83 FR 55977 - Modernizing Recruitment Requirements for the Temporary Employment of H-2B Foreign Workers in the United States

DEPARTMENT OF HOMELAND SECURITY
DEPARTMENT OF LABOR
Employment and Training Administration

Federal Register Volume 83, Issue 218 (November 9, 2018)

Page Range		55977-55985
FR Document		2018-24498
The Department of Homeland Security (DHS) and the Department of Labor (DOL) (collectively, the Departments), are jointly proposing regulatory revisions that would modernize the recruitment an employer seeking H-2B nonimmigrant workers must conduct when applying for a temporary labor certification. In particular, the Departments are proposing to replace the print newspaper advertisements that their regulations currently require with electronic advertisements posted on the internet, which the Departments believe will be a more effective and efficient means of disseminating information about job openings to U.S. workers. The Departments are proposing to replace, rather than supplement, the newspaper requirements because they believe that exclusive electronic advertisements posted on a website appropriate for the workers likely to apply for the job opportunity in the area of intended employment would best ensure that U.S. workers learn of job opportunities.
Federal Register, Volume 83 Issue 218 (Friday, November 9, 2018)
[Federal Register Volume 83, Number 218 (Friday, November 9, 2018)]
[Proposed Rules]
[Pages 55977-55985]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-24498]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 83, No. 218 / Friday, November 9, 2018 / 
Proposed Rules

[[Page 55977]]



DEPARTMENT OF HOMELAND SECURITY

RIN 1615-AC33

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[Docket No. ETA-2018-0003]
RIN 1205-AB91


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

AGENCY:  U.S. Citizenship and Immigration Services, Department of 
Homeland Security and Employment and Training Administration, 
Department of Labor.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security (DHS) and the Department 
of Labor (DOL) (collectively, the Departments), are jointly proposing 
regulatory revisions that would modernize the recruitment an employer 
seeking H-2B nonimmigrant workers must conduct when applying for a 
temporary labor certification. In particular, the Departments are 
proposing to replace the print newspaper advertisements that their 
regulations currently require with electronic advertisements posted on 
the internet, which the Departments believe will be a more effective 
and efficient means of disseminating information about job openings to 
U.S. workers. The Departments are proposing to replace, rather than 
supplement, the newspaper requirements because they believe that 
exclusive electronic advertisements posted on a website appropriate for 
the workers likely to apply for the job opportunity in the area of 
intended employment would best ensure that U.S. workers learn of job 
opportunities.

DATES: Comments must be submitted, in writing, on or before December 
10, 2018.

ADDRESSES: You may send comments, identified by the agencies' names and 
the DOL Docket No. ETA-2018-0003 or Regulatory Information Number (RIN) 
1205-AB91, by any of the following methods:
    Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the 
website instructions for submitting comments (under ``Help'' > ``How to 
use Regulations.gov'').
    Mail and hand delivery/courier: Submit written comments and any 
additional material to Adele Gagliardi, Administrator, Office of Policy 
Development and Research, U.S. Department of Labor, 200 Constitution 
Avenue NW, Room N-5641, Washington, DC 20210.
    Instructions: Label all submissions with ``RIN 1205-AB91.'' Please 
submit your comments by only one method. All submissions must include 
the agencies' names and the DOL RIN 1205-AB91.
    Please be advised that DOL will post all comments received that 
relate to this notice of proposed rulemaking (NPRM) on http://www.regulations.gov without making any change to the comments or 
redacting any information. The http://www.regulations.gov website is 
the Federal e-rulemaking portal, and all comments posted there are 
available and accessible to the public. Therefore, DOL recommends that 
commenters remove personal information (either about themselves or 
others) such as Social Security Numbers, personal addresses, telephone 
numbers, and email addresses included in their comments, as such 
information may become easily available to the public via the http://www.regulations.gov website. It is the responsibility of the commenter 
to safeguard personal information.
    Also, please note that, due to security concerns, postal mail 
delivery in Washington, DC may be delayed. Therefore, DOL encourages 
the public to submit comments on http://www.regulations.gov.
    Docket: To read or download comments or other material in the 
electronic docket, go to http://www.regulations.gov website (search 
using RIN 1205-AB91 or Docket No. ETA-2018-0003). DOL also will make 
all the comments it receives available for public inspection by 
appointment during normal business hours at the above address. If you 
need assistance to review the comments, DOL will provide appropriate 
aids, such as readers or print magnifiers. DOL will make copies of this 
proposed rule available, upon request, in large print and electronic 
file on computer disk. To schedule an appointment to review the 
comments and/or obtain the proposed rule in an alternative format, 
contact the Office of Policy Development and Research at (202) 693-3700 
(this is not a toll-free number). You may also contact Adele Gagliardi, 
Administrator, Office of Policy Development and Research, U.S. 
Department of Labor, 200 Constitution Avenue NW, Room N-5641, 
Washington, DC 20210.
    Comments under the Paperwork Reduction Act (PRA): In addition to 
filing comments with ETA, persons wishing to comment on the information 
collection (IC) aspects of this rule may send comments to: Office of 
Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-ETA, 
Office of Management and Budget, Room 10235, 725 17th Street NW, 
Washington, DC 20503, Fax: (202) 395-6881 (this is not a toll-free 
number), email: [email protected]. See Paperwork Reduction 
Act section of this proposal for particular areas of interest.

FOR FURTHER INFORMATION CONTACT: Regarding the Department of Labor: 
William W. Thompson, II, Administrator, Office of Foreign Labor 
Certification, Employment and Training Administration, Department of 
Labor, Box #12-200, 200 Constitution Ave. NW, Washington, DC 20210, 
telephone (202) 513-7350 (this is not a toll-free number). Regarding 
the Department of Homeland Security: Kevin J. Cummings, Chief, Business 
and Foreign Workers Division, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
20 Massachusetts Ave. NW, Suite 1100, Washington, DC 20529-2120, 
telephone (202) 272-8377 (not a toll-free call).
    Individuals with hearing or speech impairments may access the 
telephone numbers above via TTY by calling the toll-free Federal 
Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION: 

[[Page 55978]]

I. Background

A. Legal Framework

    The Immigration and Nationality Act (INA), 8 U.S.C. 1101, et seq., 
establishes the H-2B nonimmigrant classification for a nonagricultural 
temporary worker ``having a residence in a foreign country which he has 
no intention of abandoning who is coming temporarily to the United 
States to perform . . . temporary [non-agricultural] service or labor 
if unemployed persons capable of performing such service or labor 
cannot be found in this country.'' 8 U.S.C. 1101(a)(15)(H)(ii)(b).\1\ 
The Secretary of Homeland Security, in administering the H-2B program, 
may grant a petition for an otherwise eligible H-2B nonimmigrant worker 
``after consultation with appropriate agencies of the Government.'' 8 
U.S.C. 1184(c)(1). The Secretary of Homeland Security also may delegate 
to ``any employee of the United States, with the consent of the head of 
the applicable Department or other independent establishment, . . . any 
of the powers, privileges, or duties conferred or imposed'' on DHS 
under the INA. 8 U.S.C. 1103(a)(6); see also 8 CFR 2.1. DHS regulations 
provide that an H-2B petition for temporary employment in the United 
States must be accompanied by an approved temporary labor certification 
from DOL. 8 CFR 214.2(h)(6)(iii)(A) and (iv)(A). Pursuant to and in 
accordance with the above authorities, the temporary labor 
certification serves as DHS's consultation with DOL to determine the 
question of whether a qualified U.S. worker is available to fill the 
petitioning H-2B employer's job opportunity and whether a foreign 
worker's employment in the job opportunity will adversely affect the 
wages or working conditions of similarly employed U.S. workers. See 8 
CFR 214.2(h)(6)(iii)(A) and (D).
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    \1\ For ease of reference, sections of the INA are referred to 
by their corresponding section in the United States Code.
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    In order to advise DHS on the availability of U.S. workers and the 
potential for adverse effect on the wages and working conditions of 
similarly employed U.S. workers, DOL's Office of Foreign Labor 
Certification (OFLC) provides consultation to DHS through issuance of 
temporary labor certifications, in accordance with 8 U.S.C. 1103(a) and 
1184(c);). See 8 CFR 214.2(h)(6)(iii)(A) and (D). The Departments have 
jointly issued regulations that govern the standards and procedures 
applicable to OFLC's issuance of temporary labor certifications under 
the H-2B program. See 20 CFR 655 subpart A. The regulations at 20 CFR 
655 subpart A require employers seeking H-2B temporary labor 
certification to, among other things, actively recruit for U.S. workers 
before submitting petitions with DHS to hire foreign workers.
    The standards and procedures governing the recruitment of U.S. 
workers generally are set forth in 20 CFR 655.40-655.48. These 
regulations generally require, among other things, that an employer 
seeking an H-2B temporary labor certification (1) place two print 
advertisements in a newspaper of general circulation serving the area 
of intended employment, Sec.  655.42(a); (2) contact former U.S. 
workers employed in the previous year to solicit their return, Sec.  
655.43; and (3) contact the bargaining unit, if one exists, to seek 
referrals of U.S. workers, or if a bargaining unit does not exist, post 
the job opportunity at the place(s) of employment for at least 15 
consecutive business days, Sec.  655.45. An employer may need to 
conduct additional recruitment, as provided in section 655.46(a), where 
the OFLC Certifying Officer (CO) determines there is a likelihood that 
qualified U.S. workers will be available to fill the employer's job 
opportunity.
    As relevant here, section 655.42(a) requires an employer seeking an 
H-2B temporary labor certification to place a print advertisement on 
two separate days, one of which must be a Sunday, in a newspaper of 
general circulation serving the area of intended employment and 
appropriate to the occupation and workers likely to apply for the job 
opportunity. If the employer's job opportunity is located in a rural 
area that does not have a newspaper with a Sunday edition, then section 
655.42(b) permits the CO to direct the employer, in place of a Sunday 
edition, to place a print advertisement in the regularly published 
daily edition with the widest circulation in the area of intended 
employment. Both advertisements must meet the minimum content 
requirements set forth in section 655.41, and the employer is required 
to maintain documentation of the actual newspaper advertisement(s) 
published in the event of an audit or other review. Sec.  655.42(d).

B. Joint Issuance

    In order to effectuate DHS's requirement for DOL consultation, 
which is provided in the form of temporary labor certifications, DOL 
must issue regulations to structure procedures and substantive 
standards for its issuance of labor certifications, as DOL has done for 
almost 50 years. On April 29, 2015, following a court's vacatur of 
nearly all of DOL's H-2B regulations, the Departments jointly 
promulgated an interim final rule (IFR) governing DOL's role in issuing 
temporary labor certifications and enforcing the statutory and 
regulatory rights and obligations applicable to employment under the H-
2B program. See Temporary Non-Agricultural Employment of H-2B Aliens in 
the United States, 80 FR 24,042 (Apr. 29, 2015) (codified at 8 CFR part 
214, 20 CFR part 655, and 29 CFR part 503) (``2015 H-2B IFR'').
    As explained in the 2015 H-2B IFR, following conflicting legal 
decisions about DOL's authority to independently issue legislative 
rules to carry out its duties for the H-2B program under the INA, the 
Departments jointly issued the 2015 H-2B IFR ``to ensure that there can 
be no question about the authority for and validity of the regulations 
in this area.'' 80 FR at 24,045; see also 80 FR at 24,044-24,047.\2\ 
Specifically, DHS's participation in the rulemaking is pursuant to its 
broad authority to issue rules in the H-2B program under 8 U.S.C. 
1103(a)(3) and 1184(a), and, as referenced above, DOL--which has the 
institutional expertise on all matters relating to the domestic labor 
market and has for decades issued temporary labor certifications and 
legislative rules governing them in the non-agricultural foreign worker 
program--is necessarily authorized to promulgate rules governing its 
issuance of temporary labor certifications pursuant to 8 U.S.C. 1103(a) 
and 1184(c). The Departments further explained that by issuing the 2015 
H-2B IFR jointly, ``the Departments affirm that this rule is fully 
consistent with the INA and implementing DHS regulations and is vital 
to DHS's ability to faithfully implement the statutory labor 
protections attendant to the program.'' 80 FR at 24,045-46. Litigation 
on these and related matters is ongoing. Accordingly, notwithstanding 
that DOL has authority to independently issue this NPRM, DHS is joining 
DOL in this rulemaking to ensure that there can be

[[Page 55979]]

no question about the authority underlying this action.
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    \2\ DOL's authority to jointly regulate with DHS has not been 
found invalid. While the same district court twice issued an 
injunction against DOL's unilaterally-issued H-2B rules, see Bayou 
Lawn & Landscape Servs. v. Solis, 2012 WL 12887385 (N.D. Fla. Apr. 
26, 2012) and Bayou Lawn v. Perez, 81 F. Supp. 3d 1291, 1300 (N.D. 
Fla. 2014) (Bayou II), it has since upheld the joint rules, Bayou 
Lawn v. Johnson, 173 F. Supp. 3d 1271, 1277, 1289-91 (N.D. Fla. 
2016) (Bayou III), with the court noting that the primary difference 
between the enjoined 2012 rules and the 2015 rules was their joint 
promulgation. Id. at 1277, n2.
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C. Need for Rulemaking

    The Departments are proposing to modernize the recruitment that an 
employer must conduct under section 655.42 by replacing print newspaper 
advertisements with electronic advertisements posted on the internet. 
After due consideration, the Departments believe that advertisements 
posted on the types of websites described below will reduce burden on 
employers and applicants, and be a more effective and efficient means 
of recruiting U.S. workers than the print newspaper advertisements that 
section 655.42 currently requires.
    The Departments are basing this proposal on several considerations. 
First, available data suggest that U.S. workers are now much more 
likely to turn to the internet to search for work than classified 
newspaper advertisements in print newspapers. For instance, a recent 
survey conducted by the Pew Research Center indicated that 79 percent 
of Americans research jobs online, whereas only 32 percent use ``ads in 
print publications,'' and only four percent found ads in print 
publications to be the most useful tool in obtaining their recent 
employment.\3\ This trend is likely to continue as U.S. workers gain 
increased and more convenient access to the internet via smartphones 
and other digital devices,\4\ and print newspaper circulation continues 
to decline.\5\ Consequently, classified advertisements in print 
editions are becoming a less effective means of notifying potential 
applicants about available job opportunities.\6\ In recognition of 
these facts, many newspapers now offer online classified employment 
listings using multi-platform content providers, and popular online job 
search websites power the job boards of thousands of newspaper sites, 
providing a lower cost recruiting option for employers and job seekers 
alike.\7\
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    \3\ Aaron Smith, Searching for Work in the Digital Era, Pew 
Research Center, Nov. 19, 2015, http://www.pewinternet.org/2015/11/19/searching-for-work-in-the-digital-era/; see also R. Jason 
Faberman & Marianna Kudlyak, What Does Online Job Search Tell Us 
About The Labor Market?, Economic Perspectives, Jan. 2016, https://
www.chicagofed.org/~/media/publications/economic-perspectives/2016/
ep2016-1-pdf.pdf (observing that the online job search has become 
the preferred method of search for nearly all types of job seekers 
and recent research suggests that it is the new norm for how job 
seekers find work); Richard Hernandez, Online Job Search: The New 
Normal, Monthly Labor Review (Bureau of Labor Statistics, U.S. 
Dep't. of Labor, Wash. DC), Jan. 2017, https://www.bls.gov/opub/mlr/2017/beyond-bls/pdf/online-job-search-the-new-normal.pdf (reporting 
that the online job search is now the most popular method of job 
hunting).
    \4\ In 2018, 89 percent of American adults used the internet, 
and 77 percent of American adults owned a smartphone, up from just 
35 percent in 2011. See internet/Broadband Fact Sheet, Pew Research 
Center, Feb. 5, 2018, http://www.pewinternet.org/fact-sheet/internet-broadband/; Mobile Fact Sheet, Pew Research Center, Feb. 5, 
2018, http://www.pewinternet.org/fact-sheet/mobile/.
    \5\ By 2014, fewer than 15 percent of Americans received a daily 
newspaper. See Elaine C. Kamarck and Ashley Gabriele, The News 
Today: 7 Trends in Old and New Media, The Brookings Institution, 
Nov. 10, 2015, https://www.brookings.edu/research/the-news-today-7-trends-in-old-and-new-media.
    \6\ According to the Pew Research Center, the total circulation 
of U.S. daily newspapers (print and digital combined) in 2017 was 
approximately 31 million, down 38 percent from more than 50 million 
in 2007. Pew Research Center, June 13, 2018, http://www.journalism.org/fact-sheet/newspapers/ Newspapers Fact Sheet. 
Conversely, job search websites today are attracting a far larger 
pool of potential applicants to find jobs. For example, the top 15 
job search websites alone attract nearly 200 million unique visitors 
each month to search for employment.
    \7\ See Christine Del Castillo, Does Anyone Advertise Jobs in 
Newspapers Anymore?, Workable, May 19, 2016, https://resources.workable.com/blog/newspaper-job-ads.
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    Second, this general trend is consistent with anecdotal evidence 
that the Departments have received from stakeholders, who have reported 
that print newspaper advertisements are not an effective method of 
recruiting prospective U.S. workers for job opportunities filled by H-
2B workers. For instance, two comments submitted in response to the 
2015 H-2B IFR indicated that reliance on newspaper advertising to 
recruit U.S. workers was outmoded. Specifically, the Northwest Workers' 
Justice Project (NWJP), a not-for-profit organization that provides 
civil legal assistance to low-income persons, stated:

    We support the general notion of modernizing the forms of 
outreach to potential workers to be used to recruit domestic 
workers. The use of alternative advertising forums reflects changes 
in information exchanges and job searches and is appropriate. Fewer 
and fewer unemployed U.S. workers search for jobs through 
newspapers, and the elimination of newspaper advertising should have 
a minimal impact on domestic worker recruiting. We recommend that 
the regulations should expressly discuss new innovations now widely 
used by employers of domestic workers to recruit new employees, such 
as web-based advertising on sites such as Monster.com and 
participation in job fairs.

NWJP comment at 11 (July 2, 2015).\8\ Similarly, the American 
Immigration Lawyers Association (AILA), a national not-for-profit 
organization of immigration attorneys and law professors, requested 
that the Departments:
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    \8\ Accessed at https://www.regulations.gov/document?D=ETA-2015-0005-0124.

move beyond newspaper advertisements as a method for recruiting 
American workers. Newspaper circulation has been in decline for 
years, as is evidenced by the overall decline in the number of print 
newspapers currently on the market. The decrease in newspaper 
readership, coupled with increased access to internet job banks has 
changed the way workers look for jobs. Requiring lengthier (and 
significantly more costly) ads will not result in more applicants, 
just more funds expended by employers. DOL should focus on new 
electronic avenues of job notification instead of requiring 
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employers to run expensive advertisements.

AILA Comment at 10 (July 2, 2015).\9\
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    \9\ Accessed at https://www.regulations.gov/document?D=ETA-2015-0005-0125.
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    Finally, electronic advertisements offer employers a less 
expensive, more convenient means of broadly disseminating information 
about their job opportunities to potential U.S. workers. Many websites 
offer standard advertising packages for free or at significantly lower 
marginal costs than the standard print newspaper advertisement, and 
advertisements can be posted on these sites for longer periods than a 
typical print newspaper advertisement remains in circulation, providing 
greater exposure of the employer's job opportunity to U.S. workers at 
no additional cost to the employer. Moreover, unlike print 
advertisements, which are subject to publishing deadlines that can 
delay exposure of the job opportunity to U.S. workers, an electronic 
advertisement can be posted within minutes or hours of submission to 
the website.
    In light of the foregoing, the Departments are proposing to revise 
the recruitment that an employer must conduct under section 655.42 to 
replace print newspaper advertisements with electronic advertisements 
posted on the internet, as described below. The Departments are also 
proposing minor amendments to sections 655.48 and 655.71 to conform 
those sections with the Departments' proposed elimination of print 
newspaper advertisements.

II. Discussion of Proposed Revisions to 20 CFR Part 655, Subpart A

A. Revise Section 655.42 To Replace Newspaper Advertisements With 
Electronic Advertisements

    The Departments are proposing to revise section 655.42(a) to 
replace the requirement that an employer place print newspaper 
advertisements with a requirement that the employer advertise its job 
opportunity on a website that is widely viewed and appropriate for use

[[Page 55980]]

by workers who are likely to apply for the job opportunity in the area 
of intended employment. The Departments propose to remove the word 
``occupation'' from the text in order to address a possible redundancy 
in the language. This proposed drafting change is stylistic only, and 
the Departments intend to effect no substantive change by it.
    The proposed rule would not mandate that an employer post its 
advertisement on a specific website. Rather, proposed section 655.42(a) 
would allow an employer to place an advertisement on any of a variety 
of websites that are widely viewed and appropriate for use by workers 
who are likely to apply for the job opportunity in the area of intended 
employment, including websites that specialize in advertising job 
opportunities for the specific industry or occupation, and websites 
that specifically serve the local area, such as localized online job 
listing services and digital classified sections of local newspapers. 
Proposed section 655.42(a) also contemplates the use of websites that 
are not specifically directed at workers in the area of intended 
employment or the particular occupation, so long as the website is 
appropriate for the occupation and adequately serves the area of 
intended employment.
    The Departments anticipate that advertisements posted on the types 
of websites described above will provide greater exposure of job 
opportunities to U.S. workers than the print newspaper advertisements 
that section 655.42 currently requires, because they can be more easily 
accessed by applicants across a much larger geographic area and for a 
longer period. The Departments invite comments on whether they should 
establish qualifying criteria (e.g., minimum number of unique visitors 
per month), or define the types of websites on which an employer may 
place an electronic advertisement under the proposed rule, and whether 
the rule should exclude websites maintained by the employer and/or the 
employer-client of a job contractor seeking to employ H-2B workers, as 
defined in section 655.5. The Departments also solicit comments on 
whether, instead of eliminating print newspaper advertisements, they 
should instead offer electronic advertisements as an alternative means 
of satisfying the existing print advertising requirement in section 
655.242. The Departments are not proposing this option, given the data 
and trends discussed in Section I.C., which suggest that electronic 
advertisements will be more effective in disseminating information 
about job opportunities to the American workforce. However, the 
Departments invite comments on whether there are employers that lack 
the technology or internet access necessary to place the electronic 
advertisements described in the proposed rule, and if so, how the 
Departments should determine whether such employers have met their 
obligation to recruit U.S. workers. For instance, the Departments could 
leave current recruitment requirements in place as an option for such 
employers. The Departments solicit comments on whether there are 
alternative methods that would more broadly and effectively disseminate 
information about available job opportunities to U.S. workers.
    Proposed section 655.42(b) specifies that an employer's 
advertisement must be clearly visible on the website's homepage or be 
easily retrievable using the search tools on the website. Any 
advertisement that is not clearly visible on the website's homepage 
must be easily retrievable. An advertisement is easily retrievable if 
it can be quickly accessed using a prominently displayed link on the 
website's homepage or the search tools and filters that are prominently 
displayed on the website's homepage. Each navigation choice or 
interaction that a job seeker has with the website should take him or 
her closer to the job opportunity being advertised, and applicants 
should be able to quickly locate job vacancies using a number of search 
criteria, such as occupation, job or position title, geographic 
location, pay range, and keywords in the job description. The employer 
must use commonly understood terms and keywords to describe its job 
opportunity when placing the advertisement, so that U.S. workers who 
are likely to apply for the position will retrieve the advertisement 
when using the website's search function.
    Proposed section 655.42(b) would also require an employer to post 
the electronic advertisement for a period of no less than 14 
consecutive calendar days. Unlike the print newspaper advertisements 
that an employer must place under the current rule, which are typically 
published once, many websites offer standard advertising packages that 
allow an employer to place an advertisement for a weekly period or up 
to 30 calendar days for free or at a much lower marginal cost than a 
standard print newspaper advertisement. Accordingly, the Departments 
anticipate that the fourteen-day consecutive posting period in proposed 
section 655.42(b) will attract more U.S. workers to job opportunities 
than the print newspaper advertisements that this section currently 
requires, because an employer's job opportunity will be easily 
accessible to U.S. workers seeking jobs for a longer period than a 
print newspaper advertisement, at no additional cost to the employer.
    Further, in order to assure that the job opportunity described in 
the advertisement is readily available to U.S. workers, proposed 
section 655.42(b) would require that the advertisement be publicly 
accessible at no cost to an applicant. To meet this requirement, the 
website on which the advertisement is placed cannot require U.S. 
workers to pay fees to establish personal accounts or make payments of 
any kind to view the advertisement. The website must also be 
functionally compatible with the latest commercial web browser 
platforms and easily viewable on mobile smartphones and similar 
portable devices. Moreover, like the current rule, proposed section 
655.42(b) would require that the advertisement comply with the minimum 
content requirements set forth in section 655.41.
    In order to ensure that an employer retains the evidence necessary 
to demonstrate compliance with proposed section 655.42(a) and (b), 
proposed section 655.42(c) would require an employer to print and 
retain screen shots of the web pages on which its advertisement appears 
and screen shots of the web pages establishing the path used to access 
the advertisement. Although the proposed rule does not require 
employers to submit this documentation to the CO with their recruitment 
reports, an employer must nevertheless retain this documentation in 
accordance with 20 CFR 655.56 and provide it to DOL in the event of an 
audit or other review.
    The proposed section 655.42(d) includes a transition provision that 
would permit an employer submitting an Application for Temporary 
Employment Certification with a date of need prior to October 1, 2019 
to elect between placing (a) an electronic advertisement in accordance 
with the requirements in the proposed rule, or (b) two newspaper 
advertisements in accordance with existing requirements. Because the 
Departments are proposing to have this rule take effect immediately 
upon publication of the final rule, the Departments are including this 
transition period to provide flexibility to employers that seek 
additional time to understand and comply with the proposed regulatory 
revisions, while simultaneously permitting employers that wish to place 
electronic advertisements immediately upon the effective date of the 
final rule the ability

[[Page 55981]]

to do so. The transition provision is intended to better ensure, among 
other things, that employers who have purchased newspaper advertising 
space in advance do not lose the benefit of such purchase.
    However, the option to elect between the placement of newspaper and 
electronic advertisements would apply only to those applications with a 
date of need prior to October 1, 2019. All employers submitting an 
Application for Temporary Employment Certification with a date of need 
after the transition period ends (i.e., employers with dates of need 
beginning on or after October 1, 2019) would be required to place an 
advertisement in accordance with the proposed revisions to 655.42(a)-
(c).

B. Other Minor Changes for Conformance

    The Departments are proposing minor revisions to two other sections 
in subpart A in order to conform the regulatory text of those sections 
with the proposed revision to section 655.42. First, the Departments 
are proposing to amend section 655.48(a)(i), relating to recruitment 
reports, by revising the requirement that an employer provide the name 
of the newspaper used to satisfy the recruitment requirement in section 
655.42 to instead require the name of the website used to satisfy this 
requirement. Second, the Departments are proposing to amend section 
655.71(c)(2) by deleting the option to use newspaper advertisements for 
assisted recruitment.

C. DOL-Assisted Advertising

    DOL, with the concurrence of DHS, has taken initial steps toward 
creating an online platform to assist employers in complying with the 
requirements for electronic advertising under this proposed rule. 
Pending the outcome of this rulemaking, DOL intends to leverage the 
latest advertising technologies by establishing a mechanism to make 
advertising data available to popular job-search websites. 
Specifically, DOL is evaluating the development of a centralized 
platform to automate the electronic advertising of approved H-2B job 
opportunities. DOL anticipates that, once fully developed and 
implemented, this electronic advertising platform would maintain a 
standard set of data on each job opportunity that can be integrated 
with a wide array of job search website technologies. Through this 
platform, DOL would make available to job-search websites real-time 
access to the information that employers provide about their job 
opportunities subject to agreement to abide by terms of service. The 
companies that operate job-search websites would execute standard 
protocols to pull new H-2B jobs from the online platform in real time 
for advertising to U.S. workers.
    If developed as currently envisioned, DOL expects that employers 
would provide information about their job opportunities, at the time of 
filing their H-2B temporary labor certification applications, and 
indicate their intention to use the electronic advertising platform. 
Employers that elect to use this platform would have information about 
their job opportunities transmitted by DOL to companies offering to 
provide advertising services, which in turn would advertise these jobs 
on the companies' job search websites.
    The Departments believe that facilitating employers' use of 
technology is in the best interest of employers and U.S. workers. 
Because information about the job opportunity would already be provided 
at the time of filing the H-2B temporary labor certification 
application and transmitted by DOL to companies operating these job 
search websites, the burden associated with placing separate electronic 
advertisements would be significantly reduced. The goal is to reduce 
burdens on the regulated community, while ensuring that the maximum 
number of U.S. workers learn about job opportunities. Having DOL 
maintain a publicly available list of the companies participating in 
this advertising platform would give U.S. workers and other 
organizations that provide employment placement services a greater 
degree of certainty regarding where these temporary or seasonal jobs 
will be advertised and available for U.S. workers to apply. Employers 
that elect to use the new platform would satisfy the advertising 
requirements in Sec.  655.42. Finally, offering this platform to 
employers would ensure more uniform compliance with advertising 
requirements.
    The Departments are not soliciting comments on this electronic 
advertising platform at this time, but the Departments, or DOL acting 
alone, may inform the public about the advertising platform's 
completion through a notice in the Federal Register.

III. Administrative Information

A. Administrative Procedure Act

    The Departments propose to claim an exception under 5 U.S.C. 
553(d)(1) from the 30-day delayed effective date requirement on the 
basis that relieves the restriction against on-line advertising of jobs 
for which an employer seeks to hire H-2B workers. The final rule would 
relieve regulated parties of the requirement that they only place paper 
advertisements in newspapers of general circulation in the area of 
intended employment. During the transition period, which would apply to 
all employers who file an Application for Temporary Employment 
Certification with a date of need prior to October 1, 2019, the rule 
would allow employers to select between placing two paper newspaper 
advertisements or placing an online advertisement. After the transition 
period ends, the rule would altogether replace the newspaper 
advertising requirement with online advertising, which is anticipated 
to be more cost-effective and flexible for employers, as well as a more 
effective way of reaching U.S. workers who may be able, willing, and 
qualified for the employers' job opportunities. The online advertising 
would also provide flexibility for U.S. workers who are job seekers to 
identify and apply for the job opportunities for which employers seek 
to hire H-2B workers. As discussed in greater detail in this preamble, 
this approach is in line with commenter requests on the 2015 H-2B joint 
Interim Final Rule, urging the Departments to transition to an online 
recruitment model. The Departments anticipate that allowing employers 
additional time to transition away from advertising by newspaper over 
an approximately six-month period after the rule's publication would 
provide needed flexibility, and thus provide employers with notice and 
time to conform their business practices to the new rule. This rule 
would take effect immediately upon publication of the final rule.

B. Executive Orders 12866 (Regulatory Planning and Review), 13563 
(Improving Regulation and Regulatory Review), and 13771 (Reducing 
Regulation and Controlling Regulatory Costs)

    Under Executive Order (E.O.) 12866, the Office of Management and 
Budget (OMB)'s Office of Information and Regulatory Affairs determines 
whether a regulatory action is significant and, therefore, subject to 
the requirements of the E.O. and review by OMB. 58 FR 51735. Sec. 3(f) 
of E.O. 12866 defines a ``significant regulatory action'' as an action 
that is likely to result in a rule that (1) has an annual effect on the 
economy of $100 million or more, or adversely affects in a material way 
a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or state, local or tribal 
governments or communities (also

[[Page 55982]]

referred to as economically significant); (2) creates serious 
inconsistency or otherwise interferes with an action taken or planned 
by another agency; (3) materially alters the budgetary impacts of 
entitlement grants, user fees, or loan programs, or the rights and 
obligations of recipients thereof; or (4) raises novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the E.O. Id. OMB has determined that this 
proposed rule is a significant, but not an economically significant, 
regulatory action under Sec. 3(f) of E.O. 12866. Consequently, OMB has 
reviewed this rule.
    E.O. 13563 directs agencies to propose or adopt a regulation only 
upon a reasoned determination that its benefits justify its costs; the 
regulation is tailored to impose the least burden on society, 
consistent with achieving the regulatory objectives; and in choosing 
among alternative regulatory approaches, the agency has selected those 
approaches that maximize net benefits. E.O. 13563 recognizes that some 
benefits are difficult to quantify and provides that, where appropriate 
and permitted by law, agencies may consider and discuss qualitatively 
values that are difficult or impossible to quantify, including equity, 
human dignity, fairness, and distributive impacts.
    E.O. 13771, titled Reducing Regulation and Controlling Regulatory 
Costs, was issued on January 30, 2017. This proposed rule is expected 
to be an E.O. 13771 deregulatory action because the cost savings to H-
2B employers associated with the rule are larger than the costs. The 
estimated cost savings associated with this regulatory action are 
derived from the proposed revision to section 655.42(a), which would 
replace print newspaper advertisements with electronic advertisements 
posted on the internet.
1. Subject-by-Subject Analysis
    The Departments' analysis below considers the expected impacts of 
the following aspects of the proposed rule against the baseline (i.e., 
the 2015 Interim Final Rule): (a) The replacement of newspaper 
advertisements with electronic advertisements, and (b) the time it 
takes the regulated community to read and review the rule.
a. Electronic Advertisements
    The Departments are proposing to modernize the positive recruitment 
that an employer must conduct under the regulations by eliminating the 
use of print newspaper advertisements and replacing it with electronic 
advertisements posted on the internet, which will make the job 
opportunity more broadly available to U.S. workers. Specifically, the 
Departments are proposing to revise section 655.42(a) to replace print 
newspaper advertisement requirements with a requirement for an 
electronic advertisement posted on a website appropriate for the 
workers who are likely to apply for the job opportunity in the area of 
intended employment. As discussed in section I.C. of the preamble to 
this NPRM, the basis for this proposal is rooted in the Departments' 
determination that electronic advertisements will be a more effective 
and efficient means of recruiting U.S. workers than the print newspaper 
advertisements that the regulations currently require.
i. Cost Savings
    To estimate the cost savings to employers that would result from 
the proposed rule, the Departments first calculated the average number 
of H-2B temporary labor certifications approved in a Fiscal Year (FY) 
based on data from FY 2015-2017, which yielded an annual average of 
5,879.\10\ Next, the Departments identified the top five states in 
which prospective H-2B employers received temporary labor 
certifications and researched the cost of placing a newspaper 
advertisement in the most populous city in each of these states (for 
several newspapers, including large and local papers) that would 
satisfy the advertising content requirements.\11\ The Departments then 
averaged the data obtained to estimate the average cost of complying 
with section 655.42. Based on these data, the Departments determined 
that the average cost of placing a single, one-day newspaper 
advertisement required by section 655.42 is $803.08.\12\
---------------------------------------------------------------------------

    \10\ The average is based on 5,106 H-2B temporary labor 
certifications in FY 2015; 5,933 temporary labor certifications in 
FY 2016; and 6,599 temporary labor certifications in FY 2017. 
Calculation: (5,106 + 5,933 + 6,599)/3 = 5,879 (rounded)). See 
https://www.foreignlaborcert.doleta.gov/performancedata.cfm.
    \11\ The top 5 states in which employers seek to place H-2B 
workers are Colorado, Florida, Louisiana, Texas, and Virginia.
    \12\ The Departments assume that these advertisements would be 
placed in the newspaper classified section for employment.
---------------------------------------------------------------------------

    As mentioned above, the Departments believe, based on preliminary 
research, that employers can choose to advertise using online job 
search websites free of charge or at significantly lower marginal 
costs, so removing the requirement to advertise in a print newspaper 
would result in a cost savings equal to the cost of complying with the 
current regulation.\13\ Although section 655.42 currently requires 
employers to advertise on two consecutive days, one of which must be a 
Sunday, the Departments did not identify a significant difference in 
cost between advertisements placed on Sundays and weekdays, so the 
Departments did not distinguish between these two costs when 
calculating total advertising cost savings. To estimate the annual cost 
savings of newspaper advertising costs that employers will avoid under 
the proposed rule, the Departments multiplied the average annual number 
of approved H-2B temporary labor certifications (5,879) by the average 
newspaper advertising cost of $803.08, and multiplied it by two to 
account for each of the days that employers seeking H-2B workers are 
currently required to place newspaper advertisements. This yielded an 
average annual cost savings of $9.44 million \14\ for employers.
---------------------------------------------------------------------------

    \13\ The Departments have data on three commonly used job-search 
websites that allow employers to advertise free of charge.
    \14\ Calculation: 5,879 x $803.08 = $9,442,615 = $9.44 million 
(rounded).
---------------------------------------------------------------------------

b. Time To Understand Rule
    During the first year that this rule would be in effect, employers 
seeking H-2B workers would need time to learn about the new 
requirements. The Departments assume that many employers participating 
in the H-2B program would learn about the requirements of the new rule 
from an industry newsletter or bulletin. The Departments assume that 
the amount of time required to understand the rule change to be 10 
minutes. The proposed rule addresses only the job advertising 
requirements for employers seeking H-2B workers.
i. Costs
    This requirement represents a cost to employers participating in 
the H-2B program in the first year of the rule. The Departments 
estimate this cost by multiplying the time required to read and review 
the new rule (10 minutes) by the median hourly wage of a human 
resources specialist ($31.84),\15\ multiplied by a factor of two (2) to 
account for fringe benefits and overhead, which yields a cost of $10.61 
\16\ per employer. The Departments estimate the total cost of reading 
and reviewing the rule by

[[Page 55983]]

multiplying $10.61 by the average annual number of employers 
participating in the H-2B program over FY 2015-2017 (6,151). This 
calculation results in a cost of $65,283 \17\ in the first year.
---------------------------------------------------------------------------

    \15\ Wage derived from Bureau of Labor Statistics median hourly 
wage for HR Specialists (occupation code 13-1071), U.S. Department 
of Labor, Bureau of Labor Statistics, Occupational Employment 
Statistics, May 2017, Human Resources Specialist: https://www.bls.gov/oes/2017/may/oes131071.htm.
    \16\ Calculation: ($31.84 x 2)/6 (10 minutes) = $10.61 
(rounded).
    \17\ Calculation: $10.61 x 6,151 = $65,283 (rounded).
---------------------------------------------------------------------------

    The Departments acknowledge, however, that there are some 
potentially limited situations--particularly in rural communities--
where the upfront costs associated with accessing the internet and 
learning how to post such advertisements may result in noteable 
opportunity costs for employers. The Departments believe that very few 
employers who currently participate in the H-2B program do not 
currently have access to the internet. For those employers that do not 
currently have internet access, the Departments estimate that it will 
take two hours to access the internet (which may include transporation 
to the nearest library), research the websites and pick one to use, 
establish an account on that website, learn how to post a job on the 
website, and establish an email account. In addition, employers would 
need to make additional trips to check for responses from U.S. workers. 
Because of the uncertainties, we are unable to provide an estimate of 
the number of employers who do not have access to the internet and 
would incur these additional costs to post advertisements online. The 
Departments seek comment from the public on the likely magnitude and 
incidence of these costs. For employers with access to the internet who 
are not familiar with posting such advertisements online, there will be 
some up front costs associated with the time it takes to research job 
advertisement sites, establish an account, and learn how to post a job 
on the website.
    However, online advertisements for H-2B employment would increase 
the visibility of job openings to potential U.S. workers and increase 
the number of workers that would be able to access these jobs. This 
benefit would significantly outweigh any cost potentially incurred by 
the negligible number of employers who do not currently have access to 
the internet due to transitioning from print newspaper advertisements 
to online job postings. The Departments therefore believe that the net 
societal benefit of implementing this rule would be maximized if all H-
2B employers are required to utilize online advertisements. As such 
this rule constitutes as a deregulatory action.
2. Summary of Impacts
    The Departments estimate the total first-year costs of the proposed 
rule to be $65,283. This cost results from the estimated time required 
to read and review the proposed rule by a human resources specialist. 
This cost is incurred by all employers seeking H-2B workers subject to 
proposed section 655.42(a). The Departments estimate a first-year cost 
savings of $9.44 million. This cost savings results from replacing the 
requirement that employers place print newspaper advertisements with a 
requirement that employers place internet advertisements. Net first-
year cost savings amount to $9.38 million.\18\ This estimated cost 
savings excludes any increase in costs to employers without current 
access to the internet.
---------------------------------------------------------------------------

    \18\ Calculation: $9,442,615 - $65,283 = $9,377,332 = $9.38 
million (rounded).
---------------------------------------------------------------------------

    Generally, annual cost savings are expected to be $9.44 million in 
all years following the first year due to the lack of monetized costs 
regarding the time required to read and review the proposed rule. The 
10-year discounted net cost savings of the proposed rule range from 
$66.25 million to $80.46 million (with 7- and 3-percent discount rates, 
respectively). The annualized net cost savings of the proposed rule is 
$9.43 million (with 3- and 7-percent discount rates). When the 
Departments use a perpetual time horizon to allow for cost comparisons 
under E.O. 13771, the annualized cost savings of this proposed rule are 
$9.44 million at a discount rate of 7 percent (excluding any increased 
costs to employers without access to the internet).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121 (March 29, 1996), requires federal agencies 
engaged in rulemaking to consider the impact of their proposals on 
small entities, consider alternatives to minimize that impact, and 
solicit public comment on their analyses. The RFA requires the 
assessment of the impact of a regulation on a wide range of small 
entities, including small businesses, not-for-profit organizations, and 
small governmental jurisdictions. Agencies must perform a review to 
determine whether a proposed or final rule would have a significant 
economic impact on a substantial number of small entities. 5 U.S.C. 603 
and 604.
    This proposed rule may impact small businesses that request H-2B 
temporary labor certifications. The Departments assume that the average 
number of H-2B temporary labor certifications requested by any small 
business per year would be one. The Departments estimate that small 
businesses would incur a one-time cost of $10.61 to familiarize 
themselves with the rule and would incur annual cost savings of 
$1,606.16 associated with advertising online rather than in print 
newspapers. Over a 10-year analysis period, the net annualized cost 
savings for a small business would be $1,604.74 at a 7-percent discount 
rate.
    The Departments reviewed the impacts of the proposed rule for two 
North American Industry Classification System (NAICS) Codes that 
frequently request H-2B temporary labor certifications: NAICS 561730: 
Landscaping Services, and NAICS 721110: Hotels (except Casino Hotels) 
and Motels. The Small Business Administration estimates that revenue 
for a small business with NAICS Code 561730 is $7.5 million and for 
NAICS Code 721110 is $32.5 million.\19\ The impact of the proposed rule 
would be less than 1 percent of annual revenue for the smallest 
businesses in these industries with the employment size fewer than 5 
($197,491 for NAICS 561730 and $321,239 for NAICS 721110).\20\ Based on 
this determination, the Departments certify that the proposed rule 
would not have a significant economic impact on a substantial number of 
small entities.
---------------------------------------------------------------------------

    \19\ U.S. Small Business Administration (2017), Table of Small 
Business Size Standards Matched to North American Industry 
Classification System Codes, retrieved from: https://www.naics.com/wp-content/uploads/2017/10/SBA_Size_Standards_Table.pdf.
    \20\ U.S. Census, 2012 SUSB Annual Data Tables by Establishment 
Industry, https://www.census.gov/data/tables/2012/econ/susb/2012-susb-annual.html.
---------------------------------------------------------------------------

D. Paperwork Reduction Act

    The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., provides 
that a Federal agency generally cannot conduct or sponsor a collection 
of information, and the public is generally not required to respond to 
an information collection, unless it is approved by OMB under the PRA 
and displays a currently valid OMB Control Number. In addition, 
notwithstanding any other provisions of law, no person shall generally 
be subject to penalty for failing to comply with a collection of 
information that does not display a valid Control Number. See 5 CFR 
1320.5(a) and 1320.6. DOL has submitted the Information Collection 
Request (ICR) contained in this rule to OMB and obtained approval using

[[Page 55984]]

emergency clearance procedures outlined at 5 CFR 1320.13.
    More specifically, this rule proposes to replace print newspaper 
advertisements with an advertisement posted on at least one website 
that is widely viewed and appropriate for use by U.S. workers who are 
likely to apply for the job opportunity in the area of intended 
employment. The proposed rule would require that this advertisement be 
clearly visible on the website's homepage or be easily retrievable 
through the website, posted for a period of no less than 14 consecutive 
calendar days, publicly accessible to U.S. workers at no cost using the 
latest browser technologies and mobile devices, and satisfy the 
advertising content requirements set forth in Sec.  655.41. Under the 
proposed rule and in accordance with 20 CFR 655.56(c)(2)(ii), an 
employer would be required to retain documentation demonstrating that 
it posted an electronic advertisement in compliance with the 
requirements in the proposed rule, including screen shots of the web 
page on which the advertisement appears and screen shots of the web 
pages establishing the path that U.S. workers must follow to access the 
advertisement. The employer must be prepared to produce all information 
and records contained in this information collection in the event of an 
audit examination, investigation, or other enforcement proceedings in 
the H-2B program. The Departments are using technology to reduce burden 
by replacing newspaper advertisements with electronic advertisements. 
The information collection requirements associated with this rule are 
summarized as follows:
    Agency: DOL-ETA.
    Type of Information Collection: New.
    Title of the Collection: Advertising Requirements for Employers 
Seeking to Employ H-2B Nonimmigrant Workers.
    Agency Form Number: None.
    Affected Public: Private Sector--businesses or other for-profits.
    Total Estimated Number of Respondents: 5,879.
    Average Responses per Year per Respondent: 2.
    Total Estimated Number of Responses: 11,758.
    Average Time per Response: 7 minutes per application.
    Total Estimated Annual Time Burden: 686 hours.
    Total Estimated Other Costs Burden: $0.

D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among 
other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of the Act 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may result in $100 million or more expenditure (adjusted annually 
for inflation) in any one year by State, local, and tribal governments, 
in the aggregate, or by the private sector.
    This NPRM, if finalized, does not exceed the $100 million 
expenditure in any 1 year when adjusted for inflation, and this 
rulemaking does not contain such a mandate. The requirements of Title 
II of the Act, therefore, do not apply, and the Departments have not 
prepared a statement under the Act.

E. Small Business Regulatory Enforcement Fairness Act of 1996

    This NPRM, if finalized, would not be a major rule as defined by 
section 804 of the Small Business Regulatory Enforcement Act of 1996, 
Public Law 104-121, 804, 110 Stat. 847, 872 (1996), 5 U.S.C. 804(2). 
The Office of Information and Regulatory Affairs has found that this 
rule is not likely to result in an annual effect on the economy of $100 
million or more; a major increase in costs or prices; or significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic or export markets.

F. Executive Order 13132: Federalism

    This NPRM does not have federalism implications because it would 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
Accordingly, Executive Order 13132, Federalism, requires no further 
agency action or analysis.

G. Executive Order 13175, Indian Tribal Governments

    This NPRM does not have ``tribal implications'' because it would 
not have substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes. Accordingly, Executive Order 13175, 
Consultation and Coordination with Indian Tribal Governments, requires 
no further agency action or analysis.

H. The Treasury and General Government Appropriations Act of 1999: 
Assessment of Federal Regulations and Policies on Families

    This NPRM would have no effect on family well-being or stability, 
marital commitment, parental rights or authority, or income or poverty 
of families and children. Accordingly, section 654 of the Treasury and 
General Government Appropriations Act of 1999 (5 U.S.C. 601 note) 
requires no further agency action, analysis, or assessment.

I. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This NPRM would have no adverse impact on children. Accordingly, 
Executive Order 13045, Protection of Children from Environmental Health 
Risks and Safety Risks, as amended by Executive Orders 13229 and 13296, 
requires no further agency action or analysis.

J. Environmental Impact Assessment

    This action is one of a category of actions that do not 
individually or cumulatively have a significant effect on the human 
environment. This action is therefore categorically excluded from 
further review under the National Environmental Policy Act of 1969 
(NEPA), 42 U.S.C. 4321-4375.

K. Executive Order 13211, Energy Supply

    This NPRM has not been identified to have impacts on energy supply. 
Accordingly, Executive Order 13211 requires no further agency action or 
analysis.

L. Executive Order 12630, Constitutionally Protected Property Rights

    This NPRM, would not implement a policy with takings implications. 
Accordingly, Executive Order 12630, Governmental Actions and 
Interference with Constitutionally Protected Property Rights, requires 
no further agency action or analysis.

M. Executive Order 12988, Civil Justice Reform Analysis

    This NPRM was drafted and reviewed in accordance with Executive 
Order 12988, Civil Justice Reform. It was written to provide a clear 
legal standard for affected conduct and was carefully reviewed to 
eliminate drafting errors and ambiguities, so as to minimize litigation 
and undue burden on the

[[Page 55985]]

Federal court system. It meets the applicable standards provided in 
section 3 of Executive Order 12988.

List of Subjects in 20 CFR Part 655

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

    For the reasons stated in this document, 20 CFR part 655 is 
proposed to be amended as follows:

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

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

    Authority:  Section 655.0 issued under 8 U.S.C. 
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 
1103(a)(6), 1182(m), (n) and (t), 1184(c), (g), and (j), 1188, and 
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105 
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; sec. 205 of 
division M, Pub. L. 115-141, 132 Stat. 348; 8 CFR 2.1, 
214.2(h)(4)(i), and 214.2(h)(6)(iii).
    Subpart A issued under 8 CFR 214.2(h).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), 
and 1188; and 8 CFR 214.2(h).
    Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, 
Pub. L. 114-74 at section 701.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and 
(b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. 
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), 
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 
note, Pub. L. 114-74 at section 701.
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
0
2. Revise Sec.  655.42 to read as follows:


Sec.  655.42   Advertising in the area of intended employment.

    (a) Where to conduct recruitment. The employer must place an 
advertisement for the job opportunity on at least one website that is 
widely viewed and appropriate for use by U.S. workers who are likely to 
apply for the job opportunity in the area of intended employment.
    (b) Nature of the recruitment. The advertisement must be clearly 
visible on the website's homepage or be easily retrievable through the 
website, posted for a period of no less than 14 consecutive calendar 
days, publicly accessible to U.S. workers at no cost using the latest 
browser technologies and mobile devices, and satisfy the requirements 
set forth in Sec.  655.41.
    (c) Proof of recruitment. An employer must retain documentation in 
accordance with Sec.  655.56(c)(2)(ii) that demonstrates compliance 
with paragraphs (a) and (b) of this section. Such documentation must 
include screen shots of the web page on which the advertisement appears 
and screen shots of the web pages establishing the path that U.S. 
workers must follow to access the advertisement.
    (d) Transition period for applications with dates of need prior to 
October 1, 2019. (1) All employers submitting an Application for 
Temporary Employment Certification with a date of need on or after 
October 1, 2019 must place and retain documentation of an electronic 
advertisement in accordance with paragraphs (a) through (c) of this 
section.
    (2) An employer submitting an Application for Temporary Employment 
Certification with a date of need prior to October 1, 2019 may elect to 
place two newspaper advertisements in compliance with requirements in 
paragraphs (d)(2)(i) through (iv) of this section, in lieu of placing 
and retaining documentation of the electronic advertisement required by 
paragraphs (a) through (c) of this section.
    (i) The employer must place an advertisement (which must be in a 
language other than English, where the CO determines appropriate) on 2 
separate days, which may be consecutive, one of which must be a Sunday 
(except as provided in paragraph (d)(2)(ii) of this section), in a 
newspaper of general circulation serving the area of intended 
employment and appropriate to the occupation and the workers likely to 
apply for the job opportunity.
    (ii) If the job opportunity is located in a rural area that does 
not have a newspaper with a Sunday edition, the CO may direct the 
employer, in place of a Sunday edition, to advertise in the regularly 
published daily edition with the widest circulation in the area of 
intended employment.
    (iii) The newspaper advertisements must satisfy the requirements in 
Sec.  655.41.
    (iv) The employer must maintain copies of newspaper pages (with 
date of publication and full copy of the advertisement), or tear sheets 
of the pages of the publication in which the advertisements appeared, 
or other proof of publication furnished by the newspaper containing the 
text of the printed advertisements and the dates of publication, 
consistent with the document retention requirements in Sec.  655.56. If 
the advertisement was required to be placed in a language other than 
English, the employer must maintain a translation and retain it in 
accordance with Sec.  655.56.
0
3. Amend Sec.  655.48 by revising paragraph (a)(1) to read as follows:


Sec.  655.48   Recruitment report.

    (a) * * *
    (1) The name of each recruitment activity or source (e.g., job 
order and the name of the website as required in Sec.  655.42(a) on 
which the job opportunity was advertised);
* * * * *
0
4. Amend Sec.  655.71 by revising paragraph (c)(2) as follows:


Sec.  655.71   CO-ordered assisted recruitment.

* * * * *
    (c) * * *
    (2) Designating the sources where the employer must recruit for 
U.S. workers, directing the employer to place the advertisement(s) in 
such sources;
* * * * *

Kirstjen M. Nielsen,
Secretary of Homeland Security.

R. Alexander Acosta,
Secretary of Labor.
[FR Doc. 2018-24498 Filed 11-8-18; 8:45 am]
 BILLING CODE 4510-FP-P; 9111-97-P
55978 Federal Register / Vol. 83, No. 218 / Friday, November 9, 2018 / Proposed Rules

I. Background regulations at 20 CFR 655 subpart A April 29, 2015, following a court’s
require employers seeking H–2B vacatur of nearly all of DOL’s H–2B
A. Legal Framework
temporary labor certification to, among regulations, the Departments jointly
The Immigration and Nationality Act other things, actively recruit for U.S. promulgated an interim final rule (IFR)
(INA), 8 U.S.C. 1101, et seq., establishes workers before submitting petitions governing DOL’s role in issuing
the H–2B nonimmigrant classification with DHS to hire foreign workers. temporary labor certifications and
for a nonagricultural temporary worker The standards and procedures enforcing the statutory and regulatory
‘‘having a residence in a foreign country governing the recruitment of U.S. rights and obligations applicable to
which he has no intention of workers generally are set forth in 20 employment under the H–2B program.
abandoning who is coming temporarily CFR 655.40–655.48. These regulations See Temporary Non-Agricultural
to the United States to perform . . . generally require, among other things,
temporary [non-agricultural] service or Employment of H–2B Aliens in the
that an employer seeking an H–2B
labor if unemployed persons capable of United States, 80 FR 24,042 (Apr. 29,
temporary labor certification (1) place
performing such service or labor cannot two print advertisements in a 2015) (codified at 8 CFR part 214, 20
be found in this country.’’ 8 U.S.C. newspaper of general circulation serving CFR part 655, and 29 CFR part 503)
1101(a)(15)(H)(ii)(b).1 The Secretary of the area of intended employment, (‘‘2015 H–2B IFR’’).
Homeland Security, in administering § 655.42(a); (2) contact former U.S. As explained in the 2015 H–2B IFR,
the H–2B program, may grant a petition workers employed in the previous year following conflicting legal decisions
for an otherwise eligible H–2B to solicit their return, § 655.43; and (3) about DOL’s authority to independently
nonimmigrant worker ‘‘after contact the bargaining unit, if one exists, issue legislative rules to carry out its
consultation with appropriate agencies to seek referrals of U.S. workers, or if a duties for the H–2B program under the
of the Government.’’ 8 U.S.C. 1184(c)(1). bargaining unit does not exist, post the INA, the Departments jointly issued the
The Secretary of Homeland Security job opportunity at the place(s) of 2015 H–2B IFR ‘‘to ensure that there can
also may delegate to ‘‘any employee of employment for at least 15 consecutive be no question about the authority for
the United States, with the consent of business days, § 655.45. An employer and validity of the regulations in this
the head of the applicable Department may need to conduct additional area.’’ 80 FR at 24,045; see also 80 FR
or other independent establishment, recruitment, as provided in section at 24,044–24,047.2 Specifically, DHS’s
. . . any of the powers, privileges, or 655.46(a), where the OFLC Certifying participation in the rulemaking is
duties conferred or imposed’’ on DHS Officer (CO) determines there is a pursuant to its broad authority to issue
under the INA. 8 U.S.C. 1103(a)(6); see likelihood that qualified U.S. workers rules in the H–2B program under 8
also 8 CFR 2.1. DHS regulations provide will be available to fill the employer’s U.S.C. 1103(a)(3) and 1184(a), and, as
that an H–2B petition for temporary job opportunity. referenced above, DOL—which has the
employment in the United States must As relevant here, section 655.42(a)
institutional expertise on all matters
be accompanied by an approved requires an employer seeking an H–2B
relating to the domestic labor market
temporary labor certification from DOL. temporary labor certification to place a
print advertisement on two separate and has for decades issued temporary
8 CFR 214.2(h)(6)(iii)(A) and (iv)(A). labor certifications and legislative rules
Pursuant to and in accordance with the days, one of which must be a Sunday,
in a newspaper of general circulation governing them in the non-agricultural
above authorities, the temporary labor foreign worker program—is necessarily
certification serves as DHS’s serving the area of intended
employment and appropriate to the authorized to promulgate rules
consultation with DOL to determine the governing its issuance of temporary
question of whether a qualified U.S. occupation and workers likely to apply
for the job opportunity. If the labor certifications pursuant to 8 U.S.C.
worker is available to fill the petitioning
employer’s job opportunity is located in 1103(a) and 1184(c). The Departments
H–2B employer’s job opportunity and
a rural area that does not have a further explained that by issuing the
whether a foreign worker’s employment
newspaper with a Sunday edition, then 2015 H–2B IFR jointly, ‘‘the
in the job opportunity will adversely
section 655.42(b) permits the CO to Departments affirm that this rule is fully
affect the wages or working conditions
of similarly employed U.S. workers. See direct the employer, in place of a consistent with the INA and
8 CFR 214.2(h)(6)(iii)(A) and (D). Sunday edition, to place a print implementing DHS regulations and is
In order to advise DHS on the advertisement in the regularly vital to DHS’s ability to faithfully
availability of U.S. workers and the published daily edition with the widest implement the statutory labor
potential for adverse effect on the wages circulation in the area of intended protections attendant to the program.’’
and working conditions of similarly employment. Both advertisements must 80 FR at 24,045–46. Litigation on these
employed U.S. workers, DOL’s Office of meet the minimum content and related matters is ongoing.
Foreign Labor Certification (OFLC) requirements set forth in section 655.41, Accordingly, notwithstanding that DOL
provides consultation to DHS through and the employer is required to has authority to independently issue
issuance of temporary labor maintain documentation of the actual this NPRM, DHS is joining DOL in this
certifications, in accordance with 8 newspaper advertisement(s) published rulemaking to ensure that there can be
U.S.C. 1103(a) and 1184(c);). See 8 CFR in the event of an audit or other review.
214.2(h)(6)(iii)(A) and (D). The § 655.42(d). 2 DOL’s authority to jointly regulate with DHS has

Departments have jointly issued not been found invalid. While the same district
B. Joint Issuance court twice issued an injunction against DOL’s
regulations that govern the standards
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In order to effectuate DHS’s unilaterally-issued H–2B rules, see Bayou Lawn &
and procedures applicable to OFLC’s Landscape Servs. v. Solis, 2012 WL 12887385 (N.D.
requirement for DOL consultation,
issuance of temporary labor Fla. Apr. 26, 2012) and Bayou Lawn v. Perez, 81 F.
which is provided in the form of Supp. 3d 1291, 1300 (N.D. Fla. 2014) (Bayou II), it
certifications under the H–2B program.
temporary labor certifications, DOL has since upheld the joint rules, Bayou Lawn v.
See 20 CFR 655 subpart A. The Johnson, 173 F. Supp. 3d 1271, 1277, 1289–91 (N.D.
must issue regulations to structure
Fla. 2016) (Bayou III), with the court noting that the
1 For ease of reference, sections of the INA are procedures and substantive standards primary difference between the enjoined 2012 rules
referred to by their corresponding section in the for its issuance of labor certifications, as and the 2015 rules was their joint promulgation. Id.
United States Code. DOL has done for almost 50 years. On at 1277, n2.

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Federal Register / Vol. 83, No. 218 / Friday, November 9, 2018 / Proposed Rules 55983

multiplying $10.61 by the average 2. Summary of Impacts assume that the average number of H–
annual number of employers The Departments estimate the total 2B temporary labor certifications
participating in the H–2B program over first-year costs of the proposed rule to requested by any small business per
FY 2015–2017 (6,151). This calculation be $65,283. This cost results from the year would be one. The Departments
results in a cost of $65,283 17 in the first estimated time required to read and estimate that small businesses would
year. review the proposed rule by a human incur a one-time cost of $10.61 to
The Departments acknowledge, resources specialist. This cost is familiarize themselves with the rule and
however, that there are some potentially incurred by all employers seeking H–2B would incur annual cost savings of
limited situations—particularly in rural workers subject to proposed section $1,606.16 associated with advertising
655.42(a). The Departments estimate a online rather than in print newspapers.
communities—where the upfront costs
first-year cost savings of $9.44 million. Over a 10-year analysis period, the net
associated with accessing the internet
This cost savings results from replacing annualized cost savings for a small
and learning how to post such
the requirement that employers place business would be $1,604.74 at a 7-
advertisements may result in noteable
print newspaper advertisements with a percent discount rate.
opportunity costs for employers. The
requirement that employers place The Departments reviewed the
Departments believe that very few
internet advertisements. Net first-year impacts of the proposed rule for two
employers who currently participate in
cost savings amount to $9.38 million.18 North American Industry Classification
the H–2B program do not currently have
This estimated cost savings excludes System (NAICS) Codes that frequently
access to the internet. For those
any increase in costs to employers request H–2B temporary labor
employers that do not currently have
without current access to the internet. certifications: NAICS 561730:
internet access, the Departments Landscaping Services, and NAICS
Generally, annual cost savings are
estimate that it will take two hours to 721110: Hotels (except Casino Hotels)
expected to be $9.44 million in all years
access the internet (which may include and Motels. The Small Business
following the first year due to the lack
transporation to the nearest library), Administration estimates that revenue
of monetized costs regarding the time
research the websites and pick one to required to read and review the for a small business with NAICS Code
use, establish an account on that proposed rule. The 10-year discounted 561730 is $7.5 million and for NAICS
website, learn how to post a job on the net cost savings of the proposed rule Code 721110 is $32.5 million.19 The
website, and establish an email account. range from $66.25 million to $80.46 impact of the proposed rule would be
In addition, employers would need to million (with 7- and 3-percent discount less than 1 percent of annual revenue
make additional trips to check for rates, respectively). The annualized net for the smallest businesses in these
responses from U.S. workers. Because of cost savings of the proposed rule is industries with the employment size
the uncertainties, we are unable to $9.43 million (with 3- and 7-percent fewer than 5 ($197,491 for NAICS
provide an estimate of the number of discount rates). When the Departments 561730 and $321,239 for NAICS
employers who do not have access to use a perpetual time horizon to allow 721110).20 Based on this determination,
the internet and would incur these for cost comparisons under E.O. 13771, the Departments certify that the
additional costs to post advertisements the annualized cost savings of this proposed rule would not have a
online. The Departments seek comment proposed rule are $9.44 million at a significant economic impact on a
from the public on the likely magnitude discount rate of 7 percent (excluding substantial number of small entities.
and incidence of these costs. For any increased costs to employers
employers with access to the internet without access to the internet). D. Paperwork Reduction Act
who are not familiar with posting such The Paperwork Reduction Act (PRA),
advertisements online, there will be C. Regulatory Flexibility Act
44 U.S.C. 3501 et seq., provides that a
some up front costs associated with the The Regulatory Flexibility Act of 1980 Federal agency generally cannot
time it takes to research job (RFA), 5 U.S.C. 601 et seq., as amended conduct or sponsor a collection of
advertisement sites, establish an by the Small Business Regulatory information, and the public is generally
account, and learn how to post a job on Enforcement Fairness Act of 1996, not required to respond to an
the website. Public Law 104–121 (March 29, 1996), information collection, unless it is
requires federal agencies engaged in approved by OMB under the PRA and
However, online advertisements for
rulemaking to consider the impact of displays a currently valid OMB Control
H–2B employment would increase the
their proposals on small entities, Number. In addition, notwithstanding
visibility of job openings to potential consider alternatives to minimize that
U.S. workers and increase the number of any other provisions of law, no person
impact, and solicit public comment on shall generally be subject to penalty for
workers that would be able to access their analyses. The RFA requires the
these jobs. This benefit would failing to comply with a collection of
assessment of the impact of a regulation information that does not display a
significantly outweigh any cost on a wide range of small entities,
potentially incurred by the negligible valid Control Number. See 5 CFR
including small businesses, not-for- 1320.5(a) and 1320.6. DOL has
number of employers who do not profit organizations, and small
currently have access to the internet due submitted the Information Collection
governmental jurisdictions. Agencies Request (ICR) contained in this rule to
to transitioning from print newspaper must perform a review to determine
advertisements to online job postings. OMB and obtained approval using
whether a proposed or final rule would
The Departments therefore believe that have a significant economic impact on
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19 U.S. Small Business Administration (2017),
the net societal benefit of implementing a substantial number of small entities. 5 Table of Small Business Size Standards Matched to
this rule would be maximized if all H– U.S.C. 603 and 604. North American Industry Classification System
2B employers are required to utilize This proposed rule may impact small Codes, retrieved from: https://www.naics.com/wp-
online advertisements. As such this rule content/uploads/2017/10/SBA_Size_
businesses that request H–2B temporary Standards_Table.pdf.
constitutes as a deregulatory action. labor certifications. The Departments 20 U.S. Census, 2012 SUSB Annual Data Tables

by Establishment Industry, https://www.census.gov/
17 Calculation: $10.61 × 6,151 = $65,283 18 Calculation: $9,442,615 ¥ $65,283 = data/tables/2012/econ/susb/2012-susb-
(rounded). $9,377,332 = $9.38 million (rounded). annual.html.

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Document Created: 2018-11-09 03:34:37
Document Modified: 2018-11-09 03:34:37
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Notice of proposed rulemaking.
Dates		Comments must be submitted, in writing, on or before December 10, 2018.
Contact		Regarding the Department of Labor: William W. Thompson, II, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, Box #12-200, 200 Constitution Ave. NW, Washington, DC 20210, telephone (202) 513-7350 (this is not a toll-free number). Regarding the Department of Homeland Security: Kevin J. Cummings, Chief, Business and Foreign Workers Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Ave. NW, Suite 1100, Washington, DC 20529-2120, telephone (202) 272-8377 (not a toll-free call).
FR Citation		83 FR 55977
RIN Number		1615-AC33 and 1205-AB91
CFR Associated		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 and Working Conditions
83 FR 55977 - Modernizing Recruitment Requirements for the Temporary Employment of H-2B Foreign Workers in the United States

DEPARTMENT OF HOMELAND SECURITYDEPARTMENT OF LABOREmployment and Training Administration

Federal Register Volume 83, Issue 218 (November 9, 2018)

DEPARTMENT OF HOMELAND SECURITY
DEPARTMENT OF LABOR
Employment and Training Administration
