[Federal Register Volume 82, Number 137 (Wednesday, July 19, 2017)]
[Rules and Regulations]
[Pages 32987-33000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-15208]



========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

========================================================================


Federal Register / Vol. 82, No. 137 / Wednesday, July 19, 2017 / 
Rules and Regulations

[[Page 32987]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 214

[CIS No. 2605-17; DHS Docket No. USCIS-2017-0004]
RIN 1615-AC12

DEPARTMENT OF LABOR

Employment and Training Administration Wage and Hour Division

20 CFR Part 655

[DOL Docket No. 2017-0003]
RIN 1205-AB84


Exercise of Time-Limited Authority To Increase the Fiscal Year 
2017 Numerical Limitation for the H-2B Temporary Nonagricultural Worker 
Program

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security and Employment and Training Administration and Wage 
and Hour Division, Department of Labor.

ACTION: Temporary rule.

-----------------------------------------------------------------------

SUMMARY: The Secretary of Homeland Security (``Secretary''), in 
consultation with the Secretary of Labor, has decided to increase the 
numerical limitation on H-2B nonimmigrant visas to authorize the 
issuance of up to an additional 15,000 through the end of Fiscal Year 
(FY) 2017. This is a one-time increase based on a time-limited 
statutory authority and does not affect the H-2B program in future 
fiscal years. The Departments are promulgating regulations to implement 
this determination.

DATES: This final rule is effective from July 19, 2017 through 
September 30, 2017, except for the addition of 20 CFR 655.65, which is 
effective from July 19, 2017 through September 30, 2020.

FOR FURTHER INFORMATION CONTACT: Regarding 8 CFR part 214: Kevin J. 
Cummings, Chief, Business and Foreign Workers Division, Office of 
Policy and Strategy, U.S. Citizenship and Immigration Services, 
Department of Homeland Security, 20 Massachusetts Ave NW., Suite 1100, 
Washington, DC 20529-2120, telephone (202) 272-8377 (not a toll-free 
call). Regarding 20 CFR part 655: William W. Thompson, II, 
Administrator, Office of Foreign Labor Certification, Employment and 
Training Administration, Department of Labor, Box #12-200, 200 
Constitution Ave. NW., Washington, DC 20210, telephone (202) 513-7350 
(this is not a toll-free number).
    Individuals with hearing or speech impairments may access the 
telephone numbers above via TTY by calling the toll-free Federal 
Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    A. Legal Framework
    B. H-2B Numerical Limitations Under the INA
    C. FY 2017 Omnibus
    D. Joint Issuance of the Final Rule
II. Discussion
    A. Statutory Determination
    B. Numerical Increase of Up to 15,000
    C. Business Need Standard--Irreparable Harm
    D. DHS Petition Procedures
    E. DOL Procedures
III. Statutory and Regulatory Requirements
    A. Administrative Procedure Act
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act of 1995
    D. Small Business Regulatory Enforcement Fairness Act of 1996
    E. Executive Orders 12866 (Regulatory Planning and Review) and 
13563 (Improving Regulation and Regulatory Review), and 13771 
(Reducing Regulation and Controlling Regulatory Costs)
    F. Executive Order 13132 (Federalism)
    G. Executive Order 12988 (Civil Justice Reform)
    H. National Environmental Policy Act
    I. Paperwork Reduction Act

I. Background

A. Legal Framework

    The Immigration and Nationality Act (INA) establishes the H-2B 
nonimmigrant classification for a nonagricultural temporary worker 
``having a residence in a foreign country which he has no intention of 
abandoning who is coming temporarily to the United States to perform . 
. . temporary [non-agricultural] service or labor if unemployed persons 
capable of performing such service or labor cannot be found in this 
country.'' INA section 101(a)(15)(H)(ii)(b), 8 U.S.C. 
1101(a)(15)(H)(ii)(b). Employers must petition DHS for classification 
of prospective temporary workers as H-2B nonimmigrants. INA section 
214(c)(1), 8 U.S.C. 1184(c)(1). DHS must approve this petition before 
the beneficiary can be considered eligible for an H-2B visa. Finally, 
the INA requires that ``[t]he question of importing any alien as [an H-
2B] nonimmigrant . . . in any specific case or specific cases shall be 
determined by [DHS],\1\ after consultation with appropriate agencies of 
the Government.'' INA section 214(c)(1), 8 U.S.C. 1184(c)(1).
---------------------------------------------------------------------------

    \1\ As of March 1, 2003, in accordance with section 1517 of 
Title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-
296, 116 Stat. 2135, any reference to the Attorney General in a 
provision of the Immigration and Nationality Act describing 
functions which were transferred from the Attorney General or other 
Department of Justice official to the Department of Homeland 
Security by the HSA ``shall be deemed to refer to the Secretary'' of 
Homeland Security. See 6 U.S.C. 557 (2003) (codifying HSA, Title XV, 
Sec.  1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note.
---------------------------------------------------------------------------

    DHS regulations provide that an H-2B petition for temporary 
employment in the United States must be accompanied by an approved 
temporary labor certification (TLC) from DOL. 8 CFR 214.2(h)(6)(iii)(A) 
& (C), (iv)(A). The TLC serves as DHS's consultation with DOL with 
respect to whether a qualified U.S. worker is available to fill the 
petitioning H-2B employer's job opportunity and whether a foreign 
worker's employment in the job opportunity will adversely affect the 
wages or working conditions of similarly employed U.S. workers. See INA 
section 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and 
(D).
    The Departments have established regulatory procedures under which 
DOL certifies whether a qualified U.S. worker is available to fill the 
job opportunity described in the employer's petition for a temporary 
nonagricultural worker, and whether a foreign worker's employment in 
the job opportunity will adversely affect the wages or working 
conditions of similarly employed U.S. workers. See

[[Page 32988]]

20 CFR part 655, subpart A. The regulations establish the process by 
which employers obtain a TLC, and the rights and obligations of workers 
and employers.
    The INA also authorizes DHS to impose appropriate remedies against 
an employer for a substantial failure to meet the terms and conditions 
of employing an H-2B nonimmigrant worker, or for a willful 
misrepresentation of a material fact in a petition for an H-2B 
nonimmigrant worker. INA section 214(c)(14)(A), 8 U.S.C. 
1184(c)(14)(A). The INA expressly authorizes DHS to delegate certain 
enforcement authority to DOL. INA section 214(c)(14)(B), 8 U.S.C. 
1184(c)(14)(B). DHS has delegated this authority to DOL. See DHS, 
Delegation of Authority to DOL under Section 214(c)(14)(A) of the 
Immigration and Nationality Act (Jan. 16, 2009); see also 8 CFR 
214.2(h)(6)(ix) (stating that DOL may investigate employers to enforce 
compliance with the conditions of, among other things, an H-2B petition 
and a DOL-approved TLC). This enforcement authority has been delegated 
within DOL to the Wage and Hour Division, and is governed by 
regulations at 29 CFR part 503.

B. H-2B Numerical Limitations Under the INA

    The INA sets the annual number of aliens who may be issued H-2B 
visas or otherwise provided H-2B nonimmigrant status to perform 
temporary nonagricultural work at 66,000, to be distributed semi-
annually beginning in October and in April. See INA sections 
214(g)(1)(B) and 214(g)(10), 8 U.S.C. 1184(g)(1)(B) and 8 U.S.C. 
1184(g)(10). Up to 33,000 aliens may be issued H-2B visas or provided 
H-2B nonimmigrant status in the first half of a fiscal year, and the 
remaining annual allocation will be available for employers seeking to 
hire H-2B workers during the second half of the fiscal year.\2\ If 
insufficient petitions are approved to use all H-2B numbers in a given 
fiscal year, the unused numbers cannot be carried over for petition 
approvals in the next fiscal year.
---------------------------------------------------------------------------

    \2\ The Federal Government's fiscal year runs from October 1 of 
the budget's prior year through September 30 of the year being 
described. For example, fiscal year 2017 is from October 1, 2016 
through September 30, 2017.
---------------------------------------------------------------------------

    Because of the intense competition for H-2B visas in recent years, 
the semi-annual visa allocation, and the regulatory requirement that 
employers apply for labor certification 75 to 90 days before the start 
date of work,\3\ employers who wish to obtain visas for their workers 
under the semi-annual allotment must act early to receive a TLC and 
file a petition with USCIS. As a result, DOL typically sees a 
significant spike in TLC applications for H-2B visas for temporary or 
seasonal jobs during the U.S.'s warm weather months. For example, in FY 
2017, from Applications for Temporary Labor Certification filed in 
January, DOL's Office of Foreign Labor Certification (OFLC) certified 
54,827 worker positions for start dates of work on April 1, in excess 
of the entire semi-annual visa allocation. USCIS received sufficient H-
2B petitions to meet the second half of the fiscal year regular cap on 
March 13, 2017. This was the earliest date that the cap was reached in 
a respective fiscal year since FY 2009 and reflects an ongoing trend of 
high program demand, as further represented by the FY 2016 
reauthorization of the returning worker cap exemption and by section 
543 of the Consolidated Appropriations Act, 2017, Public Law 115-31 (FY 
2017 Omnibus), which is discussed below.
---------------------------------------------------------------------------

    \3\ 20 CFR 655.15(b).
---------------------------------------------------------------------------

C. FY 2017 Omnibus

    On May 5, 2017, the President signed the FY 2017 Omnibus, which 
contains a provision (section 543 of division F, hereinafter ``section 
543'') permitting the Secretary of Homeland Security, under certain 
circumstances and after consultation with the Secretary of Labor, to 
increase the number of H-2B visas available to U.S. employers, 
notwithstanding the otherwise established statutory numerical 
limitation. Specifically, section 543 provides that ``the Secretary of 
Homeland Security, after consultation with the Secretary of Labor, and 
upon the determination that the needs of American businesses cannot be 
satisfied in [FY] 2017 with U.S. workers who are willing, qualified, 
and able to perform temporary nonagricultural labor,'' may increase the 
total number of aliens who may receive an H-2B visa in FY 2017 by not 
more than the highest number of H-2B nonimmigrants who participated in 
the H-2B returning worker program in any fiscal year in which returning 
workers were exempt from the H-2B numerical limitation.\4\ This rule 
implements the authority contained in section 543.
---------------------------------------------------------------------------

    \4\ The highest number of returning workers in any such fiscal 
year was 64,716, which represents the number of beneficiaries 
covered by H-2B returning worker petitions that were approved for FY 
2007. DHS also considered using an alternative approach, under which 
DHS measured the number of H-2B returning workers admitted at the 
ports of entry (66,792 for FY 2007).
---------------------------------------------------------------------------

D. Joint Issuance of the Final Rule

    The Departments have determined that it is appropriate to issue 
this final rule jointly. This determination is related to ongoing 
litigation following conflicting court decisions concerning DOL's 
authority to independently issue legislative rules to carry out its 
consultative function pertaining to the H-2B program under the INA.\5\ 
Although DHS and DOL each have authority to independently issue rules 
implementing their respective duties under the H-2B program, the 
Departments are implementing section 543 in this manner to ensure there 
can be no question about the authority underlying the administration 
and enforcement of the temporary cap increase. This approach is 
consistent with recent rules implementing DOL's general consultative 
role under section 214(c)(1) of the INA, 8 U.S.C. 1184(c)(1). See also 
8 CFR 214.2(h)(6)(iv).\6\
---------------------------------------------------------------------------

    \5\ See Temporary Non-Agricultural Employment of H-2B Aliens in 
the United States, 80 FR 24042 (Apr. 29, 2015) (codified at 8 CFR 
part 214, 20 CFR part 655, and 29 CFR part 503).
    \6\ On April 29, 2015, following a court's vacatur of nearly all 
of DOL's H-2B regulations, Perez v. Perez, No. 14-cv-682 (N.D. Fla. 
Mar. 4, 2015), the Departments jointly promulgated an interim final 
rule governing DOL's role in enforcing the statutory and regulatory 
rights and obligations applicable to employment under the H-2B 
program. See Temporary Non-Agricultural Employment of H-2B Aliens in 
the United States, 80 FR 24042 (Apr. 29, 2015) (codified at 8 CFR 
part 214, 20 CFR part 655, and 29 CFR part 503).
---------------------------------------------------------------------------

II. Discussion

A. Statutory Determination

    Following consultation with the Secretary of Labor, the Secretary 
of Homeland Security has determined that the needs of some American 
businesses cannot be satisfied in FY 2017 with U.S. workers who are 
willing, qualified, and able to perform temporary nonagricultural 
labor. In accordance with the FY 2017 Omnibus, the Secretary of 
Homeland Security has determined that it is appropriate, for the 
reasons stated below, to raise the numerical limitation on H-2B 
nonimmigrant visas by up to an additional 15,000 for the remainder of 
the fiscal year. Consistent with such authority, the Secretary of 
Homeland Security has decided to increase the H-2B cap for FY 2017 by 
up to 15,000 additional visas for those American businesses that attest 
to a level of need such that, if they do not receive all of the workers 
under the cap increase, they are likely to suffer irreparable harm, 
i.e., suffer a permanent and severe financial loss. These businesses 
must attest that they will likely suffer irreparable harm and must 
retain documentation, as

[[Page 32989]]

described below, supporting this attestation.
    The Secretary of Homeland Security's determination to increase the 
numerical limitation is based on the conclusion that some businesses 
face closing their doors in the absence of a cap increase. Some 
stakeholders have reported that access to additional H-2B visas is 
essential to the continued viability of some small businesses that play 
an important role in sustaining the economy in their states, while 
others have stated that an increase is unnecessary and raises the 
possibility of abuse.\7\ The Secretary of Homeland Security has deemed 
it appropriate, notwithstanding such risk of abuse, to take immediate 
action to avoid irreparable harm to businesses; such harm would in turn 
result in wage and job losses by their U.S. workers, and other adverse 
downstream economic effects.\8\
---------------------------------------------------------------------------

    \7\ Other stakeholders have reported abuses of the H-2B program. 
For example, the Government Accountability Office, has recommended 
increased worker protections in the H-2B program based on certain 
abuses of the program by unscrupulous employers and recruiters. See 
U.S. Government Accountability Office, H-2A and H-2B Visa Programs: 
Increased Protections Needed for Foreign Workers, GAO-15-154 
(Washington DC, revised 2017), http://www.gao.gov/assets/690/684985.pdf; U.S. Government Accountability Office, H-2B Visa 
Program: Closed Civil Criminal Cases Illustrate Instances of H-2B 
Workers Being Targets of Fraud and Abuse, GAO-10-1053 (Washington 
DC, 2010), http://www.gao.gov/assets/320/310640.pdf; see also 
Testimony of Stephen G. Bronars, The Impact of the H-2B Program on 
the U.S. Labor Market, before the Senate Subcommittee on Immigration 
and the National Interest (June 8, 2016), https://www.judiciary.senate.gov/imo/media/doc/06-08-16BronarsTestimony.pdf. 
Preliminary Analysis of the Economic Impact of the H-2B Worker 
Program on Virginia's Economy, Thomas J. Murray (Sept. 2011), http://web.vims.edu/GreyLit/VIMS/mrr11-12.pdf.
    \8\ See Randel K. Johnson & Tamar Jacoby, U.S. Chamber of 
Commerce & ImmigrationWorks USA, The Economics of the H-2B Program 
(Oct. 28, 2010), available at https://www.uschamber.com/sites/default/files/documents/files/16102_LABR%2520H2BReport_LR.pdf. (last 
visited June 22, 2017).
---------------------------------------------------------------------------

    The decision to direct the benefits of this one-time cap increase 
to businesses that need workers to avoid irreparable harm, rather than 
directing the cap increase to any and all businesses seeking temporary 
workers, is consistent with the Secretary's broad discretion under 
section 543. Section 543 provides that the Secretary, upon satisfaction 
of the statutory business need standard, may increase the numerical 
limitation to meet such need.\9\ The scope of the assessment called for 
by the statute is quite broad, and accordingly delegates the Secretary 
broad discretion to identify the business needs he finds most relevant. 
Within that context, DHS has determined to focus on the businesses with 
the most permanent, severe potential losses, for the below reasons.
---------------------------------------------------------------------------

    \9\ DHS believes it is reasonable to infer that Congress 
intended, in enacting the FY 2017 Omnibus, to authorize the 
Secretary to allocate any new H-2B visas authorized under section 
543 to the entities with the ``business need'' that serves as the 
basis for the increase.
---------------------------------------------------------------------------

    First, DHS interprets section 543's reference to ``the needs of 
American businesses'' as describing a need different than the need 
required of employers in petitioning for an H-2B worker.\10\ If the 
term ``needs'' in section 543 referred to the same business need 
entailed under the existing H-2B program, it would not have been 
necessary for Congress to reference such need, because Congress could 
have relied on existing statute and regulations. Alternatively, 
Congress could have made explicit reference to such statute and 
regulations. Accordingly, DHS interprets this authority as authorizing 
DHS to address relatively heightened business need, beyond the existing 
requirements of the H-2B program. DOL concurs in this interpretation.
---------------------------------------------------------------------------

    \10\ A petitioning employer must demonstrate that it has a 
temporary need for the services or labor for which it seeks to hire 
H-2B workers. See 8 CFR 214.2(h)(6)(ii); 20 CFR 655.6.
---------------------------------------------------------------------------

    Second, this approach limits the one-time increase in a way that is 
responsive to stakeholders who, citing potential adverse impacts on 
U.S. workers from a general cap increase applicable to all potential 
employers, sought opportunities for more formal input and analysis 
prior to such an increase. Although the calendar does not lend itself 
to such additional efforts, the Secretary has determined that in the 
unique circumstances presented here, it is appropriate to tailor the 
availability of this temporary cap increase to those businesses likely 
to suffer irreparable harm, i.e., those facing permanent and severe 
financial loss.
    Under this rule, employers must also meet, among other 
requirements, the generally applicable requirements that insufficient 
qualified U.S. workers are available to fill the petitioning H-2B 
employer's job opportunity and that the foreign worker's employment in 
the job opportunity will not adversely affect the wages or working 
conditions of similarly employed U.S. workers. INA section 214(c)(1), 8 
U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and (D); 20 CFR 655.1. To 
meet this standard, in order to be eligible for additional visas under 
this rule, employers must have a valid TLC in accordance with 8 CFR 
214.2(h)(6)(iv)(A) and (D), and 20 CFR 655 subpart A. Under DOL's H-2B 
regulations, TLCs expire on the last day of authorized employment. 20 
CFR 655.55(a). Therefore, in order to have an unexpired TLC, the date 
on the employer's visa petition must not be later than the last day of 
authorized employment on the TLC. This rule also requires an additional 
recruitment for certain petitioners, as discussed below.
    Accordingly, this rule increases the FY 2017 numerical limitation 
by up to 15,000 to ensure a sufficient number of visas to meet the 
level of demand in past years, but also restricts the availability of 
such visas by prioritizing only the most significant business needs. 
These provisions are each described in turn below.

B. Numerical Increase of Up to 15,000

    DHS expects the increase of up to 15,000 visas \11\ to be 
sufficient to meet at least the same amount of need as the H-2B program 
met in FY 2016. Section 543 of the FY 2017 Omnibus sets as the maximum 
limit for any increase in the H-2B numerical limitation for FY 2017, 
the highest number of H-2B returning workers \12\ who were exempt from 
the cap in previous years. Consistent with the statute's reference to 
H-2B returning workers, in determining the appropriate number by which 
to increase the H-2B numerical limitation, the Secretary focused on the 
number of visas allocated to returning workers in years in which 
Congress enacted ``returning

[[Page 32990]]

worker'' exemptions from the H-2B numerical limitation. During each of 
the years the returning worker provision was in force, U.S. employers' 
standard business needs for H-2B workers exceeded the normal 66,000 
cap.
---------------------------------------------------------------------------

    \11\ In contrast with section 214(g)(1) of the INA, 8 U.S.C. 
1184(g)(1), which establishes a cap on the number of individuals who 
may be issued visas or otherwise provided H-2B status, and section 
214(g)(10) of the INA, 8 U.S.C. 1184(g)(10), which imposes a first 
half of the fiscal year cap on H-2B issuance with respect to the 
number of individuals who may be issued visas or are accorded [H-2B] 
status'' (emphasis added), section 543 only authorizes DHS to 
increase the number of available H-2B visas. Accordingly, DHS will 
not permit individuals authorized for H-2B status pursuant to an H-
2B petition approved under section 543 to change to H-2B status from 
another nonimmigrant status. See INA section 248, 8 U.S.C. 1258; see 
also 8 CFR pt. 248. If a petitioner files a petition seeking H-2B 
workers in accordance with this rule and requests a change of status 
on behalf of someone in the United States, the change of status 
request will be denied, but the petition will be adjudicated in 
accordance with applicable DHS regulations. Any alien authorized for 
H-2B status under the approved petition would need to obtain the 
necessary H-2B visa at a consular post abroad and then seek 
admission to the United States in H-2B status at a port of entry.
    \12\ During fiscal years 2005 to 2007, and 2016, Congress 
enacted ``returning worker'' exemptions to the H-2B visa cap, 
allowing workers who were counted against the H-2B cap in one of the 
three preceding fiscal years not to be counted against the upcoming 
fiscal year cap. Save Our Small and Seasonal Businesses Act of 2005, 
Public Law 109-13, Sec. 402 (May 11, 2005); John Warner National 
Defense Authorization Act, Public Law 109-364, Sec. 1074, (Oct. 17, 
2006); Consolidated Appropriations Act of 2016, Public Law 114-113, 
Sec. 565 (Dec. 18, 2015).
---------------------------------------------------------------------------

    Most recently, in FY 2016, 18,090 returning workers were approved 
for H-2B petitions, despite Congress having reauthorized the returning 
worker program with more than three-quarters of the fiscal year 
remaining. Of those 18,090 workers authorized for admission, 13,382 
were admitted into the United States or otherwise acquired H-2B status. 
While section 543 does not limit the issuance of additional H-2B visas 
to returning workers, the Secretary, in consideration of the statute's 
reference to returning workers, determined that it would be appropriate 
to use these recent figures as a basis for the maximum numerical 
limitation under section 543. This rule therefore authorizes up to 
15,000 additional H-2B visas (rounded up from 13,382) for FY 2017.

C. Business Need Standard--Irreparable Harm

    To file an H-2B petition during the remainder of FY 2017, 
petitioners must meet all existing H-2B eligibility requirements, 
including having an approved, valid and unexpired TLC per 8 CFR 
214.2(h)(6) and 20 CFR 655 subpart A. In addition, the petitioner must 
submit an attestation in which the petitioner affirms, under penalty of 
perjury, that it meets the business need standard set forth above. 
Under that standard, the petitioner must be able to establish that if 
they do not receive all of the workers under the cap increase, they are 
likely to suffer irreparable harm, that is, permanent and severe 
financial loss. Although the TLC process focuses on establishing 
whether a petitioner has a need for workers, the TLC does not directly 
address the harm a petitioner may face in the absence of such workers; 
the attestation addresses this question. The attestation must be 
submitted directly to USCIS, together with the Petition for a 
Nonimmigrant Worker (Form I-129), the valid TLC, and any other 
necessary documentation. The new attestation form is included in this 
rulemaking as Appendix A.
    The attestation serves as prima facie initial evidence to DHS that 
the petitioner's business is likely to suffer irreparable harm.\13\ Any 
petition received lacking the requisite attestation may be denied in 
accordance with 8 CFR 103.2(b)(8)(ii). Although this regulation does 
not require submission of evidence at the time of filing of the 
petition, other than an attestation, the employer must have such 
evidence on hand and ready to present to DHS or DOL at any time 
starting with the date of filing, through the prescribed document 
retention period discussed below.
---------------------------------------------------------------------------

    \13\ An employer may request fewer workers on the H-2B petition 
than the number of workers listed on the TLC.
---------------------------------------------------------------------------

    In addition to the statement regarding the irreparable harm 
standard, the attestation will also state that the employer: Meets all 
other eligibility criteria for the available visas; will comply with 
all assurances, obligations, and conditions of employment set forth in 
the Application for Temporary Employment Certification (Form ETA 9142B 
and Appendix B) certified by the DOL for the job opportunity; will 
conduct additional recruitment of U.S. workers, in accordance with this 
rulemaking; and will document and retain evidence of such compliance. 
The process under this regulation is similar to the process the 
Departments have employed with respect to the statutory provisions 
authorizing seafood employers to stagger crossing of H-2B workers. For 
seafood employers, a similar attestation, which provides that the 
employer has conducted additional recruitment, is provided to the 
consular officer at the time they apply for a visa and/or to the U.S. 
Customs and Border Protection officer at the time the H-2B worker seeks 
admission at a port of entry. See 20 CFR 655.15(f). Because the new 
attestation will be submitted to USCIS as initial evidence with the 
Form I-129 petition, a denial of the petition based on or related to 
statements made in the attestation is appealable under existing USCIS 
procedures. Specifically, DHS considers the attestation to be evidence 
that is incorporated into and a part of the petition consistent with 8 
CFR 103.2(b).
    The requirement to provide a post-TLC attestation to USCIS is 
sufficiently protective of U.S. workers given that the employer, in 
completing the TLC process, has already made one unsuccessful attempt 
to recruit U.S. workers. In addition, the employer is required to 
retain documentation, which must be provided upon request, supporting 
the new attestations, including a recruitment report for any additional 
recruitment required under this rule. Accordingly, USCIS may issue a 
denial or a request for additional evidence in accordance with 8 CFR 
103.2(b) or 8 CFR 214.2(h)(11) based on such documentation, and DOL's 
WHD will be able to review this documentation and enforce the 
attestations. Although the employer must have such documentation on 
hand at the time it files the petition, the Departments have determined 
that if employers were required to submit the attestations to DOL 
before seeking a petition from DHS or to complete all recruitment 
before submitting a petition, the attendant delays would render any 
visas unlikely to satisfy the needs of American businesses given 
processing timeframes and that there are only a few months remaining in 
this fiscal year.
    In accordance with the attestation requirement, whereby petitioners 
attest that they meet the irreparable harm standard, and the 
documentation retention requirements at 20 CFR 655.65, the petitioner 
must retain documents and records meeting their burden to demonstrate 
compliance with this rule, and must provide the documents and records 
upon the request of DHS or DOL, such as in the event of an audit or 
investigation. Supporting evidence may include, but is not limited to, 
the following types of documentation:
    (1) Evidence that the business is or would be unable to meet 
financial or contractual obligations without H-2B workers, including 
evidence of contracts, reservations, orders, or other business 
arrangements that have been or would be cancelled absent the requested 
H-2B workers; and evidence demonstrating an inability to pay debts/
bills;
    (2) Evidence that the business has suffered or will suffer 
permanent and severe financial loss during the period of need, as 
compared to the period of need in prior years, such as: Financial 
statements (including profit/loss statements) comparing present period 
of need as compared to prior years; bank statements, tax returns or 
other documents showing evidence of current and past financial 
condition; relevant tax records, employment records, or other similar 
documents showing hours worked and payroll comparisons from prior years 
to current year;
    (3) Evidence showing the number of workers needed in previous 
seasons to meet the employer's temporary need as compared to those 
currently employed, including the number of H-2B workers requested, the 
number of H-2B workers actually employed, the dates of their 
employment, and their hours worked (e.g., payroll records), 
particularly in comparison to the weekly hours stated on the TLC. In 
addition, for employers that obtain authorization to employ H-2B 
workers under this rule, evidence showing the number of H-2B workers 
requested under this rule, the number of workers actually employed, 
including H-2B workers, the dates of their

[[Page 32991]]

employment, and their hours worked (e.g., payroll records), 
particularly in comparison to the weekly hours stated on the TLC; and/
or
    (4) Evidence that the business is dependent on H-2B workers, such 
as: Number of H-2B workers compared to U.S. workers needed 
prospectively or in the past; business plan or reliable forecast 
showing that, due to the nature and size of the business, there is a 
need for a specific number of H-2B workers.
    These examples of potential evidence, however, will not exclusively 
or necessarily establish that the business meets the irreparable harm 
standard, and petitioners may retain other types of evidence they 
believe will satisfy this standard. If an audit or investigation 
occurs, DHS or DOL will review all evidence available to it to confirm 
that the petitioner properly attested to DHS that their business would 
likely suffer irreparable harm. If DHS subsequently finds that the 
evidence does not support the employer's attestation, DHS may deny or 
revoke the petition consistent with existing regulatory authorities 
and/or notify DOL. In addition, DOL may independently take enforcement 
action, including, among other things, to debar the petitioner from 
using the H-2B program generally for not less than one year or more 
than 5 years from the date of the final agency decision and may 
disqualify the debarred party from filing any labor certification 
applications or labor condition applications with DOL for the same 
period set forth in the final debarment decision. See, e.g., 20 CFR 
655.73; 29 CFR 503.20, 503.24.\14\
---------------------------------------------------------------------------

    \14\ Pursuant to the statutory provisions governing enforcement 
of the H-2B program, INA section 214(c)(14), 8 U.S.C. 1184(c)(14), a 
violation exists under the H-2B program where there has been a 
willful misrepresentation of a material fact or a substantial 
failure to meet any of the terms and conditions. A substantial 
failure is a willful failure to comply that constitutes a 
significant deviation from the terms and conditions. See, e.g., 29 
CFR 503.19.
---------------------------------------------------------------------------

    To the extent that evidence reflects a preference for hiring H-2B 
workers over U.S. workers, an investigation by other agencies enforcing 
employment and labor laws, such as the Immigrant and Employee Rights 
Section of the Department of Justice's Civil Rights Division, may be 
warranted. See INA section 274B, 8 U.S.C. 1324b (prohibiting certain 
types of employment discrimination based on citizenship status or 
national origin). In addition, if members of the public have 
information that a participating employer may be abusing this program, 
DHS invites them to notify USCIS's Fraud Detection and National 
Security Directorate by contacting the general H-2B complaint address 
at ReportH2BAbuse@uscis.dhs.gov.\15\
---------------------------------------------------------------------------

    \15\ DHS may publicly disclose information regarding the H-2B 
program consistent with applicable law and regulations.
---------------------------------------------------------------------------

    DHS, in exercising its statutory authority under INA section 
101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b), and section 543, 
is responsible for adjudicating eligibility for H-2B classification. As 
in all cases, the burden rests with the petitioner to establish 
eligibility by a preponderance of the evidence. Accordingly, as noted 
above, where the petition lacks initial evidence, such as a properly 
completed attestation, DHS may deny the petition in accordance with 8 
CFR 103.2(b)(8)(ii). Further, where the initial evidence submitted with 
the petition contains inconsistencies or is inconsistent with other 
evidence in the petition and underlying TLC, DHS may issue a Request 
for Evidence, Notice of Intent to Deny, or Denial in accordance with 8 
CFR 103.2(b)(8). In addition, where it is determined that an H-2B 
petition filed pursuant to the FY 2017 Omnibus was granted erroneously, 
the H-2B petition approval may be revoked, see 8 CFR 214.2(h)(11).
    Because of the unique circumstances of this regulation, and because 
the attestation plays a vital role in achieving the purposes of this 
regulation, DHS and DOL intend that the attestation requirement be non-
severable from the remainder of the regulation. Thus, in the event the 
attestation requirement is enjoined or held invalid, the remainder of 
the regulation, with the exception of the retention requirements, is 
also intended to cease operation in the relevant jurisdiction, without 
prejudice to workers already present in the United States under this 
regulation, as consistent with law.

D. DHS Petition Procedures

    To petition for H-2B workers under this rule, the petitioner must 
file a Petition for a Nonimmigrant Worker, Form-129 in accordance with 
applicable regulations and form instructions, and must submit the 
attestation described above. The attestation must be filed on Form ETA-
9142-B-CAA, Attestation for Employers Seeking to Employ H-2B 
Nonimmigrants Workers Under Section 543 of the Consolidated 
Appropriations Act, which is attached to this rulemaking as Appendix A. 
See 20 CFR 655.64. Once a petitioner has completed the Form ETA-9142-B-
CAA attestation, it must submit the attestation to USCIS along with an 
unexpired TLC. See new 8 CFR 214.2(h)(6)(x). A petitioner is required 
to retain a copy of such attestation and all supporting evidence for 3 
years from the date the associated TLC was approved, consistent with 20 
CFR 655.56 and 29 CFR 503.17. See new 20 CFR 655.65. Petitions 
submitted pursuant to the FY 2017 Omnibus will be processed in the 
order in which they were received. Petitioners may also choose to 
request premium processing of their petition under 8 CFR 103.8(e), 
which allows for expedited processing for an additional fee.
    To encourage timely filing of any petition seeking a visa under the 
FY 2017 Omnibus, DHS is notifying the public that the petition may not 
be approved by USCIS on or after October 1, 2017. See new 8 CFR 
214.2(h)(6)(x). Petitions not approved before October 1, 2017 will be 
denied and any fees will not be refunded. See new 8 CFR 214.2(h)(6)(x).
    USCIS's current processing goals for H-2B petitions that can be 
adjudicated without the need for further evidence (i.e., without a 
Request for Evidence or Notice of Intent to Deny) are 15 days for 
petitions requesting premium processing and 30 days for standard 
processing.\16\ Given USCIS's processing goals for premium processing, 
DHS believes that 15 days from the end of the fiscal year is the 
minimum time needed for petitions to be adjudicated, although USCIS 
cannot guarantee that it will be sufficient time in all cases. 
Therefore, if the increase in the H-2B numerical limitation to 15,000 
visas has not yet been reached, USCIS will begin rejecting petitions 
received after September 15, 2017. See new 8 CFR 214.2(h)(6)(x)(C).
---------------------------------------------------------------------------

    \16\ These processing goals are not binding on USCIS; depending 
on the evidence presented, actual processing times may vary from 
these 15- and 30-day periods.
---------------------------------------------------------------------------

    As with other Form I-129 filings, DHS encourages petitioners to 
provide a duplicate copy of Form I-129 and all supporting documentation 
at the time of filing if the beneficiary is seeking a nonimmigrant visa 
abroad. Failure to submit duplicate copies may cause a delay in the 
issuance of a visa to otherwise eligible applicants.\17\
---------------------------------------------------------------------------

    \17\ Petitioners should note that under section 543, the H-2B 
numerical increase relates to the total number of aliens who may 
receive a visa under section 101(a)(15)(H)(ii)(b) of the INA in this 
fiscal year.
---------------------------------------------------------------------------

F. DOL Procedures

    Because all employers are required to have an approved and valid 
TLC from DOL in order to file a Form I-129 petition with DHS in 
accordance with 8 CFR 214.2(h)(6)(iv)(A) and (D), employers with an 
approved TLC will have already conducted recruitment, as

[[Page 32992]]

set forth in 20 CFR 655.40-48, to determine whether U.S. workers are 
qualified and available to perform the work for which H-2B workers are 
sought. In addition to the recruitment already conducted, employers 
with current labor certification containing a start date of work before 
June 1, 2017, must conduct a fresh round of recruitment for U.S. 
workers. As noted in the 2015 H-2B comprehensive rule, U.S. workers 
seeking employment in these jobs typically do not search for work 
months in advance, and cannot make commitments about their availability 
for employment far in advance of the work. See 80 FR 24041, 24061, 
24071. Given the 75-90 day labor certification process applicable in 
the H-2B program generally, employer recruitment typically occurs 
between 40 and 60 days before the start date of employment. Therefore, 
employers with TLCs containing a start date of work before June 1, 
2017, likely began their recruitment around April 1, 2017, and likely 
ended it about April 20, 2017. In order to provide U.S. workers a 
realistic opportunity to pursue jobs for which employers will be 
seeking foreign workers under this rule, the Departments have 
determined that employers with start dates of work before June 1, 2017 
have not conducted recent recruitment so that the Departments can 
reasonably conclude that there are currently an insufficient number of 
U.S. workers qualified and available to perform the work absent an 
additional, though abbreviated, recruitment attempt.
    Therefore, employers with still valid TLCs with a start date of 
work before June 1, 2017, will be required to conduct additional 
recruitment, and attest that the recruitment will be conducted, as 
follows. The employer must place a new job order for the job 
opportunity with the State Workforce Agency (SWA), serving the area of 
intended employment. The job order must contain the job assurances and 
contents set forth in 20 CFR 655.18 for recruitment of U.S. workers at 
the place of employment, and remain posted for at least 5 days 
beginning not later than the next business day after submitting a 
petition for H-2B worker to USCIS. In addition, eligible employers will 
also be required to place one newspaper advertisement, which may be 
published on any day of the week, meeting the advertising requirements 
of 20 CFR 655.41, during the period of time the SWA is actively 
circulating the job order for intrastate clearance. Employers must 
retain the additional recruitment documentation, including a 
recruitment report that meets the requirements for recruitment reports 
set forth in 20 CFR 655.48(a)(1)(2) & (7), together with a copy of the 
attestation and supporting documentation, as described above, for a 
period of 3 years from the date that the TLC was approved, consistent 
with the document retention requirements under 20 CFR 655.56. These 
requirements are similar to those that apply to seafood employers who 
bring in additional workers between 90 and 120 days after their 
certified start date of need under 20 CFR 655.15(f).
    The employer must hire any qualified U.S. worker who applies or is 
referred for the job opportunity until 2 business days after the last 
date on which the job order is posted. The two business day requirement 
permits an additional brief period of time to enable U.S. workers to 
contact the employer following the job order or newspaper 
advertisement. Consistent with 20 CFR 655.40(a), applicants can be 
rejected only for lawful job-related reasons.
    DOL's Wage and Hour Division has the authority to investigate the 
employer's attestations, as the attestations are a required part of the 
H-2B petition process under this rule and the attestations rely on the 
employer's existing, approved TLC. Where a WHD investigation determines 
that there has been a willful misrepresentation of a material fact or a 
substantial failure to meet the required terms and conditions of the 
attestations, WHD may institute administrative proceedings to impose 
sanctions and remedies, including (but not limited to) assessment of a 
civil money penalty, recovery of wages due, make whole relief for any 
U.S. worker who has been improperly rejected for employment, laid off 
or displaced, or debarment for 1 to 5 years. See 29 CFR 503.19, 503.20. 
This regulatory authority is consistent with WHD's existing enforcement 
authority and is not limited by the expiration date of this rule. 
Therefore, in accordance with the documentation retention requirements 
at new 20 CFR 655.65, the petitioner must retain documents and records 
proving compliance with this rule, and must provide the documents and 
records upon request by DHS or DOL.
    Petitioners must also comply with any other applicable laws in 
their recruitment, such as avoiding unlawful discrimination against 
U.S. workers based on their citizenship status or national origin. 
Specifically, the failure to recruit and hire qualified and available 
U.S. workers on account of such individuals' national origin or 
citizenship status may violate INA section 274B, 8 U.S.C. 1324b.

III. Statutory and Regulatory Requirements

A. Administrative Procedure Act

    This rule is issued without prior notice and opportunity to comment 
and with an immediate effective date pursuant to the Administrative 
Procedure Act (APA). 5 U.S.C. 553(b) and (d).
1. Good Cause To Forgo Notice and Comment Rulemaking
    The APA, 5 U.S.C. 553(b)(B), authorizes an agency to issue a rule 
without prior notice and opportunity to comment when the agency for 
good cause finds that those procedures are ``impracticable, 
unnecessary, or contrary to the public interest.'' The good cause 
exception for forgoing notice and comment rulemaking ``excuses notice 
and comment in emergency situations, or where delay could result in 
serious harm.'' Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004). 
Although the good cause exception is ``narrowly construed and only 
reluctantly countenanced,'' Tenn. Gas Pipeline Co. v. FERC, 969 F.2d 
1141, 1144 (D.C. Cir. 1992), the Departments have appropriately invoked 
the exception in this case, for the reasons set forth below.
    In this case, the Departments are bypassing advance notice and 
comment because of the exigency created by section 543 of the 
Consolidated Appropriations Act, 2017 (FY 2017 Omnibus), which went 
into effect on May 5, 2017 and expires on September 30, 2017. Because 
the statutory cap was reached in mid-March, USCIS stopped accepting H-
2B petitions on March 13, 2017, and given high demand by American 
businesses for H-2B workers, and the short period of time remaining in 
the fiscal year for U.S. employers to avoid the economic harms 
described above, a decision to undertake notice and comment rulemaking 
would likely delay final action on this matter by weeks or months, and 
would therefore complicate and likely preclude the Departments from 
successfully exercising the authority in section 543.
    Courts have found ``good cause'' under the APA when an agency is 
moving expeditiously to avoid significant economic harm to a program, 
program users, or an industry. Courts have held that an agency may use 
the good cause exception to address ``a serious threat to the financial 
stability of [a government] benefit program,'' Nat'l Fed'n of Fed. 
Emps. v. Devine, 671 F.2d 607, 611 (D.C. Cir. 1982), or to avoid 
``economic harm and disruption'' to a given industry, which would 
likely result in higher consumer prices, Am.

[[Page 32993]]

Fed'n of Gov't Emps. v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981).
    Consistent with the above authorities, the Departments have 
bypassed notice and comment to prevent the ``serious economic harm to 
the H-2B community,'' including associated U.S. workers, that could 
result from ongoing uncertainty over the status of the numerical 
limitation, i.e., the effective termination of the program through the 
remainder of FY 2017. See Bayou Lawn & Landscape Servs. v. Johnson, 173 
F. Supp. 3d 1271, 1285 & n.12 (N.D. Fla. 2016). The Departments note 
that this action is temporary in nature, see id.,\18\ and includes 
appropriate conditions to ensure that it affects only those businesses 
most in need.
---------------------------------------------------------------------------

    \18\ Because the Departments have issued this rule as a 
temporary final rule, this rule--with the sole exception of the 
document retention requirements--will be of no effect after 
September 30, 2017, even if Congress includes an authority similar 
to section 543 in a subsequent act of Congress.
---------------------------------------------------------------------------

2. Good Cause To Proceed With an Immediate Effective Date
    The APA also authorizes agencies to make a rule effective 
immediately, upon a showing of good cause instead of imposing a 30-day 
delay. 5 U.S.C. 553(d)(3). The good cause exception to the 30-day 
effective date requirement is easier to meet than the good cause 
exception for foregoing notice and comment rulemaking. Riverbend Farms, 
Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992); Am. Fed'n of 
Gov't Emps., AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981); 
U.S. Steel Corp. v. EPA, 605 F.2d 283, 289-90 (7th Cir. 1979). An 
agency can show good cause for eliminating the 30-day delayed effective 
date when it demonstrates urgent conditions the rule seeks to correct 
or unavoidable time limitations. U.S. Steel Corp., 605 F.2d at 290; 
United States v. Gavrilovic, 511 F.2d 1099, 1104 (8th Cir. 1977). For 
the same reasons set forth above, we also conclude that the Departments 
have good cause to dispense with the 30-day effective date requirement 
given that this rule is necessary to prevent U.S. businesses from 
suffering irreparable harm and therefore causing significant economic 
disruption.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), imposes 
certain requirements on Federal agency rules that are subject to the 
notice and comment requirements of the APA. See 5 U.S.C. 603(a), 
604(a). This final rule is exempt from notice and comment requirements 
for the reasons stated above. Therefore, the requirements of the RFA 
applicable to final rules, 5 U.S.C. 604, do not apply to this final 
rule. Accordingly, the Departments are not required to either certify 
that the final rule would not have a significant economic impact on a 
substantial number of small entities or conduct a regulatory 
flexibility analysis.

C. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among 
other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of the Act 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may result in $100 million or more expenditure (adjusted annually 
for inflation) in any one year by State, local, and tribal governments, 
in the aggregate, or by the private sector. The value equivalent of 
$100 million in 1995 adjusted for inflation to 2016 levels by the 
Consumer Price Index for All Urban Consumer (CPI-U) is $157 million.
    This rule does not exceed the $100 million expenditure in any 1 
year when adjusted for inflation ($157 million in 2016 dollars), and 
this rulemaking does not contain such a mandate. The requirements of 
Title II of the Act, therefore, do not apply, and the Departments have 
not prepared a statement under the Act.

D. Small Business Regulatory Enforcement Fairness Act of 1996

    This temporary rule is not a major rule as defined by section 804 
of the Small Business Regulatory Enforcement Act of 1996, Public Law 
104-121, 804, 110 Stat. 847, 872 (1996), 5 U.S.C. 804(2). This rule has 
not been found to 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 or export markets.

E. Executive Orders 12866 (Regulatory Planning and Review), 13563 
(Improving Regulation and Regulatory Review), and 13771 (Reducing 
Regulation and Controlling Regulatory Costs)

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 13771 (``Reducing Regulation and Controlling Regulatory 
Costs'') directs agencies to reduce regulation and control regulatory 
costs.
    The Office of Management and Budget (OMB) has determined that this 
rule is a ``significant regulatory action'' although not an 
economically significant regulatory action. Accordingly, OMB has 
reviewed this regulation. This regulation is exempt from Executive 
Order 13771. OMB considers this final rule to be an Executive Order 
13771 deregulatory action.
1. Summary
    With this final rule, DHS is authorizing up to an additional 15,000 
visas for the remainder of FY 2017, pursuant to the FY 2017 Omnibus, to 
be available to certain U.S. businesses under the H-2B visa 
classification. By the authority given under the FY 2017 Omnibus, DHS 
is increasing the H-2B cap for the remainder of FY 2017 for those 
businesses that: (1) Show that there are an insufficient number of 
qualified U.S. workers to meet their needs in FY 2017; and (2) attest 
that their businesses are likely to suffer irreparable harm without the 
ability to employ the H-2B workers that are the subject of their 
petition. This final rule aims to help prevent such harm by allowing 
them to hire additional H-2B workers within FY 2017. Table 1 (below) 
provides a brief summary of the provision and its impact.

[[Page 32994]]



                                    Table 1--Summary of Provision and Impact
----------------------------------------------------------------------------------------------------------------
                                     Changes resulting from     Expected cost of the     Expected benefit of the
        Current provision           the proposed provisions      proposed provision        proposed provision
----------------------------------------------------------------------------------------------------------------
The current statutory cap limits   The amended provisions      The total         Eligible
 H-2B visa allocations by 66,000    would allow for up to      estimated cost to file    petitioners would be
 workers a year.                    15,000 additional H-2B     Form I-129 would be       able to hire the
                                    visas for the remainder    $1,502,984 (rounded) if   temporary workers
                                    of the fiscal year.        human resource            needed to prevent their
                                                               specialists file,         businesses from
                                                               $2,216,881 (rounded) if   suffering irreparable
                                                               in-house lawyers file,    harm.
                                                               and $3,042,989            U.S. employees
                                                               (rounded) if outsourced   of these businesses
                                                               lawyers file.             would avoid harm.
                                                               If a Form I-907
                                                               is submitted as well,
                                                               the total estimated
                                                               cost to file for Form I-
                                                               907 would be a maximum
                                                               of $2,867,398 if human
                                                               resource specialists
                                                               file, $2,927,882 if in-
                                                               house lawyers file, and
                                                               $3,008,243 if
                                                               outsourced lawyers file.
                                                               DHS may incur
                                                               some additional
                                                               adjudication costs as
                                                               more applicants may
                                                               file Form I-129.
                                                               However, these
                                                               additional costs are
                                                               expected to be covered
                                                               by the fees paid for
                                                               filing the form
                                   Petitioners would also be   The total         Serves as
                                    required to fill out       estimated cost to         initial evidence to DHS
                                    newly created Form ETA-    petitioners to complete   that the petitioner
                                    9142-B-CAA, Attestation    and file ETA-9142-B-CAA   meets the irreparable
                                    for Employers Seeking to   is $1,597,426.            harm standard.
                                    Employ H-2B
                                    Nonimmigrants Workers
                                    Under Section 543 of the
                                    Consolidated
                                    Appropriations Act.
----------------------------------------------------------------------------------------------------------------
Source: USCIS and DOL analysis.

2. Background and Purpose of the Rule
    The H-2B visa classification program was designed to serve U.S. 
businesses that are unable to find a sufficient number of qualified 
U.S. workers to perform nonagricultural work of a temporary or seasonal 
nature. For an H-2B nonimmigrant worker to be admitted into the United 
States under this visa classification, the hiring employer is required 
to: (1) Receive a TLC from DOL and (2) file a Form I-129 with DHS. The 
temporary nature of the services or labor described on the approved TLC 
is subject to DHS review during adjudication of Form I-129.\19\ Up to 
33,000 aliens may be issued H-2B visas or provided H-2B nonimmigrant 
status in the first half of a fiscal year, and the remaining annual 
allocation will be available for employers seeking to hire H-2B workers 
during the second half of the fiscal year.\20\ Any unused numbers from 
the first half of the fiscal year will be available for employers 
seeking to hire H-2B workers during the second half of the fiscal year. 
However, any unused H-2B numbers from one fiscal year do not carry over 
into the next and will therefore not be made available.\21\
---------------------------------------------------------------------------

    \19\ Revised effective 1/18/2009; 73 FR 78104.
    \20\ See INA section 214(g)(1)(B), 8 U.S.C. 1184(g)(1)(B), INA 
section 214(g)(10) and 8 U.S.C. 1184(g)(10).
    \21\ A TLC approved by the Department of Labor must accompany an 
H-2B petition. The employment start date stated on the petition 
generally must match the start date listed on the TLC. See 8 CFR 
214.2(h)(6)(iv)(A) and (D).
---------------------------------------------------------------------------

    The H-2B cap for the second half of FY 2017 was reached on March 
13, 2017. Normally, once the H-2B cap has been reached, petitioners 
must wait until the next half of the fiscal year, or the beginning of 
the next fiscal year, for additional visas to become available. 
However, on May 5, 2017, the President signed the FY 2017 Omnibus that 
contains a provision (Sec. 543 of Div. F) authorizing the Secretary of 
Homeland Security, under certain circumstances, to increase the number 
of H-2B visas available to U.S. employers, notwithstanding the 
established statutory numerical limitation. After consulting with the 
Secretary of Labor, the Secretary of the Homeland Security has 
determined it is appropriate to exercise his discretion and raise the 
H-2B cap by up to an additional 15,000 visas for the remainder of FY 
2017 for those businesses who would qualify under certain 
circumstances.
3. Population
    This temporary rule would impact those employers who file Form I-
129 on behalf of the nonimmigrant worker they seek to hire under the H-
2B visa program. More specifically, this rule would impact those 
employers who could establish that their business is likely to suffer 
irreparable harm because they cannot employ the H-2B workers requested 
on their petition in this fiscal year. Due to the temporary nature of 
this rule and the limited time left for these additional visas to be 
available, DHS believes it is more reasonable to assume that eligible 
petitioners for these additional 15,000 visas will be those employers 
that have already completed the steps to receive an approved TLC prior 
to the issuance of this rule.\22\ According to DOL OFLC's certification 
data for FY 2017, there were about 4,174 H-2B certifications with 
expected work start dates between April 1 and September 30, 2017. 
However, many of these certifications have already been filled under 
the existing cap. Of the 4,174 certifications, we estimated that

[[Page 32995]]

1,876 certifications would have been filled with the second semi-annual 
statutory cap of 33,000 visas.\23\ We believe that the remaining 
certifications of 2,298 (= 4,174 - 1,876) represents the pool of 
employers with approved certifications that may apply for additional H-
2B workers under this rule, and therefore serves as a reasonable proxy 
for the number of petitions we may receive under this rule.\24\
---------------------------------------------------------------------------

    \22\ Note that as in the standard H-2B visa issuance process, 
petitioning employers must still apply for a temporary labor 
certification and receive approval from DOL before submitting the 
Form I-129 petition with USCIS.
    \23\ DOL approved a total of 4,174 certifications for 73,424 H-
2B positions with work start date between April and September in 
2017. Therefore, we estimated that the average number of H-2B 
positions per certification is 17.59 (= 73,424/4,174) and the number 
of certifications that would have been filled with the second semi-
annual statutory cap of 33,000 is 1,876 (= 33,000/17.59).
    \24\ The preamble of this rule explains how DHS established 
15,000 as the number of H-2B visas to be made available for the 
remainder of the fiscal year. Based on the FY 2016 returning workers 
program, the USCIS Service Center Operations Directorate estimates 
that approximately 1,538 petitions were associated with the 18,090 
returning workers discussed in the preamble of this rule. For 
consistency and to provide a reasonable estimate for the number of 
possible petitioners, USCIS uses the 2,298 petitioners based on the 
DOL OFLC's certification data in FY 2017.
---------------------------------------------------------------------------

4. Cost-Benefit Analysis
    The costs for this form include filing costs and the opportunity 
costs of time to complete and file the form. The current filing fee for 
Form I-129 is $460 and the estimated time needed to complete and file 
Form I-129 for H-2B classification is 4.26 hours.\25\ The time burden 
of 4.26 hours for Form I-129 also includes the time to file and retain 
documents. The application must be filed by a U.S. employer, a U.S. 
agent, or a foreign employer filing through the U.S. agent. 8 CFR 
214.2(h)(2). Due to the expedited nature of this rule, DHS was unable 
to obtain data on the number of Form I-129 H-2B applications filed 
directly by a petitioner and those that are filed by a lawyer on behalf 
of the petitioner. Therefore, DHS presents a range of estimated costs 
including if only human resource (HR) specialists file Form I-129 or if 
only lawyers file Form I-129.\26\ Further, DHS presents cost estimates 
for lawyers filing on behalf of applicants based on whether all Form I-
129 applications are filed by in-house lawyers or by outsourced 
lawyers.\27\ DHS presents an estimated range of costs assuming that 
only HR specialists, in-house lawyers, or outsourced lawyers file these 
forms, though DHS recognizes that it is likely that filing will be 
conducted by a combination of these different types of filers.
---------------------------------------------------------------------------

    \25\ The public reporting burden for this form is 2.26 hours for 
Form I-129 and an additional 2 hours for H Classification 
Supplement. See Form I-129 instructions at https://www.uscis.gov/i-129.
    \26\ For the purposes of this analysis, DHS assumes a human 
resource specialist or some similar occupation completes and files 
these forms as the employer or petitioner who is requesting the H-2B 
worker. However, DHS understands that not all entities have human 
resources departments or occupations and, therefore, recognizes 
equivalent occupations may prepare these petitions.
    \27\ For the purposes of this analysis, DHS adopts the terms 
``in-house'' and ``outsourced'' lawyers as they were used in the 
DHS, U.S. Immigration and Customs Enforcement (ICE) analysis, 
``Final Small Entity Impact Analysis: Safe-Harbor Procedures for 
Employers Who Receive a No-Match Letter'' at G-4 (posted Nov. 5, 
2008), available at http://www.regulations.gov/#!documentDetail;D=ICEB-2006-0004-0922. The DHS ICE analysis 
highlighted the variability of attorney wages and was based on 
information received in public comment to that rule. We believe the 
distinction between the varied wages among lawyers is appropriate 
for our analysis.
---------------------------------------------------------------------------

    To estimate the total opportunity cost of time to petitioners who 
complete and file Form I-129, DHS uses the mean hourly wage rate of HR 
specialists of $31.20 as the base wage rate.\28\ If applicants hire an 
in-house or outsourced lawyer to file Form I-129 on their behalf, DHS 
uses the mean hourly wage rate of $67.25 as the base wage rate.\29\ 
Using the most recent Bureau of Labor Statistics (BLS) data, DHS 
calculated a benefits-to-wage multiplier of 1.46 to estimate the full 
wages to include benefits such as paid leave, insurance, and 
retirement.\30\ DHS multiplied the average hourly U.S. wage rate for HR 
specialists and for in-house lawyers by the benefits-to-wage multiplier 
of 1.46 to estimate the full cost of employee wages. The total per hour 
wage is $45.55 for an HR specialist and $98.19 for an in-house 
lawyer.\31\ In addition, DHS recognizes that an entity may not have in-
house lawyers and therefore, seek outside counsel to complete and file 
Form I-129 on behalf of the petitioner. Therefore, DHS presents a 
second wage rate for lawyers labeled as outsourced lawyers. DHS 
estimates the total per hour wage is $168.13 for an outsourced 
lawyer.\32\ \33\ If a lawyer submits Form I-129 on behalf of the 
petitioner, Form G-28 (Notice of Entry of Appearance as Attorney or 
Accredited Representative), must accompany the Form I-129 
submission.\34\ DHS estimates the time burden to complete and submit 
Form G-28 for a lawyer is 53 minutes (0.88 hour, rounded). For this 
analysis, DHS adds the time to complete Form G-28 to the opportunity 
cost of time to lawyers for filing Form I-129 on behalf of a 
petitioner. Therefore, the total opportunity cost of time for an HR 
specialist to complete and file Form I-129 is $194.04, for an in-house 
lawyer to complete and file is $504.70, and for an outsourced lawyer to 
complete and file is $864.19.\35\ The total cost, including filing fee 
and opportunity costs of time, per petitioner to file Form I-129 is 
$654.04 if HR specialists file, $964.70 if an in-house lawyer files, 
and $1,324.19 if an outsourced lawyer files the form.\36\
---------------------------------------------------------------------------

    \28\ U.S. Department of Labor, Bureau of Labor Statistics, 
Occupational Employment Statistics, May 2016, Human Resources 
Specialist: http://www.bls.gov/oes/current/oes131071.htm.
    \29\ U.S. Department of Labor, Bureau of Labor Statistics. May 
2016 National Occupational Employment and Wage Estimates, Mean 
Hourly Wage (23-1011 Lawyers), available at https://www.bls.gov/oes/current/oes231011.htm.
    \30\ The benefits-to-wage multiplier is calculated as follows: 
(Total Employee Compensation per hour)/(Wages and Salaries per 
hour). See Economic News Release, U.S. Department of Labor, Bureau 
of Labor Statistics, Table 1. Employer costs per hour worked for 
employee compensation and costs as a percent of total compensation: 
Civilian workers, by major occupational and industry group (June 
2016), available at http://www.bls.gov/news.release/pdf/ecec.pdf.
    \31\ Calculation for the total wage of an HR specialist: $31.20 
x 1.46 = $45.55 (rounded). Calculation for the total wage of an in-
house lawyer: $67.25 x 1.46 = $98.19 (rounded).
    \32\ Calculation: Average hourly wage rate of lawyers x 
Benefits-to-wage multiplier for outsourced lawyer = $67.25 x 2.5 = 
$168.125 = $168.13.
    \33\ The DHS ICE ``Safe-Harbor Procedures for Employers Who 
Receive a No-Match Letter'' used a multiplier of 2.5 to convert in-
house attorney wages to the cost of outsourced attorney based on 
information received in public comment to that rule. We believe the 
explanation and methodology used in the Final Small Entity Impact 
Analysis remains sound for using 2.5 as a multiplier for outsourced 
labor wages in this rule, see page G-4 [Sept. 1, 2015] [http://www.regulations.gov/#!documentDetail;D=ICEB-2006-0004-0922].
    \34\ USCIS, Filing Your Form G-28, https://www.uscis.gov/forms/filing-your-form-g-28.
    \35\ Calculation if an HR specialist files: $45.55 x (4.26 
hours) = $194.04 (rounded); Calculation if an in-house lawyer files: 
$98.19 x (4.26 hours to file Form I-129 H2B + 0.88 hour to file Form 
G-28) = $504.70 (rounded); Calculation if an outsourced lawyer 
files: $168.13 x (4.26 hours to file Form I-129 H2B + 0.88 hour to 
file Form G-28) = $864.19 (rounded).
    \36\ Calculation if an HR specialist files: $194.04 + $460 
(filing fee) = $654.04; Calculation if an in-house lawyer files: 
$504.70 + $460 (filing fee) = $964.70; Calculation if outsourced 
lawyer files: $864.19 + $460 (filing fee) = $1,324.19.
---------------------------------------------------------------------------

(a) Cost to Petitioners
    As mentioned in Section 3, the population impacted by this rule is 
the 2,298 petitioners who may apply for up to 15,000 additional H-2B 
visas for the remainder of FY 2017. Based on the previously presented 
total filing costs per petitioner, DHS estimates the total cost to file 
Form I-129 is $1,502,984 (rounded) if HR specialists file, $2,216,881 
(rounded) if in-house lawyers file, and $3,042,989 (rounded) if 
outsourced lawyers file.\37\ DHS

[[Page 32996]]

recognizes that not all Form I-129 applications are likely to be filed 
by only one type of filer and cannot predict how many applications 
would be filed by each type of filer. Therefore, DHS estimates that the 
total cost to file Form I-129 could range from $1,502,984 (rounded) to 
$3,042,989 (rounded) depending on the combination of applications filed 
by each type of filer.
---------------------------------------------------------------------------

    \37\ Calculation if HR specialist files: $654.04 x 2,298 
(population applying for H-2B visas) = $1,502,983.92 = $1,502,984 
(rounded); Calculation if an in-house lawyer files: $964.70 x 2,298 
(population applying for H-2B visas) = $2,216,880.60 = $2,216,881 
(rounded); Calculation if an outsourced lawyer files: $1,324.19 x 
2,298 (population applying for H-2B visas) = $3,042,988.62 = 
$3,042,989 (rounded).
---------------------------------------------------------------------------

(1) Form I-907
    Employers may use Form I-907, Request for Premium Processing 
Service, to request faster processing of their Form I-129 petitions for 
H-2B visas. The filing fee for Form I-907 is $1,225 and the time burden 
for completing the form is 0.5 hours. Using the wage rates established 
previously, the opportunity cost of time is $22.78 for an HR specialist 
to file Form I-907, $49.10 for an in-house lawyer to file, and $84.07 
for an outsourced lawyer to file.\38\ Therefore, the total filing cost 
to complete and file Form I-907 per petitioner is $1,247.78 if HR 
specialists file, $1,274.10 if in-house lawyers file, and $1,309.07 if 
outsourced lawyers file.\39\ Due to the expedited nature of this rule, 
DHS was unable to obtain data on the average percentage of Form I-907 
applications that were submitted with Form I-129 H-2B petitions. Table 
2 (below) shows the range of percentages of the 2,298 petitioners who 
may also request their Form I-129 adjudications be premium processed as 
well as the estimated total cost of filing Form I-907. DHS anticipates 
that most, if not all, of the additional 2,298 Form I-129 petitions 
will be requesting premium processing due to the limited time between 
the publication of this rule and the end of the fiscal year. Further, 
as shown in table 2, the total estimated cost to complete and file a 
request for premium processing (Form I-907) when submitted with Form I-
129 on behalf of an H-2B worker is a maximum of $2,867,398 if human 
resources specialists file, $2,927,882 if in-house lawyers file, and 
$3,008,243 if outsourced lawyers file.
---------------------------------------------------------------------------

    \38\ Calculation if an HR specialist files: $45.55 x (0.5 hours) 
= $22.78 (rounded); Calculation if an in-house lawyer files: $98.19 
x (0.5 hours) = $49.10 (rounded); Calculation if an outsourced 
lawyer files: $168.13 x (0.5 hours) = $84.07 (rounded).
    \39\ Calculation if an HR specialist files: $22.78 + $1,225 = 
$1,247.78; Calculation if an in-house lawyer files: $49.10 + $1,225 
= 1,274.10; Calculation if outsourced lawyer files: $84.07 + $1,225 
= $1,309.07.

                      Table 2--Total Cost of Filing Form I-907 Under the H-2B Visa Program
----------------------------------------------------------------------------------------------------------------
                                                     Number of       Total cost to filers \c\
                                                      filers     --------------------------------
 Percent of filers requesting premium processing    requesting         Human                        Outsourced
                       \a\                            premium        resources       In-house       lawyer ($)
                                                  processing \b\  specialist ($)    lawyer ($)
----------------------------------------------------------------------------------------------------------------
25..............................................             575         716,850         731,970         752,061
50..............................................           1,149       1,433,699       1,463,941       1,504,121
75..............................................           1,724       2,150,549       2,195,911       2,256,182
90..............................................           2,068       2,580,659       2,635,094       2,707,419
95..............................................           2,183       2,724,029       2,781,488       2,857,831
100.............................................           2,298       2,867,398       2,927,882       3,008,243
----------------------------------------------------------------------------------------------------------------
Notes:
\a\ Assumes that all 15,000 additional H-2B visas will be filled by 2,298 petitioners.
\b\ Numbers and dollar amounts are rounded to the nearest whole number.
\c\ Calculation: (Total cost per filer of Form I-907) x Number of filers who request premium processing = Total
  cost to filer (rounded to the nearest dollar).
Source: USCIS analysis.

(2) Attestation Requirements
    The remaining provisions of this rule include a new form for 
applicants, Form ETA-9142-B-CAA-Attestation for Admission of H-2B 
Workers, attached to this rulemaking as Appendix A.
    The new attestation form includes new recruiting requirements, the 
irreparable harm standard, and document retention obligations. DOL 
estimates the time burden for completing and signing the form is 0.25 
hour and 1 hour for retaining documents and records relating to 
recruitment. The petitioner must retain documents and records of a new 
job order for the job opportunity placed with the State Workforce 
Agency (SWA) and one newspaper advertisement. DOL estimates that it 
would take up to one hour to file and retain documents and records 
relating to recruitment. Using the total per hour wage for an HR 
specialist ($45.55), the opportunity cost of time for an HR specialist 
to complete the new attestation form and to retain documents relating 
to recruitment is $56.94.\40\
---------------------------------------------------------------------------

    \40\ Calculation: $45.55 (total per hour wage for an HR 
specialist) x 1.25 (time burden for the new attestation form and 
retaining recruitment documentation) = $56.94.
---------------------------------------------------------------------------

    Additionally, the new form requires that the petitioner assess and 
document supporting evidence for meeting the irreparable harm standard, 
and retain those documents and records, which we assume will require 
the resources of a financial analyst (or another equivalent 
occupation). Using the same methodology previously described for wages, 
the total per hour wage for a financial analyst is $68.53.\41\ DOL 
estimates the time burden for these tasks is at least 4 hours and 1 
hour for gathering and retaining documents and records. Therefore, the 
total opportunity costs of time for a financial analyst to assess, 
document, and retain supporting evidence is $342.65.\42\
---------------------------------------------------------------------------

    \41\ Calculation: $46.94 (total per hour wage for a financial 
analyst, based on BLS wages) x 1.46 (benefits-to-wage multiplier) = 
$68.53. U.S. Department of Labor, Bureau of Labor Statistics, 
Occupational Employment Statistics, May 2016, Financial Analysts: 
http://www.bls.gov/oes/current/oes132051.htm.
    \42\ Calculation: $68.53 (total per hour wage for a financial 
analyst) x 5 hours (time burden for assessing, documenting and 
retention of supporting evidence demonstrating the employer is 
likely to suffer irreparable harm) = $342.65.
---------------------------------------------------------------------------

    As discussed previously, we believe that the estimated 2,298 
remaining unfilled certifications for the latter half of FY 2017 would 
include all potential employers who might request to employ H-2B 
workers under this rule. This number of certifications is a reasonable 
proxy for the number of employers who may need to review and sign the 
attestation. Using this estimate for the total number of 
certifications, DOL

[[Page 32997]]

estimates that the cost for HR specialists is $130,842 and for 
financial analysts is $787,410 (rounded).\43\ The total cost is 
estimated to be $918,252.\44\
---------------------------------------------------------------------------

    \43\ Calculations: Cost for HR Specialists: $45.55 (total per 
hour wage for an HR specialist) x 2,298 certifications x 1.25 hours 
= $130,842. Cost for Financial Analysts: $68.53 (total per hour wage 
for a financial analyst) x 2,298 certifications x 5 hours = 
$787,410.
    \44\ Calculation: $130,842 (total cost for HR specialists) + 
$787,410 (total cost for financial analysts) = $918,252.
---------------------------------------------------------------------------

    Employers will place a new job order for the job opportunity with 
the SWA serving the area of intended employment for at least 5 days 
beginning no later than the next business day after submitting a 
petition for an H-2B worker and the attestation to USCIS. DOL estimates 
that an HR specialist (or another equivalent occupation) would spend 1 
hour to prepare a new job order and submit it to the SWA.\45\ DOL 
estimates the total cost of placing a new job order is $104,674.\46\
---------------------------------------------------------------------------

    \45\ The job order must address the content requirements at 20 
CFR 655.18, consistent with new requirements contained in the 2016 
Department of Labor Appropriations Act (Division H, Title I of Pub. 
L. 114-113) (2016 DOL Appropriations Act), which was enacted on 
December 18, 2015.
    \46\ Calculation: $45.55 (total per hour wage for an HR 
specialist) x 2,298 certifications x 1 hour (time burden for placing 
a job order with the SWA) = $104,674.
---------------------------------------------------------------------------

    Employers will also place one newspaper advertisement during the 
period of time the SWA is actively circulating the job order for 
intrastate clearance. DOL estimates that a standard job listing in an 
online edition of a newspaper is $250.\47\ The total cost associated 
with one online newspaper job listing is $574,500.\48\
---------------------------------------------------------------------------

    \47\ Source: The Washington Post, Online Only Job Listings (35 
days), page 4 available at: https://www.washingtonpost.com/wp-stat/ad/public/static/media_kit/16-3729-01-jobs.pdf.
    \48\ Calculation: $250 (cost of one online newspaper job 
listing) x 2,298 certifications = $574,500.
---------------------------------------------------------------------------

    Therefore, the total cost for the new attestation form is estimated 
to be $1,597,426.\49\
---------------------------------------------------------------------------

    \49\ Calculation: $918,252 (total cost for HR specialists and 
financial analysts) + $104,674 (total cost to place job order with 
State Workforce Agency) + $574,500 (total cost to place online 
newspaper job listings) = $1,597,426.
---------------------------------------------------------------------------

(b) Cost to the Federal Government
    DHS anticipates some additional costs in adjudicating the 
additional petitions submitted as a result of the increase in cap 
limitation for H-2B visas. However, DHS expects these costs to be 
covered by the fees associated with the forms.
(c) Benefits to Petitioners
    The inability to access H-2B workers for these entities may cause 
their businesses to suffer irreparable harm. Temporarily increasing the 
number of available H-2B visas for this fiscal year may allow some 
businesses to hire the additional labor resources necessary to avoid 
such harm. Preventing such harm may ultimately rescue the jobs of any 
other employees (including U.S. employees) at that establishment.

F. Executive Order 13132 (Federalism)

    This rule does 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 No. 13132, 64 FR 43,255 (Aug. 4, 1999), this rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement.

G. Executive Order 12988 (Civil Justice Reform)

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order No. 12988, 61 FR 4729 (Feb. 5, 1996).

H. National Environmental Policy Act

    DHS analyzes actions to determine whether NEPA applies to them and 
if so what degree of analysis is required. DHS Directive (Dir) 023-01 
Rev. 01 establishes the procedures that DHS and its components use to 
comply with NEPA and the Council on Environmental Quality (CEQ) 
regulations for implementing NEPA, 40 CFR parts 1500 through 1508. The 
CEQ regulations allow federal agencies to establish, with CEQ review 
and concurrence, categories of actions (``categorical exclusions'') 
which experience has shown do not individually or cumulatively have a 
significant effect on the human environment and, therefore, do not 
require an Environmental Assessment (EA) or Environmental Impact 
Statement (EIS). 40 CFR 1507.3(b)(1)(iii), 1508.4. DHS Instruction 023-
01 Rev. 01 establishes such Categorical Exclusions that DHS has found 
to have no such effect. Dir. 023-01 Rev. 01 Appendix A Table 1. For an 
action to be categorically excluded, DHS Instruction 023-01 Rev. 01 
requires the action to satisfy each of the following three conditions: 
(1) The entire action clearly fits within one or more of the 
Categorical Exclusions; (2) the action is not a piece of a larger 
action; and (3) no extraordinary circumstances exist that create the 
potential for a significant environmental effect. Inst. 023-01 Rev. 01 
section V.B (1)-(3).
    This rule temporarily amends the regulations implementing the H-2B 
nonimmigrant visa program to increase the numerical limitation on H-2B 
nonimmigrant visas for the remainder of FY 2017 based on the Secretary 
of Homeland Security's determination, in consultation with the 
Secretary of Labor, consistent with the FY 2017 Omnibus. Generally, a 
rule which changes the number of visas which can be issued has no 
impact on the environment and any attempt to analyze that impact would 
be largely, if not completely, speculative. The Departments cannot 
estimate with reasonable certainty which employers will successfully 
petition for employees in what locations and numbers. At most, however, 
it is reasonably foreseeable that an increase of up to15,000 visas may 
be issued for temporary entry into the United States in diverse 
industries and locations. For purposes of the cost estimates contained 
in the economic analysis above, DHS bases its calculations on the 
assumption that all 15,000 will be issued. Even making that assumption, 
with a current U.S. population in excess of 323 million and a U.S. land 
mass of 3.794 million square miles, this is insignificant by any 
measure.
    DHS has determined that this rule does not individually or 
cumulatively have a significant effect on the human environment and it 
thus would fit within one categorical exclusion under Environmental 
Planning Program, DHS Instruction 023-01 Rev. 01, Appendix A, Table 1. 
Specifically, the rule fits within Categorical Exclusion number A3(d) 
for rules that interpret or amend an existing regulation without 
changing its environmental effect.
    This rule maintains the current human environment by helping to 
prevent irreparable harm to certain U.S. businesses and to prevent a 
significant adverse effect on the human environment that would likely 
result from loss of jobs and income. With the exception of 
recordkeeping requirements, this rulemaking terminates after September 
30, 2017; it is not part of a larger action and presents no 
extraordinary circumstances creating the potential for significant 
environmental effects. No further NEPA analysis is required.

I. Paperwork Reduction Act

    The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., provides 
that a Federal agency generally cannot conduct or sponsor a collection 
of information, and the public is generally

[[Page 32998]]

not required to respond to an information collection, unless it is 
approved by OMB under the PRA and displays a currently valid OMB 
Control Number. In addition, notwithstanding any other provisions of 
law, no person shall generally be subject to penalty for failing to 
comply with a collection of information that does not display a valid 
Control Number. See 5 CFR 1320.5(a) and 1320.6. DOL has submitted the 
Information Collection Request (ICR) contained in this rule to OMB and 
obtained approval using emergency clearance procedures outlined at 5 
CFR 1320.13. The Departments note that while DOL submitted the ICR, 
both DHS and DOL will use the information.
    More specifically, this rule includes a new form (Attestation for 
Employers Seeking to Employ H-2B Nonimmigrants Workers Under Section 
543 of the Consolidated Appropriations Act, Form ETA-9142-B-CAA) for 
petitioners to submit to DHS, and that petitioners will use to make the 
irreparable harm attestation described above. The petitioner would file 
the attestation with DHS. In addition, the petitioner may need to 
advertise the positions. Finally, the petitioner will need to retain 
documents and records proving compliance with this implementing rule, 
and must provide the documents and records to DHS and DOL staff in the 
event of an audit or investigation. The information collection 
requirements associated with this rule are summarized as follows:
    Agency: DOL-ETA.
    Type of Information Collection: New collection.
    Title of the Collection: H-2B Nonimmigrants Workers Under Section 
543 of the Consolidated Appropriations Act.
    Agency Form Number: ETA-9142-B-CAA.
    Affected Public: Private Sector--businesses or other for-profits.
    Total Estimated Number of Respondents: 2,298.
    Average Responses per Year per Respondent: 1.
    Total Estimated Number of Responses: 2,298.
    Average Time per Response: 6.25 hours per application.
    Total Estimated Annual Time Burden: 14,363 hours.
    Total Estimated Other Costs Burden: $679,174.

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.

20 CFR Part 655

    Administrative practice and procedure, Employment, Employment and 
training, Enforcement, Foreign workers, Forest and forest products, 
Fraud, Health professions, Immigration, Labor, Longshore and harbor 
work, Migrant workers, Nonimmigrant workers, Passports and visas, 
Penalties, Reporting and recordkeeping requirements, Unemployment, 
Wages, Working conditions.

Department of Homeland Security

8 CFR Chapter I

    For the reasons discussed in the joint preamble, part 214 of 
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 continues to read as follows:

    Authority:  8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 
1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110 
Stat. 3009-708; Public Law 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; 48 U.S.C. 1806; 8 CFR part 2.

0
2. Effective July 19, 2017 through September 30, 2017, amend Sec.  
214.2 by adding paragraph (h)(6)(x) to read as follows:


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

* * * * *
    (h) * * *
    (6) * * *
    (x) Special requirements for additional cap allocations under the 
Consolidated Appropriations Act, 2017, Public Law 115-31--(A) Public 
Law 115-31. Notwithstanding the numerical limitations set forth in 
paragraph (h)(8)(i)(C) of this section, for fiscal year 2017 only, the 
Secretary has authorized up to an additional 15,000 aliens who may 
receive H-2B nonimmigrant visas pursuant to section 543 of the 
Consolidated Appropriations Act, 2017, Public Law 115-31. 
Notwithstanding Sec.  248.2 of this part, an alien may not change 
status to H-2B nonimmigrant under this provision.
    (B) Eligibility. In order to file a petition with USCIS under this 
paragraph (h)(6)(x), the petitioner must:
    (1) Comply with all other statutory and regulatory requirements for 
H-2B classification, including requirements in this section, under part 
103 of this chapter, and under parts 655 of Title 20 and 503 of Title 
29; and
    (2) Submit to USCIS, at the time the employer files its petition, a 
U.S. Department of Labor attestation, in compliance with 20 CFR 655.64, 
evidencing that without the ability to employ all of the H-2B workers 
requested on the petition filed pursuant to this paragraph (h)(6)(x), 
its business is likely to suffer irreparable harm (that is, permanent 
and severe financial loss), and that the employer will provide 
documentary evidence of this fact to DHS or DOL upon request.
    (C) Processing. USCIS will reject petitions filed pursuant to this 
paragraph (h)(6)(x) that are received after the numerical limitation 
has been reached or after September 15, 2017, whichever is sooner. 
USCIS will not approve a petition filed pursuant to this paragraph 
(h)(6)(x) on or after October 1, 2017.
    (D) Sunset. This paragraph (h)(6)(x) expires on October 1, 2017.
    (E) Non-severability. The requirement to file an attestation under 
paragraph (h)(6)(x)(B)(2) of this section is intended to be non-
severable from the remainder of this paragraph (h)(6)(x); in the event 
that paragraph (h)(6)(x)(B)(2) is enjoined or held to be invalid by any 
court of competent jurisdiction, this paragraph (h)(6)(x) is also 
intended to be enjoined or held to be invalid in such jurisdiction, 
without prejudice to workers already present in the United States under 
this regulation, as consistent with law.
* * * * *

Department of Labor

    Accordingly, for the reasons stated in the joint preamble, 20 CFR 
part 655 is amended as follows:

Title 20--Employees' Benefits

PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED 
STATES

0
3. The authority citation for part 655 continues to read as follows:

    Authority:  Section 655.0 issued under 8 U.S.C. 
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 
1103(a)(6), 1182(m), (n) and (t), 1184(c), (g), and (j), 1188, and 
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105 
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat.

[[Page 32999]]

2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 
1312, 1316 (8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 
Stat. 2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR 
214.2(h)(4)(i); and 8 CFR 214.2(h)(6)(iii).
    Subpart A issued under 8 CFR 214.2(h).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), 
and 1188; and 8 CFR 214.2(h).
    Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, 
Pub. L. 114-74 at section 701.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and 
(b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. 
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), 
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 
note, Pub. L. 114-74 at section 701.
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).

0
4. Effective July 19, 2017 through September 30, 2017, add Sec.  655.64 
to read as follows:


Sec.  655.64  Special Eligibility Provisions for Fiscal Year 2017 under 
the Consolidated Appropriations Act.

    An employer filing a petition with USCIS under 8 CFR 214.2(h)(6)(x) 
to employ H-2B workers from July 19, 2017 through September 15, 2017 
must meet the following requirements:
    (a) The employer must attest on Form ETA-9142-B-CAA that without 
the ability to employ all of the H-2B workers requested on the petition 
filed pursuant to 8 CFR 214.2(h)(6)(x), its business is likely to 
suffer irreparable harm (that is, permanent and severe financial loss), 
and that the employer will provide documentary evidence of this fact to 
DHS or DOL upon request.
    (b) An employer with a start date of work before June 1, 2017 on 
its approved Temporary Labor Certification, must conduct additional 
recruitment of U.S. workers as follows:
    (1) The employer must place a new job order for the job opportunity 
with the State Workforce Agency, serving the area of intended 
employment. The job order must contain the job assurances and contents 
set forth in 20 CFR 655.18 for recruitment of U.S. workers at the place 
of employment, and remain posted for at least 5 days beginning not 
later than the next business day after submitting a petition for H-2B 
worker(s); and
    (2) The employer must place one newspaper advertisement on any day 
of the week meeting the advertising requirements of 20 CFR 655.41, 
during the period of time the State Workforce Agency is actively 
circulating the job order for intrastate clearance; and
    (3) The employer must hire any qualified U.S. worker who applies or 
is referred for the job opportunity until 2 business days after the 
last date on which the job order is posted under paragraph (c)(1) of 
this section. Consistent with 20 CFR 655.40(a), applicants can be 
rejected only for lawful job-related reasons.
    (c) This section expires on October 1, 2017.
    (d) Non-severability. The requirement to file an attestation under 
paragraph (a) of this section is intended to be non-severable from the 
remainder of this section; in the event that paragraph (a) is enjoined 
or held to be invalid by any court of competent jurisdiction, the 
remainder of this section is also intended to be enjoined or held to be 
invalid in such jurisdiction, without prejudice to workers already 
present in the United States under this regulation, as consistent with 
law.

0
3. Effective July 19, 2017 through September 30, 2020, add Sec.  655.65 
to read as follows:


Sec.  655.65  Special Document Retention Provisions for Fiscal Years 
2017 through 2020 under the Consolidated Appropriations Act.

    (a) An employer that files a petition with USCIS to employ H-2B 
workers in fiscal year 2017 under authority of the temporary increase 
in the numerical limitation under Public Law 115-31 must maintain for a 
period of 3 years from the date of certification, consistent with 20 
CFR 655.56 and 29 CFR 503.17, the following:
    (1) A copy of the attestation filed pursuant to regulations 
governing that temporary increase;
    (2) Evidence establishing that employer's business is likely to 
suffer irreparable harm (that is, permanent and severe financial loss), 
if it cannot employ H-2B nonimmigrant workers in fiscal year 2017;
    (3) If applicable, evidence of additional recruitment and a 
recruitment report that meets the requirements set forth in 20 CFR 
655.48(a)(1), (2), and (7).
    DOL or DHS may inspect these documents upon request.
    (b) This section expires on October 1, 2020.

John F. Kelly,
Secretary of Homeland Security.

Alexander Acosta,
Secretary of Labor.

Appendix A

Attestation for Employers Seeking To Employ H-2B Nonimmigrant Workers 
Under Section 543 of the Consolidated Appropriations Act, 2017 Public 
Law 115-31 (May 5, 2017)

    By virtue of my signature below, I hereby certify that the 
following is true and correct:
    (A) I am an employer with an approved labor certification from 
the Department of Labor seeking permission to employ H-2B 
nonimmigrant workers for temporary employment in the United States.
    (B) I was granted temporary labor certification from the 
Department of Labor (DOL) for my business's job opportunity, which 
required that the worker(s) begin employment before October 1, 2017 
and is currently valid.
    (C) I attest that if my business cannot employ all the H-2B 
nonimmigrant workers requested on my Form I-129 petition before the 
end of this fiscal year (September 30, 2017) in the job opportunity 
certified by DOL, my business is likely to suffer irreparable harm 
(that is, permanent and severe financial loss).
    (D) I attest that my business has a bona fide temporary need for 
all the H-2B nonimmigrant workers requested on the Form I-129 
petition, consistent with 8 CFR 214.2(h)(6)(ii).
    (E) If my current labor certification contains a start date of 
work before June 1, 2017, I will complete a new assessment of the 
United States labor market in advance of H-2B nonimmigrant workers 
coming to the United States to begin employment before October 1, 
2017, as follows:
    1. I will place a new job order for the job opportunity with the 
State Workforce Agency (SWA) serving the area of intended employment 
that contains the job assurances and contents set forth in 20 CFR 
655.18 for recruitment of U.S. workers at the place of employment 
for at least 5 days beginning not later than the next business day 
after submitting a petition for an H-2B nonimmigrant worker(s) and 
this accompanying attestation to U.S. Citizenship and Immigration 
Services;
    2. I will place one newspaper advertisement, which may be 
published on any day of the week, meeting the advertising 
requirements of 20 CFR 655.41, during the period of time the SWA is 
actively circulating the job order for intrastate clearance; and
    3. I will offer the job to any qualified and available U.S. 
worker who applies or is referred for the job opportunity until 2 
business days after the last date on which the job order is posted. 
I understand that consistent with 20 CFR 655.40(a), applicants can 
be rejected only for lawful job-related reasons.
    (F) I agree to retain a copy of this signed attestation form, 
the additional recruitment

[[Page 33000]]

documentation, including a recruitment report that meets the 
requirements for recruitment reports set forth in 20 CFR 
655.48(a)(1),(2) & (7), together with evidence establishing that my 
business meets the standard described in paragraph (C) of this 
attestation, for a period of 3 years from the date of certification, 
consistent with the document retention requirements under 20 CFR 
655.65, 20 CFR 655.56, and 29 CFR 503.17. Further, I agree to 
provide this documentation to a DHS or DOL official upon request.
    (G) I agree to comply with all assurances, obligations, and 
conditions of employment set forth in the Application for Temporary 
Employment Certification (Form ETA 9142B and Appendix B) certified 
by the DOL for my business's job opportunity.
    I hereby sign this under penalty of perjury:
    [GRAPHIC] [TIFF OMITTED] TR19JY17.019
    
[FR Doc. 2017-15208 Filed 7-17-17; 11:15 am]
 BILLING CODE 4510-FP-P; 4510-27-P; 9111-97-P