DHS and DOL Seek to Replace the H-2B Print Newspaper Ads with Online Ads

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At a glance

• If the proposed regulation is implemented, H-2B employers will be required to post electronic advertisements on the internet; DOL seeks to eliminate the two print newspaper advertisements that the regulations currently require.
• The rule is a proposal only and will be published for public feedback.It will not take effect until approved in final form, a process that typically takes several months.

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The situation

The Departments of Homeland Security (DHS) and Labor (DOL) have released a draft regulation intended to modernize the recruitment requirements related to the sponsorship of H-2B temporary workers. The draft rule proposes to eliminate the current print newspaper advertisement requirement and replace it with an online advertisement requirement.

The H-2B program allows employers to hire foreign workers for work that is seasonal, intermittent, a one-time occurrence, or due to peak-workload provided that there are insufficient U.S. workers available for the job. Under the current program, employers can demonstrate their need for temporary workers if, after they place two print newspaper advertisements, including one on a Sunday, no qualified, able, willing, available U.S. workers are identified. By eliminating the print advertising requirement in favor of online advertising, DHS and DOL hope to reach more U.S. worker applicants and provide a more cost effective advertising scheme. 

The new advertising scheme

If implemented in its current form, the proposed regulation would require employers to advertise for the job opportunity “on at least one website that is widely viewed and appropriate for use by U.S workers who are likely to apply for the job opportunity.” The advertisement would need to be:

• Clearly visible on the website’s homepage or easily retrievable using the search tools on the website;
• Posted for 14 consecutive calendar days;
• Publicly accessible at no cost to the U.S. worker applicant;
• Functionally compatible with the latest commercial web browser platforms and easily viewable on mobile smartphones and similar portable devices; and
• Compliant with the H-2B advertising content requirements.

Though this rule is a proposal only and will not take effect until comments are taken into consideration, DHS and DOL have stated that the rule will become effective immediately upon finalization.  A transition period allowing employers to choose between placing print or online advertising will be available, but only for employers sponsoring H-2B workers where the date of need is before October 1, 2019. 

In connection with this rule, DOL is also working towards the creation of a platform that would give employers the option of having the agency post the online advertisements on their behalf.  The rollout of this endeavor remains in the planning stages and will likely occur through a separate notice in the Federal Register. 

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.