Just as the H-2B visas for the first half of the fiscal year 2020 ran out (with some limited exceptions), the Department of Homeland Security (DHS), in cooperation with the Department of Labor (DOL), has released a new final rule on H-2B visas that changes and modernizes the recruitment process.

The rule, which becomes effective on December 16, 2019, provides that employers will no longer need to run an expensive print ad in a newspaper of general circulation for these temporary, seasonal, non-agricultural worker visas. Instead, DOL will post the job ad on its Seasonaljobs.dol.gov website.

DOL believes that this will improve efficiency. This also will help DOL expand and enhance its electronic job registry to publicize available job opportunities to the widest audience possible. Certifying Officers (COs) will retain the discretion to evaluate case by case whether additional recruitment might be necessary to ensure an adequate labor market test.

When the new rule was first published for comment in November 2018, DHS and DOL suggested that it would be up to the employer to place an electronic ad and ensure that it met all regulatory requirements (including that it be clearly visible on the website homepage, that it be easily retrievable and publicly accessible at no cost, that the website be functionally compatible with the latest browsers, and that it be easily reviewable on mobile devices). By the end of the comment period, DHS and DOL decided to handle the posting themselves since making the employer responsible for meeting the technical requirements appeared unwieldy, especially for employers who may not be tech savvy.

Commentators, particularly newspapers, defended the viability of print ads and expressed concern about the financial impact on newspapers and the fact that not everyone – especially in rural areas – has good or even adequate internet access. Nevertheless, DHS and DOL concluded based on data from PEW and others that the internet is becoming the most popular way to search for jobs and that the number of individuals without access to the internet is declining. In addition, DOL noted that, by its handling of the electronic posting, unscrupulous employers will have no place to “hide” advertisements.

DOL recognizes that the Seasonaljobs.dol.gov site is currently a bit “clunky,” so it is transitioning to a new platform that, among other things, will be mobile friendly.

When the H-2B recruitment postings begin, the site will include:

  • A concise job description with a link to the full description;
  • The geographic location of the position;
  • Accessibility to language translation services;
  • Accessibility to Web scraping; and
  • An enhanced RSS feed.

This move may be a first step toward eliminating the print newspaper ad requirement for PERM recruitments – likely an even bigger blow to newspaper classified ad revenue.

Please contact a Jackson Lewis attorney with any questions.