Modernizing Recruitment Requirements for the Temporary Employment of H-2B Foreign Workers in the United States

Published date15 November 2019
Citation84 FR 62431
Record Number2019-24832
SectionRules and Regulations
CourtWage And Hour Division
Federal Register, Volume 84 Issue 221 (Friday, November 15, 2019)
[Federal Register Volume 84, Number 221 (Friday, November 15, 2019)]
                [Rules and Regulations]
                [Pages 62431-62447]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2019-24832]
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                Rules and Regulations
                 Federal Register
                ________________________________________________________________________
                This section of the FEDERAL REGISTER contains regulatory documents
                having general applicability and legal effect, most of which are keyed
                to and codified in the Code of Federal Regulations, which is published
                under 50 titles pursuant to 44 U.S.C. 1510.
                The Code of Federal Regulations is sold by the Superintendent of Documents.
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                Federal Register / Vol. 84, No. 221 / Friday, November 15, 2019 /
                Rules and Regulations
                [[Page 62431]]
                DEPARTMENT OF HOMELAND SECURITY
                RIN 1615-AC33
                DEPARTMENT OF LABOR
                Employment and Training Administration
                20 CFR Part 655
                Wage and Hour Division
                29 CFR Part 503
                [DOL Docket No. ETA-2018-0003]
                RIN 1205-AB91
                Modernizing Recruitment Requirements for the Temporary Employment
                of H-2B Foreign Workers in the United States
                AGENCY: U.S. Citizenship and Immigration Services, Department of
                Homeland Security and Employment and Training Administration and Wage
                and Hour Division, Department of Labor.
                ACTION: Final rule.
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                SUMMARY: The Department of Homeland Security (DHS) and the Department
                of Labor (DOL) (collectively, the Departments), are jointly issuing
                this final rule to amend the regulations governing DOL's certification
                of nonagricultural labor or services to be performed by temporary
                foreign workers in H-2B nonimmigrant status (H-2B workers). Pursuant to
                Section 214(c)(1) of the Immigration and Nationality Act (INA), this
                certification serves as DHS's consultation with DOL regarding whether a
                qualified United States (U.S.) worker is available to fill the
                petitioning H-2B employer's job opportunity, and whether a foreign
                worker's employment in the job opportunity will adversely affect the
                wages or working conditions of similarly employed U.S. workers. This
                final rule modernizes and improves the labor market test that DOL uses
                to assess whether 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, and expanding and enhancing DOL's electronic job registry
                to disseminate available job opportunities to the widest audience
                possible.
                DATES: This final rule is effective December 16, 2019.
                FOR FURTHER INFORMATION CONTACT: Regarding the Department of Homeland
                Security: Charles L. Nimick, Chief, Business and Foreign Workers
                Division, Office of Policy and Strategy, U.S. Citizenship and
                Immigration Services, Department of Homeland Security, 20 Massachusetts
                Ave NW, Suite 1100, Washington, DC 20529-2120, telephone (202) 272-8377
                (not a toll-free call). Regarding the Department of Labor: 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). Regarding 29 CFR part 503: Mary Ziegler, Director,
                Division of Regulations, Legislation, and Interpretation, Wage and Hour
                Division, Department of Labor, 200 Constitution Avenue NW, Room S-3510,
                Washington, DC 20210; telephone (202) 693-0071 (this is not a toll-free
                number).
                 Individuals with hearing or speech impairments may access the
                telephone numbers above via TTY by calling the toll-free Federal
                Information Relay Service at 1-877-889-5627 (TTY/TDD).
                SUPPLEMENTARY INFORMATION:
                I. Executive Summary
                A. Statutory and Regulatory Background
                 The Immigration and Nationality Act (INA), as amended by the
                Immigration Reform and Control Act of 1986 (IRCA), establishes the H-2B
                nonimmigrant visa classification for a nonagricultural temporary worker
                ``having a residence in a foreign country which he has no intention of
                abandoning who is coming temporarily to the United States to perform .
                . . temporary [nonagricultural] service or labor if unemployed persons
                capable of performing such service or labor cannot be found in this
                country.'' INA section 101(a)(15)(H)(ii)(b), 8 U.S.C.
                1101(a)(15)(H)(ii)(b). Employers must petition DHS for classification
                of prospective temporary workers as H-2B nonimmigrants. INA section
                214(c)(1), 8 U.S.C. 1184(c)(1). DHS must approve this petition before a
                beneficiary may be considered eligible for an H-2B visa. Finally, the
                INA requires that ``[t]he question of importing any alien as [an H-2B]
                nonimmigrant . . . in any specific case or specific cases shall be
                determined by [DHS],\1\ after consultation with appropriate agencies of
                the Government.'' Id.
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                 \1\ As of March 1, 2003, in accordance with section 1517 of
                Title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-
                296, 116 Stat. 2135, any reference to the Attorney General in a
                provision of the Immigration and Nationality Act describing
                functions which were transferred from the Attorney General or other
                Department of Justice official to the DHS by the HSA ``shall be
                deemed to refer to the Secretary'' of Homeland Security. See 6
                U.S.C. 557 (2003) (codifying HSA, Title XV, sec. 1517); 6 U.S.C. 542
                note; 8 U.S.C. 1551 note.
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                 DHS regulations provide that an H-2B petition for temporary
                employment in the United States must be accompanied by an approved
                temporary labor certification (TLC) from DOL issued pursuant to
                regulations established at 20 CFR part 655. See 8 CFR
                214.2(h)(6)(iii)(A), (C)-(E), (h)(6)(iv)(A); see also INA section
                103(a)(6), 8 U.S.C. 1103(a)(6), INA section 214(c)(1), 8 U.S.C.
                1184(c)(1). The TLC serves as DHS's consultation with DOL regarding
                whether: (i) A qualified U.S. worker is available to fill the
                petitioning H-2B employer's job opportunity, and (ii) whether a foreign
                worker's employment in the job opportunity will adversely affect the
                wages or working conditions of similarly employed U.S. workers. See INA
                section 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and
                (D).
                 Through the application process set forth in these regulations, DOL
                acquires the information necessary to make these factual
                determinations, including whether there are sufficient qualified U.S.
                workers available to perform the nonagricultural labor or services for
                which an employer seeks H-2B certification. 20 CFR 655.1. To that end,
                the regulations require an employer seeking H-2B temporary labor
                certification to test the labor market by recruiting U.S. workers for
                the position(s) in which it intends to employ H-2B workers. See, e.g.,
                20 CFR 655.16, 655.40 through 655.46. The
                [[Page 62432]]
                outcome of this labor market test forms the basis of DOL's
                determination, through consultation with DHS before DHS makes the final
                determination on an H-2B petition, as to whether there are sufficient
                qualified U.S. workers available to fill the employer's job
                opportunity.
                 The INA also authorizes DHS to impose appropriate remedies against
                an employer for a substantial failure to meet the terms and conditions
                of employing an H-2B nonimmigrant worker, or for a willful
                misrepresentation of a material fact in a petition for an H-2B
                nonimmigrant worker. INA section 214(c)(14)(A), 8 U.S.C.
                1184(c)(14)(A). The INA expressly authorizes DHS to delegate certain
                enforcement authority to DOL. INA section 214(c)(14)(B), 8 U.S.C.
                1184(c)(14)(B); see also INA section 103(a)(6), 8 U.S.C. 1103(a)(6).
                DHS has delegated its authority pursuant to INA section 214(c)(14)(B),
                8 U.S.C. 1184(c)(14)(B) and INA section 103(a)(6), 1103(a)(6), to DOL.
                See DHS, Delegation of Authority to DOL under Section 214(c)(14)(A) of
                the Immigration and Nationality Act (Jan. 16, 2009); INA section
                103(a)(6), 8 U.S.C. 1103(a)(6); 8 CFR 214.2(h)(6)(ix) (stating that DOL
                may investigate employers to enforce compliance with the conditions of,
                among other things, an H-2B petition and a DOL-approved TLC). Within
                DOL, this enforcement authority has been delegated to the Wage and Hour
                Division (WHD), and is governed by regulations at 29 CFR part 503.
                B. Current Recruitment Requirements
                 Under the regulations currently in effect, an employer seeking H-2B
                workers generally initiates the temporary labor certification process
                by filing the following with DOL: (1) An Application for Temporary
                Employment Certification, Form ETA-9142B (H-2B application) and (2) a
                copy of the job order submitted concurrently to the State Workforce
                Agency (SWA) serving the area of intended employment; and other
                documentation supporting the H-2B application. 20 CFR 655.15(a). Absent
                limited exceptions, an employer must file a completed H-2B application
                no more than 90 days, but no fewer than 75 days, before it seeks to
                employ H-2B workers. 20 CFR 655.15(b).
                 An Office of Foreign Labor Certification (OFLC) Certifying Officer
                (CO) will review the H-2B application and job order for compliance with
                program requirements. 20 CFR 655.30. The SWA concurrently reviews the
                job order to confirm that the employer's job opportunity complies with
                applicable requirements and notifies the CO of any deficiencies within
                6 business days of receipt of the job order. 20 CFR 655.16(b). If the
                H-2B application and job order meet all applicable requirements, the CO
                will issue a Notice of Acceptance (NOA) within 7 business days from the
                date the H-2B application was received. 20 CFR 655.33. The NOA
                authorizes the next step in the temporary labor certification process--
                the recruitment of U.S. workers--and specifies a date on which the
                employer must provide an initial written report of its recruitment
                efforts. See 20 CFR 655.33(b).
                 The NOA directs the SWA to place the job order into intrastate
                clearance and circulate a copy of the job order to other states listed
                as anticipated worksites and designated by the CO for interstate
                clearance, where the job orders must remain active until 21 days before
                the date of need as set forth in 20 CFR 655.40(c). Id. Where the
                occupation or industry is traditionally or customarily unionized, the
                NOA instructs the SWA to circulate a copy of the job order to the
                central office of the State Federation of Labor and the office(s) of
                local union(s) representing employees in the same or a substantially
                equivalent job classification in the geographic area(s) where work will
                be performed. Id. Additionally, the NOA specifies the recruitment steps
                that the employer must conduct, within 14 calendar days from the date
                the NOA is issued, to complete the labor market test, unless the CO
                instructs otherwise. Id. Upon receipt of the employer's initial
                recruitment report, the CO will make a final determination whether to
                grant, partially grant, or deny the employer's H-2B application, based
                on the criteria for certification set forth in 20 CFR 655.50-655.51.
                 Sections 655.40 through 655.48 outline the recruitment standards
                and procedures that the CO may order an employer to conduct. Under
                these regulations, an employer is generally required to: (1) Place two
                print advertisements in a newspaper of general circulation serving the
                area of intended employment, see 20 CFR 655.42; (2) contact U.S.
                workers the employer employed in the previous year to solicit their
                return, see 20 CFR 655.43; and (3) contact the bargaining unit, if one
                exists, to seek referrals of U.S. workers, or if a bargaining unit does
                not exist, post notice of the job opportunity at the place(s) of
                employment for at least 15 consecutive business days, see 20 CFR
                655.45. If relevant to the occupation and area of intended employment,
                the CO may also direct the employer to provide written notice of the
                job opportunity to a community-based organization, as provided in 20
                CFR 655.45(c). Both print newspaper advertisements and the notice of
                posting at the place(s) of employment must meet the minimum content
                requirements set forth in 20 CFR 655.41, and an employer must maintain
                documentation of all advertising and recruitment efforts in the event
                of an audit or other review, as required by 20 CFR 655.56.
                 Finally, the CO may direct an employer to conduct additional
                recruitment where the CO determines there is a likelihood that
                qualified U.S. workers will be available to fill the employer's job
                opportunity. 20 CFR 655.46(a). The regulation provides the CO with
                flexibility to select the appropriate methods of recruitment on a case-
                by-case basis to ensure an adequate test of the labor market and that
                U.S. workers are apprised of available job opportunities. 20 CFR
                655.46(b) leaves to the CO's discretion the precise nature of the
                additional recruitment an employer may need to conduct, and provides a
                non-exclusive list of advertising options. The flexibilities contained
                in this regulatory provision permit the CO to keep pace with labor
                market trends and changes in technology that may affect how information
                about job opportunities is disseminated and how many U.S. workers
                search for and find jobs. Equally important, when assessing the
                appropriateness of a particular recruitment method, the CO considers
                all options at his or her disposal, including relying on the SWA's
                experience and expertise with local labor markets, and where
                appropriate, selects the appropriate methods of recruitment on a case-
                by-case basis.
                C. Summary of Proposed Changes to the Recruitment Requirements and the
                Changes Adopted in This Final Rule
                 On November 9, 2018, the Departments issued a notice of proposed
                rulemaking (NPRM) announcing their intent to modernize the recruitment
                that an employer must conduct in conjunction with an H-2B application.
                See 83 FR 55977, 55979 (Nov. 9, 2018). Specifically, the Departments
                proposed to eliminate the general requirement that an employer
                advertise its job opportunity in a print newspaper and replace it with
                a requirement to post an electronic advertisement on a qualifying
                website. The Departments 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 Departments
                specifically solicited comments as to
                [[Page 62433]]
                whether there were alternative methods of recruitment that would more
                broadly and effectively disseminate information about temporary
                nonagricultural job opportunities to U.S. workers. The Departments
                originally stated that they would accept comments through December 10,
                2018, but in response to a request for an extension, they subsequently
                extended this period through December 28, 2018. The public may review
                all comments that the Departments received in response to the NPRM in
                the Federal Docket Management System (FDMS) at http://www.regulations.gov, docket number ETA-2018-0003.
                 Upon careful consideration of the comments received, the
                Departments have decided to adopt their 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-2B labor certification to advertise their
                job opportunities in print newspapers of general circulation in the
                area of intended employment. The Departments' 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, DOL will instead advertise all H-2B job
                opportunities by posting them on SeasonalJobs.dol.gov, the expanded and
                improved version of DOL's existing electronic job registry.
                D. Joint Issuance of This Final Rule
                 In order to effectuate DHS's requirement for DOL consultation
                pursuant to 8 U.S.C. 1184(c)(1), which is provided in the form of
                temporary labor certifications, DOL must issue regulations to structure
                procedures and standards for its issuance of labor certifications, as
                DOL has done for almost 50 years. On April 29, 2015, following a
                court's vacatur of nearly all of DOL's H-2B regulations, the
                Departments jointly promulgated an interim final rule (IFR) governing
                DOL's role in issuing temporary labor certifications and in enforcing
                the statutory and regulatory rights and obligations applicable to
                employment under the H-2B program. See Temporary Non-Agricultural
                Employment of H-2B Aliens in the United States, 80 FR 24042 (Apr. 29,
                2015) (``2015 H-2B IFR'').
                 As explained in the 2015 H-2B IFR, following conflicting legal
                decisions about DOL's authority to independently issue legislative
                rules to carry out its duties for the H-2B program under the INA, the
                Departments jointly issued the 2015 H-2B IFR to ensure that there can
                be no question about the authority for and validity of the regulations
                in this area. 80 FR at 24045; see also 80 FR at 24044-47.\2\
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                 \2\ The Departments' authority to jointly regulate has not been
                found invalid, and nothing otherwise precludes joint action in the
                H-2B program. While the same district court twice issued an
                injunction against DOL's unilaterally-issued H-2B rules, see Bayou
                Lawn & Landscape Servs. v. Solis, 2012 WL 12887385 (N.D. Fla. Apr.
                26, 2012) and Bayou Lawn v. Perez, 81 F. Supp. 3d 1291, 1300 (N.D.
                Fla. 2014) (Bayou II), the court has since upheld the joint rules,
                Bayou Lawn v. Johnson, 173 F. Supp. 3d 1271, 1277, 1289-91 (N.D.
                Fla. 2016) (Bayou III), noting that the primary difference between
                the enjoined 2012 rules and the 2015 rules was their joint
                promulgation. Id. at 1277 n.2.
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                 Specifically, DHS's participation in the rulemaking is pursuant to
                its broad authority to issue rules in the H-2B program under 8 U.S.C.
                1103(a)(3) and 1184(a), and, as referenced above, DOL--which has the
                institutional expertise on all matters relating to the domestic labor
                market and has for decades issued temporary labor certifications and
                legislative rules governing them in the nonagricultural foreign worker
                program--is necessarily authorized to promulgate rules governing its
                issuance of temporary labor certifications pursuant to 8 U.S.C.
                1184(c). See also 8 U.S.C. 1103(a). The Departments further explained
                in the 2015 H-2B IFR that by jointly issuing that rule, ``the
                Departments affirm that [it] is fully consistent with the INA and
                implementing DHS regulations and is vital to DHS's ability to
                faithfully implement the statutory labor protections attendant to the
                program.'' 80 FR at 24045-46. Litigation on these and related matters
                is ongoing. Accordingly, notwithstanding that DOL has the authority to
                independently issue this Final Rule, DHS is joining DOL in this
                rulemaking to ensure that there can be no question about the authority
                underlying this action.
                E. Severability
                 To the extent that any portion of this final rule is declared
                invalid by a court, the Departments intend 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 Departments intend that the rest of the final rule
                continues to operate, if at all possible, in tandem with the reverted
                provisions.
                II. Revisions to 20 CFR Part 655, Subpart A
                A. The Departments are Rescinding the Regulation Generally Requiring
                Employers to Place Print Newspaper Advertisements in the Area of
                Intended Employment
                1. Background
                 In the NPRM, the Departments proposed to revise 20 CFR 655.42 to
                replace the requirement for an employer to place print newspaper
                advertisements with a requirement 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 Departments 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
                Departments also relied on DOL's experience in administering temporary
                and permanent labor certification programs, as well as anecdotal
                evidence received from stakeholders, who reported that advertisements
                in print newspapers were not an effective means of recruiting
                prospective U.S. workers for temporary nonagricultural job
                opportunities. In light of this data, experience, and stakeholder
                feedback, the Departments asserted that classified advertisements in
                print editions were becoming a less effective means of recruiting U.S.
                workers, and proposed to replace 20 CFR 655.42's current requirement to
                place a print newspaper advertisement with a requirement to post an
                electronic advertisement on the internet.
                 Many of the H-2B employers and employer associations that submitted
                comments in response to the NPRM applauded the Departments' efforts to
                modernize the recruitment process and confirmed, based on their
                experience, print newspaper advertising is expensive and ineffective in
                attracting U.S. workers who are likely to apply for temporary
                nonagricultural job opportunities in most cases. For example, one
                commenter stated that most of the H-2B petitioner employers it
                represents ``almost never . . . receive U.S. applicants as a result of
                the print advertisements,'' and asserted, based on its experience, that
                print newspaper advertisements are not a meaningful source for
                recruiting workers for temporary nonagricultural job opportunities.
                Similarly, a commenter representing an employer stated it prefers to
                advertise electronically, on social media and online job boards,
                [[Page 62434]]
                because it never receives applications in response to print newspaper
                advertisements. Another commenter agreed that print advertising is
                ineffective and asserted that advertising costs are rising due to
                decreasing competition in the newspaper industry.
                 Nevertheless, a number of these commenters disagreed with the
                Departments' proposal to completely eliminate print newspaper
                advertisements. Some expressed concern that the proposed rule would
                have a significant adverse impact on the newspaper industry. One of
                these commenters acknowledged online advertising would be more
                effective but expressed concern only with the financial impact of the
                proposed rule.
                 One commenter associated with the newspaper industry asserted that
                the Departments' proposal to eliminate the print newspaper advertising
                requirement overlooked certain factors. This commenter stated that
                newspapers are more effective than the internet in disseminating
                information to relevant viewers. The same commenter also opined that
                many local newspapers reach a larger audience than their subscribership
                indicates because a single newspaper is read by multiple people, and
                the content in these newspapers is often available online. According to
                this commenter, the distribution and readership of a local newspaper,
                in all of its formats (print and electronic), can easily exceed the
                number of visits to a third-party job search website. Finally, this
                commenter maintained that newspapers play an essential role in placing
                electronic advertisements and noted that some newspapers use services
                that will not only post an employer's advertisement to large internet
                job boards, but also distribute the advertisements to other job search
                websites.
                 A number of commenters urged that the Departments 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 to post an electronic advertisement in accordance with
                the requirement in the proposed rule. These commenters provided varied
                reasons to justify their request. For instance, some were concerned
                about internet accessibility issues for employers. Others were
                concerned that mandating electronic advertisements would unfairly
                exclude U.S. workers who are uncomfortable with certain technology or
                live in areas without ready access to the internet. Some pointed to the
                studies cited in the NPRM as evidence that the Departments did not
                adequately consider whether online advertisements would be effective in
                reaching the types of U.S. workers who typically work in jobs filled by
                H-2B workers. One commenter asserted that the Departments' proposal
                would violate the Equal Protection Clause of the Fourteenth Amendment
                of the United States Constitution because the Government would
                ``restrict access to potential jobs'' to people who have internet
                access.
                 Other commenters suggested that the Departments require employers
                to post advertisements both in print and electronic formats. Most of
                these commenters expressed general support for electronic advertising,
                but also noted that the Departments provided insufficient or incomplete
                evidence to demonstrate that electronic advertising would be any more
                effective in recruiting U.S. workers most likely to apply for temporary
                nonagricultural job opportunities. Some of these commenters expressed
                concerns that the Departments relied on information and data trends
                focusing on U.S. job seekers generally, and failed to consider more
                specific information regarding how job seekers located in rural
                communities and, more specifically, temporary nonagricultural workers
                obtain employment, as well as how employers recruit for temporary
                nonagricultural workers. These commenters cited data suggesting that
                many U.S. workers who might be interested in filling temporary
                nonagricultural job opportunities may not have reliable high speed
                internet access, which would impede U.S. workers from viewing and
                responding to advertisements for H-2B job opportunities.
                 Some commenters cited Pew Research Center data suggesting that the
                internet was used in job searches much less frequently by job seekers
                possessing less than a high school education, earning less than $30,000
                per year, and residing in rural community areas, characteristics they
                asserted are often shared by workers in temporary nonagricultural
                employment.\3\ A commenter representing a newspaper industry
                association cited a recent study conducted by the Federal
                Communications Commission (FCC) indicating that nearly 40 percent of
                Americans, or approximately 24 million people, living in rural areas
                lack access to fixed broadband internet service, 30 percent of rural
                Americans lack access to mobile LTE broadband, and cellular reception
                is generally poorer in these areas. Some of these commenters urged the
                Departments to engage in additional consultation with the stakeholder
                community and State Workforce Agencies, and conduct a more formal
                assessment of internet access and usage by U.S. workers most likely to
                apply for temporary nonagricultural jobs.
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                 \3\ Aaron Smith, Searching for Work in the Digital Era, Pew
                Research Center, Nov. 19, 2015, http://www.pewinternet.org/2015/11/19/searching-for-work-in-the-digital-era.
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                 At times citing reasons similar to those who advocated for giving
                employers the option to use either method (for example, pointing to
                data suggesting that some workers still use print sources to search for
                jobs and may have limited access to the internet), some commenters
                generally questioned whether electronic advertisements alone would be
                effective in reaching U.S. workers interested in temporary
                nonagricultural employment. They suggested the dual requirement would
                ensure the broadest possible exposure to U.S. applicants. One commenter
                recommended leaving the print requirement in place until the new DOL
                platform discussed in the NPRM was fully operational, opining that the
                online advertising the NRPM described was unlikely to have sufficient
                oversight or consistency.
                 Finally, a commenter representing a newspaper industry association
                stated that electronic advertising would be less effective in
                recruiting temporary nonagricultural workers than the currently
                required newspaper advertisements. Citing the FCC report and the Pew
                Research Center report noted above, this commenter asserted that the
                proposed rule would make it more difficult for U.S. workers to apply
                for H-2B job opportunities because such jobs attract job seekers less
                likely to search for employment online, including those with a low
                income, low level of educational attainment, minorities, and job
                seekers residing in rural areas. The commenter stated that the Pew
                Research Center data showed rural Americans are less likely to use the
                internet to search for work than suburban or urban Americans. Despite
                these concerns, this commenter supported placement of advertisements on
                online job boards operated by newspapers or websites that partner with
                newspapers, such as Careerbuilder.com and Monster.com, but urged the
                Department to require both print and online advertising.
                2. Discussion
                 After carefully considering the comments received, the Departments
                have decided to rescind 20 CFR 655.42. The regulations will no longer
                generally require a prospective H-2B employer to advertise its job
                opportunity in a newspaper serving the area of intended
                [[Page 62435]]
                employment. This decision is grounded in the Departments' determination
                that the newspaper advertisements required under this section do not
                generally contribute in a significant way to the labor market test that
                DOL administers to assess the availability of qualified U.S. workers,
                as compared to the electronic advertising as described in this rule.
                 This determination is supported by the lack of data indicating
                newspaper advertisements are an effective means of recruiting U.S.
                workers for temporary nonagricultural positions. Specifically, as noted
                in the NPRM, available data indicates that U.S. workers are now much
                more likely to turn to the internet to search for work, and classified
                advertisements in print newspaper editions are becoming a less
                effective means of notifying potential applicants about available job
                opportunities. See 83 FR 55877, 55979. The data available to the
                Departments and the supportive comments reviewed in preparation of this
                final rule lead DOL to conclude that electronic advertising is a more
                effective means of reaching U.S. workers seeking temporary
                nonagricultural job opportunities, and of achieving the goals of the H-
                2B labor certification program.\4\ In addition, the Departments
                considered anecdotal accounts in comments from employers and employer
                associations, who reported that the newspaper advertisements they have
                placed in connection with this requirement have yielded very few, if
                any, applications from qualified U.S. workers.
                ---------------------------------------------------------------------------
                 \4\ See Aaron Smith, Searching for Work in the Digital Era, Pew
                Research Center, Nov. 19, 2015, http://www.pewinternet.org/2015/11/19/searching-forwork-in-the-digital-era (only 32 percent of
                Americans use ``ads in print publications'' when searching for
                employment and only four percent found ads in print publications to
                be the most useful tool in obtaining their recent employment);
                Elaine C. Kamarck and Ashley Gabriele, The News Today: Trends in Old
                and New Media, The Brookings Institution (Nov. 10, 2015)(Stating
                there are now only 400 newspapers for every 100 million Americans,
                and that only 15 percent of Americans receive a daily newspaper).
                https://www.brookings.edu/research/the-news-today-7-trends-in-old-and-new-media.
                ---------------------------------------------------------------------------
                 In arriving at this determination, the Departments carefully
                considered the arguments that some 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 as a general
                requirement of prospective H-2B employers are a less effective means of
                recruiting U.S. workers for temporary nonagricultural positions.
                Accordingly, these arguments have not persuaded the Departments that
                the regulations must require every employer seeking H-2B workers to
                place print advertisements in order to effectively test the labor
                market for able, willing, qualified, and available U.S. workers. As is
                currently the case, to the extent DOL determines that an advertisement
                in a particular print publication is likely to reach qualified and
                available U.S. workers in specific areas or across certain populations,
                the CO retains the discretion to 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 655.46.
                 Significantly, the commenters who urged the Departments 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 temporary nonagricultural positions. Rather, these
                commenters asserted advantages of newspaper advertisements in general
                terms or pointed to their importance in certain communities, compared
                to the advantage of electronic advertisements proposed in the NPRM,
                without specifically addressing the efficacy of requiring all
                prospective H-2B employers to post newspaper advertisements when
                recruiting U.S. workers for temporary or seasonal nonagricultural job
                opportunities. For instance, some commenters cited data indicating
                certain populations and demographics are less likely to use the
                internet when searching for jobs and one commenter asserted that
                Americans in some communities are more likely to turn to community
                newspapers than the internet to obtain local news and information.
                However, the referenced non-public data only purports to show newspaper
                readership; it does not address individual job search habits, so the
                conclusion drawn is not supported by the data on which it is based and
                the Departments are unable to determine whether it offers any useful
                information with respect to this rulemaking. The arguments that
                commenters raised regarding the circulation and distribution of
                newspapers similarly do not refute the Departments' observation in the
                NPRM that job seekers rarely learn about job opportunities using print
                newspaper advertisements, nor do the assertions and anecdotes received
                in response to the NPRM. Similarly, the fact that DOL can easily verify
                whether an employer has placed a newspaper advertisement is irrelevant
                to whether the placement of such advertisements is an effective means
                of testing the labor market.
                 The Departments acknowledge that the rates of internet access and
                use of the internet to search for job opportunities vary among cross-
                sections of the population based on factors like age, location of
                residence, income, education level, and ethnicity. However, as noted in
                the NPRM, data indicates that the internet is an increasingly popular
                method that job seekers among all demographics use most often and find
                most reliable. For example, the Pew Research Center report cited in the
                NPRM and by the newspaper industry commenter concluded that the
                internet ``is a near-universal resource among those who have looked for
                work recently.'' \5\ The report noted that the data was ``based on the
                entire public--many of whom are retired, not in the job market, or have
                simply not had a reason to look for a job recently'' and while it is
                not possible to parse the data to determine precise rates of online job
                searching among all populations, it is clear that the internet is, by
                an increasing margin, the most widely used job search tool among job
                seekers across demographics. The Pew Research Center report ultimately
                found that when ``[n]arrowing the focus to the 34% of Americans who
                have actually looked for a new job in the last two years, fully 90% of
                these recent job seekers have ever used the internet to research jobs,
                and 84% have applied to a job online.'' \6\ Importantly, while the Pew
                Research Center data indicates rural Americans are less likely to use
                the internet to search for job opportunities than urban or suburban
                Americans, the data does not support the conclusion that rural
                Americans are more likely to use print newspapers than the internet
                when searching for job opportunities.
                ---------------------------------------------------------------------------
                 \5\ Aaron Smith, Searching for Work in the Digital Era, Pew
                Research Center, Nov. 19, 2015, https://www.pewinternet.org/2015/11/19/1-the-internet-and-job-seeking/.
                 \6\ Aaron Smith, Searching for Work in the Digital Era, Pew
                Research Center, Nov. 19, 2015, http://www.pewinternet.org/2015/11/19/searching-for-work-in-the-digital-era/.
                ---------------------------------------------------------------------------
                 Similarly, while the Departments also acknowledge that some job
                seekers may lack reliable access to advertisements on the internet,
                such access limitations are true of advertisements in any form, and the
                Departments believe the data supports the conclusion that electronic
                advertisements are currently, and will be increasingly, accessible to
                an overwhelming majority of job seekers across a much broader
                geographic area than print advertisements. The Departments understand
                the concerns of some commenters that job seekers,
                [[Page 62436]]
                particularly in rural areas, are less likely to have access to reliable
                internet service. However, as noted in the FCC report cited by the
                newspaper industry association commenter, the number of Americans that
                lack access is declining, including Americans living in rural areas.\7\
                Importantly, while the FCC report indicated a number of rural areas
                still lag behind the rest of the country in access to fixed-site,
                terrestrial broadband internet, the report also noted that the number
                of Americans with access to broadband internet is much higher when
                additionally considering sources like satellite internet service
                providers and mobile LTE.\8\ In contrast to increasing access to
                internet, the data cited in the NPRM shows that access to print
                newspapers continues to decline, there are now only 400 newspapers for
                every 100 million Americans, and only 15 percent of Americans receive a
                daily newspaper.\9\ In addition, print newspaper advertisements are
                often accessible only to persons in the areas where that newspaper is
                circulated, while electronic advertisements can reach job seekers in a
                much larger geographic area.
                ---------------------------------------------------------------------------
                 \7\ Inquiry Concerning Deployment of Advanced Telecommunications
                Capability to All Americans in a Reasonable and Timely Fashion, GN
                Docket No. 17-199, FCC 18-10 (Feb. 2, 2018), https://docs.fcc.gov/public/attachments/FCC-18-10A1.pdf (``2018 Broadband Deployment
                Report'') (noting that between 2012 and 2016, mobile and fixed
                terrestrial broadband access was deployed to 43.4 million Americans
                and the number of Americans without mobile or fixed terrestrial
                broadband access fell from 72.1 million to 20.6 million. When taking
                into account fixed terrestrial, satellite, and mobile internet
                access, the report also notes that ``approximately 99.9 percent of
                Americans have access to one of these services, including 99.3
                percent in rural areas and nearly all Americans in urban areas.'')
                 \8\ 2018 Broadband Deployment Report at 26, 87 (stating 99.9
                percent of all Americans and 99.3 percent of those in rural areas
                have access to either fixed broadband or mobile LTE, indicating 99
                percent have access to mobile LTE and 95.6 percent have access to
                broadband at speeds of 25/3 Mbps).
                 \9\ See Elaine C. Kamarck and Ashley Gabriele, The News Today: 7
                Trends in Old and New Media, The Brookings Institution, Nov. 10,
                2015, https://www.brookings.edu/research/the-news-today-7-trends-in-old-and-new-media.
                _____________________________________-
                 The Departments agree that no single recruitment method will reach
                all job seekers and do not disagree with comments asserting that other
                forms of advertising, such as print newspaper advertisements, may be
                effective in some limited circumstances. The move to electronic
                advertisements_and to SeasonalJobs.dol.gov in particular--is simply
                one important step in the Departments' broader effort to modernize the
                H-2B program, which has for many years been hampered by the tools of
                another era. As explained further below, COs will retain their
                discretion under 20 CFR 655.46(a) to evaluate, on a case-by-case basis,
                whether additional recruitment is necessary to ensure an adequate test
                of the labor market for the employer's job opportunity. And, in some
                limited circumstances where newspaper print advertisements would be
                effective, the CO has the authority to direct such advertising.
                 Moreover, as discussed in detail below, the Departments have
                decided not to adopt the proposal to replace the requirement to place
                newspaper advertisements with a requirement for an employer to post an
                electronic advertisement on the internet. Instead, DOL 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 DOL is required to maintain under its
                existing regulations. See 20 CFR 655.34. 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, because
                such employers will not need to access the internet in order to
                participate in the H-2B 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, DOL will use
                information that an employer provides on its job order and H-2B
                application to generate the advertisement that DOL 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 DOL.
                 While the Departments are aware that the final rule may have an
                impact on members of the newspaper industry, the Departments are also
                obligated to carry out the statutory mandate in a manner that ensures
                the methods and locations in which employers conduct positive
                recruitment are effective. As a general requirement for all employers,
                the Departments have determined that newspaper advertisements do not
                generally contribute in a significant way 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, to the extent that it is relevant at all, is outweighed by the
                Departments' needs to more effectively carry out the 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 DOL conducts in connection with
                an H-2B application. Given the absence of evidence suggesting print
                newspaper advertisements are comparably effective in recruiting U.S.
                workers for temporary or seasonal nonagricultural job opportunities,
                the Departments have decided not to continue requiring most employers
                seeking an H-2B labor certification to place print newspaper
                advertisements. Accordingly, DOL is rescinding 20 CFR 655.42, the
                regulation that generally requires employers to place such
                advertisements.
                B. Instead of Requiring a Prospective H-2B Employer To Post Its Own
                Electronic Advertisement, as Originally Proposed, DOL Will Advertise
                the Employer's Job Opportunity on SeasonalJobs.dol.gov, an Improved and
                Expanded Version of the DOL's Electronic Job Registry
                1. Background
                 In the NPRM, the Departments proposed to amend 20 CFR 655.42 to
                require that an employer post an advertisement on a website meeting
                certain criteria, namely 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 Departments
                suggested that such job search websites might include those that
                specialize in advertising job opportunities for the specific industry
                or occupation, and other classified advertisement websites with
                sections focused on local jobs. The Departments requested comments on
                whether they 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 Departments' proposed revision to 20 CFR 655.42, 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-
                [[Page 62437]]
                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 as screen shots of the web pages
                establishing the path used to access their advertisements.
                 Separately, in the NPRM, the Departments provided notice that DOL
                was evaluating the development of a centralized online platform to
                automate the advertising of H-2B job opportunities in order to assist
                employers in complying with the proposed electronic advertising
                requirement. Specifically, DOL 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 DOL transmit
                information about their H-2B 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 Departments received comments both in support and in opposition
                to the proposal to replace the print newspaper-advertising requirement
                in 20 CFR 655.42 with a requirement to post an electronic advertisement
                on the internet. Some commenters fully supported the Departments'
                proposed transition to electronic advertising, agreed it was a
                necessary modernization of the H-2B program, and expressed a belief
                that online advertisements would permit employers to recruit labor more
                quickly and reliably than print newspaper advertisements.
                 However, the Departments also received a number of comments that
                raised significant concerns with various aspects of the proposal. For
                instance, some commenters cited data indicating people in rural
                communities are less likely to have reliable high-speed internet access
                than those in urban areas, which could impede employers' ability to
                post--and U.S. workers' ability to view--electronic advertisements.
                These commenters raised concerns that workers in particular demographic
                groups, such as lower income workers or workers with low levels of
                education, are less likely to use the internet to search for job
                opportunities. 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 Departments continue 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 Departments have decided to rescind, rather than revise,
                the advertising requirement in 20 CFR 655.42. Instead, the Departments
                have decided that DOL will carry out the electronic advertising itself
                by posting H-2B job opportunities on SeasonalJobs.dol.gov, an improved
                and expanded version of the electronic job registry that DOL is
                required to maintain under its existing regulations. See 20 CFR 655.34.
                To accomplish this, in addition to placing copies of all approved H-2B
                job orders on its publicly accessible electronic job registry, 20 CFR
                655.34, DOL will continue to enhance the functional capabilities of the
                registry so that it also serves as a job search website that broadly
                advertises and disseminates H-2B job opportunities to U.S. workers. As
                discussed in detail below, the Departments believe this approach
                strikes an appropriate balance between addressing the concerns that
                stakeholders have raised with the proposed electronic advertising
                requirement and realizing the Departments' goal of modernizing and
                improving the labor market test conducted in connection with an H-2B
                application.
                 Having DOL facilitate the electronic advertising of H-2B 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 DOL will be
                placing advertisements on SeasonalJobs.dol.gov on behalf of all
                employers using the information that employers provide to DOL in their
                H-2B applications. U.S. workers interested in a particular job
                opportunity can apply by directly contacting the employer, using the
                contact information--regardless of whether that is an email or physical
                address--that the employer provided to DOL. 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-2B employers--who historically have been the
                parties tasked with placing advertisements--by effectively transferring
                the responsibility (and cost) for this activity from prospective H-2B
                employers to DOL. Finally, and most importantly, it strengthens the
                integrity and efficiency of the labor market test that is conducted in
                connection with an H-2B application by leveraging the latest job search
                technologies to more broadly disseminate information about H-2B job
                opportunities through a centralized website. The enhancements that DOL
                is making to its electronic H-2B job registry, as well as each of these
                salutary effects, are discussed in further detail below.
                (a) DOL Will Improve and Expand Its Electronic H-2B Job Registry
                Instead of Creating a Separate DOL-Assisted Advertising Platform
                 As previously mentioned, after considering the comments received in
                response to the NPRM, the Departments have decided that the best
                approach is for DOL to assume the responsibility for posting an
                electronic advertisement through its own website. Accordingly, this
                final rule provides notice that DOL intends to continue to improve and
                enhance the electronic job registry that it maintains under its
                existing regulations. See 20 CFR 655.34 (generally requiring the CO to
                place a copy of an employer's job order on an electronic job registry
                once the employer's H-2B application has been accepted for processing,
                and generally requiring that this job order remain posted on the
                electronic job registry until 21 calendar days before the certified
                start date of work).
                [[Page 62438]]
                 DOL initially implemented the job registry to accommodate the
                posting of H-2A job orders for two reasons. See 75 FR 6884, 6927 (Feb.
                12, 2010) (2010 H-2A Final Rule). 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 employers could more easily identify available job
                opportunities. DOL later expanded use of the job registry to include H-
                2B job orders to disseminate temporary nonagricultural job
                opportunities to the widest audience possible. See 80 FR at 24074. DOL
                has used the same technology platform to host its electronic job
                registry--the iCERT Visa Portal System (iCERT System)--since July 2010,
                shortly after Sec. 655.144 as promulgated in its 2010 H-2A Final Rule
                went into effect.
                 Under the current H-2B program, 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 21 calendar days before the certified start date of work.
                See 20 CFR 655.40(c). 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-2B
                job orders using several common data points--including the H-2B
                application number, employer name, area of intended employment, work
                contract period, and job title. Stakeholder feedback suggests that many
                stakeholders value the transparency of a publicly available job
                registry and consistently use the current job registry to locate H-2B
                job orders.
                 Currently, however, the technology supporting the 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-2B job orders. It also serves as a static repository of H-2B 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 increases the risk of error, incomplete information, and delays
                in posting, especially during the winter months when employers are
                filing large numbers of applications for the upcoming spring and summer
                seasons.
                 To address these limitations and expand U.S. worker awareness and
                access to temporary and seasonal job opportunities, DOL 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.\10\
                SeasonalJobs.dol.gov is a mobile-friendly website that leverages the
                latest technologies to automate the electronic advertising of H-2B job
                opportunities and ensures copies of H-2B job orders are promptly
                available for public examination.
                ---------------------------------------------------------------------------
                 \10\ DOL 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-2B application for further processing, DOL
                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 DOL on its H-2B application and job order.
                While currently functional, DOL continues to enhance the functionality
                of SeasonalJobs.dol.gov to make information about H-2B 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. Users will be able to create and save customizable job
                search profiles and request email notifications informing them when DOL
                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 DOL identify
                how many users are searching for work in certain areas of the country
                and more effectively steer H-2B job opportunities to groups of job
                seekers located in certain regional areas and/or seeking different
                types of temporary nonagricultural work.
                 In addition, SeasonalJobs.dol.gov will make information about H-2B
                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-2B 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-2B
                job opportunities currently advertised on SeasonalJobs.dol.gov, and DOL
                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, DOL will be further enhancing the
                RSS feed capability to allow interested U.S. workers and stakeholders
                to tailor notifications of relevant job opportunities.
                 The Departments believe that the enhancements DOL 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
                Departments received from commenters who urged DOL 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 these comments
                expressed support for a DOL-administered-advertising platform, 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. A labor union commenting on the proposal urged DOL
                to ensure that the platform would be compatible with smart phone
                technology, and that the platform provide notice of job opportunities
                to unions and worker advocacy organizations. It also urged the
                Departments to permit those organizations time to review the
                advertisements and provide input to DOL regarding the appropriateness
                of the occupational classification and designated prevailing wage. In
                contrast, one commenter believed it would be unnecessary for DOL to
                create a new or updated platform because it could use commercial
                applicant tracking systems
                [[Page 62439]]
                that post advertisements to all of the major online job boards and
                permit applicants to complete applications at any time from any device.
                 The Departments have considered these comments, and while the
                Departments have decided not to go forward with the DOL-assisted
                advertising platform that was proposed in the NPRM, they anticipate
                that stakeholders will be pleased with the improvements DOL has--and
                continues--to make to the electronic job registry. DOL 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-2B program, the CO will place a
                copy of their approved H-2B job order on an electronic job registry. As
                explained above, DOL created this job registry to promote greater
                public awareness of and access to H-2A and H-2B job opportunities. The
                enhancements DOL has made and continues to make to
                SeasonalJobs.dol.gov, including the capability for third-party websites
                to extract H-2B job opportunities for broader advertising, are designed
                to further this goal and increase the likelihood that U.S. workers
                interested in temporary nonagricultural opportunities, as well as
                intermediaries providing services to those workers, receive timely
                notice of H-2B job opportunities.
                 Because the Departments are not implementing a separate DOL-
                assisted advertising platform, but rather enhancing the electronic job
                registry that DOL is currently required to maintain, the Departments
                have decided that U.S. workers will be best served if DOL implements
                these enhancements as soon as practicable. Nevertheless, the
                Departments value all suggestions and ideas to improve the
                functionality of SeasonalJobs.dol.gov and invites public input on
                changes that DOL can make to attract U.S. workers who are likely to
                apply for seasonal or temporary nonagricultural jobs. To facilitate
                public input, DOL has made the site easily accessible and included a
                specific function to collect stakeholder feedback and questions. DOL
                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 Departments have also considered issues that several commenters
                raised regarding technical difficulties with DOL's existing job
                registry and the iCERT System, and agree that it is critical for
                SeasonalJobs.dol.gov to function effectively and reliably. Although
                this is a goal of the Departments independent of public comments in
                response to the NPRM, the above-referenced steps that DOL is taking to
                meet this goal should address and allay the concerns of the stakeholder
                community.
                (b) Posting H-2B Job Opportunities on SeasonalJobs.dol.gov Will Reduce
                Regulatory Burden and Address Concerns About the Proposed Criteria for
                Employer-Posted Electronic Advertisements
                 The Departments 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 Departments' proposal to
                transition to electronic advertising, but a number of commenters urged
                the Departments to modify the proposal in various ways. For example,
                several commenters expressed concern that the proposed rule did not
                accommodate employers who had limited or no access to the internet, and
                they urged the Departments to provide employers the option of posting
                an electronic advertisement or print newspaper advertisements.
                 The Departments also received many comments suggesting that the
                standard they 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. One commenter explained
                that the approach announced in the NPRM was ``unworkable and
                unpredictable,'' given the sheer number of websites that would qualify
                under the proposed standard. These commenters expressed varying
                opinions about the types of websites they believed should qualify and,
                for differing reasons, urged the Departments to further clarify,
                define, or list the websites where it would be appropriate for an
                employer to advertise an H-2B job opportunity. For example, several
                commenters suggested the Departments should require advertising on
                specific websites, including social media websites, state and county
                employment websites, and the National Labor Exchange, an online
                advertising platform operated by SWAs in partnership with operators of
                private online job boards.
                 Other commenters, 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 Departments also received comments from stakeholders on whether
                the final rule should exclude advertisements placed on websites
                operated by employers or the employer-client of a job contractor. An
                association of attorneys and legal professionals, as well as several
                labor unions, asserted that placement of advertisements on websites
                operated by employers is insufficient to satisfy an employer's
                recruitment obligations. One commenter expressed concern that such
                advertising would require potential applicants to know that a specific
                employer is seeking to hire H-2B workers and permit unscrupulous
                employers to ``hide'' advertisements. A few of these commenters
                believed that employers should be required to post job advertisements
                on their websites as a supplement to advertisements on other websites,
                but did not believe advertising on these websites alone would be
                effective. In contrast, a commenter representing an employer
                association believed advertising on employer websites would be
                effective because these websites would be appropriate to both the
                industry and location of the job opportunity.
                 In addition, some commenters sought clarification on the
                documentation that an employer would be required to retain under the
                proposed recordkeeping requirements. For example, one commenter
                expressed concern that the proposed rule did not clearly articulate
                what documentation an employer must retain. Another commenter suggested
                it would be overly burdensome to print and retain screen shots
                documenting compliance with this rule and suggested an employer's
                attestation should be sufficient to verify compliance. A labor union
                urged the Departments to require employers to include in their
                recruitment reports both the advertisements and the documentation of
                advertising. Another commenter believed the proposed screenshot
                documentation method was outdated, but did not suggest an alternative.
                Finally, commenters associated with the
                [[Page 62440]]
                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.
                 The issues that these commenters raised have persuaded the
                Departments that it would be unduly difficult at this time 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. In addition, it is
                unnecessary to impose such requirements upon employers, when DOL has
                the capacity to produce similar benefits through its own website.
                Accordingly, as explained above, the Departments have decided not to
                adopt their proposal to require that an employer post an electronic
                advertisement. Instead, DOL 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 Departments 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 DOL posts on
                SeasonalJobs.dol.gov will not create any additional regulatory burden
                for an employer because the employer will have already provided DOL
                with information about its job opportunity on its job order and H-2B
                application, which DOL 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-
                2B 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.
                 Finally, the Departments believe this approach leaves unscrupulous
                employers no leeway to ``hide'' their job opportunities on websites
                that they suspect are unlikely to attract qualified and available U.S.
                workers. SeasonalJobs.dol.gov will offer U.S. workers a free, publicly
                accessible, and easy-to-use job search platform that identifies all job
                opportunities for which employers are seeking to hire H-2B workers.
                 Thus, the Departments' revisions to the labor market test in this
                final rule seeks to reduce the burden of applying for an H-2B labor
                certification, while simultaneously broadening the dissemination of all
                H-2B job opportunities in a more uniform format through a modernized
                technology platform.
                (c) The Advertisements That DOL Places on SeasonalJobs.dol.gov Will
                Improve the Information That U.S. workers Receive About H-2B Job
                Opportunities
                 The Departments also received several comments questioning whether
                U.S. workers would be able--or likely--to access the electronic
                advertisements required under the proposed rule. In addition to
                concerns over issues of internet accessibility, explained elsewhere,
                commenters expressed concerns that U.S. workers would encounter
                difficulty determining where to look for information about potential
                job opportunities. A labor union, for example, stated that it would be
                difficult for job seekers to know where to look for advertisements
                because a vast number of websites might be appropriate under the
                criteria proposed in the NPRM. As explained below, the Departments'
                decision for DOL to assume control over the posting of the electronic
                advertisement not only reduces the burden of applying for an H-2B labor
                certification, but also improves worker access to information about H-
                2B job opportunities.
                 First, it ensures that all H-2B 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-2B job
                opportunities if employers were not posting advertisements in
                consistent locations or that unscrupulous employers could intentionally
                post advertisements on websites that are unlikely to yield applications
                from able, willing, and qualified U.S. workers.
                 Second, DOL can assure broader dissemination of H-2B 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 Departments'
                approach, it is DOL (and not the employer) who will ensure compliance
                with these requirements. DOL 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 DOL 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
                DOL to create a single website design that can reach users across a
                wide array of computing devices. DOL continuously tests the site's
                mobile device compatibility using a series of emulation tools and a
                wide array of actual mobile devices.
                 Third, DOL will be able to improve the presentation of H-2B job
                opportunities to U.S. workers. While the Departments continue to
                believe that U.S. workers should have access to all of the information
                that is currently required by 20 CFR 655.41, they also understand that,
                in some situations, a concise summary of the job opportunity may be
                more attractive to U.S. workers, at least as a starting point.
                Accordingly, the advertisements that DOL places on SeasonalJobs.dol.gov
                provide a concise summary of the job opportunity, highlighting select
                information about an employer's job opportunity and including 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. Additionally, DOL intends to upgrade
                SeasonalJobs.dol.gov to allow users to create and manage customizable
                notifications for the H-2B job opportunities. Specifically, as noted
                above, DOL plans to enhance the site's current RSS feed capability,
                which includes a basic function that alerts users when DOL 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 temporary or seasonal
                [[Page 62441]]
                work and/or in predetermined 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, DOL will be able 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 Departments
                recognize 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 language 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. DOL 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-2B job
                opportunities presented on the site. The Departments understand the
                challenges (e.g., numerous language dialects, accurately applying
                grammatical rules) associated with language translation tools and
                services, but believe 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. DOL
                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 Departments acknowledge that some U.S. workers may
                lack reliable access to the internet and agree that no single
                recruitment method will reach all job seekers. The Departments likewise
                do not dispute that other methods of recruitment may be effective in
                limited circumstances. Nevertheless, the Departments' 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-2B application. The existing labor market test additionally
                includes the intrastate and interstate clearance process administered
                by the SWA, see 20 CFR 655.16(c), the requirement for an employer to
                contact former U.S. employees, see 20 CFR 655.43, the requirement to
                post notice of the job opportunity at the worksite, and, in certain
                circumstances, provide written notice of the job opportunity to a
                community-based organization, see 20 CFR 655.45.
                 The Departments believe that the enhancements DOL has and continues
                to make to the electronic job registry will improve the existing labor
                market test by increasing awareness of H-2B 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 retains the option for DOL to require additional recruitment where
                the CO has determined that there is a likelihood there are qualified
                U.S. workers who will be available for the work, including where the
                job opportunity is located in an Area of Substantial Unemployment. See
                20 CFR 655.46. Accordingly, even if certain U.S. workers interested in
                temporary nonagricultural jobs 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.
                C. The Departments Are Retaining the Options To Require Additional
                Employer-Conducted Recruitment Under Sec. 655.46.
                 In developing this final rule, the Departments have given careful
                consideration to the responses they received in response to their
                request for comments regarding whether there are alternative methods of
                recruitment that would more broadly and effectively disseminate
                information about available job opportunities to U.S. workers. A number
                of commenters suggested other methods of recruitment, such as placing
                advertisements on radio stations, making use of 24/7 job hotlines, and
                placing advertisements in community-based or other publications that
                target populations who may be interested in temporary or seasonal work.
                 Two commenters representing worker advocacy organizations also
                urged the Departments to require more dissemination of H-2B job
                opportunities to unemployed U.S. workers through DOL-funded grantees
                under the Workforce Innovation and Opportunity Act and expand union
                notification requirements to those unions representing workers in the
                job opportunity on a nationwide scale. These commenters also
                recommended that the Departments expand the recruitment activities of
                the SWAs to ensure job seekers, particularly those who lack adequate
                access to the internet, are made aware of H-2B job opportunities.
                Specifically, one of these commenters suggested the Departments require
                the SWAs to consult with worker advocacy organizations to develop
                annual plans for recruiting U.S. workers on a nationwide scale
                targeting specific groups of unemployed U.S. workers using a variety of
                advertising methods.
                 Some commenters were not opposed to the idea of internet
                advertising, but suggested strengthening the requirements in the rule,
                maintaining that a single advertisement would not account for the broad
                range of positions and geographic areas where H-2B workers are
                employed. They urged the Departments to require employers to further
                tailor their recruitment. One commenter asserted that modern-day
                recruitment of hourly workers demanded a targeted marketing strategy
                such as a 24/7 job hotline and applicant tracking system. Another
                argued for leaving the specific methods of recruitment to the SWAs, who
                could develop recruitment plans suited to the needs of each locality.
                Another thought it ``critically important'' that the CO maintain
                flexibility to require additional advertising in certain circumstances.
                This commenter also recommended that, in addition to any electronic
                means for applying to jobs, there should also be a variety of non-
                electronic means, to account for the possibility that a U.S. worker
                will have limited or only short-term access to the internet.
                 The Departments appreciate the ideas and suggestions that they
                received on alternative forms of recruitment. DOL 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 or using commercial recruitment services--are challenging
                to regulate and monitor. Because the Departments do not currently have
                sufficient information regarding the efficacy of these proposals in
                recruiting U.S. workers for temporary nonagricultural employment, the
                Departments have decided that a generally applicable requirement for
                every employer to use these methods is unwarranted at this time.
                However, to the extent that DOL receives information indicating that
                one or more
                [[Page 62442]]
                of these methods are effective in a particular area or among specific
                groups of U.S. workers, the CO retains the authority under 20 CFR
                655.46 to order an employer to use that method to recruit U.S. workers.
                 The Departments continue to believe that this provision provides
                sufficient flexibility to design recruitment procedures--and the
                appropriate means of recruitment in those areas--on a case-by-case
                basis taking into account the occupation and current labor market
                conditions. This provision 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. The Departments' intention in requiring additional
                recruitment under this provision, including in areas of substantial
                unemployment (ASU), is predicated on the belief that more recruitment
                will result in more opportunities for U.S. workers. ASUs by their
                nature have a higher likelihood of worker availability; DOL's
                recognition of worker availability in these areas is a strong indicator
                that these open job opportunities may have more receptive potential
                populations.
                 Under 20 CFR 655.46 the CO has discretion to evaluate, on a case-
                by-case basis, the appropriate locations and methods of recruiting
                where there may be qualified U.S. workers available for job
                opportunities. The types of additional recruitment the CO may require
                the employer to conduct include print advertising, advertising on the
                employer's or another website, and contacting community and faith-based
                organizations. Title 20 CFR 655.46 does not afford the CO unlimited
                discretion; rather, it authorizes the CO to order only the recruitment
                necessary to ensure an adequate test of the labor market for the
                employer's job opportunity.
                 In determining whether and what additional recruitment is required
                for a position, the CO will continue to consider, among other
                information, information that DOL obtains from SWAs who are familiar
                with current labor market conditions and positioned to provide advice
                about the effective methods of recruiting U.S. workers for the job
                opportunity. The Departments acknowledge the comments they 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 information DOL receives from SWAs,
                the CO may determine that a particular method of advertising (e.g., a
                community-based newspaper) covering a regional area may be effective in
                recruiting U.S. workers for a particular position, in a specific
                location, during certain periods of the year, or in response to local
                or regional events like natural disasters, layoffs, and plant closures.
                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.
                D. Other Technical Amendments Related to the Final Rule
                 This final rule also makes technical amendments to several
                regulatory provisions to ensure they conform with the substantive
                changes to the recruitment process discussed above. First, the rule
                amends 20 CFR 655.19(e)(1), 655.40(b), and 655.41(a) by replacing
                references to 20 CFR 655.42 with references to 20 CFR 655.43 to reflect
                the Departments' decision to eliminate the requirement for all
                employers to place print newspaper advertisements. For the same
                purpose, the final rule amends 20 CFR 655.56 by eliminating paragraph
                (c)(2)(ii), which references 20 CFR 655.42, and redesignating
                paragraphs (c)(2)(iii), (iv), and (v) as paragraphs (c)(2)(ii), (iii),
                and (iv), respectively. The final rule also amends 20 CFR 655.71 by
                removing the reference to ``newspapers and other publications'' to
                clarify that the CO has the discretion to order advertising in sources
                like newspapers and other publications, but 20 CFR 655.71(c) does not
                require the CO to order advertising in these sources.
                 Finally, the final rule also makes a minor technical revision to
                WHD regulations at 29 CFR part 503 to ensure they conform with the
                substantive changes to the recruitment process discussed above.
                Specifically, the final rule eliminates 29 CFR 503.17(c)(2)(ii), which
                includes reference to 20 CFR 655.41 and 655.42, and redesignates
                paragraphs (c)(2)(iii), (iv), and (v) as (c)(2)(ii), (iii), and (iv),
                respectively.
                E. Out of Scope Comments on the Proposed Rule
                 The Departments received comments on several issues that were
                unrelated to their proposal to modernize the recruitment that an
                employer must conduct under the regulations by replacing print
                newspaper advertisements with electronic advertisements posted on the
                internet. The Departments recognize and appreciate the value of these
                comments and suggestions. However, they are outside the scope of this
                rulemaking and the Departments cannot adopt them without additional
                regulatory--and in some cases Congressional--action.
                II. 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. See 58 FR 51735 (Oct.
                4, 1993). 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-2B employers associated with the rule are larger than
                the costs.
                [[Page 62443]]
                The estimated cost savings associated with this regulatory action are
                derived from the rescission of Sec. 655.42 to remove the newspaper
                advertising requirement, and the revision of Sec. 655.56 to eliminate
                document retention requirements associated with print newspaper
                advertisements.
                1. Discussion of Comments
                 In response to the NPRM, which instituted an online advertising
                requirement in place of the current print advertising requirement, some
                commenters took issue with the Departments' assumption that the cost
                savings of the proposed rule outweighed its costs. One commenter stated
                that the analysis did not attempt to estimate what burdens the proposed
                rule or any alternative rules considered would impose on U.S. workers,
                relative to the current rule, in terms of their ability to search for
                and locate available jobs. Another commenter suggested that the
                Departments' 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 same commenter believed the
                proposed rule's use of advertising rates for the largest newspapers in
                the five states with the most H-2B temporary labor certifications
                inflated the NPRM's estimated costs. The commenter stated that the
                proposed rule's analysis did not specify the criteria used for
                developing the cost estimates and was not representative of the smaller
                newspapers employers may use to meet print advertising requirements,
                noting that print advertising costs vary based on a number of factors
                (e.g., advertisement size, number of lines, and geographic location).
                Additionally, the commenter asserted that the analysis inflated cost
                estimates because it failed to account for the fact that the
                advertising fee charged by many newspapers includes both digital and
                print advertising. Finally, the commenter asserted the analysis failed
                to account for the costs of compliance with the proposed rule for
                employers and the costs associated with DOL enforcement of the rule.
                 The proposed rule based the cost estimates for two newspaper
                advertisements on advertising costs from newspapers with the widest
                circulation in the five states where H-2B 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-2B prevalent states. The estimate of $1,606.16
                represents, on average, a reasonable estimate of cost savings of
                removing print newspaper requirements. As for the costs associated with
                online job posting, the Departments agree with the commenter's concern
                that DOL may have underestimated the cost of online advertising. As
                explained elsewhere in this preamble, the Departments have concluded
                that, to reduce this cost and burden, expand the reach of each ad, and
                leverage DOL's existing technology and infrastructure, it is
                appropriate for DOL rather than employers to place H-2B 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 DOL has and continues to make
                to SeasonalJobs.dol.gov are designed to further the Departments' goal
                to promote greater public awareness of and access to H-2B job
                opportunities in order to increase the likelihood that U.S. workers
                interested in nonagricultural opportunities, as well as intermediaries
                providing services to those workers, receive timely notice of H-2B 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-2B program and outweighed by the
                Departments' statutory obligation to ensure that able, willing, and
                qualified U.S. workers are not available. As explained above, DOL has
                also estimated the cost savings from eliminating the document retention
                requirement. In terms of cost impacts on job seekers, the costs of
                searching and applying for a job electronically are less than the cost
                associated with searching and applying for a job through a newspaper
                recruitment advertisement.\11\
                ---------------------------------------------------------------------------
                 \11\ The Departments acknowledge that some job seekers may not
                have access to the internet. For this group of job seekers, it may
                not necessarily be less costly to search and apply for a job online.
                However, the Departments believe that the number of job seekers
                without internet access is a small portion of the population.
                ---------------------------------------------------------------------------
                 Four commenters asserted that the analysis did not consider the
                effect the rule would have on the newspaper industry, though three of
                these commenters acknowledged that the proposed rule estimated that
                lost revenue would equal $9.45 million. 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.\12\
                ---------------------------------------------------------------------------
                 \12\ The total estimated advertising revenue for the newspaper
                industry in 2018 was $14.3 billion (https://www.journalism.org/fact-sheet/ newspapers/).
                ---------------------------------------------------------------------------
                2. Subject-by-Subject Analysis
                 The Departments' analysis below considers the expected impacts of
                the following aspects of the final rule against the baseline (i.e., the
                2015 Interim Final Rule (80 FR 24042 (Apr. 29, 2015)): (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.
                (a) Eliminating the Use of Print Newspaper Advertisements
                 This final rule modernizes H-2B recruitment by rescinding the
                regulation at 20 CFR 655.42 imposing the requirement for print
                newspaper advertisements, and amending the regulation at 20 CFR
                655.41(a) to delete reference to the content of print advertisements.
                In conjunction with this rule, DOL 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 Departments multiplied the average number of H-2B
                labor certifications issued each fiscal year by the average cost to an
                employer of placing a print advertisement. First, the Departments used
                program data for FYs 2015-2017 to estimate that DOL approves, on
                average, 5,879 H-2B labor certifications each fiscal year.\13\ To
                estimate the average cost of a print ad, the Departments identified the
                top five states where prospective H-2B employers received temporary
                labor certifications,\14\ and researched the cost of placing a
                newspaper advertisement in the most populous city in each of these
                states (for several newspapers, including large and local papers), for
                advertisements satisfying the content requirements set forth in Sec.
                655.41. Based
                [[Page 62444]]
                on this data, the Departments estimated that, on average, it costs an
                employer $803.08 to place a single advertisement (one day) complying
                with Sec. 655.41's content requirements.
                ---------------------------------------------------------------------------
                 \13\ The average is based on 5,106 H-2B certifications in FY
                2015; 5,933 certifications in FY 2016; and 6,599 certifications in
                FY 2017. See https://www.foreignlaborcert.doleta.gov/performancedata.cfm.
                 \14\ The top five states where employers seek to place H-2B
                workers are Colorado, Florida, Louisiana, Texas, and Virginia.
                ---------------------------------------------------------------------------
                 Thus, placing the advertisement on two separate days, as required
                by Sec. 655.42, costs an employer, on average, twice as much, or
                $1,606 ($803 for each advertisement).
                 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 Sec.
                655.42 currently requires that one of the advertising days be a Sunday,
                the Departments did not identify a significant difference in cost
                between advertisements placed on Sundays and weekdays. Therefore, the
                Departments 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 Departments multiplied the
                estimated annual number of H-2B temporary labor certifications (5,879)
                by the average newspaper advertising cost of $1,606. This yielded
                annual cost savings of $9.44 million. The annualized cost savings over
                the 10-year period is $9.44 at both discount rates of 3 and 7 percent.
                The Departments believe that the cost to DOL of upgrading its database
                and posting an employer's job opportunity on its website would be de
                minimis on an annual basis.
                (b) Eliminating Document Retention Requirements
                 The final rule amends Sec. 655.56 to eliminate the document
                retention requirement at Sec. 655.56(c)(2)(ii) associated with print
                newspaper advertisements. To estimate the cost savings from this
                revision, the Departments calculated the average cost for each employer
                to retain print advertisements records for each H-2B certification. To
                do so, the Departments multiplied each employer's per-certification
                staff time by its per-certification staff cost. The Departments
                estimate that it takes a human resources (HR) specialist, on average,
                two minutes to store (print and file) proof of print advertisement. The
                Departments used the median hourly wage rate of an HR specialist at a
                nonagricultural business ($31.84) \15\ then adjusted the base wage rate
                using a loaded wage factor (1.63) \16\ to account for fringe benefits
                and overhead. The Departments 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 Departments estimate that DOL
                issues, on average, 5,879 H-2B labor certifications each fiscal year.
                By multiplying the estimated annual number of certifications by the
                cost per certification ($1.73), the Departments estimated an annual
                cost savings of $10,171. The annualized cost savings over the 10-year
                period is $10,171 at both discounts rates of 3 percent and 7 percent.
                ---------------------------------------------------------------------------
                 \15\ Wage derived from Bureau of Labor Statistics median hourly
                wage for HR Specialists (occupational code 13-1071), May 2017.
                 \16\ 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-2B workers will need time to learn about the new
                requirements. The Departments assume that many employers participating
                in the H-2B program will learn about the requirements of the new rule
                from an industry newsletter or bulletin. The Departments estimate that
                an employer will require approximately 10 minutes to understand the
                rule change, as this final rule addresses only the job-advertising and
                document retention requirements for employers seeking H-2B workers, and
                eliminates those requirements without replacing them with new ones.
                 The requirement to review and understand the rule represents a cost
                to employers participating in the H-2B program only in the first year
                of the rule. The Departments estimate 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 Departments estimated a wage
                rate by multiplying the median hourly wage of an HR specialist at a
                nonagricultural business ($31.84) by the loaded wage rate (1.63) to
                account for fringe benefits and overhead. The Departments then
                multiplied the resulting wage rate by the required staff time (10
                minutes), which yielded a cost of $8.65 per employer. The Departments
                estimated the total cost of reading and reviewing the rule by
                multiplying $8.64 by the average annual number of employers
                participating in the H-2B program over FY 2015-2017 (5,326).\17\ This
                calculation results in a cost of $46,069 in the first year the rule is
                in effect. The annualized cost over the 10-year period is $5,243 and
                $6,130 at the discount rates of 3 percent and 7 percent, respectively.
                ---------------------------------------------------------------------------
                 \17\ The average is based on 4,764 unique H-2B employer
                applicants in FY 2015; 5,296 employers in FY 2016; and 5,917
                employers in FY 2017.
                ---------------------------------------------------------------------------
                3. Summary of Impacts
                 The Departments estimate the total first-year cost of the final
                rule to be $46,069. This cost results from the time required to read
                and review the final rule for the average annual number of unique H-2B
                employer applicants (based on FY 2015-2017 data). The Departments
                estimate total first-year cost savings of $9.45 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 $9.41 million.
                 Generally, annual cost savings are expected to be $9.45 million in
                every year following the first. The 10-year discounted net cost savings
                of the rule range from $80.59 million to $66.35 million (with 3 percent
                and 7 percent discount rates, respectively). The annualized net cost
                savings of the final rule is $9.45 at both the 3 percent and 7 percent
                discount rates. When the Departments use a perpetual time horizon to
                allow for cost comparisons under E.O. 13771, the annualized cost
                savings of this final rule are $7.57 million at a discount rate of 7
                percent.
                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 direct effects \18\ 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.
                ---------------------------------------------------------------------------
                 \18\ Because this rule does not directly regulate newspapers,
                the rule's potential effects on newspaper revenue are outside the
                scope of this specific analysis. The Departments note, however, that
                these effects are discussed above.
                ---------------------------------------------------------------------------
                 This final rule may impact small businesses that request H-2B
                temporary labor certification. The Departments
                [[Page 62445]]
                assume that the average number of H-2B certifications requested by any
                small business per year would be one. The Departments estimate that
                small businesses would incur a one-time cost of $8.65 to familiarize
                themselves with the rule and would incur annual cost savings of $1,606
                associated with advertising online rather than in print newspapers. In
                addition, the Departments estimate that a small business would incur
                annual cost savings of $1.63 related to the elimination of the document
                retention requirement. Over a 10-year analysis period, the net
                annualized cost savings for a small business would be $1,719 at a 7-
                percent discount rate.
                 The Departments reviewed the impacts of the proposed rule for two
                North American Industry Classification System (NAICS) Codes that
                frequently request H-2B certification: NAICS 561730: Landscaping
                Services, and NAICS 721110: Hotels (except Casino Hotels) and Motels.
                The Small Business Administration estimates that revenue for a small
                business with NAICS Code 561730 is $7.5 million and for NAICS Code
                721110 is $32.5 million.\19\ The impact of the final rule would be less
                than 1 percent of annual revenue for the smallest businesses in these
                industries with an employment size fewer than five ($197,491 for NAICS
                561730 and $321,239 for NAICS 721110).\20\ Based on this determination,
                the Departments certify that this final rule will not have a
                significant economic impact on a substantial number of small entities.
                ---------------------------------------------------------------------------
                 \19\ U.S. Small Business Administration (2017), Table of Small
                Business Size Standards Matched to North American Industry
                Classification System Codes, retried from: https://www.naics.com/wp-content/uploads/2017/10/SBA_Size_Standards_Table.pdf.
                 \20\ U.S. Census, 2012 SUSB Annual Data Tables by Establishment
                Industry, https://www.census.gov/data/tables/2012/econ/susb/2012-susb-annual.html.
                ---------------------------------------------------------------------------
                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) contained in this final rule to OMB and obtained approval
                using emergency clearance procedures outlined at 5 CFR 1320.13.
                 This final rule modernizes and improves the labor market test that
                DOL uses to assess whether 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; and (2) expanding and enhancing the Department's
                electronic job registry. More specifically, this final rule eliminates
                the general requirement for a prospective H-2B 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 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. Rather, as explained in detail in this
                final rule, DOL will advertise the employer's job opportunity on the
                employer's behalf on SeasonalJobs.dol.gov, an expanded and improved
                version of DOL's existing H-2B job registry website.
                 During the NPRM stage of this rule, DOL requested the creation of a
                new OMB Control Number 1205-0534 to account for the time burden and
                cost associated with the online recruitment process. However, upon
                further consideration and in light of the revised requirements in the
                final rule, it is appropriate, instead, to revise the existing OMB
                Control Number 1205-0509 to account for the burden and costs associated
                with requiring online ads only, and for the transfer of this burden
                from employers to DOL. DOL is seeking OMB's approval under PRA
                emergency procedures to revise 1205-0509 to accommodate this change.
                 The information collection requirements associated with OMB Control
                Number 1205-0509, are revised under this final rule as follows. This
                burden breakdown only reflects the updated burden with regard to the
                advertisement requirement:
                 Agency: DOL-ETA.
                 Type of Information Collection: Currently approved.
                 Title of the Collection: Advertising Requirements for Employers
                Seeking to Employ H-2B Nonimmigrant Workers.
                 Agency Form Number: ETA 9142B, instructions and accompanying
                appendixes.
                 Affected Public: Private Sector--businesses or other for-profits.
                 Total Estimated Number of Respondents: 5,879.
                 Average Responses per Year per Respondent: 2.
                 Total Estimated Number of Responses: 11,758.
                 Average Time per Response: 7 minutes per application.
                 Total Estimated Annual Time Burden: 0 hours. (Employers will not be
                burdened with the advertisement requirements.)
                 Total Estimated Other Costs Burden: $0
                D. Unfunded Mandates Reform Act of 1995
                 The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
                other things, to curb the practice of imposing unfunded Federal
                mandates on State, local, and tribal governments. Title II of the Act
                requires each Federal agency to prepare a written statement assessing
                the effects of any Federal mandate in a proposed or final agency rule
                that may result in $100 million or more expenditure (adjusted annually
                for inflation) in any one year by State, local, and tribal governments,
                in the aggregate, or by the private sector.
                 This 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 Departments have not prepared a
                statement under the Act.
                E. Small Business Regulatory Enforcement Fairness Act of 1996
                 This final rule would not be a major rule as defined by section 804
                of the Small Business Regulatory Enforcement Act of 1996, Public Law
                104-121, 804, 110 Stat. 847, 872 (1996), 5 U.S.C. 804(2). The Office of
                Information and Regulatory Affairs has found that this final rule is
                not likely to result in an annual effect on the economy of $100 million
                or more; a major increase in costs or prices; or significant adverse
                effects on competition, employment, investment, productivity,
                innovation, or on the ability of United States-based companies to
                compete with foreign-based companies in domestic or export markets.
                F. Executive Order 13132: Federalism
                 This final rule does not have federalism implications because it
                would not have substantial direct effects on the States, on the
                relationship between the national government and the States, or on the
                distribution of power and responsibilities among the various levels of
                government.
                [[Page 62446]]
                Accordingly, Executive Order 13132, Federalism, requires no further
                agency action or analysis.
                G. Executive Order 13175, Indian Tribal Governments
                 This final rule does not have ``tribal implications'' because it
                would not have substantial direct effects on one or more Indian tribes,
                on the relationship between the Federal government and Indian tribes,
                or on the distribution of power and responsibilities between the
                Federal government and Indian tribes. Accordingly, Executive Order
                13175, Consultation and Coordination with Indian Tribal Governments,
                requires no further agency action or analysis.
                H. The Treasury and General Government Appropriations Act of 1999:
                Assessment of Federal Regulations and Policies on Families
                 This final rule would have no effect on family well-being or
                stability, marital commitment, parental rights or authority, or income
                or poverty of families and children. Accordingly, section 654 of the
                Treasury and General Government Appropriations Act of 1999 (5 U.S.C.
                601 note) requires no further agency action, analysis, or assessment.
                I. Executive Order 13045: Protection of Children From Environmental
                Health Risks and Safety Risks
                 This final rule would have no adverse impact on children.
                Accordingly, Executive Order 13045, Protection of Children from
                Environmental Health Risks and Safety Risks, as amended by Executive
                Orders 13229 and 13296, requires no further agency action or analysis.
                J. Environmental Impact Assessment
                 This final rule is one of a category of actions that do not
                individually or cumulatively have a significant effect on the human
                environment. This final rule 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 has not been identified to have impacts on energy
                supply. Accordingly, Executive Order 13211 requires no further agency
                action or analysis.
                L. Executive Order 12630, Constitutionally Protected Property Rights
                 This 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 was drafted and reviewed in accordance with
                Executive Order 12988, Civil Justice Reform. It was written to provide
                a clear legal standard for affected conduct and was carefully reviewed
                to eliminate drafting errors and ambiguities, so as to minimize
                litigation and undue burden on the Federal court system. It meets the
                applicable standards provided in section 3 of Executive Order 12988.
                List of Subjects
                20 CFR Part 655
                 Administrative practice and procedure, Employment, Employment and
                training, Enforcement, Foreign workers, Forest and forest products,
                Fraud, Health professions, Immigration, Labor, Longshore and harbor
                work, Migrant workers, Nonimmigrant workers, Passports and visas,
                Penalties, Reporting and recordkeeping requirements, Unemployment,
                Wages, Working conditions.
                29 CFR Part 503
                 Administrative practice and procedure, Employment, Foreign Workers,
                Housing, Housing standards, Immigration, Labor, Nonimmigrant workers,
                Penalties, Transportation, Wages.
                 Accordingly, part 655 of title 20 and part 503 of title 29 of the
                Code of Federal Regulations are amended as follows:
                Title 20--Employees' Benefits
                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; 8 CFR
                214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218,
                132 Stat. 1547 (48 U.S.C. 1806).
                 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).
                 Subpart E issued under 48 U.S.C. 1806.
                 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. 655.19 by revising paragraph (e)(1) to read as follows:
                Sec. 655.19 Job contractor filing requirements.
                * * * * *
                 (e)(1) Either the job contractor or its employer-client may place
                the required job order and conduct recruitment as described in
                Sec. Sec. 655.16 and 655.43 through 655.46. Also, either one of the
                joint employers may assume responsibility for interviewing applicants.
                However, both of the joint employers must sign the recruitment report
                that is submitted to the NPC with the Application for Temporary
                Employment Certification, ETA Form 9142B.
                * * * * *
                0
                3. Amend Sec. 655.40 by revising paragraph (b) to read as follows:
                Sec. 655.40 Employer-conducted recruitment.
                * * * * *
                 (b) Employer-conducted recruitment period. Unless otherwise
                instructed by the CO, the employer must conduct the recruitment
                described in Sec. Sec. 655.43 through 655.46 within 14 calendar days
                from the date the Notice of Acceptance is issued. All employer-
                conducted recruitment must be completed before the employer submits the
                recruitment report as required in Sec. 655.48.
                * * * * *
                0
                4. Amend Sec. 655.41 by revising paragraph (a) to read as follows:
                Sec. 655.41 Advertising requirements.
                 (a) All recruitment conducted under Sec. Sec. 655.43 through
                655.46 must contain terms and conditions of employment that are not
                less favorable than those offered to the H-2B workers and, at a
                minimum, must comply with the assurances applicable to job orders as
                set forth in Sec. 655.18(a).
                * * * * *
                [[Page 62447]]
                Sec. 655.42 [Removed and Reserved]
                0
                5. Remove and reserve Sec. 655.42.
                Sec. 655.56 [Amended]
                0
                6. Amend Sec. 655.56 by removing paragraph (c)(2)(ii) and
                redesignating paragraphs (c)(2)(iii), (iv), and (v) as paragraphs
                (c)(2)(ii), (iii), and (iv), respectively.
                0
                7. Amend Sec. 655.71 by revising paragraph (c)(2) to read as follows:
                Sec. 655.71 CO-ordered assisted recruitment.
                * * * * *
                 (c) * * *
                 (2) Designating the sources where the employer must recruit for
                U.S. workers and directing the employer to place the advertisement(s)
                in such sources;
                * * * * *
                Title 29--Labor
                PART 503--ENFORCEMENT OF OBLIGATIONS FOR TEMPORARY NONIMMIGRANT
                NON-AGRICULTURAL WORKERS DESCRIBED IN THE IMMIGRATION AND
                NATIONALITY ACT
                0
                8. The authority citation for part 503 continues to read as follows:
                 Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(b); 8 U.S.C. 1184; 8 CFR
                214.2(h); 28 U.S.C. 2461 note (Federal Civil Penalties Inflation
                Adjustment Act of 1990); Pub. L. 114-74 at Sec. 701.2.
                Sec. 503.17 [Amended]
                0
                9. Amend Sec. 503.17 by removing paragraph (c)(2)(ii) and
                redesignating paragraphs (c)(2)(iii), (iv), and (v) as paragraphs
                (c)(2)(ii), (iii), and (iv), respectively.
                Kevin K. McAleenan,
                Acting Secretary of Homeland Security.
                Eugene Scalia,
                Secretary of Labor.
                [FR Doc. 2019-24832 Filed 11-13-19; 4:15 pm]
                 BILLING CODE P
                

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