[Code of Federal Regulations]
[Title 20, Volume 3]
[Revised as of April 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 20CFR655.105]

[Page 495-497]
 
                      TITLE 20--EMPLOYEES' BENEFITS
 
 CHAPTER V--EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR
 
PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES--Table of Contents
 
   Subpart B--Labor Certification Process for Temporary Agricultural 
             Employment in the United States (H-2A Workers)
 
Sec. 655.105  Recruitment period.

    (a) Notice of acceptance of application for consideration; required 
recruitment. If the RA determines that the H-2A application meets the 
requirements of Secs. 655.101-655.103 of this part, the RA shall 
promptly notify the employer (by means normally assuring next-day 
delivery) in writing with copies to the State agency. The notice shall 
inform the employer and the State agency of

[[Page 496]]

the specific efforts which will be expected from them during the 
following weeks to carry out the assurances contained in Sec. 655.103 
with respect to the recruitment of U.S. workers. The notice shall 
require that the job order be laced into intrastate clearance and into 
interstate clearance to such States as the RA shall determine to be 
potential sources of U.S. workers. The notice may require the employer 
to engage in positive recruitment efforts within a multi-State region of 
traditional or expected labor supply where the RA finds, based on 
current information provided by a State agency and such information as 
may be offered and provided by other sources, that there are a 
significant number of able and qualified U.S. workers who, if recruited, 
would likely be willing to make themselves available for work at the 
time and place needed. In making such a finding, the RA shall take into 
account other recent recruiting efforts in those areas and will attempt 
to avoid requiring employers to futilely recruit in areas where there 
are a significant number of local employers recruiting for U.S. workers 
for the same types of occupations. Positive recruitment is in addition 
to, and shall be conducted within the same time period as, the 
circulation through the interstate clearance system of an agricultural 
clearance order. The obligation to engage in such positive recruitment 
shall terminate on the date H-2A workers depart for the employer's place 
of work. In determining what positive recruitment shall be required, the 
RA will ascertain the normal recruitment practices of non-H-2A 
agricultural employers in the area and the kind and degree of 
recruitment efforts which the potential H-2A employer made to obtain H-
2A workers. The RA shall ensure that the effort, including the 
location(s) of the positive recruitment required of the potential H-2A 
employer, during the period after filing the application and before the 
date the H-2A workers depart their prior location to come to the place 
of employment, shall be no less than: (1) The recruitment efforts of 
non-H-2A agricultural employers of comparable or smaller size in the 
area of employment; and (2) the kind and degree of recruitment efforts 
which the potential H-2A employer made to obtain H-2A workers.
    (b) Recruitment of U.S. workers. After an application for temporary 
alien agricultural labor certification is accepted for processing 
pursuant to paragraph (a) of this section, the RA, under the direction 
of the ETA national office and with the assistance of other RAs with 
respect to areas outside the region, shall provide overall direction to 
the employer and the State agency with respect to the recruitment of 
U.S. workers.
    (c) Modifications. At any time during the recruitment effort, the 
RA, with the Director's concurrence, may require modifications to a job 
offer when the RA determines that the job offer does not contain all the 
provisions relating to minimum benefits, wages, and working conditions, 
required by Sec. 655.102(b) of this part. If any such modifications are 
required after an application has been accepted for consideration by the 
RA, the modifications must be made; however, the certification 
determination shall not be delayed beyond the 20 calendar days prior to 
the date of need as a result of such modification.
    (d) Final determination. By 20 calendar days before the date of need 
specified in the application, except as provided for under 
Secs. 655.101(c)(2) and 655.104(e) of this part for untimely modified 
applications, the RA, when making a determination of the availability of 
U.S. workers, shall also make a determination as to whether the employer 
has satisfied the recruitment assurances in Sec. 655.103 of this part. 
If the RA concludes that the employer has not satisfied the requirements 
for recruitment of U.S. workers, the RA shall deny the temporary alien 
agricultural labor certification, and shall immediately notify the 
employer in writing with a copy to the State agency and local office. 
The notice shall contain the statements specified in Sec. 655.104(d) of 
this part.
    (e) Appeal procedure. With respect to determinations by the RA 
pursuant to this section, if the employer timely requests an expedited 
administrative review or a de novo hearing before an administrative law 
judge, the procedures

[[Page 497]]

in Sec. 655.112 of this part shall be followed.

    Effective Date Note: At 65 FR 43543, July 13, 2000, Sec. 655.105 was 
amended by revising the section heading; by removing from the first 
sentence in paragraph (a) the word ``H-2A'; by removing in paragraph (b) 
the phrase ``for temporary alien agricultural labor certification'';by 
removing from the last sentence in paragraph (c) the phrase ``20 
calendar days'' and adding the phrase ``30 calendar days'' in lieu 
thereof;in paragraph (d) in the first sentence the phrase ``20 calendar 
days'' is removed and the phrase ``30 calendar days'' is added in lieu 
thereof; and adding a new sentence after the second sentence, effective 
Nov. 13, 2000. The effective date was delayed until Oct. 1, 2001 at 65 
FR 67628, Nov. 13, 2000. The added and revised text is set forth as 
follows:

Sec. 655.105  Recruitment of U.S. workers and final determinations on 
          certification and H-2A petition.

                                * * * * *

    (d) *  *  * If the RA denies the application for temporary alien 
agricultural labor certification, the RA shall also deny the petition 
for lack of a labor certification and any other applicable reason in 
accordance with the criteria set out in 8 CFR 214.2(h).* * *

                                * * * * *