[Federal Register Volume 73, Number 30 (Wednesday, February 13, 2008)]
[Proposed Rules]
[Pages 8230-8247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-2532]


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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. 73, No. 30 / Wednesday, February 13, 2008 / 
Proposed Rules  

[[Page 8230]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214, 215 and 274a

[CIS No. 2428-07; Docket No. USCIS-2007-0055]
RIN 1615-AB65


Changes to Requirements Affecting H-2A Nonimmigrants

AGENCY: U.S. Citizenship and Immigration Services, U.S. Customs and 
Border Protection, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is proposing amendments to 
its regulations affecting temporary and seasonal agricultural workers 
within the H-2A nonimmigrant classification and their U.S. employers. 
This rule proposes to relax the current limitations on the ability of 
U.S. employers to petition unnamed agricultural workers to come to the 
United States and include multiple beneficiaries who are outside the 
United States on one petition. The rule proposes to revise the current 
limitations on agricultural workers' length of stay including: 
lengthening the amount of time an agricultural worker may remain in the 
United States after his or her employment has ended and shortening the 
time period that an agricultural worker whose H-2A nonimmigrant status 
has expired must wait before he or she is eligible to obtain H-2A 
nonimmigrant status again. This rule also proposes to provide for 
temporary employment authorization to agricultural workers seeking an 
extension of their H-2A nonimmigrant status through a different U.S. 
employer, provided that the employer is a registered user of the E-
Verify employment eligibility verification program. In addition, the 
rule proposes to modify the current notification and payment 
requirements for employers when an alien fails to show up at the start 
of the employment period, an H-2A employee's employment is terminated, 
or an H-2A employee absconds from the worksite. To better ensure the 
integrity of the H-2A program, this rule also proposes to require 
certain employer attestations, preclude the imposition of fees by 
employers or recruiters on prospective beneficiaries, preclude 
reconsideration of certain temporary labor certification denials, and 
bar H-2A status for nationals of countries consistently refusing or 
unreasonably denying repatriation of its nationals. These changes are 
necessary to encourage and facilitate the lawful employment of foreign 
temporary and seasonal agricultural workers.
    Finally, this rule proposes to establish a pilot program under 
which aliens admitted on certain temporary worker visas at a port of 
entry participating in the program must also depart through a port of 
entry participating in the program and present designated biographical 
information, possibly including biometric identifiers, upon departure. 
U.S. Customs and Border Protection will publish a Notice in the Federal 
Register designating which temporary workers must participate in the 
program, which ports of entry are participating in the program, which 
biographical and/or biometric information would be required, and the 
format for submission.

DATES: Written comments on this rule must be submitted on or before 
March 31, 2008 in order to be assured of consideration.
    Written comments on the Paperwork Reduction Act section of this 
rule must be submitted on or before April 14, 2008.

ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2007-0055, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Chief, Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529. To 
ensure proper handling, please reference DHS Docket No. USCIS-2007-0055 
on your correspondence. This mailing address may also be used for 
paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: Regulatory Management Division, 
U.S. Citizenship and Immigration Services, Department of Homeland 
Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 
20529. Contact Telephone Number (202) 272-8377.

FOR FURTHER INFORMATION CONTACT: Hiroko Witherow, Service Center 
Operations, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 111 Massachusetts Avenue, NW., Suite 3000, 
Washington, DC 20529, telephone (202) 272-8410.

SUPPLEMENTARY INFORMATION:

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
proposed rule. Comments that will provide the most assistance to the 
Department of Homeland Security (DHS), U.S. Citizenship and Immigration 
Services (USCIS), and U.S. Customs and Border Protection (CBP) 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.
    Instructions: All submissions received must include the agency name 
and DHS Docket No. USCIS-2007-0055 for this rulemaking. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov. Submitted comments 
may also be inspected at the Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529.

II. Background

    Over the years, U.S. employers have faced a shortage of U.S. 
workers who are able, willing, and qualified to fill agricultural jobs, 
and who would be available at the time and place needed to perform the 
work. To meet this need, U.S. employers have considered hiring foreign 
workers. However, before U.S. employers may hire such workers, 
immigration law requires that they first sponsor the workers by filing 
a petition based on their qualification within the

[[Page 8231]]

H-2A nonimmigrant classification. Immigration and Nationality Act (Act 
or INA) sec. 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a).

A. Description of the Current H-2A Nonimmigrant Program

    The H-2A nonimmigrant classification applies to aliens seeking to 
perform agricultural labor or services of a temporary or seasonal 
nature in the United States on a temporary basis. INA sec. 
101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a); see 8 CFR 
214.1(a)(2) (designation for H-2A classification). Under current 
regulations, employment of a seasonal nature is employment that is tied 
to a certain time of year by an event or pattern and requires labor 
levels far above those necessary for ongoing operations. 8 CFR 
214.2(h)(5)(iv). Employment is considered to be of a temporary nature 
where the employer's need to fill the position will last no longer than 
one year, absent extraordinary circumstances. Id.
    Aliens seeking H-2A nonimmigrant status must be petitioned for by a 
U.S. employer. However, prior to filing the petition, the U.S. employer 
must complete the temporary agricultural labor certification process 
with the Department of Labor (DOL) for the job opening the employer 
seeks to fill with an H-2A worker. This process determines: whether the 
proposed employment is for agricultural labor or services; whether it 
is open to U.S. workers; if qualified U.S. workers are available; the 
adverse impact, if any, on similarly employed U.S. workers of 
employment of a qualified alien; and whether employment conditions, 
including housing, meet applicable requirements. 8 CFR 214.2(h)(5)(ii). 
After receiving a temporary labor certification, the U.S. employer 
files Form I-129, ``Petition for Nonimmigrant Worker,'' with the 
appropriate USCIS office. See 8 CFR 214.2(h)(5)(i)(A). In rare 
instances, when domestic labor fails to appear at the worksite and DOL 
has denied the employer's temporary labor certification and appeal of 
the denial, USCIS may consider the written denial of appeal as a 
certification if it is filed with evidence that domestic labor is 
unavailable. Id.
    In order to meet its employment needs, an employer may petition for 
one or more H-2A workers. However, in the case of multiple 
beneficiaries, the total number of beneficiaries in the petition cannot 
exceed the number of positions indicated on the temporary labor 
certification, and all the beneficiaries on one petition must obtain a 
visa at the same consulate (or, if no visa is required, apply for 
admission at the same port of entry). 8 CFR 214.2(h)(5)(i)(B). Where 
the employer seeks to employ only one H-2A worker, the Form I-129 
submitted by the employer must name that worker. 8 CFR 
214.2(h)(5)(i)(C). If the employer includes multiple beneficiaries in 
the petition, the workers must be named unless they are unnamed in the 
DOL certification and are outside the United States. Id. The petition 
also must establish the temporary or seasonal nature of the employment 
and that the beneficiary meets the requirements in the temporary labor 
certification, including job and training requirements and any 
necessary post-secondary education or other formal training. 8 CFR 
214.2(h)(5)(v).
    The petitioner must make several petition agreements. The 
petitioner must: consent to allow access to the worksite where the 
labor will be performed; notify USCIS within twenty-four hours if an H-
2A worker absconds or if the authorized employment ends more than five 
days before the temporary labor certification document expires, and pay 
$10 in liquidated damages for each instance where the employer cannot 
demonstrate compliance with the notification requirement; and pay $200 
in liquidated damages for each instance where the employer cannot 
demonstrate that its H-2A worker either departed the United States or 
obtained authorized status based on another petition during the period 
of admission, or within five days of early termination (whichever comes 
first). 8 CFR 214.2(h)(5)(vi)(A).
    An H-2A worker's stay is limited by the term of the approved H-2A 
petition. 8 CFR 214.2(h)(5)(viii)(C). He or she may remain longer to 
engage in other qualifying temporary agricultural employment by 
obtaining an extension of stay. 8 CFR 214.2(h)(15)(ii)(C). However, his 
or her total period of stay in H-2A nonimmigrant status may not exceed 
three years. Id. An H-2A worker who has reached the three-year maximum 
period of stay may seek H-2A nonimmigrant status again, but only after 
remaining outside the United States for a six-month period. 8 CFR 
214.2(h)(5)(viii)(C).
    Significant absences can interrupt the accrual towards the three-
year cap of time spent as an H-2A worker. The H-2A worker can interrupt 
an accumulated stay of eighteen months or less by an absence from the 
United States of at least three months. Id. He or she can interrupt an 
accumulated stay of more than eighteen months by an absence from the 
United States of at least one-sixth of the accumulated stay. Id.
    Once an H-2A worker's petition has expired, the H-2A worker is 
allowed an additional ten-day period before he or she is required to 
depart the United States. 8 CFR 214.2(h)(5)(viii)(B). However, an H-2A 
worker whose three-year limit has not been reached may seek to extend 
his or her stay with the same employer or a new employer. He or she is 
employment authorized for not more than 240 days past the authorized 
period of stay if the same employer petitions for an extension of stay 
before expiration of the authorized period of stay. 8 CFR 
274a.12(b)(20). If a new employer files a request to extend the alien's 
stay in H-2A status, the alien is not employment authorized past the 
authorized period of stay and is not able to begin employment with the 
new employer until the petition is approved. 8 CFR 214.2(h)(2)(i)(D).
    USCIS will not grant H-2A nonimmigrant status to an alien who 
violated the conditions of H-2A status within the previous five years 
by remaining beyond the authorized period of stay or engaging in 
unauthorized employment. 8 CFR 214.2(h)(5)(viii)(A).

B. Limited Use of H-2A Nonimmigrant Classification

    Despite the availability of the H-2A nonimmigrant classification, a 
high percentage of the agricultural workforce is comprised of aliens 
who have no immigration status and are unauthorized to work. The 
Congressional Research Service Report to Congress, ``Farm Labor 
Shortages and Immigration Policy'' (Sept. 5, 2007), states that persons 
in the country illegally accounted for an estimated 37% of the domestic 
crop workforce in fiscal year (FY) 1994 to FY 1995. In FY 1997/FY 1998, 
this percentage increased to 52% out of the estimated 1.8 million 
workers employed on crop farms. By FY 1999/FY 2000, their proportion 
had increased to 55% before retreating to 53% in FY 2001/FY 2002.\1\
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    \1\ See also Research Report No. 8, U.S. Department of Labor 
Office of the Assistant Secretary for Policy Office of Program 
Economics (March 2000) (finding that in 1997-98, 52 percent of hired 
farm workers lacked work authorization, 22 percent were citizens and 
24 percent were lawful permanent residents).
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    Members of the public have cited what they consider to be 
unnecessarily burdensome regulatory restrictions placed on the H-2A 
nonimmigrant classification as one of the principal reasons why U.S. 
agricultural employers facing a shortage of qualified U.S. workers do 
not fully use the H-2A nonimmigrant classification to petition for 
temporary or seasonal agricultural

[[Page 8232]]

workers from abroad.\2\ Upon an examination of the regulatory 
provisions governing the H-2A nonimmigrant classification, USCIS has 
identified several requirements regarding the duration of the H-2A 
workers' authorized period of stay that add unnecessary burdens for 
both the petitioning employers and H-2A workers. The regulations 
include limitations on the use of unnamed and multiple beneficiaries in 
the petition, and employment authorization following a change in 
employers. The regulations also require certain employer agreements and 
include financial consequences for failure to comply. This proposed 
rule modifies these regulatory limitations and requirements. In so 
doing, USCIS anticipates that these changes will improve the utility of 
the H-2A nonimmigrant classification, so that this classification will 
be a more effective means for supplying a legal workforce to 
agricultural employers.
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    \2\ See Mexico-Migration: A Shared Responsibility. The U.S.-
Mexico Migration Panel Carnegie Endowment for International Peace 
and Instituto Tecnol[oacute]gico Aut[oacute]nomo de M[eacute]xico 
(2001); see also Washington, April M., ``Canada offers migrant tips; 
Colorado looks north of the border for ways to draw workers,'' Rocky 
Mtn. News 10 (Sep. 15, 2007) (quoting a farmer, ``There is a 
bottleneck at the federal level in approving work visas, causing 
real problems for farmers'').
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    To better ensure that the requirements proposed in this rule do not 
adversely affect H-2A workers, compromise national security, or 
undermine the integrity of the H-2A program, the rule also proposes a 
limited number of new terms and conditions on employers' participation 
in the program. First, the rule proposes to require an employer 
attestation regarding the scope of the H-2A employment and the use of 
recruiters to locate beneficiaries. Second, the rule proposes to 
provide for denial or revocation of the H-2A petition if an H-2A worker 
was charged a fee by the petitioner in connection with the employment. 
Third, the rule proposes to allow H-2A workers who are changing 
employers to begin work with the new petitioning employer before the 
change is approved by USCIS, but only if the new employer participates 
in USCIS' E-Verify program. The E-Verify program (successor to the 
Basic Pilot Program) provides employers with a free and electronic 
method for confirming the employment eligibility of their newly-hired 
employees. See Illegal Immigration Reform and Immigrant Responsibility 
Act of 1996 (IIRIRA) sec. 401-05, Pub. L. No. 104-208, 110 Stat. 3546 
(September 30, 1996), as amended (8 U.S.C.A. 1324a note). Fourth, this 
rule proposes to prohibit the approval of an H-2A petition for a 
national of a country that consistently refuses or unreasonably delays 
repatriation of its nationals who have been ordered removed from the 
United States. Finally, this rule proposes a program to strengthen the 
reporting system for temporary workers departing the United States at 
the conclusion of their authorized period of stay.

III. Proposed Changes

A. Consideration of Denied Temporary Agricultural Labor Certifications

    While current regulations allow USCIS, in limited circumstances, to 
approve H-2A petitions that are filed with denied temporary 
agricultural labor certifications, USCIS believes that this authority 
is of limited use and is proposing to remove it from the regulations. 
Current regulations permit USCIS to accept a written denial of an 
appeal of a denied temporary labor certification as a labor 
certification if the appeal denial is accompanied by evidence 
establishing that qualified domestic labor is unavailable to do the 
work. See 8 CFR 214.2(h)(5)(i)(A); \3\ see also 8 CFR 214.2(h)(5)(ii) 
(last sentence). USCIS believes that determinations as to the 
availability of U.S. workers are not within the expertise of USCIS, but 
instead are more appropriately made by DOL. Therefore, USCIS will 
remove this process from 8 CFR 214.2(h)(5)(i)(A) and (ii). The 
employer, however, is not left without recourse. If the employer can 
establish that domestic labor is unavailable, it may seek a new 
temporary labor certification from DOL.
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    \3\ Note that 8 CFR 214.2(h)(5)(i)(A) currently erroneously 
cites to section 216(e)(2) of the INA as the statutory authority for 
administrative appeals of denied temporary labor certifications. The 
correct statutory provision is section 218(e)(2) of the INA.
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B. Unnamed Beneficiaries in the Petition

    Currently, H-2A employers must name in the petition all the workers 
being sought (i.e., beneficiaries) unless unnamed in the temporary 
labor certification involving multiple beneficiaries. This requirement 
places an undue burden on employers. See 8 CFR 214.2(h)(5)(i)(C) 
(naming requirement). It also fails to accommodate the hiring practices 
of agricultural employers. An intervening event may preclude an 
employer from being able to continue to petition for the beneficiaries 
named in the temporary labor certification. This rule proposes to 
alleviate the problems encountered by employers when workers become 
unavailable by removing most of the constraints on an employer's 
ability to petition for unnamed beneficiaries and maintaining only the 
requirement that the petition include the names of those beneficiaries 
who are already in the United States.
    By removing from the current regulations the requirement to name 
beneficiaries outside of the United States on the petition, USCIS 
believes that agricultural employers would have more flexibility to 
recruit foreign workers that are actually interested in the position on 
the date of stated need. Since employers often start the temporary 
labor certification and petitioning processes several months ahead of 
the actual date of stated need, naming beneficiaries that far in 
advance increases the likelihood that those beneficiaries are 
unavailable to fill the positions. Conversely, if a beneficiary is 
already in the United States, USCIS believes that naming such 
beneficiaries is necessary because the granting of the petition will 
either confer a new immigration status or extend the status of a 
particular alien immediately upon approval, whereas prospective 
beneficiaries abroad still must undergo both a visa interview at a U.S. 
consulate and an inspection by a U.S. Customs and Border Protection 
officer upon arrival at a port of entry to the United States. Based on 
the proposed changes, if an employer wishes to petition for multiple 
beneficiaries, some of whom are in the United States and some of whom 
are outside the United States, the employer must name the beneficiaries 
who are in the United States, and only provide the number of 
beneficiaries who are outside the United States. This naming 
requirement would apply regardless of the number of beneficiaries on 
the petition or whether the temporary labor certification named 
beneficiaries.
    Rather than amend the applicable H-2A provision at 8 CFR 
214.2(h)(5)(i)(C), this rule proposes to incorporate these changes into 
the general provision at 8 CFR 214.2(h)(2)(iii), governing the naming 
of beneficiaries in H categories. USCIS believes that maintaining two 
separate provisions on the naming of beneficiaries unnecessarily 
complicates the regulations and results in confusion. Therefore, this 
rule proposes to remove the unnamed beneficiary requirements from 8 CFR 
214.2(h)(5)(i)(C) and revise the requirements in the general provision 
at 8 CFR 214.2(h)(2)(iii). This provision, as revised, would specify 
which H classifications must name beneficiaries in the petition and 
which do not need to name beneficiaries and under what circumstances. 
Note that

[[Page 8233]]

USCIS also is developing a separate rulemaking action to amend 
requirements for H-2B that may have additional impacts on H 
classifications.

C. Multiple Beneficiaries

    USCIS has determined that the current regulatory provision at 8 CFR 
214.2(h)(5)(i)(B) that permits petitioners to petition for multiple 
beneficiaries who are overseas only if all the beneficiaries will 
obtain a visa at the same overseas consulate or apply for admission at 
the same port of entry is no longer necessary. This rule proposes to 
eliminate this requirement from 8 CFR 214.2(h)(5)(i)(B). This 
requirement previously was necessary because, in the past, USCIS had to 
forward each approved petition to the consulate overseas where a 
beneficiary will apply for a visa. For petitions containing a request 
for multiple beneficiaries, the beneficiaries had to apply for their 
visas at the same consulate to ensure effective tracking and usage of 
available numbers in an approved petition. However, the U.S. Department 
of State recently implemented a new electronic system to effectively 
track visa issuance for specific petitions approved for multiple 
beneficiaries in real time regardless of the consulate location where a 
beneficiary may apply for a visa. Thus, the proposed change will 
benefit a prospective H-2A employer by permitting the employer to file 
only one petition with USCIS when petitioning for multiple H-2A 
beneficiaries from multiple countries. The benefit to the employer will 
be realized not only in terms of convenience but also from a financial 
standpoint since the employer will only be responsible for paying one 
petition filing fee.

D. Payment of Fees by Beneficiaries To Obtain H-2A Employment

1. Grounds for Denial or Revocation on Notice
    USCIS has found that certain job recruiters and U.S. employers are 
charging potential H-2A workers job placement fees in order to obtain 
H-2A employment. Such workers are coming to the United States to fill 
positions that U.S. workers are unwilling or unable to fill and are 
doing so in order to improve their own difficult economic circumstances 
at home. USCIS has learned that payment by these workers of job 
placement-related fees not only results in further economic hardship 
for them, but also, in some instances, has resulted in their effective 
indenture. In an effort to protect H-2A workers from such abuses, this 
rule proposes to provide USCIS with the authority to deny or revoke 
upon notice any H-2A petition if it determines (1) That the alien 
beneficiary has paid or has agreed to pay any fee or other form of 
compensation, whether directly or indirectly, to the petitioner, or (2) 
that the petitioning employer is aware that the alien beneficiary has 
paid or agreed to pay any facilitator, recruiter, or similar employment 
service, in connection with obtaining the H-2A employment. See proposed 
8 CFR 214.2(h)(5)(xi)(A); see also 8 CFR 214.2(h)(11)(iii) (revocation 
on notice). We understand that there may be circumstances where an 
alien beneficiary may seek to pay or otherwise compensate a recruiter, 
facilitator or similar employment service without the knowledge of the 
petitioner. By revoking or denying the petition in such circumstance, 
USCIS would be penalizing the alien beneficiary whose illegal actions 
should not be rewarded by continued stay in the United States, and 
deterring both aliens and recruiters from entering into such 
arrangements in the future. However, revocation or denial would also 
harm the petitioner as well, through loss of an employee. DHS solicits 
comments on appropriate administrative penalties in the event that 
USCIS determines that the alien beneficiary, without the knowledge of 
the petitioner, paid or agreed to pay a fee or any form of compensation 
to a facilitator, recruiter, or similar employment service, in 
connection with an offer or as a condition of H-2A employment.
    USCIS believes that this proposal will help minimize immigration 
fraud and protect against other abuses that have occurred when such 
aliens have been required to pay such employment fees, including 
petition padding (i.e., the filing of requests for more workers than 
needed), visa selling, and human trafficking. This proposal would not 
preclude the payment of any finder's or similar fee by the prospective 
employer to a recruiter or similar service, provided that such payment 
is not assessed directly or indirectly against the alien worker.
    To provide protection to H-2A workers who are in the United States 
based upon an approved petition that is later revoked pursuant to 
proposed 8 CFR 214.2(h)(5)(xi)(A), this rule proposes a thirty-day 
grace period during which time such workers may find new employment and 
apply for an extension of stay, or depart the United States. See 
proposed 8 CFR 214.2(h)(5)(xi)(B). During the thirty-day period, such 
workers would not be unlawfully present in the United States, but, 
instead, would be in an authorized period of stay. See INA sec. 
212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B). In general, the unlawful presence 
of an alien in the United States for more than 180 days results in the 
alien being inadmissible to the United States for a minimum of three 
years. Id.
    Further, to minimize the costs to H-2A workers who are affected by 
the revocation of a petition pursuant to proposed 8 CFR 
214.2(h)(5)(xi)(A), this rule also proposes to require employers to pay 
such workers' reasonable transportation expenses to return to their 
last place of foreign residence. Proposed 8 CFR 214.2(h)(5)(xi)(B). 
However, the rule would not require employers to be held liable for 
such expenses in cases where affected aliens obtain approval of an 
extension of H-2A stay based on a subsequent job offer with another 
employer during the thirty-day grace period, provided that the new 
employer states in the job offer that it will pay such reasonable 
return transportation expenses upon completion of the alien's new 
employment.
2. Employer Attestation
    USCIS recognizes that some H-2A petitioners, particularly those 
petitioning for the first time and without the benefit of counsel, may 
not appreciate the limitations on H-2A employment imposed by the 
regulations and the representations in the H-2A petition and the 
accompanying application for temporary labor certification. This rule 
proposes to require H-2A petitioners to include with their petitions an 
attestation, certified as true and accurate by the petitioner under 
penalty of perjury, that during the period of intended employment for 
which the petition is approved, the petitioner will not materially 
change the information provided on the Form I-129 and the temporary 
labor certification, including, but not limited to, the alien workers' 
duties, their place of employment, and the entities for which the 
duties will be performed. Proposed 8 CFR 214.2(h)(5)(i)(C). USCIS 
believes that this requirement will apprise petitioners of their 
responsibilities and obligations, and, at the same time, help prevent 
the employment of H-2A alien workers in a manner that conflicts with 
the representations upon which approval of the petition is based. In 
the event that a material change does occur in the terms and conditions 
of employment specified in the original petition, petitioners are 
currently obligated to file a new petition under 8 CFR 
214.2(h)(2)(i)(E).

[[Page 8234]]

    As an anti-fraud and worker protection measure to complement the 
proposed changes to 8 CFR 214.2(h)(5)(xi), USCIS is further proposing 
that the petitioning employer also include in its attestation a 
statement that it has not received, nor intends to receive, any fee, 
compensation, or other form of remuneration from the workers it intends 
to hire or from any person, agency or other entity. The petitioner 
would also be required to attest to whether it has used a facilitator, 
recruiter, or any other similar employment service, to locate foreign 
workers to fill the positions covered by the H-2A petition, and if so, 
to provide the names of such facilitators, recruiters, or placement 
services.

E. Petition Agreements and Liquidated Damages

    USCIS has found that the notification and liquidated damages 
requirements provided for in the current regulations at 8 CFR 
214.2(h)(5)(vi)(A) are onerous on employers and not effective in 
ensuring that H-2A workers maintain their nonimmigrant status. 
Therefore, USCIS is proposing to modify this provision by requiring 
petitioners to provide written notification to DHS in the following 
instances: an H-2A worker fails to report to work within five days of 
the date of the employment start date; the employment terminates more 
than five days early; or the H-2A worker absconds from the worksite. 
See proposed 8 CFR 214.2(h)(5)(vi)(B)(1). The rule proposes to lengthen 
the time within which the petitioner must meet the notification 
requirements from the current twenty-four hours to forty-eight hours. 
The rule also proposes to provide the method of notification via notice 
in the Federal Register, as well as the date on which the new 
notification requirements will take effect. To enforce the notification 
provision, the rule proposes to require employers to retain evidence 
(e.g., a photocopy) of the written notification for a one-year period. 
See proposed 8 CFR 214.2(h)(5)(vi)(B)(2).
    This rule further proposes to increase the liquidated damages for 
failing to meet the notification requirement from $10 to $500 per 
instance because the $10 amount is not a sufficient deterrent against 
noncompliance. See proposed 8 CFR 214.2(h)(5)(vi)(B)(3). However, the 
rule removes the current requirement for the petitioner to pay $200 in 
liquidated damages for failing to demonstrate that its H-2A worker 
either departed the United States or obtained authorized status based 
on another petition during the period of admission or within five days 
of early termination. USCIS believes that petitioners are not in a 
position to know or easily obtain this information.
    Additionally, the rule proposes to add a provision setting forth 
the circumstances in which an H-2A worker may be found to be an 
absconder, thus defining a term that would otherwise vary in 
interpretation from one employer to the next, possibly to the detriment 
of the alien worker. See proposed 8 CFR 214.2(h)(5)(vi)(E). The 
definition employs the same five-day period used to trigger a 
notification requirement when the alien does not show-up for work at 
the beginning of the petition period.
    In proposed 8 CFR 214.2(h)(5)(vi), USCIS is restructuring the 
entire paragraph. Substantive modifications were only made to the 
notification and liquidated damage requirements. Conforming amendments 
were made to 8 CFR 214.2(h)(5)(ix).

F. Violations of H-2A Status

    USCIS has determined that the current provision at 8 CFR 
214.2(h)(5)(viii)(A) precluding a new grant of H-2A status where the 
alien worker violated the conditions of H-2A status within the prior 
five years requires clarification. This provision only lists two types 
of status violations and fails to include all status violations. This 
rule clarifies that any violation of a condition of H-2A status 
committed within the five years prior to adjudication of the petition 
by USCIS will result in a denial of H-2A status.

G. Revocation of Labor Certification

    DOL published a rule that proposes to allow for the revocation of 
an approved temporary agricultural labor certification when an employer 
violates the terms of that labor certification. The proposal includes a 
means to contest a possible revocation of the labor certification. 
Accordingly, in this rule, USCIS is proposing to provide for the 
immediate and automatic revocation of the petition upon the revocation 
of the labor certification by DOL. See proposed 8 CFR 
214.2(h)(2)(11)(ii). Since the labor certification is a prerequisite 
for an H-2A petition, and the DOL proposed rule would provide for 
contesting revocation of the labor certification, USCIS need not engage 
in a separate review before the petition is revoked.

H. Prohibiting H-2A Petitions or Admissions for Nationals of Countries 
That Refuse Repatriation

    An alien worker who violates his or her status may be subject to 
administrative proceedings before an immigration judge to remove the 
alien from the United States. See INA sections 237(a)(1)(C), 239(a), 
240(a); 8 U.S.C. 1227(a)(1)(C), 1229(a), 1229a(a). A removal order 
typically includes the name of the country to which the alien is to be 
removed, which usually is the alien's country of nationality. In order 
to effectuate the removal order, DHS must ensure that the alien has the 
necessary travel documents (e.g., passport) to return to the named 
country and that the country agrees to receive the alien. DHS has faced 
an on-going problem of countries refusing to accept or unreasonably 
delaying the acceptance of their nationals who have been ordered 
removed. To combat this problem, Congress gave the Secretary of State 
the authority to discontinue the issuance of visas to citizens, 
subjects, nationals, and residents of a country if DHS notifies the 
Secretary of State that the government of that country consistently 
denies or unreasonably delays their return. INA sec. 243(d), 8 U.S.C. 
1253(d); see also IIRIRA sec. 307.
    In an effort to further alleviate the problem, this rule proposes 
to preclude USCIS from approving a petition filed on behalf of one or 
more aliens from countries determined by the Secretary of Homeland 
Security to consistently deny or unreasonably delay the prompt return 
of their citizens, subjects, nationals or residents. See proposed 8 CFR 
214.2(h)(5)(i)(F); see also INA secs. 214(a)(1), 215(a)(1) and 243(d); 
8 U.S.C. 1184(a)(1), 1185(a)(1), and 1243(d). At the time that DHS 
makes such determination, DHS expects in most cases to notify the 
Secretary of State under INA 243(d) of the determination so that 
applications for H-2A visas from citizens, subjects, nationals, and 
residents of that country may be lawfully denied on that basis. The 
Secretary of Homeland Security will periodically review determinations 
that countries have consistently denied or unreasonably delayed 
acceptance of their nationals to ensure the determinations are still 
justified. These provisions are intended to encourage more nations to 
promptly accept the return of nationals subject to a final order of 
removal.
    More generally, DHS expects that the proposals in this rule 
intended to increase the flexibility and attractiveness of the H-2A 
visa program, complemented by the streamlining proposals the Department 
of Labor is making in its H-2A rule, will increase the popularity of 
the program with U.S. agricultural employers. But even though a more 
workable H-2A program would mean fewer aliens entering the country 
illegally to seek work, it could also lead

[[Page 8235]]

to an increase in the number of H-2A workers that abscond from their 
workplace or overstay their immigration status. The repatriation 
proposal outlined above is designed, in part, to address this 
challenge. DHS hereby invites comments from the public on additional or 
alternative approaches, for example by restricting eligibility to 
nationals of countries that provide the most cooperation to the United 
States in administering the program, rather than by excluding those 
whose governments provide the least cooperation. DHS is particularly 
interested in additional ways to promote cooperation by foreign 
governments in matters of security, particularly in connection with 
travel and immigration, such as the country's willingness to share 
passport information and criminal records of aliens who are seeking 
admission to, or are present in, the United States under this program.

I. Period of Admission

    This rule proposes to extend the H-2A admission period following 
the expiration of the H-2A petition from not more than ten days to an 
absolute thirty-day period. See proposed 8 CFR 214.2(h)(5)(viii)(B). 
The purpose of this post-petition period is to provide the H-2A worker 
enough time to prepare for departure or apply for an extension of stay 
based on a subsequent offer of employment. As discussed below, USCIS is 
proposing to increase the mobility of aliens from one H-2A employer to 
another (see proposed 8 CFR 274a.12(b)(21)). USCIS believes that the 
change to a thirty-day period will facilitate this new benefit.
    The proposed rule also corrects 8 CFR 214.2(h)(5)(viii)(B) by 
removing an incorrect cross-reference to 8 CFR 214.2(h)(5)(ix)(C). In 
its place, a cross-reference to 8 CFR 214.2(h)(5)(viii)(B) should be 
included in 8 CFR 214.2(h)(5)(viii)(C).

J. Interruptions in Accrual Towards 3-Year Maximum Period of Stay

    An alien's total period of stay in H-2A nonimmigrant status may not 
exceed three years. 8 CFR 214.2(h)(15)(ii)(C). However, certain periods 
of time spent outside the United States are deemed to ``stop the 
clock'' towards the accrual of the three-year limit. 8 CFR 
214.2(h)(5)(viii)(C). USCIS has determined that the length of time that 
the current regulations require before an H-2A's three-year period of 
stay is deemed interrupted is unnecessarily long. This results in H-2A 
workers reaching the three-year cap on their authorized period of stay 
much sooner than reasonably anticipated by both the workers and their 
employers, causing disruptive breaks in employment and difficulty for 
employers to meet their time-sensitive agricultural requirements. This 
rule proposes to reduce from three months to forty-five days the 
minimum period spent outside the United States that would be considered 
interruptive of accrual of time towards the three-year limit, where the 
accumulated stay is eighteen months or less. See proposed 8 CFR 
214.2(h)(5)(viii)(C). If the accumulated stay is longer than eighteen 
months, this rule proposes to simplify the calculation of the 
interruptive period required from at least one-sixth of the period of 
accumulated stay to two months. Id. These proposed reductions would 
reduce the amount of time employers are required to be without the 
services of needed workers and enable the employers to have a set 
timeframe from which they can better monitor compliance with the terms 
and conditions of H-2A status.

K. Post-H-2A Waiting Period

    Once an H-2A worker has reached the three-year ceiling on H-2A 
nonimmigrant status, current regulations require the worker to wait six 
months outside the United States prior to seeking H-2A nonimmigrant 
status again (or any other nonimmigrant status based on agricultural 
activities). 8 CFR 214.2(h)(5)(viii)(C). USCIS believes that a shorter 
waiting period would better meet the needs of agricultural employers in 
a time-sensitive industry experiencing such a shortage of U.S. workers. 
This rule proposes to reduce the required absence period to three 
months, in order to reduce the amount of time employers would be 
required to be without the services of needed workers, while not 
offending the fundamental temporary nature of employment under the H-2A 
program.

L. Extending Status With New Employer and Participation in E-Verify

    This proposed rule would permit H-2A workers to continue to be 
employment authorized while awaiting an extension of H-2A status based 
on a petition filed by a new employer accompanied by an approved labor 
certification. Proposed 8 CFR 274a.12(b)(21). Specifically, the new 
provision would authorize an individual who has filed an application 
for an extension of stay during his or her period of admission to be 
employed by the new, petitioning employer for a period not to exceed 
120 days beginning from the date of the notice that USCIS issues to 
acknowledge that it has received the application for the extension of 
stay. USCIS issues such notices on Form I-797, ``Notice of Action.'' 
The notice date on Form I-797 is called the ``Received Date.'' Note 
that if the application for the extension of stay is denied by USCIS 
prior to the expiration of this 120-day period, employment 
authorization would automatically terminate upon notification of the 
denial decision.
    The proposed rule places one condition on this employment 
authorization benefit: The new H-2A employer must be a registered user 
in good standing (as determined by USCIS) of USCIS' E-Verify program. 
If the new employer does not meet this condition, proposed 8 CFR 
274a.12(b)(21) would not apply, and the alien worker would not be 
authorized to work for the new employer until USCIS grants the 
extension of stay application. USCIS believes that this proposed 
employment authorization provision will create an incentive for 
agricultural employers to enroll in the E-Verify program, thereby 
reducing opportunities for aliens without employment authorization to 
work in the agricultural sector and helping protect the integrity of 
the H-2A program.
    This proposed rule makes conforming amendments to 8 CFR 
214.2(h)(2)(i)(D) (prohibiting an alien from commencing employment 
until the new employer's petition is approved) and includes a cross-
reference to proposed 8 CFR 274a.12(b)(21). It also includes a cross-
reference to section 214(n) of the INA, 8 U.S.C. 1184(n). This 
statutory provision applies to aliens within the H-1B specialty worker 
classification and, in general, permits such aliens to work for a new 
employer before such an employer's petition is approved. The addition 
of section 214(n) of the INA, 8 U.S.C. 1184(n), in this proposed 
rulemaking is made so that the regulations conform to the statute.

M. Miscellaneous Changes to H-2A Program

1. Extensions of Stay Without New Temporary Labor Certifications
    USCIS regulations currently provide that, under certain 
circumstances, an application for an extension of stay for an H-2A 
nonimmigrant worker need not contain an approved temporary labor 
certification. 8 CFR 214.2(h)(5)(x). This rule proposes revisions to 
this provision to improve its readability; it proposes no substantive 
changes.
2. Filing Locations
    To improve the efficient processing of H-2A nonimmigrant petitions, 
USCIS recently established special mailing

[[Page 8236]]

addresses at the USCIS California Service Center for all H-2A petition 
filings. The current regulations, however, only permit petitions to be 
filed with the USCIS Service Center that has jurisdiction in the area 
where the alien will perform services (or receive training) except as 
provided for elsewhere in the regulations or by a designation specified 
in a notice published in the Federal Register. 8 CFR 214.2(h)(2)(i)(A). 
USCIS has found that effecting changes to filing procedures by notice 
in the Federal Register creates an unnecessary obstacle to the timely 
implementation of petition processing improvements. Such changes would 
be more timely conveyed to the public via the petition's form 
instructions and USCIS's Web site. Therefore, this rule proposes to 
remove the Federal Register notice requirement at 8 CFR 
214.2(h)(2)(i)(A) and instead provides that the form instructions will 
contain information regarding appropriate filing locations for these 
nonimmigrant visa petitions.

N. USCIS Policy Applicable to H-2A Sheepherders

    For a number of years, the Immigration and Naturalization Service 
(INS) and now USCIS have refrained from applying the three-year maximum 
period of stay to H-2A aliens who work as sheepherders. See Memorandum 
from INS Assistant Commissioner John R. Schroeder to Northern Service 
Center Director James M. Bailey, ``Limits of Stay for H-2A Sheepherders 
under 8 CFR 214.2(h)(5)(viii)(C)'' (Oct. 31, 1991) (referring to Letter 
from INS Commissioner Alan Nelson to Senator Alan K. Simpson (Nov. 11, 
1987)) (stating that a 6-month absence from United States is not 
required of H-2A sheepherders). As a result, H-2A aliens working as 
sheepherders who have reached the three-year maximum period of stay 
have been able to commence a new three-year period of stay in H-2A 
status without ever departing and remaining outside the United States 
for six months. See 8 CFR 214.2(h)(5)(viii)(C) (specifying 6-month 
departure requirement). While USCIS recognizes the special nature of 
this unique type of agricultural work, including the need to herd sheep 
over extensive expanses of open range for long periods of time, USCIS 
has concluded that its policy of exempting H-2A sheepherders from the 
six-month departure requirement is inconsistent with the parameters of 
the H-2A classification. Those parameters require that H-2A workers 
have a residence in a foreign country that they have no intention of 
abandoning, and perform agricultural labor or services in the United 
States on a temporary basis. Without imposing a meaningful departure 
after the three-year maximum period of stay has been reached, USCIS has 
found that H-2A sheepherders' stay is not truly temporary.
    Therefore, USCIS proposes to impose on H-2A sheepherders the same 
departure requirement applicable to all H-2A workers. However, before 
doing so, USCIS is soliciting comments from the public regarding this 
change in policy. Under the proposed change, USCIS would not take 
action against individuals who have already been admitted in H-2A 
classification to engage in sheepherding activities. Such individuals, 
however, would be required to depart from the United States at the end 
of their period of admission in H-2A status and remain outside of this 
country for the requisite time period (six months under the current 
regulation; three months under the proposed rule) before being eligible 
to obtain H-2A status again. See INA sec. 101(a)(15)(H)(ii)(A), 8 
U.S.C. 1101(a)(15)(H)(ii)(A); 8 CFR 214.2(h)(5)(iv).

O. Land Border Exit System Pilot

    The Secretary of Homeland Security is authorized to prescribe 
conditions for the admission of nonimmigrant aliens under section 214 
of the INA. Section 235 of the INA provides for the inspection of 
applicants for admission. Pursuant to 8 CFR 235.1(h)(1), nonimmigrant 
aliens who are admitted to the United States, unless otherwise exempt, 
are issued Form I-94, ``Arrival/Departure Record,'' as evidence of the 
terms of admission. Once admitted into the country, nonimmigrant aliens 
are required to comply with all the conditions of their stay, depart 
the United States before the expiration of the period of authorized 
stay, and surrender the departure portion of the Form I-94 upon 
departure from the United States. Section 215 of the INA provides the 
authority for departure control for any person departing from the 
United States. Additionally, 8 CFR part 215 provides the regulations 
for controls of aliens departing from the United States. Specifically, 
8 CFR 215.2 allows for DHS, at its discretion, to require any alien 
departing from the United States to be examined under oath and to 
submit for official inspection all documents in the alien's possession.
    Available statistics indicate that a significant number of 
nonimmigrant aliens either do not turn in their Form I-94 upon 
departure or overstay their authorized period of stay. DHS intends to 
strengthen its departure control record keeping system. On August 10, 
2007, the Administration announced that it would establish a new land-
border exit system for guest workers, starting on a pilot basis. In 
order to ensure that temporary workers depart the United States within 
the authorized period, DHS is proposing to institute a land-border exit 
system for H-2A guest workers on a pilot basis. Under the proposed 
program, an alien admitted on an H-2A visa at a port of entry 
participating in the program must also depart through a port of entry 
participating in the program and present designated biographic and/or 
biometric information upon departure at the conclusion of their 
authorized period of stay. CBP would publish a Notice in the Federal 
Register designating which ports of entry are participating in the 
program, which biographic and/or biometric information would be 
required, and the format for submission of that information by the 
departing H-2A workers. The exit pilot program would allow DHS to 
ensure that the H-2A workers subject to this pilot program have 
departed from the United States when their authorization expires and 
would provide a foundation for the comprehensive land border exit 
system for guest workers proposed by the Administration in August 2007. 
DHS requests comments on the establishment of the proposed pilot 
program. DHS also solicits comments on whether to include H-2B workers 
in the exit pilot program. (The H-2B nonimmigrant classification 
applies to foreign workers performing nonagricultural temporary labor 
or services in the United States. INA sec. 101(a)(15)(H)(ii)(b), 8 
U.S.C. 1101(a)(15)(H)(ii)(b); 8 CFR 214.1(a)(2) (H-2B classification 
designation)).
    DHS previously conducted exit pilot programs at selected air and 
sea ports of entry through United States Visitor and Immigrant Status 
Indicator Technology (US-VISIT) Program. See 69 FR 46556. Those pilots 
began in August 2004 and concluded in May 2007. The pilot program exit 
system proposed under this rule will utilize any applicable lessons 
learned from the US-VISIT air and sea exit pilot program. DHS will 
continue to coordinate these screening programs to ensure both security 
and efficiency of the programs.

IV. Rulemaking Requirements

A. Regulatory Flexibility Act-Initial Regulatory Flexibility Analysis

    The H-2A program establishes a means for agricultural employers who 
anticipate a shortage of domestic workers to bring nonimmigrant foreign

[[Page 8237]]

workers to the United States to perform agricultural labor or services 
of a temporary or seasonal nature. U.S. employers have historically 
faced a shortage of domestically available workers for seasonal 
agricultural jobs. Many farm workers also in America lack proper work 
authorization and immigration status. In addition, the requirements 
that Federal labor and immigration authorities impose on farmers and 
agribusinesses to obtain H-2A workers are generally felt to be overly 
burdensome. Therefore, USCIS is proposing changes intended to encourage 
and facilitate the lawful employment of foreign temporary and seasonal 
agricultural workers.
1. Description of and, Where Feasible, an Estimate of the Number of 
Small Entities to Which the Proposed Rule Will Apply
a. Regulated Entities
    USCIS has concluded that the entities affected by this rule are 
generally categorized as small. By and large this rule applies to farms 
engaged in the production of livestock, livestock products, field 
crops, row crops, tree crops, and various other enterprises. It does 
not apply to support activities for agriculture. The industry affected 
by this rule, as described in the North American Industry 
Classification System (NAICS), as encompassing NAICS subsectors 111, 
Crop Production, and 112, Animal Production.
b. Number of Small Entities to Which the Proposed Rule Will Apply
    USCIS estimates that it will receive approximately 6,300 petitions 
per year for H-2A workers with many farms submitting multiple 
petitions. About 5,000 of those are expected to be submitted by small 
entities. The number of regulated firms represents about 0.3 percent of 
all farmers and the number of H-2A employees make up about 9.3 percent 
of all farm workers. Finally, about 550 sheep ranchers (an unknown 
number but presumed majority of which are small entities) are expected 
to be directly affected by this proposed rule as a result of the 
proposed changes that are specific to sheepherders.
2. Description of the Projected Reporting, Recordkeeping and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities That Will Be Subject to the Requirement 
and the Type of Professional Skills Necessary for Preparation of the 
Report or Record
a. Paperwork Reduction Act
    The proposed rule adds no ``reporting'' or ``recordkeeping'' 
requirements within the meaning of the Paperwork Reduction Act; thus 
the rule does not require professional skills for the preparation of 
``reports'' or ``records'' under that Act.
b. New Reporting Requirement
    The proposed rule would impose new reporting requirements on H-2A 
employers, including the time frame for reporting, the mechanisms for 
reporting, the amount of liquidated damages for failure to comply, and 
defenses for failure to comply. This rule proposes to announce via 
notice published in the Federal Register appropriate notification 
requirements and assesses liquidated damages for failure to comply with 
the notification requirements at $500 per violation. DHS has no basis 
for estimating the cost of this new requirement on H-2A employers. 
However, DHS believes that the occurrence of non-compliance is not 
prevalent enough to affect a substantial number of the affected 
entities. However, the agency has requested and seeks further comment 
on the actual costs or expenditures, if any, of impact on any one firm 
that is assessed liquidated damages as a result of being found to be in 
violation of this new requirement and how that impact may differ or 
vary for small entities.
3. Identification of Federal Rules That May Duplicate, Overlap or 
Conflict With the Proposed Rule
    DHS is unaware of any duplicative, overlapping, or conflicting 
federal rules. As noted below, DHS seeks comments and information about 
any such rules, as well as any other state, local, or industry rules or 
policies that impose similar requirements as those in this proposed 
rule.
4. Description of Any Significant Alternatives to the Proposed Rule 
That Accomplish the Stated Objectives of Applicable Statutes and That 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities, Including Alternatives Considered, Such as: (1) Establishment 
of Differing Compliance or Reporting Requirements or Timetables That 
Take into Account the Resources Available to Small Entities; (2) 
Clarification, Consolidation, or Simplification of Compliance and 
Reporting Requirements Under the Rule for Such Small Entities; (3) Use 
of Performance Rather Than Design Standards; (4) Any Exemption From 
Coverage of the Rule, or Any Part Thereof, for Such Small Entities
    Throughout the development of the proposed rule DHS has made every 
effort to gather information regarding the economic impact of the 
rule's requirements on all operators, including small entities. 
Questions for public comment regarding the costs and benefits 
associated with the proposed rule with respect to how operators, 
including small entities, can comply with the rule's requirements are 
included in this part of the rule.
5. Questions For Comment To Assist Regulatory Flexibility Analysis
    Please provide comment on any or all of the provisions in the 
proposed rule with regard to:
    a. The impact of the provision(s) (including any benefits and 
costs), if any; and
    b. What alternatives, if any, DHS should consider, as well as the 
costs and benefits of those alternatives, paying specific attention to 
the effect of the rule on small entities in light of the above 
analysis. In particular, please provide the above information with 
regard to the following sections of the proposed rule:
    i. The new reporting requirements on H-2A employers, including the 
time frame for reporting, the mechanisms for reporting, the amount of 
liquidated damages for failure to comply, and defenses for failure to 
comply in 8 CFR 214.2(h)(2)(vi)(B)(2).
    ii. The requirement for H-2A sheepherders to have the same 
departure requirement applicable to all H-2A workers under 8 CFR 
214.2(h)(5)(viii)(C) (specifying 6-month departure requirement).
    iii. Any other requirement not mentioned above.
    c. Costs to ``implement and comply'' with the rule including 
expenditures of time and money for any employee training; attorney, 
computer programmer, or other professional time;

[[Page 8238]]

preparing relevant materials; processing materials, including, 
materials or requests for access to information; and recordkeeping.
    Please describe ways in which the rule could be modified to reduce 
any costs or burdens for small entities consistent with the Immigration 
and Nationality Act's requirements.
    Please describe whether and how technological developments could 
reduce the costs of implementing and complying with the rule for small 
entities or other operators.
    Please provide any information quantifying the economic benefits 
of:
    a. Reducing delays in the petition, application, and approval 
process.
    b. Reducing the time required for an H-2A worker to be out of the 
country, allowing more time for departure after the visa has expired, 
and allowing for an extension of stay while a new petition is pending.
    c. Encouraging employers who currently hire seasonal agricultural 
workers who are not properly authorized to work in the United States to 
replace those workers with legal workers.
    d. Minimize immigration fraud and protect against abuses that occur 
when aliens are required to pay employment fees.
    Please identify all relevant federal, state or local rules that may 
duplicate, overlap or conflict with the proposed rule. In addition, 
please identify any industry rules or policies that already require 
compliance with the requirements of the DHS proposed rule.

B. Provisions to Which the Regulatory Flexibility Act Does Not Apply

    CBP is also seeking comments through this rule with respect to a 
pilot program that would require that aliens admitted on certain 
temporary worker visas at a port of entry must depart through a port of 
entry participating in the program. Although there may be costs 
associated with participation in this program, the aliens impacted by 
this portion of the rule are not considered ``small entities,'' as that 
term is defined in 5 U.S.C. 601(6). Since the regulation will require 
the alien to comply with the pilot program, rather than placing a 
requirement on the employers, the employers are not directly impacted 
by this proposed rule. Employers, including small entities, are free to 
offer assistance to their H-2A workers in complying with this 
requirement if they choose to do so. However, the employer's assumption 
of any costs inherent with complying with this requirement on behalf of 
their workers is voluntary and, therefore, not subject to the 
Regulatory Flexibility Act.

C. 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.

D. 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.

E. Executive Order 12866

    This rule has been designated as significant under Executive Order 
12866. Thus, under section 6(a)(3)(C) of the Executive Order, USCIS is 
required to prepare an assessment of the benefits and costs anticipated 
to occur as a result of this regulatory action and provide the 
assessment to the Executive Office of the President, Office of 
Management and Budget, Office of Information and Regulatory Affairs.
    In summary, this rule proposes several changes to the H-2A visa 
program that USCIS believes are necessary to encourage and facilitate 
the lawful employment of foreign temporary and seasonal agricultural 
workers. There are no additional regulatory compliance requirements to 
be added that will cause a detectable increase in costs for 
participating firms. Costs of compliance will not be changed by this 
proposed rule. Volume of applications may increase slightly, but the 
burden of compliance both in time and fees will not increase above that 
currently imposed. Qualitatively, this rule will benefit applicants by:
     Reducing delays caused by IBIS checks holding up the 
petition application process.
     Reducing disruption of the life and affairs of H-2A 
workers in the United States.
     Protecting laborers' rights by precluding payment of fees 
by the alien.
     Preventing the filing of requests for more workers than 
needed, visa selling, coercion of alien workers and their family 
members, or other practices that exploit workers and stigmatize the H-
2A program.
     Encouraging employers who currently hire seasonal 
agricultural workers who are not properly authorized to work in the 
United States to replace those workers with legal workers.
     Minimizing immigration fraud and human trafficking.
    The H-2A program establishes a means for agricultural employers who 
anticipate a shortage of domestic workers to bring nonimmigrant foreign 
workers to the United States to perform agricultural labor or services 
of a temporary or seasonal nature. This rule is being promulgated as 
part of the reform process to make changes that are intended to provide 
agricultural employers with an orderly and timely flow of legal workers 
while protecting laborers' rights.

F. Temporary Alien Farm Workers: The Current H-2A Program

    The H-2A nonimmigrant classification applies to aliens who are 
coming to the United States temporarily to perform agricultural labor 
or services of a temporary or seasonal nature. Seasonal employment is 
tied to a certain time of year that requires labor above regular 
operations. Temporary labor means the employer's need will last no 
longer than one year.
    Aliens seeking H-2A nonimmigrant status first must be petitioned by 
a U.S. employer, after the employer has completed a temporary 
agricultural labor certification process with the Department of Labor 
(DOL). DOL determines whether employment is agricultural, whether it is 
open to U.S. workers, if qualified U.S. workers are available, the 
adverse impact of employment of a qualified alien, and whether 
employment conditions, including housing, meet applicable requirements. 
The U.S. employer then files Form I-129, ``Petition for Nonimmigrant 
Worker,'' which must name one or more alien beneficiaries; if multiple 
beneficiaries, they may be unnamed if unnamed in the DOL certification 
and outside the United States. The petition must establish the 
temporary, seasonal employment and that the beneficiary meets job and 
training, post-secondary education or other formal training 
requirements if necessary.
    H-2A nonimmigrant status is valid for a total of three years, but 
can be renewed after the alien remains outside

[[Page 8239]]

the United States for a six-month period. The H-2A nonimmigrant can 
interrupt an accumulated stay of eighteen months or less by an absence 
from the United States of at least three months. He or she can 
interrupt an accumulated stay of more than eighteen months by absence 
from the United States of at least one-sixth of the accumulated stay. 
Once an H-2A nonimmigrant's authorized period of stay has expired, they 
have a ten-day grace period before being required to leave the United 
States. However, an H-2A nonimmigrant whose three-year limit has not 
been reached can be employment authorized for another 240 days past the 
authorized period of stay if requested by the same employer. If for a 
new employer, employment will not be authorized past the authorized 
period of stay until the petition is approved. H-2A nonimmigrant status 
is not approved for an alien who violated the conditions of H-2A status 
within the previous five years by remaining beyond the authorized 
period of stay or engaging in unauthorized employment.

V. Full Regulatory Impact Assessment

    Over the years, U.S. employers have faced a shortage of available 
U.S. workers who are able, willing, and qualified to fill agricultural 
jobs, and who would be available at the time and place needed to 
perform the work. To meet this need, U.S. employers have considered 
hiring foreign workers. U.S. law requires that they first sponsor the 
workers by filing a petition based on their qualification within the H-
2A nonimmigrant classification.

1. Unauthorized Workers

    Estimates from many different government and non-government sources 
suggest that up to 70% of farmworkers in America lack proper work 
authorization and immigration status.\4\ The United States Department 
of Labor reports that in 1997 and 1998, 52 percent of hired farmworkers 
lacked work authorization, 22 percent were citizens and 24 percent were 
lawful permanent residents.\5\
---------------------------------------------------------------------------

    \4\ Regelbrugge, Craig J., American Nursery & Landscape 
Association. Co-chair, Agriculture Coalition for Immigration Reform, 
speech given at USDA Agricultural Outlook Conference, American 
Agriculture And Immigration Reform: An Industry Perspective, March 
1, 2007.
    \5\ Research Report No. 8, U.S. Department of Labor Office of 
the Assistant Secretary for Policy, Office of Program Economics 
(March 2000).
---------------------------------------------------------------------------

2. Insufficient Labor Pool

    The H-2A temporary agricultural program establishes a means for 
agricultural employers who anticipate a shortage of domestic workers to 
bring nonimmigrant foreign workers to the U.S. to perform agricultural 
labor or services of a temporary or seasonal nature. Before USCIS can 
approve an employer's petition for such workers, the employer must file 
an application with the Department of Labor stating there are not 
sufficient workers who are able, willing, qualified, and available, and 
the employment of aliens will not adversely affect the wages and 
working conditions of similarly employed U.S. workers.
    Labor concerns are prevalent in areas where the agricultural 
industry is dependent on seasonal labor. For example, the California 
Farm Bureau Federation estimated that farm labor shortages resulted in 
$85 million in losses to its members in 2006.\6\ Also, a 2007 survey of 
Wisconsin dairy producers cited an ample labor supply as a main 
limiting factor in the future of the survey subjects' farming 
operations.\7\ Some commenters believe the requirements that Federal 
labor and immigration authorities impose on farmers and agribusinesses 
to obtain H-2A workers are overly burdensome. Others suggest that 
excessive bureaucratic delays by the responsible agencies in approving 
worker petitions contribute to the inability to attract sufficient 
workers.\8\ A few sources feel the shortage of farm workers has been 
exacerbated by tighter security at the Mexican border.\9\ Therefore, 
whether there is an ample supply of farm workers is a major concern in 
agricultural communities. In short, there is fairly widespread 
agreement that there is a problem in the seasonal agricultural worker 
program that needs to be addressed in some fashion.
---------------------------------------------------------------------------

    \6\ Farm Labor Shortages, Mechanization, Rural Migration News, 
Vol. 14 No. 4 (October 2007).
    \7\ 2007 Dairy Producer Survey, USDA, National Agricultural 
Statistics Service (July 2007).
    \8\ Washington, April M., Canada offers migrant tips; Colorado 
looks north of the border for ways to draw workers Sep. 15, 2007 
Rocky Mtn. News 10 (quoting a farmer, ``There is a bottleneck at the 
federal level in approving work visas, causing real problems for 
farmers,'').
    \9\ Mountain State Reporter, United States Department of 
Agriculture, National Agricultural Statistics Service, West Virginia 
Department of Agriculture, Vol., 19, no. 9 (Sept. 2006).
---------------------------------------------------------------------------

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (P.L. 104-121), requires Federal agencies to conduct a regulatory 
flexibility analysis that describes the impact of the proposed rule on 
small entities whenever an agency is publishing a notice of proposed 
rulemaking. In accordance with the RFA, this section discusses the 
changes proposed in the subject rule and analyzes whether any of the 
changes entail compliance requirements with a significant economic 
impact on a substantial number of small entities requiring publication 
of an Initial Regulatory Flexibility Analysis.
1. Regulated Entities
a. Agriculture Employment.
    The H-2A nonimmigrant classification applies to aliens seeking to 
perform agricultural labor or services of a temporary or seasonal 
nature in the United States on a temporary basis. The work must be 
agricultural in nature. Table 1 \10\ below summarizes the total number 
of farm workers in the most recent 5 calendar years and their average 
hourly wages in those years.
---------------------------------------------------------------------------

    \10\ U.S. Department of Agriculture, National Agricultural 
Statistics Service, Statistical Bulletin 1007, Statistical 
Highlights of U.S. Agriculture for 2006 and 2007, October 2007, 
http://www.nass.usda.gov/Publications/Statistical_Highlights/2007/2007stathi.txt.

                                Table 1.--Farm Workers, United States, 2002-2006
----------------------------------------------------------------------------------------------------------------
                                                                      Average annual wages (Dollars per hour)
                                                   Total number  -----------------------------------------------
                      Year                         of workers in                                     Field and
                                                     thousands      All workers    Field workers     livestock
                                                                                                      workers
----------------------------------------------------------------------------------------------------------------
2002............................................           885.7            8.81            8.12            8.18
2003............................................           836.0            9.08            8.31            8.42
2004............................................           825.2            9.23            8.45            8.56
2005............................................           780.0            9.51            8.70            8.84
2006............................................           751.9            9.87            9.06            9.15
----------------------------------------------------------------------------------------------------------------


[[Page 8240]]

    The H-2A program is used mainly by farms engaged in the production 
of livestock, livestock products, field crops, row crops, tree crops, 
and various other enterprises. The affected industries do not include 
support activities for agriculture.\11\ Therefore, in accordance with 
the RFA, USCIS has identified the industry affected by this rule as 
described in the North American Industry Classification System (NAICS) 
as encompassing NAICS subsectors 111, Crop Production, and 112, Animal 
Production.\12\
---------------------------------------------------------------------------

    \11\ A few larger Farm Labor Contractors and Crew Leaders (NAICS 
Code 115115) and Custom Harvesting Operations (NAICS 115113) are 
believed to use the H-2A program to meet their client's seasonal 
needs, but the objectives of the program and this rule are focused 
on the independent producer.
    \12\ U.S. Small Business Administration, Table of Small Business 
Size Standards, http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf.
---------------------------------------------------------------------------

b. Number Affected
    In fiscal year 2007 USCIS received 6,212 Form I-129 petitions for 
H-2A employees, and approved petitions for 78,089 H-2A workers.\13\ In 
fiscal year 2006, USCIS received 5,667 Form I-129 petitions and 
approved 5,448 of them for 56,183 workers. Also, in fiscal year 2006, 
6,717 employers requested certification from the Department of Labor 
(DOL) for 64,146 H-2A workers, and for those workers, the United States 
Department of State (DOS) issued 37,149 H-2A visas. In fiscal year 
2005, USCIS approved Form I-129 petitions for 49,229 workers, 6,725 
employers requested certification from the Department of Labor for 
50,721 employees, and 31,892 visas were issued by DOS.\14\
---------------------------------------------------------------------------

    \13\ These are not all new employees or entrants to the United 
States. This number includes petitions approved for an extension or 
change of employer that are not segregated for reporting purposes.
    \14\ http://www.foreignlaborcert.doleta.gov/.
---------------------------------------------------------------------------

    Thus, based on recent results, USCIS estimates that the baseline 
number of H-2A petitions volume absent this rule would in an average 
year be approximately 6,300 petitions \15\ for an average of 70,000 
total H-2A workers per year. In 2006 there were 2,089,790 farms in the 
United States and about 752,000 workers employed in agricultural jobs. 
Thus, about 0.3 percent of all farmers use the H-2A program and 9.3 
percent of all farm workers are aliens employed under the H-2A program.
---------------------------------------------------------------------------

    \15\ This figure may not represent the actual number of farm 
owners or operators as some larger farms may submit multiple 
petitions per year.
---------------------------------------------------------------------------

2. Size Categories of Affected Entities
    The U.S. Small Business Administration (SBA) Small Business Size 
Regulations at 13 CFR part 121, provide that farms with average annual 
receipts of less than $750,000 qualify as small businesses for Federal 
Government programs. According to United States Department of 
Agriculture data, 44,348, or 2.1 percent, of the 2,128,982 farms in the 
U.S. had gross cash receipts of more than $500,000.\16\ Since 97.9 
percent of farms have sales of less than $500,000 it appears that 
almost all farms are small entities under the SBA definition. That 
means that almost all of the employers requesting USCIS approval to 
hire H-2A alien employees per year, an estimated 5,220, are small 
businesses looking to hire a seasonal farm worker.
---------------------------------------------------------------------------

    \16\ Economic Class of Farms by Market Value of Agricultural 
Products Sold and Government Payments: 2002 http://www.nass.usda.gov/census/census02/volume1/us/st99_1_003_003.pdf.
---------------------------------------------------------------------------

    The fact that the very small percentage of farms that use the H-2A 
program accounts for 9.3 percent of all farm workers indicates that 
those farms that use the H-2A program are larger than average. 
Nonetheless, the impacts of this rule would have to be totally 
concentrated among the largest farms in the U.S. in order for the 
affected entities to not be small as determined under SBA guidelines. 
Therefore, USCIS has concluded that the entities affected by this rule 
are generally categorized as small.

B. New Compliance Requirements of the Proposed Rule

1. Compliance Costs
    Liquidated Damages for Non-reporting. USCIS is proposing new 
reporting requirements on H-2A employers, including the time frame for 
reporting, the mechanisms for reporting, the amount of liquidated 
damages for failure to comply, and defenses for failure to comply. This 
rule also proposes to enable DHS to announce via notice published in 
the Federal Register appropriate procedures for notifying DHS of events 
requiring employer notification. USCIS has no data on the number of 
employers that typically fail to comply with reporting requirements and 
no estimate of the number of firms that will have to pay liquidated 
damages. However, USCIS believes that the occurrence of non-compliance 
is not prevalent enough to affect a substantial number of the affected 
entities. Further, while $500 is believed to be sufficient to provide 
an incentive for participating firms to comply, it is not large enough 
to impose a significant economic impact on any one firm that is 
assessed liquidated damages as a result of being found to be in 
violation of this new requirement.
2. Costs of Exit Requirement
    Under the proposed rule, certain aliens admitted on an H-2A visa 
must comply with the DHS Biometric Exit Pilot as part of US-VISIT. The 
Exit Pilot Program was implemented to provide a straightforward exit 
process to ensure that individuals adhere to the terms of their 
admission and is intended as an added measure to ensure the integrity 
of our immigration system. This means that the alien must depart 
through a port of entry participating in the program and present 
designated biographic and or biometric information upon departure at 
the conclusion of their authorized period of stay.\17\ The alien must 
either: (1) Check out at an automated exit kiosk or with a US-VISIT 
exit attendant at the departure gate at the port, have their travel 
documents read, their two index fingers digitally scanned, a digital 
picture taken, receive a printed receipt that verifies that they have 
checked out, and present the receipt at their departure gate to confirm 
that they checked out; or (2) go through a biometric check-out process 
with a US-VISIT exit attendant stationed at visitors' departure gates. 
USCIS assumes that the additional time to register at time of departure 
is between \1/2\ to 1 hour. USCIS seeks comment on this assumption. 
Thus, this rule will require H-2A to incur the following additional 
time costs, analyzed in the following model.
---------------------------------------------------------------------------

    \17\ http://www.dhs.gov/xnews/releases/press_release_0476.shtm.
---------------------------------------------------------------------------

    Estimating how many H-2A workers will be subject to the Exit Pilot 
requires determining how many H-2A workers who leave the country each 
year are doing so because their periods of authorized stay have ended. 
As stated above, that is why the Exit Pilot program was instituted--DHS 
had no process for ensuring that aliens complied with their periods of 
authorized stay. Since there is no follow-up monitoring system, there 
is little data available, and the statistics that are available are 
unreliable. USCIS does know that, in fiscal year 2007, it approved 
petitions for 78,089 H-2A workers.\18\ This number, however, includes 
requests for extensions of stay and changes in employers; thus, it does 
not represent the number of H-2A

[[Page 8241]]

employees entering or exiting the U.S.\19\ USCIS believes that the 
closest indicator available of the number of H-2A visitor exits per 
year would be the average number of entries per year. It is logical to 
assume that the number of employees beginning their authorized 
employment would vary only slightly from the number ending their 
authorized term of employment from one year to the next. The number of 
H-2A entries during fiscal years 2002 through 2006 averaged 17,551 per 
year.\20\ As such, approximately 18,000 immigrant workers are expected 
to be affected by this rule and spend between \1/2\ to 1 hour in the 
registration process during exit.
---------------------------------------------------------------------------

    \18\ These are not all new employees or entrants to the United 
States. This number includes petitions approved for an extension or 
change of employer that are not segregated for reporting purposes.
    \19\ See 2003-2005 figures at http://www.dhs.gov/xlibrary/assets/statistics/publications/2005_NI_rpt.pdf.
    \20\ Yearbook of Immigration Statistics, Temporary Admissions of 
Nonimmigrants to the United States: 2006 http://www.dhs.gov/xlibrary/assets/statistics/publications/NI_FR_2006_508_final.pdf.
---------------------------------------------------------------------------

    The costs of exit in this case are entirely opportunity costs, as 
the worker forgoes \1/2\ to 1 hour in the registration process, and 
gives up this amount of time to his or her ``second best'' activity. It 
is also important to note that the opportunity cost to the worker 
depends on whether he or she could have been working, or could have 
been engaging in a leisure activity. According to Fugitt and Wilcox 
\21\ (1999), opportunity cost of leisure time is calculated as \1/3\ of 
the wage rate. However, if the respective H-2A individual could have 
been at work instead of in the exit registration process, the 
opportunity cost is the full value of the wage.
---------------------------------------------------------------------------

    \21\ Fugitt, D. and S. Wilcox. (1999). Cost-Benefit Analysis for 
Public Sector Decision Makers. London, Quorium Books.
---------------------------------------------------------------------------

    According to the U.S. Department of Labor \22\, the hourly wage 
rate for the H-2A worker is $9.49. As such, the total annual 
undiscounted cost of H-2A workers having to spend \1/2\ hour during the 
exit process is approximately $85,000 ($9.49 * \1/2\ hour * 18,000). 
The opportunity costs if all workers spend a full hour in the exit 
process are approximately $171,000 ($9.49 *1 hour * 18,000).
---------------------------------------------------------------------------

    \22\ Available at: http://www.dol.gov/compliance/topics/wages-foreign-workers.htm.
---------------------------------------------------------------------------

    However, the preceding estimates of opportunity costs to the H-2A 
worker assume that each individual is forgoing an hour of time at work. 
It may also be the case that the individual is foregoing leisure. As 
such, the opportunity cost of leisure time is represented as \1/3\ the 
wage rate (Fugitt and Wilcox, 1999) as opposed to the full wage.
    The undiscounted opportunity costs to workers in this case spending 
a \1/2\ hour in the exit process are approximately $28,000 (\1/3\ * 
$9.49 * 18,000 * \1/2\ hour). However, if each worker spends an hour in 
the exit process, the opportunity costs rise to approximately $56,000 
(\1/3\ * $9.49 * 18,000 * 1 hour). As such, depending on what 
assumptions are made about the time required to exit and whether the 
time forgone is work or leisure, the annual undiscounted costs range 
from $28,000 to $171,000.
3. Fees
    USCIS funds the cost of processing applications and petitions for 
immigration and naturalization benefits and services, and USCIS' 
associated operating costs, by charging and collecting fees. For each 
Form I-129 USCIS charges a filing fee of $320. While the enhancements 
in this rule will increase the number of H-2A petitions per year by 
making the program more attractive, there is no increase in per 
petition fees for employees being imposed by this rule. Thus, the fee 
impacts of this rule on each petitioning firm are neutral.
4. Paperwork Burden
    USCIS estimates that the public reporting burden for each Form I-
129 is 2 hours and 45 minutes per response, including the time for 
reviewing instructions, completing, and submitting the form. The 
aggregate public reporting burden for all firms affected by this rule 
may increase as a result of the increased due of the program. However, 
this rule proposes no changes to the per-firm reporting requirements or 
costs of the existing H-2A program.
5. Costs Imposed on Sheepherders and Their Employers
    There may be a slightly negative impact on sheep ranchers in the 
few states in the Western United States as a result of one change that 
is necessary to bring sheepherder H-2A employees in under the 
requirements to return to their home countries that are applied to all 
other H-2A employees. Currently, H-2A aliens working as sheepherders 
who have reached their three-year maximum stay period may obtain a new 
three-year period of stay in H-2A status without departing and 
remaining outside the United States for six-months as required for 
other H-2A aliens. The period of stay in the alien's home country is 
proposed to be changed to three months in this rule and will be imposed 
on sheepherders the same as for all other H-2A workers.
a. Size of Sheep Farming Entities Affected
    The sheep farming entities affected by this rule (Sheep Farming is 
NAICS Code 112410) are defined as small. No data exists on the relative 
breakdown on the number of sheep farms with average annual receipts of 
more than $750,000 (making them not qualify as a small business). 
However, nothing points to sheep ranches being comprised of a 
significantly higher percentage of large operations than other farm 
enterprises.\23\ The number of people employed by sheep farms in the 
United States is unknown.\24\ However, the number of United States 
farming operations with sheep totaled 69,090 during 2006.
---------------------------------------------------------------------------

    \23\ Sheep and Lambs--Inventory, Wool Production, and Number 
Sold by Size of Flock: 2002. http://www.nass.usda.gov/census/census02/volume1/us/st99_1_030_032.pdf.
    \24\ E-mail from Scott Hollis, Livestock Section Statistician, 
USDA, NASS to Phillip Elder, Associate Counsel, USCIS, (November 02, 
2007 1:15 PM EST) (on file with author).
---------------------------------------------------------------------------

    Total sales of sheep and lambs in 2006 were $473 million for an 
average of $6,846 per farm.\25\ Of these farms, 90.8 percent were 
comprised of operations having from 1 to 99 head. Farms with a range of 
100 to 499 head of sheep comprise 7.6 percent of the industry and the 
remaining 1.6 percent were operations with 500 head or more.\26\ 
Operations with more than 500 sheep account for 47.3 percent of the 
sheep production in the United States.
---------------------------------------------------------------------------

    \25\ Total sales divided by total number of farms. Smaller farms 
do not generally derive a significant portion of their income from 
sheep farming.
    \26\ Farms, Land in Farms, and Livestock Operations, 2006 
Summary, Agricultural Statistics Board, United States Department of 
Agriculture, National Agricultural Statistics Service.
---------------------------------------------------------------------------

    \27\ USDA, National Agricultural Statistics Service, http://www.nass.usda.gov/QuickStats/index2.jsp.
    The table below lists the top sheep producing states for 2007, 
indicating that the larger sheep farming operations are concentrated in 
the western United States.

          Sheep and Lambs.--Total Sheep and Lambs for 2007 \27\
------------------------------------------------------------------------
                                                            Total sheep
                                                             and lambs
           State rank                     State              (thousand
                                                               head)
------------------------------------------------------------------------
1..............................  Texas..................           1,070
2..............................  California.............             610
3..............................  Wyoming................             460
4..............................  Colorado...............             400
5..............................  South Dakota...........             380
------------------------------------------------------------------------


[[Page 8242]]

b. Number of Sheep Farming Entities Affected
    The policy exception for sheepherders not returning home for 6 
months between their three year employment stints was provided because 
livestock operations utilize rangeland in the Western United States as 
a source of pasture and forage needed year round, and not seasonal 
employees, and a reliable domestic labor source did not exist. USCIS is 
proposing to reduce the required period for an H-2A employee to return 
to their home country to three months and believes that this reduced 
period will be reasonable for H-2A sheepherders as well, obviating the 
need for the sheepherder policy exception.
    According to the American Sheep Industry Association, more than 500 
sheep operations depend on foreign sheepherders for sheep production 
and more than 1,500 herders are in the United States continuously 
helping care for the flocks.\28\ USCIS receives about 300 petitions a 
year for sheepherder H-2A employees, mostly from two sources: Western 
Range Association, of Salt Lake City Utah, and Mountain Plains 
Association, of Cheyenne, Wyoming. As of September 30, 2007, Western 
Range, had 929 H-2A sheepherders under contract with 217 member sheep 
ranchers. Of the 929 employees, 774 were from Peru, 79 were from Chile, 
52 from Mexico, and 23 from Bolivia.\29\ During calendar year 2007, 
Mountain Plains has acted as agent for 1,460 H-2A employees for 
livestock farms or ranches. Mountain Plains has placed employees with 
approximately 330 range production livestock operations, which are not 
limited to sheep but for this analysis USCIS will assume that they are 
all sheep farmers. Mountain Plains estimates that the 1,460 H-2A 
employees they have had in 2007 were 60 percent from Peru, 30 percent 
from Mexico, and 10 percent from Chile or other countries.
---------------------------------------------------------------------------

    \28\ http://www.sheepusa.com.
    \29\ Telephone conversations with Sarah Peters and Dennis 
Richens of the Western Range Association.
---------------------------------------------------------------------------

    Thus, about 550 sheep ranchers \30\ are expected to be directly 
affected by this proposed rule, representing less than 1 percent of the 
69,090 sheep operations in the United States in 2006 and only 6 percent 
of the sheep producers in California, Colorado, Idaho, Montana, Nevada, 
Mew Mexico, and Wyoming. This small group will face a disproportionate 
impact from the proposed rule relative to other sheep farmers.
---------------------------------------------------------------------------

    \30\ Western Range--217 plus Mountain Plains--330 = 547--rounded 
to 550.
---------------------------------------------------------------------------

c. Size of Sheep Farming Entities Affected
    The sheep farms that are members of Mountain Plains and Western 
Range have flocks that range in size from approximately 500 ewes to as 
high as about 10,000 ewes with total sales from sheep, lambs and wool 
ranging from $50,000 to $950,000. Operations, such as these, with more 
than 500 sheep account for 1.6 percent of sheep farming operations. 
Annual sales per sheep farm averages about $7,000 per farm; however, 
that figure includes many farms that barely exceed the minimum annual 
$1,000 in sales threshold that the United States Internal Revenue 
Service and USDA use to define a ``farm.'' The number of these directly 
affected farms that are small or large entities as a result of 
exceeding or falling below the $750,000 threshold defining those 
categories are unknown.
d. Increased Compliance Costs for Sheep Farms
(i) Travel Expenses
    This rule only proposes that the sheepherder be required to stay 
away from the United States for three months or more before returning, 
as opposed to returning immediately as currently allowed. This rule 
does not change the requirement that a sheepherder return to his or her 
home country or regulations governing payment of the alien's travel 
expenses. The farmer must pay the costs for many of his H-2A 
sheepherders to go home every year anyway as a result of normal 
turnover, and this rule will not have an impact on that cost.
(ii) Availability and Cost of Labor
    This proposed rule will not substantially reduce the availability 
of seasonal sheepherders or increase the cost of employing them. 
Sheepherders are unique from other H-2A seasonal agricultural employees 
in that sheepherders are needed year round, and not for short term 
needs with a start and end, such as a crop harvest. While the need for 
sheepherders increases in lambing or sheering season, the nature of the 
employment is not necessarily seasonal. The requirement to return home 
for six months fits a vegetable or row crop farm with at least six 
months between harvests. Ranches, however, need at least a few hands 
year round.
    Due to the solitude experienced by a sheepherder who must live out 
on the range for extended periods of time, employee turnover may be 
more pronounced in the sheep ranching industry than in many others. 
Rates of employees absconding from rangeland H-2A jobs is estimated at 
10 percent, which is much higher than in other employment based visa 
programs. A major complaint that sheep ranchers have about the H-2A 
program is the inability to have absconding employees, detained, 
deported, and replaced.
(iii) Training
    If a farm loses an employee it may have to bring in another 
sheepherder and incur the costs of training the new employee on the 
specific requirements of that ranch. This rule is not expected to 
impact this cost.
(iv) Time Away From U.S. Between 3 Year Maximum Stays
    Currently, a sheepherder may return to the United States 
immediately after returning home. This proposed rule will require him 
or her to remain outside the United States for three months.
    The productivity and overall expenses of a typical user of the H-2A 
sheepherder program are not expected to be affected. A six-month stay-
home requirement would be a major concern for sheep farms because that 
length of time may reduce the likelihood of the employee returning to 
the U.S. and increases the sheep farmers' risk of having an 
insufficient number of employees. However, the three-month stay home 
requirement will have a minimal impact. According to major users of the 
sheepherder H-2A program, most sheepherders stay home for two or three 
months already. Employers active in the program have already built that 
expectation into their planning.\31\ The new mandatory three-month 
stay-away requirement will be an additional factor for a sheep ranch's 
consideration in deciding how many H-2A alien employees it needs. Also, 
the ranch will want to make sure that all of its H-2A sheepherders are 
not on the same cycle for their requirement to return home and stay. 
However, alien workers leave their jobs for a number of reasons on a 
regular basis and often have to return home for family events and 
emergencies. No increase in expenses is expected as a result of 
sheepherders being mandated under this rule to stay away. In addition, 
qualitative impacts are expected to be slight, if they occur at all.
---------------------------------------------------------------------------

    \31\ Sheep Industry Association, Mountain Plans, and Western 
Range.
---------------------------------------------------------------------------

    Therefore, the changes proposed in the subject rule that add new 
compliance requirements on rangeland livestock operations will not have 
a significant economic impact.

[[Page 8243]]

C. Effect of Repatriation Provision

    As stated above, this rule proposes to prohibit the approval of an 
H-2A petition for a worker from a country that refuses repatriation of 
its citizen, subjects, nationals or residents. Thus, where a country 
has no repatriation agreement with the United States, or where the 
country routinely refuses to issue travel documents, or cooperate in 
repatriation, or where for whatever reason the United States is unable 
to systematically repatriate deportees, H-2A employees from that 
country will not be permitted.
    This change is intended to encourage more nations to promptly 
accept the return of their nationals who no longer have valid status as 
nonimmigrants in the United States. However, the actual impact is 
expected to be negligible because very few H-2A workers are from such 
countries. According to U.S. Immigrations and Customs Enforcement, the 
top five non-cooperating countries are the People's Republic of China, 
India, Vietnam, Pakistan, and Laos. However, 98 percent of all H-2A 
workers during FY 2006, based on number of admissions, were from Mexico 
(40,283), Jamaica (3,376), South Africa (757), Peru (562), and Canada 
(454). Repatriation is not a problem with these countries and there is 
no reason to believe that the changes made in this rule will cause any 
shift in major source countries for temporary agricultural workers at 
all, much less to the countries where this is a problem. Thus this 
change is not expected to have any impact on the availability of H-2A 
labor.

D. Other Impacts of the Proposed Changes

1. Volume of Applications
    The changes proposed by this rule are intended to increase the 
flexibility and attractiveness of the H-2A visa program. Therefore, the 
proposals in this rule are expected to result in a small increase in 
the number of H-2A visas petitioned for and approved. USCIS has no 
reliable way to estimate the impact of these proposed changes on 
petition filings and approval volume with any precision. Nonetheless, 
it is reasonable to expect about a 5 percent increase per year in the 
number of employers filing a Form I-129 to request H-2A employees as a 
result of the proposals in this rule. Based on the 6,000 projected Form 
I-129 filings for H-2A employees per fiscal year, this would result in 
an estimated 300 additional filings per year.\32\
---------------------------------------------------------------------------

    \32\ 5,667 + 6,212/2 = 5,940 x .05 = 297.
---------------------------------------------------------------------------

2. Qualitative Impacts
    Reduced delays: USCIS expects no significant increase in filings to 
result from allowing employers to petition for unnamed beneficiaries 
and only requires the petition to include the names of those 
beneficiaries who are in the United States. In H-2A filings many 
beneficiaries are currently unnamed. This change will benefit 
applicants mainly by eliminating the requirement that beneficiaries be 
named so that no Intragency Border Inspection System (IBIS) check will 
hold up the petition application process.
    Improved quality of life for H-2A seasonal workers. Reducing the 
time required for an H-2A worker to be out of the country, allowing 
more time for departure after the visa has expired, and allowing for an 
extension of stay while a new petition is pending, will cause less 
disruption of the life and affairs of H-2A workers in the United 
States.
    Reduce abuses in the program. Another major goal of this rule, in 
addition to providing agricultural employers with an orderly and timely 
flow of legal workers, is protecting laborers' rights. Changes e, f, g, 
and h above, go directly to protecting laborers' rights by precluding 
the payment of employment or recruitment fees by aliens seeking H-2A 
positions. Specifically, these changes will reduce the abuse of H-2A 
employees by unscrupulous H-2A petitioners and/or their agents, who 
have required (or who have used third parties that require) persons 
seeking H-2A positions to pay such fees. USCIS also believes that this 
rule will help minimize the immigration fraud and abuses that have been 
known to occur when aliens are required to pay employment fees. Abuses 
that will be reduced by the changes in e, f, g and h will include 
petition padding (i.e., the filing of requests for more workers than 
needed), sale of H-2A positions to the highest bidder, and human 
trafficking. Changes e, f, g and h are also intended to deter the 
coercion of alien workers and their family members by recruiters, 
facilitators, and others who would otherwise pressure such persons for 
payment of debts incurred in connection with seeking an H-2A position. 
These changes will also discourage other exploitative practices that, 
in the past, have tarnished the reputation of the H-2A program.
    In addition, the attestation requirement referred to in change f 
above will ensure continued compliance with section 218 of the INA. 
Should the employer wish to employ an H-2A worker in a different 
capacity than that represented in its labor certification, application, 
and petition, it may after complying with some requirements depending 
on the circumstances. This change will ensure continued compliance with 
section 218 of the INA and the integrity of the H-2A program.
    In summary, the changes in e, f, g, and h are essential for 
ensuring against the most egregious of the documented abuses to the H-
2A program while in no way limiting the availability of H-2A workers to 
U.S. agricultural employers.
    Illegal immigration (number of agricultural workers who are 
unauthorized) will decline. It is presumed that this rule will result 
in those employers who currently hire seasonal agricultural workers who 
are not properly authorized to work in the United States to replace 
those workers with legal workers to the extent that this rule allows 
the employer to obtain a sufficient number of H-2A employees 
considering the costs and risk associated with hiring no worker or an 
unauthorized worker.
3. Government Costs
    This rule is expected to result in no changes in program costs for 
the government.

E. Summary and Conclusion

1. Small Entity Effects
    The entities affected by this rule are nearly all categorized as 
small under the RFA. However, only about 0.3 percent of all farmers use 
the H-2A program and 9.3 percent of all farm workers are aliens 
employed under the H-2A program. As for sheep ranchers that may be 
directly affected by the changes in this rule, the 550 identified 
predominant users comprise less than 1 percent of the 69,090 sheep 
operations in the United States and Puerto Rico in 2006, and only 6 
percent of the operations in California, Colorado, Idaho, Montana, 
Nevada, New Mexico, and Wyoming. USCIS believes that the percentages of 
total farms affected by this rule do not represent a sufficient portion 
of the agricultural producers in the United States to rise to a level 
that could be called substantial as the term is intended under the RFA.
    This rule will not impose a significant economic impact on any 
firms. This rule proposes several changes to the H-2A visa program that 
USCIS believes are necessary to encourage and facilitate the lawful 
employment of foreign temporary and seasonal agricultural workers. 
There are no additional regulatory compliance requirements to be added 
that will cause a detectable increase in costs for participating firms. 
Thus, when comparing the annualized costs of this

[[Page 8244]]

proposed rule as a percentage of a typical participating regulated 
small firm's annual sales there is no significant economic effect.
2. Increased Costs for Small Businesses
    Costs of compliance for small businesses will not be changed by 
this proposed rule. Volume of applications may increase slightly, but 
the burden of compliance both in time and fees will not increase above 
that currently imposed.
3. Increased Costs for Individuals
    The annual undiscounted costs for aliens admitted on an H-2A visa 
to comply with the DHS Biometric Exit Pilot as Part of US-VISIT range 
from $28,000 to $171,000.
4. Benefits
    This rule will benefit applicants by:
     Reducing delays caused by IBIS checks holding up the 
petition application process:
     Reducing disruption of the life and affairs of H-2A 
workers in the United States;
     Protecting laborers' rights by precluding payment of fees 
by the alien;
     Preventing the filing of requests for more workers than 
needed, visa selling, coercion of alien workers and their family 
members, or other practices that exploit workers and stigmatize the H-
2A program;
     Encouraging employers who currently hire seasonal 
agricultural workers who are not properly authorized to work in the 
United States to replace those workers with legal workers; and
     Minimizing immigration fraud and human trafficking.

F. Executive Order 13132

    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 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.

G. Executive Order 12988

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

H. Paperwork Reduction Act

    This rule requires that a petitioner submit Form I-129, Petition 
for Nonimmigrant Worker, seeking to classify an alien as an H-2A 
nonimmigrant. This form has been previously approved for use by the 
Office of Management and Budget (OMB) under the Paperwork Reduction 
Act. The OMB control number for this collection is 1615-0009. However, 
USCIS will make minor changes to the Form I-129 by requiring an 
employer to certify that during the period of intended employment for 
which the petition is approved, the petitioner will not expand the 
alien workers' duties, place of employment, nor the entities for which 
the duties will be performed beyond the information provided on the 
Form I-129 and temporary labor certification, and by updating the 
language describing employers' responsibility to inform DHS of H-2A 
employee no-show, termination, or abscondment and the requirement to 
pay liquidated damages for failure to make such notification. In 
addition, USCIS estimates that the number of U.S. employers using the 
Form I-129 will increase. Accordingly, once this rule is published as a 
final rule, USCIS will submit to OMB, the Form I-129 (with minor 
changes) and raise the number of respondents and burden hours 
associated for this information collection using an OMB 83-C, 
Correction Worksheet.
    In addition, this rule requires, as a prerequisite to an H-2A 
worker receiving an automatic extension of employment authorization 
with the filing of a petition by a new employer, that employers enroll 
in E-Verify, which is an information collection system previously 
approved for use under the Paperwork Reduction Act. The OMB Control 
Number for this information collection is 1615-0092.
    Under the changes contained in this regulation, USCIS estimates 
that the number of U.S. employers using E-Verify will increase. 
Accordingly, once this rule is published as a final rule, USCIS will 
submit an OMB 83-C, Correction Worksheet, to OMB raising the number of 
respondents and burden hours associated for this information 
collection.

List of Subjects

8 CFR Part 214

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

8 CFR Part 215

    Administrative practice and procedure, Aliens.

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.
    Accordingly, 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 is revised to read as 
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185, 1186a, 
1187, 1221, 1253, 1281, 1282, 1301-1305 and 1372; section 643, Pub. 
L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-
1480; 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; 8 CFR part 2.

    2. Section 214.2 is amended by:
    a. Revising paragraphs (h)(2)(i)(A) and (D);
    b. Revising paragraph (h)(2)(iii);
    c. Revising paragraph (h)(5)(i)(A);
    d. Revising paragraph (h)(5)(i)(B);
    e. Revising paragraph (h)(5)(i)(C);
    f. Adding a new paragraph (h)(5)(i)(F);
    g. Removing last sentence from (h)(5)(ii);
    h. Revising paragraph (h)(5)(vi);
    i. Revising paragraph (h)(5)(viii)(A);
    j. Revising paragraph (h)(5)(viii)(B);
    k. Revising paragraph (h)(5)(viii)(C);
    l. Adding a new paragraph (h)(5)(viii)(D);
    m. Revising paragraph (h)(5)(ix);
    n. Revising paragraph (h)(5)(x);
    o. Adding a new paragraph (h)(5)(xi); and by
    p. Revising paragraph (h)(11)(ii).
    The revisions and additions read as follows:


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

* * * * *
    (h) * * *
    (2) * * *
    (i) * * *
    (A) General. A United States employer seeking to classify an alien 
as an H-1B, H-2A, H-2B, or H-3 temporary employee must file a petition 
on Form I-129, Petition for Nonimmigrant Worker, as provided in the 
form instructions.
* * * * *
    (D) Change of employers. If the alien is in the United States and 
seeks to

[[Page 8245]]

change employers, the prospective new employer must file a petition on 
Form I-129 requesting classification and an extension of the alien's 
stay in the United States. 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 paragraph (h)(13) of this section. Except as provided by 
8 CFR 274a.12(b)(21) or section 214(n) of the Act, 8 U.S.C. 1184(n), 
the alien is not authorized to begin the employment with the new 
petitioner until the petition is approved. An H-1C nonimmigrant alien 
may not change employers.
* * * * *
    (iii) Naming beneficiaries. H-1B, H-1C, and H-3 petitions must 
include the name of each beneficiary. All H-2A and H-2B petitions must 
include the name of each beneficiary who is currently in the United 
States, but need not name any beneficiary who is not currently in the 
United States. However, a petitioner who files on behalf of workers who 
are not present in the United States an H-2B petition that is supported 
by a temporary labor certification requiring education, training, 
experience, or special requirements of the beneficiary must name all 
the requested workers in each petition. Unnamed beneficiaries must be 
shown on the petition by total number. If all of the beneficiaries 
covered by an H-2A or H-2B temporary labor certification have not been 
identified at the time a petition is filed, multiple petitions for 
subsequent beneficiaries may be filed at different times but must 
include a copy of the same temporary labor certification. Each petition 
must reference all previously filed petitions for that temporary labor 
certification.
* * * * *
    (5) * * *
    (i) * * *
    (A) General. An H-2A petition must be filed on Form I-129 with a 
single valid temporary agricultural labor certification. The petition 
may be filed by either the employer listed on the temporary labor 
certification, the employer's agent, or the association of United 
States agricultural producers named as a joint employer on the 
temporary labor certification.
    (B) Multiple beneficiaries. The total number of beneficiaries of a 
petition or series of petitions based on the same temporary labor 
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 temporary labor certification.
    (C) Petitioner's Attestation. A petitioner must file an 
attestation, certified as true and accurate by an appropriate official 
of the petitioner, that during the period of intended employment for 
which the petition is approved, neither the alien workers' duties, 
place of employment, nor the entities for which the duties will be 
performed will expand beyond the related information provided on the 
Form I-129 and labor certification. The petitioner must also state in 
the attestation whether: It received, directly or indirectly, any fee 
or other form of compensation from any alien beneficiary; it has any 
arrangement or intends to have an arrangement for remuneration, direct 
or indirect, from any recruiter, facilitator or similar employment 
service with which it coordinates employment of the H-2A workers, and 
if so, the name of any recruiter, facilitator, or similar employment 
service used to locate H-2A workers; and, to the best of its knowledge, 
any alien beneficiary has provided, or intends to provide, any 
remuneration, direct or indirect, to any such recruiter, facilitator, 
or similar employment service.
* * * * *
    (F) Petitions for Nationals of Countries That Refuse Repatriation. 
No H-2A petition can be approved for a citizen, subject, national or 
resident of a country whose government the Secretary of Homeland 
Security has determined consistently denies or unreasonably delays 
accepting the return of citizens, subjects, nationals or residents who 
are subject to a final order of removal from the United States. The 
Secretary will review such determinations periodically to evaluate if 
the subject country is accepting repatriated nationals.
* * * * *
    (vi) Petitioner consent and notification requirements--(A) Consent. 
In filing an H-2A petition, a petitioner and each employer consents to 
allow access to the site where the labor is being performed for the 
purpose of determining compliance with H-2A requirements.
    (B) Agreements. The petitioner agrees to the following 
requirements:
    (1) To notify DHS in writing, within 48 hours, and beginning on a 
date and in a manner specified in a notice published in the Federal 
Register if: An H-2A worker fails to report for work within 5 days 
after the employment start date stated on the petition; the employment 
of an H-2A worker terminates more than 5 days before the employment end 
date stated on the petition; or an H-2A worker absconds from the 
worksite.
    (2) To retain evidence of such notification and make it available 
for inspection by DHS officers for a one-year period beginning on the 
date of the notification.
    (3) To pay $500 in liquidated damages for each instance where it 
cannot demonstrate it is in compliance with the notification 
requirement.
    (C) Process. Except when the petitioner has admitted in writing a 
failure to comply with the notification requirement, the petitioner 
will be given written notice and 10 days to reply before being given 
written notice of the assessment of liquidated damages.
    (D) Failure to pay liquidated damages. If liquidated damages are 
not paid within 10 days of assessment, an H-2A petition may not be 
processed for that petitioner or any joint employer shown on the 
petition until such damages are paid.
    (E) Abscondment. An H-2A worker has absconded if he or she has not 
reported for work for a period of 5 days without the consent of the 
employer.
* * * * *
    (viii) * * *
    (A) Effect of violations of status. An alien may not be accorded H-
2A status who USCIS finds to have, at any time during the past 5 years, 
violated any of the terms or conditions of admission into the United 
States as an H-2A nonimmigrant, including remaining beyond the specific 
period of authorized stay or engaging in unauthorized employment.
    (B) Period of admission. An alien admissible as an H-2A 
nonimmigrant shall be admitted for the period of the approved petition. 
Such alien will be admitted for an additional period of up to one week 
before the beginning of the approved period for the purpose of travel 
to the worksite, and a 30-day period following the expiration of the H-
2A petition for the purpose of departure or extension based on a 
subsequent offer of employment. Unless authorized under 8 CFR 274a.12 
or section 214(n) of the Act, the beneficiary may not work except 
during the validity period of the petition.
    (C) Limits on an individual's stay. Except as provided in paragraph 
(h)(5)(viii)(B) of this section, an alien's stay as an H -2A 
nonimmigrant is limited by the term of an approved petition. An alien 
may remain longer to engage in other qualifying temporary agricultural 
employment by obtaining

[[Page 8246]]

an extension of stay. However, an individual who has held H-2A status 
for a total of 3 years may not again be granted H-2A status until such 
time as he or she remains outside the United States for an 
uninterrupted period of 3 months. An absence from the United States can 
interrupt the accrual of time spent as an H-2A nonimmigrant against the 
three-year limit. If the accumulated stay is 18 months or less, an 
absence is interruptive if it lasts for at least 45 days. If the 
accumulated stay is greater than 18 months, an absence is interruptive 
if it lasts for at least two months. Eligibility under this paragraph 
(h)(5)(viii)(C) will be determined in admission, change of status or 
extension proceedings. An alien found eligible for a shorter period of 
H-2A status than that indicated by the petition due to the application 
of this paragraph (h)(5)(viii)(C) shall only be admitted for that 
abbreviated period.
    (D) Nationals of Countries That Refuse Repatriation. No alien may 
be accorded H-2A status who is a citizen, subject, national or resident 
of a country whose government the Secretary of Homeland Security has 
determined consistently denies or unreasonably delays accepting the 
return of citizens, subjects, nationals or residents who are subject to 
a final order of removal from the United States. The Secretary of 
Homeland Security will review such determinations periodically to 
evaluate if the subject country is accepting repatriation within a 
reasonable period of time.
    (ix) Substitution of beneficiaries after admission. An H-2A 
petition may be filed to replace H-2A workers whose employment was 
terminated early. The petition must be filed with a copy of the 
certification document, a copy of the approval notice covering the 
workers for which replacements are sought, and other evidence required 
by paragraph (h)(5)(i)(D) of this section. It must also be filed with a 
statement giving each terminated worker's name, date and country of 
birth, and termination date. A petition for a replacement may not be 
approved where the requirements of paragraph (h)(5)(vi) of this section 
have not been met. A petition for replacements does not constitute the 
notification required by paragraph (h)(5)(vi)(B)(1 ) of this section.
    (x) Extensions in emergent circumstances. In emergent 
circumstances, as determined by a Service Center director, a single H-
2A petition may be extended without an approved labor certification if 
filed on behalf of one or more beneficiaries who will continue to be 
employed by the same employer that previously obtained an approved 
petition on the beneficiary's behalf, so long as the employee continues 
to perform the same duties and will be employed for no longer than 2 
weeks after the expiration of previously-approved petition. The 
previously approved petition must have been based on an approved 
temporary labor certification.
    (xi) Treatment of petitions and alien beneficiaries upon a 
determination that fees were collected from alien beneficiaries--(A) 
Denial or revocation of petition. As a condition to approval of an H-2A 
petition, no fee or other compensation (either direct or indirect) may 
be collected from a beneficiary of an H-2A petition by a petitioner, 
agent, facilitator, recruiter, or similar employment service in 
connection with an offer or condition of H-2A employment. If a Service 
Center director determines that the petitioner has collected, or 
entered into an agreement to collect, such fee or compensation or that 
the petitioner is aware that the beneficiary has paid or agreed to pay 
any facilitator, recruiter, or similar employment service, in 
connection with obtaining the H-2A employment, the H-2A petition will 
be denied or revoked on notice.
    (B) Effect of petition revocation. Upon revocation of an H-2A 
petition based upon paragraph (h)(5)(xi)(A) of this section, the alien 
beneficiary's stay will be authorized and the alien will not accrue any 
period of unlawful presence under section 212(a)(9) of the Act for a 
30-day period following the date of the revocation for the purpose of 
departure or extension of stay based upon a subsequent offer of 
employment. The employer shall be liable for the alien beneficiary's 
reasonable costs of return to his or her last place of foreign 
residence abroad, unless such alien obtains an extension of stay based 
on an approved H-2A petition filed by a different employer, and such 
employer states in the job offer that it will pay the alien's 
reasonable return transportation expenses upon completion of the his or 
her new employment.
* * * * *
    (11) * * *
    (ii) Immediate and automatic revocation. The approval of any 
petition is immediately and automatically revoked if the petitioner 
goes out of business, files a written withdrawal or the petition, or 
the Department of Labor revokes the labor certification upon which the 
petition is based.
* * * * *

PART 215--CONTROLS OF ALIENS DEPARTING FROM THE UNITED STATES

    2. The authority citation for part 215 continues to read as 
follows:

    Authority: 8 U.S.C. 1104; 1184; 1185 (pursuant to Executive 
Order 13323, published January 2, 2004), 1365a note, 1379, 1731-32.

    3. Section 215.9 is added to read as follows:


Sec.  215.9  Temporary Worker Visa Exit Program.

    An alien admitted on an H-2A visa at a port of entry participating 
in the Temporary Worker Visa Exit Program must also depart at the end 
of their authorized period of stay through a port of entry 
participating in the program and present designated biographic and/or 
biometric information upon departure. U.S. Customs and Border 
Protection will publish a notice in the Federal Register designating 
which H-2A workers must participate in the Temporary Worker Visa Exit 
Program, which ports of entry are participating in the program, which 
biographical and/or biometric information would be required, and the 
format for submission of that information by the departing designated 
temporary workers.

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

    4. The authority citation for section 274a continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.

    5. Section 274a.12 is amended by:
    a. Removing the word ``or'' at the end of paragraph (b)(19);
    b. Removing the period at the end of paragraph (b)(20), and adding 
a ``; or'' in its place; and by
    c. Adding a new paragraph (b)(21).
    The addition reads as follows:


Sec.  274a.12  Classes of aliens authorized to accept employment.

* * * * *
    (b) * * *
    (21) A nonimmigrant alien within the class of aliens described in 8 
CFR 214.2(h)(1)(ii)(C) who filed an application for an extension of 
stay pursuant to 8 CFR 214.2 or 8 CFR 214.6 during his or her period of 
admission. Such alien is authorized to be employed by a new employer 
that has filed an H-2A petition naming the alien as a beneficiary and 
requesting an extension of stay for the alien for a period not to 
exceed 120 days beginning from the ``Received Date'' on Form I-797 
(Notice of Action) acknowledging receipt of the

[[Page 8247]]

petition requesting an extension of stay, provided that the employer 
has enrolled in and is a participant in good standing in the E-Verify 
program, as determined by USCIS in its discretion. Such authorization 
will be subject to any conditions and limitations noted on the initial 
authorization, except as to the employer and place of employment. 
However, if the District Director or Service Center director 
adjudicates the application prior to the expiration of this 120-day 
period and denies the application for extension of stay, the employment 
authorization under this paragraph (b)(21) shall automatically 
terminate upon 15 days after the denial decision. The employment 
authorization shall also terminate automatically if the employer fails 
to remain a participant in good standing in the E-Verify program, as 
determined by USCIS in its discretion.
* * * * *

Michael Chertoff,
Secretary.
 [FR Doc. E8-2532 Filed 2-12-08; 8:45 am]
BILLING CODE 4410-10-P