[Federal Register Volume 83, Number 218 (Friday, November 9, 2018)]
[Proposed Rules]
[Pages 55977-55985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-24498]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 83, No. 218 / Friday, November 9, 2018 /
Proposed Rules
[[Page 55977]]
DEPARTMENT OF HOMELAND SECURITY
RIN 1615-AC33
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
[Docket No. ETA-2018-0003]
RIN 1205-AB91
Modernizing Recruitment Requirements for the Temporary Employment
of H-2B Foreign Workers in the United States
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security and Employment and Training Administration,
Department of Labor.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security (DHS) and the Department
of Labor (DOL) (collectively, the Departments), are jointly proposing
regulatory revisions that would modernize the recruitment an employer
seeking H-2B nonimmigrant workers must conduct when applying for a
temporary labor certification. In particular, the Departments are
proposing to replace the print newspaper advertisements that their
regulations currently require with electronic advertisements posted on
the internet, which the Departments believe will be a more effective
and efficient means of disseminating information about job openings to
U.S. workers. The Departments are proposing to replace, rather than
supplement, the newspaper requirements because they believe that
exclusive electronic advertisements posted on a website appropriate for
the workers likely to apply for the job opportunity in the area of
intended employment would best ensure that U.S. workers learn of job
opportunities.
DATES: Comments must be submitted, in writing, on or before December
10, 2018.
ADDRESSES: You may send comments, identified by the agencies' names and
the DOL Docket No. ETA-2018-0003 or Regulatory Information Number (RIN)
1205-AB91, by any of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the
website instructions for submitting comments (under ``Help'' > ``How to
use Regulations.gov'').
Mail and hand delivery/courier: Submit written comments and any
additional material to Adele Gagliardi, Administrator, Office of Policy
Development and Research, U.S. Department of Labor, 200 Constitution
Avenue NW, Room N-5641, Washington, DC 20210.
Instructions: Label all submissions with ``RIN 1205-AB91.'' Please
submit your comments by only one method. All submissions must include
the agencies' names and the DOL RIN 1205-AB91.
Please be advised that DOL will post all comments received that
relate to this notice of proposed rulemaking (NPRM) on http://www.regulations.gov without making any change to the comments or
redacting any information. The http://www.regulations.gov website is
the Federal e-rulemaking portal, and all comments posted there are
available and accessible to the public. Therefore, DOL recommends that
commenters remove personal information (either about themselves or
others) such as Social Security Numbers, personal addresses, telephone
numbers, and email addresses included in their comments, as such
information may become easily available to the public via the http://www.regulations.gov website. It is the responsibility of the commenter
to safeguard personal information.
Also, please note that, due to security concerns, postal mail
delivery in Washington, DC may be delayed. Therefore, DOL encourages
the public to submit comments on http://www.regulations.gov.
Docket: To read or download comments or other material in the
electronic docket, go to http://www.regulations.gov website (search
using RIN 1205-AB91 or Docket No. ETA-2018-0003). DOL also will make
all the comments it receives available for public inspection by
appointment during normal business hours at the above address. If you
need assistance to review the comments, DOL will provide appropriate
aids, such as readers or print magnifiers. DOL will make copies of this
proposed rule available, upon request, in large print and electronic
file on computer disk. To schedule an appointment to review the
comments and/or obtain the proposed rule in an alternative format,
contact the Office of Policy Development and Research at (202) 693-3700
(this is not a toll-free number). You may also contact Adele Gagliardi,
Administrator, Office of Policy Development and Research, U.S.
Department of Labor, 200 Constitution Avenue NW, Room N-5641,
Washington, DC 20210.
Comments under the Paperwork Reduction Act (PRA): In addition to
filing comments with ETA, persons wishing to comment on the information
collection (IC) aspects of this rule may send comments to: Office of
Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-ETA,
Office of Management and Budget, Room 10235, 725 17th Street NW,
Washington, DC 20503, Fax: (202) 395-6881 (this is not a toll-free
number), email: [email protected]. See Paperwork Reduction
Act section of this proposal for particular areas of interest.
FOR FURTHER INFORMATION CONTACT: Regarding the Department of Labor:
William W. Thompson, II, Administrator, Office of Foreign Labor
Certification, Employment and Training Administration, Department of
Labor, Box #12-200, 200 Constitution Ave. NW, Washington, DC 20210,
telephone (202) 513-7350 (this is not a toll-free number). Regarding
the Department of Homeland Security: Kevin J. Cummings, Chief, Business
and Foreign Workers Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
20 Massachusetts Ave. NW, Suite 1100, Washington, DC 20529-2120,
telephone (202) 272-8377 (not a toll-free call).
Individuals with hearing or speech impairments may access the
telephone numbers above via TTY by calling the toll-free Federal
Information Relay Service at 1-877-889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
[[Page 55978]]
I. Background
A. Legal Framework
The Immigration and Nationality Act (INA), 8 U.S.C. 1101, et seq.,
establishes the H-2B nonimmigrant classification for a nonagricultural
temporary worker ``having a residence in a foreign country which he has
no intention of abandoning who is coming temporarily to the United
States to perform . . . temporary [non-agricultural] service or labor
if unemployed persons capable of performing such service or labor
cannot be found in this country.'' 8 U.S.C. 1101(a)(15)(H)(ii)(b).\1\
The Secretary of Homeland Security, in administering the H-2B program,
may grant a petition for an otherwise eligible H-2B nonimmigrant worker
``after consultation with appropriate agencies of the Government.'' 8
U.S.C. 1184(c)(1). The Secretary of Homeland Security also may delegate
to ``any employee of the United States, with the consent of the head of
the applicable Department or other independent establishment, . . . any
of the powers, privileges, or duties conferred or imposed'' on DHS
under the INA. 8 U.S.C. 1103(a)(6); see also 8 CFR 2.1. DHS regulations
provide that an H-2B petition for temporary employment in the United
States must be accompanied by an approved temporary labor certification
from DOL. 8 CFR 214.2(h)(6)(iii)(A) and (iv)(A). Pursuant to and in
accordance with the above authorities, the temporary labor
certification serves as DHS's consultation with DOL to determine the
question of whether a qualified U.S. worker is available to fill the
petitioning H-2B employer's job opportunity and whether a foreign
worker's employment in the job opportunity will adversely affect the
wages or working conditions of similarly employed U.S. workers. See 8
CFR 214.2(h)(6)(iii)(A) and (D).
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\1\ For ease of reference, sections of the INA are referred to
by their corresponding section in the United States Code.
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In order to advise DHS on the availability of U.S. workers and the
potential for adverse effect on the wages and working conditions of
similarly employed U.S. workers, DOL's Office of Foreign Labor
Certification (OFLC) provides consultation to DHS through issuance of
temporary labor certifications, in accordance with 8 U.S.C. 1103(a) and
1184(c);). See 8 CFR 214.2(h)(6)(iii)(A) and (D). The Departments have
jointly issued regulations that govern the standards and procedures
applicable to OFLC's issuance of temporary labor certifications under
the H-2B program. See 20 CFR 655 subpart A. The regulations at 20 CFR
655 subpart A require employers seeking H-2B temporary labor
certification to, among other things, actively recruit for U.S. workers
before submitting petitions with DHS to hire foreign workers.
The standards and procedures governing the recruitment of U.S.
workers generally are set forth in 20 CFR 655.40-655.48. These
regulations generally require, among other things, that an employer
seeking an H-2B temporary labor certification (1) place two print
advertisements in a newspaper of general circulation serving the area
of intended employment, Sec. 655.42(a); (2) contact former U.S.
workers employed in the previous year to solicit their return, Sec.
655.43; and (3) contact the bargaining unit, if one exists, to seek
referrals of U.S. workers, or if a bargaining unit does not exist, post
the job opportunity at the place(s) of employment for at least 15
consecutive business days, Sec. 655.45. An employer may need to
conduct additional recruitment, as provided in section 655.46(a), where
the OFLC Certifying Officer (CO) determines there is a likelihood that
qualified U.S. workers will be available to fill the employer's job
opportunity.
As relevant here, section 655.42(a) requires an employer seeking an
H-2B temporary labor certification to place a print advertisement on
two separate days, one of which must be a Sunday, in a newspaper of
general circulation serving the area of intended employment and
appropriate to the occupation and workers likely to apply for the job
opportunity. If the employer's job opportunity is located in a rural
area that does not have a newspaper with a Sunday edition, then section
655.42(b) permits the CO to direct the employer, in place of a Sunday
edition, to place a print advertisement in the regularly published
daily edition with the widest circulation in the area of intended
employment. Both advertisements must meet the minimum content
requirements set forth in section 655.41, and the employer is required
to maintain documentation of the actual newspaper advertisement(s)
published in the event of an audit or other review. Sec. 655.42(d).
B. Joint Issuance
In order to effectuate DHS's requirement for DOL consultation,
which is provided in the form of temporary labor certifications, DOL
must issue regulations to structure procedures and substantive
standards for its issuance of labor certifications, as DOL has done for
almost 50 years. On April 29, 2015, following a court's vacatur of
nearly all of DOL's H-2B regulations, the Departments jointly
promulgated an interim final rule (IFR) governing DOL's role in issuing
temporary labor certifications and enforcing the statutory and
regulatory rights and obligations applicable to employment under the H-
2B program. See Temporary Non-Agricultural Employment of H-2B Aliens in
the United States, 80 FR 24,042 (Apr. 29, 2015) (codified at 8 CFR part
214, 20 CFR part 655, and 29 CFR part 503) (``2015 H-2B IFR'').
As explained in the 2015 H-2B IFR, following conflicting legal
decisions about DOL's authority to independently issue legislative
rules to carry out its duties for the H-2B program under the INA, the
Departments jointly issued the 2015 H-2B IFR ``to ensure that there can
be no question about the authority for and validity of the regulations
in this area.'' 80 FR at 24,045; see also 80 FR at 24,044-24,047.\2\
Specifically, DHS's participation in the rulemaking is pursuant to its
broad authority to issue rules in the H-2B program under 8 U.S.C.
1103(a)(3) and 1184(a), and, as referenced above, DOL--which has the
institutional expertise on all matters relating to the domestic labor
market and has for decades issued temporary labor certifications and
legislative rules governing them in the non-agricultural foreign worker
program--is necessarily authorized to promulgate rules governing its
issuance of temporary labor certifications pursuant to 8 U.S.C. 1103(a)
and 1184(c). The Departments further explained that by issuing the 2015
H-2B IFR jointly, ``the Departments affirm that this rule is fully
consistent with the INA and implementing DHS regulations and is vital
to DHS's ability to faithfully implement the statutory labor
protections attendant to the program.'' 80 FR at 24,045-46. Litigation
on these and related matters is ongoing. Accordingly, notwithstanding
that DOL has authority to independently issue this NPRM, DHS is joining
DOL in this rulemaking to ensure that there can be
[[Page 55979]]
no question about the authority underlying this action.
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\2\ DOL's authority to jointly regulate with DHS has not been
found invalid. While the same district court twice issued an
injunction against DOL's unilaterally-issued H-2B rules, see Bayou
Lawn & Landscape Servs. v. Solis, 2012 WL 12887385 (N.D. Fla. Apr.
26, 2012) and Bayou Lawn v. Perez, 81 F. Supp. 3d 1291, 1300 (N.D.
Fla. 2014) (Bayou II), it has since upheld the joint rules, Bayou
Lawn v. Johnson, 173 F. Supp. 3d 1271, 1277, 1289-91 (N.D. Fla.
2016) (Bayou III), with the court noting that the primary difference
between the enjoined 2012 rules and the 2015 rules was their joint
promulgation. Id. at 1277, n2.
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C. Need for Rulemaking
The Departments are proposing to modernize the recruitment that an
employer must conduct under section 655.42 by replacing print newspaper
advertisements with electronic advertisements posted on the internet.
After due consideration, the Departments believe that advertisements
posted on the types of websites described below will reduce burden on
employers and applicants, and be a more effective and efficient means
of recruiting U.S. workers than the print newspaper advertisements that
section 655.42 currently requires.
The Departments are basing this proposal on several considerations.
First, available data suggest that U.S. workers are now much more
likely to turn to the internet to search for work than classified
newspaper advertisements in print newspapers. For instance, a recent
survey conducted by the Pew Research Center indicated that 79 percent
of Americans research jobs online, whereas only 32 percent use ``ads in
print publications,'' and only four percent found ads in print
publications to be the most useful tool in obtaining their recent
employment.\3\ This trend is likely to continue as U.S. workers gain
increased and more convenient access to the internet via smartphones
and other digital devices,\4\ and print newspaper circulation continues
to decline.\5\ Consequently, classified advertisements in print
editions are becoming a less effective means of notifying potential
applicants about available job opportunities.\6\ In recognition of
these facts, many newspapers now offer online classified employment
listings using multi-platform content providers, and popular online job
search websites power the job boards of thousands of newspaper sites,
providing a lower cost recruiting option for employers and job seekers
alike.\7\
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\3\ Aaron Smith, Searching for Work in the Digital Era, Pew
Research Center, Nov. 19, 2015, http://www.pewinternet.org/2015/11/19/searching-for-work-in-the-digital-era/; see also R. Jason
Faberman & Marianna Kudlyak, What Does Online Job Search Tell Us
About The Labor Market?, Economic Perspectives, Jan. 2016, https://
www.chicagofed.org/~/media/publications/economic-perspectives/2016/
ep2016-1-pdf.pdf (observing that the online job search has become
the preferred method of search for nearly all types of job seekers
and recent research suggests that it is the new norm for how job
seekers find work); Richard Hernandez, Online Job Search: The New
Normal, Monthly Labor Review (Bureau of Labor Statistics, U.S.
Dep't. of Labor, Wash. DC), Jan. 2017, https://www.bls.gov/opub/mlr/2017/beyond-bls/pdf/online-job-search-the-new-normal.pdf (reporting
that the online job search is now the most popular method of job
hunting).
\4\ In 2018, 89 percent of American adults used the internet,
and 77 percent of American adults owned a smartphone, up from just
35 percent in 2011. See internet/Broadband Fact Sheet, Pew Research
Center, Feb. 5, 2018, http://www.pewinternet.org/fact-sheet/internet-broadband/; Mobile Fact Sheet, Pew Research Center, Feb. 5,
2018, http://www.pewinternet.org/fact-sheet/mobile/.
\5\ By 2014, fewer than 15 percent of Americans received a daily
newspaper. See Elaine C. Kamarck and Ashley Gabriele, The News
Today: 7 Trends in Old and New Media, The Brookings Institution,
Nov. 10, 2015, https://www.brookings.edu/research/the-news-today-7-trends-in-old-and-new-media.
\6\ According to the Pew Research Center, the total circulation
of U.S. daily newspapers (print and digital combined) in 2017 was
approximately 31 million, down 38 percent from more than 50 million
in 2007. Pew Research Center, June 13, 2018, http://www.journalism.org/fact-sheet/newspapers/ Newspapers Fact Sheet.
Conversely, job search websites today are attracting a far larger
pool of potential applicants to find jobs. For example, the top 15
job search websites alone attract nearly 200 million unique visitors
each month to search for employment.
\7\ See Christine Del Castillo, Does Anyone Advertise Jobs in
Newspapers Anymore?, Workable, May 19, 2016, https://resources.workable.com/blog/newspaper-job-ads.
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Second, this general trend is consistent with anecdotal evidence
that the Departments have received from stakeholders, who have reported
that print newspaper advertisements are not an effective method of
recruiting prospective U.S. workers for job opportunities filled by H-
2B workers. For instance, two comments submitted in response to the
2015 H-2B IFR indicated that reliance on newspaper advertising to
recruit U.S. workers was outmoded. Specifically, the Northwest Workers'
Justice Project (NWJP), a not-for-profit organization that provides
civil legal assistance to low-income persons, stated:
We support the general notion of modernizing the forms of
outreach to potential workers to be used to recruit domestic
workers. The use of alternative advertising forums reflects changes
in information exchanges and job searches and is appropriate. Fewer
and fewer unemployed U.S. workers search for jobs through
newspapers, and the elimination of newspaper advertising should have
a minimal impact on domestic worker recruiting. We recommend that
the regulations should expressly discuss new innovations now widely
used by employers of domestic workers to recruit new employees, such
as web-based advertising on sites such as Monster.com and
participation in job fairs.
NWJP comment at 11 (July 2, 2015).\8\ Similarly, the American
Immigration Lawyers Association (AILA), a national not-for-profit
organization of immigration attorneys and law professors, requested
that the Departments:
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\8\ Accessed at https://www.regulations.gov/document?D=ETA-2015-0005-0124.
move beyond newspaper advertisements as a method for recruiting
American workers. Newspaper circulation has been in decline for
years, as is evidenced by the overall decline in the number of print
newspapers currently on the market. The decrease in newspaper
readership, coupled with increased access to internet job banks has
changed the way workers look for jobs. Requiring lengthier (and
significantly more costly) ads will not result in more applicants,
just more funds expended by employers. DOL should focus on new
electronic avenues of job notification instead of requiring
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employers to run expensive advertisements.
AILA Comment at 10 (July 2, 2015).\9\
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\9\ Accessed at https://www.regulations.gov/document?D=ETA-2015-0005-0125.
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Finally, electronic advertisements offer employers a less
expensive, more convenient means of broadly disseminating information
about their job opportunities to potential U.S. workers. Many websites
offer standard advertising packages for free or at significantly lower
marginal costs than the standard print newspaper advertisement, and
advertisements can be posted on these sites for longer periods than a
typical print newspaper advertisement remains in circulation, providing
greater exposure of the employer's job opportunity to U.S. workers at
no additional cost to the employer. Moreover, unlike print
advertisements, which are subject to publishing deadlines that can
delay exposure of the job opportunity to U.S. workers, an electronic
advertisement can be posted within minutes or hours of submission to
the website.
In light of the foregoing, the Departments are proposing to revise
the recruitment that an employer must conduct under section 655.42 to
replace print newspaper advertisements with electronic advertisements
posted on the internet, as described below. The Departments are also
proposing minor amendments to sections 655.48 and 655.71 to conform
those sections with the Departments' proposed elimination of print
newspaper advertisements.
II. Discussion of Proposed Revisions to 20 CFR Part 655, Subpart A
A. Revise Section 655.42 To Replace Newspaper Advertisements With
Electronic Advertisements
The Departments are proposing to revise section 655.42(a) to
replace the requirement that an employer place print newspaper
advertisements with a requirement that the employer advertise its job
opportunity on a website that is widely viewed and appropriate for use
[[Page 55980]]
by workers who are likely to apply for the job opportunity in the area
of intended employment. The Departments propose to remove the word
``occupation'' from the text in order to address a possible redundancy
in the language. This proposed drafting change is stylistic only, and
the Departments intend to effect no substantive change by it.
The proposed rule would not mandate that an employer post its
advertisement on a specific website. Rather, proposed section 655.42(a)
would allow an employer to place an advertisement on any of a variety
of websites that are widely viewed and appropriate for use by workers
who are likely to apply for the job opportunity in the area of intended
employment, including websites that specialize in advertising job
opportunities for the specific industry or occupation, and websites
that specifically serve the local area, such as localized online job
listing services and digital classified sections of local newspapers.
Proposed section 655.42(a) also contemplates the use of websites that
are not specifically directed at workers in the area of intended
employment or the particular occupation, so long as the website is
appropriate for the occupation and adequately serves the area of
intended employment.
The Departments anticipate that advertisements posted on the types
of websites described above will provide greater exposure of job
opportunities to U.S. workers than the print newspaper advertisements
that section 655.42 currently requires, because they can be more easily
accessed by applicants across a much larger geographic area and for a
longer period. The Departments invite comments on whether they should
establish qualifying criteria (e.g., minimum number of unique visitors
per month), or define the types of websites on which an employer may
place an electronic advertisement under the proposed rule, and whether
the rule should exclude websites maintained by the employer and/or the
employer-client of a job contractor seeking to employ H-2B workers, as
defined in section 655.5. The Departments also solicit comments on
whether, instead of eliminating print newspaper advertisements, they
should instead offer electronic advertisements as an alternative means
of satisfying the existing print advertising requirement in section
655.242. The Departments are not proposing this option, given the data
and trends discussed in Section I.C., which suggest that electronic
advertisements will be more effective in disseminating information
about job opportunities to the American workforce. However, the
Departments invite comments on whether there are employers that lack
the technology or internet access necessary to place the electronic
advertisements described in the proposed rule, and if so, how the
Departments should determine whether such employers have met their
obligation to recruit U.S. workers. For instance, the Departments could
leave current recruitment requirements in place as an option for such
employers. The Departments solicit comments on whether there are
alternative methods that would more broadly and effectively disseminate
information about available job opportunities to U.S. workers.
Proposed section 655.42(b) specifies that an employer's
advertisement must be clearly visible on the website's homepage or be
easily retrievable using the search tools on the website. Any
advertisement that is not clearly visible on the website's homepage
must be easily retrievable. An advertisement is easily retrievable if
it can be quickly accessed using a prominently displayed link on the
website's homepage or the search tools and filters that are prominently
displayed on the website's homepage. Each navigation choice or
interaction that a job seeker has with the website should take him or
her closer to the job opportunity being advertised, and applicants
should be able to quickly locate job vacancies using a number of search
criteria, such as occupation, job or position title, geographic
location, pay range, and keywords in the job description. The employer
must use commonly understood terms and keywords to describe its job
opportunity when placing the advertisement, so that U.S. workers who
are likely to apply for the position will retrieve the advertisement
when using the website's search function.
Proposed section 655.42(b) would also require an employer to post
the electronic advertisement for a period of no less than 14
consecutive calendar days. Unlike the print newspaper advertisements
that an employer must place under the current rule, which are typically
published once, many websites offer standard advertising packages that
allow an employer to place an advertisement for a weekly period or up
to 30 calendar days for free or at a much lower marginal cost than a
standard print newspaper advertisement. Accordingly, the Departments
anticipate that the fourteen-day consecutive posting period in proposed
section 655.42(b) will attract more U.S. workers to job opportunities
than the print newspaper advertisements that this section currently
requires, because an employer's job opportunity will be easily
accessible to U.S. workers seeking jobs for a longer period than a
print newspaper advertisement, at no additional cost to the employer.
Further, in order to assure that the job opportunity described in
the advertisement is readily available to U.S. workers, proposed
section 655.42(b) would require that the advertisement be publicly
accessible at no cost to an applicant. To meet this requirement, the
website on which the advertisement is placed cannot require U.S.
workers to pay fees to establish personal accounts or make payments of
any kind to view the advertisement. The website must also be
functionally compatible with the latest commercial web browser
platforms and easily viewable on mobile smartphones and similar
portable devices. Moreover, like the current rule, proposed section
655.42(b) would require that the advertisement comply with the minimum
content requirements set forth in section 655.41.
In order to ensure that an employer retains the evidence necessary
to demonstrate compliance with proposed section 655.42(a) and (b),
proposed section 655.42(c) would require an employer to print and
retain screen shots of the web pages on which its advertisement appears
and screen shots of the web pages establishing the path used to access
the advertisement. Although the proposed rule does not require
employers to submit this documentation to the CO with their recruitment
reports, an employer must nevertheless retain this documentation in
accordance with 20 CFR 655.56 and provide it to DOL in the event of an
audit or other review.
The proposed section 655.42(d) includes a transition provision that
would permit an employer submitting an Application for Temporary
Employment Certification with a date of need prior to October 1, 2019
to elect between placing (a) an electronic advertisement in accordance
with the requirements in the proposed rule, or (b) two newspaper
advertisements in accordance with existing requirements. Because the
Departments are proposing to have this rule take effect immediately
upon publication of the final rule, the Departments are including this
transition period to provide flexibility to employers that seek
additional time to understand and comply with the proposed regulatory
revisions, while simultaneously permitting employers that wish to place
electronic advertisements immediately upon the effective date of the
final rule the ability
[[Page 55981]]
to do so. The transition provision is intended to better ensure, among
other things, that employers who have purchased newspaper advertising
space in advance do not lose the benefit of such purchase.
However, the option to elect between the placement of newspaper and
electronic advertisements would apply only to those applications with a
date of need prior to October 1, 2019. All employers submitting an
Application for Temporary Employment Certification with a date of need
after the transition period ends (i.e., employers with dates of need
beginning on or after October 1, 2019) would be required to place an
advertisement in accordance with the proposed revisions to 655.42(a)-
(c).
B. Other Minor Changes for Conformance
The Departments are proposing minor revisions to two other sections
in subpart A in order to conform the regulatory text of those sections
with the proposed revision to section 655.42. First, the Departments
are proposing to amend section 655.48(a)(i), relating to recruitment
reports, by revising the requirement that an employer provide the name
of the newspaper used to satisfy the recruitment requirement in section
655.42 to instead require the name of the website used to satisfy this
requirement. Second, the Departments are proposing to amend section
655.71(c)(2) by deleting the option to use newspaper advertisements for
assisted recruitment.
C. DOL-Assisted Advertising
DOL, with the concurrence of DHS, has taken initial steps toward
creating an online platform to assist employers in complying with the
requirements for electronic advertising under this proposed rule.
Pending the outcome of this rulemaking, DOL intends to leverage the
latest advertising technologies by establishing a mechanism to make
advertising data available to popular job-search websites.
Specifically, DOL is evaluating the development of a centralized
platform to automate the electronic advertising of approved H-2B job
opportunities. DOL anticipates that, once fully developed and
implemented, this electronic advertising platform would maintain a
standard set of data on each job opportunity that can be integrated
with a wide array of job search website technologies. Through this
platform, DOL would make available to job-search websites real-time
access to the information that employers provide about their job
opportunities subject to agreement to abide by terms of service. The
companies that operate job-search websites would execute standard
protocols to pull new H-2B jobs from the online platform in real time
for advertising to U.S. workers.
If developed as currently envisioned, DOL expects that employers
would provide information about their job opportunities, at the time of
filing their H-2B temporary labor certification applications, and
indicate their intention to use the electronic advertising platform.
Employers that elect to use this platform would have information about
their job opportunities transmitted by DOL to companies offering to
provide advertising services, which in turn would advertise these jobs
on the companies' job search websites.
The Departments believe that facilitating employers' use of
technology is in the best interest of employers and U.S. workers.
Because information about the job opportunity would already be provided
at the time of filing the H-2B temporary labor certification
application and transmitted by DOL to companies operating these job
search websites, the burden associated with placing separate electronic
advertisements would be significantly reduced. The goal is to reduce
burdens on the regulated community, while ensuring that the maximum
number of U.S. workers learn about job opportunities. Having DOL
maintain a publicly available list of the companies participating in
this advertising platform would give U.S. workers and other
organizations that provide employment placement services a greater
degree of certainty regarding where these temporary or seasonal jobs
will be advertised and available for U.S. workers to apply. Employers
that elect to use the new platform would satisfy the advertising
requirements in Sec. 655.42. Finally, offering this platform to
employers would ensure more uniform compliance with advertising
requirements.
The Departments are not soliciting comments on this electronic
advertising platform at this time, but the Departments, or DOL acting
alone, may inform the public about the advertising platform's
completion through a notice in the Federal Register.
III. Administrative Information
A. Administrative Procedure Act
The Departments propose to claim an exception under 5 U.S.C.
553(d)(1) from the 30-day delayed effective date requirement on the
basis that relieves the restriction against on-line advertising of jobs
for which an employer seeks to hire H-2B workers. The final rule would
relieve regulated parties of the requirement that they only place paper
advertisements in newspapers of general circulation in the area of
intended employment. During the transition period, which would apply to
all employers who file an Application for Temporary Employment
Certification with a date of need prior to October 1, 2019, the rule
would allow employers to select between placing two paper newspaper
advertisements or placing an online advertisement. After the transition
period ends, the rule would altogether replace the newspaper
advertising requirement with online advertising, which is anticipated
to be more cost-effective and flexible for employers, as well as a more
effective way of reaching U.S. workers who may be able, willing, and
qualified for the employers' job opportunities. The online advertising
would also provide flexibility for U.S. workers who are job seekers to
identify and apply for the job opportunities for which employers seek
to hire H-2B workers. As discussed in greater detail in this preamble,
this approach is in line with commenter requests on the 2015 H-2B joint
Interim Final Rule, urging the Departments to transition to an online
recruitment model. The Departments anticipate that allowing employers
additional time to transition away from advertising by newspaper over
an approximately six-month period after the rule's publication would
provide needed flexibility, and thus provide employers with notice and
time to conform their business practices to the new rule. This rule
would take effect immediately upon publication of the final rule.
B. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 13771 (Reducing
Regulation and Controlling Regulatory Costs)
Under Executive Order (E.O.) 12866, the Office of Management and
Budget (OMB)'s Office of Information and Regulatory Affairs determines
whether a regulatory action is significant and, therefore, subject to
the requirements of the E.O. and review by OMB. 58 FR 51735. Sec. 3(f)
of E.O. 12866 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 affects in a material way
a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or state, local or tribal
governments or communities (also
[[Page 55982]]
referred to as economically significant); (2) creates serious
inconsistency or otherwise interferes with an action taken or planned
by another agency; (3) materially alters the budgetary impacts of
entitlement grants, user fees, or loan programs, or the rights and
obligations of recipients thereof; or (4) raises novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the E.O. Id. OMB has determined that this
proposed rule is a significant, but not an economically significant,
regulatory action under Sec. 3(f) of E.O. 12866. Consequently, OMB has
reviewed this rule.
E.O. 13563 directs agencies to propose or adopt a regulation only
upon a reasoned determination that its benefits justify its costs; the
regulation is tailored to impose the least burden on society,
consistent with achieving the regulatory objectives; and in choosing
among alternative regulatory approaches, the agency has selected those
approaches that maximize net benefits. E.O. 13563 recognizes that some
benefits are difficult to quantify and provides that, where appropriate
and permitted by law, agencies may consider and discuss qualitatively
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.
E.O. 13771, titled Reducing Regulation and Controlling Regulatory
Costs, was issued on January 30, 2017. This proposed rule is expected
to be an E.O. 13771 deregulatory action because the cost savings to H-
2B employers associated with the rule are larger than the costs. The
estimated cost savings associated with this regulatory action are
derived from the proposed revision to section 655.42(a), which would
replace print newspaper advertisements with electronic advertisements
posted on the internet.
1. Subject-by-Subject Analysis
The Departments' analysis below considers the expected impacts of
the following aspects of the proposed rule against the baseline (i.e.,
the 2015 Interim Final Rule): (a) The replacement of newspaper
advertisements with electronic advertisements, and (b) the time it
takes the regulated community to read and review the rule.
a. Electronic Advertisements
The Departments are proposing to modernize the positive recruitment
that an employer must conduct under the regulations by eliminating the
use of print newspaper advertisements and replacing it with electronic
advertisements posted on the internet, which will make the job
opportunity more broadly available to U.S. workers. Specifically, the
Departments are proposing to revise section 655.42(a) to replace print
newspaper advertisement requirements with a requirement for an
electronic advertisement posted on a website appropriate for the
workers who are likely to apply for the job opportunity in the area of
intended employment. As discussed in section I.C. of the preamble to
this NPRM, the basis for this proposal is rooted in the Departments'
determination that electronic advertisements will be a more effective
and efficient means of recruiting U.S. workers than the print newspaper
advertisements that the regulations currently require.
i. Cost Savings
To estimate the cost savings to employers that would result from
the proposed rule, the Departments first calculated the average number
of H-2B temporary labor certifications approved in a Fiscal Year (FY)
based on data from FY 2015-2017, which yielded an annual average of
5,879.\10\ Next, the Departments identified the top five states in
which prospective H-2B employers received temporary labor
certifications and researched the cost of placing a newspaper
advertisement in the most populous city in each of these states (for
several newspapers, including large and local papers) that would
satisfy the advertising content requirements.\11\ The Departments then
averaged the data obtained to estimate the average cost of complying
with section 655.42. Based on these data, the Departments determined
that the average cost of placing a single, one-day newspaper
advertisement required by section 655.42 is $803.08.\12\
---------------------------------------------------------------------------
\10\ The average is based on 5,106 H-2B temporary labor
certifications in FY 2015; 5,933 temporary labor certifications in
FY 2016; and 6,599 temporary labor certifications in FY 2017.
Calculation: (5,106 + 5,933 + 6,599)/3 = 5,879 (rounded)). See
https://www.foreignlaborcert.doleta.gov/performancedata.cfm.
\11\ The top 5 states in which employers seek to place H-2B
workers are Colorado, Florida, Louisiana, Texas, and Virginia.
\12\ The Departments assume that these advertisements would be
placed in the newspaper classified section for employment.
---------------------------------------------------------------------------
As mentioned above, the Departments believe, based on preliminary
research, that employers can choose to advertise using online job
search websites free of charge or at significantly lower marginal
costs, so removing the requirement to advertise in a print newspaper
would result in a cost savings equal to the cost of complying with the
current regulation.\13\ Although section 655.42 currently requires
employers to advertise on two consecutive days, one of which must be a
Sunday, the Departments did not identify a significant difference in
cost between advertisements placed on Sundays and weekdays, so the
Departments did not distinguish between these two costs when
calculating total advertising cost savings. To estimate the annual cost
savings of newspaper advertising costs that employers will avoid under
the proposed rule, the Departments multiplied the average annual number
of approved H-2B temporary labor certifications (5,879) by the average
newspaper advertising cost of $803.08, and multiplied it by two to
account for each of the days that employers seeking H-2B workers are
currently required to place newspaper advertisements. This yielded an
average annual cost savings of $9.44 million \14\ for employers.
---------------------------------------------------------------------------
\13\ The Departments have data on three commonly used job-search
websites that allow employers to advertise free of charge.
\14\ Calculation: 5,879 x $803.08 = $9,442,615 = $9.44 million
(rounded).
---------------------------------------------------------------------------
b. Time To Understand Rule
During the first year that this rule would be in effect, employers
seeking H-2B workers would need time to learn about the new
requirements. The Departments assume that many employers participating
in the H-2B program would learn about the requirements of the new rule
from an industry newsletter or bulletin. The Departments assume that
the amount of time required to understand the rule change to be 10
minutes. The proposed rule addresses only the job advertising
requirements for employers seeking H-2B workers.
i. Costs
This requirement represents a cost to employers participating in
the H-2B program in the first year of the rule. The Departments
estimate this cost by multiplying the time required to read and review
the new rule (10 minutes) by the median hourly wage of a human
resources specialist ($31.84),\15\ multiplied by a factor of two (2) to
account for fringe benefits and overhead, which yields a cost of $10.61
\16\ per employer. The Departments estimate the total cost of reading
and reviewing the rule by
[[Page 55983]]
multiplying $10.61 by the average annual number of employers
participating in the H-2B program over FY 2015-2017 (6,151). This
calculation results in a cost of $65,283 \17\ in the first year.
---------------------------------------------------------------------------
\15\ Wage derived from Bureau of Labor Statistics median hourly
wage for HR Specialists (occupation code 13-1071), U.S. Department
of Labor, Bureau of Labor Statistics, Occupational Employment
Statistics, May 2017, Human Resources Specialist: https://www.bls.gov/oes/2017/may/oes131071.htm.
\16\ Calculation: ($31.84 x 2)/6 (10 minutes) = $10.61
(rounded).
\17\ Calculation: $10.61 x 6,151 = $65,283 (rounded).
---------------------------------------------------------------------------
The Departments acknowledge, however, that there are some
potentially limited situations--particularly in rural communities--
where the upfront costs associated with accessing the internet and
learning how to post such advertisements may result in noteable
opportunity costs for employers. The Departments believe that very few
employers who currently participate in the H-2B program do not
currently have access to the internet. For those employers that do not
currently have internet access, the Departments estimate that it will
take two hours to access the internet (which may include transporation
to the nearest library), research the websites and pick one to use,
establish an account on that website, learn how to post a job on the
website, and establish an email account. In addition, employers would
need to make additional trips to check for responses from U.S. workers.
Because of the uncertainties, we are unable to provide an estimate of
the number of employers who do not have access to the internet and
would incur these additional costs to post advertisements online. The
Departments seek comment from the public on the likely magnitude and
incidence of these costs. For employers with access to the internet who
are not familiar with posting such advertisements online, there will be
some up front costs associated with the time it takes to research job
advertisement sites, establish an account, and learn how to post a job
on the website.
However, online advertisements for H-2B employment would increase
the visibility of job openings to potential U.S. workers and increase
the number of workers that would be able to access these jobs. This
benefit would significantly outweigh any cost potentially incurred by
the negligible number of employers who do not currently have access to
the internet due to transitioning from print newspaper advertisements
to online job postings. The Departments therefore believe that the net
societal benefit of implementing this rule would be maximized if all H-
2B employers are required to utilize online advertisements. As such
this rule constitutes as a deregulatory action.
2. Summary of Impacts
The Departments estimate the total first-year costs of the proposed
rule to be $65,283. This cost results from the estimated time required
to read and review the proposed rule by a human resources specialist.
This cost is incurred by all employers seeking H-2B workers subject to
proposed section 655.42(a). The Departments estimate a first-year cost
savings of $9.44 million. This cost savings results from replacing the
requirement that employers place print newspaper advertisements with a
requirement that employers place internet advertisements. Net first-
year cost savings amount to $9.38 million.\18\ This estimated cost
savings excludes any increase in costs to employers without current
access to the internet.
---------------------------------------------------------------------------
\18\ Calculation: $9,442,615 - $65,283 = $9,377,332 = $9.38
million (rounded).
---------------------------------------------------------------------------
Generally, annual cost savings are expected to be $9.44 million in
all years following the first year due to the lack of monetized costs
regarding the time required to read and review the proposed rule. The
10-year discounted net cost savings of the proposed rule range from
$66.25 million to $80.46 million (with 7- and 3-percent discount rates,
respectively). The annualized net cost savings of the proposed rule is
$9.43 million (with 3- and 7-percent discount rates). When the
Departments use a perpetual time horizon to allow for cost comparisons
under E.O. 13771, the annualized cost savings of this proposed rule are
$9.44 million at a discount rate of 7 percent (excluding any increased
costs to employers without access to the internet).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (March 29, 1996), requires federal agencies
engaged in rulemaking to consider the impact of their proposals on
small entities, consider alternatives to minimize that impact, and
solicit public comment on their analyses. The RFA requires the
assessment of the impact of a regulation on a wide range of small
entities, including small businesses, not-for-profit organizations, and
small governmental jurisdictions. Agencies must perform a review to
determine whether a proposed or final rule would have a significant
economic impact on a substantial number of small entities. 5 U.S.C. 603
and 604.
This proposed rule may impact small businesses that request H-2B
temporary labor certifications. The Departments assume that the average
number of H-2B temporary labor certifications requested by any small
business per year would be one. The Departments estimate that small
businesses would incur a one-time cost of $10.61 to familiarize
themselves with the rule and would incur annual cost savings of
$1,606.16 associated with advertising online rather than in print
newspapers. Over a 10-year analysis period, the net annualized cost
savings for a small business would be $1,604.74 at a 7-percent discount
rate.
The Departments reviewed the impacts of the proposed rule for two
North American Industry Classification System (NAICS) Codes that
frequently request H-2B temporary labor certifications: NAICS 561730:
Landscaping Services, and NAICS 721110: Hotels (except Casino Hotels)
and Motels. The Small Business Administration estimates that revenue
for a small business with NAICS Code 561730 is $7.5 million and for
NAICS Code 721110 is $32.5 million.\19\ The impact of the proposed rule
would be less than 1 percent of annual revenue for the smallest
businesses in these industries with the employment size fewer than 5
($197,491 for NAICS 561730 and $321,239 for NAICS 721110).\20\ Based on
this determination, the Departments certify that the proposed rule
would not have a significant economic impact on a substantial number of
small entities.
---------------------------------------------------------------------------
\19\ U.S. Small Business Administration (2017), Table of Small
Business Size Standards Matched to North American Industry
Classification System Codes, retrieved from: https://www.naics.com/wp-content/uploads/2017/10/SBA_Size_Standards_Table.pdf.
\20\ U.S. Census, 2012 SUSB Annual Data Tables by Establishment
Industry, https://www.census.gov/data/tables/2012/econ/susb/2012-susb-annual.html.
---------------------------------------------------------------------------
D. Paperwork Reduction Act
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., provides
that a Federal agency generally cannot conduct or sponsor a collection
of information, and the public is generally not required to respond to
an information collection, unless it is approved by OMB under the PRA
and displays a currently valid OMB Control Number. In addition,
notwithstanding any other provisions of law, no person shall generally
be subject to penalty for failing to comply with a collection of
information that does not display a valid Control Number. See 5 CFR
1320.5(a) and 1320.6. DOL has submitted the Information Collection
Request (ICR) contained in this rule to OMB and obtained approval using
[[Page 55984]]
emergency clearance procedures outlined at 5 CFR 1320.13.
More specifically, this rule proposes to replace print newspaper
advertisements with an advertisement posted on at least one website
that is widely viewed and appropriate for use by U.S. workers who are
likely to apply for the job opportunity in the area of intended
employment. The proposed rule would require that this advertisement be
clearly visible on the website's homepage or be easily retrievable
through the website, posted for a period of no less than 14 consecutive
calendar days, publicly accessible to U.S. workers at no cost using the
latest browser technologies and mobile devices, and satisfy the
advertising content requirements set forth in Sec. 655.41. Under the
proposed rule and in accordance with 20 CFR 655.56(c)(2)(ii), an
employer would be required to retain documentation demonstrating that
it posted an electronic advertisement in compliance with the
requirements in the proposed rule, including screen shots of the web
page on which the advertisement appears and screen shots of the web
pages establishing the path that U.S. workers must follow to access the
advertisement. The employer must be prepared to produce all information
and records contained in this information collection in the event of an
audit examination, investigation, or other enforcement proceedings in
the H-2B program. The Departments are using technology to reduce burden
by replacing newspaper advertisements with electronic advertisements.
The information collection requirements associated with this rule are
summarized as follows:
Agency: DOL-ETA.
Type of Information Collection: New.
Title of the Collection: Advertising Requirements for Employers
Seeking to Employ H-2B Nonimmigrant Workers.
Agency Form Number: None.
Affected Public: Private Sector--businesses or other for-profits.
Total Estimated Number of Respondents: 5,879.
Average Responses per Year per Respondent: 2.
Total Estimated Number of Responses: 11,758.
Average Time per Response: 7 minutes per application.
Total Estimated Annual Time Burden: 686 hours.
Total Estimated Other Costs Burden: $0.
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the Act
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in $100 million or more expenditure (adjusted annually
for inflation) in any one year by State, local, and tribal governments,
in the aggregate, or by the private sector.
This NPRM, if finalized, does not exceed the $100 million
expenditure in any 1 year when adjusted for inflation, and this
rulemaking does not contain such a mandate. The requirements of Title
II of the Act, therefore, do not apply, and the Departments have not
prepared a statement under the Act.
E. Small Business Regulatory Enforcement Fairness Act of 1996
This NPRM, if finalized, would not be a major rule as defined by
section 804 of the Small Business Regulatory Enforcement Act of 1996,
Public Law 104-121, 804, 110 Stat. 847, 872 (1996), 5 U.S.C. 804(2).
The Office of Information and Regulatory Affairs has found that this
rule is not likely to result in an annual effect on the economy of $100
million or more; a major increase in costs or prices; or significant
adverse effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic or export markets.
F. Executive Order 13132: Federalism
This NPRM does not have federalism implications because it would
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Accordingly, Executive Order 13132, Federalism, requires no further
agency action or analysis.
G. Executive Order 13175, Indian Tribal Governments
This NPRM does not have ``tribal implications'' because it would
not have substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes. Accordingly, Executive Order 13175,
Consultation and Coordination with Indian Tribal Governments, requires
no further agency action or analysis.
H. The Treasury and General Government Appropriations Act of 1999:
Assessment of Federal Regulations and Policies on Families
This NPRM would have no effect on family well-being or stability,
marital commitment, parental rights or authority, or income or poverty
of families and children. Accordingly, section 654 of the Treasury and
General Government Appropriations Act of 1999 (5 U.S.C. 601 note)
requires no further agency action, analysis, or assessment.
I. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This NPRM would have no adverse impact on children. Accordingly,
Executive Order 13045, Protection of Children from Environmental Health
Risks and Safety Risks, as amended by Executive Orders 13229 and 13296,
requires no further agency action or analysis.
J. Environmental Impact Assessment
This action is one of a category of actions that do not
individually or cumulatively have a significant effect on the human
environment. This action is therefore categorically excluded from
further review under the National Environmental Policy Act of 1969
(NEPA), 42 U.S.C. 4321-4375.
K. Executive Order 13211, Energy Supply
This NPRM has not been identified to have impacts on energy supply.
Accordingly, Executive Order 13211 requires no further agency action or
analysis.
L. Executive Order 12630, Constitutionally Protected Property Rights
This NPRM, would not implement a policy with takings implications.
Accordingly, Executive Order 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights, requires
no further agency action or analysis.
M. Executive Order 12988, Civil Justice Reform Analysis
This NPRM was drafted and reviewed in accordance with Executive
Order 12988, Civil Justice Reform. It was written to provide a clear
legal standard for affected conduct and was carefully reviewed to
eliminate drafting errors and ambiguities, so as to minimize litigation
and undue burden on the
[[Page 55985]]
Federal court system. It meets the applicable standards provided in
section 3 of Executive Order 12988.
List of Subjects in 20 CFR Part 655
Administrative practice and procedure, Employment, Employment and
training, Enforcement, Foreign workers, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Longshore and harbor
work, Migrant workers, Nonimmigrant workers, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.
For the reasons stated in this document, 20 CFR part 655 is
proposed to be amended 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), 8 U.S.C.
1103(a)(6), 1182(m), (n) and (t), 1184(c), (g), and (j), 1188, and
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978,
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206,
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat.
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; sec. 205 of
division M, Pub. L. 115-141, 132 Stat. 348; 8 CFR 2.1,
214.2(h)(4)(i), and 214.2(h)(6)(iii).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
and 1188; and 8 CFR 214.2(h).
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec.
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note,
Pub. L. 114-74 at section 701.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub.
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114-74 at section 701.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
0
2. Revise Sec. 655.42 to read as follows:
Sec. 655.42 Advertising in the area of intended employment.
(a) Where to conduct recruitment. The employer must place an
advertisement for the job opportunity on at least one website that is
widely viewed and appropriate for use by U.S. workers who are likely to
apply for the job opportunity in the area of intended employment.
(b) Nature of the recruitment. The advertisement must be clearly
visible on the website's homepage or be easily retrievable through the
website, posted for a period of no less than 14 consecutive calendar
days, publicly accessible to U.S. workers at no cost using the latest
browser technologies and mobile devices, and satisfy the requirements
set forth in Sec. 655.41.
(c) Proof of recruitment. An employer must retain documentation in
accordance with Sec. 655.56(c)(2)(ii) that demonstrates compliance
with paragraphs (a) and (b) of this section. Such documentation must
include screen shots of the web page on which the advertisement appears
and screen shots of the web pages establishing the path that U.S.
workers must follow to access the advertisement.
(d) Transition period for applications with dates of need prior to
October 1, 2019. (1) All employers submitting an Application for
Temporary Employment Certification with a date of need on or after
October 1, 2019 must place and retain documentation of an electronic
advertisement in accordance with paragraphs (a) through (c) of this
section.
(2) An employer submitting an Application for Temporary Employment
Certification with a date of need prior to October 1, 2019 may elect to
place two newspaper advertisements in compliance with requirements in
paragraphs (d)(2)(i) through (iv) of this section, in lieu of placing
and retaining documentation of the electronic advertisement required by
paragraphs (a) through (c) of this section.
(i) The employer must place an advertisement (which must be in a
language other than English, where the CO determines appropriate) on 2
separate days, which may be consecutive, one of which must be a Sunday
(except as provided in paragraph (d)(2)(ii) of this section), in a
newspaper of general circulation serving the area of intended
employment and appropriate to the occupation and the workers likely to
apply for the job opportunity.
(ii) If the job opportunity is located in a rural area that does
not have a newspaper with a Sunday edition, the CO may direct the
employer, in place of a Sunday edition, to advertise in the regularly
published daily edition with the widest circulation in the area of
intended employment.
(iii) The newspaper advertisements must satisfy the requirements in
Sec. 655.41.
(iv) The employer must maintain copies of newspaper pages (with
date of publication and full copy of the advertisement), or tear sheets
of the pages of the publication in which the advertisements appeared,
or other proof of publication furnished by the newspaper containing the
text of the printed advertisements and the dates of publication,
consistent with the document retention requirements in Sec. 655.56. If
the advertisement was required to be placed in a language other than
English, the employer must maintain a translation and retain it in
accordance with Sec. 655.56.
0
3. Amend Sec. 655.48 by revising paragraph (a)(1) to read as follows:
Sec. 655.48 Recruitment report.
(a) * * *
(1) The name of each recruitment activity or source (e.g., job
order and the name of the website as required in Sec. 655.42(a) on
which the job opportunity was advertised);
* * * * *
0
4. Amend Sec. 655.71 by revising paragraph (c)(2) as follows:
Sec. 655.71 CO-ordered assisted recruitment.
* * * * *
(c) * * *
(2) Designating the sources where the employer must recruit for
U.S. workers, directing the employer to place the advertisement(s) in
such sources;
* * * * *
Kirstjen M. Nielsen,
Secretary of Homeland Security.
R. Alexander Acosta,
Secretary of Labor.
[FR Doc. 2018-24498 Filed 11-8-18; 8:45 am]
BILLING CODE 4510-FP-P; 9111-97-P