[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

[[Page 65042]]

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
----------------------------------------------------------------------------------------------------------------
                                                                                       Expected impact of the
              Provision                       Purpose of proposed provision              proposed provision
----------------------------------------------------------------------------------------------------------------
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.

[[Page 65043]]

 
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.
----------------------------------------------------------------------------------------------------------------

[[Page 65045]]

 
                                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 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.
----------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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)).
---------------------------------------------------------------------------

    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/.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \101\ See 20 CFR 655.122(o).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \103\ 81 FR 82439.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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.'').
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

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.'').
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

     If the accumulated stay is 18 months or less, an absence 
is interruptive if it lasts for at least 45 days.\134\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

     If the accumulated stay is greater than 18 months, an 
absence is interruptive if it lasts for at least 2 months.\135\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.'').
---------------------------------------------------------------------------

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\
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    \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.
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    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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