[Federal Register Volume 63, Number 234 (Monday, December 7, 1998)]
[Proposed Rules]
[Pages 67431-67434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32396]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 63, No. 234 / Monday, December 7, 1998 / 
Proposed Rules  

[[Page 67431]]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS No. 1946-98; AG Order No. 2194-98]
RIN 1115-AF29


Delegation of the Adjudication of Certain H-2A Petitions to the 
Department of Labor

AGENCY: Immigration and Naturalization Service, Department of Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the Immigration and Naturalization 
Service's (Service) regulations by delegating to the United States 
Department of Labor (DOL) the adjudication of certain petitions for 
aliens coming temporarily to the United States to perform agricultural 
labor or services (H-2A petition). The H-2A petitions affected by this 
action would involve only petitions filed for initial H-2A employment 
where the alien is not physically present in the United States and 
petitions to replace H-2A workers who were terminated before the end of 
their authorized stays with workers from outside the United States. 
This rule would not affect the Service's authority to make 
determinations at the port-of-entry of an alien's admissibility to the 
United States or to adjudicate other petitions. The Service has 
proposed these changes in order to streamline the existing H-2A 
petitioning process for certain foreign agricultural workers, and the 
proposals are intended to make it easier and less burdensome for United 
States employers to file petitions for such workers.

DATES: Written comments must be submitted on or before February 5, 
1999.

ADDRESSES: Please submit the original and two copies of written 
comments to the Policy Directives and Instructions Branch, Immigration 
and Naturalization Service, 425 I Street, N.W., Room 5307, Washington, 
DC 20536. To ensure proper handling, please reference the INS No. 1946-
98 on 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, Programs Division, Immigration 
and Naturalization Service, 425 I Street, N.W., Room 3214, Washington, 
DC 20536, telephone (202) 514-4754.

SUPPLEMENTARY INFORMATION: 

Background

What Is an H-2A Agricultural Worker?

    Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act 
(Act) defines an H-2A worker as an alien ``having a residence in a 
foreign country which he has no intention of abandoning who is coming 
temporarily to the United States to perform agricultural labor or 
services * * * of a temporary or seasonal nature.'' 8 U.S.C. 
1101(a)(15)(H)(ii)(a), 1188(i)(2).

What Is the Current Procedure for Hiring an H-2A Agriculture Worker?

    Section 218 of the Act provides the statutory framework for the H-
2A nonimmigrant program. 8 U.S.C. 1188. The current procedures for 
filing an H-2A petition to hire an alien to perform temporary or 
seasonal agricultural labor or services are described at 8 CFR 
214.2(h)(5). A United States employer that desires to hire an H-2A 
agricultural worker must first obtain a labor certification from the 
DOL. The procedures for obtaining a labor certification are contained 
in the DOL regulations at 20 CFR part 655, subpart B. Briefly, the 
prospective United States employer must establish, among other things, 
that there are not sufficient available United States workers for the 
position and that the employer will pay the foreign worker in 
accordance with the regulations of the DOL and the United States 
Department of Agriculture (USDA). If the United States employer and the 
proposed employment of the H-2A worker meet all of the DOL 
requirements, the DOL will issue a labor certification. If the 
application for a labor certification is denied, an employer may obtain 
review of the denial by an administrative law judge within the DOL. 
After obtaining a labor certification from the DOL, the employer is 
required to file a Form I-129, Petition for nonimmigration Worker, with 
the Service. The Service reviews the Form I-129 and supporting 
documentation and, if approved, forwards notice of the approved 
petition to a consular post or port-of-entry. The foreign workers are 
then identified and either apply for a nonimmigrant visa at a United 
States consular post or for admission to the United States if exempt 
from the nonimmigrant visa requirements. If an H-2A petition is denied 
by the Service, the employer may appeal the denial of the petition to 
the Administrative Appeals Office (AAO). See 8 CFR 103.3, 214.2(h)(12).

Why Is the Service Making These Changes?

    The Administration, including the Department of State (DOS), the 
DOL, the USDA, and the Service, has, for some time, been considering 
possible changes to the H-2A program to help streamline it, improve its 
operation, and address complaints by some users of the program, without 
weakening the program's worker protections. The General Accounting 
Office and the DOL's Office of Inspector General have recently 
completed in-depth reviews of the H-2A program, providing useful 
analysis and findings and making several recommendations for program 
changes, many of which have been accepted by the administering 
agencies. This rulemaking represents an attempt by the Service to 
simplify the petitioning process for United States employers seeking to 
employ foreign agricultural workers. The DOL published corresponding, 
proposed regulations in the Federal Register on October 2, 1998, 63 FR 
53244-53249.
    The Service's current role in the adjudication of H-2A petitions 
generally is limited to reviewing the Form I-129 filed by the United 
States employer to determine if the job offered to the foreign worker 
is temporary and if the United States employer has obtained a labor 
certification from the DOL. Moreover, the labor certification issued by 
the DOL is normally accepted by the Service as evidence that the 
position is temporary and that the United States employer has met all 
of the DOL's requirements with respect to the H-2A classification. 
Although the Service currently is authorized to approve a H-2A petition 
in spite of the DOL's denial of a labor certificate, it can

[[Page 67432]]

do so only if the petitioner overcomes the DOL's finding that qualified 
domestic labor is available. 8 CFR 214.2(h)(5)(ii). The Service, 
however, accords great weight to the DOL's findings and rarely 
overturns them. In addition, most Form I-129 petitions are filed for 
unnamed beneficiaries; the vast majority of United States employers, 
due to the nature of the agricultural industry, identify only the 
number of positions that they want to fill, not the names of the 
specific foreign workers. The foreign workers are identified only after 
the petition is approved by the Service and before visas are issued. 
Thus, as a practical matter, the Service's role in the processing of H-
2A petitions for aliens outside of the United States generally is 
limited to a review of the Form I-129 petition to determine if it is 
accompanied by a labor certificate. Given its minimal role in this 
process, the Service has determined that the interests in streamlining 
the H-2A process outweigh those of retaining jurisdiction over the 
adjudication of H-2A petitions filed on behalf of aliens outside of the 
country.

Explanation of Changes

What Changes Are We Making to the Regulations?

    The control of aliens admitted to the United States as 
nonimmigrants is solely the responsibility of the Attorney General. 8 
U.S.C. 1103(a). Under section 103(a)(6) of the Act, however, the 
Attorney General has the authority ``to confer or impose upon any 
employee of the United States * * * any of the powers, privileges, or 
duties conferred or imposed by this Act or regulations issued 
thereunder upon officers or employees of the Service.'' 8 U.S.C. 
1103(a)(6). Pursuant to this section of the Act, the Attorney General 
proposes to amend the Service's regulations by delegating to the 
Secretary of Labor her authority to adjudicate H-2A petitions where the 
beneficiary is not physically present in the United States.
    This rule proposes to implement this delegation to the Secretary of 
Labor by amending 8 CFR 214.2(h)(5)(i). The rule would further advise 
potential United States employers to refer to the DOL regulations for 
information regarding the filing requirements for petitions for H-2A 
agricultural workers who are not physically present in the United 
States.
    This proposed rule also would amend 8 CFR 214.2(h)(5)(ix) to 
delegate authority to the DOL to adjudicate a petition filed to replace 
an H-2A worker whose employment has been terminated early with a worker 
from outside of the United States. The Service, however, would retain 
its authority to adjudicate petitions where the substitute worker is 
physically present in the United States. The Service would also retain 
authority to adjudicate extensions of stay and petitions filed in 
connection with applications to change an alien's nonimmigrant status 
to H-2A nonimmigrant status.

What Portions of the H-2A Program Are Not Being Changed by This Rule?

    As noted above, the Service does not propose to delegate its 
authority to adjudicate extensions of temporary stay and changes of 
nonimmigrant status to an H-2A nonimmigrant. The Service proposes to 
retain its authority in these two areas because the decisions to change 
nonimmigrant status and to extend an alien's period of temporary stay 
require complex determinations as to whether the alien is maintaining a 
valid nonimmigrant status and is eligible for other benefits under the 
Act. In addition, it would be burdensome on the DOL, whose mission does 
not include direct control over aliens, to make these determinations. 
For these reasons, the Service will not remove itself entirely from the 
H-2A program, but will retain a certain amount of control over the 
program in order to ensure that both the employer and the foreign 
agricultural worker remain in compliance with the Act.
    Under the proposed regulation, extensions of stay would continue to 
be filed with the Service in accordance with 8 CFR 214.1 and 8 CFR 
214.2(h)(15)(ii)(C). In addition, requests for a change of nonimmigrant 
status to H-2A nonimmigrant classification would continue to be filed 
with the Service pursuant to 8 CFR part 248. The Service also would 
retain its authority to adjudicate petitions filed for a change of 
United States employers under this proposed regulation.
    The Service also intends to retain its right to adjudicate appeals 
of denied H-2A petitions. See 8 CFR 103.3, 214.2(h)(12). Petitions 
denied by the DOL would, therefore, continue to be appealed to the AAO. 
In this regard, the proposed regulation clarifies that, as a condition 
to delegation of authority, the DOL has agreed to provide notice to the 
petitioner of the reasons for denial and of the right to appeal to the 
AAO. The Service's retention of its appeal authority ensures that 
United States employers can obtain an independent, second-agency review 
of a petition denied by the DOL. This is not to be confused with the 
DOL's decision with respect to an application for a labor 
certification. Under this proposed rule, the DOL will be rendering two 
decisions, one on the application for a labor certification and one on 
the H-2A petition itself. Appeals from the denial of a labor 
certification will continue to be handled by the DOL.
    The Service also intends to retain its authority, described in 8 
CFR 214.2(h)(11), to revoke an H-2A petition approved by the DOL.
    This proposed rule also would not alter the petitioner's 
responsibilities, set forth in 8 CFR 214.2(h)(5)(vi), to notify the 
Service if an H-2A alien absconds or the alien's employment ends more 
than 5 days before the labor certification expires. Similarly, the 
proposed rule would not change the provisions in 8 CFR 214.2(h)(5)(vi) 
requiring the petitioner to pay liquidated damages for violating its 
notification obligations. Further, this proposed rule would not alter 8 
CFR 214.2(h)(5)(viii), which sets forth the period of an H-2A 
nonimmigrant admission to the United States.
    In addition, the delegation of the authority to adjudicate certain 
H-2A petitions would not, in any way, affect the Service's 
responsibilities with respect to the employer sanctions provisions 
contained at 8 CFR part 274a, including the limitation that an H-2A 
worker may be employed only by the petitioning employer, as described 
at 8 CFR 274a.12(b)(9).
    This rule also would not delegate authority to make determinations 
of admissibility to the United States. The Service would retain sole 
authority to make such determinations at the time an alien makes an 
application for admission at a designated port-of-entry. The delegation 
in this rule would only involve the approval of petitions for H-2A 
nonimmigrant classification. The H-2A workers would still be required 
to obtain a nonimmigrant visa abroad, where applicable, and make 
application for admission to the United States.
    Finally, the Service will continue to issue Form I-94, Arrival-
Departure Record, to the foreign worker at the time the alien is 
admitted to the United States. The Service will also continue to issue 
replacement Form I-94s.

What Is the Effect of These Proposed Changes?

    These proposed changes will make it easier for United States 
employers to file petitions for H-2A agricultural workers located 
outside of the United States. Under this proposed rule, these employers 
generally will be required to file petition-related documents with only 
one agency--the DOL--instead of the current two agencies. This proposed 
change should shorten the time required for these employers to obtain 
the

[[Page 67433]]

services of H-2A workers located outside of the United States because 
it generally will remove the Service from the H-2A petition approval 
process, thereby eliminating the time and mailing costs associated with 
the submission of the petition package to the Service.

What Issues Will Remain After These Proposed Changes Are Made?

    The adoption of the changes proposed in this rule will create a 
number of issues to be resolved among the Service, the DOL, and the 
DOS. These issues will require further discussion between the agencies 
and, possibly, further rulemaking. An example of one such issue is 
whether the DOL should use the Service's Form I-129 or create its own 
form to capture the information required to determine eligibility for 
the H-2A classification. Another issue is whether, if the DOL devises 
its own form, it should gather the same information that the Service 
currently captures on Form I-129. A further example is the issue of how 
to notify consular posts and ports-of-entry after a petition is 
approved. In this regard, the DOL could continue to use the Service's 
Form I-797, Notice of Action, or devise another mechanism to notify the 
appropriate parties of its actions. The Service, the DOL, and the DOS 
will continue to discuss and to work collaboratively on these issues, 
and others, as they arise in order to determine the best procedures to 
implement the delegation described in this rule. Such procedures will 
be addressed by the agencies in their respective regulations through 
the rulemaking process.

What Types of Comments Does the Service Wish to Receive From the 
Public?

    In addition to comments directly addressing the changes proposed in 
this rule, the Service would appreciate comments from the public on 
other pertinent issues associated with this proposed delegation of 
authority. The Service does not wish to adopt changes that would have 
an adverse impact on the users of the H-2A program.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this rule and, by approving it, 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. The Service is issuing this 
rule to reduce the impact on small entities that petition for 
agricultural workers who are not physically present in the United 
States. This change is intended to reduce the amount of time required 
to petition for an H-2A worker and should ease the paperwork burden on 
prospective United States employers.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any 1 year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by the Small Business 
Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

    This rule is considered by the Department of Justice to be a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866, Regulatory Planning and Review. Accordingly, this rule has been 
submitted to the Office of Management and Budget for review.

Executive Order 12612

    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 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 Executive Order 12988.

List of Subjects in 8 CFR Part 214

    Administrative practice and procedures, Aliens, Employment, 
Reporting and recordkeeping requirements.

    Accordingly, part 214 of chapter I of title 8 of the Code of 
Federal Regulations is proposed to be amended as follows:

PART 214--NONIMMIGRANT CLASSES

    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:
    a. Removing the reference to ``H-2A,'' from the first sentence in 
paragraph (h)(2)(i)(A);
    b. Revising paragraph (h)(5)(i);
    c. Revising paragraph (h)(5)(ix); and by
    d. Revising paragraph (h)(10)(iii) to read as follows:


Sec. 214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (h) * * *
    (5) * * *
    (i) Petition for alien to perform agricultural labor or services of 
a temporary or seasonal nature (H-2A)--(A) Filing a petition on behalf 
of an alien who is not physically present in the United States. 
Pursuant to section 103 of the Act, the Attorney General has delegated 
the authority to adjudicate H-2A petitions where the beneficiary is 
outside of the United States to the Secretary of Labor. Therefore, an 
H-2A petition for a foreign agricultural worker who is not physically 
present in the United States shall be filed with the United States 
Department of Labor pursuant to its regulations at 20 CFR part 655, 
subpart B.
    (B) H-2A petitions filed for an alien who is in the United States 
or for a change of nonimmigrant status to an H-2A nonimmigrant alien.--
(1) General. An H-2A petition filed by a United States employer for an 
alien currently in the United States, or an H-2A petition requesting a 
change of an alien's nonimmigrant status to that of an H-2A 
nonimmigrant alien, must be filed with the Service on Form I-129. The 
petition must be filed with a single valid temporary agricultural labor 
certification. However, if a certification is denied, domestic labor 
subsequently fails to appear at the worksite, and the Department of 
Labor denies an appeal under section 218(e)(2) of the Act, the written 
denial of appeal shall be considered a certification for this purpose 
if filed with evidence that establishes that qualified domestic labor 
is unavailable. An H-2A petition may

[[Page 67434]]

be filed by either the employer listed on the certification, the 
employer's agent, or the association of United States agricultural 
producers named as a joint employer on the certification.
    (2) Multiple beneficiaries not present in the United States. The 
total number of beneficiaries of a petition or series of petitions 
based on the same 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 certification, and all beneficiaries will 
obtain a visa at the same consulate or not required to have a visa and 
will apply for admission at the same port-of-entry.
    (3) Unnamed beneficiaries not present in the United States. The 
sole beneficiary of an H-2A petition must be named in the petition. In 
a petition for multiple beneficiaries, each beneficiary must be named 
unless he or she is not named in the certification and is outside the 
United States. Unnamed beneficiaries must be shown on the petition by 
total number.
    (4) Evidence supporting H-2A petitions filed with the Service. An 
H-2A petitioner must show that the proposed employment qualifies as a 
basis for H-2A status, and that any named beneficiary qualifies for 
that employment. A petition will be automatically denied if filed 
without the certification evidence required in paragraph 
(h)(5)(i)(B)(1) of this section and, for each named beneficiary, 
without the initial evidence required in paragraph (h)(5)(v) of this 
section.
    (5) Special filing requirements for H-2A petitions filed with the 
Service. Where a certification shows joint employers, a petition must 
be filed with an attachment showing that each employer has agreed to 
the conditions of H-2A eligibility. A petition filed by an agent must 
be filed with an attachment in which the employer has authorized the 
agent to act on its behalf, has assumed full responsibility for all 
representations made by the agent on its behalf, and has agreed to the 
conditions of H-2A eligibility.
    (C) Petitions for H-2A nonimmigrant aliens requesting an extension 
of temporary stay. An H-2A petition requesting an extension of the 
beneficiary's temporary stay shall be filed on Form I-129 with the 
Service pursuant to paragraph (h)(15)(ii)(C) of this section.
* * * * *
    (ix) Substitution of beneficiaries who are terminated prior to the 
completion of their authorized stay in H-2A classification. An H-2A 
petition may be filed to replace an H-2A worker whose employment has 
been terminated prior to the completion of the alien's authorized stay. 
In cases where the worker replacing the terminated H-2A worker is 
located outside the United States, the authority to adjudicate the H-2A 
petition is delegated to the Department of Labor. In such cases, the 
petition must be filed pursuant to the Department of Labor's 
regulations at 20 CFR part 655, subpart B. In cases where the worker 
who will replace the terminated H-2A worker is physically present in 
the United States, the H-2A petition for the substitute worker must be 
filed with the Service.
* * * * *
    (10 * * *
    (iii) Notice of denial. The petitioner shall be notified of the 
reasons for the denial and of his or her right to appeal the denial of 
the petition under 8 CFR part 103. In cases where the Department of 
Labor has adjudicated an H-2A petition, the Department of Labor will 
notify the petitioner of the reasons for the denial and of his or her 
right to file an appeal with the Administrative Appeals Office pursuant 
to 8 CFR part 103. There is no appeal from a decision to deny an 
extension of stay to the alien.
* * * * *
    Dated: December 1, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-32396 Filed 12-4-98; 8:45 am]
BILLING CODE 4410-10-M