[Federal Register Volume 70, Number 17 (Thursday, January 27, 2005)]
[Proposed Rules]
[Pages 3984-3993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1240]



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Part II





Department of Homeland Security





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8 CFR Part 214



Petitions for Aliens to Perform Temporary Nonagricultural Services or 
Labor (H-2B); Proposed Rule





Department of Labor





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Employment and Training Adminstration



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20 CFR Part 655



Post-Adjudication Audits of H-2B Petitions in All Occupations Other 
Than Excepted Occupations in the United States; Proposed Rule

  Federal Register / Vol. 70, No. 17 / Thursday, January 27, 2005 / 
Proposed Rules  

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 214

[DHS No. 2004-0033]
RIN 1615-AA82


Petitions for Aliens To Perform Temporary Nonagricultural 
Services or Labor (H-2B)

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security.

ACTION: Proposed rule.

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SUMMARY: An H-2B alien is someone who comes temporarily to the United 
States to perform temporary nonagricultural labor or services. The 
Department of Homeland Security (DHS), after consulting with the 
Department of Labor (DOL) and the Department of State (DOS), is 
proposing significant changes to its regulations that are designed to 
increase the effectiveness of the H-2B nonimmigrant classification. 
This proposed rule will facilitate use of the H-2B program by United 
States employers who are unable to find United States workers to 
perform the temporary labor or services for which the H-2B nonimmigrant 
is sought. Through this proposed rule, DHS has created a one-step 
application process whereby certain U.S. employers seeking H-2B 
temporary workers now will only be required to file one application--
the Form I-129, Petition for Nonimmigrant Worker, which will include a 
modified H supplement containing certain labor attestations. With 
limited exceptions, U.S. employers will no longer need to file for or 
receive a labor certification from the Department of Labor. In 
addition, DHS is reducing significantly the paper-based application 
process by now requiring that most Form I-129 petitions (including the 
H supplement) be submitted to USCIS electronically, through e-filing. 
DHS anticipates that this one-step process and the e-filing will 
enhance the effectiveness of the H-2B program, reduce costs and delays 
associated with separate USCIS petition adjudication and DOL labor 
certification processes, and will match a U.S. employer with a 
qualified H-2B worker in a more timely fashion. Finally, this proposed 
rule makes changes that will maintain the integrity of the program 
through enforcement mechanisms while retaining the current definition 
of the word ``temporary'' in 8 CFR 214.2(h)(6)(ii) in order to ensure 
continued availability of the program to its traditional users. These 
proposals will increase the efficiency of the program by eliminating 
certain regulatory barriers, and improve Government coordination.

DATES: Written comments must be submitted on or before February 28, 
2005.

ADDRESSES: You may submit comments, identified by RIN 1615-AA82 or DHS 
Docket DHS-2004-0033 by one of the following methods:
     EPA Federal Partner EDOCKET Web site: http://www.epa.gov/feddocket. Follow the instructions for submitting comments on the Web 
site.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. When submitting comments 
electronically, please include RIN 1615-AA82 or DHS-2004-0033 in the 
subject line of the message.
     Mail/Hand-delivered/Courier: Director, Regulatory 
Management Division, Department of Homeland Security, U.S. Citizenship 
and Immigration Services, 111 Massachusetts Avenue, NW., 3rd Floor, 
Washington, DC 20529.
    Instructions: All submissions received must include the DHS-2004-
0033 or RIN 1615-AA82. All comments received will be posted without 
change to http://www.epa.gov/feddocket, including any personal 
information provided. For detailed instructions on submitting comments 
and additional information on the rulemaking process, see the ``Public 
Participation'' heading of the SUPPLEMENTARY INFORMATION section of 
this document below.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.epa.gov/feddocket. You may also 
access the Federal eRulemaking Portal at http://www.regulations.gov. 
Submitted comments may also be inspected at Regulatory Management 
Division, Department of Homeland Security, U.S. Citizenship and 
Immigration Services, 111 Massachusetts Avenue, NW., 3rd Floor, 
Washington, DC, Monday through Friday, except Federal holidays. 
Arrangements to inspect submitted comments should be made in advance by 
calling (202) 514-3291.

FOR FURTHER INFORMATION CONTACT: Kevin J. Cummings, Adjudications 
Officer, Office of Program and Regulation Development, U.S. Citizenship 
and Immigration Services, Department of Homeland Security, 111 
Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529, telephone 
(202) 353-8177.

SUPPLEMENTARY INFORMATION:

Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
proposed rule. DHS also invites comments that relate to the economic, 
environmental, or federalism affects that might result from this 
proposed rule. Comments that will provide the most assistance to DHS in 
developing these procedures will reference a specific portion of the 
proposed rule, explain the reason for any recommended change, and 
include data, information, or authority that support such recommended 
change. See ADDRESSES above for information on how to submit comments.

What Is an H-2B Nonimmigrant?

    Section 101(a)(15)(h)(ii)(b) of the Immigration and Nationality Act 
(Act) describes an H-2B alien as an alien coming temporarily to the 
United States to perform temporary nonagricultural labor or services. 
This definition is reflected at 8 CFR 214.2(h)(1)(ii)(D) and (h)(6)(i).

Why Is DHS Proposing To Issue This Regulation?

    The H-2B program has existed without substantial modification since 
1952. In 1990, Congress attached a limitation on the number of H-2B 
workers but otherwise the program has not changed to accommodate 
employers' needs or to offer worker protections. After consulting with 
DOL and DOS and reviewing the definitions and procedures currently used 
to regulate the H-2B program, DHS has determined that the H-2B process 
should be modified to reduce unnecessary burdens that hinder 
petitioning employers' ability to effectively use this visa category. 
The current rules require employers to obtain temporary labor 
certification from the Secretary of Labor before obtaining permission 
to engage an H-2B worker. The delays in processing applications for 
labor certification combined with the relatively short period of time 
for which the worker will be available under current rules have 
discouraged use of the program. This rule will remove existing 
regulatory barriers and thus likely lead to more efficiency in the H-2B 
program.

What Is the Current Petitioning Process for an H-2B Nonimmigrant?

    Section 214(c) of the Act provides that the Secretary of Homeland 
Security, after consultation with appropriate

[[Page 3985]]

entities of the Government and upon petition of the importing employer, 
will determine whether an alien may be imported as a H-2B nonimmigrant 
temporary worker. 8 U.S.C. 1184(c)(1). Historically, the consultation 
requirement has been accomplished by receiving a labor certification 
from DOL; however, the nature of the consultation is not defined in the 
statute.
    The current regulation at 8 CFR 214.2(h)(6) provides that a 
petitioner seeking to employ an H-2B nonimmigrant must establish that 
the alien will not displace United States workers who are capable of 
performing such services or labor and that the employment of the alien 
will not adversely affect the wages and working conditions of United 
States workers. An employer may not file a petition for an H-2B 
temporary worker unless that employer has obtained a labor 
certification from the Secretary of Labor. To obtain a labor 
certification, a prospective employer must test the labor market and, 
in addition, pay the alien a salary that will not adversely affect the 
United States labor market. A petitioner must demonstrate that the need 
for the temporary services or labor is a one-time occurrence, a 
seasonal need, a peakload need, or an intermittent need. In general, 
the period of the petitioner's need must be less than one year. 
Extensions beyond the one-year period of time can be approved in 
extraordinary circumstances. In determining whether a petitioner's need 
is temporary, U.S. Citizenship and Immigration Services (USCIS) 
examines the nature of the petitioner's need, not the nature of the 
beneficiary's proposed duties.

What Changes Is DHS Proposing in This Rule?

    To better accommodate the needs of United States employers that 
utilize the H-2B program, DHS is proposing a number of significant 
changes to the H-2B classification.
    First, DHS is proposing to amend 8 CFR 214.2(h)(2) to require most 
employers seeking an H-2B temporary worker to submit an attestation 
that meets the requirements of DOL regulations. Currently, an employer 
seeking a temporary worker is required to file the Form I-129 with 
USCIS. This form consists of a basic petition and different supplements 
that apply to the various visa categories. Therefore, an employer 
petitioning for an H-2B worker currently is required to file an I-129 
along with the I-129 H supplement. This rule proposes to revise the 
current I-129 H supplement to include an attestation from the employer. 
Employers will not be required to submit a separate form, as previously 
required with the labor certification. Under this rule, the revised I-
129 H supplement, that includes the attestation information required 
under DOL regulations (20 CFR 655 subpart A), will be filed along with 
the Form I-129 to the USCIS. In a small number of cases, DOL's 
regulations may require other labor documentation. DHS and DOL have 
consulted and have jointly determined that the proposed attestation 
developed by DOL satisfies the consultation mandate of section 214(c) 
of the Act.
    Second, DHS is proposing that most employers seeking an H-2B 
temporary worker file the Form I-129 and H supplement through e-filing. 
This is a significant change that will significantly reduce the paper-
based application process and now require that most Form I-129 
petitions (including the H supplement) be submitted to USCIS 
electronically, through e-filing. Employers who may continue to file 
paper petitions are those in the logging, entertainment, and 
professional athletics industries, as well as those H-2B employers in 
Guam. However, these employers are encouraged to utilize e-filing when 
submitting Form I-129 petitions, although these employers will still be 
required to submit the appropriate ``paper'' temporary labor 
certification to the service center with jurisdiction over the area of 
intended employment.
    DHS believes the e-filing process will ensure expeditious 
processing of H-2B petitions and limit the number of potentially 
incomplete attestations. In addition, it will ease the filing burden on 
most petitioning employers. Through e-filing, USCIS also will be able 
to capture statistics more effectively and analyze H-2B program data to 
identify areas that need improvement as well as any fraud or abuse that 
may lead to future administrative, civil or criminal enforcement 
actions against H-2B petitioners and/or aliens.
    DHS recognizes that the transition to electronic submissions of H-
2B petitions, while an effective method for streamlining the 
application process and enhancing the effectiveness of the H-2B 
program, also requires parallel safeguards and protections to address 
potential abuse or fraud in the e-filing process. DHS notes that the 
submission of materially false, fictitious, or fraudulent statements to 
the government already constitutes a violation of 18 U.S.C. 1001. 
Anyone convicted of a violation of this provision may be fined and/or 
imprisoned for not more than 5 years. To safeguard the e-filing 
process, DHS is incorporating a personal identification number (PIN) 
and password requirement for applications or petitions submitted 
electronically. This requirement will be in effect within the DHS 
electronic filing system prior to the effective date of the H-2B 
process change and it will be extended to this proposed H-2B process 
once the process is finalized. DHS is soliciting comments on the e-
filing process for H-2B petitions, the use of information collected 
through the e-filing process for future administrative, civil or 
criminal enforcement actions, and the types of additional safeguards 
that should be adopted as part of the e-filing process.
    DHS is considering the use of Public Key Infrastructure (PKI) as an 
additional safeguard to the e-filing process, and encourages the public 
to provide comments regarding the feasibility of using PKI to this end. 
DHS also is considering requiring the use of other safeguards in order 
to authenticate the identity of a party making an electronic submission 
and to maintain the integrity of the process. DHS is soliciting 
comments on (1) alternative safeguards that may be appropriate, and (2) 
the risks that might be associated with an inability to authenticate 
submissions.
    Third, DHS is proposing to amend 8 CFR 214.2(h)(11)(i)(A) to 
require an employer to provide notification to USCIS within 30 days of 
the date that the employer terminates the alien's employment or the 
alien leaves the employment. This will ensure that an approved H-2B 
petition filed by an employer is closed out when the basis for the 
alien's status terminates and that USCIS is made aware of the change in 
employment status. DHS also may develop a process whereby employers may 
provide notification of termination electronically, through e-filing, 
rather than forwarding a paper notice to the appropriate USCIS service 
center. DHS is soliciting comments on this proposal.
    Fourth, DHS is proposing to add new paragraphs to 8 CFR 
214.2(h)(6)(iii), (F) and (G), and new language to 8 CFR 
214.2(h)(11)(iii)(A)(2) that establish a process for USCIS to deny or 
revoke approval of a Form I-129 if USCIS determines that the statements 
on the Form I-129 petition are inaccurate, fraudulent, or 
misrepresented a material fact. Upon such a determination, USCIS may 
deny the petition pursuant to 8 CFR 214.2(h)(10) or initiate revocation 
proceedings pursuant to 8 CFR 214.2(h)(11)(iii)(B).
    Fifth, DHS is proposing to add a new provision at 8 CFR 
214.2(h)(20) to establish a process whereby USCIS will deny, for a 
specified period of time, all petitions (immigrant and nonimmigrant)

[[Page 3986]]

filed by an employer, based upon a finding by DOL that an employer has 
not complied with attestation conditions (known as debarment). In a 
separate rulemaking, at 20 CFR 655.13, DOL is proposing an audit and 
debarment process for employers who are found not to have complied with 
the required elements of the H-2B attestation. If DOL determines that 
an employer violated the conditions of the attestation and recommends 
the employer be debarred for a specified period of time, upon notice 
from DOL, USCIS will accept DOL's recommendation and debar the 
petitioner from filing any immigrant or nonimmigrant petitions under 
new paragraph (h)(20). USCIS notes that it may decide to debar a 
petitioning employer for a longer period than that recommended by DOL. 
This additional measure will encourage petitioner compliance with the 
proposed attestation requirements of the H-2B program. DHS is 
soliciting comments on whether debarments recommended by DOL should 
extend to an entity related to the U.S. employer (e.g., an affiliate or 
successor entity).
    Sixth, DHS would like to develop a self-initiated debarment 
process, separate from the DOL audit and debarment process, which will 
allow USCIS to debar the petitioner upon a finding by USCIS that the 
petitioner's statements in the Form I-129 petition are inaccurate, 
fraudulent, or misrepresent a material fact. Unlike the DOL debarment 
process, which will be based on random and selected audits of the Form 
I-129 H Supplements that accompany approved H-2B petitions, USCIS will 
initiate proceedings when it independently receives information, 
including through the petition adjudication process or separate 
investigation (administrative, civil or criminal), indicating that the 
petitioner's statements in the Form I-129 petition are inaccurate, 
fraudulent, or misrepresent a material fact (e.g., USCIS receives 
evidence that the ``U.S. employer'' filing the Form I-129 petition 
actually is not a real company or an organization licensed to do 
business in the United States). DHS is soliciting comments on process, 
including suggestions on the type of administrative process and 
procedures that should be adopted for determining that a petitioner 
should be debarred, the appellate process and whether all immigrant and 
nonimmigrant petitions should be subject to debarment. DHS also is 
soliciting comments on whether debarments determined through the USCIS 
self-initiated process should extend to an entity related to the U.S. 
employer (e.g., an affiliate or successor entity).
    Seventh, DHS is amending the current regulations relating to the 
use of agents as petitioners for H-2B temporary workers. The current 
regulation at 8 CFR 214.2(h)(2)(i)(F) allows U.S. agents to file 
petitions in cases involving workers who are traditionally self-
employed or who use agents to arrange short-term employment with 
numerous employers, or in the case of foreign employers. In addition, 
the current regulations at 8 CFR 214.2(h)(2)(i)(F) and (h)(6)(iii)(B) 
permit foreign employers to use U.S. agents to petition for H-2B 
temporary workers. This rule proposes to no longer allow the filing of 
H-2B petitions by agents.
    This change is necessary in light of the transition from a labor-
certification to an attestation-based petition process for most H-2B 
petitioning employers. In order to ensure the integrity of the H-2B 
attestation process, H-2B attestations must be made by the employer, 
not by a recruiting agent. In addition, DHS believes that it will be 
easier for USCIS to take action against an employing petitioner, who is 
making the attestations required under the DOL regulations at 20 CFR 
655, subpart A, than against an agent. DHS notes that this is not 
restricting the use of agents to recruit workers but is instead 
requiring only that the employer directly petition for the H-2B 
temporary worker.
    Eighth, this rule proposes to codify the current numerical counting 
procedures for the H-2B classification. Title 8 CFR 214.2(h)(8)(ii)(A) 
already provides that requests for petition extension or extension of 
an H-2B alien's stay shall not count against the numerical cap. DHS is 
amending 8 CFR 214.2(h)(8)(ii) by adding a new paragraph (G) to reflect 
that, for purposes of the H-2B numerical cap, USCIS will not count 
amendments to previously approved petitions or petitions for aliens who 
already hold H-2B status and are seeking to change employers or add a 
new or additional employer (e.g., concurrent employment). An amended H-
2B petition is required in instances where there has been a material 
change in the terms and conditions of employment or the alien's 
eligibility for the classification (e.g., a material change in the 
duties performed by the alien). See 8 CFR 214.2(h)(2)(i)(E). USCIS is 
also further amending 8 CFR 214.2 by adding a new paragraph 
(h)(8)(ii)(H) to state that an H-2B nonimmigrant who is employed (or 
has received an offer of employment) as a fish roe processor, a fish 
roe technician, or a supervisor of fish roe processing, shall not be 
subject to the numerical limitation in a given fiscal year. USCIS is 
adding new paragraph (h)(8)(ii)(H) to comport with section 14006 of the 
2005 Department of Defense Appropriations Act, 2005 (Pub. L. 108-287, 
August 5, 2004).
    Ninth, DHS is proposing to amend 8 CFR 214.2(h)(2)(iii) to require 
that employers seeking a certain number of aliens to fill H-2B 
positions only specify the number of positions sought and not name the 
individual alien on all initial H-2B petitions (i.e., unnamed 
beneficiaries), unless the beneficiary already is in the United States. 
DHS is requiring beneficiaries who are already in the United States to 
be named, as USCIS is responsible for adjudication of the beneficiary's 
eligibility for H-2B status in such instances. USCIS will require a 
named beneficiary in all petitions where USCIS is responsible for 
adjudication of the beneficiary's eligibility for H-2B status.
    DHS is soliciting comments from the public on whether USCIS should 
require all H-2B beneficiaries to be named, as such a requirement would 
assist DHS in maintaining an accurate count of the number of aliens 
granted H-2B visas or accorded H-2B status each fiscal year.
    The beneficiary of a Form I-129 who was previously in H-2B status 
for a maximum 3-year period is eligible for a subsequent maximum 
authorized period of admission (up to one year initially with possible 
extensions up to 3 years) only if the alien has been outside the United 
States for a period of 6 months prior to filing of the petition.
    Tenth, this rule proposes to amend 8 CFR 214.2(h)(9)(i)(B) to 
reflect that an H-2B petition, if submitted via e-filing, may not be 
filed more than 60 days prior to the date of actual need for the 
beneficiary's services. DOL is concurrently proposing regulations 
stating that recruitment must occur within 60 days of filing. To ensure 
accuracy of the labor market test, DHS is proposing to also limit 
advance filings of H-2B petitions to a maximum period of 60 days. In 
light of the new streamlined procedures proposed in the DOL and DHS 
companion rules, DHS is confident that 60 days is a sufficient amount 
of time to process the H-2B petition and enable the beneficiary to 
obtain a visa or be accorded H-2B status. DHS solicits comments from 
the public regarding this change.
    Finally, in the event that an employer has submitted an application 
for change of status, an extension of status, or a petition that 
requests named beneficiaries and the security check

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generates adverse information on a beneficiary who is part of a 
multiple-beneficiary petition, DHS is proposing to amend 8 CFR 
214.2(h)(9)(i)(A) to create a process that will allow for issuance of a 
partial approval notice to allow the petitioning employer to receive 
authorization to employ the remainder of the requested H-2B workers. 
USCIS will continue to process the petitions of the remaining workers 
to completion.

Is DOL Proposing any Changes to the Temporary Labor Certification 
Process?

    Yes. DOL will propose in a separate rulemaking to terminate the 
existing labor certification process for most H-2B employment, with 
certain exceptions. These exceptions are employers seeking H-2B workers 
in logging, the entertainment industry, and professional athletics. DOL 
has traditionally applied a unique process for workers who fall within 
these well-defined exceptions and DOL does not intend to modify these 
unique processes at this time. For all other H-2B employment, instead 
of the current labor certification process, elements of the H-2B labor 
certification will be incorporated into an attestation that will be 
made to the U.S. Government in accordance with DOL regulations. The 
attestation will be filed electronically, through e-filing, with the 
Form I-129 petition because the attestation will be contained in the 
Form I-129 H supplement. Employers will not be required to submit a 
separate form, as previously required with the labor certification. 
Employers who may continue to file paper petitions are those in the 
logging, entertainment, and professional athletics industries, as well 
as those H-2B employers in Guam. These employers are encouraged to 
utilize e-filing when submitting Form I-129 petitions, although these 
employers will still be required to submit the appropriate ``paper'' 
temporary labor certification to the service center with jurisdiction 
over the area of intended employment. DOL will also propose in a 
separate rulemaking an audit and debarment process for employers who 
are found not to have complied with the required elements of the 
attestation.

What Is the Proposed Attestation Process?

    The attestation process for the H-2B classification will be similar 
to the process currently used for the H-1B nonimmigrant classification. 
However, the H-2B attestation will be submitted to USCIS through e-
filing. The attestation will be contained in the Form I-129 H 
supplement and most employers will not be required to submit a separate 
form, as previously required with the labor certification. The terms of 
the attestation are set forth at 20 CFR 655 subpart A. Given that the 
Form I-129 H supplement is currently required to be submitted with the 
I-129 petition, DHS is proposing that Form I-129 (including the H 
supplement that contains the required attestations) be submitted to 
USCIS through e-filing. This process will ensure that all required 
elements of the attestation are completed before USCIS adjudicates the 
petition. In cases where an employer is still required to submit a 
labor certification (i.e., for employment in Guam and for other 
employment as designated by DOL in its regulations), the paper labor 
certification must be submitted to the appropriate USCIS service center 
regardless of whether the petition was e-filed or not.

What Will Be the Required Elements of the Attestation?

    The elements of the attestation must meet the DOL requirements set 
forth at 20 CFR 655, subpart A. If the attestation is complete, and the 
H-2B petition is otherwise approvable, the H-2B petition may be 
approved for the length of time specified by the petitioner or 
determined by USCIS as meeting the petitioner's temporary need, a 
period that may last for up to one year. Approval of the H-2B petition 
will constitute evidence that the attestation (included in the Form I-
129 H Supplement) also has been accepted and relied upon for purposes 
of supporting the Form I-129 petition. The validity of the petition and 
the beneficiary's authorized period of stay may be extended in 
increments of up to one year, for a maximum period of 3 years, but may 
not be extended for any time beyond the 3-year period. An employer must 
submit a new Form I-129 H supplement (which includes the attestation) 
with each new Form I-129 petition.

Will the Changes to the Temporary Labor Certification Process Cover All 
H-2B Employment?

    No. First, it should be noted that DOL has no jurisdiction over 
Guam with respect to labor certification; therefore the Governor of 
Guam will retain his authority to issue labor certifications without 
modification. It has not been demonstrated to DHS that the employment 
situation in Guam requires DHS to modify the current labor 
certification provisions for prospective employers in Guam. In 
addition, the new attestation process will be required only for those 
employers designated by DOL at 20 CFR 655.3. Employers in the logging, 
entertainment, and professional athletics industries are not required 
to submit an attestation, but must submit a paper labor certification 
to the USCIS service center with jurisdiction over the area of intended 
employment.

What Is the Period of Petition Validity?

    The USCIS service center director may approve an H-2B petition for 
the length of time specified by the petitioner or determined by USCIS 
as meeting the petitioner's need, which in certain instances may last 
for up to one year. The period of validity of the petition and the 
beneficiary's authorized period of stay may be extended for additional 
periods of time, as determined by USCIS based on the specific 
circumstances of the employer, but the petitioner may not be authorized 
to employ the beneficiary beyond the beneficiary's maximum period of 
authorized stay (up to one year initially with possible extensions up 
to 3 years). An employer must submit a new Form I-129 H supplement 
(which includes the attestation) in order to extend the period of 
validity of a petition and to obtain an extension of stay for the 
beneficiary. For petitions filed for employment in Guam, or for 
petitions requiring labor certification, the maximum period of 
admission will remain one year and extensions of stay may be granted 
for an individual worker, in increments of one year, for a maximum 
period of 3 years.

How Will USCIS Process Petitions With Multiple Named Beneficiaries When 
One of the Beneficiaries Takes Longer Than the Others or a Security 
Check Uncovers Adverse Information About One of the Beneficiaries?

    DHS is proposing to amend 8 CFR 214.2(h)(9)(i)(A) to create a 
process that will allow for issuance of a partial approval notice in 
the event that an employer has requested named beneficiaries (for 
beneficiaries who already are in the United States) and a mandatory 
security check on one or more of the requested beneficiaries takes 
longer than the others or a security check uncovers adverse information 
about one of the beneficiaries.
    Accordingly, DHS is proposing to amend 8 CFR 214.2(h)(9)(i)(A) so 
that, in the event a security check takes more time for one or more 
beneficiaries on a multiple-beneficiary petition, or a security check 
uncovers adverse information about one of the beneficiaries, USCIS may 
issue a partial approval notice to the petitioner that will name which 
beneficiaries are authorized for H-2B status and

[[Page 3988]]

employment, but exclude the name of the beneficiary whose law 
enforcement checks remain pending. This process will allow USCIS to 
process H-2B petitions more efficiently for the majority of 
beneficiaries.

Will an Employer Be Permitted To Substitute the Names of Beneficiaries 
on a Petition Before USCIS Issues a Partial Approval Notice?

    No. In order to ensure that petitions are processed as 
expeditiously as possible, USCIS will make every attempt to issue a 
partial approval notice without prior notification or contact with the 
petitioning employer. The proposal to expedite processing in this 
manner will not allow a petitioning employer to substitute 
beneficiaries on a pending petition.

Will an Employer Still Be Permitted To Substitute Beneficiaries on a 
Petition After USCIS Partial Approval but Prior to an Alien's Admission 
to the United States?

    Yes. This process does not require amendments to the current 
substitution process at 8 CFR 214.2(h)(2)(iv), which allow for 
substitution of beneficiaries on an approved petition, if an employer 
requests named beneficiaries.

Will an Employer Be Permitted To Substitute Beneficiaries Who Are 
Already in the United States in H-2B Status Into a Previously Approved 
Petition?

    No. DHS is concerned that such a substitution would undermine other 
proposals in the rule that are intended to strengthen employer 
reporting requirements. If an employer were allowed to make post-
admission substitutions without notification to USCIS, it would limit 
the ability of USCIS to maintain accurate information concerning the 
whereabouts and activities of nonimmigrants under the H-2B category. In 
addition, such substitution would circumvent the required background 
checks that are currently run on individuals at the time of visa 
issuance and at the time of admission. Therefore, DHS is amending 
language at 8 CFR 214.2(h)(2)(i)(D) and 8 CFR 214.2(h)(2)(iii) to 
clarify that an employer will only be permitted to hire H-2B 
nonimmigrants who are within the United States if the employer files a 
new H-2B petition naming the beneficiary or beneficiaries.

How Will DHS and DOL Monitor and Ensure the Integrity of the H-2B 
Program?

    DHS and DOL (through separate rulemaking) are proposing several 
amendments that will allow both departments to monitor and ensure the 
integrity of the H-2B program, including DOL random and selected audits 
of H-2B petitions, and debarment of employers who have made willful 
misrepresentations in the H-2B petition or failed to comply with the 
attestation requirements as required by DOL regulations.
    DHS is proposing to amend the regulations at 8 CFR 
214.2(h)(6)(iii)(B) to require that all United States employers 
petition directly for the H-2B beneficiary. This amendment will 
preclude United States agents and/or recruiters acting as agents from 
filing on behalf of United States employers. DHS is proposing to amend 
8 CFR 214.2(h)(6)(iii)(D) to ensure that USCIS processes are 
coordinated with the results of random and selected audits of 
attestations that the Secretary of Labor will conduct pursuant to 
regulations to be issued by DOL. Also, if USCIS determines that an 
employer has failed to comply with an attestation, USCIS may deny the 
petition pursuant to 8 CFR 214.2(h)(10) or initiate revocation 
proceedings pursuant to 8 CFR 214.2(h)(11).
    In addition, DHS notes that there are other laws that protect U.S. 
workers such as the Fair Labor Standards Act and section 274A of the 
Act, respectively, as well as anti-discrimination statutes.
    DOL, through separate rulemaking at 20 CFR part 655, subpart A, 
will propose to conduct random and selected audits of attestations that 
have been submitted with the Form I-129 petition to determine whether 
the information provided by the employer is accurate and is in 
compliance with the relevant regulations.
    DHS is proposing to add a new paragraph (h)(20) to establish a 
process whereby USCIS will deny all petitions (immigrant and 
nonimmigrant) filed by an employer for a specified period of time, 
based upon a finding by DOL that an employer has not complied with 
attestation conditions (this is known as debarment). In a separate 
rulemaking, at 20 CFR 655.13, DOL is proposing an audit and debarment 
process for employers who are found not to have complied with the 
required elements of the H-2B attestation. If DOL determines that an 
employer violated the conditions of the attestation and recommends the 
employer be debarred from filing future attestations for a specified 
period of time, upon notice from DOL, USCIS will accept DOL's 
recommendation and debar the petitioner from filing all petitions under 
new paragraph (h)(20). This process is similar to the H-1B debarment 
process under section 212(n)(2)(C) of the Act. The proposed regulation 
provides that DOL will recommend, through its hearing procedures, a 
period of debarment based on the severity of the violation when it 
notifies USCIS that a violation has occurred. USCIS will accord 
considerable weight to this recommendation when it determines the 
appropriate period of debarment for the employer. The period of 
debarment imposed by USCIS will be at least the minimum period 
recommended by DOL, but USCIS may choose to impose a longer period of 
debarment.
    As mentioned previously, USCIS is also proposing to establish a 
self-initiated debarment process separate from the DOL audit and 
debarment process. DHS solicits comments on the administrative process 
and penalties associated with this debarment process, including the 
appellate process.
    DHS also is considering establishing administrative penalties for 
program abusers such as requiring recruitment reports with labor 
attestations. DHS welcomes comments and suggestions on whether DHS 
should establish administrative penalties and, if so, the type of 
administrative penalties that should be imposed on non-compliant H-2B 
employers.

Regulatory Flexibility Act

    DHS has reviewed this regulation in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), and, by approving it, certifies that 
this rule will not have a significant economic impact on a substantial 
number of small entities. Although this rule may affect small entities, 
it is intended to help employers by eliminating certain regulatory 
barriers in hiring H-2B workers. This rule removes the burdensome labor 
certification process and replaces it with a simpler attestation 
process for H-2B workers that will facilitate processing within the H-
2B program.

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.

[[Page 3989]]

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.

Executive Order 12866

    This rule is considered by DHS 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 (OMB) for review.
    DHS has considered both the costs and the benefits of this rule as 
required in Executive Order 12866 section (b)(6) and has determined 
that the benefits of this regulation outweigh any costs. That 
determination is as follows: This proposal is necessary to improve U.S. 
employers' use of the H-2B program and access to necessary workers in a 
timely fashion. The current H-2B program requires a U.S. employer to 
submit to a two-step process, involving two separate agencies, before 
it can obtain a foreign worker. Petitioning employers must first file a 
labor certification application with DOL and DOL must approve the labor 
certification before the employer may file a petition with USCIS for 
approval based on the labor certification. The processing time and 
inherent delays associated with this two-step process negatively impact 
U.S. employers' ability to achieve optimal staffing levels in the time 
needed to meet their needs. In addition to time delays, the two-step 
process imposes additional costs in the form of paperwork and 
correspondence with two agencies.
    By including the attestation in the Form I-129 H supplement, DHS 
has created a one-step process where certain U.S. employers seeking H-
2B temporary workers now only will be required to file one application 
package--the Form I-129 with the Form I-129 H supplement--with one 
agency, DHS. This one-step process benefits employers by reducing costs 
and delays associated with separate USCIS petition adjudication and DOL 
labor certification processes, thereby allowing the employer to be 
matched with a qualified H-2B worker in a more timely fashion. The one-
step process also alleviates processing costs to the agencies due to 
separate filing requirements. Finally, these changes enhance the 
effectiveness of the H-2B program while maintaining integrity through 
enforcement by DOL and DHS with debarment processes for non-compliant 
H-2B employers. In addition to consolidating the filing process, this 
rule would make the actual submission of the necessary information 
itself easier (for eligible employers) by incorporating the required 
attestations into the Form I-129 H Supplement and permitting 
petitioning employers to file the required Form I-129 petition 
(including the H supplement) electronically, through e-filing.
    In addition, because this rule proposes to cease requiring named 
beneficiaries for workers not in the United States, within the context 
of USCIS processing, this rule will further alleviate processing delays 
that result when USCIS performs background checks on each named H-2B 
beneficiary. DOS currently performs background checks on all 
beneficiaries before visa issuance, so this process retains all 
requisite security measures while eliminating duplication of work 
between USCIS and DOS.
    There are no new costs to the public associated with this rule. No 
new or additional requirements are being created by this rule. Though 
the revisions to the Form I-129 H Supplement to include attestations as 
required under DOL regulations (20 CFR part 655, subpart A), are 
considered a new information collection under the Paperwork Reduction 
Act, these revisions will not create any additional burden on 
petitioning U.S. employers. In fact, the revisions reduce the current 
paperwork burden for such employers by removing the requirement that 
certain U.S. employers seeking an H-2B temporary work comply with a 
two-step filing process to obtain temporary labor in this visa 
category.

Executive Order 13132

    The 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.

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.

Paperwork Reduction Act

    Employers are currently required to file a Form I-129 with the H 
supplement when petitioning for H-2B workers. This proposed rule 
revises the current H supplement to require petitioners to attest to 
certain information on the H Supplement when petitioning USCIS for H-2B 
workers. This attestation is made to the U.S. Government in accordance 
with DOL regulations, and is provided to USCIS as a part of the H 
Supplement with the Form I-129 petition filing in order to streamline 
processing. Under the Paperwork Reduction Act of 1995, OMB considers 
the attestation an information collection requirement subject to 
review. Accordingly, this information collection has been submitted to 
OMB for review. Written comments are encouraged and will be accepted 
until March 28, 2005. 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 functions 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 This Information Collection

    (1) Type of information collection: Revision.
    (2) Title of Form/Collection: H Supplement to USCIS Form I-129, 
Petition for Nonimmigrant Worker.
    (3) Agency form number, if any, and the applicable component of the 
Department of Homeland Security sponsoring the collection: H Supplement 
to USCIS Form I-129, U.S. Citizenship and Immigration Services.

[[Page 3990]]

    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Individuals. The H Supplement to Form I-129 
is required evidence for an employer petitioning for an alien to come 
to the U.S. temporarily to perform services or labor as an H-1B, H-2A, 
H-2B or H-3 nonimmigrant worker.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: 368,948 
inclusive of all I-129 filings at 2.75 hours per response.
    (6) An estimate of the total of public burden (in hours) associated 
with the collection: Approximately 1,014,607 burden hours inclusive of 
all I-129 filings.
    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, 3rd Floor, Washington, DC 20529; 
Attention: Richard A. Sloan, Director, 202-514-3291.

List of Subjects in 8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, Foreign 
officials, Health professions, Reporting and recordkeeping 
requirements, Students.

    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, 1102, 1103, 1182, 1184, 1185 (pursuant 
to Executive Order 13323, published January 2, 2004), 1186a, 1187, 
1221, 1281, 1282, 1301-1305; 1372; 1379; 1731-32; sec. 14006, Pub. 
L. 108-287; sec. 643, Pub. L. 104-208; 110 Stat. 3009-708; 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.

    2. Section 214.2 is amended by:
    a. Revising paragraph (h)(1)(ii)(D);
    b. Revising paragraphs (h)(2)(i)(A), (C), and (D);
    c. Revising the term ``A United States agent'' to read: ``Except in 
the case of a petition for an H-2B worker, a United States agent'' at 
the beginning of paragraph (h)(2)(i)(F), introductory text;
    d. Revising paragraphs (h)(2)(ii) and (iii);
    e. Revising paragraphs (h)(6)(iii)(A), (B), (C), (D) and (E);
    f. Adding new paragraphs (h)(6)(iii)(F) and (G);
    g. Revising paragraph (h)(6)(iv);
    h. Revising paragraphs (h)(6)(vi)(A), (B), (C) and (D);
    i. Adding new paragraphs (h)(8)(ii)(G) and (H);
    j. Revising paragraphs (h)(9)(i)(A) and (B), (h)(9)(iii)(B)(1) and 
(h)(9)(iii)(B)(2)(i) and (ii);
    k. Adding introductory text to paragraph (h)(11)(i);
    l. Revising paragraphs (h)(11)(i)(A) and (h)(11)(iii)(A)(2);
    m. Revising paragraph (h)(13)(iv);
    n. Revising paragraph (h)(15)(ii)(C);
    o. Redesignating paragraph (h)(15)(ii)(D) as (h)(15)(ii)(E) and by 
adding a new paragraph (h)(15)(ii)(D); and by
    p. Adding a new paragraph (h)(20).
    The revisions and additions read as follows:


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

* * * * *
    (h) * * *
    (1) * * *
    (ii) * * *
    (D) An H-2B classification applies to an alien who is coming 
temporarily to the United States to perform nonagricultural work of a 
temporary or seasonal nature, if unemployed persons capable of 
performing such service or labor cannot be found in this country. This 
classification does not apply to graduates of medical schools coming to 
the United States to perform services as members of the medical 
profession. The temporary or permanent nature of the services or labor 
to be performed shall be determined by the USCIS. This classification 
also requires a labor certification or attestation, as prescribed by 
the Department of Labor at 20 CFR 655.3.
* * * * *
    (2) Petitions--(i) Filing of petitions--(A) General. A United 
States employer seeking to classify an alien as an H-1B, H-2A, H-2B, or 
H-3 temporary employee shall file a petition on Form I-129, Petition 
for Nonimmigrant Worker with the Form I-129 H supplement, only with the 
service center which has jurisdiction in the area where the alien will 
perform services, or receive training, even in emergent situations, 
except as provided in this paragraph. With the exception of employers 
seeking H-2B workers in logging, the entertainment industry, and 
professional athletics, a United States employer seeking to classify an 
alien as an H-2B temporary employee shall file electronically, through 
e-filing, the Form I-129 petition with H Supplement as provided in 8 
CFR 214.2(h)(6)(iii)(C). For U.S. employers seeking H-2B temporary 
workers in logging, the entertainment industry, and professional 
athletics, the U.S. employer may e-file the Form I-129, or file the 
paper Form I-129 with the required temporary labor certification to the 
USCIS service center that has jurisdiction over the area where the 
alien will perform services. Regardless of which filing option U.S. 
employers in logging, the entertainment industry, and professional 
athletics choose, such employers will still be required to submit a 
paper temporary labor certification to the USCIS service center with 
jurisdiction over the area of intended employment. A United States 
employer seeking to classify an alien as an H-1C nonimmigrant 
registered nurse shall file a petition on Form I-129 at the Vermont 
Service Center. Petitions in Guam and the Virgin Islands, and petitions 
involving special filing situations as determined by USCIS 
Headquarters, shall be filed with the local USCIS office or a 
designated USCIS office. The petitioner may submit a legible photocopy 
of a document in support of the visa petition in lieu of the original 
document. However, the original document shall be submitted if 
requested by the USCIS.
* * * * *
    (C) Services or training for more than one employer. If the 
beneficiary will perform nonagricultural services for, or receive 
training from more than one United States employer, each employer must 
file a separate petition, the Form I-129 with H Supplement, and, if 
required, a labor certification with the service center that has 
jurisdiction over the area where the alien will perform services or 
receive training.
    (D) Change of employers. If the alien is in the United States and 
seeks to change employers, the prospective new employer (except in the 
case of H-2As), must file a petition on Form I-129, with the fee 
required in 8 CFR 103.7(b)(1) and, if required, with a labor 
certification, naming the beneficiary, and requesting classification 
and extension of the alien's stay in the United States. A prospective 
new employer may not substitute an alien who is within the United 
States into any previously approved petition. 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 8 CFR 214.2(h)(13). The

[[Page 3991]]

alien is not authorized to begin the employment with the new petitioner 
until the petition is approved.
* * * * *
    (ii) Multiple beneficiaries. More than one beneficiary may be 
included in an H-1C, H-2A, H-2B, or H-3 petition, and a labor 
certification or attestation for H-2B petitions, if the beneficiaries 
will be performing the same service, or receiving the same training, 
for the same period of time, and in the same location.
    (iii) Named beneficiaries. An H-2B petition shall not include the 
name(s) of the beneficiary(ies) at the time of filing, unless the 
beneficiary is within the United States. For employment that requires 
labor certification, if all of the beneficiaries covered by an H-2B 
labor certification have not been identified at the time a petition is 
filed, multiple petitions may be filed at different times with a copy 
of the same labor certification; however, each petition must have been 
filed within 90 days of certification. Each petition must reference all 
previously filed petitions for that labor certification. For H-2B 
employment that requires an attestation, a U.S. employer must file a 
new Form I-129 H Supplement with each petition filed on behalf of name 
beneficiaries. The Form I-129 H Supplement must reflect the same number 
of beneficiaries that are being requested on the H-2B petition. An 
initial H-2A petition may contain both named and unnamed beneficiaries 
and the total number of beneficiaries must agree with the number of 
positions on the labor certification request. The number stated on the 
labor certification or Form I-129 H Supplement does not need to agree 
with the number of aliens requested on a subsequent request for 
extension.
* * * * *
    (6) * * *
    (iii) * * *
    (A) With the exceptions of employment for which the Department of 
Labor provides labor certification, when filing a petition with the 
director to classify an alien as an H-2B worker, the petitioner shall 
submit an H Supplement, that includes an attestation that complies with 
20 CFR part 655, subpart A, for each United States metropolitan 
statistical area in which a beneficiary will be employed. In the 
territory of Guam, the petitioning employer shall apply for temporary 
labor certification with the Governor of Guam. For other employment for 
which the Department of Labor requires labor certification, the 
petitioning employer shall apply for temporary labor certification with 
the Secretary of Labor. The labor certification or Form I-129 H 
Supplement shall be considered sufficient evidence that no United 
States workers capable of performing the temporary services or labor 
are available and that the alien's employment will not adversely affect 
the wages and working conditions of similarly employed United States 
workers.
    (B) An H-2B petition may only be filed by the employer seeking to 
hire an individual as an H-2B temporary worker. An agent may not file 
an H-2B petition on behalf of any employer. The petitioning employer 
shall consider available United States workers for the temporary 
services or labor, and shall offer terms and conditions of employment 
which are consistent with the nature of the occupation, activity, and 
industry in the United States.
    (C) The petitioner may not file an H-2B petition unless the United 
States petitioner has submitted a Form I-129 H Supplement or otherwise 
has applied for and received the appropriate labor certification as 
prescribed by the Department of Labor at 20 CFR 655.3. H-2B petitions 
must be filed electronically with the Form I-129 and H supplement 
through e-filing at the appropriate DHS website, unless the application 
requires a DOL temporary labor certification. A new H supplement must 
be filed with each Form I-129 petition and must reflect the same number 
of workers requested on the Form I-129 petition. All applications for 
labor certification or I-129 H supplements must be filed within the 
time limits prescribed or accepted by each category.
    (D) The Governor of Guam shall separately establish procedures for 
providing temporary labor certifications. Furthermore, the Secretary of 
Labor shall separately establish procedures for providing temporary 
labor certifications for employers seeking H-2B workers in logging, the 
entertainment industry, and professional athletics. The Secretary of 
Labor may implement a program to conduct random and selected audits to 
ensure the integrity of the attestation portion of the I-129 H 
supplement and to ensure compliance with the relevant regulatory 
provisions.
    (E) For petitions that require a labor certification from the 
Governor of Guam for employment in Guam or from the Secretary of Labor 
for other employment, as prescribed by the Department of Labor at 20 
CFR 655.3, the petitioner may file a paper Form I-129 with the required 
paper labor certification to the appropriate USCIS service center with 
jurisdiction over the area where the alien will perform services.
    (F) The certification from the Governor of Guam or the Secretary of 
Labor is advisory in nature and does not establish the temporary nature 
of the position or the beneficiary's eligibility. The service center 
director may deny the H-2B petition, pursuant to 8 CFR 214.2(h)(10) if 
the director determines that the statements on the Form I-129 petition 
were inaccurate, fraudulent, or misrepresented a material fact.
    (G) The service center director may institute revocation 
proceedings as described in paragraph (h)(11) of this section if the 
director determines that the statements on the Form I-129 petition were 
inaccurate, fraudulent, or misrepresented a material fact.
    (iv) Labor certifications for H-2B employment--(A) Labor 
certifications. For H-2B employment requiring a labor certification, an 
H-2B petition for temporary employment shall be accompanied by:
    (1) A certification from the Secretary of Labor stating that 
qualified workers in the United States are not available and that the 
alien's employment will not adversely affect wages and working 
conditions of similarly employed United States workers; or
    (2) A notice stating the reasons why such certification cannot be 
made. Such notice shall address the availability of United States 
workers in the occupation and the prevailing wages and working 
conditions of United States workers in the occupation.
    (B) Attachment to a petition requiring labor certification. If the 
petitioner receives a notice from the Secretary of Labor that 
certification cannot be made, a petition containing countervailing 
evidence must be filed with the service center director. The evidence 
must show that qualified workers in the United States are not 
available, and that the terms and conditions of employment are 
consistent with the nature of the occupation, activity, and industry in 
the United States. All such evidence submitted shall be considered in 
adjudicating the petition. The countervailing evidence presented by the 
petitioner shall be in writing and shall address availability of United 
States workers, the prevailing wage rate for the occupation in the 
United States, and each of the reasons why the Secretary of Labor could 
not grant a labor certification. The petitioner may also submit other 
appropriate information in support of the petition. The director, at 
his or her discretion, may require additional supporting evidence.
    (C) U.S. Virgin Islands. Labor certifications filed under section 
101(a)(15)(H)(ii)(b) of the Act for

[[Page 3992]]

employment in the United States Virgin Islands may be approved only for 
entertainers and athletes and only for periods not to exceed 45 days.
    (D) Validity period for labor certifications. The Secretary of 
Labor may issue a temporary labor certification for a period up to one 
year.
* * * * *
    (vi) * * *
    (A) Labor certification or notice. A temporary labor certification 
or a notice that certification cannot be made issued by the Governor of 
Guam in the case of employment in Guam; a temporary labor certification 
or notice that certification cannot be made issued by the Secretary of 
Labor in the case of employment for which labor certification is 
required;
    (B) Countervailing evidence. Evidence to rebut the Governor of 
Guam's or, in the case of employment for which the Department of Labor 
requires labor certification, the Secretary of Labor's notice that 
certification cannot be made;
    (C) Alien's qualifications. Documentation that the alien qualifies 
for the job offer as specified in the application for labor 
certification or petition (including the H supplement), except in 
petitions where the labor certification or petition (including the H 
supplement) requires no education, training, experience, or special 
requirements of the beneficiary; and
    (D) Statement of need. A statement describing in detail the 
temporary situation or conditions which make it necessary to bring the 
alien to the United States and whether the need is a one-time 
occurrence, seasonal, peakload, or intermittent and lasting less than 
one year. If the need is seasonal, peakload, or intermittent, the 
statement shall indicate whether the situation or conditions are 
expected to be recurrent. The statement shall be made on the Form I-129 
H supplement, which must be filed concurrently with the H-2B petition.
* * * * *
    (8) * * *
    (ii) * * *
    (G) USCIS will not count towards the numerical limitation in a 
given fiscal year petitions requesting extensions of H-2B status, 
amendments to previously approved H-2B petitions, or petitions for 
aliens who already hold H-2B status and are seeking to change employers 
or add an additional employer (i.e. concurrent employment).
    (H) The numerical limitation in a given fiscal year shall not apply 
to an H-2B nonimmigrant who is employed (or has received an offer of 
employment) as a fish roe processor, a fish roe technician, or a 
supervisor of fish roe processing.
    (9) * * *
    (i) * * *
    (A) If a petitioner has requested named beneficiaries because the 
beneficiaries are within the United States, the approval notice shall 
include the name of each beneficiary approved for that classification. 
Further, all approval notices shall include the requested 
classification and the petition's period of validity. A petition for 
more than one beneficiary and/or multiple services may be approved in 
whole or in part. In the event that a security check for one of the 
requested beneficiaries takes more time than is required for the other 
beneficiaries on a multiple-beneficiary petition, USCIS may issue a 
partial approval notice without notifying the petitioner of the 
specific information relating to the beneficiary(ies) not included on 
the approval notice. The approval notice shall identify only those 
beneficiaries approved for classification under section 101(a)(15)(H) 
of the Act.
    (B) An H-2B petition, if submitted via e-filing, may not be filed 
more than 60 days prior to the date of actual need for the 
beneficiary's services.
* * * * *
    (iii) * * *
    (B) * * *
    (1)(i) General. Except as provided in paragraph 
(h)(9)(iii)(B)(1)(ii) of this section, the approval of a petition to 
accord an alien a classification under section 101(a)(15)(ii)(b) of the 
Act shall be valid for the length of time as determined by the USCIS as 
meeting the petitioner's need, not to exceed a period of up to one 
year.
    (ii) Labor certification attached. If a certification by the 
Governor of Guam or the Secretary of Labor is attached to a petition to 
accord an alien a classification under section 101(a)(15)(H)(ii)(b) of 
the Act, the approval of the petition may be valid for a period of up 
to one year.
    (2) * * *
    (i) Countervailing evidence. If a petition is submitted containing 
a notice from the Governor of Guam that certification cannot be made, 
and is not accompanied by countervailing evidence, the petitioner shall 
be informed that he or she may submit the countervailing evidence in 
accordance with paragraph (h)(6)(iii)(E) of this section.
    (ii) Approval. In any case where the service center director 
decides that approval of the H-2B petition is warranted despite the 
issuance of a notice by the Governor of Guam that certification cannot 
be made, the approval shall be certified by the service center director 
to the Director, Administrative Appeals Office, pursuant to 8 CFR 
103.4. In emergent situations, the certification may be presented by 
telephone to the Director, Administrative Appeals Office, Headquarters. 
If approved, the petition is valid for the period of established need 
not to exceed one year. There is no appeal from a decision that has 
been certified to the Director, Administrative Appeals Office.
* * * * *
    (11) * * *
    (i) General. The service center director may revoke a petition at 
any time, even after the expiration of the approval of the petition.
    (A) The petitioner shall immediately notify USCIS of any changes in 
the terms and conditions of employment of a beneficiary which may 
affect eligibility under section 101(a)(15)(H) of the Act and 8 CFR 
214.2(h). A new Form I-129 H supplement and an amended petition on Form 
I-129 shall be filed when the petitioner continues to employ the 
beneficiary. If the petitioner no longer employs the beneficiary, the 
petitioner shall report explaining the change(s) within 30 days, unless 
the reason the beneficiary is no longer employed is due solely to the 
expiration of his or her period of authorized admission as an H 
nonimmigrant. The notification shall include the name of the petitioner 
and beneficiary, the receipt number for the approved petition, whether 
the beneficiary began employment with the petitioner, the dates the 
beneficiary was employed by the petitioner, if applicable, and a 
statement of the reason the beneficiary is no longer employed by the 
petitioner.
* * * * *
    (iii) * * *
    (A) * * *
    (2) The statement of facts contained in the petition were not true 
and correct or the assertions made in the labor attestation were 
inaccurate, fraudulent, or misrepresented a material fact; or
* * * * *
    (13) * * *
    (iv) H-2B and H-3 limitation on admission. An H-2B alien who has 
spent 3 years in the United States under section 101(a)(15)(H) and/or 
(L) of the Act; an H-3 alien participant in a special education program 
who has spent 18 months in the United States under section 
101(a)(15)(H) and/or (L) of the Act; and an H-3 alien trainee who has 
spent 24 months in the United States under section 101(a)(15)(H) and/or 
(L) of the Act is not eligible for an extension, change status, or 
readmission

[[Page 3993]]

to the United States under section 101(a)(15)(H) and/or (L) of the Act 
unless the alien has resided and been physically present outside the 
United States for the immediate prior 6 months.
* * * * *
    (15) * * *
    (ii) * * *
    (C) H-2A extension of stay. An extension of stay for the 
beneficiary of an H-2A petition may be authorized for a period of up to 
one year, but not beyond the validity of the temporary labor 
certification, except as provided for in 8 CFR 214.2(h)(5)(x).
    (D) H-2B extension of stay. For employment on Guam and for other 
groups requiring labor certification, an extension of stay for the 
beneficiary of an H-2B petition may be authorized for the validity of 
the labor certification or for a period of up to one year. For all 
other H-2B petitions, an extension of stay may be authorized for the 
petition validity period or for a period of up to one year. In all 
cases, the alien's total period of stay as an H-2B worker may not 
exceed 3 years, except that in the Virgin Islands, the alien's total 
period of stay may not exceed 45 days.
* * * * *
    (20) Debarments. Upon notification to USCIS that the Secretary of 
Labor has made a finding that the petitioning employer has violated the 
H-2B attestation requirements, the USCIS will not approve immigrant 
petitions under section 204 of the Act or nonimmigrant petitions under 
section 214(c) of the Act for at least the minimum period of time 
recommended by the Secretary of Labor.
* * * * *

    Dated: January 13, 2005.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 05-1240 Filed 1-26-05; 8:45 am]
BILLING CODE 4410-10-P