[Code of Federal Regulations]
[Title 20, Volume 3]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 20CFR655.105]

[Page 478-479]
 
                      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 Sec. Sec. 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 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

[[Page 479]]

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 Sec. Sec. 
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 in Sec. 655.112 of this part shall be followed.