[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

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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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