[Federal Register Volume 62, Number 249 (Tuesday, December 30, 1997)]
[Proposed Rules]
[Pages 67764-67765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33827]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 214
[INS 1805-96]
RIN 1115-AC72
Tracking Usage of the H-1B and H-2B Nonimmigrant Classifications
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend the Immigration and Naturalization
Service's (Service) regulations by explaining in detail the new method
by which the Service tracks the number of H-1B and H-2B petitions
approved in a fiscal year and by removing incorrect references in the
regulation regarding the tracking mechanism. This rule was written in
response to a number of queries from the public asking how the Service
determines which H-1B and H-2B petitions are included in the count.
This rule will alleviate much of the confusion regarding the Service's
method of counting H-1B and H-2B petitions.
DATES: Written comments must be submitted on or before March 2, 1998.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC
20536. To ensure proper handling, please reference the INS number 1805-
96 in your correspondence. Comments are available for public inspection
at the above address by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT:
John W. Brown, Adjudications Officer, Adjudications Division,
Immigration and Naturalization Service, 425 I Street, NW., Room 3214,
Washington, DC 20536, telephone (202) 514-3240.
SUPPLEMENTARY INFORMATION: The Immigration Act of 1990 (IMMACT), among
other things, imposed a 65,000 annual numerical limitation on the
number of aliens who may be granted H-1B visas or accorded such status
in a fiscal year and a 66,000 annual numerical limitation on the number
of aliens who may be accorded H-2B status. The Service agreed to track
the number of aliens accorded H-1B and H-2B status since the Department
of State, the agency which issues nonimmigrant visa's to aliens, has no
centralized database to track visa issuance. Further, an H-1B or H-2B
visa may not be issued to an alien without the Service first approving
Form I-129, Petition for Nonimmigrant Worker, in the alien's behalf
and, in addition, some H-1B and H-2B nonimmigrant aliens are not
required to obtain a nonimmigrant visa.
The Service published a final rule in the Federal Register on
December 2, 1991, at 56 FR 61111, in which the present tracking system
was implemented. In the preamble to the rule, the Service advised that
the numerical limitations would apply to new H-1B and H-2B petitions
only and that petitions filed for extensions of stay would not be
counted, since the alien beneficiary of the extended petition had
previously been accorded H status. It was also stated in the preamble
to the final rule that the Service would count petitions for concurrent
employment, i.e., where a beneficiary holds two H-1B or H-2B positions
at the same time, and petitions for sequential employment, i.e., where
the beneficiary assumes one H-1B or H-2B position after another in the
same fiscal year, in the cap. As stated in the preamble to the final
rule published in December 1991, the reason for adopting this procedure
was efficiency.
The Service has recently had reason to revisit its procedures for
tracing the usage of H petitions in general, and the H-1B category in
particular. On August 21, 1996, a preliminary report indicated that,
under the tracking system then in place, the Service had approved in
excess of 65,000 H-1B petitions for fiscal year 1996. While attempting
to verify the validity of the preliminary count, the Service made a
number of observations which culminated in the publication of this
proposed rule.
The most significant observation that the Service made with respect
to its current tracking system was that, by counting concurrent
employment and sequential employment, it was actually counting
positions, and not aliens. The Service has reconsidered its prior
procedure and no longer counts either sequential or concurrent
employment in the same fiscal year towards the numerical limitations.
The numerical limitations would now relate solely to individuals
regardless of the number of H-1B or H-2B positions such persons hold.
This proposed rule would amend the regulation at 8 CFR
214.2(h)(8)(ii)(A) to reflect this change. The Service has made
available on a quarterly basis the usage of H-1B/H-2B numbers. The
Service intends to continue this practice.
Approved H-1B and H-2B petitions which are subsequently revoked by
the Service will not be counted in the numerical limitation. The
Service will run a periodic report containing the number of revoked
petitions and adjust the numerical count accordingly. In view of this,
petitioners are encouraged to notify the Service as soon as they learn
that the beneficiary of an H-1B or H-2B petition does not intend to
accept the petitioner's offer of employment.
This rule also proposes to amend the regulation at 8 CFR
214.2(h)(8)(ii)(B) and (D) which makes reference to the ``system which
maintains and assigns numbers,'' since the regulatory language is not
accurate. When this regulation was initially drafted, the Service had
envisioned developing and designing a system which would count each
petition which it approved and assign each petition a number. This
system was never developed. Instead, the Service tracks the number of
H-1B and H-2B petitions which it approves through its Computer-Linked
Application Information Management System (CLAIMS) database. The
terminology contained in the current rule implies that a petition is
assigned a number upon approval. This is inaccurate. Instead, the
Service runs periodic reports which count the number of petitions
approved for the fiscal year without assigning a petition an actual
number. There is no system which keeps a running count of approved H-1B
and H-2B petitions.
This rule also proposes to remove the paragraph at 8 CFR
214.2(h)(8)(ii)(C) which makes reference to assigning numbers to
petitions filed in Guam and the United States Virgin Islands. Since
these petitions are counted in the same fashion as H petitions filed in
the continental United States, the paragraph serves no purpose.
Finally, this rule proposes to amend the regulation at 8 CFR
214.2(h)(8)(ii)(E) and to redesignate it as 8 CFR 214.2(h)(8)(ii)(D).
The regulation currently provides that, in the event that the numerical
limitation is reached in a fiscal year, the Service shall reject any
new petitions which are filed with a notice that numbers are not
available until the next fiscal year. This proposed rule modifies the
regulatory language by enabling the Service to adopt a different
procedure in the event that rejecting petitions is determined not to be
the most appropriate action for the Service to undertake. For example,
in the situation where the numerical limitation is reached near the end
of the fiscal year, it would not seem prudent to reject an H-1B
petition or H-2B petition filed for that fiscal year since this
procedure could create unnecessary work for the Service and an
unnecessary hardship on petitioners in certain situations. The Service
will notify the public through
[[Page 67765]]
the publication of a notice in the Federal Register of any such
procedure should such a situation arise.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that the rule
will not have a significant economic impact on a substantial number of
small entities. This regulation merely explains the system which the
Service currently uses to track the number of H-1B petition approved in
a given fiscal year.
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.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule in 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.
Executive Order 12866
This rule is considered by the Department of Justice, Immigration
and Naturalization Service, to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review. Accordingly, this regulation has been submitted to the Office
of Management and Budget for review.
Executive Order 12612
The regulation proposed herein 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 Executive Order 12612, it is determined that this rule
does not have sufficient Federalism implications to warrant the
preparation of a Federalism Assessment.
Executive Order 12988--Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of E.O. 12988.
List of Subjects in 8 CFR Part 214
Administrative practice and procedure, Aliens, Employment,
Reporting and recordkeeping requirements.
Accordingly, part 214 of chapter I of title 8 of the Code of
Federal Regulation is proposed to be amended as follows:
PART 214--NONIMMIGRANT GLASSES
1. The authority citation for part 214 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,
1281, 1282; 8 CFR part 2.
2. Section 214.2 is amended by revising paragraph (h)(8)(ii) to
read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(8) * * *
(ii) Procedures. (A) Each alien issued a visa or otherwise provided
nonimmigrant status under section 101(a)(15)(H)(i)(b) or (ii)(b) of the
Act shall be counted for purposes of the numerical limit prescribed in
section 214(g)(1) of the Act. Requests for petition extension or an
extension of the alien's stay, concurrent employment, or sequential
employment within the same fiscal year shall not be counted against the
numerical limit. The spouse and children of principal aliens classified
as H-4 nonimmigrant aliens shall not be counted against the numerical
limit.
(B) An alien will be counted against the annual H-1B or H-2B
numerical limit only after an H-1B or H-2B petition has been approved
on his or her behalf. An alien will be counted in the order by which
the H-1B or H-2B petition has been approved on his or her behalf. An
alien on whose behalf an H-1B or H-2B petition has been denied will not
be counted against the annual numerical limit.
(C) When an approved petition is not used because the
beneficiary(ies) does not obtain H-1B or H-2B classification, the
petitioner shall notify the Service Center Director who approved the
petition that the petition was not used as soon as the petitioner
becomes aware of the circumstance. The petition shall be revoked
pursuant to paragraph (h)(11)(ii) of this section.
(D) If the total numbers available in a fiscal year are used, the
Service may reject and return the petition and the accompanying fee
with a notice that numbers are not available for the nonimmigrant
classification until the next fiscal year. The Service, may, in its
discretion, adopt other mechanisms for processing petitions filed after
the numerical limit has been reached in order to prevent unnecessary
hardship to the public. The Service shall provide notice of such new
mechanisms through publication in the Federal Register.
* * * * *
Dated: October 21, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 97-33827 Filed 12-29-97; 8:45 am]
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