PART 503—ENFORCEMENT OF OBLIGATIONS FOR TEMPORARY NONIMMIGRANT NON-AGRICULTURAL WORKERS DESCRIBED IN THE IMMIGRATION AND NATIONALITY ACT Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(b); 8 U.S.C. 1184; 8 CFR 214.2(h); 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990); Pub. L. 114-74 at sec. 701. Source: 80 FR 24130, Apr. 29, 2015, unless otherwise noted. Subpart A—General Provisions § 503.0 Introduction. The regulations in this part cover the enforcement of all statutory and regulatory obligations, including requirements under 8 U.S.C. 1184(c), section 214(c) of the INA and 20 CFR part 655, subpart A, applicable to the employment of H-2B workers in nonimmigrant status under the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(15)(H)(ii)(b), section 101(a)(15)(H)(ii)(b) of the INA, and workers in corresponding employment, including obligations to offer employment to eligible United States (U.S.) workers and to not lay off or displace U.S. workers in a manner prohibited by the regulations in this part or 20 CFR part 655, subpart A. § 503.1 Scope and purpose. (a) Consultation standard. (1) There are not sufficient U.S. workers who are qualified and who will be available to perform the temporary services or labor for which an employer desires to hire foreign workers; and (2) The employment of the foreign worker will not adversely affect the wages and working conditions of U.S. workers similarly employed. (b) Role of the Employment and Training Administration (ETA). (c) Role of the Wage and Hour Division (WHD). (d) Effect of regulations. Application for Temporary Employment Certification § 503.2 Territory of Guam. This part does not apply to temporary employment in the Territory of Guam. The Department of Labor does not certify to DHS the temporary employment of nonimmigrant foreign workers or enforce compliance with the provisions of the H-2B visa program in the Territory of Guam. § 503.3 Coordination among Governmental agencies. (a) Complaints received by ETA or any State Workforce Agency (SWA) regarding noncompliance with H-2B statutory or regulatory labor standards will be immediately forwarded to the appropriate WHD office for suitable action under the regulations in this part. (b) Information received in the course of processing registrations and applications, program integrity measures, or enforcement actions may be shared between OFLC and WHD or, where applicable to employer enforcement under the H-2B program, may be forwarded to other agencies as appropriate, including the Department of State (DOS) and DHS. (c) A specific violation for which debarment is sought will be cited in a single debarment proceeding. OFLC and the WHD will coordinate their activities to achieve this result. Copies of final debarment decisions will be forwarded to DHS promptly. § 503.4 Definition of terms. For purposes of this part: Act et seq. Administrative Law Judge (ALJ) Administrator, Office of Foreign Labor Certification (OFLC) Administrator, Wage and Hour Division (WHD) Agent (1) A legal entity or person who: (i) Is authorized to act on behalf of an employer for temporary nonagricultural labor certification purposes; (ii) Is not itself an employer, or a joint employer, as defined in this part with respect to a specific application; and (iii) Is not an association or other organization of employers. (2) No agent who is under suspension, debarment, expulsion, disbarment, or otherwise restricted from practice before any court, the Department of Labor, the Executive Office for Immigration Review under 8 CFR 1003.101, or DHS under 8 CFR 292.3 may represent an employer under this part. Agricultural labor or services Applicant Application for Temporary Employment Certification Application for Temporary Employment Certification Area of intended employment Attorney Certifying Officer (CO) Chief Administrative Law Judge (Chief ALJ) Corresponding employment (1) The employment of workers who are not H-2B workers by an employer that has a certified H-2B Application for Temporary Employment Certification (i) Incumbent employees continuously employed by the H-2B employer to perform substantially the same work included in the job order or substantially the same work performed by the H-2B workers during the 52 weeks prior to the period of employment certified on the Application for Temporary Employment Certification (ii) Incumbent employees covered by a collective bargaining agreement or an individual employment contract that guarantees both an offer of at least 35 hours of work each workweek and continued employment with the H-2B employer at least through the period of employment covered by the job order, except that the employee may be dismissed for cause. (2) To qualify as corresponding employment, the work must be performed during the period of the job order, including any approved extension thereof. Date of need Application for Temporary Employment Certification. Department of Homeland Security (DHS) Employee Employer (1) Has a place of business (physical location) in the U.S. and a means by which it may be contacted for employment; (2) Has an employer relationship (such as the ability to hire, pay, fire, supervise or otherwise control the work of employees) with respect to an H-2B worker or a worker in corresponding employment; and (3) Possesses, for purposes of filing an Application for Temporary Employment Certification, Employment and Training Administration (ETA) Application for Temporary Employment Certification Federal holiday Full-time H-2B Petition Petition for a Nonimmigrant Worker, H-2B Registration Application for Temporary Employment Certification. H-2B worker Job contractor Job offer Job opportunity Job order Joint employment Layoff Metropolitan Statistical Area (MSA) National Processing Center (NPC) Application for Temporary Employment Certification Non-agricultural labor and services Offered wage Office of Foreign Labor Certification (OFLC) H-2B Registration, Application for Prevailing Wage Determination, Application for Temporary Employment Certification. Prevailing wage determination (PWD) Application for Temporary Employment Certification. Secretary Secretary of Homeland Security State Workforce Agency (SWA) et seq. Strike Successor in interest (1) Where an employer has violated 20 CFR part 655, subpart A, or this part, and has ceased doing business or cannot be located for purposes of enforcement, a successor in interest to that employer may be held liable for the duties and obligations of the violating employer in certain circumstances. The following factors, as used under Title VII of the Civil Rights Act and the Vietnam Era Veterans' Readjustment Assistance Act, may be considered in determining whether an employer is a successor in interest; no one factor is dispositive, but all of the circumstances will be considered as a whole: (i) Substantial continuity of the same business operations; (ii) Use of the same facilities; (iii) Continuity of the work force; (iv) Similarity of jobs and working conditions; (v) Similarity of supervisory personnel; (vi) Whether the former management or owner retains a direct or indirect interest in the new enterprise; (vii) Similarity in machinery, equipment, and production methods; (viii) Similarity of products and services; and (ix) The ability of the predecessor to provide relief. (2) For purposes of debarment only, the primary consideration will be the personal involvement of the firm's ownership, management, supervisors, and others associated with the firm in the violation(s) at issue. United States (U.S.) U.S. Citizenship and Immigration Services (USCIS) United States worker (U.S. worker) (1) A citizen or national of the U.S.; (2) An alien who is lawfully admitted for permanent residence in the U.S., is admitted as a refugee under 8 U.S.C. 1157, section 207 of the INA, is granted asylum under 8 U.S.C. 1158, section 208 of the INA, or is an alien otherwise authorized under the immigration laws to be employed in the U.S.; or (3) An individual who is not an unauthorized alien (as defined in 8 U.S.C. 1324a(h)(3), section 274a(h)(3) of the INA) with respect to the employment in which the worker is engaging. Wage and Hour Division (WHD) Wages § 503.5 Temporary need. (a) An employer seeking certification under 20 CFR part 655, subpart A, must establish that its need for non-agricultural services or labor is temporary, regardless of whether the underlying job is permanent or temporary. (b) The employer's need is considered temporary if justified to the CO as one of the following: A one-time occurrence; a seasonal need; a peakload need; or an intermittent need, as defined by DHS regulations. § 503.6 Waiver of rights prohibited. A person may not seek to have an H-2B worker, a worker in corresponding employment, or any other person, including but not limited to a U.S. worker improperly rejected for employment or improperly laid off or displaced, waive or modify any rights conferred under 8 U.S.C. 1184(c), INA section 214(c), 20 CFR part 655, subpart A, or the regulations in this part. Any agreement by an employee purporting to waive or modify any rights given to said person under these provisions will be void as contrary to public policy except as follows: (a) Waivers or modifications of rights or obligations hereunder in favor of the Secretary will be valid for purposes of enforcement; and (b) Agreements in settlement of private litigation are permitted. § 503.7 Investigation authority of Secretary. (a) Authority of the Administrator, WHD. (b) Conduct of investigations. (c) Confidential investigation. (d) Report of violations. § 503.8 Accuracy of information, statements, data. Information, statements, and data submitted in compliance with 8 U.S.C. 1184(c), INA section 214(c), or the regulations in this part are subject to 18 U.S.C. 1001, which provides, with regard to statements or entries generally, that whoever, in any matter within the jurisdiction of any department or agency of the U.S., knowingly and willfully falsifies, conceals, or covers up a material fact by any trick, scheme, or device, or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, will be fined not more than $250,000 or imprisoned not more than 5 years, or both. Subpart B—Enforcement § 503.15 Enforcement. The investigation, inspection, and law enforcement functions that carry out the provisions of 8 U.S.C. 1184(c), INA section 214(c), 20 CFR part 655, subpart A, or the regulations in this part pertain to the employment of any H-2B worker, any worker in corresponding employment, or any U.S. worker improperly rejected for employment or improperly laid off or displaced. § 503.16 Assurances and obligations of H-2B employers. An employer employing H-2B workers and/or workers in corresponding employment under an Application for Temporary Employment Certification Application for Temporary Employment Certification (a) Rate of pay. Application for Temporary Employment Certification (2) The offered wage is not based on commissions, bonuses, or other incentives, including paying on a piece-rate basis, unless the employer guarantees a wage earned every workweek that equals or exceeds the offered wage. (3) If the employer requires one or more minimum productivity standards of workers as a condition of job retention, the standards must be specified in the job order and the employer must demonstrate that they are normal and usual for non-H-2B employers for the same occupation in the area of intended employment. (4) An employer that pays on a piece-rate basis must demonstrate that the piece rate is no less than the normal rate paid by non-H-2B employers to workers performing the same activity in the area of intended employment. The average hourly piece rate earnings must result in an amount at least equal to the offered wage. If the worker is paid on a piece rate basis and at the end of the workweek the piece rate does not result in average hourly piece rate earnings during the workweek at least equal to the amount the worker would have earned had the worker been paid at the offered hourly wage, then the employer must supplement the worker's pay at that time so that the worker's earnings are at least as much as the worker would have earned during the workweek if the worker had instead been paid at the offered hourly wage for each hour worked. (b) Wages free and clear. (c) Deductions. Application for Temporary Employment Certification. (d) Job opportunity is full-time. (e) Job qualifications and requirements. (f) Three-fourths guarantee. (2) For purposes of this paragraph (f) a workday means the number of hours in a workday as stated in the job order. The employer must offer a total number of hours of work to ensure the provision of sufficient work to reach the three-fourths guarantee in each 12-week period (each 6-week period if the period of employment covered by the job order is less than 120 days) during the work period specified in the job order, or during any modified job order period to which the worker and employer have mutually agreed and that has been approved by the CO. (3) In the event the worker begins working later than the specified beginning date the guarantee period begins with the first workday after the arrival of the worker at the place of employment, and continues until the last day during which the job order and all extensions thereof are in effect. (4) The 12-week periods (6-week periods if the period of employment covered by the job order is less than 120 days) to which the guarantee applies are based upon the workweek used by the employer for pay purposes. The first 12-week period (or 6-week period, as appropriate) also includes any partial workweek, if the first workday after the worker's arrival at the place of employment is not the beginning of the employer's workweek, with the guaranteed number of hours increased on a pro rata basis (thus, the first period may include up to 12 weeks and 6 days (or 6 weeks and 6 days, as appropriate)). The final 12-week period (or 6-week period, as appropriate) includes any time remaining after the last full 12-week period (or 6-week period) ends, and thus may be as short as 1 day, with the guaranteed number of hours decreased on a pro rata basis. (5) Therefore, if, for example, a job order is for a 32-week period (a period greater than 120 days), during which the normal workdays and work hours for the workweek are specified as 5 days a week, 7 hours per day, the worker would have to be guaranteed employment for at least 315 hours in the first 12-week period (12 weeks × 35 hours/week = 420 hours × 75 percent = 315), at least 315 hours in the second 12-week period, and at least 210 hours (8 weeks × 35 hours/week = 280 hours × 75 percent = 210) in the final partial period. If the job order is for a 16-week period (less than 120 days), during which the normal workdays and work hours for the workweek are specified as 5 days a week, 7 hours per day, the worker would have to be guaranteed employment for at least 157.5 hours (6 weeks × 35 hours/week = 210 hours × 75 percent = 157.5) in the first 6-week period, at least 157.5 hours in the second 6-week period, and at least 105 hours (4 weeks × 35 hours/week = 140 hours × 75 percent = 105) in the final partial period. (6) If the worker is paid on a piece rate basis, the employer must use the worker's average hourly piece rate earnings or the offered wage, whichever is higher, to calculate the amount due under the guarantee. (7) A worker may be offered more than the specified hours of work on a single workday. For purposes of meeting the guarantee, however, the worker will not be required to work for more than the number of hours specified in the job order for a workday. The employer, however, may count all hours actually worked in calculating whether the guarantee has been met. If during any 12-week period (6-week period if the period of employment covered by the job order is less than 120 days) during the period of the job order the employer affords the U.S. or H-2B worker less employment than that required under paragraph (f)(1) of this section, the employer must pay such worker the amount the worker would have earned had the worker, in fact, worked for the guaranteed number of days. An employer has not met the work guarantee if the employer has merely offered work on three-fourths of the workdays in an 12-week period (or 6-week period, as appropriate) if each workday did not consist of a full number of hours of work time as specified in the job order. (8) Any hours the worker fails to work, up to a maximum of the number of hours specified in the job order for a workday, when the worker has been offered an opportunity to work in accordance with paragraph (f)(1) of this section, and all hours of work actually performed (including voluntary work over 8 hours in a workday), may be counted by the employer in calculating whether each 12-week period (or 6-week period, as appropriate) of guaranteed employment has been met. An employer seeking to calculate whether the guaranteed number of hours has been met must maintain the payroll records in accordance with this part. (g) Impossibility of fulfillment. (h) Frequency of pay. (i) Earnings statements. (2) The employer must furnish to the worker on or before each payday in one or more written statements the following information: (i) The worker's total earnings for each workweek in the pay period; (ii) The worker's hourly rate and/or piece rate of pay; (iii) For each workweek in the pay period the hours of employment offered to the worker (showing offers in accordance with the three-fourths guarantee as determined in paragraph (f) of this section, separate from any hours offered over and above the guarantee); (iv) For each workweek in the pay period the hours actually worked by the worker; (v) An itemization of all deductions made from or additions made to the worker's wages; (vi) If piece rates are used, the units produced daily; (vii) The beginning and ending dates of the pay period; and (viii) The employer's name, address and FEIN. (j) Transportation and visa fees Transportation to the place of employment. (ii) Transportation from the place of employment. (iii) Employer-provided transportation. (iv) Disclosure. (2) The employer must pay or reimburse the worker in the first workweek for all visa, visa processing, border crossing, and other related fees (including those mandated by the government) incurred by the H-2B worker, but not for passport expenses or other charges primarily for the benefit of the worker. (k) Employer-provided items. (l) Disclosure of job order. (m) Notice of worker rights. (n) No unfair treatment. (1) Filed a complaint under or related to 8 U.S.C. 1184(c), section 214(c) of the INA, 20 CFR part 655, subpart A, or this part or any other regulation promulgated thereunder; (2) Instituted or caused to be instituted any proceeding under or related to 8 U.S.C. 1184(c), section 214(c) of the INA, 20 CFR part 655, subpart A, or this part or any other regulation promulgated thereunder; (3) Testified or is about to testify in any proceeding under or related to 8 U.S.C. 1184(c), section 214(c) of the INA, 20 CFR part 655, subpart A, or this part or any other regulation promulgated thereunder; (4) Consulted with a workers' center, community organization, labor union, legal assistance program, or an attorney on matters related to 8 U.S.C. 1184(c), section 214(c) of the INA, 20 CFR part 655, subpart A, or this part or any other regulation promulgated thereunder; or (5) Exercised or asserted on behalf of himself or herself or others any right or protection afforded by 8 U.S.C. 1184(c), section 214(c) of the INA, 20 CFR part 655, subpart A, or this part or any other regulation promulgated thereunder. (o) Comply with the prohibitions against employees paying fees. H-2B Petition Application for Temporary Employment Certification. (p) Contracts with third parties to comply with prohibitions. (q) Prohibition against preferential treatment of foreign workers. (r) Non-discriminatory hiring practices. (s) Recruitment requirements. (t) Continuing requirement to hire U.S. workers. (u) No strike or lockout. Application for Temporary Employment Certification (v) No recent or future layoffs. Application for Temporary Employment Certification (w) Contact with former U.S. employees. (x) Area of intended employment and job opportunity. Application for Temporary Employment Certification Application for Temporary Employment Certification Application for Temporary Employment Certification. (y) Abandonment/termination of employment. Application for Temporary Employment Certification Application for Temporary Employment Certification, Federal Register (z) Compliance with applicable laws. Application for Temporary Employment Certification, (aa) Disclosure of foreign worker recruitment. Application for Temporary Employment Certification. (bb) Cooperation with investigators. § 503.17 Document retention requirements of H-2B employers. (a) Entities required to retain documents. Application for Temporary Employment Certification (b) Period of required retention. Application for Temporary Employment Certification Application for Temporary Employment Certification (c) Documents and records to be retained by all employer applicants. H-2B Registration Application for Temporary Employment Certification (1) Documents and records not previously submitted during the registration process that substantiate temporary need; (2) Proof of recruitment efforts, as applicable, including: (i) Job order placement as specified in 20 CFR 655.16; (ii) Contact with former U.S. workers as specified in 20 CFR 655.43; (iii) Contact with bargaining representative(s), copy of the posting of the job opportunity, and contact with community-based organizations, if applicable, as specified in 20 CFR 655.45(a), (b) and (c); and (iv) Additional employer-conducted recruitment efforts as specified in 20 CFR 655.46; (3) Substantiation of the information submitted in the recruitment report prepared in accordance with 20 CFR 655.48, such as evidence of nonapplicability of contact with former workers as specified in 20 CFR 655.43; (4) The final recruitment report and any supporting resumes and contact information as specified in 20 CFR 655.48; (5) Records of each worker's earnings, hours offered and worked, and other information as specified in § 503.16(i); (6) If appropriate, records of reimbursement of transportation and subsistence costs incurred by the workers, as specified in § 503.16(j). (7) Evidence of contact with U.S. workers who applied for the job opportunity in the Application for Temporary Employment Certification, (8) Evidence of contact with any former U.S. worker in the occupation and the area of intended employment in the Application for Temporary Employment Certification, Application for Temporary Employment Certification, (9) The written contracts with agents or recruiters, as specified in 20 CFR 655.8 and 655.9, and the list of the identities and locations of persons hired by or working for the agent or recruiter and these entities' agents or employees, as specified in 20 CFR 655.9; (10) Written notice provided to and informing OFLC that an H-2B worker or worker in corresponding employment has separated from employment before the end date of employment specified in the Application for Temporary Employment Certification, (11) The H-2B Registration, Application for Temporary Employment Certification (12) The approved H-2B Petition, (13) Any collective bargaining agreement(s), individual employment contract(s), or payroll records from the previous year necessary to substantiate any claim that certain incumbent workers are not included in corresponding employment, as specified in § 503.4. (d) Availability of documents for enforcement purposes. [80 FR 24130, Apr. 29, 2015, as amended at 84 FR 62447, Nov. 15, 2019] § 503.18 Validity of temporary labor certification. (a) Validity period. Application for Temporary Employment Certification. (b) Scope of validity. Application for Temporary Employment Certification. § 503.19 Violations. (a) Types of violations. (1) Willful misrepresentation of a material fact on the H-2B Registration, Application for Prevailing Wage Determination, Application for Temporary Employment Certification, H-2B Petition; (2) Substantial failure to meet any of the terms and conditions of the H-2B Registration, Application for Prevailing Wage Determination, Application for Temporary Employment Certification, H-2B Petition. (3) Willful misrepresentation of a material fact to the Department of State during the H-2B nonimmigrant visa application process. (b) Determining whether a violation is willful. (c) Determining whether a violation is significant. H-2B Registration, Application for Prevailing Wage Determination, Application for Temporary Employment Certification, H-2B Petition, (1) Previous history of violation(s) under the H-2B program; (2) The number of H-2B workers, workers in corresponding employment, or U.S. workers who were and/or are affected by the violation(s); (3) The gravity of the violation(s); (4) The extent to which the violator achieved a financial gain due to the violation(s), or the potential financial loss or potential injury to the worker(s); and (5) Whether U.S. workers have been harmed by the violation. (d) Employer acceptance of obligations. Application for Temporary Employment Certification H-2B Registration, Application for Prevailing Wage Determination, Application for Temporary Employment Certification, H-2B Petition § 503.20 Sanctions and remedies—general. Whenever the Administrator, WHD determines that there has been a violation(s), as described in § 503.19, such action will be taken and such proceedings instituted as deemed appropriate, including (but not limited to) the following: (a) Institute administrative proceedings, including for: the recovery of unpaid wages (including recovery of prohibited recruitment fees paid or impermissible deductions from pay, and recovery of wages due for improperly placing workers in areas of employment or in occupations other than those identified on the Application for Temporary Employment Certification (b) The remedies referenced in paragraph (a) of this section will be sought either directly from the employer, or from its successor in interest, or from the employer's agent or attorney, as appropriate. § 503.21 Concurrent actions within the Department of Labor. OFLC has primary responsibility to make all determinations regarding the issuance, denial, or revocation of a labor certification as described in § 503.1(b) and in 20 CFR part 655, subpart A. The WHD has primary responsibility to make all determinations regarding the enforcement functions as described in § 503.1(c). The taking of any one of the actions referred to above will not be a bar to the concurrent taking of any other action authorized by 8 U.S.C. 1184(c), 20 CFR part 655, subpart A, or the regulations in this part. OFLC and the WHD have concurrent jurisdiction to impose a debarment remedy under 20 CFR 655.73 or under § 503.24. § 503.22 Representation of the Secretary. The Solicitor of Labor, through authorized representatives, will represent the Administrator, WHD and the Secretary in all administrative hearings under 8 U.S.C. 1184(c)(14) and the regulations in this part. § 503.23 Civil money penalty assessment. (a) A civil money penalty may be assessed by the Administrator, WHD for each violation that meets the standards described in § 503.19. Each such violation involving the failure to pay an individual worker properly or to honor the terms or conditions of a worker's employment required by the H-2B Registration, Application for Prevailing Wage Determination, Application for Temporary Employment Certification, H-2B Petition, (b) Upon determining that an employer has violated any provisions of § 503.16 related to wages, impermissible deductions or prohibited fees and expenses, the Administrator, WHD, may assess civil money penalties that are equal to the difference between the amount that should have been paid and the amount that actually was paid to such worker(s), not to exceed $15,846 per violation. (c) Upon determining that an employer has terminated by layoff or otherwise or has refused to employ any worker in violation of § 503.16(r), (t), or (v), within the periods described in those sections, the Administrator, WHD may assess civil money penalties that are equal to the wages that would have been earned but for the layoff or failure to hire, not to exceed $15,846 per violation. No civil money penalty will be assessed, however, if the employee refused the job opportunity, or was terminated for lawful, job-related reasons. (d) The Administrator, WHD, may assess civil money penalties in an amount not to exceed $15,846 per violation for any other violation that meets the standards described in § 503.19. (e) In determining the amount of the civil money penalty to be assessed under paragraph (d) of this section, the Administrator, WHD will consider the type of violation committed and other relevant factors. In determining the level of penalties to be assessed, the highest penalties will be reserved for willful failures to meet any of the conditions of the Application for Temporary Employment Certification H-2B Petition (1) Previous history of violation(s) of 8 U.S.C. 1184(c), 20 CFR part 655, subpart A, or the regulations in this part; (2) The number of H-2B workers, workers in corresponding employment, or improperly rejected U.S. applicants who were and/or are affected by the violation(s); (3) The gravity of the violation(s); (4) Efforts made in good faith to comply with 8 U.S.C. 1184(c), 20 CFR part 655, subpart A, and the regulations in this part; (5) Explanation from the person charged with the violation(s); (6) Commitment to future compliance, taking into account the public health, interest or safety; and (7) The extent to which the violator achieved a financial gain due to the violation, or the potential financial loss or potential injury to the workers. [80 FR 24130, Apr. 29, 2015, as amended at 81 FR 42986, July 1, 2016; 82 FR 14149, Mar. 17, 2017; 83 FR 12, Jan. 2, 2018; 84 FR 218, Jan. 23, 2019; 85 FR 2298, Jan. 15, 2020; 86 FR 2968, Jan. 14, 2021; 87 FR 2334, Jan. 14, 2022; 88 FR 2216, Jan. 13, 2023; 89 FR 1816, Jan. 11, 2024; 90 FR 1860, Jan. 10, 2025] § 503.24 Debarment. (a) Debarment of an employer. (1) Failure to pay or provide the required wages, benefits, or working conditions to the employer's H-2B workers and/or workers in corresponding employment; (2) Failure, except for lawful, job-related reasons, to offer employment to qualified U.S. workers who applied for the job opportunity for which certification was sought; (3) Failure to comply with the employer's obligations to recruit U.S. workers; (4) Improper layoff or displacement of U.S. workers or workers in corresponding employment; (5) Failure to comply with one or more sanctions or remedies imposed by the Administrator, WHD for violation(s) of obligations under the job order or other H-2B obligations, or with one or more decisions or orders of the Secretary or a court under 20 CFR part 655, subpart A or this part; (6) Impeding an investigation of an employer under this part; (7) Employing an H-2B worker outside the area of intended employment, in an activity/activities not listed in the job order, or outside the validity period of employment of the job order, including any approved extension thereof; (8) A violation of the requirements of § 503.16(o) or (p); (9) A violation of any of the provisions listed in § 503.16(r); (10) Any other act showing such flagrant disregard for the law that future compliance with program requirements cannot reasonably be expected; (11) Fraud involving the H-2B Registration, Application for Prevailing Wage Determination, Application for Temporary Employment Certification, H-2B Petition; (12) A material misrepresentation of fact during the registration or application process. (b) Debarment of an agent or attorney. (c) Period of debarment. (d) Debarment procedure. (e) Concurrent debarment jurisdiction. (f) Debarment from other labor certification programs. § 503.25 Failure to cooperate with investigators. (a) No person will interfere or refuse to cooperate with any employee of the Secretary who is exercising or attempting to exercise the Department's investigative or enforcement authority under 8 U.S.C. 1184(c). Federal statutes prohibiting persons from interfering with a Federal officer in the course of official duties are found at 18 U.S.C. 111 and 18 U.S.C. 114. (b) Where an employer (or employer's agent or attorney) interferes or does not cooperate with an investigation concerning the employment of an H-2B worker or a worker in corresponding employment, or a U.S. worker who has been improperly rejected for employment or improperly laid off or displaced, WHD may make such information available to OFLC and may recommend that OFLC revoke the existing certification that is the basis for the employment of the H-2B workers giving rise to the investigation. In addition, WHD may take such action as appropriate where the failure to cooperate meets the standards in § 503.19, including initiating proceedings for the debarment of the employer from future certification for up to 5 years, and/or assessing civil money penalties against any person who has failed to cooperate with a WHD investigation. The taking of any one action will not bar the taking of any additional action. § 503.26 Civil money penalties—payment and collection. Where a civil money penalty is assessed in a final order by the Administrator, WHD, by an ALJ, or by the ARB, the amount of the penalty must be received by the Administrator, WHD within 30 calendar days of the date of the final order. The person assessed the penalty will remit the amount ordered to the Administrator, WHD by certified check or by money order, made payable to the Wage and Hour Division, United States Department of Labor. The remittance will be delivered or mailed to the WHD Regional Office for the area in which the violations occurred. Subpart C—Administrative Proceedings § 503.40 Applicability of procedures and rules. (a) The procedures and rules contained in this subpart prescribe the administrative appeal process that will be applied with respect to a determination to assess civil money penalties, to debar, to enforce provisions of the job order or provisions under 8 U.S.C. 1184(c), 20 CFR part 655, subpart A, or the regulations in this part, or to the collection of monetary relief due as a result of any violation. (b) With respect to determinations as listed in paragraph (a) involving provisions under 8 U.S.C. 1184(c), the procedures and rules contained in this subpart will apply regardless of the date of violation. Procedures Related to Hearing § 503.41 Administrator, WHD's determination. (a) Whenever the Administrator, WHD decides to assess a civil money penalty, to debar, or to impose other appropriate administrative remedies, including for the recovery of monetary relief, the party against which such action is taken will be notified in writing of such determination. (b) The Administrator, WHD's determination will be served on the party by personal service or by certified mail at the party's last known address. Where service by certified mail is not accepted by the party, the Administrator may exercise discretion to serve the determination by regular mail. § 503.42 Contents of notice of determination. The notice of determination required by § 503.41 will: (a) Set forth the determination of the Administrator, WHD, including: (1) The amount of any monetary relief due; or (2) Other appropriate administrative remedies; or (3) The amount of any civil money penalty assessment; or (4) Whether debarment is sought and the term; and (5) The reason or reasons for such determination. (b) Set forth the right to request a hearing on such determination; (c) Inform the recipient(s) of the notice that in the absence of a timely request for a hearing, received by the Chief ALJ within 30 calendar days of the date of the determination, the determination of the Administrator, WHD will become final and not appealable; (d) Set forth the time and method for requesting a hearing, and the related procedures for doing so, as set forth in § 503.43, and give the addresses of the Chief ALJ (with whom the request must be filed) and the representative(s) of the Solicitor of Labor (upon whom copies of the request must be served); and (e) Where appropriate, inform the recipient(s) of the notice that the Administrator, WHD will notify OFLC and DHS of the occurrence of a violation by the employer. § 503.43 Request for hearing. (a) Any party desiring review of a determination issued under § 503.41, including judicial review, must make a request for such an administrative hearing in writing to the Chief ALJ at the address stated in the notice of determination. In such a proceeding, the Administrator will be the plaintiff, and the party will be the respondent. If such a request for an administrative hearing is timely filed, the Administrator, WHD's determination will be inoperative unless and until the case is dismissed or the ALJ issues an order affirming the decision. (b) No particular form is prescribed for any request for hearing permitted by this section. However, any such request will: (1) Be dated; (2) Be typewritten or legibly written; (3) Specify the issue or issues stated in the notice of determination giving rise to such request; (4) State the specific reason or reasons why the party believes such determination is in error; (5) Be signed by the party making the request or by the agent or attorney of such party; and (6) Include the address at which such party or agent or attorney desires to receive further communications relating thereto. (c) The request for such hearing must be received by the Chief ALJ, at the address stated in the Administrator, WHD's notice of determination, no later than 30 calendar days after the date of the determination. A party which fails to meet this 30-day deadline for requesting a hearing may thereafter participate in the proceedings only by consent of the ALJ. (d) The request may be filed in person, by facsimile transmission, by certified or regular mail, or by courier service within the time set forth in paragraph (c) of this section. For the requesting party's protection, if the request is by mail, it should be by certified mail. If the request is by facsimile transmission, the original of the request, signed by the party or its attorney or agent, must be filed within 25 days. (e) The determination will take effect on the start date identified in the written notice of determination, unless an administrative appeal is properly filed. The timely filing of an administrative appeal stays the determination pending the outcome of the appeal proceedings. (f) Copies of the request for a hearing will be sent by the party or attorney or agent to the WHD official who issued the notice of determination on behalf of the Administrator, WHD, and to the representative(s) of the Solicitor of Labor identified in the notice of determination. Rules of Practice § 503.44 General. (a) Except as specifically provided in the regulations in this part and to the extent they do not conflict with the provisions of this part, the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges established by the Secretary at 29 CFR part 18 will apply to administrative proceedings described in this part. (b) As provided in the Administrative Procedure Act, 5 U.S.C. 556, any oral or documentary evidence may be received in proceedings under this part. The Federal Rules of Evidence and subpart B of the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges (29 CFR part 18, subpart B) will not apply, but principles designed to ensure production of relevant and probative evidence will guide the admission of evidence. The ALJ may exclude evidence which is immaterial, irrelevant, or unduly repetitive. § 503.45 Service of pleadings. (a) Under this part, a party may serve any pleading or document by regular mail. Service on a party is complete upon mailing to the last known address. No additional time for filing or response is authorized where service is by mail. In the interest of expeditious proceedings, the ALJ may direct the parties to serve pleadings or documents by a method other than regular mail. (b) Two copies of all pleadings and other documents in any ALJ proceeding must be served on the attorneys for the Administrator, WHD. One copy must be served on the Associate Solicitor, Division of Fair Labor Standards, Office of the Solicitor, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-2716, Washington, DC 20210, and one copy must be served on the attorney representing the Administrator in the proceeding. (c) Time will be computed beginning with the day following service and includes the last day of the period unless it is a Saturday, Sunday, or Federally-observed holiday, in which case the time period includes the next business day. § 503.46 Commencement of proceeding. Each administrative proceeding permitted under 8 U.S.C. 1184(c)(14) and the regulations in this part will be commenced upon receipt of a timely request for hearing filed in accordance with § 503.43. § 503.47 Caption of proceeding. (a) Each administrative proceeding instituted under 8 U.S.C. 1184(c)(14), INA section 214(c)(14) and the regulations in this part will be captioned in the name of the person requesting such hearing, and will be styled as follows: In the Matter of __________, Respondent. (b) For the purposes of such administrative proceedings the Administrator, WHD will be identified as plaintiff and the person requesting such hearing will be named as respondent. § 503.48 Conduct of proceeding. (a) Upon receipt of a timely request for a hearing filed under and in accordance with § 503.43, the Chief ALJ will promptly appoint an ALJ to hear the case. (b) The ALJ will notify all parties of the date, time and place of the hearing. Parties will be given at least 30 calendar days' notice of such hearing. (c) The ALJ may prescribe a schedule by which the parties are permitted to file a prehearing brief or other written statement of fact or law. Any such brief or statement must be served upon each other party. Post-hearing briefs will not be permitted except at the request of the ALJ. When permitted, any such brief must be limited to the issue or issues specified by the ALJ, will be due within the time prescribed by the ALJ, and must be served on each other party. Procedures Before Administrative Law Judge § 503.49 Consent findings and order. (a) General. (b) Content. (1) That the order will have the same force and effect as an order made after full hearing; (2) That the entire record on which any order may be based will consist solely of the notice of administrative determination (or amended notice, if one is filed), and the agreement; (3) A waiver of any further procedural steps before the ALJ; and (4) A waiver of any right to challenge or contest the validity of the findings and order entered into in accordance with the agreement. (c) Submission. (1) Submit the proposed agreement for consideration by the ALJ; or (2) Inform the ALJ that agreement cannot be reached. (d) Disposition. Post-Hearing Procedures § 503.50 Decision and order of Administrative Law Judge. (a) The ALJ will prepare, within 60 days after completion of the hearing and closing of the record, a decision on the issues referred by the Administrator, WHD. (b) The decision of the ALJ will include a statement of the findings and conclusions, with reasons and basis therefore, upon each material issue presented on the record. The decision will also include an appropriate order which may affirm, deny, reverse, or modify, in whole or in part, the determination of the Administrator, WHD. The reason or reasons for such order will be stated in the decision. (c) In the event that the Administrator, WHD assesses back wages for wage violation(s) of § 503.16 based upon a PWD obtained by the Administrator from OFLC during the investigation and the ALJ determines that the Administrator's request was not warranted, the ALJ will remand the matter to the Administrator for further proceedings on the Administrator's determination. If there is no such determination and remand by the ALJ, the ALJ will accept as final and accurate the wage determination obtained from OFLC or, in the event the party filed a timely appeal under 20 CFR 655.13 the final wage determination resulting from that process. Under no circumstances will the ALJ determine the validity of the wage determination or require submission into evidence or disclosure of source data or the names of establishments contacted in developing the survey which is the basis for the PWD. (d) The decision will be served on all parties. (e) The decision concerning civil money penalties, debarment, monetary relief, and/or other administrative remedies, when served by the ALJ will constitute the final agency order unless the ARB, as provided for in § 503.51, determines to review the decision. Review of Administrative Law Judge's Decision § 503.51 Procedures for initiating and undertaking review. (a) A respondent, the WHD, or any other party wishing review, including judicial review, of the decision of an ALJ will, within 30 days of the decision of the ALJ, petition the ARB to review the decision. Copies of the petition will be served on all parties and on the ALJ. (b) No particular form is prescribed for any petition for the ARB's review permitted by this part. However, any such petition will: (1) Be dated; (2) Be typewritten or legibly written; (3) Specify the issue or issues stated in the ALJ decision and order giving rise to such petition; (4) State the specific reason or reasons why the party petitioning for review believes such decision and order are in error; (5) Be signed by the party filing the petition or by an authorized representative of such party; (6) Include the address at which such party or authorized representative desires to receive further communications relating thereto; and (7) Include as an attachment the ALJ's decision and order, and any other record documents which would assist the ARB in determining whether review is warranted. (c) If the ARB does not issue a notice accepting a petition for review of the decision within 30 days after receipt of a timely filing of the petition, or within 30 days of the date of the decision if no petition has been received, the decision of the ALJ will be deemed the final agency action. (d) Whenever the ARB, either on the ARB's own motion or by acceptance of a party's petition, determines to review the decision of an ALJ, a notice of the same will be served upon the ALJ and upon all parties to the proceeding. § 503.52 Responsibility of the Office of Administrative Law Judges (OALJ). Upon receipt of the ARB's notice under § 503.51, the OALJ will promptly forward a copy of the complete hearing record to the ARB. § 503.53 Additional information, if required. Where the ARB has determined to review such decision and order, the ARB will notify the parties of: (a) The issue or issues raised; (b) The form in which submissions will be made ( i.e., (c) The time within which such presentation will be submitted. § 503.54 Submission of documents to the Administrative Review Board. All documents submitted to the ARB will be filed with the Administrative Review Board, U.S. Department of Labor, 200 Constitution Avenue NW., Room S-5220, Washington, DC 20210. An original and two copies of all documents must be filed. Documents are not deemed filed with the ARB until actually received by the ARB. All documents, including documents filed by mail, must be received by the ARB either on or before the due date. Copies of all documents filed with the ARB must be served upon all other parties involved in the proceeding. § 503.55 Final decision of the Administrative Review Board. The ARB's final decision will be issued within 90 days from the notice granting the petition and served upon all parties and the ALJ. Record § 503.56 Retention of official record. The official record of every completed administrative hearing provided by the regulations in this part will be maintained and filed under the custody and control of the Chief ALJ, or, where the case has been the subject of administrative review, the ARB.