07/09/2010: The Consul General's Corner*: Hiring of H2B Workers from the Philippines in Compliance with Philippine, US and Guam Labor Regulations
With the impending military buildup on the island, the Philippines stands ready to support Guam’s labor needs just as it did when the island community was rebuilt from the ruins of World War II.
Back then, Filipino workers were brought in by companies contracted by the US military. This time, however, the recruitment of Filipino workers is done through a systematic recruitment network regulated by the Philippine Government through the Philippine Overseas Employment Administration (POEA). Under this system, foreign companies (principals) seeking to hire workers from the Philippines must course their manpower requirements through POEA-licensed private employment and manning agencies, which may perform services including: advertising job vacancies in local dailies, creating a manpower pool, and conducting preliminary screening and interviews of applicants.
Prospective employers interested to hire Filipino workers may choose from the official list of licensed private employment agencies (land-based and sea-based), which may be viewed from the POEA’s official website: www.poea.gov.ph.
After identifying the Philippine agent that can assist in the company’s manpower requirement, the principal must submit the recruitment documents to the nearest Philippine Overseas Labor Office (POLO) at the Philippine Embassy/Consulate for verification. This process ascertains the a) existence of the company or project; and b) the need for Filipino manpower.
In the case of Guam, these documents must be submitted for verification to the Philippine Consulate General at the 6th Floor of the ITC Building in Tamuning as a POLO still needs to be re-opened on the island. Incidentally, a request for the re-opening of the POLO on Guam has already been submitted to and is awaiting the approval of the US State Department.
The following documents must be submitted to the Consulate by any such prospective employer prior to the recruitment of workers in the Philippines:
- Company’s business license
- Special Power of Attorney or Service/Recruitment Agreement
- Master Employment Contract with the minimum contract provision (must be compliant with the POEA’s Standard Employment Contract which may be viewed from the POEA website)
- Manpower Request/Job Order as approved by the Guam Department of Labor
- Temporary Alien Labor Certification from the Guam Department of Labor
- I-797B from the USCIS
Under POEA regulations, private land-based recruitment agencies are allowed to charge employers for services they perform for the recruitment of the workers they need. They are also allowed to collect from its selected/hired workers a placement fee equivalent to one (1) month salary, EXCEPT in cases where the workers are being recruited for countries where laws prohibit collection of fees from workers. This is clearly stated in Section 2 – C, Rule I, Part VI of the 2002 POEA Rules and Regulations Governing the Recruitment and Employment of Landbased Overseas Workers.
Guam, as a territory of the United States of America, is one such country which prohibits the collection of placement or recruitment fees from workers.
As contracts are being bid out and construction projects are set to begin soon, the 2010 Compliance Conference recently conducted by the Guam Department of Labor is a timely reminder that all parties involved or may be involved in these projects need to comply with U.S. laws.
“The Final Rule on Labor Certification Process and Enforcement for Temporary Employment in Occupations other than Agriculture or Registered Nursing in the United States” (8 CFR parts 204, 214 & 215) contains a provision that prohibits the collection of job placement fees from the worker by the employer, agent or recruiter otherwise the employer’s petition will be denied or, if already approved, revoked. The provision states: “As a condition of approval of an H2B petition, no job placement fee or other compensation (either direct or indirect) may be collected at any time, including before or after the filing of approval of the petition, from a beneficiary of an H2B petition by a petitioner, agent, facilitator, recruiter, or similar employment service as a condition of an offer or condition of H2B employment (other than the lower of the actual cost or fair market value of transportation to such employment and any government mandated passport, visa, or inspection fees, to the extent that the passing of such costs to the beneficiary is not prohibited by statute, unless the employer, agent, facilitator, recruiter, or similar employment service has agreed with the beneficiary that it will pay such costs and fees).”
Based on this provision, the POEA issued Memorandum Circular No. 10 Series of 2009 dated 01 September 2009, stating that the POEA is implementing a NO PLACEMENT FEE POLICY for workers to be deployed to the United States of America under the H-2B visa program. Recruitment agencies found to be in violation of said guidelines will be imposed the administrative penalty of cancellation of their license to operate.
The guidelines stated in MC No. 10 cover the hiring of temporary skilled workers going to the US and its territories, including Guam. Important provisions of the Circular are reproduced here for reference:
No Placement Fee Policy
Recruitment cost or placement fees shall not be charged to a worker to be deployed under an H2B visa category. No job placement fee or other compensation under any guise whatsoever, may be collected from said worker as a condition of an offer or condition of employment.
Violation of the placement fee policy insofar as workers bound for employment in the USA on an H-2B visa is concerned is a serious administrative offense with a penalty of cancellation of license under Section 1-A(5) of Rule IV, Part VI of the same Rules and Regulations Governing the Recruitment and Employment of Landbased Workers.
A copy of the Circular may be viewed at the POEA’s website or at http://www.poea.gov.ph/MCs/MC 2009/MC 10 2009.pdf.
The Philippine Consulate General stresses the importance of compliance with US, Philippines and Guam labor regulations and hopes that Guam employers will be vigilant in ensuring that they choose partner recruitment agencies that comply with the abovementioned regulations to prevent any abuse of prospective workers.
To our Bayanihan readers, if you have relatives or friends in the Philippines who are applying for a job in Guam, please let them know of this US labor regulation and warn them that if they pay labor recruiters to get a job in Guam, their H2B visa may be cancelled by US authorities if it is found out that they paid a recruitment agency.END
*The Consul General's Corner is a monthly column submitted by the Philippine Consulate General in Agana, Guam and published by the Pacific Daily News in its Sunday Magazine "Bayanihan". This article is the Consulate's submission for the month of September.