H-2B Visa Employer Series: Local Recruitment - America First
Welcome back to the H-2B Visa Employer Series. Today’s Post will discuss what happens after you receive the coveted Notice of Acceptance (NOA) from the Department of Labor - Recruitment of Local Workers. An often overlooked or ignored characteristic of the H-2B Visa program is the fact that EVERY Employer must conduct recruitment of local workers prior to receiving H-2B Visa status. The failure to properly follow each and all of the steps discussed below can not only result in a denial of certification, but could also result in penalties or fines or even a bar from the H-2B program entirely. This Post will not only discuss the necessary actions that every Employer must take, but will also discuss how and when to file a Recruitment Report disclosing the actions took and the outcomes of each recruitment effort. It is important to remember main underlying reason for these recruitment requirements is “America First” - If, at any point an Employer has a question about whether their conduct is proper, a great general rule is to ask, “Am I putting America First?”
Recruitment
Once an Employer receives its NOA, the Employer should be ready to recruit immediately. Recruitment must be conducted for a period of 15 consecutive days. While Employers generally recruit by the following efforts, every Employer should review its “Instructions for Recruiting U.S. Workers” included with the NOA as well as Fact Sheet #78 (though it is slightly outdated).
Methods of Recruitment
Seasonal Jobs Website (SeasonalJobs.dol.gov) - Remember that Job Order submitted with the 9142B? That Job Order is automatically uploaded and opens upon the Employer’s NOA. (This is much easier than the old newspaper requirement!)
Remember…America First. “The employer must consider all U.S. applicants resulting from the posting of this job opportunity on SeasonalJobs.dol.gov.”
State Workforce Agency - Remember that same Job Order? That Job Order should have been simultaneously submitted to the Employer’s State Workforce Agency (SWA). Sometimes this means sending an email to a representative at the SWA while other state’s process everything through its online portal, and the Job Order opens upon the Employer’s NOA.
And don’t forget, America First. “Employers must consider all U.S. applicants resulting from the posting of this job opportunity on the opening of the job order.”
Contacting Former Employees - “The employer must contact (by mail or other effective means) former employees whom it employed in the occupation at the place of employment during the previous year, inform them of the terms of the job order, and solicit their return to the job. The employer is not required to contact former employees who were dismissed for cause or abandoned the worksite.”
For most Employers, this is not an issue, because most Employers would prefer to have a former U.S. employee who was not dismissed for cause or did not abandon the worksite. But the reality is that Employers aren’t exactly dismissing workers without cause so that they can pay thousands of dollars to the U.S. Government and attorneys to bring in H-2B workers.
Employer Website - Some Employers will need to contact a bargaining representative, but if this is not applicable, there are alternative recruitment requirements. While there are other ways to satisfy this requirement, almost all Employers choose to advertise on their website. Almost all Employers have an “Employment” or “Opportunities” page on their website, and uploading the Job Order to one of these pages (for 15 days) satisfies this recruitment requirement.
Additional Recruitment - Sometimes the Office of Foreign Labor Certification (OFLC) will instruct Employers to conduct additional recruitment. This isn’t as common, but be aware that it does happen and cannot be ignored because it wasn’t required in a previous cycle.
Treatment of Applicants
This part is pretty simple…Think America First. Employers must consider ALL applicants. Employers “must accept and hire any applicants who are qualified and will be available [during the dates of need.]” If employment is not offered, Employers must provide a lawful explanation as to why an offer was not extended, and the absence of a lawful explanation may result in a reduction of the total number beneficiaries available to the Employer through the H-2B Visa program.
Recruitment Report
Following recruitment efforts, Employers must file a Recruitment Report. This Report is submitted via FLAG and should contain ALL recruitment information. Employers must disclose each method of recruitment and must disclose the results of each method. In the event that there are U.S. workers who contact an Employer, the Employer must disclose information about these individuals, and must disclose whether each individual was offered a position or whether an offer was not extended, if if an offer was not extended, the Employer must disclose the reason for this outcome.
This is the Employer’s opportunity to demonstrate its compliance with all recruitment requirements, and the failure to properly disclose all efforts and outcomes in a Recruitment Report can result in a request for further information and can delay the Employer’s Certification and its ability to proceed to USCIS.
Following the submission of a properly drafted Recruitment Report, Employers generally receive a Full Certification, and may proceed to USCIS and the filing of the I-129, which will be the topic of the next Post in the H-2B Visa Series. If you find this information beneficial, check back on Monday, October 4, for “I-129, I-907, 9142B…How Many Pages?!?”
