[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.
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\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.
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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.
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\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\
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\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.
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\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.
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\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.
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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.
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\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.
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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]
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