[Federal Register Volume 73, Number 162 (Wednesday, August 20, 2008)]
[Proposed Rules]
[Pages 49109-49122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19306]
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Proposed Rules
Federal Register
________________________________________________________________________
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. 162 / Wednesday, August 20, 2008 /
Proposed Rules
[[Page 49109]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 204, 214 and 215
[CIS No. 2432-07; Docket No. USCIS-2007-0058]
RIN 1615-AB67
Changes to Requirements Affecting H-2B Nonimmigrants and Their
Employers
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 to amend its
regulations affecting temporary non-agricultural workers within the H-
2B nonimmigrant classification and their U.S. employers. This proposed
rule would modify current limitations with respect to petitions for
unnamed H-2B workers and the period of time that an H-2B worker must
remain outside the United States before he or she would be eligible to
seek certain nonimmigrant status again. In addition, to better ensure
the integrity of the H-2B program, this rule proposes to: Require
employer attestations; preclude the imposition of fees by employers on
prospective H-2B workers; require reimbursement of fees paid by H-2B
workers to recruiters; preclude the change of the employment start date
after the grant of the temporary labor certification; eliminate the
process whereby H-2B petitions may be approved notwithstanding the
absence of a valid temporary labor certification; require employer
notifications when H-2B workers fail to show up for work, are
terminated, or abscond from the worksite; require certain H-2B workers
departing the United States to participate in a temporary worker visa
exit pilot program; delegate authority to enforce the terms of the H-2B
petition to the Secretary of Labor (in the event the Department and the
Department of Labor (DOL) work out a mutually agreeable delegation of
enforcement authority from the Department to DOL); and bar nationals of
countries consistently refusing or unreasonably delaying repatriation
of their nationals from obtaining H-2B status. This rule also proposes
to change the definition of ``temporary employment'' to recognize that
such employment could last up to three years. This proposed rule would
encourage and facilitate the lawful employment of eligible foreign
temporary non-agricultural workers, while continuing to safeguard the
rights of workers.
DATES: Written comments must be submitted on or before September 19,
2008, in order to be assured of consideration.
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2007-0058, 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-2007-0058
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., 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, 20 Massachusetts Avenue, NW., 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-2007-0058 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., 3rd Floor, Washington, DC 20529.
II. Background
U.S. employers in seasonal and certain other industries have, in
the past, faced a shortage of U.S. workers who are able, willing, and
qualified to fill temporary non-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 turned to hiring foreign workers. One
avenue open to such employers is to petition for foreign workers who
qualify within the H-2B nonimmigrant classification. Immigration and
Nationality Act (Act or INA) sec. 101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b); 8 CFR 214.2(h)(1)(ii)(D) and (h)(6)(i).
According to the DOL Employment and Training Administration, the top
three occupations for which U.S. employers utilize the H-2B program are
landscape laborers, housekeeping cleaners, and construction workers.
A. Description of H-2B Nonimmigrant Classification
The H-2B nonimmigrant classification applies to foreign workers
coming to the United States temporarily to perform temporary, non-
agricultural labor or services. 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). Such workers may not displace U.S. workers who are
capable of performing such
[[Page 49110]]
services or labor. 8 CFR 214.2(h)(6)(i). In addition, their employment
may not adversely affect the wages and working conditions of U.S.
workers. Id.
The total number of aliens who enter the United States pursuant to
H-2B visas or who are accorded H-2B nonimmigrant status during either
the first or last 6 months of a fiscal year is limited to 33,000, for a
total of 66,000 for the entire fiscal year.\1\ INA sec. 214(g)(1)(B)
and (g)(10), 8 U.S.C. 1184(g)(1)(B) and (g)(10). During the past
several fiscal years, the demand for new H-2B workers has exceeded
these limits. Moreover, the H-2B cap for each half of the fiscal year
has been reached progressively earlier in recent years and prospective
employers are thus increasingly anxious about their ability to secure
necessary H-2B workers each year.
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\1\ Section 214(g)(9)(A) of the INA provided that an alien who
has already been counted toward the numerical limitation during
fiscal year 2004, 2005, or 2006 shall not again be counted toward
such limitation during fiscal year 2007. The provision sunset on
September 30, 2007. National Defense Authorization Act, sec. 1074,
Public Law No. 109-364 (Oct. 17, 2006).
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A USCIS-approved Form I-129, ``Petition for Nonimmigrant Worker''
(hereinafter, ``H-2B petition'') is required before a foreign worker
may seek H-2B nonimmigrant status. 8 CFR 214.2(h)(2)(i)(A). Depending
on the circumstances, the petitioner must be a U.S. employer, a U.S.
agent, or a foreign employer filing through a U.S. agent. 8 CFR
214.2(h)(6)(iii)(B). With a limited exception, an employer currently
may not file a petition for an H-2B temporary worker unless that
employer has obtained a temporary labor certification from the
Secretary of Labor (or the Governor of Guam for employment on Guam). 8
CFR 214.2(h)(6)(iv)(A) and (h)(6)(v)(A). To obtain a temporary labor
certification, a prospective employer must test the U.S. labor market
as to the availability of qualified U.S. workers and be willing to pay
the alien a salary that will not adversely affect the wages and working
conditions of similarly employed U.S. workers. 20 CFR 655.3(a); 8 CFR
214.2(h)(6)(iv)(A)(1). Based on the labor certification, the H-2B
petitioner files the H-2B petition with the appropriate USCIS service
center. See 8 CFR 214.2(h)(2)(i)(A). If, however, the petitioner
receives notice from the Secretary of Labor that the certification
cannot be made (referred to as a ``Non Determination Notice''), the
petitioner nevertheless may file the H-2B petition with USCIS, but must
include countervailing evidence to overcome the lack of such
certification. 8 CFR 214.2(h)(6)(iv)(D).
Under current regulations, an H-2B petitioner must, at the time of
filing, include in its petition the names of all beneficiaries, except
in emergent situations involving multiple beneficiaries. See 8 CFR
214.2(h)(2)(iii). The H-2B petition also must include documentation
that each beneficiary qualifies for the job offer as specified in the
labor certification, where such job requires any education, training,
experience, or other special requirements. 8 CFR 214.2(h)(6)(vi)(C).
The H-2B petition must establish that the petitioner's need for the
services or labor is temporary, regardless of whether the underlying
job is permanent or temporary. 8 CFR 214.2(h)(6)(ii). The petitioner's
need is considered temporary if it is a one-time occurrence, a seasonal
need, a peak-load need, or an intermittent need. 8 CFR
214.2(h)(6)(ii)(B). One-time occurrence employment is where the
employer has not employed workers to perform the services in the past
and will not need workers to perform the services in the future, or
where the employer has an employment situation that is otherwise
permanent but a temporary event of short duration has created the need
for a temporary worker. 8 CFR 214.2(h)(6)(ii)(B)(1). Employment of a
seasonal nature is recurring employment that is tied to a certain time
of year by a predictable event or pattern and requires labor levels far
above those necessary for ongoing operations. 8 CFR
214.2(h)(6)(ii)(B)(2). Employment involving a peak-load need is where
the employer regularly employs permanent workers to perform the
services or labor at the place of employment and the employer needs to
supplement the permanent staff on a temporary basis tied to a seasonal
or short-term demand. 8 CFR 214.2(h)(6)(ii)(B)(3). Such temporary peak-
load additions to staff may not become a part of the petitioner's
regular operation. Id. Intermittent need is where an employer has not
employed permanent or full-time workers to perform the services or
labor, but occasionally or intermittently needs temporary workers to
perform the services or labor for short periods. 8 CFR
214.2(h)(6)(ii)(B)(4).
As a general rule, the period of the petitioner's need must be less
than one year, absent extraordinary circumstances. 8 CFR
214.2(h)(6)(ii)(B). With certain exceptions for commuters and workers
who do not reside continually in the United States and whose employment
is seasonal, intermittent or for six months or less per year, an H-2B
nonimmigrant may hold H-2B nonimmigrant status for a maximum period of
three years, following which he or she must depart from the United
States for at least six months before he or she may again be admitted
in H-2B or any other status under section 101(a)(15)(H) or (L) of the
INA. 8 CFR 214.2(h)(13)(iv) and (v).
B. Effective Use of H-2B Nonimmigrant Classification
The H-2B program is most intensively used among businesses in
seasonal industries that frequently have a difficult time locating
temporary workers. USCIS is aware, however, that the current H-2B
program regulations do not accommodate as effectively as possible the
needs of U.S. employers and alien workers who use, or want to use, the
H-2B program. Therefore, USCIS is proposing a number of significant
changes to the H-2B regulations to reduce or eliminate burdens and
restrictions that hinder employers' ability to effectively use this
visa category. In addition, USCIS proposes to enhance the protection of
H-2B workers by curtailing abuses related to employment fees and visa
selling that could lead to human trafficking and alien worker
indenture. Additionally, worker protections are enhanced through
strengthened revocation and debarment procedures and employer sanctions
for a substantial or willful failure to meet the terms of the
attestations.
III. Proposed Regulatory Changes
A. Allowing Unnamed Beneficiaries
USCIS is proposing to amend 8 CFR 214.2(h)(2)(iii) to allow
employers petitioning for aliens to fill H-2B positions to specify only
the number of positions sought and not name the individual alien(s),
except where the alien is already present in the United States. The H-
2B program is overseen by three Federal government agencies: The
Department of Labor (DOL) issues the H-2B temporary labor
certifications and oversees compliance with employment laws; USCIS
adjudicates the H-2B petitions; and, if the petitions are approved, the
Department of State issues the H-2B visas to the workers at consulates
overseas. In the event that the Department and DOL work out a mutually
agreeable delegation of authority from DHS to DOL, enforcement of the
terms of the petition will be the responsibility of DOL. As this entire
process, from temporary labor certification to issuance of an H-2B
visa, can take up to several months, many H-2B employers often start
the temporary labor certification and
[[Page 49111]]
petitioning processes several months ahead of the actual date of stated
employment need. Having to name beneficiaries that far in advance
increases the likelihood that those beneficiaries may ultimately be
unavailable to fill the positions. By eliminating the requirement to
name beneficiaries outside of the United States on the petition, USCIS
believes that H-2B employers would have more flexibility to recruit
foreign workers who are actually interested in and available on the
date of stated need. Conforming amendments have been made to proposed 8
CFR 214.2(h)(6)(vi)(C).
B. Post-H-2B Waiting Period
Once an H-2B worker has reached the three-year ceiling on H-2B
nonimmigrant status, current regulations require the worker to wait six
months outside the United States immediately prior to filing for an
extension, change of status, or readmission to the United States in H-
2B status or other status under section 101(a)(15)(H) or (L) of the
INA. 8 CFR 214.2(h)(13)(iv). This rule proposes to reduce the required
absence period to three months. This would 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-2B program.
C. Prohibiting H-2B Petitions or Admissions for Nationals of Countries
That Consistently Refuse or Delay 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 ongoing 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 upon notification by
the Secretary of Homeland Security that the government of that country
refuses to accept their return. INA sec. 243(d), 8 U.S.C. 1253(d); see
also Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA) sec. 307, Pub. L. No. 104-208, 110 Stat. 3456 (September
30, 1996).
In an effort to further address this problem, this rule proposes to
preclude USCIS from approving a petition filed on behalf of one or more
aliens from countries that the Secretary of Homeland Security has found
to have consistently refused to accept or unreasonably delayed the
prompt return of their citizens, subjects, nationals or residents. See
proposed 8 CFR 214.2(h)(6)(i)(D); see also INA secs. 214(a)(1),
215(a)(1) and 243(d). The Secretary will periodically review
determinations that countries have consistently refused to accept or
unreasonably delayed accepting their nationals to ensure that 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.
DHS expects that the proposals in this rule will increase the
flexibility and attractiveness of the H-2B visa program, together with
the modernizing proposals the DOL is making in its H-2B rule. DHS
hereby invites comments from the public on additional or alternative
approaches to the repatriation problem described above, such as
restricting eligibility to nationals of countries that provide the most
cooperation to the United States in administering the program, rather
than 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.
D. Temporary Labor Certifications
1. Consideration of Petitions Lacking an Approved Temporary Labor
Certification
Upon proper application by a prospective employer, a temporary
labor certification is granted if the Secretary of Labor or the
Governor of Guam (for employment on Guam) determines that the H-2B non-
agricultural temporary worker will not displace U.S. workers and the H-
2B employment will not adversely affect the wages and the working
conditions of U.S. workers. Currently, if a petitioner receives a
notice from the Secretary of Labor or the Governor of Guam that
certification cannot be made, a petition containing countervailing
evidence to overcome this lack of certification may be filed with
USCIS. 8 CFR 214.2(h)(6)(iv)(D), (E), (h)(6)(v)(C), (D). In any case
where USCIS decides that approval of the H-2B petition is warranted
despite the issuance of a Non-Determination Notice by the Secretary of
Labor or the Governor of Guam, the approval must be certified by the
USCIS Administrative Appeals Office (AAO) pursuant to 8 CFR 103.4. 8
CFR 214.2(h)(9)(iii)(B)(2)(ii).
It is the view of DHS that, when the Secretary of Labor or the
Governor of Guam decides that she cannot make such a labor
certification determination, it would not be appropriate for USCIS to
review that decision by adjudicating a petition that lacks an approved
temporary labor certification. Thus, this rule proposes to eliminate
USCIS's current authority to adjudicate H-2B petitions where the
Secretary of Labor or the Governor of Guam has not granted a temporary
labor certification. Under this proposed rule, an H-2B petition may not
be filed with USCIS unless the Secretary of Labor or the Governor of
Guam has granted a temporary labor certification. Accordingly, this
rule proposes to make conforming amendments to 8 CFR
214.2(h)(1)(ii)(D), (h)(6)(iii)(C), (h)(6)(iii)(E), (h)(6)(iv)(A),
(h)(6)(iv)(D), (h)(6)(iv)(E), (h)(6)(v)(A), (h)(6)(v)(A)(2),
(h)(6)(v)(C), (h)(6)(v)(D), (h)(6)(vi)(A), (h)(6)(vi)(B), and
(h)(9)(iii)(B)(2) to reflect elimination of this current practice.
2. Employment Start Date
At present, USCIS allows employers to file a Form I-129 with a
start date that is later than what is stated on the approved temporary
labor certification, as long as the requested employment period on the
petition is within the validity period of the approved temporary labor
certification. This rule proposes to preclude this practice, as the
unintended consequences of this policy are that it unfairly benefits
employers with longer seasonal or temporary employment windows,
invalidates the labor market test certified by DOL in the approved
application for labor certification, and can be easily exploited by
certain employers to gain an advantage in obtaining H-2B visas from the
limited pool of 66,000 available each fiscal year. Under this proposed
rule, petitioners, with a limited exception discussed below, would not
be able to request an employment start date on Form I-129
[[Page 49112]]
that is different than the date of employment need listed on the
accompanying approved temporary labor certification. Proposed 8 CFR
214.2(h)(6)(iv)(D).
USCIS has determined that the current practice of allowing
employers to file a Form I-129 with a start date that is later than
what is stated on the temporary labor certification unfairly benefits
employers with longer seasonal or temporary employment windows as they
have the advantage of being able to file petitions before other
employers with a shorter timeframe. An employer may, for example,
submit a labor certification application requesting workers from
January 1 to October 31; this labor certification could be filed as
early as September 1 of the previous year, because the application for
labor certification may be submitted to DOL as early as 120 days prior
to the stated date of need. However, if the 33,000 cap for the first
half of that fiscal year (i.e., October 1-March 31) is reached before
the employer has an opportunity to file a petition with USCIS (note
that the cap for the first half of FY08 was reached on September 27,
2007), the earliest time when this employer will be able to receive H-
2B workers is April, when an additional new 33,000 H-2B visas become
available. Upon receipt of the approved labor certification for the
employment from January 1 to October 31, the employer may currently
file a Form I-129 petition with USCIS indicating that it will need a
workforce from April 1 to October 31 in order to receive the necessary
H-2B visa numbers allocated for the second half of the fiscal year.
However, submission of a petition with a start date later than the
start date of stated need on the approved labor certification in such a
circumstance, and thus potentially receiving workers for at least the
latter part of the employer's period of need, may currently only be
undertaken by employers with a lengthy, multiple-month need for
temporary workers. Employers in industries whose need for workers
arises only during a very brief seasonal period or for any shorter
period of time during the spring or summer cannot take advantage of
this because their period of need is too short to allow them the same
flexibility in shifting employment start dates. While such employers
with shorter periods of need must wait until later to apply for a labor
certification, employers with longer periods of need, as in the example
above, are able to get a head start in requesting H-2B visas from the
second half of the fiscal year. This does not ensure a fair and
equitable distribution of the H-2B visa numbers among all H-2B
employers throughout the year.
Furthermore, an appropriate labor market test must be conducted
prior to the determination by the Secretary of Labor as to whether
there are any U.S. workers available and capable of performing the
temporary services or labor and whether the H-2B employment will
adversely affect the wages and working conditions of U.S. workers.
According to DOL, the labor market test will be invalidated if the
employer changes the employment start date after the temporary labor
certification is granted (e.g., due to qualified U.S. worker
unavailability on the start date provided on the labor certification
application). USCIS agrees with DOL on this issue.
The H-2B classification is defined to include nonimmigrant foreign
workers who perform non-agricultural temporary services or labor if
United States workers who are capable of performing such services or
labor cannot be found. INA sec. 101(a)(15)(H)(ii)(B), 8 U.S.C.
1101(a)(15)(H)(ii)(b). The effect of a grant of a labor certification
is to certify that qualified workers in the United States are not
available ``at the time and place needed to perform the work'' for
which H-2B workers are being requested and that the H-2B employment
will not adversely affect the wages and working conditions of similarly
employed United States workers. See 20 CFR 655.3(b). As the
availability of temporary U.S. workers could change over short periods
of time, the result of the labor market test could be different if the
employment start date is changed after a labor certification is
approved. Therefore, the grant of the H-2B status based on a petition
which contains a later employment start date than what was stated on
the approved labor certification could have the practical effect of
precluding otherwise available United States workers from filling the
position in question, which is in violation of the statute.
Allowing employers to file a Form I-129 with a date that is later
than what is stated on the temporary labor certification, as long as
the employment period is within the validity period of the approved
temporary labor certification, also can be easily exploited by
employers whose period of need is actually shorter than the period
stated in the labor certification application, but who state a longer
need in order to move up the date on which they can file their H-2B
petition. Given how quickly the H-2B cap for each half of the fiscal
year has been reached in recent years (e.g., in FY 2008, the cap for
the second half of the fiscal year was reached on January 2, 2008), the
earlier an employer can file its petition the better are its chances of
getting H-2B visas for its workers.
In order to ensure a fair and equitable distribution of the 33,000
H-2B visa numbers becoming available each half fiscal year, this rule
proposes to generally preclude a change of the requested employment
start date on a Form I-129 from the date of employment need listed on
the accompanying temporary labor certification. See proposed 8 CFR
214.2(h)(6)(iv)(D). With the one limited exception stated below, if an
employer has a reason to change the requested employment start date
after a temporary labor certification was previously granted, it must
obtain a new temporary labor certification with the new employment
start date prior to filing a Form I-129 petition with USCIS. Id.
The exception to this prohibition on petitioners' requesting an
employment start date on Form I-129 that is different than the date on
the accompanying approved temporary labor certification would apply
when an amended H-2B petition, accompanied by the previously approved
temporary labor certification and a copy of the original petition
approval notice, is filed at a later date due to the unavailability of
the originally requested number of workers. The proposed rule would
permit the amended H-2B petition securing the remaining number of
workers that was originally approved in the labor certification to
state an employment start date that is later than what is stated in the
accompanying temporary labor certification. See Section L--Substitution
of Beneficiaries and proposed 8 CFR 214.2(h)(6)(viii).
E. Payment of Fees by Beneficiaries To Obtain H-2B Employment
1. Grounds for denial or revocation on notice
USCIS has found that certain labor recruiters and U.S. employers
are charging potential H-2B workers job placement fees in order to
obtain H-2B employment. Such workers are coming to the United States to
fill positions that U.S. workers are unwilling or unable to fill and
are frequently 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-2B workers from
such abuses, this rule proposes to provide USCIS with the authority to
[[Page 49113]]
deny or revoke upon notice any H-2B petition if it determines that the
petitioner knows or reasonably should know 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 the petitioner's
agent, or to any facilitator, recruiter, or similar employment service,
in connection with obtaining the H-2B employment. See proposed 8 CFR
214.2(h)(6)(i)(B); see also 8 CFR 214.2(h)(11)(iii)(A)(5) (revocation
on notice). To further ensure that an alien in such a situation has not
improperly incurred any expenses or debt in connection with obtaining
employment in the United States under the H-2B program, the rule also
proposes that an H-2B petitioner be required to demonstrate, as a
precondition to approval of any subsequent H-2B petition, that it has
reimbursed the alien beneficiary in full for any such fees or other
form of compensation (other than those for which the petitioner may be
reimbursed, as described in proposed 8 CFR 214.2(h)(6)(i)(B)(3)). Those
fees or other form of compensation also include those paid to the
petitioner, an agent, facilitator, or similar employment service
whether directly or indirectly, in connection with obtaining H-2B
employment, whether or not such alien has opted to seek H-2B employment
with another employer, as permitted under proposed 8 CFR
214.2(h)(6)(i)(B). For instance, the petitioner may submit a copy of
the financial transaction record or a receipt signed by the beneficiary
as evidence of reimbursement.
An H-2B employer will be subject to these provisions if it knows or
reasonably should know that its H-2B employees have been charged a fee
by anyone (other than those fees for which the petitioner may be
reimbursed, as described in proposed 8 CFR 214.2(h)(6)(i)(B)(3))
related to their placement as an H-2B worker with the employer. For
example, a recruiter advertises on the Internet or through other means
to prospective H-2B employers that it can place temporary alien workers
with such employers at no or minimal cost to the prospective employers.
In such a case, if there is evidence that the prospective employer knew
or reasonably should have known about the advertisement, it is
reasonable to expect it to question the recruiter generally as to how
it is able to provide such free services, and in particular, whether
the alien workers it finds have been or will be charged any direct or
indirect fee in connection with such placement. Failure to make such
reasonable inquiries will not relieve the employer of its obligations
under these provisions. Similarly, if an H-2B employer learns, directly
or indirectly, that a prospective H-2B worker has been asked to pay a
fee or other thing of value to a recruiter/facilitator or other
downstream party in connection with his/her employment with the U.S.
employer then the H-2B employer, in such a situation, will be deemed to
be on notice that its prospective employees have been or may be asked
to pay a job placement related fee by this recruiter/facilitator or
other downstream party, and can be expected to take reasonable steps to
ascertain whether this is in fact true.
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. While this proposal would
provide necessary protections against the alien worker's indenture,
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. Further, this reimbursement requirement would
not apply to the actual cost of transportation to the United States, or
payment of any government-specified fees required of persons seeking to
travel to the United States, such as those required by a foreign
government for issuance of passports and by the U.S. Department of
State for issuance of visas, provided that any such costs incurred be
the lower of the fair market value or the actual cost of the service
(unless the prospective employer has agreed with the alien to pay such
fees and/or transportation costs). The prospective employer would be
responsible, however, for the payment of any related indirect fees,
attorneys' fees, travel agent fees, and fees for assistance to prepare
visa application forms.
To provide protection to H-2B workers who are in the United States
based upon an approved petition that is later revoked pursuant to
proposed 8 CFR 214.2(h)(6)(i)(B), this rule proposes a thirty-day grace
period during which time such workers may apply for an extension of
stay, depart the United States, or find new employment. During the
thirty-day period, such workers, if they do not otherwise violate the
terms and conditions of their nonimmigrant admission in H-2B
classification, 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). This proposed rule, therefore,
would prevent such persons from accruing a period of ``unlawful
presence'' that might otherwise subject such persons to the statutory
bar on admissibility under that section of the INA.
Further, to minimize the costs to H-2B workers who are affected by
the revocation of a petition pursuant to proposed 8 CFR
214.2(h)(6)(i)(B), this rule also proposes to require employers who
know or reasonably should know the payment by the beneficiary of any
such job placement or related fees (other than those for which the
petitioner may be reimbursed, as described in 8 CFR
214.2(h)(6)(i)(B)(3)), to pay such workers' reasonable transportation
expenses to return to their last place of foreign residence, and, as
described above, to reimburse the alien for any fees or other
compensation of which the employer knew or reasonably should have known
(other than, in certain cases, transportation costs and any government-
mandated passport, visa and inspection fees) paid in connection with
obtaining H-2B employment with the petitioner. Proposed 8 CFR
214.2(h)(6)(i)(B).
2. Employer Attestation
USCIS recognizes that some H-2B petitioners, particularly those
petitioning for the first time and without the benefit of counsel, may
not appreciate the limitations on H-2B employment imposed by the
regulations or by the representations in the H-2B petition and the
accompanying application for temporary labor certification. This rule
proposes to require H-2B petitioners to include with their petitions an
attestation, certified as true and accurate by the petitioner and
signed 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, place of employment, nor the entities for which the
duties will be performed. Proposed 8 CFR 214.2(h)(6)(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-2B 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
[[Page 49114]]
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).
As an anti-fraud and worker protection measure to complement the
proposed changes to 8 CFR 214.2(h)(6)(i)(B), USCIS is further proposing
in 8 CFR 214.2(h)(6)(i)(C)(2) that the petitioning employer also
include in its attestation a statement that it has not received, nor
intends to receive, any fee, compensation, or any other form of
remuneration from the workers it intends to hire or from any person,
agency or other entity in connection with H-2B employment. 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-2B
petition, and if so, to provide the names of such facilitators,
recruiters, or placement services and whether it believes, to the best
of its knowledge, that any fees were paid or asked of its H-2B workers
by such third parties. Finally, the petitioner would be required to
attest to whether USCIS has previously determined that the H-2B
petitioner knew, or reasonably should have known that any fee,
compensation, or other form of remuneration has been collected,
directly or indirectly, in connection with the filing by the petitioner
of any previous H-2B petition on behalf of an alien, and if so, whether
the petitioner has reimbursed that alien in full for any such fees,
compensation, or other remuneration (other than, in certain cases
described above, certain government-mandated passport, visa and
inspection fees and/or transportation costs).
F. Denial of Petition and Revocation of Approval of Petition
USCIS is proposing to revise 8 CFR 214.2(h)(10)(ii) and 8 CFR
214.2(h)(11)(iii)(A)(2) to clarify USCIS' authority to issue a notice
of denial or revocation of a Form I-129 if USCIS determines that the
statements on the Form I-129 petition or application for labor
certification are inaccurate, fraudulent, or misrepresented a material
fact.
G. Employer Notifications to DHS of H-2B No-Show, Termination, or
Abscondment
USCIS also proposes to add 8 CFR 214.2(h)(6)(i)(E) to require
petitioners to provide notification to DHS within 48 hours in the
following instances: an H-2B worker fails to report to work within five
days of the date of the employment start date on the H-2B petition or
within five days of the start date established by his or her employer,
whichever is later; the non-agricultural labor or services for which H-
2B workers were hired is completed more than 30 days early; or an H-2B
worker absconds from the worksite or is terminated prior to the
completion of non-agricultural labor or services for which he or she
was hired. This proposal would ensure that an approved H-2B petition
filed by an employer is closed out when the basis for the alien's
status terminates and that USCIS is made aware of the change in
employment status. The rule also proposes that the petitioner notify
DHS beginning on a date and in a manner specified via notice published
in the Federal Register.
To enforce the notification provision, the rule proposes to require
employers to retain evidence (e.g., a photocopy) of the notification
for a one-year period. See proposed 8 CFR 214.2(h)(6)(i)(E).
Additionally, the rule proposes to add a provision setting forth the
circumstances in which an H-2B 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)(6)(i)(E). The definition employs
the same five-day period used to trigger a notification requirement
when the alien does not report to work at the beginning of the petition
period.
H. Violations of H-2B Status
Currently, the regulations governing the H-2A classification
include a provision regarding the consequences to aliens for violating
H-2A status. See 8 CFR 214.2(h)(5)(viii)(A). The regulations governing
the H-2B classification do not contain such a provision. USCIS has
determined that there is no reason for this disparity. In order to
further the integrity of the H-2B program, DHS is proposing to add a
new provision in the H-2B regulations at 8 CFR 214.2(h)(6)(ix) that
would preclude a new grant of H-2B status where the alien worker
violated the conditions of H-2B status, other than through no fault of
his or her own, within the five years prior to adjudication of the new
H-2B petition by USCIS.
I. Temporary Worker Visa Exit Program 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 United States, 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(a) 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 his or her authorized period of stay. DHS intends
to strengthen its departure control recordkeeping 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 agricultural workers depart the
United States within the authorized period, on February 13, 2008, DHS
published a notice of proposed rulemaking to amend its regulations
regarding the H-2A nonimmigrant classification, in which it proposed to
institute a temporary worker visa exit pilot program and to require
certain H-2A temporary agricultural workers to participate in this
program. 73 FR 8230. Under the proposed program, an H-2A alien admitted
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.
This rule proposes to expand this temporary worker visa exit pilot
program to the H-2B classification by requiring an H-2B alien admitted
at a port of entry participating in the program to depart through a
port of entry participating in the program and to present designated
biographic and/or biometric information upon departure at the
conclusion of the authorized period of stay. CBP would publish a Notice
in the Federal Register designating which
[[Page 49115]]
temporary workers must participate in the program, 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 designated temporary workers. The pilot
program exit system would ensure that the designated temporary workers
depart when their period of authorized stay 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 previously conducted exit pilot programs at selected air and
sea ports of entry through the 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. US-VISIT also
conducted a limited pilot program at selected land borders to test
radio frequency technology. See 70 FR 44934. That pilot did not collect
information from aliens departing the United States.
The pilot program exit system proposed under this rule will utilize
any applicable lessons learned from the US-VISIT pilot programs. DHS
will continue to coordinate these screening programs to ensure both
security and efficiency of the programs.
J. Temporary Need
Under current regulations the period of a petitioner's need for H-
2B workers ``must be a year or less although there may be extraordinary
circumstances where the temporary services or labor might last longer
than one year.'' 8 CFR 214.2(h)(6)(ii)(B). USCIS has determined that
the general one-year limit contained in the current definition of a
petitioner's temporary need for the services or labor performed by an
H-2B alien, coupled with the ``extraordinary circumstances''
restriction on periods of need lasting longer than a year, is
unnecessarily limiting on the employment opportunities that may
otherwise qualify for H-2B classification. See 8 CFR
214.2(h)(6)(ii)(B). This rule therefore proposes to amend the current
definition of ``temporary services or labor.'' Under the proposed rule,
a job would be defined to be temporary where the employer needs a
worker to fill the job for a limited period of time. The term ``limited
period of time'' is in turn defined as a period of need that will end
in the near, definable future. As under the current regulations, USCIS
would generally consider a period of temporary need to be limited to
one year or less, but the proposed rule eliminates the ``extraordinary
circumstances'' restriction on periods longer than a year and
explicitly provides that such a period could last up to three years.
USCIS is proposing this change because there are some employers who
may need temporary workers for a specific project, such as the
construction of a specific building, structure (e.g., bridge, power
plant) or other development, which will have a definable end point but
may require more than one year to complete. Under this proposal, an
employer's need for the duties to be performed by H-2B workers can be
considered temporary if it is a one-time occurrence and does not exceed
three years. An employer with a multiple-year need is, however,
required to retest the labor market annually and obtain a temporary
labor certification annually. This contrasts with the nature of
temporary work in the agricultural sector performed under the H-2A visa
program, which generally is seasonal. USCIS believes that a more
flexible rule that generally limits temporary work to one year but
explicitly allows it to last up to three years better comports with the
nature of temporary work in the H-2B context but is not at this time
necessary in the H-2A context.
This rule also proposes to make a conforming amendment to 8 CFR
214.2(h)(9)(iii)(B)(1).
K. Interruptions in Accrual Towards 3-Year Maximum Period of Stay
An alien's total period of stay in H-2B nonimmigrant status may not
exceed three years. 8 CFR 214.2(h)(15)(ii)(C). In H-2A nonimmigrant
status, there are certain periods of time spent outside the United
States that 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 to
apply the same standard to H-2B nonimmigrant status. This will also
clarify what constitutes continuous presence in H-2B nonimmigrant
status. See proposed 8 CFR 214.2(h)(13)(i)(B) and (h)(13)(v).
L. Substitution of Beneficiaries
USCIS understands that there are instances when an employer is not
successful in finding and/or bringing from abroad the intended number
of workers, as approved on the temporary labor certification and the
Form I-129. In a continued and subsequent effort to fill vacant
positions, an employer may be able to find workers it could hire who
are currently legally in the United States. USCIS' current regulations
regarding the substitution of H-2B beneficiaries do not provide a
process for an employer to substitute beneficiaries with aliens who are
currently in the United States. 8 CFR 214.2(h)(2)(iv). This rule
proposes to re-designate this paragraph as paragraph (h)(6)(viii) and
provides a clarified process based on possible situations that an H-2B
employer may encounter. See proposed 8 CFR 214.2(h)(6)(viii).
M. Employer Sanctions
Section 214(c)(14)(A)(i) of the INA provides DHS with the authority
to impose certain administrative remedies (including civil monetary
penalties) as it deems appropriate if DHS finds, after notice and an
opportunity for a hearing, a substantial failure to meet any of the
conditions of the H-2B petition or a willful misrepresentation of a
material fact in such petition. Section 214(c)(14)(A)(ii) of the INA,
in turn, provides DHS with the authority to deny petitions filed with
respect to an offending employer under section 204 or 214(c)(1) of the
INA during a period of at least one year, but not more than five years,
if DHS finds, after notice and an opportunity for a hearing, a
substantial failure to meet any of the conditions of the H-2B petition
or a willful misrepresentation of a material fact in such petition.
Under this provision, petitions for workers in the H (except for H-
1B1), L, O and P-1 nonimmigrant visa classifications may be barred. See
INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1).
DHS interprets section 214(c)(14)(B) of the INA, in conjunction
with 214(c)(14)(A) of the INA, to permit DHS to delegate to DOL the
authority to make such a finding and impose the administrative remedies
authorized by section 214(c)(14)(i) of the INA. DHS is currently in
discussions with DOL concerning whether to delegate authority to DOL to
establish an enforcement process to investigate employers' compliance
with H-2B requirements, including new requirements in proposed 8 CFR
214.2(h)(6)(i)(B) and (C), and to seek remedies for violations
disclosed by any resulting investigations. This proposed rule describes
potential immigrant and nonimmigrant petition debarment procedures
USCIS could institute in the event that DHS and DOL reach a mutually
agreeable delegation of enforcement authority from DHS to DOL. See
proposed 8 CFR 204.5(o) and 8 CFR 214.1(k).
USCIS seeks comment on other means to encourage employer compliance
with the terms and conditions of petitions to DHS as well as filings
with other governmental agencies.
[[Page 49116]]
N. Miscellaneous Changes
USCIS is proposing to amend 8 CFR 214.2(h)(6)(iii)(B),
214.2(h)(6)(v)(E)(2)(iii), and 214.2(h)(6)(vii) to correct
typographical errors. USCIS is also proposing to amend 8 CFR
214.2(h)(8)(ii)(A) to codify the current numerical counting procedures
for the H-2B classification.
IV. Rulemaking Requirements
A. 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.
B. 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.
C. 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. A complete analysis of
the costs and benefits of this rule is available in the docket for this
rule at www.regulations.gov in rulemaking Docket No. USCIS-2007-0058.
The impacts of the changes proposed in this rule are summarized as
follows:
Filing volumes. The number of petitions filed by H-2B
employers is expected to increase, but the annual volume of petitions
processed will not change because the maximum number of available visas
will not change, absent action from Congress. Therefore, the increased
volume will result in more petitions being returned without depositing
their fee payment or reviewing the petition.
Decreased processing times. The average USCIS processing
time for an H-2B petition of around 60 days will decrease as a result
of petitioners not being required to name the individual alien on
initial H-2B petitions. USCIS will not have to perform an Interagency
Border Inspection System (IBIS) name check, removing the largest source
of delays in the processing of H-2B petitions.
Increased flexibility for longer-term projects. By
eliminating the ``extraordinary circumstances'' restriction on periods
longer than a year and explicitly providing that such a period could
last up to three years, this proposed rule would benefit employers who
need workers for a specific project that will take longer than one year
to complete.
No effect on labor pool. Because of the statutory maximum
on the annual number of H-2B visas available, this rule will result in
no increase in the availability of temporary seasonal workers. There
may be some slight benefit from helping employers fill jobs and find
workers more efficiently, but businesses will still be constrained by a
limited labor supply.
More attractive program. The administrative improvements
proposed in this rule are intended to make employers more likely to
participate in the program. This may cause some employers who currently
hire seasonal workers who are not properly authorized to seek to
replace those workers with lawful workers.
Better control and monitoring of employees. By requiring
an employer to notify USCIS quickly after the employer terminates an
alien's employment, immigration authorities will have better
information regarding the presence in the U.S. of an alien without
legal immigration status to determine his or her whereabouts for
enforcement measures.
No changes in fee collections. Only those H-2B petitions
received before the maximum annual number of H-2B visas is reached are
adjudicated and the fee check deposited. Petitions not received before
the maximum annual number is reached are rejected. Because the total
number of H-2B visas available per year will not increase and the total
number of workers requested already greatly exceeds the number of H-2B
visas available, fees will not increase because there will be no
increase in Form I-129 filings that are processed.
Increase in petitions filed. The administrative
improvements proposed by this rule are expected to result in more
petitions for H-2B workers being submitted to USCIS. Therefore, the
aggregate burden imposed on the public may increase in relation to the
additional respondents who will file a Form I-129 as a result of this
rule's proposed changes. However, since the total number of workers
requested already greatly exceeds the number of H-2B visas available,
more petitions will not be processed and/or approved.
Repatriation provision effects will be slight. This rule
proposes to prohibit approval of an H-2B petition for a worker from a
country that consistently denies or unreasonably delays repatriation of
its citizen, subjects, nationals, or residents. The current impact of
this proposed change is expected to be negligible, since very few H-2B
workers are from countries DHS believes may see an impact from this
provision. In addition, since the total number of workers requested
exceeds the number of H-2B visas available, such impacts as may occur
would represent transfers from one country's workers to another.
Costs of exit registration requirement is low. Under the
proposed rule, certain aliens admitted on H-2B visas must comply with
the DHS Biometric Exit Pilot. An alien admitted at a port of entry
participating in the program 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. The annual undiscounted costs of the time
for H-2B employees to exit as required under this rule is estimated to
be around $136,500.
Restrictions on recruitment or placement fees--added
compliance costs to petitioning firms. Petitioners must demonstrate
that they have reimbursed alien beneficiaries in full for any such fees
or other form of compensation (other than those for which the
petitioners may be reimbursed) or risk denial of their petition. Most
foreign worker recruiters charge each H-2B employee about $500.00
(inclusive of visa fees and some other fees) and USCIS believes most H-
2B workers use a recruiter, or adviser of some sort in their home
country. Some companies provide discounts to repeat customers for their
placement fee and offer referral fees to workers who refer their
friends and family to the program. Most of the recruiting companies
refund or do not collect fees if the applicant's visa is denied at the
embassy. An employer, on the other hand, pays from $500 to $4,000, per
H-2B employee, including expenses, depending on the complexity of the
situation, the home country, and the skills needed for the position. By
barring petitions when the alien has reimbursed the petitioner for
recruitment or job placement fees or
[[Page 49117]]
requiring a showing in a future petition that the petitioner has
reimbursed the alien for such fees, this rule will effectively ban the
payment of fees by the alien beneficiary above the visa fees, travel
expenses and other normal expenses. Since the majority of H-2B
employees are estimated to pay such fees, and such practices are
expected to continue, this will result in a transfer of those costs to
employers. If the entire $500 fee is considered a recruitment or
placement fee, the estimated costs of this requirement is about $4,500
per employer, based on an average of 9 employees sponsored by each
participating employer, or about $33 million total for all 66,000 H-2B
employees per year.
Added transportation cost negligible. The impact of
requiring employers to pay workers' transportation expenses to return
to their last place of foreign residence when there is a determination
that they knew or reasonably should have known about the payment by the
beneficiary of any job placement or related fees is expected to be
negligible, because employers would be expected to reimburse the alien
before being subjected to this sanction.
Ramifications for firms that collect a fee from the
employee. This rule will have an impact on employee recruiters,
although the exact effects are not certain. USCIS has no data on the
number of firms that recruit workers in foreign countries to come to
the United States as H-2B employees, but the majority of H-2B workers
are believed to use such a service. The proposal to reject petitions
where there have been such fees charged the employee could have
substantial ramifications for these firms, because their collecting a
fee from the employee will put the employee at risk of being determined
ineligible for the benefit for which they are assisting the employee in
obtaining.
Reduced government burden and costs. This rule is expected
to reduce costs for the government by terminating the review of
petitions approved based on countervailing evidence and the related
mandatory H-2B reviews. Employees handling these reviews will be able
to focus on eliminating application and petition backlogs for other
benefits.
D. Regulatory Flexibility Act--Initial Regulatory Flexibility Analysis
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121), requires Federal agencies to conduct a
regulatory flexibility analysis which describes the impact of the
proposed rule on small entities whenever an agency is publishing a
notice of proposed rulemaking such as this one.
1. Description of and, where feasible, an estimate of the number of
small entities to which the proposed rule will apply
a. Regulated entities
The four industries that are dominant users of the H-2B program are
the landscaping, hotel, construction, and forestry industries,
according to Department of Labor data on the participants in the
employment-based visa program. The Small Business Administration (SBA)
Small Business Size Regulations at 13 CFR part 121 provide standards
for how large a for-profit concern can be and still qualify as a small
business for Federal Government programs, based on the firm's average
annual receipts and or the average employment of a firm. The SBA
standards indicate that firms in landscaping, forestry, and hotels with
average gross annual sales below $6.5 million are small businesses. For
building contractors, the small business size guideline is maximum
sales of $31 million and 500 employees.
b. Number of small entities to which the proposed rule will apply
Based on the above definitions, the U.S. Census Bureau's 2002
Economic Census reported that approximately 99.9 percent of employers
in the construction industry, 95 percent in the forestry and
landscaping industry, and 90.8 percent of those in the accommodation
and food services industry were small businesses.\2\ If the proportion
of small employers participating in the H-2B program is similar to the
overall market, these figures imply that, of the 15,000 Form I-129
filings per year for H-2B employees, at least 14,000 will be filed by
small businesses looking to hire a seasonal worker. Therefore, this
rule applies mainly to small businesses.
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\2\ U.S. Department of Commerce, Economics and Statistics
Administration, U.S. Census Bureau, at http://www.census.gov/prod/ec02/ec0223sg1t.pdf. Page 9.
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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 a new ``reporting'' or ``recordkeeping''
requirement within the meaning of the Paperwork Reduction Act. The rule
does not require professional skills for the preparation of ``reports''
or ``records'' under that Act.
The mechanism and parameters of the absconder reporting requirement
are proposed in this rule at 8 CFR 214.2(h)(6)(i)(E)(1). The actual
reporting requirements will be imposed when the Federal Register notice
instructing approved petitioners on how, where, and what to report in
accordance with that section is published. The Paperwork Reduction Act
requirements will be complied with along with approval of that notice
at that time after the remainder of the requirements of this rule have
taken effect. DHS will obtain OMB approval and a new OMB control number
of the requirements established at that time.
b. New Reporting Requirement
Reporting requirements will under 8 CFR 214.2(h)(6)(i)(E)(1) of
this rule be provided via notice published in the Federal Register.
This rule also adds recordkeeping requirements, because the petitioner
will also be required to retain evidence of notification for a one-year
period beginning from the date of the notification. DHS has no basis
for estimating the cost of this new requirement on H-2B employers at
this time and requests further comment on the actual costs or
expenditures, if any, of the impact on firms as a result of this new
reporting and recordkeeping 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. However, there are areas of interplay and dependency
between this rule and those of the U.S. Department of Labor (DOL). For
example, a proposed rule was recently published by DOL proposing
changes that comport with this rule and vice versa. 73 FR 29942 (May
22, 2008). As noted below, DHS seeks comments and information about
duplicative rules, as well as any other state, local, or industry rules
or policies that impose similar requirements as those in this proposed
rule. Comments pointing out provisions of this rule that duplicate,
contradict, or are better suited for inclusion in the regulations of
another Federal agency are welcome.
[[Page 49118]]
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
Alternatives considered. The proposal in this rule that provides
that petitions where a recruitment or finder's fee paid by an employee
will be denied, may have an impact on a substantial number of small
entities engaged in the foreign worker recruiting business. As a
result, to regulate the practice of charging the alien beneficiary a
placement or finder's fee in the home country, DHS considered the
following alternatives.
1. Prohibit the sponsoring employer from passing along any fees
or expenses associated with finding, petitioning for, and hiring the
employee through payroll deductions, or any other methods. This
requirement would mirror the requirements proposed by DOL that would
prohibit employers from passing any of the expenses associated with
obtaining a labor certification on to the employee. This option was
not proposed because USCIS felt that imposing this requirement would
have no effect on the practice of charging H-2B employees in the
home country, which is the practice that has been the subject of
numerous fraud complaints that the change is intending to address.
Further, USCIS research indicates that most employers do not pass
their administrative costs for finding or hiring the employee on to
the employee, thus that restriction would serve no purpose.
2. Establish a maximum allowable recruitment fee. This option
was not adopted for the proposed rule because USCIS has insufficient
data on which to base such a fee. The maximum or reasonable
recruiting fee would need to be based on the market value for the
services provided to the alien beneficiary. An informal guideline
has been suggested that if the fee is so high that the applicant
would be tempted to stay longer than the visa expiration to make it
worth his while, then the fee is exorbitant. However, defining a fee
standard is not subjective. USCIS could not establish a valid fee
amount without a thorough analysis, and the available information on
the foreign worker recruiting industry is not sufficiently complete
so as to afford such an analysis. USCIS feels that the employer
would be in a stronger negotiating position than the alien to
determine the proper fee. By establishing that the employer must
reimburse the employee for the fee, or have the petition rejected or
revoked, USCIS believes exorbitant fees will not be paid.
3. Maintain status quo, and propose no provisions regarding
employee paid fees. USCIS has seen numerous reports recently of
recruiters advertising that they can place temporary alien workers
with such employers at no or minimal cost to the U.S. employers, and
of employees being subjected to extortion or exorbitant fees.
Therefore, some action was deemed necessary in the H-2B rulemaking
context to provided added protections to workers while increasing
the flexibility of the program for employers.
4. Fines. DHS considered promulgating regulatory authority to
impose a fine of several thousand dollars against an agent or
employer in the event that an agent and/or the employer were found
to have knowledge of aliens being charged exorbitant fees or
otherwise subject to abusive practices. The fine would depend upon
the number of aliens involved. The agent or employer would be barred
from being able to file any H-2B petitions with USCIS for two years.
This option was not proposed because the level of the fine would be
difficult to determine and the amount established could be viewed as
arbitrary. Also, the level of fee to consider as exorbitant and
practices to be considered abusive would have to be researched
considerably for this provision to be effective.
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-2B employers, including the
time frame for reporting in 8 CFR 214.2(h)(6)(i)(E).
ii. The requirement for petitioners to reimburse H-2B workers under
8 CFR 214.2(h)(6)(i)(B).
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; 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-2B worker to be out of the
country.
c. Encouraging employers that currently hire temporary
nonagricultural workers who are not properly authorized to work in the
United States to replace those workers with legal workers.
d. Minimizing immigration fraud and protecting 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.
E. 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 aliens to comply with the pilot program, rather than placing a
requirement on the employers, the employers are not directly impacted
by this provision of the proposed rule. Employers, including small
entities, are free to offer assistance to their H-2B 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.
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
[[Page 49119]]
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 does not impose any new reporting or record-keeping
requirements. This rule requires that a petitioner submit Form I-129,
seeking to classify an alien as an H-2B 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, this rule requires that certain H-2B workers departing the
United States participate in a temporary worker visa exit pilot
program. This requirement will add to the number of respondents
approved by OMB for the information collections in OMB control number
1600-0006, U.S. Visitor Immigrant Status and Indicator Technology (US-
VISIT). When this rule is final, DHS will submit a request for a non-
substantive change to OMB to account for this requirement's added
burden.
List of Subjects
8 CFR Part 204
Administrative practice and procedure, Immigration, Reporting and
recordkeeping requirements.
8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
programs, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements.
8 CFR Part 215
Administrative practice and procedure, Aliens, Travel restrictions.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is proposed to be amended as follows:
PART 204--IMMIGRANT PETITIONS
1. The authority citation for part 204 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1184,
1186a, 1255, 1641; 8 CFR part 2.
2. Section 204.5 is amended by adding paragraph (o) to read as
follows:
Sec. 204.5 Petitions for employment-based immigrants.
* * * * *
(o) Denial of petitions under section 204 of the Act based on a
finding by the Department of Labor. Upon a finding by the Department of
Labor pursuant to section 214(c)(14)(A) of the Act that a petitioner
substantially failed to meet any of the conditions of the H-2B petition
or otherwise failed to provide H-2B status, or willfully misrepresented
a material fact in such petition, USCIS may deny any employment-based
immigrant petitions filed by that petitioner for a period of at least 1
year but not more than 5 years. The period of such bar to petition
approval shall be based on the severity of the violation or violations.
The decision to deny petitions, the time period for the bar to
petitions, and the reasons for the time period will be explained in a
written notice to the petitioner.
PART 214--NONIMMIGRANT CLASSES
3. The authority citation for part 214 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant
to Executive Order 13323, published January 2, 2004), 1186a, 1187,
1221, 1281, 1282, 1301-1305; 1372; 1379; 1731-32; sec. 14006, Pub.
L. 108-287; sec. 643, Pub. L. 104-208; 110 Stat. 3009-708; section
141 of the Compacts of Free Association with the Federated States of
Micronesia and the Republic of the Marshall Islands, and with the
Government of Palau, 48 U.S.C. 1901, note, and 1931, note,
respectively.
4. Section 214.1 is amended by adding paragraph (k) to read as
follows:
Sec. 214.1 Requirements for admission, extension, and maintenance of
status.
* * * * *
(k) Denial of petitions under section 214(c) of the Act based on a
finding by the Department of Labor. Upon a finding by the Department of
Labor pursuant to section 214(c)(14)(A) and (B) of the Act that a
petitioner substantially failed to meet any of the conditions of the H-
2B petition or otherwise failed to provide H-2B status, or willfully
misrepresented a material fact in such petition, USCIS may deny any
petition filed by that petitioner for nonimmigrant status under section
101(a)(15)(H) (except for status under section 101(a)(15)(H)(i)(b1)),
(L), (O), and (P)(i) of the Act for a period of at least 1 year but not
more than 5 years. The period of such bar to petition approval shall be
based on the severity of the violation or violations. The decision to
deny petitions, the time period for the bar to petitions, and the
reasons for the time period will be explained in a written notice to
the petitioner.
5. Section 214.2 is amended by:
a. Revising paragraph (h)(1)(ii)(D);
b. Revising paragraph (h)(2)(iii);
c. Redesignating paragraph (h)(2)(iv) as paragraph (h)(6)(viii),
and by reserving paragraph (h)(2)(iv);
d. Revising paragraph (h)(6)(i);
e. Revising paragraph (h)(6)(ii)(B) introductory text;
f. Revising the word ``amendable'' to read ``amenable'' in the
second sentence in paragraph (h)(6)(iii)(B);
g. Adding the word ``favorable'' immediately after the phrase ``has
obtained a'' in paragraph (h)(6)(iii)(C);
h. Adding the word ``favorable'' immediately after the phrase
``After obtaining a'' in paragraph (h)(6)(iii)(E);
i. Revising paragraph (h)(6)(iv)(A);
j. Revising paragraph (h)(6)(iv)(D);
k. Removing paragraph (h)(6)(iv)(E);
l. Revising paragraph (h)(6)(v)(A);
m. Removing and reserving paragraphs (h)(6)(v)(C) and (D);
n. Adding the word ``States'' immediately before ``and'' in the
first sentence in paragraph (h)(6)(v)(E)(2)(iii);
o. Revising paragraph (h)(6)(vi)(A);
p. Removing and reserving paragraph (h)(6)(vi)(B);
q. Revising paragraph (h)(6)(vi)(C);
r. Removing the period at the end of paragraph (h)(6)(vi)(D), and
adding a ``; or'' in its place;
s. Revising the word ``or'' to read ``to'' in the first sentence in
paragraph (h)(6)(vii);
t. Revising newly designated paragraph (h)(6)(viii);
u. Adding new paragraph (h)(6)(ix);
v. Adding new paragraph (h)(6)(x);
w. Revising paragraph (h)(8)(ii)(A);
x. Revising paragraph (h)(9)(iii)(B)(1);
y. Revising paragraph (h)(10)(ii);
z. Revising paragraph (h)(11)(iii)(A)(2);
aa. Revising paragraph (h)(13)(i)(B);
bb. Revising paragraph (h)(13)(iv); and by
cc. Revising paragraph (h)(13)(v).
The revisions read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(1) * * *
(ii) * * *
(D) An H-2B classification applies to an alien who is coming
temporarily to the United States to perform non-agricultural work of a
temporary or seasonal nature, if there are not sufficient workers who
are able, willing, qualified, and available at the time of application
for a visa and admission to
[[Page 49120]]
the United States and at the place where the alien is to perform such
services or labor. This classification does not apply to graduates of
medical schools coming to the United States to perform services as
members of the medical profession. The temporary or permanent nature of
the services or labor to be performed must be determined by USCIS. This
classification requires a temporary labor certification issued by the
Secretary of Labor or the Governor of Guam prior to the filing of a
petition with USCIS.
* * * * *
(2) * * *
(iii) Naming beneficiaries. H-1B, H-1C, and H-3 petitions must
include the name of each beneficiary. Except as provided in this
paragraph (h), 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. 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 associated with that temporary labor certification.
(iv) [Reserved.]
* * * * *
(6) * * *
(i) Petition--(A) H-2B non-agricultural temporary worker. An H-2B
non-agricultural temporary worker is an alien who is coming temporarily
to the United States to perform temporary services or labor, is not
displacing qualified United States workers available to perform such
services or labor, and whose employment is not adversely affecting the
wages and working conditions of United States workers.
(B) Prohibition on fee collection from alien beneficiaries.
(1) Denial or revocation of petition. No fee or other compensation
(either direct or indirect) may be collected from a beneficiary of an
H-2B petition by a petitioner, agent, facilitator, recruiter, or
similar employment service in connection with an offer or condition of
H-2B employment (other than the lower of the actual transportation
costs or fair market value of such transportation costs and any
government-mandated passport, visa or inspection fees, if the employer
has not agreed with the alien to pay such costs and fees). If USCIS
determines that the petitioner has collected, or entered into an
agreement to collect, such fee or compensation or that the petitioner
knows or reasonably should know that the beneficiary has paid or agreed
to pay any facilitator, recruiter, or similar employment service in
connection with obtaining the H-2B employment, the H-2B petition will
be denied or revoked on notice.
(2) Effect of petition revocation. Upon revocation of an H-2B
petition based upon paragraph (h)(6)(i)(B)(1) 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-2B petition filed by a different employer.
(3) Reimbursement as condition to approval of future H-2B
petitions. Where it has been determined that a fee or other
compensation (either direct or indirect) was collected from a
beneficiary of an H-2B petition by the petitioner, agent, facilitator,
recruiter, or similar employment service in connection with an offer or
condition of H-2B employment (other than the lower of the actual
transportation costs or fair market value of such transportation costs
and any government-mandated passport, visa or inspection fees, if the
employer has not agreed with the alien to pay such costs and fees), and
the H-2B petitioner knew, or reasonably should have known such payment
by the beneficiary, the H-2B petitioner must demonstrate to the
satisfaction of USCIS that the petitioner has reimbursed the alien in
full for such fees, compensation, or other remuneration as a condition
to approval of any subsequent H-2B petition filed by such petitioner.
(C) Petitioner's attestation. A petition must include an
attestation by the petitioner, certified as true and accurate by an
appropriate official of the petitioner, of the following:
(1) 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.
(2) Whether it received, directly or indirectly, any fee or other
form of compensation from any alien beneficiary or 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 H-2B workers in connection with H-2B
employment, and if so, the name of any recruiter, facilitator, or
similar employment service used to locate H-2B workers.
(3) To the best of its knowledge, whether any alien beneficiary has
provided, or intends to provide, any remuneration, direct or indirect,
to any such recruiter, facilitator, or similar employment service in
connection with his or her H-2B employment; and
(4) Whether there has been any previous determination by USCIS that
any fee, compensation, or other form of remuneration has been
collected, directly or indirectly, from an alien beneficiary of the
current H-2B petition in connection with the filing by the petitioner
of any previous H-2B petition, and if so, whether the petitioner has
reimbursed the alien in full for any such fees, compensation, or other
remuneration (other than the lower of the actual transportation costs
or fair market value of such transportation costs and any government-
mandated passport, visa or inspection fees, if the employer has not
agreed with the alien to pay such costs and fees).
(D) Petitions for nationals of countries that refuse repatriation.
No H-2B 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.
(E) Petitioner agreements and notification requirements--(1)
Agreements. The petitioner agrees to notify DHS, within 48 hours, and
beginning on a date and in a manner specified in a notice published in
the Federal Register if: An H-2B worker fails to report for work within
5 days after the employment start date stated on the petition or within
five days of the start date established by his or her employer,
whichever is later; the non-agricultural labor or services for which H-
2B workers were hired is completed more than 30 days early; or an H-2B
worker absconds from the worksite or is terminated prior to the
completion of
[[Page 49121]]
non-agricultural labor or services for which he or she was hired. The
petitioner also agrees 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.
(2) Abscondment. An H-2B worker has absconded if he or she has not
reported for work for a period of 5 consecutive work days without the
consent of the employer.
(ii) * * *
(B) Nature of petitioner's need. Employment is of a temporary
nature when the employer needs a worker for a limited period of time.
That means the employer must establish that the need for the employee
will end in the near, definable future. Generally, that period of time
will be limited to one year or less, but in the case of a one-time
occurrence event, could last longer than one year and up to three
years. The petitioner's need for the services or labor shall be a one-
time occurrence, a seasonal need, a peak load need, or an intermittent
need.
* * * * *
(iv) * * *
(A) Secretary of Labor's determination. An H-2B petition for
temporary employment in the United States, except for temporary
employment on Guam, shall be accompanied by an approved labor
certification from the Secretary of Labor stating that qualified
workers in the United States are not available and that the alien's
employment will not adversely affect wages and working conditions of
similarly employed United States workers.
* * * * *
(D) Employment start date. An H-2B petition must state an
employment start date that is the same as the date of employment need
stated on the approved temporary labor certification. A petitioner
filing an amended H-2B petition due to the unavailability of originally
requested workers may state an employment start date that is later than
the date of employment need stated on the previously approved temporary
labor certification that is accompanying the amended H-2B petition.
(v) * * *
(A) Governor of Guam's determination. An H-2B petition for
temporary employment on Guam shall be accompanied by an approved labor
certification determination from the Governor of Guam stating that
qualified workers in the United States are not available to perform the
required services, and that the alien's employment will not adversely
affect the wages and working conditions of United States resident
workers who are similarly employed on Guam.
(C) [Reserved.]
(D) [Reserved.]
* * * * *
(vi) * * *
(A) Labor certification. A temporary labor certification issued by
the Secretary of Labor or the Governor of Guam, as appropriate;
(B) [Reserved.]
(C) Alien's qualifications. In petitions where the labor
certification application requires certain education, training,
experience, or special requirements of the beneficiary who is present
in the United States, documentation that the alien qualifies for the
job offer as specified in the application for labor certification;
* * * * *
(viii) Substitution of beneficiaries. Beneficiaries in H-2B
petitions that are approved for named or unnamed beneficiaries who have
not been admitted may be substituted only if the employer can
demonstrate that the total number of beneficiaries will not exceed the
number of beneficiaries certified in the original labor certification.
Beneficiaries who have been admitted may not be substituted without a
new petition accompanied by a newly approved labor certification.
(A) To substitute beneficiaries who were previously approved for
consular processing but have not been admitted with aliens who are
outside of the United States, the petitioner shall, by letter and a
copy of the petition approval notice, notify the consular office at
which the alien will apply for a visa or the port of entry where the
alien will apply for admission. The petitioner shall also submit
evidence of qualifications of beneficiaries to the consular office or
port of entry prior to issuance of a visa or admission, if applicable.
(B) To substitute beneficiaries who were previously approved for
consular processing but have not been admitted with aliens who are
currently in the United States, the petitioner shall file an amended
petition with fees at the Service Center where the original petition
was filed, with a copy of the original petition approval notice, a
statement explaining why the substitution is necessary, evidence of the
qualifications of beneficiaries, if applicable, evidence of the
beneficiaries' current status in the United States, and evidence that
the number of beneficiaries will not exceed the number allocated on the
approved labor certification, such as employment records or other
documentary evidence to establish that the number of visas sought in
the amended petition were not already issued. The amended petition must
retain a period of employment within the same half of the fiscal year
as the original petition. Otherwise, a new labor certification and
subsequent H-2B petition would be required.
(ix) Effect of violations of status. An alien may not be accorded
H-2B status who USCIS finds to have, at any time during the past 5
years, violated, other than through no fault of his or her own, any of
the terms or conditions of admission into the United States as an H-2B
nonimmigrant, including remaining beyond the specific period of
authorized stay or engaging in unauthorized employment.
(x) Enforcement. The Secretary of Labor may investigate employers
to enforce compliance with the conditions of a petition to admit or
otherwise provide status to an H-2B worker.
* * * * *
(8) * * *
(ii) * * *
(A) Each alien issued a visa or otherwise provided nonimmigrant
status under section 101(a)(15)(H)(i)(b), 101(a)(15)(H)(i)(c), or
101(a)(15)(H)(ii) of the Act shall be counted for purposes of any
applicable numerical limit, unless otherwise exempt from such numerical
limit. The spouse and children of principal H aliens are classified as
H-4 nonimmigrants and shall not be counted against numerical limits
applicable to principals. In the event the U.S. Congress authorizes
special provisions exempting certain H workers from numerical limits,
such aliens shall not be counted against the applicable numerical
limit, in accordance with such legislation.
* * * * *
(9) * * *
(iii) * * *
(B) H-2B petition. (1) The approval of the petition to accord an
alien a classification under section 101(a)(15)(H)(ii)(b) of the Act
shall be valid for the period of the approved labor certification.
* * * * *
(10) * * *
(ii) Notice of denial. The petitioner shall be notified of the
reasons for the denial, and of his or her right to appeal the denial of
the petition under 8 CFR part 103. A determination that the statements
on the petition were inaccurate, fraudulent, or misrepresented a
material fact will result in denial of the petition. There is no appeal
from a decision to deny an extension of stay to the alien.
[[Page 49122]]
(11) * * *
(iii) * * *
(A) * * *
(2) The statement of facts contained in the petition or on the
application for a labor certification was not true and correct,
inaccurate, fraudulent, or misrepresented a material fact; or
* * * * *
(13) * * *
(i) * * *
(B) When an alien in an H classification has spent the maximum
allowable period of stay in the United States, a new petition under
sections 101(a)(15)(H) or (L) of the Act may not be approved unless
that alien has resided and been physically present outside the United
States, except for brief trips for business or pleasure, for the time
limit imposed on the particular H classification. Brief trips to the
United States for business or pleasure during the required time abroad
are not interruptive, but do not count towards fulfillment of the
required time abroad. A certain period of absence from the United
States of H-2A and H-2B aliens can interrupt the accrual of time spent
in such status against the three-year limit. The petitioner shall
provide information about the alien's employment, place of residence,
and the dates and purposes of any trips to the United States during the
period that the alien was required to spend time abroad.
* * * * *
(iv) H-2B and H-3 limitation on admission. An H-2B alien who has
spent 3 years in the United States under section 101(a)(15)(H) and/or
(L) of the Act may not seek extension, change status, or be readmitted
to the United States under section 101(a)(15)(H) and/or (L) of the Act
unless the alien has resided and been physically present outside the
United States for the immediate prior 3 months. An H-3 alien
participant in a special education program who has spent 18 months in
the United States under section 101(a)(15)(H) and/or (L) of the Act;
and an H-3 alien trainee who has spent 24 months in the United States
under section 101(a)(15)(H) and/or (L) of the Act may not seek
extension, change status, or be readmitted to the United States under
section 101(a)(15)(H) and/or (L) of the Act unless the alien has
resided and been physically present outside the United States for the
immediate prior 6 months.
(v) Exceptions. The limitations in paragraph (h)(13)(iii) through
(h)(13)(iv) of this section shall not apply to H-1B, H-2B, and H-3
aliens who did not reside continually in the United States and whose
employment in the United States was seasonal or intermittent or was for
an aggregate of six months or less per year. In addition, the
limitations shall not apply to aliens who reside abroad and regularly
commute to the United States to engage in part-time employment. An
absence from the United States can interrupt the accrual of time spent
as an H-2B 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 last for at least two months.
To qualify for this exception, the petitioner and the alien must
provide clear and convincing proof that the alien qualifies for such an
exception. Such proof shall consist of evidence such as arrival and
departure records, copies of tax returns, and records of employment
abroad.
* * * * *
PART 215--CONTROLS OF ALIENS DEPARTING FROM THE UNITED STATES
6. 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.
7. Section 215.9 is added to read as follows:
Sec. 215.9 Temporary Worker Visa Exit Program.
An alien admitted on certain temporary worker visas 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 temporary 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.
Dated: August 11, 2008.
Michael Chertoff,
Secretary.
[FR Doc. E8-19306 Filed 8-19-08; 8:45 am]
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