--- kind: "range" citation: "20 C.F.R. §§ 655.150–655.158" title: "20" from: "655.150" to: "655.158" count: 8 url: "https://uscodex.org/cfr/20/655.150..655.158" --- # §655.150. Interstate clearance of job order. - (a) **CO approves for interstate clearance.** The CO will promptly transmit a copy of the approved job order for interstate clearance, at minimum, to all States listed in the job order as anticipated place(s) of employment and all other States designated by the OFLC Administrator as States of traditional or expected labor supply for the anticipated place(s) of employment under [§ 655.154(d)](/cfr/20/655.154.md?p=d). - (b) **Duration of posting.** Each of the SWAs to which the CO transmits the job order must keep the job order on its active file until the end of the recruitment period, as set forth in [§ 655.135(d)](/cfr/20/655.135.md?p=d), and must refer each qualified U.S. worker who applies (or on whose behalf an application is made) for the job opportunity. # §655.151-655.152. Reserved # §655.153. Contact with former U.S. workers. The employer must contact, by mail or other effective means, U.S. workers employed by the employer in the occupation at the place of employment during the previous year and solicit their return to the job. This contact must occur during the period of time that the job order is being circulated by the SWA(s) for interstate clearance under [§ 655.150](/cfr/20/655.150.md) and before the date specified in [§ 655.158](/cfr/20/655.158.md). Documentation sufficient to prove contact must be maintained in the event of an audit or investigation. An employer has no obligation to contact U.S. workers it terminated for cause or who abandoned employment at any time during the previous year if the employer provided timely notice to the NPC of the termination or abandonment in the manner described in [§ 655.122(n)](/cfr/20/655.122.md?p=n). # §655.154. Additional positive recruitment. - (a) **Where to conduct additional positive recruitment.** In addition to the CO's posting of the job opportunity on an electronic job registry in accordance with [§ 655.144](/cfr/20/655.144.md), the employer must conduct positive recruitment as required by the OFLC Administrator's determination of traditional or expected labor supply States, which is published annually in accordance with [paragraph (d)](#d) of this section. - (b) **Additional requirements should be comparable to non-H-2A employers in the area.** The location(s) and method(s) of the positive recruitment required of the employer must be no less than the normal recruitment efforts of non-H-2A agricultural employers of comparable or smaller size in the area of intended employment, taking into consideration the kind and degree of recruitment efforts which the employer may make to obtain foreign workers. - (c) **Nature of the additional positive recruitment.** The OFLC Administrator's labor supply State determination will identify areas of labor supply within a State, and the NOA issued under [§ 655.143](/cfr/20/655.143.md) will describe the precise nature of the additional positive recruitment required of the employer, if any. The employer will not be required to conduct positive recruitment in more than three States for each area of intended employment listed on the employer's Application for Temporary Employment Certification and job order. - (d) **Determination of labor supply States.** - (1) The OFLC Administrator will make an annual determination with respect to each State whether there are other traditional or expected labor supply States and, within a traditional or expected labor supply State, areas in which there are a significant number of qualified U.S. workers who, if recruited, would be willing to make themselves available for work in that State. The OFLC Administrator will publish the determination annually on OFLC's website. - (2) The determination will become effective on the date of publication on OFLC's website for employers who have not commenced positive recruitment under this subpart and will remain valid until the OFLC Administrator publishes a new determination. - (3) The determination as to whether any State is a source of traditional or expected labor supply to another State will be based primarily upon information provided by the SWAs to the OFLC Administrator within 120 calendar days preceding the determination. # §655.155. Referrals of U.S. workers. SWAs may only refer for employment individuals who have been apprised of all the material terms and conditions of employment and have indicated, by accepting referral to the job opportunity, that they are qualified, able, willing, and available for employment. # §655.156. Recruitment report. - (a) **Requirements of a recruitment report.** The employer must prepare, sign, and date a written recruitment report. The recruitment report must be submitted on a date specified by the CO in the NOA set forth in [§ 655.143](/cfr/20/655.143.md) and contain the following information: - (1) Identify the name of each recruitment source and date(s) of advertisement; - (2) State the name and contact information of each U.S. worker who applied or was referred to the job opportunity up to the date of the preparation of the recruitment report, and the disposition of each worker; - (3) Confirm that former U.S. workers were contacted, with a description by what means they were contacted and the date(s) of such contact, or state there are no former U.S. workers to contact; and - (4) If applicable, for each U.S. worker who applied for the position but was not hired, explain the lawful job-related reason(s) for not hiring the U.S. worker. - (b) **Duty to update recruitment report.** The employer must continue to update the recruitment report until the end of the recruitment period, as set forth in [§ 655.135(d)](/cfr/20/655.135.md?p=d). The updated report must be made available in the event of a post-certification audit or upon request by the Department. The Department may share recruitment report information with any other Federal agency, as set forth in [§ 655.130(f)](/cfr/20/655.130.md?p=f). # §655.157. Withholding of U.S. workers prohibited. - (a) **Filing a complaint.** Any employer who has reason to believe that a person or entity has willfully and knowingly withheld U.S. workers prior to the arrival at the place of employment of H-2A workers in order to force the hiring of U.S. workers during the recruitment period, as set forth in [§ 655.135(d)](/cfr/20/655.135.md?p=d), may submit a written complaint to the CO. The complaint must clearly identify the person or entity who the employer believes has withheld the U.S. workers, and must specify sufficient facts to support the allegation (e.g., dates, places, numbers and names of U.S. workers) which will permit an investigation to be conducted by the CO. - (b) **Duty to investigate.** Upon receipt, the CO must immediately investigate the complaint. The investigation must include interviews with the employer who has submitted the complaint, the person or entity named as responsible for withholding the U.S. workers, and the individual U.S. workers whose availability has purportedly been withheld. - (c) **Duty to suspend the recruitment period.** Where the CO determines, after conducting the interviews required by [paragraph (b)](#b) of this section, that the employer's complaint is valid and justified, the CO will immediately suspend the applicable recruitment period, as set forth in [§ 655.135(d)](/cfr/20/655.135.md?p=d), to the employer. The CO's determination is the final decision of the Secretary. # §655.158. Duration of positive recruitment. Except as otherwise noted, the obligation to engage in positive recruitment described in [§§ 655.150 through 655.154](/cfr/20/655.150..655.154.md) will terminate on the date H-2A workers depart for the employer's place of employment. Unless the SWA is informed in writing of a different date, the date that is the third day preceding the employer's first date of need will be determined to be the date the H-2A workers departed for the employer's place of employment.