[Federal Register Volume 88, Number 181 (Wednesday, September 20, 2023)]
[Proposed Rules]
[Pages 65040-65108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20123]
[[Page 65039]]
Vol. 88
Wednesday,
No. 181
September 20, 2023
Part III
Department of Homeland Security
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8 CFR Parts 214 and 274a
Modernizing H-2 Program Requirements, Oversight, and Worker
Protections; Proposed Rule
Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 /
Proposed Rules
[[Page 65040]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214 and 274a
[CIS No. 2740-23; DHS Docket No. USCIS-2023-0012]
RIN 1615-AC76
Modernizing H-2 Program Requirements, Oversight, and Worker
Protections
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security (DHS) proposes to amend
its regulations affecting temporary agricultural (H-2A) and temporary
nonagricultural (H-2B) nonimmigrant workers (H-2 programs) and their
employers. This notice of proposed rulemaking is intended to better
ensure the integrity of the H-2 programs and enhance protections for
workers.
DATES: Written comments must be submitted on or before November 20,
2023. The electronic Federal Docket Management System will accept
comments prior to midnight eastern time at the end of that day.
ADDRESSES: You may submit comments on the entirety of this proposed
rulemaking package, identified by DHS Docket No. USCIS-2023-0012
through the Federal eRulemaking Portal: http://www.regulations.gov.
Follow the website instructions for submitting comments.
Comments submitted in a manner other than the one listed above,
including emails or letters sent to DHS or USCIS officials, will not be
considered comments on the proposed rule and may not receive a response
from DHS. Please note that DHS and USCIS cannot accept any comments
that are hand-delivered or couriered. In addition, USCIS cannot accept
comments contained on any form of digital media storage devices, such
as CDs/DVDs and USB drives. USCIS is also not accepting mailed comments
at this time. If you cannot submit your comment by using http://www.regulations.gov, please contact Samantha Deshommes, Chief,
Regulatory Coordination Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
by telephone at (240) 721-3000 for alternate instructions.
FOR FURTHER INFORMATION CONTACT: Charles L. Nimick, Chief, Business and
Foreign Workers Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
5900 Capital Gateway Drive, MD, Camp Springs, 20746; telephone (240)
721-3000. (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. Public Participation
II. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of Major Provisions of the Regulatory Action
C. Summary of Costs and Benefits
III. Background
A. Legal Authority
B. Description of the H-2 Nonimmigrant Classifications
C. H-2 2008 Final Rules
D. Importance of the H-2 Programs and the Need for Reforms
IV. Discussion of Proposed Rule
A. Program Integrity and Worker Protections
B. Worker Flexibilities
C. Improving H-2 Program Efficiencies and Reducing Barriers to
Legal Migration
D. Severability
E. Request for Preliminary Public Input Related to Future
Actions/Proposals
V. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Executive Order 13132 (Federalism)
E. Executive Order 12988 (Civil Justice Reform)
F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
G. National Environmental Policy Act
H. Paperwork Reduction Act
Table of Abbreviations
BLS--Bureau of Labor Statistics
CBP--U.S. Customs and Border Protection
CFR--Code of Federal Regulations
CPI-U--Consumer Price Index for All Urban Consumers
DHS--Department of Homeland Security
DOJ--Department of Justice
DOL--Department of Labor
DOS--Department of State
DOT--Department of Transportation
ETA--Employment and Training Administration
FDNS--Fraud Detection and National Security Directorate
FY--Fiscal year
GAO--Government Accountability Office
GDOL--Guam Department of Labor
H-2A--Temporary Agricultural Workers Nonimmigrant Classification
H-2B--Temporary Nonagricultural Workers Nonimmigrant Classification
ICE--U.S. Immigration and Customs Enforcement
INA--Immigration and Nationality Act
INS--Immigration and Naturalization Service
LCA--Labor condition application
MOU--Memorandum of understanding
NAICS--North American Industry Classification System
NEPA--National Environmental Policy Act
NOID--Notice of intent to deny
NPRM--Notice of proposed rulemaking
OFLC--Office of Foreign Labor Certification
OIRA--Office of Information and Regulatory Affairs
OMB--Office of Management and Budget
OSHA--Occupational Safety and Health Administration
PRA--Paperwork Reduction Act
RFA--Regulatory Flexibility Act of 1980
RFE--Request for evidence
SBA--Small Business Administration
SSA--Social Security Administration
TFR--Temporary final rule
TLC--Temporary labor certification
UMRA--Unfunded Mandates Reform Act of 1995
USCIS--U.S. Citizenship and Immigration Services
USAID--U.S. Agency for International Development
WHD--Wage and Hour Division
I. Public Participation
DHS invites all interested parties to participate in this
rulemaking by submitting written data, views, comments, and arguments
on all aspects of this proposed rule. DHS also invites comments that
relate to the economic, environmental, or federalism effects that might
result from this proposed rule. Comments must be submitted in English,
or an English translation must be provided. Comments that will provide
the most assistance to USCIS in implementing these changes will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include data, information, or authority
that support such recommended change. Comments submitted in a manner
other than the one listed above, including emails or letters sent to
DHS or USCIS officials, will not be considered comments on the proposed
rule and may not receive a response from DHS.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2023-0012 for this rulemaking. Regardless of the method used for
submitting comments or material, all submissions will be posted,
without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission
[[Page 65041]]
you make to DHS. DHS may withhold information provided in comments from
public viewing that it determines may impact the privacy of an
individual or is offensive. For additional information, please read the
Privacy and Security Notice available at http://www.regulations.gov.
Docket: For access to the docket and to read background documents
or comments received, go to http://www.regulations.gov, referencing DHS
Docket No. USCIS-2023-0012. You may also sign up for email alerts on
the online docket to be notified when comments are posted, or a final
rule is published.
II. Executive Summary
A. Purpose of the Regulatory Action
The purpose of this rulemaking is to modernize and improve the DHS
regulations relating to the H-2A temporary agricultural worker program
and the H-2B temporary nonagricultural worker program (H-2 programs).
Through this proposed rule, DHS seeks to strengthen worker protections
and the integrity of the H-2 programs, provide greater flexibility for
H-2A and H-2B workers, and improve program efficiency.
B. Summary of Major Provisions of the Regulatory Action
DHS proposes to include the following major changes:
Program Integrity and Worker Protections
To improve the integrity of the H-2 programs, DHS is proposing
significant revisions to the provisions relating to prohibited fees to
strengthen the existing prohibition on, and consequences for, charging
certain fees to H-2A and H-2B workers, including new bars to approval
for some H-2 petitions. Further, as a significant new program integrity
measure and a deterrent to petitioners that have been found to have
committed labor law violations or abused the H-2 programs, DHS is
proposing to institute certain mandatory and discretionary bars to
approval of an H-2A or H-2B petition. In addition, to protect workers
who report their employers for program violations, DHS is proposing to
provide H-2A and H-2B workers with ``whistleblower protection''
comparable to the protection that is currently offered to H-1B workers.
Additionally, DHS proposes to clarify requirements for petitioners and
employers to consent to, and fully comply with, USCIS compliance
reviews and inspections. DHS also proposes to clarify USCIS's authority
to deny or revoke a petition if USCIS is unable to verify information
related to the petition, including but not limited to where such
inability is due to lack of cooperation from a petitioner or an
employer during a site visit or other compliance review.
Worker Flexibilities
DHS is also proposing changes meant to provide greater flexibility
to H-2A and H-2B workers. These changes include adjustments to the
existing admission periods before and after the validity dates of an
approved petition (grace periods) so that H-2 workers would receive up
to 10 days prior to the petition's validity period and up to 30 days
following the expiration of the petition, as well as an extension of
the existing 30-day grace period following revocation of an approved
petition during which an H-2 worker may seek new qualifying employment
or prepare for departure from the United States without violating their
nonimmigrant status or accruing unlawful presence for up to 60 days. In
addition, to account for other situations in which a worker may
unexpectedly need to stop working or wish to seek new employment, DHS
is proposing to provide a new grace period for up to 60 days during
which an H-2 worker can cease working for their petitioner while
maintaining H-2 status. Further, in a change meant to work in
conjunction with the new grace period provisions, DHS proposes to
permanently provide portability--the ability to begin new employment
upon the proper filing of an extension of stay petition rather than
only upon its approval--to H-2A and H-2B workers. Additionally, in the
case of petition revocations, DHS proposes to clarify that H-2A
employers have the same responsibility that H-2B employers currently
have for reasonable costs of return transportation for the beneficiary.
DHS also proposes to clarify that H-2 workers will not be considered to
have failed to maintain their H-2 status solely on the basis of taking
certain steps toward becoming lawful permanent residents of the United
States. Finally, DHS proposes to remove the phrase ``abscondment,''
``abscond,'' and its other variations to emphasize that the mere fact
of leaving employment, standing alone, does not constitute a basis for
assuming wrongdoing by the worker.
Improving H-2 Program Efficiencies and Reducing Barriers to
Legal Migration
DHS proposes two changes to improve the efficiency of the H-2
programs and to reduce barriers to use of those two programs. First,
DHS proposes to remove the requirement that USCIS may generally only
approve petitions for H-2 nonimmigrant status for nationals of
countries that the Secretary of Homeland Security, with the concurrence
of the Secretary of State, has designated as eligible to participate in
the H-2 programs. Second, DHS proposes to simplify the regulatory
provisions regarding the effect of a departure from the United States
on the 3-year maximum period of stay by providing a uniform standard
for resetting the 3-year clock following such a departure.
C. Summary of Costs and Benefits
This proposed rule would directly impose costs on petitioners in
the form of increased opportunity costs of time to complete and file H-
2 petitions and time spent to familiarize themselves with the rule.
Other difficult to quantify costs may also be experienced by certain
petitioners if selected for a compliance review, petitioners that face
stricter consequences regarding prohibited fees, or for those that opt
to transport and house H-2A beneficiaries earlier than they would have
otherwise based on the proposed extension of the pre-employment grace
period from 7 to 10 days. The Federal Government may also face some
increased opportunity costs of time for adjudicators to review
information regarding debarment and other past violation determinations
more closely, issue requests for evidence (RFE) or notices of intent to
deny (NOID), and additional costs for related computer system updates.
The benefits of this proposed rule would be diverse, though most
are difficult to quantify. The proposed rule would extend portability
to H-2 workers lawfully present in the United States regardless of a
porting petitioner's E-Verify standing, affording these workers agency
of choice at an earlier moment in time, which is consistent with other
portability regulations and more similar to other workers in the labor
force. Employers and beneficiaries would also benefit from the extended
grace periods and eliminating the interrupted stay provisions and
instead reducing the period of absence out of the country to reset
their 3-year maximum period of stay. The Federal Government would also
realize benefits, mainly through bolstering existing program integrity
activities, possible increased compliance with program requirements,
and providing a greater ability for USCIS to deny or revoke petitions
for issues related to program compliance.
Table 1 provides a more detailed summary of the proposed provisions
and their impacts. The impact of the
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costs and benefits described herein are quantified (and monetized)
wherever possible given all available information. Where there are
insufficient data to quantify a given impact, we provide a qualitative
description of the impact.
Table 1--Summary of Provisions and Impacts
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Expected impact of the
Provision Purpose of proposed provision proposed provision
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8 CFR 214.2(h)(5)(vi)(A) and 8 CFR DHS is proposing to add stronger language Cost:
214.2(h)(6)(i)(F). requiring petitioners or employers to Cooperation during a
both consent to and fully comply with any site visit or compliance
USCIS audit, investigation, or other review may result in
program integrity activity and clarify opportunity costs of time
USCIS's authority to deny/revoke a for petitioners to provide
petition if unable to verify information information to USCIS during
related to the petition, including due to these compliance reviews and
lack of cooperation from the petitioner inspections. On average,
or employer during a site visit or other USCIS site visits last 1.7
compliance review. hours, which is a reasonable
estimate for the marginal
time that a petitioner may
need to spend in order to
comply with a site visit.
Employers that do
not cooperate would face
denial or revocation of
their petition(s), which
could result in costs to
those businesses.
Benefit:
USCIS would have
clearer authority to deny or
revoke a petition if unable
to verify information
related to the petition. The
effectiveness of existing
USCIS program integrity
activities would be improved
through increased
cooperation from employers.
8 CFR 214.2(h)(20)................... DHS is proposing to provide H-2A and H-2B Cost:
workers with ``whistleblower protection'' Employers may face
comparable to the protection currently increased RFEs, denials, or
offered to H-1B workers. other actions on their H-2
petitions, or other program
integrity mechanisms
available under this rule or
existing authorities, as a
result of H-2 workers'
cooperation in program
integrity activity due to
whistleblower protections.
Such actions may result in
potential costs such as lost
productivity and profits to
employers whose
noncompliance with the
program is revealed by
whistleblowers.
Benefit:
Such protections may
afford workers the ability
to expose issues that harm
workers or are not in line
with the intent of the H-2
programs while also offering
protection to such workers
(therefore potentially
improving overall working
conditions), but the extent
to which this would occur is
unknown.
8 CFR 214.2(h)(5)(xi)(A), 8 CFR DHS is proposing significant revisions to Cost:
214.2(h)(5)(xi)(C), 8 CFR the provisions relating to prohibited Enhanced
214.2(h)(6)(i)(B), 8 CFR fees to strengthen the existing consequences for petitioners
214.2(h)(6)(i)(C), and 8 CFR prohibition on, and consequences for, who charge prohibited fees
214.2(h)(6)(i)(D). charging certain fees to H-2A and H-2B could lead to increased
workers, including new bars on approval financial losses and
for some H-2 petitions. extended ineligibility from
participating in H-2
programs.
Benefit:
Possibly increase
compliance with provisions
regarding prohibited fees
and thus reduce the
occurrence and burden of
prohibited fees on H-2
beneficiaries.
8 CFR 214.2(h)(10)(iii).............. DHS is proposing to institute certain Costs:
mandatory and discretionary bars to USCIS adjudicators
approval of an H-2A or H-2B petition. may require additional time
associated with reviewing
information regarding
debarment and other past
violation determinations
more closely, issuing RFEs
or NOIDs, and conducting the
discretionary analysis for
relevant petitions.
The expansion of
violation determinations
that could be considered
during adjudication, as well
as the way debarments and
other violation
determinations would be
tracked, would require some
computer system updates
resulting in costs to USCIS.
Benefit:
Possibly increase
compliance with H-2 program
requirements, thereby
increasing protection of H-2
workers.
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8 CFR 214.2(h)(2)(ii) and (iii), 8 Eliminate the lists of countries eligible Costs:
CFR 214.2(h)(5)(i)(F), and 8 CFR to participate in the H-2 programs. None expected.
214.2(h)(6)(i)(E). Benefit:
Employers and the
Federal Government will
benefit from the
simplification of Form I-129
adjudications by eliminating
the ``national interest''
portion of the adjudication
that USCIS is currently
required to conduct for
beneficiaries from countries
that are not on the lists.
Remove petitioner
burden to provide evidence
for beneficiaries from
countries not on the lists.
Petitioners may have
increased access to workers
potentially available to the
H-2 programs.
Free up agency
resources devoted to
developing and publishing
the eligible country lists
in the Federal Register
every year.
8 CFR 214.2(h)(5)(viii)(B) and 8 CFR Change grace periods such that they will Costs: \1\
214.2(h)(6)(vii)(A). be the same for both H-2A and H-2B H-2A employers may
8 CFR 214.2(h)(11)(iv) and 8 CFR Programs. face additional costs such
214.2(h)(13)(i)(C). Create a 60-day grace period following any as for housing, but
H-2A or H-2B revocation or cessation of employers likely would weigh
employment during which the worker will those costs against the
not be considered to have failed to benefit of providing
maintain nonimmigrant status and will not employees with additional
accrue any unlawful presence solely on time to prepare for the
the basis of the revocation or cessation. start of work.
Benefit:
Provides employees
(and their employers) with
extra time to prepare for
the start of work. Provides
clarity for adjudicators and
makes timeframes consistent
for beneficiaries and
petitioners.
Provides workers
additional time to seek
other employment or depart
from the United States if
their employer faces a
revocation or if they cease
employment.
8 CFR 214.2(h)(11)(iv)............... Clarifies responsibility of H-2A employers Costs:
for reasonable costs of return None expected since
transportation for beneficiaries H-2A petitioning employers
following a petition revocation. are already generally liable
for the return
transportation costs of H-2A
workers.
Benefit:
Beneficiaries would
benefit in the event that
clarified employer
responsibility decreased the
incidence of workers having
to pay their own return
travel costs in the event of
a petition revocation.
8 CFR 214.2(h)(16)(i)................ Clarifies that H-2 workers may take steps Costs:
toward becoming a lawful permanent None expected.
resident of the United States while still Benefit:
maintaining lawful nonimmigrant status. DHS expects this
could enable some H-2
workers who have otherwise
been dissuaded to pursue
lawful permanent residence
with the ability to do so
without concern over
becoming ineligible for H-2
status.
8 CFR 214.2(h)(5)(viii)(C), 8 CFR Eliminates the ``interrupted stay'' Costs:
214.2(h)(6)(vii), and 8 CFR calculation and instead reduces the Workers in active H-
214.2(h)(13)(i)(B). period of absence to reset an 2 status who would consider
individual's 3-year period of stay. making trips abroad for
periods of less than 60 days
but more than 45 days, may
be disincentivized to make
such trip.
.......................................... Benefit:
Simplifies and
reduces the burden to
calculate beneficiary
absences for petitioners,
beneficiaries, and
adjudicators.
May reduce the
number of RFEs related to 3-
year periods of stay.
.......................................... Transfers:
As a result of a
small number of H-2 workers
at the 3-year maximum stay
responding to the proposed
shorter absence requirement
by working 30 additional
days, DHS estimates upper
bound annual transfer
payment of $2,918,958 in
additional earnings from
consumers to H-2 workers and
$337,122 in tax transfers
from these workers and their
employers to tax programs
(Medicare and Social
Security).
[[Page 65044]]
8 CFR 214.2(h)(2)(i)(D), 8 CFR Make portability permanent for H-2B Costs:
214.2(h)(2)(i)(I), and 8 CFR workers and remove the requirement that H- The total estimated
274a.12(b)(21). 2A workers can only port to an E-Verify annual opportunity cost of
employer. time to file Form I-129 by
human resource specialists
is approximately $40,418.
The total estimated annual
opportunity cost of time to
file Form I-129 and Form G-
28 will range from
approximately $90,554 if
filed by in-house lawyers to
approximately $156,132 if
filed by outsourced lawyers.
The total estimated
annual costs associated with
filing Form I-907 if it is
filed with Form I-129 is
$4,728 if filed by human
resource specialists. The
total estimated annual costs
associated with filing Form
I-907 would range from
approximately $9,006 if
filed by an in-house lawyer
to approximately $15,527 if
filed by an outsourced
lawyer.
The total estimated
annual costs associated with
the portability provision
ranges from $133,684 to
$198,851, depending on the
filer.
DHS may incur some
additional adjudication
costs as more petitioners
will likely file Form I-129.
However, these additional
costs to USCIS are expected
to be covered by the fees
paid for filing the form.
.......................................... Benefit:
Enabling H-2 workers
present in the United States
to port to a new petitioning
employer affords these
workers agency of choice at
an earlier moment in time
consistent with other
portability regulations and
more similar to other
workers in the labor force.
Replacing the E-
Verify requirement for
employers wishing to hire
porting H-2A workers with
strengthened site visit
authority and other
provisions that maintain
program integrity would aid
porting beneficiaries in
finding petitioners without
first needing to confirm if
that employer is in good
standing in E-Verify.
Although this change impacts
an unknown portion of new
petitions for porting H-2A
beneficiaries, no reductions
in E-Verify enrollment are
anticipated.
An H-2 worker with
an employer that is not
complying with H-2 program
requirements would have
additional flexibility in
porting to another
employer's certified
position.
Transfers:
Annual undiscounted
transfers of $636,760 from
filing fees for Form I-129
combined with Form I-907
from petitioners to USCIS.
8 CFR 214.2(h)(2)(i)(I)(3)........... DHS proposes to clarify that a beneficiary Benefits:
of an H-2 portability petition is Provides H-2 workers
considered to have been in a period of with requisite protections
authorized stay during the pendency of and benefits as codified in
the petition and that the petitioner must the rule in the event that a
still abide by all H-2 program porting provision is
requirements. withdrawn or denied.
Costs:
None expected.
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[[Page 65045]]
Cumulative Impacts of Proposed Regulatory Changes
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DHS proposes to make changes to the Form I-129, to effectuate the proposed Costs:
regulatory changes. The time burden to
complete and file Form I-
129, H Classification
Supplement, would increase
by 0.3 hours as a result of
the proposed changes. The
estimated opportunity cost
of time for each petition by
type of filer would be
$15.28 for an HR specialist,
$34.25 for an in-house
lawyer, and $59.06 for an
outsourced lawyer. The
estimated total annual
opportunity costs of time
for petitioners or their
representatives to file H-2
petitions under this
proposed rule ranges from
$745,330 to $985,540.
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Petitioners or their representatives would familiarize themselves with the rule.. Costs:
Petitioners or their
representatives would need
to read and understand the
rule at an estimated
opportunity cost of time
that ranges from $9,739,715
to $12,877,651, incurred
during the first year of the
analysis.
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Source: USCIS analysis.
III. Background
A. Legal Authority
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\1\ USCIS does not expect any additional costs to H-2B employers
as, generally, they do not have to provide housing for workers.
Employers are required to provide housing at no cost to H-2A
workers. See INA sec. 218(c)(4), 8 U.S.C. 1188(c)(4). There is no
similar statutory requirement for employers to provide housing to H-
2B workers, although there is a regulatory requirement for an H-2B
employer to provide housing when it is primarily for the benefit or
convenience of the employer. See 20 CFR 655.20(b), (c); 29 CFR
531.3(d)(1); 80 FR 24042, 24063 (Apr. 29, 2015).
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The Immigration and Nationality Act (INA or the Act) section
101(a)(15)(H)(ii)(a) and (b), 8 U.S.C. 1101(a)(15)(H)(ii)(a) and (b),
establishes the H-2A and H-2B nonimmigrant visa classifications for
noncitizens \2\ who are coming to the United States temporarily to
perform agricultural labor or services or to perform nonagricultural
services or labor, respectively.
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\2\ For purposes of this discussion, DHS uses the term
``noncitizen'' as synonymous with the term ``alien'' as it is used
in the INA and regulations. See INA sec. 101(a)(3), 8 U.S.C.
1101(a)(3).
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The Secretary's authority for this proposed rule can be found in
various provisions of the immigration laws. INA sec. 103(a), as
amended, 8 U.S.C. 1103(a), provides the Secretary general authority to
administer and enforce the immigration laws and to issue regulations
necessary to carry out that authority. Section 402 of the Homeland
Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, 6
U.S.C. 202, charges the Secretary with ``[e]stablishing and
administering rules . . . governing the granting of visas or other
forms of permission . . . to enter the United States'' and
``[e]stablishing national immigration enforcement policies and
priorities.'' See also HSA sec. 428, 6 U.S.C. 236. The HSA also
provides that a primary mission of DHS is to ``ensure that the overall
economic security of the United States is not diminished by efforts,
activities, and programs aimed at securing the homeland.'' HSA sec.
101(b)(1)(F), 6 U.S.C. 111(b)(1)(F).
With respect to nonimmigrants in particular, the INA provides that
``[t]he admission to the United States of any alien as a nonimmigrant
shall be for such time and under such conditions as the [Secretary] may
by regulations prescribe.'' \3\ INA sec. 214(a)(1), 8 U.S.C.
1184(a)(1). See INA secs. 274A(a)(1) and (h)(3), 8 U.S.C. 1324a(a)(1)
and (h)(3) (prohibiting employment of noncitizens who are not
authorized for employment). And the HSA transferred to USCIS the
authority to adjudicate petitions for H-2 nonimmigrant status,
establish policies for performing that function, and set national
immigration services policies and priorities. See HSA secs. 451(a)(3),
(b); 6 U.S.C. 271(a)(3), (b). In addition, under INA sec. 214(b), 8
U.S.C. 1184(b), every noncitizen, with the exception of noncitizens
seeking L, V, or H-1B nonimmigrant status, is presumed to be an
immigrant unless the noncitizen establishes the noncitizen's
entitlement to a nonimmigrant status.\4\ INA sec. 214(c)(1), 8 U.S.C.
1184(c)(1), establishes the nonimmigrant petition process as a
prerequisite for obtaining (H), (L), (O), or (P)(i) nonimmigrant status
(except for those in the H-1B1 classification). This statutory
provision provides the Secretary of Homeland Security with exclusive
authority to approve or deny H-2 nonimmigrant visa petitions after
consultation with the appropriate agencies of the Government. It also
authorizes the Secretary to prescribe the form and identify information
necessary for the petition. With respect to the H-2A classification,
this section defines the term ``appropriate agencies of [the]
Government'' to include the Departments of Labor and Agriculture, and
cross-references INA sec. 218, 8 U.S.C. 1188, with respect to the H-2A
classification.
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\3\ Although several provisions of the INA discussed in this
NPRM refer exclusively to the ``Attorney General,'' such provisions
are now to be read as referring to the Secretary of Homeland
Security by operation of the HSA. See 6 U.S.C. 202(3), 251, 271(b),
542 note, 557; 8 U.S.C. 1103(a)(1), (g), 1551 note; Nielsen v.
Preap, 139 S. Ct. 954, 959 n.2 (2019).
\4\ This section also precludes officers or employees of any
foreign governments or of any international organizations entitled
to enjoy privileges, exemptions, and immunities under the
International Organizations Immunities Act [22 U.S.C. 288 et seq.],
or noncitizens who are attendants, servants, employees, or member of
the immediate family of such noncitizens from applying for or
receiving nonimmigrant visas or entering the United States as
immigrants unless they execute a written waiver in the same form and
substance as is prescribed by section 1257(b) of this title. This
portion of the provision, however, is not relevant to this NPRM.
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INA sec. 214(c)(5)(A), 8 U.S.C. 1184(c)(5)(A), requires the
employer to provide or pay for the reasonable cost of return
transportation if an H-2B worker was dismissed early from employment,
i.e., before the end of the authorized period of admission.
[[Page 65046]]
INA sec. 214(c)(14), 8 U.S.C. 1184(c)(14), provides the Secretary
of Homeland Security with the authority to impose administrative
remedies (including civil monetary penalties), and deny petitions for a
period of at least 1 but not more than 5 years, if, after notice and an
opportunity for a hearing, the Secretary finds that an employer
substantially failed to meet any of the conditions of the H-2B petition
or engaged in willful misrepresentation of a material fact in the H-2B
petition. See INA sec. 214(c)(14)(A)(i) and (ii), 8 U.S.C.
1184(c)(14)(A)(i) and (ii). It also authorizes the Secretary to
delegate to the Secretary of Labor the authority to determine
violations and impose administrative remedies, including civil monetary
penalties. See INA sec. 214(c)(14)(B), 8 U.S.C. 1184(c)(14)(B).\5\ The
Secretary of Homeland Security may designate officers or employees to
take and consider evidence concerning any matter that is material or
relevant to the enforcement of the INA. See INA secs. 235(d)(3),
287(a)(1), (b); 8 U.S.C. 1225(d)(3), 1357(a)(1), (b).
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\5\ In 2009, the Secretary delegated to the Secretary of Labor
certain authorities under INA sec. 214(c)(14)(A)(i). See
``Delegation of Authority to the Department of Labor under Section
214(c)(14)(A) of the Immigration and Nationality Act'' (Jan. 16,
2009).
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B. Description of the H-2 Nonimmigrant Classifications
1. H-2A Temporary Agricultural Workers
The INA establishes the H-2A nonimmigrant classification for
temporary agricultural workers, described as a noncitizen ``having a
residence in a foreign country which he [sic] has no intention of
abandoning who is coming temporarily to the United States to perform
agricultural labor or services.'' INA sec. 101(a)(15)(H)(ii)(a), 8
U.S.C. 1101(a)(15)(H)(ii)(a). As noted in the statute, not only must
the noncitizen be coming ``temporarily'' to the United States, but the
agricultural labor or services that the noncitizen is performing must
also be ``of a temporary or seasonal nature.'' INA sec.
101(a)(15)(H)(ii)(a).
Current DHS regulations further define an employer's temporary need
as employment that is of a temporary nature where the employer's need
to fill the position with a temporary worker will, except in
extraordinary circumstances, last no longer than 1 year. See 8 CFR
214.2(h)(5)(iv)(A). An employer's seasonal need is defined as
employment that is tied to a certain time of year by an event or
pattern, such as a short annual growing cycle or a specific aspect of a
longer cycle and requires labor levels above those necessary for
ongoing operations. Id. There is no annual limit or ``cap'' on the
number of noncitizens who may be issued H-2A visas or otherwise
provided H-2A status (such as through a change from another
nonimmigrant status, see INA sec. 248, 8 U.S.C. 1258).
2. H-2B Temporary Nonagricultural Workers
Similarly, the INA establishes the H-2B nonimmigrant classification
for temporary nonagricultural workers, described as a noncitizen
``having a residence in a foreign country which he has no intention of
abandoning who is coming temporarily to the United States to perform
other temporary [nonagricultural] service or labor if unemployed
persons capable of performing such service or labor cannot be found in
this country.'' INA sec. 101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b). Current DHS regulations define an employer's
temporary need as employment that is of a temporary nature where the
employer's need to fill the position with a temporary worker generally
will last no longer than 1 year, unless the employer's need is a one-
time event, in which case the need could last up to 3 years. See 8 CFR
214.2(h)(1)(ii)(D), (h)(6)(ii), and (h)(6)(vi)(D).
Unlike the H-2A classification, there is a statutory annual limit
or ``cap'' on the number of noncitizens who may be issued H-2B visas or
otherwise provided H-2B status. Specifically, the INA sets the annual
number of noncitizens who may be issued H-2B visas or otherwise
provided H-2B status at 66,000, to be distributed semi-annually
beginning in October and April. See INA sec. 214(g)(1)(B) and (g)(10),
8 U.S.C. 1184(g)(1)(B) and (g)(10). With certain exceptions,\6\ up to
33,000 noncitizens 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, including any unused nonimmigrant H-2B
visas from the first half of a fiscal year, will be available for
employers seeking to hire H-2B workers during the second half of the
fiscal year.\7\ If insufficient petitions are approved to use all
available H-2B numbers in a given fiscal year, the unused numbers
cannot be carried over for petition approvals for employment start
dates beginning on or after the start of the next fiscal year.
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\6\ Generally, workers in the United States in H-2B status who
extend their stay, change employers, or change the terms and
conditions of employment will not be subject to the cap. See 8 CFR
214.2(h)(8)(ii). Similarly, H-2B workers who have previously been
counted against the cap in the same fiscal year that the proposed
employment begins will not be subject to the cap if the employer
names them on the petition and indicates that they have already been
counted. See 8 CFR 214.2(h)(8)(ii). The spouse and children of H-2B
workers, classified as H-4 nonimmigrants, also do not count against
the cap.
Additionally, petitions for the following types of workers are
exempt from the H-2B cap: Fish roe processors, fish roe technicians,
or supervisors of fish roe processing; and workers performing labor
or services in the Commonwealth of Northern Mariana Islands or Guam
until Dec. 31, 2029. See Section 14006 of Public Law 108-287, 118
Stat. 951, 1014 (Aug. 5, 2004), and Section 3 of the Northern
Mariana Islands U.S. Workforce Act of 2018, Pub. L. 115-218, 132
Stat. 1547, 1547 (July 24, 2018).). Once the H-2B cap is reached,
USCIS may only accept petitions for H-2B workers who are exempt or
not subject to the H-2B cap.
\7\ The Federal Government's fiscal year runs from October 1 of
the prior calendar year through September 30 of the year being
described. For example, fiscal year 2023 runs from October 1, 2022,
through September 30, 2023.
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3. Temporary Labor Certification (TLC) Process
H-2 workers may not displace qualified, available U.S. workers who
are capable of performing such services or labor. See INA secs.
101(a)(15)(H)(ii)(a)-(b), 8 U.S.C. 1101 (a)(15)(H)(ii)(a)-(b), and
218(a)(1), 8 U.S.C. 1188(a)(1); 8 CFR 214.2(h)(5)(ii) \8\ and
(h)(6)(i). In addition, H-2 employment may not adversely affect the
wages and working conditions of workers in the United States. See INA
sec. 218(a)(1)(B), 8 U.S.C. 1188(a)(1)(B) (H-2A); INA sec.
101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b) (H-2B); 8 CFR
214.2(h)(5)(ii) and (h)(6)(i). DHS regulations provide that an H-2A or
H-2B petition for temporary employment in the United States must be
accompanied by an approved TLC from DOL, issued pursuant to regulations
established at 20 CFR part 655, or from the Guam Department of Labor
(GDOL) for H-2B workers who will be employed on Guam. See, e.g., 8 CFR
214.2(h)(5)(i)(A), (h)(6)(iii)(A), (C)-(E), (h)(6)(iv)(A), (v)(A). See
generally INA secs. 103(a)(6), 214(c)(1), 8 U.S.C. 1103(a)(6),
1184(c)(1). The TLC serves as DHS's consultation with DOL or GDOL with
respect to whether a qualified U.S. worker is available to fill the
petitioning
[[Page 65047]]
H-2A or H-2B employer's job opportunity and whether a foreign worker's
employment in the job opportunity will adversely affect the wages and
working conditions of similarly employed workers in the United States.
See INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(5)(ii),
(h)(6)(iii)(A), and (h)(6)(v).
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\8\ INA sec. 218 governs the temporary agricultural labor
certifications issued by the Department of Labor (DOL). That section
is implemented through regulations at 20 CFR part 655, subpart B and
29 CFR part 501. By issuing a temporary agricultural labor
certification referenced in 8 CFR 214.2(h)(5)(ii), DOL binds the
employer to comply with a variety of program obligations, including
the prohibition against the layoff of U.S. workers, and several
provisions related to the recruitment and hiring of U.S. workers.
See 20 CFR 655.135(g); see also 20 CFR 655.135(a), (b), (c), (d),
and (h).
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4. Current H-2 Petition Procedures
Employers must petition DHS for classification of prospective
temporary workers as H-2A or H-2B nonimmigrants. See INA sec.
214(c)(1), 8 U.S.C. 1184(c)(1). After receiving an approved TLC, the
employer listed on the TLC or the employer's U.S. agent (``H-2
petitioner'') must file the H-2 petition with the appropriate USCIS
office. See 8 CFR 214.2(h)(2)(i), (h)(5)(i)(A), (h)(6)(iii)(E), and
(h)(6)(vi). The H-2 petitioner must be a U.S. employer, a U.S. agent
meeting the requirements of 8 CFR 214.2(h)(2)(i)(F), or a foreign
employer filing through a U.S. agent. See 8 CFR 214.2(h)(2)(i)(A),
(5)(i)(A) and (h)(6)(iii)(B). The H-2 petitioner may request one or
more named or unnamed H-2 workers, but the total number of workers may
not exceed the number of positions listed on the TLC. See 8 CFR
214.2(h)(2)(ii) and (iii), (h)(5)(i)(B), and (h)(6)(viii). H-2
petitioners must identify by name the H-2 worker if the worker is in
the United States or, under current DHS regulations, if the H-2 worker
is a national of a country that is not designated as an H-2
participating country. See 8 CFR 214.2(h)(2)(iii). Generally, USCIS
must approve this petition before the beneficiary can be considered
eligible for an H-2A or H-2B visa or for H-2A or H-2B nonimmigrant
status.
Once the petition is approved, under the INA and current DHS
regulations, H-2 workers are limited to employment with the employer
listed on the H-2 petition. See INA sec. 214(c)(1), 8 U.S.C.
1184(c)(1); 8 CFR 214.2(h)(1)(i); 8 CFR 274a.12(b)(9). An H-2
petitioner generally may submit a new H-2 petition, with a new,
approved TLC, to USCIS to request an extension of H-2 nonimmigrant
status for the validity of the TLC or for a period of up to 1 year. See
8 CFR 214.2(h)(15)(ii)(C). The H-2 petitioner must name the worker on
the new H-2 petition because the H-2 worker is in the United States and
requesting an extension of stay. For H-2A petitioners only, in the
event of an emergent circumstance, the petitioner may request an
extension to continue employment with the same employer not to exceed 2
weeks without first having to obtain an additional approved TLC from
DOL if certain criteria are met, by submitting the new H-2A petition.
See 8 CFR 214.2(h)(5)(x).
5. Admission and Limitations of Stay
Upon USCIS approval of the H-2 petition and the H-2 worker's
admission to the United States or grant of status under the respective
H-2 classification, the employer or U.S. agent may begin to employ the
H-2 worker(s). USCIS has authority to approve the worker's H-2A or H-2B
classification for up to the period authorized on the approved TLC. See
8 CFR 214.2(h)(9)(iii)(B). H-2 workers who are outside of the United
States may apply for a visa with the Department of State (DOS) at a
U.S. Embassy or Consulate abroad, if required, and seek admission to
the United States as an H-2 nonimmigrant with U.S. Customs and Border
Protection (CBP) at a U.S. port of entry. The spouse and children of an
H-2 nonimmigrant, if they are accompanying or following to join an H-2
nonimmigrant, may be admitted into the United States, if they are
otherwise admissible, as H-4 dependents for the same period of
admission (including any extension periods) as the principal spouse or
parent. See 8 CFR 214.2(h)(9)(iv). Thus, H-4 dependents of H-2 workers
are subject to the same limitations on stay, including permission to
remain in the country during the pendency of the new employer's
petition, as the H-2 beneficiary, but generally may not engage in
employment. See 8 CFR 214.2(h)(9)(iv).
In general, a noncitizen's H-2 status is limited by the validity
dates on the approved H-2 petition, typically for a period of up to 1
year. See 8 CFR 214.2(h)(5)(viii)(C), 8 CFR 214.2(h)(6)(iv)(B), 8 CFR
214.2(h)(6)(v)(B), 8 CFR 214.2(h)(9)(iii)(B), and 8 CFR
214.2(h)(15)(ii)(C). H-2A workers may be admitted to the United States
for a period of up to 1 week prior to the beginning validity date
listed on the approved H-2A petition so that they may travel to their
worksites, but H-2A workers may not begin work until the beginning
validity date. H-2A workers may also remain in the United States 30
days beyond the expiration date of the approved H-2A petition to
prepare for departure or to seek an extension of stay or change of
nonimmigrant status but cannot work during this period. See 8 CFR
214.2(h)(5)(viii)(B).
H-2B workers may be admitted to the United States for a period of
up to 10 days prior to the beginning validity date listed on the
approved H-2B petition so that they may travel to their worksites, but
H-2B workers may not begin work until the beginning validity date.
Under current DHS regulations, H-2B workers also may remain in the
United States up to 10 days beyond the expiration date of the approved
H-2B petition to prepare for departure or to seek an extension of stay
or change of nonimmigrant status and also cannot work during this
period. See 8 CFR 214.2(h)(13)(i)(A). Unless otherwise authorized under
8 CFR 274a.12, H-2A and H-2B workers do not have employment
authorization outside of the validity period listed on the approved
petition. See 8 CFR 214.2(h)(5)(viii)(B) and 8 CFR 214.2(h)(13)(i)(A).
The maximum period of stay for a noncitizen in H-2 classification
is 3 years (or 45 days in the U.S. Virgin Islands).\9\ See 8 CFR
214.2(h)(5)(viii)(C), 8 CFR 214.2(h)(13)(iv), and 8 CFR
214.2(h)(15)(C). Generally, once a noncitizen has held H-2 nonimmigrant
status for a total of 3 years, they must depart and remain outside of
the United States for an uninterrupted period of 3 months before
seeking readmission as an H-2 nonimmigrant.\10\ See 8 CFR
214.2(h)(5)(viii)(C) and (h)(13)(iv).
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\9\ Any time an H-2 worker spends in the United States under
section 101(a)(15)(H) or (L) of the Act, 8 U.S.C. 1101(a)(15)(H),
(L), will count towards the 3-year limitation. See 8 CFR
214.2(h)(13)(iv). Time spent in H-4 or L-2 status will not count
towards the 3-year limitation. See USCIS, Additional Guidance on
Determining Periods of Admission for Foreign Nationals Previously
Admitted as H-4 Nonimmigrants who are Seeking H-2 or H-3 Status (PM-
602-0092), https://www.uscis.gov/sites/default/files/document/memos/2013-1111_H-4_Seeking_H-2_or_H-3_Status_PM_Effective_2.pdf.
\10\ If the H-2 worker's accumulated stay is 18 months or less,
an absence of at least 45 days will interrupt the 3-year limitation
on admission. If the accumulated stay is greater than 18 months, an
absence is interruptive if it lasts for at least 2 months. See 8 CFR
214.2(h)(5)(viii)(C) and (13)(iv); see also 8 CFR 214.2(h)(13)(v)
(also excepting from the limitations under 8 CFR 214.2(h)(13)(iii)
and (iv), with respect to H-2B beneficiaries, workers who did not
reside continually in the United States and whose employment in the
United States was seasonal or intermittent or was for an aggregate
of 6 months or less per year, as well as workers who reside abroad
and regularly commute to the United States to engage in part-time
employment).
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C. H-2 2008 Final Rules
In December 2008, DHS published two final rules providing that H-2
petitioners must meet certain requirements for an H-2 petition to be
approved. See Final Rule Changes to Requirements Affecting H-2B
Nonimmigrants and Their Employers, 73 FR 78104 (Dec. 19, 2008); Final
Rule Changes to Requirements Affecting H-2A Nonimmigrants, 73 FR 76891
(Dec. 18, 2008) (collectively ``H-2 2008 Final Rules''). Those rules
addressed a number of issues in the H-2 programs
[[Page 65048]]
such as requiring that H-2 petitions be filed with a valid TLC approved
by either the DOL or GDOL, as appropriate, prohibiting the imposition
of certain fees on H-2 workers, modifying requirements to allow for
unnamed H-2 beneficiaries in the petition, and amending the definition
of ``temporary services or labor,'' among other changes.
DHS, through this proposed rulemaking, seeks to modify several
requirements implemented by the H-2 2008 Final Rules. The following
subsections describe those provisions as they were finalized in the
2008 rules.
1. Prohibited Fees in the H-2 Nonimmigrant Classifications
Under current regulations, USCIS may deny or revoke a petition when
the beneficiary pays, directly or indirectly, certain fees that are
conditions of H-2A employment or, for H-2B workers, as a condition of
an offer of employment. See 8 CFR 214.2(h)(5)(xi) and 8 CFR
214.2(h)(6)(i). The current regulation at 8 CFR 214.2(h)(5)(xi)
prohibits the collection of job placement fees or other compensation
(directly or indirectly) from the beneficiary at any time as a
condition of H-2A employment, including before or after the filing or
approval of the petition. The prohibition applies to the petitioner,
agent, facilitator, recruiter, or a similar employment service.
However, the current regulation permits the collection of the lesser of
the fair market value or actual costs of transportation and any
government-mandated passport, visa, or inspection fees so long as the
payment of such fees is not prohibited by statute or DOL regulations,
unless the employer agent, facilitator, recruiter, or similar
employment service has agreed with the noncitizen to pay such costs and
fees. The current regulation at 8 CFR 214.2(h)(6)(i)(B) contains
largely identical language applicable to H-2B petitions, but omits
mention of the ``Department of Labor.'' \11\
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\11\ The regulations at 20 CFR 655.20(o) (H-2B); 20 CFR
655.135(j) (H-2A); and 29 CFR 503.16(o) (H-2B) contain similar
prohibited fee provisions for H-2 employers. In addition, the
regulations at 20 CFR 655.20(j) and 29 CFR 655.16(j) (H-2B) and 20
CFR 655.122(h) (H-2A) prohibit, with certain limitations, the
collection of transportation and visa fees.
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Under current DHS regulations, where such prohibited fees have been
collected or the petitioner has entered into an agreement to collect
such prohibited fees, including through a deduction or withholding from
a worker's wages, an H-2 petition will be denied or revoked on notice
unless the petitioner demonstrates that, prior to the filing of the
petition, it has reimbursed the beneficiary in full or, where such fee
or compensation has not yet been paid by the beneficiary, that the
agreement has been terminated. See 8 CFR 214.2(h)(5)(xi)(A)(1) and 8
CFR 214.2(h)(6)(i)(B)(1). Generally, the H-2 petition will be denied or
revoked if the petitioner knew or should have known that the
beneficiary has paid or agreed to pay the prohibited fee as a condition
of employment (or, in the H-2B context, as a condition of an offer of
employment). See 8 CFR 214.2(h)(5)(xi)(2)-(4) and 8 CFR
214.2(h)(6)(i)(B)(2)-(4).
2. H-2 Eligible Countries Lists
USCIS may generally only approve H-2 petitions for nationals of
countries that the Secretary of Homeland Security, with the concurrence
of the Secretary of State, has designated through a notice published in
the Federal Register as countries eligible to participate in the
respective H-2A and H-2B programs. See 8 CFR 214.2(h)(5)(i)(F)(1)(i)
and 8 CFR 214.2(h)(6)(i)(E)(1). This Federal Register notice is
effective for 1 year after publication. See 8 CFR 214.2(h)(5)(i)(F)(2)
and 8 CFR 214.2 (h)(6)(i)(E)(3). In designating countries whose
nationals can participate in the H-2 programs, DHS takes into account
several factors including, but not limited to: (1) the country's
cooperation with respect to issuance of travel documents for citizens,
subjects, nationals and residents of that country who are subject to a
final order of removal; (2) the number of final and unexecuted orders
of removal against citizens, subjects, nationals, and residents of that
country; (3) the number of orders of removal executed against citizens,
subjects, nationals, and residents of that country; and (4) such other
factors as may serve the U.S. interest. See 8 CFR
214.2(h)(5)(i)(F)(1)(i) and 8 CFR 214.2(h)(6)(i)(E)(1).
Petitioners who seek H-2 workers from countries that are not
designated as eligible to participate in the applicable H-2 program
must meet additional criteria showing that it is in the U.S. interest
to employ such workers. See 8 CFR 214.2(h)(5)(i)(F)(1)(ii) and 8 CFR
214.2(h)(6)(i)(E)(2). In determining what is in the U.S. interest for
purposes of these provisions, the Secretary of Homeland Security has
sole and unreviewable discretion to take into account factors
including, but not limited to: (1) evidence from the petitioner
demonstrating that a worker with the required skills is not available
either from among U.S. workers or from among foreign workers from a
country currently on the lists described in 8 CFR
214.2(h)(5)(i)(F)(1)(i) and 8 CFR 214.2(h)(6)(i)(E)(1); (2) evidence
that the beneficiary has been admitted to the United States previously
in H-2 status; (3) the potential for abuse, fraud, or other harm to the
integrity of the applicable H-2 visa program through the potential
admission of a beneficiary from a country not currently designated as
eligible; and (4) such other factors as may serve the U.S. interest.
See 8 CFR 214.2(h)(5)(i)(F)(1)(ii) and 8 CFR 214.2(h)(6)(i)(E)(2).
Petitions for workers from designated countries and undesignated
countries should be filed separately. See 8 CFR 214.2(h)(2)(ii). H-2
petitioners must name the H-2 worker if the H-2 worker is a national of
a country that is not designated as an H-2 participating country. See 8
CFR 214.2(h)(2)(iii). USCIS reviews each petition naming a national
from a country not on the lists and all supporting documentation and
makes a determination on a case-by-case basis.
Subsequent to the publication of the H-2 2008 Final Rules, DHS has
published annual notices in the Federal Register that designate certain
countries as participants in the H-2 programs. In December 2008, DHS
first published in the Federal Register two notices: Identification of
Foreign Countries Whose Nationals Are Eligible to Participate in the H-
2A Visa Program, and Identification of Foreign Countries Whose
Nationals Are Eligible to Participate in the H-2B Visa Program, which
designated 28 countries whose nationals were eligible to participate in
the H-2A and H-2B programs. See 73 FR 77043 (Dec. 18, 2008); 73 FR
77729 (Dec. 19, 2008). The notices ceased to have effect on January 17,
2010, and January 18, 2010, respectively. DHS has published a notice
each year from 2010 through the present, in which various countries
have been added or removed from the lists of countries eligible for
participation in the H-2 programs. DHS published its most recent notice
on November 10, 2022, and announced that the Secretary of Homeland
Security, in consultation with the Secretary of State, identified 86
countries whose nationals are eligible to participate in the H-2A
program and 87 countries whose nationals are eligible to participate in
the H-2B program for 1 year ending November 9, 2023. See Identification
of Foreign Countries Whose Nationals Are Eligible To Participate in the
H-2A and H-2B Nonimmigrant Worker Programs, 87 FR 67930 (Nov. 10,
2022).
The notices provide examples of specific factors serving the U.S.
interest that are taken into account when considering whether to
designate or terminate the designation of a country, which include, but
are not limited to:
[[Page 65049]]
fraud (such as fraud in the H-2 petition or visa application process by
nationals of the country, the country's level of cooperation with the
U.S. Government in addressing H-2-associated visa fraud, and the
country's level of information sharing to combat immigration-related
fraud); nonimmigrant visa overstay rates for nationals of the country
(including but not limited to H-2A and H-2B nonimmigrant visa overstay
rates); and non-compliance with the terms and conditions of the H-2
visa programs by nationals of the country.
3. H-2A Employers Who are Participants in Good Standing in E-Verify
The 2008 H-2A final rule (but not the H-2B final rule) included a
provision allowing H-2A workers who are lawfully present in the United
States to begin work with a new petitioning employer upon the filing of
a new H-2A petition naming the worker, before petition approval,
provided that the new employer is a participant in good standing in E-
Verify.\12\ See 8 CFR 214.2(h)(2)(i)(D) and 8 CFR 274a.12(b)(21). In
such a case, the H-2A worker's employment authorization continues for a
period not to exceed 120 days beginning on the ``Received Date'' on
Form I-797, Notice of Action, which acknowledges the receipt of the new
H-2A extension petition. Except for the new employer and worksite, the
employment authorization extension remains subject to the same
conditions and limitations indicated on the initial H-2A petition. The
employment authorization extension will terminate automatically if the
new employer fails to remain a participant in good standing in E-
Verify, as determined by USCIS in its discretion, or after 15 days if
USCIS denies the extension request prior to the expiration of the 120-
day period.
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\12\ See Changes to Requirements Affecting H-2A Nonimmigrants,
73 FR 76891, 76905 (Dec. 8, 2008).
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D. Importance of the H-2 Programs and the Need for Reforms
DHS recognizes that the H-2A and H-2B programs play a critical role
in the U.S. economy, allowing foreign workers to fill temporary jobs
for which U.S. workers are not available and qualified. Reflective of
their importance, the H-2A and H-2B programs have experienced
significant growth since DHS published the H-2 2008 Final Rules. For
instance, DOS data indicate that the number of H-2A visas issued has
increased by over 365 percent over the last decade, reaching 257,898
visas issued in fiscal year (FY) 2021, compared to 55,384 visas issued
in fiscal year 2011.\13\ With regard to the H-2B program, because
Congress has capped the number of H-2B visas available, the number of
H-2B visas issued has not increased at the same rate as H-2A visas.
Yet, DOS data indicate that issuance of H-2B visas nearly doubled
between fiscal year 2011 (50,826 visas) and fiscal year 2021 (95,053
visas).\14\ Because the recent demand for H-2B visas has regularly far-
exceeded the statutory cap, Congress has repeatedly provided limited
authority to DHS, in consultation with DOL and based on the needs of
American businesses, to increase the number of H-2B visas available to
U.S. employers over the last several years.\15\
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\13\ See DOS, Nonimmigrant Visas Issued by Classification
(Including Crewlist Visas and Border Crossing Cards) Fiscal Years
2007-2011, https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2011AnnualReport/FY11AnnualReport-Table%20XVI(B).pdf; DOS, Nonimmigrant Visas Issued by Classification
(Including Border Crossing Cards) Fiscal Years 2017-2021, https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2021AnnualReport/FY21_%20TableXVB.pdf.
\14\ See DOS, Nonimmigrant Visas Issued by Classification
(Including Crewlist Visas and Border Crossing Cards) Fiscal Years
2007-2011, https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2011AnnualReport/FY11AnnualReport-Table%20XVI(B).pdf; DOS, Nonimmigrant Visas Issued by Classification
(Including Border Crossing Cards) Fiscal Years 2017-2021, https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2021AnnualReport/FY21_%20TableXVB.pdf.
\15\ See Consolidated Appropriations Act, 2017, Public Law 115-
31, div. F, sec. 543; Consolidated Appropriations Act, 2018, Public
Law 115-141, div. M, sec. 205; Consolidated Appropriations Act,
2019, Public Law 116-6, div. H, sec. 105; Further Consolidated
Appropriations Act, 2020, Public Law 116-94, div. I, sec. 105;
Consolidated Appropriations Act, 2021, Public Law 116-260, div. O,
sec. 105; sections 101 and 106(3) of Division A of Public Law 117-
43, Continuing Appropriations Act, 2022, Public Law 117-43, div. A,
secs. 101, 106(3); section 101 of Division A of Public Law 117-70,
Further Continuing Appropriations Act, 2022, Public Law 117-70, div.
A, sec. 101; Consolidated Appropriations Act, 2022, Public Law 117-
103, div. O, sec. 204; section 101(6) of Division A of Public Law
117-180, Continuing Appropriations and Ukraine Supplemental
Appropriations Act, 2023, Public Law 117-180, div. A, sec. 101(6);
Consolidated Appropriations Act, 2023, Public Law 117-328, div. O,
sec. 303.
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In addition, in recent years the administration has sought to
expand interest in the H-2 programs as part of its overall strategy to
manage safe, orderly, and humane migration to this country.\16\ For
instance, the U.S. Agency for International Development (USAID)
conducted significant outreach focused on building government capacity
to facilitate access to temporary worker visas under the H-2
programs.\17\ These efforts have successfully encouraged increased use
of the H-2 programs when there are not sufficient qualified and
available U.S. workers.\18\
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\16\ See Executive Order 14010, Creating a Comprehensive
Regional Framework to Address the Causes of Migration, to Manage
Migration Throughout North and Central America, and to Provide Safe
and Orderly Processing of Asylum Seekers at the United States Border
(Feb. 2, 2021), https://www.govinfo.gov/content/pkg/FR-2021-02-05/pdf/2021-02561.pdf; National Security Council, Collaborative
Migration Management Strategy (July 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf.
\17\ In addition to other efforts, when exercising the delegated
authority Congress granted it under separate legislation noted above
to increase the number of H-2B visas available in a given fiscal
year, DHS and DOL used that authority to create specific H-2B visa
allocations in furtherance of its efforts to address irregular
migration. See Exercise of Time-Limited Authority To Increase the
Fiscal Year 2021 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 86 FR 28198 (May 25, 2021);
Exercise of Time-Limited Authority To Increase the Fiscal Year 2022
Numerical Limitation for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To
Change Employers, 87 FR 4722 (Jan. 28, 2022); Exercise of Time-
Limited Authority To Increase the Fiscal Year 2022 Numerical
Limitation for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking To Change
Employers, 87 FR 6017 (Feb. 3, 2022) (correction); Exercise of Time-
Limited Authority To Increase the Numerical Limitation for Second
Half of FY 2022 for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To
Change Employers, 87 FR 30334 (May 18, 2022); Exercise of Time-
Limited Authority To Increase the Numerical Limitation for FY 2023
for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking To Change
Employers, 87 FR 76816 (Dec. 15, 2022); and Exercise of Time-Limited
Authority To Increase the Numerical Limitation for FY 2023 for the
H-2B Temporary Nonagricultural Worker Program and Portability
Flexibility for H-2B Workers Seeking To Change Employers;
Correction, 87 FR 77979 (Dec. 21, 2022) (correction).
\18\ See USAID, Administrator Samantha Power at the Summit of
the Americas Fair Recruitment and H-2 Visa Side Event, https://www.usaid.gov/news-information/speeches/jun-9-2022-administrator-samantha-power-summit-americas-fair-recruitment-and-h-2-visa (June
9, 2022) (``Our combined efforts [with the labor ministries in
Honduras and Guatemala, and the Foreign Ministry in El Salvador] . .
. resulted in a record number of H-2 visas issued in 2021, including
a nearly forty percent increase over the pre-pandemic levels in H-2B
visas issued across all three countries.'').
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At the same time, the administration has consistently recognized
the need to balance the expanded use of the H-2 programs with greater
protections for workers. The National Security Council noted in its
Collaborative Migration Management Strategy that expansion of access to
nonimmigrant work visas ``must also address the vulnerability of
workers to abusive labor practices.'' \19\ In guidance promoting
implementation of best practices by employers and by governments
seeking to increase participation in the H-2 visa programs,
[[Page 65050]]
DOS, USAID, and DOL emphasized that ``[e]xpanding access to [the H-2
programs] and protecting migrant workers' rights are two aspects of the
same agenda.'' \20\
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\19\ See National Security Council, Collaborative Migration
Management Strategy, https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf (July 2021).
\20\ See DOS, USAID, and DOL, Guidance on Fair Recruitment
Practices for Temporary Migrant Workers (June 2022), https://www.dol.gov/sites/dolgov/files/OPA/newsreleases/2022/06/ILAB20220565.pdf; see also U.S. Dep't of Agric., U.S. Department of
Agriculture to Invest up to $65 Million in Pilot Program to
Strengthen Food Supply Chain, Reduce Irregular Migration, and
Improve Working Conditions for Farmworkers (June 10, 2022) (``Strong
working conditions are critical to the resiliency of the food and
agricultural supply chain. Through this pilot program, [U.S.
Department of Agriculture] will support efforts to improve working
conditions for both U.S. and H-2A workers and ensure that H-2A
workers are not subjected to unfair recruitment practices.''),
https://www.usda.gov/media/press-releases/2022/06/10/us-department-agriculture-invest-65-million-pilot-program.
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Similarly, in proposing this rule, DHS recognizes that stronger
protections are needed for the nonimmigrant workers who participate in
the H-2 programs.\21\ Numerous reports from Federal Government
entities, migrant worker advocates, media, and other stakeholders have
noted frequent violations of H-2 workers' rights, both in the United
States and prior to admission.\22\ For example, a Federal Government
report found that workers may experience abuses before and after
entering the United States, and during the course of their H-2
employment in the United States.\23\ Reports from advocacy groups found
that many H-2 workers suffer at least one serious violation of their
rights (such as paying prohibited recruitment fees or significant wage
violations) or a form of coercion (such as threats, verbal abuse, and
withholding of documents) during their employment in the United
States.\24\ These reports detail a wide range of violations, from
coercion to paying illegal fees; wage theft; receiving false job
information; \25\ discrimination and harassment; \26\ and being housed
in crowded, unsanitary, and degrading conditions with limited food and
water. Other serious violations include forced labor; being held
captive without personal documents; threats of arrest, deportation, and
violence toward the workers or their families abroad; kidnapping;
sexual abuse; rape; and even death.\27\ Recent court cases serve to
underscore the range and severity of abuses and exploitation faced by
H-2 workers in the United States.\28\
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\21\ See, e.g., DHS, DHS Announces Process Enhancements for
Supporting Labor Enforcement Investigations (Jan. 13, 2023), https://www.dhs.gov/news/2023/01/13/dhs-announces-process-enhancements-supporting-labor-enforcement-investigations.
\22\ See, e.g., GAO, Closed Civil and Criminal Cases Illustrate
Instances of H-2B Workers Being Targets of Fraud and Abuse (GAO-10-
1053) (2010), https://www.gao.gov/assets/gao-10-1053.pdf; GAO,
Increased Protections Needed for Foreign Workers (GAO-15-154)
(2015), https://www.gao.gov/assets/gao-15-154.pdf; Centro de los
Derechos del Migrante, Inc. (CDM), Ripe for Reform: Abuses of
Agricultural Workers in the H-2A Visa Program (2020) (noting
prevalence of ``systemic violations of [H-2A] workers' legal
rights''), https://cdmigrante.org/ripe-for-reform/; Southern Poverty
Law Center, Close to Slavery: Guestworker Programs in the United
States (2013), https://www.splcenter.org/sites/default/files/d6_legacy_files/downloads/publication/SPLC-Close-to-Slavery-2013.pdf
(``The current H-2 program. . ..is rife with labor and human rights
violations committed by employers who prey on a highly vulnerable
workforce.''); Daniel Costa, Temporary work visa programs and the
need for reform: A briefing on program frameworks, policy issues and
fixes, and the impact of COVID-19, Economic Policy Institute (Feb.
3, 2021), https://files.epi.org/pdf/217871.pdf.
\23\ See GAO-15-154 (2015), https://www.gao.gov/assets/gao-15-154.pdf.
\24\ See Polaris, Labor Exploitation and Trafficking of
Agricultural Workers During the Pandemic 6 (2021) (reporting that
available data on likely victims of labor trafficking show that 99
percent experienced some type of coercion), https://polarisproject.org/wp-content/uploads/2021/06/Polaris_Labor_Exploitation_and_Trafficking_of_Agricultural_Workers_During_the_Pandemic.pdf,; CDM, Ripe for Reform 4 (2020) (reporting
data showing that every worker interviewed, even those most
satisfied with their experience, suffered at least one serious legal
violation of their rights), https://cdmigrante.org/ripe-for-reform/;
Polaris, Labor Trafficking on Specific Temporary Work Visas (2022)
(reporting that over 68 percent of H-2B workers identified as likely
victims of labor trafficking reported experiencing coercion),
https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf.
\25\ See GAO-15-154 (2015), https://www.gao.gov/assets/gao-15-154.pdf; CDM, Fake Jobs for Sale: Analyzing Fraud and Advancing
Transparency in U.S. Labor Recruitment 4 (2019), https://cdmigrante.org/wp-content/uploads/2019/04/Fake-Jobs-for-Sale-Report.pdf.
\26\ See CDM, Ripe for Reform (2020), https://cdmigrante.org/ripe-for-reform/. For a report illustrating how women, in
particular, disproportionately face discrimination in the H-2B
program, see CDM, Breaking the Shell: How Maryland's Migrant Crab
Pickers Continue to be ``Picked Apart'' (2020), https://cdmigrante.org/wp-content/uploads/2020/09/Breaking-The-Shell.pdf.
\27\ See, e.g., Polaris, Labor Trafficking on Specific Temporary
Work Visas (2022), https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf; CDM, Ripe for Reform (2020), https://cdmigrante.org/ripe-for-reform/; Polaris, Labor Exploitation and Trafficking of
Agricultural Workers During the Pandemic 6 (2021), https://polarisproject.org/wp-content/uploads/2021/06/Polaris_Labor_Exploitation_and_Trafficking_of_Agricultural_Workers_During_the_Pandemic.pdf.
\28\ See, e.g., Department of Justice (DOJ), U.S. Attorney's
Office, Southern District of Georgia, Three men sentenced to federal
prison on charges related to human trafficking: Each admitted to
role in forced farm labor in Operation Blooming Onion (Mar. 31,
2022) (involving forced labor, keeping workers in substandard
conditions, kidnapping, and rape, among other abuses), https://www.justice.gov/usao-sdga/pr/three-men-sentenced-federal-prison-charges-related-human-trafficking; DOJ, Three Defendants Sentenced
in Multi-State Racketeering Conspiracy Involving the Forced Labor of
Mexican Agricultural H-2A Workers (Oct. 27, 2022) (involving forced
labor, imposing debts on workers, and subjecting workers to crowded,
unsanitary, and degrading living conditions), https://www.justice.gov/opa/pr/three-defendants-sentenced-multi-state-racketeering-conspiracy-involving-forced-labor-mexican; DOL, Order
Finding Civil Contempt and Imposing Stop Work Order, No. 1:19-cv-
00007 (D. N. Mar. I. Jan. 21, 2021) (involving extensive wage
violations, substandard living conditions, and threats to withhold
food if workers stopped working, among other abuses), https://www.dol.gov/sites/dolgov/files/SOL/files/IPI%20-%20Stop%20Work%20Order.pdf.
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A U.S. Government study found that the structure of the H-2A and H-
2B programs may create systematic disincentives for workers to report
or leave abusive working conditions.\29\ One disincentive is that
workers are authorized to work only for the petitioning H-2A or H-2B
employer; consequently, the workers cannot freely leave to work for
another employer, nor do they feel free to report mistreatment by their
employer for fear of retaliation or blacklisting (that is, exclusion
from future employment opportunities through the same employer or
recruiter) \30\ despite existing DOL prohibitions on such
retaliation.\31\ Losing their jobs means losing their legal status and
authorization to remain in the United States, and potentially their
ability to work in the United States in the future.\32\ According to
the GAO, workers also fear reporting violations to law enforcement or
government entities due generally to their immigration status and lack
of knowledge about their rights.\33\ Another significant disincentive
identified by the GAO is the workers' incurrence of prohibited fees or
subjection to other recruitment abuses, as workers or their family
members may face retaliation from recruiters or other actors in their
home countries if they do not repay these debts.\34\
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\29\ See GAO-15-154, at 37-38 (2015), https://www.gao.gov/assets/gao-15-154.pdf.
\30\ See GAO-15-154, at 37-38 (2015), https://www.gao.gov/assets/gao-15-154.pdf; CDM, Ripe for Reform 4 (2020), https://cdmigrante.org/ripe-for-reform/.
\31\ See 20 CFR 655.20(n); 655.135(h); and 29 CFR 503.16(n).
\32\ See CDM, Ripe for Reform 4 (2020), https://cdmigrante.org/ripe-for-reform/; CDM, Recruitment Revealed: Fundamental Flaws in
the H-2 Temporary Worker Program and Recommendations for Change 22-
24 (2018), https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf.
\33\ See GAO-15-154, at 51 (2015), https://www.gao.gov/assets/gao-15-154.pdf.
\34\ See GAO-15-154, at 37-38 (2015), https://www.gao.gov/assets/gao-15-154.pdf; CDM, Recruitment Revealed 22-24 (2018),
https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf; CDM, Fake Jobs for Sale, https://cdmigrante.org/wp-content/uploads/2019/04/Fake-Jobs-for-Sale-Report.pdf.
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In a study conducted by migrant worker advocates, a majority of H-2
[[Page 65051]]
workers reported paying recruitment fees, even though charging
recruitment fees to such workers violates current U.S. immigration and
labor regulations.\35\ These types of fees perpetuate the cycle of
exploitation. Reports indicate that many H-2 workers incur substantial
debts before they even get to the United States.\36\ Some recruiters
target individuals already living in impoverished conditions abroad,
often from rural or indigenous communities, further heightening the
workers' vulnerability to exploitation.\37\ Because they incur
substantial debts in connection with (or related to) their seeking to
come to this country as H-2 workers, these workers face economic
hardship, and in many instances, debt bondage when arriving in the
United States.\38\ As a result, these workers are less able or willing
to report or leave poor working conditions or abusive situations.\39\
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\35\ See CDM, Recruitment Revealed 4, 16 (2018), https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf.
This study focused on recruitment in Mexico because Mexico is home
to the largest number of H-2 workers. The H-2 workers surveyed in
this study worked in the U.S. during or after 2006. See also 8 CFR
214.2(h)(5)(xi); 8 CFR 214.2(h)(6)(i); 20 CFR 655.20(o) and (p); and
20 CFR 655.135(j) and (k).
\36\ See, e.g., CDM, Ripe for Reform 19 (2020), https://cdmigrante.org/ripe-for-reform/; CDM, Recruitment Revealed 4, 16
(2018), https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf; GAO-15-154, at 28-29 (2015), https://www.gao.gov/assets/gao-15-154.pdf.
\37\ See CDM, Ripe for Reform 16 (2020), https://cdmigrante.org/ripe-for-reform/. This report highlighted how indigenous workers
face significant challenges primarily due to their language and
cultural differences.
\38\ See, e.g., Changes to Requirements Affecting H-2A
Nonimmigrants, 73 FR 8230, 8233 (Feb. 13, 2008) (``USCIS has found
that certain job recruiters and U.S. employers are charging
potential H-2A workers job placement fees in order to obtain H-2A
employment. . . . USCIS has learned that payment by these workers of
job placement-related fees not only results in further economic
hardship for them, but also, in some instances, has resulted in
their effective indenture.''); GAO-15-154, at 30 (2015), https://www.gao.gov/assets/gao-15-154.pdf; CDM, Recruitment Revealed 4
(2018), https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf (many H-2 workers arrive in the United
States in debt, which may lead to situations of debt servitude or
other abuse); Daniel Costa, Temporary work visa programs and the
need for reform 20 (2021), https://files.epi.org/pdf/217871.pdf
(``Many [workers] are required to pay exorbitant fees to labor
recruiters to secure U.S. employment opportunities, even though such
fees are usually illegal. Those fees leave them indebted to
recruiters or third-party lenders, which can result in a form of
debt bondage.'').
``Debt bondage'' is defined in 22 U.S.C. 7102(7) as ``the status
or condition of a debtor arising from a pledge by the debtor of his
or her personal services or those of a person under his or her
control as security for a debt, if the value of those services as
reasonably assessed is not applied toward the liquidation of the
debt or the length and nature of those services are not respectively
limited and defined.''
\39\ See GAO-15-154 (2015), https://www.gao.gov/assets/gao-15-154.pdf.
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While current regulations already contain provisions on prohibited
fees intended to protect H-2 workers, DHS recognizes that stronger
protections are needed to address many of the reported widespread
abuses and make DHS's authority to address these issues explicit.
Through this proposed rulemaking, DHS seeks to clarify and strengthen
existing provisions on prohibited fees, and furthermore, implement
significant new provisions to increase DHS's ability to deter and hold
accountable certain employers that have been found to have committed
labor law violations and other violations relevant to the H-2 programs,
while providing safeguards for workers reporting that they have been
subject to payment of prohibited fees.
Aside from prohibited fees, there are other harmful employer,
recruiter, or agent behaviors that DHS's current regulations do not
address but that are relevant to eligibility and, in some instances,
should warrant exclusion from the H-2 programs. Multiple sources have
revealed flaws or gaps in the H-2 framework that allow H-2 employers
that have committed serious labor law violations to continue using the
H-2 programs even after the violations.\40\ For instance, a report from
an advocacy group highlighted how an H-2 employer that was the subject
of over 80 complaints of unpaid wages and violations of employment
terms during a single summer season continued using H-2 program to
employ H-2 workers.\41\ A news article detailed how a company with a
history of worker protection violations and vehicle safety violations
(including for improper vehicle maintenance and unsafe driving)
continued to receive approved TLCs to employ H-2 workers, including
within 3 months after it was found responsible for a vehicle crash that
killed some of the H-2 workers it employed.\42\ A labor union report
listed numerous case studies of H-2 employers that continued to receive
approved TLCs despite multitudes of labor violations, some of which
were deemed ``egregious'' and ``serious.'' \43\ While these studies
focused on available data related to employers' receipt of approved
TLCs from DOL, it is apparent to DHS that these and other types of
violations can be directly relevant to whether an employer has the
ability and intent to comply with DHS's H-2 program requirements. These
types of violations should therefore be considered by USCIS in its
adjudication of H-2A and H-2B petitions, regardless of whether DOL has
taken action on the underlying TLCs. The proposed provisions in this
rule, including new bars to approval for prohibited fees as well as for
certain findings of labor law and other violations, and holding
employers responsible for the actions of their recruiters and others in
the recruitment chain, underscore DHS's commitment to addressing
aspects of the H-2 programs that may result in the exploitation of
persons seeking to come to the United States as H-2 workers.\44\
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\40\ See, e.g., AFL-CIO, Comprehensive H-2B Recommendations. See
the docket for this rulemaking for a copy of this letter; Farmworker
Justice, No Way to Treat a Guest: Why the H-2A Agricultural Visa
Program Fails U.S. and Foreign Workers (2012), https://www.farmworkerjustice.org/wp-content/uploads/2012/05/7.2.a.6-No-Way-To-Treat-A-Guest-H-2A-Report.pdf; LIUNA, H-2B Guest Worker Program:
Lack of Accountability Leads to Exploitation of Workers, https://d3ciwvs59ifrt8.cloudfront.net/b156551f-4cfc-4f0e-ab0f-1c05b2955a44/4d0e38cb-1c2b-4b12-924c-279c4e15ce31.pdf.
\41\ See Farmworker Justice, No Way to Treat a Guest (2012),
https://www.farmworkerjustice.org/wp-content/uploads/2012/05/7.2.a.6-No-Way-To-Treat-A-Guest-H-2A-Report.pdf.
\42\ See Ken Bensinger, Jessica Garrison, Jeremy Singer-Vine,
The Pushovers: Employers Abuse Foreign Workers, U.S. Says, By All
Means, Hire More, BuzzFeed News (May 12, 2016), https://www.buzzfeednews.com/article/kenbensinger/the-pushovers.
\43\ See LIUNA, H-2B Abuse by Construction and Landscaping
Companies, https://d3ciwvs59ifrt8.cloudfront.net/5ad8299b-5dba-47b2-9544-bd96627e284d/067fa0a5-659f-4113-8b25-ac60c2060510.pdf.
\44\ See, e.g., DHS, Response to Senator Ossoff letter (May 3,
2022), https://www.ossoff.senate.gov/wp-content/uploads/2022/05/DHS-Response-Blooming-Onion.pdf; DHS, For First Time, DHS to Supplement
H-2B Cap with Additional Visas in First Half of Fiscal Year (Dec.
20, 2021), https://www.uscis.gov/newsroom/news-releases/for-first-time-dhs-to-supplement-h-2b-cap-with-additional-visas-in-first-half-of-fiscal-year.
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In addition to providing greater protection for a vulnerable
population of workers, the reforms proposed in this rulemaking offer a
number of benefits to employers. DHS recognizes the immense importance
of the H-2A and H-2B programs to U.S. employers that are unable to fill
temporary jobs with qualified and available U.S. workers. The proposed
portability provision, in addition to offering flexibility to workers,
would assist petitioners facing worker shortages by allowing them to
more quickly hire H-2A and H-2B workers who are already in the United
States without waiting for approval of a new petition. In addition, as
discussed in greater detail below, both the proposed elimination of the
eligible countries lists and the proposed revision of the calculation
of the maximum period of stay for H-2 workers stand to reduce
petitioner
[[Page 65052]]
burdens such as those associated with information collected at the time
of filing and through subsequent RFEs, increase access to workers, and
improve program efficiency. Further, with respect to the H-2B program,
the proposed regulations are intended to ensure that only those
employers who comply with the requirements of the H-2B program will be
able to compete for the limited number of available cap-subject visas,
by precluding those employers who fail to demonstrate an intent to do
so from participating in the H-2B program.
IV. Discussion of Proposed Rule
A. Program Integrity and Worker Protections
1. Payment of Fees, Penalties, or Other Compensation by H-2
Beneficiaries
As discussed above, despite 2008 regulatory changes providing that
USCIS will deny or revoke a petition when a beneficiary pays a fee as a
condition of H-2 employment, reports from various sources indicate that
the collection of prohibited fees remains a pervasive problem in the H-
2A and H-2B programs.\45\ Through this rulemaking, DHS is proposing
various amendments to strengthen and clarify the existing regulatory
prohibitions, to close potential loopholes, and to modify the
consequences for charging prohibited fees to H-2 workers.
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\45\ See, e.g., CDM, Recruitment Revealed 16 (2018), https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf;
CDM, Ripe for Reform 20 (2020), https://cdmigrante.org/ripe-for-reform/; Polaris, Labor Trafficking on Specific Temporary Work Visas
14 (2022), https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf;
Polaris, On-ramps, intersections, and exit routes: A roadmap for
systems and industries to prevent and disrupt human trafficking 41
(2018), https://polarisproject.org/wp-content/uploads/2018/08/A-Roadmap-for-Systems-and-Industries-to-Prevent-and-Disrupt-Human-Trafficking.pdf; GAO-10-1053, at 4 (2010), https://www.gao.gov/assets/gao-10-1053.pdf.
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a. Fees, Penalties, or Other Compensation ``Related To'' H-2 Employment
The intent of the prohibited fee provisions in the 2008 H-2 rules
was, in part, to establish measures to help avoid economic hardship for
H-2 workers and combat effective indenture and similar abuses against
H-2 workers.\46\ This proposed rule is intended, among other things, to
foreclose claims that because a worker agreed (or appears to have
agreed) to pay a prohibited fee, such agreement cannot be considered to
be a condition of employment.
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\46\ When initially proposing the prohibited fee provisions, DHS
explicitly noted these abuses and stated that the provisions were
``an effort to protect [H-2] workers from such abuses.'' Changes to
Requirements Affecting H-2A Nonimmigrants, 73 FR 8230, 8233 (Feb.
13, 2008); Changes to Requirements Affecting H-2B Nonimmigrants and
Their Employers, 73 FR 49109, 49112 (Aug. 20, 2008).
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To strengthen the prohibited fee provisions and establish
substantial uniformity with DOL's prohibited fee provisions, DHS
proposes to modify its provisions to state that fees paid by H-2
workers to an employer, joint employer, petitioner (including to its
employee), agent, attorney, facilitator, recruiter, similar employment
service, related to such workers' H-2 employment, are prohibited.
Although DHS used the phrase ``as a condition of'' in its 2008 final H-
2A and H-2B rules, DOL, in promulgating its 2008 H-2A final rule, used
instead the phrase ``related to'' when addressing which costs and fees
associated with recruitment and employment are prohibited.\47\ As DOL
noted in 2008 and reiterated at the time it updated its 2008 H-2A rule
in 2010, the intent of the prohibited fees provisions was to
``requir[e] employers to bear the full cost of their decision to import
foreign workers [as] a necessary step toward preventing the
exploitation of foreign workers, with its concomitant adverse effect on
U.S. workers.'' \48\ DOL affirmed these principles when it updated the
H-2A regulations in 2022.\49\ Similarly, DOL used the term ``related
to'' rather than ``as a condition of'' in its 2008 H-2B final rule.\50\
By proposing to replace the term ``as a condition of'' with ``related
to,'' with respect to the scope of the bar on payment of ``prohibited
fees,'' DHS is proposing to modify the language of its H-2A and H-2B
prohibited fees rules to substantially conform with DOL prohibited fee
regulations. Fees that are ``related to'' H-2 employment would include,
but not be limited to, the employer's agent or attorney fees, visa
application and petition fees, visa application and petition
preparation fees, and recruitment costs \51\; however, such fees would
not include those that are ``the responsibility and primarily for the
benefit of the worker, such as government-required passport fees.'' See
proposed 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B).\52\
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\47\ Current 20 CFR 655.135(j) (H-2A) and 20 CFR 655.20(o) (H-
2B). Notably, with respect to H-2A nonimmigrants, the Department of
Labor has explained that, even in the case of otherwise permissible
fees, ``an employee may only pay such fees if they are for services
that are voluntarily requested by the . . . employee. If an employee
lacks a meaningful opportunity and an independent choice to refuse
or decline the service which requires the payment of the fee,'' such
fee is prohibited. See U.S. Department of Labor, Wage and Hour Field
Assistance Bulletin 2011-2, available at https://www.dol.gov/agencies/whd/field-assistance-bulletins/2011-2 (addressing H-2A
fees). Further, DOL has explained that ``[t]he signing of a document
by a prospective worker stating that he/she has agreed to pay the
fee does not, in and of itself, establish that the fee is
voluntary.'' Id. This proposed rule recognizes that the concerns
addressed by DOL with respect to the H-2A program apply equally to
the H-2B program, and, as in the case of the H-2A program, this rule
would intend to foreclose claims that simply because a worker agreed
(or appears to have agreed) to a fee, it cannot be considered to be
prohibited.
\48\ Temporary Agricultural Employment of H-2A Aliens in the
United States, 75 FR 6884, 6925 (Feb. 12, 2010); Temporary
Agricultural Employment of H-2A Aliens in the United States;
Modernizing the Labor Certification Process and Enforcement, 73 FR
77110, 77158 (Dec. 18, 2008).
\49\ Temporary Agricultural Employment of H-2A Nonimmigrants in
the United States, 87 FR 61660, 61744 (Oct. 12, 2022) (revisions to
20 CFR 655.135(k) intended to ``mak[e] it clear that foreign labor
contractors or recruiters and their agents are not to receive
remuneration from prospective employees recruited in exchange for
access to a job opportunity or any activity related to obtaining H-
2A labor certification'').
\50\ See former 20 CFR 655.22(j) available at Labor
Certification Process and Enforcement for Temporary Employment in
Occupations Other Than Agriculture or Registered Nursing in the
United States (H-2B Workers), and Other Technical Changes, 73 FR
78020, 78060 (Dec. 19, 2008); see also current 20 CFR 655.20(o) and
29 CFR 503.16(o) (both using the term ``related to'' and clarifying
that prohibited fees would broadly include ``payment of the
employer's attorney or agent fees, application and H-2B Petition
fees, recruitment costs, or any fees attributed to obtaining the
approved Application for Temporary Employment Certification''). For
readability purposes, this rule refers to all of the H-2B-related
provisions of 20 and 29 CFR as ``DOL regulations'' notwithstanding
DHS's joint issuance of some rules affecting these provisions.
\51\ See DOL, Fact Sheet #78D: Deductions and Prohibited Fees
under the H-2B Program, https://www.dol.gov/agencies/whd/fact-sheets/78d-h2b-deductions.
\52\ DHS notes, however, that while certain fees are not
prohibited under this proposed rule, it is not DHS's intent to
render a worker subject to any unlawful treatment or harassment
resulting from the worker's incurring debt from a petitioner
(including a petitioner's employee), agent, attorney, facilitator,
recruiter, or similar employment service, or employer or joint
employer, to cover such nonprohibited fees.
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DHS also seeks to clarify that the term ``prohibited fee'' would
include any ``fee, penalty, or compensation'' related to the H-2A or H-
2B employment. See proposed 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B). A prohibited fee would include those collected
either directly (such as, for instance, through a direct payment from
the beneficiary to the petitioner or the petitioner's agent), or
indirectly (such as, for instance, through a withholding or deduction
from the worker's wages for a service provided earlier by a third
party).
To further strengthen the prohibited fee provisions and establish
substantial uniformity with DOL's prohibited fee provisions, proposed 8
CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B) would have new
[[Page 65053]]
references to a petitioner's employee or attorney as part of the list
of individuals who may not collect prohibited fees from a
beneficiary.\53\ As before, it is not the intention of DHS to bar the
payment of fees to any agent, attorney, facilitator, recruiter, or
similar employment service by the petitioner or employer, provided such
fees do not come directly or indirectly from H-2 workers themselves.
DHS recognizes the role of recruiters and similar employment services
in assisting employers in finding H-2 workers. An employer may hire a
recruiter and pay the recruiter out of its own funds, as long as it
does not pass this cost directly or indirectly on to the worker(s).
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\53\ See 20 CFR 655.20(o), which applies to prohibited fees by
``[t]he employer and its attorney, agents, or employees.''
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b. Clarification of Acceptable Reimbursement Fees
Further, it is not the intention of DHS to pass to petitioners,
employers, agents, attorneys, facilitators, recruiters, or similar
employment services, the costs of services or items that are truly
personal and voluntary in nature for the worker. Despite the phrase
related to, not all payments made by prospective or current H-2 workers
would be considered prohibited fees or payments related to H-2
employment under the proposed rule. Payments made primarily for the
benefit of the worker, such as a passport fee, would not be prohibited
fees or payments related to the H-2 employment under the rule and
would, therefore, permissibly be considered the responsibility of the
worker.
The current regulations state that prohibited fees do not include
``the lesser of the fair market value or actual costs of transportation
and any government-mandated passport, visa, or inspection fees, to the
extent that the payment of such costs and fees by the beneficiary is
not prohibited by statute or DOL regulations, unless the employer
agent, facilitator, recruiter, or employment service has agreed with
the [noncitizen] to pay such costs and fees.'' 8 CFR 214.2(h)(5)(xi)(A)
and 8 CFR 214.2(h)(6)(i)(B). To simplify the language related to
acceptable reimbursement fees and clarify that the exception only
applies to costs that are truly for the worker's benefit, DHS proposes
to replace the existing regulatory language on this topic with text
stating that the provision would not prevent relevant parties ``from
receiving reimbursement for costs that are the responsibility and
primarily for the benefit of the worker, such as government-required
passport fees.'' Proposed 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B). This proposed language is derived from, and is
consistent with, DOL regulations on prohibited fees for H-2B and H-2A
workers at 20 CFR 655.20(o), 29 CFR 503.16(o), and 20 CFR 655.135(j).
The proposed provision would clarify the existing prohibition on a
beneficiary's payment of costs required by statute or regulation to be
paid or otherwise incurred by the petitioner (such as certain
transportation costs or, in the H-2A context, certain housing
costs).\54\ Specifically, the proposed language would make clear that
the passing of a cost to the beneficiary that, by statute or applicable
regulations is the responsibility of the petitioner, would constitute a
collection of a prohibited fee by the petitioner. Proposed 8 CFR
214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B). DHS has proposed the
phrase ``applicable regulations'' to recognize that, in the H-2A
context, ``applicable regulations'' would include DHS and DOL
regulations, and in the H-2B context, ``applicable regulations'' would
include DHS, DOL, and GDOL regulations.
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\54\ See 8 CFR 214.2(h)(5)(xi)(A) (acceptable fees exclude fees
``to the extent that the passing of such costs to the beneficiary is
not prohibited by statute'') and 8 CFR 214.2(h)(6)(i)(B) (acceptable
fees exclude fees ``to the extent that the payment of such costs and
fees by the beneficiary is not prohibited by statute or Department
of Labor regulations''). See also INA sec. 218(c)(4) (``Employers
shall furnish housing in accordance with regulations.'') and 20 CFR
655.122(d)(1) (``[t]he employer must provide housing at no cost to
H-2A workers . . .'' (italics added).
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c. Prohibiting Breach of Contract Fees and Penalties
DHS also proposes to clarify that prohibited fees include any fees
or penalties charged to workers who do not complete their contracts.
Advocacy groups have reported instances of recruiters forcing, or
threatening to force, H-2 workers to pay large ``breach'' fees of up to
thousands of dollars for leaving employment before the scheduled
conclusion of work.\55\ DHS proposes to explicitly include a ``fee or
penalty for breach of contract'' in the revised prohibited fee
provision in order to provide greater clarity for stakeholders, and to
emphasize the prohibited nature of such fees. Proposed 8 CFR
214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B).
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\55\ These concerns were raised by representatives from Centro
de los Derechos del Migrante, Inc. and Farmworker Justice during a
listening session held by DHS on May 16, 2022, and were also raised
by Migration that Works in a letter to DHS dated May 17, 2022. See
the docket for this rulemaking for access to a transcript of the
listening session and a copy of the letter.
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d. Strengthening the Prohibited Fees Provisions
DHS is proposing to amend regulatory language that currently allows
petitioners to avoid liability in certain instances despite a USCIS
determination that the petitioner collected or planned to collect
prohibited fees. Under the current regulations, a petitioner who was
found to have collected or entered into an agreement to collect a
prohibited fee is not subject to denial or revocation on notice if the
petitioner demonstrates that it reimbursed the worker prior to the
filing of the petition or, if the fee has not yet been paid by the
worker, that the agreement has been terminated. 8 CFR
214.2(h)(5)(xi)(A)(1) and 8 CFR 214.2(h)(6)(i)(B)(1). Similarly, if
USCIS determines that the petitioner knew or should have known at the
time of filing that its agent, facilitator, recruiter, or similar
employment service collected or entered into an agreement to collect
prohibited fees, the current regulations include exceptions to the
requirement that USCIS deny or revoke on notice if the petitioner
demonstrates that such fees were reimbursed, the agreement to collect
fees was terminated prior to collection, or, in cases where such
payment or agreement was made after the filing of the petition, that
the petitioner notified DHS of the prohibited fees or agreement within
2 days of learning of them. 8 CFR 214.2(h)(5)(xi)(A)(2) and (4) and 8
CFR 214.2(h)(6)(i)(B)(2) and (4).
DHS is proposing to eliminate the above-noted exceptions to
prohibited fee-related denials or revocations that are based solely on
a petitioner's reimbursement, pre-payment cancellation of a prohibited
fee agreement, or notification to DHS. Proposed 8 CFR
214.2(h)(5)(xi)(A)(1) and (2) and 8 CFR 214.2(h)(6)(i)(B)(1) and (2).
Whereas reimbursement, pre-payment cancellation, or notification to
DHS, by itself, currently allows a petitioner to avoid a denial or
revocation, DHS is proposing to require the petitioner to take
additional, significant steps to prevent the unlawful collection of
fees and thus avoid a future denial or revocation and the additional
consequences that follow. This change is appropriate because, in such
cases, petitioners (including their employees) or their third-party
associates (including agents, attorneys, facilitators, recruiters, or
similar employment services) have already engaged in wrongdoing by
taking actions that violate longstanding
[[Page 65054]]
requirements of the H-2 programs, namely, collecting or taking steps
toward collecting prohibited fees. In addition, the collection or
agreement to collect a prohibited fee has the potential to harm an H-2
worker even if the fee is later reimbursed or the agreement is
cancelled prior to collection, such as by causing the worker to go into
debt related to the payment, or anticipated payment, of the fee.\56\
DHS emphasizes the importance of petitioners reimbursing a worker who
has paid a prohibited fee because it mitigates the harm done to the
worker. DHS is therefore proposing to incorporate language in the
proposed rule regarding the impact reimbursement could have with
respect to the consequences for a determination of prohibited fees, as
discussed below.
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\56\ A study conducted by the advocacy group Centro de los
Derechos del Migrante, Inc. noted that some H-2 workers who go into
debt to cover pre-employment expenses are vulnerable to predatory
lending practices such as high interest rates and exploitative
collateral requirements. See CDM, Recruitment Revealed 18 (2018),
https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf.
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For situations in which a petitioner itself is found to have
collected or entered an agreement to collect prohibited fees, such as
when an employee of the petitioner engages in such activity, DHS
proposes to hold the petitioner or its successor accountable by denying
or revoking its approved petition and thereby making it subject to
additional consequences described below, except in rare cases involving
extraordinary circumstances beyond the petitioner's control. Proposed 8
CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR 214.2(h)(6)(i)(B)(1). Specifically,
a petition filed by a petitioner found to have collected or entered
into an agreement to collect prohibited fees would be subject to denial
or revocation on notice and the resulting additional consequence of a
1-year to 4-year bar to approval of subsequent petitions. Proposed 8
CFR 214.2(h)(5)(xi)(A)(1), 8 CFR 214.2(h)(5)(xi)(B), 8 CFR
214.2(h)(6)(i)(B)(1), and 8 CFR 214.2(h)(6)(i)(C). That petitioner may
only avoid such consequences if it demonstrates, through clear and
convincing evidence in response to a USCIS notice of intent to deny or
revoke, both that extraordinary circumstances beyond its control
resulted in its failure to prevent collection or entry into agreement
for collection of prohibited fees and that it has fully reimbursed all
affected beneficiaries and designees. Proposed 8 CFR
214.2(h)(5)(xi)(A)(1) and 8 CFR 214.2(h)(6)(i)(B)(1). The determination
as to whether a petitioner has met this very high standard would be
made on a case-by-case basis. As a baseline, a petitioner would need to
first demonstrate that the extraordinary circumstances were rare and
unforeseeable, and that it had made significant efforts to prevent
prohibited fees prior to the collection of or agreement to collect such
fees. As the proposed standard would require evidence of the
petitioner's significant efforts to prevent prohibited fees, a
petitioner would need to demonstrate that it took affirmative steps to
prevent its employees from collecting or agreeing to collect such fees.
The petitioner's mere lack of awareness of its employee's collection or
agreement to collect such fees would not be sufficient.
In addition to the above, a petitioner would further need to
establish that it took immediate remedial action as soon as it became
aware of the payment of the prohibited fee. Moreover, a petitioner
would need to demonstrate that it has fully reimbursed all affected
beneficiaries or their designees. The petitioner would need to
establish all of the above elements in order to avoid denial or
revocation of its petition. While USCIS may determine that denial or
revocation is not appropriate in such an extraordinary case,
petitioners would still be accountable for reimbursing workers in full
irrespective of the circumstances surrounding their own prohibited fee
collections or agreements.
To further ensure against a petitioner avoiding liability for
prohibited fees, DHS proposes to change the standards under which a
petitioner may be held accountable for the prohibited fee-related
violations of its agents, attorneys, facilitators, recruiters, or
similar employment services. Under current regulations, in order to
hold a petitioner liable for such actions, USCIS must make a
determination that the petitioner ``knew or should have known'' about
any such prohibited collection or agreement that was made prior to
filing the petition, or that any post-filing collection or agreement
was made ``with the knowledge of the petitioner.'' 8 CFR
214.2(h)(5)(xi)(A)(2) and (4) and 8 CFR 214.2(h)(6)(i)(B)(2) and (4).
This requirement can make it difficult for USCIS to deny a petition,
even if there is evidence that prohibited fees were collected. In
practice, a petitioner may be able to avoid a denial or revocation
based on its lack of knowledge (whether or not as a result of its
failure to exercise due diligence) or claimed lack of knowledge of the
practices of the third parties with whom it has done business, such as
by submitting evidence that the petitioner's contract with a
recruitment service includes a clause forbidding the collection of
prohibited fees.\57\
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\57\ See, e.g., International Labor Recruitment Working Group,
The American Dream Up for Sale: A Blueprint for Ending International
Labor Recruitment Abuse 34 (2013) (noting employers' evasion of H-2A
and H-2B prohibited fee laws by claiming they are unaware their
workers were charged recruitment fees), https://migrationthatworks.org/reports/the-american-dream-up-for-sale-a-blueprint-for-ending-international-labor-recruitment-abuse/.
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In proposing changes to the above-noted provisions, DHS seeks to
clarify and emphasize that it is a petitioner's responsibility to
conduct due diligence to ensure that any third-party agent, attorney,
facilitator, recruiter, or similar employment service with whom it
conducts business will comply with H-2 program requirements, including
the prohibition on collection of fees related to H-2 employment. This
due diligence obligation applies irrespective of whether the employer
is in contractual privity with such third party or whether such third
party is located or operating in the United States. Accordingly, DHS is
proposing to hold petitioners accountable for any prohibited fee-
related violation by these third parties, with only an extremely
limited exception.
Specifically, under DHS's proposed provisions, any determination
that an H-2 worker has paid or agreed to pay a prohibited fee to the
petitioner's agent, facilitator, recruiter, or similar employment
service would result in denial of the petition or revocation on notice,
``unless the petitioner demonstrates to USCIS through clear and
convincing evidence that it did not know and could not, through due
diligence, have learned of such payment or agreement and that all
affected beneficiaries have been fully reimbursed.'' Proposed 8 CFR
214.2(h)(5)(xi)(A)(2) and 8 CFR 214.2(h)(6)(i)(B)(2). DHS is also
proposing to state that, by itself, a written contract between the
petitioner and the third party stating that such fees are prohibited
will not be sufficient to meet this standard of proof.\58\ While the
language of such a contract may be considered, additional documentation
must be provided. Relevant documentation could include evidence
[[Page 65055]]
of communications showing the petitioner inquired about the third
party's past practices and payment structure to ensure that it obtains
its revenue from sources other than the workers and/or any
documentation that was provided to the petitioner by the third party
about its payment structure and revenue sources. DHS seeks input from
the public regarding other types of evidence that may be relevant and
available to meet the proposed standard.
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\58\ DOL already requires employers to contractually forbid
third parties whom they engage for the recruitment of workers from
seeking or receiving payments or other compensation from prospective
employees. See 20 CFR 655.9(a), 20 CFR 655.20(p), and 20 CFR
655.135(k). Accordingly, USCIS's acceptance of such a contract alone
as meeting the proposed standard would mean that nearly all
petitioners could avoid liability.
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Finally, DHS is proposing to add that, in addition to petitioners,
agents, facilitators, recruiters, and similar employment services, the
prohibited fee provision would apply to any joint employers in the H-2A
context, including a petitioner's member employers if the petitioner is
an association of U.S. agricultural producers, and any employers (if
different from the petitioner) in the H-2B context. Proposed 8 CFR
214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B). The regulations allow
an H-2A petition to be filed by either the employer listed on the TLC,
the employer's agent, or the association of U.S. agricultural producers
named as a joint employer on the TLC. 8 CFR 214.2(h)(5)(i)(A). Similar
to a petitioner's responsibility with the listed third parties
discussed above, DHS seeks to clarify and emphasize that an association
of U.S. agricultural producers named as a joint employer on a TLC and
other joint employers bear responsibility to conduct due diligence to
self-police and ensure that its member or joint employers will comply
with H-2A program requirements. Likewise, in a job contracting scenario
in which a petitioner brings in H-2B workers to work for one or more
employer-clients,\59\ DHS seeks to clarify and emphasize that the
petitioner is responsible for ensuring that such employers will comply
with H-2B program requirements. Therefore, petitioners would be held
accountable for any collection or agreement to collect prohibited fees
by any such employers and (for H-2A) joint employers, ``unless the
petitioner demonstrates to USCIS through clear and convincing evidence
that it did not know and could not, through due diligence, have learned
of such payment or agreement.'' Proposed 8 CFR 214.2(h)(5)(xi)(A)(2)
and 8 CFR 214.2(h)(6)(i)(B)(2).
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\59\ H-2B job contractors and employer-clients must meet the
requirements of the definition of an H-2 ``employer'' under 20 CFR
655.5 and 655.19.
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e. Consequences of a Denial or Revocation Based on Prohibited Fees
Under the current regulations, during the 1-year period following
an H-2A or H-2B denial or revocation for prohibited fees, USCIS may
only approve a petition filed by the same petitioner for the same
classification if the petitioner demonstrates either that each affected
beneficiary has been reimbursed in full or that it made reasonable
efforts but has failed to locate such beneficiary(ies). 8 CFR
214.2(h)(5)(xi)(C)(1) and 8 CFR 214.2(h)(6)(i)(D). The current
regulations specify that reasonable efforts include contacting the
beneficiary's known addresses. 8 CFR 214.2(h)(5)(xi)(C)(1) (with
respect to H-2A workers, reasonable efforts include ``contacting any of
the beneficiary's known addresses''); 8 CFR 214.2(h)(6)(i)(D)(1) (with
respect to H-2B workers, reasonable efforts include ``contacting all of
each such beneficiary's known addresses''). DHS is proposing several
changes to these provisions to increase the consequences and provide a
stronger deterrent against prohibited fee violations, to incentivize
reimbursement when such violations occur, and to better ensure that
petitioners do not avoid the consequences of a denial or revocation for
such violations.
First, DHS is proposing to create a 1-year bar on H-2 petition
approvals following an H-2A or H-2B denial or revocation based in whole
or in part on prohibited fees, or following the petitioner's withdrawal
of an H-2A or H-2B petition if the withdrawal occurs after USCIS issues
a request for evidence or notice of intent to deny or revoke the
petition on such a basis. Proposed 8 CFR 214.2(h)(5)(xi)(B) and 8 CFR
214.2(h)(6)(i)(C).
During this 1-year period, the petitioner would be barred from
approval of any H-2A or H-2B petition, regardless of whether
beneficiaries are reimbursed for payment of prohibited fees. Proposed 8
CFR 214.2(h)(5)(xi)(B) and 8 CFR 214.2(h)(6)(i)(C).\60\ This proposed
provision is meant to reflect the serious nature of prohibited fee
violations, which are not only illegal but also harmful to H-2 workers.
As advocacy groups have consistently noted, recruitment fees put
workers at risk for exploitation because workers who incur debt to
cover such fees are vulnerable to predatory lenders and are at
increased risk of debt bondage, human trafficking, and other
abuses.\61\
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\60\ USCIS would deny any such petition filed during this period
and would not refund the filing fee. See 8 CFR 103.2(a)(1).
\61\ See, e.g., CDM, Recruitment Revealed 18 (2018) (``High
interest rates on loans put workers at risk of becoming trapped in
debt, and exploitative collateral requirements can cause workers to
lose essential property, such as their vehicles or even their homes.
Moreover, when workers with abusive loans arrive in the U.S. to
work, they are faced with an additional pressure to earn back the
money they borrowed in their country of origin.''), https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf;
CDM, Ripe for Reform 21 (2020) (``Our surveys revealed that 26% of
workers interviewed were forced to pay recruitment fees as high as
$4,500. This practice makes workers vulnerable to abuse. Charging
workers for the right to work is illegal and is a serious risk
factor for human trafficking. Workers are less free to leave an
abusive environment when they start the job indebted.''), https://cdmigrante.org/ripe-for-reform/; Polaris, On-Ramps, Intersections,
and Exit Routes 43 (2018) (``The financial burdens of recruitment
fees can be devastating in and of themselves but they are also--
ironically--a necessary backdrop for trafficking to occur.''),
https://polarisproject.org/wp-content/uploads/2018/08/A-Roadmap-for-Systems-and-Industries-to-Prevent-and-Disrupt-Human-Trafficking.pdf;
Polaris, Labor Trafficking on Specific Temporary Work Visas 16
(2022) (``Having paid substantial fees in order to get the job--and
often having gone into debt to do so--leaves workers with little
choice but to try to recoup their losses regardless of the
conditions in which they are working.''), https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf.
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In addition, for the 3 years following the 1-year bar, DHS proposes
to allow petition approval only if each affected beneficiary (or the
beneficiary's designee(s), if applicable) has been reimbursed in full,
with no exceptions. See proposed 8 CFR 214.2(h)(5)(xi)(C) and 8 CFR
214.2(h)(6)(i)(D). Given the serious nature of prohibited fee
violations and the significant harm to beneficiaries who are charged
such fees, as discussed above, it would not be appropriate to allow a
violator to avoid consequences merely by contacting any known addresses
of affected beneficiaries or claiming inability to locate affected
beneficiaries. Instead, DHS intends the expanded 3-year time period
during which reimbursement would be a condition to petition approval,
as well as the removal of the exception for failure to locate the
beneficiary(ies), to provide a significantly stronger incentive to
ensure that beneficiaries or their designees are in fact reimbursed.
The proposed provision would clarify that a petitioner may only
provide reimbursement of prohibited fees to a beneficiary's designee if
a beneficiary cannot be located or is deceased. Proposed 8 CFR
214.2(h)(5)(xi)(A)(1) and 8 CFR 214.2(h)(6)(i)(B)(1). As this provision
is not meant to create a loophole for a petitioner to avoid
reimbursement of prohibited fees by not attempting to locate a
beneficiary, the petitioner would need to demonstrate
[[Page 65056]]
that it made all possible efforts to locate the beneficiary, and then
after exhausting such efforts to locate the beneficiary, that it
reimbursed the appropriate designee. The proposed provision would
clarify that a beneficiary's designee(s) must be an individual(s) or
entity(ies) for whom the beneficiary has provided the petitioner or its
successor in interest prior written authorization to receive such
reimbursement on the beneficiary's behalf, as long as the petitioner or
its successor, its agent, any employer (if different from the
petitioner) or any joint employer, attorney, facilitator, recruiter, or
similar employment service would not act as such designee or derive any
financial benefit, either directly or indirectly, from the
reimbursement. Proposed 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1). The requirement for ``prior written
authorization'' would better ensure USCIS's ability to determine
whether the petitioner in fact reimbursed the appropriate designee. The
prohibition against the petitioner or its agent, employer (if different
from the petitioner) or any joint employer, attorney, facilitator,
recruiter, or similar employment service from acting as the designee or
deriving any financial benefit, either directly or indirectly, from the
reimbursement would foreclose the possibility that any of these parties
could serve as a designee or would use the designee provision as a way
to benefit from not reimbursing the beneficiary.
If this provision is finalized, petitioners would be expected, as a
matter of best practice, to obtain in writing the beneficiary's full
contact information (including any contact information abroad), early
on during the recruitment process, and to maintain and update such
information as needed, to better ensure the petitioner's ability to
fully reimburse the beneficiary, or the beneficiary's designee(s), for
any sums the petitioner may be liable to pay the beneficiary.
Petitioners would also be expected to inform the beneficiary, in a
language the beneficiary understands, of the beneficiary's ability to
name a designee, and obtain full designee information, early on during
the recruitment process, and to maintain and update such information as
needed to ensure that the petitioner has in fact complied with the
reimbursement requirement.
Following a denial or revocation (or withdrawal) for prohibited
fees under the proposed provisions, the maximum total period that a
petitioner's H-2 petitions would be denied if the petitioner failed to
fully reimburse its workers or their designees would be 4 years. DHS
believes that this period is sufficient to incentivize compliance with
the reimbursement requirement. DHS invites comments as to the proposed
maximum 4-year bar to the approval of an H-2A or H-2B petition that
would apply if the petitioner cannot demonstrate that it has in fact
reimbursed the worker(s) or their designee(s) in full for any
prohibited fees paid.
DHS is proposing to apply the above consequences for prohibited
fees not only to the violating petitioner, but also to its successor in
interest in order to prevent a petitioning entity from avoiding
liability by changing hands, reincorporating, or holding itself out as
a new entity. Proposed 8 CFR 214.2(h)(5)(xi)(B) and (C) and 8 CFR
214.2(h)(6)(i)(C) and (D). DHS proposes to define a successor in
interest as an employer that is controlling and carrying on the
business of a previous employer, regardless of whether such successor
in interest has inherited all of the rights and liabilities of the
predecessor entity. Proposed 8 CFR 214.2(h)(5)(xi)(C) and 8 CFR
214.2(h)(6)(i)(D). DHS proposes to include the term ``regardless of
whether such successor in interest has succeeded to all of the rights
and liabilities of the predecessor entity'' in order to prevent the new
entity from avoiding liability by intentionally assuming only some of
the petitioner's rights and liabilities. Proposed 8 CFR
214.2(h)(5)(xi)(C) and 8 CFR 214.2(h)(6)(i)(D) further list factors
that USCIS may consider as relevant when determining whether an entity
would be considered a successor in interest. As made clear in the
proposed regulatory text, no one factor is dispositive, and USCIS would
make a determination as to whether the entity is a successor in
interest, and is therefore liable for reimbursement, based on the
circumstances as a whole.
These proposed factors are similar, but not identical, to the
factors listed at 8 CFR 214.2(w)(1)(xiv) for the CW-1 nonimmigrant
program. They are also similar, but not identical, to the factors
listed in DOL regulations for the H-2A and H-2B programs. See, e.g., 20
CFR 655.103(b); 20 CFR 655.5; 29 CFR 501.3; 29 CFR 503.4. To the extent
that the proposed factors differ from the ones currently in place at 8
CFR 214.2(w)(1)(xiv) and DOL regulations, they generally flow from
factors that are currently in place. For example, ``Familial or close
personal relationships between predecessor and successor owners of the
entity'' under proposed factor (ix) flows from the current factors on
whether the former management or owner retains a direct or indirect
interest in the new enterprise, continuity of the work force,
similarity of supervisory personnel, and the ability of predecessor to
provide relief. ``Use of the same or related remittance sources for
business payments'' under proposed factor (x) flows from current
factors on use of the same facilities, substantial continuity of
business operations similarities, and similarities in products,
services, and production methods. Furthermore, USCIS's adjudicative
experience has shown the proposed factors in (ix)-(x) to be relevant
when determining the relationship between entities and/or individuals.
Finally, the proposed bars apply across both H-2 programs, meaning
that an H-2B denial or revocation would trigger the bars to H-2A
approval under proposed 8 CFR 214.2(h)(5)(xi)(B) and (C), and an H-2A
denial or revocation would trigger the bars to H-2B approval under
proposed 8 CFR 214.2(h)(6)(i)(C) and (D). Specifically, proposed 8 CFR
214.2(h)(5)(xi)(B) states that the bar would apply within 1 year after
the decision denying or revoking on notice ``an H-2A or H-2B petition
on the basis of paragraph (h)(5)(xi)(A) or (h)(6)(i)(B), respectively,
of this section'' (emphasis added). Likewise, proposed 8 CFR
214.2(h)(6)(i)(C) states that the bar would apply within 1 year after
the decision denying or revoking on notice ``an H-2B or H-2A petition
on the basis of paragraph (h)(6)(i)(B) or (h)(5)(xi)(A), respectively,
of this section'' (emphasis added). The additional 3-year bar at
proposed 8 CFR 214.2(h)(5)(xi)(C) and (6)(i)(D) would similarly apply
to both classifications whether the underlying petition that was denied
or revoked for prohibited fees was an H-2A or H-2B petition. DHS is
also proposing to apply the bars across both classifications in cases
where a petitioner withdraws the petition after USCIS has issued a
notice of intent to deny or revoke based on the H-2A or H-2B prohibited
fee provisions.
2. Denial of H-2 Petitions for Certain Violations of Program
Requirements
In this proposed rule, DHS, pursuant to its general authority under
INA secs. 103(a) and 214(c)(1), as well as its specific authority under
INA sec. 214(c)(14)(A)(ii) with respect to the H-2B program, is
proposing to enhance worker protections by introducing a provision that
allows for the denial of H-2 petitions for employers that have been
found to have committed certain labor law violations or otherwise
violated the requirements of the H-2 programs. See proposed 8 CFR
[[Page 65057]]
214.2(h)(10)(iii).\62\ This proposed reform is an important addition in
DHS's efforts to improve the integrity of the H-2 programs and to
protect H-2 workers by allowing evaluation of a petitioner's past
compliance with certain H-2 related laws prior to USCIS approving H-2
petitions. As noted in earlier sections, a worker's H-2 status is tied
to the petitioning employer only, and worker advocates have noted that
the structure of the programs makes H-2 workers vulnerable to
exploitation and abuse. It is necessary, therefore, that USCIS have
improved tools to properly identify and vet employers that seek to
bring in H-2 workers. The consequences of bad actors participating in
the H-2 programs can be extremely harmful.\63\ This proposed provision
reflects DHS's determination that an employer's past conduct in
relation to respecting worker rights, as well as in relation to
ensuring the safety and working conditions of its past or current
employees, is relevant to petition eligibility as it may inform USCIS
of that employer's present intent and ability to comply with H-2 laws
and requirements. The phrase ``H-2 laws and requirements'' includes the
obligations and prohibitions specifically outlined in statutes and DHS
and DOL regulations. In addition, employers in the H-2 program are
required to comply with ``all applicable Federal, State, and local
employment-related laws and regulations, including health and safety
laws.'' \64\
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\62\ As previously discussed, numerous studies and news articles
have recounted instances of employers continuing to access the H-2
programs despite their respective records of labor law and/or safety
violations. See, e.g., Farmworker Justice, No Way to Treat a Guest:
Why the H-2A Agricultural Visa Program Fails U.S. and Foreign
Workers (2012), https://www.farmworkerjustice.org/wp-content/uploads/2012/05/7.2.a.6-No-Way-To-Treat-A-Guest-H-2A-Report.pdf;
LIUNA, H-2B Guest Worker Program: Lack of Accountability Leads to
Exploitation of Workers, https://d3ciwvs59ifrt8.cloudfront.net/b156551f-4cfc-4f0e-ab0f-1c05b2955a44/4d0e38cb-1c2b-4b12-924c-279c4e15ce31.pdf.
\63\ See, e.g., DOJ, U.S. Attorney's Office, Southern District
of Georgia, Three men sentenced to federal prison on charges related
to human trafficking: Each admitted to role in forced farm labor in
Operation Blooming Onion (Mar. 31, 2022), https://www.justice.gov/usao-sdga/pr/three-men-sentenced-federal-prison-charges-related-human-trafficking. Also see the examples of abuse and exploitation
of H-2 workers highlighted in section III.D, Importance of the H-2
Programs and the Need for Reforms.
\64\ See 20 CFR 655.20(z), 29 CFR 503.16(z); see also 20 CFR
655.135(e).
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The Secretary of Homeland Security's authority to deny H-2
petitions for certain past violations of program requirements is
derived from the INA and the HSA. Specifically, INA sec. 214(c)(1), 8
U.S.C. 1184(c)(1), states that ``the question of importing any
[noncitizen] as a nonimmigrant under subparagraph (H) . . . of section
101(a)(15) . . . in any specific case or specific cases shall be
determined by the [Secretary of Homeland Security], after consultation
with appropriate agencies of the Government, upon petition of the
importing employer.'' \65\ The same provision goes on to state, ``The
petition shall be in such form and contain such information as the
[Secretary of Homeland Security] shall prescribe.'' In addition, with
respect to H-2B petitions in which DHS has found a substantial failure
to meet any conditions of the petition or a willful misrepresentation
of a material fact, INA sec. 214(c)(14)(A)(ii), 8 U.S.C.
1184(c)(14)(A)(ii), states in part that the Secretary of Homeland
Security, ``after notice and an opportunity for a hearing'' \66\ . . .
``may deny petitions filed with respect to that employer. . . during a
period of at least 1 year but not more than 5 years. . . .''
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\65\ See also INA sec. 214(a)(1), 8 U.S.C. 1184(a)(1).
\66\ USCIS does not read the phrase ``notice and opportunity for
a hearing'' in INA sec. 214(c)(14) as requiring a formal hearing
under 5 U.S.C. 556. USCIS therefore proposes to utilize its existing
informal adjudications and appeals processes to satisfy this
``notice and opportunity for a hearing'' requirement. See 8 CFR
103.2, 103.3. See generally Michael Asimow, Admin. Conference of the
U.S., ``Federal Administrative Adjudication Outside the
Administrative Procedure Act'' (2019) (discussing informal
adjudication), at https://www.acus.gov/sites/default/files/documents/Federal%20Administrative%20Adj%20Outside%20the%20APA%20-%20Final.pdf.
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The proposed provision is an expansion of existing regulatory
authority that bars approval of H-2A petitions for 2 years after an
employer or joint employer, or a parent, subsidiary, or affiliate is
found to have violated INA sec. 274(a), 8 U.S.C. 1324(a) (criminal
penalties for unlawfully bringing in and harboring certain noncitizens)
or to have employed an H-2A worker in a position other than that
described in the nonimmigrant worker petition. See 8 CFR
214.2(h)(5)(iii)(B). The existing provision at 8 CFR
214.2(h)(5)(iii)(B) is insufficient to address serious violations that
occur in the H-2 programs, as it applies only to the H-2A program and
does not include all of the types of violations that can be relevant to
H-2 program compliance. DHS proposes to replace this existing provision
with a more comprehensive provision, proposed 8 CFR 214.2(h)(10)(iii),
that includes both mandatory and discretionary grounds for denial
depending on the type or severity of violations, including mandatory
denial based on a final determination(s) that the employer violated INA
sec. 274(a), and DHS is therefore proposing to remove and reserve 8 CFR
214.2(h)(5)(iii)(B).
Additionally, under existing DHS regulations at 8 CFR 214.1(k),
USCIS may deny for a period of 1 to 5 years any petition filed for
nonimmigrant status under INA sec. 101(a)(15)(H) upon the petitioner's
debarment by DOL.\67\ DHS would retain the provision at 8 CFR 214.1(k)
and believes the addition of proposed 8 CFR 214.2(h)(10)(iii) would
complement that provision, in part by allowing DHS to address instances
of past labor violations that may result in the abuse or exploitation
of individuals seeking to come to the United States as H-2 workers, but
that may not have resulted in debarment from the H-2 programs by
DOL.\68\ Further, proposed 8 CFR 214.2(h)(10)(iii) would provide
greater clarity to 8 CFR 214.1(k) regarding how the bar under 8 CFR
214.1(k) would be applied to H-2A and H-2B petitions, as discussed
below.
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\67\ Exceptions to the bar under 8 CFR 214.1(k) are made for
status under INA secs. 101(a)(15)(H)(i)(b1), (L), (O), and (P)(i).
\68\ A USCIS decision to deny a petition under proposed 8 CFR
214.2(h)(10)(iii) would not preclude a debarment action by DOL.
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Under proposed 8 CFR 214.2(h)(10)(iii), USCIS would have authority
to deny H-2 petitions for certain past violations. The proposed
provision sets out the conditions which would mandate USCIS denial, as
well as instances in which USCIS would evaluate relevant factors to
determine whether a discretionary denial is warranted. The violation
findings set forth in proposed 8 CFR 214.2(h)(10)(iii)(A) are, by
nature, so egregious and directly connected to the H-2 programs that
they warrant mandatory denial. In contrast, the conditions set forth in
8 CFR 214.2(h)(10)(iii)(B) could potentially be less egregious in
nature or less directly related to the H-2 programs, and therefore,
would require additional analysis before determining whether a denial
is warranted. These proposed provisions are discussed in more detail in
the following subsections. Note that under proposed 8 CFR
214.2(h)(10)(iii), USCIS would or could deny an H-2A petition for a
violation that occurred in the H-2B program, and vice versa.
a. Mandatory Denial Based on Certain Violations
Proposed 8 CFR 214.2(h)(10)(iii)(A) states that USCIS will deny any
H-2A or H-2B petition filed by a petitioner, or the successor in
interest of a petitioner as that term is defined in proposed 8 CFR
214.2(h)(5)(xi)(C)(2) and proposed
[[Page 65058]]
8 CFR 214.2(h)(6)(i)(D)(2), that has been the subject of one or more of
the three actions discussed below.
First, DHS proposes mandatory denial based on a final
administrative determination by the Secretary of Labor under 20 CFR
part 655, subpart A or B, or 29 CFR part 501 or 503, debarring the
petitioner from filing or receiving a future labor certification, or a
final administrative determination by the GDOL debarring the petitioner
from issuance of future labor certifications under applicable Guam
regulations and rules, if the petition is filed during the debarment
period, or if the debarment occurs during the pendency of the petition.
See proposed 8 CFR 214.2(h)(10)(iii)(A)(1). The proposed provision is
consistent with the existing authority under 8 CFR 214.1(k) to deny
petitions based on debarment, but provides greater clarity for H-2A and
H-2B petitioners. Specifically, while 8 CFR 214.1(k) states that, upon
debarment, USCIS may deny a petition ``for a period of at least 1 year
but not more than 5 years,'' proposed 8 CFR 214.2(h)(10)(iii)(A)(1)
would clarify that USCIS must deny H-2 petitions filed during the
specific debarment period set forth by DOL or GDOL, assuming a final
administrative determination as specified in proposed 8 CFR
214.2(h)(10)(iii)(A). In addition, the proposed provision clarifies
that it applies to successors in interest of the debarred petitioner,
as well as in instances when a debarment occurs while a petition is
pending before USCIS. The current language at 8 CFR 214.1(k) would
continue to govern how DOL debarment of an employer from the H-2
program would affect non-H-2 petition adjudications for petitions filed
by that employer under INA sec. 101(a)(15)(H) (except for status under
INA secs. 101(a)(15)(H)(i)(b1), (L), (O), and (P)(i)).
As the second basis for mandatory denial, DHS proposes to include
denial or revocation of a prior H-2A or H-2B petition that includes a
finding of fraud or willful misrepresentation of a material fact during
the pendency of the petition or within 3 years before the filing of the
petition. See proposed 8 CFR 214.2(h)(10)(iii)(A)(2). In order to
trigger a denial under this ground, the USCIS decision on the prior
petition must explicitly contain a finding of fraud or willful
misrepresentation of a material fact, although fraud or willful
misrepresentation of a material fact need not be the only ground(s) for
denial or revocation. Furthermore, the USCIS decision must be an
administratively final decision, meaning there is no pending
administrative appeal or the time for filing a timely administrative
appeal has elapsed.\69\ Because of the inherently serious and relevant
nature of a finding that the petitioner committed fraud or willfully
misrepresented information that was material with respect to a prior
benefit request in the H-2 programs, it is appropriate to exclude from
the program petitioners against whom USCIS has recently made such a
finding. As to how recent such a finding must be in order to impact
adjudication, DHS is proposing a 3-year timeframe as this period
captures an employer's reasonably recent activity, which is a highly
relevant consideration with respect to a petitioner's current intention
and ability to comply with program requirements. The 3-year period
generally would be sufficient to ensure that approval of an H-2
petition would not be detrimental to the rights of H-2 workers or the
integrity of the H-2 program.\70\ DHS seeks public input on the
proposed 3-year timeframe as an appropriate length of time to impose.
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\69\ See generally 8 CFR 103.3 and 8 CFR 103.4 (setting forth
the appeal process for petitioners after a decision is issued).
\70\ The 3-year period is consistent with the time period set
forth in INA sec. 214(c)(14)(A)(ii) with respect to the H-2B
classification. Since similar worker protection and program
integrity concerns apply to the H-2A program, it is appropriate to
use the same timeframe with respect to the H-2A classification.
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Third, DHS proposes mandatory denial based on a final determination
of a violation under INA sec. 274(a), 8 U.S.C. 1324(a),\71\ during the
pendency of the petition or within 3 years before filing the petition.
See proposed 8 CFR 214.2(h)(10)(iii)(A)(3). As noted above, this
proposed provision essentially incorporates and replaces the portion of
the existing provision at 8 CFR 214.2(h)(5)(iii)(B) that bars approval
of H-2A petitions if an employer is found to have violated INA sec.
274(a). It also expands upon 8 CFR 214.2(h)(5)(iii)(B) by making the
bar also applicable to H-2B petitions, applying it to successors in
interest, and extending the 2-year bar to 3 years to make the length
consistent with the length of the other proposed mandatory denial
periods. As above, DHS seeks public input on this proposed time period.
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\71\ INA sec. 274, 8 U.S.C. 1324, is titled ``Bringing in and
Harboring Certain Aliens,'' and paragraph (a) covers ``Criminal
Penalties'' within that section. INA sec. 274(a) is separate and
distinct from INA sec. 274A, 8 U.S.C. 1324a, which is titled
``Unlawful Employment of Aliens.''
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In determining whether one of the proposed mandatory grounds for
denial listed in proposed 8 CFR 214.2(h)(10)(iii)(A) is applicable to
the instant petition, USCIS would not revisit the underlying
substantive determination during adjudication of the petition. That is,
USCIS is not proposing to re-adjudicate or make an independent finding
on the merits of the underlying final administrative determination,
criminal conviction, or civil judgment against the petitioner. Rather,
following issuance of a request for evidence or notice of intent to
deny the petition and providing an opportunity for the petitioner to
respond, USCIS would determine whether such final determination,
conviction, or judgment was made against the petitioner or its
successor in interest within the specified time period. Upon a
determination that any of the proposed mandatory grounds for denial
listed in proposed 8 CFR 214.2(h)(1)(iii)(A) were triggered, USCIS
would provide notice to the petitioner indicating that the ground had
been triggered and that the petition being adjudicated as well as any
pending or subsequently filed H-2 petitions (by the petitioner or a
successor in interest) will be denied on the same basis during the
applicable time period. See proposed 8 CFR 214.2(h)(10)(iii)(E)(1). The
denial notice would also inform the petitioner of the right to appeal
the denial to USCIS's Administrative Appeals Office (AAO), including
the ability to request an oral argument pursuant to 8 CFR 103.3.\72\
Providing such notice would inform the petitioner to refrain from
filing additional H-2 petitions that would be subject to the mandatory
ground for denial, therefore saving the petitioner from paying filing
fees.
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\72\ The denial notice would also inform the petitioner of the
ability to file a motion to reopen or reconsider under 8 CFR
103.5(a). The filing of a motion would not stay the denial decision.
8 CFR 103.5(a)(1)(iv).
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b. Discretionary Denial Based on Certain Violations
In addition to the mandatory denial provision at proposed 8 CFR
214.2(h)(10)(iii)(A), discussed in the preceding subsection, DHS also
proposes a provision at 8 CFR 214.2(h)(10)(iii)(B) that would allow
USCIS to consider other past violations and authorize discretionary
denial in such cases when USCIS determines that the underlying
violation(s) calls into question the petitioner's or successor's
intention or ability to comply with H-2 program requirements. This
proposed provision states that USCIS may deny any H-2 petition filed by
a petitioner, or the successor in interest of a petitioner as defined
in proposed 8 CFR 214.2(h)(5)(xi)(C)(2) and proposed 8 CFR
214.2(h)(6)(i)(D)(2), that has been the subject of one or more of the
enumerated actions, after evaluation of
[[Page 65059]]
relevant factors listed at proposed 8 CFR 214.2(h)(10)(iii)(C). The
final administrative actions listed in proposed 8 CFR
214.2(h)(10)(iii)(B) would be limited to those that have occurred
during the pendency of the petition or within 3 years before the filing
the petition. DHS is proposing this 3-year period as such a period
captures an employer's reasonably recent activity, which is a highly
relevant consideration with respect to a petitioner's current intention
and ability to comply with program requirements. The 3-year period
generally would be sufficient to ensure that approval of an H-2
petition would not be detrimental to the rights of H-2 workers or the
integrity of the H-2 program.\73\ DHS welcomes public input on this
proposed timeframe.
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\73\ The 3-year period is consistent with the time period set
forth in INA sec. 214(c)(14)(A)(ii) with respect to the H-2B
classification. Since similar worker protection and program
integrity concerns apply to the H-2A program, it is appropriate to
use the same timeframe with respect to the H-2A classification.
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First, DHS proposes to allow USCIS to consider a discretionary
denial when the petitioner has been the subject of a final
administrative determination by the Secretary of Labor or GDOL with
respect to a prior H-2A or H-2B TLC that includes: (1) revocation of an
approved TLC under 20 CFR part 655, subpart A or B, or applicable Guam
regulations and rules; (2) DOL debarment under 20 CFR part 655, subpart
A or B, or 29 CFR part 501 or 503, or applicable Guam regulations and
rules, if the debarment period has concluded before filing the
petition; or (3) any other administrative sanction or remedy under 29
CFR part 501 or 503, or applicable Guam regulations and rules,
including assessment of civil money penalties as described in those
parts. See proposed 8 CFR 214.2(h)(10)(iii)(B)(1). This provision is
broader than proposed 8 CFR 214.2(h)(10)(iii)(A)(1) in that it
encompasses other administrative actions beyond debarment by the
Secretary of Labor or GDOL. With respect to debarment, the timing of
the debarment period is what differentiates proposed 8 CFR
214.2(h)(10)(iii)(A)(1) from proposed 8 CFR
214.2(h)(10)(iii)(B)(1)(ii). A debarment period that began during the
last 3 years but has already concluded before the filing of the H-2
petition would fall under 8 CFR 214.2(h)(10)(iii)(B)(1)(ii) and trigger
a discretionary analysis, while a debarment period that is active when
the H-2 petition is filed or while it remains pending would fall under
the mandatory denial provision at proposed 8 CFR
214.2(h)(10)(iii)(A)(1).
As the second basis for discretionary denial consideration, DHS
proposes to include a USCIS decision revoking the approval of a prior
petition that includes one or more of the following findings: the
beneficiary was not employed by the petitioner in the capacity
specified in the petition; the statement of facts contained in the
petition or on the application for a TLC was not true and correct, or
was inaccurate; the petitioner violated terms and conditions of the
approved petition; or the petitioner violated requirements of INA sec.
101(a)(15)(H) or 8 CFR 214.2(h). See proposed 8 CFR
214.2(h)(10)(iii)(B)(2). Unlike USCIS decisions that include a finding
of fraud or willful misrepresentation of a material fact, these
revocation decisions could, but would not always, be relevant to a
petitioner's intent and ability to comply with program requirements.
Inclusion of the phrase ``the beneficiary was not employed by the
petitioner in the capacity specified in the petition'' essentially
incorporates the existing provision at 8 CFR 214.2(h)(5)(iii)(B) that
bars approval of H-2A petitions for 2 years if an employer is found
``to have employed an H-2A worker in a position other than that
described in the relating petition'' and expands it to include H-2B
petitions. However, unlike current 8 CFR 214.2(h)(5)(iii)(B), which
imposes a mandatory denial, discretion is warranted when the
beneficiary was not employed by the petitioner in the capacity
specified in the petition (for instance, the beneficiary was performing
different duties or working outside the identified area of employment)
because the non-compliance could have occurred for a number of reasons,
not all of which would call into question a petitioner's intent and
ability to comply with program requirements going forward. In addition,
the proposed provision would allow consideration of other bases for
revocation as listed above that could potentially relate to a
petitioner's intent and ability to comply with program requirements.
For instance, a USCIS revocation finding that the statement of facts
contained in the petition or on the application for a TLC was not true
and correct \74\ could be based on a petitioner's confiscation and
withholding of its H-2 workers' passports, which is both unlawful and
harmful to workers,\75\ and therefore would be highly relevant to a
petitioner's prospective intent and ability to comply with program
requirements.
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\74\ See 8 CFR 214.2(h)(11)(iii)(A)(2).
\75\ As part of the TLC application process, petitioners are
required to attest that they will comply with relevant laws,
including 18 U.S.C. 1592(a), with respect to prohibitions against
confiscating workers' passports. See 20 CFR 655.20(z), 20 CFR
655.135(e); Form ETA-9142A, H-2A Application for Temporary
Employment Certification, Appendix A, and Form ETA 9142B, H-2B
Application for Temporary Employment Certification, Appendix B,
available at https://www.dol.gov/agencies/eta/foreign-labor/forms.
See also William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008, Public Law 110-457; 18 U.S.C. 1592(a).
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Third, DHS proposes to allow USCIS to consider discretionary denial
based on any final administrative or judicial determination (other than
one described in 8 CFR 214.2(h)(10)(iii)(A)) that the petitioner
violated any applicable Federal, State, or local employment-related
laws or regulations, including, but not limited to, health and safety
laws or regulations. See proposed 8 CFR 214.2(h)(10)(iii)(B)(3). This
catch-all provision is consistent with existing DOL regulations
requiring compliance with all such laws,\76\ and it recognizes that
numerous Federal agencies (such as DOL's Occupational Safety and Health
Administration (OSHA), the Department of Transportation (DOT), and
Federal courts), State agencies (such as State departments of labor,
State departments of transportation, and State courts), and local
agencies (such as those involved in setting local housing standards)
have authority in areas affecting H-2 employers and workers. While DHS
recognizes that proposed 8 CFR 214.2(h)(10)(iii)(B)(3) could be broad
in its reach, the key word ``applicable'' and phrase ``may call into
question a petitioner's or successor's intention or ability to
comply,'' would limit the scope of final determinations that USCIS may
consider relevant. For example, USCIS would likely not consider a
single de minimis OSHA violation \77\ or a single DOT violation for
poor vehicle maintenance that did not result in risk or harm to workers
as necessarily relevant to the petitioner's intention or ability to
comply with H-2A program requirements. On the other hand, if a
petitioner has, for instance, a history of serious OSHA violations for
failure to provide workers with personal protective equipment or a
history of DOT violations for poor vehicle maintenance and those
vehicles were continually used to transport the company's H-2 workers,
resulting in the death or injury of (or risk of death or
[[Page 65060]]
injury to) H-2 workers,\78\ then USCIS would likely consider those
violations relevant to the petitioner's intention or ability to comply
with H-2A or H-2B program requirements under proposed 8 CFR
214.2(h)(10)(iii)(B)(3).
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\76\ See 20 CFR 655.20(z), 20 CFR 655.135(e).
\77\ De minimis OSHA violations ``have no direct or immediate
relationship to safety and health.'' DOL, Employment Law Guide,
Safety and Health Standards: Occupational Safety and Health, https://webapps.dol.gov/elaws/elg/osha.htm.
\78\ See Ken Bensinger, Jessica Garrison, Jeremy Singer-Vine,
Buzz Feed News, The Pushovers: Employers Abuse Foreign Workers, U.S.
Says, By All Means, Hire More (May 12, 2016) (describing an example
of such an incident), https://www.buzzfeednews.com/article/kenbensinger/the-pushovers.
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As the denials under proposed 8 CFR 214.2(h)(10)(iii)(B)(3) would
be discretionary, DHS is proposing that USCIS would determine whether
the violations may call into question the petitioner's ability or
intent to comply with H-2 program requirements by examining all
relevant factors. Proposed 8 CFR 214.2(h)(10)(iii)(C) identifies
several factors that could be relevant to the analysis and that USCIS
may therefore consider. The listed factors are not exhaustive;
additional relevant factors that are not listed in the proposed
provision may be considered by USCIS in the totality, but each one,
standing alone, would not be outcome determinative. Further, not all
factors would be relevant in all cases, and different factors may be
weighted differently depending on the circumstances of each case. Any
one of the factors, such as the egregiousness and willfulness \79\ of
the violation(s) under proposed 8 CFR 214.2(h)(10)(iii)(C)(2) and (5),
could be given significant weight in reviewing the totality of the
facts presented, even if other listed factors were absent. For example,
if the petitioner willfully committed a violation that resulted in the
death of several H-2 workers, those two factors alone (i.e.,
willfulness and egregiousness of the violation leading to the death of
the workers) could be sufficient to warrant a discretionary denial
under proposed 8 CFR 214.2(h)(10)(iii)(B), notwithstanding the absence
of other negative factors such as a prior history of violations or
achievement of financial gain.
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\79\ Note that a finding of willfulness must be explicitly
stated in the final agency determination, decision, or conviction.
USCIS would not independently make a finding of willfulness under
proposed 8 CFR 214.2(h)(10)(iii)(C)(5).
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In applying the proposed discretionary analysis, USCIS officers
would use the ``preponderance of the evidence'' standard of proof.\80\
Under this standard, the evidence must demonstrate that the
petitioner's claim that it is willing and able to comply with the
requirements of the H-2 program is ``more likely than not'' true \81\
after taking into consideration the prior violations and any relevant
factors, both negative and positive. While USCIS officers would
evaluate whether the petitioner, more likely than not, will comply with
H-2 requirements, USCIS officers would not revisit the merits of the
underlying final administrative or judicial determination against the
petitioner.
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\80\ See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010)
(``Except where a different standard is specified by law, a
petitioner or applicant in administrative immigration proceedings
must prove by a preponderance of evidence that he or she is eligible
for the benefit sought.'').
\81\ See Matter of Chawathe, 25 I&N Dec. at 376 (AAO 2010).
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When making a determination that any of the proposed discretionary
grounds for denial listed in proposed 8 CFR 214.2(h)(10)(iii)(B) were
triggered and that the analysis warrants a discretionary denial, the
USCIS denial notice would indicate that the triggering of the
discretionary ground for denial may also apply in subsequent
adjudications of pending or future H-2 petitions, depending on the
facts presented with respect to each such petition. See proposed 8 CFR
214.2(h)(10)(iii)(E)(2). The notice would also inform the petitioner of
the right to appeal the denial to the AAO, and the ability to request
oral argument pursuant to 8 CFR 103.3.\82\
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\82\ The denial notice would also inform the petitioner of the
ability to file a motion under 8 CFR 103.5(a). The filing of a
motion would not stay the denial decision. 8 CFR 103.5(a)(1)(iv).
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Providing such notice would enable the petitioner to consider the
impact of the discretionary denial on future H-2 petition
adjudications. It is the intention of DHS that the petitioner or the
petitioner's successor in interest will take corrective actions to
bring itself into, and continue to remain in, compliance with H-2
program requirements. Under this proposal, USCIS would take into
consideration any such corrective action in subsequent adjudications of
H-2 petitions filed by the petitioner or a petitioner's successor in
interest. See proposed 8 CFR 214.2(h)(10)(iii)(C)(8). During the
discretionary denial period, USCIS would consider all of the relevant
factors in each separate adjudication when exercising its discretion
under proposed 8 CFR 214.2(h)(10)(iii)(B).
c. Convictions and Determinations Against Certain Individuals
For the purposes of the mandatory and discretionary denials
discussed above, DHS proposes to state that a criminal conviction or
final administrative or judicial determination against certain
individuals will be treated as a conviction or final administrative or
judicial determination against the petitioner or successor in interest.
The proposed regulatory text clarifies that this would include
convictions and determinations against a person who is acting on behalf
of the petitioning entity, which could include, among others, the
petitioner's owner, employee, or contractor. The proposed regulatory
text would further clarify that, with respect to discretionary denials
under proposed 8 CFR 214.2(h)(10)(iii)(B), this would also include
convictions and determinations against any employee of the petitioning
entity who a reasonable person in the H-2A or H-2B worker's position
would believe is acting on behalf of the petitioning entity. See
proposed 8 CFR 214.2(h)(10)(iii)(D).
Because an employer can rightfully be expected to exercise due
diligence over its employees or contractors acting on its behalf, it
would not be appropriate to allow petitioners to avoid liability merely
because an individual acting on the entity's behalf, rather than the
entity itself, was the subject of the final administrative or judicial
action. Indeed, some of the most egregious violations, such as those
resulting in criminal convictions, involve actions against individuals
in addition to any separate actions against the business entity that
may be listed as petitioner on an H-2A or H-2B petition. For instance,
a recent high-profile investigation into egregious violations in the H-
2A program resulted in criminal convictions of several individuals
related, in part, to human trafficking and forced labor committed
against H-2 workers.\83\ To the extent that convicted individuals acted
in their capacity on behalf of petitioning employers and resulted in
violations of H-2 program requirements, such misconduct is entirely
relevant to the adjudication of future petitions by the petitioning
employers or their successors. Whether the denial of future petitions
would be mandatory or discretionary under the proposed regulation would
depend on the nature of the specific convictions or final
administrative or judicial actions. In other words, the mandatory bar
would apply if the relevant individual was the subject of one or more
actions listed in proposed 8 CFR 214.2(h)(10)(iii)(A), and USCIS would
have the ability to deny as
[[Page 65061]]
a matter of discretion if the relevant individual was the subject of
one or more actions listed in proposed 8 CFR 214.2(h)(10)(iii)(B).
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\83\ See DOJ, U.S. Attorney's Office, Southern District of
Georgia, Three men sentenced to federal prison on charges related to
human trafficking: Each admitted to role in forced farm labor in
Operation Blooming Onion, https://www.justice.gov/usao-sdga/pr/three-men-sentenced-federal-prison-charges-related-human-trafficking
(Mar. 31, 2022).
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Furthermore, for the purposes of discretionary denials under
proposed 8 CFR 214.2(h)(10)(iii)(B), proposed 8 CFR
214.2(h)(10)(iii)(D)(2) would include convictions and determinations
against ``an employee of the petitioning entity who a reasonable person
in the H-2A or H-2B worker's position would believe is acting on behalf
of the petitioning entity.'' Because employers can rightfully be
expected to exercise due diligence over its employees, it would not be
appropriate to allow petitioners to avoid liability merely by claiming
that an employee was not acting on the petitioner's behalf. At the same
time, to guard against the risk that the petitioner be liable for any
and all unauthorized actions of their employees, this liability would
apply only if a reasonable person in the worker's position would
believe that the employee was acting on behalf of the petitioning
entity. In addition, because liability for this population would be
limited to the discretionary denial provision, petitioners would have
an opportunity to provide information regarding the circumstances of
the employee's actions, and USCIS would consider all relevant factors
in determining whether the petitioner had established its intention and
ability to comply with H-2 program requirements.
3. Investigation and Verification Authority
Pursuant to its authorities under INA secs. 103(a) and 214, 8
U.S.C. 1103(a) and 1184, HSA sec. 451, 6 U.S.C. 271, and 8 CFR part
103, among other provisions of law, USCIS conducts inspections,
evaluations, verifications, and compliance reviews, to ensure that a
beneficiary is eligible for the benefit sought and that all laws have
been complied with before and after approval of such benefits. These
inspections, verifications, and other compliance reviews may be
conducted telephonically or electronically, as well as through physical
on-site inspections (site visits). The existing authority to conduct
inspections, verifications, and other compliance reviews is vital to
the integrity of the immigration system as a whole, and to the H-2A and
H-2B programs specifically. In this rule, DHS is proposing to add
regulations specific to the H-2A and H-2B programs to codify its
existing authority and clarify the scope of inspections and the
consequences of a refusal or failure to fully cooperate with these
inspections. See proposed 8 CFR 214.2(h)(5)(vi)(A) and 8 CFR
214.2(h)(6)(i)(F)(2). The authority of USCIS to conduct on-site
inspections, verifications, or other compliance reviews to verify
information does not relieve the petitioner of its burden of proof or
responsibility to provide information in the petition (and evidence
submitted in support of the petition) that is complete, true, and
correct.\84\
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\84\ See 8 CFR 103.2(b). In evaluating the evidence, the ``truth
is to be determined not by the quantity of evidence alone but by its
quality.'' Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010)
(quoting Matter of E-M-, 20 I&N Dec. 77, 80 (Comm'r 1989)).
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The proposed regulations would make clear that inspections may
include, but are not limited to, an on-site visit of the petitioning
organization's facilities, interviews with its officials, review of its
records related to compliance with immigration laws and regulations,
and interviews with any other individuals or review of any other
records that USCIS may lawfully obtain and that it considers pertinent
to verify facts related to the adjudication of the petition, such as
facts relating to the petitioner's and beneficiary's eligibility and
continued compliance with the requirements of the H-2 program. See
proposed 8 CFR 214.2(h)(5)(vi)(A) and 8 CFR 214.2(h)(6)(i)(F)(2). The
proposed provisions would also make clear that an H-2A or H-2B
petitioner and any employer must allow access to all sites where the
labor will be performed for the purpose of determining compliance with
applicable H-2A and H-2B requirements. The word ``employer'' used in
this context would include H-2B job contractors and employer-clients as
reported on the temporary labor certification \85\ and H-2A contractors
\86\ and joint employers, including member employers if the petitioner
is an association of agricultural employers. The petitioner and any
employers must also agree to USCIS officials interviewing H-2A or H-2B
workers, and any other similarly situated employees working for the H-
2A or H-2B employer or joint employer, if necessary, including in the
absence of the employer or the employer's representatives. The
interviews may take place on the employer's property, or as feasible,
at a neutral location agreed to by the employee and USCIS away from the
employer's property. The ability to inspect any and all of the various
locations where the labor will be performed is critical because the
purpose of a site inspection is to confirm information related to the
petition, and any one of these locations may have information relevant
to a given petition. In addition, DHS proposes to require access to the
sites where H-2A workers are housed. H-2A petitioners are required to
provide housing to H-2A workers at no cost to the workers. See INA sec.
218(c)(4) and 20 CFR 655.1304(d). While USCIS does not, and would not,
conduct inspections regarding the standard of housing provided, access
to H-2A worker housing is appropriate to ensure USCIS has access to the
workers themselves during the course of compliance review activities.
In addition, the proposed requirement that USCIS be allowed to
interview workers without the employer or its representatives present
is based on reports indicating that H-2 workers may currently
underreport abuse for fear of reprisal by employers.\87\ The presence
of employer representatives during such interviews can reasonably be
expected to have a chilling effect on the ability of interviewed
workers to speak freely, and in turn, impede the Government's ability
to ensure compliance with the terms and conditions of the H-2 program.
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\85\ H-2B job contractors and employer-clients must meet the
requirements of the definition of an H-2 ``employer'' under 20 CFR
655.5 and 655.19.
\86\ H-2A labor contractors must meet all of the requirements of
the definition of an H-2 ``employer'' under 20 CFR 655.103 and
655.132.
\87\ See GAO-15-154, at 37 (2015), https://www.gao.gov/assets/gao-15-154.pdf; CDM, Ripe for Reform 27 (2020), https://cdmigrante.org/ripe-for-reform/.
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The proposed regulation also states that if USCIS is unable to
verify facts related to the H-2 petition, including due to the failure
or refusal of the petitioner or employer to cooperate in an inspection
or other compliance review, then the lack of verification of pertinent
facts, including from failure or refusal to cooperate, may result in
denial or revocation of any petition for workers performing services at
the location or locations that are a subject of inspection or
compliance review. See proposed 8 CFR 214.2(h)(5)(vi)(A) and 8 CFR
214.2(h)(6)(i)(F)(2). A determination that a petitioner or employer
failed or refused to cooperate would be case-specific but could include
situations where one or more USCIS officers arrived at a petitioner's
worksite, made contact with the petitioner or employer and properly
identified themselves to a petitioner's representative, and the
petitioner or employer refused to speak to the officers or were refused
entry into the premises or refused permission to review human resources
records pertaining to the beneficiary(ies). Failure or refusal to
cooperate could also include situations where a petitioner or employer
agreed to speak but did not provide the
[[Page 65062]]
information requested within the time period specified, or did not
respond to a written request for information within the time period
specified. Before denying or revoking the petition, USCIS would provide
the petitioner an opportunity to rebut adverse information and present
information on its own behalf in compliance with 8 CFR 103.2(b)(16).
This new provision would put petitioners on notice of the specific
consequences for noncompliance, whether by them or the employer, if
applicable. As stated above, relevant employers would include H-2A
labor contractors and would also include joint employers. It has long
been established that it is the petitioner's burden to establish
eligibility for the immigration benefit sought. If USCIS conducts a
site visit in order to verify facts related to an H-2A or H-2B petition
or to verify that the beneficiary is being employed consistently with
the terms of the petition approval, and is unable to verify relevant
facts and otherwise confirm compliance, then the petition may be
properly denied or revoked. This would be true whether the unverified
facts relate to a petitioner worksite or another worksite at which a
beneficiary has been or will be placed by the petitioner. It would also
be true whether the failure or refusal to cooperate is by the
petitioner or employer.
4. H-2 Whistleblower Protection
As noted above, DHS is proposing to provide H-2A and H-2B workers
with ``whistleblower protection'' comparable to the protection
currently offered to H-1B workers. See proposed 8 CFR 214.2(h)(20).
Under current 8 CFR 214.2(h)(20), a qualifying employer seeking an
extension of stay for an H-1B nonimmigrant worker, or a change of
status for a worker from H-1B status to another nonimmigrant
classification, is able to submit documentary evidence indicating that
the beneficiary faced retaliatory action from their employer based on a
report regarding a violation of the employer's labor condition
application (LCA) obligations. If DHS determines such documentary
evidence to be credible, DHS may consider any loss or failure to
maintain H-1B status by the beneficiary related to such violation as an
``extraordinary circumstance'' for purposes of 8 CFR 214.1(c)(4) and 8
CFR 248.1(b). Those regulations authorize DHS to grant a discretionary
extension of H-1B stay or a change of status to another nonimmigrant
classification even when the worker has failed to maintain the
previously accorded status or where such status expired before the
extension of stay or change of status request was filed.\88\
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\88\ See Retention of EB-1, EB-2, and EB-3 Immigrant Workers and
Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81
FR 82398, 82452 (Nov. 18, 2016) (final rule); see also INA sec.
212(n)(2)(C)(v), 8 U.S.C. 1182(n)(2)(c)(V).
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When it proposed the H-1B whistleblower protection provision, DHS
noted that it was required under the American Competitiveness and
Workforce Improvement Act of 1998 (ACWIA), Public Law 101-649, to
create a process under which an H-1B nonimmigrant worker who files a
complaint with DOL regarding such illegal retaliation, and is otherwise
eligible to remain and work in the United States, could seek other
employment in the United States.\89\ While not similarly required by
statute in the H-2A and H-2B contexts, it is appropriate to afford such
protections to H-2A and H-2B workers in light of the vulnerability of
H-2 workers to exploitation and abuse as described at length above.
Given DHS's role in ensuring the integrity of the H-2 programs and
consistent with its statutory authorities under, e.g., INA secs. 103(a)
and 214, 8 U.S.C. 1103(a) and 1184, it is within DHS's authority and
interest to take steps to ensure that program violations come to
light.\90\ As discussed previously, a GAO report has noted that the
incidence of abuses in the H-2A and H-2B programs may currently be
underreported, in part due to workers' fear of retaliation by their
employer.\91\ The proposed whistleblower provision, in conjunction with
other proposed changes in this rulemaking, including those related to
grace periods and portability, may help mitigate the above-discussed
structural disincentives that workers could face with respect to
reporting abuses.
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\89\ See Retention of EB-1, EB-2, and EB-3 Immigrant Workers and
Program Improvements Affecting High-Skilled Nonimmigrant Workers, 80
FR 81900, 81920 (Dec. 31, 2015) (proposed rule) (citing ACWIA sec.
413 (INA sec. 212(n)(2)(C), 8 U.S.C. 1182(n)(2)(C))).
\90\ See, e.g., Cheney R.R. Co., Inc. v. ICC, 902 F.2d 66, 69
(D.C. Cir. 1990) (``[T]he contrast between Congress's mandate in one
context with its silence in another suggests not a prohibition but
simply a decision not to mandate any solution in the second context,
i.e., to leave the question to agency discretion.'').
\91\ See GAO-15-154, at 37 (2015), https://www.gao.gov/assets/gao-15-154.pdf.
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In order to qualify under the new provision at proposed 8 CFR
214.2(h)(20)(ii), DHS proposes requiring ``credible documentary
evidence . . . indicating that the beneficiary faced retaliatory action
from their employer based on a reasonable claim of a violation or
potential violation of any applicable program requirements or based on
engagement in another protected activity'' to be submitted in support
of the relevant petition on the beneficiary's behalf seeking an
extension of stay or a change of status to another classification. To
allow flexibility in the types of documentation that may be submitted,
DHS has not proposed specifying any particular form that a ``claim'' or
the ``credible documentary evidence'' must take. In this respect, the
proposed provision is similar to the approach taken in the H-1B
whistleblower provision. In the NPRM that included the H-1B
whistleblower provision, DHS noted that ``[c]redible documentary
evidence may include a copy of the complaint filed by the individual,
along with corroborative documentation that such a complaint has
resulted in retaliatory action against the individual . . . .'' \92\ In
the final rule, DHS noted that it ``has not limited the scope of
credible evidence that may be included to document an employer
violation. Rather, DHS generally requests credible documentary evidence
indicating that the beneficiary faced retaliatory action from their
employer due to a report regarding a violation of the employer's LCA
obligations.'' \93\ Thus, while a formal written complaint, if
available, would be acceptable under the proposed H-2A and H-2B
whistleblower provision, DHS does not propose a requirement that the
submitted evidence must include a formal written complaint, written
evidence that the worker engaged in protected activity, or another type
of written report filed by the affected H-2 worker. DHS notes that a
report could be made orally.
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\92\ See Retention of EB-1, EB-2, and EB-3 Immigrant Workers and
Program Improvements Affecting High-Skilled Nonimmigrant Workers, 80
FR 81900, at 81920 (Dec. 31, 2015).
\93\ See Retention of EB-1, EB-2, and EB-3 Immigrant Workers and
Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81
FR 82398, 82454 (Nov. 18, 2016).
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DHS is proposing some variations from the language used in the
existing H-1B whistleblower provision in order to increase H-2 workers'
protection from threats that could chill workers from exercising their
rights. For instance, the proposed H-2 provision would specify that the
claim could relate to a violation ``or potential violation,'' as long
as such claim was reasonable, to reflect that even if a worker is
mistaken about the existence of a violation, a complaint regarding a
potential violation is protected from retaliation. Proposed
214.2(h)(20)(ii). Furthermore, a report (whether made
[[Page 65063]]
orally or in writing) is not required under proposed 8 CFR
214.2(h)(20)(ii) in that the retaliatory action could be either based
on ``a reasonable claim'' or ``based on engagement in another protected
activity.'' In this sense, the proposed H-2 whistleblower provision
would be broader than the current H-1B whistleblower provision. Under
proposed 8 CFR 214.2(h)(20)(ii), a report would not be required if the
H-2 petitioner demonstrates that the retaliatory action was based on a
worker's engagement in a protected activity. Examples of protected
activity include making a complaint to a manager, employer, a labor
union, or a government agency (including a complaint where the worker
reasonably believes there is a violation or potential violation of
applicable program requirements or based on engagement in other
protected activities but was mistaken about the existence of a
violation or an adjudicator determines that the employer did not
violate the applicable program, and an employer's mistaken belief that
a worker has made a complaint); cooperating with a government
investigation; requesting payment of wages; refusing to return back
wages to the employer; complaints by a third party on behalf of an
employee; consulting with a labor agency; exercising rights or
attempting to exercise rights, such as requesting certain types of
leave; testifying at trial; and consulting with an employee of a legal
assistance program or an attorney on matters related to their
employment.\94\
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\94\ See 20 CFR 655.135(h); 29 CFR 501.4(a); DOL Wage and Hour
Division (WHD), Field Assistance Bulletin No. 2022-02, https://www.dol.gov/sites/dolgov/files/WHD/fab/fab-2022-2.pdf.
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DHS recognizes that employer retaliation is not limited to
termination of employment and could include any number of adverse
actions, including harassment, intimidation, threats, restraint,
coercion, blacklisting, intimidating employees to return back wages
found due (``kickbacks''), or discrimination, that could dissuade an
employee from raising a concern about a possible violation or engaging
in other protected activity.\95\ These examples do not identify all
potential fact patterns that could constitute retaliatory action. To
ensure flexibility, and to conform to the current approach for H-1B
petitions at 8 CFR 214.2(h)(20), DHS is not proposing to define
``retaliatory action.'' Finally, DHS notes that the proposed
retaliatory action provision under 8 CFR 214.2(h)(20)(i)-(ii) would not
preclude other sets of facts from potentially qualifying as
``extraordinary circumstances'' under 8 CFR 214.1(c)(4) and 8 CFR
248.1(b). For example, if an H-2 worker is involved in a labor dispute
or terminates employment because of unsafe working conditions, that
could still qualify as ``extraordinary circumstances'' under 8 CFR
214.1(c)(4) and 8 CFR 248.1(b) even if the worker did not face
retaliatory action from the employer, as required under proposed 8 CFR
214.2(h)(20)(ii).
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\95\ See 81 FR 82408, 82428. Cf. Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006) (concluding that an adverse
action is one that might dissuade a reasonable worker from asserting
his or her rights).
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B. Worker Flexibilities
1. Grace Periods
DHS seeks to expand and harmonize the grace periods afforded to H-2
workers. Expanding the length and types of grace periods afforded to H-
2 workers is intended to increase worker flexibility, mobility, and
protections. Furthermore, harmonizing grace periods for H-2A and H-2B
workers should reduce confusion and better ensure consistency in
granting the appropriate grace periods.
First, DHS seeks to provide workers in both H-2 classifications
with an initial grace period of up to 10 days prior to the petition's
validity period. Currently, an H-2A nonimmigrant will be admitted for
an additional period of ``up to one week'' before the beginning of the
approved validity period, see 8 CFR 214.2(h)(5)(viii)(B), while an H-2B
nonimmigrant will be admitted for an additional period of ``up to 10
days'' before the validity period begins, see 8 CFR 214.2(h)(13)(i)(A).
Under proposed 8 CFR 214.2(h)(5)(viii)(B), DHS seeks to extend the
initial grace period for H-2A nonimmigrants to up to 10 days to align
it with the initial 10-day grace period already afforded to H-2B
nonimmigrants under current 8 CFR 214.2(h)(13)(i)(A). DHS would
maintain the initial 10-day grace period currently afforded to H-2Bs at
8 CFR 214.2(h)(13)(i)(A) but proposes to codify it at proposed 8 CFR
214.2(h)(6)(vii)(A).\96\
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\96\ Currently, 8 CFR 214.2(h)(6)(vii) only applies to traded
professional H-2B athletes. DHS proposes to move this existing
provision into a new paragraph (D) within 8 CFR 214.2(h)(6)(vii) and
would move provisions generally relating to H-2B periods of
admission and limits on stay under current 8 CFR 214.2(h)(13) to
proposed 8 CFR 214.2(h)(6)(vii)(A) through (C).
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The initial 10-day grace period allows H-2B nonimmigrant workers to
make necessary preparations for their employment in the United States.
Because an initial 10-day grace period is a reasonable period of time
to allow for preparation for employment in the United States, DHS has
previously afforded the 10-day grace period to other nonimmigrant
classifications.\97\ For this reason, DHS now proposes to extend this
initial 10-day grace period to H-2A workers to benefit workers and
employers. As with the existing initial grace period for H-2A and H-2B
nonimmigrants, the proposed initial grace period would apply to their
dependents in H-4 classification by virtue of 8 CFR 214.2(h)(9)(iv)
(``The spouse and children of an H nonimmigrant, if they are
accompanying or following to join such H nonimmigrant in the United
States, may be admitted, if otherwise admissible, as H-4 nonimmigrants
for the same period of admission or extension as the principal spouse
or parent.'').
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\97\ Nonimmigrants in the E-1, E-2, E-3, H-1B1, L-1, O-1, and TN
classifications are also afforded an initial 10-day grace period
under 8 CFR 214.1(l)(i).
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DHS further seeks to harmonize the grace periods by providing both
H-2A and H-2B nonimmigrants a grace period of up to 30 days following
the expiration of the petition, subject to the 3-year limitation on
stay. See proposed 8 CFR 214.2(h)(5)(viii)(B); proposed 8 CFR
214.2(h)(6)(vii)(A). Having consistent grace periods for H-2A and H-2B
workers should reduce confusion and better ensure consistency in
granting the appropriate grace periods. Currently, H-2A nonimmigrants
have a 30-day grace period following the expiration of their petition
under 8 CFR 214.2(h)(5)(viii)(B), while H-2B nonimmigrants have a 10-
day grace period following the expiration of their petition under 8 CFR
214.2(h)(13)(i)(A). Under proposed 8 CFR 214.2(h)(6)(vii)(A), both H-2A
and H-2B nonimmigrants would have the same initial grace period of up
to 10 days before the beginning of the approved validity period and the
same grace period of up to 30 days following the expiration of the H-2
petition.
The post-validity 30-day grace period at current 8 CFR
214.2(h)(5)(viii)(B) was provided to H-2A workers so that they would
have enough time to prepare for departure or apply for an extension of
stay based on a subsequent offer of employment.\98\ In establishing
this 30-day grace period for H-2A workers, DHS also noted that this
period would facilitate the then newly provided benefit of portability
to E-Verify employers.\99\ As DHS is now proposing to extend
portability to H-2B workers, DHS proposes to also extend this 30-day
[[Page 65064]]
grace period to H-2B workers in order to facilitate the use of this
benefit. As proposed, USCIS will include such grace period when
extending workers' H-2A or H-2B status or changing their status to H-2A
or H-2B status, subject to the 3-year maximum limitation of stay.
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\98\ See Changes to Requirements Affecting H-2A Nonimmigrants,
73 FR 76891, 76903 (Dec. 18, 2008).
\99\ See id.
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In this context, ``subject to the 3-year maximum limitation of
stay'' means that an H-2 worker who has reached their 3-year limitation
of stay would not be afforded a post-validity grace period, or that an
H-2 worker approaching their 3-year limitation of stay may be afforded
a post-validity grace period of less than 30 days. Because grace
periods count towards an H-2 worker's 3-year limitation on stay,
proposed 8 CFR 214.2(h)(5)(viii)(B) and proposed 8 CFR
214.2(h)(6)(vii)(A) would both state that, following the expiration of
the H-2A or H-2B petition, the H-2 worker will be admitted for an
additional period of ``up to 30 days subject to the 3-year
limitation.'' This would represent a change from the language at
current 8 CFR 214.2(h)(5)(viii)(B) and 8 CFR 214.2(h)(13)(i)(A) which
do not contain the same ``up to'' or ``subject to'' language with
respect to the 30-day or 10-day post-validity grace period for H-2A
workers or H-2B workers, but would clarify, consistent with USCIS
practice, that the general 3-year maximum limit on H-2A or H-2B stay
includes their respective grace periods. Current USCIS practice is to
shorten the post-validity grace period if the H-2 worker is approaching
their 3-year maximum limitation of stay so that the total period of
stay does not exceed 3 years. Proposed 8 CFR 214.2(h)(5)(viii)(B) and
proposed 8 CFR 214.2(h)(6)(vii)(A) would conform with and clarify
current practice.\100\
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\100\ DHS believes its previous characterization of the post-
validity grace periods as ``absolute'' could be erroneously
construed as extending the maximum period of H-2 stay beyond three
years. See Changes to Requirements Affecting H-2A Nonimmigrants, 73
FR 8230, 8235 (Feb. 18, 2008) (``This rule proposes to extend the H-
2A admission period following the expiration of the H-2A petition
from not more than ten days to an absolute thirty-day period. See
proposed 8 CFR 214.2(h)(5)(viii)(B).''). The reference to ``an
absolute thirty-day'' period should have read ``a maximum thirty-day
period, subject to an absolute maximum period of H-2A stay of three
years.'' This NPRM proposes to clarify this point.
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Third, DHS seeks to provide a new 60-day grace period following a
cessation of H-2 employment, for example, if the H-2 worker was
terminated, has resigned, or otherwise ceased employment prior to the
end date of their authorized validity period. Under proposed 8 CFR
214.2(h)(13)(i)(C), an H-2A or H-2B beneficiary (and their dependents)
would not be deemed to have failed to maintain nonimmigrant status, and
would not accrue any period of unlawful presence for purposes of
section 212(a)(9) of the Act, 8 U.S.C. 1182(a)(9), solely on the basis
of a cessation of the employment on which the beneficiary's
classification was based, for 60 consecutive days or until the end of
the authorized period of admission, whichever is shorter. The
``authorized period of admission'' in proposed 8 CFR 214.2(h)(13)(i)(C)
refers to the end date listed on a worker's Form I-94, which will
normally be a date 30 days after the end of the petition validity
period to account for the 30-day grace period at proposed 8 CFR
214.2(h)(5)(viii)(B) or proposed 8 CFR 214.2(h)(6)(vii). Accordingly,
an H-2 worker who ceases employment less than 60 days before the end of
the period of admission will be afforded a grace period through the
remainder of the authorized period of admission.
The 60-day grace period under proposed 8 CFR 214.2(h)(13)(i)(C)
would be available only once during each authorized period of
admission. In addition, an H-2 worker who already had a 60-day grace
period for cessation of employment under proposed 8 CFR
214.2(h)(13)(i)(C) would not receive another 30-day grace period under
proposed 8 CFR 214.2(h)(5)(viii)(B) or proposed 8 CFR 214.2(h)(6)(vii)
at the end of the 60-day grace period.
Proposed 8 CFR 214.2(h)(13)(i)(C) would offer relief to H-2 workers
whose employment ceased before the expiration of their petition
validity, regardless of the reason for employment cessation. The
proposed 60-day grace period may be used to seek new employment, make
preparations for departure from the United States, or seek a change of
status to a different nonimmigrant classification. For example, an H-2
worker could use this grace period to seek new employment after leaving
an abusive employment situation, stopping work due to unforeseen
hazardous conditions, or if their employer had to terminate employment
due to contract impossibility.\101\ DHS is proposing this 60-day grace
period following a cessation of employment to allow H-2 workers
sufficient time to respond to sudden or unexpected changes related to
their employment. Because a cessation of employment may come as an
unexpected and harsh burden on an already financially vulnerable H-2
worker, and the likelihood that a 30-day grace period would not be
sufficient to find new employment or make other appropriate
arrangements, DHS is proposing a 60-day grace period as opposed to the
shorter 30-day grace period following the expiration of the H-2
petition under proposed 8 CFR 214.2(h)(5)(viii)(B) or proposed 8 CFR
214.2(h)(6)(vii).
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\101\ See 20 CFR 655.122(o).
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While the 60-day grace period at proposed 8 CFR 214.2(h)(13)(i)(C)
would be similar to the one afforded to nonimmigrants included under 8
CFR 214.1(l)(2), there are notable differences. Unlike the grace period
in 8 CFR 214.1(l)(2), the grace period at proposed 8 CFR
214.2(h)(13)(i)(C) would be set at either 60 days or the end date of
the authorized period of admission, whichever is shorter.'' \102\ DHS's
intent in proposing a grace period that would be set at either 60 days,
or the end date of the authorized period of admission if shorter than
60 days, is to give more certainty to affected H-2 workers of the time
they have in the grace period. Giving more certainty of the length of
the grace period could help alleviate some fears held by H-2 workers
who are facing abusive employment situations, or otherwise wish to
change jobs, but are reluctant to leave such employment due to
uncertainty surrounding whether they would benefit from a grace period
and how long the grace period would be.
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\102\ Retention of EB-1, EB-2, and EB-3 Immigrant Workers and
Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81
FR 82398, 82438-39 (Nov. 18, 2016).
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The rulemaking promulgating current 8 CFR 214.1(l)(2) explained
that the 60-day grace period is discretionary, and that DHS may
determine whether to grant or shorten the grace period based on an
individualized assessment that considers the totality of the
circumstances surrounding the cessation of employment and the
beneficiary's activities after such cessation.\103\ While this
reasoning remains valid for highly skilled nonimmigrants in the E-1, E-
2, E-3, H-1B, H-1B1, L-1, O-1, and TN classifications, DHS believes
this reasoning is less persuasive for H-2 nonimmigrants who, as
discussed throughout this proposed rule, generally are particularly
vulnerable to abusive labor practices. As such, it is our view that H-2
workers would benefit greatly from the increased certainty of this
proposed 60-day grace period.
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\103\ 81 FR 82439.
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DHS acknowledges that proposed 8 CFR 214.2(h)(13)(i)(C) would not
prevent an H-2 worker whose employer had good cause to terminate their
employment from receiving the 60-day grace period upon cessation of
[[Page 65065]]
employment. The rulemaking promulgating current 8 CFR 214.1(l)(2)
explained that the ``up to'' language was specifically intended to
allow DHS to shorten or entirely refuse the 60-day grace period for
violations of status, unauthorized employment during the grace period,
fraud or national security concerns, or criminal convictions, among
other reasons.\104\ However, DHS believes that situations where it
would need to shorten or eliminate the grace period for such reasons
would be rare, and that the importance of protecting H-2 workers
substantially outweighs the risk that some H-2 workers who might not be
deserving would also benefit from this proposed provision. Further, the
proposed limitation that this grace period would apply ``solely on the
basis of a cessation of employment'' (emphasis added) should mitigate
the risk that some workers would try to use this grace period to engage
in unauthorized employment or other unlawful behavior.
---------------------------------------------------------------------------
\104\ 81 FR 82438-39.
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Proposed 8 CFR 214.2(h)(13)(i)(C) would also specify that the H-2
worker ``will not accrue any period of unlawful presence under section
212(a)(9) of the Act (8 U.S.C. 1182(a)(9))'' solely on the basis of a
cessation of employment. This language is intended to assure H-2
workers that a cessation of employment, in and of itself, would not
automatically start the accrual of unlawful presence. While current 8
CFR 214.1(l)(2) does not explicitly mention unlawful presence, the
phrase in current 8 CFR 214.1(l)(2) ``shall not be considered to have
failed to maintain nonimmigrant status'' already implies that the
nonimmigrants covered by that provision also will not accrue unlawful
presence solely on the basis of a cessation of the employment.
Therefore, the inclusion of the phrase ``will not accrue any period of
unlawful presence under section 212(a)(9) of the Act (8 U.S.C.
1182(a)(9))'' in proposed 8 CFR 214.2(h)(13)(i)(C) would not represent
a substantive change from current 8 CFR 214.1(l)(2).
Proposed 8 CFR 214.2(h)(13)(i)(C) would not require H-2 workers to
notify DHS or USCIS that they are ceasing employment in order to take
advantage of the new grace period. DHS notes that it has not proposed
to eliminate the separate requirements that H-2A and H-2B employers
notify DHS when a worker does not report for work, is terminated, or
the work is completed more than 30 days early under 8 CFR
214.2(h)(5)(vi)(B) and 8 CFR 214.2(h)(6)(i)(F), as this information
collection continues to have value. However, as is reinforced in the
grace period provision at proposed 8 CFR 214.2(h)(13)(i)(C), such
notification by an employer would not be considered an indication that
a worker is immediately out of status. DHS notes that in subsequent
petitions on the workers' behalf, information or evidence may be
requested regarding the date of cessation to demonstrate maintenance of
status (for instance, by showing that a new petition requesting
extension of stay was filed within 60 days after the beneficiary ceased
employment with the prior employer).
Fourth, DHS proposes to provide a new 60-day grace period following
the revocation of an approved H-2 petition. Under proposed 8 CFR
214.2(h)(11)(iv), an H-2 beneficiary (and their dependents) would not
be deemed to have failed to maintain nonimmigrant status, and would not
accrue any period of unlawful presence under section 212(a)(9) of the
Act (8 U.S.C. 1182(a)(9)), solely on the basis of the petition
revocation for a 60-day period following the revocation of the
petitioner's H-2 petition on their behalf, or until the end of the
authorized period of admission, whichever is shorter. DHS is proposing
this additional 60-day grace period following revocation of a petition
approval to give H-2 workers another layer of protection and stability
because a worker cannot always anticipate if and when the H-2 petition
on their behalf may be revoked, and moreover, if and when the
petitioning employer may provide them with notification of the petition
revocation. This proposed 60-day grace period would provide these
workers with additional time to make arrangements for departure, to
seek an extension based on a subsequent offer of employment, or seek a
change of status to a different nonimmigrant classification. However,
depending on when a worker reaches their 3-year maximum limitation of
stay, the post-revocation grace period under proposed 8 CFR
214.2(h)(11)(iv) may be less than 60 days or may not be available.\105\
As the post-revocation grace periods for both H-2A and H-2B workers are
covered by proposed 8 CFR 214.2(h)(11)(iv), DHS is also proposing to
remove the current provision at 8 CFR 214.2(h)(5)(xii).\106\
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\105\ As with current practice, all time spent in the United
States pursuant to the proposed 10-day, 30-day, and 60-day grace
periods described above would be considered time spent in H-2A or H-
2B status and would count toward the 3-year limitation of stay.
\106\ The existing provision at 8 CFR 214.2(h)(5)(xii) also
includes language providing that an employer's H-2A petition is
immediately and automatically revoked if DOL revokes the underlying
TLC, but that language is not needed as it is covered by the
existing provision at 8 CFR 214.2(h)(11)(ii).
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None of the proposed grace periods would independently authorize
the beneficiary to work. See proposed 8 CFR 214.2(h)(5)(viii)(B)
(``Unless authorized under 8 CFR 274a.12, the beneficiary may not work
except during the validity period of the petition.''); proposed 8 CFR
214.2(h)(6)(vii) (``Unless authorized under 8 CFR 274a.12, the
beneficiary may not work except during the validity period of the
petition.''); proposed 8 CFR 214.2(h)(11)(iv) (``During such a period,
the alien may only work as otherwise authorized under 8 CFR
274a.12.''); and proposed 8 CFR 214.2(h)(13)(i)(C) (``During such a
period, the alien may only work as otherwise authorized under 8 CFR
274a.12.''). In this regard, DHS proposes to stay consistent with the
current framework for grace periods afforded to H-2 workers at 8 CFR
214.2(h)(5)(viii)(B) (``Unless authorized under 8 CFR 274a.12 . . .,
the beneficiary may not work except during the validity period of the
petition.'') \107\ and 8 CFR 214.2(h)(13)(i)(A) (``The beneficiary may
not work except during the validity period of the petition.''), as well
as the grace periods afforded to other nonimmigrant classifications at
8 CFR 214.1(l)(1) (``Unless authorized under 8 CFR 274a.12, the alien
may not work except during the validity period of the petition.'') and
8 CFR 214.1(l)(2) (``Unless authorized under 8 CFR 274a.12, the alien
may not work except during such a period.''). None of these existing
grace period provisions independently authorize employment. It has long
been the policy of DHS that grace periods do not authorize
employment.\108\
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\107\ The current provision at 8 CFR 214.2(h)(5)(viii)(B)
contains a reference to employment authorization under section
214(n) of the Act. However, as that section of the Act relates only
to portability for H-1B nonimmigrants, DHS proposes to eliminate
that reference from proposed 8 CFR 214.2(h)(5)(viii)(B).
\108\ See, e.g., Retention of EB-1, EB-2, and EB-3 Immigrant
Workers and Program Improvements Affecting High-Skilled Nonimmigrant
Workers, 81 FR 82398, 82439 (Nov. 18, 2016) (``Consistent with
longstanding policy, DHS declines to authorize individuals to work
during these grace periods.'').
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Nevertheless, stakeholders have recommended that DHS provide a
grace period with employment authorization.\109\ To the extent that
work authorization for H-2 workers prior to or subsequent to petition
validity and after a petition is revoked is permissible, consistent
with INA sec.
[[Page 65066]]
214(c)(1), DHS does not consider a grace period with employment
authorization to be feasible and therefore did not propose such a
provision in this NPRM. For example, DHS considered operational
challenges and costs associated with issuing appropriate evidence of
work authorization within such a short period of time. DHS ultimately
determined that creating a process whereby, upon cessation of
employment, a worker would file, with fee, a request for work
authorization for a limited period of 60 days and receive evidence of
that work authorization before the 60-day period had elapsed, likely
would not be an attractive option for the filer nor operationally
feasible for the agency. DHS additionally considered whether it should
allow work authorization without issuing an actual employment
authorization document to the worker. DHS ultimately determined this to
be an unacceptable potential solution in recognition of the
difficulties employers would face in satisfying the employment
verification requirements of section 274A of the Act, as well as the
potential for abuse or fraud inherent in allowing employment
authorization without proper documentation.
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\109\ See, e.g., Letter from Migration that Works to DHS dated
May 17, 2022; Letter from Centro de los Derechos del Migrante, Inc.
to DHS dated June 1, 2022. These letters are included in the docket
for this proposed rulemaking.
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DHS did consider different lengths of time for the grace periods
under proposed 8 CFR 214.2(h)(11)(iv) and proposed 8 CFR
214.2(h)(13)(i)(C), specifically, 30 or 90 days. However, DHS chose to
propose 60 days in order to be consistent with the grace period already
provided to other nonimmigrant classifications and because 60 days
should allow sufficient time to respond to sudden or unexpected changes
related to their employment.\110\
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\110\ As stated in the final rule codifying the 60-day grace
period for cessation of employment under 8 CFR 214.1(l)(2) that
applies to other nonimmigrant classifications, 60 days allows
``sufficient time to respond to sudden or unexpected changes related
to their employment.'' Retention of EB-1, EB-2, and EB-3 Immigrant
Workers and Program Improvements Affecting High-Skilled Nonimmigrant
Workers, 81 FR 82398, 82438 (Nov. 18, 2016).
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2. Transportation Costs for Revoked H-2 Petitions
In addition to the post-revocation grace period discussed above,
proposed 8 CFR 214.2(h)(11)(iv) would state that, upon revocation of an
H-2A or H-2B petition, the petitioning employer would be liable for the
H-2 beneficiary's reasonable costs of return transportation to their
last place of foreign residence abroad, unless the beneficiary obtains
an extension of stay based on an approved petition in the same
classification filed by a different employer. Such a requirement
already exists at 8 CFR 214.2(h)(6)(i)(C) for H-2B revocations, but not
for H-2A revocations. As DHS recognized when promulgating 8 CFR
214.2(h)(6)(i)(C) in 2008, this requirement would ``minimize the costs
to H-2B workers who are affected by the revocation of a petition.''
\111\ This proposed provision is necessary in light of the overall
intent of this regulation to provide protections for both H-2A and H-2B
workers from bearing fees and costs that are primarily for the benefit
of their H-2 employers, ensuring parallel treatment of prohibited fees
for both H-2A and H-2B workers, and providing consistency with current
DOL regulations governing return transportation fees with respect to H-
2A workers.\112\ Finally, DHS proposes to codify this requirement
within 8 CFR 214.2(h)(11)(iv), which deals generally with petition
revocations, rather than having duplicate language in both 8 CFR
214.2(h)(5) and (6).
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\111\ See Changes to Requirements Affecting H-2B Nonimmigrants
and Their Employers, 73 FR 49109, 49113 (Aug. 20, 2008).
\112\ See current 20 CFR 655.122(h)(2). Subsequent to DHS's
publication of its current H-2A regulations in 2008, the Department
of Labor revised its H-2A regulations regarding return
transportation fees. See 87 FR 61660 (Oct. 12, 2022); 75 FR 6883
(Feb. 12, 2010); see also DOL Wage and Hour Division, Field
Assistance Bulletin, 2009-02, available at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FieldAssistanceBulletin2009_2.pdf; current 8 CFR 214.2(h)(5)(xi)(A)
(specifically limiting the payment of costs and fees by H-2A
beneficiaries to those not prohibited by DOL regulations).
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DHS is not proposing changes related to transportation costs
outside of the revocation scenario. Under the existing regulation at 8
CFR 214.2(h)(6)(vi)(E), an employer is responsible for the return
transportation costs of an H-2B worker if the worker is dismissed for
any reason other than if the worker ``voluntarily terminates his or her
employment'' prior to the expiration of the validity period. DHS notes
that an H-2B worker who is leaving an abusive employment situation
would not be considered to have ``voluntarily'' terminated the
employment, so the employer's responsibility for transportation costs
would still apply. While there is no parallel provision in the DHS H-2A
regulations, DOL H-2A regulations at 20 CFR 655.122(h)(2) and (n)
already render an employer responsible to pay for return transportation
costs when a worker's employment ends early, unless the worker
``voluntarily abandons employment'' or is terminated for cause and the
employer properly notifies DOL and DHS of the separation, and related
DOL guidance clarifies that departure due to intolerable working
conditions would not constitute voluntary abandonment.\113\ With
respect to both the H-2A and H-2B classifications, if USCIS were to
determine that an employer failed to pay transportation costs that were
required under DHS or DOL regulations, thereby passing the costs on to
H-2 workers, this failure would constitute an indirect collection of a
prohibited fee under the provisions at 8 CFR 214.2(h)(5)(xi)(A) or 8
CFR 214.2(h)(6)(i)(B), respectively, and under the proposed regulations
would subject the employer to the resulting consequences described in 8
CFR 214.2(h)(5)(xi)(B) and (C) or 8 CFR 214.2(h)(6)(i)(C) and (D).
Alternately, depending on the nature of any related final
determinations made by USCIS or DOL, such action could potentially make
the employer subject to the consequences described in 8 CFR
214.2(h)(10)(iii)(A) through (D), if applicable.
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\113\ See DOL Wage and Hour Division, Field Assistance Bulletin
No. 2012-1 (Feb. 28, 2012) (``[I]f a worker departs employment
because working conditions have become so intolerable that a
reasonable person in the worker's position would not stay, the
worker's departure may constitute a constructive discharge and not
abandonment.''), https://www.dol.gov/agencies/whd/field-assistance-bulletins/2012-1.
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3. Portability
To provide additional flexibility to H-2 workers as well as to
employers by allowing workers in the United States to begin new
employment in the same classification more expeditiously, thereby
avoiding gaps in employment and potential hardship to workers, as well
as provide employers with better access to available and willing
workers, DHS proposes to permanently provide portability to H-2
workers. Specifically, DHS proposes that an eligible H-2A or H-2B
nonimmigrant would be authorized to start new employment upon the
proper filing of a nonfrivolous H-2A or H-2B extension of stay petition
filed on behalf of the worker, or as of the requested start date,
whichever is later. See proposed 8 CFR 214.2(h)(2)(i)(I); proposed 8
CFR 274a.12(b)(21); see also proposed 8 CFR 214.2(h)(2)(i)(D).\114\
Proposed 8 CFR 214.2(h)(2)(i)(I) would define an ``eligible H-2A or H-
2B nonimmigrant'' as an individual: (1) who has been lawfully admitted
into the United States in, or otherwise provided, H-2A or H-2B
nonimmigrant status; (2) on whose behalf a nonfrivolous H-2A or
[[Page 65067]]
H-2B petition \115\ for new employment has been properly filed,
including a petition for new employment with the same employer, with a
request to amend or extend the H-2A or H-2B nonimmigrant's stay in the
same classification that the nonimmigrant currently holds, before the
H-2A or H-2B nonimmigrant's period of stay authorized by the Secretary
of Homeland Security expires; and (3) who has not been employed without
authorization in the United States from the time of last admission
through the filing of the petition for new employment.\116\
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\114\ In addition to adding a reference to the newly added
portability provision, DHS's proposed changes to 8 CFR
214.2(h)(2)(i)(D) include replacing the reference to ``Form I-129''
with a more general reference to a petition ``for a nonimmigrant
worker.'' Where feasible, DHS prefers to change specific form names
to a more general reference in case of future changes to the form
name or number.
\115\ For instance, the filing of a petition unsupported by a
temporary labor certification would be considered frivolous.
\116\ This definition would be the same definition of who is
``eligible'' for H-1B portability under 8 CFR 214.2(h)(2)(i)(H).
More generally, the H-2 portability provisions at proposed 8 CFR
214.2(h)(2)(i)(I) substantively mirror the existing H-1B portability
provisions at 8 CFR 214.2(h)(2)(i)(H), except that the H-2
portability provisions would not refer to ``concurrent'' employment
because H-2 employment must be full-time, thereby precluding
concurrent employment. The H-2 portability provisions would also
contain new language at proposed 8 CFR 214.2(h)(2)(i)(I)(3).
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Currently, H-2A nonimmigrants only have portability if they are
porting to a new employer that has enrolled in and is a participant in
good standing in E-Verify, subject to any conditions and limitations
noted on the initial authorization, except as to the employer and place
of employment. See 8 CFR 274a.12(b)(21). DHS initially limited H-2A
portability to E-Verify employers to incentivize the use of E-Verify
and to reduce opportunities for unauthorized workers to work in the
agricultural sector.\117\ However, because DHS is seeking to increase
the ability of H-2A workers to change employers, especially in
circumstances where a worker is facing dangerous or abusive working
conditions, the proposed portability provision for H-2A workers would
not be limited to E-Verify employers, thus allowing greater flexibility
to workers. See proposed 8 CFR 274a.12(b)(21).\118\
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\117\ See Changes to Requirements Affecting H-2A Nonimmigrants,
73 FR 8230, 8235 (Feb. 13, 2008) (NPRM); Changes to Requirements
Affecting H-2A Nonimmigrants, 73 FR 76891, 76905 (Dec. 18, 2008)
(final rule).
\118\ DHS remains committed to promoting the use of E-Verify to
ensure a legal workforce; however, DHS no longer believes it is
appropriate to restrict the benefit of portability to H-2A workers
seeking employment with E-Verify employers particularly given the
need to increase these workers' mobility.
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While H-2B nonimmigrants can currently port to a new H-2B employer,
this portability flexibility is only temporarily in place until the end
of January 24, 2024. In contrast, the proposed portability provisions
for both H-2A and H-2B workers would be permanent and would apply to
new employment in the same classification with the same or different
employer. See proposed 8 CFR 214.2(h)(2)(i)(I)(1)(ii) (``including a
petition for new employment with the same employer''). Further, current
H-2A portability is limited to a maximum of 120 days from the receipt
date of the new petition, see 8 CFR 274a.12(b)(21), while the current
temporary H-2B portability is only valid for up to 60 days as of the
receipt date of the new petition or the start date on the new petition,
whichever is later, see 8 CFR 214.2(h)(29); 8 CFR 274a.12(b)(33). The
proposed H-2 portability that allows new employment would continue as
long as the new H-2 petition remains pending, and would automatically
cease upon the adjudication or withdrawal of the H-2 petition. See
proposed 8 CFR 214.2(h)(2)(i)(I)(2) and proposed 8 CFR 274a.12(b)(21).
In addition, the proposed portability provision would not limit
employment to the conditions and limitations noted on the initial
authorization, but would allow workers to perform entirely different
jobs within the same nonimmigrant classification, while still being
afforded the protections of this proposed rule. See proposed 8 CFR
274a.12(b)(21). Doing so would provide more flexibility to employers
and workers, regardless of whether the beneficiary would begin a new
job with the same employer or move to a new employer. Specifically,
while H-2A and H-2B workers, among others, can currently continue to
work for the same employer for a period not to exceed 240 days based on
a timely filed extension of stay pursuant to 8 CFR 274a.12(b)(20), that
authorization is limited to the conditions and limitations noted on the
initial authorization, and therefore requires the worker to continue to
be employed in the position described in the initially approved
petition. In contrast, the proposed portability provision provides more
flexibility for both employers and beneficiaries by allowing
beneficiaries to start working in the same or different job within the
same nonimmigrant classification pursuant to a newly filed nonimmigrant
visa petition after that petition is properly filed but before it is
approved. See proposed 8 CFR 214.2(h)(2)(i)(I).
The proposed provision also addresses circumstances where there may
be successive portability petitions. In those cases the ability to port
would end when any successive H-2A or H-2B portability petition in the
succession is denied, unless the beneficiary's previously approved
period of H-2A or H-2B status remains valid. See proposed 8 CFR
214.2(h)(2)(i)(I)(4)(ii). The denial of a successive portability
petition would not, however, affect the ability of an H-2A or H-2B
beneficiary to continue or resume working in accordance with the
previously approved H-2A or H-2B petition, if that petition remains
valid and the beneficiary maintained H-2A or H-2B status or a period of
authorized stay and has not been employed in the United States without
authorization. See proposed 8 CFR 214.2(h)(2)(i)(I)(4)(iii). Note that
the portability provisions at proposed 8 CFR 214.2(h)(2)(i)(I) would
not allow an H-2A worker to port to an H-2B employer, or vice versa.
DHS is also proposing to clarify that a beneficiary of an H-2
portability petition generally is considered to have been in a period
of authorized stay during the pendency of the petition and generally
will not be considered to have been employed in the United States
without authorization. Specifically, during the pendency of the H-2
portability petition, and notwithstanding any subsequent denial or
withdrawal of that petition, a beneficiary will not be considered to
have been in a period of unauthorized stay during the pendency of the
petition and will not be considered to have been employed in the United
States without authorization solely on the basis of employment pursuant
to that petition. See proposed 8 CFR 214.2(h)(2)(i)(I)(3). In addition,
by filing a new H-2A or H-2B petition supported by a valid temporary
labor certification on behalf of the beneficiary seeking to port, the
petitioner and any employer agrees to comply with the applicable H-2A
or H-2B program requirements. Therefore, during the employment period
when that beneficiary is working while the H-2 portability petition
filed on the beneficiary's behalf is pending, the new petitioner and
any employer,\119\ as well as the beneficiary, are subject to H-2A or
H-2B program requirements, as applicable under the relevant program,
including worker protections, even if the relevant petition is
subsequently withdrawn or denied. See proposed 8 CFR
214.2(h)(2)(i)(I)(3).
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\119\ We note that in some cases, the petitioner may be
different from the employer, such as when the petitioner is an
association of agricultural employers filing the petition on behalf
of its member-farmers as an agent, and not as a joint employer.
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DHS believes that its proposal to extend portability, particularly
when combined with the extended grace periods, would benefit H-2
workers and employers. These provisions would work together to provide
an H-2 worker
[[Page 65068]]
facing dangerous or abusive working conditions, for instance, the
ability to leave their employer and still maintain status for 60 days.
If during those 60 days the worker finds a new H-2 employer, they could
begin working for that new employer immediately upon the filing of a
new nonfrivolous H-2 petition on the worker's behalf.\120\ The proposed
portability provisions together with the proposed grace period
provisions would therefore improve H-2 worker flexibilities and
protections.
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\120\ When a qualifying H-2 petition is properly filed on the H-
2 nonimmigrant worker's behalf requesting a start date during this
60-day grace period, DHS would consider the individual to no longer
be in the 60-daygrace period. As stated above, during the time a
qualifying H-2 petition remains pending, the porting H-2 beneficiary
receives H-2 protections for that period. Further, absent his or her
violating the terms of his or her authorized period of stay, the
porting beneficiary remains in a period of authorized stay.
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In addition, employers would benefit from these provisions by
having more time to recruit H-2 workers during the extended grace
periods and being able to employ H-2 workers upon filing of the
petition rather than having to wait for petition approval. For
petitioners seeking workers under the cap-subject H-2B classification,
this would also serve as an alternative for those who have not been
able to find U.S. workers and have not been able to obtain H-2B workers
subject to the statutory numerical limitations.\121\
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\121\ In the recent joint TFRs providing supplemental H-2B
visas, which have included a similar, but temporary, portability
provision, DHS and DOL have noted that portability is ``an
additional option for employers that cannot find U.S. workers.''
Exercise of Time-Limited Authority To Increase the Fiscal Year 2021
Numerical Limitation for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To
Change Employers,86 FR 281980, 28210 (May 25, 2021); Exercise of
Time-Limited Authority To Increase the Fiscal Year 2022 Numerical
Limitation for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking To Change
Employers, 87 FR 4722, 4736 (Jan. 28, 2022); Exercise of Time-
Limited Authority To Increase the Numerical Limitation for Second
Half of FY 2022 for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To
Change Employers, 87 FR 30334, 30349 (May 18, 2022); Exercise of
Time-Limited Authority To Increase the Numerical Limitation for FY
2023 for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking To Change
Employers, 87 FR 76816 (Dec. 15, 2022).
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4. Effect on an H-2 Petition of Approval of a Permanent Labor
Certification, Immigrant Visa Petition, or the Filing of an Application
for Adjustment of Status or an Immigrant Visa
DHS proposes to increase flexibility by clarifying that an H-2
worker may take steps toward becoming a lawful permanent resident while
still maintaining lawful nonimmigrant status.\122\ Under proposed 8 CFR
214.2(h)(16)(ii), the fact that DOL has approved a permanent labor
certification, or that an immigrant visa petition was filed by or on
behalf of a beneficiary, or that the beneficiary has applied to adjust
to lawful permanent resident status or for an immigrant visa would not,
by itself, be a violation of H-2 status or show an intent to abandon a
foreign residence. Such fact, standing alone, would not constitute a
basis for denying an H-2A or H-2B petition or the beneficiary's
admission in H-2A or H-2B status, or a petition to change status or
extend status. USCIS would consider such fact, however, together with
all other facts presented, in determining whether the beneficiary is
maintaining H-2 status and has a residence in a foreign country which
he or she has no intention of abandoning. This change would therefore
complement DHS's other proposals to establish longer grace periods and
provide permanent portability flexibility, all toward the goal of
further improving H-2 worker mobility.
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\122\ Similar flexibility is currently provided by regulation to
P nonimmigrants who, like H-2 nonimmigrants, are required to
maintain a foreign residence that they have no intention of
abandoning. INA sec. 101(a)(15)(P), 8 U.S.C. 1101(a)(15)(P); 8 CFR
214.2(p)(15). See also Matter of Hosseinpour, 15 I&N Dec. 191, 192
(BIA 1975) (``[T]he filing of an application for adjustment of
status is not necessarily inconsistent with the maintenance of
lawful nonimmigrant status.'').
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Under existing regulations, approval of a permanent labor
certification, or the filing of a preference petition for an H-2A or H-
2B worker currently employed by or in a training position with the same
petitioner, is considered sufficient reason, by itself, to deny the
worker's extension of stay. 8 CFR 214.2(h)(16)(ii). DHS acknowledges
that, when it finalized the current 8 CFR 214.2(h)(16) in 1990,\123\ in
response to a commenter's assertion that H-2 workers are capable of
simultaneously having the same lawful temporary and permanent intent as
H-1B workers, the agency stated that it could not extend the concept of
temporary/permanent intent to the H-2 classifications because
``[c]ontinuing H-2A and B status requires the employer's need for the
services to remain temporary.'' \124\ However, upon consideration, DHS
now recognizes that this stated rationale conflates the beneficiary's
nonimmigrant intent with the nature of the employer's need. Further,
while at that time the agency stressed the importance of not allowing
petitioners to circumvent the requirement to demonstrate a temporary
need by petitioning for permanent status on behalf of the worker even
in a different job,\125\ DHS now believes that such a prohibition is
overly broad and that it is important to increase H-2 workers' mobility
to the extent possible, particularly given the vulnerability of H-2
workers to potential intimidation and threats made on the basis of
their nonimmigrant status.\126\ The requirements that an H-2A or H-2B
petitioner must establish temporary and/or seasonal need, as
applicable, will remain covered by the provisions at 8 CFR
214.2(h)(5)(iv) and 8 CFR 214.2(h)(6)(ii), respectively.
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\123\ See Temporary Alien Workers Seeking Classification Under
the Immigration and Nationality Act, 55 FR 2606, 2619 (final rule)
(Jan. 26, 1990). This rule was issued by the former Immigration and
Naturalization Service (INS).
\124\ See Temporary Alien Workers Seeking Classification Under
the Immigration and Nationality Act, 55 FR 2606, 2619 (final rule)
(Jan. 26, 1990).
\125\ See Temporary Alien Workers Seeking Classification Under
the Immigration and Nationality Act, 55 FR 2606, 2619 (final rule)
(Jan. 26, 1990).
\126\ See, e.g., Polaris, On-ramps, intersections, and exit
routes 41 (2018), https://polarisproject.org/wp-content/uploads/2018/08/A-Roadmap-for-Systems-and-Industries-to-Prevent-and-Disrupt-Human-Trafficking.pdf.
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5. Removing ``Abscondment,'' ``Abscond,'' and Its Other Variations
DHS proposes a technical change that would remove the words
``abscondment,'' ``abscond,'' and its other variations from the H-2
regulations. More specifically, DHS proposes to remove the definition
of ``abscondment,'' replace the word ``absconds'' with the phrase
``does not report for work for a period of 5 consecutive workdays
without the consent of the employer.'' This replacement language is
based on the definition contained in current 8 CFR 214.2(h)(5)(v)(E)
and (h)(6)(i)(F), and would replace the phrase ``fails to'' with ``does
not,'' among other related changes. See proposed 8 CFR
214.2(h)(5)(vi)(B) and (E), 8 CFR 214.2(h)(5)(ix), and 8 CFR
214.2(h)(6)(i)(F). The words and phrases relating to ``abscondment''
inherently convey or imply wrongdoing by the H-2 worker when in fact
there could be many legitimate reasons why an H-2 worker does not
report for work, including unsafe conditions at the work site.
Replacing these negatively charged words with more neutral words and
phrases signifies DHS's recognition that each H-2 worker deserves to be
treated fairly and their situation should be considered based on all of
the relevant circumstances.
Further, while DHS is not proposing to eliminate or substantively
change the
[[Page 65069]]
notification requirements in 8 CFR 214.2(h)(5)(vi)(B) and 8 CFR
214.2(h)(6)(i)(F), DHS reiterates that it does not consider the
information provided in an employer notification, alone, to be
conclusive evidence regarding the worker's current status or the start
date of the worker's 60-day grace period under proposed 8 CFR
214.2(h)(13)(i)(C), if applicable. If and when a subsequent petition
requesting extension of stay or change of status is filed for the
beneficiary, the new petitioner should provide information or evidence
regarding the timing of the beneficiary's cessation of prior employment
to demonstrate maintenance of status. In the event that the information
in an employer notification calls into question the timing of cessation
(for instance, if it calls into question whether the grace period ended
prior to the filing of the new petition), the new petitioner would
receive an opportunity to rebut that information.
C. Improving H-2 Program Efficiencies and Reducing Barriers to Legal
Migration
1. Removal of the H-2 Eligible Countries Lists Provisions
DHS, with the concurrence of the Secretary of State, is proposing
to remove the regulations at 8 CFR 214.2(h)(5)(i)(F) and
214.2(h)(6)(E), under which, as explained in more detail above, USCIS
generally may only approve petitions for H-2A and H-2B classification
for nationals of countries that the Secretary of Homeland Security,
with the concurrence of the Secretary of State, has designated by
notice published in the Federal Register. This yearly notice is often
referred to as the ``eligible countries lists.''
Such designations must be published as a notice in the Federal
Register and expire after one year. In designating countries to include
on the lists, the Secretary, with the concurrence of the Secretary of
State, takes into account factors including, but not limited to: (1)
the country's cooperation with respect to issuance of travel documents
for citizens, subjects, nationals, and residents of that country who
are subject to a final order of removal; (2) the number of final and
unexecuted orders of removal against citizens, subjects, nationals, and
residents of that country; (3) the number of orders of removal executed
against citizens, subjects, nationals, and residents of that country;
and (4) such other factors as may serve the U.S. interest. See 8 CFR
214.2(h)(5)(i)(F)(1)(i) and 8 CFR 214.2(h)(6)(i)(E)(1). Examples of
specific factors serving the U.S. interest that are taken into account
when considering whether to designate or terminate the designation of a
country include, but are not limited to: fraud (e.g., fraud in the H-2
petition or visa application process by nationals of the country, the
country's level of cooperation with the U.S. Government in addressing
H-2 associated visa fraud, and the country's level of information
sharing to combat immigration-related fraud), nonimmigrant visa
overstay rates for nationals of the country (including but not limited
to H-2A and H-2B nonimmigrant visa overstay rates), and noncompliance
with the terms and conditions of the H-2 visa programs by nationals of
the country. See, e.g., Identification of Foreign Countries Whose
Nationals Are Eligible To Participate in the H-2A and H-2B Nonimmigrant
Worker Programs, 87 FR 67930 (Nov. 10, 2022).
Removing the eligible countries lists requirements would improve H-
2 program efficiency by reducing burdens on DHS, USCIS, and H-2
employers, consistent with DHS's goal of streamlining the H-2 petition
process. Further, removal of the eligible countries lists requirements
would enhance accessibility of the H-2 programs, consistent with DHS's
commitment to eliminate unnecessary barriers to legal migration and
promote regular migration.\127\ Along with the removal of 8 CFR
214.2(h)(5)(i)(F) and 214.2(h)(6)(C), DHS proposes to revise 8 CFR
214.2(h)(2)(ii) and (iii) to eliminate language about specific filing
requirements for workers from countries that are not on the eligible
country lists.
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\127\ See E.O. 14012 of February 2, 2021, at 86 FR 8277,
Restoring Faith in Our Legal Immigration Systems and Strengthening
Integration and Inclusion Efforts for New Americans, https://www.federalregister.gov/documents/2021/02/05/2021-02563/restoring-faith-in-our-legal-immigration-systems-and-strengthening-integration-and-inclusion-efforts; The White House, Los Angeles
Declaration on Migration and Protection (June 10, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/.
---------------------------------------------------------------------------
Removal of the eligible countries lists requirements would free up
DHS resources devoted to developing and publishing the eligible
countries lists in the Federal Register every year. Currently, several
DHS components and agencies, as well as DOS, provide data,
collaboration, and research towards the publication of the eligible
countries lists.
USCIS incurs burdens associated with adjudicating waiver requests
for nationals of countries not on the eligible countries lists. These
waiver adjudications are generally complex, as they require officers to
determine whether it is in the U.S. interest for a worker to be a
beneficiary of such a petition based on numerous factors, including:
whether a worker with the required skills is not available from among
foreign workers from a country currently on the respective lists;
whether the beneficiary has been admitted to the United States
previously in H-2 status; the potential for abuse, fraud, or other harm
to the integrity of the H-2 programs through the potential admission of
a beneficiary from a country not currently on the lists; and such other
factors as may serve the U.S. interest. See 8 CFR
214.2(h)(5)(i)(F)(1)(ii) and 214.2(h)(6)(E)(2). USCIS may incur
additional burdens by separating out requests for workers who are
nationals on the respective eligible countries lists and workers who
are not nationals on the respective eligible countries lists. For
instance, while USCIS recommends that H-2A and H-2B petitions for
workers from countries not listed on the respective eligible countries
lists be filed separately from petitions for workers from countries on
the respective eligible countries lists, this is not a current
regulatory requirement.\128\
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\128\ See 8 CFR 214.2(h)(2)(ii) (petitions for workers from
designated countries and undesignated countries ``should be filed
separately''); see also USCIS, Form I-129 Instructions for Petition
for a Nonimmigrant Worker (recommending that H-2A and H-2B petitions
for workers from countries not listed on the respective eligible
countries lists be filed separately), https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf.
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The eligible countries lists also create burdens for petitioners.
An unexpected change in the lists from one year to the next could
impact a petitioner's operations or ability to plan for its workforce.
Further, petitioners incur extra burdens to prepare a petition
requesting a worker from a country not on the respective eligible
countries list, including naming each beneficiary, providing initial
evidence to support the waiver request, and providing any additional
evidence requested by USCIS. DHS recognizes that the additional
requirements imposed on petitioners seeking workers from non-
participating countries may be burdensome to employers and delay time-
sensitive H-2 petitions, particularly in the H-2A agricultural program
context, which is highly time-sensitive. For instance, the time-delay
associated with issuance of a request for additional evidence when the
petitioner's initial evidence did not establish the requisite U.S.
interest to have its H-2A petition approved, when seeking nationals
from countries not on
[[Page 65070]]
the list, could profoundly impact the success of a harvest season.
Eliminating the eligible countries lists in the entirety would
therefore streamline adjudications and benefit petitioners, their
prospective workers, and ease burdens on DHS and USCIS.
DHS acknowledges that the eligible countries lists have been used
as a tool to ``encourage countries to work collaboratively with the
United States to ensure the timely return of their nationals who have
been subject to a final order of removal.'' \129\ In proposing these
regulations in 2008, DHS noted that it had faced ``an ongoing problem
of countries refusing to accept or unreasonably delaying the acceptance
of their nationals who have been removed,'' and further noted that
``Congress gave the Secretary of State the authority to discontinue the
issuance of visas to citizens, subjects, nationals, and residents of a
country upon notification by the Secretary of Homeland Security that
the government of that country refuses to accept their return'' under
INA sec. 243(d), 8 U.S.C. 1253(d).\130\ However, neither the problem of
countries refusing or delaying acceptance of removed nationals, nor the
authority to discontinue issuance of visas under INA sec. 243(d), 8
U.S.C. 1253(d), is specific or unique to the H-2A and H-2B programs.
Overall, DHS does not believe that using participation in these
programs as a tool to address the problem or that the limited benefits
of the eligible countries lists, outweigh the burdens associated with
administering the eligible countries lists and the benefits of
eliminating the lists.
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\129\ See Changes to Requirements Affecting H-2B Nonimmigrants
and Their Employers, 73 FR 78104, 78110 (Dec. 19, 2008).
\130\ See Changes to Requirements Affecting H-2A
Nonimmigrants,73 FR 8230, 8234 (Feb. 13, 2008); Changes to
Requirements Affecting H-2B Nonimmigrants and Their Employers, 73 FR
49109, 49111 (Aug. 20, 2008).
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Similarly, to the extent that the eligible countries lists have
been used to address concerns of fraud and abuse, DHS believes that
such concerns are instead better addressed at the petitioner level,
rather than the country level. As noted above, DHS has referenced fraud
concerns as among the examples of specific factors serving the U.S.
interest that are taken into account when considering whether to
designate or terminate the designation of a country.\131\ Rather than
seeking to address such concerns using the eligible countries lists,
which affect all petitioners seeking to hire workers from a given
country, DHS is proposing to enhance program integrity through various
provisions in this proposed rule that focus specifically on individual
petitioners that have violated program requirements.\132\
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\131\ See, e.g., Identification of Foreign Countries Whose
Nationals Are Eligible To Participate in the H-2A and H-2B
Nonimmigrant Worker Programs, 87 FR 67930 (Nov. 10, 2022).
\132\ For example, DHS removed Moldova from the list of
countries eligible to participate in the H-2A program in 2021 based,
in part, on DOS evidence of agents in Moldova charging prohibited
recruitment fees. See Identification of Foreign Countries Whose
Nationals Are Eligible To Participate in the H-2A and H-2B
Nonimmigrant Worker Programs, 86 FR 62559, 62561 (Nov. 10, 2021).
While the proposed removal of the eligible countries lists would
mean that DHS could no longer bar participation by nationals of a
country in which prohibited fees have been charged, the proposed
regulation includes provisions that otherwise enhance DHS' ability
to enforce the prohibition on prohibited fees.
---------------------------------------------------------------------------
DHS considered an alternative to removing the provisions in title 8
of the CFR designating certain countries as eligible participants for
the H-2 program. Under this alternative, instead of automatic
expiration after 1 year, the H-2 eligible countries designations would
remain in effect until DHS, with the concurrence of DOS, publishes new
designations of countries. This alternative would also require that the
Secretary of Homeland Security, in consultation with the Secretary of
State, review the lists no less than every 3 years, instead of the
current 1 year, following which review DHS could, if necessary and with
the concurrence of DOS, publish new designations. Absent the mandate to
publish a new notice annually, under this alternative DHS and DOS would
have greater flexibility to consider important factors using more
timely and relevant data than the current annual designation periods
allow.
Ultimately, however, DHS has decided to forego this alternative and
instead proposes to remove in their entirety the provisions requiring
designation of countries eligible to participate in the H-2 programs.
If DHS were to adopt the alternative to maintain the lists but simply
amend the timing of designating eligible countries, the fundamental
flaws of the provisions would largely remain, namely, the
aforementioned significant burdens it places on petitioners, USCIS, and
DHS. Furthermore, this alternative could lock in place the lists for a
longer period and potentially tie the agency's hands when seeking to
eliminate countries from the lists or delay the inclusion of countries
for which favorable factors would warrant designation on the lists.
2. Eliminating the H-2 ``Interrupted Stay'' Calculation and Reducing
the Period of Absence To Restart the 3-Year Maximum Period of Stay
Clock
DHS is proposing to eliminate the regulations relating to absences
from the United States that will ``interrupt'' the accrual of time
toward an individual's total period of stay in H-2 status. See proposed
8 CFR 214.2(h)(5)(viii)(C) and (D); 8 CFR 214.2(h)(6)(vii)(A) through
(C); 8 CFR 214.2(h)(13)(i)(B); 8 CFR 214.2(h)(13)(iv); and 8 CFR
214.2(h)(13)(v). An individual's total period of stay in H-2A or H-2B
nonimmigrant status may not exceed 3 years. Under current regulations,
an individual who has spent 3 years in H-2A or H-2B status may not seek
extension, change status, or be readmitted to the United States in H-2
status unless the individual has been outside of the United States for
an uninterrupted period of 3 months. See 8 CFR 214.2(h)(5)(viii)(C) and
214.2(h)(13)(iv). However, certain periods of time spent outside the
United States are deemed to interrupt the period of stay and
temporarily ``stop the clock'' toward the accrual of the 3-year limit.
See 8 CFR 214.2(h)(5)(viii)(C) (relating to H-2A workers) and 8 CFR
214.2(h)(13)(v) (relating to H-2B workers). Specifically, under current
regulations, a period of absence \133\ from the United States will
interrupt the stay of H-2 workers (the time periods are the same for
both H-2A and H-2B workers) in the following circumstances:
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\133\ For purposes of interrupted stays, the terms ``a period of
absence'' or ``an absence'' refer to a single, consecutive period of
time spent outside of the United States.
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If the accumulated stay is 18 months or less, an absence
is interruptive if it lasts for at least 45 days.\134\
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\134\ For purposes of interrupted stays, a day is a full 24-hour
period (from midnight to midnight) outside the United States. USCIS
calculates a travel day to or from the United States as a full day
in the United States--even if the H-2 worker departs at 12:01 a.m.
See USCIS, Calculating Interrupted Stays for the H-2
Classifications, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2a-agricultural-workers/calculating-interrupted-stays-for-the-h-2-classifications.
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If the accumulated stay is greater than 18 months, an
absence is interruptive if it lasts for at least 2 months.\135\
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\135\ For purposes of interrupted stays, a month can be anywhere
from 28 to 31 days, depending on which month is used to calculate
the interruption. See USCIS, Calculating Interrupted Stays for the
H-2 Classifications, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2a-agricultural-workers/calculating-interrupted-stays-for-the-h-2-classifications.
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If H-2 time is interrupted, time stops accruing toward the H-2
worker's 3-year
[[Page 65071]]
limit. Once the individual returns to the United States in H-2 status,
time toward the 3-year limit begins to accrue again from the point
where it stopped. However, if at any time the H-2 worker is outside the
United States for at least 3 months, their 3-year limit restarts from
the beginning upon the worker's readmission to the United States in H-2
status.\136\
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\136\ See USCIS, Calculating Interrupted Stays for the H-2
Classifications, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2a-agricultural-workers/calculating-interrupted-stays-for-the-h-2-classifications.
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The current regulations regarding interrupted periods of stay were
published in 2008.\137\ The regulations made the time periods for
interrupted periods of stay consistent for H-2A and H-2B nonimmigrants.
In addition to making the time periods consistent, DHS explained in
proposing the regulations relating to H-2A workers that the purpose was
to ``reduce the amount of time employers are required to be without the
services of needed workers and enable the employers to have a set
timeframe from which they can better monitor compliance with the terms
and conditions of H-2A status.'' \138\
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\137\ See Changes to Requirements Affecting H-2A Nonimmigrants,
73 FR 76891 (Dec. 18, 2008); Changes to Requirements Affecting H-2B
Nonimmigrants and Their Employers, 73 FR 78104 (Dec. 19, 2008).
\138\ See Changes to Requirements Affecting H-2A Nonimmigrants,
73 FR 8230, 8235 (Feb. 13, 2008).
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However, the current regulations on interrupted periods of stay
have caused confusion for employers and are challenging for USCIS to
implement. The confusion often relates to the different timeframes for
an interrupted stay--45 days or 2 months--that is determined by the
duration of the accumulated stay--18 months or less, or more than 18
months. Currently, in order to accurately demonstrate when an
individual's limit on H-2 status will be reached, employers and workers
need to monitor and document the accumulated time in H-2 status, track
when the amount of time required for an interruptive stay changes from
45 days to 2 months, and calculate the total time in H-2 status across
multiple time periods following interruptive absences. Adjudicators
must also make these same determinations in adjudicating H-2 petitions
with named workers to assess whether a beneficiary is eligible for the
requested period of stay. The varying timeframes and starting and
stopping of the accumulated stay in H-2 status can be confusing and
frequently results in RFEs in adjudicating H-2 petitions, which leads
to delays for employers and workers and inefficiencies for USCIS. In an
effort to streamline the administration of the H-2 programs, DHS seeks
to eliminate the current interrupted stay provisions that temporarily
``stop the clock'' toward the accrual of the 3-year limit. Eliminating
these interrupted stay provisions would reduce potential confusion for
employers and workers and simplify USCIS adjudications, resulting in
fewer RFEs and greater efficiency in adjudicating H-2 petitions.
Recognizing that the interrupted stay provisions provide some
benefit to H-2 workers and employers in the event of a worker's
departure from the country, DHS proposes to shorten the period of
absence that will reset the 3-year limit of stay. Currently, once an H-
2 worker is outside the United States for an uninterrupted period of 3
months (``period of absence''), their 3-year limitation on stay will
restart from the beginning upon that worker's readmission to the United
States in H-2 status.\139\ DHS proposes to shorten the current 3-month
period of absence to 60 days.
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\139\ See 8 CFR 214.2(h)(5)(viii)(B) and 8 CFR 214.2(h)(13)(iv);
see also USCIS, Calculating Interrupted Stays for the H-2
Classifications (May 6, 2020), https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2a-agricultural-workers/calculating-interrupted-stays-for-the-h-2-classifications.
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Under proposed 8 CFR 214.2(h)(5)(vi)(C) and (D) and 8 CFR
214.2(h)(6)(vii)(B) and (C), an uninterrupted absence for the
designated period of at least 60 days would in all cases ``reset'' the
H-2 clock, allowing for an additional 3 years in the United States in
H-2 status upon the worker's readmission, regardless of whether an H-2
worker has already reached the 3-year maximum. This change would make
it easier to determine how much time a given H-2 worker had remaining
in H-2 status. For example, if an employer knew that a given worker had
been outside the United States for at least 60 days, the employer would
also know that the worker's H-2 clock had ``reset'' and thus the worker
would again be eligible to spend up to 3 years in the United States in
H-2 status. There would be no need for the employer or worker to look
back at periods of stay prior to that 60-day absence to determine the
amount of H-2 time remaining. Resetting the clock at 60 days instead of
3 months is also intended to benefit H-2 workers seeking readmission in
H-2 status by allowing them the option to remain outside of the United
States for a shorter period of time between periods of H-2 employment.
Further, reducing the period of absence from the United States from
3 months to 60 days would provide workers and their employers with
greater flexibility while still ensuring that such workers' stay is
temporary in nature. The intent of having a required period of absence
is to ensure that the H-2 worker qualifies as a nonimmigrant and that
their stay remains temporary in nature. H-2 eligibility requires that
employment be seasonal or temporary. See INA secs.
101(a)(15)(H)(ii)(a)-(b); 8 CFR 214.2(h)(5)(iv)(A); 8 CFR
214.2(h)(6)(i)(A). It also requires that the beneficiary qualify as a
nonimmigrant. See INA secs. 101(a)(15)(H)(ii)(a)-(b). In a 1987 interim
final rule, the former INS maintained the existing 3-year limit on an
H-2 worker's stay, and also imposed a new, but still ``significant
absence'' standard of 6 months, in order to ensure a meaningful
interruption in the H-2A worker's employment in the United States.
Nonimmigrant Classes, 52 FR 20554 (June 1, 1987). The rule explained:
``If a significant absence is not required, an alien would be able to
effectively bypass the limitation and indefinitely work in the United
States at various temporary jobs by vacationing abroad every three
years.'' 52 FR 20555. The INA does not specify what length of absence
would be sufficient to ensure that the H-2A or H-2B worker's stay in
the United States is considered temporary. The former INS, in its 1987
interim rule, chose to require a 6-month period of absence. In doing
so, however, the agency did not state that 6 months must be the
absolute floor to ensure compliance with the statute.
In 2008, this 6-month period of absence was reduced to 3 months
``in order to reduce the amount of time employers would be required to
be without the services of needed workers, while not offending the
fundamental temporary nature of employment under the H-2A program.''
\140\ Beyond that
[[Page 65072]]
general explanation, however, DHS, in reducing the required period of
absence from 6 months to 3 months, did not specifically explain how it
arrived at 3 months as the appropriate period of absence as opposed to
another period of time, nor did it state that 3 months is the absolute
floor for ensuring that an H-2 worker's stay is temporary in nature.
---------------------------------------------------------------------------
\140\ See Changes to Requirements Affecting H-2A Nonimmigrants,
73 FR 8230, 8235 (Feb. 13, 2008) (proposing the reduction to 3
months); Changes to Requirements Affecting H-2A Nonimmigrants, 73 FR
76891, 76904 (Dec. 18, 2008) (adopting the proposed reduction in
waiting time without change and agreeing with comments stating that
3 months would ``enhance the workability of the H-2A program for
employers while not offending the fundamental temporary nature of
employment under the H-2A program''); Changes to Requirements
Affecting H-2B Nonimmigrants and Their Employers, 73 FR 49109, 49111
(Aug. 20, 2008) (proposing to reduce the required absence period to
3 months to ``reduce the amount of time employers would be required
to be without the services of needed workers while not offending the
fundamental temporary nature of employment under the H-2B
program''); Changes to Requirements Affecting H-2B Nonimmigrants and
Their Employers, 73 FR 78104 (Dec. 19, 2008) (adopting the proposed
reduction in waiting time without change).
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It is DHS's position that reducing the current 3-month period of
absence to 60 days would accomplish the same goal of reducing the
amount of time employers would be required to be without the services
of needed workers, while still ensuring adherence to the fundamental
requirement under the H-2 programs that an H-2 worker's period of
admission to this country be temporary by continuing to impose a
significant absence.
The proposed regulation also clarifies that, to avail itself of the
benefits of this provision, the petitioner must provide evidence that
the beneficiary had an uninterrupted 60-day period of absence. The
proposed regulation would provide examples of the types of evidence
that may be provided to establish a period of absence from the United
States. In addition, DHS is proposing to move the provisions relating
to periods of absence for H-2B workers from its current location at 8
CFR 214.2(h)(13)(iv)-(v) to proposed 8 CFR 214.2(h)(6)(vii)(C) in order
to consolidate provisions regarding period of admission into one
section specific to H-2B workers and to reflect the change from 3
months to 60 days.\141\ DHS proposes to keep the proposed H-2A period
of absence provision under 8 CFR 214.2(h)(5)(viii) but would move it to
a new dedicated subordinate paragraph (D) and revise the language to
reflect the change from 3 months to 60 days. The proposed changes to
the regulations regarding calculation of stay would benefit the agency,
employers, and workers because they would provide greater clarity for
employers and workers and greater efficiency for DHS. DHS seeks
comments on all aspects of this provision, and particularly the 60-day
duration of absence that would reset the clock for purposes of the 3-
year maximum period of stay.
---------------------------------------------------------------------------
\141\ DHS is also proposing uniform evidentiary requirements for
demonstrating an H-2B worker's absence(s) from the United States.
Currently, the regulations require ``clear and convincing proof'' to
establish that an H-2B worker resides abroad and commutes or is only
seasonally or intermittently employed in the United States for 6
months or less per year, while the regulations only require
``information about the alien's employment, place of residence, and
the dates and purposes of any trips to the United States'' to show
that an H-2B worker has been absent long enough to reset or
interrupt the period of stay. See 8 CFR 214.2(h)(13)(v) and
214.2(h)(13)(i)(B), respectively.
---------------------------------------------------------------------------
As an alternative to the complicated calculations needed to
determine an interrupted stay under the current H-2 framework, DHS
considered adopting an interrupted stay provision similar to the
current ``recapture'' provision for H-1B beneficiaries. For H-1Bs,
current DHS regulations at 8 CFR 214.2(h)(13)(iii)(C) generally state
that time spent outside the United States exceeding 24 hours by a
noncitizen will not be considered for purposes of calculating the H-1B
beneficiary's total period of authorized admission. Furthermore, the
time spent physically outside of the United States may be
``recaptured'' in a subsequent H-1B petition on behalf of the
noncitizen, though it is the petitioner's burden to request and
demonstrate the specific amount of time for recapture on behalf of the
beneficiary. See 8 CFR 214.2(h)(13)(iii)(C)(1).
In the end, DHS chose to propose the changes explained above rather
than match the H-1B provision because it believes the H-1B provision to
``recapture time'' would be only a minimally less confusing calculation
for petitioners and H-2 workers, as well as for USCIS adjudicators. It
is likely also that because of the shorter duration of H-2 petition
validity periods relative to those in the H-1B program, and perhaps for
other reasons specific to the different classifications (e.g.,
different types of occupations), fewer H-2 beneficiaries travel outside
of the United States or H-2 beneficiaries travel abroad for fewer days
during their period of admission, so the amount of time available for
these workers to ``recapture'' would be minimal compared to H-1B
beneficiaries. DHS believes a single, consistent standard under which
an uninterrupted absence of at least 60 days would reset the 3-year
limitation represents the best way to reduce confusion, resulting in
fewer RFEs and greater efficiency in adjudicating H-2 petitions.
Finally, DHS seeks to make clarifying edits at proposed 8 CFR
214.2(h)(5)(viii)(C)-(D) and 8 CFR 214.2(h)(6)(vii)(B)-(C). These edits
would clarify that any time spent in H-2A or H-2B status would count
toward the 3-year limitation of stay, consistent with current practice
and other H-2 regulations governing the 3-year limitation on stay.\142\
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\142\ See 8 CFR 214.2(h)(13)(iv) (``An H-2B alien who has spent
3 years in the United States under section 101(a)(15)(H) and/or (L)
of the Act may not seek extension, change status, or be readmitted
to the United States under sections 101(a)(15)(H) and/or (L) of the
Act unless the alien has resided and been physically present outside
the United States for the immediately preceding 3 months.''); 8 CFR
214.2(h)(15)(ii)(C) (``The alien's total period of stay as an H-2A
or H-2B worker may not exceed three years'') 8 CFR
214.2(h)(13)(i)(B) (``When an alien in an H classification has spent
the maximum allowable period of stay in the United States, a new
petition under sections 101(a)(15)(H) or (L) of the Act may not be
approved unless that alien has resided and been physically present
outside the United States . . . for the time limit imposed on the
particular H classification. . . . A certain period of absence from
the United States of H-2A and H-2B aliens can interrupt the accrual
of time spent in such status against the 3-year limit set forth in 8
CFR 214.2(h)(13).''); see also USCIS, H-2A Temporary Agricultural
Workers, Period of Stay, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2a-temporary-agricultural-workers
(``A person who has held H-2A nonimmigrant status for a total of 3
years must depart and remain outside the United States for an
uninterrupted period of 3 months before seeking readmission as an H-
2A nonimmigrant. Additionally, previous time spent in other H or L
classifications counts toward total H-2A time.'').
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D. Severability
As stated at proposed 214.2(h)(30), DHS intends for the provisions
of this proposed rule, if finalized, to be severable from each other
such that if a court were to hold that any provision is invalid or
unenforceable as to a particular person or circumstance, the rule would
remain in effect as to any other person or circumstance. While the
various provisions of this proposed rule, taken together, would provide
maximum benefit with respect to strengthening program integrity,
increasing worker flexibility, and improving program efficiency, none
of the provisions are interdependent and unable to operate separately,
nor is any single provision essential to the rule's overall
workability. DHS welcomes public input on the proposed severability
clause at 8 CFR 214.2(h)(30).
E. Request for Preliminary Public Input Related to Future Actions/
Proposals
DHS is seeking preliminary public input on ways to provide H-2 and
other Form I-129 beneficiaries with notice of USCIS actions taken on
petitions filed on their behalf, including receipt notices for a
petition to extend, amend, or change status filed on their behalf.
USCIS does not currently provide notices directly to Form I-129
beneficiaries. DHS is aware that the lack of petition information may
leave Form I-129 beneficiaries unable to verify their own immigration
status and susceptible to employer abuse.\143\ DHS is also aware
[[Page 65073]]
that having case status information would promote the benefits intended
by the proposed portability provisions in this rule, and more
generally, improve worker mobility and protections as intended in this
rule.
---------------------------------------------------------------------------
\143\ See, e.g., DHS, Office of the Citizenship and Immigration
Services Ombudsman, Recommendation to Remove a Barrier Pursuant to
Executive Order 14012: Improving U.S. Citizenship and Immigration
Services' Form I-129 Notification Procedures Recommendation Number
62 (Mar. 31, 2022), https://www.dhs.gov/sites/default/files/2022-03/CIS%20OMBUDSMAN_I-129_BENEFICIARY_RECOMMENDATION_fnl_03-2022_508.pdf
(``lack of direct notification may leave them without status
documentation, rendering them noncompliant with the law, susceptible
to abuse by employers, and unable to access benefits requiring proof
of status''). This report formally recommended that USCIS directly
notify beneficiaries of Form I-129 actions taken in the petition on
their behalf. DHS also received several stakeholder letters
advocating for H-2 beneficiaries to receive case status information.
For example, see the Letter from Migration that Works to DHS dated
May 17, 2022; Letter from Centro de los Derechos del Migrante, Inc.
to DHS dated June 1, 2022; Letter from AFL-CIO to DHS; Farmworkers
Justice Comment to USCIS dated May 19, 2021. All of these letters
are included in the docket for this proposed rulemaking. In
addition, Members of Congress recently indicated in explanatory
remarks the need to provide status documentation directly to certain
beneficiaries so that they can better understand their immigration
status. See Joint Explanatory Statement to Department of Homeland
Security Appropriations Act, 2022, 168 Cong. Rec. H2395, H2418
(daily ed. March 9, 2022) (``USCIS shall also establish a process
whereby workers may confirm that they are the beneficiaries of H-2A
petitions and can receive information about their own immigration
status, including their authorized period of stay and the status of
any requested visa extensions.''), available at https://www.congress.gov/congressional-record/volume-168/issue-42/house-section/article/H1709-1.
---------------------------------------------------------------------------
DHS is committed to addressing the issue of beneficiary
notification but is not at this time proposing a specific beneficiary
notification process or regulation. The agency continues to research
and consider the feasibility, benefits, and costs of various options
separate and apart from this proposed rule. At this time, DHS would
like to solicit preliminary public comments on requiring H-2
petitioners to provide a copy of the notice of USCIS actions to
beneficiaries in the United States seeking extension or change of
status. This option is being considered for potential future action
separate from this rulemaking. In addition, DHS is interested in any
other suggestions from the public regarding ways to ensure adequate
notification to beneficiaries of actions taken with respect to
petitions filed on their behalf.
Limiting this notification requirement to beneficiaries in the
United States seeking extension or change of status is intended to
recognize the challenges associated with providing notices to unnamed
H-2 workers. In addition, DHS believes such notification may be
especially beneficial in the context of extensions or changes of
status. While petition beneficiaries who are outside of the United
States will receive basic petition information on Form I-94, Arrival-
Departure Record, and on their nonimmigrant visa, beneficiaries who are
already in the United States must rely entirely on petitioners and
employers to provide such information.\144\ DHS recognizes this option
would leave open the possibility that unscrupulous petitioners would
not comply with this requirement, something DHS intends to forestall,
but believes it would still provide benefits and worker protections
while USCIS continues to explore other options, including the
feasibility of technological solutions that would allow USCIS to
directly notify beneficiaries or allow beneficiaries to directly access
case status.\145\ DHS is particularly interested in comments that cite
evidence of the expected costs and burdens on petitioners as a result
of such a requirement, as well as comments and evidence about the
extent that such a provision would benefit H-2 workers, which DHS will
take into consideration when crafting potential future solutions or
regulatory proposals.
---------------------------------------------------------------------------
\144\ The Form I-797 approval notice instructs petitioners that
the lower portion of the notice, including Form I-94, ``should be
given to the beneficiary(ies).''
\145\ See USCIS Memorandum, Response to Recommendations on
Improving Form I-129 Notification Procedures (Aug. 11, 2022),
https://www.dhs.gov/sites/default/files/2022-08/SIGNED%20USCIS%20Response%20to%20Formal%20Recommendation%20-%20Form%20I-129.08122022_v2.pdf.
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V. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and Executive
Order 14094 (Modernizing Regulatory Review)
Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review) and E.O. 14094
(Modernizing Regulatory Review) direct agencies to assess the costs and
benefits of available regulatory alternatives. If a regulation is
necessary, these Executive Orders direct that, to the extent permitted
by law, agencies ensure that the benefits of a regulation justify its
costs and select the regulatory approach that maximizes 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, of
reducing costs, of harmonizing rules, and of promoting flexibility. It
explicitly draws attention to ``equity, human dignity, fairness, and
distributive impacts,'' values that are difficult or impossible to
quantify. All of these considerations are relevant in this rulemaking.
The Office of Management and Budget (OMB) has designated this rule
a ``significant regulatory action'' as defined under section 3(f) of
E.O. 12866, as amended by E.O. 14094. Accordingly, OMB has reviewed
this regulation.
1. Summary of Major Provisions of the Regulatory Action
As discussed in the preamble, DHS is amending its regulations
affecting temporary agricultural and temporary nonagricultural workers
within the H-2 programs, and their employers. The proposed rule seeks
to better ensure the integrity of the H-2 programs, enhance protection
for workers, and clarify requirements and consequences of actions
incongruent with the intent of H-2 employment. The provisions of this
proposed rule subject to this regulatory analysis are grouped into four
categories: (1) integrity and worker protections; (2) worker
flexibilities; (3) improving H-2 program efficiencies and reducing
barriers to legal migration; and (4) forms and technical updates.
2. Summary of Costs and Benefits of the Proposed Rule
This proposed rule would impose new direct costs on petitioners in
the form of opportunity costs of time to complete and file H-2
petitions and time spent to familiarize themselves with the rule. The
quantifiable costs of this rule that would impact petitioners
consistently and directly are the increased opportunity cost of time to
complete Form I-129 H Classification Supplement and opportunity costs
of time related to the rule's portability provision. Over the 10-year
period of analysis, DHS estimates the total costs of the proposed rule
would be approximately $18,640,075 to $24,901,101 (undiscounted). DHS
estimates annualized costs of this proposed rule range from $1,998,572
to $2,668,028 at a 3-percent discount rate and $2,186,033 to $2,915,885
at a 7-percent discount rate. In addition, the rule results in
transfers from consumers to a limited number of H-2A and H-2B workers
that may choose to supply additional labor. The total annualized
transfer amounts to $2,918,958 in additional earnings at the 3-percent
and 7-percent discount rate and related tax transfers of $337,122
($168,561 from these workers + $168,561 from employers). Fees paid for
Form I-129 and premium processing as a result of the proposed rule's
portability provision constitute a transfer of $636,760 from
[[Page 65074]]
petitioners of porting workers to USCIS (3 and 7-percent annualized
equivalent).
Certain petitioners may also incur other difficult to quantify
costs. For example, certain petitioners may incur additional
opportunity costs of time should they be selected for a compliance
review or a site visit. Other petitioners may face stricter
consequences regarding prohibited fees, or may opt to transport and
house H-2A beneficiaries earlier than they would have otherwise based
on the proposed extension of the pre-employment grace period from 7 to
10 days. In general, petitioners who are found to be noncompliant with
the provisions of the rule (or other existing authorities) may incur
costs related to lost sales, productivity, or profits as well as
additional opportunity costs of time spent attempting to comply with
the rule. Moreover, USCIS may incur increased opportunity costs of time
for adjudicators to review information regarding debarment and other
past violation determinations more closely, issue RFEs or NOIDs, and
for related computer system updates.
The benefits of this proposed rule would be diverse, though most
are difficult to quantify. The proposed rule extends portability to H-2
workers lawfully present in the United States who are seeking to extend
their stay regardless of a porting petitioner's E-Verify standing,
allowing for greater consistency across portability regulations and
other nonimmigrant worker categories. Beneficiaries would also benefit
from the extended grace periods, the permanent ability to port, the
clarification that employers who utilize porting workers must continue
to abide by all H-2 requirements regarding worker benefits and
protections, and eliminating the interrupted stay provisions and
instead reducing the period of absence out of the country to reset
their 3-year maximum period of stay. The Federal Government would also
enjoy benefits, mainly through bolstering existing program integrity
activities and providing a greater ability for USCIS to deny or revoke
petitions for issues related to program compliance. Table 2 provides a
more detailed summary of the proposed provisions and their impacts.
Table--Summary of Provisions and Impacts
----------------------------------------------------------------------------------------------------------------
Expected impact of the proposed
Provision Purpose of proposed provision provision
----------------------------------------------------------------------------------------------------------------
8 CFR 214.2(h)(5)(vi)(A) and 8 CFR DHS is proposing to add stronger Cost:
214.2(h)(6)(i)(F). language requiring petitioners or Cooperation during a site
employers to both consent to and visit or compliance review may
fully comply with any USCIS audit, result in opportunity costs of
investigation, or other program time for petitioners to provide
integrity activity and clarify information to USCIS during these
USCIS's authority to deny/revoke a compliance reviews and
petition if unable to verify inspections. On average, USCIS
information related to the site visits last 1.7 hours, which
petition, including due to lack of is a reasonable estimate for the
cooperation from the petitioner or marginal time that a petitioner
employer during a site visit or may need to spend in order to
other compliance review. comply with a site visit.
Employers that do not
cooperate would face denial or
revocation of their petition(s),
which could result in costs to
those businesses.
Benefit:
USCIS would have clearer
authority to deny or revoke a
petition if unable to verify
information related to the
petition. The effectiveness of
existing USCIS program integrity
activities would be improved
through increased cooperation
from employers.
8 CFR 214.2(h)(20)..................... DHS is proposing to provide H-2A Cost:
and H-2B workers with Employers may face
``whistleblower protection'' increased RFEs, denials, or other
comparable to the protection actions on their H-2 petitions,
currently offered to H-1B workers. or other program integrity
mechanisms available under this
rule or existing authorities, as
a result of H-2 workers'
cooperation in program integrity
activity due to whistleblower
protections. Such actions may
result in potential costs such as
lost productivity and profits to
employers whose noncompliance
with the program is revealed by
whistleblowers.
Benefit:
Such protections may
afford workers the ability to
expose issues that harm workers
or are not in line with the
intent of the H-2 programs while
also offering protection to such
workers (therefore potentially
improving overall working
conditions), but the extent to
which this would occur is
unknown.
[[Page 65075]]
8 CFR 214.2(h)(5)(xi)(A), 8 CFR DHS is proposing significant Cost:
214.2(h)(5)(xi)(C), 8 CFR revisions to the provisions Enhanced consequences for
214.2(h)(6)(i)(B), 8 CFR relating to prohibited fees to petitioners who charge prohibited
214.2(h)(6)(i)(C), and 8 CFR strengthen the existing fees could lead to increased
214.2(h)(6)(i)(D). prohibition on, and consequences financial losses and extended
for, charging certain fees to H-2A ineligibility from participating
and H-2B workers, including new in H-2 programs.
bars on approval for some H-2 Benefit:
petitions. Possibly increase
compliance with provisions
regarding prohibited fees and
thus reduce the occurrence and
burden of prohibited fees on H-2
beneficiaries.
8 CFR 214.2(h)(10)(iii)................ DHS is proposing to institute Costs:
certain mandatory and USCIS adjudicators may
discretionary bars to approval of require additional time
an H-2A or H-2B petition. associated with reviewing
information regarding debarment
and other past violation
determinations more closely,
issuing RFEs or NOIDs, and
conducting the discretionary
analysis for relevant petitions.
The expansion of
violation determinations that
could be considered during
adjudication, as well as the way
debarments and other violation
determinations would be tracked,
would require some computer
system updates resulting in costs
to USCIS.
Benefit:
Possibly increase
compliance with H-2 program
requirements, thereby increasing
protection of H-2 workers.
8 CFR 214.2(h)(2)(ii) and (iii), 8 CFR Eliminate the lists of countries Costs:
214.2(h)(5)(i)(F), and 8 CFR eligible to participate in the H-2 None expected.
214.2(h)(6)(i)(E). programs. Benefits:
Employers and the Federal
Government will benefit from the
simplification of Form I-129
adjudications by eliminating the
``national interest'' portion of
the adjudication that USCIS is
currently required to conduct for
beneficiaries from countries that
are not on the lists.
Remove petitioner burden
to provide evidence for
beneficiaries from countries not
on the lists.
Petitioners may have
increased access to workers
potentially available to the H-2
programs.
Free up agency resources
devoted to developing and
publishing the eligible country
lists in the Federal Register
every year.
8 CFR 214.2(h)(5)(viii)(B) and 8 CFR Change grace periods such that they Costs \146\:
214.2(h)(6)(vii)(A). will be the same for both H-2A and H-2A employers may face
8 CFR 214.2(h)(11)(iv) and 8 CFR H-2B Programs. additional costs such as for
214.2(h)(13)(i)(C). Create a 60-day grace period housing, but employers likely
following any H-2A or H-2B would weigh those costs against
revocation or cessation of the benefit of providing
employment during which the worker employees with additional time to
will not be considered to have prepare for the start of work.
failed to maintain nonimmigrant Benefits:
status and will not accrue any Provides employees (and
unlawful presence solely on the their employers) with extra time
basis of the revocation or to prepare for the start of work.
cessation. Provides clarity for adjudicators
and makes timeframes consistent
for beneficiaries and
petitioners.
Provides workers
additional time to seek other
employment or depart from the
United States if their employer
faces a revocation or if they
cease employment.
8 CFR 214.2(h)(11)(iv)................. Clarifies responsibility of H-2A Costs:
employers for reasonable costs of None expected since H-2A
return transportation for petitioning employers are already
beneficiaries following a petition generally liable for the return
revocation. transportation costs of H-2A
workers.
Benefits:
Beneficiaries would
benefit in the event that
clarified employer responsibility
decreased the incidence of
workers having to pay their own
return travel costs in the event
of a petition revocation.
[[Page 65076]]
8 CFR 214.2(h)(16)(i).................. Clarifies that H-2 workers may take Costs:
steps toward becoming a lawful None expected.
permanent resident of the United Benefits:
States while still maintaining DHS expects this could
lawful nonimmigtarant status. enable some H-2 workers who have
otherwise been dissuaded to
pursue lawful permanent residence
with the ability to do so without
concern over becoming ineligible
for H-2 status.
8 CFR 214.2(h)(5)(viii)(C), 8 CFR Eliminates the ``interrupted stay'' Costs:
214.2(h)(6)(vii), and 8 CFR calculation and instead reduces Workers in active H-2
214.2(h)(13)(i)(B). the period of absence to reset an status who would consider making
individual's 3-year period of stay. trips abroad for periods of less
than 60 days but more than 45
days, may be disincentivized to
make such trip.
Benefit:
Simplifies and reduces
the burden to calculate
beneficiary absences for
petitioners, beneficiaries, and
adjudicators.
May reduce the number of
RFEs related to 3-year periods of
stay.
Transfers:
As a result of a small
number of H-2 workers at the 3-
year maximum stay responding to
the proposed shorter absence
requirement by working 30
additional days, DHS estimates
upper bound annual transfer
payment of $2,918,958 in
additional earnings from
consumers to H-2 workers and
$337,122 in tax transfers from
these workers and their employers
to tax programs (Medicare and
Social Security).
8 CFR 214.2(h)(2)(i)(D), 8 CFR Make portability permanent for H-2B Costs:
214.2(h)(2)(i)(I), and 8 CFR workers and remove the requirement The total estimated
274a.12(b)(21). that H-2A workers can only port to annual opportunity cost of time
an E-Verify employer. to file Form I-129 by human
resource specialists is
approximately $40,418. The total
estimated annual opportunity cost
of time to file Form I-129 and
Form G-28 will range from
approximately $90,554 if filed by
in-house lawyers to approximately
$156,132 if filed by outsourced
lawyers.
The total estimated
annual costs associated with
filing Form I-907 if it is filed
with Form I-129 is $4,728 if
filed by human resource
specialists. The total estimated
annual costs associated with
filing Form I-907 would range
from approximately $9,006 if
filed by an in-house lawyer to
approximately $15,527 if filed by
an outsourced lawyer.
The total estimated
annual costs associated with the
portability provision ranges from
$133,684 to $198,851, depending
on the filer.
DHS may incur some
additional adjudication costs as
more petitioners will likely file
Form I-129. However, these
additional costs to USCIS are
expected to be covered by the
fees paid for filing the form.
[[Page 65077]]
Benefit:
Enabling H-2 workers
present in the United States to
port to a new petitioning
employer affords these workers
agency of choice at an earlier
moment in time consistent with
other portability regulations and
more similar to other workers in
the labor force.
Replacing the E-Verify
requirement for employers wishing
to hire porting H-2A workers with
strengthened site visit authority
and other provisions that
maintain program integrity would
aid porting beneficiaries in
finding petitioners without first
needing to confirm if that
employer is in good standing in E-
Verify. Although this change
impacts an unknown portion of new
petitions for porting H-2A
beneficiaries, no reductions in E-
Verify enrollment are
anticipated.
An H-2 worker with an
employer that is not complying
with H-2 program requirements
would have additional flexibility
in porting to another employer's
certified position.
Transfers:
Annual undiscounted
transfers of $636,760 from filing
fees for Form I-129 combined with
Form I-907 from petitioners to
USCIS.
8 CFR 214.2(h)(2)(i)(I)(3)............. DHS proposes to clarify that a Benefits:
beneficiary of an H-2 portability Provides H-2 workers with
petition is considered to have requisite protections and
been in a period of authorized benefits as codified in the rule
stay during the pendency of the in the event that a porting
petition and that the petitioner provision is withdrawn or denied.
must still abide by all H-2 Costs:
program requirements. None expected.
----------------------------------------------------------------------------------------------------------------
Cumulative Impacts of Proposed Regulatory Changes
----------------------------------------------------------------------------------------------------------------
DHS proposes to make changes to the Form I-129, to effectuate the proposed Costs:
regulatory changes. The time burden to
complete and file Form I-129, H
Classification Supplement, would
increase by 0.3 hours as a result
of the proposed changes. The
estimated opportunity cost of
time for each petition by type of
filer would be $15.28 for an HR
specialist, $34.25 for an in-
house lawyer, and $59.06 for an
outsourced lawyer. The estimated
total annual opportunity costs of
time for petitioners or their
representatives to file H-2
petitions under this proposed
rule ranges from $745,330 to
$985,540.
Petitioners or their representatives would familiarize themselves with the Costs:
rule. Petitioners or their
representatives would need to
read and understand the rule at
an estimated opportunity cost of
time that ranges from $9,739,715
to $12,877,651, incurred during
the first year of the analysis.
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
---------------------------------------------------------------------------
\146\ USCIS does not expect any additional costs to H-2B
employers as, generally, they do not have to provide housing for
workers. Employers are required to provide housing at no cost to H-
2A workers. See INA sec. 218(c)(4), 8 U.S.C. 1188(c)(4). There is no
similar statutory requirement for employers to provide housing to H-
2B workers, although there is a regulatory requirement for an H-2B
employer to provide housing when it is primarily for the benefit or
convenience of the employer. See 20 CFR 655.20(b), (c); 29 CFR
531.3(d)(1); 80 FR 24042, 24063 (Apr. 29, 2015).
[[Page 65078]]
OMB A-4 Accounting Statement Time Period: FY 2024 through FY 2033
[$ millions, FY 2022)]
----------------------------------------------------------------------------------------------------------------
Minimum Maximum
Category Primary estimate estimate estimate Source citation
----------------------------------------------------------------------------------------------------------------
Benefits
----------------------------------------------------------------------------------------------------------------
Monetized Benefits............... N/A..................... N/A N/A Regulatory Impact
Analysis
(``RIA'').
Annualized quantified, but N/A..................... N/A N/A RIA.
unmonetized, benefits.
Unquantified Benefits............ Strengthened protections .............. .............. RIA.
for workers who expose
program or labor law
violations, and for
workers benefitting
from increased grace
periods; improvements
to program integrity
from reduced incentives
for employers to
collect prohibited fees
and increased
incentives to comply
with program
requirements; and
increased access to
workers potentially
available to businesses
that utilize the H-2
programs.
Elimination of the
eligible countries
lists would reduce
burdens upon DHS,
USCIS, and H-2
employers. DHS would
focus these resources
on continuing to
identify human
trafficking and other
forms of noncompliance
with the H-2 visa
programs.
----------------------------------------------------------------------------------------------------------------
Costs
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs (7%).. $2.33................... $2.00 $2.67 RIA
Annualized monetized costs (3%).. $2.55................... $2.19 $2.92
Annualized quantified, but Increased cooperation
unmonetized, costs. with existing USCIS
site visits that
average 1.7 hours in
duration. Whereas 12-
percent of petitioners
underestimated
compliance burdens,
additional costs to
comply with existing
program requirements
may occur.
Qualitative (unquantified) costs. Certain employers may .............. .............. RIA.
incur costs (including,
but not limited to,
lost sales,
productivity, or
profits and additional
opportunity costs of
time) for failing to
comply with
investigative or
adjudicative actions
undertaken due to the
rule.
----------------------------------------------------------------------------------------------------------------
Transfers
----------------------------------------------------------------------------------------------------------------
Annualized monetized transfers: (3% and 7%) $2.92....... N/A N/A RIA.
From consumers to limited number
of workers supplying more labor.
Annualized monetized transfers: (3% and 7%) $0.17....... N/A N/A RIA.
From limited number of H-2
workers to taxes.
Annualized monetized transfers: (3% and 7%) $0.17....... N/A N/A RIA.
From limited number of H-2
employers to taxes.
Annualized monetized transfers: (3% and 7%) $0.64....... N/A N/A RIA.
Fees from petitioners to USCIS.
----------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------
Miscellaneous analyses/category Effects Source citation
------------------------------------------------------------------------
Effects on State, local, or None.............. RIA.
tribal governments.
Effects on small businesses..... None.............. RIA.
Effects on wages................ None.............. None.
Effects on growth............... None.............. None.
------------------------------------------------------------------------
3. Background and Purpose of the Rule
The purpose of this rulemaking is to modernize and improve the
regulations relating to the H-2A temporary agricultural worker program
and the H-2B temporary nonagricultural worker program (collectively
``H-2 programs''). Through this proposed rule, DHS seeks to strengthen
worker protections and the integrity of the H-2 programs, provide
greater flexibility for H-2A and H-2B workers, and improve program
[[Page 65079]]
efficiency and reduce barriers to legal migration.
The H-2A temporary agricultural nonimmigrant classification allows
U.S. employers unable to find sufficient able, willing, qualified, and
available U.S. workers to bring foreign nationals to the United States
to fill seasonal and temporary agricultural jobs. To qualify as
seasonal, employment must be tied to a certain time of year by an event
or pattern, such as a short annual growing cycle or specific aspect of
a longer cycle and requires labor levels far above those necessary for
ongoing operations. To qualify as temporary, the employer's need to
fill the position will, except in extraordinary circumstances, last no
longer than 1 year.
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-2A or H-2B nonimmigrant worker to be admitted into the
United States under one of these nonimmigrant classifications, the
hiring employer is required to: (1) obtain a TLC from DOL (or, in the
case of H-2B employment on Guam, from the Governor of Guam); 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.\147\
---------------------------------------------------------------------------
\147\ Revised effective January 18, 2009 (73 FR 78104).
---------------------------------------------------------------------------
For the H-2B program there is a statutory cap of 66,000 visas
allocated per fiscal year, with up to 33,000 allocated in each half of
a fiscal year, for the number of nonimmigrants who may be granted H-2B
nonimmigrant status.\148\ 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.\149\
---------------------------------------------------------------------------
\148\ See INA sec. 214(g)(1)(B), (g)(10), 8 U.S.C.
1184(g)(1)(B), (g)(10).
\149\ A TLC approved by DOL 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).
---------------------------------------------------------------------------
4. Population
The proposed rule would impact petitioners (employers) who file
Form I-129, Petition for a Nonimmigrant Worker, seeking to bring
foreign nationals (beneficiaries or workers) to the United States to
fill temporary agricultural and nonagricultural jobs through the H-2A
and H-2B visa programs, respectively. This proposed rule also would
have additional impacts on employers and workers presently in the
United States under the H-2A and H-2B programs by permanently providing
``portability'' to all H-2A and H-2B workers. Portability, for purposes
of this proposed rule, is the ability to begin new qualifying
employment upon the filing of a nonfrivolous petition rather than upon
petition approval. Workers may transfer, or ``port,'' to a qualifying
new job offer that is in the same nonimmigrant classification that the
worker currently holds. Porting, as proposed in this NPRM, does not
include transferring from one H visa classification to another--for
example, from H-2A to H-2B or vice versa. The new job offer may be
through the same employer that filed the petition or a different
employer after an H-2B petition is filed. This proposed provision would
apply to all H-2A and H-2B workers on a permanent basis, whereas
currently portability applies to only certain H-2A workers and on a
time-limited basis to all H-2B workers.\150\ Portability allows H-2A
and H-2B workers to continue to earn wages and gaining employers to
continue obtaining necessary workers. Table 3 and Table 4 present the
total populations this proposed rule would impact. For provisions
impacting a subset of these populations, the analysis provides separate
population totals, when possible, for more specific analysis.
---------------------------------------------------------------------------
\150\ See Exercise of Time-Limited Authority To Increase the
Numerical Limitation for FY 2023 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 76816 (Dec. 15, 2022)
(providing temporary H-2B portability to petitioners and H-2B
nonimmigrant workers initiating employment through the end of
January 24, 2024).
Table 3--Total H-2A Petitions Received Using Form I-129 for Total Beneficiaries With Total Approved H-2A
Petitions and Beneficiaries, FY 2013 Through FY 2022
----------------------------------------------------------------------------------------------------------------
Total Total number Total Total
Fiscal year petitions of petitions beneficiaries
received beneficiaries approved approved
----------------------------------------------------------------------------------------------------------------
2013............................................ 7,332 105,095 7,280 104,487
2014............................................ 8,226 123,328 8,189 122,816
2015............................................ 9,158 157,622 9,077 155,683
2016............................................ 10,248 178,249 9,989 172,661
2017............................................ 11,602 218,372 11,504 216,000
2018............................................ 13,444 262,630 13,315 258,360
2019............................................ 15,509 287,606 15,356 282,133
2020............................................ 17,012 306,746 16,776 300,834
2021............................................ 20,323 353,650 19,853 339,419
2022............................................ 24,370 415,229 23,704 396,255
Total........................................... 137,224 2,408,527 135,043 2,348,648
10-year Average................................. 13,722 240,853 13,504 234,865
----------------------------------------------------------------------------------------------------------------
Source: USCIS Office of Policy and Strategy--C3, ELIS USCIS Data System as of Oct. 18, 2022.
As shown in Table 3, the number of Form I-129 H-2A petitions
increased from 7,332 in FY 2013 to 24,370 in FY 2022 while approved
petitions increased from 7,280 in FY 2013 to 23,704 in FY 2022.\151\
The number of beneficiaries also increased over this time period from
105,095 to 415,229 with approved beneficiaries increasing from 104,487
to 396,255. Note that petitioners can petition for multiple
beneficiaries on one petition, hence the much larger number of
beneficiaries to petitions received and approved. On average, 13,722 H-
2A petitions were
[[Page 65080]]
received for an average 240,853 beneficiaries and 13,504 H-2A petitions
were approved for an annual average of 234,865 beneficiaries.
---------------------------------------------------------------------------
\151\ DHS notes that the number of filed H-2A petitions has
grown by an approximately 12.76 compound average growth rate between
FY2013 and FY2022. DHS acknowledges that potential costs may be
underestimated in this analysis if historical growth rates continue.
Table 4--Total H-2B Petitions Received Using Form I-129 for Total Beneficiaries With Total Approved H-2B
Petitions and Beneficiaries, FY 2013 Through FY 2022
----------------------------------------------------------------------------------------------------------------
Total Total number Total Total
Fiscal year petitions of petitions beneficiaries
received beneficiaries approved approved
----------------------------------------------------------------------------------------------------------------
2013............................................ 4,720 81,220 4,546 78,532
2014............................................ 5,314 91,150 5,132 87,859
2015............................................ 5,412 93,160 5,165 90,031
2016............................................ 6,527 114,181 5,946 105,213
2017............................................ 6,112 110,794 5,860 105,839
2018............................................ 6,148 113,850 5,941 108,380
2019............................................ 7,461 128,122 7,337 125,773
2020............................................ 5,422 95,826 5,269 93,345
2021............................................ 9,160 160,790 8,937 156,528
2022............................................ 12,388 185,705 12,120 181,775
Total........................................... 68,664 1,174,798 66,253 1,133,275
10-year average................................. 6,866 117,480 6,625 113,328
----------------------------------------------------------------------------------------------------------------
Source: USCIS Office of Policy and Strategy--C3, ELIS USCIS Data System as of Oct. 18, 2022.
Table 4 shows that the number of Form I-129 H-2B petitions and
number of beneficiaries increased from FY 2013 through FY 2019,
declined in FY 2020 due to labor market conditions during COVID-19, and
then increased again in FY 2021 and FY 2022.\152\ As previously
discussed, the total number of H-2B visas is constrained in recent
fiscal years by statutory numerical limits, or ``caps,'' with some
exceptions, on the total number of noncitizens who may be issued an
initial H-2B visa or otherwise granted H-2B status during each fiscal
year.\153\ Whereas the exact statutory limits (including any
supplemental limits) on H-2B visas are unknown for FY 2024 and beyond,
the receipts and approvals seen in FY 2022 are assumed to be a
reasonable estimate of future H-2B petitions and beneficiaries.
---------------------------------------------------------------------------
\152\ Although Congress provided the Secretary of Homeland
Security with the discretionary authority to increase the H-2B cap
in FY 2020, the Secretary did not exercise that authority. See
Exercise of Time-Limited Authority To Increase the Fiscal Year 2021
Numerical Limitation for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To
Change Employers, 86 FR 28202 (May 25, 2021).
\153\ On October 12, 2022, DHS announced that it will make
available to employers an additional 64,716 H-2B temporary
nonagricultural worker visas for fiscal year 2023. See DHS, DHS to
Supplement H-2B Cap with Nearly 65,000 Additional Visas for Fiscal
Year 2023 (Oct. 12, 2022), https://www.dhs.gov/news/2022/10/12/dhs-supplement-h-2b-cap-nearly-65000-additional-visas-fiscal-year-2023.
---------------------------------------------------------------------------
As these tables show, U.S. employers and foreign temporary workers
have been increasingly interested in the H-2A and H-2B programs from FY
2013 to FY 2022 as evidenced by an increasing number of petitions filed
for an increasing number of beneficiaries. However, the H-2B program
remains constrained by the statutory cap of 66,000 visas allocated per
fiscal year, provided for under INA sec. 214(g)(1)(B), 8 U.S.C.
1184(g)(1)(B), though Congress, through time-limited legislation, has
allowed, to date, supplemental allocations beyond that 66,000 visa
cap.\154\ The supplements allocate additional visas for nonimmigrants
who may be granted H-2B nonimmigrant status in each half of a fiscal
year.\155\
---------------------------------------------------------------------------
\154\ See section 543 of Division F of the Consolidated
Appropriations Act, 2017, Public Law 115-31; section 205 of Division
M of the Consolidated Appropriations Act, 2018, Public Law 115-141;
section 105 of Division H of the Consolidated Appropriations Act,
2019, Public Law 116-6; section 105 of Division I of the Further
Consolidated Appropriations Act, 2020, Public Law 116-94; section
105 of Division O of the Consolidated Appropriations Act, 2021,
Public Law 116-260 (FY 2021 Omnibus); section 105 of Division O of
the Consolidated Appropriations Act, 2021, FY 2021 Omnibus, sections
101 and 106(3) of Division A of Public Law 117-43, Continuing
Appropriations Act, 2022, and section 101 of Division A of Public
Law 117-70, Further Continuing Appropriations Act, 2022; section 204
of Division O of the Consolidated Appropriations Act, 2022, Public
Law 117-103, and section 101(6) of Division A of Public Law 117-180,
Continuing Appropriations and Ukraine Supplemental Appropriations
Act, 2023, and section 303 of Division O, Consolidated
Appropriations Act, 2023, Public Law 117-328.
\155\ See INA sec. 214(g)(1)(B), (g)(10), 8 U.S.C.
1184(g)(1)(B), (g)(10).
---------------------------------------------------------------------------
5. Cost-Benefit Analysis
The provisions of this proposed rule subject to this regulatory
analysis are grouped into the following four categories: (1) integrity
and worker protections; (2) worker flexibilities; (3) improving H-2
program efficiencies and reducing barriers to legal migration; and (4)
forms and technical updates. Each subsection that follows explains the
proposed provision, its population if available, and its potential
impacts.
a. Integrity and Worker Protections
To improve the integrity of the H-2 programs, DHS proposes to
provide clearer requirements for USCIS compliance reviews and
inspections, to provide H-2A and H-2B workers ``whistleblower
protections,'' revise the provisions relating to prohibited fees, and
to institute certain mandatory and discretionary bars to approval of an
H-2A or H-2B petition. We address each of these provisions in turn
below.
(1) USCIS Compliance Reviews and Inspections
DHS is proposing new provisions specific to the H-2A and H-2B
programs to conduct compliance inspections, clarify the scope of
inspections, and specify the consequences of a refusal or failure to
fully cooperate with such compliance reviews and inspections. While no
inspection that the USCIS Fraud Detection and National Security
Directorate (FDNS) conducts is mandatory, if an inspection is
conducted, this provision would make the successful completion of an
inspection required for a petition's approval.\156\ Inspections can
include site visits, telephone interviews, or correspondence (both
electronic and mail).\157\ This regulatory change would
[[Page 65081]]
apply to both pre- and post-adjudication petitions, which would provide
USCIS the ability to either deny or revoke petitions accordingly. This
proposed rule would provide USCIS with a greater ability to obtain
compliance from petitioners and employers. Outside of this proposed
rulemaking, USCIS is planning to conduct future site visits for both H-
2A and H-2B work sites, some of which are expected to occur in late FY
2023.
---------------------------------------------------------------------------
\156\ For more information on site visits, see USCIS,
Administrative Site Visit and Verification Program (Sept. 9, 2019),
https://www.uscis.gov/about-us/directorates-and-program-offices/fraud-detection-and-national-security/administrative-site-visit-and-verification-program.
\157\ The expected time burden to comply with audits conducted
by DHS and OFLC is 12 hours. The number in hours for audits was
provided by USCIS, Service Center Operations. See Exercise of Time-
Limited Authority To Increase the Numerical Limitation for FY 2023
for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking To Change
Employers, 87 FR 76816 (Dec. 15, 2022).
---------------------------------------------------------------------------
Data on H-2 program inspections are limited and generally consist
of site visits. USCIS has conducted only 189 H-2A program site visits
associated with fraud investigations since calendar year 2004. With
respect to H-2B program inspections, USCIS conducted a limited site
visit pilot in FY 2018 and FY 2019 in which USCIS completed 364
(randomly selected) H-2B employment sites for inspection and conducted
site visits.\158\ Of the site visits USCIS conducted, USCIS officers
were unable to make contact with employers or workers over 12 percent
of the time (45 instances).\159\ On average, each site visit took 1.7
hours.\160\ Of the limited number of site visits USCIS has conducted
thus far, non-cooperation exists in at least some cases. Cooperation is
crucial to USCIS's ability to verify information about employers and
workers, and the overall conditions of employment.
---------------------------------------------------------------------------
\158\ The H-2B petitions were randomly selected so they do not
represent a population that data led USCIS to believe were more
vulnerable to fraud or abuse.
\159\ Site visits can be categorized as ``inconclusive'' for a
variety of reasons including, but not limited to, noncooperation or
a lack of personnel (petitioner, beneficiary, or other relevant
personnel) present at the respective site.
\160\ Data from USCIS FDNS, Reports and Analysis Branch.
---------------------------------------------------------------------------
This proposed rule would provide a clear disincentive for
petitioners who do not cooperate with compliance reviews and
inspections while giving USCIS a greater ability to access and confirm
information about employers and workers as well as identify fraud.
Employers who may be selected to participate in such inspections may
incur costs related to the opportunity cost of time to provide
information to USCIS instead of performing other work. As discussed
above, FDNS data on previous H-2B site visits show that the average
site visit takes 1.7 hours. DHS believes that, due to the rule's
provisions clarifying the consequences of a refusal or failure to fully
cooperate with compliance reviews and inspections, the rate of
``inconclusive'' site visits will be negligible. As such, each site
visit that warrants a conclusive finding under the rule that would have
warranted an ``inconclusive'' finding under the baseline scenario would
therefore cause a 1.7-hour time burden to accrue to the respective
petitioner due the petitioner now expending time cooperating that they
would not have under the baseline.
DHS cannot quantify these costs, however, because the relevant
hourly opportunity cost of time is highly specific to the affected
petitioner and, as such, any average would likely not be informative.
DHS expects the benefit of participation in the H-2 program would
outweigh these costs, however. Additionally, employers who do not
cooperate would face denial or revocation of their petition(s), which
could result in costs to those businesses.
USCIS does not expect this proposed provision would result in
additional costs to the Federal Government because it would not require
additional resources or time to perform compliance reviews and
inspections and, at the same time, USCIS is not proposing to establish
a particular number of compliance reviews and inspections to complete
annually or increase the number of compliance reviews and inspections
or the number of H-2 program site visits. A benefit is that USCIS would
have the authority to deny or revoke a petition if unable to verify
information related to the petition. Additionally, existing USCIS
program integrity activities would be made more effective by additional
cooperation from employers.
DHS welcomes public comment on the costs H-2 program employers and
workers would incur based on the proposed changes related to compliance
reviews and inspections.
(2) Whistleblower Protections
DHS is proposing to provide H-2A and H-2B workers with
``whistleblower protections'' comparable to the protections currently
offered to H-1B workers.\161\ For example, if an H-1B worker (1)
applies to extend their H-1B status or change their nonimmigrant
status; (2) indicates that they faced retaliatory action from their
employer because they reported an LCA violation; and (3) lost or failed
to maintain their H-1B status, USCIS may consider this situation to be
an instance of ``extraordinary circumstances'' as defined by sections 8
CFR 214.1(c)(4) and 248.1(b). In addition, H-1B workers normally are
not eligible to extend or change their status if they have lost or
failed to maintain their H-1B status. However, if they can demonstrate
``extraordinary circumstances,'' USCIS may use its discretion to excuse
this requirement on a case-by-case basis.
---------------------------------------------------------------------------
\161\ See USCIS, Combating Fraud and Abuse in the H-1B Visa
Program (Feb. 9, 2021), https://www.uscis.gov/scams-fraud-and-misconduct/report-fraud/combating-fraud-and-abuse-in-the-h-1b-visa-program.
---------------------------------------------------------------------------
USCIS does not currently have data specific to whistleblower
protections for the H-1B program nor does it have data on other similar
types of reports on worker issues from the H-2 population.\162\
Therefore, it is possible that whistleblower protections may afford H-2
workers the ability to expose issues that harm beneficiaries or are not
congruent with the intent of H-2 employment. This impact could,
potentially, improve working conditions but the extent to which H-2
workers would cooperate in program integrity activities as a direct
result of prohibitions on specified employer retaliations is unknown.
It is also possible that employers may face increased RFEs, denials, or
other actions on their H-2 petitions, or other program integrity
mechanisms available under this rule or existing authorities, as a
result of H-2 workers' cooperation in program integrity activity due to
whistleblower protections. Such actions may result in potential costs
such as lost productivity and profits to employers whose noncompliance
with the program is revealed by whistleblowers. The Department invites
comments from petitioners regarding compliance costs resulting from
whistleblower protections.
---------------------------------------------------------------------------
\162\ WHD prohibits retaliation and publishes fact sheets and
other resources online. See, e.g., Retaliation [verbar] U.S.
Department of Labor (dol.gov); WHD, Fact Sheet #77D: Retaliation
Prohibited under the H-2A Temporary Visa Program (Apr. 2012),
https://www.dol.gov/agencies/whd/fact-sheets/77d-h2a-prohibiting-retaliation; Fact Sheet #78H: Retaliation Prohibited under the H-2B
Temporary Visa Program, https://www.dol.gov/agencies/whd/fact-sheets/78h-h2b-retaliation-prohibited.
---------------------------------------------------------------------------
(3) Prohibited Fees
DHS is proposing to revise the provisions relating to prohibited
fees to strengthen the existing prohibition on, and consequences for,
charging certain fees to H-2A and H-2B workers, including new bars on
approval for some H-2 petitions. The economic impacts of these proposed
changes are difficult to assess because USCIS currently does not have
the means to track or identify petitions associated with the payment of
prohibited fees. Prohibited fees are paid by a worker and include, but
are not limited to, withholding or deducting workers'
[[Page 65082]]
wages; directly or indirectly paying a recruiter, employer, agent, or
anyone else in the recruitment chain agent; or paying for other work-
related expenses the employer is required by statute or regulation to
cover.
USCIS generally has no direct interaction with beneficiaries, so it
currently depends in significant part on findings by DOS consulates to
determine if prohibited fees have been paid, usually in relation to
applicant interviews or investigations. For example, the DOS Office of
Fraud Prevention, in collaboration with several consulates in Mexico,
confirmed they do not have data on the average number of prohibited
fees charged nor the amount paid.\163\ A consulate in Mexico shared
that during visa interviews beneficiaries may disclose the payment of
prohibited fees, but typically these admissions are for fees paid to
previous facilitators or employers from returning applicants who are
going to work for a new employer.\164\ This is likely due to
disincentives to admitting to the payment of fees for current petitions
for fear of losing the proffered job opportunity in the United
States.\165\ DOS assumes it only receives reports from a small fraction
of the workers who pay prohibited fees because they still are able to
obtain work and make more money in the United States than they would in
Mexico regardless of whether they pay fees or not leading some workers
to choose not to report the prohibited fees.\166\ Further, DOS also
noted that workers usually only report paying prohibited fees when fees
are increased, when they do not have the money to pay the fee in a
current year, or they are excluded from being listed on a petition.
---------------------------------------------------------------------------
\163\ Information from email discussions. See DOS Emails
Re_Prohibited fees (H-2) (Sept. 19, 2022).
\164\ Id.
\165\ Workers have a disincentive to report prohibited fees
since regulations stipulate that a visa should be denied to those
admitting to paying these fees.
\166\ Information from email discussions. See DOS Emails
Re_Prohibited fees (H-2) (Sept. 19, 2022).
---------------------------------------------------------------------------
Moreover, DOS noted that prohibited fees are commonplace and
pervasive in the H-2 program, but that this issue largely goes
unreported.\167\ Consular employees noted, in their experience, that
fees ordinarily range from $800 to $1,000 for a beneficiary to be
included on a petition but that non-monetary transfers may also
occur.\168\
---------------------------------------------------------------------------
\167\ Id.
\168\ In additional to the non-exhaustive list of prohibited
fees, there are also other types of non-fee payments, including
favors, meals, or even the transfer of livestock.
---------------------------------------------------------------------------
Data on the prevalence of prohibited fees is very limited. However,
according to one non-profit organization that conducted a survey, about
58 percent of H-2 workers reported paying a prohibited fee.\169\ Since
data on the prevalence of prohibited fees is very limited, we use the
58 percent estimate as a primary estimate of beneficiaries that may be
subject to some form of prohibited fee. Using this estimated
percentage, we can multiply by the total number of FY 2022
beneficiaries to consider the potential population impacted by
prohibited fees.\170\ If we assume 58 percent of beneficiaries pay an
average fee of $900,\171\ we estimate that prohibited fees (including
those incurred both within and outside of the United States) may have
cost H-2A workers around $216.7 million and H-2B workers around $96.9
million in FY 2022.\172\ If prohibited fees are a prevalent problem on
such an economically significant scale, it may not be reasonable to
assume that this rule would stop all fees paid by H-2 workers. However,
for beneficiaries who currently pay prohibited fees or could pay them
in the future, this proposed provision seeks to minimize the occurrence
and burden of prohibited fees on H-2 beneficiaries.
---------------------------------------------------------------------------
\169\ See Centro de los Derechos del Migrante, Recruitment
Revealed: Fundamental Flaws in the H-2 Temporary Worker Program and
Recommendations for Change. Not dated. Available at https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf.
Last accessed Mar. 31, 2023.
\170\ FY 2022 Total H-2A beneficiaries 415,229 x 0.58 = 240,833
(rounded); FY 2022 Total H-2B beneficiaries 185,705 x 0.58 = 107,709
(rounded).
\171\ We take an average of the range provided by the consular
office in Mexico: ($800+$1000)/2=$900.
\172\ Calculations: Half of FY 2022 H-2A beneficiaries 240,833 x
$900 fee = $216.7 million (rounded); Half of FY 2022 H-2B
beneficiaries 107,709 x $900 fee = $96.9 million (rounded).
---------------------------------------------------------------------------
It is difficult to estimate the specific impacts that this proposed
change would have, but DHS expects that enhanced consequences for
petitioners would act as a deterrent to charge or collect prohibited
fees from H-2 workers. In addition, the harsher consequences for
employers charging prohibited fees could, in conjunction with
whistleblower protections proposed in this rule, reduce disincentives
for workers to report that prohibited fees had been charged. However,
DHS is not able to estimate whether and to what extent those
disincentives are expected to be reduced. Consequently, under this
proposed rule, there would be additional unquantifiable and non-
monetizable reductions in indenture and harms from other more serious
abuses such as those discussed in section III, Background.
DHS welcomes public comment on the prevalence, population, and cost
of prohibited fees and their impacts on H-2 workers.
(4) Mandatory and Discretionary Bars
As another integrity measure and deterrent for petitioners that
have been found to have committed labor law violations or abused the H-
2 programs, DHS is proposing to institute certain mandatory and
discretionary bars to approval of an H-2A or H-2B petition. The impacts
of this proposed provision are targeted at H-2 petitioners that have
committed serious violations or have otherwise not complied with H-2
program requirements.
To understand the baseline, USCIS has data on current debarments.
USCIS relies on debarment data shared by DOL to determine the
eligibility of certain H-2 petitions. As of December 19, 2022, there
were 76 active debarments for both the H-2A and H-2B programs.
Historically, from FY 2013 through FY 2022, USCIS has tracked a total
of 326 recorded debarments for a company, individual or agent as
provided by DOL. USCIS regularly performs additional research to
confirm debarment and petitioner information to assist in
adjudications. For the period of debarment, a petition covered by the
debarment may not be approved where the debarred organization, or its
successor-in-interest in some limited circumstances, whether or not
having the same name as that listed, is the petitioner or employer.
Costs under this provision of the proposed rule would be borne by
such petitioners or their successor in interest through denials and
bars to participating in the H-2 program for a period of between 1 to 5
years. More petitioners may face financial losses as a result of these
bars because they may lose access to labor for extended periods, which
could result in too few workers, loss of revenue, and some could go out
of business. DHS expects program participants to comply with program
requirements, however, and notes that those that do not could
experience significant impacts due to this proposed rule. DHS expects
that the proposed rule would hold certain petitioners more accountable
for violations, including certain findings of labor law and other
violations, and would result in fewer instances of worker exploitation
and safer working environments for beneficiaries.
The Federal Government may experience costs associated with
implementing this provision.
[[Page 65083]]
Specifically, USCIS adjudicators may require additional time associated
with reviewing petitioner information relating to debarment by DOL and
other determinations of past violations more closely (as they would now
be able to consider past noncompliance in the current adjudications),
issuing an RFE or NOID, and, if the violation determination is covered
under the discretionary bar provision, including when debarment has
concluded, conducting the discretionary analysis for relevant
petitions. Additionally, the proposed expansion of bases for debarment
as well as the way debarments are tracked in current USCIS systems
would require additional inter-agency coordination and information
sharing.
DHS welcomes public comments on any costs resulting from these
proposed mandatory and discretionary bars to employers, if the proposed
bars are adequate to address misconduct, and if there are data
available that should be considered.
b. Worker Flexibilities
DHS is proposing changes to provide greater flexibility to H-2A and
H-2B workers by implementing grace periods, clarifying the
responsibility of H-2A employers for reasonable costs of return
transportation for beneficiaries following a petition revocation,
clarifying expressly that H-2 workers may take steps toward becoming a
permanent resident of the United States while still maintaining lawful
nonimmigrant status, and expanding job portability. We address each of
the provisions regarding these worker flexibilities in turn below.
(1) Grace Periods
DHS proposes to provide increased flexibility for H-2 workers by
extending grace periods. Workers would not experience an increase in
work time due to these extended grace periods. More specifically, this
rule proposes to provide the same 10-day grace period prior to a
petition's validity period that H-2B nonimmigrants currently receive to
H-2A nonimmigrants, resulting in the extension of the initial grace
period of an approved H-2A petition from 1 week to 10 days. The
proposed initial grace period would also apply to their dependents in
the H-4 visa classification. USCIS does not have data on how early H-2
workers arrive in the United States prior to a petition's validity
period. As a result, we do not know how many H-2B workers currently or
historically arrive up to 10 days prior to their employment start date,
nor do we know how many H-2A workers currently or historically arrive a
full week (7 days) early. Further, the portion of the H-2A populations
that may benefit from this proposed provision is unknown. Extending the
grace period prior to a petition's validity period for H-2A workers by
3 days may result in additional costs to employers, such as for
housing.\173\ However, since H-2A employers pay for and normally
arrange transportation to the worksite, USCIS assumes employers would
weigh the costs of providing additional days of housing to H-2A workers
against the benefit of providing their employees with additional time
to prepare for the start of work. For example, it may be beneficial for
an employer to provide workers additional time to adjust to a new time
zone or climate.
---------------------------------------------------------------------------
\173\ H-2A workers must be provided housing. See WHD, H-2A:
Temporary Agricultural Employment of Foreign Workers, https://www.dol.gov/agencies/whd/agriculture/h2a.
---------------------------------------------------------------------------
DHS also proposes to extend the 10-day grace period following the
expiration of their petition from 10 days to 30 days for H-2B
nonimmigrants, subject to the 3-year maximum limitation of stay. USCIS
does not have data on the length of time H-2A or H-2B workers typically
spend in the United States following the validity period of a petition
because departures from the United States are not always tracked.
Unlike the general practice regarding entries, departures are not
always tracked and do not typically require an encounter with U.S.
Customs and Border Protection, so it is difficult to determine when
nonimmigrants leave the United States. Therefore, the population that
may benefit from this proposed provision is unknown. However, because
this proposed rule would extend only the H-2B grace period, USCIS does
not expect any additional costs to employers as they generally are not
required to provide housing for their workers during the time of
employment or during the grace period. The extended grace period for H-
2B workers would benefit the workers by providing additional time to
prepare for departure or seek alternative work arrangements such as
applying for an extension of stay based on a subsequent offer of
employment or porting to a new employer. Additionally, this proposed
provision would align the grace periods for H-2A and H-2B workers so
that they both are afforded 10 days prior to the approved validity
period and 30 days following the expiration of an H-2 petition, thereby
reducing confusion for potential employers and better ensuring
consistency in granting workers the grace periods.
DHS is also proposing to provide a new 60-day grace period
following a cessation of H-2 employment or until the end of the
authorized period of admission, whichever is shorter. USCIS does not
have data on H-2 employment cessations and, therefore, the impact of
this provision on the portion of the H-2A and H-2B populations is
unknown. However, this provision would likely offer H-2 workers time to
respond to sudden or unexpected changes related to their employment,
regardless of the reason for employment cessation. The time could be
used to seek new employment, prepare for departure from the United
States, or seek a change of status to a different nonimmigrant
classification.
DHS welcomes public comments on any costs resulting from the
proposed grace period extensions from 1 week to 10 days prior to a
petition's validity period for H-2A nonimmigrants and from 10 days to
30 days following the expiration of their petition for H-2B
nonimmigrants, subject to the 3-year maximum limitation of stay. DHS
also welcomes public comments on the proposed grace period of 60 days
following a cessation of H-2 employment or until the end of the
authorized period of admission, whichever is shorter.
(2) Transportation Costs for Revoked H-2 Petitions
DHS proposes to add language clarifying that upon revocation of an
H-2A or H-2B petition, the petitioning employer would be liable for the
H-2 beneficiary's reasonable costs of return transportation to their
last place of foreign residence abroad. Under existing 20 CFR
655.20(j)(1)(ii) and 20 CFR 655.122(h)(2), as well as 8 CFR
214.2(h)(6)(i)(C) and 8 CFR 214.2(h)(6)(vi)(E), petitioning employers
are already generally liable for the return transportation costs of H-2
workers, so this proposed change is not expected to result in any
additional costs to employers.
(3) Effect on an H-2 Petition of Approval of a Permanent Labor
Certification, Immigrant Visa Petition, or the Filing of an Application
for Adjustment of Status or Immigrant Visa
DHS proposes to clarify that H-2 workers may take certain steps
toward becoming lawful permanent residents of the United States while
still maintaining lawful nonimmigrant status. The population impacted
by this provision can be seen in Table 5. Historical receipts data for
Form I-485
[[Page 65084]]
(Application to Register Permanent Residence or Adjust Status) show a
5-year total of 9,748 receipts from applicants with H-2A and H-2B
status. The annual average is 1,950 receipts.
Table 5--Form I-485 Receipts From Applicants With H-2A and H-2B Status,
FY 2018 Through FY 2022
------------------------------------------------------------------------
Admin
Fiscal year Receipts Approved Denied close/
withdraw
------------------------------------------------------------------------
2018........................ 1,294 240 22 2
2019........................ 1,698 1,032 81 2
2020........................ 2,491 1,366 87 1
2021........................ 2,701 2,411 97 2
2022........................ 1,564 1,832 138 6
-------------------------------------------
Total................... 9,748 6,881 425 13
5-year average.............. 1,950 1,376 85 3
------------------------------------------------------------------------
Source: USCIS Office of Policy and Strategy--C3, ELIS USCIS Data System
as of Nov. 4, 2022.
USCIS does not have information on how many H-2 workers have been
deemed to have violated their H-2 status or abandoned their foreign
residence. However, DHS expects this could enable some H-2 workers who
have otherwise been dissuaded to pursue lawful permanent residence with
the ability to do so without concern over becoming ineligible for H-2
status. This proposed rule would not expand the underlying eligibility
of H-2 workers for lawful permanent resident status.
DHS welcomes public comments on the impacts that may result from
this proposed provision to allow H-2 workers to take steps toward
becoming permanent residents of the United States.
(4) Portability
DHS proposes to permanently provide portability for eligible H-2A
and H-2B nonimmigrants. The population affected by this provision are
nonimmigrants in H-2A and H-2B status who are present in the United
States on whose behalf a nonfrivolous H-2 petition for new employment
has been filed, with a request to amend or extend the H-2A or H-2B
nonimmigrant's stay in the same classification they currently hold,
before their period of stay expires and who have not been employed
without authorization in the United States from the time of last
admission through the filing of the petition for new employment.
Codifying this provision in regulation for H-2 nonimmigrants would
provide stability and job flexibility to the beneficiaries of approved
H-2 visa petitions. This portability provision would facilitate the
ability of individuals to move to more favorable employment situations
and/or extend employment in the United States without being tied to one
position with one employer. Additionally, DHS is proposing an
additional portability provision that would clarify that H-2 employers
must comply with all H-2 program requirements and responsibilities
(such as worker protections) in the event that a petition for a porting
worker is withdrawn or denied.
Currently, portability is available on a permanent basis to H-2A
workers, but it is limited to E-Verify employers.\174\ E-Verify is a
DHS web-based system that allows enrolled employers to confirm the
identity and eligibility of their employees to work in the United
States by electronically matching information provided by employees on
the Employment Eligibility Verification (Form I-9) against records
available to DHS and the Social Security Administration (SSA).\175\ DHS
does not charge a fee for employers to participate in E-Verify and
create cases to confirm the identity and employment eligibility of
newly hired employees. Under this proposed rule, employers petitioning
for a porting H-2A worker would no longer need to be enrolled in E-
Verify, but would remain subject to all program requirements based on
the approved TLC and the filing of the H-2 petition.
---------------------------------------------------------------------------
\174\ While unrelated to this NPRM, we note that on April 20,
2020, a final rule published to temporarily amend its regulations to
allow H-2A workers to immediately work for any new H-2A employer to
mitigate the impact on the agricultural industry due to COVID-19.
This temporary final rule (TFR) was effective from April 20, 2020,
through August 18, 2020. See Temporary Changes to Requirements
Affecting H-2A Nonimmigrants Due to the COVID-19 National Emergency,
85 FR 21739 (Apr. 20, 2020). Another TFR published August 20, 2020,
again allowing H-2A workers to immediately work for any new H-2A
employer. That TFR was effective from August 19, 2020, through
August 19, 2023 and allowed employers to request the flexibilities
under this TFR by filing an H-2A petition on or after August 19,
2020, and through December 17, 2020. See Temporary Changes to
Requirements Affecting H-2A Nonimmigrants Due To the COVID-19
National Emergency: Partial Extension of Certain Flexibilities, 85
FR 51304 (Aug. 20, 2020).
\175\ See DHS, About E-Verify, https://www.e-verify.gov/about-e-verify (last updated Apr. 10, 2018).
---------------------------------------------------------------------------
Although there is no fee to use E-Verify, this proposed requirement
would result in savings to newly enrolling employers. Employers that
newly enroll in E-Verify to hire H-2 workers incur startup enrollment
or program initiation costs as well as additional opportunity costs of
time for users to participate in webinars and learn about and
incorporate any new features and system updates that E-Verify may have
every year. DHS assumes that most employers that are currently
participating in E-Verify would not realize cost savings of these
expenses since they previously incurred enrollment costs and would
continue to participate in webinars and incorporate any new E-Verify
features and system changes regardless of this proposed rule.\176\
Additionally, DHS expects that only those employers who would have
enrolled for the explicit purpose of petitioning on behalf of a porting
employee would realize a cost savings for verifying the identity and
work authorization of all their newly hired employees, including any
new H-2A workers as a result of this proposed rule. For employers
currently enrolled in E-Verify that choose to hire an H-2A worker, the
proposed rule would not result in a cost savings to such employers
since they already must use E-Verify for all newly hired employees as
of the date they signed the E-Verify Memorandum of Understanding
[[Page 65085]]
(MOU).\177\ Therefore, with or without the proposed rule, an employer
already enrolled in E-Verify that chooses to hire a porting H-2A worker
would continue to incur the opportunity cost of time to confirm the
employment authorization of any newly hired employees.
---------------------------------------------------------------------------
\176\ Employers already participating in E-Verify likely already
attend webinars and learn about and incorporate new features and
system changes annually because they voluntarily chose to enroll or
because of rules or regulations beyond the scope of this proposed
rule. DHS anticipates that such employers would continue to use E-
Verify regardless of their decision to hire H-2A workers or not.
\177\ See DHS, About E-Verify, Questions and Answers (last
updated Sept. 15, 2022), https://www.e-verify.gov/about-e-verify/questions-and-answers?tid=All&page=0.
---------------------------------------------------------------------------
Participating in E-Verify and remaining in good standing requires
employers to enroll in the program online,\178\ electronically sign the
associated MOU with DHS that sets the terms and conditions for
participation and create E-Verify cases for all newly hired employees.
The MOU requires employers to abide by lawful hiring procedures and to
ensure that no employee will be unfairly discriminated against as a
result of E-Verify.\179\ If an employer violates the terms of this
agreement, it can be grounds for immediate termination from E-
Verify.\180\ Additionally, employers are required to designate and
register at least one person that serves as an E-Verify administrator
on their behalf.
---------------------------------------------------------------------------
\178\ See DHS, Enrolling in E-Verify, The Enrollment Process
(last updated Aug. 9, 2022), https://www.e-verify.gov/employers/enrolling-in-e-verify/the-enrollment-process.
\179\ An employer that discriminates in its use of E-Verify
based on an individual's citizenship status or national origin may
also violate the INA's anti-discrimination provision, at 8 U.S.C.
1324b.
\180\ See USCIS, The E-Verify Memorandum of Understanding for
Employers (June 1, 2013), http://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/MOU_for_E-Verify_Employer.pdf.
---------------------------------------------------------------------------
For this analysis, DHS assumes that each employer participating in
E-Verify designates one HR specialist to manage the program on its
behalf. Based on the most recent Paperwork Reduction Act (PRA)
Information Collection Package for E-Verify, DHS estimates the time
burden for an HR specialist to undertake the tasks associated with E-
Verify. DHS estimates the time burden for an HR specialist to complete
the enrollment process is 2 hours 16 minutes (2.26 hours), on average,
to provide basic company information, review and sign the MOU, take a
new user training, and review the user guides.\181\ Once enrolled in E-
Verify, DHS estimates the time burden is 1 hour to users who may
participate in voluntary webinars and learn about and incorporate new
features and system updates to E-Verify annually.\182\ This may be an
overestimate in some cases as webinars are not mandatory, but we
recognize that some recurring burden to users exists to remain in good
standing with E-Verify.
---------------------------------------------------------------------------
\181\ The USCIS Office of Policy and Strategy, PRA Compliance
Branch estimates the average time burdens. See PRA E-Verify Program
(OMB Control Number 1615-0092) (Mar. 30, 2021). The PRA Supporting
Statement can be found at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=202103-1615-015, under Question 12 (Last
accessed Apr. 4, 2023).
\182\ Id.
---------------------------------------------------------------------------
Cost savings due to this provision relate only to the opportunity
costs of time to petitioners associated with the time an employer would
save by not newly enrolling or participating in E-Verify. In this
analysis, DHS uses an hourly compensation rate for estimating the
opportunity cost of time for an HR specialist. DHS uses this occupation
as a proxy for those who might prepare and complete the Form I-9,
Employment Eligibility Verification, and create the E-Verify case for
an employer. DHS notes that not all employers may have an HR
specialist, but rather some equivalent occupation may prepare and
complete the Form I-9 and create the E-Verify case.
According to Bureau of Labor Statistics (BLS) data, the average
hourly wage rate for HR specialists is $35.13.\183\ DHS accounts for
worker benefits by calculating a benefits-to-wage multiplier using the
most recent BLS report detailing the average employer costs for
employee compensation for all civilian workers in major occupational
groups and industries. DHS estimates the benefits-to-wage multiplier is
1.45 and, therefore, is able to estimate the full opportunity cost per
E-Verify user, including employee wages and salaries and the full cost
of benefits such as paid leave, insurance, and retirement, etc.\184\
Therefore, DHS calculates an average hourly compensation rate of $50.94
for HR specialists.\185\ Applying this average hourly compensation rate
to the estimated time burden of 2.26 hours for the enrollment process,
DHS estimates an average opportunity cost of time savings for a new
employer to enroll in E-Verify is $115.12.\186\ DHS assumes the
estimated opportunity cost of time to enroll in E-Verify is a one-time
cost to employers. In addition, DHS estimates an opportunity cost of
time savings associated with 1 hour of each E-Verify user to attend
voluntary webinars and learn about and incorporate new features and
system changes for newly enrolled entities would be $50.94 annually in
the years following enrollment.
---------------------------------------------------------------------------
\183\ See BLS, Occupational Employment and Wages, May 2022,
Human Resources Specialist (13-1071), https://www.bls.gov/oes/2022/may/oes131071.htm.
\184\ The benefits-to-wage multiplier is calculated as follows:
(Total Employee Compensation per hour)/(Wages and Salaries per hour)
= $42.48/$29.32 = 1.45 (rounded). See BLS, Economic News Release,
Employer Cost for Employee Compensation--December 2021, 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 (Mar. 17, 2023), https://www.bls.gov/news.release/archives/ecec_03172023.pdf.
\185\ Calculation: $35.13 average hourly wage rate for HR
specialists x 1.45 benefits-to-wage multiplier = $50.94 (rounded).
\186\ Calculation: 2.26 hours for the enrollment process x
$50.94 total compensation wage rate for an HR specialist = $115.12.
---------------------------------------------------------------------------
Newly enrolled employers would also incur opportunity costs of time
savings from not having to enter employee information into E-Verify to
confirm their identity and employment authorization. DHS estimates the
time burden for an HR specialist to create a case in E-Verify is 7.28
minutes (or 0.121 hours).\187\ Therefore, DHS estimates the opportunity
cost of time savings would be approximately $6.57 per case.\188\ These
employers would not be able to verify the employment eligibility
information of newly hired employees against government data systems if
they fail to register and use E-Verify.
---------------------------------------------------------------------------
\187\ The USCIS Office of Policy and Strategy, PRA Compliance
Branch estimates the average time burdens. See PRA E-Verify Program
(OMB Control Number 1615-0092), March 30, 2021. The PRA Supporting
Statement can be found at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=202103-1615-015 under Question 12 (Last
accessed Apr. 4, 2023)
\188\ Calculation: 0.121 hours to submit a query x $50.94 total
compensation wage rate for an HR specialist = $6.57 (rounded).
---------------------------------------------------------------------------
Table 6 shows the number of Form I-129 H-2A petitions filed for
extensions of stay due to change of employer and Form I-129 H-2A
petitions filed for new employment for FY 2018 through FY 2022. The
average rate of extension of stay due to change of employer compared to
new employment was approximately 6.7 percent over this time period.
USCIS also considered the number of beneficiaries that correspond to
the Form I-129 H-2A petitions that filed extensions of stay due to a
change of employer to estimate the average number of beneficiaries per
petition of six. Table 6 also shows that although petitions have been
increasing for extension of stay due to change of employer, the number
of beneficiaries on each petition has declined from FY 2018 to FY 2022.
This indicates that it may be harder for petitioners to find porting
workers. One reason may be because petitioners face certain constraints
such as the ability for petitioners to access workers seeking to port
or a limited number of workers seeking to port.
[[Page 65086]]
Table 6--Number of Form I-129 H-2A Petitions and Beneficiaries Filed for Extension of Stay Due to Change of
Employer and Form I-129 H-2A Petitions Filed for New Employment, FY 2018--FY 2022
----------------------------------------------------------------------------------------------------------------
Rate of Average number
Form I-129 H- extension to Number of of
2A petitions stay due to beneficiaries beneficiaries
filed for Form I-129 H- change of corresponding per petition
Fiscal year extension of 2A petitions employer to Form I-129 filed for
stay due to filed for new filings H-2A extension extension of
change of employment relative to of stay stay due to
employer new employment petitions change of
filings filed employer
----------------------------------------------------------------------------------------------------------------
A B C = A/B D E = D/A
----------------------------------------------------------------------------------------------------------------
2018............................ 425 10,841 0.039 3,566 8
2019............................ 626 12,177 0.051 4,265 7
2020............................ 915 12,989 0.070 5,995 7
2021............................ 1,334 15,128 0.088 7,226 5
2022............................ 1,526 18,093 0.084 7,250 5
-------------------------------------------------------------------------------
Total....................... 4,826 69,228 .............. 28,302 ..............
5-year Average.................. 965 13,846 0.067 5,660 6
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy--C3, ELIS USCIS Data System, as of Oct. 18, 2022 and USCIS
Analysis.
DHS expects that existing H-2A petitioners would continue to
participate in E-Verify and would thus not realize a cost savings due
to this proposed rule. For employers that do not yet port H-2A workers
but do obtain TLCs from DOL, they would experience a cost-savings
relevant to avoiding enrollment and participation in E-Verify but would
not be able to verify the employment eligibility information of newly
hired employees against government data systems. However, for employers
that do not yet port H-2A workers and do not yet obtain TLCs, the cost-
savings would be offset by their need to submit DOL's Employment and
Training Administration (ETA) Form 9142A. The public reporting burden
for Form ETA-9142A is estimated to average 3.63 hours per response for
H-2A.\189\ Depending on the filer, the cost to submit Form ETA-9142A is
estimated at $184.91 for an HR specialist, $414.44 for an in-house
lawyer, and $ 714.57 for an out-sourced lawyer.\190\ Compared to the
absolute minimum opportunity cost of time to enroll in, participate in
an hour of training, and submit one query in E-Verify of $172.63,\191\
regardless of the filer, a new H-2A porting employer needing to obtain
TLCs would not experience a cost-savings in the first year following
this rule.\192\
---------------------------------------------------------------------------
\189\ See DOL, H-2A Application for Temporary Employment
Certification Form ETA-9142A (OMB Control Number 1205-0466), Expires
Oct. 31, 2025. The PRA Supporting Statement can be found at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=202303-1205-002
under Question 12 (Last accessed Apr. 4, 2023); see also DOL,
Supplementary Documents, Appendix--Breakdown of Hourly Burden
Estimates, H-2A Application for Temporary Employment Certification
Form ETA-9142A (OMB Control Number 1205-0537), Id. at Section C.
(Last accessed Apr. 4, 2023). DOL estimates the time burden for
completing Form ETA-9142A is 3.63 hours, including 0.33 hours to
complete Form ETA-9142A, 1.33 hours to H-2ALC Filing Requirements,
0.50 hours to complete Waiver for Emergency Situations, 0.25 hours
to complete Modify Application/Job Order, 0.50 hours to complete
Amend Application/Job Order, and 0.50 hours to complete Herder
Variance Request.
\190\ Calculations: HR specialist: $50.94 hourly wage x 3.63
hours = $184.91 (rounded), In-house lawyer: $114.17 hourly wage x
3.63 hours = $414.44 (rounded); Out-sourced lawyer = $196.85 hourly
wage x 3.63 hours = $714.57 (rounded).
\191\ Calculation: $115.12 enrollment + $50.94 annual training +
$6.57 query submission = $172.63.
\192\ DHS recognizes that the opportunity cost of time would be
higher than this absolute minimum because employers would have more
than one employee and E-Verify participants are required to query
every employee.
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By removing the requirement for a petitioner to participate in E-
Verify in order to benefit from portability, this provision may result
in some increased demand for H-2A petitioners to apply to port eligible
H-2A workers. DHS expects H-2A petitioners that already hire porting H-
2A beneficiaries to continue to use E-Verify in the future. However,
DHS is unable to estimate the number of future employers that would opt
not to enroll in E-Verify in the future as a result of this rule or how
many would need to obtain TLCs. DHS does not expect any reduction in
protection to the legal workforce as a result of this rule as some H-2A
petitioners would continue to use E-Verify. Any new petitioners for
porting H-2A workers would still be required to obtain TLCs through
DOL, these H-2A employers would be subject to the site visit
requirements and comply with the terms and conditions of H-2 employment
set forth in this NPRM and under other related regulations, and the
porting worker would have already been approved to legally work in the
United States as an H-2A worker.
Temporary portability for H-2B workers has been provided as
recently as the FY 2023 H-2B Supplemental Cap temporary final rule
(TFR) and was available under previous supplemental caps dating back to
FY 2021.\193\ However, data show that there is a longer history of
extensions of stay due to changes of employer for H-2B petitions filed
even in years when portability was not authorized.\194\ Since it is
difficult to isolate the impacts of inclusion of temporary portability
provisions in the FY 2021 through FY 2023 H-2B Supplemental Cap TFRs
from the extensions of stay due to changes of employer that would be
expected in the absence of this proposed provision, we reproduce the FY
2023 H-2B Supplemental Cap TFR's analysis here.\195\ Additionally,
USCIS is unclear how many additional H-2B visas Congress would allocate
in future fiscal
[[Page 65087]]
years beyond the 66,000 statutory cap for H-2B nonimmigrants.
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\193\ See Exercise of Time-Limited Authority To Increase the
Numerical Limitation for FY 2023 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 76816 (Dec. 15, 2022).
\194\ Id.
\195\ On May 14, 2020, a final rule published to temporarily
amend its regulations to allow H-2B workers to immediately work for
any new H-2B employer to mitigate the impact on nonagricultural
services or labor essential to the U.S. food supply chain due to
COVID-19. Since the analysis is based on annual fiscal years, data
from the months between May and September 2020 are not able to be
separated out to determine those early impacts on portability. See
Temporary Changes to Requirements Affecting H-2B Nonimmigrants Due
to the COVID-19 National Emergency, 85 FR 28843 (May 14, 2020).
---------------------------------------------------------------------------
The population affected by this provision are nonimmigrants in H-2B
status who are present in the United States and the employers with
valid TLCs seeking to hire H-2B workers. In the FY 2023 H-2B
Supplemental Cap TFR, USCIS uses the population of 66,000 H-2B workers
authorized by statute and the 64,716 additional H-2B workers authorized
by the rule as a proxy for the H-2B population that could be currently
present in the United States.\196\ USCIS uses the number of Form I-129
petitions filed for extension of stay due to change of employer
relative to the number of petitions filed for new employment from FY
2011 though FY 2020. This includes the 10 years prior to the
implementation of the first portability provision in an H-2B
Supplemental Cap TFR. Using these data, we estimate the baseline rate
and compare it to the average rate from FY 2011 through FY 2020 (Table
7). We find that the average rate of extension of stay due to change of
employer compared to new employment from FY 2011 through FY 2020 is
approximately 10.5 percent.
---------------------------------------------------------------------------
\196\ This number may overestimate H-2B workers who have already
completed employment and departed and may underestimate H-2B workers
not reflected in the current cap and long-term H-2B workers. In FY
2021, USCIS approved 735 requests for change of status to H-2B, and
Customs and Border Protection (CBP) processed 1,341 crossings of
visa-exempt H-2B workers. See USCIS, Characteristics of H-2B
Nonagricultural Temporary Workers FY2021 Report to Congress, https://www.uscis.gov/sites/default/files/document/reports/H-2B-FY21-Characteristics-Report.pdf (Mar. 10, 2022). DHS assumes some of
these workers, along with current workers with a valid H-2B visa
under the cap, could be eligible to port under this new provision.
DHS does not know the exact number of H-2B workers who would be
eligible to port at this time but uses the cap and supplemental cap
allocations as a possible proxy for this population.
Table 7--Numbers of Form I-129 H-2B Petitions Filed for Extension of
Stay Due to Change of Employer and Form I-129 H-2B Petitions Filed for
New Employment, FY 2011 through FY 2020
------------------------------------------------------------------------
Rate of
Form I- extension
129 H-2B to stay
petitions Form I-129 due to
filed for H-2B change of
Fiscal year extension petitions employer
of stay filed for filings
due to new relative
change of employment to new
employer employment
filings
------------------------------------------------------------------------
2011................................. 360 3,887 0.093
2012................................. 293 3,688 0.079
2013................................. 264 4,120 0.064
2014................................. 314 4,666 0.067
2015................................. 415 4,596 0.090
2016................................. 427 5,750 0.074
2017................................. 556 5,298 0.105
2018................................. 744 5,136 0.145
2019................................. 812 6,251 0.130
2020................................. 804 3,997 0.201
FY 2011 through FY 2020 Total........ 4,990 47,389 0.105
------------------------------------------------------------------------
Source: USCIS, Office of Performance and Quality--SAS PME C3
Consolidated, as of Oct. 10, 2022, TRK 10638
In FY 2021, the first year an H-2B Supplemental Cap TFR included a
portability provision, there were 1,113 petitions filed using Form I-
129 for extension of stay due to change of employer compared to 7,207
petitions filed for new employment.\197\ In FY 2022, there were 1,791
petitions filed using Form I-129 for extension of stay due to change of
employer compared to 9,233 petitions filed for new employment.\198\
Over the period when a portability provision was in place for H-2B
workers, the rate of petitions filed using Form I-129 for extension of
stay due to change of employer relative to new employment was 17.7
percent.\199\ This is above the 10.5 percent rate of filings expected
when there was no portability provision in place. We estimate that a
rate of about 17.7 percent should be expected in periods with a
portability provision in a H-2B Supplemental Cap TFR that provides an
additional allocation of visas. Using 4,398 as our estimate for the
number of petitions filed using Form I-129 for H-2B new employment in
FY 2023, we estimate that 462 petitions for extension of stay due to
change of employer would be filed in absence of this rulemaking's
portability provision. 200 201 With the rule's portability
provision in effect, we estimate that 778 petitions would be filed
using Form I-129 for extension of stay due to change of employer.\202\
As a result of this provision, we estimate 316 additional petitions
using Forms I-129 would be filed.\203\ As shown in Table 12
[[Page 65088]]
45.84 percent of petitions using Form I-129 will be filed by an in-
house or outsourced lawyer. Therefore, we expect that a lawyer would
file 145 of these petitions and an HR specialist would file the
remaining 171.\204\ Similarly, we estimated that about 93.57 percent of
petitions using Form I-129 for H-2B beneficiaries are filed with Form
I-907 to request premium processing. As a result of this portability
provision, we expect that an additional 296 requests using Form I-907
would be filed.\205\ We expect lawyers to file 136 requests using Forms
I-907 and HR specialists to file the remaining 160 requests.\206\
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\197\ USCIS, Office of Performance and Quality, SAS PME C3
Consolidated, data queried October 2022, TRK 10638.
\198\ USCIS, Office of Performance and Quality, SAS PME C3
Consolidated, data queried October 2022, TRK 10638.
\199\ Calculation, Step 1: 1,113 Form I-129 petitions for
extension of stay due to change of employer FY 2021 + 1,791 Form I-
129 petitions for extension of stay due to change of employer in FY
2022 = 2,904 Form I-129 petitions filed extension of stay due to
change of employer in portability provision years.
Calculation, Step 2: 7,207 Form I-129 petitions filed for new
employment in FY 2021 + 9,233 Form I-129 petitions filed for new
employment in FY 2022 = 16,440 Form I-129 petitions filed for new
employment in portability provision years.
Calculation, Step 3: 2,904 extensions of stay due to change of
employment petitions/16,440 new employment petitions = 17.7 percent
rate of extension of stay due to change of employment to new
employment.
\200\ Calculation for expected petitions: 66,000 beneficiaries
allowed by the annual statutory cap/15.01 historical average of
beneficiaries per petition = 4,398 Forms I-129 filed due to the
rule's portability provision (rounded).
\201\ Calculation: 4,398 Form I-129 H-2B petitions filed for new
employment x 10.5 percent = 462 estimated number of Form I-129 H-2B
petitions filed for extension of stay due to change of employer, no
portability provision.
\202\ Calculation: 4,398 Form I-129 H-2B petitions filed for new
employment x 17.7 percent = 778 estimated number of Form I-129 H-2B
petitions filed for extension of stay due to change of employer,
with a portability provision.
\203\ Calculation: 778 estimated number of Form I-129 H-2B
petitions filed for extension of stay due to change of employer,
with a portability provision--462 estimated number of Form I-129 H-
2B petitions filed for extension of stay due to change of employer,
no portability provision = 316 Form I-129 H-2B petition increase as
a result of portability provision.
\204\ Calculation, Lawyers: 316 additional Form I-129 due to
portability provision x 45.84 percent of Form I-129 for H-2B
positions filed by an attorney or accredited representative = 145
(rounded) estimated Form I-129 filed by a lawyer.
Calculation, HR specialist: 316 additional Form I-129 due to
portability provision--145 estimated Form I-129 filed by a lawyer =
171 estimated Form I-129 filed by an HR specialist.
\205\ Calculation: 316 Form I-129 H-2B petitions x 93.57 percent
premium processing filing rate = 296 (rounded) Forms I-907.
\206\ Calculation, Lawyers: 296 Forms I-907 x 45.84 percent
filed by an attorney or accredited representative = 136 Forms I-907
filed by a lawyer.
Calculation, HR specialists: 296 Forms I-907--136 Forms I-907
filed by lawyer = 160 Forms I-907 filed by an HR specialist.
---------------------------------------------------------------------------
Petitioners seeking to hire H-2B nonimmigrants who are currently
present in the United States in lawful H-2B status would need to file
Form I-129 and pay the associated fees.\207\ Additionally, if a
petitioner is represented by a lawyer, the lawyer must file Form G-28;
if premium processing is desired, a petitioner must file Form I-907 and
pay the associated fee. We expect these actions to be performed by an
HR specialist, in-house lawyer, or an outsourced lawyer. Moreover, as
previously stated, we expect that about 45.84 percent of petitions
using Form I-129 would be filed by an in-house or outsourced lawyer.
Therefore, we expect that 145 petitions would be filed by a lawyer and
the remaining 171 petitions would be filed by an HR specialist. The
opportunity cost of time to file a Form I-129 H-2B petition would be
$236.36 for an HR specialist; and the opportunity cost of time to file
a Form I-129 H-2B petition with accompanying Form G-28 would be $624.51
for an in-house lawyer and $1,076.77 for an outsourced lawyer.\208\
Therefore, we estimate the cost of the additional petitions filed using
Form I-129 from the portability provision for HR specialists would be
$40,418.\209\ The estimated cost of the additional petitions filed
using Form I-129 accompanied by Forms G-28 from the portability
provision for lawyers would be $90,554 if filed by in-house lawyers and
$156,132 if filed by outsourced lawyers.\210\
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\207\ The current filing fee for Form I-129 is $460 and
employers filing H-2B petitions must submit an additional fee of
$150. See Instructions for Petition for Nonimmigrant Worker
Department of Homeland Security, USCIS Form I-129, OMB Control
Number 1615-0009 (expires November 30, 2025), https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf.
\208\ Calculation, HR Specialist: $50.94 hourly opportunity cost
of time x 4.64-hour time burden for form I-129 = $236.36 estimated
cost to file a Form I-129 H-2B petition.
Calculation, In-house lawyer: $114.17 hourly opportunity cost of
time x 5.47-hour time burden for form I-129 and Form G-28 = $624.51
estimated cost to file a Form I-129 H-2B petition.
Calculation, outsourced lawyer: $196.85 hourly opportunity cost
of time x 5.47-hour time burden for form I-129 and Form G-28 =
$1,076.77 (rounded) estimated cost to file a Form I-129 H-2B
petition.
\209\ Calculation, HR specialist: $236.36 estimated cost to file
a Form I-129 H-2B petition x 171 petitions = $40,418 (rounded).
\210\ Calculation, In-house Lawyer: $624.51 estimated cost to
file a Form I-129 H-2B petition and accompanying Form G-28 x 145
petitions = $90,554 (rounded).
Calculation, Outsourced Lawyer: $1,076.77 estimated cost to file
a Form I-129 H-2B petition and accompanying Form G-28 x 145
petitions = $156,132 (rounded).
---------------------------------------------------------------------------
We previously stated that about 93.57 percent of Form I-129 H-2B
petitions are filed with Form I-907 for premium processing. As a result
of this provision, we expect that an additional 296 requests for
premium processing using Form I-907 will be filed.\211\ We expect 136
of those requests would be filed by a lawyer and the remaining 160
would be filed by an HR specialist.\212\ The estimated opportunity cost
of time to file Form I-907 would be about $29.55 for an HR specialist;
and the estimated opportunity cost of time for an in-house lawyer to
file Form I-907 would be approximately $66.22 and for an outsourced
lawyer it would be about $114.17.\213\ The estimated annual cost of
filing additional requests for premium processing using Form I-907 if
HR specialists file would be approximately $4,728.\214\ The estimated
annual cost of filing additional requests for premium processing using
Form I-907 would be about $9,006 if filed by in-house lawyers, and
approximately $15,527 if filed by outsourced lawyers.\215\
---------------------------------------------------------------------------
\211\ Calculation: 316 estimated additional Form I-129 H-2B
petitions x 93.57 percent accompanied by Form I-907 = 296 (rounded)
additional Form I-907.
\212\ Calculation, Lawyers: 296 additional Form I-907 x 45.84
percent = 136 (rounded) Form I-907 filed by a lawyer. Calculation,
HR specialists: 296 Form I-907--136 Form I-907 filed by a lawyer =
160 Form I-907 filed by an HR specialist.
\213\ Calculation, HR Specialist: $50.94 hourly opportunity cost
of time x 0.58-hour time burden to file Form I-907 = $29.55 cost to
file Form I-907.
Calculation, In-house lawyer: $114.17 hourly opportunity cost of
time x 0.58-hour time burden to file Form I-907 = $66.22 cost to
file Form I-907.
Calculation, outsourced lawyer: $196.85 hourly opportunity cost
of time x 0.58-hour time burden to file Form I-907 = $114.17 cost to
file Form I-907.
\214\ Calculation, HR specialist: $29.55 to file a Form I-907 x
160 forms = $4,728 (rounded).
\215\ Calculation, In-house lawyer: $66.22 to file a Form I-907
x 136 forms = $9,006 (rounded).
Calculation for an outsourced lawyer: $114.17 to file a Form I-
907 x 136 forms = $15,527 (rounded).
---------------------------------------------------------------------------
The estimated annual cost of this provision ranges from $144,706 to
$216,805 depending on what share of the forms are filed by in-house or
outsourced lawyers.\216\
---------------------------------------------------------------------------
\216\ Calculation for HR specialists and in-house lawyers:
$40,418 for HR specialists to file Form I-129 H-2B petitions +
$90,554 for in-house lawyers to file Form I-129 and the accompanying
Form G-28 + $4,728 for HR specialists to file Form I-907 + $9,006
for in-house lawyers to file Form I-907 = $144,706.
Calculation for HR specialists and outsourced lawyers: $40,418
for HR specialists to file Form I-129 H-2B petitions + $156,132 for
outsourced lawyers to file Form I-129 and the accompanying Form G-28
+ $4,728 for HR specialists to file Form I-907 + $15,527 for
outsourced lawyers to file Form I-907 = $216,805.
---------------------------------------------------------------------------
The transfer payments from filing petitions using Form I-129 for an
H-2B beneficiary include the filing costs to submit the form. The
current filing fee for Form I-129 is $460 plus an additional fee of
$150 for employers petitioning for H-2B beneficiaries.\217\ These
filing fees are not a cost to society or an expenditure of new
resources but a transfer from the petitioner to USCIS in exchange for
agency services. USCIS anticipates that petitioners would file an
additional 316 petitions using Form I-129 due to the portability
provision in the proposed rule. The annual value of transfers from
petitioners to the Government for filing Form I-129 due to the proposed
rule would be approximately $192,760.\218\
---------------------------------------------------------------------------
\217\ See Instructions for Petition for Nonimmigrant Worker
Department of Homeland Security, USCIS Form I-129, OMB Control
Number 1615-0009 (expires Nov. 30, 2025), https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf; see also INA sec.
214(c)(13), 8 U.S.C. 1184(c)(13).
\218\ Calculation: 316 petitions x $610 per petition = $192,760.
---------------------------------------------------------------------------
Additionally, employers may use Form I-907 to request premium
processing of Form I-129 petitions for H-2B visas. The current filing
fee for Form I-907 to request premium processing for H-2B petitions is
$1,500.\219\ Based on historical trends,
[[Page 65089]]
DHS expects that 93.57 percent of petitioners would file a Form I-907
with Form I-129. Applying that rate to the expected number of filings
of Form I-129 petitions would result in 296 requests for premium
processing using Form I-907 filed due to the rule.\220\ We estimate
that the annual transfers from petitioners to the Federal Government
related to filing Form I-907 due to the rule would be approximately
$444,000.\221\ The undiscounted annual transfers from petitioners to
the Federal Government due to the rule are $636,760.222 223
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\219\ See Instructions for Request for Premium Processing
Service, USCIS Form I-907, OMB Control Number 1615-0048 (expires
Nov. 30, 2022), https://www.uscis.gov/sites/default/files/document/forms/i-907instr.pdf.
\220\ Calculation: 316 petitions x 93.57 Form I-907 rate = 296
Forms I-907 (rounded).
\221\ Calculation: $1,500 per petition x 296 Forms I-907 =
$444,000.
\222\ Calculation: $192,760 + $444,000 = $636,760.
\223\ It is possible that the combination of porting workers and
workers availing themselves of increased grace periods may increase
tax transfers from workers to the Federal Government. DHS cannot
estimate the magnitude of these transfers, however, because of a
lack of detailed data regarding the workers utilizing these
provisions separately or jointly.
---------------------------------------------------------------------------
Portability is a benefit to employers that cannot find U.S.
workers, and as an additional flexibility for H-2 employees seeking to
begin work with a new H-2 employer. This rule would allow petitioners
to immediately employ certain H-2 workers who are present in the United
States in H-2 status without waiting for approval of the H-2 petition.
DHS welcomes public comments on the annual time burden associated
with users remaining in good standing with E-Verify as well as the
impacts of permanent portability on H-2 petitioners and beneficiaries.
c. Improving H-2 Program Efficiencies and Reducing Barriers to Legal
Migration
This section is divided into two subheadings where each provision
and its expected impacts are discussed. DHS's proposals include the
following: (1) removing the eligible countries lists; and (2)
eliminating the calculation of interrupted stays and reducing the
period of absence that would reset an individual's 3-year maximum
period of stay.
(1) Eligible Countries Lists
USCIS is proposing to remove the lists that designate certain
countries as eligible to participate in the H-2 programs. Currently,
nationals of countries that are not eligible to participate in the H-2
programs may still be named as beneficiaries on an H-2A or H-2B
petition. However, petitioners must: (1) name each beneficiary who is
not from an eligible country; and (2) provide evidence to show that it
is in the U.S. interest for the individual to be the beneficiary of
such a petition. USCIS also recommends that H-2A and H-2B petitions for
workers from countries not listed on the respective eligible countries
lists be filed separately.\224\
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\224\ See Instructions for Petition for Nonimmigrant Worker
Department of Homeland Security, USCIS Form I-129, OMB Control
Number 1615-0009 (expires November 30, 2025), https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf.
---------------------------------------------------------------------------
To understand the population of beneficiaries who come from
countries not on the eligible countries lists and the petitioners who
apply for these workers, we considered historical data from FY 2013
through FY 2022 on the beneficiary country of birth for both H-2A and
H-2B receipts by fiscal year.\225\ The data are extremely limited, with
an average of 77 percent and 75 percent of H-2A and H-2B receipts,
respectively, missing the beneficiary country of birth. Data are
primarily limited because of the high percentage of H-2 petitions filed
requesting unnamed beneficiaries. Additionally, this data is input
manually, with only certain fields entered. Country of birth is not a
mandatory field and tends to be blank.
---------------------------------------------------------------------------
\225\ Country of citizenship data is available for about 20
percent of the H-2A category but not for the H-2B category. For
consistency and because there is slightly more data available, we
use country of birth data in this analysis.
---------------------------------------------------------------------------
On the eligible countries lists published November 10, 2021, FY
2022 \226\ data did not identify any H-2A beneficiaries with a country
of birth from 55 of 85 eligible countries.\227\ Additionally, 30
petitions with 141 beneficiaries from 12 countries were not on the
eligible countries list. Of the 86 eligible countries for H-2B
beneficiaries, the FY 2022 data did not identify any beneficiaries with
a country of birth from 43 of these countries. It also showed that
there was only a total of 12 petitions with 79 beneficiaries from five
countries not on the eligible countries list.
---------------------------------------------------------------------------
\226\ The most recent publication of the eligible countries
lists for H-2A and H-2B visa programs was published on November 10,
2022. See Identification of Foreign Countries Whose Nationals Are
Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker
Programs, 87 FR 67930 (Nov. 10, 2022). For the purpose of this
analysis, we rely on the eligible countries lists from 2021 because
we have data from FY 2022 that would include any impacts of that
prior lists on the behavior of petitioners and their beneficiaries.
\227\ See Identification of Foreign Countries Whose Nationals
Are Eligible to Participate in the H-2A and H-2B Nonimmigrant Worker
Programs, 87 FR 67930 (Nov. 10, 2022).
---------------------------------------------------------------------------
From these limited data, we can see that USCIS does receive
petitions for beneficiaries outside of those on the eligible countries
lists. However, it is unclear if the lists may act as a deterrent with
the additional burden on petitioners. The data provide some insight
into the potential concentration of H-2 visas in FY 2022, where the
greatest number of petitions had beneficiaries listed with Mexico as
their country of birth (1,628 petitions and 30,075 H-2A beneficiaries,
and 1,523 petitions and 21,136 H-2B beneficiaries, respectively).
However, because only about 12 percent of H-2A beneficiaries and 29
percent of H-2B beneficiaries in FY 2022 had a country of birth listed,
it is difficult to draw any strong conclusions.
As stated earlier, USCIS recommends that H-2A and H-2B petitions
for workers from countries not listed on the respective eligible
countries lists be filed separately. USCIS does not have data on the
number of H-2 employers that file petitions separately for workers from
countries not listed on the respective eligible countries lists from
those on the eligible countries lists. For those that file separately,
though, this proposed provision would result in saved fees.\228\ The
current base fee to file Form I-129 is $460. Employers filing H-2B
petitions must also submit an additional fee of $150. Therefore,
employers currently filing separate petitions could save $460 per H-2A
petition and $610 ($460 + $150) per H-2B petition.\229\
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\228\ See USCIS, Calculating Interrupted Stays for the H-2
Classifications, What do I need to know if I choose to file separate
petitions for H-2 workers? (May 6, 2020), https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2a-agricultural-workers/calculating-interrupted-stays-for-the-h-2-classifications.
\229\ See Instructions for Petition for Nonimmigrant Worker
Department of Homeland Security, USCIS Form I-129, OMB Control
Number 1615-0009 (expires Nov. 30, 2025), https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf.
---------------------------------------------------------------------------
To produce the eligible countries lists each year, several DHS
components and agencies provide data, collaboration, and research. For
DHS, this includes months of work to gather recommendations and
information from offices across U.S. Immigration and Customs
Enforcement (ICE), CBP, and USCIS, compile statistics, and cooperate
closely with DOS. Research in these efforts focuses on topics including
overstays, fraud, human trafficking concerns, and more. However, some
of the work involved in creating the eligible countries lists is
duplicative, time-consuming, and limited in its response to ever-
changing global dynamics. For example, DOS already performs regular
national interest assessments and would not approve H-
[[Page 65090]]
2 work visas that it deems problematic regardless of the country's
standing on the eligible countries lists.
Benefits of this proposed provision include freeing up resources
currently dedicated to publishing the eligible countries lists every
year, which could be used more effectively on other pressing projects
across DHS and DOS. This change would also reduce the burden on
petitioners that seek to hire H-2 workers from countries not designated
as eligible since they would no longer need to meet additional criteria
showing that it is in the U.S. interest to employ such workers. This
provision would also increase access to workers potentially available
to businesses that utilize the H-2 programs.
DHS welcomes public comments on impacts on petitioners,
beneficiaries, and the Federal Government resulting from the proposal
to eliminate the eligible countries lists.
(2) Eliminate Interrupted Stays and Reduce Period of Absence
DHS is proposing to eliminate the ``interrupted stay'' calculation
and reduce the period of absence from the United States from 3 months
to 60 days to reset an individual's 3-year period of stay.\230\ Under
current regulations, an individual's total period of stay in H-2A or H-
2B nonimmigrant status may not exceed 3 years. Currently, an individual
who has spent 3 years in H-2A or H-2B status may not seek extension,
change status, or be readmitted to the United States in H-2 status
unless the individual has been outside of the United States for an
uninterrupted period of 3 months. In the proposed rule, the total
period of stay of 3 years would remain unchanged, but the period of
absence that would reset an individual's 3-year period of stay would be
reduced. For ease of understanding, the term ``clock'' will be used in
this section to describe the 3-year maximum period of stay for an H-2
worker and the term ``absence'' will generally be used in place of
``interruption.'' As critical context, the estimated population
impacted by this proposed change is constrained because the DOL-
certified seasonal or temporary nature of H-2A and H-2B labor needs
means that, currently, most beneficiaries' clocks are effectively reset
each year upon completion of the first and only petitioner's labor need
and subsequent departure from the country. Instructions on DOL's
Foreign Application Gateway (FLAG) state that petitioners' certified
seasonal or temporary labor needs must not exceed 9 months for H-2B
labor certifications and should not normally exceed 10 months for H-2A
certifications, so there would be no direct impacts nor costs to an
employer from the proposed simplifications to the existing definition
of absence for the purpose of resetting the 3-year clock.\231\
---------------------------------------------------------------------------
\230\ USCIS officers use the term ``interrupted stay'' when
adjudicating extension of stay requests in the H-2A and H-2B
nonimmigrant classifications. It refers to certain periods of time
an H-2 worker spends outside the United States during an authorized
period of stay that do not count toward the noncitizen's maximum 3-
year limit in the classification. See USCIS, Calculating Interrupted
Stays for the H-2 Classifications (May 6, 2020), https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2a-agricultural-workers/calculating-interrupted-stays-for-the-h-2-classifications.
\231\ See DOL, H-2A Temporary Labor Certification for
Agriculture Workers (``The need for the work must be seasonal or
temporary in nature [. . .] normally lasting 10 months or less'' for
H-2A Temporary Certification For Agriculture Workers), https://flag.dol.gov/programs/H-2A (last visited May 31, 2023); DOL, H-2B,
Temporary Labor Certification for Non-Agriculture Workers (``The
employer's job opportunities must be. . . [t]emporary (9 months or
less, except one-time occurrences)''), https://flag.dol.gov/programs/H-2B (last visited May 31, 2023). DOL regulations at 20 CFR
655.6(b) limit an H-2B period of need to 9 months, except where the
employer's need is based on a one-time occurrence, but due to an
appropriations rider that is currently in place, DOL uses the
definition of temporary need as provided in 8 CFR
214.2(h)(6)(ii)(B), which does not list a 9 month limit.
Consolidated Appropriations Act 2023, Public Law 117-328, Division
H, Title I, Sec. 111.
---------------------------------------------------------------------------
Additionally, under this proposed simplification, USCIS would no
longer recognize certain absences as an ``interrupted stay'' for
purposes of pausing the calculation of the 3-year limit of stay. Thus,
if a worker leaves the United States for less than 60 days, the absence
would not pause the 3-year maximum period of stay clock nor extend the
timeframe in which a worker could work in H-2 status upon their return
from abroad. This change to the calculation of interrupted stay is not
expected to impact the two current subset populations of H-2A and H-2B
workers whose accumulated stay is 18 months or less whose clock
currently pauses when they leave the United States for at least 45 days
but less than 3 months, and those whose accumulated stay is greater
than 18 months but less than 3 years. Under this proposed rule, the 3-
year clock would no longer pause, as it does now, when an individual
leaves the United States for the period of time specified in rows 2 and
3 of Table 8; rather, the 3-year clock would now reset following an
uninterrupted absence of 60 days, irrespective of the individual's
period of accumulated stay in the United States.
Table 8--H-2 Clock and Absences from the United States During a 3-Year Maximum Period of Stay.
----------------------------------------------------------------------------------------------------------------
Proposal and impact to H-2 workers and employers
Current clock reset -------------------------------------------------------
Time worked in H-2 status or interruption * Proposed absence
counted as reset Cost Benefit
----------------------------------------------------------------------------------------------------------------
3 years........................... Reset at 3 months... Reset at 60 days.... N/A 30 fewer days
required to reset
clock.
18 months or less................. Interruption pause Reset at 60 days.... N/A N/A.
accrues at 45 days,
but less than 3
months.
More than 18 months, but less than Interruption pause Reset at 60 days.... N/A N/A.
3 years. accrues at 2
months, but less
than 3 months.
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
* An interruption is when the 3-year clock is paused, meaning the period of time outside the United Stated, the
absence, isn't counted towards 3-year maximum period of stay.
USCIS next considers a potential subpopulation of workers who,
under the baseline, might port from one petitioning employer with a
labor certification to a subsequent petitioner with a temporary labor
certification three or more times in an effort to maximize earnings
over the 3-year (1,095 days) limit. USCIS does not have
[[Page 65091]]
data on the size of the H-2A or H-2B worker populations that currently
leave the United States while in H-2 status or for how long. Without
information on the number of workers who experience absences from the
United States, it is not possible to predict additional impacts to the
behavior of H-2 visa holders and the petitioners with DOL-certified
seasonal or temporary labor needs, however, the observed rates of
porting shown in Tables 6 and 7 suggest beneficiaries porting more than
3 times without leaving the country is small to non-existent at
present. DOL requires H-2A and H-2B employers to pay workers at least
the highest of the prevailing wage rate obtained from the ETA or the
applicable Federal, State, or local minimum wage.\232\ Additionally, we
know that the Fair Labor Standards Act covers requirements for all
workers in the United States with respect to overtime and a job offer
must always be consistent with Federal, State, and local laws.\233\
---------------------------------------------------------------------------
\232\ See WHD, Fact Sheet #26: Section H-2A of the Immigration
and Nationality Act (INA) (Feb. 2010), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs26.pdf, and Fact Sheet #78C: Wage
Requirements under the H-2B Program (Apr. 2015), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs78c.pdf.
\233\ See WHD, Wages and the Fair Labor Standards Act, https://www.dol.gov/agencies/whd/flsa (last visited Dec. 15, 2022).
---------------------------------------------------------------------------
To estimate the potential impacts from a small number of H-2
workers choosing to provide 30 additional days of labor every 3 years,
we first consider wages. The Federal minimum wage is currently
$7.25.\234\ While using the Federal minimum wage may be appropriate in
some instances, DHS recognizes that many States have higher minimum
wage rates than the Federal minimum. Therefore, DHS believes that a
more accurate and timely estimate of wages is available via data from
the Department of Labor. More specifically, DHS uses the most recent
wage data from DOL's Bureau of Labor Statistics' (BLS) National
Occupational Employment and Wage Estimates. DHS believes that the
unweighted, 10th percentile wage estimate for all occupations of $13.14
per hour is a reasonable lower bound for the population in
question.\235\ DHS accounts for worker benefits by calculating a
benefits-to-wage multiplier using the most recent BLS report detailing
the average employer costs for employee compensation for all civilian
workers in major occupational groups and industries. DHS estimates the
benefits-to-wage multiplier is 1.45 and, therefore, is able to estimate
the full opportunity cost per applicant, including employee wages and
salaries and the full cost of benefits such as paid leave, insurance,
and retirement, etc.\236\ Although the Federal minimum wage could be
considered a lower bound income for the population of interest, DHS
calculates the total rate of compensation for the 10th percentile
hourly wage is $19.05, which is 81.3 percent higher than the Federal
minimum wage.\237\
---------------------------------------------------------------------------
\234\ See 29 U.S.C. 206, ``Minimum wage,'' https://www.gpo.gov/fdsys/pkg/USCODE-2011-title29/html/USCODE-2011-title29-chap8-sec206.htm (accessed Dec. 15, 2022). See also WHD, Minimum Wage,
https://www.dol.gov/general/topic/wages/minimumwage (the minimum
wage in effect as of Dec. 15, 2022).
\235\ See Occupational Employment and Wage Estimates United
States. May 2022. BLS, Occupational Employment Statistics program,
All Occupations, available at https://www.bls.gov/oes/2022/may/oes_nat.htm#00-0000 (last visited July 28, 2023).
\236\ The benefits-to-wage multiplier is calculated as follows:
(Total Employee Compensation per hour)/(Wages and Salaries per hour)
= $42.48/$29.32 = 1.450 = 1.45 (rounded). See BLS, Economic News
Release, Employer Cost for Employee Compensation--December 2022,
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 (Mar. 17, 2023), https://www.bls.gov/news.release/archives/ecec_03172023.pdf.
\237\ Calculations (1) for lower bound compensation: $13.14
lower bound wage * 1.45 total compensation factor = $19.05 (rounded
to 2 decimal places); (2) (($19.05 wage-$10.51 wage)/$10.51)) wage =
0.813, which rounded and multiplied by 100 = 81.3 percent.
---------------------------------------------------------------------------
DHS does not rule out the possibility that some portion of H-2A and
H-2B employees might earn more than the 10th percentile wage, but
without empirical information, DHS believes that including a range with
the lower bound relying on the 10th percentile wage with benefits of
$19.05 is justifiable for both H-2A and H-2B workers. For H-2A workers,
DHS uses an upper bound wage specific to agricultural workers of
$17.04.\238\ DHS calculates the average total rate of compensation for
agricultural workers as $24.71 per hour, where the mean hourly wage is
$17.04 per hour worked and average benefits are $7.67 per hour.\239\
For H-2B workers, DHS relies on the average wage rate for all
occupations of $29.76 as an upper bound in consideration of the
variance in average wages across professions and States.\240\
Therefore, DHS calculates the average total rate of compensation for
all occupations as $43.15 per hour, where the mean hourly wage is
$29.76 per hour worked and average benefits are $13.39 per hour.\241\
---------------------------------------------------------------------------
\238\ The average wage for agricultural workers is found at BLS,
Occupational Employment and Wages--May 2022 (Apr. 25, 2023), Table
1. National employment and wage data from the Occupational
Employment and Wage Statistics survey by occupation, May 2022,
https://www.bls.gov/news.release/archives/ocwage_04252023.pdf.
\239\ Calculation of the weighted mean hourly wage for
agricultural workers: $17.04 per hour x 1.45 benefits-to-wage
multiplier = $24.71 (rounded).
\240\ The average wage for all occupations is found at BLS,
Occupational Employment and Wages--May 2022 (Apr. 25, 2023), Table
1. National employment and wage data from the Occupational
Employment and Wage Statistics survey by occupation, May 2022,
https://www.bls.gov/news.release/archives/ocwage_04252023.pdf.
\241\ The calculation of the weighted mean hourly wage for
applicants: $29.76 per hour x 1.45 benefits-to-wage multiplier =
$43.15 (rounded) per hour.
---------------------------------------------------------------------------
Since DHS calculated absences from the United States centered on
calendar days, and wage estimates are specifically linked to hours, we
apply the scalar developed as follows. Calendar days are transformed
into workdays to account for the actuality that typically, 5 out of 7,
or 71.4 percent, of the calendar week is allotted to work-time, and
that a workday is typically 8 hours.\242\ Thus, in limited instances,
individuals resetting their clock at or immediately after the 1,095th
day of the 3-year limitation may be afforded an opportunity to work 30
additional calendar days, or approximately 21 days of H-2. DHS notes
that some H-2 workers may work more days or hours per week in some
instances. Additionally, if overtime hours are worked, DHS has no basis
for which to measure the extent to which this may occur among these
populations. Based on the 10th percentile wage (lower bound), each
calendar day generates about $108.81 in relevant earnings for potential
H-2 workers. It follows that for the upper wage bounds that each
calendar day generates about $141.14 per H-2A worker and about $246.47
per H-2B worker in relevant earnings.\243\ Over 30 potential workdays,
this equates to a lower bound of $3,264 in additional earnings with
upper bounds of $4,234 for H-2A workers and $7,394 for H-2B workers
(see Table 9).\244\
---------------------------------------------------------------------------
\242\ USCIS did review DOL disclosure data on basic number of
hours and found the average number of hours per week to be around 40
hours. For this reason, we assume a typical 40-hour workweek for
both H-2A and H-2B workers for this analysis.
\243\ Calculations: E10th percentile wage (lower bound): 0.714 x
8 hours per day x $19.05 wage = $108.81 (rounded). H-2A average wage
for agricultural workers (upper bound): 0.714 x 8 hours per day x
$24.71 wage = $141.14 (rounded). H-2B average wage for all
occupations (upper bound): 0.714 x 8 hours per day x $43.15 wage =
$246.47 rounded.
\244\ Calculations: t10th percentile wage (lower bound): $108.81
x 30 days = $3,264 (rounded). H-2A average wage for agricultural
workers (upper bound): $141.14 x 30 days = $4,234 (rounded). H-2B
average wage for all occupations (upper bound): $246.47 x 30 days =
$7,394 (rounded).
[[Page 65092]]
Table 9--Earnings Estimates for H-2 Workers with 30 Additional Days.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Daily Additional
Hourly wage Calendar Work hours additional wages for Additional
day scalar wages 30 days taxes
A B C D = A x B x C E = D x 30 F = E x 15.3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lower Bound....................................................... $19.05 0.714 8 $108.81 $3,264 0 *
H-2A Upper Bound.................................................. 24.71 ........... ........... 141.14 4,234 0 *
H-2B Upper Bound.................................................. 43.15 ........... ........... 246.47 7,394 1,131
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
* H-2A workers and employers are not subject to U.S. social security and Medicare taxes.
In instances where an employer with a DOL-certified temporary labor
need cannot transfer the 21 days of work onto other H-2 workers, DHS
acknowledges that this additional work may result in additional tax
revenue to the government. It is difficult to quantify income tax
transfers because individual tax situations vary widely,\245\ but DHS
estimates the potential payments to other employment tax programs,
namely Medicare and Social Security, which have a combined tax rate of
7.65 percent (6.2 percent and 1.45 percent, respectively).\246\ While
H-2A wages are exempt from these taxes, H-2B wages are not.\247\ With
both the employee and employer paying their respective portion of
Medicare and Social Security taxes, the total estimated tax transfer
for Medicare and Social Security is 15.3 percent.\248\ DHS recognizes
this quantified estimate is not representative of all potential tax
losses by Federal, State, and local governments and we make no claims
this quantified estimate includes all tax losses. We continue to
acknowledge the potential for additional Federal, State, and local
government tax losses in the scenario where a company cannot transfer
additional work onto current employees and cannot hire replacement
labor for the position the H-2 worker is absent. As seen in Table 9,
tax transfers could range from $0 for H-2A workers and up to $1,131 for
H-2B workers over a 30-day period.
---------------------------------------------------------------------------
\245\ See Quentin Fottrell, More than 44 percent of Americans
pay no federal income tax, MarketWatch (Aug. 28, 2019), https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16.
\246\ The various employment taxes are discussed in more detail
at https://www.irs.gov/businesses/small-businesses-self-employed/understanding-employment-taxes. See Internal Revenue Service
Publication 15, Circular E, Employer's Tax Guide (Dec. 16, 2021),
https://www.irs.gov/pub/irs-pdf/p15.pdf, for specific information on
employment tax rates.
\247\ See Federal Income Tax and FICA Withholding for Foreign
Agricultural Workers with an H-2A Visa, https://www.irs.gov/pub/irs-pdf/p5144.pdf (last accessed July 31, 2023).
\248\ Calculation: (6.2 percent Social Security + 1.45 percent
Medicare) x 2 employee and employer losses = 15.3 percent total
estimated tax transfer payment to government.
---------------------------------------------------------------------------
One benefit of this proposed provision is that it would make it
easier for DHS, petitioners and beneficiaries to calculate when a
beneficiary reaches their 3-year limit on stay, irrespective of how
long the individual has been in the United States in H-2 status. As
described earlier, to accurately demonstrate when an individual's limit
on H-2 status will be reached, employers and workers currently need to
monitor and document the accumulated time in H-2 status and calculate
the total time in H-2 status across multiple time periods following
interruptive absences. USCIS adjudicators must also make these same
determinations in adjudicating H-2 petitions with named workers to
assess whether a beneficiary is eligible for the requested period of
stay. No longer needing to monitor absences from the United States of
less than 60 days simplifies calculations for employers, workers, and
adjudicators. Additionally, DHS expects that USCIS adjudicators may
issue fewer RFEs related to the 3-year maximum period of stay to
workers with absences, which would reduce the burden on employers,
workers, and adjudicators and save time in processing petitions. As
shown in Table 10, RFEs related to the 3-year maximum period of stay
have increased since FY 2020 for H-2A workers and have generally
remained stable at between 200 to 300 each year since FY 2020 for H-2B
workers.
Table 10--RFEs Relating to 3-Year Maximum Stay for H-2 Workers
------------------------------------------------------------------------
Fiscal year H-2A H-2B
------------------------------------------------------------------------
2018.................................................. 63 134
2019.................................................. 53 649
2020.................................................. 22 207
2021.................................................. 272 292
2022.................................................. 436 208
Total................................................. 846 1,490
5-Year Average........................................ 169 298
------------------------------------------------------------------------
Source: USCIS Office of Policy and Strategy--C3, ELIS USCIS Data System
as of Oct. 8, 2022.
While it is not clear how many RFEs are directly related to the
calculation of interruptions while in H-2 status, as opposed to RFEs
for those who may be reaching the maximum 3-year period of stay
generally, DHS anticipates that eliminating the calculation for
interrupted stays would at least render some RFEs unnecessary.\249\
This would in turn reduce the burden on employers, workers, and
adjudicators associated with calculating interruptions and through
subsequent RFEs and petitions could be processed more expeditiously.
---------------------------------------------------------------------------
\249\ On July 25, 2022, USCIS extended its COVID-19-related
flexibilities for responding to RFEs through October 23, 2022. This
provides recipients an additional 60 calendar days after the due
date on an RFE to provide a response. Ultimately, while this
flexibility may prove helpful to petitioners it also adds up to an
additional 2 months of time to the adjudication process. See USCIS,
USCIS Extends COVID-19-related Flexibilities (July 25, 2022),
https://www.uscis.gov/newsroom/alerts/uscis-extends-covid-19-related-flexibilities.
---------------------------------------------------------------------------
Collectively, Tables 6, 7, and 10 indicate very few H-2 workers
approach the 3-year limitation despite existing potential to port from
certified temporary labor need for 3 years before exiting the country
for 90 days. Nevertheless, USCIS has considered as an upper bound,
possible additional earnings and related labor market impacts should
workers already approaching the 3-year limit respond to this proposed
change by working 30 additional days at the end of their 1,095 days or
at the start of their subsequent 3-year period. Recall that if the
worker intended to return to their home country before 3-years, as most
do upon completing their temporary labor for the initial petitioner,
this change has no
[[Page 65093]]
impact to the employer nor to wages earned by the worker. Multiplying
the 169 H-2A subpopulation in Table 10 by $4,234 in additional wages
for 30 days in Table 9 bounds potential additional annual earnings at
$715,546. Additionally, the 298 H-2B population in Table 10 multiplied
by $7,394 in Table 9 bounds additional annual H-2B earnings at
$2,203,412 with estimated tax transfers of $337,122. For H-2A and H-2B
workers, the total impact from this change is $2,918,958 in additional
earnings and $337,122 in tax transfers ($168,561 from workers +
$168,561 from employers).
d. Other Impacts of the Proposed Rule
(1) Form I-129 Updates
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 is 2.34 hours.\250\ There is an additional $150 fee for
employers filing H-2B petitions.\251\ There is also an estimated time
burden of 2 hours for petitioners to complete the H classification
supplement for Form I-129. The total time burden of 4.34 hours for Form
I-129 also includes the time for reviewing instructions, to file and
retain documents, and submit the request. In this proposed rule, the
fees for Form I-129 and the H classification supplement and time burden
for Form I-129 would remain unchanged, only the estimated burden to
complete the H classification supplement would change. This proposed
rule would increase the public reporting burden for the H
Classification Supplement by 0.3 hours to a total 2.3 hours. This added
time would result in a total time burden of 4.64 hours for Form I-129
H-2 petitioners. The petition 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). DHS was unable to obtain data on the number of Form I-129
H-2A and H-2B petitions 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.\252\ Further, DHS presents cost estimates for lawyers filing on
behalf of petitioners based on whether all Form I-129 petitions are
filed by in-house lawyers or by outsourced lawyers.\253\ 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.
---------------------------------------------------------------------------
\250\ The public reporting burden for this form is 2.34 hours
for Form I-129 and an additional 2 hours for H Classification
Supplement. See Instructions for Petition for Nonimmigrant Worker
Department of Homeland Security, USCIS Form I-129, OMB Control
Number 1615-0009 (expires Nov. 30, 2025), https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf.
\251\ Id.
\252\ 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-2
worker. However, DHS understands that not all entities have human
resources departments or occupations and, therefore, recognizes
equivalent occupations may prepare these petitions.
\253\ For the purposes of this analysis, DHS adopts the terms
``in-house'' and ``outsourced'' lawyers as they were used in ICE,
Final Small Entity Impact Analysis: Safe-Harbor Procedures for
Employers Who Receive a No-Match Letter, at G-4 (posted Nov. 5,
2008), http://www.regulations.gov/document/ICEB-2006-0004-0922. The
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 $35.13 as the base wage rate.\254\ 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 $78.74 as the base wage rate.\255\
DHS multiplied the average hourly U.S. wage rate for HR specialists and
for in-house lawyers by the benefits-to-wage multiplier of 1.45 to
estimate the full cost of employee wages. The total per hour wage is
$50.94 for an HR specialist and $114.17 for an in-house lawyer.\256\ 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 $196.85 for an outsourced lawyer.257 258 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.\259\ DHS
estimates the time burden to complete and submit Form G-28 for a lawyer
is 50 minutes (0.83 hours, rounded).\260\
---------------------------------------------------------------------------
\254\ See BLS, Occupational Employment and Wages, May 2022,
Human Resources Specialist (13-1071), https://www.bls.gov/oes/2022/may/oes131071.htm.
\255\ See BLS, Occupational Employment and Wages, May 2022,
Lawyers (23-1011), https://www.bls.gov/oes/2022/may/oes231011.htm.
\256\ Calculation for the total wage of an in-house lawyer:
$78.74 x 1.45 = $114.17 (rounded).
\257\ Calculation: Average hourly wage rate of lawyers x
Benefits-to-wage multiplier for outsourced lawyer = $78.74 x 2.5 =
$196.85 (rounded).
\258\ The 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 for that rule remains sound for using 2.5 as a multiplier
for outsourced labor wages in this rule, see https://www.regulations.gov/document/ICEB-2006-0004-0922, at page G-4 (Sept.
1, 2015).
\259\ USCIS, Filing Your Form G-28 (Aug. 10, 2020), https://www.uscis.gov/forms/filing-your-form-g-28.
\260\ See USCIS, Form G-28 Instructions for Notice of Entry of
Appearance as Attorney or Accredited Representative, OMB Control
Number 1615-0105 (expires May 31, 2021), https://www.uscis.gov/sites/default/files/document/forms/g-28instr.pdf.
---------------------------------------------------------------------------
Since only the time burden for the H Classification Supplement
would change, this analysis only considers the additional opportunity
cost of time for 0.3 hours as a direct cost of this rule. Therefore,
the added opportunity cost of time for an HR specialist to complete and
file Form I-129 for an H-2 petition is $15.28, for an in-house lawyer
to complete and file is $34.25, and for an outsourced lawyer to
complete and file is $59.06.\261\
---------------------------------------------------------------------------
\261\ HR specialist calculation: $50.94 x (0.3 hours) = $15.28.
In-house lawyer calculation: $114.17 x (0.3 hours) = $34.25.
Outsourced lawyer calculation: $196.85 x (0.3) = 59.06
(rounded).
---------------------------------------------------------------------------
DHS expects this rule would impose costs on the population of
employers that currently petition for H-2 workers; an estimated 36,758
petitioners.\262\ We expect filing would be performed by a HR
specialist, in-house lawyer, or outsourced lawyer, and this would be
done at the same rate as petitioners who file a Form G-28;
---------------------------------------------------------------------------
\262\ Calculation: 24,370 H-2A + 12,388 H-2B = 36,758 H-2
petitioners in FY 2022 as estimated as the population who would be
most likely be affected by this rule.
---------------------------------------------------------------------------
To properly account for the costs associated with filing across the
entire H-2 population, DHS must calculate a weighted average rate for
G-28 filing across the separate H-2A and H-2B populations. Table 11 and
Table 12 show the recent G-28 filing trends for each separate H-2
population.
[[Page 65094]]
Table 11--Form I-129 H-2A Petition Receipts That Were Accompanied by a Form G-28, FY 2017-2021
----------------------------------------------------------------------------------------------------------------
Number of form Percent of
I-129 H-2A Total number form I-129 H-
Fiscal year petitions of form I-129 2A petitions
accompanied by H-2A petitions accompanied by
a form G-28 received a form G-28
----------------------------------------------------------------------------------------------------------------
2017............................................................ 1,648 11,602 14.20
2018............................................................ 2,166 13,444 16.11
2019............................................................ 2,617 15,509 16.87
2020............................................................ 2,854 17,012 16.78
2021............................................................ 3,322 20,323 16.35
2017-2021 Total................................................. 12,607 77,890 16.19
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy & Strategy--C3, ELIS USCIS Data System.
Table 12--Form I-129 H-2B Petition Receipts That Were Accompanied by a Form G-28, FY 2018-2022
----------------------------------------------------------------------------------------------------------------
Number of form Percent of
I-129 H-2B Total number form I-129 H-
Fiscal year petitions of form I-129 2B petitions
accompanied by H-2B petitions accompanied by
a form G-28 received a form G-28
----------------------------------------------------------------------------------------------------------------
2018............................................................ 2,625 6,148 42.70%
2019............................................................ 3,335 7,461 44.70
2020............................................................ 2,434 5,422 44.89
2021............................................................ 4,230 9,160 46.18
2022............................................................ 5,978 12,388 48.26
2018--2022 Total................................................ 18,602 40,579 45.84
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, Data queried 10/2022, TRK 10638.
Using the data from Table 11 and Table 12, DHS calculates that the
weighted average rate of G-28 filing across the entire H-2 population
is 26.34%.\263\
---------------------------------------------------------------------------
\263\ Calculation: Step 1. 12,607 H-2A petitions with G-28 +
18,602 H-2B petitions with G-28 = 31,209 H-2 petitions with G-28;
Step 2. 77,890 total H-2A petitions + 40,579 total H-2B petitions =
118,469 total H-2 petitions; Step 3. 31,209 H-2 petitions with G-28/
118,469 total H-2 petitions = .2634 (rounded).
---------------------------------------------------------------------------
Therefore, we estimate that 9,682 lawyers would incur additional
filing costs and 27,076 HR specialists would incur additional filing
costs.\264\
---------------------------------------------------------------------------
\264\ Calculation for lawyers: 36,758 H-2 petitioners x 26.34
percent represents by a lawyer = 9,682 (rounded) represented by a
lawyer. Calculation for HR specialists: 36,758 H-2 petitioners--
9,682 represented by a lawyer = 27,076 represented by a HR
specialist.
---------------------------------------------------------------------------
The estimated total opportunity cost of time for 27,076 HR
specialists to file petitions under this proposed rule is approximately
$413,721.\265\ The estimated annual opportunity cost of time for 9,682
lawyers to file petitions under this proposed rule is approximately
$331,609 if they are all in-house lawyers and $571,819 if they are all
outsourced lawyers.\266\ The estimated annual opportunity costs of time
for petitioners or their representatives to file H-2 petitions under
this proposed rule ranges from $745,330 to $985,540.\267\
---------------------------------------------------------------------------
\265\ Calculation: $15.28 additional burden x 27,076 HR
specialists = $413,721.
\266\ Calculations: $34.25 additional burden x 9,682 in-house
lawyers = $331,609; $59.06 additional burden x 9,682 outsourced
lawyers = $571,819 (rounded).
\267\ Calculation: HR specialists $413,721 + in-house lawyers
$331,609 = $745,330; HR specialists $413,721 + outsourced lawyers
$571,819 = $985,540.
---------------------------------------------------------------------------
(2) Technical Definitional Updates
There is a technical update proposed in this rule for clarification
purposes to remove the phrase ``abscond'' and the definition of
``abscondment.'' DHS expects these proposed changes would have only
marginal impacts.
(3) Familiarization Costs
DHS expects this rule would impose one-time familiarization costs
associated with reading and understanding this rule on the population
of employers that currently petition for H-2 workers; an estimated
36,758 petitioners.\268\ We expect familiarization with the rule would
be performed by a HR specialist, in-house lawyer, or outsourced lawyer,
and this would be done at the same rate as petitioners who file a Form
G-28.An estimated 26.34 percent would be performed by lawyers and the
remaining 73.66 percent by an HR specialist.. Therefore, we estimate
that 9,682 lawyers would incur familiarization costs and 27,076 HR
specialists would incur familiarization costs.\269\
---------------------------------------------------------------------------
\268\ Calculation: 24,370 H-2A + 12,388 H-2B = 36,758 H-2
petitioners in FY 2022 as estimated as the population who would be
most likely to read this rule.
\269\ Calculation for lawyers: 36,758 H-2 petitioners x 44.43
percent represents by a lawyer = 9,682 (rounded) represented by a
lawyer. Calculation for HR specialists: 36,758 H-2 petitioners x
9,682 represented by a lawyer = 27,076 represented by a HR
specialist.
---------------------------------------------------------------------------
To estimate the cost of rule familiarization, we estimate the time
it would take to read and understand the rule by assuming a reading
speed of 238 words per minute.\270\ This rule has approximately 56,000
words.\271\ Using a reading speed of 238 words per minute, DHS
estimates it would take approximately 3.92 hours to read and become
familiar with this rule.\272\ The estimated hourly total compensation
for a HR specialist, in-house lawyer, and outsourced lawyer are $50.94,
$114.17, and $196.85 respectively. The estimated opportunity cost of
time for each of these filers to familiarize themselves with the rule
are $199.68, $447.55, and
[[Page 65095]]
$771.65 respectively.\273\ The estimated total opportunity cost of time
for 27,076 HR specialists to familiarize themselves with this rule is
approximately $5,406,536. Additionally, the estimated total opportunity
cost of time for 9,682 lawyers to familiarize themselves with this rule
is approximately $4,333,179 if they are all in-house lawyers or
$7,471,115 if they are all outsourced lawyers. Thus, the estimated
total opportunity costs of time for petitioners or their
representatives to familiarize themselves with this rule ranges from
$9,739,715 to $12,877,651, incurred the first year of the period of
analysis.\274\
---------------------------------------------------------------------------
\270\ Marc Brysbaert (April 12, 2019), How many words do we read
per minute? A review and meta-analysis of reading rate, https://doi.org/10.1016/j.jml.2019.104047 (accessed Dec. 15, 2022). We use
the average speed for silent reading of English nonfiction by
adults.
\271\ Please note that the actual word count of the proposed
rule may differ from the estimated length presented here.
\272\ Calculation: 56,000 words/238 words per minute = 235
(rounded) minutes. 235 minutes/60 minutes per hour = 3.92 (rounded)
hours.
\273\ Calculation: Total respective hourly compensation HR
$50.94 x 3.5 hours = $199.68, In-house Lawyer $114.17 x 3.92 =
$447.55, or Outsourced Lawyer $196.85 x 3.92 hours = $771.65.
\274\ Calculation, lower bound: $5,406,536 familiarization
costs, HR Representative + $4,333,179 familiarization costs, in-
house lawyer = $9,739,715. Calculation, upper bound: $5,406,536
familiarization costs, HR Representative + $7,471,115
familiarization costs, outsourced lawyer = $12,877,651.
---------------------------------------------------------------------------
e. Total Costs of the Rule
In the previous sections we presented the estimates of the impacts
of the proposed rule. The quantifiable costs of this rule that would
impact petitioners consistently and directly are the costs associated
with an increased opportunity cost of time to complete Form I-129 H
Classification Supplement and opportunity costs of time related to the
rule's portability provision. Annual costs due to the rule range from
$890,036 to $1,202,345 depending on the filer.\275\ Over the 10-year
period of analysis, DHS estimates the total costs of the proposed rule
would be approximately $18,640,075 to $24,901,101 (undiscounted).\276\
DHS estimates annualized costs of this proposed rule range from
$1,998,572 to $2,668,028 at a 3-percent discount rate and $2,186,033 to
$2,915,885 at a 7-percent discount rate. The midpoint of these ranges,
$2,333,300 at a 3-percent discount rate and $2,550,959 at a 7-percent
discount rate is presented as the primary estimate.
---------------------------------------------------------------------------
\275\ Calculation, lower bound: $745,330 annual costs from
marginal OCT to file Forms I-129 + $144,706 in costs due to the
portability provision = $890,036 annual costs in years 1 through 10.
Calculation, upper bound: $985,540 annual costs from marginal OCT to
file Forms I-129 + $216,805 in costs due to the portability
provision = $1,202,345 annual costs in years 1 through 10.
\276\ Calculation, lower bound: familiarization costs of
$9,739,715 (year 1) + $890,036 annual costs due to the rule (year 1-
10) = $18,640,075 over 10-year period of analysis. Calculation,
upper bound: familiarization costs of $12,877,651 (year 1) +
$1,202,345 annual costs due to the rule (year 1-10) = $24,901,101
over 10-year period of analysis.
---------------------------------------------------------------------------
In addition, the rule results in transfers from consumers of goods
and services to a limited number of H-2A and H-2B workers that may
choose to supply additional labor. The total annualized transfer
amounts to $2,918,958 in additional earnings at the 3-percent and 7-
percent discount rate and related tax transfers of $337,122 ($168,561
from these workers + $168,561 from employers).
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), as amended by the
Small Business Regulatory Enforcement Fairness Act of 1996, requires
Federal agencies to consider the potential impact of regulations on
small businesses, small governmental jurisdictions, and small
organizations during the development of their rules. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. An ``individual'' is not defined by the RFA as a small entity
and costs to an individual from a rule are not considered for RFA
purposes. In addition, the courts have held that the RFA requires an
agency to perform an initial regulatory flexibility analysis of small
entity impacts only when a rule directly regulates small entities.
Consequently, any indirect impacts from a rule to a small entity are
not considered to be costs for RFA purposes.
This proposed rule may have direct impacts to those entities that
petition on behalf of H-2 workers. Generally, petitions are filed by a
sponsoring employer who would incur some additional costs from the Form
I-129 H Classification Supplement burden change and familiarization of
the rule. Petitioning employers may also incur costs they would not
have otherwise incurred if they opt to transport and house H-2A workers
earlier as well as opportunity costs of time if they are selected to
participate in compliance reviews or inspections that are necessary for
the approval of a petition. Therefore, DHS examines the direct impact
of this proposed rule on small entities in the analysis that follows.
1. Initial Regulatory Flexibility Analysis (IRFA)
Small entities primarily impacted by this proposed rule are those
that would incur additional direct costs to complete an H-2 petition.
DHS conducted an analysis using a statistically valid sample of H-2
petitions to determine the number of small entities directly impacted
by this proposed rule. These costs are related to the additional
opportunity cost of time for a selected small entity to complete the
updated Form I-129 H Classification Supplement proposed in this rule.
DHS welcomes any public comment on the methodology and conclusions on
the number of small entities estimated and the impacts to those small
entities.
a. A Description of the Reasons Why the Action by the Agency is Being
Considered
The purpose of this rulemaking is to modernize and improve the
regulations relating to the H-2A temporary agricultural worker program
and the H-2B temporary nonagricultural worker program.
b. A Succinct Statement of The Objectives of, and Legal Basis for, the
Proposed Rule
DHS objectives and legal authority for this proposed rule are
discussed in the preamble of this proposed rulemaking.
c. A Description of and, Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Changes Would Apply
DHS conducted the analysis using a statistically valid sample of H-
2 petitions to determine the maximum potential number of small entities
directly impacted by this proposed rule. DHS used a subscription-based
online database of U.S. entities, Hoovers Online, as well as two other
open-access, free databases of public and private entities, Manta and
Cortera, to determine the North American Industry Classification System
(NAICS) code, revenue, and employee count for each entity.\277\ In
order to determine the size of a small entity, DHS first classified
each entity by its NAICS code, and then used Small Business
Administration (SBA) guidelines to note the requisite revenue or
employee count threshold for each entity.\278\ Some entities were
classified as small based on their annual revenue and some by number of
employees.
---------------------------------------------------------------------------
\277\ The Hoovers website can be found at http://www.hoovers.com/; the Manta website can be found at http://www.manta.com/; and the Cortera website can be found at https://www.cortera.com/. NAICS 2017 classifications were used for the
purpose of this analysis as provided by these databases.
\278\ The Small Business Administration (SBA) has developed size
standards to carry out the purposes of the Small Business Act and
those size standards can be found in 13 CFR, section 121.201. At the
time this analysis was conducted, NAICS 2017 classifications were in
effect. SBA size standards effective August 19, 2019, https://www.sba.gov/sites/default/files/2019-08/SBA%20Table%20of%20Size%20Standards_Effective%20Aug%2019%2C%202019.pdf.
---------------------------------------------------------------------------
[[Page 65096]]
Using FY 2018 to FY 2022 data on H-2A petitions, DHS collected
internal data for each filing organization.\279\ Each entity may make
multiple filings. For instance, there were 90,658 H-2A petitions filed
over the 5 fiscal years, but only 13,244 unique entities that filed H-
2A petitions. DHS devised a methodology to conduct the small entity
analysis based on a representative, random sample of the potentially
impacted population. To achieve a 95 percent confidence level and a 5
percent confidence interval on a population of 13,244 entities, DHS
determined that a minimum sample size of 374 entities was necessary.
However, DHS drew a sample size 10 percent greater than the minimum
statistically valid sample for a sample size of 411 in order to
increase the likelihood that our matches would meet or exceed the
minimum required sample.\280\ Of the 411 entities sampled, 387
instances resulted in entities defined as small (see Table 13). Of the
387 small entities, 344 entities were classified as small by revenue or
number of employees. The remaining 63 entities were classified as small
because information was not found (either no petitioner name was found,
or not enough information was found in the databases). A total of 24
entities were classified as not small. Therefore, of the 13,244
entities that filed at least one Form I-129 in FYs 2018 through 2022,
DHS estimates that 96 percent or 15,636 entities are considered small
based on SBA size standards.\281\
---------------------------------------------------------------------------
\279\ USCIS Office of Policy and Strategy, C3, ELIS (Oct. 19,
2022).
\280\ Calculation: 368 + (368 x 10 percent) = 405.
\281\ Calculation: 13,244 entities x 96 percent = 12,714 small
entities (rounded).
Table 13--Summary and Results of Small Entity Analysis of H-2A Petitions
------------------------------------------------------------------------
Proportion
Parameter Quantity of sample
(percent)
------------------------------------------------------------------------
Population--H-2A petitions.................... 90,658 ...........
Population--Unique H-2A Entities.............. 13,244 ...........
Minimum Required Sample....................... 374 ...........
Selected Sample............................... 411 100
Entities Classified as ``Not Small'':
by revenue................................ 23 6
by number of employees.................... 1 0
Entities Classified as ``Small'':
by revenue................................ 281 69
by number of employees.................... 43 11
because not enough information found in 63 16
databases................................
Total Number of Small Entities................ 387 \a\ 96
------------------------------------------------------------------------
Source: USCIS analysis.
\a\ Calculation: 69 percent (Entities classified as small by revenue) +
11 percent (Entities classified as small by number of employees) + 16
percent (Entities classified as small because no information found in
database) = 96 percent (total number of small entities, rounded).
As previously stated, DHS classified each entity by its NAICS code
to determine the size of each entity. Table 14 shows a list of the top
10 NAICS industries that submit an H-2A petition.
Table 14--Top 10 NAICS Industries Submitting Form I-129 for H-2A Petitions, Small Entity Analysis Results
----------------------------------------------------------------------------------------------------------------
Size
Size standards
NAICS standards in number
Rank code NAICS U.S. industry title Frequency in of Percent
millions of employees
dollars \a\ \a\
----------------------------------------------------------------------------------------------------------------
1 111998 All Other Miscellaneous Crop 79 $1.0 ........... 19.2
Farming.
2 N/A Unclassified Establishments.. 25 8.0 ........... 6.1
3 561499 All Other Business Support 15 16.5 ........... 3.6
Services.
4 111331 Apple Orchards............... 12 1.0 ........... 2.9
5 112111 Beef Cattle Ranching and 12 1.0 ........... 2.9
Farming.
6 112990 All Other Animal Production.. 9 1.0 ........... 2.2
7 111421 Nursery and Tree Production.. 8 1.0 ........... 1.9
8 424910 Farm Supplies Merchant 8 ........... 200 1.9
Wholesalers.
9 112112 Cattle Feedlots.............. 7 8.0 ........... 1.7
10 561990 All Other Support Services... 7 12.0 ........... 1.7
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
The Small Business Administration (SBA) has developed size standards to carry out the purposes of the Small
Business Act and those size standards can be found in 13 CFR, section 121.201. At the time this analysis was
conducted, NAICS 2017 classifications were in effect.
DHS used the methodology developed for H-2A petitions for H-2B
petitions as well. Using FY 2018 to FY 2022 data on H-2B petitions, DHS
collected internal data for each filing organization.\282\ Each entity
may make multiple filings. For instance, there were 40,579 H-2B
petitions filed over these 5 fiscal years by 8,506 unique entities. DHS
devised a methodology to conduct the small entity analysis based on a
representative, random sample of the potentially impacted population.
To achieve a 95 percent confidence level and a 5 percent confidence
interval on a population of
[[Page 65097]]
8,506 entities, DHS determined that a minimum sample size of 368
entities was necessary. DHS created a sample size 10 percent greater
than the minimum statistically valid sample for a sample size of 368 in
order to increase the likelihood that our matches would meet or exceed
the minimum required sample.\283\ Of the 405 entities sampled, 384
instances resulted in entities defined as small (see Table 15). Of the
384 small entities, 307 entities were classified as small by revenue or
number of employees. The remaining 46 entities were classified as small
because information was not found (either no petitioner name was found,
or not enough information was found in the databases). A total of 21
entities were classified as not small. Therefore, of the 8,506 entities
that filed at least one Form I-129 in FY 2018 through FY 2022, DHS
estimates that 95 percent or 8,175 entities are considered small based
on SBA size standards.\284\
---------------------------------------------------------------------------
\282\ USCIS Office of Policy and Strategy, C3, ELIS (Oct. 19,
2022).
\283\ Calculation: 368 + (368 x 10 percent) = 405.
\284\ Calculation: 8,506 entities x 95 percent = 8,175 small
entities (rounded).
Table 15--Summary and Results of Small Entity Analysis of H-2B Petitions
------------------------------------------------------------------------
Proportion
Parameter Quantity of sample
(percent)
------------------------------------------------------------------------
Population--H-2B petitions.................... 40,579 ...........
Population--Unique H-2B Entities.............. 8,506 ...........
Minimum Required Sample....................... 368 ...........
Selected Sample............................... 405 100
Entities Classified as ``Not Small'':
by revenue................................ 20 5
by number of employees.................... 1 0
Entities Classified as ``Small'':
by revenue................................ 307 76
by number of employees.................... 31 8
because not enough information found in 46 11
databases................................
Total Number of Small Entities................ 384 \a\ 95
------------------------------------------------------------------------
Source: USCIS analysis.
\a\ Calculation: 76 percent (Entities classified as small by revenue) +
8 percent (Entities classified as small by number of employees) + 11
percent (Entities classified as small because no information found in
database) = 95 percent (total number of small entities, rounded).
As previously stated, DHS classified each entity by its NAICS code
to determine each business' size. Table 16 shows a list of the top 10
NAICS industries that submit an H-2B petition.
Table 16--Top 10 NAICS Industries Submitting Form I-129 for H-2B Petitions, Small Entity Analysis Results
----------------------------------------------------------------------------------------------------------------
Size Size
standards standards
NAICS in in number
Rank code NAICS U.S. industry title Frequency millions of of Percent
dollars employees
\a\ \a\
----------------------------------------------------------------------------------------------------------------
1 561730 Landscaping Services......... 56 8.0 ........... 13.8
2 541320 Landscape Architectural 55 8.0 ........... 13.6
Services.
3 721110 Hotels (except Casino Hotels) 22 35.0 ........... 5.4
and Motels.
4 N/A Unclassified Establishments.. 19 8.0 ........... 4.7
5 722511 Full-Service Restaurants..... 12 8.0 ........... 3.0
6 713910 Golf Courses and Country 12 16.5 ........... 3.0
Clubs.
7 236115 New Single-Family Housing 10 39.5 ........... 2.5
Construction (except For-
Sale Builders).
8 424460 Fish and Seafood Merchant 9 ........... 100 2.2
Wholesalers.
9 238160 Roofing Contractors.......... 6 16.5 ........... 1.5
10 561990 All Other Support Services... 6 12.0 ........... 1.5
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
\a\ The Small Business Administration (SBA) has developed size standards to carry out the purposes of the Small
Business Act and those size standards can be found in 13 CFR section 121.201. At the time this analysis was
conducted, NAICS 2017 classifications were in effect.
Because the random sample is drawn from the H-2 petitioner
population at-large, it is not practical to estimate small entities'
representation within this noncooperative subpopulation. Thus, the IRFA
assumes 12 percent of small entities, like larger entities, may have
underestimated the reasonable, existing compliance burden of site
visits and thus incur some additional compliance costs.
Petitioner-employers are not expected to be impacted by proposed
changes to the interrupted stay calculation. USCIS cannot determine how
beneficiaries' behavior would change as a result of this simplification
to the USCIS calculation. If indirectly impacted industries have
evidence to the contrary, this IRFA affords the public the opportunity
to comment upon this rationale before DHS would begin work on the FRFA.
DHS welcomes public comments on this issue. Similarly, DHS does not
expect flexibilities that allow beneficiaries to arrive in-country
earlier would impose any compliance costs
[[Page 65098]]
upon industries that choose to petition for or employ H-2 workers.
Table 3 shows that an average 13,722 H-2A petitions are received
annually. Table 13 shows that 96 percent of entities that petition for
H-2A workers are considered small based on SBA size standards.
Therefore, DHS reasonably assumes that of the 13,722 H-2A petitions
received, 13,500 \285\ petitions are submitted by small entities.
---------------------------------------------------------------------------
\285\ Calculation: 13,722 petitions received annually x 96
percent = 13,173 submitted by small entities (rounded).
---------------------------------------------------------------------------
Table 4 shows that USCIS receives an average of 6,866 H-2B
petitions annually. Table 15 shows that 95 percent of entities that
petition for H-2B workers are considered small based on SBA size
standards. Therefore, DHS reasonably assumes that of the 6,866 H-2B
petitions received, 6,523 \286\ petitions are submitted by small
entities.
---------------------------------------------------------------------------
\286\ Calculation: 6,866 annually selected petitions x 95
percent = 6,523 submitted by small entities (rounded).
---------------------------------------------------------------------------
d. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule, Including an Estimate of
the Classes of Small Entities That Will Be Subject to the Requirement
and the Type of Professional Skills
This proposed rule does not impose any new or additional direct
``reporting'' or ``recordkeeping'' requirements on filers of H-2
petitions. The proposed rule does not require any new professional
skills for reporting. As discussed, to the extent that existing
statutorily and regulatorily authorized site visits described in the
current Form I-129 instructions result in neither a finding of
compliance nor noncompliance (described throughout this rule as
noncooperation), the proposal to revoke or deny petitions may result in
unquantified additional compliance burdens to those petitioners that
underestimate the reasonable burden of compliance with unannounced site
visits. Under the proposed rule, a petitioner that was selected for a
site visit and would not have cooperated under the baseline would face
an (up to) 1.7-hour marginal time burden (on average) in order to
comply with the provisions of the rule. Also, the provisions of this
proposed rule regarding prohibited fees and labor law violations (see
proposed 8 CFR 214.2(h)(5)(xi)(A) through (C), 8 CFR 214.2(h)(6)(i)(B)
through (D) regarding prohibited fees. See proposed 8 CFR
214.2(h)(10)(iii) regarding labor law violations) would subject
petitioners, including small entities, to future bars to petition
approval should they engage in activities that are prohibited by the
proposed rule.
Denial or revocation of petitions for noncooperation with existing
site visit and verification requirements is expected to impact 12
percent of petitioners who, despite agreeing to permit the statutorily
and regulatorily authorized site visits on their Form I-129 petition,
yielded inconclusive (``not defined'') site visit results. Petitioners
that do not cooperate with all site visit requirements may have
underestimated the reasonable compliance burden they assented to, and,
due to this proposed rule, would experience or expect to experience
additional compliance burden associated with unchanged site visits and
verification activities. DHS notes that employers who do not cooperate
would face denial or revocation of their petition(s), which could
result in costs to those businesses such as potential lost revenue or
potential lost profits due to not having access to workers.
Furthermore, the proposed rule causes direct costs to accrue to
affected petitioners due to opportunity costs of time from both
marginal time burden increases (for H Classification Supplement to Form
I-129) and increased filing volumes (additional Forms I-129 filed due
to the rule's portability provision).
The increase in cost per petition to file the H classification
supplement for Form I-129 on behalf of an H-2 worker is the additional
opportunity cost of time of 0.3 hours. As previously stated in Section
d(1) of the regulatory impact analysis, this proposed rule will add
$15.28 \287\ in costs if an HR specialist files, $34.25 \288\ in costs
if an in-house lawyer files, and $59.06 \289\ in costs if an outsourced
lawyer files.
---------------------------------------------------------------------------
\287\ HR specialist calculation: $50.94 x (0.3 hours) = $15.28
(rounded).
\288\ In-house lawyer calculation: $114.17 x (0.3 hours) =
$34.25 (rounded).
\289\ Outsourced lawyer calculation: $196.85 x (0.3) = $59.06
(rounded).
---------------------------------------------------------------------------
In all instances, USCIS acknowledges that several aspects of the
rule impose costs on affected entities. USCIS has determined, however,
that these costs are outweighed by the benefits of increased program
integrity and compliance. USCIS has considered opportunities to achieve
the rule's stated objectives while minimizing costs to small entities
and welcomes public comment.
e. An Identification of All Relevant Federal Rules, to the Extent
Practical, That May Duplicate, Overlap, or Conflict With the Proposed
Rule.
DHS is unaware of any duplicative, overlapping, or conflicting
Federal rules, but invites any comment and information regarding any
such rules.
f. Description of Any Significant Alternatives to the Proposed Rule
That Accomplish the Stated Objectives of Applicable Statutes and That
Minimize Any Significant Economic Impact of the Proposed Rule on Small
Entities
DHS considered alternatives to elements of the proposed rule that
would minimize the impact on small entities while still accomplishing
the rule's objectives, such as improving the integrity and efficiency
of the H-2 program. First, USCIS acknowledges that, as discussed above,
the vast majority (approximately 96% of H-2A petitioners and 95% of H-
2B petitioners) of affected petitioners are small businesses.
Therefore, costs due to the rule would necessarily be borne by those
small businesses. Minimizing any costs due to the rule would therefore
compromise the ability of this regulation to effectively address the
goals stated in the preamble.
USCIS considered not proposing regulations that would revoke or
deny petitioners refusing to cooperate with current statutorily and
regulatorily authorized USCIS site visit and verification activities.
Roughly 12 percent of current H-2 site visits are inconclusive due to
noncooperation on the part of petitioners. USCIS's inability to reach a
conclusion concerning compliance or noncompliance concerning
petitioners that triggered a site visit is critical to oversight of the
program and integrity measures. The compliance burden for a small
entity is not the duration of the site visit and verification
activities, but rather the discrepancy between what USCIS and the
assenting petitioner estimated such reasonable compliance burdens to
be. USCIS will not consider permitting any small entity to willfully
violate the statutory and regulatory requirements explained in the
existing Form I-129 instructions, thus the IRFA alternative considered
was rejected for failing to meet the rule's objective of improving H-2
program integrity. Furthermore, 12 percent of USCIS resources dedicated
toward investigating noncompliance with H-2 program requirements are
sunk, resulting in no findings. USCIS investigative officers are an
important tool and a scarce resource. These investigatory resources
could be made
[[Page 65099]]
more effective if, at some additional compliance costs to would-be
noncooperative small entities, USCIS was able to reach a finding. For
this reason, USCIS rejected the IRFA alternative for failing to meet
the rule's objective of improving H-2 efficiency with respect to USCIS
investigative resources.
Finally, an additional objective of the rule is enhancement of
worker protections. The IRFA alternative of minimizing additional
compliance burdens to 12 percent of entities from site visits and
verification activities was rejected because it risks undermining the
impacts of other proposed provisions of this rule that are expected to
achieve greater protections for workers who report violations.
Furthermore, DHS considered not expanding porting to minimize those
impacts to small entities, but concluded that the availability of
porting is integral to accomplishing the objectives of enhancing
program integrity and increasing worker protections.
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 UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed rule, or final rule
that may result in a $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.\290\
---------------------------------------------------------------------------
\290\ 2 U.S.C. 1532(a).
---------------------------------------------------------------------------
In addition, the inflation-adjusted value of $100 million in 1995
is approximately $192 million in 2022 based on the Consumer Price Index
for All Urban Consumers (``CPI-U'').\291\
---------------------------------------------------------------------------
\291\ See U.S. Department of Labor, BLS, ``Historical Consumer
Price Index for All Urban Consumers (CPI-U): U.S. city average, all
items, by month,'' available at www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202212.pdf (last visited Jan. 19, 2023).
Calculation of inflation: (1) Calculate the average monthly CPI-U
for the reference year (1995) and the current year (2022); (2)
Subtract reference year CPI-U from current year CPI-U; (3) Divide
the difference of the reference year CPI-U and current year CPI-U by
the reference year CPI-U; (4) Multiply by 100 = [(Average monthly
CPI-U for 2022 - Average monthly CPI-U for 1995)/(Average monthly
CPI-U for 1995)] *100 = [(292.655 - 152.383)/152.383] *100 =
(140.272/152.383) *100 = 0.92052263 *100 = 92.05 percent = 92
percent (rounded). Calculation of inflation-adjusted value: $100
million in 1995 dollars *1.92 = $192 million in 2022 dollars.
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The term ``Federal mandate'' means a Federal intergovernmental
mandate or a Federal private sector mandate.\292\ The term ``Federal
intergovernmental mandate'' means, in relevant part, a provision that
would impose an enforceable duty upon State, local, or Tribal
governments (except as a condition of Federal assistance or a duty
arising from participation in a voluntary Federal program).\293\ The
term ``Federal private sector mandate'' means, in relevant part, a
provision that would impose an enforceable duty upon the private sector
(except as a condition of Federal assistance or a duty arising from
participation in a voluntary Federal program).\294\
---------------------------------------------------------------------------
\292\ See 2 U.S.C. 1502(1), 658(6).
\293\ 2 U.S.C. 658(5).
\294\ 2 U.S.C. 658(7).
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This proposed rule does not contain such a mandate, because it does
not impose any enforceable duty upon any other level of government or
private sector entity. Any downstream effects on such entities would
arise solely due to their voluntary choices, and the voluntary choices
of others, and would not be a consequence of an enforceable duty
imposed by this rule. Similarly, any costs or transfer effects on State
and local governments would not result from a Federal mandate as that
term is defined under UMRA.\295\ The requirements of title II of UMRA,
therefore, do not apply, and DHS has not prepared a statement under
UMRA. DHS has, however, analyzed many of the potential effects of this
action in the regulatory impact analysis above.
---------------------------------------------------------------------------
\295\ See 2 U.S.C. 1502(1), 658(6).
---------------------------------------------------------------------------
D. Executive Order 13132 (Federalism)
E.O. 13132 was issued to ensure the appropriate division of
policymaking authority between the States and the Federal Government
and to further the policies of the Unfunded Mandates Act. This proposed
rule would 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. DHS does not expect that this rule would impose substantial
direct compliance costs on State and local governments or preempt State
law. Therefore, in accordance with section 6 of Executive Order 13132,
it is determined that this proposed rule does not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement.
E. Executive Order 12988 (Civil Justice Reform)
This proposed rule meets the applicable standards set forth in
section 3(a) and (b)(2) of Executive Order 12988.
F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This proposed rule would not have Tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would not have a substantial direct effect on
one or more Indian Tribes, on the relationship between the Federal
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes.
G. National Environmental Policy Act
DHS and its components analyze proposed actions to determine
whether the National Environmental Policy Act \296\ (NEPA) applies to
them and, if so, what degree of analysis is required. DHS Directive
023-01, Rev. 01 (Directive) and Instruction Manual 023-01-001-01, Rev.
01 (Instruction Manual) \297\ establish the procedures DHS and its
components use to comply with NEPA and the Council on Environmental
Quality (CEQ) regulations for implementing NEPA.\298\ The CEQ
regulations allow Federal agencies to establish in their NEPA
implementing procedures categories of actions (``categorical
exclusions'') that experience has shown normally do not individually or
cumulatively have a significant effect on the human environment and,
therefore, do not require preparation of an Environmental Assessment
(EA) or Environmental Impact Statement (EIS).\299\ Instruction Manual,
Appendix A, Table 1 lists the DHS categorical exclusions.
---------------------------------------------------------------------------
\296\ See Public Law 91-190, 42 U.S.C. 4321 through 4347.
\297\ See DHS, Implementing the National Environmental Policy
Act, DHS Directive 023-01, Rev 01 (Oct. 31, 2014), and DHS
Instruction Manual Rev. 01(Nov. 6, 2014), https://www.dhs.gov/publication/directive-023-01-rev-01-and-instruction-manual-023-01-001-01-rev-01-and-catex.
\298\ See 40 CFR parts 1500 through 1508.
\299\ See 40 CFR 1501.4(a).
---------------------------------------------------------------------------
Under DHS NEPA implementing procedures, for an action to be
categorically excluded, it must 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
[[Page 65100]]
create the potential for a significant environmental effect.\300\
---------------------------------------------------------------------------
\300\ See Instruction Manual, section V.B.2 (a-c).
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This proposed rule includes a number of proposed regulatory
improvements. If finalized, it will improve program integrity while
increasing flexibility, efficiency, and improving access to the H-2
programs. Specifically, DHS proposes to clarify the fees prohibited
under H-2 regulations, strengthen the prohibition on collecting such
fees from H-2 workers, extend grace periods for H-2 workers to give
them the same amount of flexibility to come to the United States early
and prepare for employment, and to remain in the U.S. after their
employment ends to prepare for departure or seek new employment. The
proposed rule also includes a new, longer grace period for H-2 workers
whose employment terminated early. DHS also proposes to make
portability permanent in the H-2 programs, and to allow H-2 workers to
take steps toward becoming permanent residents of the United States
while still maintaining lawful nonimmigrant status. DHS further
proposes efficiencies in H-2 program administration by eliminating the
H-2 eligible countries lists and the H-2 ``interrupted stay''
provisions and reducing the period of absence needed to reset a
worker's 3-year maximum period of stay.
DHS is not aware of any significant impact on the environment, or
any change in the environmental effect from current H-2 program rules,
that will result from the proposed rule changes. DHS therefore finds
this proposed rule clearly fits within categorical exclusion A3
established in the Department's implementing procedures. Instruction
Manual, Appendix A.
The proposed amendments, if finalized, would be stand-alone rule
changes for USCIS H-2 programs and are not a part of any larger action.
In accordance with the Instruction Manual, DHS finds no extraordinary
circumstances associated with the proposed rules that may give rise to
significant environmental effects requiring further environmental
analysis and documentation. Therefore, this action is categorically
excluded and no further NEPA analysis is required.
H. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
agencies are required to submit to OMB, for review and approval, any
reporting requirements inherent in a rule. In preparation for the
submission, all agencies are required to submit the proposed new,
revised or discontinued information collections for public comment. The
paragraphs below summarize the changes proposed to OMB Control Number
1615-0009, Petition for Nonimmigrant Worker (Form I-129).
DHS and USCIS invite the general public and other Federal agencies
to comment on the impact to the proposed collection of information. In
accordance with the PRA, the information collection notice is published
in the Federal Register to obtain comments regarding the proposed edits
to the information collection instrument.
Comments are encouraged and will be accepted for 60 days from the
publication date of the proposed rule. All submissions received must
include the OMB Control Number 1615-0009 in the body of the letter and
the agency name. To avoid duplicate submissions, please use only one of
the methods under the ADDRESSES and I. Public Participation section of
this rule to submit comments. Comments on this information collection
should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology (e.g., permitting electronic
submission of responses).
Overview of information collection:
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Petition for Nonimmigrant Worker.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: I-129; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract:
Primary: Business or other for-profit. USCIS uses the data
collected on this form to determine eligibility for the requested
nonimmigrant petition and/or requests to extend or change nonimmigrant
status. An employer (or agent, where applicable) uses this form to
petition USCIS for a noncitizen to temporarily enter as a nonimmigrant
worker. An employer (or agent, where applicable) also uses this form to
request an extension of stay or change of status on behalf of the
nonimmigrant worker. The form serves the purpose of standardizing
requests for nonimmigrant workers and ensuring that basic information
required for assessing eligibility is provided by the petitioner while
requesting that beneficiaries be classified under certain nonimmigrant
employment categories. It also assists USCIS in compiling information
required by Congress annually to assess effectiveness and utilization
of certain nonimmigrant classifications.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-129 is
294,751 and the estimated hour burden per response is 2.34 hours; the
estimated total number of respondents for the information collection E-
1/E-2 Classification Supplement to Form I-129 is 4,760 and the
estimated hour burden per response is 0.67 hours; the estimated total
number of respondents for the information collection Trade Agreement
Supplement to Form I-129 is 3,057 and the estimated hour burden per
response is 0.67 hours; the estimated total number of respondents for
the information collection H Classification Supplement to Form I-129 is
96,291 and the estimated hour burden per response is 2.3 hours; the
estimated total number of respondents for the information collection H-
1B and H-1B1 Data Collection and Filing Fee Exemption Supplement is
96,291 and the estimated hour burden per response is 1 hour; the
estimated total number of respondents for the information collection L
Classification Supplement to Form I-129 is 37,831 and the estimated
hour burden per response is 1.34 hours; the estimated total number of
respondents for the information collection O and P Classifications
Supplement to Form I-129 is 22,710 and the estimated hour burden per
response is 1 hour; the estimated total number of respondents for the
information collection Q-1 Classification Supplement to Form I-129 is
155 and the estimated hour burden per response is 0.34 hour; and the
estimated total number of respondents for the information collection R-
1 Classification Supplement to Form I-129 is 6,635 and
[[Page 65101]]
the estimated hour burden per response is 2.34 hours.
----------------------------------------------------------------------------------------------------------------
Currently New burden
approved estimates
burden ---------------
Number of estimates Difference (in
Form name/form No. respondents ---------------- hours) Avg. burden
Avg. burden per response
per response (in hours)
(in hours)
----------------------------------------------------------------------------------------------------------------
Petition for Nonimmigrant Worker (Form I-129)... 294,751 2.34 0 2.34
E-/E-2 Classification Supplement to Form I-129.. 4,760 0.67 0 0.67
Trade Agreement Supplement to Form I-129........ 3.057 0.67 0 0.67
H Classification Supplement to Form I-129....... 96,291 2 0.3 2.3
H-1B and H-1B1 Data Collection and Filing Fee 96,291 1 0 1
Exemption Supplement...........................
L Classification Supplement to Form I-129....... 37,831 1.34 0 1.34
O and P Classifications Supplement to Form I-129 22,710 1 0 1
Q-1 Classifications Supplement to Form I-129.... 155 0.34 0 0.34
R-1 Classifications Supplement to Form I-129.... 6,635 2.34 0 2.34
----------------------------------------------------------------------------------------------------------------
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection is 1,101,697 hours. This is an increase from the
current estimate of 1,072,810 burden hours annually. The overall change
in burden estimates reflects the proposed changes in the rule related
to the removal of the list of countries of citizenship section on the
form and eligible countries list from the instructions, addition of
question on exception to the three-year limit and requests for
evidence, rewriting of questions and instructional content on
prohibited fees and evidence and other H-2A and H-2B violations,
addition of clarifying language to H-2A and H-2B petitioner and
employer obligations questions, addition of questions and reformatting
for the joint employer section, removal of E-Verify and corresponding
H-2A petitions instructions, addition of instructional content in the
recruitment of H-2A and H-2B workers section, removal of instructional
content on interrupted stays, and addition of clarifying language to
the notification requirements instructional content.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $70,681,290.
List of Subjects
8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
program, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Cultural exchange
program, Employment, Penalties, Reporting and recordkeeping
requirements, Students.
Regulatory Amendments
Accordingly, DHS proposes to amend chapter I of title 8 of the Code
of Federal Regulations as follows:
PART 214--NONIMMIGRANT CLASSES
0
1. The authority citation for part 214 continues to read as follows:
Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182,
1184, 1186a, 1187, 1188, 1221, 1281, 1282, 1301-1305, 1357, and
1372; sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-
386, 114 Stat. 1477-1480; section 141 of the Compacts of Free
Association with the Federated States of Micronesia and the Republic
of the Marshall Islands, and with the Government of Palau, 48 U.S.C.
1901 note and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2;
Pub. L. 115-218, 132 Stat. 1547 (48 U.S.C. 1806).
0
2. Section 214.2 is amended by:
0
a. Revising paragraph (h)(2)(i)(D);
0
b. Redesignating paragraph (h)(2)(i)(I) as paragraph (h)(2)(i)(J), and
adding a new paragraph (h)(2)(i)(I);
0
c. Revising paragraphs (h)(2)(ii) and (iii);
0
d. Removing paragraph (h)(5)(i)(F);
0
e. Removing and reserving paragraph (h)(5)(iii)(B);
0
f. Revising paragraphs (h)(5)(vi)(A), (B)(1)(i) and (iii), and removing
(h)(5)(vi)(E);
0
g. Revising paragraphs (h)(5)(viii)(B) and (C) and adding (D);
0
h. Revising paragraphs (h)(5)(ix) and (xi);
0
i. Removing paragraph (h)(5)(xii);
0
j. Revising paragraphs (h)(6)(i)(B) through (D);
0
k. Removing and reserving paragraph (h)(6)(i)(E);
0
l. Revising paragraph (h)(6)(i)(F);
0
m. Revising paragraph (h)(6)(vii);
0
n. Adding paragraph (h)(10)(iii);
0
o. Adding paragraph (h)(11)(iv);
0
p. Revising paragraphs (h)(13)(i), (iv) and (v);
0
q. Revising paragraph (h)(16)(ii) and adding (h)(16)(iii);
0
r. Revising paragraph (h)(20); and
0
s. Adding paragraph (h)(30).
The revisions and additions read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(2) * * *
(i) * * *
(D) Change of employers. If the alien is in the United States and
seeks to change employers, the prospective new employer must file a
petition for a nonimmigrant worker requesting classification and an
extension of the alien's stay in the United States. If the new petition
is approved, the extension of stay may be granted for the validity of
the approved petition. The validity of the petition and the alien's
extension of stay must conform to the limits on the alien's temporary
stay that are prescribed in paragraph (h)(13) of this section. Except
as provided in paragraph (h)(2)(i)(I) of this section, 8 CFR
274a.12(b)(21), or section 214(n) of the Act, 8 U.S.C. 1184(n), the
alien is not authorized to begin the employment with the new petitioner
until the petition is approved. An H-1C nonimmigrant alien may not
change employers.
* * * * *
(I) H-2A and H-2B portability. An eligible H-2A or H-2B
nonimmigrant is
[[Page 65102]]
authorized to start new employment upon the proper filing, in
accordance with 8 CFR 103.2(a), of a nonfrivolous H-2A or H-2B petition
on behalf of such alien requesting the same classification that the
nonimmigrant alien currently holds, or as of the requested start date,
whichever is later.
(1) Eligible H-2A or H-2B nonimmigrant. For H-2A and H-2B
portability purposes, an eligible H-2A or H-2B nonimmigrant is defined
as an alien:
(i) Who has been lawfully admitted into the United States in, or
otherwise provided, H-2A or H-2B nonimmigrant status;
(ii) On whose behalf a nonfrivolous H-2A or H-2B petition for new
employment has been properly filed, including a petition for new
employment with the same employer, with a request to amend or extend
the H-2A or H-2B nonimmigrant's stay in the same classification that
the nonimmigrant currently holds, before the H-2A or H-2B
nonimmigrant's period of stay authorized by the Secretary of Homeland
Security expires; and
(iii) Who has not been employed without authorization in the United
States from the time of last admission through the filing of the
petition for new employment.
(2) Length of employment. Employment authorized under this
paragraph (h)(2)(i)(I) automatically ceases upon the adjudication or
withdrawal of the H-2A or H-2B petition described in paragraph
(h)(2)(i)(I)(1)(ii) of this section.
(3) Application of H-2A or H-2B program requirements during the
pendency of the petition. The petitioner and any employer is required
to comply with all H-2A or H-2B program requirements, as applicable
under the relevant program, with respect to an alien who has commenced
new employment with that petitioner or employer based on a properly
filed nonfrivolous petition and while that petition is pending, even if
the petition is subsequently denied or withdrawn. During the pendency
of the petition, the alien will not be considered to have been in a
period of unauthorized stay or employed in the United States without
authorization solely on the basis of employment pursuant to the new
petition, even if the petition is subsequently denied or withdrawn.
(4) Successive H-2A or H-2B portability petitions. (i) An alien
maintaining authorization for employment under this paragraph
(h)(2)(i)(I), whose status, as indicated on the Arrival-Departure
Record (Form I-94), has expired, will be considered to be in a period
of stay authorized by the Secretary of Homeland Security for purposes
of paragraph (h)(2)(i)(I)(1)(ii) of this section. If otherwise eligible
under this paragraph (h)(2)(i)(I), such alien may begin working in a
subsequent position upon the filing of another H-2A or H-2B petition in
the same classification that the nonimmigrant alien currently holds or
from the requested start date, whichever is later, notwithstanding that
the previous H-2A or H-2B petition upon which employment is authorized
under this paragraph (h)(2)(i)(I) remains pending and regardless of
whether the validity period of an approved H-2A or H-2B petition filed
on the alien's behalf expired during such pendency.
(ii) A request to amend the petition or for an extension of stay in
any successive H-2A or H-2B portability petition requesting the same
classification that the nonimmigrant alien currently holds cannot be
approved if a request to amend the petition or for an extension of stay
in any preceding H-2A or H-2B portability petition in the succession is
denied, unless the beneficiary's previously approved period of H-2A or
H-2B status remains valid.
(iii) Denial of a successive portability petition does not affect
the ability of the H-2A or H-2B beneficiary to continue or resume
working in accordance with the terms of an H-2A or H-2B petition
previously approved on behalf of the beneficiary if that petition
approval remains valid, and the beneficiary has either maintained H-2A
or H-2B status, as appropriate, or been in a period of authorized stay
and has not been employed in the United States without authorization.
* * * * *
(ii) Multiple beneficiaries. More than one beneficiary may be
included in an H-1C, H-2A, H-2B, or H-3 petition if the beneficiaries
will be performing the same service, or receiving the same training,
for the same period of time, and in the same location.
(iii) Naming beneficiaries. H-1B, H-1C, and H-3 petitions must
include the name of each beneficiary. Except as provided in this
paragraph (h), all H-2A and H-2B petitions must include the name of
each beneficiary who is currently in the United States, but need not
name any beneficiary who is not currently in the United States. Unnamed
beneficiaries must be shown on the petition by total number. USCIS may
require the petitioner to name H-2B beneficiaries where the name is
needed to establish eligibility for H-2B nonimmigrant status. If all of
the beneficiaries covered by an H-2A or H-2B temporary labor
certification have not been identified at the time a petition is filed,
multiple petitions for subsequent beneficiaries may be filed at
different times but must include a copy of the same temporary labor
certification. Each petition must reference all previously filed
petitions associated with that temporary labor certification.
* * * * *
(5) * * *
(vi) * * *
(A) Consent. In filing an H-2A petition, a petitioner and each
employer consents to allow Government access to all sites where the
labor is being or will be performed and where workers are or will be
housed and agrees to fully cooperate with any compliance review,
evaluation, verification, or inspection conducted by USCIS, including
an on-site inspection of the employer's facilities, review of the
employer's records related to the compliance with immigration laws and
regulations, and interview of the employer's employees and any other
individuals possessing pertinent information, which may be conducted in
the absence of the employer or the employer's representatives, as a
condition for the approval of the petition. The interviews may be
conducted on the employer's property, or as feasible, at a neutral
location agreed to by the employee and USCIS away from the employer's
property. If USCIS is unable to verify facts, including due to the
failure or refusal of the petitioner or employer to cooperate in an
inspection or other compliance review, then such inability to verify
facts, including due to failure or refusal to cooperate, may result in
denial or revocation of any H-2A petition for H-2A workers performing
services at the location or locations that are a subject of inspection
or compliance review.
(B) * * *
(1) * * *
(i) An H-2A worker does not report to work within 5 workdays of the
employment start date on the H-2A petition or within 5 workdays of the
start date established by their employer, whichever is later;
* * * * *
(iii) The H-2A worker does not report for work for a period of 5
consecutive workdays without the consent of the employer or is
terminated prior to the completion of agricultural labor or services
for which they were hired.
* * * * *
(viii) * * *
[[Page 65103]]
(B) Period of admission. An alien admissible as an H-2A
nonimmigrant will be admitted for the period of the approved petition.
Such alien will be admitted for an additional period of up to 10 days
before the beginning of the approved period for the purpose of travel
to the worksite, and up to 30 days subject to the 3-year limitation in
paragraph (h)(5)(viii)(C) of this section following the expiration of
the H-2A petition for the purpose of departure or to seek an extension
based on a subsequent offer of employment. Unless authorized under 8
CFR 274a.12, the alien may not work except during the validity period
of the petition.
(C) Limits on an individual's stay. Except as provided in paragraph
(h)(5)(viii)(B) of this section, an alien's stay as an H-2A
nonimmigrant is limited by the period of time stated in an approved
petition. An alien may remain longer to engage in other qualifying
temporary agricultural employment by obtaining an extension of stay.
However, an individual who has held H-2A or H-2B status for a total of
3 years may not again be granted H-2A status until such time as they
remain outside the United States for an uninterrupted period of at
least 60 days. Eligibility under this paragraph (h)(5)(viii)(C) will be
determined during adjudication of a request for admission, change of
status or extension. An alien found eligible for a shorter period of H-
2A status than that indicated by the petition due to the application of
this paragraph (h)(5)(viii)(C) will only be admitted for that shorter
period.
(D) Period of absence. An absence from the United States for an
uninterrupted period of at least 60 days at any time will result in the
alien becoming eligible for a new 3-year maximum period of H-2 stay. To
qualify, the petitioner must provide evidence documenting the alien's
relevant absence(s) from the United States, such as, but not limited
to, arrival and departure records, copies of tax returns, and records
of employment abroad.
(ix) Substitution of beneficiaries after admission. An H-2A
petition may be filed to replace H-2A workers whose employment was
terminated earlier than the end date stated on the H-2A petition and
before the completion of work; who do not report to work within 5
workdays of the employment start date on the H-2A petition or within 5
workdays of the start date established by their employer, whichever is
later; or who do not report for work for a period of 5 consecutive
workdays without the consent of the employer. The petition must be
filed with a copy of the temporary labor certification, a copy of the
approval notice covering the workers for which replacements are sought,
and other evidence required by paragraph (h)(5)(i)(D) of this section.
It must also be filed with a statement giving the name, date and
country of birth, termination date, and the reason for termination, if
applicable, for such worker and the date that USCIS was notified that
the worker was terminated or did not report for work for a period of 5
consecutive workdays without the consent of the employer. A petition
for a replacement will not be approved where the requirements of
paragraph (h)(5)(vi) of this section have not been met. A petition for
replacements does not constitute the notification required by paragraph
(h)(5)(vi)(B)(1) of this section.
* * * * *
(xi) Treatment of petitions and alien beneficiaries upon a
determination that fees were collected from alien beneficiaries--(A)
Denial or revocation of petition for prohibited fees. As a condition to
approval of an H-2A petition, no job placement fee, fee or penalty for
breach of contract, or other fee, penalty, or compensation (either
direct or indirect), related to the H-2A employment (collectively,
``prohibited fees'') may be collected at any time from a beneficiary of
an H-2A petition by a petitioner, a petitioner's employee, agent,
attorney, facilitator, recruiter, or similar employment service, or by
any employer (if different from the petitioner) or any joint employer,
including a member employer if the petitioner is an association of U.S.
agricultural producers. The passing of a cost to the beneficiary that,
by statute or applicable regulations is the responsibility of the
petitioner, constitutes the collection of a prohibited fee. This
provision does not prohibit petitioners (including its employees),
employers or any joint employers, agents, attorneys, facilitators,
recruiters, or similar employment services from receiving reimbursement
for costs that are the responsibility and primarily for the benefit of
the worker, such as government-required passport fees.
(1) If USCIS determines that the petitioner or any of its
employees, whether before or after the filing of the H-2A petition, has
collected, or entered into an agreement to collect, a prohibited fee
related to the H-2A employment, the H-2A petition will be denied or
revoked on notice unless the petitioner demonstrates through clear and
convincing evidence that extraordinary circumstances beyond the
petitioner's control resulted in its failure to prevent collection or
entry into agreement for collection of prohibited fees, and that it has
fully reimbursed all affected beneficiaries or the beneficiaries'
designees. To qualify for this exception, a petitioner must first
establish the circumstances were rare and unforeseeable, and that it
had made significant efforts to prevent prohibited fees prior to the
collection of or agreement to collect such fees. Further, a petitioner
must establish that it took immediate remedial action as soon as it
became aware of the payment of the prohibited fee. Moreover, a
petitioner must establish that it has fully reimbursed all affected
beneficiaries or, only if such beneficiaries cannot be located or are
deceased, that it has fully reimbursed their designees. A designee must
be an individual or entity for whom the beneficiary has provided the
petitioner or its successor in interest prior written authorization to
receive such reimbursement, as long as the petitioner or its successor
in interest, or its agent, employer (if different from the petitioner),
or any joint employer, attorney, facilitator, recruiter, or similar
employment service would not act as such designee or derive any
financial benefit, either directly or indirectly, from the
reimbursement.
(2) If USCIS determines that the beneficiary has paid or agreed to
pay a prohibited fee related to the H-2A employment, whether before or
after the filing of the H-2A petition, to any agent, attorney,
employer, facilitator, recruiter, or similar employment service, or any
joint employer, including a member employer if the petitioner is an
association of U.S. agricultural producers, the H-2A petition will be
denied or revoked on notice unless the petitioner demonstrates to USCIS
through clear and convincing evidence that it did not know and could
not, through due diligence, have learned of such payment or agreement
and that all affected beneficiaries or their designees have been fully
reimbursed. A written contract between the petitioner and the agent,
attorney, facilitator, recruiter, similar employment service, or member
employer stating that such fees were prohibited will not, by itself, be
sufficient to meet this standard of proof.
(B) 1-year bar on approval of subsequent H-2A petitions. USCIS will
deny any H-2A petition filed by the same petitioner or a successor in
interest within 1 year after the decision denying or revoking on notice
an H-2A or H-2B petition on the basis of paragraph (h)(5)(xi)(A) or
(h)(6)(i)(B), respectively, of this section. In addition, USCIS will
deny any H-2A petition filed by the same petitioner or successor
[[Page 65104]]
in interest within 1 year after withdrawal of an H-2A or H-2B petition
that was withdrawn following USCIS issuance of a request for evidence
or notice of intent to deny or revoke the petition on the basis of
paragraph (h)(5)(xi)(A) or (h)(6)(i)(B), respectively, of this section.
(C) Reimbursement as condition to approval of future H-2A
petitions--(1) Additional 3-year bar on approval of subsequent H-2A
petitions. For an additional 3 years after the 1-year period described
in paragraph (h)(5)(xi)(B) of this section, USCIS will deny any H-2A
petition filed by the same petitioner or successor in interest, unless
the petitioner or successor in interest demonstrates to USCIS that the
petitioner, successor in interest, or the petitioner's or successor in
interest's agent, facilitator, recruiter, or similar employment
service, or any joint employer, including a member employer if the
petitioner is an association of U.S. agricultural producers, reimbursed
in full each beneficiary, or the beneficiary's designee, of the denied
or revoked petition from whom a prohibited fee was collected.
(2) Successor in interest. For the purposes of paragraphs
(h)(5)(xi)(B) and (C) of this section, successor in interest means an
employer that is controlling and carrying on the business of a previous
employer regardless of whether such successor in interest has succeeded
to all of the rights and liabilities of the predecessor entity. The
following factors may be considered by USCIS in determining whether an
employer is a successor in interest; no one factor is dispositive, but
all of the circumstances will be considered as a whole:
(i) Substantial continuity of the same business operations;
(ii) Use of the same facilities;
(iii) Substantial continuity of the work force;
(iv) Similarity of jobs and working conditions;
(v) Similarity of supervisory personnel;
(vi) Whether the former management or owner retains a direct or
indirect interest in the new enterprise;
(vii) Similarity in machinery, equipment, production methods, or
assets required to conduct business;
(viii) Similarity of products and services;
(ix) Familial or close personal relationships between predecessor
and successor owners of the entity; and
(x) Use of the same or related remittance sources for business
payments.
(6) * * *
(i) * * *
(B) Denial or revocation of petition for prohibited fees. As a
condition of approval of an H-2B petition, no job placement fee, fee or
penalty for breach of contract, or other fee, penalty, or compensation
(either direct or indirect), related to the H-2B employment
(collectively, ``prohibited fees'') may be collected at any time from a
beneficiary of an H-2B petition by a petitioner, a petitioner's
employee, agent, attorney, facilitator, recruiter, or similar
employment service, or any employer (if different from the petitioner).
The passing of a cost to the beneficiary that, by statute or applicable
regulations is the responsibility of the petitioner, constitutes the
collection of a prohibited fee. This provision does not prohibit
petitioners (including its employees), employers, agents, attorneys,
facilitators, recruiters, or similar employment services from receiving
reimbursement for costs that are the responsibility and primarily for
the benefit of the worker, such as government-required passport fees.
(1) If USCIS determines that the petitioner or any of its
employees, whether before or after the filing of the H-2B petition, has
collected or entered into an agreement to collect a prohibited fee
related to the H-2B employment, the H-2B petition will be denied or
revoked on notice unless the petitioner demonstrates through clear and
convincing evidence that extraordinary circumstances beyond the
petitioner's control resulted in its failure to prevent collection or
entry into agreement for collection of prohibited fees, and that it has
fully reimbursed all affected beneficiaries or the beneficiaries'
designees. To qualify for this exception, a petitioner must first
establish that the circumstances were rare and unforeseeable, and that
it had made significant efforts to prevent prohibited fees prior to the
collection of or agreement to collect such fees. Further, a petitioner
must establish that it took immediate remedial action as soon as it
became aware of the payment of the prohibited fee. Moreover, a
petitioner must establish that it has fully reimbursed all affected
beneficiaries or, only if such beneficiaries cannot be located or are
deceased, that it has fully reimbursed their designees. A designee must
be an individual or entity for whom the beneficiary has provided the
petitioner or its successor in interest prior written authorization to
receive such reimbursement, as long as the petitioner or its successor
in interest, or its agent, employer, attorney, facilitator, recruiter,
or similar employment service would not act as such designee or derive
any financial benefit, either directly or indirectly, from the
reimbursement.
(2) If USCIS determines that the beneficiary has paid or agreed to
pay any employer, agent, attorney, facilitator, recruiter, or similar
employment service a prohibited fee related to the H-2B employment,
whether before or after the filing of the H-2B petition, the H-2B
petition will be denied or revoked on notice unless the petitioner
demonstrates to USCIS through clear and convincing evidence that it did
not know and could not, through due diligence, have learned of such
payment or agreement and that all affected beneficiaries or their
designees have been fully reimbursed. A written contract between the
petitioner and the facilitator, recruiter, or similar employment
service stating that such fees were prohibited will not, by itself, be
sufficient to meet this standard of proof.
(C) 1-year bar on approval of subsequent H-2B petitions. USCIS will
deny any H-2B petition filed by the same petitioner or a successor in
interest within 1 year after the decision denying or revoking on notice
an H-2B or H-2A petition on the basis of paragraph (h)(6)(i)(B) or
(h)(5)(xi)(A), respectively, of this section. In addition, USCIS will
deny any H-2B petition filed by the same petitioner or successor in
interest within 1 year after withdrawal of an H-2B or H-2A petition
that was withdrawn following USCIS issuance of a request for evidence
or notice of intent to deny or revoke the petition on the basis of
paragraph (h)(6)(i)(B) or (h)(5)(xi)(A), respectively, of this section.
(D) Reimbursement as condition to approval of future H-2B petitions
--(1) Additional 3-year bar on approval of subsequent H-2B petitions.
For an additional 3 years after the 1-year period described in
paragraph (h)(6)(i)(C) of this section, USCIS will deny any H-2B
petition filed by the same petitioner or successor in interest, unless
the petitioner or successor in interest demonstrates to USCIS that the
petitioner or successor in interest, or the petitioner's or successor
in interest's agent, facilitator, recruiter, or similar employment
service, reimbursed in full each beneficiary, or the beneficiary's
designee, of the denied or revoked petition from whom a prohibited fee
was collected.
(2) Successor in interest. For the purposes of paragraphs
(h)(6)(i)(C) and (D) of this section, successor in interest means an
employer that is controlling and carrying on the business of a previous
employer regardless of
[[Page 65105]]
whether such successor in interest has succeeded to all of the rights
and liabilities of the predecessor entity. The following factors may be
considered by USCIS in determining whether an employer is a successor
in interest; no one factor is dispositive, but all of the circumstances
will be considered as a whole:
(i) Substantial continuity of the same business operations;
(ii) Use of the same facilities;
(iii) Substantial continuity of the work force;
(iv) Similarity of jobs and working conditions;
(v) Similarity of supervisory personnel;
(vi) Whether the former management or owner retains a direct or
indirect interest in the new enterprise;
(vii) Similarity in machinery, equipment, production methods, or
assets required to conduct business;
(viii) Similarity of products and services;
(ix) Familial or close personal relationships between predecessor
and successor owners of the entity; and
(x) Use of the same or related remittance sources for business
payments.
* * * * *
(F) Petitioner agreements and notification requirements--(1)
Agreements. The petitioner must notify DHS, within 2 workdays, and
beginning on a date and in a manner specified in a notice published in
the Federal Register if: An H-2B worker does not report for work within
5 workdays after the employment start date stated on the petition; the
nonagricultural labor or services for which H-2B workers were hired
were completed more than 30 days early; or an H-2B worker does not
report for work for a period of 5 consecutive workdays without the
consent of the employer or is terminated prior to the completion of the
nonagricultural labor or services for which they were hired. The
petitioner must also retain evidence of such notification and make it
available for inspection by DHS officers for a 1-year period beginning
on the date of the notification.
(2) Consent. In filing an H-2B petition, the petitioner and each
employer (if different from the petitioner) consent to allow Government
access to all sites where the labor is being or will be performed and
agrees to fully cooperate with any compliance review, evaluation,
verification, or inspection conducted by USCIS, including an on-site
inspection of the employer's facilities, review of the employer's
records related to the compliance with immigration laws and
regulations, and interview of the employer's employees and any other
individuals possessing pertinent information, which may be conducted in
the absence of the employer or the employer's representatives, as a
condition for the approval of the petition. The interviews may be
conducted on the employer's property, or as feasible, at a neutral
location agreed to by the employee and USCIS away from the employer's
property. If USCIS is unable to verify facts, including due to the
failure or refusal of the petitioner or employer to cooperate in an
inspection or other compliance review, then such inability to verify
facts, including due to failure or refusal to cooperate, may result in
denial or revocation of any H-2B petition for H-2B workers performing
services at the location or locations that are a subject of inspection
or compliance review.
* * * * *
(vii) Admission--(A) Period of admission. An alien admissible as an
H-2B nonimmigrant will be admitted for the period of the approved
petition. Such alien will be admitted for an additional period of up to
10 days before the beginning of the approved period for the purpose of
travel to the worksite, and up to 30 days subject to the 3-year
limitation in paragraph (h)(6)(vii)(B) of this section following the
expiration of the H-2B petition for the purpose of departure or to seek
an extension based on a subsequent offer of employment. Unless
authorized under 8 CFR 274a.12, the alien may not work except during
the validity period of the petition.
(B) Limits on an individual's stay. Except as provided in paragraph
(h)(6)(vii)(A) of this section, an alien's stay as an H-2B nonimmigrant
is limited by the period of time stated in an approved petition. An
alien may remain longer to engage in other qualifying temporary
nonagricultural employment by obtaining an extension of stay. However,
an individual who has held H-2A or H-2B status for a total of 3 years
may not again be granted H-2B status until such time as they remain
outside the United States for an uninterrupted period of at least 60
days. Eligibility under this paragraph (h)(6)(vii)(B) will be
determined during adjudication of a request for admission, change of
status or extension of stay. An alien found eligible for a shorter
period of H-2B status than that indicated by the petition due to the
application of this paragraph (h)(6)(vii)(B) will only be admitted for
that shorter period.
(C) Period of absence. An absence from the United States for an
uninterrupted period of at least 60 days at any time will result in the
alien becoming eligible for a new 3-year maximum period of H-2 stay.
The limitation in paragraph (h)(6)(vii)(B) of this section will not
apply to H-2B aliens who did not reside continually in the United
States and whose employment in the United States was seasonal or
intermittent or was for an aggregate of 6 months or less per year. In
addition, the limitation in paragraph (h)(6)(vii)(B) of this section
will not apply to aliens who reside abroad and regularly commute to the
United States to engage in part-time employment. To qualify, the
petitioner must provide evidence documenting the alien's relevant
absence(s) from the United States, such as, but not limited to, arrival
and departure records, copies of tax returns, and records of employment
abroad.
(D) Traded professional H-2B athletes. In the case of a
professional H-2B athlete who is traded from one organization to
another organization, employment authorization for the player will
automatically continue for a period of 30 days after the player's
acquisition by the new organization, within which time the new
organization is expected to file a new application or petition for H-2B
nonimmigrant classification. If a new application or petition is not
filed within 30 days, employment authorization will cease. If a new
application or petition is filed within 30 days, the professional
athlete will be deemed to be in valid H-2B status, and employment will
continue to be authorized, until the petition is adjudicated. If the
new petition is denied, employment authorization will cease.
* * * * *
(10) * * *
(iii) H-2A and H-2B violators--(A) USCIS will deny any H-2A or H-2B
petition filed by a petitioner, or the successor in interest of a
petitioner as defined in paragraphs (h)(5)(xi)(C)(2) and
(h)(6)(i)(D)(2) of this section, that has been the subject of one or
more of the following actions:
(1) A final administrative determination by the Secretary of Labor
under 20 CFR part 655, subpart A or B, or 29 CFR part 501 or 503
debarring the petitioner from filing or receiving a future labor
certification, or a final administrative determination by the Governor
of Guam debarring the petitioner from issuance of future labor
certifications under applicable Guam regulations and rules, if the
petition is
[[Page 65106]]
filed during the debarment period, or if the debarment occurs during
the pendency of the petition; or
(2) A final USCIS denial or revocation decision with respect to a
prior H-2A or H-2B petition that includes a finding of fraud or willful
misrepresentation of a material fact during the pendency of the
petition or within 3 years prior to filing the petition; or
(3) A final determination of violation(s) under section 274(a) of
the Act during the pendency of the petition or within 3 years prior to
filing the petition.
(B) Except as provided in paragraph (h)(10)(iii)(A) of this
section, USCIS may deny any H-2A or H-2B petition filed by a
petitioner, or the successor in interest of a petitioner as defined in
paragraphs (h)(5)(xi)(C)(2) and (h)(6)(i)(D)(2) of this section, that
has been the subject of one or more of the following actions during the
pendency of the petition or within 3 years prior to filing the
petition. USCIS may deny such a petition if it determines that the
petitioner or successor has not established its intention or the
ability to comply with H-2A or H-2B program requirements. The
violation(s) underlying the following actions may call into question a
petitioner's or successor's intention or ability to comply:
(1) A final administrative determination by the Secretary of Labor
or the Governor of Guam with respect to a prior H-2A or H-2B temporary
labor certification that includes:
(i) Revocation of an approved temporary labor certification under
20 CFR part 655, subpart A or B, or applicable Guam regulations and
rules;
(ii) Debarment under 20 CFR part 655, subpart A or B, or 29 CFR
part 501 or 503, or applicable Guam regulations and rules, if the
debarment period has concluded prior to filing the petition; or
(iii) Any other administrative sanction or remedy under 29 CFR part
501 or 503, or applicable Guam regulations and rules, including
assessment of civil money penalties as described in those parts.
(2) A USCIS decision revoking the approval of a prior petition that
includes one or more of the following findings: the beneficiary was not
employed by the petitioner in the capacity specified in the petition;
the statement of facts contained in the petition or on the application
for a temporary labor certification was not true and correct, or was
inaccurate; the petitioner violated terms and conditions of the
approved petition; or the petitioner violated requirements of section
101(a)(15)(H) of the Act or this paragraph (h); or
(3) Any final administrative or judicial determination (other than
one described in paragraph (h)(10)(iii)(A) of this section) that the
petitioner violated any applicable employment-related laws or
regulations, including health and safety laws or regulations.
(C) In determining whether the underlying violation(s) in paragraph
(h)(10)(iii)(B) of this section calls into question the ability or
intention of the petitioner or its successor in interest to comply with
H-2A or H-2B program requirements, USCIS will consider all relevant
factors, including, but not limited to:
(1) The recency and number of violations;
(2) The egregiousness of the violation(s), including how many
workers were affected, and whether it involved a risk to the health or
safety of workers;
(3) Overall history or pattern of prior violations;
(4) The severity or monetary amount of any penalties imposed;
(5) Whether the final determination, decision, or conviction
included a finding of willfulness;
(6) The extent to which the violator achieved a financial gain due
to the violation(s), or the potential financial loss or potential
financial injury to the workers;
(7) Timely compliance with all penalties and remedies ordered under
the final determination(s), decision(s), or conviction(s); and
(8) Other corrective actions taken by the petitioner or its
successor in interest to cure its violation(s) or prevent future
violations.
(D) For purposes of paragraph (h)(10)(iii) of this section, a
criminal conviction or final administrative or judicial determination
against any one of the following individuals will be treated as a
conviction or final administrative or judicial determination against
the petitioner or successor in interest:
(1) An individual acting on behalf of the petitioning entity, which
could include, among others, the petitioner's owner, employee, or
contractor; or
(2) With respect to paragraph (h)(10)(iii)(B) of this section, an
employee of the petitioning entity who a reasonable person in the H-2A
or H-2B worker's position would believe is acting on behalf of the
petitioning entity.
(E)(1) With respect to denials under paragraph (h)(10)(iii)(A) of
this section, USCIS will inform the petitioner of the right to appeal
the denial under 8 CFR 103.3, and indicate in the denial notice that
the mandatory ground of denial will also apply in the adjudication of
any other pending or future H-2 petition filed by the petitioner or a
successor in interest during the applicable time period.
(2) With respect to denials under paragraph (h)(10)(iii)(B) of this
section, USCIS will inform the petitioner of the right to appeal the
denial under 8 CFR 103.3, and indicate in the denial notice that the
discretionary ground of denial may also apply in the adjudication of
any other pending or future H-2 petition filed by the petitioner or a
successor in interest during the applicable time period.
(11) * * *
(iv) Effect of H-2A or H-2B petition revocation. Upon revocation of
the approval of an employer's H-2A or H-2B petition, the beneficiary
and their dependents will not be considered to have failed to maintain
nonimmigrant status, and will not accrue any period of unlawful
presence under section 212(a)(9) of the Act (8 U.S.C. 1182(a)(9)),
solely on the basis of the petition revocation for a 60-day period
following the date of the revocation, or until the end of the
authorized period of admission, whichever is shorter. During such a
period, the alien may only work as otherwise authorized under 8 CFR
274a.12. The employer will be liable for the alien beneficiary's
reasonable costs of return transportation to their last place of
foreign residence abroad, unless such alien obtains an extension of
stay based on an approved petition in the same classification filed by
a different employer.
* * * * *
(13) * * *
(i) General. (A) An H-3 beneficiary will be admitted to the United
States for the validity period of the petition, plus a period of up to
10 days before the validity period begins and 10 days after the
validity period ends. The beneficiary may not work except during the
validity period of the petition.
(B) When an alien in an H classification has spent the maximum
allowable period of stay in the United States, a new petition under
section 101(a)(15)(H) or (L) of the Act may not be approved unless that
alien has resided and been physically present outside the United
States, except for brief trips for business or pleasure, for the time
limit imposed on the particular H classification. Brief trips to the
United States for business or pleasure during the required time abroad
are not interruptive, but do not count toward fulfillment of the
required time abroad.
[[Page 65107]]
A certain period of absence from the United States of H-2A and H-2B
aliens, as set forth in 8 CFR 214.2(h)(5)(viii)(D) and 8 CFR
214.2(h)(6)(vii)(C), respectively, will provide a new total of 3 years
that H-2A or H-2B status may be granted. The petitioner must provide
information about the alien's employment, place of residence, and the
dates and purposes of any trips to the United States during the period
that the alien was required to reside abroad.
(C) An alien admitted or otherwise provided status in H-2A or H-2B
classification and their dependents will not be considered to have
failed to maintain nonimmigrant status, and will not accrue any period
of unlawful presence under section 212(a)(9) of the Act (8 U.S.C.
1182(a)(9)), solely on the basis of a cessation of the employment on
which the alien's classification was based, for 60 consecutive days or
until the end of the authorized period of admission, whichever is
shorter, once during each authorized period of admission. During such a
period, the alien may only work as otherwise authorized under 8 CFR
274a.12.
(D) An alien in any authorized period described in paragraph (C) of
this section may apply for and be granted an extension of stay under 8
CFR 214.1(c)(4) or change of status under 8 CFR 248.1, if otherwise
eligible.
* * * * *
(iv) H-3 limitation on admission. An H-3 alien participant in a
special education program who has spent 18 months in the United States
under sections 101(a)(15)(H) and/or (L) of the Act; and an H-3 alien
trainee who has spent 24 months in the United States under sections
101(a)(15)(H) and/or (L) of the Act may not seek extension, change
status, or be readmitted to the United States under sections
101(a)(15)(H) and/or (L) of the Act unless the alien has resided and
been physically present outside the United States for the immediate
prior 6 months.
(v) Exceptions. The limitations in paragraphs (h)(13)(iii) and (iv)
of this section will not apply to H-1B and H-3 aliens who did not
reside continually in the United States and whose employment in the
United States was seasonal or intermittent or was for an aggregate of 6
months or less per year. In addition, the limitations will not apply to
aliens who reside abroad and regularly commute to the United States to
engage in part-time employment. To qualify for this exception, the
petitioner and the alien must provide clear and convincing proof that
the alien qualifies for such an exception. Such proof shall consist of
evidence such as arrival and departure records, copies of tax returns,
and records of employment abroad.
* * * * *
(16) * * *
(ii) H-2A or H-2B classification. The approval of a permanent labor
certification, the filing of a preference petition for an alien, or an
application by an alien to seek lawful permanent residence or an
immigrant visa, will not, standing alone, be the basis for denying an
H-2 petition, a request to extend such a petition, or an application
for admission in, change of status to, or extension of stay in H-2
status. The approval of a permanent labor certification, filing of a
preference petition, or filing of an application for adjustment of
status or an immigrant visa will be considered, together with all other
facts presented, in determining whether the H-2 nonimmigrant is
maintaining his or her H-2 status and whether the alien has a residence
in a foreign country which he or she has no intention of abandoning.
(iii) H-3 classification. The approval of a permanent labor
certification, or the filing of a preference petition for an alien
currently employed by or in a training position with the same
petitioner, will be a reason, by itself, to deny the alien's extension
of stay.
* * * * *
(20) Retaliatory action claims. (i) If credible documentary
evidence is provided in support of a petition seeking an extension of
H-1B stay in or change of status to another classification indicating
that the beneficiary faced retaliatory action from their employer based
on a report regarding a violation of that employer's labor condition
application obligations under section 212(n)(2)(C)(iv) of the Act,
USCIS may consider a loss or failure to maintain H-1B status by the
beneficiary related to such violation as due to, and commensurate with,
``extraordinary circumstances'' as defined by Sec. 214.1(c)(4) and 8
CFR 248.1(b).
(ii) If credible documentary evidence is provided in support of a
petition seeking an extension of H-2A or H-2B stay in or change of
status to another classification indicating that the beneficiary faced
retaliatory action from their employer based on a reasonable claim of a
violation or potential violation of any applicable program requirements
or based on engagement in another protected activity, USCIS may
consider a loss or failure to maintain H-2A or H-2B status by the
beneficiary related to such violation as due to, and commensurate with,
``extraordinary circumstances'' as defined by Sec. 214.1(c)(4) and 8
CFR 248.1(b).
* * * * *
(30) Severability. The Department intends that should any of the
[amendments made by ``Modernizing H-2 Program Requirements, Oversight,
and Worker Protections''], be held to be invalid or unenforceable by
their terms or as applied to any person or circumstance they should
nevertheless be construed so as to continue to give the maximum effect
to the provision(s) permitted by law. If, however, such holding is that
the provision(s) is wholly invalid and unenforceable, the [amendments
to those provision(s)] should be severed from the remainder of [the
rule], and the holding should not affect the remainder of the sections
amended [by the rule] or the application of the provision(s) to persons
not similarly situated or to dissimilar circumstances
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
0
3. The authority citation for part 274a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1105a, 1324a; 48 U.S.C. 1806;
Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-74, 129
Stat. 599; Title VII of Pub. L. 110-229, 122 Stat. 754; Pub. L. 115-
218, 132 Stat. 1547; 8 CFR part 2.
0
4. Section 274a.12 is amended by revising paragraph (b)(21) to read as
follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(b) * * *
[[Page 65108]]
(21) A nonimmigrant alien within the class of aliens described in 8
CFR 214.2(h)(1)(ii)(C) or 8 CFR 214.2(h)(1)(ii)(D) for whom a
nonfrivolous petition requesting an extension of stay is properly filed
pursuant to 8 CFR 214.2 and 8 CFR 103.2(a) requesting the same
classification that the nonimmigrant alien currently holds. Pursuant to
8 CFR 214.2(h)(2)(i)(I), such alien is authorized to start new
employment upon the proper filing of the nonfrivolous petition
requesting an extension of stay in the same classification, or as of
the requested start date, whichever is later. The employment
authorization under this paragraph (b)(21) automatically ceases upon
the adjudication or withdrawal of the H-2A or H-2B petition;
* * * * *
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2023-20123 Filed 9-18-23; 8:45 am]
BILLING CODE 9111-97-P