[Federal Register Volume 73, Number 244 (Thursday, December 18, 2008)]
[Rules and Regulations]
[Pages 76891-76914]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29888]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214, 215 and 274a

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


Changes to Requirements Affecting H-2A Nonimmigrants

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

ACTION: Final rule.

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SUMMARY: This final rule amends Department of Homeland Security 
regulations regarding temporary and seasonal agricultural workers, and 
their U.S. employers, within the H-2A nonimmigrant classification. The 
final rule removes certain limitations on H-2A employers and adopts 
streamlining measures in order to encourage and facilitate the lawful 
employment of foreign temporary and seasonal agricultural workers. The 
final rule also addresses concerns regarding the integrity of the H-2A 
program and sets forth several conditions to prevent fraud and to 
protect laborers' rights. The purpose of the final rule is to provide 
agricultural employers with an orderly and timely flow of legal 
workers, thereby decreasing their reliance on unauthorized workers, 
while protecting the rights of laborers.
    The rule revises the current limitations on agricultural workers' 
length of stay including lengthening the amount of time an agricultural 
worker may remain in the United States after his or her employment has 
ended and shortening the time period that an agricultural worker whose 
H-2A nonimmigrant status has expired must wait before he or she is 
eligible to obtain H-2A nonimmigrant status again. This rule also 
provides for temporary employment authorization to agricultural workers 
seeking an extension of their H-2A nonimmigrant status through a 
different U.S. employer, provided that the employer is a registered 
user in good standing with the E-Verify employment eligibility 
verification program. In addition, DHS modifies the current 
notification and

[[Page 76892]]

payment requirements for employers when an alien fails to show up at 
the start of the employment period, an H-2A employee's employment is 
terminated, or an H-2A employee absconds from the worksite. To better 
ensure the integrity of the H-2A program, this rule also requires 
certain employer attestations and precludes the imposition of fees by 
employers or recruiters on prospective beneficiaries. Under this final 
rule, DHS also will revoke an H-2A petition if the Department of Labor 
revokes the petitioner's underlying labor certification. Also, this 
rule provides that DHS will publish in a notice in the Federal Register 
a list of countries that the Secretary of Homeland Security has 
designated, with the concurrence of the Secretary of State, as eligible 
for its nationals to participate in the H-2A program. These changes are 
necessary to encourage and facilitate the lawful employment of foreign 
temporary and seasonal agricultural workers.
    Finally, this rule establishes criteria for a pilot program under 
which aliens admitted on certain temporary worker visas at a port of 
entry participating in the program must also depart through a port of 
entry participating in the program and present designated biographical 
information upon departure. U.S. Customs and Border Protection (CBP) 
will publish a Notice in the Federal Register designating which 
temporary workers must participate in the program, which ports of entry 
are participating in the program, and the types of information that CBP 
will collect from the departing workers.

DATES: This rule is effective January 17, 2009.

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: This supplementary information section is 
organized as follows:

Table of Contents

I. Background
    A. Proposed Rule
    B. Discussion of the Final Rule
II. Public Comments on the Proposed Rule
    A. Summary of Comments
    B. General Comments
    B. Specific Comments
III. Regulatory Requirements
    A. Small Business Regulatory Enforcement Fairness Act of 1996
    B. Executive Order 12866
    C. Executive Order 13132
    D. Executive Order 12988
    E. Regulatory Flexibility Act
    F. Unfunded Mandates Reform Act of 1995
    G. Paperwork Reduction Act

I. Background

A. Proposed Rule

    The H-2A nonimmigrant classification applies to aliens seeking to 
perform agricultural labor or services of a temporary or seasonal 
nature in the United States. Immigration and Nationality Act (Act or 
INA) section 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a); see 
8 CFR 214.1(a)(2) (designation for H-2A classification). Despite the 
availability of the H-2A nonimmigrant classification, a high percentage 
of the agricultural workforce is comprised of aliens who have no 
immigration status and are unauthorized to work. In response to members 
of the public citing what they consider to be unnecessarily burdensome 
regulatory restrictions placed on the H-2A nonimmigrant classification 
and resulting limits on the utility of this nonimmigrant category to 
U.S. agricultural employers, the Department of Homeland Security (DHS) 
published a notice of proposed rulemaking on February 13, 2008, 
proposing to amend its regulations regarding the H-2A nonimmigrant 
classification. 73 FR 8230. On the same date, the Department of Labor 
(DOL) published a notice of proposed rulemaking to amend its 
regulations regarding the certification of H-2A employment and the 
enforcement of the contractual obligations applicable to H-2A 
employers. 73 FR 8538.
    DHS, among other changes, proposed to:
     Relax the limitations on naming beneficiaries on the H-2A 
petition who are outside of the United States.
     Permit H-2A employers to file only one petition when 
petitioning for multiple H-2A beneficiaries from multiple countries.
     Deny or revoke any H-2A petition if the alien-beneficiary 
paid or agreed to pay any prohibited fee or other form of compensation 
to the petitioner, or, with the petitioner's knowledge, to a 
facilitator, recruiter, or similar employment service, in connection 
with the H-2A employment.
     Require H-2A petitioners: (a) To attest that they will not 
materially change the information provided on the Form I-129 and the 
temporary labor certification; (b) to attest that they have not 
received and do not intend to receive, any fee, compensation, or other 
form of remuneration from prospective H-2A workers; and (c) to identify 
any facilitator, recruiter, or similar employment service that they 
used to locate foreign workers.
     Require H-2A petitioners to provide written notification 
to DHS, or be subject to an imposition of $500 in liquidated damages, 
within forty-eight hours if: (a) An H-2A worker fails to report to work 
within five days of the date of the employment start date; (b) the 
employment terminates more than five days early; or (c) the H-2A worker 
has not reported for work for a period of five days without the consent 
of the employer.
     Clarify that DHS will not accord H-2A status to any alien 
who has violated any condition of H-2A nonimmigrant status within the 
previous five years.
     Immediately and automatically revoke an H-2A petition upon 
the revocation of the underlying labor certification by DOL.
     Refuse to approve H-2A petitions filed on behalf of 
beneficiaries from or to grant admission to aliens from countries 
determined by DHS to consistently deny or unreasonably delay the prompt 
return of their citizens, subjects, nationals, or residents who are 
subject to a final order of removal.
     Extend the H-2A admission period following the expiration 
of the H-2A petition from not more than 10 days to 30 days.
     Reduce from 3 months to 45 days the minimum period spent 
outside the United States that would interrupt the accrual of time 
toward the 3-year maximum period of stay where the accumulated stay is 
18 months or less, and to reduce such minimum period from 1/6 of the 
period of accumulated stay to 2 months if the accumulated stay is 
longer than 18 months.
     Reduce from 6 months to 3 months the period that an 
individual who has held H-2A status for a total of 3 years must remain 
outside of the United States before he or she may be granted H-2A 
nonimmigrant status again.
     Extend H-2A workers' employment authorization for up to 
120 days while they are awaiting an extension of H-2A status based on a 
petition filed by a new employer, provided that the new employer is a 
registered user in good standing in DHS's E-Verify program.
     Impose on sheepherders the departure requirement 
applicable to all H-2A workers.
     Establish a temporary worker exit program on a pilot basis 
that would require certain H-2A workers to register at the time of 
departure from the United States.
    DHS initially provided a 45-day comment period in the proposed 
rule, which ended on March 31, 2008. DHS provided an additional 15-day 
comment

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period from April 1, 2008 through April 14, 2008. During this 60-day 
comment period, DHS received 163 comments. DHS received comments from a 
broad spectrum of individuals and organizations, including various 
agricultural producers, agricultural trade associations, farm workers' 
labor unions, civil and human rights advocacy organizations, 
agricultural producers' financial cooperatives, farm management 
services companies, voluntary public policy organizations, private 
attorneys, state government agencies, a Member of Congress, and other 
interested organizations and individuals. During the public comment 
period, DHS officials, together with those from DOL, also met with 
stakeholders to discuss the proposed rule. Meeting participants were 
encouraged to submit written comments on the rule.
    DHS considered the comments received and all other materials 
contained in the docket in preparing this final rule. The final rule 
does not address comments seeking changes in United States statutes, 
changes in regulations or petitions outside the scope of the proposed 
rule, or changes to the procedures of other DHS components or agencies.
    All comments and other docket materials may be viewed at the 
Federal Docket Management System (FDMS) at http://www.regulations.gov, 
docket number USCIS-2007-0055.

B. Discussion of the Final Rule

    The final rule adopts many of the regulatory amendments set forth 
in the proposed rule. The rationale for the proposed rule and the 
reasoning provided in the preamble to the proposed rule remain valid 
with respect to these regulatory amendments, and DHS adopts such 
reasoning in support of the promulgation of this final rule. Based on 
the public comments received in response to the proposed rule, however, 
DHS has modified some of the proposed changes for the final rule as 
follows.
1. Notification and Liquidated Damages Requirements
    The final rule requires petitioners to notify DHS, within two 
workdays, beginning on a date and in a manner specified in a notice 
published in the Federal Register, of the following circumstances: (a) 
An H-2A worker's failure to report to work within five workdays of the 
employment start date on the H-2A petition or within five workdays of 
the start date established by his or her employer, whichever is later; 
(b) an H-2A worker's completion of agricultural labor or services 30 
days or more before the date specified by the petitioner in its H-2A 
petition; or (c) an H-2A worker's absconding from the worksite or 
termination prior to the completion of the agricultural labor or 
services for which he or she was hired. New 8 CFR 
214.2(h)(5)(vi)(B)(1). By ``workday,'' DHS means the period between the 
time on any particular day when such employee commences his or her 
principal activity and the time on that day at which he or she ceases 
such principal activity or activities.
a. Liquidated Damages
    DHS has revisited the proposed increase in liquidated damages from 
$10 to $500 for an employer's failure to comply with the notification 
requirement. For the time being, DHS will retain the liquidated damages 
provision under 8 CFR 214.2(h)(5)(vi)(B)(3), and require an employer 
who fails to comply with the notification requirements, as revised 
under this final rule, to pay liquidated damages in the amount of $10.
b. Timeframes Triggering Notification Requirement
    To minimize the impacts on petitioners, the final rule relaxes the 
notification requirement in response to commenters' concerns that the 
proposed timeframes were not workable within current business 
realities. The final rule allows an employer, in certain circumstances, 
to use a start date newly established by the employer as the 
notification trigger date. The final rule also clarifies that the H-2A 
worker must report to work within five ``workdays'' of the employment 
start date, rather than the proposed five days. If the H-2A worker does 
not timely report to the worksite, the H-2A employer must report this 
violation to DHS within two workdays, rather than the proposed 48 
hours. The final rule adopts the term ``workdays'' to ensure that H-2A 
employers are clear on the reporting deadlines. The final rule also 
requires DHS notification where the work is completed 30 days early 
rather than the proposed five days. The rule relieves the employer of 
its obligation to notify DHS when the worker's employment terminates 
upon completion of the work (unless the work is completed more than 30 
days early). The final rule also provides that, if the petitioner 
demonstrates in the notification itself that good cause exists for an 
untimely notification to DHS, then DHS, in its discretion, may waive 
the liquidated damages amount.
c. Remedy for Petitioners
    While the notification provision furthers DHS's enforcement goals 
of locating aliens who have not met the terms of their nonimmigrant 
status, DHS recognizes that the current regulations do not provide a 
sufficient remedy to petitioners that ``lose'' H-2A workers before the 
completion of work in the instances covered in the notification 
provision. Under the current regulations, petitioners may replace H-2A 
workers whose employment was terminated before the work has been 
completed. 8 CFR 214.2(h)(5)(ix). Such petitioners must file a new H-2A 
petition using a copy of the previously approved temporary labor 
certification to request replacement workers. However, the current 
regulations do not cover situations where H-2A workers fail to show up 
at the worksite or abscond.
    To minimize the adverse impact on petitioners who lose workers for 
these reasons, DHS has determined that petitioners should be permitted 
to seek substitute H-2A workers in these instances, as well, provided 
that petitioners comply with the notification requirements in 8 CFR 
214.2(h)(5)(vi). Thus, the final rule allows a petitioner to file an H-
2A petition using a copy of the previously-approved temporary labor 
certification to replace an H-2A worker where: (a) An H-2A worker's 
employment was terminated early (i.e., before the completion of work); 
(b) a prospective H-2A worker fails to report to work within five 
workdays of the employment start date on the previous H-2A petition or 
within five workdays of the date established by his or her employer, 
whichever is later; or (c) an H-2A worker absconds from the worksite. 
New 8 CFR 214.2(h)(5)(ix). These three instances parallel the instances 
that trigger the notification requirement in new 8 CFR 
214.2(h)(5)(vi)(B)(1) (except where the work for which the petitioner 
needed H-2A workers has been completed).
d. Retention of Evidence of a Change in Employment Start Date
    The final rule also adds to the provision requiring the petitioner 
to retain evidence of its notification to DHS a requirement that the 
petitioner also retain evidence of a different employment start date 
for one year if the start date has changed from that stated on the H-2A 
petition. New 8 CFR 214.2(h)(5)(vi)(B)(2). Since the notification 
provision allows for the petitioner to use a new start date that the 
petitioner has established rather than the start date stated in the H-
2A

[[Page 76894]]

petition, DHS believes that it must require the employer to retain 
evidence of the change in the start date to protect against 
misrepresentations by the petitioner regarding the employment start 
date.
e. Response Period Upon Receipt of a Notice of Noncompliance With the 
Notification Requirement
    The final rule extends from 10 days to 30 days the time period 
within which a petitioner must reply to a DHS notice of noncompliance 
with the notification requirement. New 8 CFR 214.2(h)(5)(vi)(C). Based 
upon comments received, DHS recognizes that small businesses may have 
difficulty in responding to a DHS notice within 10 days. Many do not 
have a human resources department to handle administrative tasks and 
may find it difficult to respond to a notice within 10 days, especially 
if the notice arrives during the petitioner's busiest season. DHS 
believes that a 30-day time period for responding to a notice is 
reasonable.
2. Payment of Fees by Aliens To Obtain H-2A Employment
    To address some commenters' concerns about the proposed provisions 
addressing job placement-related fees paid by beneficiaries to obtain 
H-2A employment, the final rule makes several clarifications and 
changes.
    First, the final rule specifies that the fees prohibited by the 
rule do not include the lower of the fair market value or the actual 
costs of transportation to the United States and any payment of 
government-specified fees required of persons seeking to travel to the 
United States (e.g., fees required by a foreign government for issuance 
of passports, fees imposed by the U.S. Department of State for issuance 
of visas, inspection fees), except where the passing of such costs to 
the worker is prohibited by statute or the Department of Labor's 
regulations. See 20 CFR 655.104(h). Prospective H-2A workers may be 
required to pay such costs, unless the prospective employer has agreed 
with the alien to pay such fees and/or transportation costs. New 8 CFR 
214.2(h)(5)(xi)(A). DHS determined that payment of these costs by the 
H-2A worker should not be prohibited since they are personal costs 
related to the alien's travel to the United States, rather than fees 
charged by a recruiter or employer for finding employment.
    Second, to clarify the standard for the petitioner's knowledge of 
fees being paid by the alien, the final rule modifies the standard to 
include both knowledge by the petitioner and circumstances in which the 
petitioner should reasonably know that that worker has paid or has 
entered an agreement to pay the prohibited fees.
    Third, the final rule offers petitioners a means by which to avoid 
denial or revocation (following notice to the petitioner) of the H-2A 
petition in cases where USCIS determines that the petitioner knows or 
reasonably should know that the worker has agreed to pay the prohibited 
fees as a condition of obtaining H-2A employment. In cases where 
prohibited fees were collected prior to petition filing, and in cases 
where prohibited fees were collected by the labor recruiter or agent 
after petition filing, USCIS will not deny or revoke the petition if 
the petitioner demonstrates that the beneficiary has been reimbursed in 
full for fees paid or, if the fees have not yet been paid, that the 
agreement to pay such fees has been terminated. Additionally, as an 
alternative to reimbursement in the case where the prohibition is 
violated by the recruiter or agent after the filing of the petition, 
the petitioner may avoid denial or revocation of the petition by 
notifying DHS of the improper payments, or agreement to make such 
payments, within two workdays of finding out about such payments or 
agreements. If the H-2A petition is denied or revoked on these grounds, 
then, as a condition of approval of future H-2A petitions filed within 
one year of the denial or revocation, the petitioner must demonstrate 
that the beneficiary has been reimbursed or that the beneficiary cannot 
be located despite the petitioner's reasonable efforts. New 8 CFR 
214.2(h)(5)(xi)(C).
    Fourth, the final rule does not include the requirement that the 
petitioner submit a separate document attesting to: The scope of the H-
2A employment and the use of recruiters to locate H-2A workers, and the 
absence of any payment of prohibited recruitment fees by the 
beneficiary. Although petitioners will be required to attest to these 
factors, DHS is instead amending the Form I-129 to include those 
attestation provisions rather than requiring petitioners to submit a 
separate attestation document. DHS has determined that a separate 
attestation would increase petitioners' administrative burdens as well 
as duplicate much of the same information that petitioner must provide 
on the H-2A petition to establish eligibility.
3. Revocation of Labor Certification
    The final rule addresses the effect of the revocation of temporary 
labor certifications by DOL on H-2A petitioners and their 
beneficiaries. This rule provides for the immediate and automatic 
revocation of the H-2A petition if the underlying temporary labor 
certification is revoked by DOL. New 8 CFR 214.2(h)(5)(xii). DHS 
believes that immediate and automatic revocation of the petition is a 
necessary consequence of a revocation of the temporary labor 
certification. The temporary labor certification is the basis for the 
petition, and DHS does not have the expertise to second-guess DOL's 
decision to revoke the temporary labor certification.
    Because the denial or revocation of a petition based on the 
revocation of temporary labor certification will have a direct effect 
on an H-2A worker's status, DHS will authorize the alien beneficiary's 
period of stay for an additional 30-day period for the purpose of 
departure or extension of stay based upon a new offer of employment. 
Id. During this 30-day period, such alien will not be deemed to be 
unlawfully present in the United States. Id.; see also INA section 
212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B) (description of unlawful 
presence). Although DHS also proposed to require a petitioner to pay 
for the alien's reasonable transportation costs of return to his or her 
last place of foreign residence abroad after DHS revokes a petition for 
improper payment of fees, DHS has removed that requirement from this 
final rule.
4. Violations of H-2A Status
    The final rule clarifies that DHS will deny H-2A nonimmigrant 
status based on a finding that the alien violated any condition of H-2A 
status within the past 5 years, unless the violation occurred through 
no fault of the alien. DHS has added this clarification to ensure that 
this provision will not adversely affect the aliens whose previous 
violations of status were caused by illegal or inappropriate conduct by 
their employers. New 8 CFR 214.2(h)(5)(viii)(A).
5. Permitting H-2A Petitions for Nationals of Participating Countries
    The final rule modifies the proposal that would have precluded DHS 
from approving an H-2A petition filed on behalf of aliens from 
countries that consistently deny or unreasonable delay the prompt 
return of their citizens, subjects, nationals or residents who are 
subject to a final order of removal from the United States. DHS will 
now publish in a notice in the Federal Register a list of countries 
that the Secretary of Homeland Security has designated, with the 
concurrence of the Secretary of State, as eligible for its nationals to 
participate in the H-2A program. In designating countries to

[[Page 76895]]

allow the participation of their nationals in the H-2A program, DHS, 
with the concurrence of the Department of State, will take into account 
factors including, but not limited to, the following: (1) The country's 
cooperation with respect to the issuance of travel documents for 
citizens, subjects, nationals and residents of that country who are 
subject to a final order of removal; (2) the number of final and 
unexecuted orders of removal against citizens, subjects, nationals, and 
residents of that country; (3) the number of orders of removal executed 
against citizens, subjects, nationals, and residents of that country; 
and (4) such other factors as may serve the U.S. interest. Initially, 
the list will be composed of countries that are important for the 
operation of the H-2A program and are cooperative in the repatriation 
of their nationals. The countries included on the list are the 
countries whose nationals contributed the vast majority of the total 
beneficiaries of the H-2A program during the last three fiscal years. 
Additional details on how this list will be administered are included 
in the discussion in response to comments received on this proposed 
provision below.
6. Conforming Amendments and Non-Substantive Changes
    The final rule makes conforming amendments to 8 CFR 214.2(h)(2)(B) 
and (C) by providing that the form instructions will contain 
information regarding appropriate filing locations for the H-1B, H-2A, 
H-2B, and H-3 classifications. The final rule also makes conforming 
amendments to 8 CFR 214.2(h)(5)(v)(B) and 8 CFR 214.2(h)(5)(v)(C) to 
clarify job qualification documentation requirements and the timing for 
such documents to be filed for named and unnamed beneficiaries. 
Finally, the final rule includes non-substantive structure or wording 
changes from the proposed rule for purposes of clarity and readability.

II. Public Comments on the Proposed Rule

A. Summary of Comments

    Out of the 163 comments USCIS received on the proposed rule, 
several comments supported the proposals in the rule as a whole and 
welcomed DHS's recognition of the need for H-2A workers and for 
modifications to the current H-2A regulations. Agricultural employers 
submitted 115 of the total comments received.
    Most commenters generally supported the streamlining measures in 
the proposed rule, such as: Removing the requirement to name the sole 
beneficiary and beneficiaries who are outside of the United States if 
the beneficiaries are named in the labor certification; permitting an 
employer to file only one petition for multiple beneficiaries from 
multiple countries; extending the admission period to 30 days after the 
conclusion of the H-2A employment; and reducing the required time 
abroad once an H-2A worker has reached the maximum period of stay 
before being able to seek H-2A nonimmigrant status again. However, many 
commenters were opposed to several changes that they believe will 
impose additional burdens and costs on farm businesses. They suggested 
that some of the proposed changes could lead to a decrease in usage of 
the H-2A program, such as the following proposals: Precluding the 
current practice of approving H-2A petitions that are filed with denied 
temporary labor certifications; authorizing USCIS to deny or revoke 
upon notice any H-2A petition if it determines that the beneficiary 
paid a fee in connection with or as a condition of obtaining the H-2A 
employment; modifying the current notification and liquidated damages 
requirements; providing for the immediate and automatic revocation of 
the petition upon the revocation of the labor certification; and 
imposing on sheepherders the same departure requirement applicable to 
all H-2A workers. Many commenters also were concerned about the 
proposals to authorize employment of H-2A workers while they are 
changing employers (if the new employer is a participant in good 
standing in E-Verify) and to institute a land-border exit system for 
certain H-2A workers on a pilot basis.
    The concerns of the commenters summarized above and additional, 
more specific comments are organized by subject area and addressed 
below.
B. General Comments
1. Comments From the Dairy Industry
    Comment: Several commenters expressed disappointment about what was 
described as the continued exclusion of the dairy industry from the H-
2A program.
    Response: DHS notes that most dairy farmer's needs are year-round 
and, therefore, may not be able to meet the requirements of the H-2A 
program. Dairy farmers that can demonstrate a temporary need for H-2A 
workers, however, are able to utilize the program. The applicable 
statute precludes DHS from extending the program to work that is 
considered permanent. See INA section 101(a)(15)(H)(ii)(a), 8 U.S.C. 
1101(a)(15)(H)(ii)(a).
2. U.S. and Foreign Worker Protections
    Comment: DHS received some comments that urged the withdrawal of 
the proposed rule entirely on the basis that the rule fails to reflect 
the critical balance between the nonimmigrant labor force and the U.S. 
workforce and undermines critical labor protections that serve as the 
foundation of the H-2A program. Some commenters also opined that the 
proposed rule would result in the exploitation of temporary foreign 
workers and the undermining of wages and working conditions of U.S. 
workers.
    Response: DHS is aware of its responsibility to help maintain the 
careful balance between preserving jobs for U.S. workers and 
administering nonimmigrant programs designed to invite foreign workers 
to the United States. The final rule contains two major revisions to 
the regulations designed to protect U.S. workers: (1) Removal of DHS's 
authority to approve H-2A petitions filed with temporary labor 
certifications that have been denied by DOL (revised 8 CFR 
214.2(h)(5)(i)(A)); and (2) the addition of a provision to provide for 
the immediate and automatic revocation of an H-2A petition upon the 
revocation of the temporary labor certification by DOL (new 8 CFR 
214.2(h)(5)(xii)). DHS believes that a temporary labor certification 
process is required to protect U.S. workers.
    In order to protect foreign workers from exploitation, the final 
rule requires petitioners to return any recruiter or finders' fees paid 
by alien beneficiaries as a condition of the H-2A employment if paid 
with the knowledge of the petitioner (or if the petitioner reasonably 
should have known about the payment). See new 8 CFR 214.2(h)(5)(xi)(A). 
Failure to return the prohibited fees to the beneficiaries will result 
in the denial or revocation of the H-2A petition.
3. Lack of Enforcement Against the Employment of Unauthorized Aliens
    Comment: A few commenters criticized the lack of a sound method for 
strong enforcement against employers that obtain and maintain a 
workforce of unauthorized aliens while the rule proposed to impose 
stiffer fines, revocations, and increase in costs to those employers 
who are trying to obtain and maintain a legal workforce through the H-
2A program.
    Response: U.S. Immigration and Customs Enforcement (ICE) is charged 
with enforcing the laws against the

[[Page 76896]]

employment of unauthorized aliens, including the applicable provisions 
at section 274A of the INA, 8 U.S.C. 1324a. Enforcement of these 
provisions is outside the scope of this rulemaking. The purpose of this 
rule is to strengthen the integrity of the H-2A program so that 
employers will be encouraged to obtain workers through the H-2A program 
rather than through unlawful means. The added authority to deny or 
revoke petitions, and any increase in costs to employers included in 
this rule reflect necessary anti-fraud and worker protection measures. 
Employers that follow the rules of the program will not be unreasonably 
affected by these measures.

C. Specific Comments

1. Consideration of Denied Temporary Agricultural Labor Certifications
    Comment: Seventeen out of 24 commenters who discussed this issue 
objected to the removal of regulatory language permitting, in limited 
circumstances, the approval of H-2A petitions filed with temporary 
labor certifications that have been denied by DOL.
    Response: After considering the commenters' objections, DHS 
nevertheless retains this proposal in this final rule as discussed in 
the comments and responses below. See new 8 CFR 214.2(h)(5)(i)(A).
    Comment: Some commenters among those who objected to this proposal 
suggested that the INA vests the authority for making decisions on the 
H-2A workers' admission solely with DHS, not DOL.
    Response: DHS's statutory authority is to determine whether or not 
to approve a petition for H-2A workers after consultation with DOL. INA 
section 214(c)(1), 8 U.S.C. 1184(c)(1). By no longer permitting the 
approval of H-2A petitions in instances where DOL has denied the 
temporary labor certification, DHS does not believe that it is 
abrogating its statutory responsibility in adjudicating H-2A petitions. 
Rather, DHS is recognizing that it does not have the expertise in 
evaluating the current U.S. labor market to make a determination 
independent from DOL's determination on the temporary labor 
certification. It is therefore in the best interests of U.S. workers 
and the public in general that DHS relinquish its ability to approve H-
2A petitions in the absence of the grant of such labor certification by 
DOL.
    Comment: A few commenters pointed out that the language of the INA 
requires an employer only to apply for, not obtain, a temporary labor 
certification from the Secretary of Labor. See INA section 218(a)(1), 8 
U.S.C. 1188(a)(1).
    Response: DHS disagrees with the commenters' interpretation of the 
statute. While the statutory language only refers to a petitioner's 
application for a temporary labor certification, DHS believes that its 
interpretation of this language requiring petitioners also to obtain a 
temporary labor certification as a condition of H-2A employment is 
reasonable. A temporary labor certification certifies that there are 
insufficient U.S. workers who are able, willing, and qualified, and who 
will be available at the time and place needed, to perform the labor or 
services involved in the petition, and that the employment of the alien 
in such labor or services will not adversely affect the wages and 
working conditions of U.S. workers who are similarly employed. INA 
section 218(a)(1), 8 U.S.C. 1188(a)(1). The statute includes the 
temporary labor certification requirement as a means to protect U.S. 
workers from losing jobs to foreign laborers. INA section 218(c)(3)(A), 
8 U.S.C. 1188(c)(3)(A). Without requiring that the temporary labor 
certification actually be obtained by the petitioner, the temporary 
labor certification requirement would fail to offer such protection. 
Moreover, it is clear that the determinations as to the availability of 
U.S. workers and the effect on their wages and working conditions are 
within the expertise of DOL, not DHS. Without certification by the 
Secretary of Labor, DHS would not be well equipped to make a 
determination on the petition for an employer to import foreign 
workers. Additionally, section 214(a)(1) of the INA grants the 
Secretary of Homeland Security authority to establish by regulation the 
conditions for nonimmigrant admissions. 8 U.S.C. 1184(a)(1). This rule 
is establishing a requirement that employers obtain a temporary labor 
certification as a condition for an alien to be admitted as an H-2A 
nonimmigrant.
    Comment: Many commenters who objected to this proposal suggested 
that this proposal and the lack of an expeditious process to make a new 
determination on the denied temporary labor certification will leave 
employers without recourse if U.S. workers do not report to work on the 
date of their need. They asserted that filing a petition without a 
temporary labor certification should be allowed in any circumstance 
where DOL denies certification or fails to act in a timely manner.
    Response: In its final H-2A rule, DOL establishes a process for an 
employer to request re-determination of need if U.S. workers fail to 
report on the date of need. DHS believes that this DOL provision 
addresses these commenters' concerns. Therefore, under this final rule, 
DHS abrogates the process for approving H-2A petitions, in limited 
circumstances, that are filed with denied temporary labor 
certifications.
2. Unnamed Beneficiaries in the Petition
    Comment: Ten commenters addressed and supported the proposal to 
allow H-2A petitions to include unnamed beneficiaries for those who are 
outside the United States regardless of the number of beneficiaries on 
the petition or whether the temporary labor certification named 
beneficiaries. They agreed that it would provide agricultural employers 
with more flexibility to recruit foreign workers months ahead of the 
actual date of stated need.
    Response: Based on the support from the commenters, the final rule 
adopts this proposal with minor changes. The changes discussed below 
concern beneficiaries from countries that have not been designated as 
participating countries under the H-2A program as well as minor, 
nonsubstantive changes to improve the clarity of the text. The final 
rule revises 8 CFR 214.2(h)(2)(iii) and removes 8 CFR 
214.2(h)(5)(i)(C). Also, as noted earlier, the final rule makes 
conforming amendments to 8 CFR 214.2(h)(5)(v)(B) and 8 CFR 
214.2(h)(5)(v)(C) to clarify job qualification documentation 
requirements and the timing for such documents for named and unnamed 
beneficiaries. The final rule also maintains the requirement that the 
petition include the names of those beneficiaries who are present in 
the United States. It should be noted that, in the case of an alien who 
is already in the United States, an H-2A petition encompasses both an 
employer's request to classify its worker as H-2A nonimmigrant and the 
alien worker's request to change from a different nonimmigrant status 
to H-2A or to extend his or her H-2A status. If eligible, the approval 
of the H-2A petition and the related request for extension of stay or 
change of status will serve either to confer a new immigration status 
or to extend the status of a particular alien immediately upon 
approval. Since such an approval, unlike a nonimmigrant admission from 
outside the country, does not afford the U.S. Government the 
opportunity to first inspect and/or interview the H-2A beneficiary at a 
consular office abroad or at a U.S. port of entry, it is essential that 
DHS have the names of beneficiaries in the country.

[[Page 76897]]

3. Multiple Beneficiaries
    Comment: Eleven out of 12 commenters supported the proposal to 
permit petitioners to file only one petition with DHS when petitioning 
for multiple H-2A beneficiaries from multiple countries. They stated 
that this change to the regulations would benefit the employer not only 
in terms of convenience but also financially.
    Response: Based on the positive responses from commenters, the 
final rule retains the proposal. New 8 CFR 214.2(h)(5)(i)(B).
    Comment: One commenter suggested that this change would 
unnecessarily complicate the visa issuance process.
    Response: DHS disagrees with this commenter's concern. DHS proposed 
the change as a result of the implementation of the Petition 
Information Management System (PIMS) by the Department of State in 
2007. PIMS effectively tracks visa issuance for specific petitions 
approved for multiple beneficiaries in real time regardless of the 
consulate location where a beneficiary may apply for a visa. Therefore, 
DHS does not believe that this proposed change would complicate the 
visa issuance process. A consular officer would have full and timely 
access to information regarding the exact number of beneficiaries who 
have been issued visas based on the approved H-2A petition at the time 
an alien applies for his or her H-2A visa based on that petition. The 
Department of State website provides more information about PIMS at 
http://travel.state.gov/visa/laws/telegrams/telegrams_4201.html.
    Comment: The same commenter also stated that the proposal would 
result in an employer recruiting and hiring workers from different 
geographical regions of a country and/or from different nations. The 
commenter further suggested that such hiring process would increase the 
likelihood of problems for workers who feel isolated, decreasing the 
workers' ability to unite and communicate among themselves.
    Response: DHS does not intend to change employers' recruiting 
processes as a result of this proposal. Under the current regulations, 
an employer may bring in H-2A workers from many different countries 
rather than from a single country or from one region within a country. 
The change made by this final rule merely would permit petitioners to 
file only one petition with DHS when petitioning for multiple H-2A 
beneficiaries from multiple countries instead of requiring multiple 
petitions.
4. Payment of Fees by Beneficiaries To Obtain H-2A Employment
a. Grounds for Denial or Revocation on Notice.
    Comment: Eleven out of 83 commenters supported the proposal to 
authorize the denial or revocation of an H-2A petition if DHS 
determines 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 that the petitioner is aware or reasonably should be 
aware that such payment was made to the petitioner's agent, or to any 
facilitator, recruiter, or similar employment service, in connection 
with or as a condition of obtaining the H-2A employment. Seventy-one 
commenters responded negatively to this proposal and one comment was 
neutral.
    Response: After carefully considering the commenters' support and 
objections, for the reasons stated in the paragraphs below, the final 
rule provides DHS with the authority to deny or to revoke (following 
notice and an opportunity to respond) an H-2A petition if DHS 
determines that the petitioner has collected, or entered into an 
agreement to collect a fee or compensation as a condition of obtaining 
the H-2A employment, 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 as a condition of H-2A 
employment. See new 8 CFR 214(h)(5)(xi)(A). DHS has determined that a 
prohibition on any payment made by a foreign worker in connection with 
the H-2A employment is more restrictive than necessary to address the 
problem of worker exploitation by unscrupulous employers, recruiters, 
or facilitators imposing costs on workers as a condition of selection 
for H-2A employment. Accordingly, DHS has not included in the final 
rule the prohibition on payments made in connection with the H-2A 
employment, but retains the prohibition on payments made to an 
employer, recruiter, facilitator, or other employment service by the 
foreign worker that are a condition of obtaining the H-2A employment.
    DHS will not deny or revoke the petition if the petitioner 
demonstrates that (1) prior to the filing of the petition, the alien 
beneficiary has been reimbursed for the prohibited fees paid; (2) where 
the prohibited fees have not yet been paid, that the agreement to pay 
has been terminated; or (3) where the prohibition on collecting or 
agreeing to collect a fee is violated by a recruiter or agent after the 
filing of the petition, the petitioner notifies DHS about the 
prohibited payments, or agreement to make such payments, within 2 
workdays of finding out about such payments or agreements.
    Comment: The commenters who supported this proposal welcomed this 
addition to the regulations as a positive change to recognize worker 
abuses, such as human trafficking and effective indenture. They 
suggested that DHS should take further measures to deter future 
violations by implementing procedures to debar a violator from the 
program.
    Response: DHS does not have the statutory authority to implement 
procedures to debar petitioners from the H-2A program. The statute 
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 (8 
U.S.C. 1154 or 1184(c)(1)) for 1 to 5 years if it finds a significant 
failure to meet any of the conditions of an H-2B petition or a willful 
misrepresentation of a material fact in an H-2B petition. INA section 
214(c)(14)(A)(ii), 8 U.S.C. 1184(c)(14)(A)(ii). However, there is no 
similar provision applicable to the H-2A nonimmigrant classification 
that provides such authority.
    Comment: Most of the commenters supporting worker protections also 
suggested that DHS should take further measures to provide appropriate 
remedies to help the foreign workers receive the funds to which they 
were entitled.
    Response: DHS agrees that the proposed rule, while offering some 
safeguards against the indenture of H-2A workers by providing a direct 
disincentive to employers and/or their recruiters to collect recruiting 
and similar fees from prospective and current H-2A workers, does not 
address fully the basic problem such workers face: They remain 
``indentured'' until such time as they are relieved of this debt 
burden. While the proposed rule addresses this concern by providing an 
alien worker who has incurred such debt in connection with obtaining H-
2A employment with the opportunity to change employers or return to his 
or her home country, it does not relieve the alien of his or her 
improperly imposed H-2A placement-related debt burden. DHS agrees with 
the commenters' concern in this regard and believes that it is in the 
interests of both the alien and legitimate H-2A employers to ensure the 
fair and even-handed administration of the H-2A program by providing a 
means to make such alien workers whole. Consistent with the expressed 
intent of the proposed rule to afford

[[Page 76898]]

adequate protections for alien agricultural workers seeking H-2A 
nonimmigrant classification and to remove unnecessary administrative 
burdens on legitimate employers seeking to hire such workers, the final 
rule, therefore, provides that an H-2A petitioner can avoid denial or 
revocation of the H-2A petition if the petitioner demonstrates that the 
petitioner or the employment service reimbursed the alien worker in 
full for the prohibited fees paid or that any agreement for future 
payment is terminated. New 8 CFR 214.2(h)(5)(xi)(A)(1), (2), and (4). 
However, the remedy of reimbursement would not apply if the petitioner 
collected the fees after the filing of the petition. New 8 CFR 
214.2(h)(5)(xi)(A)(3). For a petitioner who discovers after the filing 
of the petition that the alien worker paid or agreed to pay an 
employment service the prohibited fees, the petitioner can avoid denial 
or revocation by notifying DHS within 2 workdays of obtaining this 
knowledge instead of reimbursing the worker or effecting termination of 
the agreement. New 8 CFR 214.2(h)(5)(xi)(A)(4). DHS will publish a 
notice in the Federal Register to describe the manner in which the 
notification must be provided.
    DHS does not believe it appropriate to impose on petitioners who 
discover a post-filing violation by a labor recruiter the same adverse 
consequence--denial or revocation of the petition--that is imposed on 
more culpable petitioners who themselves violate the prohibition on 
collection of fees from H-2A workers after petition filing, nor should 
petitioners discovering such post-filing violations by a labor 
recruiter be put in a situation where the only way to avert denial or 
revocation of the petition might be for the petitioner to pay for the 
recruiter's violation by reimbursing the alien itself. Petitioners 
should be encouraged to come forward with information about post-filing 
wrongdoing by labor recruiters, even if reimbursement is not possible. 
In this way, DHS can help provide further protections to H-2A workers 
against unscrupulous recruiter practices.
    Further, where the petitioner does not reimburse the beneficiary 
and USCIS denies or revokes the H-2A petition, the final rule provides 
that a condition of approval of subsequent H-2A petitions filed within 
one year of the denial or revocation is reimbursement of the 
beneficiary of the denied or revoked petition or a demonstration that 
the petitioner could not locate the beneficiary. New 8 CFR 
214.2(h)(5)(xi)(C)(1). This requirement is intended to balance the 
commenters' concerns that an H-2A alien worker not be required to pay 
fees as a condition of obtaining his or her H-2A employment with the 
legitimate concern that petitioners who run afoul of 8 CFR 
214.2(h)(5)(xi)(A) but who have reimbursed the alien worker in full or 
who, despite their reasonable efforts, are unable to locate such 
workers, continue to have access to participation in the H-2A program. 
Whether the petitioner will be able to demonstrate to the satisfaction 
of DHS that it has exercised reasonable efforts to locate the alien 
worker will depend on the specific facts and circumstances presented. 
In this regard, DHS would take into consideration the amount of time 
and effort the petitioner expended in attempting to locate the 
beneficiary, and would require, at a minimum, that the petitioner has 
attempted to locate the worker at every known address(es). The final 
rule also clarifies that the 1-year condition on petition approval will 
apply anew each time an H-2A petition is denied or revoked on the basis 
of new 8 CFR 214.2(h)(5)(xi)(A)(1)-(4). New 8 CFR 
214.2(h)(5)(xi)(C)(2).
    Comment: Many commenters further suggested that employers should be 
obligated to pay for aliens' subsistence costs while the workers are 
not permitted to work.
    Response: DHS agrees that the revocation of a petition based on the 
payment of prohibited fees should not penalize H-2A workers. 
Accordingly, to minimize the adverse impact on workers, DHS will 
authorize the alien beneficiary's period of stay for an additional 30-
day period for the purpose of departure or extension of stay based upon 
a new offer of employment. Id. During this 30-day period, such alien 
will not be deemed to be unlawfully present in the United States. Id.; 
see also INA section 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B) (description 
of unlawful presence).
    DHS, however, will not be requiring employers to provide financial 
assistance to aliens adversely affected by the revocation of a 
petition. While we understand that certain H-2A workers will be 
adversely affected when DHS revoked H-2A petitions due to actions by 
the employer, we do not believe that DHS can require employers to cover 
expenses for workers without further notice and comment. This 
determination, however, does not impact any other legal remedy or claim 
that an affected worker may have against his or her employer.
    Further, although DHS proposed to also require a petitioner to pay 
for the alien's reasonable transportation costs of return to his or her 
last place of foreign residence abroad after DHS revokes a petition for 
improper payment of fees, DHS has removed that requirement from this 
final rule. While section 214(c)(5)(A) of the INA (8 U.S.C. 
1184(c)(5)(A)), requires petitioners to pay the workers' reasonable 
transportation expenses to return to their last place of foreign 
residence following revocation of a petition, that provision pertains 
solely to H-1B and H-2B nonimmigrant workers. 8 U.S.C. 1184(c)(5)(A). 
As there is no similar statutory requirement for employers of H-2A 
temporary workers to cover expenses for beneficiaries even when the 
petitioner's actions result in the revocation of the petition and thus 
require the alien to leave the United States, DHS does not believe that 
it may impose such costs onto the H-2A employer.
    Comment: Several commenters suggested that employers should be 
required to ensure that workers' passports are not confiscated.
    Response: Existing laws satisfactorily meet these commenters' 
concerns and they are not addressed by this final rule. For example, it 
is unlawful to conceal, remove or confiscate an immigration document in 
furtherance of peonage or involuntary servitude. See 18 U.S.C. 1592.
    Comment: Some commenters suggested that the U.S. government should 
require H-2A employers to comply with Article 28 of Mexico's Federal 
Labor Law, which requires that employers recruiting Mexican citizens in 
Mexico for employment abroad comply with such requirements as 
registering with the applicable Board of Conciliation and Arbitration, 
submitting the employment contract to the Board, and posting a bond to 
ensure a fund to compensate workers for illegal employment practices. 
They further stated that the North American Agreement on Labor 
Cooperation (NAALC), which requires each signatory nation to cooperate 
to ensure compliance with all labor laws and improve conditions for 
workers, is a treaty that binds the United States.
    Response: DHS does not enforce the labor law of a foreign country. 
As it is DOL's function to administer the U.S. government's 
responsibilities under the NAALC and to enforce federal labor laws, DHS 
is not in a position to reply to these comments and no changes were 
made to the final rule to respond to them.
    Comment: One commenter suggested that the proposed rule contains no 
plan for dealing with unscrupulous, fraudulent recruiters in foreign

[[Page 76899]]

countries and that this change may result in DHS penalizing the victims 
rather than the perpetrators as workers lose jobs and employers lose 
workers. Some commenters made a variety of recommendations to enforce 
the methods to protect H-2A workers from abuses, such as requiring an 
H-2A employer to reach written agreements with labor contractors, 
recruiters, or facilitators to prohibit the imposition of job 
placement-related fees on prospective workers or limiting the use of 
recruiters and facilitators for H-2A purposes to those that maintain an 
office in the United States and are duly licensed to do business in the 
United States according to Federal and State laws.
    Response: While DHS agrees that these precautions would further 
protect H-2A workers from abuses, including such precautions in this 
final rule would be outside DHS' authority. DHS cannot specifically 
regulate the business practices of recruiters in foreign countries or 
the agreements between private entities under existing authorities.
    Comment: Some commenters who objected to this proposal suggested 
that this proposal would lead to a decrease in the usage of the H-2A 
program as it will make the program more costly.
    Response: While DHS understands that this rule has the effect of 
requiring employers rather than H-2A workers to bear these costs, the 
H-2A program was never intended to encourage the importation of 
indebted workers. The intention of the final rule is to ensure that the 
actual wages paid to H-2A workers reflect those set forth in the labor 
certification; passing recruitment-related costs on to the alien worker 
would have the effect of reducing the alien worker's actual wages. 
Further, DHS does not believe that this rule would have a chilling 
effect on the recruitment of H-2A workers; demand for such workers is 
based on a prospective employer's need for workers. So too, the choice 
whether to use recruiters and/or facilitators is that of the employer 
and is presumably based on a determination that it makes economic sense 
to use such persons to assist in finding alien workers. Assuming that 
making the employer bear such recruitment costs would make the program 
more cost prohibitive, the solution is not to pass those costs on to 
economically disadvantaged alien workers but to leave to the free 
market the amount an employer is willing to agree to pay the recruiter, 
facilitator, or employment service.
    Comment: A number of commenters who objected to this proposal 
asserted that there is no statutory authority in the INA for DHS to 
prohibit prospective workers from paying a recruiter or a facilitator 
for the services they receive in order to secure employment in the 
United States. They stated that it is a longstanding practice that 
foreign agents collect fees from those who wish to find work in the 
United States and need assistance with their visa applications and/or 
the admission process and, in fact, such services have become essential 
with constant changes in the visa application procedure at U.S. 
consulates abroad.
    Response: DHS believes that these comments misinterpret the 
proposed change. The proposal would neither prohibit the use of such 
recruiters or facilitators during the recruitment or visa application 
process nor the collection of fees itself. Instead, the proposal would 
prohibit imposition of fees on prospective workers as a condition of 
selection for such employment. It 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. Under section 214(a) of the INA, 8 
U.S.C. 1184(a), DHS has plenary authority to determine the conditions 
of admission of all nonimmigrants to the United States, including H-2A 
workers. It is within the authority of DHS to bar the payment by 
prospective workers of recruitment-related fees as a condition of an 
alien worker's admission to this country in H-2A classification.
    DHS notes that this final rule is consistent with the Department of 
Labor's bar on the employer passing to prospective alien agricultural 
workers fees the employer incurs in recruiting U.S. workers in 
conjunction with obtaining a temporary agricultural worker labor 
certification. See new 20 CFR 655.105(o).
    Comment: Many commenters asked DHS to specify what types of fees 
are prohibited by the rule. Several commenters argued that obtaining a 
passport and a visa for arriving H-2A workers should not be the 
employer's responsibility.
    Response: DHS agrees that passport and visa fees should not be 
included in the types of fees prohibited by the rule, except where the 
passing of such costs to the worker is prohibited by statute or the 
Department of Labor's regulations. Generally, the types of fees that 
would be prohibited include recruitment fees, attorneys' fees, and fees 
for preparation of visa applications. So that the prohibition against 
impermissible fees remains general, covering any money paid by the 
beneficiary to a third party as a condition of the H-2A employment, the 
final rule does not provide a list of prohibited fees. However, as 
discussed earlier, the final rule provides that prohibited fees do not 
include the lesser of the fair market value or actual costs 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, fees required by a foreign government for issuance of 
passports and by the U.S. Department of State for issuance of visas. As 
these costs would have to be assumed by any alien intending to travel 
to the United States, DHS believes that each alien should be 
responsible for them. New 8 CFR 214.2(h)(5)(i)(C)(5) and (h)(5)(xi)(A) 
and (C).
    Comment: Many commenters expressed concerns about petition 
revocation based on an employer's knowledge of the payment of job 
placement-related fees by prospective workers. Many commenters 
requested that DHS clarify the standard by which an employer will be 
deemed to lack knowledge of the prohibited payment by the prospective 
worker.
    Response: The final rule clarifies that an H-2A petition will be 
subject to denial or revocation only if DHS determines that the H-2A 
petitioner knew, or reasonably should have known, that the H-2A worker 
paid or agreed to pay a prohibited fee. New 8 CFR 214.2(h)(5)(xi)(A). 
For example, if a recruiter advertises to prospective H-2A petitioners 
that it can place temporary alien workers with such employers at no or 
minimal cost to the employers, it is reasonable for prospective 
petitioners to view these claims as suspect and question whether the 
recruiter has passed its recruitment costs to the prospective H-2A 
workers. A determination by DHS that the petitioner failed to make 
reasonable inquiries to ensure that prospective H-2A workers did not 
pay the recruiter any fees will subject the petition to denial or 
revocation. Similarly, if an H-2A petitioner learns, directly or 
indirectly, that a prospective H-2A worker has been asked to pay a fee 
or other thing of value as a condition of his or her employment with 
the U.S. employer, the H-2A petitioner will be deemed to be on notice 
that the prospective worker has paid a prohibited fee and reasonably 
can be expected to ascertain whether this is in fact true before 
petitioning for the worker.
    Comment: Another comment stated that this proposal would make 
petitioners subject to liability by opening additional avenues for 
lawsuits

[[Page 76900]]

against the petitioners who may be held responsible for a third party's 
action.
    Response: This provision is not intended to provide any party with 
the authority to engage in legal proceedings based on this decision by 
DHS.
    Comment: Some commenters suggested that DHS should recognize that 
some assistance in recruiting and/or in the visa application and 
admission process could be conducted informally by friends or family 
members, not as a for-profit activity, and requested DHS to specify 
facilitators and recruiters that fall under these provisions.
    Response: Since assistance in recruiting and in the visa 
application or admission process that is provided without charge is not 
precluded by this rule, DHS determined that it is not necessary for the 
final rule to reference such assistance.
    Comment: There were additional suggestions to prevent fraud and to 
protect laborers' rights, as well as administrative recommendations.
    Response: Because these comments exceeded the scope of the proposed 
rule, they are not addressed in this final rule.
b. Employer Attestation
    Comment: One out of 8 commenters supported the proposed addition to 
require H-2A petitioners to attest that they will not materially change 
the information provided on the Form I-129 and the temporary labor 
certification; that they have not received, nor intend to receive, any 
fee, compensation, or other form of remuneration from prospective H-2A 
workers; and whether they used a facilitator, recruiter, or any other 
similar employment service, to locate foreign workers, and if so, to 
name such facilitators, recruiters, or placement services. Seven 
commenters wrote that the employer attestation would not reduce the 
amount of paperwork required by an employer nor streamline the process.
    Response: DHS has carefully considered the attestation requirement, 
and has determined that a separate attestation requirement would be a 
duplicative addition to the regulations. However, an attestation 
relates to eligibility requirements that the petitioner must 
demonstrate on the H-2A petition which the petitioner must sign as 
being true and correct. DHS is instead amending the Form I-129 to 
include the attestation requirements.
    Comment: Many commenters pointed out that there are some minor 
activities in the overall scope of work on an agricultural operation 
and the workers' secondary duties change from season to season. They 
suggested that the narrow and restrictive view of unchanging duties in 
the proposed rule could result in good-faith employers violating this 
portion of the rule.
    Response: While the final rule does not contain a separate 
attestation requirement, these comments relate to the requirement that 
the petitioner notify DHS of any changes in the terms and conditions of 
employment of a beneficiary which may affect eligibility. 8 CFR 
214.2(h)(11)(i)(A). DHS does not agree with these commenters' 
interpretations and understands that farm laborers generally perform 
several duties and their secondary duties may vary from season to 
season. For example, while a worker's main duty may be to harvest the 
crop, there may be a time when he or she is required to drive a 
tractor, to transport the crop to a processor, or to repair farm 
equipment. Incidental duties that are associated with the worker's main 
duty and are part of routine farm maintenance are not considered 
material changes and do not require the filing of a new petition. See 8 
CFR 214.2(h)(2)(i)(E).
    DOL also provides a clarification in its final rule to reflect that 
work activity of the type typically performed on a farm and incident to 
the agricultural labor or services for which an H-2A labor 
certification was approved may be performed by an H-2A worker. DHS is 
in agreement with DOL's clarification, which will ensure that H-2A 
workers can engage in minor amounts of other incidental farm work 
activity during periods when they are not performing the agricultural 
labor of services that is the subject of their application.
    Comment: Commenters suggested that the listing of facilitators, 
recruiters, or placement services should only be required where workers 
were actually recruited, and not in the instances where workers were 
assisted with the visa application process.
    Response: While the final rule does not include a separate 
attestation requirement where the listing of facilitators, recruiters, 
or placement services would be required, the revised H-2A petition will 
request the petitioner to include this information. DHS agrees with the 
commenters' concerns. DHS recognizes that listing all services used 
potentially may be overly burdensome and of limited utility to DHS. The 
revised H-2A petition instead will request the petitioner to provide 
the names of the facilitators, recruiters, or placement services that 
actually located the H-2A beneficiaries on the petition.
    Comment: One commenter suggested that the attestation provision 
include an agreement by the employer agreeing to unhindered and 
unannounced inspections by U.S. Immigration and Customs Enforcement 
(ICE) and DOL.
    Response: The final rule does not include the suggested addition. 
DHS has determined that it is not necessary to include such a provision 
because such inspections are separately authorized by law. See 8 CFR 
214.2(h)(5)(vi)(A). Additionally, DOL authorities are within the 
jurisdiction of DOL, rather than DHS. As such, it is not necessary that 
an employer agree to inspections.
5. Petition Notification Requirements and Liquidated Damages
    Comment: Seventy-three out of 74 commenters objected to the 
modified notification and liquidated damages provisions in the proposed 
rule.
    Response: After careful consideration, and in response to the 
commenters' objections, DHS has modified the proposed notification 
requirements. DHS also has removed the increase in liquidated damages 
and, instead, will return to the current liquidated damages provision 
under 8 CFR 214.2(h)(5)(vi)(A).
    Comment: Many commenters objected to the proposed requirements to 
notify DHS if an H-2A worker fails to report for work within 5 days 
after the employment start date stated on the petition or the worker's 
employment is terminated more than 5 days before the employment end 
date stated on the petition. For example, the commenters stated that 
the majority of late arrivals of H-2A workers to the worksite are 
caused by slow processing at U.S. government agencies or emergencies 
beyond the employer's control. In some cases, employers stagger 
workers' arrival at the consulate and at the worksite to accommodate 
logistical arrangements, such as transportation. Further, many 
commenters suggested that, given that work in agriculture is dependent 
upon weather, it is rare that an employer can accurately predict months 
in advance of the actual date when the growing season will end, and 
many agricultural employers use the latest likely ending date on a 
temporary labor certification.
    Response: DHS believes that the notification requirements should be 
retained, but agrees with the commenters' concerns regarding the 
practical application of the proposal. Therefore, the final rule 
modifies the notification requirements to address the commenters' 
concerns. The final rule requires petitioners to provide notification 
to DHS in the following instances: Where an H-2A worker fails to report 
to work within five workdays of the employment start date on the H-2A 
petition or within five workdays of

[[Page 76901]]

the start date established by the employer, whichever is later; where 
the agricultural labor or services for which H-2A workers were hired is 
completed more than 30 days earlier than the end date stated on the H-
2A petition; or where the H-2A worker absconds from the worksite or is 
terminated prior to the completion of agricultural labor or services 
for which he or she was hired. New 8 CFR 214.2(h)(5)(vi)(B)(1). DHS 
believes that the modified notification requirements are more workable 
for employers and are responsive to the commenters' concerns. 
Recognizing that there could be various reasons beyond the employer's 
control causing prospective employees' late arrival at the worksite, 
the final rule allows the petitioner to use a different employment 
start date than the start date stated in the H-2A petition to 
accommodate the employees' late arrival. It also changes the 
notification timeframes for employment that is terminated earlier than 
the end date stated on the petition, depending on whether the 
termination occurs before the work is completed or due to early 
completion of the work. In addition, the final rule amends 8 CFR 
214.2(h)(11)(i)(A) to cross-reference the notification provision.
    Where an employer establishes a different start date from that on 
the H-2A petition, the final rule adds the requirement that the 
employer retain evidence of the changed employment start date for a 1-
year period. A retention period of 1 year was chosen to parallel the 1-
year retention period for notifications. Such documentation must also 
be made available for inspection on request by DHS officers. New 8 CFR 
214.2(h)(5)(vi)(B)(2). DHS is adding this requirement to ensure that 
providing a more flexible timeframe for the notification requirement 
will not result in misrepresentations regarding the employment start 
date.
    Comment: Many commenters who objected to the modified notification 
requirements also stated that a notification within 48 hours would be 
difficult, if not impossible, because, in many circumstances, it may be 
impossible for the employer to know with certainty that the H-2A worker 
absconded from the worksite.
    Response: DHS disagrees with the commenters concerns that the 
notification period would be too difficult to meet based on the speed 
with which an employer will gain knowledge of the worker's abscondment. 
An absconder is defined as a worker who has not reported to work for 5 
workdays without the consent of the employer. The final rule clarifies 
that the time period is 5 consecutive workdays. New 8 CFR 
214.2(h)(5)(vi)(E). The employer's obligation to notify DHS of an 
abscondment would thus not be triggered by the employer's subjective 
determination that the worker has indeed absconded, but rather by an 
objectively measured event: The passage of five consecutive workdays 
during which the alien has failed to report to work without the consent 
of the employer.
    While DHS does not believe that the proposed notification period 
would be too onerous on employers, DHS recognizes that imposing a 48-
hour time period for filing notifications may be difficult for those 
employers that do not conduct business 7 days of the week, such as 
those employers that are closed on weekends and holidays. Therefore, 
the final rule clarifies that the notification period is 2 workdays 
rather than the proposed 48 hours. New 8 CFR 214.2(h)(5)(vi)(B)(1).
    Comment: Many comments suggested that the requirement to pay $500 
in liquidated damages for failing to meet the notification requirement 
is excessive and will be a potential disincentive to use the H-2A 
program because the failure to comply with the notification 
requirement, an event triggering liquidated damages, could be merely a 
failure to notify within the required timeframe as opposed to failure 
to notify at all. Most of these comments suggested that DHS not 
increase the liquidated damages amount from the amount set forth in the 
current regulations ($10) or, at most, increase them only by a much 
smaller amount, to a level not exceeding $50 per instance.
    Response: In response to public comments, DHS has decided to remove 
the proposed increase in liquidated damages to $500 and instead will 
retain the liquidated damages requirement under 8 CFR 
214.2(h)(5)(vi)(B)(3). Under the current provision, an employer who 
fails to comply with the notification requirements, as revised under 
this final rule, must pay liquidated damages in the amount of $10.
    Comment: With respect to the process following the failure to meet 
the notification requirements, some commenters suggested that the 10-
day timeframe within which an employer is required to reply to a notice 
prior to being assessed liquidated damages would impose an unreasonable 
hardship on small employers who could be in their busy season when such 
a notice arrives. They recommended that employers be afforded 30 days 
to respond.
    Response: The final rule adopts this suggestion and provides that 
the petitioner will be given written notice and 30 days to reply to 
such notice if DHS has determined that the petitioner has violated the 
notification requirements and it has not received the notification. New 
8 CFR 214.2(h)(5)(vi)(C).
    Comment: One comment suggested that the imposition of liquidated 
damages must include a provision for due process with such ``hefty'' 
amounts at stake.
    Response: By including a notice requirement, as stated above, and 
an opportunity to reply within 30 days, DHS believes that new 8 CFR 
214.2(h)(5)(vi)(C) provides sufficient due process.
    Comment: Several commenters were concerned about the cost that 
employers will have to incur to send the notification to DHS by 
certified mail or similar means in order to comply with the 
notification requirements within 48 hours.
    Response: In reply to these comments, DHS is not including in the 
final rule the requirement that the notification be in writing. See new 
8 CFR 214.2(h)(5)(vi)(B)(1), (h)(5)(vi)(C), and (h)(11)(i)(A). A notice 
outlining the manner in which the notification may be made will be 
published in the Federal Register. DHS will provide a designated e-mail 
address for employers to send notifications. DHS believes that 
designating a dedicated e-mail address for employers' notification 
purpose will reduce the burden on employers. DHS will also provide a 
designated mailing address for employers without ready access to email.
    Comment: A question was raised during a stakeholder meeting held 
during the comment period of the proposed rule as to what an H-2A 
employer needs to do in order to replace an H-2A worker whose 
employment is terminated or who has left the country.
    Response: Upon further consideration, DHS agrees that an 
accommodation should be made for employers who lose H-2A workers before 
the work is completed. Under the current provision at 8 CFR 
214.2(h)(5)(ix), an employer may file an H-2A petition to replace an H-
2A worker whose employment was terminated early. However, the provision 
does not address the two additional situations covered by the 
notification provisions: When workers fail to show up at the worksite 
or abscond and leave the employer without a sufficient workforce to 
complete the work. Therefore, the final rule amends 8 CFR 
214.2(h)(5)(ix) to allow an employer to file an H-2A petition to 
replace H-2A workers in the following

[[Page 76902]]

three instances: (a) Where an H-2A worker's employment was terminated 
prior to the completion of work and earlier than the date stated in the 
H-2A petition; (b) where a prospective H-2A worker has failed to report 
to work within five workdays of the employment start date on the 
temporary labor certification or within five workdays of the date 
established by their employer, whichever is later; or (c) where an H-2A 
worker absconds from the worksite. Under this revised provision, a 
petitioner would be able to file an H-2A petition using a copy of the 
previously approved temporary labor certification to replace the absent 
H-2A worker.
    Comment: Some commenters suggested that the employer, who did not 
know of job placement-related fee payments made by prospective workers, 
should not be penalized and therefore should be able to quickly replace 
the worker with another H-2A worker.
    Response: As discussed above, an H-2A petition will be denied or 
revoked if DHS determines that the employer knew or has reason to know 
that the H-2A worker paid or agreed to pay a job placement-related fee. 
If the employer did not know or have reason to know of such payment, 
the provision will not apply and the petition cannot be denied or 
revoked on this basis. Therefore, it is not necessary for the final 
rule to cover this possibility.
6. Violations of H-2A Status
    Comment: Ten commenters objected to the proposal to revise 8 CFR 
214.2(h)(5)(viii)(A) to provide that any violation of a condition of H-
2A status within the 5 years prior to adjudication of a new H-2A 
petition would result in a denial of H-2A status. DHS did not receive 
any other comments on this proposal.
    Response: Based on the objections of the commenters, DHS will 
modify the proposed rule as discussed below.
    Comment: Most of the ten commenters suggested that some aliens may 
have unwittingly violated their previous H-2A status by absconding from 
their jobs as a result of their employer's illegal or inappropriate 
conduct, thereby causing them to engage in a protest leading to their 
termination or being forced to quit.
    Response: DHS agrees that this situation should not trigger the 
consequences of 8 CFR 214.2(h)(5)(viii)(A). The final rule clarifies 
that an alien will be precluded from being granted H-2A status where he 
or she violated the conditions of H-2A status within the 5 years prior 
to adjudication of a new H-2A petition by DHS, except where the 
violation occurred through no fault of his or her own, such as where 
the alien absconded from the worksite as a result of the employer's 
illegal or inappropriate conduct. The prospective employer would have 
the opportunity to explain the circumstances surrounding the alien's 
previous status violation in its petition, as would the alien in 
conjunction with his or her application for H-2A status and/or an H-2A 
visa.
    Comment: One comment arguing against the revision stated that DHS 
lacks the authority to impose additional or more restrictive grounds of 
inadmissibility than those provided in the INA.
    Response: DHS does not find that this revision is an imposition of 
an additional ground of inadmissibility. This revision simplifies the 
current provision to apply to all violations of the H-2A status rather 
than to the two currently identified in the regulations, namely, 
remaining beyond the specific period of authorized stay and engaging in 
unauthorized employment. Further, section 214(a)(1) of the INA (8 
U.S.C. 1184(a)(1)) provides authority for this requirement as a 
condition for H-2A admission. Under that section, the Secretary of 
Homeland Security is granted the authority to establish the conditions 
of nonimmigrant admission by regulation.
7. Revocation of Labor Certification
    Comment: Twenty out of 21 commenters objected to the proposed 
revision to 8 CFR 214.2(h)(5)(11)(ii) providing for the immediate and 
automatic revocation of an H-2A petition upon the revocation of the 
temporary labor certification by DOL.
    Response: After carefully considering the commenters' objections 
and discussing with DOL, the final rule adopts the proposal for the 
following reasons.
     Comment: Many of these commenters objected to this change because 
a petition revocation will terminate the employment authorization of 
the workers and make it impossible for the employer to legally continue 
in business. They were concerned that DOL would make revocation of a 
labor certification immediate during the pendency of an employer's 
appeal of the revocation.
    Response: In its final H-2A rule, DOL provides for a stay of 
revocation until the conclusion of any DOL administrative appeal. DHS 
believes that this DOL provision addresses these commenters' concerns. 
Therefore, under this final rule, DHS will revoke an H-2A petition as 
soon as DOL has adjudicated any administrative appeal that may have 
been filed and informs DHS of their decision to revoke the temporary 
labor certification.
    Comment: A few commenters wrote that this proposed change will 
provide no relief for affected workers who stand to lose their jobs and 
their ability to earn sufficient wages that they had expected by taking 
H-2A employment. These commenters suggested that the former employer 
(whose petition was revoked) should be obligated to pay for subsistence 
costs for the aliens during the 30-day period.
    Response: In response to these comments, the final rule provides a 
30-day grace period for H-2A workers who are in the United States based 
on an approved petition that is later revoked because of DOL's 
revocation of the temporary labor certification. New 8 CFR 
214.2(h)(5)(xii). During this 30-day period, such workers will be in an 
authorized period of stay. They may choose to find new employment and 
apply for an extension of stay or depart the United States. As 
discussed above, however, at this time, DHS does not believe that it 
may require employers to pay wages for workers who remain in the United 
States nor transportation expenses for those who chose to return to 
their country of origin.
8. Permitting H-2A Petitions for Nationals of Participating Countries
    Comment: Five comments addressed the proposed rule to include a new 
provision at 8 CFR 214.2(h)(5)(i)(F) (and complementary provision at 8 
CFR 214.2(h)(5)(viii)(D)) precluding DHS from approving an H-2A 
petition filed on behalf of one or more aliens from countries 
determined by the Secretary of Homeland Security to consistently deny 
or unreasonably delay the prompt return of their citizens, subjects, 
nationals, or residents who are subject to a final order of removal 
from the United States. One commenter supported this proposed change. 
Two commenters sought modification to the provision, while another 
sought additional time to comment on the provision. A final commenter 
disagreed that the proposal would improve the H-2A process generally.
    Response: After reviewing all comments, DHS has modified this 
proposal in the final rule for the reasons and in the manner as 
discussed below.
    Instead of publishing a list of countries that consistently deny or 
unreasonably delay the prompt return of their citizens, subjects, 
nationals or residents who are subject to a final removal order, DHS at 
this time will be publishing in a notice in the Federal

[[Page 76903]]

Register a list of countries that the Secretary of Homeland Security 
has designated, with the concurrence of the Secretary of State, as 
eligible for its nationals to participate in the H-2A temporary worker 
program. DHS is making this modification to the rule in consideration 
of public comments received recommending DHS rework the proposal in 
order to make the process more positive and to encourage countries to 
improve cooperation in the repatriation of their nationals.
    In designating countries to allow the participation of their 
nationals in the H-2A program, DHS, with the concurrence of the 
Department of State, will take into account factors including, but not 
limited to, the following: (1) The country's cooperation with respect 
to the issuance of travel documents for citizens, subjects, nationals, 
and residents of that country who are subject to a final order of 
removal; (2) the number of final and unexecuted orders of removal 
against citizens, subjects, nationals, and residents of that country; 
(3) the number of orders of removal executed against citizens, 
subjects, nationals, and residents of that country; and (4) such other 
factors as may serve the U.S. interest.
    Designation of countries on the list of eligible countries will be 
valid for one year from publication. The designation shall be without 
effect at the end of that one-year period. The Secretary, with the 
concurrence of the Secretary of State, expects to publish a new list 
prior to the expiration of the previous designation by publication of a 
notice in the Federal Register, considering a variety of factors 
including, but not limited to the four factors for the designation of a 
participating country described above.
    Initially, the list will be composed of countries that are 
important for the operation of the H-2A program and are cooperative in 
the repatriation of their nationals. The countries included on the list 
are the countries whose nationals contributed the vast majority of the 
total beneficiaries of the H-2A and H-2B programs during the last three 
fiscal years.
    The Secretary of Homeland Security may allow a national from a 
country not on the list to be named as a beneficiary on an H-2A 
petition and to participate in the H-2A program based on a 
determination that such participation is in the U.S. interest. The 
Secretary's determination of such a U.S. interest will take into 
account a variety of factors, including but not limited to 
consideration of: (1) Evidence from the petitioner demonstrating that a 
worker with the required skills is not available from among workers 
from a country currently on the list of eligible countries for 
participation in the program; (2) evidence that the beneficiary has 
been admitted to the United States previously in H-2A status and has 
complied with the terms of that status; (3) the potential for abuse, 
fraud, or other harm to the integrity of the H-2A visa program through 
the potential admission of a beneficiary from a country not currently 
on the list of eligible countries for participation in the program; and 
(4) such other factors as may serve the U.S. interest. Therefore, DHS 
is requiring petitioners for beneficiaries who are nationals of 
countries not designated as participating countries to name each 
beneficiary. Additionally, petitions for beneficiaries from designated 
countries and undesignated countries are to be filed separately. These 
changes will permit DHS to more easily adjudicate H-2A petitions 
involving nationals of countries not named on the list by permitting 
DHS to properly evaluate the factors used to make a determination of 
U.S. interest, discussed above, without slowing the adjudication of 
petitions for nationals of designated countries.
    As discussed in the proposed rule, DHS expects that the provisions 
in this rule intended to increase the flexibility of the H-2A visa 
program, complemented by the streamlining proposals the Department of 
Labor is making in its H-2A rule, will increase the appeal of the H-2A 
program to U.S. agricultural employers. See 73 FR 8230, 8234-5 (Feb. 
13, 2008). While a more efficient H-2A program is anticipated to reduce 
the number of aliens entering the country illegally to seek work, it 
also could lead to an increase in the number of H-2A workers that 
abscond from their workplace or overstay their immigration status. 
Therefore, the success of the program will depend significantly upon 
countries accepting the return of their nationals.
    Petitions may only be filed and approved on behalf of beneficiaries 
who are citizens, subjects, nationals or residents of a country that is 
included in the list of participating countries published by notice in 
the Federal Register or, in the case of an individual beneficiary, an 
alien whose participation in the H-2A program has been determined by 
the Secretary of Homeland Security to be in the U.S. interest. See new 
8 CFR 214.2(h)(5)(i)(F). Likewise, in order to be admitted as an H-2A, 
aliens must be nationals of countries included on the list of 
participating countries or, in the case of an individual beneficiary, 
an alien whose participation in the H-2A program has been determined by 
the Secretary of Homeland Security to be in the U.S. interest. See new 
8 CFR 214.2(h)(5)(viii)(D). To ensure program integrity, such 
petitioners must state the nationality of all beneficiaries on the 
petition, even if there are beneficiaries from more than one country. 
See new 8 CFR 214.2(h)(2)(iii).
9. Period of Admission
    Comment: Sixteen out of 18 commenters supported the proposal to 
revise 8 CFR 214.2(h)(5)(viii)(B) by extending the H-2A admission 
period following the expiration of the H-2A petition from 10 to 30 
days. These commenters believed that it would make the H-2A program a 
more cost efficient program.
    Response: Based on the support of these commenters, the final rule 
adopts this proposal. New 8 CFR 214.2(h)(5)(viii)(B).
     Comment: Several commenters who supported this proposed change 
also suggested that employers should be obligated to pay for their 
former employees' subsistence costs during the 30-day period, as the 
aliens would not be permitted to work during that time.
    Response: Because H-2A workers are not required to remain in the 
United States during the additional 30-day period, DHS does not think 
that employers should be responsible for subsistence costs during that 
period. In addition, as discussed above, DHS does not think that it may 
impose such costs at this time.
    Comment: Two commenters opposed the proposal. One commenter did not 
provide a reason for the opposition. The other commenter stated that 
this change would create a period of too much downtime where the worker 
is not accounted for and does not seem to have any significant 
benefits.
    Response: DHS disagrees with these concerns. DHS believes that the 
benefit of extending the H-2A admission period following the expiration 
of the H-2A petition to 30 days would be to provide the H-2A worker 
enough time to prepare for departure or apply for an extension of stay 
based on a subsequent offer of employment if the worker chooses to do 
so. Having a 30-day extension would facilitate the new benefit that the 
final rule provides for a worker to continue to be employment 
authorized while awaiting for an extension of H-2A status based on a 
petition filed by a new employer who is a registered user in good 
standing of USCIS' E-Verify program.
10. Interruptions in Accrual Towards 3-Year Maximum Period of Stay
    Comment: Nine out of 12 commenters supported the proposed rule 
reducing

[[Page 76904]]

the length of time that interrupts an H-2A worker's accrual of time in 
H-2A status for purposes of calculating when the worker has reached the 
3-year maximum period of stay. They supported this change because it 
would allow a worker to engage in a longer employment period, which 
would benefit both employers and employees.
    Response: DHS agrees that this proposal would benefit both 
employers and H-2A workers. Accordingly, the final rule adopts the 
proposed revision, reducing the minimum period spent outside the United 
States that would be considered interruptive of accrual of time towards 
the 3-year limit, where the accumulated stay is 18 months or less, to 
45 days. If the accumulated stay is longer than 18 months, the required 
interruptive period will be 2 months. See new 8 CFR 
214.2(h)(5)(viii)(C).
    Comment: One comment suggested that the existing exception for the 
H-1B, H-2B, and H-3 commuters under 8 CFR 214.2(h)(13)(v) be extended 
to the H-2A classification.
    Response: The current regulation at 8 CFR 214.2(h)(13)(v) provides 
that the limitations on admission in H-1B, H-2B, and H-3 status do not 
apply to H-1B, H-2B, and H-3 individuals (1) who did not reside 
continually in the United States and whose employment was seasonal, 
intermittent, or for less than 6 months per year, and (2) who reside 
abroad and regularly commute to the United States. DHS does not believe 
that it is appropriate to extend this provision to H-2A commuters; 
therefore, the final rule does not include the suggested revision to 8 
CFR 214.2(h)(13)(v). The H-2A classification is unique in that H-2A 
employment sites change from season to season. While some employment 
sites may be within reasonable commuting distance from the border, it 
cannot be anticipated that all of the alien's worksites will also be, 
particularly given the variabilities of growing seasons and work hours 
inherent in the agricultural industry. What may be reasonable commuting 
distance based on an 8-hour day may not be if the alien worker is 
required to work longer hours during the height of the growing season.
    It is reasonable to assume that most aliens do not have ready 
access to transportation to and from their home country and the 
particular worksite where they are employed. As such, few H-2A workers 
will actually be able to commute from their homes abroad to the United 
States on a regular basis. Further, by statute, employers must 
guarantee many employee benefits such as housing, meals, tools, 
workers' compensation insurance, and return transportation. Section 
218(c)(4) of the INA requires employers to provide housing to all H-2A 
workers in accordance with specific regulations. 8 U.S.C. 1188(c)(4). 
Employer-provided housing must meet the standards set forth under 29 
CFR 1910.142 or 20 CFR 654.404-654.417. Since the statute does not 
contain any provision to release employers from their responsibility to 
provide housing to their employees, DHS does not think it appropriate 
to apply the commuter exception to the H-2A classification given the 
special nature and variabilities of H-2A agricultural work.
    Comment: One commenter objected to this proposal stating that it 
would encourage more illegal aliens to come into the country and lead 
to illegal aliens who are already in the country to stay longer.
    Response: DHS does not believe that reducing the time spent outside 
the United States to be interruptive of accrual of time towards the 3-
year limit in H-2A status would encourage more illegal aliens to come 
to the U.S. or stay in the U.S. longer. This provision is meant to 
cause less disruptive breaks in the H-2A employment, benefiting both H-
2A workers and their employers, and does not apply to those who attempt 
to enter the U.S. illegally or to those who are already here illegally.
    Comment: One commenter stated that it would like to employ H-2A 
workers for 3 consecutive years.
    Response: The current regulations provide that an alien worker's 
total period of stay in H-2A nonimmigrant status may last up to 3 
years. A temporary need by a single employer for H-2A workers in excess 
of one year is possible where an H-2A employer satisfies DHS and DOL 
that such longer-term need is generated by ``extraordinary 
circumstances.'' See 8 CFR 214.2(h)(5)(iv)(A).
    DHS believes that the reduction of the time to be spent outside the 
United States to be considered interruptive of accrual of time towards 
the 3-year limit in H-2A status provided in this final rule would 
benefit employers by reducing the amount of time that they are required 
to be without the services of needed workers. At the same time, this 
will not violate the temporary and seasonal nature of employment 
requirements under the H-2A program.
11. Post-H-2A Waiting Period
    Comment: Twelve out of 15 commenters supported the proposed rule 
suggesting the reduction of the waiting period from 6 months to 3 
months for an H-2A worker who has reached the 3-year ceiling on H-2A 
nonimmigrant status prior to seeking H-2A nonimmigrant status again (or 
any other nonimmigrant status based on agricultural activities). These 
commenters supported this proposal, stating that it will enhance the 
workability of the H-2A program for employers while not offending the 
fundamental temporary nature of employment under the H-2A program.
    Response: DHS agrees with the comments in support of this proposal. 
Accordingly, the final rule adopts the proposed reduction in waiting 
time without change. New 8 CFR 214.2(h)(5)(viii)(C).
    Comment: One commenter argued that this provision may lead to the 
displacement of U.S. workers and make some desirable year-round 
agricultural work unavailable to the domestic workforce. The commenter 
suggested that employers, including farm labor contractors, may string 
together several short-term job opportunities to offer job stability 
for a longer term, which would be desirable for many U.S. farm workers.
    Response: DHS disagrees that a reduction in the waiting period will 
result in the displacement of U.S. farm workers. In order to protect 
U.S. workers, the law requires H-2A employers to obtain a temporary 
labor certification certifying that there are insufficient U.S. workers 
who are able, willing, qualified, and available to perform agricultural 
temporary labor or services, and that the H-2A employment will not 
adversely affect the wages and working conditions of similarly employed 
U.S. workers. If an employer is able to find U.S. workers by offering 
job stability for a longer period, it will not be allowed to or have no 
need to utilize the H-2A program. DHS believes that this streamlining 
measure will encourage employers who are unable to secure their 
workforce among U.S. workers to use the H-2A program instead of hiring 
individuals who have no legal immigration status and are unauthorized 
to work.
    Comment: One commenter objected to this proposal, stating that it 
would encourage more illegal aliens to come into the country and lead 
illegal aliens who are already in the country to stay longer. Another 
commenter objected to the proposal but did not provide a reason.
    Response: DHS adopts this proposal because it believes that a 
shorter waiting period would better meet the needs of employers in the 
time-sensitive agricultural industry. The H-2A program is for 
agricultural employers, who experience labor shortage among U.S. 
workers, to rely on alien workers to

[[Page 76905]]

perform agricultural labor or services of a temporary or seasonal 
nature. DHS does not agree that this provision would increase the 
presence of illegal aliens in the United States.
12. Extending Status With a New Employer and Participation in E-Verify
    Comment: Two commenters supported the proposal to provide for 
employment authorization to H-2A workers awaiting an extension of H-2A 
status based on a petition filed by a new employer. Twelve out of 15 
comments opposed conditioning employment authorization on the new 
employer's participation in the E-Verify program, but supported the 
proposal to provide for employment authorization to H-2A workers 
awaiting an extension of H-2A status based on a petition filed by a new 
employer.
    Response: After considering the commenters' objections and 
concerns, the final rule adopts this proposal at new 8 CFR 
274a.12(b)(21), as discussed below. Note that new 8 CFR 274a.12(b)(21) 
does not include a cross reference to 8 CFR 214.6. This cross reference 
relates to TN nonimmigrants and was erroneously included in the 
proposed rule.
    Comment: Many commenters questioned the reliability of the E-Verify 
program. Some commenters suggested that E-Verify has high error rates 
that disproportionately affect foreign-born U.S. workers.
    Response: DHS believes that these concerns are misplaced and 
factually inaccurate. The ``Findings of the Web Basic Pilot 
Evaluation'' reported that currently 99.5 percent of all work-
authorized employees queried through E-Verify were verified without 
receiving a Tentative Non-Confirmation (TNC) or having to take any type 
of corrective action.\1\ Over the past year, E-Verify has automated its 
registration process, instituted a system change to reduce the 
incidence of typographical errors, incorporated a photo screening tool 
to combat identity fraud, added Monitoring and Compliance staff to 
maintain system integrity, added new databases that are automatically 
checked by the system, and established a new process for employees to 
call DHS' toll-free number to address citizenship mismatches as an 
alternative to visiting the Social Security Administration (SSA). These 
changes have been implemented in an effort to establish efficient and 
effective verification. A series of enhancements that E-Verify has 
implemented reduces mismatch rates among newly naturalized citizens and 
newly arriving workers. Under DHS management and in partnership with 
SSA, the program is continuously improving its processes to decrease 
mismatch rates and ensure that E-Verify is fast, easy to use, and 
protects employees' rights.
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    \1\ http://www.uscis.gov/files/article/WebBasicPilotRprtSept2007.pdf.
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    Comment: Some commenters stated that some employers have little or 
no occasion to use the E-Verify program and probably little facility 
with it and argued that the provision is not fair to such employers.
    Response: E-Verify is a free and voluntary program. This provision 
is not a requirement for employers to obtain H-2 employees, but rather 
is a condition for the alien obtaining an extension of status and 
employment authorization pending adjudication of a new H-2A petition 
filed by another employer. DHS continues to believe that the provision 
will provide a valuable incentive for employers to participate in the 
E-Verify program, thereby reducing opportunities for aliens without 
employment authorization to work in the agricultural sector.
    Comment: One comment suggested that, assuming DHS has the authority 
to provide for portability without statutory authorization, DHS should 
fully use the H-1B portability provisions as the model to allow 
portability for the period the petition is pending.
    Response: DHS has general authority to grant employment 
authorization. See INA section 274A(h), 8 U.S.C. 1324a(h). In an 
industry in which an estimated half of the 1.1 million workers in the 
United States are illegal aliens, DHS has determined that it is 
appropriate to restrict the benefit of portability during petition 
pendency to only those employers that have demonstrated good business/
corporate citizenship through enrollment in E-Verify.
    Comment: One commenter who objected to the proposal suggested that 
the provision to extend employment authorization would act as an 
inducement for a worker to breach his work contract and to change 
employers prior to fulfillment of the contractual obligations, which 
would be a violation of INA section 218(c)(3)(B), 8 U.S.C. 
1188(c)(3)(B).
    Response: DHS disagrees that this provision would act as such an 
inducement. While it is true that this provision would enable an alien 
to work for a new employer prior to approval of the new H-2A petition, 
the purpose of this provision is to enable agricultural workers to 
change worksites and employers as soon as they complete one 
agricultural job. Even if this provision acted as an inducement for 
some aliens to change employers before completion of the first job 
(e.g., to get a higher paying job), DHS believes that the overall 
benefit to the agricultural industry, the alien worker, and the U.S. 
public in allowing the alien worker to change job locations at the end 
of each job assignment without having to wait for the successor 
employer's petition to be approved outweighs the possibility of abuse 
of this privilege by the alien worker or the new petitioning employer.
    Comment: This same commenter also suggested that the proposed 
change to 8 CFR 214.2(h)(2)(i)(D) would create the possibility that an 
extension for an H-2A employee within the three-year period of stay may 
not be granted for employment with the same employer.
    Response: DHS disagrees with the commenter's interpretation of the 
proposed provision. The cited provision is specifically for change of 
employers. The provision for extensions of stay is governed by 8 CFR 
214.2(h)(15); the rule does not amend this provision.
    Comment: One commenter stated that this proposal conditioning 
employment authorization on the new employer's participation in the E-
Verify program seems to be a waste of time because the state workforce 
agency (SWA) is required to verify workers' eligibility under the DOL's 
rule.
    Response: The E-Verify program supplements the employer's 
obligation under section 274A(a) of the INA, 8 U.S.C. 1324a(a), to 
complete Forms I-9 (Employment Eligibility Verification) at the time of 
each new hire. The SWA's responsibility is to verify the employment 
authorization of applicants seeking referral under a job order. SWAs 
are encouraged, but not required, to enroll in E-Verify. Additionally, 
under INA Section 274A(a)(5), employers can rely on the SWA's 
verification of employment authorization only where the documentation 
complies with all statutory and regulatory requirements, including 8 
CFR 274a.6. Incentivizing E-Verify enrollment by agricultural employers 
will thus reduce opportunities for unauthorized agricultural workers, 
not just in the situations where employers are not able to rely on a 
SWA's verification, but in other situations outside the SWA referral 
process where workers apply for employment.
13. Miscellaneous Changes to H-2A Program
a. Extensions of Stay Without New Temporary Labor Certifications
    Comment: Two comments suggested changes to the proposal that would 
allow, in emergent circumstances, an

[[Page 76906]]

application for an extension of stay for an H-2A nonimmigrant worker to 
not contain an approved temporary labor certification, under certain 
conditions.
    Response: The final rule retains the provision as stated in the 
proposed rule. New 8 CFR 214.2(h)(5)(x).
    Comment: One comment recommended that this provision continue to be 
automatically available upon request and that petitioners not be 
required to make a case for emergent circumstances.
    Response: The proposed rule revised the provision at 8 CFR 
214.2(h)(5)(x) to improve its readability, making no substantive 
changes to the provision. This provision originally was meant to allow 
H-2A employers to obtain a necessary workforce in case of emergencies 
over which employers have no control (e.g., changed weather 
conditions), for up to two weeks. DHS does not believe that the 
provision should be extended beyond situations involving emergent 
circumstances. Many agricultural employers stated in their comments to 
other proposals that, due to the uncertainty as to when the growing 
season would end, they normally use the latest likely ending date when 
they apply for a temporary labor certification. Many employers further 
indicated that most work is completed before the date on the temporary 
labor certification. DHS believes that it is reasonable to provide an 
opportunity for an employer to file an H-2A petition without obtaining 
a new temporary labor certification only in emergent circumstances.
    Comment: The other comment asked DHS to have the parameters of 
emergent circumstances include any instance that the employer could not 
have reasonably foreseen at the time that the petition was filed.
    Response: DHS has determined that it will not include additional 
parameters to the provision. To do so would unnecessarily reduce the 
flexibility that the provision currently provides.
b. Filing Locations
    Comment: Commenters were supportive of the proposed modifications 
to the general filing provision at 8 CFR 214.2(h)(2)(i)(A) applicable 
to H-1B, H-2A, H-2B, and H-3 classifications by removing specific 
reference to filing locations announced in the Federal Register and 
providing that the form instructions will contain information regarding 
appropriate filing locations for these nonimmigrant visa petitions.
    Response: In the absence of negative comments on these revisions, 
and to maintain flexibility in the regulations to accommodate changing 
case management needs, the final rule adopts these modifications 
without change. New 8 CFR 214.2(h)(2)(i)(A). The final rule also makes 
conforming amendments to 8 CFR 214.2(h)(2)(i)(B) and 214.2(h)(2)(i)(C), 
replacing references to filing locations based on where the petitioner 
is located, will perform services, or receive training, or based on an 
established agent, with reference to the form instructions. In 
addition, revised 8 CFR 214.2(h)(2)(i)(B) replaces the reference to 
``Service office,'' referring to the Immigration and Naturalization 
Service, with ``USCIS.''
    Comment: DHS received one comment with respect to filing locations 
specific to logging employers who will need to begin using the H-2A 
classification once DOL's final rule making changes to the H-2A 
classification takes effect. Currently, such employers use the H-2B 
classification. 20 CFR part 655, subpart C. Under the DOL final rule, 
they instead would need to use the H-2A classification. The comment 
concerned the current filing location for H-2A petitions at USCIS' 
California Service Center, as announced in a notice published in the 
Federal Register on November 9, 2007. See 72 FR 63621. The comment 
requested that logging employers be allowed to continue to file their 
petitions at USCIS' Portland, Maine field office, the current filing 
location for H-2B petitions for loggers, because the Portland office is 
familiar with the unique characteristics and needs of the industry.
    Response: At present, DHS has no plan to change its central filing 
location for H-2A petitions at the California Service Center. This 
central filing location ensures timely processing and consistent 
adjudication of H-2A petitions. Once DOL's final rule takes effect and 
requires logging employers to use the H-2A classification, and 
beginning on the effective date of this rule, logging employers will be 
required to file petitions on behalf of their prospective workers in 
accordance with the H-2A regulations and form instructions for H-2A 
petitions. As DHS monitors the processing of these petitions, if DHS 
determines that it is more prudent to change the filing location for 
logging employers to the Portland, Maine field office or any other DHS 
office, DHS may change the filing location via the form instructions 
for the H-2A petition. Note that within 30 days from the effective date 
of this rule (and the DOL rule), logging employers will be required to 
file change of status petitions for their workers who are present in 
the United States in H-2B status to ensure that logging workers will be 
classified as H-2A workers.
14. DHS Policy Applicable to H-2A Sheepherders
    Comment: Ten out of 12 commenters objected to the proposal to 
impose on H-2A sheepherders the same departure requirement applicable 
to all H-2A workers.
    Response: After carefully considering the commenters' objections, 
DHS has determined that it will change its policy regarding H-2A 
sheepherders as proposed for the reasons discussed below.
    Comment: Many commenters who objected to this proposal suggested 
that the existing policy was developed based on the understanding that 
tending and caring for sheep over extensive expanses of open range for 
long periods of time is a skilled and exacting occupation that requires 
considerable training and experience.
    Response: Although DHS recognizes the special nature of this unique 
type of agricultural work, it does not change the nonimmigrant nature 
of the H-2A classification. See INA section 101(a)(15)(H)(ii)(a), 8 
U.S.C. 1101(a)(15)(H)(ii)(a). The statute provides that an H-2A worker 
is a nonimmigrant who has a residence in a foreign country that he has 
no intention of abandoning and who is coming temporarily to the United 
States to perform agricultural labor or services. Without a departure 
from the United States after reaching the 3-year maximum period of 
stay, an H-2A worker cannot be considered a nonimmigrant, and his or 
her stay cannot be considered temporary. All other H-2A workers must 
depart the United States after reaching the 3-year maximum period of 
stay, regardless of the employer's need or the degree of skill or 
experience required of those workers; the same rule should apply to H-
2A sheepherders.
    Comment: A few commenters also argued that the history of the sheep 
industry shows that its existing practice is in keeping with 
Congressional intent.
    Response: DHS is aware that foreign workers skilled in sheepherding 
were admitted during the early 1950s for permanent employment under 
special laws enacted by Congress. However, Congress permitted the 
special laws to expire after the issuance of ``Spanish Sheepherders, 
Report of Subcommittee No. 1 of the Committee on the Judiciary, House 
of Representatives,'' a report by the House Judiciary Committee on 
February 14, 1957, which undertook an investigation during 1955 and 
1956 to examine allegations that a number of

[[Page 76907]]

foreign sheepherders admitted under the special laws were leaving 
sheepherding shortly after arrival in the U.S. and were employed in 
other industries.\2\ The report by the House Judiciary Committee 
substantiated many of these allegations. In the report, the Committee 
recommended ``that the practice of admitting alien sheepherders under 
special legislation should be discontinued and that the problem of 
supplying legitimate needs of the American sheep-raising and wool-
growing industry, should be met administratively under existing general 
law, specifically under section 101(a)(15)(H)(ii), of the Immigration 
and Nationality Act.'' The report also states the following:
---------------------------------------------------------------------------

    \2\ http://www.foreignlaborcert.doleta.gov/fm/fm_24-01.htm.

    [I]t is further believed that the employment in the sheep-
raising and woolgrowing industry is not different in nature from the 
employment of foreign skilled workers in other branches of 
agriculture and industry. It is not believed that the sheepherders 
should benefit from a special preferential and privileged treatment 
and that they should be admitted as immigrants entering this country 
for permanent residence. Inquiries and studies have conclusively 
shown that the legitimate interest of American employers will be 
better served if workers for the sheep-raising and woolgrowing 
industry were admitted temporarily for appropriate periods of time, 
and that at the conclusion of such periods they were required to 
return to their country of origin and to their families, while other 
workers--from domestic labor sources, if available--or other foreign 
workers similarly skilled be given opportunity to accept temporary 
---------------------------------------------------------------------------
employment.

    It was the Committee's opinion that no additional special 
legislation should be enacted to admit foreign sheepherders and the 
importation of foreign sheepherders should be governed by the H-2 
temporary worker provision. DHS acknowledges that the aforementioned 
legislative history predates the policy established by the Immigration 
and Naturalization Service (INS) and now DHS to refrain from applying 
the three-year maximum period of stay to H-2A aliens who work as 
sheepherders. However, DHS has concluded that this policy is 
inconsistent with the temporary nature required by the statutory 
provisions governing H-2A program.
    Comment: One commenter asked why such special procedures are 
available only for sheepherders. Another commenter suggested that DHS 
should adapt the special procedures for sheepherders to all occupations 
engaged in the range production of other livestock such as cattle and 
horses.
    Response: It is believed that the policy regarding sheepherders was 
grandfathered from a series of bills enacted by Congress in the early 
1950s to provide relief for the sheep-raising industry by making 
available special nonquota immigrant visas to skilled alien 
sheepherders. DHS disagrees that the special procedures should be 
extended to all occupations engaged in the range production of other 
livestock. DHS has determined that all H-2A occupations should be 
subject to the same statutory standard and that the special procedures 
should be curtailed rather than extended to other H-2A occupations. 
With the effective date of this final rule, DHS will begin to enforce 
on H-2A sheepherders the same departure requirement applicable to all 
other H-2A workers. However, DHS will not revoke any currently valid H-
2A petitions that have been approved for sheepherders.
    Comment: One commenter recommended that the time period required 
outside the country between periods of stay be reduced to two weeks for 
sheepherders.
    Response: For the reasons stated above, DHS believes that the same 
statutory and regulatory standards for all other H-2A occupations 
should be applied to sheepherders.
15. Temporary Worker Visa Exit Program
    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. The proposed rule included an exit system pilot program 
applicable to H-2A nonimmigrants. Under the proposed program, an alien 
admitted on an H-2A visa at a port of entry participating in the 
program must also depart through a port of entry participating in the 
program and present designated biographic and/or biometric information 
upon departure. Details of the program, such as designated ports of 
entry, would be announced in a notice published in the Federal 
Register.
    Comments: A few comments generally supported the proposal or 
encouraged more strict measures to ensure foreign workers' departure 
within their authorized periods of stay. However, many commenters 
criticized this proposal for singling out the H-2A population and 
unfairly seeking to punish them by imposing an undue burden on them. 
They suggested that workers should be permitted to use all ports to 
enter the United States and should not be required to depart through 
the same ports of entry through which they entered because the original 
port of entry through which they entered may not be the most convenient 
if workers transfer to another employer. Some commenters pointed out 
that it would be difficult to effectively educate H-2A workers about 
the required method for exit, which will likely cause them to violate 
the requirement inadvertently. Many commenters expressed concerns about 
the unknown factors of the program such as the number and location of 
ports through which a worker can enter and return, timeliness of the 
process, and overall convenience or inconvenience for a worker. Others 
suggested that DHS should provide sufficient time and opportunities to 
answer stakeholders' concerns or questions.
    Response: DHS has determined that it will adopt, with due 
consideration of commenters' concerns, the Temporary Worker Visa Exit 
Program Pilot for H-2A workers in this final rule. See new 8 CFR 215.9. 
DHS will inform H-2A workers of their obligations through an 
educational effort among the workers, foreign governments, agricultural 
industry, association leaders, and U.S. employers. Before 
implementation of the program, DHS will implement a comprehensive 
communications program that engages stakeholders and reaches travelers. 
This communications program may include giving walk-away materials to 
H-2A workers when they enter the country and utilizing outreach methods 
such as creating customer-focused products and proactive/reactive media 
relations program.
    Under the H-2A land exit pilot program, DHS will explore ways that 
participating workers can register their final departure from the 
United States at select ports of entry. Only those workers who enter 
through these designated ports will be required to register their final 
departure for purposes of this pilot.

III. Rulemaking Requirements

A. 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.

[[Page 76908]]

B. 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, DHS is 
required to prepare an assessment of the benefits and costs anticipated 
to occur as a result of this regulatory action and provide the 
assessment to the Executive Office of the President, Office of 
Management and Budget, Office of Information and Regulatory Affairs.
1. Public Comments on the Estimated Costs and Benefits of the Proposed 
Rule
    DHS invited the public to comment on the extent of any potential 
economic impact of this rule on small entities, the scope of these 
costs, or more accurate means for defining these costs. As a result, 
DHS received one comment directly related to the regulatory cost 
benefit analysis performed for the proposed rule which indicated that 
woolgrowers would have to hire double the number of employees as they 
currently do and that expenses would increase by at least 25 to 50 
percent for each sheepherder employer. The comment provided no 
supporting data or calculations to explain exactly how this result 
would occur, and USCIS was unable to determine how the outcome of a 
requirement for an employee to go home for 3 months every 3 years would 
result in a doubling of the number of annual employees. Therefore, no 
changes were made as a result of the comment.
2. Summary of Final Rule Impacts
    In summary, this rule makes several changes to the H-2A visa 
program that DHS believes are necessary to encourage and facilitate the 
lawful employment of foreign temporary and seasonal agricultural 
workers. A complete analysis has been performed in accordance with the 
Executive Order and is available for review in the rulemaking docket 
for this rule at http://www.regulations.gov. The results of the cost 
benefit analysis are summarized as follows:
i. Government Costs
    The exit pilot program provided for in this rule will cost the 
Federal Government at least $2 million in labor costs per year to 
implement.
ii. Transferred Costs
    A total cost of between $16.5 million and $55 million will be 
imposed on all H-2A petitioning firms for all H-2A workers each year as 
a result of this rule banning placement fee payments by employees. 
Those costs may range from an average of around $1,700 to almost $6,000 
per employer, based on the average number of H-2A workers requested per 
employer petition. The total annual costs of the time for H-2A 
employees to comply with the exit requirements of this rule are 
estimated to be around $184,332, based on the opportunity cost of the 
time lost to the employer while registering.
    The annual information collection costs imposed by the employer 
notification requirements in this rule are estimated to be $13,713.
    The volume of applications is expected to increase from an average 
of 6,300 per year to around 9,900 per year. The burden of compliance 
both in time and fees per application will not increase above that 
currently imposed as a result of this rule.
iii. Benefits
    This rule will benefit applicants by:
     Reducing delays caused by Interagency Border Inspection 
System (IBIS) checks holding up the petition application process.
     Reducing disruption of the life and affairs of H-2A 
workers in the United States.
     Protecting laborers' rights by precluding payment of some 
fees by the alien.
     Prevent the filing of requests for more workers than 
needed, visa selling, coercion of alien workers and their family 
members, or other practices that exploit workers and stigmatize the H-
2A program.
     Encouraging employers who currently hire seasonal 
agricultural workers who are not properly authorized to work in the 
United States to replace those workers with legal workers.
     Minimizing immigration fraud and human trafficking.

C. Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

D. Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires Executive 
agencies to review regulations in light of applicable standards in 
section 3(a) and section 3(b) to determine whether they are met or it 
is unreasonable to meet one or more of them. DHS has completed the 
required review and determined that, to the extent permitted by law, 
this final rule meets the relevant standards of Executive Order 12988.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 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 a rule on 
small entities whenever an agency is publishing a notice of proposed 
rulemaking. In accordance with the RFA, DHS certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities.
1. Number of Regulated Entities
    The H-2A program is used mainly by farms engaged in the production 
of livestock, livestock products, field crops, row crops, tree crops, 
and various other enterprises. The affected industries do not include 
support activities for agriculture. Therefore, in accordance with the 
RFA, USCIS has identified the industry affected by this rule as 
described in the North American Industry Classification System (NAICS) 
as encompassing NAICS subsectors 111,

[[Page 76909]]

Crop Production, and 112, Animal Production.\3\
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    \3\ U.S. Small Business Administration, Table of Small Business 
Size Standards, http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf.
---------------------------------------------------------------------------

    In fiscal year 2007, USCIS received 6,212 Form I-129 petitions for 
H-2A employees, approved petitions for 78,089 H-2A workers, and 71,000 
new workers were hired. In fiscal year 2006, USCIS received 5,667 Form 
I-129 petitions and approved 5,448 of them for 56,183 workers. Also, in 
fiscal year 2006, 6,717 employers requested certification from the 
Department of Labor (DOL) for 64,146 H-2A workers, and for those 
workers, the Department of State (DOS) issued 37,149 H-2A visas. In 
fiscal year 2005, USCIS approved Form I-129 petitions for 49,229 
workers, 6,725 employers requested certification from DOL for 50,721 
employees, and 31,892 visas were issued by DOS. Thus, in recent years, 
USCIS has received approximately 6,300 petitions per year for an 
average of 70,000 total H-2A workers per year. This rule is projected 
to result in an approximately 40,000 additional H-2A workers and 3,600 
new Form I-129 petitions per year, for a total of 9,900 petitions for a 
total of 110,000 workers. In 2006, there were 2,089,790 farms in the 
United States and about 752,000 workers employed in agricultural jobs. 
Thus, approximately 0.47 percent of all farmers are expected to use the 
H-2A program and 14.6 percent of all farm workers will be aliens 
employed under the H-2A program.
2. Size Categories of Affected Entities
    The U.S. Small Business Administration (SBA) Small Business Size 
Regulations at 13 CFR part 121 provide that farms with average annual 
receipts of less than $750,000 qualify as a small business for Federal 
Government programs. According to the United States Department of 
Agriculture National Agricultural Statistics Service (NASS), 44,348, or 
2.1 percent, of the 2,128,982 farms in 2002 in the U.S. had gross cash 
receipts of more than $500,000 and 97.9 percent of farms have sales of 
less than $500,000.\4\ Based on these numbers, USCIS concludes that the 
majority of entities affected by this rule are categorized as small 
entities according to the SBA size standards.
---------------------------------------------------------------------------

    \4\ Economic Class of Farms by Market Value of Agricultural 
Products Sold and Government Payments: 2002 http://www.nass.usda.gov/census/census02/volume1/us/st99_1_003_003.pdf.
---------------------------------------------------------------------------

    The average of 11 foreign workers per year would require an 
expenditure of about $141,000 in annual labor expenses just for the 
farm's foreign workers, not including benefits. In the 2002 Census of 
Agriculture, 50,311 farms, or only 2.4 percent of all ``farms'' 
reported having any hired employees at all, and only 31,210 farms, or 
1.5 percent of all farms, reported hired labor expenses in excess of 
$100,000 per year. Also, the 9,900 annual petitions that DHS projects 
it will receive after this rule takes effect represent only one-half of 
one percent of the 2,128,982 farms in 2002, and the 110,000 annual H-2A 
nonimmigrant workers account for only 14.6 percent of the 824,030 total 
hired farm workers reported in the 2002 Agricultural Census. Further, 
the 2002 Census reported that 53.3 percent of all farms reported a net 
loss, and only 329,490 farms reported annual net income of more than 
$25,000.\5\ Taken together, these data indicate that for the farms that 
use the H-2A program to be viable, they are likely to be on the upper 
bounds of the small business size standard of $750,000 in gross cash 
receipts.
---------------------------------------------------------------------------

    \5\ Economic Class of Farms by Market Value of Agricultural 
Products Sold and Government Payments: 2002 http://www.nass.usda.gov/census/census02/volume1/us/st99_1_003_003.pdf.
---------------------------------------------------------------------------

3. Other Firms That May Be Affected by This Change
    A number of firms with headquarters or a significant presence in 
the United States recruit employees in the employees' home countries to 
come to the United States for temporary employment. Also, many farms 
hire an agent in the U.S. to help them locate workers and complete 
applications and petitions. Some agents collect an initial retainer 
from an employer and then charge additional fees based on the number of 
workers, the application fees, the advertising costs required, and 
other expenses. The total charges an employer pays the agent per H-2A 
employee ranges from around $500 to $4,000, including travel expenses 
and all application and petition fees. The actual cost depends on the 
home country, the skills needed for the position, and the general 
complexity of the worker's and employer's respective situations. This 
rule will not affect the ability of the recruiter or agent to collect a 
fee from the employer. This rule does not affect the fee agents may 
charge per employee to process the employer's DOL, DOS, and DHS 
certification, application, and petition. This rule would only affect 
recruiting firms to the extent that it would render the employee 
ineligible for H-2A employment by collecting a fee, as soon as the 
potential employer becomes aware that the recruiter or agent has 
charged the employee a fee.
4. Significance of Impact
    DHS has determined that this rule will require affected employers 
to pay between $150 and $500 per employee because recruiter fees that 
are now being paid by employees will be shifted by recruiters from 
employees to employers. This rule will also add $13,713 in information 
collection costs for absconder reporting for an average cost per 
employee of $0.13. Based on an average of 11 employees hired by each H-
2A petitioner, average costs added by this rule will be between $1,651 
and $5,501 per affected entity. For the purpose of determining the 
significance of the impacts of this rule, this analysis uses the costs 
at the high end of the range of possible impacts, or $5,501 per 
employer, in order that any errors in determining the impacts on small 
entities be on the side of an over-estimation. Again, most of the 
affected entities are classified as small.
    Guidelines suggested by the SBA Office of Advocacy provide that, to 
illustrate the impact could be significant, the cost of the proposed 
regulation may exceed 1 percent of the gross revenues of the entities 
in a particular sector or 5 percent of the labor costs of the entities 
in the sector.
    The average duration of H-2A employment based on the difference 
between employment start and end dates for workers granted H-2A status 
in fiscal years 2007 and 2008 was 236 days. Thus, a new H-2A employee 
in 2008 worked an average of 33.7 weeks. Assuming that the typical 
employee worked an 8 hour workday and took two days per week off from 
work, the employee would have worked 169 days and accrued 1,352 hours. 
Using the U.S. Department of Labor hourly wage rate for the H-2A worker 
of $9.49, plus a multiplier of 1.4 to account for fringe benefits, DHS 
calculated the average hourly wage at approximately $13.29.\6\ 
Multiplying the hourly compensation costs by the hours worked provides 
an average compensation cost for an H-2A employee for the period he or 
she is in the United States of about $17,968. If the employer is 
required to pay a recruiter or reimburse the employee $500 for a 
recruiting fee, and if that employee absconds requiring the employer to 
file a report, the added cost of $501 is only 2.78 percent of the 
$17,968 annual salary for only one H-2A worker. Since the cost increase 
per H-2A employee is less than 5 percent of

[[Page 76910]]

the costs associated with hiring only an H-2A worker, it would not be 
possible for the average cost increase imposed by this rule to exceed 5 
percent of the average labor costs of the sector, because, among other 
reasons, H-2A workers are not expected to make up the entire workforce 
of all petitioners.
---------------------------------------------------------------------------

    \6\ Available at: http://www.dol.gov/compliance/topics/wages-foreign-workers.htm.
---------------------------------------------------------------------------

    Also, as stated above, guidelines provided by the SBA Office of 
Advocacy suggest that an added cost of more than one percent of the 
gross revenues of the affected entities in a particular sector may be a 
significant impact. USCIS believes that it is unlikely that an employer 
will incur costs of $5,501 due to this rulemaking, as it is the high 
end of the range of possible costs. Again, if each firm affected by 
this rule hires the average of 11 workers and all 11 are recruited by a 
firm that charges or causes the employer to reimburse all 11 employees 
$500, the additional cost of this rule could reach as high as $5,500 
per employer.
    The actual revenue of the typical H-2A employer is unknown. 
However, according to the SBA table of size standards in the Small 
Business Size Regulations (13 CFR part 121), the annual gross revenue 
threshold for farms is $750,000. USCIS believes that the farms that use 
the H-2A program are likely to be on the upper bounds of the small 
business size standard of $750,000 in gross cash receipts. If an 
employer hires 11 employees and incurs recruiting costs of $500 for 
every one of them, the $5,500 added cost represents only 0.73 percent 
of $750,000. To further illustrate, for $5,500 to exceed one percent of 
annual revenues, sales would have to be $550,000 per year or less. 
While 97.9 percent of all farms have annual sales of less than 
$500,000, only 36 percent of all farms hire any employees. USCIS 
believes that farms below annual sales of $500,000 would be very 
unlikely to hire 11 temporary seasonal employees and incur the $5,500 
in added costs. Therefore, USCIS believes that the costs of this 
rulemaking to small entities will not exceed one percent of annual 
revenues.
    Therefore, using both average annual labor costs and the percentage 
of the affected entities' annual revenue stream as guidelines, USCIS 
concludes that this rule will not have a significant economic impact on 
a substantial number of small entities.
5. Impact on U.S.-Based Recruiting Firms
    As outlined above, recruiting firms' activities may be affected 
tangentially by this rule's provisions. Nonetheless, the effect of the 
fee prohibition on recruiting companies, staffing firms, or employment 
agents is not a new compliance requirement on regulated entities. 
Establishment of a non-immigrant temporary worker program was intended 
to alleviate seasonal labor shortages. The formation of firms that 
recruit workers in foreign countries is an unintended consequence of 
these programs since those firms are not the intended recipients of the 
benefits that are supposed to inure to participants in those programs. 
In any event, DHS does not believe the prohibition on charging aliens 
for H-2A job referrals will cause a significant economic impact on the 
affected placement, recruiting, or staffing firms because they may, and 
are expected to, transfer those costs to the employers, as analyzed 
above.
6. Certification
    For these reasons, DHS certifies that this rule will not have a 
significant economic impact on a substantial number of small entities.

F. 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.

G. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 
Stat. 163 (1995) (PRA), all Departments are required to submit to the 
Office of Management and Budget (OMB), for review and approval, any 
reporting or record-keeping requirements inherent in a rule. It is 
estimated that this rule will require employers to file 3,600 more 
petitions using Form I-129 (OMB Control No. 1615-0009) for H-2A 
workers. In addition, this rule will require revisions to the Form I-
129 (H Classification Supplement to the Form I-129).
    This is a final rule and the revision to this information 
collection was not previously submitted and approved by OMB. USCIS is 
now requesting comments under the emergency review and clearance 
procedures of the PRA on this revision no later than February 17, 2009. 
When submitting comments on the information collection, your comments 
should address one or more of the following four points:
    1. Evaluate whether the collection of information is necessary for 
the proper performance of the agency, including whether the information 
will have practical utility;
    2. Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    3. Enhance the quality, utility, and clarity of the information to 
be collected; and
    4. Minimize the burden of the collection of the information on 
those who are to respond, including through the use of any and all 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology, e.g., 
permitting electronic submission of responses.
    Overview of Information Collection for Form I-129.
    a. Type of information collection: Revision of currently approved 
collection.
    b. Title of Form/Collection: Petition for Nonimmigrant Worker.
    c. Agency form number, if any, and the applicable component of the 
Department of Homeland Security sponsoring the collection: Form I-129 
(H Classification Supplement to the Form I-129), and U.S. Citizenship 
and Immigration Services.
    d. Affected public who will be asked or required to respond, as 
well as a brief abstract: Individuals or Households. This form is used 
by an employer to petition for aliens to come to the U.S. temporarily 
to perform services, labor, and training or to request extensions of 
stay or changes in nonimmigrant status for nonimmigrant workers.
    e. An estimate of the total number of respondents and the amount of 
time estimated for an average respondent to respond: 368,548 
respondents at 2.75 hours per response.
    f. An estimate of the total of public burden (in hours) associated 
with the collection: Approximately 1,013,507 burden hours.
    All comments and suggestions or questions regarding additional 
information should be directed to the Department of Homeland Security, 
U.S. Citizenship and Immigration Services, Regulatory Management 
Division, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 
20529, Attention: Chief, 202-272-8377.
    In addition, this rule will allow employers of H-2A employees to 
employ H-2A workers for up to 120 days while they are awaiting an 
extension of status based on a new employer if the employer registers 
for E-Verify. It is estimated that 9,801 more firms will have to enroll 
in E-Verify so they may hire an employee under the

[[Page 76911]]

120-day extended authorization. Accordingly, USCIS will submit an OMB 
correction worksheet (OMB 83-C) to OMB increasing the number of 
respondents, burden hours and annual costs.

List of Subjects

8 CFR Part 214

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

8 CFR Part 215

    Administrative practice and procedure, Aliens.

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.


0
Accordingly, chapter I of title 8 of the Code of Federal Regulations is 
amended as follows:

PART 214--NONIMMIGRANT CLASSES

0
1. The authority citation for part 214 is revised to read as follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185, 1186a, 
1187, 1221, 1253, 1281, 1282, 1301-1305 and 1372; section 643, Pub. 
L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-
1480; section 141 of the Compacts of Free Association with the 
Federated States of Micronesia and the Republic of the Marshall 
Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 
1931 note, respectively; 8 CFR part 2.


0
2. Section 214.2 is amended by:
0
a. Revising paragraphs (h)(2)(i)(A) through (D);
0
b. Revising paragraph (h)(2)(iii);
0
c. Revising paragraphs (h)(5)(i)(A) through (C);
0
d. Adding a new paragraph (h)(5)(i)(F);
0
e. Removing last sentence from (h)(5)(ii);
0
f. Revising paragraph (h)(5)(v)(B);
0
g. Revising paragraph (h)(5)(v)(C);
0
h. Revising paragraph (h)(5)(vi);
0
i. Revising paragraphs (h)(5)(viii)(A) through (C);
0
j. Revising paragraph (h)(5)(ix);
0
k. Revising paragraph (h)(5)(x);
0
l. Adding new paragraphs (h)(5)(xi) and (xii);
0
m. Adding a new sentence to the end of paragraph (h)(11)(i)(A); and by
0
n. Revising paragraph (h)(11)(ii).
    The revisions and additions read as follows:


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

* * * * *
    (h) * * *
    (2) * * *
    (i) * * *
    (A) General. A United States employer seeking to classify an alien 
as an H-1B, H-2A, H-2B, or H-3 temporary employee must file a petition 
on Form I-129, Petition for Nonimmigrant Worker, as provided in the 
form instructions.
    (B) Service or training in more than one location. A petition that 
requires services to be performed or training to be received in more 
than one location must include an itinerary with the dates and 
locations of the services or training and must be filed with USCIS as 
provided in the form instructions. The address that the petitioner 
specifies as its location on the Form I-129 shall be where the 
petitioner is located for purposes of this paragraph.
    (C) Services or training for more than one employer. If the 
beneficiary will perform nonagricultural services for, or receive 
training from, more than one employer, each employer must file a 
separate petition with USCIS as provided in the form instructions.
    (D) Change of employers. If the alien is in the United States and 
seeks to change employers, the prospective new employer must file a 
petition on Form I-129 requesting classification and an extension of 
the alien's stay in the United States. If the new petition is approved, 
the extension of stay may be granted for the validity of the approved 
petition. The validity of the petition and the alien's extension of 
stay must conform to the limits on the alien's temporary stay that are 
prescribed in paragraph (h)(13) of this section. Except as provided by 
8 CFR 274a.12(b)(21) or section 214(n) of the Act, 8 U.S.C. 1184(n), 
the alien is not authorized to begin the employment with the new 
petitioner until the petition is approved. An H-1C nonimmigrant alien 
may not change employers.
* * * * *
    (iii) Naming beneficiaries. H-1B, H-1C, and H-3 petitions must 
include the name of each beneficiary. All H-2A and H-2B petitions must 
include the name of each beneficiary who is currently in the United 
States, but not the name of those beneficiaries who are not currently 
in the United States. However, a petitioner filing an H-2B petition on 
behalf of workers who are not present in the United States that is 
supported by a temporary labor certification requiring education, 
training, experience, or special requirements of the beneficiary, must 
name all the requested workers in the petition. Unnamed beneficiaries 
must be shown on the petition by total number. If all of the 
beneficiaries covered by an H-2A or H-2B temporary labor certification 
have not been identified at the time a petition is filed, multiple 
petitions for subsequent beneficiaries may be filed at different times 
but must include a copy of the same temporary labor certification. Each 
petition must reference all previously filed petitions for that 
temporary labor certification. All H-2A petitions on behalf of workers 
who are not from a country that has been designated as a participating 
country in accordance with paragraph (h)(5)(i)(F)(1) of this section 
must individually name all the workers in the petition who fall within 
this category. All H-2A petitions must state the nationality of all 
beneficiaries, whether or not named, even if there are beneficiaries 
from more than one country. H-2A petitions for workers from designated 
participating countries and non-designated countries should be filed 
separately.
* * * * *
    (5) * * *
    (i) * * *
    (A) General. An H-2A petition must be filed on Form I-129 with a 
single valid temporary agricultural labor certification. The petition 
may be filed by either the employer listed on the temporary labor 
certification, the employer's agent, or the association of United 
States agricultural producers named as a joint employer on the 
temporary labor certification.
    (B) Multiple beneficiaries. The total number of beneficiaries of a 
petition or series of petitions based on the same temporary labor 
certification may not exceed the number of workers indicated on that 
document. A single petition can include more than one beneficiary if 
the total number does not exceed the number of positions indicated on 
the relating temporary labor certification.
    (C) [Reserved]
* * * * *
    (F) Eligible Countries. (1)(i) H-2A petitions may only be approved 
for nationals of countries that the Secretary of Homeland Security has 
designated as participating countries, with the concurrence of the 
Secretary of State, in a notice published in the Federal Register, 
taking into account factors, including but not limited to:
    (A) The country's cooperation with respect to issuance of travel 
documents for citizens, subjects, nationals and residents of that 
country who are subject to a final order of removal;
    (B) The number of final and unexecuted orders of removal against

[[Page 76912]]

citizens, subjects, nationals and residents of that country;
    (C) The number of orders of removal executed against citizens, 
subjects, nationals and residents of that country; and
    (D) Such other factors as may serve the U.S. interest.
    (ii) A national from a country not on the list described in 
paragraph (h)(5)(i)(F)(1)(i) of this section may be a beneficiary of an 
approved H-2A petition upon the request of a petitioner or potential H-
2A petitioner, if the Secretary of Homeland Security, in his sole and 
unreviewable discretion, determines that it is in the U.S. interest for 
that alien to be a beneficiary of such petition. Determination of such 
a U.S. interest will take into account factors, including but not 
limited to:
    (A) Evidence from the petitioner demonstrating that a worker with 
the required skills is not available either from among U.S. workers or 
from among foreign workers from a country currently on the list 
described in paragraph (h)(5)(i)(F)(1)(i) of this section;
    (B) Evidence that the beneficiary has been admitted to the United 
States previously in H-2A status;
    (C) The potential for abuse, fraud, or other harm to the integrity 
of the H-2A visa program through the potential admission of a 
beneficiary from a country not currently on the list; and
    (D) Such other factors as may serve the U.S. interest.
    (2) Once published, any designation of participating countries 
pursuant to paragraph (h)(5)(i)(F)(1)(i) of this section shall be 
effective for one year after the date of publication in the Federal 
Register and shall be without effect at the end of that one-year 
period.
* * * * *
    (v) * * *
    (B) Evidence of employment/job training. For petitions with named 
beneficiaries, a petition must be filed with evidence that the 
beneficiary met the certification's minimum employment and job training 
requirements, if any are prescribed, as of the date of the filing of 
the labor certification application. For petitions with unnamed 
beneficiaries, such evidence must be submitted at the time of a visa 
application or, if a visa is not required, at the time the applicant 
seeks admission to the United States. Evidence must be in the form of 
the past employer or employers' detailed statement(s) or actual 
employment documents, such as company payroll or tax records. 
Alternately, a petitioner must show that such evidence cannot be 
obtained, and submit affidavits from persons who worked with the 
beneficiary that demonstrate the claimed employment or job training.
    (C) Evidence of education and other training. For petitions with 
named beneficiaries, a petition must be filed with evidence that the 
beneficiary met all of the certification's post-secondary education and 
other formal training requirements, if any are prescribed in the labor 
certification application as of date of the filing of the labor 
certification application. For petitions with unnamed beneficiaries, 
such evidence must be submitted at the time of a visa application or, 
if a visa is not required, at the time the applicant seeks admission to 
the United States. Evidence must be in the form of documents, issued by 
the relevant institution(s) or organization(s), that show periods of 
attendance, majors and degrees or certificates accorded.
    (vi) Petitioner consent and notification requirements--(A) Consent. 
In filing an H-2A petition, a petitioner and each employer consents to 
allow access to the site by DHS officers where the labor is being 
performed for the purpose of determining compliance with H-2A 
requirements.
    (B) Agreements. The petitioner agrees to the following 
requirements:
    (1) To notify DHS, within 2 workdays, and beginning on a date and 
in a manner specified in a notice published in the Federal Register if:
    (i) An H-2A worker fails to report to work within 5 workdays of the 
employment start date on the H-2A petition or within 5 workdays of the 
start date established by his or her employer, whichever is later;
    (ii) The agricultural labor or services for which H-2A workers were 
hired is completed more than 30 days earlier than the employment end 
date stated on the H-2A petition; or
    (iii) The H-2A worker absconds from the worksite or is terminated 
prior to the completion of agricultural labor or services for which he 
or she was hired.
    (2) To retain evidence of such notification and make it available 
for inspection by DHS officers for a 1-year period beginning on the 
date of the notification. To retain evidence of a different employment 
start date if it is changed from that on the petition by the employer 
and make it available for inspection by DHS officers for the 1-year 
period beginning on the newly-established employment start date.
    (3) To pay $10 in liquidated damages for each instance where the 
employer cannot demonstrate that it has complied with the notification 
requirements, unless, in the case of an untimely notification, the 
employer demonstrates with such notification that good cause existed 
for the untimely notification, and DHS, in its discretion, waives the 
liquidated damages amount.
    (C) Process. If DHS has determined that the petitioner has violated 
the notification requirements in paragraph (h)(5)(vi)(B)(1) of this 
section and has not received the required notification, the petitioner 
will be given written notice and 30 days to reply before being given 
written notice of the assessment of liquidated damages.
    (D) Failure to pay liquidated damages. If liquidated damages are 
not paid within 10 days of assessment, an H-2A petition may not be 
processed for that petitioner or any joint employer shown on the 
petition until such damages are paid.
    (E) Abscondment. An H-2A worker has absconded if he or she has not 
reported for work for a period of 5 consecutive workdays without the 
consent of the employer.
* * * * *
    (viii) * * *
    (A) Effect of violations of status. An alien may not be accorded H-
2A status who, at any time during the past 5 years, USCIS finds to have 
violated, other than through no fault of his or her own (e.g., due to 
an employer's illegal or inappropriate conduct), any of the terms or 
conditions of admission into the United States as an H-2A nonimmigrant, 
including remaining beyond the specific period of authorized stay or 
engaging in unauthorized employment.
    (B) Period of admission. An alien admissible as an H-2A 
nonimmigrant shall be admitted for the period of the approved petition. 
Such alien will be admitted for an additional period of up to one week 
before the beginning of the approved period for the purpose of travel 
to the worksite, and a 30-day period following the expiration of the H-
2A petition for the purpose of departure or to seek an extension based 
on a subsequent offer of employment. Unless authorized under 8 CFR 
274a.12 or section 214(n) of the Act, the beneficiary may not work 
except during the validity period of the petition.
    (C) Limits on an individual's stay. Except as provided in paragraph 
(h)(5)(viii)(B) of this section, an alien's stay as an H-2A 
nonimmigrant is limited by the term of an approved petition. An alien 
may remain longer to engage in other qualifying temporary agricultural 
employment by obtaining an extension of stay. However, an individual 
who has held H-2A status for a total of 3 years may not again be

[[Page 76913]]

granted H-2A status until such time as he or she remains outside the 
United States for an uninterrupted period of 3 months. An absence from 
the United States can interrupt the accrual of time spent as an H-2A 
nonimmigrant against the 3-year limit. If the accumulated stay is 18 
months or less, an absence is interruptive if it lasts for at least 45 
days. If the accumulated stay is greater than 18 months, an absence is 
interruptive if it lasts for at least 2 months. Eligibility under 
paragraph (h)(5)(viii)(C) of this section will be determined in 
admission, change of status or extension proceedings. An alien found 
eligible for a shorter period of H-2A status than that indicated by the 
petition due to the application of this paragraph (h)(5)(viii)(C) of 
this section shall only be admitted for that abbreviated period.
    (ix) Substitution of beneficiaries after admission. An H-2A 
petition may be filed to replace H-2A workers whose employment was 
terminated earlier than the end date stated on the H-2A petition and 
before the completion of work; who fail to report to work within five 
days of the employment start date on the H-2A petition or within five 
days of the start date established by his or her employer, whichever is 
later; or who abscond from the worksite. The petition must be filed 
with a copy of the certification document, a copy of the approval 
notice covering the workers for which replacements are sought, and 
other evidence required by paragraph (h)(5)(i)(D) of this section. It 
must also be filed with a statement giving each terminated or absconded 
worker's name, date and country of birth, termination date, and the 
reason for termination, and the date that USCIS was notified that the 
alien was terminated or absconded, if applicable. A petition for a 
replacement will not be approved where the requirements of paragraph 
(h)(5)(vi) of this section have not been met. A petition for 
replacements does not constitute the notification required by paragraph 
(h)(5)(vi)(B)(1) of this section.
    (x) Extensions in emergent circumstances. In emergent 
circumstances, as determined by USCIS, a single H-2A petition may be 
extended for a period not to exceed 2 weeks without an additional 
approved labor certification if filed on behalf of one or more 
beneficiaries who will continue to be employed by the same employer 
that previously obtained an approved petition on the beneficiary's 
behalf, so long as the employee continues to perform the same duties 
and will be employed for no longer than 2 weeks after the expiration of 
previously-approved H-2A petition. The previously approved H-2A 
petition must have been based on an approved temporary labor 
certification, which shall be considered to be extended upon the 
approval of the extension of H-2A status.
    (xi) Treatment of petitions and alien beneficiaries upon a 
determination that fees were collected from alien beneficiaries. (A) 
Denial or revocation of petition. As a condition to approval of an H-2A 
petition, no job placement fee or other compensation (either direct or 
indirect) may be collected at any time, including before or after the 
filing or approval of the petition, from a beneficiary of an H-2A 
petition by a petitioner, agent, facilitator, recruiter, or similar 
employment service as a condition of H-2A employment (other than the 
lesser of the fair market value or actual costs of transportation and 
any government-mandated passport, visa, or inspection fees, to the 
extent that the payment of such costs and fees by the beneficiary is 
not prohibited by statute or Department of Labor regulations, unless 
the employer agent, facilitator, recruiter, or employment service has 
agreed with the alien to pay such costs and fees).
    (1) If USCIS determines that the petitioner has collected, or 
entered into an agreement to collect, such prohibited fee or 
compensation, the H-2A petition will be denied or revoked on notice 
unless the petitioner demonstrates that, prior to the filing of the 
petition, the petitioner has reimbursed the alien in full for such fees 
or compensation, or, where such fee or compensation has not yet been 
paid by the alien worker, that the agreement has been terminated.
    (2) If USCIS determines that the petitioner knew or should have 
known at the time of filing the petition that the beneficiary has paid 
or agreed to pay any facilitator, recruiter, or similar employment 
service such fees or compensation as a condition of obtaining the H-2A 
employment, the H-2A petition will be denied or revoked on notice 
unless the petitioner demonstrates that, prior to the filing of the 
petition, the petitioner or the facilitator, recruiter, or similar 
employment service has reimbursed the alien in full for such fees or 
compensation or, where such fee or compensation has not yet been paid 
by the alien worker, that the agreement has been terminated.
    (3) If USCIS determines that the beneficiary paid the petitioner 
such fees or compensation as a condition of obtaining the H-2A 
employment after the filing of the H-2A petition, the petition will be 
denied or revoked on notice.
    (4) If USCIS determines that the beneficiary paid or agreed to pay 
the agent, facilitator, recruiter, or similar employment service such 
fees or compensation as a condition of obtaining the H-2A employment 
after the filing of the H-2A petition and with the knowledge of the 
petitioner, the petition will be denied or revoked unless the 
petitioner demonstrates that the petitioner or facilitator, recruiter, 
or similar employment service has reimbursed the beneficiary in full or 
where such fee or compensation has not yet been paid by the alien 
worker, that the agreement has been terminated, or notifies DHS within 
2 workdays of obtaining knowledge in a manner specified in a notice 
published in the Federal Register.
    (B) Effect of petition revocation. Upon revocation of an employer's 
H-2A petition based upon paragraph (h)(5)(xi)(A) of this section, the 
alien beneficiary's stay will be authorized and the alien will not 
accrue any period of unlawful presence under section 212(a)(9) of the 
Act (8 U.S.C. 1182(a)(9)) 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.
    (C) Reimbursement as condition to approval of future H-2A 
petitions. (1) Filing subsequent H-2A petitions within 1 year of denial 
or revocation of previous H-2A petition. A petitioner filing an H-2A 
petition within 1 year after the decision denying or revoking on notice 
an H-2A petition filed by the same petitioner on the basis of paragraph 
(h)(5)(xi)(A) of this section must demonstrate to the satisfaction of 
USCIS, as a condition of approval of such petition, that the petitioner 
or agent, facilitator, recruiter, or similar employment service has 
reimbursed the beneficiary in full or that the petitioner has failed to 
locate the beneficiary. If the petitioner demonstrates to the 
satisfaction of USCIS that the beneficiary was reimbursed in full, such 
condition of approval shall be satisfied with respect to any 
subsequently filed H-2A petitions, except as provided in paragraph 
(h)(5)(xi)(C)(2). If the petitioner demonstrates to the satisfaction of 
USCIS that it has made reasonable efforts to locate the beneficiary 
with respect to each H-2A petition filed within 1 year after the 
decision denying or revoking the previous H-2A petition on the basis of 
paragraph (h)(5)(xi)(A) of this section but has failed to do so, such 
condition of approval shall be deemed satisfied with respect to any H-
2A petition filed 1 year or more after the denial or revocation. Such 
reasonable efforts shall

[[Page 76914]]

include contacting any of the beneficiary's known addresses.
    (2) Effect of subsequent denied or revoked petitions. An H-2A 
petition filed by the same petitioner subsequent to a denial under 
paragraph (h)(5)(xi)(A) of this section shall be subject to the 
condition of approval described in paragraph (h)(5)(xi)(C)(1) of this 
section, regardless of prior satisfaction of such condition of approval 
with respect to a previously denied or revoked petition.
    (xii) Treatment of alien beneficiaries upon revocation of labor 
certification. The approval of an employer's H-2A petition is 
immediately and automatically revoked if the Department of Labor 
revokes the labor certification upon which the petition is based. Upon 
revocation of an H-2A petition based upon revocation of labor 
certification, 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.
* * * * *
    (11) * * *
    (i) * * *
    (A) * * * However, H-2A petitioners must send notification to DHS 
pursuant to paragraph (h)(5)(vi) of this section.
* * * * *
    (ii) Immediate and automatic revocation. The approval of any 
petition is immediately and automatically revoked if the petitioner 
goes out of business, files a written withdrawal of the petition, or 
the Department of Labor revokes the labor certification upon which the 
petition is based.
* * * * *

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

0
3. 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.


0
4. Section 215.9 is added to read as follows:


Sec.  215.9  Temporary Worker Visa Exit Program.

    An alien admitted on an H-2A visa at a port of entry participating 
in the Temporary Worker Visa Exit Program must also depart at the end 
of his or her 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 establish a pilot program by publishing a Notice in the 
Federal Register designating which H-2A workers must participate in the 
Temporary Worker Visa Exit Program, which ports of entry are 
participating in the program, which biographical and/or biometric 
information would be required, and the format for submission of that 
information by the departing designated temporary workers.

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
5. The authority citation for part 274a continues to read as follows:

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


0
6. Section 274a.12 is amended by:
0
a. Removing the word ``or'' at the end of paragraph (b)(19);
0
b. Removing the period at the end of paragraph (b)(20), and adding ``; 
or'' in its place; and by
0
c. Adding a new paragraph (b)(21).
    The addition reads as follows:


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

* * * * *
    (b) * * *
    (21) A nonimmigrant alien within the class of aliens described in 8 
CFR 214.2(h)(1)(ii)(C) who filed an application for an extension of 
stay pursuant to 8 CFR 214.2 during his or her period of admission. 
Such alien is authorized to be employed by a new employer that has 
filed an H-2A petition naming the alien as a beneficiary and requesting 
an extension of stay for the alien for a period not to exceed 120 days 
beginning from the ``Received Date'' on Form I-797 (Notice of Action) 
acknowledging receipt of the petition requesting an extension of stay, 
provided that the employer has enrolled in and is a participant in good 
standing in the E-Verify program, as determined by USCIS in its 
discretion. Such authorization will be subject to any conditions and 
limitations noted on the initial authorization, except as to the 
employer and place of employment. However, if the District Director or 
Service Center director adjudicates the application prior to the 
expiration of this 120-day period and denies the application for 
extension of stay, the employment authorization under this paragraph 
(b)(21) shall automatically terminate upon 15 days after the date of 
the denial decision. The employment authorization shall also terminate 
automatically if the employer fails to remain a participant in good 
standing in the E-Verify program, as determined by USCIS in its 
discretion.
* * * * *

Paul A. Schneider,
Deputy Secretary.
[FR Doc. E8-29888 Filed 12-12-08; 8:45 am]
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