Modernizing Recruitment Requirements for the Temporary Employment of H-2A Foreign Workers in the United States
| Published date | 20 September 2019 |
| Citation | 84 FR 49439 |
| Record Number | 2019-19674 |
| Section | Rules and Regulations |
| Court | Employment And Training Administration |
Federal Register, Volume 84 Issue 183 (Friday, September 20, 2019)
[Federal Register Volume 84, Number 183 (Friday, September 20, 2019)]
[Rules and Regulations]
[Pages 49439-49457]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19674]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
[Docket No. ETA-2018-0002]
RIN 1205-AB90
Modernizing Recruitment Requirements for the Temporary Employment
of H-2A Foreign Workers in the United States
AGENCY: Employment and Training Administration, Labor.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Labor (Department or DOL) is amending its
regulations governing the certification of agricultural labor or
services to be performed by temporary foreign workers in H-2A
nonimmigrant status (H-2A workers). The Department issues this
certification pursuant to Section 218(a) of the Immigration and
Nationality Act (INA), which requires a prospective employer of H-2A
workers to apply for a certification from the Secretary of Labor
(Secretary) that there are not sufficient able, willing, and qualified
United States (U.S.) workers available to fill the petitioning
employer's job opportunity, and that the employment of H-2A workers in
that job opportunity will not adversely affect the wages and working
conditions of workers in the United States similarly employed. This
final rule modernizes and improves the labor market test that the
Department uses to assess whether able, willing, and qualified U.S.
workers are available by: Rescinding the requirement that an employer
advertise its job opportunity in a print newspaper of general
circulation in the area of intended employment; expanding and enhancing
the Department's electronic job registry; and leveraging the expertise
and existing outreach activities of State Workforce Agencies (SWAs) to
promote agricultural job opportunities.
DATES: This final rule is effective October 21, 2019.
FOR FURTHER INFORMATION CONTACT: Thomas M. Dowd, Deputy Assistant
Secretary, 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). 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).
[[Page 49440]]
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Statutory and Regulatory Background
The INA, as amended by the Immigration Reform and Control Act of
1986 (IRCA), establishes an ``H-2A'' nonimmigrant visa classification
for a 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 agricultural labor or services . . . of a temporary or
seasonal nature.'' 8 U.S.C. 1101(a)(15)(H)(ii)(a); see also 8 U.S.C.
1184(c)(1) and 1188.\1\ The admission of foreign workers under this
classification involves a multi-step process before several Federal
agencies. First, a prospective H-2A employer must apply to the
Secretary for a certification that:
---------------------------------------------------------------------------
\1\ For ease of reference, sections of the INA are referred to
by their corresponding section in the United States Code.
(A) There are not sufficient U.S. workers who are able, willing,
and qualified, and who will be available at the time and place
needed to perform the labor or services involved in the petition;
and
(B) The employment of the alien in such labor or services will
not adversely affect the wages and working conditions of workers in
the United States similarly employed.
The INA prohibits the Secretary from issuing this certification--
known as a ``temporary labor certification''--unless both of the
above-referenced conditions are met and none of the conditions in 8
U.S.C. 1188(b) concerning strikes or lock-outs at the worksite,
labor certification program debarments, workers' compensation
assurances, and positive recruitment apply.
8 U.S.C. 1188(b). The Secretary has delegated his authority to issue H-
2A temporary labor certifications to the Assistant Secretary,
Employment and Training Administration (ETA), who in turn has delegated
that authority to ETA's Office of Foreign Labor Certification (OFLC).
Secretary's Order 06-2010 (Oct. 20, 2010). Second, once an employer
obtains a temporary labor certification from DOL, it may file a
nonimmigrant visa petition with the Secretary of Homeland Security. 8
U.S.C. 1184(c).\2\ Finally, if the employer's petition is approved, the
foreign workers whom it seeks to employ must, generally, apply for a
nonimmigrant visa at a U.S. embassy or consulate abroad. Id.
---------------------------------------------------------------------------
\2\ Under Section 1517 of title XV of the Homeland Security Act
of 2002 (``HSA''), Pub. L. 107-296, 116 Stat. 2135, reference to the
Attorney General's or other Department of Justice Official's
responsibilities under section 1184(c) have been expressly
transferred to the Secretary of Homeland Security. See 6 U.S.C. 202,
271(b).
---------------------------------------------------------------------------
The regulatory process whereby an employer may apply for and
receive an H-2A labor certification is set forth in Title 20, part 655,
subpart B of the Code of Federal Regulations (CFR). The Department's
last significant revision to these regulations took effect in 2010.\3\
The application process set forth in these regulations is designed to
ensure that OFLC acquires sufficient information to make the factual
determinations required by the INA, including the determination as to
whether there are sufficient able, willing, and qualified U.S. workers
available to perform the agricultural labor or services for which an
employer seeks H-2A workers. 20 CFR 655.100. To that end, the
Department's regulations require an employer seeking an H-2A temporary
labor certification to test the labor market by recruiting U.S. workers
for the position(s) in which it intends to employ H-2A workers. See,
e.g., 20 CFR 655.121, 655.141-655.144. The outcome of this labor market
test forms the basis of OFLC's determination as to whether there are
sufficient able, willing, and qualified U.S. workers available to fill
the employer's job opportunity.
---------------------------------------------------------------------------
\3\ See Temporary Agricultural Employment of H-2A Aliens in the
United States; Final Rule, 75 FR 6884 (Feb. 12, 2010) (2010 Final
Rule). The Department originally promulgated regulations governing
H-2A labor certifications in 1987. See Labor Certification Process
for the Temporary Employment of Aliens in Agriculture and Logging in
the United States; Interim Final Rule, 52 FR 20496 (June 1, 1987).
---------------------------------------------------------------------------
B. Current Recruitment Requirements
Under the regulations currently in effect, an employer seeking H-2A
workers generally initiates the labor market test by filing an
Agricultural and Food Processing Clearance Order, Form ETA-790 (job
order) with the SWA in the area where it seeks to employ H-2A workers.
20 CFR 655.121. Absent limited exceptions, an employer must file this
job order no more than 75 days, but no less than 60 days, before it
seeks to employ H-2A workers. Id. The SWA will review the job order to
confirm that the employer's job opportunity complies with the
Department's regulations and, if so, it will place the job order into
intrastate clearance, where the job order must remain active until 50
percent of the period of employment certified by the Department is
complete. 20 CFR 655.135. The SWA will refer each qualified U.S. worker
who applies during this period to the employer, and the employer may
reject applicants only for lawful, job-related reasons. Id.
Unless a specific exemption applies, an employer must include a
copy of this job order with the Application for Temporary Employment
Certification, Form ETA-9142A (H-2A application) that it files with the
Department. 20 CFR 655.130. An OFLC Certifying Officer (CO) will review
the H-2A application and job order for compliance with program
requirements. 20 CFR 655.140. If the H-2A application and job order
meet all applicable requirements, the CO will issue a Notice of
Acceptance (NOA) authorizing conditional access to the interstate
clearance system and direct the SWA to circulate a copy of the
employer's job order to other states where there are potential sources
of U.S. workers. 20 CFR 655.153. The NOA will also specify the
recruitment steps that the employer must conduct to complete the labor
market test, as well as the date by which the employer must provide the
Department an initial written report of its recruitment efforts. Id.
Upon receipt of this report, the CO will make a final determination
whether to grant, partially grant, or deny the employer's H-2A
application, based on the criteria for certification set forth in 20
CFR 655.160-655.161.
Sections 655.151 through 655.153 outline the recruitment steps that
most employers seeking H-2A labor certification will be required to
conduct. Under these regulations, unless a limited exception applies,
an employer must place two print advertisements that meet certain
content requirements in a newspaper of general circulation serving the
area of intended employment, see 20 CFR 655.151-655.152, and contact
the former U.S. workers whom it employed in the previous year, see 20
CFR 655.153.
In addition, under section 655.154, when an employer's job
opportunity is served by an area of traditional or expected labor
supply, the CO may direct an employer to recruit U.S. workers in up to
three additional states. 20 CFR 655.154. This latter regulation
implements the statutory requirement that an employer make ``positive
recruitment efforts'' in regions ``where the Secretary finds that there
are a significant number of qualified United States workers who, if
recruited, would be willing to make themselves available for work at
the time and place needed.'' 8 U.S.C. 1188(b)(4). Paragraph (c) of
section 655.154 leaves the precise nature of the additional positive
recruitment that an employer must conduct to the discretion of the CO.
In practice, however, when an employer's job opportunity is served by
traditional or expected labor supply states, the CO has traditionally
required the employer to place print advertisements in
[[Page 49441]]
newspapers with the largest circulations in those states.\4\
---------------------------------------------------------------------------
\4\ See Temporary Agricultural Employment of H-2A Aliens in the
United States; Final Rule, 75 FR 6884, 6930 (Feb. 12, 2010) (2010
Final Rule).
---------------------------------------------------------------------------
C. Summary of Proposed Changes to the Recruitment Requirements and the
Changes Adopted in This Final Rule
On November 9, 2018, the Department issued a Notice of Proposed
Rulemaking (NPRM) announcing its intent to modernize the recruitment
that an employer must conduct in conjunction with an H-2A application.
See 83 FR 55985 (Nov. 9, 2018). Specifically, the Department proposed
to eliminate the requirement that every employer advertise its job
opportunity in a print newspaper and replace it with a requirement to
post an electronic advertisement on a website. The Department invited
interested parties to submit written comments on all aspects of this
proposal, including a variety of issues related to the electronic
advertising requirement. The Department also solicited comments as to
whether there were alternative methods of recruitment that would more
broadly and effectively disseminate information about agricultural job
opportunities to U.S. workers. The Department originally stated that it
would accept comments through December 10, 2018, but in response to a
request for an extension, it subsequently extended this period through
December 28, 2018. The public may review all comments that the
Department received in response to the NPRM in the Federal Docket
Management System (FDMS) at http://www.regulations.gov, docket number
ETA-2018-0002.
Upon careful consideration of the comments that it received, the
Department has decided to adopt its proposal to transition to
electronic advertising with several changes. Specifically, this final
rule adopts the NPRM's proposal to eliminate the existing requirement
for most employers seeking H-2A labor certification to advertise their
job opportunities in print newspapers of general circulation in the
area of intended employment. The Department's transition to electronic
advertising will not require an employer to place an electronic
advertisement on the internet in the manner proposed in the NPRM. As
explained in detail below, the Department will instead advertise all H-
2A job opportunities by posting them on SeasonalJobs.dol.gov, the
expanded and improved version of the Department's existing electronic
job registry. This final rule further strengthens the labor market test
by enhancing the existing role of the SWAs in conducting outreach
activities. Specifically, this final rule allows the CO to direct a
SWA, where appropriate, to offer written notice of an employer's H-2A
job opportunity to organizations that provide employment and training
services to workers who are likely to apply for the job and/or place
written notice in other physical locations where such workers are
likely to gather.
D. Severability
To the extent that any portion of this final rule is declared
invalid by a court, the Department intends for all other parts of the
final rule that are capable of operating in the absence of the specific
portion that has been invalidated to remain in effect. Thus, even if a
court decision invalidating a portion of this final rule results in a
partial reversion to the current regulations or to the statutory
language itself, the Department intends that the rest of the final rule
continue to operate, to the extent possible, in tandem with the
reverted provisions.
II. Revisions to 20 CFR Part 655, Subpart B
A. The Department Is Rescinding the Regulation Generally Requiring
Employers To Place Print Newspaper Advertisements in the Area of
Intended Employment
1. Background
In the NPRM, the Department proposed to revise section 655.151(a)
to replace the requirement for an employer to place print newspaper
advertisements with a requirement for an employer to post an electronic
advertisement on a website that is widely viewed and appropriate for
use by workers who are likely to apply for the job opportunity in the
area of intended employment. The Department based this proposal on data
indicating that print newspaper circulation continues to decline and
that U.S. workers are increasingly turning to the internet in their job
searches. The Department also relied on data from the National
Agricultural Workers Survey (NAWS), which indicated that farmworkers in
the United States very rarely, if ever, learn about job opportunities
or obtain employment through print newspaper advertisements. The
Department noted that the NAWS data was consistent with its experience
conducting audit examinations of H-2A applications and anecdotal
evidence from stakeholders who reported that newspaper advertisements
were not an effective means of recruiting prospective U.S. workers for
agricultural job opportunities. In light of this data, experience, and
stakeholder feedback, the Department asserted that classified
advertisements in print editions were becoming a less effective means
of recruiting U.S. workers, and it proposed to replace section
655.151's current requirement to place a print newspaper advertisement
with a requirement to post an electronic advertisement on the internet.
Many of the H-2A employers, agents, agricultural associations, and
farm bureaus that submitted comments in response to the NPRM applauded
the Department's efforts to modernize the recruitment process and
confirmed that, based on their experience, the existing newspaper
advertising requirement was not effective in recruiting U.S. workers
for agricultural positions. A number of these commenters expressed
concern about the high costs associated with placing newspaper
advertisements under the existing rule. They asserted these costs are
unwarranted because newspaper advertisements result in few, if any,
referrals of U.S. applicants. For instance, one agent for H-2A
employers reported that its employer-clients had spent about $75,000 to
advertise roughly 5,000 positions, and the employers did not receive a
single applicant in response to the advertisements. An association
representing agricultural employers similarly reported that its members
spent millions of dollars on newspaper advertisements for H-2A
positions each year and received no U.S. applicants in response.
Nevertheless, many of these same commenters disagreed with the
Department's proposal to completely eliminate print newspaper
advertisements and urged that the Department provide an individual
employer with the option to choose whether to post two print newspaper
advertisements in accordance with the requirement in the existing rule
or an electronic advertisement in accordance with the requirement in
the proposed rule. These commenters provided varied reasons to justify
their request. For instance, some asserted that mandating electronic
advertisements would unfairly exclude employers who do not have
reliable access to the internet or who do not use the internet due to
religious reasons. Others maintained that an individual employer is in
the best position to know whether newspaper or electronic
advertisements are most likely to be successful in its area and urged
that the Department allow employers to select the method that works
best for them.
[[Page 49442]]
The Department also received comments from others--including
individuals, a SWA, and a group of farmworker advocacy organizations--
that generally expressed support for its proposal to transition to
electronic advertising. Although the farmworker advocacy organizations
conditioned their support on several issues they felt needed to be
addressed before the Department issued a final rule, they did not
contend that the newspaper advertisements placed under the current rule
are effective in recruiting U.S. agricultural workers, nor did they
urge the Department to retain this requirement.
While the vast majority of commenters supported eliminating (or
partially replacing) the print newspaper advertising requirement, the
Department received some comments--mostly from newspapers or
organizations associated with the newspaper industry--expressing
opposition to eliminating this requirement. These commenters generally
questioned whether electronic advertisements would be effective in
reaching U.S. workers interested in agricultural employment and pointed
to data suggesting that some of these workers may have limited access
to the internet. Others urged the Department to consider the effect
that the proposed rule would have on the newspaper industry.
Commenters associated with the newspaper industry additionally
alleged that the Department's proposal to eliminate its print newspaper
advertising requirement overlooked certain factors. For instance, a
trade association alleged newspapers are more effective than the
internet in disseminating information to relevant viewers. In support
of this assertion, the trade association cited two instances in which
non-job related public notices went unnoticed for weeks after they were
exclusively posted on the internet, but drew thousands of public
comments several weeks after newspapers had published stories about the
proposals in print. This same trade association also alleged that many
local newspapers reach an audience that is larger than their
subscribership indicates because a single newspaper is often read by
multiple people and the content in these newspapers is often available
online. According to this trade association, the distribution and
readership of a local newspaper, including all of its formats (print
and electronic), can easily exceed the number of visits to a third-
party job search website.
Others similarly noted that print newspapers are widely accessible
and distributed in local and regional communities where agricultural
job opportunities exist. Some of these commenters argued that the
Department incorrectly focused on large newspapers and subscribership
numbers, and maintained that newspapers continue to have large
readership, especially in smaller and more rural communities.
Accordingly, they urged the Department to revise section 655.151 to
allow advertisements in local community newspapers, which according to
these commenters, are more likely to be effective in recruiting U.S.
agricultural workers than larger newspapers with broader markets.
Finally, several commenters asserted that the electronic
advertising requirement proposed in the NPRM would sacrifice
accountability and transparency. In particular, they argued newspaper
advertisements are more difficult for unscrupulous employers to alter
or falsify and thus provide better evidence to demonstrate compliance
with regulatory requirements.
2. Discussion
After carefully considering the comments it received, the
Department has decided to rescind section 655.151, and it will no
longer generally require a prospective H-2A employer to advertise its
job opportunity in a newspaper serving the area of intended employment.
This decision is grounded in the Department's determination that the
newspaper advertisements required under this section do not
meaningfully contribute to the labor market test that the Department
administers to assess the availability of able, willing, and qualified
U.S. workers. Accordingly, this final rule rescinds the regulation
imposing this requirement, as set forth at 20 CFR 655.151, and the
regulation prescribing the content that an employer must include in
those advertisements, as set forth at 20 CFR 655.152.
This determination is supported by the lack of data indicating
newspaper advertisements are an effective means of recruiting U.S.
workers for agricultural positions. Specifically, as noted in the NPRM,
available data indicate that farmworkers in the United States very
rarely, if ever, learn about job opportunities or obtain employment
through print newspaper advertisements. See 83 FR at 55987. For
instance, none of the farmworkers interviewed in connection with the
latest NAWS identified print newspaper advertisements as a source for
obtaining their current job. In addition, the Department considered
anecdotal accounts in comments from farmers, agents, and agricultural
associations, who reported that the newspaper advertisements they have
placed in connection with this requirement have yielded very few, if
any, applications from able, willing, and qualified U.S. workers.
Moreover, as noted in the NPRM, these comments and available data
are consistent with the Department's experience in conducting audit
examinations of H-2A labor certifications, as well as anecdotal
evidence that the Department has received from stakeholders, both of
which illustrate that print newspaper advertisements are not an
effective method of recruiting prospective U.S. workers for
agricultural job opportunities. See 83 FR at 55987. Specifically, as
part of the audit process, the Department reviews the recruitment
reports that H-2A employers must maintain under 20 CFR 655.156(b). An
employer's recruitment report must identify each recruitment source
(e.g., newspaper advertisements, contact with former employees, word-
of-mouth), the names and contact information for each U.S. worker who
applied or was referred to the job opportunity, and the disposition of
each U.S. applicant. 20 CFR 655.156(a). Based on the Department's
experience in conducting audit examinations under current regulations,
few of these recruitment reports indicate that U.S. workers have
applied to agricultural job opportunities in response to the print
newspaper advertisements that employers have placed under section
655.151.
In arriving at this determination, the Department carefully
considered the arguments that commenters raised in support of retaining
the requirement to place print newspaper advertisements. As explained
below, however, none of these arguments contradict the findings
discussed above that newspaper advertisements are rarely, if ever, an
effective means of recruiting U.S. workers for agricultural positions.
Accordingly, these arguments have not persuaded the Department that it
must require every employer seeking H-2A workers to place print
advertisements in order to effectively test the labor market for able,
willing, and qualified, and available U.S. workers. As is currently the
case, to the extent the Department receives information that an
advertisement in a particular print publication is likely to reach
able, willing, qualified, and available U.S. workers in specific areas
or across certain populations, a CO may direct an employer to place
such an advertisement, on a case-by-case basis, under his or her
authority to order additional positive recruitment. See 20 CFR 655.154.
[[Page 49443]]
Significantly, the commenters who urged the Department to retain a
general print newspaper-advertising requirement did not point to data
that showed such advertisements are effective in recruiting U.S.
workers for agricultural positions. Rather, these commenters discussed
the purported advantages of newspaper advertisements in general terms,
compared to the purported advantage of electronic advertisements
proposed in the NPRM, without specifically addressing the efficacy of
newspaper advertisements in recruiting U.S. agricultural workers. For
instance, some commenters cited data indicating certain populations and
demographics are less likely to use the internet when searching for
jobs and are more likely to turn to community newspapers than the
internet to obtain local news. As it was not specific to agricultural
workers, such data do not speak to whether U.S. workers seeking
agricultural job opportunities actually use newspapers to look for
work. The arguments that commenters raised regarding the circulation
and distribution of newspapers suffer from the same flaw: They do not
refute the Department's observation in the NPRM, nor do the assertions
and anecdotes received in response to the NPRM, that farmworkers in the
United States very rarely, if ever, learn about job opportunities or
obtain employment using print newspaper advertisements. Similarly, the
fact that the Department can easily verify whether an employer has
placed a newspaper advertisement is irrelevant if the Department
determines that the placement of such advertisements is not always
required to adequately test the labor market.
Moreover, as discussed in detail below, the Department has decided
not to adopt its proposal to replace the requirement to place newspaper
advertisements with a requirement for an employer to post an electronic
advertisement on the internet. Instead, the Department will post an
electronic advertisement on an employer's behalf on
SeasonalJobs.dol.gov, an improved and expanded version of the
electronic job registry that the Department is required to maintain
under its existing regulations. See 20 CFR 655.144. This addresses
concerns that some commenters expressed regarding the effect of the
proposed rule on those employers who have limited or no access to the
internet and/or religious objections to internet use, because such
employers will not need to access the internet in order to participate
in the H-2A program. Accordingly, employers who lack access to the
internet will not need to acquire access to the internet in order for
SeasonalJobs.dol.gov to advertise their job opportunities or for them
to respond to any applications received from U.S. workers in response
to these advertisements. Likewise, employers will not need to determine
whether a particular website meets applicable regulatory criteria or
retain evidence of this posting. Rather, the Department will use
information that an employer provides on its job order and H-2A
application to generate the advertisement that the Department posts on
the employer's behalf on SeasonalJobs.dol.gov, and U.S. workers
interested in a particular job opportunity can apply to the employer
directly using the contact information that the employer provided to
the Department.
While the Department is aware that the final rule may have an
impact on the newspaper industry, the Department is also obligated to
carry out its statutory mandate in a manner that ensures the methods
and locations in which employers conduct positive recruitment yield
concrete results and are cost effective. As a general requirement for
all employers, the Department has determined that newspaper
advertisements do not meaningfully contribute to the labor market test,
which must be carried out by prospective employers to determine the
availability of able, willing, and qualified U.S. workers. Therefore,
the impact the newspaper industry experiences as a result of this final
rule is outweighed by the Department's need to more effectively carry
out its statutory mandate to ensure an adequate test of the U.S. labor
market.
The relevant question is whether this requirement is an effective
component of the labor market test that the Department conducts in
connection with an H-2A application. Given the absence of evidence
suggesting print newspaper advertisements are effective in recruiting
U.S. workers for agricultural job opportunities, the Department has
decided not to continue requiring most employers seeking an H-2A labor
certification to place print newspaper advertisements. Accordingly, the
Department is rescinding the regulation that generally requires
employers to place such advertisements, see 20 CFR 655.151, and the
regulation that prescribes the content of such advertisements, see 20
CFR 655.152. Moreover, as proposed in the NPRM, the Department is also
amending the regulation that specifies the post-acceptance requirements
for positions engaged in the herding or production of livestock on the
range, see 20 CFR 655.225, to conform to the rescission of section
655.151.
B. Instead of Requiring a Prospective H-2A Employer To Post Its Own
Electronic Advertisement, as Originally Proposed, the Department Will
Advertise The Employer's Job Opportunity on Seasonaljobs.gov, an
Improved and Expanded Version of the Department's Electronic Job
Registry
1. Background
In the NPRM, the Department proposed to amend section 655.151 to
require that an employer post an advertisement on a website meeting
certain criteria. The Department suggested that such websites might
include those operated by state or local agricultural associations, job
search websites that advertise agricultural job opportunities, and
other classified advertisement websites with sections focused on local
jobs. The Department requested comments on whether it should establish
additional qualifying criteria (e.g., minimum number of unique visitors
per month) or more specifically define the types of websites that an
employer may use.
Under the Department's proposed revision to section 655.151, an
employer's advertisement would need to be clearly visible on the
website's homepage or easily retrievable using the search tools on the
website, posted for a period of no less than 14 consecutive calendar
days, and publicly accessible to U.S. workers at no cost using the
latest browser technologies and mobile devices. The proposed rule also
required employers to use commonly understood terms and keywords to
describe their job opportunities, so that U.S. workers likely to apply
could easily retrieve advertisements using the website's search
function. Moreover, in an attempt to ensure the advertisement would be
readily available to U.S. workers at no cost, the proposed rule
prohibited employers from placing it on a website that required U.S.
workers to establish personal accounts or make payments of any kind to
view the advertisement. For the same reason, the proposed rule also
required the website to be functionally compatible with the latest
commercial web browser platforms and easily viewable on mobile
smartphones and similar portable devices. To ensure employers retained
the documentation necessary to demonstrate their compliance with these
requirements, the proposed rule required employers to print and retain
screen shots of the web pages on which their advertisements appeared,
as well
[[Page 49444]]
as screen shots of the web pages establishing the path used to access
their advertisements.
Separately, in the NPRM, the Department provided notice that it was
evaluating the development of a centralized online platform to automate
the advertising of H-2A job opportunities in order to assist employers
in complying with the proposed electronic advertising requirement.
Specifically, the Department envisioned that this electronic
advertising platform would maintain a standard set of data on each job
opportunity for integration with a wide array of job search website
technologies. As envisioned in the NPRM, employers who elected to use
this electronic advertising platform would consent to have the
Department transmit information about their H-2A job opportunities to
companies offering to provide advertising services. These companies
would, in turn, advertise the employers' job opportunities on their
respective job-search websites.
2. Discussion
The Department received comments both in support and in opposition
to the proposal to replace the print newspaper-advertising requirement
in section 655.151 with a requirement to post an electronic
advertisement on the internet. Some commenters fully supported the
Department's proposed transition to electronic advertising, agreeing it
was a necessary modernization of the H-2A program and had the capacity
to reach a larger number of U.S. job seekers across a larger geographic
area. These commenters noted that online advertisements would permit
employers to recruit labor more quickly and reliably than print
newspaper advertisements and offer an easier method for applicants to
contact agricultural employers looking for labor.
However, the Department also received a number of comments that
raised significant concerns with various aspects of its proposal. For
instance, many commenters expressed concern that the Department had not
adequately considered whether farmworkers are likely to search for jobs
online. A number of commenters cited data indicating people in rural
communities and lower skilled positions are less likely to have
reliable high-speed internet access than those in urban areas who seek
higher skilled positions, which could impede employers' ability to
post--and U.S. workers' ability to view--electronic advertisements.
Other commenters raised significant issues with the proposed criteria
for websites, the minimum required duration of the posting, and the
documentation that employers would be required to retain to establish
compliance.
After considering these comments, the Department continues to
believe that electronic advertising is an effective medium through
which to reach U.S. workers. However, upon further consideration of how
an electronic posting requirement can be effective in testing the U.S.
labor market, how it can be effectively administered and enforced, and
by whom, the Department has decided to rescind, rather than revise, the
advertising requirement in section 655.151. Instead, the Department has
decided to carry out the electronic advertising itself by posting H-2A
job opportunities on Seasonaljobs.dol.gov, an improved and expanded
version of the electronic job registry that the Department is required
to maintain under its existing regulations. See 20 CFR 655.144. To
accomplish this, in addition to placing copies of all approved H-2A job
orders on its publicly accessible electronic job registry, 20 CFR
655.144, the Department will enhance the functional capabilities of
this registry so that it also serves as a job search website that
broadly advertises and disseminates H-2A job opportunities to U.S.
workers. As discussed in detail below, the Department believes this
approach strikes an appropriate balance between addressing the concerns
that stakeholders have raised with the proposed electronic advertising
requirement and realizing the Department's goal of modernizing and
improving the labor market test conducted in connection with an H-2A
application.
Having the Department facilitate the electronic advertising of H-2A
job opportunities will have several salutary effects. First, it
addresses concerns raised in public comments regarding the effect that
this rule will have on employers who lack internet access and/or who
have religious objections to using the internet. The employer will not
need internet access to advertise job opportunities because the
Department will be placing advertisements on seasonaljobs.dol.gov on
behalf of all employers using the information that employers provide to
the Department in their H-2A applications. U.S. workers interested in a
particular job opportunity can apply by directly contacting the
employer, using the contact information--regardless whether that is an
email or physical address--that the employer provided to the
Department. Second, it eliminates the need to establish regulatory
criteria for the websites on which employers may place advertisements
or the documentation employers must retain to establish compliance with
those criteria. It also reduces burden on prospective H-2A employers--
who historically have been the parties tasked with placing
advertisements--by effectively transferring the responsibility (and
cost) for this activity from prospective H-2A employers to the
Department. Finally, and most importantly, it strengthens the integrity
and efficiency of the labor market test that is conducted in connection
with an H-2A application by leveraging the latest job search
technologies to more broadly disseminate information about H-2A job
opportunities through a centralized website. The enhancements that the
Department is making to its electronic H-2A job registry, as well as
each of these salutary effects, are discussed in further detail below.
(a) The Department Will Improve and Expand Its Electronic H-2A Job
Registry Instead of Creating a Separate DOL-Assisted Advertising
Platform
As previously mentioned, after considering the comments it received
in response to the NPRM, the Department has decided that the best
approach is to assume the responsibility for posting an electronic
advertisement through the Department's own website. Accordingly, this
final rule provides notice that the Department intends to improve and
enhance the electronic job registry that the Department maintains under
its existing regulations. See 20 CFR 655.144 (generally requiring the
CO to place a copy of an employer's job order on an electronic job
registry once the employer's H-2A application has been accepted for
processing, and generally requiring that this job order remain posted
on the electronic job registry until 50 percent of the employer's
contract period has elapsed).
The Department has used the iCERT Visa Portal System (iCERT System)
to host its electronic job registry since July 2010, shortly after
section 655.144 originally went into effect. Under this system, once an
employer's application has been accepted for processing, the CO will
redact any confidential information on the employer's job order and
upload a redacted image of the job order onto the iCERT system, where
it will generally remain posted until 50 percent of the employer's
contract period has elapsed. At the conclusion of this period, the CO
will change the job order to inactive status, so that the information
on the job order will still be available for public research and
access. The iCERT System currently allows the public to search and
retrieve H-2A job
[[Page 49445]]
orders using several common data points--including the H-2A application
number, employer name, area of intended employment, work contract
period, job title, and primary crop or agricultural activity.
The Department implemented the job registry for two reasons. See 75
FR 6884, 6927 (Dec 12, 2010). One was to promote public disclosure and
transparency, and the other was to have an additional tool through
which U.S. workers and other intermediaries providing services to
agricultural workers could more easily identify available job
opportunities. The Department's experience demonstrates that many
stakeholders value the transparency of a publicly available job
registry and use the current job registry to locate H-2A job orders.
Currently, however, the technology supporting the current job
registry is more than 10 years old, lacks compatibility with the latest
mobile devices, and provides limited search options for the public to
retrieve H-2A job orders. It also serves as a static repository of H-2A
job orders and lacks functionality that can facilitate the
dissemination of these job opportunities to the widest audience.
Finally, the manual process of scanning, redacting, and uploading
scanned images of job orders creates the risk of error, incomplete
information, and delays in posting, especially during the late fall and
winter months when employers are filing large numbers of applications
for the upcoming spring season.
To address these limitations and expand U.S. workers' awareness and
access to agricultural job opportunities, the Department is in the
process of transitioning its electronic job registry to a new platform,
SeasonalJobs.dol.gov, and it plans to decommission the public job
registry on the iCERT System in the fall of 2019.\5\
SeasonalJobs.dol.gov is a mobile-friendly website that leverages the
latest technologies to automate the electronic advertising of H-2A job
opportunities and ensures copies of H-2A job orders are promptly
available for public examination.
---------------------------------------------------------------------------
\5\ The Department first announced that it would be launching
SeasonalJobs.dol.gov on December 21, 2018. See https://www.dol.gov/newsroom/releases/eta/eta20181221.
_____________________________________-
SeasonalJobs.dol.gov is currently operational. Once a CO has
accepted an employer's H-2A application for further processing, the
Department posts a brief description of the employer's job opportunity
on SeasonalJobs.dol.gov that includes a link to a full copy of the
employer's job order. The employer's job opportunity appears on the
website in a concise and easy-to-read format, using information that
the employer reports to the Department on its H-2A application and job
order. While currently functional, the Department continues to enhance
the functionality of SeasonalJobs.dol.gov to make information about H-
2A job opportunities more accessible to U.S. workers. For instance, the
search options available in the iCERT system are limited to job title,
employer name, job order posting date, and the state where work will be
performed. SeasonalJobs.dol.gov will offer a more targeted and robust
set of search options than those on the current job registry. Users
will be able to create and save customizable job search profiles and
request email notifications informing them when the Department posts
positions that match their search criteria. In addition, a geolocation
Application Programming Interface will connect a user's current
geographic location (when available) to the website's automated search
tool, so that search results favor job opportunities near the user's
current location. Location history will also help the Department
identify how many users are searching for work in certain areas of the
country and more effectively steer H-2A job opportunities to groups of
job seekers located in certain regional areas and/or seeking different
types of agricultural work.
In addition, SeasonalJobs.dol.gov will make information about H-2A
job opportunities more accessible to U.S. workers with limited English
proficiency by posting the jobs in a format that allows language
translation services to access and translate both the general web
content on SeasonalJobs.dol.gov and specific terms and conditions of
the job opportunities presented on job orders through the site. It will
also facilitate broader dissemination of available job opportunities by
making a standard set of job data available to third-party job search
websites, which will allow job-search websites to execute web-scraping
protocols that extract new H-2A job opportunities from
SeasonalJobs.dol.gov and index them for advertising to U.S. workers. In
fact, Jobs on Google and LinkedIn job search features index the H-2A
job opportunities currently advertised on SeasonalJobs.dol.gov, and the
Department is evaluating additional integrations with other commonly
used job search and social media websites to cast as wide a net as
possible to help Americans find jobs. Finally, the Department will be
further enhancing the RSS feed capability to allow interested U.S.
workers and stakeholders to tailor notifications of relevant job
opportunities.
The Department believes that the enhancements it has and will
continue to make to the electronic job registry will improve the
existing labor market test and resolve many of the concerns that
commenters raised in response to the NPRM. This approach is also
consistent with suggestions that the Department received from numerous
commenters who urged the Department to either allow postings on its
electronic job registry to fulfill the proposed electronic
advertisement requirement or to implement a DOL-assisted electronic
advertising platform. In fact, most of the commenters who addressed the
DOL-assisted advertising platform expressed support for the proposal,
noting it would reduce regulatory burdens on employers, assist
employers in complying with advertising requirements, and enhance U.S.
worker access to employers' job opportunities in a centralized location
and standardized format.
However, a few commenters questioned the Department's decision to
expend resources developing this platform and suggested it was
unnecessary, while another generally supported the idea as long as it
did not impede or disrupt the processing of H-2A applications and was
not mandated. In addition, a few commenters urged the Department to
consult stakeholders prior to developing or implementing a DOL-assisted
advertising platform.
The Department has considered these comments, and while the
Department has decided not to go forward with the DOL-assisted
advertising platform that was proposed in the NPRM, it anticipates that
stakeholders will be pleased with the improvements the Department has--
and continues--to make to the electronic job registry. The Department
has administered this electronic job registry in some form for nearly a
decade. Accordingly, employers have been and continue to be on notice
that, as a condition of participating in the H-2A program, the CO will
place a copy of their approved H-2A job order on an electronic job
registry. As explained above, the Department created this job registry
to promote greater public awareness of and access to H-2A job
opportunities. The enhancements the Department has and continues to
make to SeasonalJobs.dol.gov, including the capability for third-party
websites to extract H-2A job opportunities for broader advertising, are
designed to further this goal and increase the likelihood that U.S.
workers interested
[[Page 49446]]
in agricultural opportunities, as well as intermediaries providing
services to those workers, receive timely notice of H-2A job
opportunities. In addition, to increase the speed with which positions
are posted on the public job registry, the website will generate
postings using the information that an employer provides on the newly
designed H-2A Agricultural Clearance Order (Form ETA-790/790A), which
an employer will electronically submit through the Foreign Labor
Application Gateway (FLAG) System beginning no later than October 1,
2019. This enhanced job order will replace the current paper-based
submission process in the iCERT System, reduce the frequency of
inadvertent errors or manual corrections, and improve the efficiency of
posting H-2A job opportunities on the electronic job registry by
eliminating the need to manually redact, scan, and upload physical
image files.
Because the Department is not implementing a separate advertising
platform, but rather enhancing the electronic job registry that it is
currently required to maintain, the Department has decided that U.S.
workers will be best served if it implements these enhancements as soon
as practicable. Nevertheless, the Department values all suggestions and
ideas to improve the functionality of SeasonalJobs.dol.gov and invites
public input on changes that it can make to attract U.S. workers who
are likely to apply for seasonal or temporary agricultural jobs. To
facilitate public input, the Department has made the site easily
accessible and included a specific function to collect stakeholder
feedback and questions. The Department will also continue--as is its
practice--to solicit and incorporate informal feedback from program
users and other stakeholders in the course of outreach and technical
assistance activities (including DOL-hosted stakeholder meetings and
webinars) and at conferences, forums, and events hosted by interested
stakeholders.
The Department has also considered issues that several commenters
raised regarding technical difficulties with its existing job registry
and the iCERT system, and agrees that it is critical for
SeasonalJobs.dol.gov to function effectively and reliably. Although
this is a goal of the Department independent of public comments in
response to the NPRM, the above-referenced steps that the Department is
taking to meet this goal should address and allay the concerns of the
stakeholder community.
(b) Posting H-2A Job Opportunities on SeasonalJobs.dol.gov Will Reduce
Regulatory Burden and Address Concerns About the Proposed Criteria for
Employer-Posted Electronic Advertisements
The Department received numerous comments addressing electronic
advertisements, the criteria that would apply to these advertisements,
and the documentation that an employer would be required to maintain.
Many commenters generally agreed with the Department's proposal to
transition to electronic advertising, but a number of commenters urged
the Department to modify its proposal in various ways. For example, a
number of commenters expressed concern that the proposed rule did not
accommodate employers who had limited or no access to the internet (or
those employers who did not access the internet for religious reasons),
and they urged the Department to provide employers the option of
posting an electronic advertisement or print newspaper advertisements.
Other commenters speculated that electronic advertisements--and in
particular, advertisements on publicly accessible websites--might
result in employers being inundated with hundreds of applications from
unqualified or disinterested workers, and they urged the Department to
consider the burden employers would face in reviewing and documenting
responses to such applications.
The Department also received many comments suggesting that the
standard it proposed to define the websites on which an employer could
place an electronic advertisement required clarification. A number of
commenters felt the proposed standard was ambiguous and did not
sufficiently identify the websites--or types of websites--that would be
permissible under the proposed rule. These commenters expressed varying
opinions about the types of websites they believed should qualify and,
for differing reasons, urged the Department to further clarify, define,
or list the websites where it would be appropriate for an employer to
advertise an H-2A job opportunity.
For example, farmworker advocacy organizations urged the Department
to identify additional qualifying criteria and suggested that the
Department and SWAs provide a list of approved websites, including
websites widely viewed by U.S. workers in areas of traditional or
expected labor supply. Farmers, H-2A agents, and agricultural
associations, by contrast, opposed the adoption of more specific
qualifying criteria, which they argued would be cumbersome and make the
regulation difficult to adapt to future changes in practices and
technologies. Indeed, at least one commenter expressed concern that the
proposed standard would require employers to monitor website platforms
and technologies to ensure that they remain compliant with regulatory
criteria. The Department also received comments from stakeholders who
assumed job postings on SWA websites or the Department's existing
electronic job registry would satisfy the proposed standard and/or who
urged the Department to clarify that advertisements on such websites
were acceptable.
In addition, several commenters sought clarification on the
documentation that an employer would be required to retain under the
proposed recordkeeping requirements. For example, some stakeholders
complained that the proposed rule did not clearly articulate how many
screen shots an employer needed to retain (e.g., one screen shot, a
screen shot from the first and last day of the posting, or a screen
shot for each day the advertisement is posted), while others asserted
it was overly burdensome. Commenters associated with the newspaper
industry additionally alleged that newspapers are a more reliable means
of documenting compliance, because they are archived and available if
an employer loses its copy of the tear sheet, whereas screen shots of
websites can be easily lost, altered, or fabricated. Other commenters
urged the Department to require other, more specific documentation
(e.g., electronic confirmation of posting or invoice payment from
third-party website).
The issues that these commenters raised have persuaded the
Department that it would be extraordinarily difficult to develop,
interpret, and implement qualifying criteria to govern the types of
websites on which employers should place an electronic advertisement,
as well as the documentation that an employer should retain to
demonstrate compliance with this requirement. Accordingly, as explained
above, the Department has decided not to adopt its proposal to amend
section 655.151 to require that an employer post an electronic
advertisement. Instead, the Department will advertise on an employer's
behalf by posting its job opportunity on SeasonalJobs.dol.gov.
Assuming control over the posting of the electronic advertisement
and placing it on a centralized, DOL-administered platform addresses
many, if not all, of the above-referenced concerns. As a preliminary
matter, the
[[Page 49447]]
Department will no longer need to establish--and employers will no
longer need to comply with--regulatory criteria limiting the types of
websites on which employers must place an electronic advertisement or
the documentation necessary to demonstrate compliance with this
requirement. Moreover, the advertisement that the Department posts on
SeasonalJobs.dol.gov will not create any additional regulatory burden
for an employer because the employer will have already provided the
Department with information about its job opportunity on its job order
and H-2A application, which the Department will use to generate the
advertisement it posts on SeasonalJobs.dol.gov. U.S. workers interested
in a particular job opportunity can apply by directly contacting the
employer, using the contact information that the employer provided on
its job order and H-2A application. As noted above, employers who lack
access to the internet will not need to acquire access to the internet
to post advertisements on SeasonalJobs.dol.gov or respond to any
applications that they receive from U.S. workers in response to these
advertisements; and employers will not need to determine whether a
particular website meets applicable regulatory criteria or retain
evidence of this posting.
The Department has also considered comments suggesting that it rely
on SWAs to post job orders on their websites. The Department believes
that the advertisements it places on SeasonalJobs.dol.gov and the
intra- and interstate clearance process administered by SWAs serve
important, but distinct, purposes in facilitating the labor market test
conducted in connection with an H-2A application. Specifically,
SeasonalJobs.dol.gov will accomplish the Department's objective of
broadly disseminating information about H-2A job opportunities
nationwide to the widest possible audience. The intra- and interstate
clearance process, by contrast, target specific regional labor markets,
so that SWAs in particular areas (the area of intended employment and
areas of traditional or expected labor supply) assist in matching U.S.
workers with H-2A job opportunities and facilitate applications for
those jobs. The combination of these recruitment activities and, if
ordered, an employer's positive recruitment efforts, help cast as wide
a net as possible to apprise U.S. workers of agricultural job
opportunities that could otherwise be filled by H-2A workers.
The Department also appreciates the suggestion from worker advocacy
organizations to expand the criteria in the NPRM to include websites
that are widely viewed by U.S. workers in areas of traditional or
expected labor supply. If the Department becomes aware of websites that
are widely viewed by U.S. workers in areas of traditional or expected
labor supply, the CO may order an employer to post an advertisement on
such a website under section 655.154.
Finally, while the Department is hopeful that advertising H-2A job
opportunities on SeasonalJobs.dol.gov will increase the number of U.S.
workers who apply for these positions, the Department does not believe
that employers will be inundated with applications from unqualified or
unwilling U.S. workers. The concerns some commenters raised to the
contrary were speculative, generalized, or based on undocumented
anecdotal experience from a different job search website. The
Department reminds commenters that the electronic job registry,
including the enhancements the Department has and continues to make
through SeasonalJobs.dol.gov, is designed to promote greater public
awareness of and access to H-2A job opportunities and increase the
likelihood that U.S. workers interested in these jobs will apply. Any
burden that an employer incurs reviewing increased applications from
U.S. workers is a fundamental obligation for choosing to participate in
the H-2A program and outweighed by the Department's statutory
obligation to ensure that able, willing, and qualified U.S. workers are
not available. Because H-2A job opportunities typically require minimal
education, skills, and experience, employers should not find it
especially burdensome to assess the qualifications of U.S. workers who
submit applications for job opportunities advertised on
SeasonalJobs.dol.gov or to document their assessment of these
applicants in a recruitment report.
(c) The Advertisements That the Department Places on
SeasonalJobs.dol.gov Will Improve the Information That U.S. Workers
Receive About H-2A Job Opportunities
The Department also received numerous comments questioning whether
U.S. workers would be able--or likely--to access the electronic
advertisements required under the proposed rule. As explained below,
the Department's decision to assume control over the posting of the
electronic advertisement not only reduces the burden of applying for an
H-2A labor certification, but also improves access to information about
H-2A job opportunities.
First, it ensures that all H-2A job opportunities are advertised in
a centralized location and in a uniform manner. This eliminates the
concern raised by some commenters that U.S. workers would not know
where to go to look for information about available H-2A job
opportunities if employers were not posting advertisements in
consistent locations or that unscrupulous employers could intentionally
post advertisements on websites that able, willing, and qualified U.S.
workers are unlikely to view. Second, the Department can assure broader
dissemination of H-2A job opportunities without requiring an employer
to ensure that the website on which it places its advertisement is
functionally compatible with the latest commercial web browser
platforms and easily viewable on mobile smartphones and similar
portable devices. Under the Department's revised proposal, it is the
Department (and not the employer) who will ensure compliance with these
requirements. The Department will stay abreast of broader changes in
technologies and implement appropriate upgrades to the usability and
security of the SeasonalJobs.dol.gov. For example, unlike the iCERT
System, SeasonalJobs.dol.gov uses Responsive Web Design (RWD), which
allows the Department to optimize the design and content structure of
the website to fit on the screen of the user's computer, smartphone, or
other similar portable device, regardless of size. The RWD approach
allows the Department to create a single website design that can reach
users across a wide array of computing devices. The Department
continuously tests the site's mobile device compatibility using a
series of emulation tools and a wide array of actual mobile devices.
Third, the Department will be able to improve the presentation of
H-2A job opportunities to U.S. workers. For example, some commenters
complained about the Department's existing advertising content
requirements and suggested that they require employers to place
advertisements that are too formalistic and contain too much
information to attract U.S. workers. While the Department continues to
believe that U.S. workers should have access to all of the information
that is currently required by section 655.152, it also understands
that, in some situations, a concise summary of the job opportunity may
be more attractive to U.S. workers. Accordingly, the advertisements
that the Department
[[Page 49448]]
places on SeasonalJobs.gov highlight select information about an
employer's job opportunity and include a link to the job order, so that
U.S. workers can quickly review listings to assess whether they are
interested in a particular job and, if interested, review the job order
to access all of the terms and conditions of employment. The Department
additionally intends to upgrade SeasonalJobs.dol.gov to allow users to
create and manage customizable notifications for the H-2A job
opportunities. Specifically, as noted above, the Department plans to
enhance the site's current RSS feed capability, which includes a basic
function that alerts users when the Department updates web-based
content, with more sophisticated options that will allow users to
personalize these alerts so that they only receive notifications of new
postings for specific types of agricultural work and/or in pre-
determined frequencies (e.g., immediately, daily, weekly, monthly)
tailored to their individual preferences. Users will be able to manage
these notifications and turn them off when they are no longer needed or
relevant.
Fourth, it addresses the concerns that some commenters raised
regarding effective language access. Specifically, several commenters
urged the Department to require employers to include commonly used
search terms in English, Spanish, and other languages spoken by the
agricultural workers whom they typically employ. To justify this
recommendation, the commenters cited data from the NAWS, which showed
that most farmworkers identified Spanish as their primary language, and
that many farmworkers reported they did not speak or read English well
or even at all.
The Department appreciates suggestions on ways to improve the
accessibility of electronic advertisements to U.S. workers, especially
those workers with limited English proficiency. The internet offers an
abundance of content presented in languages other than English, and the
Department recognizes there are already a number of free browser
applications and extension technologies (e.g., Google Translate, Chrome
Duolingo, Firefox's Flagfox) that provide users with translations,
definitions, and other dialect-related assistance. To assist U.S.
workers who search for jobs online but who have limited proficiency in
English, jobs available on SeasonalJobs.dol.gov will be posted in a
format that allows language translation services to access and
translate both the general web content and specific terms and
conditions of the job opportunities presented on job orders. The
Department is further evaluating whether existing technologies and
services can provide effective language translation services, and can
be implemented through the site, to both general web content on
SeasonalJobs.dol.gov and specific information about H-2A job
opportunities presented on the site. The Department understands the
challenges (e.g., numerous language dialects, accurately applying
grammatical rules) associated with language translation tools and
services, but believes that it is important for the information on
SeasonalJobs.dol.gov to be accessible and understandable to the widest
possible audience of U.S. workers who are looking for employment. The
Department will therefore work as expeditiously as possible within
existing budgetary constraints to implement additional built-in
language translation services for all job opportunities advertised on
SeasonalJobs.dol.gov.
Finally, the Department acknowledges that some U.S. workers may
lack reliable access to the internet, and it agrees that no single
recruitment method will reach all job seekers. The Department likewise
does not dispute that other methods of recruitment may be effective in
limited circumstances. But the Department's move to electronic
advertising--and to SeasonalJobs.dol.gov in particular--is only one
aspect of the labor market test conducted in connection with an H-2A
application. The existing labor market test additionally includes the
intra- and interstate clearance process, see 20 CFR 655.121 and
655.150, the requirement for an employer to contact former U.S.
employees, see 20 CFR 655.153, and in certain circumstances, additional
positive recruitment. The Department believes that the enhancements it
has and continues to make to the electronic job registry will improve
the existing labor market test by increasing awareness of H-2A job
opportunities, which interested parties may then share with U.S.
workers who do not have access to the internet or who may not use the
internet to search for job opportunities. Moreover, as discussed in
detail below, this final rule further encourages word-of-mouth
recruitment by requiring a SWA, if directed by the CO, to provide
written notice of H-2A job opportunities to certain types of
organizations or in physical locations where U.S. agricultural workers
are likely to gather. Accordingly, even if certain U.S. agricultural
workers are unlikely to view an advertisement on SeasonalJobs.dol.gov
(e.g., workers who do not have internet access or who are otherwise
unlikely to turn to the internet to search for available job
opportunities), they may be identified through other steps in this
labor market test. Indeed, the only SWA to submit a comment in response
to the NPRM agreed that SWAs could address this gap, explaining SWAs
provide in-person assistance to job seekers who currently lack the
skills and knowledge to conduct job searches online.
C. The Department Will Leverage SWA Expertise and Service Delivery
Systems in Local Labor Markets To More Broadly Disseminate Information
About H-2A Job Opportunities
As mentioned above, this final rule will further strengthen the
labor market test conducted in connection with an H-2A application by
leveraging the existing localized services, knowledge, and expertise of
SWAs to promote awareness of H-2A job opportunities. Specifically, in
addition to activities already performed by the SWA, the Department has
decided to leverage the contact networks that its SWA grantees have
with organizations that provide services to U.S. workers who are likely
to apply for agricultural job opportunities and utilize their knowledge
of recruitment and job search patterns in the state to determine the
appropriate places to post the job opportunity. In the Department's
view, this will lead to broader dissemination of information about
available jobs and will expand word-of-mouth recruitment by friends and
family members.
In arriving at this determination, the Department has given careful
consideration to comments regarding alternative methods of recruitment
that would more broadly and effectively disseminate information about
available agricultural job opportunities to U.S. workers. A number of
commenters informed the Department that word-of-mouth recruitment is
the most effective and most commonly cited method of recruiting U.S.
agricultural workers. A few commenters suggested other methods of
recruitment, such as placing advertisements on radio stations serving
farmworkers; posting advertisements at the employer's worksite or other
locations within the community where farmworkers are known to
congregate (e.g., local businesses and churches); placing
advertisements in community-based or other publications that target
populations who may be interested in agricultural work; and leveraging
social media. Commenters representing worker advocacy organizations
also urged the Department to require employers to
[[Page 49449]]
contact organizations that serve farmworkers, such as migrant health
centers and farmworker unions, to disseminate information about the job
opportunity using their networks.
Several commenters also recommended that the Department expand
outreach and recruitment activities of the SWAs to make job seekers,
particularly those who lack adequate access to the internet, aware of
H-2A job opportunities. These commenters stated that the SWAs have
resources and expertise in locating and screening, on behalf of
employers, available and qualified U.S. agricultural workers through
their existing outreach programs. In its comment, a SWA reinforced this
suggestion, stating it provides in-person assistance, as needed, to
both employers and job seekers who lack the skills and knowledge to
post job openings and conduct job searches online. Worker advocacy
organizations similarly urged the Department to work with SWAs to
promote effective recruitment based on state-level recruitment and
farmworker migration patterns. One of these commenters further stated
that SWA staff located in traditional or expected labor supply states
are likely to have particular knowledge of how U.S. agricultural
workers in their region seek out and learn about job opportunities.
The Department appreciates the ideas and suggestions that it
received on alternative forms of recruitment. The Department has
considered each of these suggestions but notes that many of these
proposals--including advertising on local radio stations or in
community-based and ethnic publications, posting physical notices at
worksites or other places frequented by potential job applicants, or
using social media--are challenging to regulate and monitor. Because
the Department does not currently have sufficient information regarding
the efficacy of these proposals in recruiting U.S. agricultural
workers, the Department has decided against requiring every employer to
use these methods. However, to the extent that the Department receives
information indicating that one or more of these methods are effective
in a particular area or among specific groups of workers, the CO
retains the authority under section 655.154 to order an employer to use
that method to recruit U.S. workers.
While the Department agrees with worker advocacy organizations that
word-of-mouth remains one of the simplest, yet most effective,
recruitment tools for U.S. agricultural workers, as the Department
previously pointed out in prior rulemaking efforts, it is almost
impossible to mandate and enforce compliance with a requirement to
recruit U.S. workers via word-of-mouth. See Temporary Agricultural
Employment of H-2A Aliens in the United States; Final Rule, 75 FR 6928
(Feb. 12, 2010) (2010 Final Rule). Nevertheless, the Department seeks
to encourage this form of recruitment, and it has decided to do so by
enhancing the SWA's existing employment service and outreach
activities. Specifically, the CO may direct a SWA, where appropriate,
to provide written notice of an employer's H-2A job opportunity to
organizations that provide employment and training services to workers
likely to apply for the job and/or to place written notice in other
physical locations where such workers are likely to gather. Because
SWAs have knowledge of local labor markets in their state and already
coordinate regional outreach activities with organizations, SWAs are in
the best position to identify which organizations or physical locations
in their state will be effective in reaching U.S. workers who are able,
willing, qualified and available for the job opportunity.
Accordingly, this final rule amends section 655.143(b) to include a
new paragraph (5), which authorizes the CO to direct a SWA to provide
written notice of the job opportunity to organizations providing
employment and training services to workers likely to apply for the job
and/or to place written notice of the job opportunity in other physical
locations where such workers are likely to gather. Specifically, after
reviewing the job opportunity and consulting with the applicable SWA,
the CO will determine whether to direct the SWA to provide the written
notice described above. If the CO determines such a direction is
appropriate, the CO will include directions to this effect in the
Notice of Acceptance, as specified in paragraph (b)(5) of this section.
Depending on the situation, the written notice need not necessarily
include a full copy of the approved H-2A job order and all attachments,
but rather, may consist of a written summary of the terms and
conditions of the job opportunity. The Department does not anticipate
that SWAs will find this task to be particularly burdensome, as SWAs
may deliver this notice in a manner that is cost effective and
consistent with section 653.501(d)(10).
The Department has decided to direct SWAs, rather than employers,
with distributing the written notice described above, because employers
may not be able to discern when and what types of organizations should
be provided written notice of available job opportunities and/or the
physical locations that would be best suited for such postings. SWAs,
on the other hand, are uniquely situated to perform this function given
their existing role in, and the Department's funding to support, the
Wagner-Peyser Employment Services program.
The Wagner-Peyser Employment Services program provides job search
and placement services for job seekers as well as recruitment services
for employers. The Department envisions that the SWAs existing services
and obligations under the Employment Service (ES)--in particular
services provided to Migrant and Seasonal Farmworkers (MSFWs)--can be
leveraged to carry out the notification that the CO may direct under
655.143(b)(5). For instance, SWAs are already required to publicize the
availability of employment services to MSFWs through such means as
newspaper and electronic media publicity and to use contacts with
public and private community agencies, employers and/or employer
organizations, and MSFW groups to facilitate the widest possible
distribution of information concerning employment services. SWAs are
required to perform these functions as the administrators of partner
programs in the One-Stop System, which provides a wide range of
employment and training services for U.S. workers through job training
and outreach programs such as job search assistance and job referral
and placement services. In carrying out their obligations under this
new provision, SWAs are encouraged to reach out to other partners in
the American Job Centers (AJCs) to help identify those organizations
serving U.S. workers who might be interested in H-2A job opportunities.
One group of partners that SWAs currently work with and are
encouraged to reach out to are the National Farmworker Jobs Program
(NFJP) grantees. The NFJP program is a nationally directed, locally
administered program of services for migrant and seasonal farmworkers.
It includes 52 Career Services and Training grants, also known as
Employment and Training grants, and 11 Housing grants across the United
States and Puerto Rico. Grantees of this program are a required partner
in the AJC network with the SWAs, and they work closely with other
local organizations to provide a wide array of support services to
counter the chronic unemployment and underemployment experienced by
farmworkers who
[[Page 49450]]
depend primarily on jobs in agriculture performed across the country.
In regional areas where there are significant numbers of migrant and
seasonal farmworkers, NFJP grantees also coordinate outreach with SWA
monitor advocates and farm labor staff to provide services to
farmworkers and their families working in agriculture employment. In
carrying out their obligations under 655.143(b)(5), if a SWA is not
already doing so, the Department encourages SWAs to include NFJP
grantees among the organizations to which it provides notice of the job
opportunity.
Additionally, after consulting with a SWA, the CO may order the SWA
to place written notice of the job opportunity in other physical
locations where such workers are likely to gather, and determine the
appropriate location using its local knowledge and expertise. SWAs will
have discretion in determining the methods and physical locations used
to place such notices based on the circumstances of the job
opportunity, an assessment of local conditions and concentrations of
U.S. workers likely to apply the job, and the prior effectiveness of
such methods and physical locations in attracting referrals.
The Department does not intend for the written notice required by
this final rule to create significantly new responsibilities for SWAs,
but rather, to supplement activities already undertaken by SWAs. As
noted above, SWAs already administer the ES and MSFW programs,
coordinating where appropriate with NFJP grantees, and SWAs are a
required partner in the AJC network. The purpose of this notice is to
broaden dissemination of H-2A job opportunities to relevant populations
and thereby increase word-of-mouth recruitment for these positions,
which the Department hopes will increase the pool of potential
applicants for H-2A job opportunities.
Finally, the final rule recognizes that the CO's determination to
direct the SWA to provide additional written notice must be appropriate
to the job opportunity and area of intended employment. The Department
acknowledges that this provision may not be an effective recruitment
option in certain circumstances, and after discussions with the SWA,
the CO may decline to order the SWA to take this action. Examples of
circumstances where such recruitment may not be appropriate include
where it would be impractical, such as where the work is to be
performed in remote or isolated geographic areas where organizations
providing employment and training services do not exist.
D. The Department Is Retaining Section 655.154's Positive Recruitment
Requirement
As explained above, the INA requires an employer seeking an H-2A
temporary labor certification to engage in positive recruitment of U.S.
workers in a multi-state region of traditional or expected labor supply
where the Secretary finds that there are a significant number of
qualified U.S. workers who, if recruited, would be willing to make
themselves available for work at the time and place needed. 8 U.S.C.
1182(b)(4).
In enacting this statutory requirement, Congress did not intend to
impose unduly burdensome requirements on employers nor did it intend to
require employers to continuously return to areas that have not proven
to be a reliable source of qualified U.S. workers. Rather, Congress
believed the methods and locations in which employers conduct positive
recruitment must yield concrete results and be cost effective.\6\
Accordingly, the ``positive recruitment'' mandated by the INA is
defined in the Department's regulations as ``[t]he active participation
of an employer or its authorized hiring agent, performed under the
auspices and direction of the OFLC, in recruiting and interviewing
individuals in the area where the employer's job opportunity is located
and any other state designated by the Secretary as an area of
traditional or expected labor supply with respect to the area where the
employer's job opportunity is located, in an effort to fill specific
job openings with U.S. workers.'' See 20 CFR 655.103.
---------------------------------------------------------------------------
\6\ House Conference Report No. 99-682(I), House Judiciary
Committee, July 16, 1986, p. 81.
---------------------------------------------------------------------------
Currently, when an employer's job opportunity is served by
traditional or expected labor supply states, the CO will designate no
more than three states in which the employer must perform positive
recruitment for each area of intended employment listed on the
employer's application. 20 CFR 655.154(c). The Notice of Acceptance
that the CO issues will describe the additional positive recruitment
steps that the employer must conduct in those states. Section 655.154
authorizes the CO to select the appropriate methods of recruitment on a
case-by-case basis. As explained in the NPRM, the standard practice has
been for the CO to order print advertisements in newspapers serving the
traditional or expected labor supply states, but the Department does
not intend to continue this practice.\7\
---------------------------------------------------------------------------
\7\ See Modernizing Recruitment Requirements for the Temporary
Employment of H-2A Foreign Workers in the United States; Notice of
Proposed Rulemaking, 83 FR 55989 (Nov. 9, 2018) (2018 NPRM). See
Temporary Agricultural Employment of H-2A Aliens in the United
States; Final Rule, 75 FR 6884 (Feb. 12, 2010) (2010 Final Rule).
The Department originally provided notice that the types of
recruitment used in the H-2A program have not varied tremendously
through the decades, and that stated its intention to continue to
rely on newspaper advertising. See Temporary Agricultural Employment
of H-2A Aliens in the United States; Final Rule, 75 FR 6930 (Feb.
12, 2010) (2010 Final Rule).
---------------------------------------------------------------------------
After carefully considering the comments it received addressing
this regulation, the Department continues to believe that a CO must
retain the flexibility to evaluate whether a job opportunity is served
by areas of traditional or expected labor supply--and the appropriate
means of recruitment in those areas--on a case-by-case basis.
Accordingly, this final rule adopts the NPRM's proposal to retain
section 655.154 without amendment.
When evaluating an employer's application, a CO will continue to
evaluate, on a case-by-case basis, the appropriate locations and
methods of recruiting in traditional or expected labor supply states
where a significant number of qualified U.S. workers who, if recruited,
would be willing to make themselves available for work at the time and
place needed. In retaining section 655.154 as drafted, the Department
understands that Congress did not intend the positive recruitment
requirement ordered under section 218(b)(4) to be unduly burdensome,
and it believes that section 655.154 is consistent with Congressional
intent. Notably, section 655.154 does not afford the CO unlimited
discretion; rather, it authorizes the CO to order the recruitment
necessary to ensure an adequate test of the labor market for the
employer's job opportunity, after taking into account the location and
characteristics of the position.
In determining whether and what positive recruitment is required
for a position, the CO will continue to consider information that the
Department obtains from SWAs and other relevant stakeholders. The
Department also continues, as it did when it adopted this regulation in
2010, to invite stakeholders to submit information on areas of
traditional or expected labor supply and effective means of recruiting
U.S. workers in those areas. The Department acknowledges the comments
it received suggested a wide array of alternative methods of
advertising that, depending on the information provided to the CO, may
effectively disseminate information about available job opportunities
to U.S. workers. For example, based on the
[[Page 49451]]
information the Department receives from SWAs and other stakeholders,
the CO may determine that a particular method of advertising (e.g.,
community-based newspaper, agricultural careers website) covering a
regional area, whether in print and/or electronic, may be effective in
recruiting U.S. workers for a particular position, in a specific
location, or during a certain period of the year. In requiring the use
of a particular method of advertising, the CO will take into
consideration all available information about whether that method has
been, or is likely to be, effective in generating referrals of
qualified U.S. workers.
The Department also recognizes that the increased rates of
innovation in job search technologies and infrastructure development
designed to improve internet access within rural communities may be
changing the way many U.S. workers search for and find available job
opportunities in the future. Fortunately, section 655.154 provides the
CO with flexibility to keep pace with the ever-changing labor market
trends and technologies and select the most appropriate method(s) of
recruitment for a particular job opportunity.
Finally, the Department acknowledges the concerns that several
associations raised regarding the areas in which a CO has ordered
employers to perform additional positive recruitment under section
655.154. These associations contend that the Department should no
longer require additional positive recruitment under this section
because there has been significant growth in certified H-2A positions
in areas of alleged labor supply. The Department reminds the commenters
that under current regulations the CO has the flexibility to gather
information, including current use of the H-2A program in areas of
alleged labor supply, to determine whether U.S. workers may be found
and available for work at the time and place needed. The Department's
statutory mandate to ensure that positive recruitment efforts are made
within a multistate region of traditional or expected labor supply
remains a factual determination with respect to the employer's job
opportunity and location and time of year. Because many farm workers
migrate over the course of the year and the time it takes to perform
various farm work activities varies from year to year, the CO must
consider current information to determine the states to which to refer
an employer to conduct positive recruitment. The CO's review of such
information, with respect to the job opportunity located in certain
states and during certain seasons of the year, may or may not lead to
the designation of traditional or expected labor supply states with
respect to other states in which H-2A applications are filed.
E. Out of Scope Comments on the Proposed Rule
The Department received comments on several issues that were
unrelated to its proposal to modernize the recruitment that an employer
must conduct under its regulations by replacing print newspaper
advertisements with electronic advertisements posted on the internet.
The Department recognizes and appreciates the value of these
comments and suggestions. However, they are outside the scope of this
rulemaking and the Department cannot adopt them without additional
regulatory--and in some cases Congressional--action. To the extent that
parties who submitted such comments seek further revisions to the H-2A
program, the Department intends to propose a separate rule to
streamline the process by which employers obtain an H-2A temporary
labor certification, and it invites all interested parties to review
this proposal, when published, and submit comments in response.
III. Administrative Information
A. 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. Section
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 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 final rule is a significant, but not
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.
This final rule is an E.O. 13771 deregulatory action because the
cost savings to H-2A employers associated with the rule are larger than
the costs. The estimated cost savings associated with this regulatory
action are derived from the rescission of section 655.151 to remove the
newspaper-advertising requirement, the rescission of section 655.152 to
eliminate the corresponding ad content requirements, and the revision
of section 655.167 to eliminate document retention requirements
associated with print newspaper advertisements.
1. Discussion of Comments
Some commenters expressed concern about the cost of posting online
advertisements, and the burden of reviewing a large volume of online
applications. One commenter suggested that the Department's estimates
for the costs of online advertisements underestimated actual fees,
stating that prices for advertising online are in some instances the
same as, if not greater than, the cost of a single newspaper
advertisement. The commenter asserted that posting an advertisement
online typically cost just as much as placing a print advertisement. An
additional commenter stated that print advertising requirements add
significant cost to H-2A employers already facing multiple other costs
(e.g., agent fees, filing fees, housing, transportation, and adverse
effect wage rates) and argued that print advertising has no value in
targeting prospective job applicants. Another commenter suggested that
newspaper advertisement packages often include options to advertise in
either the print or online edition. A few other commenters took issue
with the
[[Page 49452]]
assumption that online advertising has no cost to the employer, stating
that several websites have a price associated with the cost of posting
advertisements online. Some commenters argued that the proposed
requirements help neither workers nor employers, since they do not
actually protect the rights of U.S. workers but impose unnecessary
costs on employers.
Lastly, one commenter remarked that as the newspaper industry
declines and fewer competitors are available, instances of abusive
pricing have been reported, since newspaper companies know that
employers have no alternative because of government-mandated
advertisements. The commenter reasoned that the cost savings of
switching to electronic advertisements would be beneficial to employers
already incurring other large expenses from participating in the
program (e.g., filing fees, transportation, subsistence, consular fees,
DOL-mandated prevailing wages).
Several commenters asserted that the proposal was based on an
incomplete analysis of recruiting costs and the burden placed on
employers. These commenters described employers' experiences with high
volumes of applicants to online job postings to argue that the overall
cost of electronic advertisements could be higher than print
advertisements because of the increased burden of vetting hundreds of
unqualified applicants. The commenters stated that large job posting
websites often include ``Apply Now'' options that increase the
likelihood of large responses to online postings, which they argued
drives up costs for employers.
The Department agrees with the commenters' concern that the
Department may have underestimated the cost of online advertising. As
explained elsewhere in this preamble, the Department has concluded
that, to reduce this cost and burden, expand the reach of each ad, and
leverage the Department's existing technology and infrastructure, it is
appropriate for the Department rather than employers to place H-2A
electronic advertisements. The final rule replaces the print newspaper-
advertising requirement with employers' job opportunities posted on a
DOL-maintained website, SeasonalJobs.dol.gov, thus eliminating the cost
to employers. Additionally, the enhancements the Department has and
continues to make to SeasonalJobs.dol.gov are designed to further the
Department's goal to promote greater public awareness of and access to
H-2A job opportunities in order to increase the likelihood that U.S.
workers interested in agricultural opportunities, as well as
intermediaries providing services to those workers, receive timely
notice of H-2A job opportunities. Any costs or burden that an employer
incurs reviewing increased applications from U.S. workers is a
fundamental obligation for choosing to participate in the H-2A program
and outweighed by the Department's statutory obligation to ensure that
able, willing, and qualified U.S. workers are not available.
The Department also received comments on the recordkeeping costs
associated with employers' online advertising. One commenter suggested
that the per-employer costs required to adjust to the new electronic
notifications might be slightly higher than estimated due to the
increased recordkeeping fees incurred from vetting more applicants. The
commenter stated that while these fees may be greater than the
Department's estimates, the new requirements and fees associated with
the rule are far more favorable to employers than the current print
newspaper costs. A second commenter concluded that DOL's estimates of
stakeholder time and cost required to conform business practices to the
new rule are adequate.
As the final rule eliminates an H-2A employer's recordkeeping
obligation as it pertains to print advertisements, it also eliminates
the cost associated with that requirement. Accordingly, the Department
has estimated the cost savings associated with eliminating the
requirements of document retention.
Some commenters took issue with the specifics of the Department's
calculations. This final rule eliminates costs, including recordkeeping
costs, associated with employer-posted advertisements, both print and
electronic. In the interest of transparency and responsiveness, the
Department explains key elements of these calculations below.
One commenter stated that the cost assessment in the rulemaking
appeared to underestimate the actual cost to H-2A employers. According
to this commenter, data for FYs 2015 through 2018 showed a trend toward
ever-increasing numbers of certifications each year (e.g., 10,917
certifications for FY 2017, and 11,319 certifications in FY 2018),
suggesting that an average of 9,796 was simply too low to use as a
basis for estimating certification totals in future years. The
Department agrees with the commenter that the number of certifications
is likely to grow in future years. Therefore, for this final rule, the
Department has estimated an annual growth rate for the number of
certifications in the 10-year analysis period, and revised our
estimates of cost and cost-savings accordingly.
Another commenter believed the use of advertisement rates for the
largest newspapers in the five states with the most H-2A temporary
labor certifications inflated the cost estimates. From the commenter's
perspective, many employers may not use the largest newspapers to
fulfill their advertising requirements, and smaller newspapers are
likely to have lower ad rates. The commenter was concerned that the
analysis did not specify which criteria were used to develop the rate
estimates, and that rates vary depending on the advertisement size,
number of lines, and placement. Another commenter agreed with DOL's
average print advertisement cost estimate ($336 per advertisement), but
pointed to additional costs associated with the print advertising
requirement, including staff time required to place the advertisement,
process the payment, and document and maintain records of print
advertisements in case of an audit. All such efforts, the commenter
concluded, had attracted no applicants in over four years.
The Department based the cost estimates for two newspaper
advertisements on advertising costs from newspapers with the widest
circulation in the five states where H-2A certifications are most
prevalent, as well as the advertising costs from the most widely
circulating newspapers in the top feeder states that are adjacent to
the primary H-2A prevalent states. The Department believes that its
estimate of $672 represents, on average, a reasonable cost-savings of
removing print newspaper requirements. The cost of active recruitment
now disappears completely, as the Department will assume responsibility
for posting employer advertisements. As explained above, the Department
has also estimated the cost savings from eliminating the document
retention requirement.
Two commenters expressed concern that the proposed rule did not
consider the impact on the newspaper industry. One commenter argued
that the rule could potentially reduce budgets for vital local
journalism since local newspapers may rely on revenue from H-2A job
postings. As a safeguard, the commenter recommended the rule provide
for a period of adjustment to allow employers to compare the effect and
usefulness of electronic advertising versus print. Another commenter
argued that removing newspaper-advertising requirements would be
detrimental to the newspaper industry. In contrast,
[[Page 49453]]
another commenter--arguing U.S. farmworkers looking for work would no
longer be required to purchase print newspapers for the classified
advertisements--remarked that many comments against the proposed rule
were from local newspaper publishers complaining that the rule change
would reduce their profits. U.S. farms and farmworkers, this commenter
asserted, are not responsible for subsidizing the newspaper industry.
Further, the commenter stated that newspaper companies do not know how
many applications employers receive because of a newspaper job posting
and, therefore, cannot comment on the effectiveness of print
advertisements.
The Department concludes that while this rule may have an effect on
the newspaper industry, the advertising revenue lost from employers who
are no longer required to post job openings in print is expected to
represent an insignificant portion of the industry's overall
advertisement revenue.
2. Subject-by-Subject Analysis
The Department's analysis below considers the expected impacts of
the following aspects of the final rule against the baseline (i.e., the
2010 Final Rule): (a) Rescission of the requirement that an employer
advertise its job opportunity in a print newspaper of general
circulation in the area of intended employment; (b) elimination of the
document retention requirement associated with print newspaper
advertisements; and (c) the time it takes the regulated community to
read and review the rule.
Based on historical program data on H-2A labor certifications
issued from FY 2012-2018--the only data available to the Department for
estimates a growth rate in certifications--the Department estimated a
14 percent annual growth rate in the number of certified H-2A
applications. The Department cautions, however, that this growth rate
estimate represents the extreme upper bounds of projected certified H-
2A applications, and the actual number of certifications could very
well be lower.\8\ The Department applied this average annual growth
rate to the number of H-2A certifications for the 10-year study period
to account for projected program growth.
---------------------------------------------------------------------------
\8\ The Department of Labor believes that an annual growth rate
of 14 percent is unlikely to be sustained over the next 10 years, as
this would require that workers in these industries all be H-2A
employees.
---------------------------------------------------------------------------
(a) Eliminating the Use of Print Newspaper Advertisements
This final rule modernizes H-2A recruitment by rescinding the
regulation imposing the requirement for print newspaper advertisements,
at 20 CFR 655.151, and the regulation prescribing the content that an
employer must include in those advertisements, at 20 CFR 655.152. In
conjunction with this rule, the Department will assume responsibility
for these recruitment activities by advertising each employer's job
opportunity on a DOL website designed to make the job opportunity more
broadly available to U.S. workers.
To estimate the cost savings to employers that would result from
this final rule, the Department multiplied the average number of H-2A
labor certifications issued each fiscal year by the average cost to an
employer of placing a print advertisement. First, the Department used
program data for FYs 2015-2017 to estimate that the H-2A program
approves, on average, 9,796 labor certifications each fiscal year.\9\
Next, the Department applied a growth rate of 14 percent to this
average number of certifications to estimate an annual count of H-2A
certifications. To estimate the average cost of a print ad, the
Department identified the top five states in which prospective H-2A
employers received temporary labor certifications,\10\ and it
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), for advertisements satisfying the
content requirements set forth in section 655.152. Based on this data,
the Department estimated that, on average, it costs an employer $336 to
place a single ad complying with section 655.152's content
requirements. Thus, placing the two advertisements required by section
655.151 costs an employer, on average, twice as much, or $672 ($336 for
each advertisement).
---------------------------------------------------------------------------
\9\ The average is based on 8,721 H-2A temporary labor
certifications in FY 2015; 9,751 temporary labor certifications in
FY 2016; and 10,917 temporary labor certifications in FY 2017. See
https://www.foreignlaborcert.doleta.gov/performancedata.cfm.
\10\ The top 5 states in which employers seek to place H-2A
workers are California, Florida, Georgia, North Carolina, and
Washington.
---------------------------------------------------------------------------
As mentioned above, employers can advertise using the DOL-
maintained website free of charge, 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. Although section
655.151 currently requires employers to advertise on two consecutive
days, one of which must be a Sunday, the Department did not identify a
significant difference in cost between advertisements placed on Sundays
and weekdays, so the Department did not distinguish between these two
costs when calculating total advertising cost savings. To estimate the
annual newspaper advertising costs that employers will avoid under the
final rule, the Department multiplied the estimated annual number of H-
2A temporary labor certifications (9,796 multiplied by the 14 percent
annual growth rate) by the average newspaper advertising cost of $672.
This yielded annual cost savings ranging from $7.48 million in year one
to $23.48 million in year ten. The annualized cost savings over the
ten-year period is $14.14 million and $14.11 million at discount rates
of 3 and 7 percent, respectively. The Department believes that the cost
to the Department of upgrading its database and posting employer's job
opportunities on its website would be de minimis on an annual basis.
The Department also notes that the startup investment for
SeasonalJobs.dol.gov is a cost which exists in the baseline as DOL
initiated the job posting site separate and apart from this rule. As a
result, these costs are not considered costs of this rule.
(b) Eliminating Document Retention Requirements
The final rule amends section 655.167 to eliminate the document
retention requirement associated with print newspaper advertisements.
To estimate the cost savings from this revision, the Department
calculated the average cost for each employer to retain print ad
records for each H-2A certification. To do so, the Department
multiplied each employer's per-certification staff time by its per-
certification staff cost. The Department estimates that it takes a
human resources (HR) manager, on average, two minutes to store (print
and file) proof of print advertisement. The Department estimated a wage
rate by multiplying the median hourly wage of an HR manager at an
agricultural business ($31.84) by the loaded wage rate (1.63) to
account for fringe benefits and overhead.\11\ The Department then
multiplied the resulting wage rate by the staff time (two minutes),
which yielded a cost of $1.73 per certification. As explained above,
the Department estimated that the Department issues, on average, 9,796
labor certifications each fiscal year, and applied an annual growth
rate of 14 percent to this total. By multiplying the estimated annual
[[Page 49454]]
number of certifications by the cost per certification ($1.73), the
Department estimated an annual cost savings ranging from $19,245 in
year one to $60,437 in year ten. The annualized cost savings over the
ten-year period is $36,392 and $36,337 at the discount rates of 3
percent and 7 percent, respectively.
---------------------------------------------------------------------------
\11\ The loaded wage factor is calculated using a fringe benefit
rate of 46 percent, which is based on the Bureau of Labor Statistics
Employer Cost for Employee Compensation data. This fringe benefit
rate was added to an overhead rate of 17 percent, which is based on
DOL practices.
---------------------------------------------------------------------------
(c) Time To Review and Understand the Rule
During the first year after this rule takes effect, employers
seeking H-2A workers will need time to learn about the new
requirements. The Department assumes that many employers participating
in the H-2A program will learn about the requirements of the new rule
from an industry newsletter or bulletin. The Department estimates that
an employer will require approximately 10 minutes to understand the
rule change, as this final rule addresses only the job-advertising
requirement for employers seeking H-2A workers.
The requirement to review and understand the rule represents a cost
to employers participating in the H-2A program in the first year of the
rule. The Department estimates this cost for each employer by
multiplying the staff time required to read and review the new rule by
the estimated staff cost. As above, the Department estimated a wage
rate by multiplying the median hourly wage of an HR manager at an
agricultural business ($31.84) \12\ by the loaded wage rate (1.63) to
account for fringe benefits and overhead. The Department then
multiplied the resulting wage rate by the required staff time (10
minutes), which yielded a cost of $8.65 per employer. The Department
estimated the total cost of reading and reviewing the rule by
multiplying $8.65 by the average number of employers participating in
the H-2A program over FY 2015-2017 (6,676). This calculation results in
a cost of $57,747 in the first year. The annualized cost over the ten-
year period is $6,770 and $8,222 at the discount rates of 3 percent and
7 percent, respectively.
---------------------------------------------------------------------------
\12\ Wage derived from Bureau of Labor Statistics median hourly
wage for HR Specialists (occupational code 13-1071), May 2017.
---------------------------------------------------------------------------
3. Summary of Impacts
The Department estimates the total first-year costs of the final
rule to be $57,747. This cost results from the time required to read
and review the final rule, for all current H-2A employers combined. The
Department estimates first-year cost savings of $7.49 million. This
cost savings results from eliminating the requirement that employers
place print newspaper advertisements and retain ad-related documents.
Net first-year cost savings, therefore, amount to $7.44 million.
Generally, annual cost savings are expected to range from $8.51
million to $23.54 million in years following the first. The 10-year
discounted net cost savings of the rule range from $120.90 million to
$99.39 million (with 3 percent and 7 percent discount rates,
respectively). The annualized net cost savings of the final rule ranges
from $14.17 million to $14.14 million (with 3 percent and 7 percent
discount rates, respectively). When the Department uses a perpetual
time horizon to allow for cost comparisons under E.O. 13771, the
annualized cost savings of this final rule are $14.15 \13\ million at a
discount rate of 7 percent in 2016 dollars.
---------------------------------------------------------------------------
\13\ Cost savings in current dollars are $14.16 million. To
comply with E.O. 13771 accounting costs calculated on a perpetual
time horizon are multiplied by the GDP deflator (0.980702077) to
convert to 2016 dollars then multiplied by a discount rate
(0.816297877) in order to set to discount the amount to 2016
figures.
---------------------------------------------------------------------------
B. 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 rule may impact small businesses that request H-2A temporary
labor certifications. Based on data obtained from the Small business
Administrations, the department identified that on average 1,195 total
unique small employers could be affected by the implementation of this
rule.\14\ The Department assumes that the average number of H-2A
temporary labor certifications requested by any small business per year
will be one. The Department estimates that small businesses will incur
a one-time cost of $8.65 to familiarize themselves with the rule.
Following the initial familiarization period, employers will experience
annualized cost savings of $674 \15\ associated with advertising online
rather than in print newspapers and the elimination of document
retention requirements. To estimate the cost savings to small
businesses the Department multiplied the average cost of a single
newspaper advertisement by the number of advertisements required by 20
CFR 655.42 ($336 per advertisement x 2 advertisements). This amount was
added to the estimated cost savings from the elimination if the
document retention requirement ($1.73). Over a 10-year period, the net
annualized cost savings for a small business would be $716 at a 7-
percent discount rate.
---------------------------------------------------------------------------
\14\ The average is based on 1,136 unique small business
entities FY 2016; and 1,253 unique small business entities in FY
2017.
\15\ $674 = ($336 for newspaper advertisement cost x 2 required
advertisements) + $2 for the elimination of document retention
requirement.
---------------------------------------------------------------------------
The Department reviewed the impacts of the final rule for two North
American Industry Classification System (NAICS) Codes that frequently
request H-2A temporary labor certifications--NAICS 115115: Farm Labor
Contractors & Crew Leaders, and NAICS 111998: All Other Miscellaneous
Crop Farming. The Small Business Administration (SBA) estimates that
annual revenue for a small business with NAICS Code 115115 is $15
million and for NAICS Code 111998 is $750,000.\16\ The Department
estimates that the impact of the final rule will be less than 1 percent
of annual revenue for the small businesses in these industries with the
employment size fewer than 5 ($710,717 for NAICS 115115 and $430,835
for NAICS 11).\17\ Based on this determination, the Department
certifies that the final rule will not have a significant economic
impact on a substantial number of small entities.
---------------------------------------------------------------------------
\16\ 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.
\17\ U.S. Census, 2012 SUSB Annual Data Tables by Establishment
Industry, https://www.census.gov/data/tables/2012/econ/susb/2012-susb-annual.html.
---------------------------------------------------------------------------
One commenter asserted that the final rule might impact small
businesses that request H-2A temporary labor certifications. The
commenter argued that DOL's assumption that small businesses would only
request one H-2A temporary labor certification is incorrect because a
large percentage of small employers submit multiple certification
applications. Another commenter, expressing support for the rule,
argued that increasingly costly and cumbersome aspects of the H-2A
program have precluded many small
[[Page 49455]]
family farms from participating. The commenter argued that the new rule
would mitigate such costs and make the program more economically viable
for those employers who lack the size and scale to absorb the
additional overhead.
The Department understands that some small businesses may have more
than one certification, but this final rule makes no change to affect
small employers to increase or decrease their number of certifications.
This final rule will provide cost savings to small businesses by
removing print newspaper advertisement requirements and associated
document retention requirements.
C. 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), concerning OMB Control Number 1205-0532, contained in
this final rule to OMB to obtain approval using emergency clearance
procedures outlined at 5 CFR 1320.13.
The revisions detailed in this final rule closely relate to
existing information collections approved for the H-2A Foreign Labor
Certification Program under OMB control number 1205-0466. The
Department is not submitting this ICR under that control number,
however, because the ROCIS database, which is OMB's system for
processing requests, allows only one ICR per control number to be
pending at any given time, and the existing control number will be
encumbered by an unrelated ICR when submitting the final rule in this
regulatory process. The Department is therefore submitting the instant
ICR under a different control number, 1205-0532, which was assigned by
OMB, for administrative purposes only. Once all of the outstanding
actions are complete, the Department intends to submit a non-material
change request to transfer the burden from this OMB control number
(1205-0532) to the existing OMB control number for the H 2A Foreign
Labor Certification Program (1205-0466) and proceed to discontinue the
use of this OMB control number 1205-0532.
This final rule modernizes and improves the labor market test that
the Department uses to assess whether able, willing, and qualified U.S.
workers are available by: (1) Rescinding the requirement that an
employer advertise its job opportunity in a print newspaper of general
circulation in the area of intended employment; (2) expanding and
enhancing the Department's electronic job registry; and (3) further
leveraging the knowledge and expertise of State Workforce Agencies
(SWAs) to promote agricultural job opportunities. More specifically,
this final rule eliminates the general requirement for a prospective H-
2A employer to advertise its job opportunity in a print newspaper of
general circulation in the area of intended employment. However, in
contrast to the NPRM, this final rule does not require the employer to
place this electronic advertisement. Rather, as explained in detail in
this final rule, the Department will advertise the employer's job
opportunity on its behalf by posting it on SeasonalJobs.dol.gov, an
expanded and improved version of the Department's existing H-2A job
registry website. In addition, this final rule further strengthens the
labor market test by leveraging existing recruitment outreach
activities of the SWAs to provide written notice of the job opportunity
to organizations providing employment and training services to workers
likely to apply for the job, or place written notice in other physical
locations where such workers are likely to gather.
The information collection change in requirements associated with
this final rule are summarized as follows:
Agency: DOL-ETA.
Type of Information Collection: New OMB Control Number 1205-0532.
Title of the Collection: Advertising Requirements for Employers
Seeking to Employ H-2A Nonimmigrant Workers.
Agency Form Number: None.
Affected Public: Private Sector--businesses or other for-profits
and state/local agencies.
Total Estimated Number of Respondents: 9,796.
Average Responses per Year per Respondent: 2.
Total Estimated Number of Responses: 19,592.
Average Time per Response: 7 minutes per application.
Total Estimated Annual Time Burden: 137,144 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.
SWAs are mandated to perform certain activities for the Federal
Government under the H-2A program, and receive grants to support the
performance of these activities. The current regulation requires SWAs
to review and place approved job orders into their intrastate and
interstate clearance systems, which includes dissemination of the job
opportunity to all offices where SWA staff are located as well as one-
stop partner sites and other specialized offices affiliated with the
state one-stop delivery system. SWAs are also responsible for assisting
U.S. workers to understand the terms and conditions of employment set
forth in intrastate and interstate clearance orders, actively referring
qualified U.S. workers to available job opportunities, and performing
housing inspections to ensure compliance with applicable housing
standards.
Under the final rule, SWAs will continue to play a significant and
active role in disseminating available job opportunities and providing
the full range of employment and training services to the agricultural
community, both workers and employers, through the state one-stop
delivery system. Specifically, the final rule strengthens the labor
market test by leveraging existing recruitment outreach activities of
the SWAs to provide written notice of the job opportunity to
organizations providing employment and training services to workers
likely to apply for the job, or place written notice in other physical
locations where such workers are likely to gather.
Regulations under the Wagner-Peyser Act require each state to
conduct outreach activities to U.S. agricultural workers and circulate
available job opportunities throughout the state's one-stop delivery
system, including NFJP grantees serving migrant and seasonal
farmworkers. The Department recognizes that this final rule may
slightly increase the outreach activities of some SWAs, particularly
those who
[[Page 49456]]
do not serve significant numbers of U.S. agricultural workers, in terms
of identifying organizations providing employment and training services
to workers likely to apply for agricultural job opportunities or
gathering information on where such workers are likely to gather.
However, the Department anticipates that the workload associated with
these activities will be minimal, since information needed to contact
employment and training service providers is readily available, and the
SWAs possess extensive experience conducting a wide array of outreach
services to U.S. agricultural workers.
Funding to carry out these activities under the H-2A program is
provided by the Department through grants under the Wagner-Peyser Act,
29 U.S.C. 49 et seq., and directly through appropriated funds for
administration of the Department's foreign labor certification program.
The Department anticipates continued funding under the Wagner-Peyser
Act to support the activities of the SWAs. Furthermore, this final rule
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 Department has not prepared a statement under the Act.
E. Small Business Regulatory Enforcement Fairness Act of 1996
This final rule is not 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). This final rule
has not been found 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 final rule does not have federalism implications because it
does 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 Orders 13175 (Indian Tribal Governments)
This final rule does not have ``tribal implications'' because it
does not have substantial direct effects on one or more Indian tribes,
on the relationship between the Federal government and Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes. 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 final rule will 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 final rule will 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 final rule will not 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 final rule will 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 final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) 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.
Accordingly, DOL amends part 655 of title 20 of the Code of Federal
Regulations as follows:
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
0
1. The authority citation for part 655 continues 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. Amend Sec. 655.143 by revising paragraph (b)(3) and (b)(4) and by
adding paragraph (b)(5) to read as follows:
[[Page 49457]]
Sec. 655.143 Notice of acceptance.
* * * * *
(b) * * *
(3) State that positive recruitment is in addition to and will
occur during the period of time that the job order is being circulated
by the SWA(s) for interstate clearance under Sec. 655.150 of this
subpart and will terminate on the actual date on which the H-2A workers
depart for the place of work, or 3 calendar days prior to the first
date the employer requires the services of the H-2A workers, whichever
occurs first;
(4) State that the CO will make a determination either to grant or
deny the Application for Temporary Employment Certification no later
than 30 calendar days before the date of need, except as provided for
under Sec. 655.144 for modified Applications for Temporary Employment
Certification.; and
(5) Where appropriate to the job opportunity and area of intended
employment, direct the SWA to provide written notice of the job
opportunity to organizations that provide employment and training
services to workers likely to apply for the job and/or to place written
notice of the job opportunity in other physical locations where such
workers are likely to gather.
Sec. 655.151 [Removed and Reserved]
0
3. Remove and reserve Sec. 655.151.
Sec. 655.152 [Removed and Reserved]
0
4. Remove and reserve Sec. 655.152.
Sec. 655.161 [Amended]
0
5. In Sec. 655.161(a), remove the reference to ``Sec. 655.121 and
Sec. 655.152'' and add in its place ``this subpart''.
Sec. 655.167 [Amended]
0
6. Amend Sec. 655.167 by removing paragraph (c)(1)(ii) and
redesignating paragraphs (c)(1)(iii) and (iv) as paragraphs (c)(1)(ii)
and (iii).
Sec. 655.225 [Amended]
0
7. Amend Sec. 655.225 by removing paragraph (d) and redesignating
paragraph (e) as paragraph (d).
John P. Pallasch,
Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2019-19674 Filed 9-19-19; 8:45 am]
BILLING CODE 4510-FP-P
