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< Go back to Immigration Daily
[Federal Register: July 13, 2000 (Volume 65, Number 135)]
[Rules and Regulations]
[Page 43527-43534]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jy00-17]
[[Page 43527]]
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Part V
Department of Justice
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Immigration and Naturalization Service
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8 CFR Parts 103, 214, 248, 264
Nonimmigrant Classes: Aliens Coming Temporarily to U.S. to Perform
Agricultural Labor or Services; H-2A Classification Petitions; Final
Rule
Nonimmigrant Classes: Temporary Agricultural Worker (H-2A) Petitions;
Processing Procedures; Proposed Rule
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Department of Labor
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Employment and Training Administration
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20 CFR Part 655
Labor Certification and Petition Process for the Temporary Employment
of Nonimmigrant Aliens in the United States Agriculture; Authority
Delegation to Adjudicate; Final Rule and Modification of Fee Structure;
Proposed Rule
[[Page 43528]]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103 and 214
[INS No. 1946-98, AG Order No. 2313-2000]
RIN 1115-AF29
Delegation of the Adjudication of Certain Temporary Agricultural
Worker (H-2A) Petitions, Appellate and Revocation Authority for Those
Petitions to the Secretary of Labor
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This rule amends the Immigration and Naturalization Service
(Service) regulations to transfer to the Secretary of Labor the
authority to adjudicate petitions for temporary agricultural workers
(H-2As), and the authority to decide appeals on those decisions and to
make determinations for revocation of petition approvals. This rule
does not affect the Service's authority to make determinations at a
port-of-entry of an alien's admissibility to the United States, or of
an alien's eligibility for change of nonimmigrant status, or for
extension of stay. This rule streamlines the existing H-2A petitioning
process and makes the process easier and faster for employers of
temporary agricultural workers.
DATES: This rule is effective November 13, 2000.
FOR FURTHER INFORMATION CONTACT: Bert Rizzo, Supervisory Immigration
Adjudications Officer, Programs Division, Immigration and
Naturalization Service, 425 I Street, NW, Room 4213, Washington, DC
20536, telephone (202) 307-8996.
SUPPLEMENTARY INFORMATION:
What Is An H-2A Petition?
The Immigration and Nationality Act (Act) provides for an employer
to seek the services of foreign workers to perform temporary or
seasonal agricultural services in the United States. These temporary
agricultural workers are known as H-2As.
What Are the Department of Labor's (DOL) and Service's Current
Roles?
Under present procedures, DOL plays the principal role with respect
to employment of H-2A workers since DOL must first consider an
employer's application and issue a labor certification for the hiring
of temporary agricultural workers. Once DOL issues a labor
certification, the employer then files an H-2A petition with the
Service and attaches DOL certification.
The Service's role in the process consists mainly of confirming
that DOL has issued a labor certification, that the services required
are temporary or seasonal (which is also considered by DOL), and that
any prior H-2A violations by that employer have been corrected.
Why Is the Service Delegating Authority to the Secretary of Labor?
On December 7, 1998, the Service published a proposed rule in the
Federal Register at 63 FR 67431 to transfer authority to adjudicate
certain temporary agricultural worker petitions (H-2As) to the
Secretary of Labor. The initial proposal was to allow DOL to adjudicate
all H-2A petitions where the alien beneficiaries were located outside
of the United States, while the Service would continue to adjudicate
petitions when the alien beneficiaries were located within the United
States. As described below, the Service has revised the approach of the
proposed rule to effectuate a more comprehensive, one-step process for
the adjudication of H-2A petitions by DOL.
This rule is intended to streamline the process and consolidate the
H-2A determinations within DOL, the agency having the far greater role
in the existing process. Consolidation under DOL is logical because of
the Service's minimal role and the ability of DOL to handle the limited
additional considerations to adjudicate completely both the labor
certification and petition portions of the process.
However, the transfer of authority to DOL is being made only for
determinations of the eligibility for classification of alien
beneficiaries for H-2A status. The Attorney General is not further
delegating to DOL the control of aliens within the United States.
Therefore, this rule provides that DOL will forward requests to extend
the stay or change the status of alien beneficiaries of H-2A petitions
to the Service for adjudication. Since DOL and the Service will conduct
the necessary interagency coordination, the petitioners will still have
the advantage of a one-stop forum for the filing of all H-2A matters.
What Comments Did the Service Receive on the Proposed Rule?
The Service received eight comments to the proposed rule. The
comments were from employer associations and the American Immigration
Lawyers Association. The comments generally were divided among six
issues. The following is a discussion of the comments and the Service's
response:
1. Filing Form
Five of the commenters believed that the Service was not properly
planning for its continued role in developing the filing form(s) or the
data to be gathered from the petitioner, although they did not offer
reasons for this belief. DOL and the Service engaged in extensive
discussions on the appropriate filing vehicle for H-2As. The Service
has specific data requirements for its management information system,
statistical records, and the administration of immigration laws. The
Service is ensuring that those data requirements are met through the
consultation process and through an interagency agreement outlining all
areas of concern in the transfer of this process to DOL.
The agencies will use a single form with multiple pages to capture
all the necessary data for both agencies. DOL envisions a scannable
form that can be machine read, which will expedite its data input into
a new management information system and assist in the adjudication
process. Data elements derived from the current DOL Forms ETA-750 and
the Service Form I-129 will be combined on a new filing form. The new
Form ETA-9079 will be submitted for approval to the Office of
Management and Budget in accordance with the Paperwork Reduction Act of
1995. This rule will not be implemented until that form has received
approval under the Paperwork Reduction Act requirements. The new Form
ETA-9079, Application for Temporary Agricultural Labor Certification
and H-2A Petition, will replace the Service Form I-129 for all H-2A
filings, as well as replace DOL Form ETA-750 for this purpose. It will
contain separate sections for capturing data on individual aliens named
in the new form. The separate section, which is being created through
our proposed rule published elsewhere in this Federal Register, will
require that an alien beneficiary who is present in the United States
and seeking an extension of stay or change of status to H-2A sign that
section. This will ensure that the alien has taken legal responsibility
for the information entered on the form concerning himself or herself
and that the alien is a responsible party to the request for extension
of stay or change of status.
2. Split Filing Locations
Four commenters believed that the split in required filing
location, based upon the location of the beneficiaries
[[Page 43529]]
either inside or outside of the United States, would be confusing and
would not streamline the process.
The Service believes that the commenters correctly identified a
weakness in the proposal and has revised it accordingly. As mentioned
earlier, the proposed split in filing between DOL and the Service has
been amended to require employers to file all H-2A filings with DOL.
DOL will also have authority to approve the H-2A petitions as well as
issue labor certifications.
Although all H-2A filings will now be made with DOL, the Service is
retaining the authority over requests by individual aliens who are
already present in the United States to change their status to H-2A or
to extend their H-2A stay. As explained in a new proposed rule to
accomplish this published elsewhere in this issue of the Federal
Register, we are separating the determinations on change of status and
extension of stay from the determination on the petition. DOL will
forward to the Service the information from the joint application
concerning an alien beneficiary in the United States in all cases where
change of status or extension of stay is requested. The process will
require that after the joint application (Form ETA-9079) is adjudicated
by DOL, the Service's management information system would be updated
with information indicating whether the labor certification
application/petition was approved or denied. With this information, the
Service can complete its adjudication of the extension of stay or
change of status application (Form ETA-9079W) and notify the individual
alien(s) of its determination.
The worker and employer will benefit from complete one-stop filing
because all forms and supporting documentation are submitted to a
single agency. DOL will determine the correct processing routes needed
for all pieces of the one-stop package. The Service will receive data
from DOL and the Form(s) ETA-9079W (Named Alien Addendum) to
adjudicate. The Service's determination(s) on the Addendum will be
based upon the individual alien's eligibility and a final determination
by DOL on the Form ETA-9079.
3. Countervailing Evidence
As discussed in the proposed rule, the Service's role in most H-2A
petition proceedings is limited. Most H-2A petitions are filed before
the petitioner has identified, or named, the H-2A workers
(beneficiaries). Currently, the Service's role is limited to a review
of the determinations made by DOL that the job offer is for temporary
or seasonal agricultural employment, that the petitioner is making a
valid job offer, and that any liquidated damages from prior H-2A
petition proceedings have been paid. Liquidated damages are assessed to
an employer who fails to notify the Service of the departure of workers
from the United States or when the employer cannot establish that
workers have left the employment for other legal status. In cases with
named beneficiaries, the Service judges the ability of the beneficiary
to perform the needed services. Additionally, in rare cases, the
Service reviews countervailing evidence on the availability of U.S.
workers.
Four commenters pointed out that the proposed rule was silent about
the countervailing evidence procedure currently provided in
regulations. Briefly, this procedure allows a petitioner to seek a
review by the Service of DOL determination on the labor certification,
if countervailing evidence can be produced to establish that U.S.
workers are not in fact available to the petitioner. Only DOL
determination concerning the availability of U.S. workers is reviewable
by the Service. The Service rarely entertains countervailing evidence
on H-2A petitions and almost universally follows the DOL determination
because of DOL's expertise. Under this rule change, a separate review
of this availability issue is no longer practical or necessary. Because
DOL/Employment and Training Administration will be making the
determination on the labor certification and petition concurrently, and
a fresh review of these determinations is already provided for through
appeal to DOL Office of Administrative Law Judges, an additional review
is not useful and is removed from this rule.
The Service is establishing a mechanism to notify DOL of any unpaid
liquidated damage claims to enable DOL to judge this factor as part of
the adjudication process. Finally, in instances in which the petitioner
identifies named beneficiaries, DOL has the necessary expertise to
review the documentation presented to establish that each beneficiary
is qualified to perform the unskilled agricultural labor.
4. DOL Capabilities
Five of the commenters objected to the proposal due to various
concerns about the ability of DOL to perform its current functions in a
timely fashion and to handle requests for expedited processing of
problem cases. The Service believes that the consolidated new process
is not highly complex and will allow concurrent adjudication of the
petition with the labor certification. The additional determinations to
be made by DOL will encompass whether the Service has notified DOL of a
failure to pay liquidated damages and whether the worker has the
qualifications to perform the stated services. The Service is providing
training to DOL personnel on the issues considered by the Service under
its present role in the H-2A petition process. The time savings for the
average case under the new system should be at least 3 to 6 days, which
is normally consumed by mail notification by DOL to the employer and
the employer's filing by mail of the petition with the Service, in
addition to the time needed to process the petition by the Service
(normally 15 to 21 days). The additional work for DOL presented by the
combined process should not adversely impact the H-2A process and
should result in a combined reduction of 18 to 27 days in the time
taken from initial filing with DOL to completion of petition processing
by the Service under the current system.
5. Department of State Notification
The proposed rule was silent on how DOL would notify the Department
of State (DOS) of its determinations on the new combined application.
One commenter was concerned that DOL is unfamiliar with the current
notification process and that the process itself needed improvement.
Currently, the Service mails the duplicate copy of the petition (Form
I-129) to the consulate selected by the petitioner. Occasionally, when
warranted, the Service notifies the consulate by telephone or telefax.
The three agencies have now agreed that routine telefax notification
from DOL to DOS will assist the efforts to streamline the H-2A process.
The agencies are finalizing the internal details to ensure that these
notifications are secure. This process should result in an additional 2
to 5 day reduction in obtaining workers through the faster notification
to DOS. DOL will notify the Service of approvals for any workers not
requiring a visa for admission to the United States. Notification will
be either to the port-of-entry or to the Nebraska Service Center for
extension of stay or change of status cases.
6. Earlier Filing of H-2A Cases
One commenter expressed a desire to be able to file a request for
H-2As earlier than the current process permits to allow for
determination before the current ``20-day notice in advance of need.''
DOL regulations currently encourage earlier filing of applications for
labor certification. DOL has recently
[[Page 43530]]
reduced its minimum lead-time for submission of a labor certification
request from 60 days to 45 days (64 FR 34958). This minimum is intended
to assist employers by reducing the advance filing requirement to allow
them to better determine the dates of need for the services to be
performed. This also leaves sufficient time for DOL to make
determinations at least 20 days in advance of the date of need for the
workers. DOL regulations will still encourage earlier filing. However,
DOL is only legally required to issue its determination 20 days in
advance of the need and cannot guarantee an earlier issuance. Also, the
combined process should realize large savings in time from initial
filings to final notifications as previously described.
What Other Change Does This Rule Make?
The Service is authorizing DOL to accept Form I-824, Application
for Action on an Approved Application or Petition (or its equivalent),
and to process the application when DOL has previously processed a
request for temporary agricultural workers on the Service's behalf. The
Form I-824 is used to request a change in notification to a consulate
or port-of-entry after a petition has been approved. DOL will use an
addendum to its proposed Form ETA-9079, which is the ETA-9079M, for
this purpose.
What Is the Intended Effect of These Changes?
This rule will provide a more streamlined procedure for the
processing of temporary agricultural worker cases (H-2As) from initial
submission seeking labor certification to notification of either DOS or
the Service for issuance of a visa or status changes, respectively. It
simplifies employers' points of contact with the Government by
requiring all certification and petition filings to occur with the same
agency. It also allows for simultaneous adjudication of DOL and the
Service portions of the case. Finally, it provides these benefits to
all employers needing H-2A workers.
Currently, a number of employers seek labor certification from DOL
but do not follow through by filing an H-2A petition with the Service.
The Service and DOL believe that these cases represent situations where
an employer was using the system as insurance against not obtaining
adequate U.S. workers to perform the needed services. The new procedure
will require all users of the H-2A process to file for both DOL and
Service benefits.
This rule is designed to benefit employers who do need to hire H-2A
temporary workers to perform needed services, by providing ease of use
and greatly shortened processing times. The new, streamlined one-stop
filing procedure allows an employer to access the Government system in
a simplified process that requires less burdensome paperwork and
provides faster service.
Effective Date of This Rule
We are publishing this as a delayed effective final rule to allow
the Service and DOL time to establish the administrative systems needed
to accomplish the electronic capture and transfer of data and funds
between the agencies. Also, DOL needs to issue a notice of proposed
rulemaking to modify its fee collection process and amount of the fee
before the new H-2A process can begin. Delay is further justified to
allow for clearance of the Form ETA-9079 joint application for labor
certification issuance and petition approval. The Service is also
making changes to the H-2A program in a new notice of proposed
rulemaking included elsewhere in this issue of the Federal Register.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities because the regulation
is administrative in nature and merely transfers authority to make
certain determinations to DOL. Moreover, it does not expand the
existing process requirements. Finally, the rule does not involve an
increase in fees.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any 1 year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This
rule will not result in an annual effect on the economy of $100 million
or more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Executive Order 12866
This rule is considered by the Department of Justice, Immigration
and Naturalization Service, to be a ``significant regulatory action''
under section 3(f) of Executive Order 12866, Regulatory Planning and
Review. Accordingly, this regulation has been submitted to the Office
of Management and Budget for review.
Executive Order 13132
The rule will not have substantial direct effects on the States, on
the relationship between the National Government and the States, or on
the distribution of power and responsibilities among the various levels
of government. Therefore, in accordance with section 6 of Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement.
Executive Order 12988
This rule meets the applicable standards set forth in section 3(a)
and 3(b)(2) of Executive Order 12988: Civil Justice Reform.
Paperwork Reduction Act
The information collection requirement addressed in this rule (Form
I-129) has been previously approved for use by the Office of Management
and Budget (OMB). The OMB control number for this collection is
contained in 8 CFR 299.5, Display of control numbers.
Instead of using Form I-129, H-2A petitioners who seek the services
of foreign workers must complete Department of Labor Form ETA-9079,
Application for Temporary Agricultural Labor Certification and H-2A
Petition. The Form ETA-9079 will be submitted by the Department of
Labor for OMB approval in accordance with the Paperwork Reduction Act.
The effective date of this rule will be adjusted if necessary to make
sure that it does not go into effect until that process has been
completed.
[[Page 43531]]
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies).
8 CFR Part 214
Administrative practice and procedure, Aliens, Employment,
Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
1. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,
15557, 3 CFR 1982 Comp., p. 166; 8 CFR part 2.
2. Section 103.1 is amended by:
a. Revising paragraph (f)(3)(iii)(J); and by
b. Revising paragraph (f)(3)(iii)(W), to read as follows:
Sec. 103.1 Delegation of authority.
* * * * *
(f) * * *
(3) * * *
(iii) * * *
(J) Petitions for temporary workers or trainees and fiancees or
fiances of U.S. citizens under Sec. 214.2 and Sec. 214.6 of this
chapter, except petitions for temporary agricultural workers (H-2As),
which are delegated to the Secretary of Labor.
* * * * *
(W) Revoking approval of certain petitions, as provided in
Sec. 214.2 and Sec. 214.6 of this chapter, except petitions for
temporary agricultural workers (H-2As), which are delegated to the
Secretary of Labor.
* * * * *
3. Section 103.7(b)(1) is amended by adding the entry for ``Form
ETA-9079'' immediately following ``Form EOIR-42'', to read as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * * (1) * * *
* * * * *
Form ETA-9079. The fee for filing for a labor certification is
designated in 20 CFR 655.100. The fee for filing the Service's
petition portion of Form ETA-9079, to classify an agricultural
worker as an H-2A nonimmigrant, is $110. The total fee will be the
sum of DOL labor certification fee and the Service's fee. There is
no additional fee if supplemental Form(s) ETA-9079W is filed with
Form ETA-9079. A fee of $120 is required to file supplemental Form
ETA-9079M (the equivalent to Form I-824).
* * * * *
PART 214--NONIMMIGRANT CLASSES
4. The authority citation for part 214 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,
1281, 1282; 8 CFR part 2.
5. Section 214.1 is amended by:
a. Removing the reference to ``H-2A,'' from the first sentence in
paragraph (c)(1); and by
b. Adding a new sentence immediately after the first sentence in
paragraph (c)(1) to read as follows:
Sec. 214.1 Requirements for admission, extension, and maintenance of
status.
* * * * *
(c) * * *
(1) * * * An employer seeking extension of services for an H-2A
must petition on Form ETA-9079 and ETA-9079W and file with the
Department of Labor. * * *
* * * * *
6. Section 214.2 is amended by:
a. Revising paragraphs (h)(2)(i)(A), (B), (D), and (E);
b. Revising paragraphs (h)(2)(iii), (iv), and (v);
c. Revising paragraphs (h)(5)(i)(A), (B), (C), and (D);
d. Revising paragraph (h)(5)(ii);
e. Revising paragraph (h)(5)(iv)(B);
f. Revising paragraph (h)(5)(v);
g. Revising paragraph (h)(5)(ix);
h. Adding paragraph (h)(9)(i)(C);
i. Revising paragraph (h)(9)(ii)(C);
j. Revising paragraphs (h)(10)(ii) and (iii);
k. Revising paragraph (h)(11)(i);
l. Revising paragraph (h)(11)(ii);
m. Revising paragraph (h)(11)(iii)(A) introductory text and
paragraph (h)(11)(iii)(B);
n. Revising paragraph (h)(12)(i);
o. Revising paragraph (h)(13)(i)(A);
p. Revising paragraph (h)(14);
q. Revising paragraph (h)(16)(ii); and by
r. Revising paragraph (h)(18), to read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(2) * * *
(i) * * *
(A) General. Except as provided in this section, even in emergency
situations, a United States employer seeking to classify an alien as an
H-1B, H-2B, or H-3 temporary employee must file a petition on Form I-
129, Petition for Nonimmigrant Worker, with the service center which
has jurisdiction in the area where the alien will perform services or
receive training. A United States employer seeking to classify an alien
as an H-2A worker must file a petition on Department of Labor (DOL)
Form ETA-9079, Application for Temporary Agricultural Labor
Certification and H-2A Petition, only with the DOL Regional
Administrator having jurisdiction in the area where the alien will
first perform services (see 20 CFR 655, Subpart B). All petitions for
temporary workers, except petitions for temporary agricultural workers
(H-2As), in Guam and the Virgin Islands, and petitions involving
special filing situations as determined by Service Headquarters, must
be filed with the local Service office or a designated Service office.
Petitions for temporary agricultural workers (H-2A) in Guam and the
Virgin Islands must be filed with the DOL Regional Administrator having
jurisdiction. The petitioner may submit a legible photocopy of a
document in support of the petition in lieu of the original document.
However, the original document must be submitted if requested by the
Service.
(B) Service or training in more than one location. A petition that
requires services to be performed or training to be received in more
than one location must include an itinerary with the dates and
locations of the services or training and must be filed with the
Service office that has jurisdiction over petitions in the area where
the petitioner is located, or in the case of H-2As, it must be filed
with the DOL Regional Administrator having jurisdiction over the
location where services will be performed first. The address that the
petitioner specifies as its location on the petition must be where the
petitioner is located for purposes of this paragraph.
* * * * *
(D) Change of employers. (1) If the alien is in the United States
and seeks to change employers, the prospective new employer (except in
the case of H-2As) must file a petition on Form I-129, with the fee
required in Sec. 103.7(b)(1) of this chapter, requesting classification
and extension of the alien's stay in the United States. If the new
petition is approved, the extension of stay may be granted for the
validity of the approved petition. The validity of the petition and the
alien's extension of stay must conform to the limits on the alien's
temporary stay that are prescribed in paragraph (h)(13) of this
section. The
[[Page 43532]]
alien is not authorized to begin the employment with the new petitioner
until the petition is approved.
(2) [Reserved]
(3) An H-1A nonimmigrant alien may not change employers.
(E) Amended or new petition. The petitioner must file an amended or
new petition, with fee, with the Service Center or, in the case of H-2A
workers, with the DOL Regional Administrator where the original
petition was filed, to reflect any material changes in the terms and
conditions of employment or training or the beneficiary's eligibility
as specified in the original approved petition. An amended or new H-1A,
H-1B, or H-2B petition must be accompanied by a current or new DOL
determination. An H-2A petition must be filed with a valid labor
certification or an application for the certification. In the case of
an H-1B petition, this requirement includes a new labor condition
application.
* * * * *
(iii) Named beneficiaries. Nonagricultural petitions must include
the names of beneficiaries and other required information at the time
of filing. Under the H-2B classification, exceptions may be granted in
emergency situations involving multiple beneficiaries at the discretion
of the Service Center Director, and in special filing situations as
determined by the Service's Headquarters. If all of the beneficiaries
covered by an H-2B labor certification have not been identified at the
time a petition is filed, multiple petitions naming subsequent
beneficiaries may be filed at different times with a copy of the same
labor certification. Each petition must reference all previously filed
petitions for that labor certification. An H-2A petition may contain
both named and unnamed beneficiaries and must agree in total number of
positions with the labor certification request. The H-2A petition does
not need to agree in total number when seeking an extension of stay for
H-2A beneficiaries in the United States.
(iv) Substitution of beneficiaries. Beneficiaries may be
substituted in H-2B petitions that are approved for a group, or H-2B
petitions that are approved for unnamed beneficiaries, or approved H-2B
petitions where the job offered to the alien(s) does not require any
education, training, and/or experience. To request a substitution, the
petitioner must, by letter and a copy of the petition approval notice,
notify the consular office where the alien will apply for a visa or the
port-of-entry where the alien will apply for admission. Where evidence
of the qualifications of beneficiaries is required in petitions for
unnamed beneficiaries, the petitioner must also submit such evidence to
the consular office or port-of-entry prior to issuance of a visa or
admission. (See paragraph (h)(5) of this section for substitution of H-
2A beneficiaries.)
(v) H-2A petitions. Special criteria for admission, extension,
maintenance of status, and substitution of beneficiaries apply to H-2A
petitions and are specified in paragraph (h)(5) of this section. The
other provisions of Sec. 214.2(h) apply to H-2A only to the extent that
they do not conflict with the special agricultural provisions in
paragraph (h)(5) of this section.
* * * * *
(5) * * *
(i) * * *
(A) General. An H-2A petition must be filed on Form ETA-9079 with
the DOL Regional Administrator having jurisdiction over the area of
employment and be accompanied by the filing fee specified in
Sec. 103.7(b)(1) of this chapter. An H-2A petition may be filed by
either the employer listed on the certification application, the
employer's agent, or the association of United States agricultural
producers named as a joint employer on the certification application.
(B) Multiple beneficiaries. The total number of beneficiaries of a
petition must equal the number of workers indicated on the application
for labor certification, except when the petitioner is seeking an
extension of stay for H-2A beneficiaries in the United States. A
petition can include more than one beneficiary even when all
beneficiaries will not obtain a visa at the same consulate or are not
required to have a visa and will not apply for admission at the same
port-of-entry. A petition may also include beneficiaries seeking change
of status or extension of stay.
(C) Identification of beneficiaries. The sole beneficiary of an H-
2A petition must be named in the petition. All beneficiaries located in
the United States must be named in the petition. The total number of
unnamed beneficiaries must be shown on the petition. Names of
beneficiaries located outside of the United States may be included on
the petition, but are not required to be identified until application
for visa issuance from the Department of State.
(D) Evidence. An H-2A petitioner must show that the proposed
employment qualifies as a basis for H-2A status, and that any named
beneficiary satisfies any qualifications for that employment. A
petition will be automatically denied if filed without the initial
evidence required in paragraph (h)(5)(v) of this section for each named
beneficiary.
* * * * *
(ii) Effect of the labor certification process. The temporary
agricultural labor certification process determines whether employment
is for a temporary or seasonal agricultural worker, whether it is open
to U.S. workers, if qualified U.S. workers are available, the adverse
impact of employment of a qualified alien, and whether employment
conditions, including housing, meet applicable requirements. In
petition proceedings, a petitioner must establish that the employment
and beneficiary meet the requirements of paragraph (h)(5) of this
section.
* * * * *
(iv) * * *
(B) Effect of permanent labor certification application. Employment
will be found not to be temporary or seasonal where an application for
permanent labor certification has been filed for the same alien, or for
another alien to be employed in the same position, by the same employer
or by its parent, subsidiary or affiliate. This can be overcome only by
the petitioner's demonstration that there will be at least a 6 month
interruption of employment in the United States after H-2A status ends.
(v) The beneficiary's qualifications--
(A) Eligibility requirements. An H-2A petitioner must establish
that any named beneficiary met the stated minimum requirements and was
fully able to perform the stated duties when the application for
certification was filed. It must be established at the time of
application for an H-2A visa, or for admission if a visa is not
required, that any unnamed beneficiary either met these requirements
when the certification was applied for or passed any certified aptitude
test at any time prior to visa issuance, or prior to admission if a
visa is not required.
(B) Initial evidence of employment/job training. A petition must be
filed with evidence that at the time of filing the named beneficiary
met the certification's minimum employment and job training
requirements. Initial evidence must be in the form of the past
employer's detailed statement or actual employment documents, such as
company payroll or tax records. Alternately, a petitioner must show
that such evidence cannot be obtained, and submit affidavits from
people who worked with the beneficiary that demonstrate the claimed
employment.
[[Page 43533]]
(C) Initial evidence of education and other training. A petition
must be filed with evidence that at the time of filing each named
beneficiary met the certification's minimum post-secondary education
and other formal training requirements. Initial evidence must be in the
form of documents, issued by the relevant institution or organization,
that show periods of attendance, majors, and degrees or certificates
accorded.
* * * * *
(ix) Substitution of beneficiaries after admission. An H-2A
petition may be filed with the DOL Regional Administrator to replace H-
2A workers whose employment was terminated early. The petition must be
filed with a copy of the labor certification, a copy of the approval
notice covering the workers for whom replacements are sought, and other
evidence required by paragraph (h)(5)(i)(D) of this section. It must
also be filed with a statement giving each terminated worker's name,
date and country of birth, termination date, and evidence the worker
has departed the United States. A petition for a replacement may not be
approved when the requirements of paragraph (h)(5)(vi) of this section
have not been met. A petition for replacements does not constitute the
notice to the Service that an H-2A worker has absconded or has ended
authorized employment more than 5 days before the relating
certification expires.
* * * * *
(9) * * *
(i) * * *
(C) For H-2As, the Department of Labor will issue a notice of
petition approval as part of its notification of labor certification
approval. The notice will conform with paragraph (h)(9)(i)(A) of this
section.
(ii) * * *
(C) If the period of services or training requested by the
petitioner exceeds the limit specified in paragraph (h)(5)(vii), or
(h)(9)(iii) of this section, the petition will be approved only up to
the limit specified in that paragraph.
* * * * *
(10) * * *
(ii) Notice of intent to deny. When an adverse decision is proposed
on the basis of derogatory information of which the petitioner is
unaware, the director, or the DOL Regional Administrator in the case of
H-2A petitions, must notify the petitioner of the intent to deny the
petition and the basis for the denial. The petitioner may inspect and
rebut the evidence and will be granted a period of 30 days from the
date of the notice (7 days for H-2A petitions) in which to do so. All
relevant rebuttal material will be considered in making a final
decision.
(iii) Notice of denial. The petitioner must be notified of the
reasons for the petition denial, and of the right to appeal the denial
of the petition under 8 CFR part 103, and in the case of H-2A
petitions, under the rules established by DOL in 20 CFR 655, subpart B.
There is no appeal from a decision to deny a change of status or an
extension of stay to the alien.
(11) * * *
(i) General.
(A) The petitioner must immediately notify the Service (or the DOL
Regional Administrator for H-2As) of any changes in the terms and
conditions of employment of a beneficiary that may affect eligibility
under section 101(a)(15)(H) of the Act and paragraph (h) of this
section. An amended petition on Form I-129, or on Form ETA-9079 in the
case of H-2A workers, must be filed when the petitioner continues to
employ the beneficiary. If the petitioner no longer employs the
beneficiary, the petitioner must send a letter notifying the director
or the Regional Administrator who approved the petition.
(B) The director or the Regional Administrator who approved the
petition may revoke a petition at any time, even after the expiration
of the petition.
(ii) Automatic revocation. The approval of any petition is
automatically revoked if the petitioner goes out of business or files a
written withdrawal of the petition. No notice to the petitioner is
required.
(iii) * * *
(A) Grounds for revocation. The director (or the DOL Regional
Administrator in the case of H-2A workers) must send to the petitioner
a notice of intent to revoke the petition, or relevant part of the
petition, if he or she finds that:
* * * * *
(B) Notice and decision. The notice of intent to revoke must
contain a detailed statement of the grounds for the revocation and the
time period allowed for the petitioner's rebuttal. The petitioner may
submit evidence in rebuttal within 30 days of receipt of the notice.
The director or the DOL Regional Administrator must consider all
relevant evidence presented in deciding whether to revoke the petition
in whole or in part. If the petition is revoked in part, the remainder
of the petition must remain approved and a revised approval notice must
be sent to the petitioner with the revocation notice.
(12) * * *
(i) Denial. A petition (other than an H-2A petition) denied in
whole or in part by the Service may be appealed under 8 CFR part 103.
In the case of an H-2A petition, the appeal must be filed with DOL
concurrently with the appeal of the denial of a labor certification (or
if the certification was not denied, within 30 days) under the rules
established by DOL in 20 CFR 655 subpart B.
* * * * *
(13) * * *
(i) * * *
(A) A beneficiary may be admitted to the United States for the
validity period of the petition, plus a period of up to 10 days before
the validity period begins and 10 days after the validity period ends.
The beneficiary may not work except during the validity period of the
petition. (See paragraph (h)(5)(viii) of this section for admission and
limits on admission for H-2As.)
* * * * *
(14) Extension of petition validity. Except with respect to H-2A
petitions, the petitioner must file a request for a petition extension
on Form I-129 to extend the validity of the original petition under
section 101(a)(15)(H) of the Act. Supporting evidence is not required
unless requested by the director. A request for a petition extension
may be filed only if the validity of the original petition has not
expired. (See paragraph (h)(5)(x) of this section for extension
requirements for H-2A petitions.)
* * * * *
(16) * * *
(ii) H-2A, H-2B, and H-3 classification. The approval of a
permanent labor certification, or the filing of a preference petition
for an alien currently employed by or in a training position with the
same petitioner, may be a reason, by itself, to deny a petition
extension request and the alien's extension of stay.
* * * * *
(18) Use of approval notice, Form I-797 and DOL notification. The
Service must notify the petitioner on Form I-797 whenever a petition,
an extension of a petition, or an alien's extension of stay is approved
under the H classification (except with respect to H-2A). DOL must
notify the petitioner as part of its certification notice whenever an
H-2A petition or an extension of a petition is approved by a Regional
Administrator. The beneficiary of an H petition who does not require a
nonimmigrant visa may present a copy of the approval notice at a port-
of-entry to facilitate entry into the United States. A beneficiary who
is required to present a
[[Page 43534]]
visa for admission and whose visa will have expired before the date of
his or her intended return may use a copy of Form I-797 or DOL
notification to apply for a new or revalidated visa during the validity
period of the petition. The copy of Form I-797 or DOL notification must
be retained by the beneficiary and presented during the validity period
of the petition when re-entering the United States to resume the same
employment with the same petitioner.
* * * * *
Dated: July 5, 2000.
Janet Reno,
Attorney General.
[FR Doc. 00-17598 Filed 7-12-00; 8:45 am]
BILLING CODE 4410-10-P
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