[Federal Register Volume 73, Number 162 (Wednesday, August 20, 2008)]
[Proposed Rules]
[Pages 49122-49123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19322]



8 CFR Part 214

[CIS No. 2448-08; DHS Docket No. USCIS-2008-0024]
RIN 1615-AA82

Petitions for Aliens To Perform Nonagricultural Temporary 
Services or Labor (H-2B): Withdrawal of Proposed Rule

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Withdrawal of proposed rule.


SUMMARY: U.S. Citizenship and Immigration Services (USCIS) is 
withdrawing the proposed rule, Petitions for Aliens to Perform 
Nonagricultural Temporary Services or Labor (H-2B), published on 
January 27, 2005, in the Federal Register at 70 FR 3984. The rule 
proposed significant changes to USCIS' regulations that were designed 
to increase the effectiveness of the H-2B nonimmigrant visa 
classification while providing protections for U.S. workers. The H-2B 
nonimmigrant visa classification applies to foreign workers to perform 
nonagricultural temporary labor or services. The proposed rule would 
have established a one-step petition process for U.S. employers seeking 
H-2B temporary workers eliminating the need for U.S. employers to apply 
for a labor certification from the Department of Labor (DOL); required 
electronic filing of the Petition for a Nonimmigrant Worker, Form I-
129, within 60 days in advance of the requested employment start date; 
eliminated the use of agents as H-2B petitioners; and, established new 
management mechanisms allowing USCIS to maintain the integrity of the 
program. In light of the public's comments, USCIS is no longer moving 
forward with the proposed rule as designed and will publish a new 
proposed rule for public comments.

DATES: The proposed rule, published on January 27, 2005 (70 FR 3984), 
is withdrawn as of August 20, 2008.

FOR FURTHER INFORMATION CONTACT: Hiroko Witherow, Service Center 
Operations, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 20 Massachusetts Ave., NW., Washington, DC 20529, 
telephone (202) 272-8410.


I. Purpose of the Proposed Rule

    The H-2 temporary worker program has existed without substantial 
modification since 1952. The

[[Page 49123]]

Immigration Reform and Control Act of 1986 divided H-2 workers into two 
categories: Temporary workers to perform agricultural labor or services 
(H-2A), and all other temporary workers (H-2B). In 1990, Congress 
attached a limitation on the number of H-2B workers, but otherwise the 
program has not significantly changed to accommodate employers' needs 
or to offer worker protections. After consulting with DOL and the 
Department of State, and reviewing the definitions and procedures used 
to regulate the H-2B nonagricultural temporary worker program, USCIS 
determined that the H-2B process should be modified to reduce 
unnecessary burdens that hinder petitioning employers' ability to 
effectively use this visa category. The proposed rule was published on 
January 27, 2005, with its intent being to increase efficiency in the 
program by removing existing regulatory barriers. 70 FR 3984.

II. Changes Contained in the Proposed Rule

    The most significant proposed change was a migration to a one-stop 
attestation-based process whereby most U.S. employers seeking H-2B 
temporary workers would only be required to file one application, the 
Form I-129, Petition for a Nonimmigrant Worker, with USCIS. The 
proposal would have reduced the paper-based application process by 
requiring that most Form I-129 petitions be submitted to USCIS 
electronically through e-filing. The proposal would also have required 
e-filed petitions to be filed not more than 60 days in advance of the 
employment need. The proposed rule also would have precluded agents 
from filing H-2B petitions on behalf of the actual H-2B employer. 
Finally, the proposed rule included additional changes to ensure the 
integrity of the program through enforcement mechanisms.

III. Comments Received on the Proposed Rule

    USCIS received 125 comments on the proposed rule during the 60-day 
comment period. The majority of the commenters were opposed to many 
changes proposed in the rule. The comments are summarized as follows:
     There were a significant number of negative comments 
regarding the proposal to create a one-stop attestation-based process. 
Some commenters stated that the existing labor certification process 
should remain with DOL because DOL, not USCIS, is directly charged with 
the protection of U.S. workers. Some also expressed concern that this 
change would lead to widespread fraud and misrepresentation.
    A considerable number of commenters were in opposition to the 
proposed change requiring that petitioners e-file a petition within 60 
days in advance of the employment need. Some raised concern that many 
employers are not necessarily well-versed in the access and use of the 
     A significant number of comments were opposed to the 
proposal to eliminate agents. Many commenters stressed that agents 
perform a vital function in the H-2B filing process on behalf of the 
employers who are not conversant with the applicable laws and 
regulations related to the H-2B program.
     The majority of the comments stressed that the proposed 
changes would result in decreased protections for U.S. workers and the 
likely proliferation of fraud within the program.
    Based upon a review of the rulemaking record as a whole, DHS has 
decided to withdraw the January 27, 2005, proposed rule and terminate 
the associated proposed rulemaking action. DHS, therefore, will not 
publish specific responses to each comment.

IV. Withdrawal of the Proposed Rule

    For the reasons described in this document, DHS is withdrawing the 
proposed rule published on January 27, 2005 (FR Doc. 05-1240, 70 FR 

    Dated: August 11, 2008.
Michael Chertoff,
 [FR Doc. E8-19322 Filed 8-19-08; 8:45 am]