The H-2B Process Leaps into the 21st Century

By Preston Huennekens on November 19, 2018

The Department of Homeland Security (DHS) and the Department of Labor (DOL) jointly announced that they have "modernized the recruitment requirements for employers seeking H-2B nonimmigrant workers." This proposed change was published in the Federal Register. DHS and DOL joined the rest of us in 2018 by announcing that instead of employers advertising their available positions in newspapers, vacancies will now be posted online. 

At the beginning of the H-2B certification process, employers must prove to DOL that they have attempted to recruit American workers. This has been half-heartedly done by publishing two separate ads in a single local newspaper. DOL describes the process fully on its website, stating that:

An employer is required to actively recruit U.S. workers during the 14 calendar days following the issuance of a Notice of Acceptance (NOA). Specifically, the employer must: Place a print advertisement on 2 separate days, one of which must be a Sunday (unless no Sunday edition exists), in a newspaper of general circulation serving the area of intended employment and appropriate to the occupation and workers likely to apply for the job opportunity.

Once employers demonstrate that no one responded to either of their two newspaper advertisements, they are free to hire the H-2B foreign guestworkers.

This is proposed rule change makes sense. Studies show that newspaper circulation has fallen significantly as fewer and fewer people continue to regularly buy (let alone read) physical newspapers. By contrast, a report found that in 2017 about 72 percent of new hires were made through online platforms. Prospective laborers may have never seen job openings in the first place unless they were fortunate enough to peruse the newspaper one one of the two days featuring the advertisements.

It is certainly possible that this change will lead to some increased hiring of Americans simply because more job-seekers are likely see the openings, though, as my colleague David North notes, a genuine effort to recruit American workers would require a lot more than simply posting a notice online. The rule's text reads:

[T]he Departments believe [electronic advertisements] will be a more effective and efficient means of disseminating information about job openings to U.S. workers. ... [The Departments] believe that exclusive electronic advertisements posted on a website appropriate for the workers likely to apply for the job opportunity in the area of intended employment would best ensure that U.S. workers learn of job opportunities.

But why did it take DHS and DOL until 2018 to propose this change?