The Departments of Homeland Security and Labor (Departments) have published a joint notice of proposed rulemaking (NPRM) that would “modernize” the recruitment requirements for employers seeking H-2B nonimmigrant workers to fill temporary nonagricultural jobs “to make it easier for U.S. workers to find and fill these open jobs.”

The proposed rule would require electronic advertisements to be posted on the Internet for at least 14 days, replacing the print newspaper advertisements that regulations currently require. The Departments said they believe “this is a more effective and efficient way to disseminate information about job openings to U.S. workers.” The Departments believe that electronic advertisements, posted on websites that U.S. workers in the area of the job opportunity would use, would best ensure that U.S. workers learn of job opportunities. The joint rule proposes phasing out the current requirements with a limited transition period. During the transition, employers would be able to choose between print and electronic advertisements. According to the Departments, this provision should provide flexibility for employers who may have already purchased print advertising or have advertising contracts in place.

The proposed rule would not mandate that an employer post its advertisement on a specific website but rather 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. The proposed rule 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.

To assure that the job opportunity described in the advertisement is readily available to U.S. workers, the proposed rule 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.

The proposed rule 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 with their recruitment reports, an employer must nevertheless retain this documentation and provide it to the Department of Labor in the event of an audit or other review, the NPRM states.

A transition provision would permit an employer submitting an Application for Temporary Employment Certification with a date of need before October 1, 2019, to place either (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 to do so,” the NPRM states. 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.”

The Departments invite comments on whether they should establish qualifying criteria (e.g., the 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. The Departments also solicit comments on whether, instead of eliminating print newspaper advertisements, they should offer electronic advertisements as an alternative means of satisfying the existing print advertising requirement. The Departments are not proposing this option, but they 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 example, the Departments noted that they 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.

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  • Comments may be submitted, using one of the methods provided in the NPRM, by December 10, 2018