO to:
    (i) Require the employer to conduct supervised recruitment under 
Sec.  655.30 in future filings of H-2B temporary labor certification 
applications for a period of up to 2 years, or
    (ii) Debar the employer from future filings of H-2B temporary labor 
certification applications as provided in Sec.  655.31.
    (c) Supplemental information. During the course of the audit 
examination, the CO may request supplemental information and/or 
documentation from the employer to complete the audit.

[[Page 78061]]

    (d) Audit violations. If, as a result of the audit, the CO 
determines the employer failed to produce all required documentation, 
or determines that the employer made a material misrepresentation with 
respect to the application, the employer may be required to conduct 
supervised recruitment under Sec.  655.30 in future filings of H-2B 
temporary labor certification applications for up to 2 years, or may be 
subject to debarment pursuant to Sec.  655.31 or other sanctions. The 
CO may provide the audit findings and underlying documentation to DHS, 
WHD, or another appropriate enforcement agency. The CO may refer any 
findings that an employer discouraged an eligible U.S. worker from 
applying, or failed to hire, discharged, or otherwise discriminated 
against an eligible U.S. worker, to the Department of Justice, Civil 
Rights Division, Office of Special Counsel for Unfair Immigration 
Related Employment Practices.


Sec. Sec.  655.25-655.29  [Reserved]


Sec.  655.30  Supervised recruitment.

    (a) Supervised recruitment. Where an employer is found to have 
violated program requirements, to have made a material 
misrepresentation to the Department, or to have failed to adequately 
conduct recruitment activities or failed in any obligation of this 
part, the CO may require pre-filing supervised recruitment.
    (b) Requirements. Supervised recruitment shall consist of 
advertising for the job opportunity or opportunities in accordance with 
the required recruitment steps outlined under Sec.  655.15, except as 
otherwise provided below.
    (1) The CO will direct where the advertisements are to be placed.
    (2) The employer must supply a draft advertisement and job order to 
the CO for review and approval no fewer than 150 days before the date 
on which the foreign worker(s) will commence work unless notified by 
the CO of the need for Supervised Recruitment less than 150 days before 
the date of need, in which case the employer must supply the drafts 
within 30 days of receipt of such notification.
    (3) Each advertisement must comply with the requirements of Sec.  
655.17(a).
    (4) The advertisement shall be placed in accordance with guidance 
provided by the CO.
    (5) The employer will notify the CO when the advertisements are 
placed.
    (c) Recruitment report. No fewer than 2 days after the last day of 
the posting of the job order and no fewer than 5 calendar days after 
the date on which the last newspaper or journal advertisement appeared, 
the employer must prepare a detailed written report of the employer's 
supervised recruitment, signed by the employer as outlined in Sec.  
655.15(i). The employer must submit the recruitment report to the CO 
within 30 days of the date of the first advertisement and must retain a 
copy for a period of no less than 3 years. The recruitment report must 
contain a copy of all advertisements and a copy of the SWA job order, 
including the dates so placed.
    (d) The CO may refer any findings that an employer or its 
representative discouraged an eligible U.S. worker from applying, or 
failed to hire, discharged, or otherwise discriminated against an 
eligible U.S. worker, to the Department of Justice, Civil Rights 
Division, Office of Special Counsel for Unfair Immigration Related 
Employment Practices.


Sec.  655.31  Debarment.

    (a) The Administrator, OFLC may not issue future labor 
certifications under this subpart to an employer and any successor in 
interest to the debarred employer, subject to the time limits set forth 
in paragraph (c) of this section, if:
    (1) The Administrator, OFLC finds that the employer substantially 
violated a material term or condition of its temporary labor 
certification with respect to the employment of domestic or 
nonimmigrant workers; and
    (2) The Administrator, OFLC issues a Notice of Intent to Debar no 
later than 2 years after the occurrence of the violation.
    (b) The Administrator, OFLC may not issue future labor 
certifications under this subpart to an employer represented by an 
agent or attorney, subject to the time limits set forth in paragraph 
(c) of this section, if:
    (1) The agent or attorney participated in, had knowledge of, or had 
reason to know of, the employer's substantial violation; and
    (2) The Administrator issues the agent or attorney a Notice of 
Intent to Debar no later than 2 years after the occurrence of the 
violation.
    (c) No employer, attorney, or agent may be debarred under this 
subpart for more than 3 years.
    (d) For the purposes of this section, a substantial violation 
includes:
    (1) A pattern or practice of acts of commission or omission on the 
part of the employer or the employer's agent that:
    (i) Are significantly injurious to the wages or benefits offered 
under the H-2B program or working conditions of a significant number of 
the employer's U.S. or H-2B workers;
    (ii) Reflect a significant failure to offer employment to each 
qualified domestic worker who applied for the job opportunity for which 
certification was being sought, except for lawful job-related reasons;
    (iii) Reflect a significant failure to comply with the employer's 
obligations to recruit U.S. workers as set forth in this subpart;
    (iv) Reflect a significant failure to comply with the RFI or audit 
process pursuant to Sec. Sec.  655.23 or 655.24;
    (v) Reflect the employment of an H-2B worker outside the area of 
intended employment, or in an activity/activities, not listed in the 
job order (other than an activity minor and incidental to the activity/
activities listed in the job order), or after the period of employment 
specified in the job order and any approved extension; or
    (vi) Reflect a significant failure to comply with the supervised 
recruitment process pursuant to Sec.  655.30.
    (2) Fraud involving the Application for Temporary Employment 
Certification or a response to an audit;
    (3) A significant failure to cooperate with a DOL investigation or 
with a DOL official performing an investigation, inspection, or law 
enforcement function under this subpart;
    (4) A significant failure to comply with one or more sanctions or 
remedies imposed by the ESA for violation(s) of obligations under this 
subpart found by that agency (if applicable), or with one or more 
decisions or orders of the Secretary or a court order secured by the 
Secretary; or
    (5) A single heinous act showing such flagrant disregard for the 
law that future compliance with program requirements cannot reasonably 
be expected.
    (e) DOL procedures for debarment under this section will be as 
follows:
    (1) The Administrator, OFLC will send to the employer, attorney, or 
agent a Notice of Intent to Debar by means normally ensuring next-day 
delivery, which will contain a detailed statement of the grounds for 
the proposed debarment. The employer, attorney, or agent may submit 
evidence in rebuttal within 14 calendar days of the date the notice is 
issued. The Administrator, OFLC must consider all relevant evidence 
presented in deciding whether to debar the employer, attorney, or 
agent.
    (2) If rebuttal evidence is not timely filed by the employer, 
attorney, or agent, the Notice of Intent to Debar will become the final 
decision of the Secretary and take effect immediately at the end of the 
14-day period.

[[Page 78062]]

    (3) If, after reviewing the employer's timely filed rebuttal 
evidence, the Administrator, OFLC determines that the employer, 
attorney, or agent more likely than not meets one or more of the bases 
for debarment under Sec.  655.31(d), the Administrator, OFLC will 
notify the employer, by means normally ensuring next-day delivery, 
within 14 calendar days after receiving such timely filed rebuttal 
evidence, of his/her final determination of debarment and of the 
employer, attorney, or agent's right to appeal.
    (4) The Notice of Debarment must be in writing, must state the 
reason for the debarment finding, including a detailed explanation of 
the grounds for and the duration of the debarment, and must offer the 
employer, attorney, or agent an opportunity to request a hearing. The 
notice must state that to obtain such a review or hearing, the debarred 
party must, within 30 calendar days of the date of the notice file a 
written request to the Chief Administrative Law Judge, United States 
Department of Labor, 800 K Street, NW., Suite 400-N, Washington, DC 
20001-8002, and simultaneously serve a copy to the Administrator, OFLC. 
The debarment will take effect 30 days from the date the Notice of 
Debarment is issued, unless a request for a hearing is properly filed 
within 30 days from the date the Notice of Debarment is issued. The 
timely filing of a request for a hearing stays the debarment pending 
the outcome of the appeal.
    (5)(i) Hearing. Within 10 days of receipt of the request for a 
hearing, the Administrator, OFLC will send a certified copy of the ETA 
case file to the Chief Administrative Law Judge by means normally 
assuring next-day delivery. The Chief Administrative Law Judge will 
immediately assign an ALJ to conduct the hearing. The procedures in 29 
CFR part 18 apply to such hearings, except that the request for a 
hearing will not be considered to be a complaint to which an answer is 
required.
    (ii) Decision. After the hearing, the ALJ must affirm, reverse, or 
modify the Administrator, OFLC 's determination. The ALJ's decision 
must be provided immediately to the employer, Administrator, OFLC, DHS, 
and DOS by means normally assuring next-day delivery. The ALJ's 
decision is the final decision of the Secretary, unless either party, 
within 30 calendar days of the ALJ's decision, seeks review of the 
decision with the Administrative Review Board (ARB).
    (iii) Review by the ARB.
    (A) Any party wishing review of the decision of an ALJ must, within 
30 days of the decision of the ALJ, petition the ARB to review the 
decision. Copies of the petition must be served on all parties and on 
the ALJ. The ARB must decide whether to accept the petition within 30 
days of receipt. If the ARB declines to accept the petition or if the 
ARB does not issue a notice accepting a petition within 30 days after 
the receipt of a timely filing of the petition, the decision of the ALJ 
shall be deemed the final agency action. If a petition for review is 
accepted, the decision of the ALJ shall be stayed unless and until the 
ARB issues an order affirming the decision. The ARB must serve notice 
of its decision to accept or not to accept the petition upon the ALJ 
and upon all parties to the proceeding in person or by certified mail.
    (B) Upon receipt of the ARB's notice to accept the petition, the 
Office of Administrative Law Judges shall promptly forward a copy of 
the complete hearing record to the ARB.
    (C) Where the ARB has determined to review such decision and order, 
the ARB shall notify each party of:
    (1) The issue or issues raised;
    (2) The form in which submissions shall be made (i.e., briefs, oral 
argument, etc.); and
    (3) The time within which such presentation shall be submitted.
    (D) The ARB's final decision must be issued within 90 days from the 
notice granting the petition and served upon all parties and the ALJ, 
in person or by certified mail. If the ARB fails to provide a decision 
within 90 days from the notice granting the petition, the ALJ's 
decision will be the final decision of the Secretary.
    (f) Inter-Agency Reporting. After completion of the appeal process, 
DOL will inform DHS and other appropriate enforcement agencies of the 
findings and provide a copy of the Notice of Debarment.


Sec.  655.32  Labor certification determinations.

    (a) COs. The Administrator, OFLC, is the Department's National CO. 
The Administrator, and the CO(s) in the NPC (by virtue of delegation 
from the Administrator), have the authority to certify or deny 
applications for temporary employment certification under the H-2B 
nonimmigrant classification. If the Administrator directs that certain 
types of temporary labor certification applications or specific 
applications under the H-2B nonimmigrant classification be handled by 
the National OFLC, the Director of the Chicago NPC will refer such 
applications to the Administrator.
    (b) Determination. The CO will make a determination either to grant 
or deny the Application for Temporary Employment Certification. The CO 
will grant the application if and only if the employer has met all the 
requirements of this subpart, including the criteria for certification 
defined in Sec.  655.23(b), thus demonstrating that an insufficient 
number of qualified U.S. workers are available for the job opportunity 
for which certification is sought and the employment of the H-2B 
workers will not adversely affect the benefits, wages, and working 
conditions of similarly employed U.S. workers.
    (c) Notice. The CO will notify the employer in writing (either 
electronically or by U.S. Mail) of the labor certification 
determination.
    (d) Approved certification. If temporary labor certification is 
granted, the CO must send the certified Application for Temporary 
Employment Certification and a Final Determination letter to the 
employer, or, if appropriate, to the employer's agent or attorney with 
a copy to the employer. The Final Determination letter will notify the 
employer to file the certified application and any other documentation 
required by USCIS with the appropriate USCIS office.
    (e) Denied certification. If temporary labor certification is 
denied, the Final Determination letter will:
    (1) State the reason(s) certification is denied, citing the 
relevant regulatory standards and/or special procedures;
    (2) If applicable, address the availability of U.S. workers in the 
occupation as well as the prevailing benefits, wages, and working 
conditions of similarly employed U.S. workers in the occupation and/or 
any applicable special procedures;
    (3) Offer the employer an opportunity to request administrative 
review of the denial available under Sec.  655.33, or to file a new 
application in accordance with specific instructions provided by the 
CO; and
    (4) State that if the employer does not request administrative 
review in accordance with Sec.  655.33, the denial is final and the 
Department will not further consider that application for temporary 
alien nonagricultural labor certification.
    (f) Partial Certification. The CO may, in his/her discretion, and 
to ensure compliance with all statutory and regulatory requirements, 
issue a partial certification, reducing either the period of need, the 
number of H-2B positions being requested, or both, based upon 
information the CO receives in the course of processing the temporary 
labor certification application, an RFI, or otherwise. If a partial 
labor certification

[[Page 78063]]

is issued, the Final Determination letter will:
    (1) State the reason(s) for which either the period of need and/or 
the number of H-2B positions requested has been reduced, citing the 
relevant regulatory standards and/or special procedures;
    (2) If applicable, address the availability of U.S. workers in the 
occupation;
    (3) Offer the employer an opportunity to request administrative 
review of the partial labor certification available under Sec.  655.33; 
and
    (4) State that if the employer does not request administrative 
review in accordance with Sec.  655.33, the partial labor certification 
is final and the Department will not further consider that application 
for temporary nonagricultural labor certification.


Sec.  655.33  Administrative review.

    (a) Request for review. If a temporary labor certification is 
denied, in whole or in part, under Sec.  655.32, the employer may 
request review of the denial by the BALCA. The request for review:
    (1) Must be sent to the BALCA, with a copy simultaneously sent to 
the CO who denied the application, within 10 calendar days of the date 
of determination;
    (2) Must clearly identify the particular temporary labor 
certification determination for which review is sought;
    (3) Must set forth the particular grounds for the request;
    (4) Must include a copy of the Final Determination; and
    (5) May contain only legal argument and such evidence as was 
actually submitted to the CO in support of the application.
    (b) Upon the receipt of a request for review, the CO shall, within 
5 business days assemble and submit the Appeal File using means to 
ensure same day or overnight delivery, to the BALCA, the employer, and 
the Associate Solicitor for Employment and Training Legal Services, 
Office of the Solicitor, U.S. Department of Labor.
    (c) Within 5 business days of receipt of the Appeal File, the 
counsel for the CO may submit, using means to ensure same day or 
overnight delivery, a brief in support of the CO's decision.
    (d) The Chief Administrative Law Judge may designate a single 
member or a three member panel of the BALCA to consider a particular 
case.
    (e) The BALCA must review a denial of temporary labor certification 
only on the basis of the Appeal File, the request for review, and any 
legal briefs submitted and must:
    (1) Affirm the denial of the temporary labor certification; or
    (2) Direct the CO to grant the certification; or
    (3) Remand to the CO for further action.
    (f) The BALCA should notify the employer, the CO, and counsel for 
the CO of its decision within 5 business days of the submission of the 
CO's brief or 10 days after receipt of the Appeal File, whichever is 
earlier, using means to ensure same day or overnight delivery.


Sec.  655.34  Validity of temporary labor certifications.

    (a) Validity Period. A temporary labor certification is valid only 
for the period of time between the beginning and ending dates of 
employment, as certified by the OFLC Administrator on the Application 
for Temporary Employment Certification. The certification expires on 
the last day of authorized employment.
    (b) Scope of Validity. A temporary labor certification is valid 
only for the number of H-2B positions, the area of intended employment, 
the specific services or labor to be performed, and the employer 
specified on the certified Application for Temporary Employment 
Certification and may not be transferred from one employer to another.
    (c) Amendments to Applications. (1) Applications may be amended at 
any time, before the CO's certification determination, to increase the 
number of positions requested in the initial application by not more 
than 20 percent (50 percent for employers requesting less than 10 
positions) without requiring an additional recruitment period for U.S. 
workers. Requests for increases above the percent prescribed, without 
additional recruitment, may be approved by the CO only when the request 
is submitted in writing, the need for additional workers could not have 
been reasonably foreseen, and the employer's services or products will 
be in jeopardy prior to the time that new H-2B workers could be 
secured.
    (2) Applications may be amended to make minor changes in the period 
of employment, only when a written request is submitted to the CO and 
written approval obtained in advance. In considering whether to approve 
the request, the CO will review the reason(s) for the request, 
determine whether the reason(s) are on the whole justified, and take 
into account the effect(s) of a decision to approve on the adequacy of 
the underlying test of the domestic labor market for the job 
opportunity.
    (3) Other amendments to the application, including elements of the 
job offer and the place of work, may be requested, in writing, and will 
be granted if the CO determines the proposed amendment(s) are justified 
and will have no significant effect upon the CO's ability to make the 
labor certification determination required under Sec.  655.32.
    (4) The CO may change the date of need to reflect an amended date 
when delays occur in the adjudication of the Application for Temporary 
Employment Certification, through no fault of the employer, and the 
certification would otherwise become valid after the initial date of 
need.


Sec.  655.35  Required departure.

    (a) Limit to worker's stay. As defined further in DHS regulations, 
a temporary labor certification shall limit the authorized period of 
stay for any H-2B worker whose admission is based upon it. 8 CFR 
214.2(h)(13). A foreign worker may not remain in the U.S. beyond the 
validity period of admission by DHS in H-2B status nor beyond 
separation from employment, whichever occurs first, absent any 
extension or change of such worker's status or grace period pursuant to 
DHS regulations.
    (b) Notice to worker. Upon establishment of a pilot program by DHS 
for registration of departure, the employer must notify any H-2B worker 
starting work at a job opportunity for which the employer has obtained 
labor certification that the H-2B worker, when departing the U.S. by 
land at the conclusion of employment as described in paragraph (a) of 
this section, must register such departure at the place and in the 
manner prescribed by DHS. This requirement will apply only to H-2B 
foreign workers entering from ports of entry participating in the DHS 
pilot program.


Sec.  655.50  Enforcement process.

    (a) Authority of the WHD Administrator. The WHD Administrator shall 
perform all the Secretary's investigative and enforcement functions 
under secs. 1101(a)(15)(H)(ii)(b), 103(a)(6), and 214(c) of the INA, 
pursuant to the delegation of authority from the Secretary of Homeland 
Security to the Secretary of Labor.
    (b) Conduct of investigations. The Administrator, WHD, shall, 
either pursuant to a complaint or otherwise, conduct such 
investigations as may, in the judgment of the Administrator, be 
appropriate, and in connection therewith, may enter and inspect such 
places and such records (and make transcriptions or copies thereof), 
question such persons, and gather such information as deemed necessary 
by the Administrator to determine compliance

[[Page 78064]]

regarding the matters which are the subject of investigation.
    (c) Employer cooperation/availability of records. An employer shall 
at all times cooperate in administrative and enforcement proceedings. 
An employer being investigated shall make available to the WHD 
Administrator such records, information, persons, and places as the 
Administrator deems appropriate to copy, transcribe, question, or 
inspect. Where the records are maintained at a central recordkeeping 
office, other than in the place or places of employment, such records 
must be made available for inspection and copying within 72 hours 
following notice from the Secretary, or a duly authorized and 
designated representative. No employer or representative or agent of an 
employer subject to the provisions of secs. 1101(a)(15)(H)(ii)(b) and 
214(c) of the INA and/or of this subpart shall interfere with any 
official of the Department who is performing an investigation, 
inspection, or law enforcement function pursuant to 8 U.S.C. 
1101(a)(15)(H)(ii)(b) or 1184(c). Any such interference shall be a 
violation of the labor certification application and of this subpart, 
and the Administrator may take such further actions as the 
Administrator considers appropriate. (Federal criminal statutes 
prohibit certain interference with a Federal officer in the performance 
of official duties. 18 U.S.C. 111 and 18 U.S.C. 1114.)
    (d) Confidentiality. The WHD Administrator shall, to the extent 
possible under existing law, protect the confidentiality of any person 
who provides information to the Department in confidence in the course 
of an investigation or otherwise under this subpart.


Sec.  655.60  Violations.

    The WHD Administrator, through investigation, shall determine 
whether an employer has--
    (a) Filed a petition with ETA that willfully misrepresents a 
material fact.
    (b) Substantially failed to meet any of the conditions of the labor 
certification application attested to, as listed in Sec.  655.22, or 
any of the conditions of the DHS Form I-129, Petition for a 
Nonimmigrant Worker for an H-2B worker in 8 CFR 214.2(h).
    (c) Misrepresented a material fact to the State Department during 
the visa application process.


Sec.  655.65  Remedies for violations.

    (a) Upon determining that an employer has willfully failed to pay 
wages, in violation of the attestation required by Sec.  655.22(e) or 
willfully required employees to pay for fees or expenses prohibited by 
Sec.  655.22(j), or willfully made impermissible deductions from pay as 
provided in Sec.  655.22(g), the WHD Administrator may assess civil 
money penalties that are equal to the difference between the amount 
that should have been paid and the amount that actually was paid to 
such nonimmigrant(s), not to exceed $10,000.
    (b) Upon determining that an employer has terminated by layoff or 
otherwise any employee described in Sec.  622.55(k) of this part, 
within the period described in that section, the Administrator may 
assess civil money penalties that are equal to the wages that would 
have been earned but for the layoff at the H-2B rate for that period, 
not to exceed $10,000. No civil money penalty shall be assessed, 
however, if the employee refused the job opportunity, or was terminated 
for lawful, job-related reasons.
    (c) The Administrator may assess civil money penalties in an amount 
not to exceed $10,000 per violation for any substantial failure to meet 
the conditions provided in the H-2B Application for Temporary 
Employment Certification or the DHS Form I-129, Petition for a 
Nonimmigrant Worker for an H-2B worker or successor form, or any 
willful misrepresentation in the application or petition, or a failure 
to cooperate with a Department audit or investigation.
    (d) Substantial failure in paragraph (b) of this section shall mean 
a willful failure that constitutes a significant deviation from the 
terms and conditions of the labor condition application or the DHS Form 
I-129, Petition for a Nonimmigrant Worker for an H-2B worker or 
successor form.
    (e) For purposes of this subpart, ``willful failure'' means a 
knowing failure or a reckless disregard with respect to whether the 
conduct was contrary to sec. 214(c) of the INA, or this subpart. See 
McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988); see also Trans 
World Airlines v. Thurston, 469 U.S. 111 (1985).
    (f) The provisions of this subpart become applicable upon the date 
that the employer's labor condition application is certified and/or 
upon the date employment commences, whichever is earlier. The 
employer's submission and signature on the labor certification 
application and DHS Form I-129, Petition for a Nonimmigrant Worker for 
an H-2B worker or successor form constitutes the employer's 
representation that the statements on the application are accurate and 
its acknowledgment and acceptance of the obligations of the program. 
The employer's acceptance of these obligations is re-affirmed by the 
employer's submission of the petition (Form I-129), supported by the 
labor certification.
    (g) In determining the amount of the civil money penalty to be 
assessed pursuant to paragraphs (b) and (c) of this section, the WHD 
Administrator shall consider the type of violation committed and other 
relevant factors. In determining the level of penalties to be assessed, 
the highest penalties shall be reserved for willful failures to meet 
any of the conditions of the application that involve harm to U.S. 
workers. Other factors which may be considered include, but are not 
limited to, the following:
    (1) Previous history of violation, or violations, by the employer 
under the INA and this subpart, and 8 CFR 214.2;
    (2) The number of U.S. or H-2B workers employed by the employer and 
affected by the violation or violations;
    (3) The gravity of the violation or violations;
    (4) Efforts made by the employer in good faith to comply with the 
INA and regulatory provisions of this subpart and at 8 CFR 214.2(h);
    (5) The employer's explanation of the violation or violations;
    (6) The employer's commitment to future compliance; and
    (7) The extent to which the employer achieved a financial gain due 
to the violation, or the potential financial loss to the employer's 
workers.
    (h) Disqualification from approval of petitions. Where the WHD 
Administrator finds a substantial failure to meet any conditions of the 
application or in a DHS Form I-129, or a willful misrepresentation of a 
material fact in an application or in a DHS Form I-129, as those terms 
are defined in Sec.  655.31, the Administrator may recommend that ETA 
debar the employer for a period of no less than 1 year, and no more 
than 3 years.
    (i) If the WHD Administrator finds a violation of the provisions 
specified in this subpart, the Administrator may impose such other 
administrative remedies as the Administrator determines to be 
appropriate, including reinstatement of displaced U.S. workers, or 
other appropriate legal or equitable remedies. If the WHD Administrator 
finds that an employer has not paid wages at the wage level specified 
under the application and required by Sec.  655.22(e), the 
Administrator may require the employer to provide for payment of such 
amounts of back pay as may be required to comply with the requirements 
of Sec.  655.22(e).

[[Page 78065]]

    (j) The civil money penalties determined by the WHD Administrator 
to be appropriate are due for payment within 30 days of the assessment 
by the Administrator, or upon the decision by an administrative law 
judge where a hearing is timely requested, or upon the decision by the 
Secretary where review is granted. The employer shall remit the amount 
of the civil money penalty by certified check or money order made 
payable to the order of ``Wage and Hour Division, Labor.'' The 
remittance shall be delivered or mailed to the Wage and Hour Division 
office in the manner directed in the Administrator's notice of 
determination. The payment or performance of any other remedy 
prescribed by the Administrator shall follow procedures established by 
the Administrator.
    (k) The Federal Civil Penalties Inflation Adjustment Act of 1990, 
as amended (28 U.S.C. 2461 note), requires that inflationary 
adjustments to civil money penalties in accordance with a specified 
cost-of-living formula be made, by regulation, at least every 4 years. 
The adjustments are to be based on changes in the Consumer Price Index 
for all Urban Consumers (CPI-U) for the U.S. City Average for All 
Items. The adjusted amounts will be published in the Federal Register. 
The amount of the penalty in a particular case will be based on the 
amount of the penalty in effect at the time the violation occurs.


Sec.  655.70  WHD Administrator's determination.

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


Sec.  655.71  Request for hearing.

    (a) An employer desiring review of a determination issued under 
Sec.  655.70, including judicial review, shall make a request for such 
an administrative hearing in writing to the Chief Administrative Law 
Judge at the address stated in the notice of determination. In such a 
proceeding, the Administrator shall be the prosecuting party, and the 
employer shall be the respondent. If such a request for an 
administrative hearing is timely filed, the WHD Administrator's 
determination shall be inoperative unless and until the case is 
dismissed or the Administrative Law Judge issues an order affirming the 
decision.
    (b) No particular form is prescribed for any request for hearing 
permitted by this section. However, any such request shall:
    (1) Be dated;
    (2) Be typewritten or legibly written;
    (3) Specify the issue or issues stated in the notice of 
determination giving rise to such request;
    (4) State the specific reason or reasons why the employer believes 
such determination is in error;
    (5) Be signed by the employer making the request or by an 
authorized representative of such employer; and
    (6) Include the address at which such employer or authorized 
representative desires to receive further communications relating 
thereto.
    (c) The request for such hearing must be received by the Chief 
Administrative Law Judge, at the address stated in the WHD 
Administrator's notice of determination, no later than 15 calendar days 
after the date of the determination. An employer which fails to meet 
this 15-day deadline for requesting a hearing may thereafter 
participate in the proceedings only by consent of the administrative 
law judge.
    (d) The request may be filed in person, by facsimile transmission, 
by certified or regular mail, or by courier service. For the requesting 
employer's protection, if the request is by mail, it should be by 
certified mail. If the request is by facsimile transmission, the 
original of the request, signed by the employer or authorized 
representative, shall be filed within 10 days.
    (e) Copies of the request for a hearing shall be sent by the 
employer or authorized representative to the WHD official who issued 
the WHD Administrator's notice of determination, and to the 
representative(s) of the Solicitor of Labor identified in the notice of 
determination.


Sec.  655.72  Hearing rules of practice.

    (a) Except as specifically provided in this subpart, and to the 
extent they do not conflict with the provisions of this subpart, the 
``Rules of Practice and Procedure for Administrative Hearings Before 
the Office of Administrative Law Judges'' established by the Secretary 
at 29 CFR part 18 shall apply to administrative proceedings under this 
subpart.
    (b) As provided in the Administrative Procedure Act, 5 U.S.C. 556, 
any oral or documentary evidence may be received in proceedings under 
this part. The Federal Rules of Evidence and subpart B of the Rules of 
Practice and Procedure for Administrative Hearings Before the Office of 
Administrative Law Judges (29 CFR part 18, subpart B) shall not apply, 
but principles designed to ensure production of relevant and probative 
evidence shall guide the admission of evidence. The administrative law 
judge may exclude evidence which is immaterial, irrelevant, or unduly 
repetitive.


Sec.  655.73  Service of pleadings.

    (a) Under this subpart, a party may serve any pleading or document 
by regular mail. Service on a party is complete upon mailing to the 
last known address. No additional time for filing or response is 
authorized where service is by mail. In the interest of expeditious 
proceedings, the administrative law judge may direct the parties to 
serve pleadings or documents by a method other than regular mail.
    (b) Two copies of all pleadings and other documents in any 
administrative law judge proceeding shall be served on the attorneys 
for the WHD Administrator. One copy shall be served on the Associate 
Solicitor, Division of Fair Labor Standards, Office of the Solicitor, 
U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-2716, 
Washington, DC 20210, and one copy shall be served on the attorney 
representing the Administrator in the proceeding.
    (c) Time will be computed beginning with the day following service 
and includes the last day of the period

[[Page 78066]]

unless it is a Saturday, Sunday, or Federally-observed holiday, in 
which case the time period includes the next business day.


Sec.  655.74  Conduct of proceedings.

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


Sec.  655.75  Decision and order of administrative law judge.

    (a) The administrative law judge shall issue a decision. If any 
party desires review of the decision, including judicial review, a 
petition for Administrative Review Board (Board) review thereof shall 
be filed as provided in Sec.  655.76. If a petition for review is 
filed, the decision of the administrative law judge shall be 
inoperative unless and until the Board issues an order affirming the 
decision, or unless and until 30 calendar days have passed after the 
Board's receipt of the petition for review and the Board has not issued 
notice to the parties that the Board will review the administrative law 
judge's decision.
    (b) The decision of the administrative law judge shall include a 
statement of findings and conclusions, with reasons and basis 
therefore, upon each material issue presented on the record. The 
decision shall also include an appropriate order which may affirm, 
deny, reverse, or modify, in whole or in part, the determination of the 
Administrator, WHD; the reason or reasons for such order shall be 
stated in the decision.
    (c) In the event that the WHD Administrator assesses back wages for 
wage violation(s) of Sec.  655.22(e), (g), or (j) based upon a PWD 
obtained by the Administrator from OFLC during the investigation and 
the administrative law judge determines that the Administrator's 
request was not warranted, the administrative law judge shall remand 
the matter to the Administrator for further proceedings on the 
Administrator's determination. If there is no such determination and 
remand by the administrative law judge, the administrative law judge 
shall accept as final and accurate the wage determination obtained from 
OFLC or, in the event the employer filed a timely appeal under Sec.  
655.11, the final wage determination resulting from that process. Under 
no circumstances shall the administrative law judge determine the 
validity of the wage determination or require submission into evidence 
or disclosure of source data or the names of establishments contacted 
in developing the survey which is the basis for the PWD.
    (d) The administrative law judge shall not render determinations as 
to the legality of a regulatory provision or the constitutionality of a 
statutory provision.
    (e) The decision shall be served on all parties in person or by 
certified or regular mail.


Sec.  655.76  Appeal of administrative law judge decision.

    (a) The WHD Administrator or an employer desiring review of the 
decision and order of an administrative law judge, including judicial 
review, shall petition the Department's Administrative Review Board 
(Board) to review the decision and order. To be effective, such 
petition shall be received by the Board within 30 calendar days of the 
date of the decision and order. Copies of the petition shall be served 
on all parties and on the administrative law judge.
    (b) No particular form is prescribed for any petition for the 
Board's review permitted by this subpart. However, any such petition 
shall:
    (1) Be dated;
    (2) Be typewritten or legibly written;
    (3) Specify the issue or issues stated in the administrative law 
judge decision and order giving rise to such petition;
    (4) State the specific reason or reasons why the party petitioning 
for review believes such decision and order are in error;
    (5) Be signed by the party filing the petition or by an authorized 
representative of such party;
    (6) Include the address at which such party or authorized 
representative desires to receive further communications relating 
thereto; and
    (7) Attach copies of the administrative law judge's decision and 
order, and any other record documents which would assist the Board in 
determining whether review is warranted.
    (c) Whenever the Board determines to review the decision and order 
of an administrative law judge, a notice of the Board's determination 
shall be served upon the administrative law judge, upon the Office of 
Administrative Law Judges, and upon all parties to the proceeding 
within 30 calendar days after the Board's receipt of the petition for 
review. If the Board determines that it will review the decision and 
order, the order shall be inoperative unless and until the Board issues 
an order affirming the decision and order.
    (d) Upon receipt of the Board's notice, the Office of 
Administrative Law Judges shall within 15 calendar days forward the 
complete hearing record to the Board.
    (e) The Board's notice shall specify:
    (1) The issue or issues to be reviewed;
    (2) The form in which submissions shall be made by the parties 
(e.g., briefs); and
    (3) The time within which such submissions shall be made.
    (f) All documents submitted to the Board shall be filed with the 
Administrative Review Board, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Room S-5220, Washington, DC 20210. An original and two 
copies of all documents shall be filed. Documents are not deemed filed 
with the Board until actually received by the Board. All documents, 
including documents filed by mail, shall be received by the Board 
either on or before the due date.
    (g) Copies of all documents filed with the Board shall be served 
upon all other parties involved in the proceeding.
    (h) The Board's final decision shall be served upon all parties and 
the administrative law judge.


Sec.  655.80  Notice to OFLC and DHS.

    (a) The WHD Administrator shall, as appropriate, notify DHS and 
OFLC of the final determination of a violation and recommend that DHS 
not approve petitions filed by an employer. The Administrator's 
notification will address the type of violation committed by the 
employer and the appropriate statutory period for disqualification of 
the employer from approval of petitions.
    (b) The Administrator shall notify DHS and OFLC upon the earliest 
of the following events:
    (1) Where the Administrator determines that there is a basis for a 
finding of violation by an employer, and no timely request for hearing 
is made; or
    (2) Where, after a hearing, the administrative law judge issues a

[[Page 78067]]

decision and order finding a violation by an employer, and no timely 
petition for review is filed with the Department's Administrative 
Review Board (Board); or
    (3) Where a timely petition for review is filed from an 
administrative law judge's decision finding a violation and the Board 
either declines within 30 days to entertain the appeal, or reviews and 
affirms the administrative law judge's determination; or
    (4) Where the administrative law judge finds that there was no 
violation by an employer, and the Board, upon review, issues a decision 
holding that a violation was committed by an employer.

0
4. Amend Sec.  655.715 by adding a definition for the ``Center 
Director'' to read as follows:


Sec.  655.715  Definitions.

* * * * *
    Center Director means the Department official to whom the 
Administrator has delegated his authority for purposes of NPC 
operations and functions.
* * * * *

0
5. Amend Sec.  655.731 by revising paragraphs (a)(2) introductory text, 
(a)(2)(ii), (b)(3)(iii)(A), and (d)(2) and (3) to read as follows:


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

* * * * *
    (a) * * *
    (2) The prevailing wage for the occupational classification in the 
area of intended employment must be determined as of the time of filing 
the application. The employer shall base the prevailing wage on the 
best information available as of the time of filing the application. 
Except as provided in this section, the employer is not required to use 
any specific methodology to determine the prevailing wage and may 
utilize a wage obtained from an OFLC NPC (OES), an independent 
authoritative source, or other legitimate sources of wage data. One of 
the following sources shall be used to establish the prevailing wage:
* * * * *
    (ii) If the job opportunity is in an occupation which is not 
covered by paragraph (a)(2)(i) of this section, the prevailing wage 
shall be the arithmetic mean of the wages of workers similarly 
employed, except that the prevailing wage shall be the median when 
provided by paragraphs (a)(2)(ii)(A), (b)(3)(iii)(B)(2), and 
(b)(3)(iii)(C)(2) of this section. The prevailing wage rate shall be 
based on the best information available. The following prevailing wage 
sources may be used:
    (A) OFLC National Processing Center (NPC) determination. Prior to 
January 1, 2010, the SWA having jurisdiction over the area of intended 
employment shall continue to receive and process prevailing wage 
determination requests, but shall do so in accordance with these 
regulatory provisions and Department guidance. On or after January 1, 
2010, the NPC shall receive and process prevailing wage determination 
requests in accordance with these regulations and with Department 
guidance. Upon receipt of a written request for a PWD on or after 
January 1, 2010, the NPC will determine whether the occupation is 
covered by a collective bargaining agreement which was negotiated at 
arms length, and, if not, determine the arithmetic mean of wages of 
workers similarly employed in the area of intended employment. The wage 
component of the Bureau of Labor Statistics Occupational Employment 
Statistics survey shall be used to determine the arithmetic mean, 
unless the employer provides an acceptable survey. The NPC shall 
determine the wage in accordance with secs. 212(n) and 212(t) of the 
INA. If an acceptable employer-provided wage survey provides a median 
and does not provide an arithmetic mean, the median shall be the 
prevailing wage applicable to the employer's job opportunity. In making 
a PWD, the Chicago NPC will follow 20 CFR 656.40 and other 
administrative guidelines or regulations issued by ETA. The Chicago NPC 
shall specify the validity period of the PWD, which in no event shall 
be for less than 90 days or more than 1 year from the date of the 
determination.
    (1) An employer who chooses to utilize an NPC PWD shall file the 
labor condition application within the validity period of the 
prevailing wage as specified in the PWD. Any employer desiring review 
of an NPC PWD, including judicial review, shall follow the appeal 
procedures at 20 CFR 656.41. Employers which challenge an NPC PWD under 
20 CFR 656.41 must obtain a ruling prior to filing an LCA. In any 
challenge, the Department and the NPC shall not divulge any employer 
wage data collected under the promise of confidentiality. Once an 
employer obtains a PWD from the NPC and files an LCA supported by that 
PWD, the employer is deemed to have accepted the PWD (as to the amount 
of the wage) and thereafter may not contest the legitimacy of the PWD 
by filing an appeal with the CO (see 20 CFR 656.41) or in an 
investigation or enforcement action.
    (2) If the employer is unable to wait for the NPC to produce the 
requested prevailing wage for the occupation in question, or for the CO 
and/or the BALCA to issue a decision, the employer may rely on other 
legitimate sources of available wage information as set forth in 
paragraphs (a)(2)(ii)(B) and (C) of this section. If the employer later 
discovers, upon receipt of the PWD from the NPC, that the information 
relied upon produced a wage below the final PWD and the employer was 
paying the NPC-determined wage, no wage violation will be found if the 
employer retroactively compensates the H-2B nonimmigrant(s) for the 
difference between wage paid and the prevailing wage, within 30 days of 
the employer's receipt of the PWD.
    (3) In all situations where the employer obtains the PWD from the 
NPC, the Department will deem that PWD as correct as to the amount of 
the wage. Nevertheless, the employer must maintain a copy of the NPC 
PWD. A complaint alleging inaccuracy of an NPC PWD, in such cases, will 
not be investigated.
    (B) An independent authoritative source. The employer may use an 
independent authoritative wage source in lieu of an NPC PWD. The 
independent authoritative source survey must meet all the criteria set 
forth in paragraph (b)(3)(iii)(B) of this section.
* * * * *
    (b) * * *
    (3) * * *
    (iii) * * *
    (A) A copy of the prevailing wage finding from the NPC for the 
occupation within the area of intended employment.
* * * * *
* * * * *
    (d) * * *
    (2) In the event the Administrator obtains a prevailing wage from 
ETA pursuant to paragraph (d)(1) of this section, and the employer 
desires review, including judicial review, the employer shall challenge 
the ETA prevailing wage only by filing a request for review under Sec.  
656.41 of this chapter within 30 days of the employer's receipt of the 
PWD from the Administrator. If the request is timely filed, the 
decision of OFLC is suspended until the Center Director issues a 
determination on the employer's appeal. If the employer desires review, 
including judicial review, of the decision of the NPC Center Director, 
the employer shall make a request for review of the determination by 
the Board of Alien Labor Certification Appeals (BALCA) under Sec.  
656.41(e) of this chapter within 30 days of the receipt of the decision 
of

[[Page 78068]]

the Center Director. If a request for review is timely filed with the 
BALCA, the determination by the Center Director is suspended until the 
BALCA issues a determination on the employer's appeal. In any challenge 
to the wage determination, neither ETA nor the NPC shall divulge any 
employer wage data collected under the promise of confidentiality.
    (i) Where an employer timely challenges an OFLC PWD obtained by the 
Administrator, the 30-day investigative period shall be suspended until 
the employer obtains a final ruling. Upon such a final ruling, the 
investigation and any subsequent enforcement proceeding shall continue, 
with the PWD as determined by the BALCA serving as the conclusive 
determination for all purposes.
    (ii) [Reserved]
    (3) For purposes of this paragraph (d), OFLC may consult with the 
NPC to ascertain the prevailing wage applicable under the circumstances 
of the particular complaint.

0
6. Amend Sec.  655.1102 to add the definition of ``Office of Foreign 
Labor Certification (OFLC)'' to read as follows:


Sec.  655.1102  What are the definitions of terms that are used in 
these regulations?

* * * * *
    Office of Foreign Labor Certification (OFLC) means the 
organizational component within the ETA that provides national 
leadership and policy guidance and develops regulations and procedures 
to carry out the responsibilities of the Secretary of Labor under the 
INA concerning foreign workers seeking admission to the United States.
* * * * *

0
7. Amend Sec.  655.1112 by revising paragraph (c)(2) to read as 
follows:


Sec.  655.1112  Element II--What does ``no adverse effect on wages and 
working conditions'' mean?

* * * * *
    (c) * * *
    (2) Determination of prevailing wage for H-1C purposes. In the 
absence of collectively bargained wage rates, the National Processing 
Center (NPC) having jurisdiction as determined by OFLC shall determine 
the prevailing wage for similarly employed nurses in the geographic 
area in accordance with administrative guidelines issued by ETA for 
prevailing wage determination requests submitted on or after the 
effective date of these regulations.
    (i) Prior to the effective date of these regulations, the SWA 
having jurisdiction over the area of intended employment shall continue 
to receive and process prevailing wage determination requests in 
accordance with the regulatory provisions and Department guidance in 
effect prior to January 1, 2009. On or after the effective date of 
these regulations, the NPC shall receive and process prevailing wage 
determination requests in accordance with these regulations and with 
Department guidance. A facility seeking to determine the prevailing 
wage must request a prevailing wage determination from the NPC having 
jurisdiction for providing the prevailing wage over the proposed area 
of intended employment not more than 90 days prior to the date the 
attestation is submitted to the Department. The NPC must enter its wage 
determination on the form it uses and return the form with its 
endorsement to the employer. Once a facility obtains a prevailing wage 
determination from the NPC and files an attestation supported by that 
prevailing wage determination, the facility shall be deemed to have 
accepted the prevailing wage determination as accurate and appropriate 
(as to both the occupational classification and the wage rate) and 
thereafter shall not contest the legitimacy of that prevailing wage 
determination in an investigation or enforcement action pursuant to 
subpart M of this part.
    (ii) A facility may challenge the prevailing wage determination 
with the NPC having provided such determination according to 
administrative guidelines issued by ETA, but must obtain a final ruling 
prior to filing an attestation.
* * * * *

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

0
8. The authority citation for part 656 is revised to read as follows:

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


0
9. Amend Sec.  656.3 by revising the definitions of ``Prevailing wage 
determination (PWD)'' and ``State Workforce Agency (SWA)'' to read as 
follows:


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

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


Sec.  656.15  [Amended]

0
10. Amend Sec.  656.15:
0
a. By removing the words ``in duplicate;'' from paragraph (a); and
0
b. By removing paragraph (f) and redesignating paragraph (g) as 
paragraph (f).

0
11. Amend Sec.  656.40 by revising paragraphs (a), (b) introductory 
text, (c), (g), (h) and (i) to read as follows:


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

    (a) Application process. The employer must request a PWD from the 
NPC, on a form or in a manner prescribed by OFLC. Prior to January 1, 
2010, the SWA having jurisdiction over the area of intended employment 
shall continue to receive and process prevailing wage determination 
requests in accordance with the regulatory provisions and Department 
guidance in effect prior to January 1, 2009. On or after January 1, 
2010, the NPC shall receive and process prevailing wage determination 
requests in accordance with these regulations and with Department 
guidance. The NPC will provide the employer with an appropriate 
prevailing wage rate. The NPC shall determine the wage in accordance 
with sec. 212(t) of the INA. Unless the employer chooses to appeal the 
center's PWD under Sec.  656.41(a) of this part, it files the 
Application for Permanent Employment Certification either 
electronically or by mail with the processing center of jurisdiction 
and maintains the PWD in its files. The determination shall be 
submitted to the CO, if requested.
    (b) Determinations. The National Processing Center will determine 
the appropriate prevailing wage as follows: * * *
    (c) Validity Period. The National Processing Center must specify 
the validity period of the prevailing wage, which in no event may be 
less than 90 days or more than 1 year from the

[[Page 78069]]

determination date. To use a prevailing wage rate provided by the NPC, 
employers must file their applications or begin the recruitment period 
required by Sec. Sec.  656.17(e) or 656.21 of this part within the 
validity period specified by the NPC.
* * * * *
    (g) Employer-provided wage information. (1) If the job opportunity 
is not covered by a CBA, or by a professional sports league's rules or 
regulations, the NPC will consider wage information provided by the 
employer in making a PWD. An employer survey can be submitted either 
initially or after NPC issuance of a PWD derived from the OES survey. 
In the latter situation, the new employer survey submission will be 
deemed a new PWD request.
    (2) In each case where the employer submits a survey or other wage 
data for which it seeks acceptance, the employer must provide the NPC 
with enough information about the survey methodology, including such 
items as sample size and source, sample selection procedures, and 
survey job descriptions, to allow the NPC to make a determination about 
the adequacy of the data provided and validity of the statistical 
methodology used in conducting the survey in accordance with guidance 
issued by the OFLC national office.
    (3) The survey submitted to the NPC must be based upon recently 
collected data.
    (i) A published survey must have been published within 24 months of 
the date of submission to the NPC, must be the most current edition of 
the survey, and the data upon which the survey is based must have been 
collected within 24 months of the publication date of the survey.
    (ii) A survey conducted by the employer must be based on data 
collected within 24 months of the date it is submitted to the NPC.
    (4) If the employer-provided survey is found not to be acceptable, 
the NPC will inform the employer in writing of the reasons the survey 
was not accepted.
    (5) The employer, after receiving notification that the survey it 
provided for NPC consideration is not acceptable, may file supplemental 
information as provided by paragraph (h) of this section, file a new 
request for a PWD, or appeal under Sec.  656.41.
    (h) Submittal of supplemental information by employer. (1) If the 
employer disagrees with the skill level assigned to its job 
opportunity, or if the NPC informs the employer its survey is not 
acceptable, or if there are other legitimate bases for such a review, 
the employer may submit supplemental information to the NPC.
    (2) The NPC will consider one supplemental submission about the 
employer's survey or the skill level the NPC assigned to the job 
opportunity or any other legitimate basis for the employer to request 
such a review. If the NPC does not accept the employer's survey after 
considering the supplemental information, or affirms its determination 
concerning the skill level, it will inform the employer of the reasons 
for its decision.
    (3) The employer may then apply for a new wage determination or 
appeal under Sec.  656.41 of this part.
    (i) Frequent users. The Secretary will issue guidance regarding the 
process by which employers may obtain a wage determination to apply to 
a subsequent application, when the wage is for the same occupation, 
skill level, and area of intended employment. In no case may the wage 
rate the employer provides the NPC be lower than the highest wage 
required by any applicable Federal, State, or local law.
    (ii) [Reserved]
* * * * *

0
12. Revise Sec.  656.41 to read as follows:


Sec.  656.41  Review of prevailing wage determinations.

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

    Signed in Washington, DC, this 12th day of December, 2008.
Brent R. Orrell,
Deputy Assistant Secretary, Employment and Training Administration.
Alexander J. Passantino,
Acting Administrator, Wage and Hour Division, Employment Standards 
Administration.
[FR Doc. E8-29995 Filed 12-18-08; 8:45 am]

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