[Federal Register: December 18, 2008 (Volume 73, Number 244)]
[Notices]
[Page 77047-77049]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de08-77]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
U.S. Customs and Border Protection
U.S. Immigration and Customs Enforcement
[CIS No. 2461-08; DHS Docket No. USCIS-2008-0065]
RIN 1615-ZA75
H-2A Petitioner's Employment-Related or Fee-Related Notification
AGENCY: U.S. Citizenship and Immigration Services, U.S. Customs and
Border Protection, U.S. Immigration and Customs Enforcement, DHS.
ACTION: Notice.
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SUMMARY: This Notice announces the manner in which petitioners must
notify U.S. Citizenship and Immigration Services regarding their
employment of agricultural workers in H-2A nonimmigrant status or job
placement fee information. These procedures are necessary to enable
petitioners to comply with the notification requirements established by
the Department of Homeland Security's regulations governing the H-2A
nonimmigrant classification.
DATES: This Notice is effective January 17, 2009.
FOR FURTHER INFORMATION CONTACT:
USCIS: 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.
USICE: Joe Jeronimo, National Program Manager, U.S. Immigration and
Customs Enforcement, Department of Homeland Security, 500 12th Street,
[[Page 77048]]
SW., Washington, DC 20024, telephone (202) 732-3978.
USCBP: Bruce Ingalls, Chief, Debt Management Branch, U.S. Customs
and Border Protection, Revenue Division, Attn: H-2 Team, Suite 100,
6650 Telecom Drive, Indianapolis, IN 46278, telephone (317) 298-1307.
SUPPLEMENTARY INFORMATION:
I. Background
The H-2A nonimmigrant classification applies to alien workers
seeking to perform agricultural labor or services of a temporary or
seasonal nature in the United States on a temporary basis. Immigration
and Nationality Act (INA) sec. 101(a)(15)(H)(ii)(a), 8 U.S.C.
1101(a)(15)(H)(ii)(a); see 8 CFR 214.1(a)(2) (H-2A classification
designation). Aliens seeking H-2A nonimmigrant status must be
petitioned for by a U.S. employer. However, prior to filing the
petition, the U.S. employer must complete a temporary agricultural
labor certification process with the Department of Labor (DOL) for the
job opening the employer seeks to fill with an H-2A worker. After
receiving a temporary labor certification, the U.S. employer files Form
I-129, ``Petition for Nonimmigrant Worker,'' with the appropriate USCIS
office. See 8 CFR 214.2(h)(5)(i)(A). Once a petition has been granted,
the regulations impose additional responsibilities on such H-2A
petitioners. These responsibilities include notifying DHS of certain
occurrences related to their H-2A workers, as discussed below.
A. Employment-Related Notifications
The regulations require H-2A petitioners to provide notification to
DHS within 2 work days in the following instances:
When an H-2A worker fails to report to work within 5 work
days of the employment start date on the H-2A petition or within 5 work
days of the start date established by the petitioner, whichever is
later;
When the agricultural labor or services for which H-2A
workers were hired is completed more than 30 days early; or
When 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.
8 CFR 214.2(h)(5)(vi)(B). The regulations also require that
petitioners retain evidence of the notification filed with DHS for a
one-year period beginning from the date of the notification. 8 CFR
214.2(h)(5)(vi)(B)(2). Those petitioners that use a different
employment start date than the start date stated on the H-2A petition
must retain evidence of the changed start date and make such evidence
available for inspection by DHS officers for a one-year period
beginning on the newly established employment start date. Id. An H-2A
petitioner that fails to meet these requirements is subject to
liquidated damages in the amount of $10. 8 CFR 214.2(h)(5)(vi)(B)(3).
B. Fee-Related Notifications
The regulations provide petitioners with the opportunity to avoid
denial or revocation (on notice) of their H-2A petition if they notify
DHS regarding information they obtained following the filing of their
H-2A petition concerning the beneficiary's payment or agreement to pay
a fee or compensation in connection to any facilitator, recruiter, or
similar employment service as a condition of obtaining the H-2A
employment. 8 CFR 214.2(h)(5)(xi)(A)(4). The regulations prohibit such
payments and agreements. 8 CFR 214.2(h)(5)(xi)(A). Notification of a
beneficiary's payment or agreement to pay the prohibited fees must be
made within 2 workdays of gaining such knowledge. 8 CFR
214.2(h)(5)(xi)(A)(4).
This Notice specifies the manner in which H-2A petitioners must
file employment-related and fee-related notifications with DHS in order
to comply with the regulations. 8 CFR 214.2(h)(5)(vi)(B) and 8 CFR
214.2(h)(5)(xii)(A)(4).
II. Employment-Related Notifications
A. Filing Notifications
This Notice announces that beginning on January 17, 2009, H-2A
petitioners must provide employment-related notifications to USCIS
within 2 workdays of an event specified in 8 CFR 214.2(h)(5)(vi)(B).
The petitioner must include the following information in the
notification.
(1) The reason for the notification;
(2) The reason for untimely notification and evidence for good
cause, if applicable;
(3) The USCIS receipt number of the approved H-2A petition;
(4) The petitioner's name, address, telephone number, and employer
identification number (EIN);
(5) The employer's name, address, and telephone number, if it is
different from that of the petitioner;
(6) The name of the H-2A worker in question;
(7) The date and place of birth of the H-2A worker in question; and
(8) The last known physical address and telephone number of the H-
2A worker in question.
USCIS acknowledges that where an H-2A petitioner is reporting the
failure of an H-2A worker to report to work within the prescribed time
frame, petitioners may not know the names of H-2A workers who fail to
report to the employment site if the workers are unnamed beneficiaries
of the H-2A petition. In such cases, USCIS requires the petitioner to
supply only the number of workers who failed to report to work within
the prescribed time frame instead of such workers' names, dates of
birth, and places of birth.
USCIS encourages the petitioner to submit notification
electronically by e-mail. However, USCIS realizes that in certain
instances electronic notification may not be possible or feasible for
the H-2A petitioner. Accordingly, the following two methods for
notification are acceptable. Notification by mail must be postmarked
before the end of the 2 workday reporting window.
By e-mail: CSC-X.H-2AAbs@dhs.gov.
By mail: California Service Center, Attn: Div X/BCU ACD, P.O. Box
30050, Laguna Niguel, CA 92607-3004.
B. Failure To Comply With the Requirements
In cases where an H-2A petitioner makes an admission of an untimely
notification (for example, a notification letter admitting that the
notification is being sent after the close of the 2 workdays window),
USCIS will make a determination of liability for liquidated damages.
Untimely notification must be accompanied by evidence of good cause.
Failure to notify timely may be excused in the discretion of USCIS if
it is demonstrated that the delay was due to extraordinary
circumstances beyond the control of the H-2A petitioner, and USCIS
finds the delay commensurate with the circumstances. If the H-2A
petitioner fails to demonstrate good cause for failure to make a timely
notification, USCIS will communicate liability for liquidated damages
to the H-2A petitioner and inform the petitioner that it will receive a
demand letter for payment directly from U.S. Customs and Border
Protection (CBP). H-2A petitioners must not send checks to USCIS when
sending untimely notifications.
In any situation where U.S. Immigration and Customs Enforcement
(ICE) uncovers evidence of liability for H-2A liquidated damages in the
course of its investigatory work, ICE will make a determination of
liability. ICE will provide the petitioner with written notice of non-
compliance as well as the
[[Page 77049]]
petitioner's liability for liquidated damages. If the petitioner wishes
to contest the allegations set forth in the notice of non-compliance,
written notice must be received by ICE within 30 days of receipt of the
notice of non-compliance. 8 CFR 214.2(h)(5)(vi)(C). If the petitioner
fails to contest the finding of non-compliance, or the petitioner's
response fails to raise an issue of material fact, ICE will communicate
liability for liquidated damages to the H-2A petitioner and inform the
petitioner that it will receive a demand letter for payment for
liquidated damages directly from CBP.
CBP will collect all liquidated damage payments. The CBP demand
letter will specify the manner in which payment must be made.
III. Fee-Related Notifications
This Notice announces that on January 17, 2009, H-2A petitioners
may begin filing fee-related notifications to USCIS pursuant to 8 CFR
214.2(h)(5)(xi)(A)(4). The notification must include the following
information:
(1) The USCIS receipt number of the H-2A petition;
(2) The petitioner's name, address, and telephone number;
(3) The employer's name, address, and telephone number, if it is
different from that of the petitioner; and the
(4) Name and address of the facilitator, recruiter, or placement
service to which alien beneficiaries paid or agreed to pay the
prohibited fees.
As previously stated, USCIS encourages the petitioner to submit
notification electronically by e-mail. However, USCIS realizes that in
certain instances, electronic notification may not be possible or
feasible for the H-2A petitioner. Accordingly, the following two
methods for notification are acceptable. Notification by mail must be
postmarked before the end of the 2 workday reporting window.
By e-mail: CSC.H2AFee@dhs.gov.
By mail: California Service Center, P.O. Box 10695, Laguna Niguel,
CA 92607-1095.
IV. Paperwork Reduction Act
This Notice sets forth the procedures for H-2A petitioners to
notify USCIS when:
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 the petitioner, whichever is later;
When the agricultural labor or services for which H-2A
workers were hired is completed more than 30 days early; or
When 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.
H-2A petitioners must retain evidence of any such notification sent to
USCIS, as well as evidence of an employment start date if different
from the start date stated on the H-2A petition, for a one-year period.
This Notice further provides the procedures for H-2A petitioners to
notify USCIS, after an H-2A petition has been filed, within 2 work days
of learning that an H-2A alien worker paid a fee or other compensation
to a facilitator, recruiter, or similar employment service as a
condition of obtaining the H-2A employment.
These notification requirements are considered information
collections covered under the Paperwork Reduction Act (PRA).
Since implementation will begin 30 days from the date of
publication of this notice in the Federal Register, this new
information collection has been submitted and approved by OMB under the
emergency review and clearance procedures covered under the PRA. USCIS
is requesting comments on this new information collection no later than
January 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
a. Type of information collection: New information collection.
b. Title of Form/Collection: H-2A's Petitioners Employment-Related
or Fee-Related Notification
c. Agency form number, if any, and the applicable component of the
Department of Homeland Security sponsoring the collection: No form
number. 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 information
collection is necessary to provide employment related or fee related
notification by an H-2A petitioner.
e. An estimate of the total number of respondents and the amount of
time estimated for an average respondent to respond: 1,000 respondents
at .50 (30 minutes) per response.
f. An estimate of the total of public burden (in hours) associated
with the collection: Approximately 500 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.
Paul A. Schneider,
Deputy Secretary.
[FR Doc. E8-29786 Filed 12-17-08; 8:45 am]
BILLING CODE 9117-97-P
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