24042 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 214
[CIS No. 256315]
RIN 1615AC06
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Part 503
RIN 1205AB76
Temporary Non-Agricultural Employment of H2B Aliens in the United States
AGENCY: U.S. Citizenship and Immigration Services, Department of Homeland Security; Employment and Training Administration, and Wage and Hour Division, Labor. ACTION: Interim final rule; request for comments.
SUMMARY: The Department of Homeland Security (DHS) and the Department of Labor (DOL) are jointly issuing regulations governing the certification of the employment of nonimmigrant workers in temporary or seasonal non- agricultural employment and the enforcement of the obligations applicable to employers of such nonimmigrant workers. This interim final rule establishes the process by which employers obtain a temporary labor certification from DOL for use in petitioning DHS to employ a nonimmigrant worker in H2B status. We are also issuing regulations to provide for increased worker protections for both United States (U.S.) and foreign workers. DHS and DOL are issuing simultaneously with this rule a companion rule governing the methodology to set the prevailing wage in the H2B program. DATES: This interim final rule is effective April 29, 2015. Interested persons are invited to submit written comments on this interim final rule on or before June 29, 2015. ADDRESSES: You may submit comments, identified by Regulatory Information Number (RIN) 1205AB76, by any one of the following methods:
Federal e-Rulemaking Portal www.regulations.gov. Follow the Web site instructions for submitting comments.
Mail or Hand Delivery/Courier: Please submit all written comments (including disk and CDROM submissions) to Adele Gagliardi, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room N5641, Washington, DC 20210.
Please submit your comments by only one method. Comments received by means other than those listed above or received after the comment period has closed will not be reviewed. The Departments will post all comments received on http://www.regulations.gov without making any change to the comments, including any personal information provided. The http://www.regulations.gov Web site is the Federal e-rulemaking portal and all comments posted there are available and accessible to the public. The Departments caution commenters not to include personal information such as Social Security Numbers, personal addresses, telephone numbers, and email addresses in their comments as such information will become viewable by the public on the http://www.regulations.gov Web site. It is the commenters responsibility to safeguard his or her information. Comments submitted through http://www.regulations.gov will not include the commenters email address unless the commenter chooses to include that information as part of his or her comment.
Postal delivery in Washington, DC, may be delayed due to security concerns. Therefore, the Departments encourage the public to submit comments through the http://www.regulations.gov Web site.
Docket: For access to the docket to read background documents or comments received, go to the Federal eRulemaking portal at http://www.regulations.gov. The Departments will also make all the comments received available for public inspection during normal business hours at the Employment and Training Administration (ETA) Office of Policy Development and Research at the above address. If you need assistance to review the comments, DOL will provide you with appropriate aids such as readers or print magnifiers. DOL will make copies of the rule available, upon request, in large print and as an electronic file on computer disk. DOL will consider providing the interim final rule in other formats upon request. To schedule an appointment to review the comments and/or obtain the rule in an alternate format, contact the ETA Office of Policy
Development and Research at (202) 6933700 (VOICE) (this is not a toll-free number) or 18778895627 (TTY/TDD).
FOR FURTHER INFORMATION CONTACT: For further information on 8 CFR part 214, contact Steven W. Viger, Adjudications Officer (Policy), Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts NW., Washington, DC 205292060; Telephone (202) 2721470 (this is not a toll-free number).
For further information on 20 CFR part 655, subpart A, contact William W. Thompson, II, Acting Administrator, Office of Foreign Labor Certification, ETA, U.S. Department of Labor, 200 Constitution Avenue NW., Room C4312, Washington, DC 20210; Telephone (202) 6933010 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1800 8778339.
For further information on 29 CFR part 503, contact Mary Ziegler, Director, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, 200 Constitution Avenue NW., Room S3510, Washington, DC 20210; Telephone (202) 6930071 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1800 8778339. SUPPLEMENTARY INFORMATION:
I. Executive Summary The Immigration and Nationality Act
(INA) establishes the H2B nonimmigrant classification for a non- agricultural 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), INA section 101(a)(15)(H)(ii)(b). In accordance with the INA and as discussed in detail in this preamble, the Department of Homeland Security (DHS) consults with the Department of Labor (DOL) with respect to the H2B program, and DOL provides advice on whether U.S. workers capable of performing the temporary services or labor are available. See 8 U.S.C. 1184(c)(1), INA
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24043 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations
section 214(c)(1) (providing for DHS to consult with appropriate agencies of the government). Under DHS regulations, an H2B petition for temporary employment must be accompanied by an approved temporary labor certification from DOL, which serves as DOLs advice to DHS regarding whether a qualified U.S. worker is available to fill the petitioning H2B employers job opportunity and whether a foreign workers 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).
This interim final rule, which is virtually identical to the 2012 final rule that DOL developed following public notice and comment, improves DOLs ability to determine whether it is appropriate to grant a temporary employment certification. For reasons described in further detail below, DOL never implemented the 2012 final rule; as a result, this rulemaking contains a number of improvements to the temporary employment certification process that was in place on March 4, 2015. This interim final rule expands the ability of U.S. workers to become aware of the job opportunities in question and to apply for opportunities in which they are interested. For example, this interim final rule includes new recruitment and other requirements to broaden the dissemination of job offer information (such as by introducing the
electronic job registry and the possibility of additional required contact with community-based organizations). The interim final rule also requires the job offer to remain open to U.S. workers until 21 days before the employers start date of need, which provides a longer application period that ends closer to the date of need than was previously required. The interim final rule also reverts back to the compliance-based certification model that had been used prior to the 2008 final rule, rather than continuing to use the attestation model. Finally, the interim final rule also adopts an employer registration process that requires employers to demonstrate their temporary need for labor
