Nov 8, 2018

Advertising rules for H-2A face proposed changes

To make it easier for Americans to find and fill open jobs, the U.S. Department of Labor issued a proposal Nov. 8 for employers seeking temporary labor certifications through the H-2B and H-2A visa programs to advertise jobs online.

Under current rules, an employer advertising a job for which it seeks a temporary labor certification must publish two print advertisements in a newspaper of general circulation in the area of intended employment.

To modernize this recruitment and make job opportunities more readily available to Americans, the Department of Labor and the U.S. Department of Homeland Security are proposing a rule that would require employers seeking temporary labor certifications through the H-2B visa program to post job advertisements online for at least 14 days.

The Department of Labor is simultaneously proposing a similar rule for temporary labor certifications through the H-2A visa program for agricultural workers.

By increasing the accessibility of advertisements to Americans, these proposals bring H-2B and H-2A visa programs in line with the modern recruitment practices of employers and the job-seeking practices of American workers. With Internet-based advertising, American job seekers in the intended employment area and across the nation can more easily identify available job opportunities. Additionally, the longer posting period of 14 days would give American workers more time to learn of job opportunities. The proposed rules may also reduce employers’ recruitment costs.

As part of its labor certification responsibilities, the Department of Labor’s Employment and Training Administration’s Office of Foreign Labor Certification is required to determine whether American workers are available to perform the jobs for which employers seek foreign workers. The Department determines the availability of American workers, in part, by requiring employer applicants for foreign labor certification to actively recruit American workers.

The Notice of Proposed Rulemaking comment period will end on Dec. 10, 2018.

U.S. Secretary of Agriculture Sonny Perdue praised the proposed rulemaking by the U.S. Department of Labor (DOL), which could help farmers advertise job openings to domestic workers as required under the H-2A visa program.  The DOL rulemaking would require that employers seeking to hire temporary workers post the employment opportunities online, rather than in expensive newspapers advertisements reaching a limited audience.  This is an early step in H-2A regulatory reforms as promised in May in a joint statement of the Secretaries of Agriculture, Labor, State, and Homeland Security.

Secretary Perdue issued the following statement:

“When I travel around the country, one of the biggest concerns farmers raise is the shortage of legal farm labor.  Our farmers and ranchers are the most productive in the world, and they want to obey immigration law.  Where American workers are not available, farmers turn to the H-2A program that is overly bureaucratic and cost prohibitive.  Using regulations like this is one way to modernize H-2A to reach more American workers, while providing relief to farmers from one of the high costs of the program.  It’s good to see the federal government using 21st Century technology, rather than being limited to placing notices in the want ads. 

“H-2A reforms can chip around the edges of the labor shortage problem, but it will take action from Congress to address it fully.  I applaud Secretary Acosta and urge members of Congress to redouble their efforts to help our farmers find the workers they need to continue to feed, fuel, and clothe the United States and the world.”