H-2 Visa Job Ads to Be Moved Online

Employers support proposal, wait for details

Roy Maurer By Roy Maurer November 21, 2018
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H-2 Visa Job Ads to Be Moved Online

​U.S. employers looking to hire foreign nationals for temporary, low-skilled work will be able to meet federal recruiting requirements by posting jobs online, rather than in print newspaper advertisements, under a new proposal.

The Trump administration recently issued two identical proposed rules seeking to modernize the recruitment requirements for the H-2A and H-2B visa programs, which allow U.S. employers to hire foreign national workers for temporary agricultural and other seasonal positions.

Employers would not have to post job ads in local newspapers and could instead use online recruitment options to reach more U.S. job seekers and update an out-of-date process.

"This is great news and a good start to a needed reform process for the H-2A visa," said Michael Marsh, president and CEO of the National Council of Agricultural Employers, an advocacy organization based in Washington, D.C. "The Department of Labor has finally acknowledged what agricultural employers have been telling them for years—potential U.S. workers are not coming forward in response to print newspaper advertising for available agricultural jobs, and that advertising is costly to employers."

Currently, employers seeking labor certification for H-2A and H-2B visa workers must run an advertisement for the open position in a local newspaper on two separate days, one of which must be a Sunday. The regulation is meant to ensure that employers first seek to recruit interested U.S. workers before sponsoring a foreign guest worker. But the Pew Research Center has pointed out that 79 percent of job seekers research jobs online while only 32 percent use print classifieds.

"By increasing the accessibility of advertisements to Americans, these proposals bring H-2B and H-2A visa programs in line with the modern recruitment practices of employers and the job-seeking practices of American workers," the Department of Homeland Security (DHS) and the Department of Labor (DOL) said in a joint statement. "Electronic advertisements offer employers a less expensive, more convenient means of broadly disseminating information about their job opportunities to potential U.S. workers."

The existing recruitment requirements have been frustrating for employers, said Loan Huynh, an attorney in the Minneapolis office of Fredrikson & Byron. "That's because the regulations require specific information in the advertisements, which can run over many lines of text and becomes very expensive." Each employer must also post a job order with the state workforce job site, in addition to the newspaper ad, she added.

The average cost of a single, one-day newspaper ad for H-2A employers is nearly $700 and about $800 for H-2B employers, according to the DOL. Switching to online posting would save $6.5 million annually for H-2A users and $9.4 million for H-2B users.

Additionally, the proposed rules would:

  • Require employers to post the online ad for at least 14 consecutive calendar days. The longer period of visibility will conceivably attract more U.S. workers to job opportunities.
  • Require employers to print and retain screen shots of the webpages on which its job advertisement appears and screen shots of the webpages establishing the path used to access the listing. The proposed rule does not require employers to submit this documentation with their recruitment reports, but organizations must retain the documentation and produce it in the event of an audit. "This could be an onerous requirement," Huynh said.
  • Allow employers to place ads on any of a variety of job-posting websites, including sites that specialize in job opportunities for the specific industry or occupation and sites that specifically serve the local area, such as the digital classified sections of local newspapers.

"If there is a broad interpretation to which sites employers can use, that will be fantastic," Huynh said. "But if there is going to be second-guessing from the DOL about the sites employers use, that's the concern. We won't know until the agency provides more guidance or details on how they will interpret that guidance."

The proposed rules also include a transition period to provide employers with additional time to understand and comply with the changes.

[SHRM members-only online discussion platform: SHRM Connect]

DOL-Assisted Advertising

The DOL also announced plans to create a centralized platform to automate the sharing of online job ads for approved H-2A and H-2B job opportunities to job-search sites in real time for advertising to U.S. workers.

"DOL expects that employers would provide information about their job opportunities, at the time of filing their H-2B temporary labor certification applications, and indicate their intention to use the electronic advertising platform," the department said. "Employers that elect to use this platform would have information about their job opportunities transmitted by DOL to companies offering to provide advertising services, which in turn would advertise these jobs on the companies' job-search websites."

More H-2 Visas Needed

Huynh said modernization of the recruitment requirements is needed but the bigger issue is numbers. "More visas need to be made available," she said. "Last year, the number of petitions filed was the highest ever."

Re-evaluating whether some of the roles and industries covered under the temporary labor programs should be open to year-round employment is something else that needs to be considered, she said.

"Even though the program is meant for temporary, seasonal need, many employers need these workers year-round," Huynh continued. "This is the only visa category for these types of workers. And if there's a year-round need, it doesn't make sense to put an artificial ceiling on the numbers."

[Visit SHRM's resource page on workplace immigration]

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