[Federal Register: December 18, 2008 (Volume 73, Number 244)]
[Rules and Regulations]
[Page 76891-76914]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de08-6]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214, 215 and 274a
[Docket No. USCIS-2007-0055; CIS No. 2428-07]
RIN 1615-AB65
Changes to Requirements Affecting H-2A Nonimmigrants
AGENCY: U.S. Citizenship and Immigration Services, U.S. Customs and
Border Protection, DHS.
ACTION: Final rule.
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SUMMARY: This final rule amends Department of Homeland Security
regulations regarding temporary and seasonal agricultural workers, and
their U.S. employers, within the H-2A nonimmigrant classification. The
final rule removes certain limitations on H-2A employers and adopts
streamlining measures in order to encourage and facilitate the lawful
employment of foreign temporary and seasonal agricultural workers. The
final rule also addresses concerns regarding the integrity of the H-2A
program and sets forth several conditions to prevent fraud and to
protect laborers' rights. The purpose of the final rule is to provide
agricultural employers with an orderly and timely flow of legal
workers, thereby decreasing their reliance on unauthorized workers,
while protecting the rights of laborers.
The rule revises the current limitations on agricultural workers'
length of stay including lengthening the amount of time an agricultural
worker may remain in the United States after his or her employment has
ended and shortening the time period that an agricultural worker whose
H-2A nonimmigrant status has expired must wait before he or she is
eligible to obtain H-2A nonimmigrant status again. This rule also
provides for temporary employment authorization to agricultural workers
seeking an extension of their H-2A nonimmigrant status through a
different U.S. employer, provided that the employer is a registered
user in good standing with the E-Verify employment eligibility
verification program. In addition, DHS modifies the current
notification and
[[Page 76892]]
payment requirements for employers when an alien fails to show up at
the start of the employment period, an H-2A employee's employment is
terminated, or an H-2A employee absconds from the worksite. To better
ensure the integrity of the H-2A program, this rule also requires
certain employer attestations and precludes the imposition of fees by
employers or recruiters on prospective beneficiaries. Under this final
rule, DHS also will revoke an H-2A petition if the Department of Labor
revokes the petitioner's underlying labor certification. Also, this
rule provides that DHS will publish in a notice in the Federal Register
a list of countries that the Secretary of Homeland Security has
designated, with the concurrence of the Secretary of State, as eligible
for its nationals to participate in the H-2A program. These changes are
necessary to encourage and facilitate the lawful employment of foreign
temporary and seasonal agricultural workers.
Finally, this rule establishes criteria for a pilot program under
which aliens admitted on certain temporary worker visas at a port of
entry participating in the program must also depart through a port of
entry participating in the program and present designated biographical
information upon departure. U.S. Customs and Border Protection (CBP)
will publish a Notice in the Federal Register designating which
temporary workers must participate in the program, which ports of entry
are participating in the program, and the types of information that CBP
will collect from the departing workers.
DATES: This rule is effective January 17, 2009.
FOR FURTHER INFORMATION CONTACT: Hiroko Witherow, Service Center
Operations, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529,
telephone (202) 272-8410.
SUPPLEMENTARY INFORMATION: This supplementary information section is
organized as follows:
Table of Contents
I. Background
A. Proposed Rule
B. Discussion of the Final Rule
II. Public Comments on the Proposed Rule
A. Summary of Comments
B. General Comments
B. Specific Comments
III. Regulatory Requirements
A. Small Business Regulatory Enforcement Fairness Act of 1996
B. Executive Order 12866
C. Executive Order 13132
D. Executive Order 12988
E. Regulatory Flexibility Act
F. Unfunded Mandates Reform Act of 1995
G. Paperwork Reduction Act
I. Background
A. Proposed Rule
The H-2A nonimmigrant classification applies to aliens seeking to
perform agricultural labor or services of a temporary or seasonal
nature in the United States. Immigration and Nationality Act (Act or
INA) section 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a); see
8 CFR 214.1(a)(2) (designation for H-2A classification). Despite the
availability of the H-2A nonimmigrant classification, a high percentage
of the agricultural workforce is comprised of aliens who have no
immigration status and are unauthorized to work. In response to members
of the public citing what they consider to be unnecessarily burdensome
regulatory restrictions placed on the H-2A nonimmigrant classification
and resulting limits on the utility of this nonimmigrant category to
U.S. agricultural employers, the Department of Homeland Security (DHS)
published a notice of proposed rulemaking on February 13, 2008,
proposing to amend its regulations regarding the H-2A nonimmigrant
classification. 73 FR 8230. On the same date, the Department of Labor
(DOL) published a notice of proposed rulemaking to amend its
regulations regarding the certification of H-2A employment and the
enforcement of the contractual obligations applicable to H-2A
employers. 73 FR 8538.
DHS, among other changes, proposed to:
Relax the limitations on naming beneficiaries on the H-2A
petition who are outside of the United States.
Permit H-2A employers to file only one petition when
petitioning for multiple H-2A beneficiaries from multiple countries.
Deny or revoke any H-2A petition if the alien-beneficiary
paid or agreed to pay any prohibited fee or other form of compensation
to the petitioner, or, with the petitioner's knowledge, to a
facilitator, recruiter, or similar employment service, in connection
with the H-2A employment.
Require H-2A petitioners: (a) To attest that they will not
materially change the information provided on the Form I-129 and the
temporary labor certification; (b) to attest that they have not
received and do not intend to receive, any fee, compensation, or other
form of remuneration from prospective H-2A workers; and (c) to identify
any facilitator, recruiter, or similar employment service that they
used to locate foreign workers.
Require H-2A petitioners to provide written notification
to DHS, or be subject to an imposition of $500 in liquidated damages,
within forty-eight hours if: (a) An H-2A worker fails to report to work
within five days of the date of the employment start date; (b) the
employment terminates more than five days early; or (c) the H-2A worker
has not reported for work for a period of five days without the consent
of the employer.
Clarify that DHS will not accord H-2A status to any alien
who has violated any condition of H-2A nonimmigrant status within the
previous five years.
Immediately and automatically revoke an H-2A petition upon
the revocation of the underlying labor certification by DOL.
Refuse to approve H-2A petitions filed on behalf of
beneficiaries from or to grant admission to aliens from countries
determined by DHS to consistently deny or unreasonably delay the prompt
return of their citizens, subjects, nationals, or residents who are
subject to a final order of removal.
Extend the H-2A admission period following the expiration
of the H-2A petition from not more than 10 days to 30 days.
Reduce from 3 months to 45 days the minimum period spent
outside the United States that would interrupt the accrual of time
toward the 3-year maximum period of stay where the accumulated stay is
18 months or less, and to reduce such minimum period from 1/6 of the
period of accumulated stay to 2 months if the accumulated stay is
longer than 18 months.
Reduce from 6 months to 3 months the period that an
individual who has held H-2A status for a total of 3 years must remain
outside of the United States before he or she may be granted H-2A
nonimmigrant status again.
Extend H-2A workers' employment authorization for up to
120 days while they are awaiting an extension of H-2A status based on a
petition filed by a new employer, provided that the new employer is a
registered user in good standing in DHS's E-Verify program.
Impose on sheepherders the departure requirement
applicable to all H-2A workers.
Establish a temporary worker exit program on a pilot basis
that would require certain H-2A workers to register at the time of
departure from the United States.
DHS initially provided a 45-day comment period in the proposed
rule, which ended on March 31, 2008. DHS provided an additional 15-day
comment
[[Page 76893]]
period from April 1, 2008 through April 14, 2008. During this 60-day
comment period, DHS received 163 comments. DHS received comments from a
broad spectrum of individuals and organizations, including various
agricultural producers, agricultural trade associations, farm workers'
labor unions, civil and human rights advocacy organizations,
agricultural producers' financial cooperatives, farm management
services companies, voluntary public policy organizations, private
attorneys, state government agencies, a Member of Congress, and other
interested organizations and individuals. During the public comment
period, DHS officials, together with those from DOL, also met with
stakeholders to discuss the proposed rule. Meeting participants were
encouraged to submit written comments on the rule.
DHS considered the comments received and all other materials
contained in the docket in preparing this final rule. The final rule
does not address comments seeking changes in United States statutes,
changes in regulations or petitions outside the scope of the proposed
rule, or changes to the procedures of other DHS components or agencies.
All comments and other docket materials may be viewed at the
Federal Docket Management System (FDMS) at http://www.regulations.gov,
docket number USCIS-2007-0055.
B. Discussion of the Final Rule
The final rule adopts many of the regulatory amendments set forth
in the proposed rule. The rationale for the proposed rule and the
reasoning provided in the preamble to the proposed rule remain valid
with respect to these regulatory amendments, and DHS adopts such
reasoning in support of the promulgation of this final rule. Based on
the public comments received in response to the proposed rule, however,
DHS has modified some of the proposed changes for the final rule as
follows.
1. Notification and Liquidated Damages Requirements
The final rule requires petitioners to notify DHS, within two
workdays, beginning on a date and in a manner specified in a notice
published in the Federal Register, of the following circumstances: (a)
An H-2A worker's failure to report to work within five workdays of the
employment start date on the H-2A petition or within five workdays of
the start date established by his or her employer, whichever is later;
(b) an H-2A worker's completion of agricultural labor or services 30
days or more before the date specified by the petitioner in its H-2A
petition; or (c) an H-2A worker's absconding from the worksite or
termination prior to the completion of the agricultural labor or
services for which he or she was hired. New 8 CFR
214.2(h)(5)(vi)(B)(1). By ``workday,'' DHS means the period between the
time on any particular day when such employee commences his or her
principal activity and the time on that day at which he or she ceases
such principal activity or activities.
a. Liquidated Damages
DHS has revisited the proposed increase in liquidated damages from
$10 to $500 for an employer's failure to comply with the notification
requirement. For the time being, DHS will retain the liquidated damages
provision under 8 CFR 214.2(h)(5)(vi)(B)(3), and require an employer
who fails to comply with the notification requirements, as revised
under this final rule, to pay liquidated damages in the amount of $10.
b. Timeframes Triggering Notification Requirement
To minimize the impacts on petitioners, the final rule relaxes the
notification requirement in response to commenters' concerns that the
proposed timeframes were not workable within current business
realities. The final rule allows an employer, in certain circumstances,
to use a start date newly established by the employer as the
notification trigger date. The final rule also clarifies that the H-2A
worker must report to work within five ``workdays'' of the employment
start date, rather than the proposed five days. If the H-2A worker does
not timely report to the worksite, the H-2A employer must report this
violation to DHS within two workdays, rather than the proposed 48
hours. The final rule adopts the term ``workdays'' to ensure that H-2A
employers are clear on the reporting deadlines. The final rule also
requires DHS notification where the work is completed 30 days early
rather than the proposed five days. The rule relieves the employer of
its obligation to notify DHS when the worker's employment terminates
upon completion of the work (unless the work is completed more than 30
days early). The final rule also provides that, if the petitioner
demonstrates in the notification itself that good cause exists for an
untimely notification to DHS, then DHS, in its discretion, may waive
the liquidated damages amount.
c. Remedy for Petitioners
While the notification provision furthers DHS's enforcement goals
of locating aliens who have not met the terms of their nonimmigrant
status, DHS recognizes that the current regulations do not provide a
sufficient remedy to petitioners that ``lose'' H-2A workers before the
completion of work in the instances covered in the notification
provision. Under the current regulations, petitioners may replace H-2A
workers whose employment was terminated before the work has been
completed. 8 CFR 214.2(h)(5)(ix). Such petitioners must file a new H-2A
petition using a copy of the previously approved temporary labor
certification to request replacement workers. However, the current
regulations do not cover situations where H-2A workers fail to show up
at the worksite or abscond.
To minimize the adverse impact on petitioners who lose workers for
these reasons, DHS has determined that petitioners should be permitted
to seek substitute H-2A workers in these instances, as well, provided
that petitioners comply with the notification requirements in 8 CFR
214.2(h)(5)(vi). Thus, the final rule allows a petitioner to file an H-
2A petition using a copy of the previously-approved temporary labor
certification to replace an H-2A worker where: (a) An H-2A worker's
employment was terminated early (i.e., before the completion of work);
(b) a prospective H-2A worker fails to report to work within five
workdays of the employment start date on the previous H-2A petition or
within five workdays of the date established by his or her employer,
whichever is later; or (c) an H-2A worker absconds from the worksite.
New 8 CFR 214.2(h)(5)(ix). These three instances parallel the instances
that trigger the notification requirement in new 8 CFR
214.2(h)(5)(vi)(B)(1) (except where the work for which the petitioner
needed H-2A workers has been completed).
d. Retention of Evidence of a Change in Employment Start Date
The final rule also adds to the provision requiring the petitioner
to retain evidence of its notification to DHS a requirement that the
petitioner also retain evidence of a different employment start date
for one year if the start date has changed from that stated on the H-2A
petition. New 8 CFR 214.2(h)(5)(vi)(B)(2). Since the notification
provision allows for the petitioner to use a new start date that the
petitioner has established rather than the start date stated in the H-
2A
[[Page 76894]]
petition, DHS believes that it must require the employer to retain
evidence of the change in the start date to protect against
misrepresentations by the petitioner regarding the employment start
date.
e. Response Period Upon Receipt of a Notice of Noncompliance With the
Notification Requirement
The final rule extends from 10 days to 30 days the time period
within which a petitioner must reply to a DHS notice of noncompliance
with the notification requirement. New 8 CFR 214.2(h)(5)(vi)(C). Based
upon comments received, DHS recognizes that small businesses may have
difficulty in responding to a DHS notice within 10 days. Many do not
have a human resources department to handle administrative tasks and
may find it difficult to respond to a notice within 10 days, especially
if the notice arrives during the petitioner's busiest season. DHS
believes that a 30-day time period for responding to a notice is
reasonable.
2. Payment of Fees by Aliens To Obtain H-2A Employment
To address some commenters' concerns about the proposed provisions
addressing job placement-related fees paid by beneficiaries to obtain
H-2A employment, the final rule makes several clarifications and
changes.
First, the final rule specifies that the fees prohibited by the
rule do not include the lower of the fair market value or the actual
costs of transportation to the United States and any payment of
government-specified fees required of persons seeking to travel to the
United States (e.g., fees required by a foreign government for issuance
of passports, fees imposed by the U.S. Department of State for issuance
of visas, inspection fees), except where the passing of such costs to
the worker is prohibited by statute or the Department of Labor's
regulations. See 20 CFR 655.104(h). Prospective H-2A workers may be
required to pay such costs, unless the prospective employer has agreed
with the alien to pay such fees and/or transportation costs. New 8 CFR
214.2(h)(5)(xi)(A). DHS determined that payment of these costs by the
H-2A worker should not be prohibited since they are personal costs
related to the alien's travel to the United States, rather than fees
charged by a recruiter or employer for finding employment.
Second, to clarify the standard for the petitioner's knowledge of
fees being paid by the alien, the final rule modifies the standard to
include both knowledge by the petitioner and circumstances in which the
petitioner should reasonably know that that worker has paid or has
entered an agreement to pay the prohibited fees.
Third, the final rule offers petitioners a means by which to avoid
denial or revocation (following notice to the petitioner) of the H-2A
petition in cases where USCIS determines that the petitioner knows or
reasonably should know that the worker has agreed to pay the prohibited
fees as a condition of obtaining H-2A employment. In cases where
prohibited fees were collected prior to petition filing, and in cases
where prohibited fees were collected by the labor recruiter or agent
after petition filing, USCIS will not deny or revoke the petition if
the petitioner demonstrates that the beneficiary has been reimbursed in
full for fees paid or, if the fees have not yet been paid, that the
agreement to pay such fees has been terminated. Additionally, as an
alternative to reimbursement in the case where the prohibition is
violated by the recruiter or agent after the filing of the petition,
the petitioner may avoid denial or revocation of the petition by
notifying DHS of the improper payments, or agreement to make such
payments, within two workdays of finding out about such payments or
agreements. If the H-2A petition is denied or revoked on these grounds,
then, as a condition of approval of future H-2A petitions filed within
one year of the denial or revocation, the petitioner must demonstrate
that the beneficiary has been reimbursed or that the beneficiary cannot
be located despite the petitioner's reasonable efforts. New 8 CFR
214.2(h)(5)(xi)(C).
Fourth, the final rule does not include the requirement that the
petitioner submit a separate document attesting to: The scope of the H-
2A employment and the use of recruiters to locate H-2A workers, and the
absence of any payment of prohibited recruitment fees by the
beneficiary. Although petitioners will be required to attest to these
factors, DHS is instead amending the Form I-129 to include those
attestation provisions rather than requiring petitioners to submit a
separate attestation document. DHS has determined that a separate
attestation would increase petitioners' administrative burdens as well
as duplicate much of the same information that petitioner must provide
on the H-2A petition to establish eligibility.
3. Revocation of Labor Certification
The final rule addresses the effect of the revocation of temporary
labor certifications by DOL on H-2A petitioners and their
beneficiaries. This rule provides for the immediate and automatic
revocation of the H-2A petition if the underlying temporary labor
certification is revoked by DOL. New 8 CFR 214.2(h)(5)(xii). DHS
believes that immediate and automatic revocation of the petition is a
necessary consequence of a revocation of the temporary labor
certification. The temporary labor certification is the basis for the
petition, and DHS does not have the expertise to second-guess DOL's
decision to revoke the temporary labor certification.
Because the denial or revocation of a petition based on the
revocation of temporary labor certification will have a direct effect
on an H-2A worker's status, DHS will authorize the alien beneficiary's
period of stay for an additional 30-day period for the purpose of
departure or extension of stay based upon a new offer of employment.
Id. During this 30-day period, such alien will not be deemed to be
unlawfully present in the United States. Id.; see also INA section
212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B) (description of unlawful
presence). Although DHS also proposed to require a petitioner to pay
for the alien's reasonable transportation costs of return to his or her
last place of foreign residence abroad after DHS revokes a petition for
improper payment of fees, DHS has removed that requirement from this
final rule.
4. Violations of H-2A Status
The final rule clarifies that DHS will deny H-2A nonimmigrant
status based on a finding that the alien violated any condition of H-2A
status within the past 5 years, unless the violation occurred through
no fault of the alien. DHS has added this clarification to ensure that
this provision will not adversely affect the aliens whose previous
violations of status were caused by illegal or inappropriate conduct by
their employers. New 8 CFR 214.2(h)(5)(viii)(A).
5. Permitting H-2A Petitions for Nationals of Participating Countries
The final rule modifies the proposal that would have precluded DHS
from approving an H-2A petition filed on behalf of aliens from
countries that consistently deny or unreasonable delay the prompt
return of their citizens, subjects, nationals or residents who are
subject to a final order of removal from the United States. DHS will
now publish in a notice in the Federal Register a list of countries
that the Secretary of Homeland Security has designated, with the
concurrence of the Secretary of State, as eligible for its nationals to
participate in the H-2A program. In designating countries to
[[Page 76895]]
allow the participation of their nationals in the H-2A program, DHS,
with the concurrence of the Department of State, will take into account
factors including, but not limited to, the following: (1) The country's
cooperation with respect to the issuance of travel documents for
citizens, subjects, nationals and residents of that country who are
subject to a final order of removal; (2) the number of final and
unexecuted orders of removal against citizens, subjects, nationals, and
residents of that country; (3) the number of orders of removal executed
against citizens, subjects, nationals, and residents of that country;
and (4) such other factors as may serve the U.S. interest. Initially,
the list will be composed of countries that are important for the
operation of the H-2A program and are cooperative in the repatriation
of their nationals. The countries included on the list are the
countries whose nationals contributed the vast majority of the total
beneficiaries of the H-2A program during the last three fiscal years.
Additional details on how this list will be administered are included
in the discussion in response to comments received on this proposed
provision below.
6. Conforming Amendments and Non-Substantive Changes
The final rule makes conforming amendments to 8 CFR 214.2(h)(2)(B)
and (C) by providing that the form instructions will contain
information regarding appropriate filing locations for the H-1B, H-2A,
H-2B, and H-3 classifications. The final rule also makes conforming
amendments to 8 CFR 214.2(h)(5)(v)(B) and 8 CFR 214.2(h)(5)(v)(C) to
clarify job qualification documentation requirements and the timing for
such documents to be filed for named and unnamed beneficiaries.
Finally, the final rule includes non-substantive structure or wording
changes from the proposed rule for purposes of clarity and readability.
II. Public Comments on the Proposed Rule
A. Summary of Comments
Out of the 163 comments USCIS received on the proposed rule,
several comments supported the proposals in the rule as a whole and
welcomed DHS's recognition of the need for H-2A workers and for
modifications to the current H-2A regulations. Agricultural employers
submitted 115 of the total comments received.
Most commenters generally supported the streamlining measures in
the proposed rule, such as: Removing the requirement to name the sole
beneficiary and beneficiaries who are outside of the United States if
the beneficiaries are named in the labor certification; permitting an
employer to file only one petition for multiple beneficiaries from
multiple countries; extending the admission period to 30 days after the
conclusion of the H-2A employment; and reducing the required time
abroad once an H-2A worker has reached the maximum period of stay
before being able to seek H-2A nonimmigrant status again. However, many
commenters were opposed to several changes that they believe will
impose additional burdens and costs on farm businesses. They suggested
that some of the proposed changes could lead to a decrease in usage of
the H-2A program, such as the following proposals: Precluding the
current practice of approving H-2A petitions that are filed with denied
temporary labor certifications; authorizing USCIS to deny or revoke
upon notice any H-2A petition if it determines that the beneficiary
paid a fee in connection with or as a condition of obtaining the H-2A
employment; modifying the current notification and liquidated damages
requirements; providing for the immediate and automatic revocation of
the petition upon the revocation of the labor certification; and
imposing on sheepherders the same departure requirement applicable to
all H-2A workers. Many commenters also were concerned about the
proposals to authorize employment of H-2A workers while they are
changing employers (if the new employer is a participant in good
standing in E-Verify) and to institute a land-border exit system for
certain H-2A workers on a pilot basis.
The concerns of the commenters summarized above and additional,
more specific comments are organized by subject area and addressed
below.
B. General Comments
1. Comments From the Dairy Industry
Comment: Several commenters expressed disappointment about what was
described as the continued exclusion of the dairy industry from the H-
2A program.
Response: DHS notes that most dairy farmer's needs are year-round
and, therefore, may not be able to meet the requirements of the H-2A
program. Dairy farmers that can demonstrate a temporary need for H-2A
workers, however, are able to utilize the program. The applicable
statute precludes DHS from extending the program to work that is
considered permanent. See INA section 101(a)(15)(H)(ii)(a), 8 U.S.C.
1101(a)(15)(H)(ii)(a).
2. U.S. and Foreign Worker Protections
Comment: DHS received some comments that urged the withdrawal of
the proposed rule entirely on the basis that the rule fails to reflect
the critical balance between the nonimmigrant labor force and the U.S.
workforce and undermines critical labor protections that serve as the
foundation of the H-2A program. Some commenters also opined that the
proposed rule would result in the exploitation of temporary foreign
workers and the undermining of wages and working conditions of U.S.
workers.
Response: DHS is aware of its responsibility to help maintain the
careful balance between preserving jobs for U.S. workers and
administering nonimmigrant programs designed to invite foreign workers
to the United States. The final rule contains two major revisions to
the regulations designed to protect U.S. workers: (1) Removal of DHS's
authority to approve H-2A petitions filed with temporary labor
certifications that have been denied by DOL (revised 8 CFR
214.2(h)(5)(i)(A)); and (2) the addition of a provision to provide for
the immediate and automatic revocation of an H-2A petition upon the
revocation of the temporary labor certification by DOL (new 8 CFR
214.2(h)(5)(xii)). DHS believes that a temporary labor certification
process is required to protect U.S. workers.
In order to protect foreign workers from exploitation, the final
rule requires petitioners to return any recruiter or finders' fees paid
by alien beneficiaries as a condition of the H-2A employment if paid
with the knowledge of the petitioner (or if the petitioner reasonably
should have known about the payment). See new 8 CFR 214.2(h)(5)(xi)(A).
Failure to return the prohibited fees to the beneficiaries will result
in the denial or revocation of the H-2A petition.
3. Lack of Enforcement Against the Employment of Unauthorized Aliens
Comment: A few commenters criticized the lack of a sound method for
strong enforcement against employers that obtain and maintain a
workforce of unauthorized aliens while the rule proposed to impose
stiffer fines, revocations, and increase in costs to those employers
who are trying to obtain and maintain a legal workforce through the H-
2A program.
Response: U.S. Immigration and Customs Enforcement (ICE) is charged
with enforcing the laws against the
[[Page 76896]]
employment of unauthorized aliens, including the applicable provisions
at section 274A of the INA, 8 U.S.C. 1324a. Enforcement of these
provisions is outside the scope of this rulemaking. The purpose of this
rule is to strengthen the integrity of the H-2A program so that
employers will be encouraged to obtain workers through the H-2A program
rather than through unlawful means. The added authority to deny or
revoke petitions, and any increase in costs to employers included in
this rule reflect necessary anti-fraud and worker protection measures.
Employers that follow the rules of the program will not be unreasonably
affected by these measures.
C. Specific Comments
1. Consideration of Denied Temporary Agricultural Labor Certifications
Comment: Seventeen out of 24 commenters who discussed this issue
objected to the removal of regulatory language permitting, in limited
circumstances, the approval of H-2A petitions filed with temporary
labor certifications that have been denied by DOL.
Response: After considering the commenters' objections, DHS
nevertheless retains this proposal in this final rule as discussed in
the comments and responses below. See new 8 CFR 214.2(h)(5)(i)(A).
Comment: Some commenters among those who objected to this proposal
suggested that the INA vests the authority for making decisions on the
H-2A workers' admission solely with DHS, not DOL.
Response: DHS's statutory authority is to determine whether or not
to approve a petition for H-2A workers after consultation with DOL. INA
section 214(c)(1), 8 U.S.C. 1184(c)(1). By no longer permitting the
approval of H-2A petitions in instances where DOL has denied the
temporary labor certification, DHS does not believe that it is
abrogating its statutory responsibility in adjudicating H-2A petitions.
Rather, DHS is recognizing that it does not have the expertise in
evaluating the current U.S. labor market to make a determination
independent from DOL's determination on the temporary labor
certification. It is therefore in the best interests of U.S. workers
and the public in general that DHS relinquish its ability to approve H-
2A petitions in the absence of the grant of such labor certification by
DOL.
Comment: A few commenters pointed out that the language of the INA
requires an employer only to apply for, not obtain, a temporary labor
certification from the Secretary of Labor. See INA section 218(a)(1), 8
U.S.C. 1188(a)(1).
Response: DHS disagrees with the commenters' interpretation of the
statute. While the statutory language only refers to a petitioner's
application for a temporary labor certification, DHS believes that its
interpretation of this language requiring petitioners also to obtain a
temporary labor certification as a condition of H-2A employment is
reasonable. A temporary labor certification certifies that there are
insufficient U.S. workers who are able, willing, and qualified, and who
will be available at the time and place needed, to perform the labor or
services involved in the petition, and that the employment of the alien
in such labor or services will not adversely affect the wages and
working conditions of U.S. workers who are similarly employed. INA
section 218(a)(1), 8 U.S.C. 1188(a)(1). The statute includes the
temporary labor certification requirement as a means to protect U.S.
workers from losing jobs to foreign laborers. INA section 218(c)(3)(A),
8 U.S.C. 1188(c)(3)(A). Without requiring that the temporary labor
certification actually be obtained by the petitioner, the temporary
labor certification requirement would fail to offer such protection.
Moreover, it is clear that the determinations as to the availability of
U.S. workers and the effect on their wages and working conditions are
within the expertise of DOL, not DHS. Without certification by the
Secretary of Labor, DHS would not be well equipped to make a
determination on the petition for an employer to import foreign
workers. Additionally, section 214(a)(1) of the INA grants the
Secretary of Homeland Security authority to establish by regulation the
conditions for nonimmigrant admissions. 8 U.S.C. 1184(a)(1). This rule
is establishing a requirement that employers obtain a temporary labor
certification as a condition for an alien to be admitted as an H-2A
nonimmigrant.
Comment: Many commenters who objected to this proposal suggested
that this proposal and the lack of an expeditious process to make a new
determination on the denied temporary labor certification will leave
employers without recourse if U.S. workers do not report to work on the
date of their need. They asserted that filing a petition without a
temporary labor certification should be allowed in any circumstance
where DOL denies certification or fails to act in a timely manner.
Response: In its final H-2A rule, DOL establishes a process for an
employer to request re-determination of need if U.S. workers fail to
report on the date of need. DHS believes that this DOL provision
addresses these commenters' concerns. Therefore, under this final rule,
DHS abrogates the process for approving H-2A petitions, in limited
circumstances, that are filed with denied temporary labor
certifications.
2. Unnamed Beneficiaries in the Petition
Comment: Ten commenters addressed and supported the proposal to
allow H-2A petitions to include unnamed beneficiaries for those who are
outside the United States regardless of the number of beneficiaries on
the petition or whether the temporary labor certification named
beneficiaries. They agreed that it would provide agricultural employers
with more flexibility to recruit foreign workers months ahead of the
actual date of stated need.
Response: Based on the support from the commenters, the final rule
adopts this proposal with minor changes. The changes discussed below
concern beneficiaries from countries that have not been designated as
participating countries under the H-2A program as well as minor,
nonsubstantive changes to improve the clarity of the text. The final
rule revises 8 CFR 214.2(h)(2)(iii) and removes 8 CFR
214.2(h)(5)(i)(C). Also, as noted earlier, the final rule makes
conforming amendments to 8 CFR 214.2(h)(5)(v)(B) and 8 CFR
214.2(h)(5)(v)(C) to clarify job qualification documentation
requirements and the timing for such documents for named and unnamed
beneficiaries. The final rule also maintains the requirement that the
petition include the names of those beneficiaries who are present in
the United States. It should be noted that, in the case of an alien who
is already in the United States, an H-2A petition encompasses both an
employer's request to classify its worker as H-2A nonimmigrant and the
alien worker's request to change from a different nonimmigrant status
to H-2A or to extend his or her H-2A status. If eligible, the approval
of the H-2A petition and the related request for extension of stay or
change of status will serve either to confer a new immigration status
or to extend the status of a particular alien immediately upon
approval. Since such an approval, unlike a nonimmigrant admission from
outside the country, does not afford the U.S. Government the
opportunity to first inspect and/or interview the H-2A beneficiary at a
consular office abroad or at a U.S. port of entry, it is essential that
DHS have the names of beneficiaries in the country.
[[Page 76897]]
3. Multiple Beneficiaries
Comment: Eleven out of 12 commenters supported the proposal to
permit petitioners to file only one petition with DHS when petitioning
for multiple H-2A beneficiaries from multiple countries. They stated
that this change to the regulations would benefit the employer not only
in terms of convenience but also financially.
Response: Based on the positive responses from commenters, the
final rule retains the proposal. New 8 CFR 214.2(h)(5)(i)(B).
Comment: One commenter suggested that this change would
unnecessarily complicate the visa issuance process.
Response: DHS disagrees with this commenter's concern. DHS proposed
the change as a result of the implementation of the Petition
Information Management System (PIMS) by the Department of State in
2007. PIMS effectively tracks visa issuance for specific petitions
approved for multiple beneficiaries in real time regardless of the
consulate location where a beneficiary may apply for a visa. Therefore,
DHS does not believe that this proposed change would complicate the
visa issuance process. A consular officer would have full and timely
access to information regarding the exact number of beneficiaries who
have been issued visas based on the approved H-2A petition at the time
an alien applies for his or her H-2A visa based on that petition. The
Department of State website provides more information about PIMS at
http://travel.state.gov/visa/laws/telegrams/telegrams_4201.html.
Comment: The same commenter also stated that the proposal would
result in an employer recruiting and hiring workers from different
geographical regions of a country and/or from different nations. The
commenter further suggested that such hiring process would increase the
likelihood of problems for workers who feel isolated, decreasing the
workers' ability to unite and communicate among themselves.
Response: DHS does not intend to change employers' recruiting
processes as a result of this proposal. Under the current regulations,
an employer may bring in H-2A workers from many different countries
rather than from a single country or from one region within a country.
The change made by this final rule merely would permit petitioners to
file only one petition with DHS when petitioning for multiple H-2A
beneficiaries from multiple countries instead of requiring multiple
petitions.
4. Payment of Fees by Beneficiaries To Obtain H-2A Employment
a. Grounds for Denial or Revocation on Notice.
Comment: Eleven out of 83 commenters supported the proposal to
authorize the denial or revocation of an H-2A petition if DHS
determines that the alien beneficiary has paid or has agreed to pay any
fee or other form of compensation, whether directly or indirectly, to
the petitioner or that the petitioner is aware or reasonably should be
aware that such payment was made to the petitioner's agent, or to any
facilitator, recruiter, or similar employment service, in connection
with or as a condition of obtaining the H-2A employment. Seventy-one
commenters responded negatively to this proposal and one comment was
neutral.
Response: After carefully considering the commenters' support and
objections, for the reasons stated in the paragraphs below, the final
rule provides DHS with the authority to deny or to revoke (following
notice and an opportunity to respond) an H-2A petition if DHS
determines that the petitioner has collected, or entered into an
agreement to collect a fee or compensation as a condition of obtaining
the H-2A employment, or that the petitioner knows or reasonably should
know that the beneficiary has paid or agreed to pay any facilitator,
recruiter, or similar employment service as a condition of H-2A
employment. See new 8 CFR 214(h)(5)(xi)(A). DHS has determined that a
prohibition on any payment made by a foreign worker in connection with
the H-2A employment is more restrictive than necessary to address the
problem of worker exploitation by unscrupulous employers, recruiters,
or facilitators imposing costs on workers as a condition of selection
for H-2A employment. Accordingly, DHS has not included in the final
rule the prohibition on payments made in connection with the H-2A
employment, but retains the prohibition on payments made to an
employer, recruiter, facilitator, or other employment service by the
foreign worker that are a condition of obtaining the H-2A employment.
DHS will not deny or revoke the petition if the petitioner
demonstrates that (1) prior to the filing of the petition, the alien
beneficiary has been reimbursed for the prohibited fees paid; (2) where
the prohibited fees have not yet been paid, that the agreement to pay
has been terminated; or (3) where the prohibition on collecting or
agreeing to collect a fee is violated by a recruiter or agent after the
filing of the petition, the petitioner notifies DHS about the
prohibited payments, or agreement to make such payments, within 2
workdays of finding out about such payments or agreements.
Comment: The commenters who supported this proposal welcomed this
addition to the regulations as a positive change to recognize worker
abuses, such as human trafficking and effective indenture. They
suggested that DHS should take further measures to deter future
violations by implementing procedures to debar a violator from the
program.
Response: DHS does not have the statutory authority to implement
procedures to debar petitioners from the H-2A program. The statute
provides DHS with the authority to deny petitions filed with respect to
an offending employer under section 204 or 214(c)(1) of the INA (8
U.S.C. 1154 or 1184(c)(1)) for 1 to 5 years if it finds a significant
failure to meet any of the conditions of an H-2B petition or a willful
misrepresentation of a material fact in an H-2B petition. INA section
214(c)(14)(A)(ii), 8 U.S.C. 1184(c)(14)(A)(ii). However, there is no
similar provision applicable to the H-2A nonimmigrant classification
that provides such authority.
Comment: Most of the commenters supporting worker protections also
suggested that DHS should take further measures to provide appropriate
remedies to help the foreign workers receive the funds to which they
were entitled.
Response: DHS agrees that the proposed rule, while offering some
safeguards against the indenture of H-2A workers by providing a direct
disincentive to employers and/or their recruiters to collect recruiting
and similar fees from prospective and current H-2A workers, does not
address fully the basic problem such workers face: They remain
``indentured'' until such time as they are relieved of this debt
burden. While the proposed rule addresses this concern by providing an
alien worker who has incurred such debt in connection with obtaining H-
2A employment with the opportunity to change employers or return to his
or her home country, it does not relieve the alien of his or her
improperly imposed H-2A placement-related debt burden. DHS agrees with
the commenters' concern in this regard and believes that it is in the
interests of both the alien and legitimate H-2A employers to ensure the
fair and even-handed administration of the H-2A program by providing a
means to make such alien workers whole. Consistent with the expressed
intent of the proposed rule to afford
[[Page 76898]]
adequate protections for alien agricultural workers seeking H-2A
nonimmigrant classification and to remove unnecessary administrative
burdens on legitimate employers seeking to hire such workers, the final
rule, therefore, provides that an H-2A petitioner can avoid denial or
revocation of the H-2A petition if the petitioner demonstrates that the
petitioner or the employment service reimbursed the alien worker in
full for the prohibited fees paid or that any agreement for future
payment is terminated. New 8 CFR 214.2(h)(5)(xi)(A)(1), (2), and (4).
However, the remedy of reimbursement would not apply if the petitioner
collected the fees after the filing of the petition. New 8 CFR
214.2(h)(5)(xi)(A)(3). For a petitioner who discovers after the filing
of the petition that the alien worker paid or agreed to pay an
employment service the prohibited fees, the petitioner can avoid denial
or revocation by notifying DHS within 2 workdays of obtaining this
knowledge instead of reimbursing the worker or effecting termination of
the agreement. New 8 CFR 214.2(h)(5)(xi)(A)(4). DHS will publish a
notice in the Federal Register to describe the manner in which the
notification must be provided.
DHS does not believe it appropriate to impose on petitioners who
discover a post-filing violation by a labor recruiter the same adverse
consequence--denial or revocation of the petition--that is imposed on
more culpable petitioners who themselves violate the prohibition on
collection of fees from H-2A workers after petition filing, nor should
petitioners discovering such post-filing violations by a labor
recruiter be put in a situation where the only way to avert denial or
revocation of the petition might be for the petitioner to pay for the
recruiter's violation by reimbursing the alien itself. Petitioners
should be encouraged to come forward with information about post-filing
wrongdoing by labor recruiters, even if reimbursement is not possible.
In this way, DHS can help provide further protections to H-2A workers
against unscrupulous recruiter practices.
Further, where the petitioner does not reimburse the beneficiary
and USCIS denies or revokes the H-2A petition, the final rule provides
that a condition of approval of subsequent H-2A petitions filed within
one year of the denial or revocation is reimbursement of the
beneficiary of the denied or revoked petition or a demonstration that
the petitioner could not locate the beneficiary. New 8 CFR
214.2(h)(5)(xi)(C)(1). This requirement is intended to balance the
commenters' concerns that an H-2A alien worker not be required to pay
fees as a condition of obtaining his or her H-2A employment with the
legitimate concern that petitioners who run afoul of 8 CFR
214.2(h)(5)(xi)(A) but who have reimbursed the alien worker in full or
who, despite their reasonable efforts, are unable to locate such
workers, continue to have access to participation in the H-2A program.
Whether the petitioner will be able to demonstrate to the satisfaction
of DHS that it has exercised reasonable efforts to locate the alien
worker will depend on the specific facts and circumstances presented.
In this regard, DHS would take into consideration the amount of time
and effort the petitioner expended in attempting to locate the
beneficiary, and would require, at a minimum, that the petitioner has
attempted to locate the worker at every known address(es). The final
rule also clarifies that the 1-year condition on petition approval will
apply anew each time an H-2A petition is denied or revoked on the basis
of new 8 CFR 214.2(h)(5)(xi)(A)(1)-(4). New 8 CFR
214.2(h)(5)(xi)(C)(2).
Comment: Many commenters further suggested that employers should be
obligated to pay for aliens' subsistence costs while the workers are
not permitted to work.
Response: DHS agrees that the revocation of a petition based on the
payment of prohibited fees should not penalize H-2A workers.
Accordingly, to minimize the adverse impact on workers, DHS will
authorize the alien beneficiary's period of stay for an additional 30-
day period for the purpose of departure or extension of stay based upon
a new offer of employment. Id. During this 30-day period, such alien
will not be deemed to be unlawfully present in the United States. Id.;
see also INA section 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B) (description
of unlawful presence).
DHS, however, will not be requiring employers to provide financial
assistance to aliens adversely affected by the revocation of a
petition. While we understand that certain H-2A workers will be
adversely affected when DHS revoked H-2A petitions due to actions by
the employer, we do not believe that DHS can require employers to cover
expenses for workers without further notice and comment. This
determination, however, does not impact any other legal remedy or claim
that an affected worker may have against his or her employer.
Further, although DHS proposed to also require a petitioner to pay
for the alien's reasonable transportation costs of return to his or her
last place of foreign residence abroad after DHS revokes a petition for
improper payment of fees, DHS has removed that requirement from this
final rule. While section 214(c)(5)(A) of the INA (8 U.S.C.
1184(c)(5)(A)), requires petitioners to pay the workers' reasonable
transportation expenses to return to their last place of foreign
residence following revocation of a petition, that provision pertains
solely to H-1B and H-2B nonimmigrant workers. 8 U.S.C. 1184(c)(5)(A).
As there is no similar statutory requirement for employers of H-2A
temporary workers to cover expenses for beneficiaries even when the
petitioner's actions result in the revocation of the petition and thus
require the alien to leave the United States, DHS does not believe that
it may impose such costs onto the H-2A employer.
Comment: Several commenters suggested that employers should be
required to ensure that workers' passports are not confiscated.
Response: Existing laws satisfactorily meet these commenters'
concerns and they are not addressed by this final rule. For example, it
is unlawful to conceal, remove or confiscate an immigration document in
furtherance of peonage or involuntary servitude. See 18 U.S.C. 1592.
Comment: Some commenters suggested that the U.S. government should
require H-2A employers to comply with Article 28 of Mexico's Federal
Labor Law, which requires that employers recruiting Mexican citizens in
Mexico for employment abroad comply with such requirements as
registering with the applicable Board of Conciliation and Arbitration,
submitting the employment contract to the Board, and posting a bond to
ensure a fund to compensate workers for illegal employment practices.
They further stated that the North American Agreement on Labor
Cooperation (NAALC), which requires each signatory nation to cooperate
to ensure compliance with all labor laws and improve conditions for
workers, is a treaty that binds the United States.
Response: DHS does not enforce the labor law of a foreign country.
As it is DOL's function to administer the U.S. government's
responsibilities under the NAALC and to enforce federal labor laws, DHS
is not in a position to reply to these comments and no changes were
made to the final rule to respond to them.
Comment: One commenter suggested that the proposed rule contains no
plan for dealing with unscrupulous, fraudulent recruiters in foreign
[[Page 76899]]
countries and that this change may result in DHS penalizing the victims
rather than the perpetrators as workers lose jobs and employers lose
workers. Some commenters made a variety of recommendations to enforce
the methods to protect H-2A workers from abuses, such as requiring an
H-2A employer to reach written agreements with labor contractors,
recruiters, or facilitators to prohibit the imposition of job
placement-related fees on prospective workers or limiting the use of
recruiters and facilitators for H-2A purposes to those that maintain an
office in the United States and are duly licensed to do business in the
United States according to Federal and State laws.
Response: While DHS agrees that these precautions would further
protect H-2A workers from abuses, including such precautions in this
final rule would be outside DHS' authority. DHS cannot specifically
regulate the business practices of recruiters in foreign countries or
the agreements between private entities under existing authorities.
Comment: Some commenters who objected to this proposal suggested
that this proposal would lead to a decrease in the usage of the H-2A
program as it will make the program more costly.
Response: While DHS understands that this rule has the effect of
requiring employers rather than H-2A workers to bear these costs, the
H-2A program was never intended to encourage the importation of
indebted workers. The intention of the final rule is to ensure that the
actual wages paid to H-2A workers reflect those set forth in the labor
certification; passing recruitment-related costs on to the alien worker
would have the effect of reducing the alien worker's actual wages.
Further, DHS does not believe that this rule would have a chilling
effect on the recruitment of H-2A workers; demand for such workers is
based on a prospective employer's need for workers. So too, the choice
whether to use recruiters and/or facilitators is that of the employer
and is presumably based on a determination that it makes economic sense
to use such persons to assist in finding alien workers. Assuming that
making the employer bear such recruitment costs would make the program
more cost prohibitive, the solution is not to pass those costs on to
economically disadvantaged alien workers but to leave to the free
market the amount an employer is willing to agree to pay the recruiter,
facilitator, or employment service.
Comment: A number of commenters who objected to this proposal
asserted that there is no statutory authority in the INA for DHS to
prohibit prospective workers from paying a recruiter or a facilitator
for the services they receive in order to secure employment in the
United States. They stated that it is a longstanding practice that
foreign agents collect fees from those who wish to find work in the
United States and need assistance with their visa applications and/or
the admission process and, in fact, such services have become essential
with constant changes in the visa application procedure at U.S.
consulates abroad.
Response: DHS believes that these comments misinterpret the
proposed change. The proposal would neither prohibit the use of such
recruiters or facilitators during the recruitment or visa application
process nor the collection of fees itself. Instead, the proposal would
prohibit imposition of fees on prospective workers as a condition of
selection for such employment. It would not preclude the payment of any
finder's or similar fee by the prospective employer to a recruiter or
similar service, provided that such payment is not assessed directly or
indirectly against the alien worker. Under section 214(a) of the INA, 8
U.S.C. 1184(a), DHS has plenary authority to determine the conditions
of admission of all nonimmigrants to the United States, including H-2A
workers. It is within the authority of DHS to bar the payment by
prospective workers of recruitment-related fees as a condition of an
alien worker's admission to this country in H-2A classification.
DHS notes that this final rule is consistent with the Department of
Labor's bar on the employer passing to prospective alien agricultural
workers fees the employer incurs in recruiting U.S. workers in
conjunction with obtaining a temporary agricultural worker labor
certification. See new 20 CFR 655.105(o).
Comment: Many commenters asked DHS to specify what types of fees
are prohibited by the rule. Several commenters argued that obtaining a
passport and a visa for arriving H-2A workers should not be the
employer's responsibility.
Response: DHS agrees that passport and visa fees should not be
included in the types of fees prohibited by the rule, except where the
passing of such costs to the worker is prohibited by statute or the
Department of Labor's regulations. Generally, the types of fees that
would be prohibited include recruitment fees, attorneys' fees, and fees
for preparation of visa applications. So that the prohibition against
impermissible fees remains general, covering any money paid by the
beneficiary to a third party as a condition of the H-2A employment, the
final rule does not provide a list of prohibited fees. However, as
discussed earlier, the final rule provides that prohibited fees do not
include the lesser of the fair market value or actual costs of
transportation to the United States, or payment of any government-
specified fees required of persons seeking to travel to the United
States, such as, fees required by a foreign government for issuance of
passports and by the U.S. Department of State for issuance of visas. As
these costs would have to be assumed by any alien intending to travel
to the United States, DHS believes that each alien should be
responsible for them. New 8 CFR 214.2(h)(5)(i)(C)(5) and (h)(5)(xi)(A)
and (C).
Comment: Many commenters expressed concerns about petition
revocation based on an employer's knowledge of the payment of job
placement-related fees by prospective workers. Many commenters
requested that DHS clarify the standard by which an employer will be
deemed to lack knowledge of the prohibited payment by the prospective
worker.
Response: The final rule clarifies that an H-2A petition will be
subject to denial or revocation only if DHS determines that the H-2A
petitioner knew, or reasonably should have known, that the H-2A worker
paid or agreed to pay a prohibited fee. New 8 CFR 214.2(h)(5)(xi)(A).
For example, if a recruiter advertises to prospective H-2A petitioners
that it can place temporary alien workers with such employers at no or
minimal cost to the employers, it is reasonable for prospective
petitioners to view these claims as suspect and question whether the
recruiter has passed its recruitment costs to the prospective H-2A
workers. A determination by DHS that the petitioner failed to make
reasonable inquiries to ensure that prospective H-2A workers did not
pay the recruiter any fees will subject the petition to denial or
revocation. Similarly, if an H-2A petitioner learns, directly or
indirectly, that a prospective H-2A worker has been asked to pay a fee
or other thing of value as a condition of his or her employment with
the U.S. employer, the H-2A petitioner will be deemed to be on notice
that the prospective worker has paid a prohibited fee and reasonably
can be expected to ascertain whether this is in fact true before
petitioning for the worker.
Comment: Another comment stated that this proposal would make
petitioners subject to liability by opening additional avenues for
lawsuits
[[Page 76900]]
against the petitioners who may be held responsible for a third party's
action.
Response: This provision is not intended to provide any party with
the authority to engage in legal proceedings based on this decision by
DHS.
Comment: Some commenters suggested that DHS should recognize that
some assistance in recruiting and/or in the visa application and
admission process could be conducted informally by friends or family
members, not as a for-profit activity, and requested DHS to specify
facilitators and recruiters that fall under these provisions.
Response: Since assistance in recruiting and in the visa
application or admission process that is provided without charge is not
precluded by this rule, DHS determined that it is not necessary for the
final rule to reference such assistance.
Comment: There were additional suggestions to prevent fraud and to
protect laborers' rights, as well as administrative recommendations.
Response: Because these comments exceeded the scope of the proposed
rule, they are not addressed in this final rule.
b. Employer Attestation
Comment: One out of 8 commenters supported the proposed addition to
require H-2A petitioners to attest that they will not materially change
the information provided on the Form I-129 and the temporary labor
certification; that they have not received, nor intend to receive, any
fee, compensation, or other form of remuneration from prospective H-2A
workers; and whether they used a facilitator, recruiter, or any other
similar employment service, to locate foreign workers, and if so, to
name such facilitators, recruiters, or placement services. Seven
commenters wrote that the employer attestation would not reduce the
amount of paperwork required by an employer nor streamline the process.
Response: DHS has carefully considered the attestation requirement,
and has determined that a separate attestation requirement would be a
duplicative addition to the regulations. However, an attestation
relates to eligibility requirements that the petitioner must
demonstrate on the H-2A petition which the petitioner must sign as
being true and correct. DHS is instead amending the Form I-129 to
include the attestation requirements.
Comment: Many commenters pointed out that there are some minor
activities in the overall scope of work on an agricultural operation
and the workers' secondary duties change from season to season. They
suggested that the narrow and restrictive view of unchanging duties in
the proposed rule could result in good-faith employers violating this
portion of the rule.
Response: While the final rule does not contain a separate
attestation requirement, these comments relate to the requirement that
the petitioner notify DHS of any changes in the terms and conditions of
employment of a beneficiary which may affect eligibility. 8 CFR
214.2(h)(11)(i)(A). DHS does not agree with these commenters'
interpretations and understands that farm laborers generally perform
several duties and their secondary duties may vary from season to
season. For example, while a worker's main duty may be to harvest the
crop, there may be a time when he or she is required to drive a
tractor, to transport the crop to a processor, or to repair farm
equipment. Incidental duties that are associated with the worker's main
duty and are part of routine farm maintenance are not considered
material changes and do not require the filing of a new petition. See 8
CFR 214.2(h)(2)(i)(E).
DOL also provides a clarification in its final rule to reflect that
work activity of the type typically performed on a farm and incident to
the agricultural labor or services for which an H-2A labor
certification was approved may be performed by an H-2A worker. DHS is
in agreement with DOL's clarification, which will ensure that H-2A
workers can engage in minor amounts of other incidental farm work
activity during periods when they are not performing the agricultural
labor of services that is the subject of their application.
Comment: Commenters suggested that the listing of facilitators,
recruiters, or placement services should only be required where workers
were actually recruited, and not in the instances where workers were
assisted with the visa application process.
Response: While the final rule does not include a separate
attestation requirement where the listing of facilitators, recruiters,
or placement services would be required, the revised H-2A petition will
request the petitioner to include this information. DHS agrees with the
commenters' concerns. DHS recognizes that listing all services used
potentially may be overly burdensome and of limited utility to DHS. The
revised H-2A petition instead will request the petitioner to provide
the names of the facilitators, recruiters, or placement services that
actually located the H-2A beneficiaries on the petition.
Comment: One commenter suggested that the attestation provision
include an agreement by the employer agreeing to unhindered and
unannounced inspections by U.S. Immigration and Customs Enforcement
(ICE) and DOL.
Response: The final rule does not include the suggested addition.
DHS has determined that it is not necessary to include such a provision
because such inspections are separately authorized by law. See 8 CFR
214.2(h)(5)(vi)(A). Additionally, DOL authorities are within the
jurisdiction of DOL, rather than DHS. As such, it is not necessary that
an employer agree to inspections.
5. Petition Notification Requirements and Liquidated Damages
Comment: Seventy-three out of 74 commenters objected to the
modified notification and liquidated damages provisions in the proposed
rule.
Response: After careful consideration, and in response to the
commenters' objections, DHS has modified the proposed notification
requirements. DHS also has removed the increase in liquidated damages
and, instead, will return to the current liquidated damages provision
under 8 CFR 214.2(h)(5)(vi)(A).
Comment: Many commenters objected to the proposed requirements to
notify DHS if an H-2A worker fails to report for work within 5 days
after the employment start date stated on the petition or the worker's
employment is terminated more than 5 days before the employment end
date stated on the petition. For example, the commenters stated that
the majority of late arrivals of H-2A workers to the worksite are
caused by slow processing at U.S. government agencies or emergencies
beyond the employer's control. In some cases, employers stagger
workers' arrival at the consulate and at the worksite to accommodate
logistical arrangements, such as transportation. Further, many
commenters suggested that, given that work in agriculture is dependent
upon weather, it is rare that an employer can accurately predict months
in advance of the actual date when the growing season will end, and
many agricultural employers use the latest likely ending date on a
temporary labor certification.
Response: DHS believes that the notification requirements should be
retained, but agrees with the commenters' concerns regarding the
practical application of the proposal. Therefore, the final rule
modifies the notification requirements to address the commenters'
concerns. The final rule requires petitioners to provide notification
to DHS in the following instances: Where an H-2A worker fails to report
to work within five workdays of the employment start date on the H-2A
petition or within five workdays of
[[Page 76901]]
the start date established by the employer, whichever is later; where
the agricultural labor or services for which H-2A workers were hired is
completed more than 30 days earlier than the end date stated on the H-
2A petition; or where the H-2A worker absconds from the worksite or is
terminated prior to the completion of agricultural labor or services
for which he or she was hired. New 8 CFR 214.2(h)(5)(vi)(B)(1). DHS
believes that the modified notification requirements are more workable
for employers and are responsive to the commenters' concerns.
Recognizing that there could be various reasons beyond the employer's
control causing prospective employees' late arrival at the worksite,
the final rule allows the petitioner to use a different employment
start date than the start date stated in the H-2A petition to
accommodate the employees' late arrival. It also changes the
notification timeframes for employment that is terminated earlier than
the end date stated on the petition, depending on whether the
termination occurs before the work is completed or due to early
completion of the work. In addition, the final rule amends 8 CFR
214.2(h)(11)(i)(A) to cross-reference the notification provision.
Where an employer establishes a different start date from that on
the H-2A petition, the final rule adds the requirement that the
employer retain evidence of the changed employment start date for a 1-
year period. A retention period of 1 year was chosen to parallel the 1-
year retention period for notifications. Such documentation must also
be made available for inspection on request by DHS officers. New 8 CFR
214.2(h)(5)(vi)(B)(2). DHS is adding this requirement to ensure that
providing a more flexible timeframe for the notification requirement
will not result in misrepresentations regarding the employment start
date.
Comment: Many commenters who objected to the modified notification
requirements also stated that a notification within 48 hours would be
difficult, if not impossible, because, in many circumstances, it may be
impossible for the employer to know with certainty that the H-2A worker
absconded from the worksite.
Response: DHS disagrees with the commenters concerns that the
notification period would be too difficult to meet based on the speed
with which an employer will gain knowledge of the worker's abscondment.
An absconder is defined as a worker who has not reported to work for 5
workdays without the consent of the employer. The final rule clarifies
that the time period is 5 consecutive workdays. New 8 CFR
214.2(h)(5)(vi)(E). The employer's obligation to notify DHS of an
abscondment would thus not be triggered by the employer's subjective
determination that the worker has indeed absconded, but rather by an
objectively measured event: The passage of five consecutive workdays
during which the alien has failed to report to work without the consent
of the employer.
While DHS does not believe that the proposed notification period
would be too onerous on employers, DHS recognizes that imposing a 48-
hour time period for filing notifications may be difficult for those
employers that do not conduct business 7 days of the week, such as
those employers that are closed on weekends and holidays. Therefore,
the final rule clarifies that the notification period is 2 workdays
rather than the proposed 48 hours. New 8 CFR 214.2(h)(5)(vi)(B)(1).
Comment: Many comments suggested that the requirement to pay $500
in liquidated damages for failing to meet the notification requirement
is excessive and will be a potential disincentive to use the H-2A
program because the failure to comply with the notification
requirement, an event triggering liquidated damages, could be merely a
failure to notify within the required timeframe as opposed to failure
to notify at all. Most of these comments suggested that DHS not
increase the liquidated damages amount from the amount set forth in the
current regulations ($10) or, at most, increase them only by a much
smaller amount, to a level not exceeding $50 per instance.
Response: In response to public comments, DHS has decided to remove
the proposed increase in liquidated damages to $500 and instead will
retain the liquidated damages requirement under 8 CFR
214.2(h)(5)(vi)(B)(3). Under the current provision, an employer who
fails to comply with the notification requirements, as revised under
this final rule, must pay liquidated damages in the amount of $10.
Comment: With respect to the process following the failure to meet
the notification requirements, some commenters suggested that the 10-
day timeframe within which an employer is required to reply to a notice
prior to being assessed liquidated damages would impose an unreasonable
hardship on small employers who could be in their busy season when such
a notice arrives. They recommended that employers be afforded 30 days
to respond.
Response: The final rule adopts this suggestion and provides that
the petitioner will be given written notice and 30 days to reply to
such notice if DHS has determined that the petitioner has violated the
notification requirements and it has not received the notification. New
8 CFR 214.2(h)(5)(vi)(C).
Comment: One comment suggested that the imposition of liquidated
damages must include a provision for due process with such ``hefty''
amounts at stake.
Response: By including a notice requirement, as stated above, and
an opportunity to reply within 30 days, DHS believes that new 8 CFR
214.2(h)(5)(vi)(C) provides sufficient due process.
Comment: Several commenters were concerned about the cost that
employers will have to incur to send the notification to DHS by
certified mail or similar means in order to comply with the
notification requirements within 48 hours.
Response: In reply to these comments, DHS is not including in the
final rule the requirement that the notification be in writing. See new
8 CFR 214.2(h)(5)(vi)(B)(1), (h)(5)(vi)(C), and (h)(11)(i)(A). A notice
outlining the manner in which the notification may be made will be
published in the Federal Register. DHS will provide a designated e-mail
address for employers to send notifications. DHS believes that
designating a dedicated e-mail address for employers' notification
purpose will reduce the burden on employers. DHS will also provide a
designated mailing address for employers without ready access to email.
Comment: A question was raised during a stakeholder meeting held
during the comment period of the proposed rule as to what an H-2A
employer needs to do in order to replace an H-2A worker whose
employment is terminated or who has left the country.
Response: Upon further consideration, DHS agrees that an
accommodation should be made for employers who lose H-2A workers before
the work is completed. Under the current provision at 8 CFR
214.2(h)(5)(ix), an employer may file an H-2A petition to replace an H-
2A worker whose employment was terminated early. However, the provision
does not address the two additional situations covered by the
notification provisions: When workers fail to show up at the worksite
or abscond and leave the employer without a sufficient workforce to
complete the work. Therefore, the final rule amends 8 CFR
214.2(h)(5)(ix) to allow an employer to file an H-2A petition to
replace H-2A workers in the following
[[Page 76902]]
three instances: (a) Where an H-2A worker's employment was terminated
prior to the completion of work and earlier than the date stated in the
H-2A petition; (b) where a prospective H-2A worker has failed to report
to work within five workdays of the employment start date on the
temporary labor certification or within five workdays of the date
established by their employer, whichever is later; or (c) where an H-2A
worker absconds from the worksite. Under this revised provision, a
petitioner would be able to file an H-2A petition using a copy of the
previously approved temporary labor certification to replace the absent
H-2A worker.
Comment: Some commenters suggested that the employer, who did not
know of job placement-related fee payments made by prospective workers,
should not be penalized and therefore should be able to quickly replace
the worker with another H-2A worker.
Response: As discussed above, an H-2A petition will be denied or
revoked if DHS determines that the employer knew or has reason to know
that the H-2A worker paid or agreed to pay a job placement-related fee.
If the employer did not know or have reason to know of such payment,
the provision will not apply and the petition cannot be denied or
revoked on this basis. Therefore, it is not necessary for the final
rule to cover this possibility.
6. Violations of H-2A Status
Comment: Ten commenters objected to the proposal to revise 8 CFR
214.2(h)(5)(viii)(A) to provide that any violation of a condition of H-
2A status within the 5 years prior to adjudication of a new H-2A
petition would result in a denial of H-2A status. DHS did not receive
any other comments on this proposal.
Response: Based on the objections of the commenters, DHS will
modify the proposed rule as discussed below.
Comment: Most of the ten commenters suggested that some aliens may
have unwittingly violated their previous H-2A status by absconding from
their jobs as a result of their employer's illegal or inappropriate
conduct, thereby causing them to engage in a protest leading to their
termination or being forced to quit.
Response: DHS agrees that this situation should not trigger the
consequences of 8 CFR 214.2(h)(5)(viii)(A). The final rule clarifies
that an alien will be precluded from being granted H-2A status where he
or she violated the conditions of H-2A status within the 5 years prior
to adjudication of a new H-2A petition by DHS, except where the
violation occurred through no fault of his or her own, such as where
the alien absconded from the worksite as a result of the employer's
illegal or inappropriate conduct. The prospective employer would have
the opportunity to explain the circumstances surrounding the alien's
previous status violation in its petition, as would the alien in
conjunction with his or her application for H-2A status and/or an H-2A
visa.
Comment: One comment arguing against the revision stated that DHS
lacks the authority to impose additional or more restrictive grounds of
inadmissibility than those provided in the INA.
Response: DHS does not find that this revision is an imposition of
an additional ground of inadmissibility. This revision simplifies the
current provision to apply to all violations of the H-2A status rather
than to the two currently identified in the regulations, namely,
remaining beyond the specific period of authorized stay and engaging in
unauthorized employment. Further, section 214(a)(1) of the INA (8
U.S.C. 1184(a)(1)) provides authority for this requirement as a
condition for H-2A admission. Under that section, the Secretary of
Homeland Security is granted the authority to establish the conditions
of nonimmigrant admission by regulation.
7. Revocation of Labor Certification
Comment: Twenty out of 21 commenters objected to the proposed
revision to 8 CFR 214.2(h)(5)(11)(ii) providing for the immediate and
automatic revocation of an H-2A petition upon the revocation of the
temporary labor certification by DOL.
Response: After carefully considering the commenters' objections
and discussing with DOL, the final rule adopts the proposal for the
following reasons.
Comment: Many of these commenters objected to this change because
a petition revocation will terminate the employment authorization of
the workers and make it impossible for the employer to legally continue
in business. They were concerned that DOL would make revocation of a
labor certification immediate during the pendency of an employer's
appeal of the revocation.
Response: In its final H-2A rule, DOL provides for a stay of
revocation until the conclusion of any DOL administrative appeal. DHS
believes that this DOL provision addresses these commenters' concerns.
Therefore, under this final rule, DHS will revoke an H-2A petition as
soon as DOL has adjudicated any administrative appeal that may have
been filed and informs DHS of their decision to revoke the temporary
labor certification.
Comment: A few commenters wrote that this proposed change will
provide no relief for affected workers who stand to lose their jobs and
their ability to earn sufficient wages that they had expected by taking
H-2A employment. These commenters suggested that the former employer
(whose petition was revoked) should be obligated to pay for subsistence
costs for the aliens during the 30-day period.
Response: In response to these comments, the final rule provides a
30-day grace period for H-2A workers who are in the United States based
on an approved petition that is later revoked because of DOL's
revocation of the temporary labor certification. New 8 CFR
214.2(h)(5)(xii). During this 30-day period, such workers will be in an
authorized period of stay. They may choose to find new employment and
apply for an extension of stay or depart the United States. As
discussed above, however, at this time, DHS does not believe that it
may require employers to pay wages for workers who remain in the United
States nor transportation expenses for those who chose to return to
their country of origin.
8. Permitting H-2A Petitions for Nationals of Participating Countries
Comment: Five comments addressed the proposed rule to include a new
provision at 8 CFR 214.2(h)(5)(i)(F) (and complementary provision at 8
CFR 214.2(h)(5)(viii)(D)) precluding DHS from approving an H-2A
petition filed on behalf of one or more aliens from countries
determined by the Secretary of Homeland Security to consistently deny
or unreasonably delay the prompt return of their citizens, subjects,
nationals, or residents who are subject to a final order of removal
from the United States. One commenter supported this proposed change.
Two commenters sought modification to the provision, while another
sought additional time to comment on the provision. A final commenter
disagreed that the proposal would improve the H-2A process generally.
Response: After reviewing all comments, DHS has modified this
proposal in the final rule for the reasons and in the manner as
discussed below.
Instead of publishing a list of countries that consistently deny or
unreasonably delay the prompt return of their citizens, subjects,
nationals or residents who are subject to a final removal order, DHS at
this time will be publishing in a notice in the Federal
[[Page 76903]]
Register a list of countries that the Secretary of Homeland Security
has designated, with the concurrence of the Secretary of State, as
eligible for its nationals to participate in the H-2A temporary worker
program. DHS is making this modification to the rule in consideration
of public comments received recommending DHS rework the proposal in
order to make the process more positive and to encourage countries to
improve cooperation in the repatriation of their nationals.
In designating countries to allow the participation of their
nationals in the H-2A program, DHS, with the concurrence of the
Department of State, will take into account factors including, but not
limited to, the following: (1) The country's cooperation with respect
to the issuance of travel documents for citizens, subjects, nationals,
and residents of that country who are subject to a final order of
removal; (2) the number of final and unexecuted orders of removal
against citizens, subjects, nationals, and residents of that country;
(3) the number of orders of removal executed against citizens,
subjects, nationals, and residents of that country; and (4) such other
factors as may serve the U.S. interest.
Designation of countries on the list of eligible countries will be
valid for one year from publication. The designation shall be without
effect at the end of that one-year period. The Secretary, with the
concurrence of the Secretary of State, expects to publish a new list
prior to the expiration of the previous designation by publication of a
notice in the Federal Register, considering a variety of factors
including, but not limited to the four factors for the designation of a
participating country described above.
Initially, the list will be composed of countries that are
important for the operation of the H-2A program and are cooperative in
the repatriation of their nationals. The countries included on the list
are the countries whose nationals contributed the vast majority of the
total beneficiaries of the H-2A and H-2B programs during the last three
fiscal years.
The Secretary of Homeland Security may allow a national from a
country not on the list to be named as a beneficiary on an H-2A
petition and to participate in the H-2A program based on a
determination that such participation is in the U.S. interest. The
Secretary's determination of such a U.S. interest will take into
account a variety of factors, including but not limited to
consideration of: (1) Evidence from the petitioner demonstrating that a
worker with the required skills is not available from among workers
from a country currently on the list of eligible countries for
participation in the program; (2) evidence that the beneficiary has
been admitted to the United States previously in H-2A status and has
complied with the terms of that status; (3) the potential for abuse,
fraud, or other harm to the integrity of the H-2A visa program through
the potential admission of a beneficiary from a country not currently
on the list of eligible countries for participation in the program; and
(4) such other factors as may serve the U.S. interest. Therefore, DHS
is requiring petitioners for beneficiaries who are nationals of
countries not designated as participating countries to name each
beneficiary. Additionally, petitions for beneficiaries from designated
countries and undesignated countries are to be filed separately. These
changes will permit DHS to more easily adjudicate H-2A petitions
involving nationals of countries not named on the list by permitting
DHS to properly evaluate the factors used to make a determination of
U.S. interest, discussed above, without slowing the adjudication of
petitions for nationals of designated countries.
As discussed in the proposed rule, DHS expects that the provisions
in this rule intended to increase the flexibility of the H-2A visa
program, complemented by the streamlining proposals the Department of
Labor is making in its H-2A rule, will increase the appeal of the H-2A
program to U.S. agricultural employers. See 73 FR 8230, 8234-5 (Feb.
13, 2008). While a more efficient H-2A program is anticipated to reduce
the number of aliens entering the country illegally to seek work, it
also could lead to an increase in the number of H-2A workers that
abscond from their workplace or overstay their immigration status.
Therefore, the success of the program will depend significantly upon
countries accepting the return of their nationals.
Petitions may only be filed and approved on behalf of beneficiaries
who are citizens, subjects, nationals or residents of a country that is
included in the list of participating countries published by notice in
the Federal Register or, in the case of an individual beneficiary, an
alien whose participation in the H-2A program has been determined by
the Secretary of Homeland Security to be in the U.S. interest. See new
8 CFR 214.2(h)(5)(i)(F). Likewise, in order to be admitted as an H-2A,
aliens must be nationals of countries included on the list of
participating countries or, in the case of an individual beneficiary,
an alien whose participation in the H-2A program has been determined by
the Secretary of Homeland Security to be in the U.S. interest. See new
8 CFR 214.2(h)(5)(viii)(D). To ensure program integrity, such
petitioners must state the nationality of all beneficiaries on the
petition, even if there are beneficiaries from more than one country.
See new 8 CFR 214.2(h)(2)(iii).
9. Period of Admission
Comment: Sixteen out of 18 commenters supported the proposal to
revise 8 CFR 214.2(h)(5)(viii)(B) by extending the H-2A admission
period following the expiration of the H-2A petition from 10 to 30
days. These commenters believed that it would make the H-2A program a
more cost efficient program.
Response: Based on the support of these commenters, the final rule
adopts this proposal. New 8 CFR 214.2(h)(5)(viii)(B).
Comment: Several commenters who supported this proposed change
also suggested that employers should be obligated to pay for their
former employees' subsistence costs during the 30-day period, as the
aliens would not be permitted to work during that time.
Response: Because H-2A workers are not required to remain in the
United States during the additional 30-day period, DHS does not think
that employers should be responsible for subsistence costs during that
period. In addition, as discussed above, DHS does not think that it may
impose such costs at this time.
Comment: Two commenters opposed the proposal. One commenter did not
provide a reason for the opposition. The other commenter stated that
this change would create a period of too much downtime where the worker
is not accounted for and does not seem to have any significant
benefits.
Response: DHS disagrees with these concerns. DHS believes that the
benefit of extending the H-2A admission period following the expiration
of the H-2A petition to 30 days would be to provide the H-2A worker
enough time to prepare for departure or apply for an extension of stay
based on a subsequent offer of employment if the worker chooses to do
so. Having a 30-day extension would facilitate the new benefit that the
final rule provides for a worker to continue to be employment
authorized while awaiting for an extension of H-2A status based on a
petition filed by a new employer who is a registered user in good
standing of USCIS' E-Verify program.
10. Interruptions in Accrual Towards 3-Year Maximum Period of Stay
Comment: Nine out of 12 commenters supported the proposed rule
reducing
[[Page 76904]]
the length of time that interrupts an H-2A worker's accrual of time in
H-2A status for purposes of calculating when the worker has reached the
3-year maximum period of stay. They supported this change because it
would allow a worker to engage in a longer employment period, which
would benefit both employers and employees.
Response: DHS agrees that this proposal would benefit both
employers and H-2A workers. Accordingly, the final rule adopts the
proposed revision, reducing the minimum period spent outside the United
States that would be considered interruptive of accrual of time towards
the 3-year limit, where the accumulated stay is 18 months or less, to
45 days. If the accumulated stay is longer than 18 months, the required
interruptive period will be 2 months. See new 8 CFR
214.2(h)(5)(viii)(C).
Comment: One comment suggested that the existing exception for the
H-1B, H-2B, and H-3 commuters under 8 CFR 214.2(h)(13)(v) be extended
to the H-2A classification.
Response: The current regulation at 8 CFR 214.2(h)(13)(v) provides
that the limitations on admission in H-1B, H-2B, and H-3 status do not
apply to H-1B, H-2B, and H-3 individuals (1) who did not reside
continually in the United States and whose employment was seasonal,
intermittent, or for less than 6 months per year, and (2) who reside
abroad and regularly commute to the United States. DHS does not believe
that it is appropriate to extend this provision to H-2A commuters;
therefore, the final rule does not include the suggested revision to 8
CFR 214.2(h)(13)(v). The H-2A classification is unique in that H-2A
employment sites change from season to season. While some employment
sites may be within reasonable commuting distance from the border, it
cannot be anticipated that all of the alien's worksites will also be,
particularly given the variabilities of growing seasons and work hours
inherent in the agricultural industry. What may be reasonable commuting
distance based on an 8-hour day may not be if the alien worker is
required to work longer hours during the height of the growing season.
It is reasonable to assume that most aliens do not have ready
access to transportation to and from their home country and the
particular worksite where they are employed. As such, few H-2A workers
will actually be able to commute from their homes abroad to the United
States on a regular basis. Further, by statute, employers must
guarantee many employee benefits such as housing, meals, tools,
workers' compensation insurance, and return transportation. Section
218(c)(4) of the INA requires employers to provide housing to all H-2A
workers in accordance with specific regulations. 8 U.S.C. 1188(c)(4).
Employer-provided housing must meet the standards set forth under 29
CFR 1910.142 or 20 CFR 654.404-654.417. Since the statute does not
contain any provision to release employers from their responsibility to
provide housing to their employees, DHS does not think it appropriate
to apply the commuter exception to the H-2A classification given the
special nature and variabilities of H-2A agricultural work.
Comment: One commenter objected to this proposal stating that it
would encourage more illegal aliens to come into the country and lead
to illegal aliens who are already in the country to stay longer.
Response: DHS does not believe that reducing the time spent outside
the United States to be interruptive of accrual of time towards the 3-
year limit in H-2A status would encourage more illegal aliens to come
to the U.S. or stay in the U.S. longer. This provision is meant to
cause less disruptive breaks in the H-2A employment, benefiting both H-
2A workers and their employers, and does not apply to those who attempt
to enter the U.S. illegally or to those who are already here illegally.
Comment: One commenter stated that it would like to employ H-2A
workers for 3 consecutive years.
Response: The current regulations provide that an alien worker's
total period of stay in H-2A nonimmigrant status may last up to 3
years. A temporary need by a single employer for H-2A workers in excess
of one year is possible where an H-2A employer satisfies DHS and DOL
that such longer-term need is generated by ``extraordinary
circumstances.'' See 8 CFR 214.2(h)(5)(iv)(A).
DHS believes that the reduction of the time to be spent outside the
United States to be considered interruptive of accrual of time towards
the 3-year limit in H-2A status provided in this final rule would
benefit employers by reducing the amount of time that they are required
to be without the services of needed workers. At the same time, this
will not violate the temporary and seasonal nature of employment
requirements under the H-2A program.
11. Post-H-2A Waiting Period
Comment: Twelve out of 15 commenters supported the proposed rule
suggesting the reduction of the waiting period from 6 months to 3
months for an H-2A worker who has reached the 3-year ceiling on H-2A
nonimmigrant status prior to seeking H-2A nonimmigrant status again (or
any other nonimmigrant status based on agricultural activities). These
commenters supported this proposal, stating that it will enhance the
workability of the H-2A program for employers while not offending the
fundamental temporary nature of employment under the H-2A program.
Response: DHS agrees with the comments in support of this proposal.
Accordingly, the final rule adopts the proposed reduction in waiting
time without change. New 8 CFR 214.2(h)(5)(viii)(C).
Comment: One commenter argued that this provision may lead to the
displacement of U.S. workers and make some desirable year-round
agricultural work unavailable to the domestic workforce. The commenter
suggested that employers, including farm labor contractors, may string
together several short-term job opportunities to offer job stability
for a longer term, which would be desirable for many U.S. farm workers.
Response: DHS disagrees that a reduction in the waiting period will
result in the displacement of U.S. farm workers. In order to protect
U.S. workers, the law requires H-2A employers to obtain a temporary
labor certification certifying that there are insufficient U.S. workers
who are able, willing, qualified, and available to perform agricultural
temporary labor or services, and that the H-2A employment will not
adversely affect the wages and working conditions of similarly employed
U.S. workers. If an employer is able to find U.S. workers by offering
job stability for a longer period, it will not be allowed to or have no
need to utilize the H-2A program. DHS believes that this streamlining
measure will encourage employers who are unable to secure their
workforce among U.S. workers to use the H-2A program instead of hiring
individuals who have no legal immigration status and are unauthorized
to work.
Comment: One commenter objected to this proposal, stating that it
would encourage more illegal aliens to come into the country and lead
illegal aliens who are already in the country to stay longer. Another
commenter objected to the proposal but did not provide a reason.
Response: DHS adopts this proposal because it believes that a
shorter waiting period would better meet the needs of employers in the
time-sensitive agricultural industry. The H-2A program is for
agricultural employers, who experience labor shortage among U.S.
workers, to rely on alien workers to
[[Page 76905]]
perform agricultural labor or services of a temporary or seasonal
nature. DHS does not agree that this provision would increase the
presence of illegal aliens in the United States.
12. Extending Status With a New Employer and Participation in E-Verify
Comment: Two commenters supported the proposal to provide for
employment authorization to H-2A workers awaiting an extension of H-2A
status based on a petition filed by a new employer. Twelve out of 15
comments opposed conditioning employment authorization on the new
employer's participation in the E-Verify program, but supported the
proposal to provide for employment authorization to H-2A workers
awaiting an extension of H-2A status based on a petition filed by a new
employer.
Response: After considering the commenters' objections and
concerns, the final rule adopts this proposal at new 8 CFR
274a.12(b)(21), as discussed below. Note that new 8 CFR 274a.12(b)(21)
does not include a cross reference to 8 CFR 214.6. This cross reference
relates to TN nonimmigrants and was erroneously included in the
proposed rule.
Comment: Many commenters questioned the reliability of the E-Verify
program. Some commenters suggested that E-Verify has high error rates
that disproportionately affect foreign-born U.S. workers.
Response: DHS believes that these concerns are misplaced and
factually inaccurate. The ``Findings of the Web Basic Pilot
Evaluation'' reported that currently 99.5 percent of all work-
authorized employees queried through E-Verify were verified without
receiving a Tentative Non-Confirmation (TNC) or having to take any type
of corrective action.\1\ Over the past year, E-Verify has automated its
registration process, instituted a system change to reduce the
incidence of typographical errors, incorporated a photo screening tool
to combat identity fraud, added Monitoring and Compliance staff to
maintain system integrity, added new databases that are automatically
checked by the system, and established a new process for employees to
call DHS' toll-free number to address citizenship mismatches as an
alternative to visiting the Social Security Administration (SSA). These
changes have been implemented in an effort to establish efficient and
effective verification. A series of enhancements that E-Verify has
implemented reduces mismatch rates among newly naturalized citizens and
newly arriving workers. Under DHS management and in partnership with
SSA, the program is continuously improving its processes to decrease
mismatch rates and ensure that E-Verify is fast, easy to use, and
protects employees' rights.
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\1\ http://www.uscis.gov/files/article/
WebBasicPilotRprtSept2007.pdf.
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Comment: Some commenters stated that some employers have little or
no occasion to use the E-Verify program and probably little facility
with it and argued that the provision is not fair to such employers.
Response: E-Verify is a free and voluntary program. This provision
is not a requirement for employers to obtain H-2 employees, but rather
is a condition for the alien obtaining an extension of status and
employment authorization pending adjudication of a new H-2A petition
filed by another employer. DHS continues to believe that the provision
will provide a valuable incentive for employers to participate in the
E-Verify program, thereby reducing opportunities for aliens without
employment authorization to work in the agricultural sector.
Comment: One comment suggested that, assuming DHS has the authority
to provide for portability without statutory authorization, DHS should
fully use the H-1B portability provisions as the model to allow
portability for the period the petition is pending.
Response: DHS has general authority to grant employment
authorization. See INA section 274A(h), 8 U.S.C. 1324a(h). In an
industry in which an estimated half of the 1.1 million workers in the
United States are illegal aliens, DHS has determined that it is
appropriate to restrict the benefit of portability during petition
pendency to only those employers that have demonstrated good business/
corporate citizenship through enrollment in E-Verify.
Comment: One commenter who objected to the proposal suggested that
the provision to extend employment authorization would act as an
inducement for a worker to breach his work contract and to change
employers prior to fulfillment of the contractual obligations, which
would be a violation of INA section 218(c)(3)(B), 8 U.S.C.
1188(c)(3)(B).
Response: DHS disagrees that this provision would act as such an
inducement. While it is true that this provision would enable an alien
to work for a new employer prior to approval of the new H-2A petition,
the purpose of this provision is to enable agricultural workers to
change worksites and employers as soon as they complete one
agricultural job. Even if this provision acted as an inducement for
some aliens to change employers before completion of the first job
(e.g., to get a higher paying job), DHS believes that the overall
benefit to the agricultural industry, the alien worker, and the U.S.
public in allowing the alien worker to change job locations at the end
of each job assignment without having to wait for the successor
employer's petition to be approved outweighs the possibility of abuse
of this privilege by the alien worker or the new petitioning employer.
Comment: This same commenter also suggested that the proposed
change to 8 CFR 214.2(h)(2)(i)(D) would create the possibility that an
extension for an H-2A employee within the three-year period of stay may
not be granted for employment with the same employer.
Response: DHS disagrees with the commenter's interpretation of the
proposed provision. The cited provision is specifically for change of
employers. The provision for extensions of stay is governed by 8 CFR
214.2(h)(15); the rule does not amend this provision.
Comment: One commenter stated that this proposal conditioning
employment authorization on the new employer's participation in the E-
Verify program seems to be a waste of time because the state workforce
agency (SWA) is required to verify workers' eligibility under the DOL's
rule.
Response: The E-Verify program supplements the employer's
obligation under section 274A(a) of the INA, 8 U.S.C. 1324a(a), to
complete Forms I-9 (Employment Eligibility Verification) at the time of
each new hire. The SWA's responsibility is to verify the employment
authorization of applicants seeking referral under a job order. SWAs
are encouraged, but not required, to enroll in E-Verify. Additionally,
under INA Section 274A(a)(5), employers can rely on the SWA's
verification of employment authorization only where the documentation
complies with all statutory and regulatory requirements, including 8
CFR 274a.6. Incentivizing E-Verify enrollment by agricultural employers
will thus reduce opportunities for unauthorized agricultural workers,
not just in the situations where employers are not able to rely on a
SWA's verification, but in other situations outside the SWA referral
process where workers apply for employment.
13. Miscellaneous Changes to H-2A Program
a. Extensions of Stay Without New Temporary Labor Certifications
Comment: Two comments suggested changes to the proposal that would
allow, in emergent circumstances, an
[[Page 76906]]
application for an extension of stay for an H-2A nonimmigrant worker to
not contain an approved temporary labor certification, under certain
conditions.
Response: The final rule retains the provision as stated in the
proposed rule. New 8 CFR 214.2(h)(5)(x).
Comment: One comment recommended that this provision continue to be
automatically available upon request and that petitioners not be
required to make a case for emergent circumstances.
Response: The proposed rule revised the provision at 8 CFR
214.2(h)(5)(x) to improve its readability, making no substantive
changes to the provision. This provision originally was meant to allow
H-2A employers to obtain a necessary workforce in case of emergencies
over which employers have no control (e.g., changed weather
conditions), for up to two weeks. DHS does not believe that the
provision should be extended beyond situations involving emergent
circumstances. Many agricultural employers stated in their comments to
other proposals that, due to the uncertainty as to when the growing
season would end, they normally use the latest likely ending date when
they apply for a temporary labor certification. Many employers further
indicated that most work is completed before the date on the temporary
labor certification. DHS believes that it is reasonable to provide an
opportunity for an employer to file an H-2A petition without obtaining
a new temporary labor certification only in emergent circumstances.
Comment: The other comment asked DHS to have the parameters of
emergent circumstances include any instance that the employer could not
have reasonably foreseen at the time that the petition was filed.
Response: DHS has determined that it will not include additional
parameters to the provision. To do so would unnecessarily reduce the
flexibility that the provision currently provides.
b. Filing Locations
Comment: Commenters were supportive of the proposed modifications
to the general filing provision at 8 CFR 214.2(h)(2)(i)(A) applicable
to H-1B, H-2A, H-2B, and H-3 classifications by removing specific
reference to filing locations announced in the Federal Register and
providing that the form instructions will contain information regarding
appropriate filing locations for these nonimmigrant visa petitions.
Response: In the absence of negative comments on these revisions,
and to maintain flexibility in the regulations to accommodate changing
case management needs, the final rule adopts these modifications
without change. New 8 CFR 214.2(h)(2)(i)(A). The final rule also makes
conforming amendments to 8 CFR 214.2(h)(2)(i)(B) and 214.2(h)(2)(i)(C),
replacing references to filing locations based on where the petitioner
is located, will perform services, or receive training, or based on an
established agent, with reference to the form instructions. In
addition, revised 8 CFR 214.2(h)(2)(i)(B) replaces the reference to
``Service office,'' referring to the Immigration and Naturalization
Service, with ``USCIS.''
Comment: DHS received one comment with respect to filing locations
specific to logging employers who will need to begin using the H-2A
classification once DOL's final rule making changes to the H-2A
classification takes effect. Currently, such employers use the H-2B
classification. 20 CFR part 655, subpart C. Under the DOL final rule,
they instead would need to use the H-2A classification. The comment
concerned the current filing location for H-2A petitions at USCIS'
California Service Center, as announced in a notice published in the
Federal Register on November 9, 2007. See 72 FR 63621. The comment
requested that logging employers be allowed to continue to file their
petitions at USCIS' Portland, Maine field office, the current filing
location for H-2B petitions for loggers, because the Portland office is
familiar with the unique characteristics and needs of the industry.
Response: At present, DHS has no plan to change its central filing
location for H-2A petitions at the California Service Center. This
central filing location ensures timely processing and consistent
adjudication of H-2A petitions. Once DOL's final rule takes effect and
requires logging employers to use the H-2A classification, and
beginning on the effective date of this rule, logging employers will be
required to file petitions on behalf of their prospective workers in
accordance with the H-2A regulations and form instructions for H-2A
petitions. As DHS monitors the processing of these petitions, if DHS
determines that it is more prudent to change the filing location for
logging employers to the Portland, Maine field office or any other DHS
office, DHS may change the filing location via the form instructions
for the H-2A petition. Note that within 30 days from the effective date
of this rule (and the DOL rule), logging employers will be required to
file change of status petitions for their workers who are present in
the United States in H-2B status to ensure that logging workers will be
classified as H-2A workers.
14. DHS Policy Applicable to H-2A Sheepherders
Comment: Ten out of 12 commenters objected to the proposal to
impose on H-2A sheepherders the same departure requirement applicable
to all H-2A workers.
Response: After carefully considering the commenters' objections,
DHS has determined that it will change its policy regarding H-2A
sheepherders as proposed for the reasons discussed below.
Comment: Many commenters who objected to this proposal suggested
that the existing policy was developed based on the understanding that
tending and caring for sheep over extensive expanses of open range for
long periods of time is a skilled and exacting occupation that requires
considerable training and experience.
Response: Although DHS recognizes the special nature of this unique
type of agricultural work, it does not change the nonimmigrant nature
of the H-2A classification. See INA section 101(a)(15)(H)(ii)(a), 8
U.S.C. 1101(a)(15)(H)(ii)(a). The statute provides that an H-2A worker
is a nonimmigrant who has a residence in a foreign country that he has
no intention of abandoning and who is coming temporarily to the United
States to perform agricultural labor or services. Without a departure
from the United States after reaching the 3-year maximum period of
stay, an H-2A worker cannot be considered a nonimmigrant, and his or
her stay cannot be considered temporary. All other H-2A workers must
depart the United States after reaching the 3-year maximum period of
stay, regardless of the employer's need or the degree of skill or
experience required of those workers; the same rule should apply to H-
2A sheepherders.
Comment: A few commenters also argued that the history of the sheep
industry shows that its existing practice is in keeping with
Congressional intent.
Response: DHS is aware that foreign workers skilled in sheepherding
were admitted during the early 1950s for permanent employment under
special laws enacted by Congress. However, Congress permitted the
special laws to expire after the issuance of ``Spanish Sheepherders,
Report of Subcommittee No. 1 of the Committee on the Judiciary, House
of Representatives,'' a report by the House Judiciary Committee on
February 14, 1957, which undertook an investigation during 1955 and
1956 to examine allegations that a number of
[[Page 76907]]
foreign sheepherders admitted under the special laws were leaving
sheepherding shortly after arrival in the U.S. and were employed in
other industries.\2\ The report by the House Judiciary Committee
substantiated many of these allegations. In the report, the Committee
recommended ``that the practice of admitting alien sheepherders under
special legislation should be discontinued and that the problem of
supplying legitimate needs of the American sheep-raising and wool-
growing industry, should be met administratively under existing general
law, specifically under section 101(a)(15)(H)(ii), of the Immigration
and Nationality Act.'' The report also states the following:
---------------------------------------------------------------------------
\2\ http://www.foreignlaborcert.doleta.gov/fm/fm_24-01.htm.
[I]t is further believed that the employment in the sheep-
raising and woolgrowing industry is not different in nature from the
employment of foreign skilled workers in other branches of
agriculture and industry. It is not believed that the sheepherders
should benefit from a special preferential and privileged treatment
and that they should be admitted as immigrants entering this country
for permanent residence. Inquiries and studies have conclusively
shown that the legitimate interest of American employers will be
better served if workers for the sheep-raising and woolgrowing
industry were admitted temporarily for appropriate periods of time,
and that at the conclusion of such periods they were required to
return to their country of origin and to their families, while other
workers--from domestic labor sources, if available--or other foreign
workers similarly skilled be given opportunity to accept temporary
---------------------------------------------------------------------------
employment.
It was the Committee's opinion that no additional special
legislation should be enacted to admit foreign sheepherders and the
importation of foreign sheepherders should be governed by the H-2
temporary worker provision. DHS acknowledges that the aforementioned
legislative history predates the policy established by the Immigration
and Naturalization Service (INS) and now DHS to refrain from applying
the three-year maximum period of stay to H-2A aliens who work as
sheepherders. However, DHS has concluded that this policy is
inconsistent with the temporary nature required by the statutory
provisions governing H-2A program.
Comment: One commenter asked why such special procedures are
available only for sheepherders. Another commenter suggested that DHS
should adapt the special procedures for sheepherders to all occupations
engaged in the range production of other livestock such as cattle and
horses.
Response: It is believed that the policy regarding sheepherders was
grandfathered from a series of bills enacted by Congress in the early
1950s to provide relief for the sheep-raising industry by making
available special nonquota immigrant visas to skilled alien
sheepherders. DHS disagrees that the special procedures should be
extended to all occupations engaged in the range production of other
livestock. DHS has determined that all H-2A occupations should be
subject to the same statutory standard and that the special procedures
should be curtailed rather than extended to other H-2A occupations.
With the effective date of this final rule, DHS will begin to enforce
on H-2A sheepherders the same departure requirement applicable to all
other H-2A workers. However, DHS will not revoke any currently valid H-
2A petitions that have been approved for sheepherders.
Comment: One commenter recommended that the time period required
outside the country between periods of stay be reduced to two weeks for
sheepherders.
Response: For the reasons stated above, DHS believes that the same
statutory and regulatory standards for all other H-2A occupations
should be applied to sheepherders.
15. Temporary Worker Visa Exit Program
On August 10, 2007, the Administration announced that it would
establish a new land-border exit system for guest workers, starting on
a pilot basis. The proposed rule included an exit system pilot program
applicable to H-2A nonimmigrants. Under the proposed program, an alien
admitted on an H-2A visa at a port of entry participating in the
program must also depart through a port of entry participating in the
program and present designated biographic and/or biometric information
upon departure. Details of the program, such as designated ports of
entry, would be announced in a notice published in the Federal
Register.
Comments: A few comments generally supported the proposal or
encouraged more strict measures to ensure foreign workers' departure
within their authorized periods of stay. However, many commenters
criticized this proposal for singling out the H-2A population and
unfairly seeking to punish them by imposing an undue burden on them.
They suggested that workers should be permitted to use all ports to
enter the United States and should not be required to depart through
the same ports of entry through which they entered because the original
port of entry through which they entered may not be the most convenient
if workers transfer to another employer. Some commenters pointed out
that it would be difficult to effectively educate H-2A workers about
the required method for exit, which will likely cause them to violate
the requirement inadvertently. Many commenters expressed concerns about
the unknown factors of the program such as the number and location of
ports through which a worker can enter and return, timeliness of the
process, and overall convenience or inconvenience for a worker. Others
suggested that DHS should provide sufficient time and opportunities to
answer stakeholders' concerns or questions.
Response: DHS has determined that it will adopt, with due
consideration of commenters' concerns, the Temporary Worker Visa Exit
Program Pilot for H-2A workers in this final rule. See new 8 CFR 215.9.
DHS will inform H-2A workers of their obligations through an
educational effort among the workers, foreign governments, agricultural
industry, association leaders, and U.S. employers. Before
implementation of the program, DHS will implement a comprehensive
communications program that engages stakeholders and reaches travelers.
This communications program may include giving walk-away materials to
H-2A workers when they enter the country and utilizing outreach methods
such as creating customer-focused products and proactive/reactive media
relations program.
Under the H-2A land exit pilot program, DHS will explore ways that
participating workers can register their final departure from the
United States at select ports of entry. Only those workers who enter
through these designated ports will be required to register their final
departure for purposes of this pilot.
III. Rulemaking Requirements
A. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. 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.
[[Page 76908]]
B. Executive Order 12866
This rule has been designated as significant under Executive Order
12866. Thus, under section 6(a)(3)(C) of the Executive Order, DHS is
required to prepare an assessment of the benefits and costs anticipated
to occur as a result of this regulatory action and provide the
assessment to the Executive Office of the President, Office of
Management and Budget, Office of Information and Regulatory Affairs.
1. Public Comments on the Estimated Costs and Benefits of the Proposed
Rule
DHS invited the public to comment on the extent of any potential
economic impact of this rule on small entities, the scope of these
costs, or more accurate means for defining these costs. As a result,
DHS received one comment directly related to the regulatory cost
benefit analysis performed for the proposed rule which indicated that
woolgrowers would have to hire double the number of employees as they
currently do and that expenses would increase by at least 25 to 50
percent for each sheepherder employer. The comment provided no
supporting data or calculations to explain exactly how this result
would occur, and USCIS was unable to determine how the outcome of a
requirement for an employee to go home for 3 months every 3 years would
result in a doubling of the number of annual employees. Therefore, no
changes were made as a result of the comment.
2. Summary of Final Rule Impacts
In summary, this rule makes several changes to the H-2A visa
program that DHS believes are necessary to encourage and facilitate the
lawful employment of foreign temporary and seasonal agricultural
workers. A complete analysis has been performed in accordance with the
Executive Order and is available for review in the rulemaking docket
for this rule at http://www.regulations.gov. The results of the cost
benefit analysis are summarized as follows:
i. Government Costs
The exit pilot program provided for in this rule will cost the
Federal Government at least $2 million in labor costs per year to
implement.
ii. Transferred Costs
A total cost of between $16.5 million and $55 million will be
imposed on all H-2A petitioning firms for all H-2A workers each year as
a result of this rule banning placement fee payments by employees.
Those costs may range from an average of around $1,700 to almost $6,000
per employer, based on the average number of H-2A workers requested per
employer petition. The total annual costs of the time for H-2A
employees to comply with the exit requirements of this rule are
estimated to be around $184,332, based on the opportunity cost of the
time lost to the employer while registering.
The annual information collection costs imposed by the employer
notification requirements in this rule are estimated to be $13,713.
The volume of applications is expected to increase from an average
of 6,300 per year to around 9,900 per year. The burden of compliance
both in time and fees per application will not increase above that
currently imposed as a result of this rule.
iii. Benefits
This rule will benefit applicants by:
Reducing delays caused by Interagency Border Inspection
System (IBIS) checks holding up the petition application process.
Reducing disruption of the life and affairs of H-2A
workers in the United States.
Protecting laborers' rights by precluding payment of some
fees by the alien.
Prevent the filing of requests for more workers than
needed, visa selling, coercion of alien workers and their family
members, or other practices that exploit workers and stigmatize the H-
2A program.
Encouraging employers who currently hire seasonal
agricultural workers who are not properly authorized to work in the
United States to replace those workers with legal workers.
Minimizing immigration fraud and human trafficking.
C. Executive Order 13132
This 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.
D. Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
section 3(a) and section 3(b) to determine whether they are met or it
is unreasonable to meet one or more of them. DHS has completed the
required review and determined that, to the extent permitted by law,
this final rule meets the relevant standards of Executive Order 12988.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121), requires Federal agencies to conduct a
regulatory flexibility analysis which describes the impact of a rule on
small entities whenever an agency is publishing a notice of proposed
rulemaking. In accordance with the RFA, DHS certifies that this rule
will not have a significant economic impact on a substantial number of
small entities.
1. Number of Regulated Entities
The H-2A program is used mainly by farms engaged in the production
of livestock, livestock products, field crops, row crops, tree crops,
and various other enterprises. The affected industries do not include
support activities for agriculture. Therefore, in accordance with the
RFA, USCIS has identified the industry affected by this rule as
described in the North American Industry Classification System (NAICS)
as encompassing NAICS subsectors 111,
[[Page 76909]]
Crop Production, and 112, Animal Production.\3\
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\3\ U.S. Small Business Administration, Table of Small Business
Size Standards, http://www.sba.gov/idc/groups/public/documents/sba_
homepage/serv_sstd_tablepdf.pdf.
---------------------------------------------------------------------------
In fiscal year 2007, USCIS received 6,212 Form I-129 petitions for
H-2A employees, approved petitions for 78,089 H-2A workers, and 71,000
new workers were hired. In fiscal year 2006, USCIS received 5,667 Form
I-129 petitions and approved 5,448 of them for 56,183 workers. Also, in
fiscal year 2006, 6,717 employers requested certification from the
Department of Labor (DOL) for 64,146 H-2A workers, and for those
workers, the Department of State (DOS) issued 37,149 H-2A visas. In
fiscal year 2005, USCIS approved Form I-129 petitions for 49,229
workers, 6,725 employers requested certification from DOL for 50,721
employees, and 31,892 visas were issued by DOS. Thus, in recent years,
USCIS has received approximately 6,300 petitions per year for an
average of 70,000 total H-2A workers per year. This rule is projected
to result in an approximately 40,000 additional H-2A workers and 3,600
new Form I-129 petitions per year, for a total of 9,900 petitions for a
total of 110,000 workers. In 2006, there were 2,089,790 farms in the
United States and about 752,000 workers employed in agricultural jobs.
Thus, approximately 0.47 percent of all farmers are expected to use the
H-2A program and 14.6 percent of all farm workers will be aliens
employed under the H-2A program.
2. Size Categories of Affected Entities
The U.S. Small Business Administration (SBA) Small Business Size
Regulations at 13 CFR part 121 provide that farms with average annual
receipts of less than $750,000 qualify as a small business for Federal
Government programs. According to the United States Department of
Agriculture National Agricultural Statistics Service (NASS), 44,348, or
2.1 percent, of the 2,128,982 farms in 2002 in the U.S. had gross cash
receipts of more than $500,000 and 97.9 percent of farms have sales of
less than $500,000.\4\ Based on these numbers, USCIS concludes that the
majority of entities affected by this rule are categorized as small
entities according to the SBA size standards.
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\4\ Economic Class of Farms by Market Value of Agricultural
Products Sold and Government Payments: 2002 http://
www.nass.usda.gov/census/census02/volume1/us/st99_1_003_003.pdf.
---------------------------------------------------------------------------
The average of 11 foreign workers per year would require an
expenditure of about $141,000 in annual labor expenses just for the
farm's foreign workers, not including benefits. In the 2002 Census of
Agriculture, 50,311 farms, or only 2.4 percent of all ``farms''
reported having any hired employees at all, and only 31,210 farms, or
1.5 percent of all farms, reported hired labor expenses in excess of
$100,000 per year. Also, the 9,900 annual petitions that DHS projects
it will receive after this rule takes effect represent only one-half of
one percent of the 2,128,982 farms in 2002, and the 110,000 annual H-2A
nonimmigrant workers account for only 14.6 percent of the 824,030 total
hired farm workers reported in the 2002 Agricultural Census. Further,
the 2002 Census reported that 53.3 percent of all farms reported a net
loss, and only 329,490 farms reported annual net income of more than
$25,000.\5\ Taken together, these data indicate that for the farms that
use the H-2A program to be viable, they are likely to be on the upper
bounds of the small business size standard of $750,000 in gross cash
receipts.
---------------------------------------------------------------------------
\5\ Economic Class of Farms by Market Value of Agricultural
Products Sold and Government Payments: 2002 http://
www.nass.usda.gov/census/census02/volume1/us/st99_1_003_003.pdf.
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3. Other Firms That May Be Affected by This Change
A number of firms with headquarters or a significant presence in
the United States recruit employees in the employees' home countries to
come to the United States for temporary employment. Also, many farms
hire an agent in the U.S. to help them locate workers and complete
applications and petitions. Some agents collect an initial retainer
from an employer and then charge additional fees based on the number of
workers, the application fees, the advertising costs required, and
other expenses. The total charges an employer pays the agent per H-2A
employee ranges from around $500 to $4,000, including travel expenses
and all application and petition fees. The actual cost depends on the
home country, the skills needed for the position, and the general
complexity of the worker's and employer's respective situations. This
rule will not affect the ability of the recruiter or agent to collect a
fee from the employer. This rule does not affect the fee agents may
charge per employee to process the employer's DOL, DOS, and DHS
certification, application, and petition. This rule would only affect
recruiting firms to the extent that it would render the employee
ineligible for H-2A employment by collecting a fee, as soon as the
potential employer becomes aware that the recruiter or agent has
charged the employee a fee.
4. Significance of Impact
DHS has determined that this rule will require affected employers
to pay between $150 and $500 per employee because recruiter fees that
are now being paid by employees will be shifted by recruiters from
employees to employers. This rule will also add $13,713 in information
collection costs for absconder reporting for an average cost per
employee of $0.13. Based on an average of 11 employees hired by each H-
2A petitioner, average costs added by this rule will be between $1,651
and $5,501 per affected entity. For the purpose of determining the
significance of the impacts of this rule, this analysis uses the costs
at the high end of the range of possible impacts, or $5,501 per
employer, in order that any errors in determining the impacts on small
entities be on the side of an over-estimation. Again, most of the
affected entities are classified as small.
Guidelines suggested by the SBA Office of Advocacy provide that, to
illustrate the impact could be significant, the cost of the proposed
regulation may exceed 1 percent of the gross revenues of the entities
in a particular sector or 5 percent of the labor costs of the entities
in the sector.
The average duration of H-2A employment based on the difference
between employment start and end dates for workers granted H-2A status
in fiscal years 2007 and 2008 was 236 days. Thus, a new H-2A employee
in 2008 worked an average of 33.7 weeks. Assuming that the typical
employee worked an 8 hour workday and took two days per week off from
work, the employee would have worked 169 days and accrued 1,352 hours.
Using the U.S. Department of Labor hourly wage rate for the H-2A worker
of $9.49, plus a multiplier of 1.4 to account for fringe benefits, DHS
calculated the average hourly wage at approximately $13.29.\6\
Multiplying the hourly compensation costs by the hours worked provides
an average compensation cost for an H-2A employee for the period he or
she is in the United States of about $17,968. If the employer is
required to pay a recruiter or reimburse the employee $500 for a
recruiting fee, and if that employee absconds requiring the employer to
file a report, the added cost of $501 is only 2.78 percent of the
$17,968 annual salary for only one H-2A worker. Since the cost increase
per H-2A employee is less than 5 percent of
[[Page 76910]]
the costs associated with hiring only an H-2A worker, it would not be
possible for the average cost increase imposed by this rule to exceed 5
percent of the average labor costs of the sector, because, among other
reasons, H-2A workers are not expected to make up the entire workforce
of all petitioners.
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\6\ Available at: http://www.dol.gov/compliance/topics/wages-
foreign-workers.htm.
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Also, as stated above, guidelines provided by the SBA Office of
Advocacy suggest that an added cost of more than one percent of the
gross revenues of the affected entities in a particular sector may be a
significant impact. USCIS believes that it is unlikely that an employer
will incur costs of $5,501 due to this rulemaking, as it is the high
end of the range of possible costs. Again, if each firm affected by
this rule hires the average of 11 workers and all 11 are recruited by a
firm that charges or causes the employer to reimburse all 11 employees
$500, the additional cost of this rule could reach as high as $5,500
per employer.
The actual revenue of the typical H-2A employer is unknown.
However, according to the SBA table of size standards in the Small
Business Size Regulations (13 CFR part 121), the annual gross revenue
threshold for farms is $750,000. USCIS believes that the farms that use
the H-2A program are likely to be on the upper bounds of the small
business size standard of $750,000 in gross cash receipts. If an
employer hires 11 employees and incurs recruiting costs of $500 for
every one of them, the $5,500 added cost represents only 0.73 percent
of $750,000. To further illustrate, for $5,500 to exceed one percent of
annual revenues, sales would have to be $550,000 per year or less.
While 97.9 percent of all farms have annual sales of less than
$500,000, only 36 percent of all farms hire any employees. USCIS
believes that farms below annual sales of $500,000 would be very
unlikely to hire 11 temporary seasonal employees and incur the $5,500
in added costs. Therefore, USCIS believes that the costs of this
rulemaking to small entities will not exceed one percent of annual
revenues.
Therefore, using both average annual labor costs and the percentage
of the affected entities' annual revenue stream as guidelines, USCIS
concludes that this rule will not have a significant economic impact on
a substantial number of small entities.
5. Impact on U.S.-Based Recruiting Firms
As outlined above, recruiting firms' activities may be affected
tangentially by this rule's provisions. Nonetheless, the effect of the
fee prohibition on recruiting companies, staffing firms, or employment
agents is not a new compliance requirement on regulated entities.
Establishment of a non-immigrant temporary worker program was intended
to alleviate seasonal labor shortages. The formation of firms that
recruit workers in foreign countries is an unintended consequence of
these programs since those firms are not the intended recipients of the
benefits that are supposed to inure to participants in those programs.
In any event, DHS does not believe the prohibition on charging aliens
for H-2A job referrals will cause a significant economic impact on the
affected placement, recruiting, or staffing firms because they may, and
are expected to, transfer those costs to the employers, as analyzed
above.
6. Certification
For these reasons, DHS certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
F. 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 one 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.
G. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109
Stat. 163 (1995) (PRA), all Departments are required to submit to the
Office of Management and Budget (OMB), for review and approval, any
reporting or record-keeping requirements inherent in a rule. It is
estimated that this rule will require employers to file 3,600 more
petitions using Form I-129 (OMB Control No. 1615-0009) for H-2A
workers. In addition, this rule will require revisions to the Form I-
129 (H Classification Supplement to the Form I-129).
This is a final rule and the revision to this information
collection was not previously submitted and approved by OMB. USCIS is
now requesting comments under the emergency review and clearance
procedures of the PRA on this revision no later than February 17, 2009.
When submitting comments on the information collection, your comments
should address one or more of the following four points:
1. Evaluate whether the collection of information is necessary for
the proper performance of the agency, including whether the information
will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to
be collected; and
4. Minimize the burden of the collection of the information on
those who are to respond, including through the use of any and all
appropriate automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
Overview of Information Collection for Form I-129.
a. Type of information collection: Revision of currently approved
collection.
b. Title of Form/Collection: Petition for Nonimmigrant Worker.
c. Agency form number, if any, and the applicable component of the
Department of Homeland Security sponsoring the collection: Form I-129
(H Classification Supplement to the Form I-129), and U.S. Citizenship
and Immigration Services.
d. Affected public who will be asked or required to respond, as
well as a brief abstract: Individuals or Households. This form is used
by an employer to petition for aliens to come to the U.S. temporarily
to perform services, labor, and training or to request extensions of
stay or changes in nonimmigrant status for nonimmigrant workers.
e. An estimate of the total number of respondents and the amount of
time estimated for an average respondent to respond: 368,548
respondents at 2.75 hours per response.
f. An estimate of the total of public burden (in hours) associated
with the collection: Approximately 1,013,507 burden hours.
All comments and suggestions or questions regarding additional
information should be directed to the Department of Homeland Security,
U.S. Citizenship and Immigration Services, Regulatory Management
Division, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC
20529, Attention: Chief, 202-272-8377.
In addition, this rule will allow employers of H-2A employees to
employ H-2A workers for up to 120 days while they are awaiting an
extension of status based on a new employer if the employer registers
for E-Verify. It is estimated that 9,801 more firms will have to enroll
in E-Verify so they may hire an employee under the
[[Page 76911]]
120-day extended authorization. Accordingly, USCIS will submit an OMB
correction worksheet (OMB 83-C) to OMB increasing the number of
respondents, burden hours and annual costs.
List of Subjects
8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
programs, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students, Victims.
8 CFR Part 215
Administrative practice and procedure, Aliens.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
0
Accordingly, chapter I of title 8 of the Code of Federal Regulations is
amended as follows:
PART 214--NONIMMIGRANT CLASSES
0
1. The authority citation for part 214 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185, 1186a,
1187, 1221, 1253, 1281, 1282, 1301-1305 and 1372; section 643, Pub.
L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-
1480; section 141 of the Compacts of Free Association with the
Federated States of Micronesia and the Republic of the Marshall
Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and
1931 note, respectively; 8 CFR part 2.
0
2. Section 214.2 is amended by:
0
a. Revising paragraphs (h)(2)(i)(A) through (D);
0
b. Revising paragraph (h)(2)(iii);
0
c. Revising paragraphs (h)(5)(i)(A) through (C);
0
d. Adding a new paragraph (h)(5)(i)(F);
0
e. Removing last sentence from (h)(5)(ii);
0
f. Revising paragraph (h)(5)(v)(B);
0
g. Revising paragraph (h)(5)(v)(C);
0
h. Revising paragraph (h)(5)(vi);
0
i. Revising paragraphs (h)(5)(viii)(A) through (C);
0
j. Revising paragraph (h)(5)(ix);
0
k. Revising paragraph (h)(5)(x);
0
l. Adding new paragraphs (h)(5)(xi) and (xii);
0
m. Adding a new sentence to the end of paragraph (h)(11)(i)(A); and by
0
n. Revising paragraph (h)(11)(ii).
The revisions and additions read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(2) * * *
(i) * * *
(A) General. A United States employer seeking to classify an alien
as an H-1B, H-2A, H-2B, or H-3 temporary employee must file a petition
on Form I-129, Petition for Nonimmigrant Worker, as provided in the
form instructions.
(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 USCIS as
provided in the form instructions. The address that the petitioner
specifies as its location on the Form I-129 shall be where the
petitioner is located for purposes of this paragraph.
(C) Services or training for more than one employer. If the
beneficiary will perform nonagricultural services for, or receive
training from, more than one employer, each employer must file a
separate petition with USCIS as provided in the form instructions.
(D) Change of employers. If the alien is in the United States and
seeks to change employers, the prospective new employer must file a
petition on Form I-129 requesting classification and an 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. Except as provided by
8 CFR 274a.12(b)(21) or section 214(n) of the Act, 8 U.S.C. 1184(n),
the alien is not authorized to begin the employment with the new
petitioner until the petition is approved. An H-1C nonimmigrant alien
may not change employers.
* * * * *
(iii) Naming beneficiaries. H-1B, H-1C, and H-3 petitions must
include the name of each beneficiary. All H-2A and H-2B petitions must
include the name of each beneficiary who is currently in the United
States, but not the name of those beneficiaries who are not currently
in the United States. However, a petitioner filing an H-2B petition on
behalf of workers who are not present in the United States that is
supported by a temporary labor certification requiring education,
training, experience, or special requirements of the beneficiary, must
name all the requested workers in the petition. Unnamed beneficiaries
must be shown on the petition by total number. If all of the
beneficiaries covered by an H-2A or H-2B temporary labor certification
have not been identified at the time a petition is filed, multiple
petitions for subsequent beneficiaries may be filed at different times
but must include a copy of the same temporary labor certification. Each
petition must reference all previously filed petitions for that
temporary labor certification. All H-2A petitions on behalf of workers
who are not from a country that has been designated as a participating
country in accordance with paragraph (h)(5)(i)(F)(1) of this section
must individually name all the workers in the petition who fall within
this category. All H-2A petitions must state the nationality of all
beneficiaries, whether or not named, even if there are beneficiaries
from more than one country. H-2A petitions for workers from designated
participating countries and non-designated countries should be filed
separately.
* * * * *
(5) * * *
(i) * * *
(A) General. An H-2A petition must be filed on Form I-129 with a
single valid temporary agricultural labor certification. The petition
may be filed by either the employer listed on the temporary labor
certification, the employer's agent, or the association of United
States agricultural producers named as a joint employer on the
temporary labor certification.
(B) Multiple beneficiaries. The total number of beneficiaries of a
petition or series of petitions based on the same temporary labor
certification may not exceed the number of workers indicated on that
document. A single petition can include more than one beneficiary if
the total number does not exceed the number of positions indicated on
the relating temporary labor certification.
(C) [Reserved]
* * * * *
(F) Eligible Countries. (1)(i) H-2A petitions may only be approved
for nationals of countries that the Secretary of Homeland Security has
designated as participating countries, with the concurrence of the
Secretary of State, in a notice published in the Federal Register,
taking into account factors, including but not limited to:
(A) The country's cooperation with respect to issuance of travel
documents for citizens, subjects, nationals and residents of that
country who are subject to a final order of removal;
(B) The number of final and unexecuted orders of removal against
[[Page 76912]]
citizens, subjects, nationals and residents of that country;
(C) The number of orders of removal executed against citizens,
subjects, nationals and residents of that country; and
(D) Such other factors as may serve the U.S. interest.
(ii) A national from a country not on the list described in
paragraph (h)(5)(i)(F)(1)(i) of this section may be a beneficiary of an
approved H-2A petition upon the request of a petitioner or potential H-
2A petitioner, if the Secretary of Homeland Security, in his sole and
unreviewable discretion, determines that it is in the U.S. interest for
that alien to be a beneficiary of such petition. Determination of such
a U.S. interest will take into account factors, including but not
limited to:
(A) Evidence from the petitioner demonstrating that a worker with
the required skills is not available either from among U.S. workers or
from among foreign workers from a country currently on the list
described in paragraph (h)(5)(i)(F)(1)(i) of this section;
(B) Evidence that the beneficiary has been admitted to the United
States previously in H-2A status;
(C) The potential for abuse, fraud, or other harm to the integrity
of the H-2A visa program through the potential admission of a
beneficiary from a country not currently on the list; and
(D) Such other factors as may serve the U.S. interest.
(2) Once published, any designation of participating countries
pursuant to paragraph (h)(5)(i)(F)(1)(i) of this section shall be
effective for one year after the date of publication in the Federal
Register and shall be without effect at the end of that one-year
period.
* * * * *
(v) * * *
(B) Evidence of employment/job training. For petitions with named
beneficiaries, a petition must be filed with evidence that the
beneficiary met the certification's minimum employment and job training
requirements, if any are prescribed, as of the date of the filing of
the labor certification application. For petitions with unnamed
beneficiaries, such evidence must be submitted at the time of a visa
application or, if a visa is not required, at the time the applicant
seeks admission to the United States. Evidence must be in the form of
the past employer or employers' detailed statement(s) 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 persons who worked with the
beneficiary that demonstrate the claimed employment or job training.
(C) Evidence of education and other training. For petitions with
named beneficiaries, a petition must be filed with evidence that the
beneficiary met all of the certification's post-secondary education and
other formal training requirements, if any are prescribed in the labor
certification application as of date of the filing of the labor
certification application. For petitions with unnamed beneficiaries,
such evidence must be submitted at the time of a visa application or,
if a visa is not required, at the time the applicant seeks admission to
the United States. Evidence must be in the form of documents, issued by
the relevant institution(s) or organization(s), that show periods of
attendance, majors and degrees or certificates accorded.
(vi) Petitioner consent and notification requirements--(A) Consent.
In filing an H-2A petition, a petitioner and each employer consents to
allow access to the site by DHS officers where the labor is being
performed for the purpose of determining compliance with H-2A
requirements.
(B) Agreements. The petitioner agrees to the following
requirements:
(1) To notify DHS, within 2 workdays, and beginning on a date and
in a manner specified in a notice published in the Federal Register if:
(i) An H-2A worker fails to report to work within 5 workdays of the
employment start date on the H-2A petition or within 5 workdays of the
start date established by his or her employer, whichever is later;
(ii) The agricultural labor or services for which H-2A workers were
hired is completed more than 30 days earlier than the employment end
date stated on the H-2A petition; or
(iii) The H-2A worker absconds from the worksite or is terminated
prior to the completion of agricultural labor or services for which he
or she was hired.
(2) To retain evidence of such notification and make it available
for inspection by DHS officers for a 1-year period beginning on the
date of the notification. To retain evidence of a different employment
start date if it is changed from that on the petition by the employer
and make it available for inspection by DHS officers for the 1-year
period beginning on the newly-established employment start date.
(3) To pay $10 in liquidated damages for each instance where the
employer cannot demonstrate that it has complied with the notification
requirements, unless, in the case of an untimely notification, the
employer demonstrates with such notification that good cause existed
for the untimely notification, and DHS, in its discretion, waives the
liquidated damages amount.
(C) Process. If DHS has determined that the petitioner has violated
the notification requirements in paragraph (h)(5)(vi)(B)(1) of this
section and has not received the required notification, the petitioner
will be given written notice and 30 days to reply before being given
written notice of the assessment of liquidated damages.
(D) Failure to pay liquidated damages. If liquidated damages are
not paid within 10 days of assessment, an H-2A petition may not be
processed for that petitioner or any joint employer shown on the
petition until such damages are paid.
(E) Abscondment. An H-2A worker has absconded if he or she has not
reported for work for a period of 5 consecutive workdays without the
consent of the employer.
* * * * *
(viii) * * *
(A) Effect of violations of status. An alien may not be accorded H-
2A status who, at any time during the past 5 years, USCIS finds to have
violated, other than through no fault of his or her own (e.g., due to
an employer's illegal or inappropriate conduct), any of the terms or
conditions of admission into the United States as an H-2A nonimmigrant,
including remaining beyond the specific period of authorized stay or
engaging in unauthorized employment.
(B) Period of admission. An alien admissible as an H-2A
nonimmigrant shall be admitted for the period of the approved petition.
Such alien will be admitted for an additional period of up to one week
before the beginning of the approved period for the purpose of travel
to the worksite, and a 30-day period following the expiration of the H-
2A petition for the purpose of departure or to seek an extension based
on a subsequent offer of employment. Unless authorized under 8 CFR
274a.12 or section 214(n) of the Act, the beneficiary may not work
except during the validity period of the petition.
(C) Limits on an individual's stay. Except as provided in paragraph
(h)(5)(viii)(B) of this section, an alien's stay as an H-2A
nonimmigrant is limited by the term of an approved petition. An alien
may remain longer to engage in other qualifying temporary agricultural
employment by obtaining an extension of stay. However, an individual
who has held H-2A status for a total of 3 years may not again be
[[Page 76913]]
granted H-2A status until such time as he or she remains outside the
United States for an uninterrupted period of 3 months. An absence from
the United States can interrupt the accrual of time spent as an H-2A
nonimmigrant against the 3-year limit. If the accumulated stay is 18
months or less, an absence is interruptive if it lasts for at least 45
days. If the accumulated stay is greater than 18 months, an absence is
interruptive if it lasts for at least 2 months. Eligibility under
paragraph (h)(5)(viii)(C) of this section will be determined in
admission, change of status or extension proceedings. An alien found
eligible for a shorter period of H-2A status than that indicated by the
petition due to the application of this paragraph (h)(5)(viii)(C) of
this section shall only be admitted for that abbreviated period.
(ix) Substitution of beneficiaries after admission. An H-2A
petition may be filed to replace H-2A workers whose employment was
terminated earlier than the end date stated on the H-2A petition and
before the completion of work; who fail to report to work within five
days of the employment start date on the H-2A petition or within five
days of the start date established by his or her employer, whichever is
later; or who abscond from the worksite. The petition must be filed
with a copy of the certification document, a copy of the approval
notice covering the workers for which 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 or absconded
worker's name, date and country of birth, termination date, and the
reason for termination, and the date that USCIS was notified that the
alien was terminated or absconded, if applicable. A petition for a
replacement will not be approved where the requirements of paragraph
(h)(5)(vi) of this section have not been met. A petition for
replacements does not constitute the notification required by paragraph
(h)(5)(vi)(B)(1) of this section.
(x) Extensions in emergent circumstances. In emergent
circumstances, as determined by USCIS, a single H-2A petition may be
extended for a period not to exceed 2 weeks without an additional
approved labor certification if filed on behalf of one or more
beneficiaries who will continue to be employed by the same employer
that previously obtained an approved petition on the beneficiary's
behalf, so long as the employee continues to perform the same duties
and will be employed for no longer than 2 weeks after the expiration of
previously-approved H-2A petition. The previously approved H-2A
petition must have been based on an approved temporary labor
certification, which shall be considered to be extended upon the
approval of the extension of H-2A status.
(xi) Treatment of petitions and alien beneficiaries upon a
determination that fees were collected from alien beneficiaries. (A)
Denial or revocation of petition. As a condition to approval of an H-2A
petition, no job placement fee or other compensation (either direct or
indirect) may be collected at any time, including before or after the
filing or approval of the petition, from a beneficiary of an H-2A
petition by a petitioner, agent, facilitator, recruiter, or similar
employment service as a condition of H-2A employment (other than the
lesser of the fair market value or actual costs of transportation and
any government-mandated passport, visa, or inspection fees, to the
extent that the payment of such costs and fees by the beneficiary is
not prohibited by statute or Department of Labor regulations, unless
the employer agent, facilitator, recruiter, or employment service has
agreed with the alien to pay such costs and fees).
(1) If USCIS determines that the petitioner has collected, or
entered into an agreement to collect, such prohibited fee or
compensation, the H-2A petition will be denied or revoked on notice
unless the petitioner demonstrates that, prior to the filing of the
petition, the petitioner has reimbursed the alien in full for such fees
or compensation, or, where such fee or compensation has not yet been
paid by the alien worker, that the agreement has been terminated.
(2) If USCIS determines that the petitioner knew or should have
known at the time of filing the petition that the beneficiary has paid
or agreed to pay any facilitator, recruiter, or similar employment
service such fees or compensation as a condition of obtaining the H-2A
employment, the H-2A petition will be denied or revoked on notice
unless the petitioner demonstrates that, prior to the filing of the
petition, the petitioner or the facilitator, recruiter, or similar
employment service has reimbursed the alien in full for such fees or
compensation or, where such fee or compensation has not yet been paid
by the alien worker, that the agreement has been terminated.
(3) If USCIS determines that the beneficiary paid the petitioner
such fees or compensation as a condition of obtaining the H-2A
employment after the filing of the H-2A petition, the petition will be
denied or revoked on notice.
(4) If USCIS determines that the beneficiary paid or agreed to pay
the agent, facilitator, recruiter, or similar employment service such
fees or compensation as a condition of obtaining the H-2A employment
after the filing of the H-2A petition and with the knowledge of the
petitioner, the petition will be denied or revoked unless the
petitioner demonstrates that the petitioner or facilitator, recruiter,
or similar employment service has reimbursed the beneficiary in full or
where such fee or compensation has not yet been paid by the alien
worker, that the agreement has been terminated, or notifies DHS within
2 workdays of obtaining knowledge in a manner specified in a notice
published in the Federal Register.
(B) Effect of petition revocation. Upon revocation of an employer's
H-2A petition based upon paragraph (h)(5)(xi)(A) of this section, the
alien beneficiary's stay will be authorized and the alien will not
accrue any period of unlawful presence under section 212(a)(9) of the
Act (8 U.S.C. 1182(a)(9)) for a 30-day period following the date of the
revocation for the purpose of departure or extension of stay based upon
a subsequent offer of employment.
(C) Reimbursement as condition to approval of future H-2A
petitions. (1) Filing subsequent H-2A petitions within 1 year of denial
or revocation of previous H-2A petition. A petitioner filing an H-2A
petition within 1 year after the decision denying or revoking on notice
an H-2A petition filed by the same petitioner on the basis of paragraph
(h)(5)(xi)(A) of this section must demonstrate to the satisfaction of
USCIS, as a condition of approval of such petition, that the petitioner
or agent, facilitator, recruiter, or similar employment service has
reimbursed the beneficiary in full or that the petitioner has failed to
locate the beneficiary. If the petitioner demonstrates to the
satisfaction of USCIS that the beneficiary was reimbursed in full, such
condition of approval shall be satisfied with respect to any
subsequently filed H-2A petitions, except as provided in paragraph
(h)(5)(xi)(C)(2). If the petitioner demonstrates to the satisfaction of
USCIS that it has made reasonable efforts to locate the beneficiary
with respect to each H-2A petition filed within 1 year after the
decision denying or revoking the previous H-2A petition on the basis of
paragraph (h)(5)(xi)(A) of this section but has failed to do so, such
condition of approval shall be deemed satisfied with respect to any H-
2A petition filed 1 year or more after the denial or revocation. Such
reasonable efforts shall
[[Page 76914]]
include contacting any of the beneficiary's known addresses.
(2) Effect of subsequent denied or revoked petitions. An H-2A
petition filed by the same petitioner subsequent to a denial under
paragraph (h)(5)(xi)(A) of this section shall be subject to the
condition of approval described in paragraph (h)(5)(xi)(C)(1) of this
section, regardless of prior satisfaction of such condition of approval
with respect to a previously denied or revoked petition.
(xii) Treatment of alien beneficiaries upon revocation of labor
certification. The approval of an employer's H-2A petition is
immediately and automatically revoked if the Department of Labor
revokes the labor certification upon which the petition is based. Upon
revocation of an H-2A petition based upon revocation of labor
certification, the alien beneficiary's stay will be authorized and the
alien will not accrue any period of unlawful presence under section
212(a)(9) of the Act for a 30-day period following the date of the
revocation for the purpose of departure or extension of stay based upon
a subsequent offer of employment.
* * * * *
(11) * * *
(i) * * *
(A) * * * However, H-2A petitioners must send notification to DHS
pursuant to paragraph (h)(5)(vi) of this section.
* * * * *
(ii) Immediate and automatic revocation. The approval of any
petition is immediately and automatically revoked if the petitioner
goes out of business, files a written withdrawal of the petition, or
the Department of Labor revokes the labor certification upon which the
petition is based.
* * * * *
PART 215--CONTROLS OF ALIENS DEPARTING FROM THE UNITED STATES
0
3. The authority citation for part 215 continues to read as follows:
Authority: 8 U.S.C. 1104; 1184; 1185 (pursuant to Executive
Order 13323, published January 2, 2004), 1365a note, 1379, 1731-32.
0
4. Section 215.9 is added to read as follows:
Sec. 215.9 Temporary Worker Visa Exit Program.
An alien admitted on an H-2A visa at a port of entry participating
in the Temporary Worker Visa Exit Program must also depart at the end
of his or her authorized period of stay through a port of entry
participating in the program and present designated biographic and/or
biometric information upon departure. U.S. Customs and Border
Protection will establish a pilot program by publishing a Notice in the
Federal Register designating which H-2A workers must participate in the
Temporary Worker Visa Exit Program, which ports of entry are
participating in the program, which biographical and/or biometric
information would be required, and the format for submission of that
information by the departing designated temporary workers.
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
0
5. The authority citation for part 274a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
0
6. Section 274a.12 is amended by:
0
a. Removing the word ``or'' at the end of paragraph (b)(19);
0
b. Removing the period at the end of paragraph (b)(20), and adding ``;
or'' in its place; and by
0
c. Adding a new paragraph (b)(21).
The addition reads as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(b) * * *
(21) A nonimmigrant alien within the class of aliens described in 8
CFR 214.2(h)(1)(ii)(C) who filed an application for an extension of
stay pursuant to 8 CFR 214.2 during his or her period of admission.
Such alien is authorized to be employed by a new employer that has
filed an H-2A petition naming the alien as a beneficiary and requesting
an extension of stay for the alien for a period not to exceed 120 days
beginning from the ``Received Date'' on Form I-797 (Notice of Action)
acknowledging receipt of the petition requesting an extension of stay,
provided that the employer has enrolled in and is a participant in good
standing in the E-Verify program, as determined by USCIS in its
discretion. Such authorization will be subject to any conditions and
limitations noted on the initial authorization, except as to the
employer and place of employment. However, if the District Director or
Service Center director adjudicates the application prior to the
expiration of this 120-day period and denies the application for
extension of stay, the employment authorization under this paragraph
(b)(21) shall automatically terminate upon 15 days after the date of
the denial decision. The employment authorization shall also terminate
automatically if the employer fails to remain a participant in good
standing in the E-Verify program, as determined by USCIS in its
discretion.
* * * * *
Paul A. Schneider,
Deputy Secretary.
[FR Doc. E8-29888 Filed 12-12-08; 8:45 am]
BILLING CODE 4410-10-P
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