[Federal Register Volume 89, Number 243 (Wednesday, December 18, 2024)]
[Rules and Regulations]
[Pages 103202-103335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29353]
[[Page 103201]]
Vol. 89
Wednesday,
No. 243
December 18, 2024
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; Final Rule
Federal Register / Vol. 89 , No. 243 / Wednesday, December 18, 2024 /
Rules and Regulations
[[Page 103202]]
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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, Department of
Homeland Security (DHS).
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security (DHS) is amending its
regulations affecting temporary agricultural (H-2A) and temporary
nonagricultural (H-2B) nonimmigrant workers (H-2 programs) and their
employers. This rulemaking is intended to better ensure the integrity
of the H-2 programs and enhance protections for workers.
DATES: This final rule is effective January 17, 2025.
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. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Summary of Major Provisions of the Regulatory Action
D. Costs and Benefits
II. Background
A. Description of the H-2 Nonimmigrant Classifications
1. H-2A Temporary Agricultural Workers
2. H-2B Temporary Nonagricultural Workers
III. Changes in the Final Rule
A. Changes to Provisions Related to Payment of Fees, Penalties,
or Other Compensation by H-2 Beneficiaries
1. Clarification of Acceptable Reimbursement Fees
2. Prohibiting Breach of Contract Fees and Penalties
3. Similar Employment Services
4. Extraordinary Circumstances Standard
5. Due Diligence Standard
6. Application of the Prohibited Fee Provisions, and 1- and 3-
Year Denial Periods
B. Application of Mandatory Grounds for Denial
C. Application of Discretionary Grounds for Denial
D. Discretionary Grounds for Denial
E. Conforming Changes To Align With the USCIS Fee Schedule Final
Rule
IV. Response to Public Comments on the Proposed Rule
A. Summary of Comments on the Proposed Rule
B. General Feedback on the Proposed Rule
1. General Support for the Rule
2. General Overview of Comments Opposing the Rule
3. Other General Feedback Regarding the Rule
C. Legal Authority and Background
1. DHS/USCIS Legal Authority
2. H-2 Program Background
D. Program Integrity and Worker Protections
1. Payment of Fees, Penalties, or Other Compensation by H-2
Beneficiaries
2. Mandatory and Discretionary Denials for Past Violations
3. Compliance Reviews and Inspections
4. Whistleblower Protection
E. Worker Flexibilities
1. Grace Periods/Admission Periods
2. Transportation Costs for Revoked H-2 Petitions
3. Portability and Extension of Stay Petitions
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
5. Removal of ``Abscondment,'' ``Abscond,'' and Its Other
Variations, and Notification to DHS
F. Program Efficiencies and Reducing Barriers to Legal Migration
1. Eligible Countries Lists
2. Eliminating the ``Interrupted Stay'' Calculation, Reducing
the Period of Absence for Resetting the 3-Year Stay Clock
G. Severability
H. Input on Future Actions/Proposals for Beneficiary
Notification
I. Other Comments Related to the Rule or H-2 Programs/
Requirements
1. Alternatives and Other General Comments on the Proposed Rule
2. Implementation
3. Employer/Petitioner Requirements, Processes, and Fees
4. Validity Period and 3-Year Maximum Period of Stay
J. Statutory and Regulatory Requirements
1. Administrative Procedure Act (APA)
2. Regulatory Impact Analysis (RIA) (E.O. 12866 and E.O. 13563)
K. Out of Scope
V. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
1. Summary of Major Provisions of the Regulatory Action
2. Summary of Costs and Benefits of the Final Rule
3. Summary of Comments Related to the Regulatory Impact Analysis
and Associated Responses
4. Background and Purpose of the Rule
5. Population
6. Cost-Benefit Analysis
B. Regulatory Flexibility Act (RFA) C. Unfunded Mandates Reform
Act of 1995 (UMRA)
D. Congressional Review Act
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
H. National Environmental Policy Act (NEPA)
I. Paperwork Reduction Act (PRA)
Table of Abbreviations
AAO--Administrative Appeals Office
APA--Administrative Procedure Act
BLS--Bureau of Labor Statistics
CBP--U.S. Customs and Border Protection
CEQ--Council on Environmental Quality
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
ELIS--Electronic Immigration System
ETA--Employment and Training Administration
FAM--Foreign Affairs Manual
FDNS--Fraud Detection and National Security Directorate
FR--Federal Register
FRFA--Final Regulatory Flexibility Analysis
FTE--Full-time equivalent
FY--Fiscal year
GAO--Government Accountability Office
GDOL--Guam Department of Labor
HR--Human Resources
HSA--Homeland Security Act of 2002
H-2A--Temporary Agricultural Workers Nonimmigrant Classification
H-2B--Temporary Nonagricultural Workers Nonimmigrant
Classification
ICE--U.S. Immigration and Customs Enforcement
IEFA--Immigration Examinations Fee Account
INA--Immigration and Nationality Act
INS--Immigration and Naturalization Service
IRFA--Initial Regulatory Flexibility Analysis
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
OMB--Office of Management and Budget
OSHA--Occupational Safety and Health Administration
PRA--Paperwork Reduction Act
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RFA--Regulatory Flexibility Act of 1980
RFE--Request for evidence
RIA--Regulatory Impact Analysis
SBA--Small Business Administration
TFR--Temporary final rule
TLC--Temporary labor certification
UMRA--Unfunded Mandates Reform Act of 1995
USCIS--U.S. Citizenship and Immigration Services
USDA--U.S. Department of Agriculture
WHD--Wage and Hour Division
I. 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 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. Legal Authority
The Immigration and Nationality Act (INA or the Act) sec.
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 \1\ 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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\1\ 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 rule can be found in various
provisions of the immigration laws, including but not limited to INA
sections 103(a), 8 U.S.C. 1103(a), and 214, 8 U.S.C. 1184.\2\ 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).
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\2\ The broad authority under INA sections 103(a), 8 U.S.C.
1103(a)(3), and 214, 8 U.S.C. 1184, applies with respect to all of
the provisions of this final rule, regardless of whether this
authority is explicitly referenced in responses to specific public
comments on any of the provisions of this final rule.
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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). In addition, 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). Furthermore, 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. 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 of and identify
information necessary to adjudicate 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
(DOL) and Agriculture (USDA), and cross-references INA sec. 218, 8
U.S.C. 1188.
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\3\ Although several provisions of the INA discussed in this
final rule 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, 586 U.S. 392, 397 n.2 (2019).
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Section 214(c)(14) of the INA, 8 U.S.C. 1184(c)(14), provides the
Secretary of Homeland Security with the authority to impose, ``in
addition to any other remedy authorized by law,'' such administrative
remedies (including civil monetary penalties) as the Secretary
``determines to be appropriate'' and to 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 under INA sec.
214(c)(14)(A)(i) to determine violations and impose administrative
remedies, including civil monetary penalties, and any other remedy
authorized by law. See INA sec. 214(c)(14)(B), 8 U.S.C.
1184(c)(14)(B).\4\ 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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\4\ 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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Section 291 of the INA, 8 U.S.C. 1361, establishes that the
petitioner or applicant for a visa or other immigration document bears
the burden of proof with respect to eligibility and inadmissibility,
including that a noncitizen is entitled to the immigration status being
sought.
C. Summary of the Major Provisions of the Regulatory Action
This final rule includes the following major changes:
Program Integrity and Worker Protections
To improve the integrity of the H-2 programs, DHS is making
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 bases for denial
for some H-2 petitions.\5\ 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 instituting certain mandatory and discretionary grounds for denial
of an H-2A or H-2B petition. In addition, to protect workers who report
their
[[Page 103204]]
employers for program violations, DHS is providing H-2A and H-2B
workers with ``whistleblower protection'' comparable to the protection
that is currently offered to H-1B workers. Additionally, DHS is
clarifying requirements for petitioners and employers to consent to,
and fully comply with, USCIS compliance reviews and inspections. DHS is
also clarifying USCIS' 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.
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\5\ DHS is making a change from the NPRM in how it refers to
these new bases for denial, referring to the new 1- and 3-year
periods following a petition denial or revocation for a prohibited
fee as denial periods rather than as bars on approval.
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Worker Flexibilities
This final rule makes 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 be
considered maintaining valid H-2 status for a period of up to 10 days
prior to the petition's validity period and up to 30 days following the
expiration of the petition. In addition, the final rule provides for an
extension of the existing 30-day grace period to a period of up to 60
days 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 H-2 status or
accruing unlawful presence. Further, to account for other situations in
which a worker may unexpectedly need to stop working or wish to seek
new employment, DHS is providing 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.
Additionally, in a change meant to work in conjunction with the new
grace period provisions, DHS is permanently providing portability--the
ability to begin new employment with the same or new employer upon the
proper filing of an extension of stay petition rather than only upon
its approval--to H-2A and H-2B workers. Furthermore, in the case of
petition revocations, DHS is clarifying that H-2A employers have the
same responsibility that H-2B employers have for reasonable costs of
return transportation for the beneficiary. DHS also is clarifying that
H-2 workers will not be considered to have failed to maintain their H-2
status and will not have H-2 petitions filed on their behalf denied
solely on the basis of taking certain steps mentioned in this rule
toward becoming lawful permanent residents of the United States.
Finally, DHS is removing 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 is making two changes to improve the efficiency of the H-2
programs and to reduce barriers to use of those two programs. First,
DHS is removing 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 is simplifying 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.
D. Costs and Benefits
This final rule will 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 incurred by certain petitioners
who are selected for a compliance review, petitioners that face
stricter consequences for charging prohibited fees, and/or those that
opt to transport and house H-2A beneficiaries earlier than they would
have otherwise based on the extension of the H-2A pre-employment grace
period from 7 to 10 days. The Federal Government may also incur
increased opportunity costs of time for adjudicators to review
information regarding debarment and other past violation determinations
more closely and to issue requests for evidence (RFE) or notices of
intent to deny (NOID), as well as additional costs for related computer
system updates.
The benefits of this final rule will be diverse, though most are
difficult to quantify. The final rule will 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 will also benefit from the extended
grace periods and from eliminating the interrupted stay provisions and
instead reducing the period of absence out of the country to reset
employees' 3-year maximum period of stay. The Federal Government,
employers, and U.S. and noncitizen workers will 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 detailed summary of the provisions in this rule
and their impacts. The impact of the 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.
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II. Background
A. 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 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). USCIS cannot approve petitions for H-2A workers
unless the Secretary of Labor has certified that there are not
sufficient able, willing, qualified, and available U.S. workers who are
capable of performing such services or labor, and H-2A employment will
not adversely affect the wages and working conditions of workers in the
United States. See INA sec. 101(a)(15)(H)(ii)(a), 8 U.S.C.
1101(a)(15)(H)(ii)(a); INA sec. 218(a)(1), 8 U.S.C. 1188(a)(1); 8 CFR
214.2(h)(5)(ii).\7\
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\6\ DHS initially proposed this provision as new 8 CFR
214.2(h)(10)(iii). See Modernizing H-2 Program Requirements,
Oversight, and Worker Protections, 88 FR 65040 (Sept. 20, 2023).
Because a separate DHS final rule, Improving the H-1B Registration
Selection Process and Program Integrity, 89 FR 7456 (Feb. 2, 2024)
has since added a subparagraph within 8 CFR 214.2(h)(10), the
provision of this final rule will now be new 8 CFR 214.2(h)(10)(iv).
\7\ DHS regulations provide that an H-2A petition must be
accompanied by a Temporary Labor Certification (TLC) from DOL, which
serves as DHS's consultation with DOL with respect to these
requirements. See 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(5)(i)(A).
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As noted in INA sec. 101(a)(15)(H)(ii)(a), 8 U.S.C.
1101(a)(15)(H)(ii)(a), 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.'' 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
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be found in this country.'' INA sec. 101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b). H-2B workers may not displace qualified,
available U.S. workers who are capable of performing such services or
labor, and H-2B employment may not adversely affect the wages and
working conditions of workers in the United States. See INA sec.
101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b); see also 8 CFR
214.2(h)(6)(i).\8\ 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).
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\8\ DHS regulations provide that an H-2B petition must be
accompanied by an approved TLC from DOL or from the Guam Department
of Labor (GDOL) for H-2B workers who will be employed on Guam, which
serves as DHS's consultation with DOL or GDOL with respect to these
requirements. 8 CFR 214.2(h)(6)(iii)(A), (C)-(E), (h)(6)(iv)(A),
(h)(6)(v).
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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,\9\ 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,\10\ 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.\11\ If insufficient petitions are approved to use all
available H-2B numbers in a given fiscal year, the unused numbers
cannot be carried over for petition approvals for employment start
dates beginning on or after the start of the next fiscal year.
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\9\ Since 2017, Congress has authorized up to an additional
64,716 visas when the Secretary of Homeland Security, after
consultation with the Secretary of Labor, determines that the needs
of American businesses cannot be satisfied in a given fiscal year
with United States workers who are willing, qualified, and able to
perform temporary nonagricultural labor. For example, on September
25, 2024, Congress passed the FY 2025 authority, Public Law 118-83,
which the President signed the next day. This law extends
authorization under the same terms and conditions provided in
section 105 of Division G, Title I of the FY 2024 Omnibus permitting
the Secretary of Homeland Security to increase the number of H-2B
visas available to U.S. employers in FY 2025, and expires on
December 20, 2024.
\10\ 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)(A) and 8 CFR 214.2(h)(2)(iii).
The spouse and children of H-2B workers, classified as H-4
nonimmigrants, also do not count against the cap. See INA 214(g)(2)
and 8 CFR 214.2(h)(8)(ii). Additionally, until December 31, 2029,
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 the Northern Mariana Islands or Guam. See Public Law
108-287, sec. 14006, 118 Stat. 951, 1014 (Aug. 5, 2004); Northern
Mariana Islands U.S. Workforce Act of 2018, Public Law 115-218, sec.
3, 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.
\11\ 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 ran from October 1, 2022,
through September 30, 2023.
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III. Changes in the Final Rule
Following careful consideration of public comments received, this
final rule adopts the regulatory text proposed in the notice of
proposed rulemaking (NPRM), Modernizing H-2 Program Requirements,
Oversight, and Worker Protections, 88 FR 65040, published in the
Federal Register on September 20, 2023, with some changes. DHS retains
the rationale for the proposed rule and the reasoning provided in that
rule, except as described in the preamble of this final rule. Section
IV of this preamble includes a detailed summary and analysis of the
comments and presents DHS's responses to those comments.
A. Changes to Provisions Related to Payment of Fees, Penalties, or
Other Compensation by H-2 Beneficiaries
1. Clarification of Acceptable Reimbursement Fees
In the NPRM, DHS explained that 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.
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 and would, therefore,
permissibly be considered the responsibility of the worker. To simplify
the language related to acceptable reimbursement fees and to clarify
that the exception only applies to costs that are truly for the
worker's benefit, proposed 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B) would have replaced 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.'' As mentioned in the NPRM, this
language was 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).
In response to public comments requesting additional clarity on
this topic, DHS is finalizing the proposed language about costs that
are the responsibility and primarily for the benefit of the worker and
further revising 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B)
to add: ``This provision does not prohibit employers from allowing
workers to initially incur fees or expenses that the employers are
required to subsequently reimburse, where such arrangement is
specifically permitted by, and performed in compliance with, statute or
regulations.'' \12\ Adding this language clarifies that, under certain
conditions, the employer can reimburse the worker after the worker
initially pays costs that are the employer's responsibility (such as
certain transportation costs), and that this would not be considered a
collection of a prohibited fee. This change to specify when an employer
may make reimbursements to the beneficiary for a cost that is
ultimately the employer's responsibility complements the regulatory
text as proposed and finalized in 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B) regarding reimbursements from the beneficiary. That
language specifies that the prohibited fee provisions do not prohibit
petitioners and third parties from receiving reimbursement from the
beneficiary for costs that are the responsibility of and primarily for
the benefit of the worker, such as government-required passport fees.
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\12\ See, e.g., 20 CFR 655.20(j)(2) (``The employer must pay or
reimburse the worker in the first workweek for all visa, visa
processing, border crossing, and other related fees (including those
mandated by the government) incurred by the H-2B worker . . .'').
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[[Page 103211]]
2. Prohibiting Breach of Contract Fees and Penalties
DHS is adding text to the proposed provisions at 8 CFR
214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B) to clarify that a
prohibited fee may not be collected from a beneficiary ``or any person
acting on the beneficiary's behalf.'' This revision responds to public
comment in that it strengthens the proposed language in the NPRM
prohibiting the charging of breach of contract fees by barring non-
monetary penalties or penalties imposed on a worker or anyone acting on
behalf of the worker.
3. Similar Employment Services
Based on feedback from commenters requesting greater clarity with
respect to the phrase ``similar employment services,'' DHS is amending
its proposed provisions at 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B) to clarify that ``similar employment service refers
to any person or entity that recruits or solicits prospective
beneficiaries of the [H-2] petition.'' This clarification addresses
commenters' feedback as to what ``similar employment services'' means.
4. Extraordinary Circumstances Standard
In response to public comments, DHS is making several changes to 8
CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR 214.2(h)(6)(i)(B)(1) to clarify the
standards under which a petitioner will be held accountable for its own
prohibited fee-related violations or those of its employees. These
changes include removing the proposed ``rare and unforeseeable''
language, as this phrase was always meant to specifically explain
``extraordinary circumstances'' and not create another standard
separate and apart from ``extraordinary circumstance.'' DHS is also
removing the proposed ``To qualify for this exception'' language
because this phrase was intended only to refer to the ``extraordinary
circumstances'' exception, not to create another exception. In
addition, new 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1) requires the petitioner to demonstrate that it
``made ongoing, good faith, reasonable efforts to prevent and learn of
the prohibited fee collection or agreement by its employees throughout
the recruitment, hiring, and employment process'' instead of
``significant efforts to prevent prohibited fees prior to the
collection of or agreement to collect such fees.'' These changes
clarify what was meant by ``significant''; moreover, they clarify the
petitioner's obligation to not only prevent prohibited fees before the
collection of or agreement to collect such fees occurs, but also to
prevent and learn of any collection or agreement to collect such fees
on an ongoing basis given that such fees could be collected or agreed
upon at various points in time during the recruitment, hiring, or
employment process. DHS is also deleting duplicative language about the
petitioner's obligation to fully reimburse all affected beneficiaries.
5. Due Diligence Standard
In response to public comments, DHS is making several changes at 8
CFR 214.2(h)(5)(xi)(A)(2) and 8 CFR 214.2(h)(6)(i)(B)(2) to clarify 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. Specifically,
DHS is foregoing the proposed ``did not know and could not, through due
diligence, have learned'' language and instead requiring the petitioner
to demonstrate ``ongoing, good faith, reasonable efforts to prevent and
learn of the prohibited fee collection or agreement by such third
parties throughout the recruitment, hiring, and employment process.''
This is not intended to be a substantive change, but instead is
intended to clarify what DHS meant by ``due diligence'' and to better
align the regulatory language at 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1) which also requires the same ``ongoing, good
faith, reasonable efforts.'' Further, new 8 CFR 214.2(h)(5)(xi)(A)(2)
and 8 CFR 214.2(h)(6)(i)(B)(2) require the petitioner to take immediate
remedial action as soon as it becomes aware of the payment of or
agreement to pay the prohibited fee, which was missing from these
provisions as proposed in the NPRM. The only difference in the
evidentiary requirements at new 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1), compared to new 8 CFR 214.2(h)(5)(xi)(A)(2) and 8
CFR 214.2(h)(6)(i)(B)(2), is that prohibited fee-related violations by
the petitioner or its employees, unlike those by third parties, will
require an additional showing that extraordinary circumstances beyond
the petitioner's control resulted in its failure to prevent collection
or entry into agreement for the collection of prohibited fees in order
to avoid denial or revocation of an H-2 petition on notice.
6. Application of the Prohibited Fee Provisions, and 1- and 3-Year
Denial Periods
As discussed in response to public comments, DHS is clarifying in
this final rule how it will apply the revised provisions governing the
collection of or agreement to collect prohibited fees. Namely, the
denial or revocation of H-2 petitions under the provisions of this
final rule will apply only to petitions filed on or after the effective
date of this rule. New 8 CFR 214.2(h)(5)(xi)(A)(1)-(2) and 8 CFR
214.2(h)(6)(i)(B)(1)-(2). Similarly, DHS is clarifying that the 1-year
and 3-year additional denial periods of H-2 petitions based on the
denial or revocation of petitions for collection or agreement to
collect prohibited fees will apply in cases where the denial or
revocation of the H-2 petition was made on a petition filed on or after
the effective date of this final rule. New 8 CFR 214.2(h)(5)(xi)(B)-(C)
and 8 CFR 214.2(h)(6)(i)(C)-(D). Petitions filed before the effective
date of this final rule will be subject to the provisions in place
before this final rule. DHS has made edits to the relevant regulatory
provisions to ensure consistent application and transparency for the
public.
7. Clarifying When a Designee May Be Reimbursed
DHS is adding language at new 8 CFR 214.2(h)(5)(xi)(A)(2) and
(C)(1), and new 8 CFR 214.2(h)(6)(i)(B)(2) and (D)(1), to clarify that
a beneficiary's designee may be reimbursed only if the affected
beneficiary(ies) cannot be located or is (are) deceased. These are
clarifying, non-substantive changes. While proposed 8 CFR
214.2(h)(5)(xi)(A)(1) and 8 CFR 214.2(h)(6)(i)(B)(1) contained the
clarifying clause ``only if such beneficiaries cannot be located or are
deceased,'' DHS never intended for this to apply only when the
prohibited fee was collected by the petitioner pursuant to proposed 8
CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR 214.2(h)(6)(i)(B)(1). To better
ensure parity in the regulations, DHS is adding the same or similar
clause to the other prohibited fee provisions addressing a prohibited
fee collection or agreement by an agent, attorney, employer,
facilitator, recruiter, or similar employment service, or any joint
employer at new 8 CFR 214.2(h)(5)(xi)(A)(2) and (C)(1), and new 8 CFR
214.2(h)(6)(i)(B)(2) and (D)(1).
B. Application of Mandatory Grounds for Denial
DHS is clarifying in this final rule and discussing in more detail
in response to
[[Page 103212]]
public comments how it will apply the new mandatory grounds for denial.
With respect to denials based on final administrative
determinations made by the Secretary of Labor or the Governor of Guam
to debar the petitioner, USCIS will deny a petition pursuant to new 8
CFR 214.2(h)(10)(iv)(A)(1) if it is filed during the debarment period
or if the debarment occurs during the pendency of the petition, as
proposed in the NPRM. 88 FR 65040, 65057-58 (Sept. 20, 2023). This
final rule adds language clarifying that this provision will only apply
if the petition is filed on or after the effective date of the rule and
the final administrative determination to debar the petitioner is
issued on or after the effective date of the rule.
Similarly, as proposed in the NPRM, USCIS will deny petitions
pursuant to new 8 CFR 214.2(h)(10)(iv)(A)(2) if a finding of fraud or
willful misrepresentation of a material fact was included in the
initial denial or revocation of a prior petition if such decision was
issued during the pendency of the petition or within 3 years prior to
filing the petition. 88 FR 65040, 65058 (Sept. 20, 2023). This final
rule rephrases the provision for clarity and adds language specifying
that this provision will only apply if the final denial or revocation
decision is made on a prior petition filed on or after the effective
date of the rule.
When it comes to mandatory denials based on violations of INA sec.
274(a) under new 8 CFR 214.2(h)(10)(iv)(A)(3), USCIS will deny
petitions if there is 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, as proposed in the NPRM. 88 FR
65040, 65058 (Sept. 20, 2023). This final rule adds language clarifying
that this provision will only apply if the final determination of
violation(s) under section 274(a) of the Act is made on or after the
effective date of the rule and if the petition is filed on or after the
effective date of the rule.
C. Application of Discretionary Grounds for Denial
DHS will apply the discretionary grounds for denial under new 8 CFR
214.2(h)(10)(iv)(B), as proposed in the NPRM. 88 FR 65040, 65058-60
(Sept. 20, 2023). This final rule adds language clarifying that this
provision will apply to petitions filed on or after the effective date
of this final rule, regardless of whether the action(s) or the
violation(s) underlying the determination of violation(s) of the
discretionary grounds for denial occurred before, on, or after the
effective date of this final rule.
D. Discretionary Grounds for Denial
In response to comments, DHS is adding new 8 CFR
214.2(h)(10)(iv)(F) to state that, if USCIS has determined in the
course of a previous adjudication that a petitioner (or the preceding
entity, if the petitioner is a successor in interest) has established
its intention and ability to comply with H-2A or H-2B program
requirements notwithstanding relevant violation determinations under
paragraph (h)(10)(iv)(B), USCIS will not seek to deny a subsequent
petition under paragraph (h)(10)(iv)(B) of this section based on the
same previous violation(s) unless USCIS becomes aware of a new material
fact (such as a repeat of the previous violation(s)) or if USCIS finds
that its previous determination was based on a material error of law.
At 8 CFR 214.2(h)(10)(iv)(B), DHS is making non-substantive changes
to replace ``or'' with ``and/or'' to clarify that USCIS may deny a
petition if the petitioner (or successor in interest) has not
established its ``intention and/or ability to comply with H-2A or H-2B
program requirements.'' Consistent with the NPRM, the petitioner must
demonstrate that it has both the intent and ability to comply with H-2
program requirements, and USCIS can deny a petition under this ground
if the petitioner has not established either its intent to comply with
H-2A or H-2B program requirements, or its ability to comply with H-2A
or H-2B program requirements, or both.
E. Conforming Changes To Align With the USCIS Fee Schedule Final Rule
As DHS proposed to eliminate the eligible countries lists from 8
CFR 214.2(h)(5)(i)(F) and 214.2(h)(6)(C), DHS also proposed to remove a
reference to the eligible countries list from 8 CFR 214.2(h)(2)(ii)
which, at the time of the NPRM, allowed an unlimited number of H-1C, H-
2A, H-2B, and H-3 beneficiaries to be requested on a single
nonimmigrant petition. After the publication of the NPRM, DHS published
the Fee Schedule Final Rule (``Fee Rule'') on January 31, 2024, and
that rule went into effect on April 1, 2024. 89 FR 6194. Most
relevantly, the Fee Rule replaced the language in 8 CFR 214.2(h)(2)(ii)
allowing the grouping of an unlimited number of H-1C, H-2A, H-2B, and
H-3 beneficiaries on a single nonimmigrant petition and imposed a limit
of 25 named beneficiaries. Therefore, in addition to amending the
language in final 8 CFR 214.2(h)(2)(ii) to remove the reference to the
eligible country list, this provision has been amended to reflect the
change made by the Fee Rule.
F. Severability
In the severability clause contained in this final rule, DHS has
identified the second level paragraphs (for example, (h)(6)) in which
the severable amended provisions contained in this final rule can be
found. These references along with the date of the final rule are
intended to better identify the severable provisions and differentiate
them from the existing provisions in 8 CFR 214.2 that are not being
impacted by this final rule.
IV. Response to Public Comments on the Proposed Rule
A. Summary of Comments on the Proposed Rule
DHS received a total of 1,944 public comment submissions in Docket
USCIS-2023-0012 in response to the NPRM. Of the submissions, 223 were
unique submissions, 1,714 were form letter copies, 3 were duplicate
submissions, 1 was out of scope, 2 were foreign language submissions,
and 1 was a partial foreign-language submission. The majority of
comment submissions originated from individual or anonymous commenters,
including attorneys and individual employers or farmers. Other
commenters included companies, trade and business associations,
advocacy groups, professional associations, unions, research
organizations, Federal elected officials, State or local government
agencies, farming or agricultural entities, a religious organization,
and a foreign government. While the great majority of comment
submissions (1,844) were supportive of the rule, some commenters (7)
expressed general opposition to the rule, and many commenters (87)
offered mixed feedback, such as by providing both support for and
opposition to various provisions of the proposed rule throughout their
comment, or by generally providing support or opposition but with
suggested revisions.
B. General Feedback on the Proposed Rule
1. General Support for the Rule
a. Positive Impacts on Nonimmigrants/Workers/Noncitizens,Their
Communities, and Support Systems
Comment: Approximately 1,850 submissions, including a large form
letter campaign, discussed the proposed rule's positive impacts on H-2
beneficiaries, their communities, and support systems.
[[Page 103213]]
A few individual commenters endorsed USCIS' efforts to advance
protections and flexibilities for H-2 workers on the basis that such
measures would be responsive to the needs of nonimmigrants and their
support systems. Numerous commenters, including individual commenters,
unions, joint submissions, advocacy groups, and a group of Federal
elected officials, stated that the proposed rule would address long-
standing issues of abuse, exploitation, and trafficking among H-2
workers by allowing workers to leave an abusive employer in search of
outside opportunities, enhancing enforcement against retaliation, and
protecting visa status for those seeking lawful permanent residence.
Several individual commenters added that the proposed rule's efforts to
provide flexibility and protections for H-2 workers would enhance
workers' well-being and rights, as well as reporting practices.
Similarly, a few individual commenters stated that the changes to
nonimmigrant worker protections would represent a positive step towards
equality and addressing health equity disparities by ensuring proper
compensation, appropriate physical conditions, legal protections, and
equal rights and opportunities relative to U.S. citizens.
Several individual commenters, including an advocacy group, and a
couple of joint submissions provided examples of abusive and
exploitative behavior--such as what was seen in ``Operation Blooming
Onion,'' \13\ employer retaliation against workers for protesting
hazardous conditions, and other anecdotes from H-2 workers that they
said showed the need for increased protections, including those
proposed in the NPRM. A couple of individual commenters wrote that with
the increase in extreme heat resulting from climate change, H-2 workers
need further protection.
---------------------------------------------------------------------------
\13\ 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) (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.
---------------------------------------------------------------------------
Numerous individual commenters and a form letter campaign stated
that DHS has a responsibility to protect workers' rights, as H-2
workers help to provide food for the U.S. public, serve as the
``backbone'' of the U.S. agricultural industry, help U.S. society
function, and as a result, strengthen U.S. national security. The form
letter campaign added that the proposed rule would ``not only protect
the rights and dignity of farm workers but also contribute to the
welfare and security of [the] nation's agricultural workforce.''
Several individual commenters and a trade association commented that
implementing measures to protect H-2 workers while ensuring their fair
treatment would align with U.S. and agriculture industry values. An
individual commenter added that farm workers are vital members of
communities they work and live in, and that strengthened protections
would benefit local, regional, and national communities.
A couple of individual commenters and a couple of joint submissions
including one from a union and numerous advocacy organizations stated
that domestic farm workers' labor conditions are undermined by the
exploitation of H-2 workers, highlighting the necessity of the proposed
rule. An individual commenter stated that the proposed rule
demonstrates DHS's commitment to listening to those working in the
agriculture industry, including unions and organizations that represent
migrant and non-English speaking agriculture workers. A joint
submission from a union and numerous advocacy organizations contained
comments from H-2 workers voicing support for the proposed rule changes
on the basis that it would improve their job security and working
conditions, and allow them to better provide for their families.
Response: DHS appreciates public commenters' general support for
this rulemaking and for the Department's ongoing efforts to advance
protections and flexibilities for H-2 workers. As discussed earlier,
DHS is cognizant of the importance of temporary nonimmigrant workers
for agricultural and nonagricultural employers and of the positive
impacts these workers contribute to local and regional economies in the
United States. DHS agrees with the general support of the majority of
commenters that the changes adopted in this rule will help to reduce
the H-2A and H-2B programs' vulnerabilities and better ensure the
rights and dignity of H-2 workers.
b. Positive Impacts on Employers/Petitioners/Farmers, Employment
Service Providers, Workforce, Industry, and Economy
Comment: Approximately 10 submissions discussed the proposed rule's
positive impacts on petitioners, employment service providers, the U.S.
workforce, U.S. industries related to the H-2 program, and the U.S.
economy.
An individual commenter expressed support for the proposed rule's
efforts to streamline the petition process for employers, reasoning
that these measures would reduce administrative and financial burdens
for employers while increasing program efficiency and accessibility.
Several commenters provided feedback on the potential positive
impacts the proposed rule would have on the U.S. agricultural workforce
and labor conditions for U.S. workers. Some individual commenters
stated that H-2 workers are essential for the well-being of the U.S.
economy and agriculture industry as they alleviate domestic workforce
shortages, and stated that as a result, the protections put forth in
the proposed rule are needed. Other individual commenters also voiced
support for the proposed rule on the basis that their farming
operations would benefit from their employees being able to stay for
temporary H-2A employment.
Response: DHS appreciates these commenters' support and their
recognition of the positive impacts the proposed rule would have to the
agricultural industry and the efforts to improve the Department's
administration of the H-2 programs. In addition to the rule's focus on
providing workers with better labor protections and increased
flexibility, streamlining the process for requesting temporary
nonimmigrant workers through reducing administrative and financial
burdens is a positive change for both employers and their employees.
c. Positive Impacts on the Government, Program Operability, and
Integrity
Comment: Approximately 10 unique submissions, including a form
letter campaign, discussed the proposed rule's impacts on the
government, program operability, and integrity.
Several commenters, including multiple advocacy groups, a joint
submission from a union, a form letter campaign, and a group of Federal
elected officials, endorsed the proposed rule's measures to improve
program oversight and enforcement, reasoning that these provisions
would deter misconduct by employers and recruiters while ensuring the
integrity and quality of H-2 programs. Other commenters, including an
advocacy group, a union, the form letter campaign, and joint
submissions, also expressed support for the proposed rule on the
grounds that it would create needed accountability and transparency in
the H-2 programs. A business association provided additional feedback
that the proposed changes would streamline requirements
[[Page 103214]]
between H-2A and H-2B programs, helping USCIS make the those program
more effective and efficient overall.
Multiple commenters, including a joint submission, advocacy groups,
a union, the form letter campaign, and a group of Federal elected
officials, stated that the proposed rule complemented DOL H-2 program
initiatives in making needed program integrity improvements and
enhancing DOL and DHS combined capabilities to protect workers from
exploitation.
Response: The Department appreciates the commenters' support for
the changes finalized in this rule and agrees that the new provisions
herein will have a positive impact on the effort to increase
programmatic efficiency, integrity, and accountability. As demonstrated
by the changes first proposed in the NPRM, and by those adopted as
final in this rule, DHS is committed to efforts that will better
protect workers from exploitation and deter misconduct by employers and
recruiters.
2. General Overview of Comments Opposing the Rule
a. Lack of Need for the Rule
Comment: An individual commenter expressed opposition to the rule
on the basis that there is no need for the proposed changes. In
addition to citing ``obstructive'' costs that will ``fall on general
taxpayer[s],'' the commenter reasoned that DOL already provides a
system of protection for temporary workers.
Response: DHS declines to revise the proposed rule in response to
this comment. The commenter does not identify any specific costs to
general taxpayers or offer data to support the claims of such costs
being ``obstructive.'' The commenter does not contest any of the
Government Accountability Office (GAO) studies or media reports of
abuse of H-2 workers occurring under current regulations that this rule
is designed to curtail. Further, while DOL provides protection for
temporary workers consistent with its authority and available
resources, the changes in this rule are intended to complement DOL
regulations to provide a more comprehensive framework for worker
protections.
b. Negative Impacts on Employers/Petitioners/Farmers, Employment
Service Providers, Workforce, Industry, and Economy
Comment: Approximately 10 submissions discussed the proposed rule's
potential negative impacts on petitioners, employment service
providers, the U.S. workforce, U.S. industries relevant to the H-2
programs, and the U.S. economy.
An individual commenter stated their concern that the proposed rule
could impact the availability and diversity of H-2 workers by deterring
employers from participating or causing them to pass costs to workers.
In support of this position, the commenter cited examples of proposals
that are not included in either the proposed rule or this final rule,
such as increasing filing fees, limiting the number of H-2B visas
available each fiscal year, and excluding certain occupations from the
H-2B program. In a separate comment, a research organization
acknowledged the new flexibilities the NPRM provided for workers but
stated that it does not make use of all the legal authorities available
and does not include any effort to streamline the process for
employers. The commenter expressed concern that the increased costs
would cause employers to leave the program and would lead to more
undocumented immigration and unauthorized employment.
Some commenters expressed concern that the proposed rule would
unfairly target employers who are largely compliant with labor laws and
regulations, with multiple associations and an individual commenter
stating that the Department's approach signals a belief that most
employers are acting in violation of labor laws and that the proposed
rule would debar good faith employers for minor infractions. In
addition, one of the trade associations stated that 80 to 90 percent of
H-2 workers return to previous employers and many refer friends and
family as indication that a majority of petitioners are compliant with
labor laws and treat workers fairly.
In addition, other commenters expressed concern over the general
costs that the proposed rule would have on employers. A trade
association cited statistics on increases in domestic worker wages that
have necessitated employers' reliance on the H-2 program, and stated
that without a dependable workforce and a predictable and stable wage
rate, farmers are making difficult decisions about the crops they grow
and may be forced out of business. An individual commenter expressed a
general, vague concern that the proposed rule ``would have a negative
impact on my farm and the local, healthy food we produce,'' without
further explaining the nature of the claimed negative impacts. Another
individual commenter expressed concern that with the ``lengthy'' list
of regulations both DHS and DOL have released in recent years, the new
proposed rule would complicate farmers' ability to hire the workers
they need in an already complex system. The commenter concluded that
broadening DHS's authority to come onto farmers' property with
``unfettered access'' to employees for interviews without a farmer or
agent present ``worr[ies] American farmers,'' and urged USCIS to ``find
solutions rather than create more problems.'' Another individual
commenter repeated these concerns and added that the ``stringent''
nature of the disciplinary process would exceed State requirements for
employers discharging U.S. workers, exacerbating disparities in
employment law. Referencing the Department's statement on the purpose
of the proposed regulation, a State agency voiced opposition to the
proposed changes to the H-2 programs, reasoning that such changes would
confuse entities in the agricultural industry and increase the
likelihood that they will violate labor laws in the future.
Response: While certain clarifying revisions that DHS has made in
this final rule may address some of the commenters' concerns as
discussed below, DHS is not making changes to the proposal in direct
response to these comments. While a commenter identifies higher fees
for filing petitions and certifications, this rule (both as proposed
and finalized) does not include any higher filing fees. The concern
from this commenter that employers would pass any costs on to workers
is not persuasive as employers are already prohibited from passing
costs to workers and this rule imposes new consequences on employers
who pass those prohibited costs to workers. With respect to limiting
which occupations qualify for H-2B visas, this rule did not remove any
occupations from H-2B eligibility. While DHS appreciates a commenter's
interest in streamlining the process, the commenter's broad
characterization of the H-2 process as being complicated and time-
consuming does not address the specific provisions contained in this
regulation. Among other things, the commenter offers no support in
speculating that extra costs imposed by this rulemaking will inevitably
cause employers to leave the program and result in more immigrants
working without documentation. DHS considered potential costs of this
rule and consequences to employers, such as impacts of site visits and
time estimates for these administrative visits, lost productivity due
to whistleblower revelations, and completing filings for
[[Page 103215]]
porting H-2 workers, and determined that the benefits of the proposed
provisions, as outlined in various parts of this rule, outweighed any
costs.
DHS also maintains that the rule does not unfairly target compliant
employers with loyal employees who return annually and refer their
friends and family or, as the commenter characterizes it, ``debar''
good faith employers for minor infractions. As discussed below, and in
the NPRM, this final rule is not punitive in nature, rather, it is
adjudicative in nature, and, as is extensively explained throughout
this preamble, intended to enhance the integrity of the H-2 program for
the benefit of good faith employers and their workers alike, and to
protect H-2 workers from exploitation and other abuses.
DHS nonetheless is revising the proposed due diligence language
regarding third parties' collection of prohibited fees to minimize
negative impacts on responsible employers who make ongoing, good faith,
reasonable efforts to prevent prohibited fees. Further, as explained
below, mandatory denial is reserved for final determinations involving
very specific egregious conduct, while discretionary denial occurs only
if USCIS has determined, taking into account the totality of the
circumstances and the factors outlined in the proposed regulations,
that the petitioner or successor has not established its intention or
ability to comply with H-2 program requirements. Moreover, DHS is
adding new 8 CFR 214.2(h)(10)(iv)(F) to assure petitioners with past
violations who have established their intention and ability to comply
with H-2A or H-2B program requirements in the course of USCIS'
adjudication of a previously filed H-2 petition that USCIS will not
seek to deny a subsequently filed petition under the discretionary
denial provisions of this final rule based on the same violation(s),
unless USCIS becomes aware of a new material fact or finds that its
previous determination was based on a material error of law.
Regarding concerns about increased wages, DHS reiterates that this
rulemaking does not address worker wages, which is an issue that
broadly falls within the jurisdiction of DOL.
DHS acknowledges that employers will need time to familiarize
themselves with the new regulations, which is why the final rule
clarifies that DHS will apply certain provisions in a manner that
balances the strong interest in enhancing H-2 program integrity and
protection of H-2 workers with, as discussed below, the interest in
providing petitioners with notice of new future effects applicable to
certain conduct. DHS has determined that the benefits of the rule,
including increased worker protections and flexibility as well as
program integrity, outweigh time costs to employers. Finally, DHS notes
that this rule does not create any new labor laws, which are under the
jurisdiction of DOL or other labor agencies.
3. Other General Feedback Regarding the Rule
a. General Feedback Without Stating Support or Opposition to the
Proposed Rule
Comment: An individual commenter provided remarks on labor abuses
in the H-2A visa program without stating a position on the proposed
rule. The commenter expressed the need to address concerns around abuse
and power imbalances through congressional action and comprehensive
immigration reform.
Response: DHS appreciates the commenter's concerns with the
vulnerabilities of H-2 workers and would implement any legislative
changes Congress might make. DHS, however, maintains that it has the
authority to improve the program under current laws as expressed in the
proposed rule and this final rule.
C. Legal Authority and Background
1. DHS/USCIS Legal Authority
a. Congressional Intent and Statutory Authority
Comment: Some commenters contended that DHS exceeded its authority
to make some of the proposed changes. A joint submission from former
DHS senior officials stated that, under the auspices of efficiency,
equity, and ease of the administrative process, the proposed rule
contradicts congressional authority and direction, makes semantic and
substantive changes to undermine immigration enforcement, and removes
one of our strongest defenses against the ``illegal job magnate
[sic].'' However, other commenters, a group of Federal elected
officials, stated that, in creating the H-2 programs, Congress struck a
``delicate balance'' between ensuring that industries have available
workers and that employers in those industries maintain a standard
level of protections, rights, and working conditions for those workers.
The commenters said this rulemaking effectuates congressional intent
for the H-2 programs by protecting vulnerable workers and holding
employers accountable. A union stated that DHS has the necessary
statutory authority to implement the proposed rule. Specifically, the
commenter quoted section 103(a) of the INA and section 402 of the HSA
as granting DHS broad authority to implement the regulations
contemplated in the NPRM. Citing case law, the commenter said courts
have consistently characterized section 103(a) of the INA as a broad
delegation of authority to the Secretary of Homeland Security. The
commenter further quoted section 214(c)(14) of the INA as granting the
Secretary specific authority to impose penalties on employers for ``a
substantial failure to meet any of the conditions of the petition,''
INA sec. 214(c)(14)(A)(i), 8 U.S.C 1184(c)(14)(A)(i), as well as the
authority to deny or approve petitions for foreign temporary workers,
INA sec. 214(c)(14)(A)(ii), 8 U.S.C. 1184(c)(14)(A)(ii). A form letter
campaign stated that the rule would create flexibility inherent in
DHS's immigration authority. The commenter said the proposed changes
complement the improvements created by the DOL H-2 rule by utilizing
the distinct authority of DHS to address abuses against farm workers.
Response: DHS agrees with commenters who indicated that DHS has
broad statutory authority to implement the changes proposed in the NPRM
through this final rule.\14\ DHS set out the legal authority for the
proposed changes in the NPRM in the Legal Authority section of the
preamble at 88 FR 65040, 65045 (Sept. 20, 2023), and has specifically
addressed the legal authority for the proposed changes in the sections
pertaining to those changes. Section 214(a)(1) of the INA, 8 U.S.C.
1184(a)(1), provides DHS with the authority to prescribe conditions for
the admission of nonimmigrants, and section 214(c)(1) of the INA, 8
U.S.C. 1184(c)(1), establishes the nonimmigrant petition process as a
prerequisite for obtaining H-2A or H-2B status (among others). Further,
section 274A(a)(1), 8 U.S.C. 1324a(a)(1), prohibits employment of
noncitizens who are not authorized for employment. Section
214(c)(14)(A) of the INA, 8 U.S.C. 1184(c)(14)(A), authorizes the
Secretary of Homeland Security to impose administrative remedies and to
[[Page 103216]]
deny H-2B petitions for a period of at least 1 but not more than 5
years based on the substantial failure to meet any of the conditions of
the H-2B petition or willful misrepresentation of a material fact in
the H-2B petition. Section 214(c)(14)(B) of the INA, in turn,
authorizes the Secretary to delegate to the Secretary of Labor the
authority Congress provided to DHS under section 214(c)(14)(A)(i) to
determine violations and impose administrative remedies, including
civil monetary penalties. In addition to these specific statutory
authorities, sec. 103(a) of the INA, 8 U.S.C. 1103, provides the
Secretary general authority to administer and enforce the immigration
laws and to issue regulations necessary to carry out that authority.
Further, sec. 402 the HSA, 6 U.S.C. 202, charges the Secretary with
broad authority to establish and administer rules governing the
granting of visas or other forms of permission to enter the United
States and establishing national immigration enforcement policies and
priorities.
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\14\ See Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2263
(2024) (``In a case involving an agency, of course, the statute's
meaning may well be that the agency is authorized to exercise a
degree of discretion. Congress has often enacted such statutes. For
example, some statutes `expressly delegate' to an agency the
authority to give meaning to a particular statutory term. Others
empower an agency to prescribe rules to fill up the details of a
statutory scheme, or to regulate subject to the limits imposed by a
term or phrase that leaves agencies with flexibility, such as
`appropriate' or `reasonable.' '') (cleaned up).
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In this final rule, DHS similarly addresses the sources of its
legal authority in the Legal Authority section. DHS is also addressing
questions and comments regarding its authority to make specific changes
in the respective sections of this rule. For example, DHS has
specifically addressed comments challenging its authority to revise 8
CFR 214.2(h)(16)(ii) to preclude denials of a nonimmigrant visa
petition solely on the basis of the filing of a permanent labor
certification or immigrant visa petition for that beneficiary in
Section IV.E.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, in the
subsection titled Opposition on the Basis of Legal Authority of this
final rule. In addition, in Section IV. D. 3.a. Legal Authority for
Compliance Reviews and Inspections, DHS also at length addresses
comments challenging the USCIS Fraud Detection and National Security
Directorate (FDNS) authority to conduct compliance reviews and
inspections.
DHS disagrees with the commenters asserting that DHS lacks
authority to implement the changes proposed in the NPRM, including the
mandatory and discretionary grounds for denial. Contrary to the
commenters' assertion, and as noted in the NPRM, the mandatory and
discretionary denial provisions best ensure the integrity of the H-2
programs and the protection of H-2 workers from exploitation and other
abuses based on and consistent with the statutory authorities discussed
above. DHS also disagrees that its proposed changes undermine
immigration enforcement and remove defenses against unauthorized
immigration and employment. To the contrary, the changes proposed in
the NPRM and finalized in this rule strike a balance between improving
the H-2 programs for workers and their U.S. employers while also
furthering program integrity. First, this final rule does not alter
DHS's authority to deny petitions, as is provided in sections 103(a),
214(a)(1), 214(c)(1), and 214(c)(14)(A)(ii) of the INA. Also, a number
of the changes made through this rulemaking facilitate lawful
participation in the H-2 programs. For example, and as discussed in
more detail elsewhere in this rule, H-2 portability, harmonizing grace
periods and periods of admission, removing the filing of a permanent
labor certification/immigrant visa petition as a sole impediment to
temporary petition approval, all in different ways help workers to find
new H-2 employment and/or to timely depart the United States while
maintaining their status. These protections in turn encourage workers,
who may seek to enter the United States, to go through the proper
channels of the temporary H-2 program and work for employers who need
temporary H-2 workers. Similarly, H-2 workers who may face an
unexpected cessation of employment or are exposed to adverse work
environment that merits a revocation of the petition would not be faced
with potentially finding other work without work authorization and/or
accruing unlawful presence that could result in future bars to entry,
which in turn might create the possibility that workers who are unable
to participate in the program may opt to enter the United States via
unauthorized means. Finally, contrary to the assertion by some
commenters that this final rule ``undermines'' immigration enforcement,
this final rule does not in any way limit the ability of DOL, pursuant
to the authority DHS has delegated to DOL under section 214(c)(14)(B)
of the INA, to impose appropriate civil monetary penalties and other
administrative remedies, or any other remedy authorized by law. This
final rule also does not limit the ability of U.S. Immigration and
Customs Enforcement (ICE) to engage in worksite enforcement or enforce
employment authorization rules.
Comment: A couple of trade associations said some proposed
enforcement changes appear to conflict with current law or lack legal
authority altogether. These commenters said DHS has proposed to
implement investigative and enforcement authority that conflicts with
DOL's investigative and enforcement authority in the H-2A and H-2B
programs, and fails to acknowledge the existing legal investigative and
enforcement structure. A couple of commenters, including one of the
trade associations and an individual commenter stated that the
Secretary of Homeland Security has delegated all of DHS's H-2B
enforcement authority to DOL. Citing case law, the individual commenter
stated that since this redelegation has been unchanged, the
investigative and enforcement power belongs exclusively to DOL Wage and
Hour Division (WHD), as DHS has ``incapacitated itself'' from
exercising any such authority. In addition, citing NPRM references to
``general'' authority, the commenter said Congress subsequently spoke
very specifically--even comprehensively--to the enforcement powers at
issue in the NPRM. The commenter said ``those very-general provisions''
simply do not address the H-2B program or the fact that the Department
has redelegated all of its authority.
Response: DHS disagrees that the changes conflict with the law or
lack legal authority or that DHS's investigative and enforcement
authority conflicts with DOL's or that DHS has delegated all of its
enforcement authority to DOL.
With respect to both H-2A and H-2B nonimmigrant classifications,
DHS has authority to make these changes under INA secs. 214(a)(1) and
214(c)(1), 8 U.S.C. 1184(a)(1) and 8 U.S.C. 1184(c)(1) and, with
respect to the H-2B classification, INA sec. 214(c)(14)(A), 8 U.S.C.
1184(c)(14)(A). In addition to those specific statutory authorities,
the Secretary has broad general authority under INA sec. 103(a), 8
U.S.C. 1103(a) to, among other things, administer the immigration
system, issue regulations and delegate certain duties to any employee
of former INS, including USCIS, as established by HSA sec. 451, 6
U.S.C. 271, and implemented through Delegation 0150.1 (Jun. 5, 2003).
In addition, USCIS has the additional authority to interrogate aliens
and issue subpoenas, administer oaths, take and consider evidence, and
fingerprint and photograph aliens under INA section 287(a), (b), and
(f), 8 U.S.C. 1357(a), (b), and (f), and INA section 235(d), 8 U.S.C.
1225(d). INA sec. 287. Through this final rule DHS is exercising the
delegated authority conferred upon it by Congress to ensure that
participants of the H-2 programs comply with applicable laws. In
particular, as it relates to ensuring compliance with the
[[Page 103217]]
H-2B program, under INA sec. 214(c)(14)(B), Congress explicitly
permitted DHS to delegate to DOL authority under INA sec.
214(c)(14)(A)(i) to impose certain administrative remedies and any
other remedy authorized by law. See INA sec. 214(c)(14)(B). In 2009,
DHS delegated this section 214(c)(14)(A)(i) authority to DOL See 88 FR
65040, 65046 n.5 (Sept. 20, 2023).
Significantly, the 2009 H-2B delegation to DOL cited in the NPRM is
limited to section 214(c)(14)(A)(i) of the INA (as specifically
authorized by section 214(c)(14)(B) of the INA), which focuses on
administrative remedies, including civil monetary penalties.
Notwithstanding the above-described delegation, DHS did not also
delegate its authority to deny petitions for certain periods of time
under INA section 214(c)(14)(A)(ii) pursuant to 214(c)(14)(B). A plain
reading of the statute makes clear that DHS's delegation authority
under section 214(c)(14)(B) does not extend to section
214(c)(14)(A)(ii). Furthermore, section 10.0 of the DHS-DOL Interagency
Agreement implementing the delegation states that ``[n]othing in this
IAA is intended to conflict with current law or regulation. If a term
of this IAA is inconsistent with such authority, then that term shall
be invalid, but the remaining terms and conditions of this IAA shall
remain in full force and effect.'' Thus, as described further below,
DHS maintains its authority to deny petitions filed by petitioners who
failed to follow applicable laws.
DHS recognizes that the delegation mentions DHS's authority to deny
petitions under section 214(c)(14)(A)(ii) of the INA, but it does so
solely in the context of enabling DHS to rely, in DHS's discretion, on
certain DOL findings of fact--after notice and an opportunity for a
hearing--made by DOL in the context of DOL exercising authorities it
was delegated under section 214(c)(14)(A)(i). Specifically, the
delegation states that if DOL has issued a debarment order, DHS ``may''
(but need not) rely on the underlying DOL findings and ``take
appropriate action with respect to the petition, including exercising
[DHS] authorities under 214(c)(14)(A)(ii) of the INA, 8 U.S.C
1184(c)(14)(A)(ii) and other provisions of the immigration laws.''
Nowhere in the delegation, however, is it stated that DHS lacks the
authority to make its own findings of fact, provide notice and an
opportunity for a hearing, or deny petitions in connection with its
exercise of section 214(c)(14)(A)(ii) authority. Under the statute and
the implementing Interagency Agreement, DHS may deny H-2B petitions for
a given period in two potential ways: (a) by relying on DOL findings,
or (b) after conducting its own hearing and by relying on its own
findings.\15\ DHS's section 214(c)(14)(A)(i) delegation does not in any
way limit DHS's authority under section 214(c)(14)(A)(ii), but findings
by DOL provide an additional way for DHS to obtain information helpful
or necessary to exercise its 214(c)(14)(A)(ii) authority, should facts
be uncovered in the course of DOL's exercise of section
214(c)(14)(A)(i) delegated authority. The use of the word ``may''
highlights the nonbinding nature of how DHS uses any findings by DOL
that DOL makes in the course of exercising any enforcement authority
that DHS delegated to DOL with respect to section 214(c)(14)(A)(i).
Under section 214(c)(1) of the INA, DHS--not DOL--is the sole U.S.
governmental agency authorized to determine whether an H-2 (or other H,
L, O, or P) petition may be approved.
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\15\ See sec. 5.6 of the IAA.
---------------------------------------------------------------------------
DHS, in its discretion, may avail itself of or rely on fact
determinations made by DOL in exercising its delegated authority under
section 214(c)(14)(A)(i). DHS, however, did not delegate its own
authority to make factual determinations (following notice and an
opportunity for a hearing) for purposes of section 214(c)(14)(A)(ii),
nor did DHS delegate its authority under section 214(c)(14)(A)(ii) of
the INA to deny H-2B petitions (or other petitions filed under INA
secs. 204 or 214(c)(1)) from petitioners determined by DHS--based on
its findings of fact, whether in choosing to rely on DOL's fact
findings or DHS's own or both--have violated applicable laws for a 1-
to 5-year period.
The new denial provisions in this rule, as applied to H-2B
petitions, are consistent with INA section 214(c)(14)(A). Specifically,
INA section 214(c)(14)(A) provides that DHS may deny H-2B petitions for
a period of at least 1 year, but not more than 5 years, based on the
substantial failure to meet any of the conditions of the petition or a
willful misrepresentation of a material fact in the petition. Under INA
section 214(c)(14)(D), the term ``substantial failure'' means a willful
failure to comply with requirements of INA section 214 that constitutes
a significant deviation from the terms and conditions of a petition. As
discussed in greater detail below, each of the violations triggering
new denial periods in this final rule, as applied to H-2B petitions,
stems from a willful failure to comply with program requirements. Such
a willful failure to comply would constitute a significant deviation
from the terms and conditions of the petition or a willful
misrepresentation of a material fact. Consistent with caselaw, DHS
interprets the term ``willfully'' in INA 214(c)(14)(A) to mean
``knowingly'' or ``recklessly,'' as distinguished from accidentally,
inadvertently, or in an honest belief that the facts are otherwise.\16\
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\16\ See, e.g., Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57
(2007) (``We have said before that `willfully' is a ``word of many
meanings whose construction is often dependent on the context in
which it appears; and where willfulness is a statutory condition of
civil liability, we have generally taken it to cover not only
knowing violations of a standard, but reckless ones as well.'')
(quotation marks and citations omitted); McLaughlin v. Richland Shoe
Co., 486 U.S. 128, 132-33, (1988) (``willful,'' as used in a
limitation provision for actions under the Fair Labor Standards Act,
covers claims of reckless violation); Trans World Airlines, Inc. v.
Thurston, 469 U.S. 111, 125-26 (1985) (same, as to a liquidated
damages provision of the Age Discrimination in Employment Act of
1967); United States v. Ill. Cent. R. Co., 303 U.S. 239, 242-43,
(1938) (``willfully,'' as used in a civil penalty provision,
includes '' `conduct marked by careless disregard whether or not one
has the right so to act'') (quotation marks and citation omitted);
Bedrosian v. United States, 912 F.3d 144, 152 (3d Cir. 2018)
(``[G]eneral consensus among courts is that, in the civil context,
the term [``willfulness''] often denotes that which is intentional,
or knowing, or voluntary, as distinguished from accidental, and that
it is employed to characterize conduct marked by careless disregard
whether or not one has the right so to act . . . In particular,
where willfulness is an element of civil liability, we have
generally taken it to cover not only knowing violations of a
standard, but reckless ones as well.'') (quotation marks and
citations omitted); Matter of Healy and Goodchild, 17 l & N Dec. 22,
28 (BIA 1979) (``knowledge of the falsity of a representation'' is
sufficient).
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Each mandatory denial ground in new 8 CFR 214.2(h)(10)(iv)(A), as
applied to H-2B petitions, requires a finding of willfulness that
comports with the applicable case law on willfulness. Specifically,
with respect to 8 CFR 214.2(h)(10)(iv)(A)(1), debarment by DOL from the
H-2B program requires that DOL has found either that the employer
willfully misrepresented a material fact or that the employer willfully
failed to comply with program requirements and the failure constituted
a significant deviation from such requirements. See 20 CFR 655.73(a);
29 CFR 503.19(a). DOL regulations defining willful violations for
purposes of INA sec. 214(c)(14), state, ``A willful misrepresentation
of a material fact or a willful failure to meet the required terms and
conditions occurs when the employer . . . knows a statement is false or
that the conduct is in violation or shows a reckless disregard for the
truthfulness of its representations or for whether its conduct
satisfies the
[[Page 103218]]
required conditions.'' \17\ 20 CFR 655.73(d); 29 CFR 503.19(b).
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\17\ See Temporary Non-Agricultural Employment of H-2B Aliens in
the United States, 80 FR 24042, 24086-87, 24129, 24139 (Apr. 29,
2015).
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A finding of willful material misrepresentation of a material fact
or a finding of fraud by USCIS, as relevant in 8 CFR
214.2(h)(10)(iv)(A)(2), likewise requires a finding of willfulness, in
accordance with established case law. In addition, under 8 CFR
214.2(h)(10)(iv)(A)(3) a finding of violation under INA section 274(a)
also requires the element of willfulness. In this regard, each
subsection of INA section 274(a) includes an element of ``knowing''
and/or ``reckless disregard'' indicating that a finding under INA
section 274(a) would meet the requirements of the term willfully
referenced in INA 214(c)(14) and as defined in applicable civil case
law.\18\
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\18\ For the purposes of civil liability (as opposed to criminal
liability), the term ``willful'' includes both knowing violations
and reckless violations. See, e.g., United States v. Hughes, 113
F.4th 1158, 1161-62 (9th Cir. 2024). See also, Safeco Ins. Co. of
Am., 551 U.S. at 56; McLaughlin, 486 U.S. at 132-33; Trans World
Airlines, 469 U.S. at 125-26; Ill. Cent. R. Co., 303 U.S. at 242-43.
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Finally, we note that, as a part of its application for a TLC, an
employer must attest that they will comply with applicable Federal,
State and local employment-related laws and regulations, and on the H-2
petition itself, they must also attest that they agree to the
conditions of H-2 employment, which limits participation in the H-2
program to those petitioners who have not engaged in the types of
criminal activities covered by INA section 274(a). Such a limitation is
intended to ensure the integrity of the H-2 program, insofar as
employers who have been found guilty of engaging in activities related
to the bringing in and harboring of certain aliens have a demonstrated
record of knowing or reckless disregard for adherence to the
immigration law. Given the seriousness of the violations described in
section 274(a), there is no assurance that they will take seriously
their obligation to abide by the terms and conditions of the H-2
program, or that they have the intention and ability to do so absent
the passage of a sufficient time period for them to demonstrate that
they in fact will abide by the terms and conditions of the H-2 program.
For this reason, DHS has determined that precluding approval of H-2
petitions for employers convicted of a violation of section 274(a) for
the period of time specified in this rule is necessary not only to
ensure compliance with the H-2 program but to serve as a disincentive
to employers from engaging in the types of criminal activities
specified in section 274(a) should they wish to avoid the mandatory
denial periods set forth in this rule. For these reasons, a violation
of INA section 274(a) therefore constitutes a willful violation of
section 214 that constitutes a significant deviation from the terms and
conditions of a petition that calls into question the petitioner's
intent and ability to comply with the requirements of the H-2 program.
In addition, the 1-year denial period for H-2B petitions set forth
in new 8 CFR 214.2(h)(6)(i)(C) stems from a willful failure to comply
with program requirements that constitutes a significant deviation from
the terms and conditions of the petition. Specifically, new 8 CFR
214.2(h)(6)(i)(C) will only apply after USCIS issues a decision denying
or revoking on notice an H-2 petition for violation of the prohibited
fee provision at paragraph (h)(6)(i)(B) or (h)(5)(xi)(A), or if a
petitioner withdraws a petition following USCIS issuance of a request
for evidence or notice of intent to deny or revoke the petition for
prohibited fees under one of those provisions. The cited provisions, as
finalized in this rule, enable a petitioner to avoid denial or
revocation--and thus avoid the 1-year denial period--by demonstrating
that it made ongoing, good faith, reasonable efforts throughout the
process to prevent and learn of the prohibited fee collection or
agreement, that it took immediate remedial action upon learning of the
fee, that it has made all necessary reimbursements, and, for cases
where the petitioner itself collected the fee, that its failure to
prevent the fee resulted from extraordinary circumstances beyond its
control. As discussed in the NPRM and in this final rule, the
prohibitions related to fees charged to workers are a longstanding and
important H-2 program requirement, and petitioners have to attest in
the H-2 petition that, among other things, they have taken reasonable
steps to ensure that prohibited fees are not being charged. As such, it
is a petitioner's responsibility and obligation to make ongoing, good
faith, reasonable efforts toward the prevention of such fees being
charged by its employees and by any third parties within the
recruitment chain, to take immediate remedial action if a violation
occurs, and to reimburse the affected parties. Accordingly, as the same
steps that are required to avoid denial or revocation are in fact
petitioner obligations for compliance with program requirements and/or
the terms and conditions of the H-2 petition, DHS considers the failure
to take steps described above in order to prevent the payment of
prohibited fees, and/or provide evidence that such steps were taken, to
constitute a substantial failure, that is, a willful failure to comply
with INA section 214 requirements that constitutes a significant
deviation from the terms and conditions of the H-2B petition.\19\
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\19\ In this regard, DHS notes that its regulations and petition
instructions have long prohibited petitioners and recruiters from
collecting prohibited fees and therefore violations of such
prohibitions necessarily constitute a significant deviation from
longstanding publicly known terms and conditions of a petition.
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Similarly, the additional 3-year period described in new 8 CFR
214.2(h)(6)(i)(D) only applies in instances where the petitioner has
failed to provide the evidence necessary to avoid denial or revocation
under paragraph (h)(6)(i)(B) or (h)(5)(xi)(A). Further, during this 3-
year period, USCIS may approve the petition notwithstanding such a
denial or revocation upon a showing that each affected beneficiary has
been reimbursed or that the beneficiary's designee has been reimbursed
if the beneficiary cannot be located or is deceased. DHS considers a
petitioner's failure to reimburse all relevant parties despite
knowledge of the reimbursement requirement, or failure to provide
evidence of such reimbursement, to constitute a willful failure to
comply with program requirements that constitutes a significant
deviation from the terms and conditions of the petition.\20\
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\20\ DHS has noted that there are steps a petitioner can take to
ensure they will be able to successfully provide reimbursement in
the event that a prohibited fee violation occurs. Specifically, in
the NPRM, DHS suggested that petitioners, as a matter of best
practice, 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, as well as obtain full designee information,
early on during the recruitment process, and to maintain and update
such information as needed to ensure the petitioner's ability to
comply with the reimbursement requirement. 88 FR 65040, 65056 (Sept.
20, 2023).
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As a matter of policy and condition of participation in H-2
programs, DHS is imposing denials based on a predecessor's substantial
failure to comply with program requirements or a willful
misrepresentation of material facts, including a predecessor's denial
under new 8 CFR 214.2(h)(6)(i)(C) or (D) and (h)(10)(iv), on any
successors in interest. While the acceptance of certain liabilities may
not be agreed upon by the successor within the documents underlying the
acquisition, merger, or other transfer resulting in a successor in
interest relationship, under this final rule, DHS has decided to extend
the
[[Page 103219]]
periods of denial based on a predecessor's willful failure to comply
with program requirements to successors in interest regardless of
whether any such successor in interest has agreed to succeed to all of
the liabilities of the predecessor entity. Accordingly, as proposed in
the NPRM and after this rule becomes effective, a successor in interest
will be subject to any applicable denial period stemming from the
violations of this rule. DHS has made this determination to prevent
predecessors that have willfully violated program requirements or
mispresented material facts from avoiding any consequences by simply
reorganizing into a successor entity. This regulation puts prospective
successors in interest on notice that they would assume liability for
the predecessor's willful violation(s). To permit successors in
interest to avoid successor liability would defeat the purpose/
objective of this regulation and would create a loophole to avoid the
consequences of a willful failure to abide by the terms and conditions
of the H-2 programs. This policy furthers the statutory purpose of
ensuring integrity in the H-2 programs.
Comment: An attorney commenter stated that the NPRM is premised on
the belief that there are no material differences between the H-2A and
H-2B programs, but they have been developed independently since 1986
and each is subject to its own statutory provisions. The commenter
wrote that failing to differentiate between the programs fails to
follow congressional policy and rewrites statute. The commenter also
said another major premise of the NPRM is the apparent conclusion that
H-2B workers deserve or are entitled to extensive regulatory
protection, but it is well-established that Congress created all H
visas to promote the national interests and alleviate U.S. labor
shortages for temporary positions by providing nonimmigrant labor. The
commenter said there is no ``credible statutory language, structure, or
legislative history suggesting that H-2B workers are a protected
class'' but instead they are ``merely a conduit to safeguard the true
protected class'' by reducing the incentive to bypass U.S. workers and
avoid wage depression. The commenter stated that the preamble includes
``virtually no discussion'' of the national interest, employer
interests, or the interests of even U.S. workers, while DHS is
effectively erecting a completely new and groundless regulatory
structure.
Response: DHS disagrees with the commenter's assertion that the
NPRM is premised on the beliefs that there are no material differences
between the H-2A and H-2B programs and that failing to differentiate
between them is contrary to congressional intent. While DHS generally
agrees with the commenter that the H-2 programs were created to
alleviate U.S. labor shortages, and thus promote the national interest,
those objectives are consistent with providing protections from abuses
common to both H-2A and H-2B workers. Further, the commenter stated
that the NPRM failed to address the interests of U.S. workers; however,
it is well established that providing protections for H-2 workers also
benefits U.S. workers.\21\ For example, the 2023 report of the H-2B
Worker Protection Taskforce stated that H-2B workers work alongside
U.S. workers in some of our country's most critical occupations, but
that structural disincentives to report or leave abusive work
conditions not only harm H-2B workers but also undermine the wages and
working conditions of U.S. workers who work with them.\22\ With respect
to the commenter's contention that the rulemaking fails to address the
national interest and employer interests, DHS also disagrees. The NPRM
specifically discussed the importance of the H-2 programs to U.S.
employers, including the expansion in their use in recent years in a
section titled Importance of the H-2 Programs and the Need for Reforms.
88 FR 65040, 65049 (Sept. 20, 2023). In this section DHS detailed the
administration's policies to increase interest and expand access to
these programs for employers, as well as the need to balance the
expanded use of the H-2 programs with greater protections for workers.
Id. The NPRM also specifically addressed the proposals that would most
benefit U.S. employers, such as portability, as well as both the
elimination of the eligible countries lists and the revision of the
calculation of the maximum period of stay for H-2 workers.
---------------------------------------------------------------------------
\21\ See generally Daniel Costa, EPI, ``Second-class workers:
Assessing H-2 visa programs' impact on workers'' (July 20, 2022)
(testimony before the Subcommittee on Workforce Protections in the
United States House Committee on Education and Labor), https://www.epi.org/publication/second-class-workers-assessing-h2-visa-programs-impact-on-workers/.
\22\ The White House, ``Strengthening Protections for H-2B
Temporary Workers: Report of the H-2B Worker Protection Taskforce''
(Oct. 2023), https://www.whitehouse.gov/wp-content/uploads/2023/10/Final-H-2B-Worker-Protection-Taskforce-Report.pdf.
---------------------------------------------------------------------------
DHS also explained that with respect to the H-2B program
specifically, the proposed regulations which are also being finalized
in this rule 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. 88 FR 65040, 65051-65052 (Sept.
20, 2023).
2. H-2 Program Background
a. Worker Vulnerability
Comment: A few commenters discussed the vulnerability of H-2
workers to labor abuses and expressed their support for additional
labor protections to be put into place. For example, a religious
organization stated that foreign workers are uniquely vulnerable given
that they are temporary workers, rely on their employers for basic
needs, often have a language barrier, and many other factors. The
commenter expressed their support for the Department's effort to
address ongoing issues within the H-2 programs. A union and a trade
association also expressed their support for additional worker
protections for H-2 workers, reasoning that H-2 programs are a public
benefit and that employers who use them need to be held to the highest
possible standards. Similarly, a joint submission expressed their
support for the proposed regulatory changes which they stated ``would
make some badly overdue improvements for these most vulnerable
workers.''
Response: DHS agrees with, and appreciates, the commenters'
feedback concerning the vulnerability of H-2 workers and the need for
programmatic reforms, as well as their overall support for the rule's
efforts to enhance H-2 worker protections.
b. Violations of Labor Laws
Comment: Several commenters discussed labor violation issues within
the H-2 programs and how employers can abuse their H-2 workers due to
excessive leeway and weak oversight. Some labor unions stated that the
program gives too much leeway to employers and that USCIS does not
effectively enforce existing labor rules. The commenters said that this
allows employers to bypass hiring procedures even though there are
domestic workers available for these jobs. A research organization
discussed how both H-2 programs have been plagued with controversy
regarding undocumented immigration and human trafficking. The commenter
cited reports from DOL showing that 70 percent of the audits for
temporary labor certifications (TLCs) led to enforcement actions
against the employer ranging from a warning to program debarment. The
commenter further stated that Department of State
[[Page 103220]]
(DOS) reports showed that these programs enabled human trafficking and
that between 2018 and 2020 there were 3,694 potentially identified
victims of labor trafficking within the H-2A program. Lastly, the
commenter noted that of over 200,000 investigations DOL had done in the
seven major H-2B industries, 80 percent found labor violations. A trade
association noted that DOL figures showed that only a small percentage
of farms, about 5 percent, accounted for 71 percent of all violations
over a 15-year period.
A union and a religious organization stated that they have
witnessed abuses against migrant workers such as charging fees for
basic services, inadequate housing, long work hours, and limited
training for the operation of heavy machinery. The commenters further
discussed how in addition to these abuses, farm workers are often
subject to restrictions on mobility, such as being prohibited from
leaving their residences, insufficient health care, and isolation from
the community. Lastly, a religious organization stated that workers
have reported practices where an employer works its employees for 1 or
2 months with no days off, then replaces them with a different group,
and repeats the process. The commenter stated that these practices
might even be considered human trafficking under the Trafficking
Victims Protection Act of 2000. A joint submission from a union and
numerous advocacy organizations noted that 72 percent of labor
trafficking victims between 2018 and 2020 reported holding an H-2A or
another temporary visa.
A union further discussed how recruitment fees can be predatory and
place a worker into an indentured servitude relationship with their
employer, and further stated that the H-2 programs are one of the
sources of modern forced labor. The commenter cited a study that it
said showed about half of all H-2A workers from Mexico surveyed between
2006 and 2011 took out loans to pay for these fees. A separate joint
submission from a union and numerous advocacy organizations brought up
reports that over half of H-2A workers paid recruitment fees, with some
upwards of $4,500. The commenter also brought up concerns related to
issues within the construction industry, and cited studies on how
foreign workers are more vulnerable to injuries in this dangerous
workplace environment.
Commenters also addressed violations related to wage theft and its
prevalence among H-2 employers. For example, a union cited studies that
it said showed how H-2B employers often pay H-2B employees below what
is required by State and Federal law and that this practice has led to
almost 2 billion dollars in stolen wages. The commenter noted that
another study showed that within the construction sector, foreign
workers earn about 24 percent less than domestic workers while in the
overall economy, this figure is about 11 percent. A joint submission
from a union and numerous advocacy organizations cited other studies
that they said showed 73 percent of the back wages and civil money
penalties owed by farm employers were due to H-2A violations, and when
investigated, agricultural employers are often found to be committing
wage or hour theft from employees. A different union noted that this
abuse leads workers to be deprived of job opportunities and subjected
to lower wages.
Response: DHS thanks these commenters, many of whom have on-the-
ground experience speaking to or working with participants in the H-2
programs, for bringing attention to the violations of various labor
laws that many H-2 workers experience and the harms they cause them.
Several of the provisions finalized in this rule, such as the
strengthened prohibited fee provisions and the new mandatory and
discretionary grounds for denial, aim to mitigate against some of these
harms and vulnerabilities.
c. Economic and Industry Reliance on H-2 Workers
Comment: A few commenters, including a religious organization,
discussed the current role of H-2 programs in the economy and how it is
being used to fulfill labor demands that the domestic workforce is
unable to meet. A few commenters discussed the use of the H-2 programs
in the agricultural sector and how the industry has become more reliant
on H-2A workers. A trade association stated that in part due to
increased industrial job opportunities in Mexico, Texas farmers have
begun to rely more heavily on H-2A workers to fill labor gaps. A
business association noted that due to a shrinking domestic workforce,
employers have had to rely more on H-2A workers in recent years and
that the number of H-2A workers that are hired can range between a few
dozen or thousands per entity. A separate business association
discussed how the number of H-2A agricultural workers in states like
Washington, Oregon, and Idaho has increased by significant margins in
the past few years. The commenter stated that the number of H-2A
workers in Washington has increased from 18,800 in 2017 to 38,664 in
2023, while in Oregon the number of H-2A workers increased by a third
between 2018 and 2021. The commenter also noted that about 90 percent
of these workers return to the same place of employment in the
following years.
A trade association noted that over the last decade, an aging
domestic workforce and changing economic conditions in Mexico have led
the agricultural industry in border states such as Texas to rely on H-
2A workers to meet labor demands that are difficult to fulfill through
domestic workers and Mexican day laborers. A professional association
stated that there was an acute need for the H-2 and other similar
programs to fill labor gaps in the U.S. economy, such as the
construction industry where the ratio of openings to employment has
climbed to 4.4 percent from 2.3 percent in 2015 and there were over
300,000 openings at the time of commenting.
Response: DHS is aware of the considerable increase in recent years
in the utilization of both the H-2A and H-2B programs by U.S. employers
and appreciates these commenters offering information on this growth.
As noted in the NPRM, both the H-2A and H-2B programs have experienced
significant growth over the last decade. H-2A visa issuances have
increased by over 365 percent over the last decade, and H-2B visa
issuances have nearly doubled over the last decade.\23\ 88 FR 65040,
65049 (Sept. 20, 2023). Whether due to U.S. workers seeking employment
opportunities in sectors other than agriculture, or due to an aging
domestic workforce, or for other reasons, the strong interest from U.S.
employers in seeking temporary workers through the H-2 programs is
apparent, as these commenters note. The changes to the H-2 programs
finalized in this rule will benefit these employers by further
streamlining and improving the overall integrity of the programs as
these programs grow.
---------------------------------------------------------------------------
\23\ As further explained in the NPRM, while Congress has capped
the number of H-2B visas available, the number of H-2B visas issued
has regularly far-exceeded the statutory cap as a result of
congressionally-provided limited authority to increase the cap over
the past several years. 88 FR 65040, 65049 (Sept. 20, 2023).
---------------------------------------------------------------------------
d. H-2B Program Size
Comment: A couple of commenters generally discussed the growing
size of the H-2 programs and, in particular, issues with the H-2B
program exceeding the statutory 66,000 cap in recent years. A union
expressed concern with how, through annual riders included in recent
appropriations laws and DHS regulations including
[[Page 103221]]
returning worker exemptions, the government has been able to
effectively increase the cap well above the 66,000 originally set when
the H-2B program was established. The commenter also expressed concern
that the increase in size and lax enforcement of labor laws has led to
an undercutting of domestic labor.
A research organization raised concerns over how the NPRM does not
discuss the impact of portability on the H-2B annual cap, the number of
extensions of stay with the same employer for the H-2B program, nor the
true size of the H-2B program in terms of the total number of H-2B
workers employed in a given fiscal year. The commenter noted that
publicly available data at the time of comment do not convey the total
number of positions filled by H-2B workers, which they stated was
``critical to know since H-2B workers who change employers or extend
with the same employer will have filled two positions under one slot
under the annual cap.'' The commenter said that the number of
beneficiaries approved for the H-2B program was important to know
because the number of H-2B beneficiaries has grown far beyond the
annual cap set by statute. The same commenter noted that USCIS
calculates the total number of H-2B workers by adding the number of
visas approved and the number of new H-2B workers that do not need
visas, but that it leaves out H-2B workers that were approved to
continue their status with the same employer or were approved to change
employers. The commenter said that a similar issue exists with more
recent data regarding the total number of H-2B workers because they do
not differentiate between a new worker and one that is extending their
current status or changing employers. Lastly, the commenter concluded
that over the past few years, there have been significantly more H-2B
workers than what is allowed by the statutory and supplemental caps.
The commenter estimated that there would be a similar proportion of H-
2B workers compared to the statutory and supplementary cap in 2023.
Response: As alluded to by a commenter, 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), 8 U.S.C.
1184(g)(1)(B). Under this semi-annual cap, 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. See INA sec. 214(g)(10), 8
U.S.C. 1184(g)(10). There are some exceptions to the cap, for example,
as workers in the United States in H-2B status who extend their stay,
change employers, or change the terms and conditions of employment are
not 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 id.
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. No
provisions adopted in this final rule allow DHS to exceed the statutory
limitation on the number of H-2B visas issued per fiscal year.
Similarly, no provisions adopted in this final rule alter the current
exemptions to the statutory cap for workers in the United States in H-
2B status who extend their stay, change employers, or change the terms
and conditions of employment.
In recent fiscal years, Congress has authorized the Secretary of
Homeland Security to temporarily increase the statutory cap. Before
authorizing the additional visa numbers, the Secretary, in consultation
with the Secretary of Labor, considers the needs of businesses and
other factors, including the impact on U.S. workers and the integrity
of the H-2B program. Most recently, on December 2, 2024, DHS and DOL
jointly published a temporary final rule (TFR) increasing the numerical
limit for FY 2025.\24\ Thisincrease is based on time-limited statutory
authority that does not affect the H-2B program in future fiscal years.
---------------------------------------------------------------------------
\24\ This increase in the cap is in accordance with Section 105
of Division G, Title I of the Further Consolidated Appropriations
Act, 2024, Public Law 118-47, as extended by sections 101(6) and 106
of Division A of the Continuing Appropriations and Extensions Act,
2025, Public Law 118-83, which gave the Secretary of Homeland
Security the authority to make available additional H-2B visas for
FY 2025.
---------------------------------------------------------------------------
DHS appreciates the commenter's analysis regarding the portability
provision but does not agree with the conclusion that DHS fails to
adequately assess the impact of the type of portability proposed on the
growth and overall size of the H-2B program. Much of the comment's
substance focuses on aspects of the H-2 program that, as described
above, would not be affected by this rulemaking and therefore should
not be considered as an impact of the rule. For instance, this
rulemaking does not establish the ability to extend stay nor does it
speak to which workers are cap exempt or subject to the respective
caps. DHS believes that the NPRM's discussion of the marginal impact of
portability on the affected population of porting workers is an
accurate and sufficient articulation of the impacts of this rule. See
88 FR 65040, 65074, 65079-80 (Sept. 20, 2023).
Additionally, DHS appreciates the commenters' analysis of available
H-2 data and agrees that the combination of data sources and methods
described in the comment leads to overcounting of the total universe of
H-2B workers in the country in a given fiscal year. More specifically,
the commenter noted that the H-2B Data Hub's ``Continuing Approvals''
field likely overcounts total H-2B workers because of a lack of data on
workers who switched employers or changed job conditions while at the
same employer. In order to address concerns raised by the commenter,
USCIS is providing relevant data in Table 2 and Table 3 below:
BILLING CODE 9111-97-P
[[Page 103222]]
[GRAPHIC] [TIFF OMITTED] TR18DE24.005
[[Page 103223]]
[GRAPHIC] [TIFF OMITTED] TR18DE24.006
BILLING CODE 9111-97-C
Regarding the comment that the increase in H-2 program size and
``lax enforcement'' of labor laws has led to an undercutting of
domestic labor, DHS disagrees and emphasizes that enforcement of labor
laws involving domestic labor generally falls under the jurisdiction of
DOL. DHS notes that, to avoid the undercutting of domestic workers as
mentioned by the commenter, it is a requirement under both H-2 programs
that the Secretary of Labor must certify that there are not sufficient
able, willing, qualified, and available U.S. workers who can perform
such services or labor.\25\ Additionally, H-2 employment may not
adversely affect the wages and working conditions of workers in the
United States.\26\ An H-2A or H-2B petition 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. 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 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.\27\
---------------------------------------------------------------------------
\25\ See INA secs. 101(a)(15)(H)(ii)(a)-(b), 8 U.S.C.
1101(a)(15)(H)(ii)(a)-(b), 218(a)(1), 8 U.S.C. 1188(a)(1); 8 CFR
214.2(h)(5)(ii), (h)(6)(i).
\26\ 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), (h)(6)(i).
\27\ See INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR
214.2(h)(5)(i)(A), (h)(5)(ii), (h)(6)(iii)(A), (h)(6)(v).
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D. Program Integrity and Worker Protections
1. Payment of Fees, Penalties, or Other Compensation by H-2
Beneficiaries
a. Use of Phrase ``Related to''
Comment: Several commenters, including a trade association, a
union, a joint submission, some advocacy groups, and a religious
organization, expressed support for conforming USCIS regulations to
DOL's regulatory language, such as the prohibition of fees ``related
to'' employment, or clarifying the term ``prohibited fee'' to include
any fee, penalty, or compensation. The religious organization expressed
support for the language change to prohibit fees ``related to'' H-2
employment in order to better protect workers and urged DHS to adopt
the regulation as proposed.
Response: DHS appreciates the commenters' support for conforming
USCIS regulations to DOL's regulatory language. These conforming
changes are expected to increase clarity regarding prohibited fees and
better protect workers. As discussed below, DHS is making some changes
to the proposed regulation in light of other comments that suggested
specific changes.
Comment: A union and a State agency generally supported the
language change to prohibit fees ``related to'' H-2 employment but
suggested that USCIS include a list describing prohibited fees
[[Page 103224]]
in the regulatory text, similar to the list in the preamble.
Response: As the commenters noted, the preamble of the NPRM
provided examples of fees that are ``related to'' H-2 employment
including, but not limited to, the employer's agent or attorney fees,
visa application and petition fees, visa application and petition
preparation fees, and recruitment costs.\28\ However, DHS declines the
suggestions to include this or another listing of specific prohibited
fees in the regulatory text. As noted in the NPRM, DHS is replacing the
term ``as a condition of'' with ``related to'' to substantially conform
with DOL prohibited fee regulations. DHS is also finalizing the
clarification that ``[t]he 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.'' New 8 CFR
214.2(h)(5)(xi)(A), (h)(6)(i)(B). As DOL regulations already provide a
non-exhaustive list of fees that are ``related to'' employment and thus
are the responsibility of the employer,\29\ it is unnecessary to repeat
that non-exhaustive list in DHS regulations.
---------------------------------------------------------------------------
\28\ 88 FR 65040, 65052 (Sept. 20, 2023) (citing DOL, WHD,
``Fact Sheet #78D: Deductions and Prohibited Fees under the H-2B
Program,'' https://www.dol.gov/agencies/whd/fact-sheets/78d-h2b-deductions).
\29\ See 20 CFR 655.20(o) (stating that fees ``related to'' H-2B
employment ``include 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''); 29 CFR 503.16(o) (containing a similar
list for fees ``related to'' H-2B employment); 20 CFR 655.135(j)
(stating that fees ``related to'' H-2A employment include ``payment
of the employer's attorney fees, application fees, or recruitment
costs'').
---------------------------------------------------------------------------
Comment: An attorney expressed concern with the phrase ``related
to,'' stating it was ``unrestricted'' and allows the Department to
``sweep up'' any and all violations, including violations that are
simply inadvertent or technical by ``even the most innocent employer.''
Response: DHS disagrees with the commenter's characterization that
the phrase ``related to'' is ``unrestricted'' and allows the Department
to ``sweep up'' any violations that are simply inadvertent or
technical. Instead, that phrase seeks to balance an interest in
protecting workers from prohibited cost-shifting by employers while
recognizing that not all payments or reimbursements by workers are
forbidden. Moreover, this change in terminology provides consistency
across agencies by conforming to the long-standing use of the phrase in
DOL regulations.\30\
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\30\ See 20 CFR 655.135(j) (H-2A); 20 CFR 655.20(o) (H-2B). 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.
---------------------------------------------------------------------------
The term ``related to'' is meant to be read broadly to ensure that
employers bear the cost of bringing in noncitizen workers under the H-2
programs and prevent employers from passing those costs to H-2 workers,
with the resulting consequences of indebtedness, intimidation, and
exploitation of nonimmigrant workers that can occur. This is consistent
with the intent expressed by DOL in promulgating its own prohibited fee
regulations, 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.'' 75 FR 6884, 6925 (Feb. 12, 2010); 73
FR 77110, 77158 (Dec. 18, 2008). However, the phrase ``related to'' is
not ``unrestricted,'' as the commenter claimed. Consistent with DOL
regulations, DHS recognizes that an H-2 employer is not responsible for
costs that are primarily for the benefit of the H-2 worker and will
finalize regulatory text making this clear. See new 8 CFR
214.2(h)(5)(xi)(A), (h)(6)(i)(B) (``This provision does not prohibit
petitioners (including their employees), employers or any joint
employers, agents, attorneys, facilitators, recruiters, or similar
employment services from receiving reimbursement from the beneficiary
for costs that are the responsibility and primarily for the benefit of
the worker, such as government-required passport fees.''). DHS
therefore disagrees with the commenter's concerns about the phrase
``related to'' being ``unrestricted.''
b. Clarification of Acceptable Reimbursement From the Beneficiary for
Costs That Are the Responsibility and Primarily for the Benefit of the
Worker
Comment: A professional association expressed support for the
clarification that some costs to workers are acceptable if they are for
the benefit of the worker and are the worker's responsibility. An
advocacy group also supported this new regulatory language, noting that
it improves clarity and affirms that an employer is responsible for all
costs related to an H-2 worker's employment, other than those costs
primarily for the benefit of the worker.
Response: DHS appreciates the commenters' support for the rule's
clarification of certain fees that may be reimbursed by H-2 workers. As
noted above, new 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B),
as modified, will clarify that the prohibited fees provisions do not
prohibit petitioners (including their employees), employers or any
joint employers, agents, attorneys, facilitators, recruiters, or
similar employment services from receiving reimbursement from the
beneficiary for costs that are the responsibility and primarily for the
benefit of the worker. DHS is slightly modifying this provision from
what was proposed by adding ``from the beneficiary.'' As noted in the
proposed rule, it is not the Department's intention 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.
Comment: Many commenters, including trade associations, a research
organization, and a joint submission, stated that DHS should provide
additional guidance on what costs, in addition to government-required
passport fees, may be considered ``the responsibility and primarily for
the benefit of the worker'' such that they are acceptable for
reimbursement by the worker. A professional association noted that
``[p]assport fees are expressly excluded in the definition of
prohibited fees'' but that ``there may be other fees that could benefit
both employers and the workers not clearly addressed in the proposed
rule.'' The commenter noted that ``[g]reater specificity would be
helpful in the scope of the definition of prohibited fees, given that
subsequent reimbursement would no longer remedy the error.''
Response: As explained in the NPRM and codified in this final rule,
fees that are ``related to'' H-2 employment are those that are the
responsibility of and primarily for the benefit of the employer and may
not be collected at any time from a beneficiary of an H-2A or H-2B
petition. See new 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B);
88 FR 65040, 65052 (Sept. 20, 2023) (stating that fees that are
``related to'' H-2 employment include, but are not limited to, the
employer's agent or attorney fees, visa application and petition fees,
visa application and petition preparation fees, and recruitment costs;
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.''). Thus, an employer may not seek
reimbursement from a worker for fees that are related to H-2
employment. However, an employer may seek reimbursement from a worker
for fees
[[Page 103225]]
that are ``the responsibility and primarily for the benefit of the
worker.'' As finalized at new 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B), fees that are ``the responsibility and primarily for
the benefit of the worker'' include ``government-required passport
fees.'' \31\ This intentionally mirrors DOL's language that its
prohibited fee provisions do not ``prohibit employers or their agents
from receiving reimbursement for costs that are the responsibility and
primarily for the benefit of the worker, such as government-required
passport fees.'' 20 CFR 655.20(o), 655.135(j). Since DOL's regulatory
language does not contain examples beyond government-required passport
fees, DHS also will not provide other examples in new 8 CFR
214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B).
---------------------------------------------------------------------------
\31\ See WHD, ``Fact Sheet #78F: Inbound and Outbound
Transportation Expenses, and Visa and Other Related Fees under the
H-2B Program,'' https://www.dol.gov/agencies/whd/fact-sheets/78f-h2b-fees; DOL, Field Assistance Bulletin NO. 2009-2 (Aug. 21, 2009).
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However, to be responsive to commenters' requests for additional
guidance on what costs, in addition to government-required passport
fees, may be considered ``the responsibility and primarily for the
benefit of the worker,'' DHS hereby clarifies that such fees may also
include H-4 visa fees for dependent family members and filing fees for
Forms I-539, Application to Extend/Change Nonimmigrant Status,
requesting extension of the same status for any H-4 dependents. There
may be other instances in which a fee is considered primarily for the
benefit of the worker, although, such instances will be limited in
light of the fact that employers are responsible for all costs
``related to'' H-2 employment.
c. Clarification of Acceptable Reimbursement to the Beneficiary for
Certain Costs That Are ``Related to'' H-2 Employment
Comment: A trade association urged DHS to allow employers to
reimburse workers for meals and other costs associated with their
travel to the United States, stating that this practice benefits
workers. A joint submission expressed concern that leaving the proposed
regulation vague about what other fees are acceptable for reimbursement
could result in inconsistent application of the regulation. A
professional association suggested that ```visa application' should be
removed from this section [of prohibited fees] because [visa
application fees, that is the DS-160 fee] is recognized elsewhere
justifiably as a reimbursable cost.''
Response: DHS recognizes that it is permissible, in certain limited
circumstances, for a worker to initially pay a fee related to H-2
employment and then to be reimbursed by the employer for that expense.
In such a case, the fee is still the responsibility of the employer and
may not be passed on to the worker, but reimbursement has been deemed
to be an allowable mechanism by which the employer can fulfill its
responsibility to pay the fee. For example, 20 CFR 655.20(j)(2) states
with respect to H-2B workers that ``[t]he employer must pay or
reimburse the worker in the first workweek for all visa, visa
processing, border crossing, and other related fees (including those
mandated by the government) incurred by the H-2B worker . . . .'' Thus,
all visa, visa processing, border crossing, and other related fees are
the responsibility of the employer, but DOL allows for the employer to
satisfy its obligation to pay these fees by reimbursing the worker
within the first workweek.
DHS does not intend to prohibit reimbursement of fees where such
reimbursement is specifically allowed by statute or regulations
governing the H-2 programs. Therefore, DHS is modifying the regulatory
text in this final rule at 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B) to add that ``This provision does not prohibit
employers from allowing workers to initially incur fees or expenses
that the employers are required to subsequently reimburse, where such
arrangement is specifically permitted by, and performed in compliance
with, statute or regulations governing the [H-2A/H-2B] program.''
In addition, nothing in the regulation prevents an employer from
seeking reimbursement from the worker after initially paying costs that
are the worker's responsibility and are primarily for the benefit of
the worker (such as passport costs). In determining the employer's
responsibility to cover expenses related to H-2 employment, the
question is not whether H-2 workers derive a benefit from payment of
such fees, but whether, under applicable regulations and guidance, the
payment is made primarily for the benefit of the employer.\32\
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\32\ See, e.g., 29 CFR 531.3(d)(1) (``The cost of furnishing
`facilities' found by the Administrator to be primarily for the
benefit or convenience of the employer will not be recognized as
reasonable and may not therefore be included in computing wages.'');
80 FR 24042, 24063 (Apr. 29, 2015) (``DOL's longstanding position is
that deductions or costs incurred for facilities that are primarily
for the benefit or convenience of the employer will not be
recognized as reasonable and therefore may not be charged to the
worker.''); see also DOL, ``Travel and Visa Expenses of H-2B Workers
Under the FLSA'' (Aug. 21, 2009) (stating that in determining which
pre-employment expenses incurred by the employee must be reimbursed
back to the employee, ``the question is whether these expenses for
H-2B nonimmigrant workers are `an incident of and necessary to the
employment, and therefore are primarily for the benefit or
convenience of the employer''), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FieldAssistanceBulletin2009_2.pdf.
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d. Prohibiting Breach of Contract Fees and Penalties
Comment: Several commenters, including multiple trade associations,
a union, and a joint submission, generally supported the inclusion of a
breach of contract or penalty as a prohibited fee but requested DHS to
clarify what constitutes a prohibited breach of contract fee or
penalty. For example, multiple trade associations and a joint
submission requested that DHS clarify what would constitute a breach of
contract fee or penalty in circumstances where workers abandon or are
terminated for cause from their work. The commenters requested that DHS
clarify that the employer would not be deemed to have charged a breach
of contract fee for failing to offer guaranteed work hours or provide
return transportation in those cases. The joint submission asked
whether the new regulation would preclude an employer from
incorporating into the H-2A or H-2B contract a ``no complete, no
rehire'' clause stating that workers will not be rehired for future
contracts if they resign without cause prior to the agreed-upon end
date.
Response: DHS will not consider the petitioner's failure to offer
guaranteed work hours, provide return transportation, and pay
subsistence costs as a breach of contract fee or penalty, where DOL or
DHS regulations relieve a petitioner of its responsibility to offer
guaranteed work hours, provide return transportation, and pay
subsistence costs for a beneficiary who has voluntarily left employment
or was terminated for cause. See, e.g., 20 CFR 655.20(y) (abandonment/
termination of employment for H-2B workers); 20 CFR 655.122(n)
(abandonment of employment or termination for cause for H-2A workers).
Similarly, with respect to the commenters' question about a ``no
complete, no rehire'' clause for a beneficiary who voluntarily left
employment or was terminated for cause, DHS will not consider this
clause a prohibited ``fee or penalty for breach of contract'' under new
8 CFR 214.2(h)(5)(xi)(A) or (6)(i)(B) so long as the consequence to the
worker is limited to not being rehired by the petitioner
[[Page 103226]]
and does not include a monetary or financial penalty or fee for such
termination or voluntary departure. However, DHS cautions that while
such a clause does not fall under the ``prohibited fee'' provisions, it
may implicate other statutory or regulatory provisions such as DOL's
prohibition on discrimination or retaliation under the H-2A program at
29 CFR 501.4. Petitioners and employers should take these other
provisions into account when adopting such a clause or taking actions
pursuant to such a clause.
Comment: A State agency stated it is ``understandable to not charge
excessive fees for the worker not completing the contract,'' but
expressed concern that by prohibiting the charging of breach of
contract fees, an employer could pay upfront several hundreds or
thousands of dollars for a worker, just for the worker to leave the job
after a short time without any consequences to the worker.
Response: DHS acknowledges that an employer may be required to
invest significant resources in petitioning for H-2 workers. However,
certain costs associated with participation in the H-2 program are the
responsibility of the employer. These costs remain the responsibility
of the employer even if the worker departs prior to the end of the
petition period and the employer may not seek to recover these costs
through a ``breach of contract'' fee or otherwise.
Comment: A few commenters, including advocacy groups and a
professional association, expressed support for the proposed changes
prohibiting breach of contract fees and penalties. An advocacy group
recommended that USCIS strengthen this language even further by
prohibiting non-monetary penalties or penalties imposed on a worker's
relations or anyone acting on behalf of the worker. The advocacy group
also proposed specific language adjustments for section
214.2(h)(5)(xi)(A) with corresponding changes for section
212.4(h)(6)(i)(B), to specify that ``Requiring a beneficiary or any
person related to the beneficiary or acting on the beneficiary's behalf
to sign a negotiable instrument or grant a security interest in any
collateral constitutes the collection of a prohibited fee.''
Response: In response to the comment from the advocacy group, DHS
is adding text to clarify that a prohibited fee may not be collected
from a beneficiary ``or any person acting on the beneficiary's behalf''
at new 8 CFR 214.2(h)(5)(xi)(A) and (6)(i)(B). This language is meant
to clarify that an employer may not circumvent these provisions by
collecting an otherwise prohibited fee from a third party (such as a
family member) acting on the beneficiary's behalf.
DHS declines to add the remaining suggested text to the final
regulation regarding ``a negotiable instrument or grant a security
interest in any collateral.'' While DHS agrees that prohibited fees may
be collected in a variety of ways, including by requiring a beneficiary
or someone acting on their behalf to grant a security interest in any
collateral, the changes to 8 CFR 214.2(h)(5)(xi)(A) and (6)(i)(B) to
prohibit any ``other fee, penalty, or compensation (either direct or
indirect), related to the H-2[A/B] employment'' are sufficiently broad
to cover this and similar types of scenarios. Additionally, while DHS
agrees that requiring a beneficiary or someone acting on their behalf
to sign a negotiable instrument (such as a promissory note) to pay a
prohibited fee would not be permissible, the phrases ``agreement to
collect'' and ``agreed to pay'' at 8 CFR 214.2(h)(5)(xi)(A)(1) and
(6)(i)(B)(1), and 8 CFR 214.2(h)(5)(xi)(A)(2) and (6)(i)(B)(2),
respectively, are sufficiently broad to cover this scenario and similar
types of scenarios. There may be other fact patterns that could
constitute the collection of or an agreement to collect a prohibited
fee, and as such, codifying the technical terms ``negotiable
instrument,'' ``security interest,'' and ``collateral'' is unnecessary.
e. Strengthening the Prohibited Fee Provisions
Comment: Citing reports and statistics showing the pervasiveness of
prohibited fees, an advocacy group welcomed the Department's efforts to
strengthen enforcement against such fees. Another advocacy group,
citing a statement from an H-2A worker, similarly expressed strong
support for DHS's efforts to provide more effective enforcement on
recruitment fees and other unlawful fees. A union generally endorsed
the Department's efforts to increase accountability for employers who
use foreign recruiters and other third-party agents through the
proposed fee provisions.
An advocacy group similarly expressed support for the proposal to
strengthen the existing prohibition on and consequences for charging
certain fees to H-2A workers. The commenter concurred with the
Department's assessment that the consequences for employers charging
prohibited fees could, in conjunction with the whistleblower
protections, reduce disincentives for workers to report prohibited
fees.
Citing various statistics and reports, a joint submission expressed
broad support for DHS's proposals with respect to prohibited recruiter
fees. The commenters agreed with the Department's rationale that
targeting employers who charge prohibited fees would also help to
target human and labor trafficking. The commenters concluded that the
pervasiveness of trafficking in the H-2A program and the egregiousness
of the associated crimes justify DHS's proposals and require the rule's
swift implementation.
A union expressed strong support for DHS's proposal to eliminate
the current regulatory exemptions that allow employers to avoid
liability for the charging of prohibited fees. The union reasoned that
the current regulations provide too many exemptions and eliminating
them would make it more difficult for employers to avoid the
consequences of their actions, as well as the actions of their agents.
An advocacy group expressed overall support for the proposed
language to strengthen the applicability of the prohibited fees
provisions while citing provisions that would narrow the circumstances
in which petitioners could avoid revocation or denial. The group
acknowledged that the ``very high standard'' established in the
regulations would require petitioners to take an active role in
ensuring that their employees do not charge prohibited fees, and that a
``mere lack of awareness'' would not allow petitioners to avoid
consequences. Citing examples, the commenter reasoned that many H-2
employers rely on employees to recruit new H-2 workers, without taking
any steps to ensure that these employees are not charging fees to their
recruits. The commenter additionally reasoned that H-2 petitioners are
already obligated to ensure their employees comply with various legal
obligations, so compliance with the H-2 regulations on prohibited fees
should not be an exception. While similarly describing the standards
under this section of the rule, another advocacy group emphasized the
need for employers to discourage their agents and employees from
charging prohibited fees, rather than allowing them to claim ignorance
of fees to avoid penalties. The group concluded that the proposed
affirmative obligations for employers would improve and maintain the
integrity of the H-2 program.
Response: DHS appreciates the broad support offered by these
commenters for the changes made in relation to strengthening the H-2
prohibited fees provisions. Despite existing regulatory provisions
against charging certain fees
[[Page 103227]]
to H-2 employees, incidents of workers reporting prohibited fees were
levied on them at some point during the recruitment and hiring process
remain pervasive, as the commenters note. The changes proposed in the
NPRM to enhance the integrity of the H-2 programs and provide
additional worker protections are adopted in this final rule with some
clarifying revisions; any amendments to those proposals based on public
comment are discussed in detail under the appropriate section.
Comment: Multiple commenters expressed concern with DHS's proposal
to eliminate 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, as summarized below.
A joint submission wrote that, under current regulations, employers
must take remedial action as a condition of approval, which provides
employers with a reasonable opportunity to resolve and remedy
violations that occur without their knowledge or involvement. The
commenters said that the proposal to remove such opportunities is
``unbalanced'' and penalizes employers disproportionately. Similarly, a
business association wrote that the proposal is concerning to
businesses and would cause unnecessary disruptions for well-meaning
employers that rely on the H-2 program to meet their workforce needs. A
research organization wrote that the proposal to remove the exception
to denial when an employer reimburses the fee before filing the
petition is ``unjustifiable,'' as it would create an automatic denial
in every situation where a prohibited fee is identified anywhere in the
chain of recruitment.
A few trade associations wrote that they supported strong
enforcement against the unlawful collection of or threats to collect
prohibited fees. However, they expressed concern that the proposal to
eliminate these exceptions would prevent employers from accessing the
program through correctional mechanisms (that is, through reimbursement
or correctional action with DHS) whereby they can rectify situations in
which the unlawful collection of fees occurred outside of their
knowledge, or where it was ``impossible'' to prevent unlawful fee
collection. A couple of these associations additionally wrote that
DHS's proposal to eliminate the exceptions ``takes a sledgehammer to an
issue that requires a scalpel.''
Another trade association similarly expressed support for
enforcement against prohibited fee collection, but said that the
proposal to eliminate the exemptions would prevent growers from
accessing a program on which they depend due to reasons ``far outside
of their control,'' including actors deliberately and deceptively
acting contrary to the employer's direction not to collect prohibited
fees. A few trade associations additionally reasoned that the
collection or threatened collection of prohibited fees often occurs in
home countries, and U.S. employers have limited control in such
situations, so it would be inappropriate to impose serious penalties
any time a prohibited fee is discovered. Another trade association
added that the Department's ``shortsighted'' proposal would disregard
the totality of the implications in such situations and would
negatively impact both employers and employees, rather than holding the
parties conducting the unlawful collection of fees accountable.
A business association wrote that the Department did not consider
other alternatives to removing the current exception, such as retaining
the exception to avoid petition revocation or denial only if workers
are fully reimbursed and where the petitioner had no knowledge of the
unlawful fee, and only denying or revoking a petition for egregious
cases where employers knowingly charged or threatened a prohibited fee.
A joint submission suggested that the Department consider making an
``exception contingent on the employer attesting, under penalty of
perjury, that it had no actual or constructive knowledge of the fee
scheme.'' The commenter further suggested that the Department make this
exemption inapplicable if there is evidence demonstrating that the
petitioner had direct involvement or actual knowledge of the scheme or
benefitted from it financially.
Response: DHS declines to make any revisions based on these
comments to its proposed strengthening of the H-2 prohibited fees
provisions. The proposed changes in the NPRM, and now finalized in this
rule, are meant to address, in part, two major vulnerabilities with
respect to current regulatory provisions requiring reimbursement of
beneficiaries as a condition of approval. First, DHS adopts these
strengthened provisions in recognition of the potential harm to
beneficiaries and in some cases their families who may have to borrow
or otherwise incur debt to pay prohibited fees. Indebted noncitizen
workers are more vulnerable to exploitation and coercive actions of
unscrupulous employers or agents working on the employer's behalf. So,
despite later reimbursement of the fees charged to these workers,
significant damage may have already occurred. Second, in finalizing
these new provisions, DHS recognizes that under the current, long-
standing regulatory framework, reports of prohibited fees paid by
beneficiaries remain prevalent.\33\ Current provisions allow
petitioners to avoid any liability for these types of fees being
charged in cases where they have reimbursed the worker, or if the
worker is unavailable, they claim reasonable efforts have been made to
locate the worker.
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\33\ See, e.g., GAO, GAO-10-1053, ``Closed Civil and Criminal
Cases Illustrate Instances of H-2B Workers Being Targets of Fraud
and Abuse'' (2010) (describing various instances when employer
charge excessive fees), https://www.gao.gov/assets/gao-10-1053.pdf;
GAO, GAO-15-154, ``Increased Protections Needed for Foreign
Workers'' (2015) (specifying instances of abuses during the
recruitment process, including the charging of prohibited fees),
https://www.gao.gov/assets/gao-15-154.pdf.
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Though reimbursing workers charged prohibited fees is vital, and
provisions adopted in this final rule require fully reimbursing such
workers or their designees, DHS's intent here is to maximize incentives
for petitioners to take affirmative measures to prevent workers from
being charged or threatened with these fees in the first instance. The
commenters' suggestions that DHS should maintain the current 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, do not adequately
recognize the harm already done to affected beneficiaries by having to
come up with the funds to pay those fees upfront. Similarly, the
commenters' suggestions to make an exception for petitioners who have
no knowledge of or direct involvement in the prohibited fees do not
adequately recognize the harm already done to affected beneficiaries,
and furthermore, may even incentivize petitioners to remain ignorant
about prohibited fee practices affecting their workers. These
suggestions also do not adequately address the inadequacies of the
current regulatory provisions which focus solely on reimbursement as
the appropriate remedy rather than providing incentives for a
petitioner to prevent these violations from occurring in the first
place.
f. Similar Employment Services
Comment: Multiple trade associations expressed concern about a lack
of clarity around ``similar employment services.''
[[Page 103228]]
Some of these associations regarded the lack of a definition for
``similar employment services'' as concerning given the Department's
push for employers to recruit from Northern Central American countries
through their Ministries of Labor. A few of the associations asked
whether ministries of labor would count as ``similar employment
services.'' Providing examples from recent cases of illegal activity
within a Northern Central American ministry of labor and the Georgia
State Workforce Agency, the commenters added that the vague provision
surrounding ``similar employment services'' is concerning for
employers.
Response: DHS thanks these commenters for their submissions
regarding clarification for the phrase ``similar employment services.''
Noting that this phrase has long been included in DHS H-2A and H-2B
regulations, it is reasonable to amend these provisions to offer
clarification for what may constitute ``similar employment services''
in the context of the strengthened prohibitions on charging H-2 workers
certain fees. Based on feedback from commenters, DHS is amending its
regulatory provisions at new 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B) to now read, ``The term `similar employment service'
refers to any person or entity that recruits or solicits prospective
beneficiaries of the [H-2] petition.'' In accordance with this
clarification, this includes recruitment or employment services offered
by private, nongovernmental individuals and entities, quasi-
governmental entities (such as private entities working jointly with
ministries of labor), and governmental entities (such as ministries of
labor).
g. Due Diligence Standard
Comment: An advocacy group welcomed DHS's clarification around the
petitioners' responsibility to conduct ``due diligence'' to ensure that
recruiters and other agents in their labor supply chain are not
charging prohibited fees. Another advocacy group wrote that workers
were generally optimistic that the due diligence provisions would cause
employers to be more cautious in the recruitment process, particularly
with regard to fees charged by third-party recruiters and their own
employees.
A joint submission generally acknowledged that under the proposed
rule, H-2 employers would be responsible for conducting due diligence
to ensure that their recruiters and other employees do not charge
workers unlawful recruitment or other fees. The commenters said that
the proposed provisions would strengthen the enforcement of
prohibitions on charging unlawful fees, which severely harm workers.
Response: DHS appreciates the support from these commenters. H-2
employers are responsible for ensuring that individuals and entities
that recruit, or that otherwise act on behalf of the employer and/or
the recruiter, comply with all H-2 program requirements, including the
prohibition on collection of fees related to H-2 employment. Based on
feedback requesting clarification as to what constitutes due diligence
that DHS received on its proposed rule, DHS is revising the provisions
introduced in the NPRM as discussed in detail below.
Comment: Numerous trade and business associations and a
professional association expressed concern with the requirement that
employers demonstrate to USCIS that they engaged in ``due diligence''
to prevent the collection of prohibited fees on the basis that the
provision lacks a clear explanation for satisfying the requirement and
is overly broad as to what ``due diligence'' would entail. A trade
association urged the Department to address this concern in the final
rule.
A joint submission wrote that the provisions do not offer a
definition of ``due diligence'' or provide examples of what this
requirement would look like, except to say that a written contract ``by
itself'' is insufficient. The commenters said that the Department's
attempt to mitigate uncertainty through this statement is inadequate to
protect against the provision's overreach. The commenters wrote that,
as the rule does not adequately apprise the regulated community as to
its obligations, the rule is impermissibly vague and violates due
process.
A couple of trade associations similarly remarked that the proposed
rule is impermissibly vague and fails to define what specific objective
steps must be taken to fulfill the ``due diligence'' requirement. The
associations said that the proposed rule's failure to discuss the
applicable standard of proof and failure to establish an objective
standard deprive the public of the opportunity to comment on the
proposal.
A trade association reasoned that the ``broad and vague'' wording
around due diligence would leave employers with a lack of understanding
of agency expectations and would create challenges for employers to
avoid penalties despite their ``good faith efforts'' to adhere to due
diligence obligations. The association additionally wrote that vague
due diligence requirements without parameters would prevent the
application of a consistent standard and raise the risk of penalization
for employers depending on how the agency interprets the requirement in
each situation.
Another association wrote that the proposed due diligence standard
is unreasonably broad and unattainable such that employers would
``never be able to reasonably meet its conditions.'' The association
further remarked that while the Department explains that a lack of
knowledge of an incident or even explicit contract terms prohibiting
such fees are not sufficient to meet the ``due diligence'' standard, it
does not explain what measures it would deem sufficient.
A research organization stated that, under the proposed rule, ``a
mere lack of awareness'' is no excuse for employers, yet the rule does
not offer advice to employers on what constitutes ``due diligence'' to
avoid mistakes or the collection of prohibited fees.
Response: DHS appreciates the attention paid by commenters on its
proposed provisions on prohibited fees and reiterates its commitment
that employers conduct due diligence to ensure all parties acting on
the employers' behalf comply with all H-2 program requirements. In
light of commenters' calls for additional clarity regarding the due
diligence standard, however, the Department is revising proposed
214.2(h)(5)(xi)(A)(2) and 214.2(h)(6)(i)(B)(2) to offer greater
clarification and simplification. Specifically, DHS is foregoing the
proposed ``did not know and could not, through due diligence, have
learned'' language and instead requiring the petitioner to demonstrate
``ongoing, good faith, reasonable efforts to prevent and learn of the
prohibited fee collection or agreement by such third parties throughout
the recruitment, hiring, and employment process.'' This revision is
intended to clarify what ``due diligence'' means and better aligns the
regulatory language at new 8 CFR 214.2(h)(5)(xi)(A)(2) and 8 CFR
214.2(h)(6)(i)(B)(2) with new 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1).\34\ This revision also
[[Page 103229]]
more clearly explains the petitioner's obligation to not only prevent
prohibited fee collection or agreement, but also an ongoing obligation
to prevent and learn of such fees, given that such fees could be
collected or agreed upon at various points in time during the
recruitment, hiring, or employment process. Although DHS is replacing
``due diligence'' with ``ongoing, good faith, reasonable efforts'' in
light of comments requesting clarity on the ``due diligence'' standard,
DHS emphasizes that is not a substantive change as ``due diligence''
and ``ongoing, good faith, reasonable efforts'' in this context require
the same diligent level of effort by the petitioner.\35\
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\34\ As will be discussed below, DHS is making corresponding
revisions to new 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1) to clarify the standards under which a
petitioner will be held accountable for its own prohibited fee-
related violations or those of its employees. As finalized, new 8
CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR 214.2(h)(6)(i)(B)(1) will
require the petitioner to demonstrate that it ``made ongoing, good
faith, reasonable efforts to prevent and learn of the prohibited fee
collection or agreement by its employees throughout the recruitment,
hiring, and employment process.'' This language replaces the
``significant efforts'' language in proposed 8 CFR
214.2(h)(5)(xi)(A)(1), 8 CFR 214.2(h)(6)(i)(B)(1), and also the
proposed ``due diligence'' language in proposed 8 CFR
214.2(h)(5)(xi)(A)(2), 8 CFR 214.2(h)(6)(i)(B)(2). These changes
clarify that the proposed ``significant efforts'' and ``due
diligence'' standards were not meant to be materially different from
each other.
\35\ One dictionary definition of ``due diligence'' is ``action
that is considered reasonable for people to be expected to take in
order to keep themselves or others and their property safe.''
Cambridge Dictionary, ``Due Diligence,'' https://dictionary.cambridge.org/us/dictionary/english/due-diligence; see
also Merriam Webster Dictionary (defining ``due diligence'' as ``the
care that a reasonable person exercises to avoid harm to other
persons or their property''), https://www.merriam-webster.com/dictionary/due%20diligence; Black's Law Dictionary (12th ed. 2024)
(``The diligence reasonably expected from, and ordinarily exercised
by, a person who seeks to satisfy a legal requirement or to
discharge an obligation.'').
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Further, new 8 CFR 214.2(h)(5)(xi)(A)(2) and 8 CFR
214.2(h)(6)(i)(B)(2) require the petitioner to take immediate remedial
action as soon as it becomes aware of the payment of or agreement to
pay the prohibited fee. While this requirement was initially proposed
for 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR 214.2(h)(6)(i)(B)(1), it was
not initially proposed for 8 CFR 214.2(h)(5)(xi)(A)(2) and 8 CFR
214.2(h)(6)(i)(B)(2), and is now included in the final regulatory text
to better ensure parity between 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1), and 8 CFR 214.2(h)(5)(xi)(A)(2) and 8 CFR
214.2(h)(6)(i)(B)(2). These changes also are responsive to comments
about the importance of ensuring that the petitioner take immediate
remedial action to resolve and remedy violations, which can include
immediate termination of the relationship with the recruiter or agent
(in addition to full reimbursement to the beneficiary or the designee).
DHS agrees with these comments and, as reflected by these changes,
emphasizes that a petitioner should take immediate remedial action as
soon as it becomes aware of the payment of or agreement to pay the
prohibited fee, regardless of whether the prohibited fee payment or
agreement to pay the prohibited fee was made to the petitioner, or to
its agent, attorney, employer, facilitator, recruiter, or similar
employment service, or joint employer as applicable.
To summarize, under new 8 CFR 214.2(h)(5)(xi)(A)(2) and 8 CFR
214.2(h)(6)(i)(B)(2), if it is determined that the beneficiary paid or
agreed to pay a prohibited fee related to the H-2 employment to any
agent, attorney, employer, facilitator, recruiter, or similar
employment service, or any joint employer as applicable, whether before
or after the filing of the H-2 petition, the petition will be denied or
revoked on notice unless the following factors are demonstrated through
clear and convincing evidence:
(1) The petitioner made ongoing, good faith, reasonable efforts to
prevent and learn of the prohibited fee collection or agreement by its
employees throughout the recruitment, hiring, and employment process;
(2) The petitioner took immediate remedial action as soon as it
became aware of the payment of or agreement to pay the prohibited fee;
and
(3) The petitioner fully reimbursed all affected beneficiaries or,
only if such beneficiaries cannot be located or are deceased, it fully
reimbursed the beneficiaries' designees.
Overall, these changes clarify what specific steps a petitioner
must take to avoid liability for prohibited fee collection or agreement
by a third party. These changes should help alleviate the commenters'
concerns about the proposed provisions being overly broad, vague,
unattainable, or having undefined standards. To provide further
clarity, DHS discusses additional non-exclusive examples of how a
petitioner may demonstrate that it made ongoing, good faith, reasonable
efforts in another comment response below. DHS assures petitioners that
the intent of the ``ongoing, good faith, reasonable efforts''
requirement is to ensure the integrity of the H-2 programs and to
provide worker protections by better ensuring petitioners exercise
ongoing reasonable efforts, based on the totality of the circumstances,
to prevent the payment or collection of prohibited fees.
Comment: A trade association said that placing the burden on
employers to root out prohibited fee collection among various actors,
is ``unfairly strict and impractical.'' The group wrote that, under the
proposed rule, employers could be held responsible for monitoring
actions hundreds or thousands of miles away. A few individual
commenters remarked that ``forcing'' employers to show due diligence
would be ``onerous'' and suggested that this work be carried out by
enforcement on recruiters. An individual commenter stated that the
provisions to deny or revoke H-2 petitions based on undefined standards
are ``heavy-handed and arbitrary.'' The commenter wrote that employers
would have to go to ``extreme lengths'' to show due diligence that they
worked to prevent prohibited recruitment fees under the proposed
provisions. A professional association similarly regarded the proposed
rule's standards as ``extremely high'' and ``relentless'' with respect
to employer requirements, penalties, and limited opportunities for
relief.
A trade association wrote that placing the burden on petitioners to
``police'' the payment of prohibited fees would be unreasonable and
unfair. The association remarked that it would not be feasible for
petitioners to conduct every step of recruitment themselves and thus,
they must rely on foreign recruiters. The association, along with
another trade association, said that, as proposed, DHS unfairly places
the burden on petitioners to prevent the collection of prohibited fees
and issues unjust consequences if they fail.
Other commenters claim that, by removing the knowledge requirement
from the violation and abolishing the current safe harbor provision,
the Department is proposing a ``strict liability system'' in which the
mere allegation of the payment or solicitation of fees results in the
petitioner being deemed guilty and then the petitioner must prove by an
extraordinarily high burden that he is innocent. A trade association
wrote that placing ``strict liability'' on U.S. employers for actions
taken by a foreign recruiter is not an appropriate solution. Another
association said that the broadly defined due diligence requirement
would amount to ``strict liability.''
A joint submission wrote that employers would be limited in their
ability to prevent wrongdoing by third parties, and they cannot
guarantee compliance with the rules at all times by all persons. While
acknowledging that the risk to employers may increase with the scale of
the agent or facilitators they hire, the commenters warned that the
proposed rule may have the opposite of its intended effect and instead
incentivize employers to hire smaller, less reputable, less ethical
agents or facilitators as they may be perceived to be easier to
monitor, which would result in less compliance and more worker
exploitation.
[[Page 103230]]
A professional association expressed opposition to the prohibited
fee provision that would impose liability on employers for the actions
of third parties. The association stated that employers would have to
take affirmative steps to demonstrate that the third party was not
engaging in prohibited conduct, or else be liable for the associated
penalties. The association warned that such punitive measures would
disincentivize employers to participate in the H-2 program to avoid the
risk of liability for actions outside of their control.
While articulating the need for petitioners to take steps to
monitor their supply chains, a professional association voiced concern
that employers cannot reasonably know everything that is happening. The
association said that petitioners should not be held liable for the
actions of third parties if they took immediate remedial action upon
learning about a potential violation.
Another trade association expressed concern that employers acting
in good faith and engaging recruitment services from vetted entities
would not be able to preclude the possibility of prohibited fees by any
one employee of a third-party entity and, under the proposed
provisions, would effectively be barred from the program no matter what
preventative measures they took. The association urged the Department
to be more judicious in considering what standards are fair to place on
the regulated community. The association concluded that the Department
should consider ``reasonable'' alternative measures, though offering no
specific proposals, to reduce instances of prohibited fee payments
while allowing employers to protect workers, rather than subjecting
them to ``strict liability'' for unknown actions of third parties.
A couple of trade associations expressed concern that employers
would be held liable for actions by individuals who are not in
contractual privity with them. The associations also stated that the
Department's proposal fails to account for varying circumstances and
different actors in the context of the collection of prohibited fees.
For example, the associations indicated that under the proposed rule,
employers would be liable for actions beyond their control, such as the
collection of improper fees by foreign government officials. In
considering these issues, the associations regarded DHS's proposal to
punish employers for actions by third parties beyond their control,
including those with whom they have no contractual relationship, as
``imprudent'' and ``unreasonable.''
Response: DHS disagrees with commenters' statements that the
Department is being unfair, impractical, unreasonable, or imprudent in
ensuring the burden is on petitioners to properly monitor and assume
responsibility for the actions of third parties engaging in recruitment
activities on its behalf. DHS acknowledges the comments that
petitioners cannot always conduct each step of the recruitment process
themselves and therefore often rely on foreign recruiters, agents, or
other third parties to do so. Nevertheless, it is reasonable to place
the burden on the petitioner to ensure that prohibited fees are not
collected by such third parties. The petitioner, in hiring recruiters
or other third parties, is in a position to condition the hiring of
such parties upon the latter monitoring the activities of those further
down the recruitment and hiring chain, even if the latter are located
outside of the United States. In this regard, it is in the mutual
interest of petitioners and recruiters to ensure against denials of
petitions based on payment of prohibited fees. Furthermore, DHS reminds
these commenters of the long-standing regulatory provisions against
prohibited fees being charged to H-2 workers by foreign recruiters. It
is therefore reasonable to expect that petitioners who currently work
with foreign recruiters already have at least some practices in place
in which to effectively monitor the activities of those recruiters and
ensure compliance with H-2 regulations. In other words, the requirement
to oversee or monitor the charging of prohibited fees is not new with
the NPRM or with this final rule.
This final rule does adopt measures to better ensure petitioners
are liable for the actions of the third parties they engage for
recruitment services. It is possible, however, for petitioners to avoid
liability and possible consequences of a finding of prohibited fees
charged by third parties if they demonstrate through clear and
convincing evidence that they made ongoing, good faith, reasonable
efforts to prevent and learn of the prohibited fee collection or
agreement by such third parties throughout the recruitment, hiring, and
employment process; they took immediate remedial action as soon as it
became aware of the payment of the prohibited fee or agreement; and
that all affected beneficiaries or, in certain circumstances, their
designees have been fully reimbursed. See new 8 CFR
214.2(h)(5)(xi)(A)(2) and 8 CFR 214.2(h)(6)(i)(B)(2). Therefore, DHS
disagrees with some commenters' characterizations of these provisions
as creating a new ``strict liability'' standard that would effectively
deny a petitioner ``no matter what preventative measures they took.''
To the contrary, the new provisions incentivize petitioners to exercise
ongoing, good faith, reasonable efforts, based on the totality of the
circumstances, to prevent the payment of prohibited fees in the first
place.
Finally, regarding the concerns that these provisions may
incentivize employers to hire smaller, less reputable, less ethical
agents which would result in less compliance and more worker
exploitation, or may even disincentivize employers from participating
in the H-2 program, such an assertion is speculative. For the reasons
stated above, DHS assumes that good faith employers and agents have
and, under this rule, will continue to have a strong incentive to
ensure compliance with the terms and conditions of the H-2 program.
Comment: Several commenters who opposed the proposed ``due
diligence'' provisions expressed specific concerns about the negative
impact these provisions would have on H-2 workers. For instance, a
research organization articulated its concern that the proposed rule
would not be a rights-enhancing provision for the impacted population.
The organization further remarked that the rule would be unfair to
workers who would lose their ability to work in the United States for
an employer who wants to rectify the infraction. The commenter urged
DHS to consider what would happen to workers who are unjustly denied a
visa under the proposed rule and concluded that restricting the H-2
visa would lead to unauthorized immigration.
Another commenter, along with a joint submission, further remarked
that the nature of the proposal is such that it would discourage
workers from reporting fee violations for fear of losing employment or
jeopardizing their relationships with the employer.
Other commenters said that the rule, as proposed, would harm
domestic and H-2A farm workers by reducing employment opportunities and
diverting employer resources away from workers by making employers
spend more resources to prove that prohibited fee collections or
agreements did not occur.
Response: DHS appreciates the commenters' concerns about the
potential negative effects of the proposed changes on H-2 workers. DHS
anticipates that other provisions in this rule, such as the new
whistleblower protections, grace periods, and permanent portability
provisions, will
[[Page 103231]]
provide significant relief to affected workers by increasing their
ability to seek new employment and potentially lessening the impact of
reporting fee violations or otherwise jeopardizing their relationships
with an employer.
With respect to the comment that the prohibited fee provisions of
this rule would lead to unauthorized immigration, DHS disagrees with
this assertion, which is speculative and assumes that participants in
the H-2 program will be inclined to violate immigration laws rather
than comply with the terms and conditions of the H-2 program. Regarding
the comment asserting that the provisions would reduce employment
opportunities and divert employer resources away from workers by making
employers spend more resources to prove that prohibited fee collections
or agreements did not occur, the commenter did not provide support for
this assertion. While DHS anticipates this rule may result in some
increased costs for employers in instances where there is evidence that
prohibited fees may have been paid or agreed to, the commenter provides
no basis for its claims that the costs in these limited instances will
cause additional harm to workers, and the rule does not otherwise
create any new reporting or evidentiary requirements for employers
related to prohibited fees. Any employer costs incurred to prevent
prohibited fees are not new costs imposed by this rule as the
regulations this rule replaces already prohibits the collection of such
fees and as such, petitioners were reasonably expected under the
previous rule to have taken appropriate steps to ensure against the
collection of such fees.
Comment: In light of concerns with respect to the proposed ``due
diligence'' standard, a business association requested that the
Department provide a definition of ``due diligence'' and asked DHS to
clarify what documentation would suffice to demonstrate a petitioner's
efforts to meet this standard. The association requested that the
Department consider allowances for situations in which a petitioner is
not aware of an improper action by an agent, despite conducting due
diligence and including expectations within the contract, and asked
what courses of action are available for petitioners when a third party
is not responsive.
A trade association urged the Department to define ``measurable,
reasonable `affirmative steps''' employers could take to prevent the
collection of prohibited fees while recognizing the good practices that
employers already use. The association also recommended that the
Department consider which mitigating factors would be appropriate to
avoid debarment. A joint submission similarly requested that DHS
articulate specific guidance around due diligence, such as specifying
whether it is sufficient to require agents and facilitators to ask
workers during intake whether they have paid or been solicited to pay
fees, or have workers sign a written attestation that they have not
paid fees.
A trade association suggested that DHS clarify that an employer's
documented, good faith vetting of third parties would allow them to
avoid liability for conduct outside of their knowledge. The association
provided examples of this due diligence, such as written inquiries with
responses from the third party, requests to review employment
documents, and payment ledgers between visa applicants.
While discussing the due diligence provisions, a member farm
organization stated the need to establish reasonable expectations as to
what an employer can do from the United States when recruiters may be
``hundreds and even thousands of miles away.'' The group requested that
DHS reconsider what it considered to be overly strict provisions and
work with agricultural employers to find a ``healthy middle ground''
that benefits all parties.
Some advocacy groups responded to DHS's request for comment
regarding the types of due diligence activities that employers should
be required to undertake. The advocacy groups suggested that employers:
Create mechanisms to communicate with workers directly
during the recruitment process and promptly investigate any reports of
prohibited fees;
Seek out ways to be available to workers during the
recruitment process and create procedures for addressing abuses
promptly (for example, through a designated Compliance Officer who
reports to the employer and investigates and addresses unlawful fee
collection);
Take immediate remedial action in the event a petitioner
discovers that a recruiter or agent has charged or entered into an
agreement to charge a prohibited fee (including, at a minimum, full
reimbursement and immediate termination of the relationship with the
recruiter or agent);
Implement rigorous vetting and monitoring procedures, such
as through: (1) obtaining the agent's financial records, documentation
of compliance with applicable laws, and records related to their prior
recruitment of H-2 workers; (2) identifying agents or intermediaries
upon which recruiters rely, and creating processes to identify agents
or intermediaries not voluntarily disclosed; (3) conducting periodic
audits of recruiters' practices and finances and communicating policies
against recruitment fees; and
Ensure that all agreements with recruiters provide for a
realistic fee structure that will not incentivize recruiters to pass
costs to workers to remain profitable.
The other advocacy group endorsed the above commenters'
recommendations in their submission and wrote that the first
recommendation would be especially critical for the proposed rule to
benefit workers.
A professional association expressed concerns with the examples of
relevant documentation provided in the NPRM, including ``evidence 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.'' In this regard, the
association said it should not be mandated for disclosure to DHS ``for
a [f]ishing expedition'' and that DHS must show cause on an individual
basis prior to soliciting this type of ``proprietary'' information.
Response: DHS acknowledges the concerns raised by these commenters
regarding the potential need for additional clarity as to the steps
employers should implement to exercise appropriate due diligence. As
clarified elsewhere, DHS is responding to feedback on its NPRM by
revising and clarifying the proposed due diligence provisions.
Specifically, DHS is removing the term ``due diligence'' from the
regulatory text to instead state that petitioners must have made
ongoing, good faith, reasonable efforts throughout the recruiting and
employment period to prevent and learn of the collection of a
prohibited fee. DHS emphasizes again that this revision is not intended
to be a less stringent standard than the proposed due diligence
requirement, but instead the change is offered as a more descriptive
process than the provision included in the NPRM.
DHS is particularly appreciative of those commenters who provided
specific examples in response to the NPRM's request for public input in
the NPRM. Indeed, the Department anticipated some interest and feedback
on this provision, and in the NPRM explicitly requested public input
regarding specific types of evidence that may be relevant and available
to meet the proposed changes. 88 FR 65040,
[[Page 103232]]
65055 (Sept. 20, 2023). Based on these comments, DHS is providing the
following examples of non-exclusive factors that may demonstrate
whether a petitioner has made ongoing, good faith, reasonable efforts
to prevent such fees. These factors may include, but are not limited to
(1) whether the petitioner was providing compensation to the third
party entity such that the third party would have no incentive to pass
on costs to workers; (2) whether the petitioner had procedures to
contact and monitor the performance of relevant parties in the
recruitment chain, whether located in the United States or abroad; and
(3) whether the petitioner has a mechanism to communicate directly with
workers during and after the recruitment process and properly
investigate any reports of prohibited fees. As noted above, the
determination under new 214.2(h)(5)(xi)(A)(2) and 214.2(h)(6)(i)(B)(2)
will be made on a case-by-case basis, taking into consideration all of
the facts presented.
To show that a petitioner was providing compensation to the third
party entity such that it would have no incentive to pass on costs to
workers, the NPRM provided examples of documentation that could be
submitted including ``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.'' 88 FR 65040,
65054-55 (Sept. 20, 2023). Contrary to a commenter's claim that
``[t]his type of information is proprietary and should not be mandated
to be disclosed to DHS for a [f]ishing expedition,'' these are merely
examples of the types of evidence a petitioner may submit to
demonstrate due diligence (which DHS now calls ``ongoing, good faith,
reasonable efforts''). New 214.2(h)(5)(xi)(A)(2) and
214.2(h)(6)(i)(B)(2) do not mandate the submission of any specific
document nor the disclosure of any specific financial or proprietary
information. Further, the petitioner may redact or sanitize a document
in a manner that the document is still sufficiently detailed and
comprehensive yet does not reveal sensitive financial or proprietary
information. These clarifications should alleviate the petitioner's
concerns about providing proprietary or sensitive financial information
to DHS. DHS therefore disagrees with the commenter's suggestion that in
providing these examples in its NPRM as to evidence that may meet the
proposed due diligence requirement that the Department would solicit
proprietary information to engage in a ``[f]ishing expedition.''
To show what procedures a petitioner has in place to properly vet
and monitor the recruiters, agents, or other third parties that it
utilizes to recruit H-2 workers, commenters provided various examples
such as: written inquiries with responses from the third party,
requests to review relevant employment documents, evidence that agents/
facilitators asked workers during intake whether they have paid or been
solicited to pay fees; evidence that the petitioner asked recruiters to
identify agents or intermediaries upon which the recruiters rely and
created processes to identify agents or intermediaries not voluntarily
disclosed; and evidence that the petitioner conducted periodic audits
of recruiters' practices and finances and communicate policies against
recruitment fees. DHS agrees with these examples, and notes that they
are non-exhaustive examples of the types of documentation a petitioner
may submit under this factor; no one document will be dispositive, and
all of the circumstances will be considered as a whole. DHS reminds
petitioners that, under new 214.2(h)(5)(xi)(A)(2) and
214.2(h)(6)(i)(B)(2), a written contract between the petitioner and the
third-party agent, attorney, facilitator, recruiter, similar employment
service, or member employer stating that such fees were prohibited will
not, by itself, be sufficient to demonstrate reasonable efforts. While
the language of such a contract may be considered, additional
documentation must be provided.
To show whether the petitioner has a mechanism to communicate
directly with workers during and after the recruitment process and
promptly investigate any reports of prohibited fees, commenters
suggested that a petitioner could submit evidence that it has a
designated Compliance Officer who reports to the employer and
investigates and addresses unlawful fee collection. A commenter further
suggested that a petitioner could submit evidence that they require
their recruiters to provide the Compliance Officer's contact
information to workers as part of the initial job offer, as well as
information about their rights in the recruitment process and
assurances against retaliation for reporting any concerns. Again, these
are just illustrative examples of the types of documentation a
petitioner may submit under this factor; no one document will be
dispositive, and all of the circumstances will be considered as a
whole.
Comment: An advocacy group and a union supported the proposed
specification that the prohibited fee provisions would also apply to
joint employers in the H-2A context and any employers in addition to
the petitioner in the H-2B context.
Response: DHS appreciates these commenters' support and adopts the
proposed specifications that prohibited fee provisions apply to joint
employers in the H-2A context, and any employer if different from the
petitioner in the H-2A and H-2B context, in this final rule.
Comment: A few trade associations indicated that they cannot
support the proposed regulations regarding joint employers and due
diligence as proposed. These commenters said that while they support
employers performing due diligence, an innocent member of an
association of U.S. agricultural producers should not have their
enterprise jeopardized by a ``bad actor'' within the association.
Response: As noted by the commenters, the provision at new 8 CFR
214.2(h)(5)(xi)(A) prohibits fees collected by any joint employer
including a member employer if the petitioner is an association of U.S.
agricultural employers. Further, under new 8 CFR 214.2(h)(5)(xi)(A)(2),
a USCIS determination that a beneficiary has paid or agreed to pay such
a fee to a member employer will result in a denial or revocation unless
the petitioner (in this case the association U.S. agricultural
employers) can establish that it qualifies for the limited exception in
that provision, which among other things, requires evidence that it
engaged in ongoing, good faith, reasonable efforts to prevent and learn
of its member employers' collection of prohibited fees. It is
reasonable to expect that any petitioner filing on behalf of both
itself and joint employers, including an association of U.S.
agricultural employers acting as petitioner, will take steps to ensure
that the representations it makes on other entities' behalf are
accurate, and that such entities in fact comply with program
requirements.\36\
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\36\ When filing the Form I-129 petition, an association of
agricultural employers certifies to the accuracy of the information
in the petition, including the representations it makes on behalf of
its joint employers, and agrees to the conditions of H-2A
employment. Each joint employer also signs the petition, assuming
responsibility for the representations in the petition and agreeing
to the conditions of H-2A eligibility.
---------------------------------------------------------------------------
DHS recognizes that, under the new rule, a member employer who
complies with H-2 program requirements with
[[Page 103233]]
respect to its own workers could nonetheless be impacted by the
prohibited fee violation of a different employer listed on the same
petition. Specifically, such a prohibited fee violation may ultimately
lead to denial or revocation of the entire petition if the petitioner
is unable to demonstrate eligibility for the narrow exception. It is
worth noting, however, that the 1- to 4-year denial period following a
denial or revocation for prohibited fees would apply to the
petitioner--that is, the U.S. association of agricultural producers--
and not to each member employer listed as a joint employer on the
petition. Regardless, DHS notes that member employers have the option
to file individual petitions, and it is DHS's expectation that
employers will exercise care in determining with which, if any,
entities they will file jointly.
Comment: Several commenters cited examples of prohibited fees being
charged by government officials of countries where the United States
government has helped to promote recruitment of H-2 workers. The
commenters provided these examples to ask for more clarity regarding
the due diligence standard.
Response: DHS acknowledges the concerns regarding instances of
prohibited fees by some ministry of labor officials in foreign
governments which the United States government partnered with to
promote the H-2 programs. DHS clarifies that it may consider whether
the petitioner used one of these recruitment systems as a relevant
factor in determining whether the petitioner engaged in ongoing, good
faith, reasonable efforts. However, the fact that a petitioner used a
recruitment system developed in partnership with the U.S. government
will not by itself excuse an employer's failure to engage in the
requisite reasonable and ongoing efforts to ensure against the payment
of such prohibited fees. In all cases, DHS will make its determination
with respect to the question of prohibited fees based on all of the
facts presented.
Comment: Regarding the due diligence standard, a joint commenter
asked whether it would matter if ``the agent or facilitator has been
certified by a third-party such as the Equitable Food Initiative, the
U.N. Global Compact, or other organizations.''
Response: DHS declines to address third party certifications, as
the commenter did not provide any additional information about the
referenced certification programs nor demonstrate these programs'
relevance to how a petitioner might demonstrate due diligence, now
phrased as ``ongoing, good faith, reasonable efforts,'' under new
214.2(h)(5)(xi)(A)(2) and 214.2(h)(6)(i)(B)(2).
Comment: A professional association recommended that, instead of
placing the burden on employers to perform due diligence, DHS should
provide safe harbor for employers who use recruiters included in DOL's
H-2B Foreign Labor Recruiter List.
Response: DHS declines to adopt the suggestion to provide safe
harbor for employers who use recruiters included in DOL's H-2B Foreign
Labor Recruiter List. As stated on DOL's Foreign Labor Recruiter List
web page, by providing the information on this list, DOL ``will be able
to verify whether a recruiter is recruiting for legitimate H-2B job
opportunities in the United States.'' \37\ However, the web page
expressly states that DOL ``does not endorse any foreign labor agent or
recruiter included in the Foreign Labor Recruiter List, nor does
inclusion on this list signify that the recruiter is in compliance with
the H-2B program.'' DHS disagrees, therefore, that use of recruiters
from the list is a sufficient factor to provide a safe harbor for
petitioners, in part because DOL does not endorse any foreign labor
agent or recruiter included in the list and inclusion on the list does
not signify that the recruiter is in compliance with the H-2B program,
and because DHS does not verify this recruiter list or vet any of the
individual recruiters listed therein.
---------------------------------------------------------------------------
\37\ DOL, Employment and Training Administration, ``Foreign
Labor Recruiter List,'' https://www.dol.gov/agencies/eta/foreign-labor/recruiter-list.
---------------------------------------------------------------------------
Comment: An advocacy group suggested that the Federal Government
provide more information about and control over the H-2 hiring process
overall and work to develop a multilingual, accessible platform
providing access to vetted employers and verified job offers. While
quoting a member of the affected population, the commenter reasoned
that such an application would eliminate the need for recruiters,
thereby eliminating prohibited recruitment fees.
Response: DHS is not implementing this suggestion in this final
rule. While appreciative of the goal of eliminating prohibited
recruitment fees, it is not the intent of this final rule to eliminate
the use of recruiters. Nor does DHS intend to be involved in matching
or otherwise facilitating recruitment between an H-2 worker and a
prospective H-2 employer. However, nothing in this rule prevents the
private, nonprofit, or voluntary sector from creating such a platform.
h. Legal Authority and Burden of Proof Relating to the Requirements on
Prohibited Fees
Comment: Some trade associations said that DHS's proposal to make
employers ``strictly liable'' for any payment of, or any allegation of
payment of, an improper fee by a worker lacks statutory authority. The
commenters went on to say that the proposal fails to establish any
clear or objective standard, thus denying a petitioner notice of what
conduct is required to satisfy the law and depriving the public of an
opportunity to comment on the complete proposal.
Response: DHS disagrees that it lacks the authority to promulgate
its regulations governing the H-2 programs, including the provisions
related to prohibited fees. The Legal Authority sections of both the
NPRM and this final rule clearly address the DHS Secretary's authority
to administer and ensure compliance with the immigration laws and to
issue regulations necessary to carry out that responsibility. Specific
to the H-2 programs, the HSA transferred to DHS the authority to by
regulation set the condition for the admission of H-2 nonimmigrants and
to adjudicate petitions for H-2 nonimmigrant status including
establishing the form and content of such petitions. See INA 214(a)(1)
and (c)(1), 8 U.S.C. 1184(a)(1), (c)(1), and INA 103(a)(1), (a)(3),
1103(a)(1), (a)(3),; and, with respect to the H-2B classification, INA
214(c)(14)(A), 1184(c)(14)(A); see also 6 U.S.C. 202(3), 271, 557. The
HSA also established the Bureau of Citizenship and Immigration
Services, now USCIS, and transferred to USCIS the authority over
petitions adjudicated by service centers (including H-2 nonimmigrant
petitions), 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). Reading the expansive
delegated authority over immigration and H-2 programs, including its
administration, to include the authority to strengthen the prohibited
fee provisions (that have been a part of the H-2 regulatory scheme
since 2008),\38\ and thus prevent
[[Page 103234]]
the exploitation of H-2 workers, is the best reading of that authority,
as it is consistent with the plain language of the statutes and will
enhance the integrity of the H-2 programs and thus further this
important statutory purpose.\39\
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\38\ In a response to public comments on the 2008 H-2A final
rule, DHS explained that it has plenary authority to determine
conditions for the admission of all nonimmigrants, including H-2A
workers. 73 FR 76891,76899 (Dec. 18, 2008) (``Under section 214(a)
of the INA, 8 U.S.C. 1184(a), DHS has plenary authority to determine
the conditions of admission of all nonimmigrants to the United
States, including H-2A workers. It is within the authority of DHS to
bar the payment by prospective workers of recruitment-related fees
as a condition of an alien worker's admission to this country in H-
2A classification.''). Similarly, in response to public comments on
the 2008 H-2B final rule DHS stated that the ``this provision is
necessary to ensure that the actual wages specified on the temporary
labor certification will, in fact, be paid to the H-2B worker,
thereby ensuring the validity of the labor market test and
compliance with section 101(a)(15)(H)(ii)(B) of the INA, 8 U.S.C.
1101(a)(15)(H)(ii)(B). The choice whether to use recruiters or
facilitators and the terms and costs for such services is left
entirely to the employer.'' 73 FR 78104, 78113 (Dec. 19, 2008).
\39\ See Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2263
(2024) (``In a case involving an agency, of course, the statute's
meaning may well be that the agency is authorized to exercise a
degree of discretion. Congress has often enacted such statutes. For
example, some statutes expressly delegate'' to an agency the
authority to give meaning to a particular statutory term. Others
empower an agency to prescribe rules to fill up the details of a
statutory scheme, or to regulate subject to the limits imposed by a
term or phrase that leaves agencies with flexibility, such as
`appropriate' or `reasonable.''' (cleaned up)).
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DHS also disagrees with other assertions from the commenters.
Firstly, the commenters fail to recognize that the provisions finalized
in this rule do not impose strict liability on petitioners but provide
limited ways for petitioners to avoid liability for prohibited fees.
The ways in which petitioners may avoid potential denial or revocation
of a petition differ depending on whether the beneficiary was charged
by the petitioner itself or one of its employees, or whether the
beneficiary paid or agreed to pay a third party recruiting on behalf of
the petitioner. See new 8 CFR 214.2(h)(5)(xi)(A), 214.2(h)(6)(i)(B).
See also the detailed description of these provisions in the comment
response below. As noted above, this final rule in general, and these
provisions in particular, are being promulgated in order to ensure the
integrity of the H-2 programs and worker protections. Furthermore, DHS
disagrees that it has deprived the public of the opportunity to comment
on the complete proposal, and notes that the NPRM expressly sought
comments on all of DHS's proposals, and explicitly requested public
input on different aspects of several of its proposals, including
specifically on the types of evidence that may be relevant to meet the
proposed due diligence requirement and the clear and convincing
standard that the petitioner did not know or could not have known of a
third-party charging beneficiaries prohibited fees. DHS is making
revisions to several of its proposals based on the comments it received
on the NPRM, as discussed in these comment responses and in Section III
which shows that petitioners understood DHS's proposals pertaining to
the prohibited fee provisions and were able to provide salient and
helpful feedback.
Comment: Several commenters, including a professional association
and a few individual commenters, expressed concerns that employers
would be ``forced'' to prove their innocence under the proposed
regulations, which would be incongruent with the U.S. justice system. A
few commenters additionally expressed concern that the proposed rule
would be based on the idea that all H-2 employers should be presumed
guilty, or that it would defy the concept of ``innocent until proven
guilty.'' A couple of trade associations, echoing these remarks, added
that the ``illegal'' regulatory scheme surrounding the prohibited fees
provisions would deny petitioners of basic due process. The
professional association urged the Department to discard--or, at
minimum, revise--the worker protection provisions to allow DHS to
enforce regulations against prohibited fees without forcing employers
to prove their innocence.
Response: DHS disagrees that the proposed prohibited fees
provisions, finalized in this rule with minor revisions, are counter to
the concept of ``innocent until proven guilty'' or otherwise deny
petitioners of basic due process. These provisions do not purport to
assign ``guilt'' or ``innocence,'' but instead address those situations
where, as a factual matter, workers have paid or agreed to pay
prohibited fees. Nothing proposed in the NPRM and finalized in this
rule departs from DHS's current regulatory framework whereby USCIS may
approve a benefit request only if the petitioner establishes
eligibility for the requested benefit.\40\ If the evidence fails to
establish eligibility, the benefit request will be denied on that
basis, generally preceded by an RFE or a notice of the agency's intent
to deny, with the opportunity for the benefit requester to provide
additional evidence in response to the request or notice and an
opportunity to appeal any such denial.\41\ H-2 petitioners continue to
be afforded this process under the provisions of this final rule.
---------------------------------------------------------------------------
\40\ See 8 CFR 103.2(b)(1) (``An applicant or petitioner must
establish that he or she is eligible for the requested benefit at
the time of filing the benefit request and must continue to be
eligible through adjudication.''); see also USCIS, Policy Manual
Chapter 4, ``Burden and Standards of Proof'' (``The burden of proof
to establish eligibility for an immigration benefit always falls
solely on the benefit requestor. The burden never shifts to
USCIS.''), https://www.uscis.gov/policy-manual/volume-1-part-e-
chapter-
4#:~:text=The%20burden%20of%20proof%20to%20establish%20eligibility%20
for,or%20she%20has%20made%20a%20prima%20facie%20case.
\41\ See generally 8 CFR 103.2(b)(8), 103.3.
---------------------------------------------------------------------------
i. Extraordinary Circumstances
Comment: Several comments requested clarity concerning what
constitutes ``extraordinary circumstances,'' noting that this term is
not defined in the proposed regulation nor does DHS explain how it
plans to evaluate the facts in making its decision. Several trade
associations commented that the Department did not explain what
``extraordinary circumstances'' would allow an employer to avoid
liability for prohibited fees charged ``by a third-party.''
Additionally, a professional association wrote that the framework
proposed by DHS to enforce the prohibition of fees requires greater
detail to the required showing of circumstances that were ``rare and
unforeseeable.'' A joint submission, providing detailed remarks on
DHS's proposal and offering suggestions, recommended that the
Department soften the ``extraordinary circumstances'' and ``rare and
unforeseeable'' requirements to more lenient standards (for example,
``took reasonable steps'').
Response: In light of these comments, DHS is revising the
regulatory text at new 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1) to clarify the ``extraordinary circumstances''
framework. As described above, as well as in Section III, DHS is
finalizing the proposed provisions at new 8 CFR 214.2(h)(5)(xi)(A)(1)
and 8 CFR 214.2(h)(6)(i)(B)(1) to state, in pertinent part, that if
USCIS determines that a petitioner or any of its employees,\42\ whether
before or after the filing of the H-2 petition, has collected or
entered into an agreement to collect a prohibited fee related to the H-
2 employment, USCIS will deny or revoke the petition on notice unless
the petitioner demonstrates through clear and convincing evidence that,
among other things, ``the petitioner made ongoing, good faith,
reasonable efforts to prevent and learn of the prohibited fee
[[Page 103235]]
collection or agreement by its employees throughout the recruitment,
hiring, and employment process'' and that ``extraordinary circumstances
beyond the petitioner's control resulted in its failure to prevent
collection or entry into agreement for collection of prohibited fees.''
Specifically, DHS is eliminating the part of the proposed regulatory
text referring to ``rare and unforeseeable'' circumstances. This phrase
may have caused unnecessary confusion, as DHS had always meant the
phrase ``rare and unforeseeable'' to specifically explain the meaning
of ``extraordinary circumstances,'' not to create another standard
separate and apart from ``extraordinary circumstances.''
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\42\ DHS notes an inaccuracy in some of the comments that
confuse an important distinction in how the new prohibited fees
provisions treat instances of prohibited fees charged by petitioners
or its employees and such fees charged by third parties. The
``extraordinary circumstances'' determination is applicable only to
instances of prohibited fees charged by the petitioner itself or by
its employees, not in situations where such fees are charged by
third party entities. Prohibited fees charged by third party
entities are covered by new 8 CFR 214.2(h)(5)(xi)(A)(2) and 8 CFR
214.2(h)(6)(i)(B)(2).
---------------------------------------------------------------------------
Further, DHS is eliminating the part of the proposed regulatory
text stating, ``To qualify for this exception, a petitioner must first
establish. . ..'' That proposed language was intended to refer back to
how to demonstrate ``extraordinary circumstances,'' not to create
another exception.
These changes are intended to clarify that there is only one
exception for a petitioner to avoid liability for prohibited fees by
itself or its employees. DHS is also deleting ``and that it has fully
reimbursed all affected beneficiaries or the beneficiaries' designees''
because this is duplicative of the sentence, ``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,'' which is being retained.
To summarize, under new 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1), if it is determined that a petitioner or any of
its employees, whether before or after the filing of the H-2 petition,
has collected or entered into an agreement to collect a prohibited fee
related to the H-2 employment, the petition will be denied or revoked
on notice unless the following factors are demonstrated through clear
and convincing evidence:
(1) The petitioner made ongoing, good faith, reasonable efforts to
prevent and learn of the prohibited fee collection or agreement by its
employees through the recruitment, hiring, and employment process;
(2) Extraordinary circumstances beyond the petitioner's control
resulted in its failure to prevent collection or entry into agreement
for collection of prohibited fees;
(3) The petitioner took immediate remedial action as soon as it
became aware of the payment of or agreement to pay the prohibited fee;
and
(4) The petitioner fully reimbursed all affected beneficiaries or,
only if such beneficiaries cannot be located or are deceased, it fully
reimbursed the affected beneficiaries' designees.
With respect to comments specifically requesting clarification of
the phrase ``extraordinary circumstances,'' this phrase is currently
used in other areas of immigration administration and therefore is not
ambiguous or ill-defined as commenters have asserted.\43\ Based on the
plain meaning of ``extraordinary,'' extraordinary circumstances are
``very unusual, special, unexpected, or strange'' \44\ (in other words,
rare and unforeseeable). To provide an example for illustrative
purposes only, the unexpected death, serious illness, or incapacity of
the petitioning entity's supervisor or other key employee with
responsibility for recruiting beneficiaries and ensuring against the
payment of prohibited fees may qualify as ``extraordinary
circumstances'' beyond the petitioner's control, although a minor
illness or short-term incapacity likely would not qualify. In
evaluating whether the circumstances in a particular case were
``extraordinary'' and ``beyond the petitioner's control,'' USCIS will
take into account all relevant information and evidence, including but
not limited to who within the organization collected or entered into an
agreement to collect prohibited fees, and the relationship of the
asserted circumstances to the actions of such individual(s). It is
worth emphasizing that demonstrating the existence of extraordinary
circumstances beyond the petitioner's control is only part of the
exception under new 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B). Not only does a petitioner need to demonstrate
extraordinary circumstances beyond the petitioner's control, but the
petitioner must also establish that these circumstances ``resulted in
the petitioner's failure to prevent collection or entry into agreement
for collection of prohibited fees,'' as required under new 8 CFR
214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B). Circumstances that had
no connection to the petitioner's failure to prevent collection or
entry into agreement for collection of prohibited fees, such as a
serious illness that occurred after the prohibited fee had already been
collected, would not be sufficient to meet the regulatory standard.
---------------------------------------------------------------------------
\43\ For example, the concept of ``extraordinary circumstances''
beyond the petitioner or applicant's control is found in regulatory
provisions relating to certain extension of stay or change of status
requests, see current 8 CFR 214.1(c)(4) and 248.1(b)(1), and in a
precedent decision of the Board of Immigration Appeals and
respective guidance implementing provisions of the Child Status
Protection Act, Pub. L. 107-208 (2002). See INA secs. 203(h); see
also Matter of O. Vasquez, 26 I&N Dec. 817, 821 (BIA 2012), USCIS
Policy Memorandum, ``Guidance on Evaluating Claims of `Extraordinary
Circumstances' for Late Filings When the Applicant Must Have Sought
to Acquire Lawful Permanent Residence Within One Year of Visa
Availability Pursuant to the Child Status Protection Act'' (June 6,
2014); cf. 8 CFR 208.4(a)(5) (defining ``extraordinary
circumstances'' for purposes of the one-year filing deadline for
asylum applications). DHS recognizes those examples are not related
to H-2 prohibited fees, but the point remains that the phrase
``extraordinary circumstances'' is generally well understood.
\44\ Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/extraordinary; see also Merriam Webster
Dictionary (defining ``extraordinary'' as ``going beyond what is
usual, regular, or customary''), https://www.merriam-webster.com/dictionary/extraordinary; Black's Law Dictionary (12th ed. 2024)
(``Beyond what is usual, customary, regular, or common.'').
---------------------------------------------------------------------------
Additionally, the petitioner needs to demonstrate that it meets the
remaining factors of the exception at new 8 CFR 214.2(h)(5)(xi)(A) and
8 CFR 214.2(h)(6)(i)(B), specifically: that the petitioner had made
ongoing, good faith, reasonable efforts to prevent and learn of such
prohibited fee collection or agreement throughout the recruitment,
hiring, and employment process; the petitioner took immediate remedial
action as soon as it became aware of the payment of or agreement to pay
the prohibited fee; and that the petitioner fully reimbursed all
affected beneficiaries or, in certain circumstances, the beneficiaries'
designees. Overall, this exception is intentionally narrowly drawn as
it is critical in furthering the primary intent of this final rule,
which is to better ensure the integrity of the H-2 programs and to
provide protections to H-2 workers.
j. Significant Efforts
Comment: Several commenters, including numerous trade and business
associations and a professional association, requested clarity
concerning what constitutes ``significant efforts to prevent prohibited
fees prior to the collection or agreement to collect such fees.''
Response: As discussed above, DHS is finalizing the proposed
provisions at new 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1) to offer greater clarification and simplification.
Specifically, new 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1) eliminates the phrase ``significant efforts'' and
instead provides that the petitioner must demonstrate that it ``made
ongoing, good faith, reasonable efforts to prevent and learn of the
prohibited fee collection or agreement by its
[[Page 103236]]
employees throughout the recruitment, hiring, and employment process.''
Although DHS is replacing ``significant efforts'' with ``ongoing, good
faith, reasonable efforts'' in light of comments requesting clarity,
DHS emphasizes that is not a substantive change as ``significant
efforts'' and ``ongoing, good faith, reasonable efforts'' in this
context requires the same level of effort by the petitioner. This
change clarifies what DHS initially meant by ``significant,'' and more
effectively explains the petitioner's obligation to not only prevent
prohibited fees prior to the collection of or agreement to collect such
fees, but also undergo an ongoing obligation to prevent and learn about
such fees given that such fees could be collected or agreed upon at
various points in time during the recruitment, hiring, or employment
process.
This change better aligns the provisions at new 8 CFR
214.2(h)(5)(xi)(A)(1) and 8 CFR 214.2(h)(6)(i)(B)(1) with the
provisions at new 8 CFR 214.2(h)(5)(xi)(A)(2) and 8 CFR
214.2(h)(6)(i)(B)(2). As finalized, all of these provisions require
petitioners to demonstrate their ongoing, good faith, reasonable
efforts to prevent and learn of the prohibited fee collection or
agreement throughout the recruitment, hiring, and employment process,
regardless of whether the prohibited fee collection or agreement was
made by the petitioner (including its employees) or by third
parties.\45\ These changes clarify that the proposed ``significant
efforts'' and ``due diligence'' standards were not meant to be
materially different from each other.
---------------------------------------------------------------------------
\45\ As discussed earlier, the requirement to demonstrate that
the petitioner ``made ongoing, good faith, reasonable efforts to
prevent and learn of the prohibited fee collection or agreement by
its employees throughout the recruitment, hiring, and employment
process'' replaces the proposed ``due diligence'' language in
proposed 8 CFR 214.2(h)(5)(xi)(A)(2), 8 CFR 214.2(h)(6)(i)(B)(2).
Although DHS is replacing ``due diligence'' with ``ongoing, good
faith, reasonable efforts'' in light of comments requesting clarity
on the ``due diligence'' standard, DHS emphasizes that is not a
substantive change as ``due diligence'' and ``ongoing, good faith,
reasonable efforts'' in this context requires the same level of
diligent effort by the petitioner.
---------------------------------------------------------------------------
Similar to the examples of non-exclusive factors that DHS offered
for ``ongoing, good faith, reasonable efforts'' at new
214.2(h)(5)(xi)(A)(2) and 214.2(h)(6)(i)(B)(2), DHS is offering the
following examples of factors that may demonstrate ``ongoing, good
faith, reasonable efforts'' at new 214.2(h)(5)(xi)(A)(1) and
214.2(h)(6)(i)(B)(1). These factors include: (1) whether the petitioner
had procedures to contact and monitor the performance of relevant
parties in the recruitment chain, whether located in the United States
or abroad; and (2) whether the petitioner has a mechanism to
communicate directly with workers during and after the recruitment
process and properly investigate any reports of prohibited fees. As
noted above, the determination under new 214.2(h)(5)(xi)(A)(1) and
214.2(h)(6)(i)(B)(1) will be made on a case-by-case basis, taking into
consideration all of the facts presented.
k. Clear and Convincing Evidence Standard
Comment: A professional association said that it opposed the
imposition of a ``clear and convincing'' standard concerning an
employer's burden of proof to demonstrate that a failure to prevent an
inadvertent payment resulted from extraordinary circumstances beyond
the employer's control. The association reasoned that the standard
would be unduly burdensome. An attorney additionally expressed concern
that the Department proposed to adopt the ``little-understood'' ``clear
and convincing'' standard without justification and with ``virtually no
guidance'' to meet this standard. While stating that there is no way
that a U.S.-based employer would know what another agent or recruiter
is doing, the attorney concluded that the proposed rule would amount to
``a trap for the most conscientious.''
A joint submission, providing detailed comments, remarked that the
proposed evidentiary standards would be too high of a threshold for
petitioners to satisfy ``even under the best of circumstances.'' The
commenters said that it is not clear from the proposed rule what
evidence a petitioner may provide to demonstrate its lack of knowledge
and said that it would be unreasonable to require evidence under the
clear and convincing standard to prove a negative. The commenters wrote
that it would be unlikely that any petitioner could satisfy the
proposed standard, leading to inequitable outcomes for employers.
Therefore, the commenters recommended that the Department reduce the
standard of proof to a ``preponderance of the evidence standard.''
Additionally, while providing alternative regulatory text, the
joint commenters suggested that the Department, at minimum, consider
scaling back the rigidity of the proposed rule and propose that USCIS
maintain discretion to evaluate a petitioner's unique circumstances.
Such an approach, the commenters reasoned, would allow the petitioner
to provide evidence in their defense and demonstrate possible
mitigating circumstances. The commenters further reasoned that this
approach would align with due process obligations and avoid unduly
penalizing employers.
With respect to the vetting of third parties, a trade association
suggested that DHS establish a ``reasonable'' clear and convincing
standard so that the impermissible actions of H-2B facilitators cannot
constitute grounds for punishment of an employer except under
extraordinary circumstances.
Response: DHS declines to change the ``clear and convincing''
evidentiary standard at new 8 CFR 214.2(h)(5)(xi)(A) or 8 CFR
214.2(h)(6)(i)(B). DHS does not agree that the standard is ``little
understood.'' Rather, it is a longstanding term in the law that is
generally understood to mean ``[e]vidence indicating that the thing to
be proved is highly probable or reasonably certain.'' \46\ Further, the
``clear and convincing'' standard is currently used in other areas of
immigration administration, including in the H-2B regulations with
respect to an exception to the limitation on the period of
admission,\47\ so some employers likely already have experience in the
application of this standard in H-2B petitions.
---------------------------------------------------------------------------
\46\ Black's Law Dictionary (11th ed. 2019), ``Evidence.''
\47\ 8 CFR 214.2(h)(13)(v).
---------------------------------------------------------------------------
Nor does DHS agree that the ``clear and convincing'' standard is
unduly burdensome for employers. The heightened standard appropriately
balances the importance of strengthening protections for H-2 workers
and preventing prohibited fees, with employers' ability to provide the
necessary evidence to meet an exception to the requirement, in the
event that USCIS determines that H-2 workers have paid or agreed to pay
prohibited fees. As stated in the NPRM, DHS recognizes that despite
current regulations on prohibited fees, significant numbers of H-2
workers have reported paying prohibited fees, and that stronger
protections are needed for the nonimmigrant workers who participate in
the H-2 programs. 88 FR 65040, 65050 (Sept. 20, 2023). The current
regulations on prohibited fees, which petitioners can currently satisfy
under the preponderance of the evidence standard, have not adequately
deterred against prohibited fees. By ensuring that petitioners are
taking proactive measures to prevent the collection of prohibited fees,
the heightened evidentiary standard will help ensure that petitioners
will avoid liability for prohibited fees only where they have taken
necessary steps to avoid
[[Page 103237]]
the collection of prohibited fees and have reimbursed workers who have
paid prohibited fees.
Where petitioners have taken proactive measures to prevent the
collection of prohibited fees, it is reasonable to expect that these
measures could be documented sufficiently to satisfy the ``clear and
convincing'' evidentiary standard. For example, under new 8 CFR
214.2(h)(5)(xi)(A)(1)-(2) and 8 CFR 214.2(h)(6)(i)(B)(1)-(2) a
petitioner may avoid denial of its petition by showing, among other
things, ``that it had made ongoing, good faith, reasonable efforts to
prevent and learn of the prohibited fee collection or agreement.'' In
addition to the examples discussed above of relevant evidence suggested
by commenters, it is reasonable to expect a petitioner to be able to
provide evidence such as documentation relating to compensation paid to
a recruiter, documentation of the procedures implemented by the
petitioner to monitor the performance of relevant parties in the
recruitment chain and to communicate directly with workers during and
after the recruitment process and properly investigate any reports of
prohibited fees.
l. Requirement to Comply With Prohibited Fee Provisions as a Condition
of Approval
Comment: A joint submission objected to the proposal for
petitioners to comply with the prohibited fee provisions as a condition
of their approval, reasoning that the proposal would be ``unduly
punitive.'' The commenters expressed concern that the proposed
provision would result in ``automatic denial of a petition'' even where
there was no harm to workers.
Response: The phrase ``condition of approval'' does not mean that
USCIS would automatically deny a petition. The regulations at new 8 CFR
214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B) clearly state that the
petition ``will be denied or revoked on notice'' unless the petitioner
demonstrates eligibility for the limited exception allowed under those
regulations. As with current practice, USCIS will generally afford a
petitioner an opportunity to demonstrate that its petition should not
be denied or revoked in accordance with 8 CFR 103.2(b). Thus, DHS
disagrees with the commenter that the new regulations would not afford
employers an ``opportunity to resolve and remedy violations.'' DHS also
disagrees with the commenter's characterization that the new
regulations would be ``unduly punitive.''
m. Consequences of a Denial or Revocation Based on Prohibited Fees
Comment: A union wrote that employers and recruiters who charge
prohibited fees must be ``barred'' from the program.
A couple of commenters endorsed the Department's proposed timelines
for ``debarment.'' An advocacy group wrote that the timelines for the
denial periods, as proposed, are appropriate, given the harm that
prohibited fees cause workers and the need for improved deterrence. In
addition, a joint submission urged DHS not to reduce the proposed
timeframes for the denial periods.
A group of Federal elected officials wrote that, under current
regulations, employers and recruiters are incentivized to break the law
with respect to charging prohibited fees. The elected officials said
that the proposed rules would put an end to these practices by
heightening the consequences for charging prohibited fees, including
debarment for up to 4 years after a violation has been found. An
advocacy group similarly stated that the proposed denial periods
related to prohibited fees would reduce violations by employers and
reduce harm to workers. The commenter added that the consequences and
remediation measures should apply to petitioners whether they were
directly involved in the charging of prohibited fees, or it occurred
through a third party if the petitioner was to benefit from the
worker's presence.
Response: DHS appreciates these commenters' support for the
provisions strengthening the consequences of a denial or revocation
based on prohibited fees being charged to H-2 employees. The provisions
finalized in the rule reflect the seriousness of prohibited fee
violations and the significant harm caused to workers who are charged
such fees.
Comment: An advocacy group said that while it supported the
imposition of consequences on employers for charging prohibited fees,
DHS should find ways to incentivize and encourage workers to report
prohibited fees, reasoning that H-2 workers who lose their jobs as a
result of these consequences ``bear the brunt of their employer's
violation.''
Response: DHS appreciates the commenter's concern and acknowledges
that the provisions of this rule do not eliminate the risk that H-2
workers who report prohibited fees may need to seek new employment if
the petition filed on their behalf is ultimately denied or revoked.
This rulemaking does, however, include several provisions that are
meant to increase worker flexibility in ways that mitigate such
disincentive to reporting prohibited fees and other abuses.
Specifically, the whistleblower protection and extended grace periods
for revocation and cessation of employment, in conjunction with the
changes to portability, should facilitate the ability of a worker
facing abuse to seek and transfer to a new employer.\48\
---------------------------------------------------------------------------
\48\ The H-2 NPRM referenced a GAO report's statement 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, and noted that ``[t]he 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.'' Modernizing H-2
Program Requirements, Oversight, and Worker Protections, 88 FR
65040, 65062 (Sept. 20, 2023) (citing GAO, GAO-15-154, ``Increased
Protections Needed for Foreign Workers,'' p. 37 (2015), https://www.gao.gov/assets/gao-14-154.pdf).
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Finally, the prohibited fee provisions in this rulemaking include
strong reimbursement incentives, with petitioners facing up to a 4-year
period of denial unless all affected beneficiaries have been
reimbursed. The increased likelihood that reporting a prohibited fee
will lead to a full reimbursement for affected workers may also serve
to encourage whistleblowers to come forward.
Comment: Multiple commenters wrote that the proposed consequences
for petitioners are severe, significant, overly punitive, strict, or
not commensurate with the alleged violation, particularly in cases
where the petitioner has reimbursed the worker in full, or the behavior
is unintentional, unknown, and out of the petitioner's control. An
individual commenter stated that the proposal would create ``extreme
penalties for potentially minor violations.''
Many commenters remarked on the negative impacts of this proposal
on employers and others who rely on them. For example, a State
Government agency said that DHS's proposed 1- to 4-year debarment would
hinder the hiring of workers. Furthermore, several commenters including
trade associations and a joint submission expressed concern that a year
without access to the H-2 program could result in irreparable harm to
U.S. employers and put them out of business, which would impact the
nation's food supply and national security.
Multiple commenters, including a few professional associations and
several individual commenters, additionally expressed concern that the
proposed consequences would penalize employers for ``doing the right
thing.''
[[Page 103238]]
The commenters said that employers who take corrective action or report
prohibited recruitment fees would be penalized by possible denial or
revocation, or debarment from the program, with limited exceptions.
While describing a detailed scenario, a joint submission said that
under the Department's proposed framework, a single fee violation
occurring at any level could cause significant harm to an enterprise if
an employer cannot meet the ``impossibly high'' standards of evidence.
Precluding an entire corporate structure from utilizing the H-2 program
for 1 year, the commenters said, would amount to an ``extreme
punishment'' resulting in ``catastrophic financial losses'' and
downstream economic consequences for the employer and the totality of
its workforce. Thus, the commenters continued, the Department's
proposal may cause workers more harm, contrary to the proposed rule's
objective, due to the disruption in employment and lack of earning
potential. Further, the commenters stated that a ``prohibited fee death
sentence'' could translate into missed career opportunities for skilled
U.S. workers who benefit from employers' abilities to fill their entry-
level labor needs through the H-2 programs.
The joint commenters additionally emphasized that employers are not
in a position to solve endemic corruption, and most do not have the
financial resources to investigate recruitment activities outside of
the United States. In expressing their view that no amount of due
diligence is a perfect safeguard against bad actors, the commenters
said that employers would inevitably come across a fee violation or
potential violation at some point in their H-2 program history. The
commenters further remarked that bad actors unaffiliated with employers
have engaged in fraudulent activities under their clients' names, which
would make it difficult for an employer to prove that they were not
involved in such activity and could lead to ``wrongful convictions.''
Thus, the commenters concluded that the Departments' ``rigid'' proposal
would be ``completely untenable'' and represent a ``massive
overreach.''
Response: DHS acknowledges the significance of the potential
consequences of a petition denial or revocation based on a USCIS
finding that an associated H-2 beneficiary paid or agreed to pay
prohibited fees. The Department disagrees, however, that the
consequences are ``overly punitive'' and not commensurate with a
violation of the prohibited fees provisions. Instead, the consequences
as finalized in this rule recognize the seriousness of these types of
offenses and the severity of situations in which beneficiaries go into
debt before obtaining an employment opportunity and the urgent need to
ensure that beneficiaries not be subject to exploitation or other forms
of coercion as a result of incurring such debt.
DHS also acknowledges the potential financial losses some employers
may experience if they are precluded from utilizing H-2 workers under
the finalized 1-year and additional 3-year periods. These more robust
consequences are not intended to force petitioners to remedy all
``endemic corruption'' prevalent in noncitizen worker recruitment and
are intended to incentivize petitioners to take appropriate
responsibility for their own employees, or any third party entities it
engages, as well as those further downstream, in the recruitment
process and in obtaining workers under the H-2 programs.
Finally, DHS disagrees with the comments that this rule
``penalize[s] employers for `doing the right thing.''' Instead, in
recognizing some petitioners may still encounter bad actors, DHS is
putting in place mechanisms such that petitioners may avoid liability
under certain circumstances, by taking proactive steps to prevent the
collection of such fees and taking immediate remedial action, as
described in multiple areas in this preamble.
Comment: Numerous commenters, including a joint submission and
several associations, encouraged DHS to re-evaluate the proposed
enforcement measures or its handling of circumstances involving
prohibited fee violations. Specifically, instead of focusing on denials
and revocations, the commenters urged the Department to propose clear,
reasonable alternatives for public comment that constitute a
comprehensive strategy to protect workers while balancing employers'
challenges to preventing the unlawful collection of fees with their
need to access the program. Similarly, another trade association
encouraged the Department to consider measures that would allow
employers to protect workers, rather than subjecting them to ``strict
liability'' for unknown actions of third parties.
Several commenters offered specific alternatives to the proposed
regulations around denials and revocations for the collection of
prohibited fees, detailed below.
Numerous commenters suggested reduced or graduated penalties for
fee violations. For example, a joint submission wrote that the denial
of one petition and the inability to secure workers pursuant to that
petition would constitute an appropriate punishment for a fee
violation. The joint commenters recommended that the Department
consider making the 1-year ``bar'' applicable only to willful
violations, repeat occurrences, or cases where the employer did not
take affirmative steps to comply with the regulations. The commenters
suggested that this punishment not extend to first-time violators or
instances where the employer undertook reasonable efforts to comply or
promptly rectified the issue.
A few trade associations and a professional association encouraged
the Department to ``gradient'' penalties commensurate with the
circumstances of the violation and reserve denials or revocations for
repeat, ``intentional'' or ``egregious'' violations. The business
association added that denial or revocation must only occur after the
petitioner has the opportunity to rebut adverse information. Instead of
a ``one-size-fits-all'' approach that removes agency discretion to
evaluate cases based on their merits, a business association similarly
suggested a graduated scale of penalties, owed by the petitioner to the
Department and based on the company's track record. The association
said that such penalties would be reasonable if the petitioner
``directly committed'' or was a ``knowing accomplice'' to the
questionable activity. The association remarked that a harsher penalty
of a denial or revocation would be fitting in situations where the
imposition of fees could be deemed a pattern, but the Department's
``one-size-fits-all'' approach that removes the discretion to evaluate
cases based on their merits is unnecessarily punitive and should be
abandoned.
A professional association recommended that the Department impose
fines for first-time violations when it determines that the H-2
beneficiary has paid or agreed to pay a prohibited fee.
A trade association suggested, instead of a denial or revocation,
that DHS require a mutual attestation for an employee's file, whereby
both the petitioner and the worker sign an agreement that prohibited
fees were not charged. If the worker discloses that fees were charged,
then the petitioner would be required to follow the current
reimbursement requirements.
A research organization said that the proposed denial periods for
charging prohibited fees are ``far in excess of the infraction in many
cases,'' as the
[[Page 103239]]
prohibited fee could constitute ``a very small percentage of total
remuneration for the worker.'' The commenter suggested that, in cases
where the prohibited fees are less than 5 percent of the total value of
the contract, DHS should not impose a ``bar'' and instead should afford
an opportunity for the employer to make the worker whole.
Response: DHS declines to make the changes as articulated by the
commenters and disagrees that the provisions finalized in this rule are
excessive or lead to a ``one-size-fits-all'' approach. With respect to
the commenter's assertion that the 1-year denial period should only
apply to ``willful'' violations, for the reasons discussed in an
earlier response, DHS considers a denial or revocation for prohibited
fees to constitute a substantial failure to meet conditions of the
petition, that is, a willful failure to comply with program
requirements that constitutes a significant deviation from the terms
and conditions of the petition. Furthermore, it is inaccurate to state
that USCIS decisions will not be based on the merits of any specific
case. In making a determination as to whether a violation of the
prohibited fees provisions has occurred, USCIS evaluates each case
based on the totality of the submitted evidence to determine whether:
the petitioner made ongoing, good faith, reasonable efforts to prevent
and learn of the prohibited fee collection or agreement throughout the
recruitment, hiring, and employment process; the petitioner took
immediate remedial action as soon as it became aware of the payment of
or agreement to pay the prohibited fee; all affected beneficiaries, or
designees only if such beneficiaries cannot be located or are deceased,
have been fully reimbursed; and, if applicable, that extraordinary
circumstances beyond the petitioner's control resulted in its failure
to prevent collection or entry into agreement for collection of
prohibited fees. Where DHS intends to either deny or revoke a petition,
the petitioner will be notified and afforded the opportunity to respond
to the agency's intent to deny or revoke the petition, as provided
under 8 CFR 103.2(b)(8).
In declining to adopt the commenters' specific suggestions for
amending the consequences for prohibited fee violations, such as
reserving denial or revocation of petitions based on ``egregious''
infractions, only denying petitions filed by repeat offenders, or
fining first-time offenders instead of denying their petition, DHS
finalizes the proposals from the NPRM in the belief that the provisions
will be more effective when the potential consequences of such
violations are clear and unambiguous. Basing the severity of the
consequences on a gradient basis, or denying or revoking only certain
petitions even after determining that a prohibited fee was collected,
would unacceptably introduce ambiguity and uncertainty and risk
inconsistent adjudications, thereby potentially weakening the deterrent
effect intended by these provisions. Further, where a petitioner can
demonstrate that it was truly acting in good faith to prevent and/or
remedy a prohibited fee violation, the new regulations will provide
those petitioners with a mechanism to avoid denial or revocation of
their petition.
DHS further declines to adopt the suggestion to require a mutual
attestation whereby both parties sign an agreement that no prohibited
fees were paid or agreed to by workers. As noted in the NPRM, 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. 88 FR 65040,
65054 (Sept. 20, 2023). See 20 CFR 655.9(a), 20 CFR 655.20(p), and 20
CFR 655.135(k). Accordingly, USCIS' acceptance of such a contract alone
would mean that nearly all petitioners could avoid liability by simply
requiring their prospective or current worker to sign such an
agreement.
Finally, the suggestion to allow the petitioner to simply reimburse
a beneficiary when the prohibited fees are less than 5 percent of the
total value of the contract, without facing any other consequence,
fails to recognize the harm already done to a beneficiary who has
incurred debt to pay such fees and fails to deter this harm from
occurring in the first place, as intended by this provision.
Comment: A couple of commenters suggested more aggressive penalties
for violations of the prohibited fee provisions. A union urged DHS to
take more aggressive action and increase denial periods in light of the
pervasiveness of prohibited fee collection. The commenter recommended
increasing the penalties beyond what is proposed in the rulemaking and
provided detailed modifications to the proposed regulatory language.
Specifically, the union recommended increasing the denial period under
section 214.2(h)(6)(i)(C) from 1 year to 3 years and increasing the
denial period under section 214.2(h)(6)(i)(D)(1) to 2 years, for a
total potential 5-year bar. Citing 8 U.S.C. 1184(c)(14)(A)(ii), the
union said that DHS can deny petitions based on a failure to meet
program requirements for a period of up to 5 years and, as such, DHS
would not be fully exercising its authority to deny petitions for
charging prohibited fees unless it increases the proposed denial
periods.
A research organization recommended that DHS increase what the
commenter refers to as the ``debarment'' periods to a 5-year minimum
for a first offense and permanent debarment for all other offenses,
reasoning that a 1-year debarment following an H-2 denial or revocation
based on prohibited fees is insufficient to deter employers from
engaging in such conduct. The organization, citing DHS's justification
in the proposed rule, reasoned that recruitment fees put workers at
risk of debt bondage, human trafficking, and other abuses. The
commenter further remarked that payment of such fees by workers
strengthens incentives for employers to prefer a foreign workforce over
U.S. workers, which would violate the law and congressional intent
behind the H-2 programs (INA sec. 101(a)(15)(h)(ii)). Conversely, the
commenter reasoned that raising the penalty for collecting such fees
would protect workers and better reflect the seriousness of these
violations.
Response: DHS appreciates these comments but declines to adopt the
suggested revisions. As finalized in this rulemaking, the consequences
of a denial or revocation for prohibited fees within the time period
prescribed in this final rule strikes an appropriate balance in
creating a reasonable and strong deterrent against employers or
entities working on their behalf charging prohibited fees to H-2
workers, while also recognizing that employers or entities may make
lasting changes to practice, policies, and personnel over time to
remedy deficiencies. The rule also adopts robust measures to
incentivize the full reimbursement of such fees to H-2 beneficiaries or
their designees in those instances where such improper fees have
already been paid.
Comment: A union wrote that the Department must ban recruitment
fees in ways that do not penalize workers and encouraged agencies to
work together to reverse the policy of denying visas to workers who
admit to being charged such prohibited fees. In addition to other
measures, the union suggested that USCIS grant humanitarian parole and
work authorization to workers for at least a year following the
identification of a prohibited fee violation. The union additionally
suggested that the Department take steps to ensure that
[[Page 103240]]
employers do not continue to use foreign labor recruiters who have
charged prohibited fees, such as by issuing a notice to employers who
may have used that recruiter.
Response: DHS appreciates the commenter's feedback but is not
making any changes based on this comment. Regarding beneficiary
reluctance to admit to being charged prohibited fees, this rule adopts
several provisions that are meant to remove some of the disincentives
to reporting such violations. Specifically, the permanent adoption of
portability provisions, as well as new whistleblower protections and
extended grace periods in cases of revocation and cessation of
employment, provide workers with flexibility to find new H-2 employment
and certain protections from potential employer retaliation for
reporting program violations. Additionally, the strengthened prohibited
fee provisions in this rulemaking should increase the likelihood that
reporting a prohibited fee will lead to a full reimbursement for
affected workers and may also serve to encourage those workers to
report these violations. DHS acknowledges that these provisions would
mainly benefit workers already in the United States, however, the
suggestion to reverse the existing policy of denying visas to workers
who admit to being charged illegal fees would require Department of
State action and is outside the scope of this rulemaking.
Further, DHS declines to adopt the suggestion to create a new
process of issuing notices to employers who may have used foreign
recruiters identified as having charged prohibited fees, as such a
notification process would prove overly difficult for DHS to implement,
accurately matching foreign recruiters accused of wrongdoing to
specific employers outside of the normal petition adjudication process.
However, DHS notes that, if during the adjudication of a petition USCIS
received information that an employer may have used a foreign labor
recruiter found to have charged illegal fees, USCIS could issue a
notice to the employer and request additional evidence on that basis.
In addition, DHS is adopting in this rulemaking robust provisions that
require petitioners to conduct ongoing, good faith, reasonable efforts
to ensure against the collection of prohibited fees throughout the
recruitment, hiring, and employment process. These provisions should
address the commenter's concern that petitioners will use recruiters
who have been identified as having charged prohibited fees.
With respect to the grant of humanitarian parole with work
authorization to workers subject to the payment of prohibited fees, DHS
notes that parole based on urgent humanitarian reasons may be granted
based on certain factors such as, but not limited to, whether the
circumstances are pressing, and the degree of suffering that may result
if parole is not authorized. A grant of parole is a discretionary
authorization by USCIS to be given on a case-by-case basis and is not
addressed in or limited by this rulemaking, which only focuses on the
H-2 programs.
n. Reimbursement of Prohibited Fees to Workers
Comment: A few trade associations, a union, and a professional
association expressed general support for the reimbursement of
unlawfully collected fees.
Response: DHS agrees that it is important to require reimbursement
of prohibited fees. Bearing in mind the serious nature of prohibited
fee violations and the significant harm to beneficiaries who are
charged such fees, it is appropriate in such circumstances to provide
strong incentives to ensure that beneficiaries or their designees are
fully reimbursed. In addition to requiring reimbursement, this final
rule aims to provide strong incentives to prevent the payment or
agreement to pay prohibited fees in the first place, given the concerns
regarding beneficiaries incurring a debt burden in order to obtain H-2
employment.
Comment: A union suggested that petitioners who are unable to
reimburse the beneficiary or their designee within the proposed 4-year
period should thereafter be required to contribute the entirety of the
fee to a fund for victims of H-2 violations as a condition for
regaining access to the program.
Response: DHS declines to require petitioners to contribute to a
fund for victims when a beneficiary or designee cannot be reimbursed as
this suggestion would require DHS to create a new process and
regulatory scheme that would separately be subject to notice and
comment rulemaking, particularly since DHS would need to define the
universe of ``victims of H-2 violations,'' determine eligibility for
receiving payments from the fund, including the amounts that would be
distributed and how those would be set, create a process to request or
initiate reimbursement, as well as create an appeal/dispute resolution
process. In addition, DHS may need additional statutory authorities to
both expend resources to establish this process, as well as to collect
and hold unlawfully collected fees, and distribute funds to victims of
H-2 violations. The commenter's proposal would also be operationally
difficult and costly to administer because DHS may need to locate
victims abroad.
Comment: While expressing overall support for the proposed
prohibited fee provisions, an advocacy group encouraged the Department
to expand the reimbursement requirements to include full compensation
for all monetary damages associated with the unlawful collection of
fees. The commenter reasoned that prohibited fees cause H-2 workers to
incur debt with high interest rates and ensuring that reimbursement
must cover all damages would achieve the goal of making workers whole.
The commenter suggested the following regulatory text, to be added to 8
CFR 214.2(h)(5)(xi)(A)(1) and 212.4(h)(6)(i)(B)(1): ``To fully
reimburse a beneficiary who was charged a prohibited fee, the
petitioner must reimburse the beneficiary for the prohibited fee in
full plus any actual damages the beneficiary incurred as a result of
the prohibited fee, such as interest.''
Response: DHS appreciates this comment but declines to make any
changes with respect to the requirement to fully reimburse all
beneficiaries or their designees for any collected prohibited fees. DHS
acknowledges that 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. Thus, DHS is finalizing the regulatory
provisions at 8 CFR 214.2(h)(5)(xi) and 8 CFR 214.2(h)(6)(i) in order
to incentivize petitioners to prevent the collection of prohibited fees
and to require reimbursement of beneficiaries (or, in limited
circumstances, a designee) in the event that such fees are collected.
However, DHS declines to extend the reimbursement requirement to
damages or interest beyond the prohibited fees themselves as it would
be too difficult for USCIS to determine the amount of such damages or
interest, as well as the connection of any possible collateral harm to
the worker resulting from payment of the prohibited fees. Nothing in
this final rule, however, is intended to prevent a worker from seeking
damages for such harms in a private cause of action against an
offending employer or other person or entity.
[[Page 103241]]
Comment: In light of concerns related to the strengthened
prohibited fees provisions and the proposed consequences, a few trade
associations encouraged DHS to work with petitioners to identify and
establish proper safeguards and protocols to prevent the extortion of
workers and establish methods for swift reimbursement. One of the
associations wrote that employers should be assessed based on their
policies to prevent prohibited fees from being charged or threatened,
and whether they respond properly upon discovery of a problem by
reimbursing the worker and appropriately dealing with the offending
party (for example, the employee or recruiter). One of the associations
further suggested, as an alternative to denial or revocation, that DHS
require reimbursement in situations where the petitioner did not have
knowledge of the prohibited fee.
Response: The provisions at 8 CFR 214.2(h)(5)(xi) and 8 CFR
214.2(h)(6)(i)(B), as finalized, appropriately balance concerns about
proper safeguards to prevent the collection of prohibited fees and
recognize the limitations of petitioners. New 8 CFR 214.2(h)(5)(xi)(A)
and 8 CFR 214.2(h)(6)(i)(B) provide narrow exceptions under which
petitioners may avoid liability for prohibited fees. These narrow
exceptions recognize the reality that petitioners may not always be
able to prevent prohibited fees, while also recognizing the importance
of the petitioner taking proactive measures to prevent the collection
of fees in the first place as well as full reimbursement to the
beneficiary or, in limited circumstances, a designee regardless of
whether one of these exceptions applied.
Specifically, where USCIS determines that a petitioner or any of
its employees collected a prohibited fee, USCIS will deny or revoke an
H-2 petition 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 had
made ongoing, good faith, reasonable efforts to prevent and learn of
prohibited 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. The petitioner must also demonstrate 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. New 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1).
Where USCIS determines that a prohibited fee has been collected by
a third party, USCIS will deny or revoke the H-2 petition on notice
unless the petitioner demonstrates to USCIS through clear and
convincing evidence that it made ongoing, good faith, reasonable
efforts to prevent and learn of such payment or agreement throughout
the recruitment, hiring, and employment process. Further, a petitioner
must establish that it took immediate remedial action as soon as it
became aware of the payment of the prohibited fee or agreement. The
petitioner must also demonstrate that all affected beneficiaries or,
only if such beneficiaries cannot be located or are deceased, their
designees have been fully reimbursed. Thus, the petitioner will have
the opportunity to avoid denial or revocation of a petition by
demonstrating its policies and efforts to prevent the collection of
prohibited fees in the first place, as well as what remedial actions it
took including full reimbursement of affected beneficiaries or their
designees, as described in these provisions. New 8 CFR
214.2(h)(5)(xi)(A)(2) and 8 CFR 214.2(h)(6)(i)(B)(2).
Comment: A professional association suggested that, in
circumstances when there is no evidence that the employer knew or
should have known about a recruiter's violation of the prohibitions
against the collection and payment of fees, the recruiter should
reimburse the workers, rather than the employer. The association added
that H-2 employers should not be responsible for reimbursing payments
collected by attorneys who also fail to advise the employers or who
otherwise act without the employer's knowledge in the collection of
legal or other fees.
Response: Unlike the provisions regarding prohibited fees charged
by the petitioner or its own employees at 8 CFR 214.2(h)(5)(xi)(A)(1)
and 8 CFR 214.2(h)(6)(i)(B)(1), which specifically require evidence
that the petitioner itself has fully reimbursed all affected
beneficiaries or their designees in order to avoid denial or
revocation, the provisions at 8 CFR 214.2(h)(5)(xi)(A)(2) and 8 CFR
214.2(h)(6)(i)(B)(2) require evidence ``that all affected beneficiaries
or their designees have been fully reimbursed'' without specifying the
reimbursing party. This wording accounts for the possibility that in
some cases the offending recruiter or third party may provide the
reimbursement. Ultimately, however, it is the petitioner's
responsibility as the H-2 program user to ensure that the reimbursement
takes place.
As the party seeking the benefit of using the H-2 program to employ
temporary workers, it is the petitioner--not any third party it may
engage to assist in the process--who is required to certify their
agreement to abide by the conditions of the H-2A or H-2B program.\49\
It is therefore both appropriate and reasonable to require the
petitioner to ensure its H-2 workers are reimbursed in the event that
the workers are charged a prohibited fee by a third party that the
petitioner engaged.
---------------------------------------------------------------------------
\49\ See USCIS, Form I-129, ``Petition for a Nonimmigrant
Worker,'' https://www.uscis.gov/i-129 (last updated June 3, 2024).
---------------------------------------------------------------------------
Comment: A professional association expressed concern regarding the
proposal to require reimbursement as a condition of approval of H-2B
petitions following the denial or revocation of a petition for
prohibited fees. Specifically, the commenter was concerned with the
requirement that ``all'' workers be fully reimbursed and asked what the
outcome would be for employers who ``have trouble contacting'' former
employees from 2 or 3 years prior and whether the employer would be
``debarred for life.'' The association discouraged DHS against using
absolute terms in the regulatory language that could unjustly penalize
employers.
Response: DHS declines to make any changes to these provisions
based on this comment which appears to have misunderstood the provision
and its consequences. Even when USCIS determines that the petitioner
collected or entered into an agreement to collect a prohibited fee
under new 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR 214.2(h)(6)(i)(B)(1),
the petitioner would not have its petitions denied ``for life.'' Where
a petitioner is found to have collected or entered an agreement to
collect prohibited fees, USCIS will deny or revoke the petition unless
the petitioner can demonstrate that it meets the exception at new 8 CFR
214.2(h)(5)(xi)(A)(1) and 8 CFR 214.2(h)(6)(i)(B)(1). Where a
beneficiary has paid or agreed to pay a prohibited fee to a third
party, USCIS will deny or revoke the petition unless the petitioner can
demonstrate it meets the exception at new 8 CFR 214.2(h)(5)(xi)(A)(2)
and 8 CFR 214.2(h)(6)(i)(B)(2). USCIS will deny any H-2 petition filed
by the same petitioner or a successor in interest within 1 year after
the decision denying or revoking on notice an H-2 petition on the basis
of paragraph (h)(5)(xi)(A) or (h)(6)(i)(B). See 8 CFR
214.2(h)(5)(xi)(B) and 8 CFR 214.2(h)(6)(i)(C).
[[Page 103242]]
Subsequently, USCIS will deny any H-2 petition filed by the same
petitioner or successor in interest for an additional 3-year maximum
period, unless the petitioner or successor in interest demonstrates to
USCIS that each beneficiary or designee has been fully reimbursed. If
the petitioner or successor in interest demonstrates to USCIS that each
beneficiary or designee has been fully reimbursed, they can avoid a
subsequent denial of their petition during this 3-year period. The
commenter is correct that, during the additional 3-year period
described in 8 CFR 214.2(h)(5)(xi)(C) and 8 CFR 214.2(h)(6)(i)(D), a
petitioner will need to demonstrate reimbursement as a condition of
approval of an H-2 petition. However, DHS notes that the additional 3-
year period described in 8 CFR 214.2(h)(5)(xi)(C) and 8 CFR
214.2(h)(6)(i)(D) is a maximum of 3 additional years, and thus would
not result in an employer having its petitions denied ``for life.''
Further, there is nothing requiring a petitioner to wait to reimburse
beneficiaries or designees until the additional 3-year period described
in 8 CFR 214.2(h)(5)(xi)(C) and 8 CFR 214.2(h)(6)(i)(D) has passed.
Indeed, under this final rule, the petitioner should make every effort
to reimburse beneficiaries or designees as soon as the prohibited fee
is discovered. By promptly reimbursing the beneficiary or designee, a
good faith petitioner may avoid denial or revocation of the petition
(provided all the other conditions of the exception are met), and even
in the event of denial or revocation, avoid a subsequent denial during
the time period described in 8 CFR 214.2(h)(5)(xi)(C) and 8 CFR
214.2(h)(6)(i)(D).
The commenter is also correct that a failure to reimburse due to
``trouble contacting'' beneficiaries or their designees will not
satisfy the requirements of 8 CFR 214.2(h)(5)(xi)(C) and 8 CFR
214.2(h)(6)(i)(D). However, DHS is firmly of the view that it is both
appropriate and reasonable to require the petitioner to ensure its H-2
workers are reimbursed, given the harm already done to workers who
incurred debt to pay the prohibited fees. As noted in the NPRM,
petitioners are 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.
o. Beneficiary Designees
Comment: An advocacy group encouraged the Department to finalize
the language defining ``designee'' as currently proposed at 8 CFR
214.2(h)(5)(xi)(A)(1), 212.4(h)(6)(i)(B)(1). The group reasoned that
while many workers will choose to identify designees, some may prefer
non-governmental organizations or other entities due to concerns about
retaliation against family members.
Response: DHS is finalizing the definition of ``designee'' as
originally proposed at 8 CFR 214.2(h)(5)(xi)(A)(1) and
212.4(h)(6)(i)(B)(1), although it is incorporating the definition at
new 8 CFR 214.2(h)(5)(xi)(A)(3) and 212.4(h)(6)(i)(B)(3) to clarify
that it applies to all prohibited fee provisions at paragraph
(h)(5)(xi) and (6)(i) of this section. As noted by the commenter, the
definition enables beneficiaries to provide an individual or entity as
their designee, which accommodates those who may choose to use a non-
governmental organization as their designee.
Comment: A few trade associations endorsed the proposal that
employees would identify beneficiary designees during the initial
application and recruitment processes for the purposes of reimbursement
but expressed concern with the application of the beneficiary designee
provision in practice. For example, the associations stated that it is
most likely that a petitioner would be required to reimburse a
beneficiary or designee following the end of a petition period and that
it is unclear from the proposed rule the length of time or efforts the
employer would need to undergo to ``maintain and update'' the designees
following a petition's validity period. The associations additionally
remarked that the proposed rule lacks a description of ``exhaustion of
efforts'' to locate the worker or designee. The commenters encouraged
the Department to establish a clear procedure to satisfy this criterion
and steps to reimburse the worker or beneficiary designee.
Alternatively, a couple of these commenters suggested that DHS instead
require petitioners to take ``reasonable steps'' to reimburse the
worker or designated beneficiary, with one association suggesting that
DHS define ``reasonable steps.'' The commenters concluded that the
``Department must establish a clear procedure to provide notice to
petitioners of what reasonable steps must be taken to attempt to
reimburse the worker or beneficiary designee.''
Response: DHS declines to make changes based on these comments.
Although commenters expressed concern that a petitioner would most
likely be required to reimburse a beneficiary or designee following the
end of a petition period, that would generally not be true in the case
of a petition denial. While a revocation could take place after the
petition period, this generally would not occur long after the petition
period, thus it would not be unreasonable to expect a petitioner to
retain records that would allow them to reimburse a beneficiary or
designee as necessary. DHS expects each petitioner to determine its own
best practices on how to comply with this provision. DHS also declines
to codify an exception to the reimbursement requirement for
``exhaustion of efforts'' or ``reasonable steps'' to attempt to
reimburse the worker or beneficiary, as it is not clear how such an
exception would be materially different than the regulations that were
in effect prior to the effective date of this final rule which allowed
petitioners to satisfy the requirement that it reimburse the
beneficiary based on reasonable efforts to locate the beneficiary,
including contacting the beneficiary's known addresses. See current 8
CFR 214.2(h)(5)(xi)(C) and 8 CFR 214.2(h)(6)(i)(D).
Comment: A couple of trade associations expressed concern that the
proposed beneficiary designee provisions could negatively impact
enterprises in cases where a beneficiary has passed away before
appointing a designee, in which case the employer would be unable to
comply with the requirement.
Response: As noted in the preamble to the NPRM, upon finalization
of this provision, DHS expects petitioners to inform the beneficiary
early in the recruitment process of the beneficiary's ability to
independently name a designee, to obtain full designee information, and
to maintain and update such information as needed to ensure that the
petitioner has in fact complied with the reimbursement requirement. 88
FR 65040, 65056 (Sept. 20, 2023). Taking these measures as a matter of
best practice will help alleviate the risk of the scenario envisioned
by the commenters.
p. Successors in Interest
Comment: A union articulated its strong endorsement of the proposal
to apply the consequences for the collection of prohibited fees to
successors in interest, reasoning that this approach, in combination
with other related prohibited fee provisions,
[[Page 103243]]
would be an important first step to root out abusive farm labor
contractors. The union mentioned its own experiences with H-2A farm
labor contractors found to have committed extensive violations of the
H-2A regulations as a result of court actions or investigations by
Federal agencies, but who continue to operate, usually with an
associate or family member becoming the formal employer.
Response: As recognized by the commenter, applying the consequences
for prohibited fees to a petitioner's successor in interest is intended
to address the issue of petitioning entities avoiding liability by
changing hands, reincorporating, or holding itself out as a new entity.
Comment: A trade association expressed concern that, as proposed,
the provisions precluding a petitioner or successor in interest from
participation in the H-2 programs on the basis of prohibited fees would
extend to ``legitimate'' successors in interest, who the commenter said
are ``completely uninvolved with the underlying violation.'' Providing
examples, the association wrote that this consequence is ``excessive,''
``too broad,'' and ``fails to provide any additional protection to
workers.'' The association further reasoned that the proposed provision
requires no discretion on DHS's part and that the Department's
enforcement authority ``is more than capable'' of undertaking an
investigation to determine whether a successor in interest is a
``reinvented version'' of its predecessor. Finally, the association
wrote that it is unclear whether other petitions of a successor in
interest who already employed H-2 workers would be implicated and
expressed concern with the harmful consequences of such an approach.
The association concluded that the Department should reject the
successor in interest provisions altogether.
A professional association wrote that the ``overly broad''
definition of a successor in interest, which assigns liabilities to new
entities that have not succeeded to all the rights and liabilities of
the predecessor entity, could negatively impact other visa categories.
The association expressed concern that, should the proposed definition
be promulgated and subsequently applied to other visa categories
without petitioners' knowledge or opportunity to provide input, the
definition could violate the Administrative Procedure Act (APA).
Furthermore, the association wrote that imputing liability upon
purchasing a business defies an employers' free will to engage in
business transactions, and it unfairly assigns liability to employers
that did not participate in the predecessors' business conduct. The
commenter concluded that the successor-in-interest relationship should
apply only when the employer that is carrying on the business of a
previous employer has agreed to succeed to all of the rights and
liabilities of the predecessor entity via a written contract. The
professional association additionally expressed concern about what it
calls the overbroad definition of a successor under proposed 8 CFR
214.2(h)(6)(i)(D)(2) for the purposes of applying the 1-year bar on
subsequent approvals. The association appreciated USCIS' consideration
of multiple enumerated factors to determine a successor in interest but
suggested additional language ``regarding notice and knowledge a
successor had or could have had regarding a prior determination
resulting in a 1-year ban.''
An attorney wrote that the expansive definition of a successor in
interest ``virtually guarantees'' that an affected employer would be
unable to sell their business, ``even in an arms-length transaction.''
Response: DHS declines to make any changes as a result of these
comments. As noted above, applying the consequences for prohibited fees
to a petitioner's successor in interest is intended to address the
issue of petitioning entities avoiding liability by changing hands,
reincorporating, or holding itself out as a new entity. In such cases,
the successor in interest may be considered a continuation of the
petitioner and applying the consequences to the successor in interest
would be appropriate. Thus, new 8 CFR 214.2(h)(5)(xi)(C)(2) clarifies
that an entity will only be considered a successor in interest where it
is ``controlling and carrying on the business of a previous employer.''
Successor liability is a longstanding concept and has been applicable
to H-2 employers since 2008, when DOL codified it in H-2A and H-2B
regulations.\50\ DHS notes that the definition of successor in interest
and factors listed in new 8 CFR 214.2(h)(5)(xi)(C)(2) and 8 CFR
214.2(h)(6)(i)(D)(2) are substantially similar to the definition and
factors that have been in the DOL H-2 regulations. Therefore, the
regulation is sufficiently clear and is generally familiar to the
regulated public.
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\50\ See, e.g., 20 CFR 655.5, 655.103(b); 29 CFR 503.4.
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DHS disagrees with the suggestion that the successor in interest
provision should apply ``only when the employer that is carrying on the
business of a previous employer has agreed to succeed to all of the
rights and liabilities of the predecessor entity via a written
contract.'' Adopting such a high standard would essentially create an
easy loophole for a successor entity to avoid liability and could
defeat the goal of preventing petitioners from easily avoiding
liability simply by entering into a formal contract with the
predecessor entity disclaiming certain liabilities. Further, regarding
the suggestion to include ``notice and knowledge a successor had or
could have had regarding a prior determination'' in the factors, DHS
does not believe this is necessary. This would be too high of a
standard and create an easy loophole for a successor entity to avoid
liability by choosing to remain ignorant of the previous employer's
actions. Again, the provision is intended to address situations where a
petitioner has sought to avoid liability by simply changing hands,
reincorporating, or holding itself out as a new entity. It is
reasonable to assume that, as part of a legitimate arms-length
transaction, a successor entity would, as a matter of course,
familiarize itself with applicable law, including this rule that might
affect its rights and obligations. It is further reasonable to assume
that a successor in interest would make inquiries into any outstanding
liabilities of the predecessor entity, and that the predecessor entity
would make appropriate disclosures. Requiring DHS to consider all
circumstances as a whole will prevent the unfair assignment of
liability on an unrelated entity. In this regard, while an entity can
be a successor whether or not it possesses knowledge of a prior
determination, the presence of some of the factors listed at new 8 CFR
214.2(h)(5)(xi)(C)(2) and (6)(i)(D)(2) indicate that the successor
entity had or could have had notice and knowledge of a prior
determination, such as if there was similarity of supervisory
personnel, or the former management or owner retains a direct or
indirect interest in the new enterprise, or familial or close personal
relationships between predecessor and successor owners of the entity.
DHS disagrees with the comment that the successor in interest
provision ``requires no exercise of discretion from the Department.''
The regulation explicitly states that ``all of the circumstances will
be considered as a whole.'' This ``totality of the circumstances''
approach necessarily involves some level of discretion in which DHS
must assess the weight to
[[Page 103244]]
give facts as applied to the regulatory factors in order to determine
whether an employer is a successor in interest.
Finally, with respect to the concern that the definition of a
successor in interest at new 8 CFR 214.2(h)(5)(xi)(C)(2) and 8 CFR
214.2(h)(6)(i)(D)(2) could ``negatively impact other visa categories''
and potentially violate the APA, DHS reiterates that this definition is
limited to the H-2 programs.
2. Mandatory and Discretionary Denials for Past Violations
a. General
Comment: A couple of advocacy groups and a research organization
expressed support for the proposed provisions, reasoning it would
increase accountability, curb employer violations and abuse, reduce
harm faced by workers, and level the playing field for employers who
obey the law. Similarly, a union expressed support for the proposed
provisions, in particular the mandatory denials for administrative
determinations, criminal convictions, or civil judgments. A group of
Federal elected officials wrote that in addition to the consequences
based on prohibited fees, barring employers for other violations for
several years would put an end to illegal employer and recruiter
practices, as it would no longer be cheaper for them to break the law
than to comply with it.
Response: DHS agrees that the proposed provisions, and the
provisions as finalized in this rule, are important steps to increasing
employer accountability, curbing employer violations and abuse,
reducing harm faced by workers, and leveling the playing field for
employers who obey the law. DHS also generally agrees that these
provisions will help put an end to illegal and abusive employer and
recruiter practices, although DHS cannot verify the commenter's
assertion that it will no longer be cheaper for H-2 employers and
recruiters to break the law than to comply with program requirements as
the commenter did not provide corroborating details or data about the
costs for compliance versus non-compliance.
Comment: A religious organization expressed support for the
proposed provisions, reasoning that they would be important to improve
program integrity, protect H-2 workers, and deter potential petitioners
who have previously committed labor law violations or H-2 program
abuse. The commenter suggested that DHS consider taking additional
steps to strengthen these provisions by referencing U and T visa grants
when considering whether an employer should be barred, adding that
these visa applications may lead to investigations but not prosecutions
for fraud, but that they should be considered against an employer's
participation in the H-2 program.
Response: DHS agrees that the provisions are an important step to
encourage employers to comply with all applicable H-2 requirements,
improve program integrity, and deter employers from engaging in labor
law violations and abuse of the H-2 program. However, DHS declines to
expand the mandatory and discretionary denial provisions to include
consideration of grants of U and T nonimmigrant status visas that were
based on investigations into H-2 employers. Information relating to
noncitizens who are applying for or have been granted U or T
nonimmigrant status visas is subject to strict confidentiality
protections that would generally preclude DHS from disclosing such
information to an H-2 petitioner. See 8 U.S.C. 1367(a)(2). Further, an
investigation into fraud, standing alone, would not trigger the new
mandatory and discretionary denial provisions because an investigation
by itself would not constitute a ``final'' determination as required
under new 8 CFR 214.2(h)(10)(iv).
Comment: Several commenters, including a professional association,
stated that the provisions that would allow for the denial of H-2
petitions for employers that have been found to have committed labor
law violations or other violations of H-2 program regulations were
``overly broad and vague.'' Some of these commenters stated that the
provision was vague and did not provide the public with the ability to
evaluate and comment on what would result in a denial or the standards
against which an employer's conduct would be measured. A few individual
commenters stated that the proposed rule would grant DHS the authority
to deny and revoke H-2 petitions based on ``arbitrary, undefined
standards'' such as perceived labor violations or an employer's lack of
cooperation with an agency. The commenters asked whether an incorrect
pay stub would be grounds for denial or revocation of a petition under
the proposed rule. As a result, these commenters urged the department
to reconsider its implementation of the proposed section.
Similarly, a couple of trade associations provided an example of an
inspector entering the employer's worker housing and seeing that
workers had removed a battery from a smoke detector to stop it from
going off during meal preparation. The commenters questioned whether
this violation would be subject to a mandatory or discretionary denial.
Additionally, while discussing the recently issued DOL ``Adverse Effect
Wage Rate'' regulation, the commenters expressed concern that
violations under that regulation would subject the petitioner to
mandatory or discretionary denials.
Response: DHS disagrees that the provision is overly broad or
vague. Rather, the mandatory grounds for denial in new 8 CFR
214.2(h)(10)(iv)(A) are specific and focused on violations that show a
petitioner's past inability to abide by the requirements of the H-2
programs and, that due to their severity, are alone sufficient to
conclude that the petitioner lacks the requisite intent and ability to
comply with the requirements of the H-2 programs in the future.
Likewise, the discretionary grounds for denial discussed in new 8 CFR
214.2(h)(10)(iv)(B) enumerate specific violations pertaining to the
petitioner's compliance with immigration and employment laws. Because
these still very serious violations could potentially be less egregious
in nature or less directly related to the H-2 programs than the
mandatory grounds, DHS recognizes that this would require additional
analysis before determining whether application of one of the
discretionary grounds is warranted.
In addition to delineating the applicable violations that could
give rise to a discretionary denial, the proposed rule also provided
detailed information on how USCIS will examine the applicable
violations to determine whether a denial should apply. As described in
the proposed rule, specific considerations include: the recency and
number of violations; 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; overall history or pattern of prior
violations; the severity or monetary amount of any penalties imposed;
whether the final determination, decision, or conviction included a
finding of willfulness; 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; timely compliance with
all penalties and remedies ordered under the final determination(s),
decision(s), or conviction(s); and other corrective actions taken by
the petitioner or its successor in interest to cure its violation(s) or
prevent future violations. See 88 FR 65040, 65106 (Sept. 20, 2023).
With respect to the specific examples raised by commenters, DHS
notes that the mandatory grounds for denial only
[[Page 103245]]
apply in three limited circumstances: (1) when there is a final
debarment determination by DOL or GDOL; (2) where there is a final
USCIS denial or revocation decision issued during the pendency of the
petition or within 3 years prior to filing the petition that included a
finding of fraud or willful misrepresentation of a material fact with
respect to a prior H-2A or H-2B petition; and (3) when there is 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. With respect to discretionary denials, DHS declines to state
in absolute terms whether the violations in those examples would or
would not trigger a discretionary denial. Providing specific examples
is not advisable because USCIS will evaluate each violation together
with all the other relevant factors on a case-by-case basis. By
including a very broad scope for the types of violation determinations
that may lead to a discretionary denial under 8 CFR 214.2(h)(10)(iv)(B)
generally and the catch-all provision under 8 CFR
214.2(h)(10)(iv)(B)(3) specifically, DHS recognizes that the violations
underlying these determinations can vary widely in nature and severity.
Comment: Several commenters expressed concerns about the impact of
petition adjudication delays as a result of these provisions, noting
that these provisions will result in an increase in RFEs, denials, and
appeals which could take several weeks to resolve. For example, a
couple of trade associations expressed concern that the proposed
section did not consider the time-sensitive nature of H-2 petitions,
stating that refusing to process an employer's petition serves as an
``effective debarment from the program for at least a year.'' The
commenters added that because the current appeal process is ``slow,'' a
denial or a refusal to process a petition prevents an employer from
obtaining an approved petition regardless of whether an appeal is
successful. Another commenter noted that the time needed to resolve
these requests for evidence is ``time that petitioners do not have in
seeking their critical workforce for jobs related to perishable
commodities.'' Some commenters urged DHS to guarantee ``expeditious
timelines'' of these adjudications. Another commenter urged DHS to
consider ``the opportunity for an expedited appeal process.''
Response: DHS understands that H-2 petitions are time sensitive and
strives to adjudicate each H-2 petition in a timely manner. However,
DHS will not ``guarantee expeditious timelines during periods of
alleged consequences'' nor create a new ``expedited appeal process'' as
suggested by some commenters. DHS already provides expedited processing
of Form I-129 for H-2A petitioners without requiring an additional
fee.\51\ This final rule does not change this practice. If an H-2B
petitioner seeks expedited processing of their H-2B petition, they may
file Form I-907, Request for Premium Processing Service, with fee, with
USCIS.\52\
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\51\ USCIS, ``H-2A Temporary Agricultural Workers'' (stating
``USCIS provides expedited processing of Form I-129 for H-2A
petitions''), https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2a-temporary-agricultural-workers (last updated
Sept. 11, 2024).
\52\ Form I-907, ``Request for Premium Processing Service,''
https://www.uscis.gov/i-907 (last updated June 3, 2024).
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With respect to comments about DHS ``refusing to process an
employer's petition,'' the commenters appear mistaken as to what was
proposed. DHS is not refusing to process an employer's petition but
rather finding that prior violations can be so significant as to
indicate the petitioner's inability and lack of intent to comply with
the requirements of the H-2 programs, such that denial of the petition
is warranted under either the mandatory or discretionary provisions.
DHS will not neglect to process the petition but will rather take
adjudicative action consistent with the new regulations. Regarding the
appeal process, DHS understands that the seasonal nature of some H-2
petitions could be impacted by appeals processing timelines. However,
that is not unique to or caused by these provisions. This is something
faced by any petitioner who fails to demonstrate eligibility for the
benefit sought such that their petition is denied or revoked by USCIS.
Comment: While voicing concerns that the proposed rule does not
address abuse by recruiters and preparers, an individual commenter
stated that the regulations should specify clearly how recruiters and
preparers can be ``debarred,'' reasoning that it is often recruiters or
preparers, not employers, who collect prohibited fees. The commenter
also encouraged USCIS to specify that a failure to list a recruiter
when one has been used can be considered a ``material
misrepresentation'' for purposes of the mandatory and discretionary
grounds for denial. Additionally, the commenter suggested that the
prior use of prohibited recruiters or preparers could serve as a
discretionary basis for precluding approval of an employer's petition.
Response: DHS appreciates the opportunity to clarify that new 8 CFR
214.2(h)(10)(iv) does not create a ``debarment'' process for
recruiters, nor does it create any type of official registry or list of
recruiters who may participate in the H-2 programs. Recruiters do not
register or directly file for benefits with DHS. DHS currently has no
existing framework to exclude or identify a recruiter as ``prohibited''
from the H-2 program in a registry or similar list, and creating such a
framework is outside the scope of this rule. While DOL's Office of
Foreign Labor Certification (OFLC) currently publishes an H-2B
``Foreign Labor Recruiter List,'' which includes the name and location
of persons or entities identified on the TLC as an agent or recruiter,
DOL clearly states that it ``does not endorse any foreign labor agent
or recruiter included in the Foreign Labor Recruiter List, nor does
inclusion on this list signify that the recruiter is in compliance with
the H-2B program.'' \53\ Without a mechanism for a petitioner to
identify a specific recruiter as ``prohibited,'' DHS currently lacks
the means to implement the commenter's suggestion to codify the prior
use of a ``prohibited'' recruiter as part of new 8 CFR
214.2(h)(10)(iv).
---------------------------------------------------------------------------
\53\ DOL, OFLC, ``Foreign Labor Recruiter List,'' https://www.dol.gov/agencies/eta/foreign-labor/recruiter-list. This DOL-
published list is specific to the H-2B program.
---------------------------------------------------------------------------
Notwithstanding the above, if a petitioner fails to disclose on the
H-2 petition that it has used a recruiter to locate and/or recruit the
intended beneficiaries, USCIS may consider this to be a material
misrepresentation or omission, depending on the circumstances. With
this final rule, the Form I-129 is being revised to ask H-2 petitioners
whether they used or plan to use an agent, facilitator, recruiter, or
similar employment service to locate and/or recruit the H-2A/H-2B
workers that they intend to hire by filing the petition. The Form I-129
is also being revised to ask H-2 petitioners to provide the name(s) and
address(es) of all such persons and entities regardless of whether the
petitioner has a direct or indirect contractual relationship with them,
and regardless of whether such person or entity is located inside or
outside the United States or is a governmental or quasi-governmental
entity. If the petitioner used a recruiter prior to submitting the Form
I-129, but did not disclose that information on the petition, or gave
false information about the recruiter they used on the Form I-129,
USCIS may deny or revoke the petition on the basis that the statements
on the petition misrepresented or
[[Page 103246]]
omitted a material fact under existing 8 CFR 214.2(h)(10)(ii) or
(11)(iii)(A)(2), respectively. In turn, this may trigger a
discretionary denial under new 8 CFR 214.2(h)(10)(iv)(B)(2) or new 8
CFR 214.2(h)(10)(iv)(A)(2). As new 8 CFR 214.2(h)(10)(iv) already gives
USCIS the ability to consider the failure to disclose a used recruiter
on an H-2 petition, DHS declines to specifically codify language about
a prior recruiter in new 8 CFR 214.2(h)(10)(iv).
With respect to the comments about debarred agents and preparers,
DOL currently publishes a list of agents and attorneys who are debarred
from the H-2A and H-2B labor certification programs.\54\ Also, the
Department of Justice's (DOJ) Executive Office for Immigration Review
(EOIR) maintains a List of Currently Disciplined Practitioners who are
not authorized to practice before DHS, the Board, and the Immigration
Courts.\55\ If USCIS discovers that an H-2 petition was filed by or
associated with a debarred agent or attorney, depending on the
circumstances, USCIS may consider this information in determining the
credibility of the overall petition. However, DHS also recognizes that
each petition must be adjudicated on its own merits, and in the absence
of other factors indicating that the petition is not approvable, an
agent or attorney's debarment may not have an impact on the eligibility
of the petition, as the agent or attorney's debarment may have nothing
to do with the petitioner or the underlying reason for the prior
debarment may no longer be at issue. Therefore, DHS declines the
commenter's suggestion to codify the prior use of a debarred preparer
as a factor for discretionary denial in new 8 CFR 214.2(h)(10)(iv).\56\
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\54\ DOL, ``Program Debarments,'' https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/Debarment_List.pdf.
\55\ EOIR, ``List of Currently Disciplined Practitioners,''
https://www.justice.gov/eoir/list-of-currently-disciplined-practitioners (last updated June 13, 2024).
\56\ As noted above, however, it remains the responsibility of
the employer to continually exercise ongoing efforts to ensure
against payment of prohibited fees, and an employer's engaging a
recruiter or similar service that has previously collected such fees
could be a factor that DHS would consider in determining whether the
employer is subject to the discretionary denial provisions.
---------------------------------------------------------------------------
Comment: An individual commenter expressed concern that this
section would result in the ``debarment'' of employers without a
hearing. The commenter added that case law requires hearings for
``debarment.'' The commenter stated that Congress requires a hearing,
willfulness, and substantiality, all of which DOL has recognized but
this NPRM specifically denies.
Response: DHS disagrees with the commenter's assertion that the
provisions in this rule result in ``debarment'' of employers without a
hearing. USCIS provides petitioners with an opportunity to challenge
the denial of their petitions pursuant to 8 CFR part 103, including the
ability to bring their case before USCIS' Administrative Appeals Office
(AAO) and request oral argument to present their case. Specifically,
USCIS will be using its existing adjudications and appeals processes to
satisfy this ``notice and opportunity for a hearing'' requirement. See
8 CFR 103.2, 103.3; 88 FR 65040, 65057 (Sept. 20, 2023).\57\ Each
denial determination in new 8 CFR 214.2(h)(10)(iv) would take place
within a nonimmigrant petition adjudication, and as a result would
provide ``notice and opportunity for a hearing'' within that informal
framework. See 8 CFR 103.2, 103.3. To issue a USCIS denial under new 8
CFR 214.2(h)(10)(iv), an Immigration Services Officer (ISO) would
generally issue a NOID or RFE to the petitioner, providing up to 12
weeks to file a response. 8 CFR 103.2(b)(8). Upon considering the
petitioner's response and any rebuttal evidence, the ISO could deny the
petition in a written decision that would explain the specific grounds
for the denial. 8 CFR 103.3(a)(1)(i). With respect to mandatory grounds
for denial in new 8 CFR 214.2.(h)(10)(iv)(A), the notice would inform
the petitioner of their right to appeal, and indicate that the denial
is based upon a mandatory ground for denial and that the petitioner's
pending and subsequently filed petitions would also be subject to
denial based on the same ground, during the applicable period. New 8
CFR 214.2.(h)(10)(iv)(E)(1). With respect to the discretionary grounds
for denial, the notice would inform the petitioner that the
discretionary ground may also apply in the adjudication of any pending
or future-filed petitions during the applicable time period. New 8 CFR
214.2.(h)(10)(iv)(E)(2). If the petitioner refiles during the
discretionary denial period, they will have the opportunity to
establish that they have the ability and intent to comply,
notwithstanding a prior denial. As with a denial notice issued under
new 8 CFR 214.2.(h)(10)(iv)(E)(1), a denial notice issued under new 8
CFR 214.2.(h)(10)(iv)(E)(2) would also inform the petitioner of the
right to appeal the denial, which may include a request for oral
argument, pursuant to 8 CFR 103.3.\58\ Upon issuance of the decision,
the petitioner would have 30 days (plus applicable mailing time) to
appeal the denial of the petition to the Administrative Appeals Office
(AAO). 8 CFR 103.3(a)(2)(i) and 8 CFR 103.8(b). In support of an
appeal, the petitioner may submit a brief, additional evidence, and a
request for oral argument before the AAO. See generally 8 CFR
103.3.\59\ Thus, this final rule provides sufficient procedural
safeguards to ensure a fair and reliable proceeding to ensure that a
petitioner has notice and opportunity for a hearing.
---------------------------------------------------------------------------
\57\ See also Michael Asimow, Admin. Conference of the U.S.,
``Federal Administrative Adjudication Outside the Administrative
Procedure Act'' (2019) (discussing informal adjudication), https://www.acus.gov/sites/default/files/documents/Federal%20Administrative%20Adj%20Outside%20the%20APA%20-%20Final.pdf.
\58\ 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).
\59\ See INS Gen. Counsel, GenCo Op. No. 91-23, Determination of
Date of Final Decision in Denied Cases, 1991 WL 1185134 (Feb. 21,
1991).
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DHS notes, in response to the comment regarding the statute's use
of the term ``notice and opportunity for hearing,'' that INA section
214(c)(14)(A)(ii) does not require, in the event of a denied H-2B
petition and/or appeal of a denied H-2B petition, a formal hearing
under 5 U.S.C. 554 or 556. Rather, DHS's existing adjudications and
appeals processes, described above, satisfy the ``notice and
opportunity for a hearing'' requirement. In this regard, DHS notes that
the plain language of INA section 214(c)(14) does not require an ``on
the record'' hearing or otherwise indicate that Congress expected an
adversarial, trial-type hearing referenced in 5 U.S.C. 554(a) and 556.
Statutes calling for a ``hearing,'' a ``public hearing,'' or an
``appeal,'' without using the words ``on the record,'' are implicit
delegations to the agency to determine the meaning of those terms, and
DHS has determined that ``notice and an opportunity for a hearing''
does not require a hearing on the record.\60\
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\60\ See Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d
12, 17 (1st Cir. 2006) (finding that the prior court's decision that
there is a presumption in the APA for an evidentiary hearing was
created because of an absence of congressional intent and that
basing a statutory interpretation on a negative finding is
``antithetic to a conclusion that Congress's intent was clear and
unambiguous''); Accrediting Council for Indep. Colleges & Schs. v.
DeVos, 303 F. Supp. 3d 77, 110 n.11 (D.D.C. 2018) (concluding that
the phrase ``after notice and opportunity for a hearing'' in a
statute does not trigger APA requirement for formal adjudication).
---------------------------------------------------------------------------
Finally, with regard to the commenter's statement regarding
willfulness and substantiality, as explained in an earlier comment
[[Page 103247]]
response, each of the violations triggering new denial periods in this
final rule, as applied to H-2B petitions, stems from a willful failure
to comply with program requirements or a willful misrepresentation of
material fact. Accordingly, the provisions are consistent with INA
section 214(c)(14), as well as INA sections 103(a), 214(a)(1), and
214(c)(1).
b. Discretionary and Mandatory Denials Related to Other Agencies'
Determinations
Comment: Several commenters expressed concerns with DHS's legal
authority to deny an H-2 petition based on the findings of another
agency. For example, a couple of trade associations stated that the
proposal to deny a petition based upon the finding of another agency
was ``misguided'' and lacked statutory authority. Some commenters
suggested that the Department rework the proposed rule to ensure it is
not interpreting and enforcing DOL regulations, adding that it would
potentially be ``arbitrary and capricious'' of DHS to do so. A trade
association expressed concern that USCIS officers are not experts in
labor law or regulations and that the analysis required under this
section would require these officers to make individual judgments about
the underlying decision and merit of a claim, resulting in an
interpretation that would be arbitrary and capricious. A different
trade association suggested that DHS ensure that its employees are not
overreaching and attempting to ``supplant the regulatory authority'' of
other government authorities. A professional association similarly
expressed concern that ``DHS is also playing enforcer of other agency
laws and rules when, in fact, those other agencies should be enforcing
their own standards.''
Some commenters said that if another Department, such as DOL,
investigates an employer, determines a violation occurred, and imposes
a penalty, DHS lacks the legal authority to impose an additional
penalty on the employer in the form of what it describes as the
discretionary or mandatory bar to approval. A couple of trade
associations stated that the proposal to deny petitions of petitioners
on the basis that they paid civil money penalties to another agency for
a violation lacked a statutory basis, as the Department cannot penalize
an employer for a violation that has already been resolved. The
commenters added that employers typically pay fines for alleged minor
violations because it is cheaper than challenging the violations, but
that the proposal would cause employers to potentially face debarment
as a result of this practice.
A trade association wrote that in situations where other agencies
have determined that debarment is not necessary, the Department should
factor in those agencies' decisions when deciding whether to deny a
petition. Similarly, another trade association stated that when other
agencies have decided a violation does not warrant debarment, DHS ``has
no basis to refuse to approve a petition and thereby effectively impose
a debarment penalty.''
A research organization expressed opposition to the section, saying
it was unreasonable of DHS to second-guess a DOL determination that
debarment was not necessary for a violation. The research organization
said DOL's labor certification stage, rather than the petition stage,
was the correct place to enforce program requirements because it is
earlier in the process and DOL is more accustomed to violation
evaluations. The organization also urged DHS to extend the deference it
has made to its own past determinations to the determinations of other
agencies, including DOL. The commenter stated that this provision is
``unnecessary or duplicative of DOL regulations or proposed
regulations.''
Several trade associations and a couple of advocacy groups
expressed concern with the Department's proposal to deny petitions from
employers who have been subject to an administrative action by DOL's
WHD or other Federal, State, or local agency that did not require
debarment. The commenters reasoned that if an agency's investigation
determined that debarment was not necessary, then the Department should
not deny an employer's petition, as it would effectively debar them
from H-2 programs. Similarly, a trade association stated that DHS
should honor the outcome of an investigation and administrative action
by WHD. The commenter added that the provision allowing for an
additional investigation following WHD's initial actions would create
unnecessary expenses for employers.
Response: DHS disagrees with commenters' claims that it lacks
statutory authority to consider findings of violations made by other
agencies when determining whether to deny an H-2 petition. DHS also
disagrees with the comments about it supplanting other agencies'
authority, seeking to enforce or interpret other agencies' laws, and
purporting to be an expert in other agencies' laws. As discussed in the
proposed rule, as well as elsewhere in this final rule, DHS has broad
authority to deny petitions requesting H-2 workers pursuant to its
general authority under INA secs. 103(a)(1) and (3), and 214(a)(1) and
(c)(1), as well as its specific authority under INA sec.
214(c)(14)(A)(ii). See 88 FR 65040, 65056 (Sept. 20, 2023). Neither the
general nor the specific authority Congress delegated to DHS to
administer immigration laws and approve or deny status to an H-2 worker
upon petition by the importing employer, including authority to
establish the information required on the petition, preclude DHS, or
limit its authority, from denying H-2 petitions based on the final
determinations of serious violations made by DOL or other agencies. As
discussed in response to public comments in part IV.C.1, where the
facts warrant, DHS has the authority to deny H-2 petitions in the
manner provided in this rule. Implicit in these delegations is the
obligation that DHS ensure the integrity of H-2 programs.
In carrying out its authority and responsibility to promulgate
regulations under the above-referenced statutory provisions, DHS has
determined that there are instances where the violations are so severe
or egregious, and so related to the question whether the petitioner has
the ability and intent to comply with the H-2 program requirements so
as to preclude approval of a petition for a specific period.
Accordingly, reading DHS' statutory authorities as including the
authority to promulgate regulatory provisions mandating the denial of
H-2 petitions based on final determinations of egregious violations
made by DOL, other agencies, as well as U.S. courts in the case of
criminal convictions, is the best reading of DHS's broad statutory
authority and responsibility to administer and ensure the integrity of
the H-2 program. Similarly, the statute is best understood as
authorizing DHS to consider final determinations of lesser violations
on a discretionary basis, along with all aggravating or mitigating
factors, relating to whether a petitioner has the intent and ability to
comply with the H-2 program requirements. These comments seem to be
based on a misunderstanding of the nature and purpose of DHS's
consideration of other agencies' findings. In considering violations
found by other agencies, DHS is not re-adjudicating the merits of those
findings. Rather, DHS's analysis is limited to whether those
violations, along with all relevant factors, indicate to DHS that the
petitioner is unwilling or unable to comply with the
[[Page 103248]]
requirements of the H-2A or H-2B program, which is squarely within the
scope of DHS's authority.
DHS is not proposing to ``second-guess'' the determination of the
other agencies. Rather, DHS is deferring to their expertise to
determine if a violation under their authority has occurred. If another
agency or a court has determined that one or more of the violations
listed in new 8 CFR 214.2(h)(10)(iv)(B) has occurred, USCIS will then
consider that finding of violation in relation to USCIS' authority in
the H-2 program to determine whether, in USCIS' discretion, the
violation is significant enough and so related to the H-2 program that
it undermines the petitioner's claim of intent and ability to comply
with H-2 program requirements. USCIS may also consider the violation in
assessing the overall credibility of the petitioner's statements in the
petition. Although another agency such as DOL may investigate a
violation and determine that that specific violation does not warrant
debarment, USCIS may still consider the violation in the larger context
of the petitioner's recent actions. Further, USCIS' focus is not just
on how the violation relates to the petitioner's claim of intent and
ability to comply with H-2 program requirements but also encompasses
other information that could not be or was not considered in the other
agency's proceedings, such as prior misrepresentations in the H-2
petition context or lack of corrective action. As is made clear by the
regulatory text at new 8 CFR 214.2(h)(10)(iv)(C), USCIS will look at
the totality of the petitioner's circumstances, not just the facts
concerning a violation in isolation. While USCIS officers will evaluate
whether the petitioner, more likely than not, will comply with H-2
requirements, USCIS officers will not revisit the merits of the
underlying final administrative or judicial determination against the
petitioner.
Similarly, USCIS would not revisit or re-adjudicate a final
determination by another agency or a court that one or more violations
listed under new 8 CFR 214.2(h)(10)(iv)(A)(1) or (3) had occurred.
Rather, USCIS would determine whether the final determination was made
against the petitioner or its successor in interest, and whether it was
made during the relevant period. As explained in the NPRM, ``[t]he
violation findings set forth in proposed 8 CFR 214.2(h)(10)(iv)(A) are,
by nature, so egregious and directly connected to the H-2 programs that
they warrant mandatory denial.'' 88 FR 65040, 65057 (Sept. 20, 2023).
Comment: Some commenters expressed procedural concerns with giving
USCIS the ability to issue a discretionary denial based on the findings
of another agency. A commenter said the section fails to provide a
method for adequate due process, including for petitioners to offer
evidence about the claim. Another trade association expressed concern
that by barring petitioners or successors in interests from the program
as a result of a violation adjudicated by other agencies, the proposal
would ignore due process mechanisms set in place to protect regulated
entities.
A professional association said that giving USCIS ``discretion to
deny an employer from filing an H-2 petition based on the findings of
another agency makes it almost impossible for employers to defend
themselves'' and is violative of employers' due process rights. The
commenter further stated that the ability of USCIS to issue a
discretionary denial when USCIS had not been party to the proceedings
finding violations is arbitrary and unfair. Moreover, the commenter
said that the proposed rule does not include a provision allowing
employers to make corrections for future petitions after a denial or
debarment, thus denying the employer its right to ``establish its
intention or ability to comply'' with program requirements under
proposed 8 CFR 214.2(h)(10)(iv)(B). The commenter concluded that USCIS
should not be able to issue a discretionary denial under 8 CFR
214.2(h)(10)(iv)(C), but if DHS insists on maintaining the language in
the final rule, USCIS should consider ``all relevant factors'' when
making determinations and have a thorough review process.
Response: DHS disagrees with these comments. Again, it appears that
the commenters misunderstand the nature and purpose of USCIS'
consideration of other agencies' findings. Within the context of the H-
2 petition adjudication, there is no need for USCIS to provide the
petitioner with an opportunity to offer evidence to dispute or ``defend
themselves'' against the merits of the underlying violation because
USCIS will not re-adjudicate the underlying violation. It is reasonable
to assume that, if the petitioner had wanted to dispute or defend
themselves against the merits of the underlying violation, they would
have done so during the proceedings leading to the final determination
of the violation and would not raise these matters for the first time
during the H-2 petition process. It is also reasonable to assume that
the other agency afforded the petitioner adequate due process during
the proceedings leading to the final determination of the violation and
that the petitioner would have raised any such matters during those
prior proceedings before the relevant administrative or judicial entity
issued its final determination.
USCIS will comply with all procedural safeguards outlined in 8 CFR
103.2(b), including generally providing the petitioner an opportunity
to respond to derogatory information pursuant to 8 CFR 103.2(b)(16)(i).
Thus, before denying a petition under the new mandatory or
discretionary ground at new 8 CFR 214.2(h)(10)(iv), USCIS generally
will first issue a request for evidence or NOID the petition and
provide an opportunity for the petitioner to respond. Further, upon a
determination that one of the mandatory or discretionary grounds at new
8 CFR 214.2(h)(10)(iv) warranted a denial of the petition, USCIS will
issue a denial notice informing the petitioner of the right to appeal
the denial to USCIS' AAO, including the ability to request an oral
argument. See new 8 CFR 214.2(h)(10)(iv)(E)(1)-(2). The commenters did
not explain what part of these procedures they believe will violate
their due process rights.
Also, the commenters did not explain what they meant by ``including
a provision allowing employers to make corrections for future petitions
after a denial or debarment'' for purposes of the new discretionary
bar. If a petitioner took corrective actions subsequent to a denial
under new 8 CFR 214.2(h)(10)(iv)(B), that petitioner may file a new H-2
petition requesting USCIS to consider those corrective actions as
positive factors that demonstrate its intent and ability to comply with
H-2 program requirements. Under new 8 CFR 214.2(h)(10)(iv)(B)(7)-(8),
USCIS specifically factors in whether the petitioner has made ``timely
compliance with all penalties and remedies ordered under the final
determination(s), decision(s), or conviction(s)'' and ``other
corrective actions taken by the petitioner or its successor in interest
to cure its violation(s) or prevent future violations.'' DHS reaffirms
that, under new 8 CFR 214.2(h)(10)(iv)(B), USCIS will consider all
relevant factors and have a thorough review process when making
determinations. Further, new 8 CFR 214.2(h)(10)(iv)(E)(2) specifies
that, with respect to denials under the discretionary ground, the
denial notice will indicate that the discretionary ground of denial
``may also apply in the adjudication of any other pending or
[[Page 103249]]
future H-2 petition filed by the petitioner or a successor in interest
during the applicable time period.'' New 8 CFR 214.2(h)(10)(iv)(E)(2)
does not, however, state that the discretionary ground of denial
``will'' apply to any other pending or future H-2 petitions filed by
the petitioner or a successor in interest during the applicable time
period.
Comment: Some commenters expressed concern that the proposal does
not include details of how violations adjudicated by other agencies
would be communicated to or verified by the Department.
Response: Revisions to the Form I-129 associated with this final
rule require the petitioner to answer questions regarding serious labor
law violations or other violations. If the petitioner answers ``yes''
to these questions, they must submit a complete copy of the final
administrative or judicial determination with the Form I-129. Once
USCIS reviews a copy of the final administrative or judicial
determination, USCIS will rely on those findings and will not re-
adjudicate such final determination.
Note that in some instances, such as a DOL debarment or an INA sec.
274(a) violation, DOL or other Federal agencies will provide
documentation of the violation directly to USCIS. In other instances,
USCIS may come across information from another source (for example,
open sources like a press release or a newspaper article, a tip
submitted to the ICE online tip form, or an administrative site visit
information) suggesting the petitioner was found to have committed a
relevant violation. In those cases, USCIS may request evidence of the
final administrative or judicial determination (for example, a
certified court disposition) from the petitioner if it has not already
been submitted with the Form I-129. In all cases, however, it remains
the petitioner's burden to truthfully answer all the questions on Form
I-129 and submit all required evidence. By signing the Form I-129, the
petitioner (and any employer and joint employer, as applicable)
certifies, under penalty of perjury, that it has reviewed the petition
and that all the information contained on the petition, and in the
supporting documents, is complete, true, and correct.
Comment: Some commenters expressed concern that imposing the
mandatory or discretionary bar based upon a debarment action that is
not final and the employer did not have an opportunity to appeal is a
denial of due process. Without providing specific examples, the
commenter claimed to be aware of ``several recent cases'' where DOL
initiated a process of debarment, and where USCIS refused to approve an
employer's petition despite the DOL adjudication not being finalized.
Response: The proposed rule preamble and regulatory text make clear
that the mandatory grounds for denial at 8 CFR 214.2(h)(10)(iv)(A) are
applied only to determinations or findings that are final.
Specifically, each violation listed in 8 CFR 214.2(h)(10)(iv)(A), as
proposed and finalized, includes the word ``final'' when discussing the
nature of the findings that will trigger the mandatory ground for
denial.\61\ Additionally, DHS's intent was to propose that all of the
discretionary triggering events would also be final determinations.
However, based on the comments received, the regulatory text could be
made clearer in this regard. As such, DHS is adding the word ``final''
to new 8 CFR 214.2(h)(10)(iv)(B)(2) so that it is clear that all
violations listed under 8 CFR 214.2(h)(10)(iv)(B) refer to a final
determination.\62\ Regarding the commenter's unsubstantiated claim of
the impact of pending debarment under the current regulations, DHS
cannot respond because the commenter did not provide any specific
information about this claim. However, as noted above, the mandatory
and discretionary denial provisions under the new regulations are
triggered only by a final determination from DOL to debar a petitioner.
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\61\ As explained in the NPRM, a ``final'' USCIS decision means
that there is no pending administrative appeal or the time for
filing a timely administrative appeal has elapsed. 88 FR 65040,
65058 (Sept. 20, 2023).
\62\ As proposed and finalized, 8 CFR 214.2(h)(10)(iii)(B)(1)
and (3) already contains the word ``final.''
---------------------------------------------------------------------------
Comment: A few trade associations requested clarification of the
interplay between new 8 CFR 214.2(h)(10)(iv) and 8 CFR 214.1(k).
Specifically, these commenters requested DHS to clarify whether 8 CFR
214.1(k) would apply, or if new 8 CFR 214.2(h)(10)(iv) would result in
a ``one-time denial or revocation.''
Response: As stated in the NPRM, DHS is retaining the provision at
8 CFR 214.1(k) and believes the addition of new 8 CFR 214.2(h)(10)(iv)
will complement that provision. DHS is unclear about the commenters'
reference to a ``one-time denial or revocation'' under new 8 CFR
214.2(h)(10)(iv) because the new provision addressing H-2 petition
denial during debarment, specifically 8 CFR 214.2(h)(10)(iv)(A)(1),
does not indicate a ``one-time denial or revocation,'' but rather is a
prohibition on petition approval during the debarment period. In so far
as the commenters are concerned about the possible overlap between 8
CFR 214.1(k) and new 8 CFR 214.2(h)(10)(iv)(A)(1), the new provision at
8 CFR 214.2(h)(10)(iv)(A)(1) provides clarity on how USCIS will
exercise its ability to deny H-2 petitions filed by petitioners that
are debarred from the H-2 programs. Specifically, while 8 CFR 214.1(k)
provides that USCIS ``may'' deny petitions for workers in the H (except
for H-1B1), L, O and P-1 nonimmigrant classifications during the period
of debarment (for a period of 1 to 5 years) upon DOL debarment under 20
CFR 655, new 8 CFR 214.2(h)(10)(iv)(A)(1) clarifies that USCIS ``will''
deny H-2 petitions filed or pending during the period of debarment
under 20 CFR part 655, subpart A or B, or 29 CFR part 501 or 503 as
specified by DOL, or during a period of debarment specified by the
Governor of Guam. New 8 CFR 214.2(h)(10)(iv)(A)(1) will only apply to
H-2 petitions filed on or after the effective date of this rule, with a
debarment period beginning on or after the effective date of this rule.
If new 8 CFR 214.2(h)(10)(iv)(A)(1) does not apply, USCIS may still
apply 8 CFR 214.1(k) to deny H-2 petitions filed by petitioners subject
to DOL debarment.\63\
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\63\ For instance, H-2 petitions filed prior to the effective
date of this rule, or with a debarment period beginning prior to the
effective date, may still be denied under 8 CFR 214.1(k). In
addition, USCIS may deny an H-2 petition under 214.1(k) when the
petitioner has been debarred by DOL from a non-H-2 program, whereas
new 8 CFR 214.2(h)(10)(iii)(A)(1) does not extend to the denial of
an H-2 petition in such a case.
---------------------------------------------------------------------------
c. Comments Specific to Mandatory Denials Under 8 CFR
214.2(h)(10)(iv)(A)
Comment: A professional association said that involving WHD
determinations in DHS decisions would be an overstep of the boundaries
between agencies, and suggested DHS only deny employers based on what
it discovers in its own investigations.
Response: DHS declines the suggestion to limit the scope of the new
mandatory grounds for denial to only violations that DHS discovers in
its own investigations. Such a suggestion would be unnecessarily
restrictive compared to what DHS can already do. For example, under
current 8 CFR 214.1(k), USCIS may already deny H-2 petitions for a
period of at least 1-year but not more than 5 years upon a finding of
debarment by DOL. Moreover, it is contrary to the statutory and
regulatory scheme, which specifically contemplates DOL's role in
assisting
[[Page 103250]]
DHS in determining the approvability of H-2 petitions.\64\
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\64\ See, e.g., INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1) (the
question of importing an H-2 worker ``shall be determined by [DHS],
after consultation with appropriate agencies of the Government,''
and that for H-2A nonimmigrants, the term ```appropriate agencies of
Government' means the Department of Labor and includes the
Department of Agriculture''); 8 CFR 214.2(h)(5)(ii) (``The temporary
agricultural labor certification process determines whether
employment is as an agricultural worker, whether it is open to U.S.
workers, if qualified U.S. workers are available, the adverse impact
of employment of a qualified alien, and whether employment
conditions, including housing, meet applicable requirements''); 8
CFR 214.2(h)(6)(iii)(A) (``Prior to filing a petition with the
director to classify an alien as an H-2B worker, the petitioner
shall apply for a temporary labor certification with the Secretary
of Labor [or the Governor of Guam]'').
---------------------------------------------------------------------------
d. Comments Specific to Discretionary Denials Under 8 CFR
214.2(h)(10)(iv)(B)
Comment: Several commenters opposed proposed 8 CFR
214.2(h)(10)(iv)(B) on the basis that the consequences of this
provision may not be commensurate with violations that are ``minor,''
``minimal,'' ``technical,'' ``trivial,'' ``innocent,'' or otherwise
insignificant in nature. For example, a trade association stated that
the provision was overbroad, increases the impact of determinations by
other agencies, and creates a situation where employers could lose
access to the H-2 program based on ``minor employment law violations
that have no impact on the health or safety of workers.'' Other
commenters expressed that H-2 employers should not be effectively
debarred for minor violations and were concerned with the perceived
lack of guardrails in the proposed rule to ensure that citations for
``minor'' infractions would not result in DHS denying or revoking a
petition under its discretionary authority.
A joint submission expressed concern that, despite the proposed
rule's assertion that DHS would not exercise its authority for ``de
minimis'' violations, its discretionary authority would be ``open
ended'' and extend to any legal or regulatory violation, regardless of
its severity. Discussing the proposed rule's ``intention or ability to
comply'' analysis that it said the Department provided as a ``balancing
test,'' the commenter said this test does not apply to the ``threshold
provision'' that determines whether its discretionary denial is
applicable. The commenter provided various examples of violations of
``minimal significance,'' including violations that an employer would
not seek to appeal given the cost would exceed the violation penalty
itself, but that DHS could use to show a large ``number of violations''
or a ``pattern of violations'' and invoke the section. The commenter
stated that as a result, the Department's discretionary denial
authority is ``unfair, excessive, and overly punitive.''
Similarly, a union expressed concern that the application of USCIS'
discretionary authority might be overbroad and extend to minor
violations that might have occurred as a result of administrative
errors. The commenter stated that employers might face discretionary
denials for violations that ``do not call into question the ability or
intention'' of petitioners to comply with H-2 program requirements. An
attorney stated that the phrase ``calling compliance into question''
must be removed for vagueness, as any violation, no matter how trivial,
could penalize a petitioner under this provision for ``the most
innocent act.'' A trade association strongly opposed proposed 8 CFR
214.2(h)(10)(iv)(B) in its entirety but said that, if maintained in the
final rule, DHS should clarify and provide examples of violations that
would trigger a denial or revocation of a petition under the proposed
discretionary authority.
A joint submission urged the Department to ``soften'' the proposed
rule's language regarding violations that would trigger a discretionary
denial. The commenter suggested the rule include qualifications to
limit actions to ``severe or egregious violations involving worker
health and safety,'' referencing similarities to other Federal
regulations. The commenter concluded that this would provide additional
layers of due process protections and prevent employers from being
penalized for minor violations while still protecting workers. Other
commenters suggested DHS limit the nature of the violations exclusively
to violations of USCIS H-2 regulations.
Response: DHS appreciates the commenters' concerns but declines to
make changes to the discretionary grounds for denial at new 8 CFR
214.2(h)(10)(iv)(B) based on these comments.\65\ DHS maintains that the
factors enumerated in 8 CFR 214.2(h)(10)(iv)(C) make it clear that no
single factor, standing alone, will be considered sufficient to warrant
denial because the analysis includes consideration of all relevant
factors, including the number of violations, egregiousness of the
violation(s), overall history or pattern of prior violations, and the
severity of the penalties imposed, among others. As stated in the NPRM,
a single factor, standing alone, will not be outcome determinative, but
may be weighted differently depending on the circumstances of each
case; such that one factor could be given significant weight in
reviewing the totality of the facts presented, even if other listed
factors were absent. 88 FR 65040, 65060 (Sept. 20, 2023).
---------------------------------------------------------------------------
\65\ Note that DHS did make edits to these provisions to clarify
their application based on public comments discussed elsewhere in
this final rule.
---------------------------------------------------------------------------
For example, as illustrated in the NPRM, USCIS would likely not
consider a single de minimis Occupational Safety and Health
Administration (OSHA) violation or a single Department of
Transportation (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. 88 FR 65040, 65059-60 (Sept. 20, 2023). 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
injury to) H-2 workers, then USCIS would likely consider those
violations relevant to the petitioner's intention and/or ability to
comply with H-2A or H-2B program requirements under proposed 8 CFR
214.2(h)(10)(iv)(B)(3). These examples illustrate that new 8 CFR
214.2(h)(10)(iv)(B) reflects a totality-of-the-circumstances
consideration in which USCIS will consider all relevant factors.
Some commenters provided specific examples of violations which they
characterized as ``minor,'' ``minimal,'' or otherwise of an
insignificant nature, implying that these violations should never
trigger a discretionary denial under new 8 CFR 214.2(h)(10)(iv)(B).
These examples included violations because a petitioner failed to list
the company's Federal Employer Identification Number on the worker's
pay statement, failure to properly calculate the hours offered in the
earnings records, or ``fail[ure] to pay a nickel's worth of backpay.''
However, DHS does not agree that the violations in these examples
should always be considered ``minor,'' ``minimal,'' or otherwise of an
insignificant nature such that they should never be relevant to the
petitioner's intention and/or ability to comply with H-2 program
requirements. For instance, a petitioner's failure to properly
calculate the hours offered in the earnings records may not be relevant
to the petitioner's
[[Page 103251]]
intention and/or ability to comply with H-2 program requirements if it
is an isolated incident and the petitioner immediately took corrective
action to correct the mistake. However, it may be relevant if the
failure to properly calculate the hours resulted in significant
financial loss to that worker and the petitioner refused to take
corrective action. Similarly, a single, isolated violation of a
petitioner failing to pay ``five cents'' worth of backpay to a worker
would likely not be relevant to the petitioner's intention and/or
ability to comply with H-2 program requirements, but it may be relevant
if this violation is part of a pattern of the petitioner intentionally
failing to pay backpay and failing to take any corrective action
despite being ordered to do so. These examples demonstrate how the
relevance of each violation will depend on the circumstances of each
case, making it inadvisable to draw a hard line on which violations
would always or never trigger a discretionary analysis under new 8 CFR
214.2(h)(10)(iv)(B).
For the same reason, DHS declines to provide absolute examples of
what would or would not trigger the discretionary analysis pursuant to
a commenter's suggestions. Providing specific examples of violations is
not advisable because USCIS will evaluate each violation together with
all the other relevant factors on a case-by-case basis. By including a
very broad scope for the types of violation determinations that may
lead to analysis under the discretionary denial provision at 8 CFR
214.2(h)(10)(iv)(B) generally and the catch-all provision at 8 CFR
214.2(h)(10)(iv)(B)(3) specifically, DHS recognizes that the violations
underlying these determinations can vary widely in nature and severity.
DHS declines to adopt a commenter's suggestions to limit the reach
of this provision to only ``severe or egregious violations involving
worker health and safety.'' As proposed, new 8 CFR
214.2(h)(10)(iv)(C)(2) specifically lists ``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'' as one of the
relevant factors USCIS will consider.
Finally, DHS declines to limit new 8 CFR 214.2(h)(10)(iv)(B)
exclusively to violations of USCIS H-2 regulations. As stated in the
NPRM, this provision is consistent with existing DOL regulations
requiring H-2 petitioners to comply with all applicable Federal, State,
and local laws and regulations, including health and safety laws \66\
and recognizes that numerous Federal, State, and local agencies have
authority in areas affecting H-2 employers and workers.
---------------------------------------------------------------------------
\66\ 20 CFR 655.20(z), 20 CFR 655.135(e).
---------------------------------------------------------------------------
Comment: A few commenters suggested that USCIS should revise the
discretionary denial provisions so that there is a system of graduated
penalties. For example, a commenter suggested that USCIS should
``truncate'' the scope of violations that trigger additional reviews.
Other commenters suggested that DHS evaluate alternative consequences
that better align with the nature of the violation, including a ``tier
system of escalating consequences and fines'' and a ``remediation
system.''
Response: The commenters did not provide specific suggestions on
how a system of truncated violations, a tier system of escalating
consequences and fines, or a remediation system, could work. If the
commenters were suggesting that DHS modify proposed 8 CFR
214.2(h)(10)(iv)(B) so that the length of time a petition is denied
would vary based on the severity of the violation(s) similar to the
approach in current 8 CFR 214.1(k), DHS declines such an approach. New
8 CFR 214.2(h)(10)(iv)(B) gives USCIS the ability to consider the
nature of the prior violation(s)--within the context of the
petitioner's other actions and all other relevant factors--to determine
whether the petitioner has the intent or ability to comply with H-2
program requirements and the petitioner's overall credibility. Since
USCIS will consider all relevant factors to determine the petitioner's
intent and ability to comply, it does not make sense to truncate the
application of new 8 CFR 214.2(h)(10)(iv)(B) based on the severity of
the violation. Further, the finalized approach provides more clarity
because it specifies exactly how long the petitioner's petitions could
potentially be denied (``during the pendency of the petition or within
3 years prior to filing the petition'') if USCIS determines that the
petitioner has not established its intent or ability to comply with H-2
program requirements, as opposed to leaving the petitioner unsure of
how long they could potentially be denied under new 8 CFR
214.2(h)(10)(iv)(B).
Comment: A few trade associations expressed concern with the
language of 8 CFR 214.2(h)(10)(iv)(B), reasoning it would result in
petitioners ``being penalized for the same violation twice (equating to
double jeopardy)--or more, if the petition denial is repeated in
multiple years.''
Response: In light of these comments, DHS is making the following
regulatory changes to clarify that, under the following facts, USCIS
will not deny certain petitions for the same underlying violation(s),
recognizing that such a denial would be unduly burdensome to the
petitioner. Specifically, new 8 CFR 214.2(h)(10)(iv)(F) states that, if
USCIS has previously determined that a petitioner (or the preceding
entity, if the petitioner is a successor in interest) has established
its intention and ability to comply with H-2A or H-2B program
requirements in the course of adjudicating a petition involving
violation determinations under paragraph (h)(10)(iv)(B), USCIS will not
seek to deny a subsequently filed petition under paragraph
(h)(10)(iv)(B) of this section based on the same violation(s), unless
USCIS becomes aware of a new material fact (for example, a previously
undiscovered violation(s) or new violations that occurred during the
applicable time period), or if USCIS finds that its previous
determination was based on a material error of law. In cases where
USCIS becomes aware of a new material fact or determines its previous
determination was based on a material error of law, petitioners will
generally have the opportunity to challenge an intended denial.
e. Final Determinations Against Individuals Under 8 CFR
214.2(h)(10)(iv)(D)
Comment: A union expressed support for proposed 8 CFR
214.2(h)(10)(iv)(D) which specifies when USCIS may treat a criminal
conviction or final administrative or judicial determination against an
individual as a conviction or final administrative or judicial
determination against the petitioner or successor in interest,
reasoning it would strengthen accountability for employers who try to
shield themselves from penalties by ``hiding behind'' recruiters and
other agents who violate the law. The commenter added that because H-2
workers' status is tied to their employment with a particular employer,
they are economically dependent on their employers and ``view
situations from that vulnerable perspective.'' The commenter stated
that as a result, the provision to consider the perspective of an
employee under proposed 8 CFR 214.2(h)(10)(iv)(D)(2) ``appropriately
takes that reality into consideration'' when assessing whether an
employee is acting on behalf of its petitioning entity.
Response: DHS appreciates the comment that accurately reflects the
provision's goals of strengthening
[[Page 103252]]
accountability for employers and acknowledging an H-2 beneficiary's
vulnerability to exploitation from their employer or persons allegedly
acting on the employer's behalf.
Comment: A couple of trade associations stated that DHS should
``carefully weigh whether the Due Process considerations'' of accused
petitioners are ``adequately protected'' by proposed 8 CFR
214.2(h)(10)(iv)(D). A joint submission expressed concern that the
proposed rule did not adequately consider ``the balance of the
interests'' in both attributing the misconduct of individuals to the
petitioner and increasing the penalties for misconduct. The commenter
concluded that the provision is an overreach and suggested that DHS
provide ``additional procedural protections'' for petitioners and
provide them with a ``greater degree of leniency to the extent that
they have taken steps to remedy the violation(s) and prevent them from
occurring in the future.''
Response: DHS disagrees with the commenters. It is not reasonable
to allow a petitioner to avoid liability for the actions of an
individual who is acting on behalf of that petitioner, as a petitioner
could then knowingly engage in unlawful activity simply by instructing
another individual to perform the unlawful activity on their behalf.
Further, it is reasonable to expect that an employer will monitor the
activities of its employees whom the employer has empowered to act on
its behalf.
It is not entirely clear what the commenters meant by their vague
references to ``additional procedural protections'' or ``Due Process
considerations.'' Regardless, DHS reiterates that USCIS will comply
with all procedural safeguards outlined in 8 CFR 103.2(b), including
generally providing the petitioner an opportunity to respond to
derogatory information pursuant to 8 CFR 103.2(b)(16)(i). Thus, before
denying a petition under the new mandatory or discretionary ground at
new 8 CFR 214.2(h)(10)(iv), USCIS generally will first issue a request
for evidence or NOID the petition and provide an opportunity for the
petitioner to respond. For example, in response to the request for
evidence or NOID, the petitioner will have the opportunity to
demonstrate that the underlying conviction was against an individual
who was not acting on behalf of the petitioner, or if the conviction
was against an employee of the petitioning entity, that a reasonable
person in the H-2A or H-2B worker's position would not believe the
individual was acting on behalf of the petitioning entity.
Comment: Referencing proposed 8 CFR 214.2(h)(10)(iv)(D)(2), a
professional association expressed support for actions that attempt to
ensure accountability among employers but stated that a ``reasonable
person'' standard should not be applied with respect to an individual
who an H-2 worker believes is acting on behalf of the petitioning
entity. The commenter instead suggested that USCIS ``rely on whether an
oral or written agreement was entered into.'' Another commenter, a
joint submission, urged DHS to ``afford petitioners a greater degree of
leniency to the extent that they have taken steps to remedy the
violation(s) and prevent them from occurring in the future'' and
asserted that the ``reasonable person standard'' safeguard is
inadequate for reasons such as the high rate of fraud and impersonation
of employers via the internet and social media.
Response: The provision at 8 CFR 214.2(h)(10)(iv)(D) allows a
criminal conviction or final administrative or judicial determination
against an individual to be considered a conviction or final
determination against the petitioner in some circumstances. First,
under 8 CFR 214.2(h)(10)(iv)(D)(1) this can occur when an individual
(such as the petitioner's owner, employee or, a contractor) was in fact
acting on the petitioner's behalf when engaging in conduct that
resulted in the conviction or final administrative determination. In
addition, under the provision referenced by the commenters, 8 CFR
214.2(h)(10)(iv)(D)(2), a conviction or final determination against an
individual can be considered a conviction or final determination
against the petitioner for the purposes of discretionary denial when
the individual was the petitioner's employee and a reasonable person in
the H-2 worker's position would believe the individual was acting on
the petitioner's behalf.
It is not entirely clear what is meant by the commenter's
suggestion that, instead of a reasonable person standard, liability
under 8 CFR 214.2(h)(10)(iv)(D)(2) should depend on ``whether an oral
or written agreement was entered into.'' To the extent that the
commenter is suggesting USCIS should rely on whether there is an oral
or written employment agreement between the petitioner and the
individual, DHS notes that the provision only applies to the
petitioner's employees, who generally would have entered into an oral
or written employment agreement with the petitioner.
If, on the other hand, the commenter is suggesting that the
existence of a written or oral contract prohibiting the violation-
related conduct alone should in all cases be sufficient for the
petitioner to avoid liability for its employee's actions, DHS disagrees
and believes it is appropriate to consider the relevant facts and
circumstances on a case-by-case basis. As noted in the preamble to the
NPRM, because liability for this population will be limited to the
discretionary denial provision, petitioners will have an opportunity to
provide information regarding the circumstances of the employee's
actions, and USCIS will consider all relevant factors in determining
whether the petitioner had established its intention and ability to
comply with H-2 program requirements. 88 FR 65040, 65061 (Sept. 20,
2023).
With regard to the suggestions in the joint submission comment, DHS
agrees that steps taken by the petitioner to remedy the violations and
prevent them from occurring in the future are important and relevant
considerations, and notes that such steps will be considered in
determining whether a denial is warranted. See 8 CFR
214.2(h)(10)(iv)(C)(8). DHS disagrees, however, with the suggestion
that the ``reasonable person standard'' in 8 CFR 214.2(h)(10)(iv)(D)(2)
is inadequate to safeguard against fraud and impersonation of employers
via the internet and social media. Even if an H-2 worker reasonably
believed that the individual engaging in fraud or impersonation was
acting on behalf of the employer, the petitioner could not be held
accountable under 8 CFR 214.2(h)(10)(iv)(D)(2) unless the individual
was its employee in which case, as discussed above, all relevant
circumstances will be considered.
Comment: A professional association suggested treating a conviction
or determination of an individual as a conviction or determination
against a petitioner only in ``the most egregious circumstances.'' The
commenter questioned the Department's rationale that employers would be
knowledgeable of the actions of all individuals in its recruitment
chain, calling it ``aspirational but also not realistic.'' Similarly, a
few trade associations stated that in many cases petitioners may not
have knowledge of another party's behavior, particularly in the case of
contractors. The commenters also urged the Department to clarify
whether criminal convictions or final administrative or judicial
determinations must be related to labor violations, H-2-related job
duties, or corresponding employees. Finally, these
[[Page 103253]]
commenters suggested the Department develop alternative approaches to
denial and revocation that include corrective action but indicated
that, if the provision is retained, they support the use of reasonable
person analysis, an opportunity to provide evidence prior to
determination, and opportunity to appeal to a neutral body in order to
prevent unfounded denials.
Response: As noted above, 8 CFR 214.2(h)(10)(iv)(D)(1) allows
convictions and final determinations against some non-employees (for
example contractors and others) to be treated as convictions and final
determinations against the petitioner, but only to the extent that the
individual is acting on the petitioner's behalf. DHS believes it is
both realistic and appropriate to expect petitioners to have knowledge
of, and a degree of control over, third party individuals' actions
taken on their behalf.
DHS appreciates the commenters' request for clarity regarding
whether the convictions and final determinations covered by 8 CFR
214.2(h)(10)(iv)(D) must relate to labor violations, H-2 employment,
and H-2 workers. First, DHS notes that the provision only applies to
certain final determinations and convictions that are relevant to
petitioner's compliance with H-2 program requirements as enumerated in
8 CFR 214.2(h)(10)(iv)(A) and (B). DHS also emphasizes that, because 8
CFR 214.2(h)(10)(iv)(D)(1) only applies to an individual who is
``acting on behalf of the petitioning entity,'' it would not apply to a
conviction or final determination for actions the individual took on
behalf of a different employer, or for conduct that is otherwise
unrelated to the individual's work on behalf of the petitioner.
Finally, as discussed above, the provision at 8 CFR
214.2(h)(10)(iv)(D)(2) applies only to an employee of the petitioner
who a reasonable person in the H-2 worker's position would believe is
acting on the petitioner's behalf, and in such cases, petitioners will
have an opportunity to provide information regarding the circumstances
of the employee's action. USCIS will consider all relevant factors--
including corrective and preventative measures the petitioner has
taken--in determining whether the petitioner has established its
intention and ability to comply with H-2 program requirements. As with
all denials under 8 CFR 214.2(h)(10)(iv), such decisions will be
appealable to the USCIS Administrative Appeals Office.
f. 3-Year Timeframe (``Lookback Period'')
Comment: Several commenters discussed the 3-year timeframe for
mandatory and discretionary denials based on certain violations. An
advocacy group said a 3-year look back period would be sufficient to
ensure approval of H-2 petitions would not be detrimental to the rights
of workers or the integrity of the program. An advocacy group and a
joint submission urged DHS to not reduce the proposed 3-year timeframe.
Response: DHS appreciates these comments and agrees that a 3-year
lookback is appropriate for the relevant provisions of 8 CFR
214.2(h)(10)(iv)(A) and (B).
Comment: While expressing opposition to the denial of petitions for
certain violations, a couple of trade associations said that if the
section was maintained, the Department could not impose penalties until
3 years after the provision became effective and employers received
notice. Another commenter stated that denying employers retroactively
for conduct that occurred prior to the rule's implementation was
unconstitutional due to the retroactivity doctrine.
Response: DHS did not propose to deny petitions in a way that is
impermissibly retroactive or without adequate notice. In general, DHS
applies its regulations prospectively. DHS is aware that the U.S.
Supreme Court has held that ``statutory grants of rulemaking authority
will not be understood to encompass the power to promulgate retroactive
rules unless that power is conveyed by express terms.'' \67\ It is also
aware that retroactive rules alter the past legal consequences of past
actions.\68\ DHS also recognizes that a rule operates retroactively if
it takes away or impairs vested rights.\69\ In addition, DHS recognizes
that if a new rule is ``substantively inconsistent'' with a prior
agency practice and attaches new legal consequences to events completed
before its enactment, it operates retroactively.\70\ However, an agency
rule that alters the future effect, not the past legal consequences of
an action, or that upsets expectations based on prior law (which may be
characterized as secondary retroactivity), is not necessarily
impermissibly retroactive.\71\
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\67\ Georgetown Univ. Hosp. v. Bowen, 488 U.S. 204, 208 (1988).
\68\ Bowen, 488 U.S. at 219 (Scalia, J. concurring).
\69\ See Nat'l Mining Ass'n v. U.S. Dep't of the Interior, 177
F.3d 1, 8 (D.C. Cir. 1999) (National Mining I) (quoting Ass'n of
Accredited Cosmetology Sch. v. Alexander, 979 F.2d 859, 864 (D.C.
Cir. 1992)).
\70\ See Arkema Inc. v. EPA, 618 F.3d (D.C. Cir. 2010) (vacating
an EPA rule in part on impermissible retroactivity grounds because
the rule attached new legal consequences to events completed before
its enactment) (quoting Nat'l Mining Ass'n v. Dep't of Labor, 292
F.3d 849, 860 (D.C. Cir. 2002)); see also Mobile Relay Assocs. v.
FCC, 457 F.3d 1, 11 (D.C. Cir. 2006) (explaining ``[r]etroactive
rules `alter[ ] the past legal consequences of past actions' ''
(quoting Bowen, 488 U.S. at 219 (Scalia, J., concurring)).
\71\ Mobile Relay Assocs. v. FCC, 457 F.3d 1, 11 (D.C. Cir.
2006); see Bowen, 488 U.S. at 220 (Scalia, J., concurring); see also
Alexander, 979 F.2d at 864 (``Member schools have no `vested rights'
to future eligibility to participate in the GSL program. Although we
do not doubt AACS's submission that the schools expected to be
eligible in the future, such an expectation did not constitute
vested interest.'').
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Here, DHS proposed to, in certain circumstances, alter the future
effect of past actions by adding program integrity measures to address
certain violations that occurred in the past. As such, the proposed
rule might have raised questions regarding secondary retroactivity.\72\
Rules that have a secondary retroactive effect can be valid if they are
reasonable.\73\ As discussed in more detail below, the provisions
included in this final rule are reasonable because they ensure that
petitioners have adequate notice of consequences of certain conduct
while giving DHS the ability to hold program users accountable. Namely,
while DHS is uniformly applying the new rules to agency actions that
take place on or after the effective date of the final rule, the
additional consequences imposed by this rule will in some cases attach
to prohibited conduct that occurred before the effective date of this
final rule. DHS believes that this approach is reasonable because the
conduct covered by these provisions is already prohibited, and as such,
petitioners could have no reasonable expectations that such egregious
conduct could not subsequently be taken into account in petition
adjudications.
---------------------------------------------------------------------------
\72\ Bowen, 488 U.S. at 220 (Scalia, J., concurring) (``A rule
that has unreasonable secondary retroactivity--for example, altering
future regulation in a manner that makes worthless substantial past
investment incurred in reliance upon the prior rule--may for that
reason be `arbitrary' or `capricious,' see 5 U.S.C. 706, and thus
invalid. In reference to such situations, there are to be found in
many cases statements to the effect that where a rule has
retroactive effects, it may nonetheless be sustained in spite of
such retroactivity if it is reasonable.'').
\73\ Bowen, 488 U.S. at 220 (Scalia, J., concurring).
---------------------------------------------------------------------------
While DHS did not specifically address in the NPRM how the
provisions relating to the denial or revocation of petitions for
prohibited fees, as well as the mandatory and discretionary denials of
H-2A and H-2B program violators would apply, DHS is clarifying in this
final rule that it will apply certain provisions in a manner that
balances the strong interest in enhancing H-2 program integrity and
protection of H-2 workers with the interests of petitioners to have
adequate notice of new future effects applicable
[[Page 103254]]
to certain conduct. Consistent with this discussion, DHS has added
language to the applicable regulatory provisions to clarify how they
will apply, as discussed in more detail below.
(1) Denial and Revocation of H-2 Petitions for the Collection of
Prohibited Fees
DHS is clarifying that USCIS will deny or revoke H-2 petitions
filed on or after the effective date of this final rule based on the
revised prohibited fees provisions in 8 CFR 214.2(h)(5)(xi)(A) and
(h)(6)(i)(B). Petitions filed before the effective date of the final
rule will be denied or revoked based on the prohibited fee provisions
in effect before this final rule.
(2) The 1- and 3-year Periods of Denial for the Collection of
Prohibited Fees and Failure To Reimburse
DHS, under this final rule, will deny additional H-2A and H-2B
petitions for a period of 1 year based on denials or revocations that
resulted from a violation of prohibited fee provisions contained in
this final rule. Under regulations in place before the effective date
of this final rule, employers in both H-2A and H-2B programs were
prohibited from charging workers certain prohibited fees and are
required to reimburse workers when such fees have been charged. If an
H-2A or H-2B petition is denied or revoked for violating the provisions
in place before the effective date of this final rule, petitioners
filing petitions in the same program within 1 year of the denial or
revocation must demonstrate to the satisfaction of USCIS that the
workers were reimbursed or that the employer made reasonable efforts to
locate the workers but has failed to do so. 8 CFR 214.2(h)(5)(xi)(C)
and (h)(6)(i)(C). If this obligation is not met, the subsequent
petition is denied. The obligation attaches to all subsequent petitions
filed during the 1-year period. Under the NPRM and this final rule, a
denial that occurs during the 1-year period following a USCIS denial or
revocation based on a prohibited fee violation applies across H-2A and
H-2B programs and does not allow the petitioner to avoid a denial
during the relevant 1-year period simply by the petitioner reimbursing
the affected workers or making reasonable efforts to do so.
While petitioners do not necessarily have a right to approval of
their petitions, DHS understands that petitioners may not be in a
position to remedy or provide reasons for their past actions in a
manner that complies with the new regulations (for example, establish
by clear and convincing evidence that the petitioner engaged in good
faith, ongoing efforts to prevent the collection of such fees) such
that they can overcome this ground for denial or revocation and thereby
avoid the 1-year denial period following such a decision. As such,
without the clarification included in this final rule, the NPRM might
have been construed as having proposed the imposition of new future
consequences on petitioners for past actions that have already
concluded. Therefore, DHS is clarifying that it will apply the expanded
1-year denial provisions based on initial denial or revocation
decisions involving prohibited fees that are issued on petitions filed
only on or after the effective date of this rule. In other words, DHS
will apply this provision prospectively from the effective date of this
final rule, not retroactively.
With respect to the 3-year mandatory denial period, the obligation
to reimburse is not new and is a requirement under regulations that
have been in place since 2008. The period of denial, however, will be
longer under this final rule, will eliminate the option to merely
demonstrate reasonable efforts to locate a beneficiary, and will
explicitly impose obligations on successors in interest with respect to
ensuring the integrity of the H-2 program and H-2 worker protections.
Therefore, similar to the 1-year denial provision, DHS will apply the
3-year additional denial period to petitioners, including successors in
interest, based on initial denial or revocation decisions issued on
petitions filed on or after the effective date of this final rule. For
petitions denied or revoked under previous regulations, the 1-year
denial period in place before the effective date of this final rule
will apply.\74\
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\74\ The failure to reimburse workers for fees collected prior
to the effective date of this final rule may be considered, among
the totality of facts presented, with respect to whether to deny
such petitions on a discretionary basis under new 8 CFR
214.2(h)(10)(iii) regardless of whether the petition is filed
before, on, or after the effective date of this rule.
---------------------------------------------------------------------------
(3) Mandatory Denial of Petitions Filed by H-2 Petitioners
As noted above, DHS recognizes that denying petitions under the
three mandatory denial provisions may result in unforeseen new effects
attaching to past conduct. Specifically, for denials based on DOL or
GDOL debarment, unlike the existing provision in 8 CFR 214.1(k), the
new mandatory denial provision requires rather than permits USCIS to
deny petitions on this basis but operates similarly to 8 CFR 214.1(k)
in that it is triggered by a DOL debarment even if such debarment takes
place while the petition is already pending with USCIS and supported by
a valid TLC. Under existing regulations and this final rule, if the
debarment of a petitioner prevented the petitioner from obtaining a
TLC, USCIS would not be able to approve such petition.
Similarly, DHS recognizes that issuing a mandatory denial of the H-
2A or H-2B petition based on prior USCIS decisions finding fraud or
misrepresentation, may attach new effects to already prohibited
conduct. Under the NPRM and without further clarification, these new
effects could have attached without providing the petitioner the
ability to overcome this ground based on new facts or evidence that may
have occurred since the initial decision. The same is true of denials
based on violations of section 274(a) of the Act.
For these reasons, DHS is clarifying how the mandatory denial
provisions will apply:
(1) For mandatory denials involving DOL or GDOL debarment, DHS will
apply these provisions only to petitions filed on or after the
effective date of this final rule and when the final administrative
debarment decision is made on or after the effective date of this final
rule. For petitions filed before the effective date of the rule
involving DOL or GDOL debarment, USCIS may continue to deny under the
existing provision at 8 CFR 214.1(k).
(2) For mandatory 3-year denials based on the USCIS denial or
revocation of an H-2A or H-2B petition for fraud or material
misrepresentation, these provisions will apply only to initial denial
or revocation decisions issued on petitions filed on or after the
effective date of this rule.
(3) For mandatory denials involving violations of section 274(a),
USCIS will deny H-2A or H-2B petitions filed on or after the effective
date of the final rule and based on final determinations of violations
of section 274(a) of the Act that are made on or after the effective
date of this final rule. With respect to determinations of section
274(a) violations made before the effective date of this final rule,
DHS will apply the 2-year denial provision in current 8 CFR
214.2(h)(5)(iii)(B).
This approach operates prospectively, and provides petitioners with
sufficient notice of the additional consequences of these egregious
violations.
[[Page 103255]]
(4) Discretionary Denial of Petitions Filed by H-2 Petitioners Based on
Violation Determinations That Occurred During the Pendency of the
Petition or the Previous 3 Years
These new provisions provide for the consideration of certain
violations and other relevant factors in adjudicating H-2 petitions.
These provisions do not mandate denial. DHS is clarifying that these
provisions will apply to H-2A or H-2B petitions that are filed on or
after the effective date of this rule based on determinations of past
violations that occurred during the pendency of the petition or the
previous 3 years, regardless of whether they occurred before, on, or
after the effective date of this final rule. This rule provides H-2
program violators with sufficient notice and opportunity to demonstrate
their intention and ability to comply with program requirements and
obligations. DHS acknowledges the commenters' concern that some
employers may have agreed to pay a civil monetary penalty for alleged
minor violations because they were unaware at the time of their
agreement that this could be a violation potentially leading to a
petition denial. However, because the new discretionary provisions do
not mandate denial, these petitioners would have the opportunity to
explain why they agreed to pay fines which USCIS would then take into
consideration, along with all relevant factors including the
egregiousness of the violation(s) and the severity or monetary amount
of the fines paid, in determining whether the petitioner has the intent
and ability to comply with H-2 program requirements and obligations. In
exercising its discretion, DHS will consider all of the facts presented
and in doing so, will accord appropriate weight to an employer's
previous violations and actions based on the nature and severity of
such violations and actions.
Comment: A professional association expressed concern with the ``3-
year lookback period'' with respect to the proposal for mandatory
denials based on certain violations and suggested that DHS should only
look at the current year instead of a 3-year lookback period.
Response: DHS will not make any changes based on this comment.
Initially, DHS notes that the ``3-year lookback'' period does not apply
to all of the grounds for mandatory denial. In the NPRM, DHS proposed
new 8 CFR 214.2(h)(10)(iv)(A), under which USCIS would deny an H-2
petition filed by a petitioner, or successor in interest to a
petitioner, that has been the subject of one or more of the three
actions enumerated in the provision. One such action, under 8 CFR
214.2(h)(10)(iv)(A)(1) as proposed, is a final administrative
determination by DOL or GDOL debarring a petitioner. However, this
mandatory ground for denial applies only during the period of
debarment. DHS did not propose a 3-year lookback period for this
provision.
Under 8 CFR 214.2(h)(10)(iv)(A)(2) as proposed, a petition will be
denied where a petitioner has been subject to ``[a] final USCIS denial
or revocation decision issued during the pendency of the petition or
within 3 years prior to filing the petition that included a finding of
fraud or willful misrepresentation of a material fact with respect to a
prior H-2A or H-2B petition.'' The 3-year period in this provision is
appropriate for the reasons explained in the NPRM: that is, that a 3-
year timeframe 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, and
is generally 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. 88 FR 65040, 65058 (Sept. 20, 2023). The commenter
recommends that USCIS ``look at the current year instead of a 3-year
lookback period,'' but provides no further explanation as to why
limiting review to the ``current year'' would be appropriate or whether
the ``current year'' meant the current calendar year or fiscal year.
Regardless, DHS declines to adopt this approach. Limiting review to the
current year could render this provision largely ineffective, as such a
short timeframe may not enable USCIS to consider the eligibility
implications of a past H-2 program violation during adjudication of a
subsequent petition, as intended. Thus, limiting this review could have
little deterrent effect on a petitioner whose petition for a given year
was already denied.
There is also a 3-year lookback under 8 CFR 214.2(h)(10)(iv)(A)(3)
which, as proposed, applies with respect to ``[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.'' Again,
the commenter did not explain why limiting review to the current year
would be appropriate. DHS is similarly concerned that limiting the
review period to ``the current year'' with respect to this provision
could render it largely ineffective and have little deterrent effect.
Further, limiting 8 CFR 214.2(h)(10)(iv)(A)(3) to only 1 year would
actually be more lenient than current 8 CFR 214.2(h)(5)(iii), which
states that a petitioner cannot establish requisite intent for 2 years
after a violation of section 274(a) of the Act. DHS maintains that a 3-
year period is more appropriate as this period captures an employer's
reasonably recent activity and will generally be sufficient to ensure
that approval of an H-2 petition will not be detrimental to the rights
of H-2 workers, or the integrity of the H-2 program. Therefore, DHS
will not make any changes as a result of this comment.
Comment: A couple of advocacy groups, a research organization, and
a union stated that while first-time offenders should be subject to a
3-year timeframe under proposed 214.2(h)(10)(iv)(A), repeat offenders
should be permanently banned from the H-2 programs.
Response: DHS does not believe that a permanent ``ban'' would be
reasonable, even for repeat offenders, as it would fail to account for
changes in practice, policies and personnel by an employer which may
become less relevant as the underlying violation becomes more remote in
time. As discussed in the NPRM and noted above, DHS believes that a 3-
year timeframe is appropriate as it 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. Therefore, DHS declines to adopt the suggestion.
Comment: A union supported a mandatory denial of petitions based on
a final debarment determination by DOL for violations of H-2
regulations and contractual obligations. The union suggested that DHS
modify proposed 8 CFR 214.2(h)(10)(iv)(A)(1) to impose a mandatory
denial based on a final determination of debarment that was issued by
DOL within 5 years of filing a new H-2 petition, rather than only if a
petitioner files with DHS ``during the debarment period, or if the
debarment occurs during the pendency of the petition.'' The commenter
concluded that these revisions would help ensure ``bad actors'' stay
out of the H-2 program. Similarly, while discussing the grounds for
denial or revocation under proposed 8 CFR 214.2(h)(10)(iv)(A)(2) and
(3), the union also suggested that rather than the proposed 3-year
timeframe, the Department require a 5-year look-back period for all
actions, convictions, and determinations included under the proposed
section. The commenter reasoned that this change would further
encourage compliance by employers and agents and promote consistency
with INA's
[[Page 103256]]
statutory 5-year limit on DHS's ability to deny petitions. Another
union that supported the mandatory and discretionary denial provisions
similarly urged that the look back period for violations be extended
from 3 to 5 years.
Response: DHS declines to modify 8 CFR 214.2(h)(10)(iv)(A)(1) in
this final rule to impose a mandatory denial based on a final
determination of debarment that was issued by DOL within 5 years of
filing a new H-2 petition. In the final rule, as in the proposed rule,
denial by USCIS will be mandatory only ``if the petition is filed
during the debarment period, or if the debarment occurs during the
pendency of the petition.'' Limiting mandatory denials to the period of
debarment is appropriate because it will be consistent with the
debarment period imposed by DOL. Beyond the mandatory denials during
the period of debarment, USCIS may still consider the debarment under
the circumstances described in 8 CFR 214.2(h)(10)(iv)(B) and (C) if it
finds that the debarment calls into question a petitioner's or
successor's intention and/or ability to comply with H-2 program
requirements.
DHS also declines to impose a 5-year lookback period under new 8
CFR 214.2(h)(10)(iv)(A)(2) and (3). As discussed in the NPRM and noted
above, DHS believes that a 3-year timeframe is appropriate as it
captures an employer's reasonably recent activity, which is a highly
relevant consideration with respect to their current intention and
ability to comply with program requirements, while also recognizing
that employers may make changes to practice, policies, and personnel
over time to remedy deficiencies.
Comment: A couple of advocacy groups and a research organization
generally supported proposed 8 CFR 214.2(h)(10)(iv)(B) and suggested
that DHS should not limit this provision to a 3-year look-back
timeframe. The commenters reasoned that a ``severe labor violation 5
years ago'' could indicate an ongoing ``inability or unwillingness'' to
comply with H-2 program requirements, while a ``relatively minor one''
might not. The commenters also stated that the 3-year timeframe should
be removed, as recency is already a factor that USCIS would be
instructed to consider.
Response: DHS declines to adopt this suggestion. While, as noted by
the commenters, ``recency'' is a relevant factor listed in 8 CFR
214.2(h)(10)(iv)(C), DHS recognizes that employers have an interest in
knowing that, at some point, a long-ago violation, standing alone, will
no longer be a basis for calling into question their ability and intent
to comply with H-2 program requirements. Establishing a set timeframe
is appropriate because it recognizes the employer's interest in
certainty and accounts for changes in practice, policies and personnel
by an employer which may become more relevant as the underlying
violation becomes more remote in time.
g. Other Comments Related to the Mandatory and Discretionary Denial
Provision
Comment: A couple of advocacy groups and a union expressed support
for the mandatory and discretionary denial provisions that will apply
to petitioners and successors in interest. The advocacy group
referenced a comment from its members that it said showed employers
commonly sidestepped legal consequences by reorganizing under new
corporate entities and continuing abusive employment practices. The
commenter stated that by extending the mandatory and discretionary
denial provisions to successors in interest, the Department would
address these situations.
Response: DHS appreciates these comments and agrees that the
provisions at 8 CFR 214.2(h)(10)(iv) should also apply to successors in
interest.
Comment: A trade association expressed support for DHS's statement
in the proposed rule preamble that USCIS would distinguish between a
single or minor violation of OSHA requirements versus a pattern of
serious non-compliance. The commenter also expressed support for the
relevant factors USCIS stated it would consider in 8 CFR
214.2(h)(10)(iv)(C). However, the commenter suggested that DHS
``reinforce this position by providing detailed guidance following
issuance of a final rule,'' reasoning it would benefit petitioners and
DHS staff.
Response: As explained above, the provision at 8 CFR
214.2(h)(10)(iv)(B)(3), as finalized in this rule, covers ``any
applicable employment-related laws or regulations.'' This provision
allows USCIS to consider discretionary denial for a wide variety of
administrative or judicial determinations that are relevant to a
petitioner's intention or ability to comply with H-2 program
requirements. DHS believes that this provision is sufficiently clear.
However, USCIS may consider providing additional policy guidance
related to this provision, similar to the guidance provided in the NPRM
and in this final rule, on the uscis.gov website or in the USCIS Policy
Manual. Similarly, DHS believes that the provision at 8 CFR
214.2(h)(10)(iv)(C) is clear in that it explains that USCIS will
consider ``all relevant factors'' in determining whether a violation
calls into question a petitioner's or successor in interest's intention
and/or ability to comply with H-2 program requirements. The provision
goes on to provide a non-exhaustive list of eight factors that may be
considered in making the determination. Again, although this provision
provides sufficient clarity and guidance to the regulated public and to
USCIS adjudicators, USCIS may consider providing additional guidance on
the uscis.gov website or in the USCIS Policy Manual.
Comment: Several commenters generally supported proposed 8 CFR
214.2(h)(10)(iv)(B) and provided suggestions on how to strengthen this
provision. For example, an advocacy group expressed support for
proposed 8 CFR 214.2(h)(10)(iv)(B), reasoning it would help curb
abusive employers' exploitation of the program and level the playing
field for ``scrupulous'' employers. However, the commenter suggested
the Department strengthen 8 CFR 214.2(h)(10)(iv)(B)(3) to include
housing-related violations, reasoning that H-2 workers are typically
subject to ``noncompliant, unsanitary, and unsafe'' housing. Similarly,
an advocacy group said that under 8 CFR 214.2(h)(10)(iv)(B), failure to
provide safety training to H-2 workers should be grounds for denial,
adding that the first 1 to 2 weeks of employment should be devoted to
training that aligns with United States' labor laws for domestic
workers. A research organization suggested 8 CFR 214.2(h)(10)(iv)(B)(3)
be expanded to include ``a number of other violations.''
Response: DHS declines to make changes to 8 CFR
214.2(h)(10)(iv)(B)(3) based on these comments. DHS believes the
wording of the provision at 8 CFR 214.2(h)(10)(iv)(B)(3), as finalized
in this rule, is appropriately broad to allow USCIS to consider
discretionary denial for a wide variety of administrative or judicial
determinations, including those relating to housing, which are relevant
to a petitioner's intention or ability to comply with H-2 program
requirements. As the provision covers ``any applicable employment-
related laws or regulations,'' it is unnecessary to specifically list
each category of violation covered.
For instance, with respect to the housing-related violations noted
by one commenter, because H-2A employers are required to provide
employee housing, the laws and regulations
[[Page 103257]]
governing the provision of such housing would constitute ``applicable
employment-related laws and regulations,'' and a final determination
that an H-2A employer had violated such laws or regulations in its
provision of housing to workers could potentially call into question
the petitioner's intention or ability to comply with program
requirements. In addition, while another commenter's suggestion to
institute specific training requirements for workers is outside of the
scope of this rulemaking, to the extent that current or future laws or
regulations prescribe specific training requirements applicable to H-2
workers, they would likewise be considered ``applicable employment-
related laws or regulations'' for the purposes of this provision.
Comment: A research organization and a union suggested that USCIS
create ``a list of key labor, employment, wage and hour, civil rights,
disability, anti-trafficking, and anti-discrimination laws'' that if an
employer violated, would establish evidence that they are unlikely to
follow employment and immigration laws and thus, be prohibited from
having a petition approved for an H-2 worker. The research organization
added that DHS should make denial of petitions based on violations of
these laws mandatory if the violations had occurred in the preceding 5
years. The commenters also suggested that a list of violations work
best in tandem with a ``front-end screening process'' from DOL. As
described by the commenters, this ``front-end screening process'' would
require employers to first register with DOL for eligibility to use the
program. DOL would then screen the employers' records on compliance
with labor and employment laws up front at the TLC stage. However, the
commenters concluded that, even absent a new screening process at the
DOL level, DHS should, at a minimum, build on 8 CFR 214.2(h)(10)(iv)(B)
by creating a list of key violations, which could make significant
progress in keeping lawbreaking employers out of the H-2 programs.
Response: DHS declines to create a specific list of additional
legal violations or to make a violation on this list a specific ground
for mandatory denial if the violation occurred within the preceding 5
years. By including a very broad scope for the types of violation
determinations that may lead to discretionary denial provision at
214.2(h)(10)(iv)(B) generally and the catch-all provision at
214.2(h)(10)(iv)(B)(3) specifically, DHS recognizes that the violations
underlying these determinations can vary widely in nature and severity,
and believes it is appropriate to maintain a discretionary analysis
that will allow consideration on a case-by-case basis.
Comment: A union urged DHS to create a mechanism for public
entities, such as labor unions and advocacy groups, to report employers
that have committed violations or might be attempting administrative
changes to avoid successor in interest consequences, considering the
breadth and scope of H-2 employers and recruiters.
Response: DHS declines to create a separate mechanism for public
entities to report suspected immigration benefit fraud and abuse, which
would include employer violations and employers undertaking
administrative changes solely to avoid successor in interest
consequences. Instead, DHS encourages public entities to report such
information through the existing ICE Tip Form or other tip forms, as
appropriate.\75\
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\75\ The ICE Tip Form is available online at https://www.ice.gov/webform/ice-tip-form (last visited July 29, 2024).
Anonymous tips may alternately be reported to ICE via the toll-free
ICE Tip Line, (866) 347-2423.
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Comment: While expressing support for the mandatory and
discretionary denials for certain violations section, an advocacy group
urged the Department to create mechanisms for former employees of
barred petitioners to connect with alternative H-2 employers, such as a
recruitment database. The commenter reasoned that certain H-2 ``sending
communities'' have limited numbers of recruiters and employers, which
causes workers to decide between an abusive H-2 job or no job at all.
The commenter added that the exclusion of an abusive employer from the
program might result in a loss of economic opportunities for workers
who chose the job out of necessity.
Response: DHS appreciates the commenters' concerns and suggestions
but will not be adopting the suggestions as part of this final rule.
While DHS appreciates the commenters' concerns about the need to
provide workers with alternative non-abusive employers, DHS does not
match or otherwise facilitate recruitment between an H-2 worker and a
prospective H-2 employer. Creating a recruitment database or other
mechanism for matching workers with H-2 employers is outside the scope
of this rule. However, DHS may continue to consider these suggestions
outside of the regulatory process.
3. Compliance Reviews and Inspections
Comment: Some commenters, including a research organization and a
few unions, expressed support for USCIS' investigative authority to
ensure employers' compliance with the proposed rule. A couple of unions
urged USCIS to use the proposed rule to ensure confidentiality in USCIS
interviews and explicitly mandate that USCIS interviews with H-2
employees take place without the employer or their representative
present. A union proposed modified language for the discussion of site
visits at 8 CFR 214.2(h) to specify that ``[i]nterviews with H-2B
workers must be taken in confidence,'' similar to DOL's Davis-Bacon
regulations on prevailing wage labor standards investigations. See 29
CFR 5.6(a)(3). This commenter concluded that, if an H-2 worker knows
that an interview is taken in confidence and that its contents will not
be reported back to the employer, the H-2 worker will be empowered to
speak more freely about potential violations.
Response: The regulatory text in this rulemaking states that
petitioners and employers must agree to allow USCIS to ``interview [ ]
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.'' New 8 CFR 214.2(h)(5)(vi)(A), (h)(6)(i)(F). As such, the
regulatory text already states that employee interviews may be
conducted without the employer or employer's representative present.
DHS declines to add regulatory text mandating that employee interviews
take place without the employer or their representative present because
of the operational and logistical issues it could present.
Additionally, some employees may have a genuine wish to have an
employer's representative present and USCIS may grant that request.
DHS declines the suggested revision to the regulatory text to state
that interviews of H-2 workers ``must be taken in confidence.'' DHS
recognizes that workers providing information to USCIS officers during
interviews can place the worker in a precarious position, and that
assurances of confidentiality may encourage a worker to speak more
freely. DHS anticipates that the expansion of the whistleblower
protections in this rule will help counteract the potential negative
consequences that workers may face when cooperating with USCIS officers
in interviews. To the extent practicable, USCIS seeks to protect the
privacy of
[[Page 103258]]
workers when using information they have provided to support any
adjudicative decision. However, USCIS must also adhere to 8 CFR
103.2(b)(16)(i) which states that for any decision based on derogatory
information unknown to the petitioner, the petitioner will be advised
of that fact and offered an opportunity to rebut the information. DHS
also recognizes that sometimes workers may genuinely prefer to speak
with their employer present. In that situation, USCIS may comply with
the worker's preference and decline to remove the worker from the site
to conduct the interview in confidence.
Comment: A couple of commenters, including a religious organization
and a trade association, expressed support for USCIS' clarification of
the scope and potential consequences for employers who fail to fully
cooperate with USCIS with respect to on-site inspections. These
commenters emphasized the importance of employers understanding what is
required of them for on-site inspections and the consequences for
noncompliance so that they avoid unnecessary penalties. A research
organization recommended DHS repeal its October 27, 2021 policy
memorandum, Guidelines for Enforcement Actions in or Near Protected
Areas,\76\ so that USCIS can broadly exercise the enforcement actions
(including site inspections) proposed in the proposed rule, rather than
being limited to certain areas or persons.
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\76\ Dept. of Homeland Security, ``Guidelines for Enforcement
Actions in or Near Protected Areas'' (Oct. 27, 2021), https://www.dhs.gov/sites/default/files/publications/21_1027_opa_guidelines-enforcement-actions-in-near-protected-areas.pdf.
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Response: DHS agrees with commenters that by providing clear
requirements and expectations for inspections, verification, and
compliance reviews, and adding transparency to the potential
consequences of non-compliance, petitioners will have the information
necessary to remain in compliance with the requirements of the H-2
program. Regarding the mentioned policy memorandum, USCIS does not
anticipate that the requirements of that memorandum would interfere
with the activities of USCIS officers conducting on-site inspections in
a way that would limit their ability to interview pertinent
individuals. Importantly, USCIS inspections, verifications, and
compliance reviews are not enforcement actions, but rather are
information gathering actions to ensure that entities remain in
compliance with the terms and conditions of the H-2 petition that was
filed with USCIS. As noted in the proposed rule, the petitioner will be
informed of and given the chance to respond to any information gathered
from the site visit.
Comment: A professional association expressed support for the
proposed rule's strengthening of USCIS activities such as audits and
investigations, but opposed the provision that would allow government
access to H-2A housing, calling this intrusive and burdensome. The
professional association further stated that USCIS investigations
should only include material and information collection related to H-2A
program compliance.
Response: DHS appreciates the commenter's concern but will retain
the language requiring H-2A petitioners and employers to allow access
to sites where workers are or will be housed. This requirement is
important to ensure USCIS has access to the workers themselves during
the course of compliance review activities. As stated in the preamble
of the NPRM, USCIS does not and will not conduct inspections regarding
the standard of housing provided, however such inspections may, if in
accordance with relevant law, be conducted by other Federal, State, or
local agencies. 88 FR 65040, 65061 (Sept. 20, 2023).
Comment: Several individual commenters expressed concern about what
standards USCIS would use to define noncooperation during on-site
visits. Similarly, some commenters, including a business association, a
professional association, and a couple of trade associations, expressed
concern with the term ``fully cooperate'' used in the proposed rule at
88 FR 65040, 65061 (Sept. 20, 2023), writing that USCIS is unclear in
explaining how it will decide what cooperation during site visits looks
like.
Response: As discussed in the proposed rule, DHS's goal is to
provide transparency to the compliance review process so that entities
and individuals subject to those processes understand that USCIS'
inability to verify pertinent facts, including where such inability is
due to entities' or individuals' failure to fully cooperate, may result
in denial or revocation of the petition. Id. With this rule, DHS is
codifying its existing authority and clarifying the scope of
inspections and the consequences of a refusal or failure to fully
cooperate with these inspections in response to these comments. See new
8 CFR 214.2(h)(5)(vi)(A) and 8 CFR 214.2(h)(6)(i)(F)(2). In response to
the commenters' request for clarification as to what cooperation during
site visits is expected, DHS notes preliminarily that the determination
whether a person or entity is ``fully cooperating'' with a DHS
inspection will depend on the facts of each case. In general, to
``fully cooperate'' in this context, entities would be expected to
comply with the scope of the reviews and be responsive to
investigators, including by: granting access to the premises, making a
representative of the petitioner or employer available for questions,
submitting or allowing review of pertinent records, providing access to
workers and allowing interviews with such employees to take place in
the absence of the employer or employer's representative and at a
location mutually agreed to by the employee and USCIS officers, which
may or may not be on the employer's property. Full cooperation also
generally includes providing access to the sites where labor is
performed and to worker housing, if applicable.
As described in the proposed rule, a petitioner or employer failing
or refusing to fully cooperate ``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 HR records pertaining to the
beneficiary(ies). Failure or refusal to fully cooperate could also
include situations where a petitioner or employer agreed to speak but
did not provide the information requested within the time period
specified, or did not respond to a written request for information
within the time period specified.'' 88 FR 65040, 65061 (Sept. 20,
2023). Importantly, no denial or revocation for USCIS' inability to
verify pertinent facts based on non-compliance would occur without the
petitioner first being given notice of USCIS finding non-compliance and
having a chance to rebut and present information on its own behalf in
compliance with 8 CFR 103.2(b)(16).
Comment: Some commenters expressed opposition to the application of
investigative authority to any documents or areas that another H-2
regulatory body already inspects and encouraged USCIS to coordinate
with other agencies to avoid wasting Department or employer resources
on duplicative reviews. Likewise, a joint submission and a professional
association suggested USCIS may be overstepping its subject matter
expertise and regulatory bounds when it comes to employment matters,
noting specifically
[[Page 103259]]
that DOL and State workforce agencies already exercise the same
investigative authority that DHS seeks to codify. Similarly, while
commenting on DHS's proposed codification of its authority for on-site
inspections, a few commenters, including a professional association and
trade associations, remarked that USCIS should ensure it is not
overreaching or superseding the regulatory authority of other
government entities.
Response: USCIS officers conduct verification and compliance
reviews, including on-site verifications, to ensure compliance with the
terms and conditions of the H-2 petition filed with USCIS. The focus of
these reviews is on information that is needed by USCIS 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. USCIS officers routinely
coordinate with others in the Department and with other agencies to
reduce duplicative investigations when possible. However, the
occurrence of a review by another agency does not absolve the employer
of its responsibility to fully cooperate with USCIS verification and
compliance reviews, including on-site inspections. It remains the
petitioner's burden to demonstrate eligibility for the benefit
sought.\77\
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\77\ See INA sec. 291, 8 U.S.C. 1361; see also USCIS, Policy
Manual, Chapter 4--Burden and Standards of Proof (``The burden of
proof to establish eligibility for an immigration benefit always
falls solely on the benefit requestor. The burden of proof never
shifts to USCIS.''), https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-4.
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DHS recognizes that other agencies may exercise investigative
authority pertaining to their respective mandates. However, DHS
continues to exercise its own authority pursuant to INA sec. 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,\78\ under which USCIS conducts
inspections, evaluations, verifications, and compliance reviews, to
ensure that a petitioner and beneficiary are eligible for the benefit
sought and that all laws have been complied with before and after
approval of such benefits. 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 codifying its currently exercised
authority, DHS will continue to review matters pertinent to H-2A and H-
2B petition approval. Although some issues, such as the duties of the
offered job, may be applicable to both DHS authority and the authority
of another agency, that overlap does not signify DHS ``overstepping''
its authority in reviewing information pertaining to that issue. To the
extent that multiple agencies are involved in the administration of the
H-2A and H-2B program, DHS and other agencies may each maintain
independent authority to ensure that entities and individuals are
abiding by the terms and conditions of the H-2A and H-2B programs.
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\78\ See, e.g., INA secs. 235(d)(3), 287(a)(1), (b); 8 U.S.C.
1225(d)(3), 1357(a)(1), (b).
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a. Legal Authority for Compliance Reviews and Inspections
Comment: A research organization stated that the proposed on-site
inspections by USCIS FDNS are illegal, asserting that there is no
authority to authorize USCIS to conduct on-site inspections. The
commenter stated that the HSA refers to USCIS' duties as solely
immigration-related ``[a]djudications,'' and Congress has never enacted
any statute that overturns the prohibition on USCIS engaging in law
enforcement, investigations, and intelligence gathering. The commenter
went on to state that the HSA expressly prohibits any reorganization of
agency functions by the Executive, and the NPRM provides no citation
for FDNS's authority to conduct investigations and inspections.
Further, the commenter said INA sec. 286(m) provides that Immigration
Examinations Fee Account (IEFA) funds are earmarked ``for expenses in
providing immigration adjudication and naturalization services,'' and
if USCIS insists on moving forward with FDNS inspections, it should
clearly state that those inspections will not be paid for by IEFA
funds. The commenter concluded that DHS should follow the HSA, transfer
all investigations to ICE--which has express legal authority and
capacity to carry out investigative and intelligence-gathering
activities, and cease the unlawful diversion of IEFA funds to FDNS.
Response: DHS disagrees with the commenter that it lacks legal
authority to conduct on-site inspections through USCIS FDNS. DHS also
disagrees that DHS should transfer all investigations to ICE. Finally,
DHS disagrees with the assertion that it is unlawfully diverting IEFA
funds to FDNS. Specifically, this rulemaking codifies existing
authorities exercised by USCIS FDNS in the Code of Federal Regulations,
and does not include any changes to the funding structure or sources of
FDNS.\79\
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\79\ As noted in the preamble of the USCIS fee rule, DHS
interprets 8 U.S.C. 1356(v)(2)(B) as providing supplemental funding
to cover activities related to fraud prevention and detection and
not prescribing that only those funds may be used for that purpose,
and FDNS is funded from both the IEFA and the Fraud Prevention and
Detection Account. 89 FR 6194, 6247 (Jan. 31, 2024).
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In 2004, USCIS established the FDNS in response to a congressional
recommendation to establish an organization ``responsible for
developing, implementing, directing, and overseeing the joint USCIS-ICE
anti-fraud initiative and conducting law enforcement/background checks
on every applicant, beneficiary, and petitioner prior to granting
immigration benefits.'' \80\ FDNS also oversees a strategy to promote a
balanced operation that distinguishes USCIS' administrative and
adjudicatory authority, responsibility, and jurisdiction from ICE's
criminal investigative authority.
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\80\ See Conference Report to accompany H.R. 4567 [Report 108-
774], ``Making Appropriations for the Department of Homeland
Security for the Fiscal Year Ending September 30, 2005,'' p. 74
(Oct. 9, 2004), https://www.gpo.gov/fdsys/pkg/CRPT-108hrpt774/pdf/CRPT-108hrpt774.pdf.
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The site visits and inspections conducted by FDNS are authorized
through multiple legal authorities. The Secretary of Homeland Security
is authorized to administer and enforce the immigration laws. INA sec.
103(a)(1), 8 U.S.C. 1103(a)(1). The Secretary may confer this authority
to any DHS employee, to the extent permitted by law. INA sec.
103(a)(4), 8 U.S.C. 1103(a)(4); HSA sec. 102(b)(1), 6 U.S.C. 112(b)(1);
8 CFR 2.1.\81\ Moreover, under 6 U.S.C. 112(a)(3), all functions of
officers, employees, and organizational units of [DHS] are vested in
the Secretary. The Secretary of Homeland Security delegated to USCIS
the authority to administer the immigration laws, including the
authority to investigate civil and criminal violations involving
applications or determinations for benefits.\82\ Following
[[Page 103260]]
the dissolution of the Immigration and Naturalization Service (INS) and
the creation of DHS on March 1, 2003, authority to ``administer the
immigration laws'' was delegated to USCIS.\83\
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\81\ Pursuant to 8 CFR 2.1, all authorities and functions of the
Department of Homeland Security to administer and enforce the
immigration laws are vested in the Secretary of Homeland Security.
The Secretary of Homeland Security may, in the Secretary's
discretion, delegate any such authority or function to any official,
officer, or employee of the Department of Homeland Security,
including delegation through successive redelegation, or to any
employee of the United States to the extent authorized by law. Also,
because INA sec. 103(a)(4) refers to ``Service'', i.e. Legacy INS,
see also 8 CFR 1.2 which defines Service as ``U.S. Citizenship and
Immigration Services, U.S. Customs and Border Protection, and/or
U.S. Immigration and Customs Enforcement, as appropriate in the
context in which the term appears.''
\82\ Delegation to the Bureau of Citizenship and Immigration
Services, Department of Homeland Security Delegation Number 0150.1,
Issue Date: 06/05/2003. The Bureau of Citizenship and Immigration
Services was the initial name for USCIS following the dissolution of
the Immigration and Naturalization Service.
\83\ See Delegation 0150.1(II)(H) (June 5, 2003).
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USCIS was delegated the ``authority to investigate alleged civil
and criminal violations of the immigration laws, including but not
limited to alleged fraud with respect to applications or determinations
within the USCIS, and make recommendations for prosecutions, or other
appropriate action when deemed advisable.'' \84\ USCIS also has the
``authority to interrogate aliens and issue subpoenas, administer
oaths, take and consider evidence, and fingerprint and photograph
aliens under sections 287(a), (b), and (f) of the INA, 8 U.S.C.
1357(a), (b), and (f), and under 235(d) of the INA, 8 U.S.C. 1225(d).''
\85\
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\84\ See Delegation 0150.1(II)(I) (June 5, 2003).
\85\ See Delegation 0150.1(II)(S) (June 5, 2003).
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USCIS and ICE were granted concurrent authority to investigate
immigration benefit fraud.\86\ Through written agreement, ICE agreed to
take the lead on criminal and other enforcement investigations. USCIS
agreed to focus on detecting and combating fraud associated with
adjudicating applications and petitions.\87\ The Homeland Security Act
of 2002, Public Law 107-296, 116 Stat. 2135, granted the Secretary of
Homeland Security the authority to administer and enforce provisions of
the INA, as amended, INA sec. 101, 8 U.S.C. 1101 et seq. The Secretary,
in Homeland Security Delegation No. 0150.1, delegated certain
authorities to USCIS. FDNS's activities fall squarely within this
delegation.
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\86\ In Section (II)(I) of DHS Delegation Number 0150.1,
Delegation to the Bureau of Citizenship and Immigration Services,
and in section 2(I) of DHS Delegation Number 7030.2, Delegation of
Authority to the Assistant Secretary for the Bureau of Immigration
and Customs Enforcement, USCIS and ICE received concurrent authority
to investigate fraud involving immigration benefits available under
the INA. In their respective delegations, USCIS and ICE were further
directed by the Secretary of Homeland Security to coordinate the
concurrent responsibilities provided under these Delegations. A
memorandum of agreement was undertaken to advance the coordination
between USCIS and ICE, as authorized by these Delegations. The
Secretary of Homeland Security has properly delegated authority to
immigration officers, including immigration officers who work for
FDNS.
\87\ Memorandum of Agreement between USCIS and ICE on the
Investigation of Immigration Benefit Fraud, September 25, 2008; see
also Memorandum of Agreement between USCIS and ICE Regarding the
Referral of Immigration Benefit Fraud and Public Safety Cases (Dec.
15, 2020).
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Further, regulations support the FDNS activities that are described
in this rule. For example, 8 CFR 1.2, defines ``immigration officer''
to include a broad range of DHS employees including immigration agents,
immigration inspector, immigration officer, immigration services
officer, investigator, and investigative assistant. As duly appointed
immigration officers, FDNS immigration officers may question
noncitizens based on the authority delegated by the Secretary of
Homeland Security. Furthermore, INA sec. 287(a)(1), 8 U.S.C.
1357(a)(1), provides any officer or employee of the Service with the
authority to (pursuant to DHS regulations) without warrant
``interrogate any alien or person believed to be an alien as to his
right to be or remain in the United States.'' See also 8 CFR 287.5. The
regulation at 8 CFR 287.8(b) specifically sets out standards for
interrogation and detention not amounting to arrest, wherein
immigration officers can question individuals so long as they do not
restrain the person they are questioning. The Board of Immigration
Appeals has recognized that the reports produced by FDNS based on site
visits and field investigations are ``especially important pieces of
evidence.'' \88\ These investigations and reports help ensure that
adjudicative decisions are made with confidence by providing
information that would otherwise be unavailable to USCIS.
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\88\ Matter of P. Singh, 27 I&N Dec. 598, 609 (BIA 2019)
(``Detailed reports from on-site visits and field investigations are
especially important pieces of evidence that may reveal the presence
of fraud.'').
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With respect to the assertions that DHS is unlawfully diverting
funds to FDNS, DHS also disagrees with such assertions. USCIS' funding
authority for FDNS is discussed in detail in the Fee Final Rule where
DHS addressed similar comments. 89 FR 6194, 6246-6248 (Jan. 31, 2024);
89 FR 20101 (Apr. 1, 2024).
4. Whistleblower Protection
a. Support for Whistleblower Protections
Comment: Many commenters expressed support for incorporating
whistleblower protections in the proposed rule, with some commenters,
including some unions, stating that workers would feel safer in
reporting abuses or violations without fear of retaliation. A joint
submission stated their support for expanding the activities covered
under whistleblower protections.
A couple of advocacy groups expressed strong support for the
provision, particularly the inclusion of seeking legal services as a
protected activity and for considering loss of H-2 status due to an
employer's retaliatory action an ``extraordinary circumstance,'' and
urged DHS to finalize it as soon as possible. An advocacy group also
expressed support for expanding the definition of protected activities,
even if it would result in the language for H-2 differing from the H-1B
whistleblower provision. An individual commenter expressed support for
the implementation of H-2 whistleblower protection in alignment with
protections for H-1B workers. The commenter reasoned that such
protections would not only give nonimmigrants the ability to voice
concerns about wrongdoing, malpractice, or fraud, but they would also
hold industries accountable, creating a better environment for H-2
workers. Similarly, a union expressed that allowing H-2 workers the
flexibility to call out employers' program violations makes all workers
safer.
Response: DHS appreciates the comments about the need for
whistleblower protections for H-2 workers. DHS anticipates that these
revisions will help H-2 workers feel safer in reporting violations,
improving worker conditions for all employees at the location.
Comment: Discussing a series of court cases that emphasized ``the
crucial nature of provisions protecting workers against employer
reprisals for filing claims and opposing employer violations'' and
expansively interpreted the types of conduct protected against
retaliation, a joint submission expressed support for the proposed
whistleblower provisions and DHS's overall efforts to enhance worker
protections as part of the broader changes alongside the DOL's proposed
changes to the H-2A program.\89\ The commenters stated that ``the total
of such systemic change is especially essential'' to protecting
vulnerable H-2 workers, many of whom ``are vulnerable to threats of
violence or other forms of retaliation against their family members in
their home country, as well as to recruiter threats to blacklist them
from any future H-2 employment.''
---------------------------------------------------------------------------
\89\ See ``Improving Protections for Workers in Temporary
Agricultural Employment in the United States,'' 88 FR 63750 (Sept.
15, 2023). DOL subsequently published a corresponding final rule on
April 29, 2024. 89 FR 33898.
---------------------------------------------------------------------------
Response: DHS agrees with the commenters that H-2 workers are
vulnerable to retaliation and expects that this rule, along with
existing DOL
[[Page 103261]]
regulations,\90\ will encourage H-2 workers to report violations with
less fear of retaliation.
---------------------------------------------------------------------------
\90\ See, e.g., 20 CFR 655.135 (H-2A); 29 CFR 501.4 (H-2A); 20
CFR 655.20(n) (H-2B); 29 CFR 503.16(n) (H-2B).
---------------------------------------------------------------------------
Comment: While expressing support for whistleblower protections in
the proposed rule, several commenters, including trade associations and
a professional association, urged USCIS to better define terms such as
``retaliatory action'' and ``nondocumentary documentation.'' A couple
of the trade association commenters added that employers require these
definitions to implement training accordingly. A union recommended DHS
include ``charging of illegal recruitment fees'' as an example of a
labor dispute for which claims would be protected under the
whistleblower protections, as well as ensuring that collective
bargaining and other union activities warrant whistleblower protection.
Response: DHS appreciates the general support but declines to adopt
the specific suggestions. The comments requesting that DHS define
certain terms did not offer suggestions as to what those definitions
should be. As explained in the proposed rule, to ensure flexibility,
and to track the current approach for H-1B petitions at 8 CFR
214.2(h)(20), DHS did not propose to define ``retaliatory action.''
Nevertheless, DHS offered a non-exclusive list of examples, to include
harassment, intimidation, threats, restraint, coercion, blacklisting,
intimidating employees to return back wages found due (``kickbacks''),
or discrimination, which could dissuade an employee from raising a
concern about a possible violation or engaging in other protected
activity. In determining what constitutes ``retaliatory action,'' DHS
will consider all relevant facts presented, including those
vulnerabilities particular to H-2 workers. DHS also notes that it did
not use the phrase ``nondocumentary documentation.'' Instead, DHS
proposed 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.'' In order to allow flexibility in the types of
documentation that may be submitted, DHS did not propose specifying any
particular form that a ``claim'' or the ``credible documentary
evidence'' must take. DHS recognizes that credible evidence can take
many forms, some of which it might not be able to foresee, and
anticipates that the flexible credible documentary evidence standard,
without further restrictions, will balance the need for evidence with
the special challenges vulnerable H-2 workers may face in collecting
evidence.
Comment: A union suggested that the reasonableness of a claim of
program violations should be considered from the H-2 worker's
perspective, similar to the decision in Stericycle, Inc., in which the
National Labor Relations Board explained that, in analyzing whether a
work rule has a ``reasonable tendency to chill employees from
exercising their . . . rights,'' it will ``interpret the rule from the
perspective of an employee who is subject to the rule and economically
dependent on the employer . . . .'' \91\ The commenter recommended DHS
use similar language to revise 8 CFR 214.2(h)(10)(iv)(D)(2).
---------------------------------------------------------------------------
\91\ Stericycle, Inc., 372 NLRB 113, 114 (NLRB Aug. 2, 2023).
---------------------------------------------------------------------------
Response: DHS appreciates this suggestion. While DHS is not bound
by NLRB's decision in Stericycle, Inc. decision, DHS recognizes the
importance of setting a standard that considers the perspective of an
employee who is subject to an employer's work rule and economically
dependent on the employer. As discussed throughout the proposed rule
and this final rule, H-2 workers are a vulnerable population at risk
for retaliation against themselves and their family. Accordingly, new 8
CFR 214.2(h)(20) states that ``USCIS will determine the reasonableness
of any claim from the perspective of a reasonable person in the H-2A or
H-2B worker's position.'' This will be similar to the language proposed
and finalized for 8 CFR 214.2(h)(10)(iv)(D)(2), as recommended by the
commenter.
Comment: A union expressing support for these protections urged DHS
to ensure H-2 workers receive training--in a language they understand--
on their rights just prior to their departure for the United States. A
religious organization expressing support for the proposed
whistleblower protections recommended that DHS provide the protections
in 8 CFR 214.2(h)(2) to workers in a language they understand.
A union stated that DHS should work alongside other Federal
agencies to improve access to and expedite requests for status
protections during a whistleblower claim. A joint submission similarly
remarked that other agencies with a similar purview, such as DOL, do
not have enough time to investigate claims or ensure temporary
immigration relief for claimants. Accordingly, the commenter, along
with an advocacy group, urged for the proposed policy to be adopted
immediately on an interim basis until it is finalized.
An advocacy group cited multiple sources demonstrating the
pervasiveness of blacklisting--a form of employer retaliatory action
that can make it difficult for H-2 workers to find new positions--in
the H-2 program, creating added fear that prevents H-2 workers from
coming forward as whistleblowers. The group urged DHS to take further
steps to specifically counter blacklisting, including (but not limited
to) providing work authorization and parole to any worker who brings a
credible report of blacklisting to a labor agency.
Response: DHS appreciates these comments and anticipates that this
final rule will adequately address their concerns insofar as the issues
are within DHS jurisdiction. DHS agrees that workers should understand
their rights. Currently, DOS provides H-2 visa recipients with a Know
Your Rights informational pamphlet, sometimes known as a Wilberforce
pamphlet.\92\ The pamphlet explains that retaliation against workers
reporting abuse is unlawful and provides information on programs
available to victims of retaliation. The pamphlet is currently
available in more than 50 languages, with new translations being added
on a continual basis.
---------------------------------------------------------------------------
\92\ The English language version of this pamphlet is available
at DOS, ``Know Your Rights; National Human Trafficking
Hotline,''https://travel.state.gov/content/dam/visas/LegalRightsandProtections/Wilberforce/Wilberforce-ENG-100116.pdf.
---------------------------------------------------------------------------
DHS also appreciates the interest in interagency efforts to reduce
retaliation. DHS notes that DOL recently broadened 20 CFR 655.135(h) to
explicitly protect certain activities workers must be able to engage in
without fear of intimidation, threats, and other forms of retaliation.
89 FR 33898, 33998-99 (Apr. 29, 2024). DHS anticipates that interagency
cooperation is possible without additional revisions to this rule.
While DHS agrees with the commenter that protections from retaliation
are urgently needed, DHS is finalizing this rule rather than
implementing this one aspect of the proposal on an interim basis.
DHS recognizes the harms caused by blacklisting and appreciates the
commenters' concerns about this issue. DHS explicitly stated in the
preamble to the proposed rule that retaliatory actions include
blacklisting and anticipates that the final rule, as drafted, will help
address such actions by an employer. DHS will not, in this rule,
[[Page 103262]]
implement further steps, such as providing work authorization and
parole to any worker who brings a credible report of blacklisting to a
labor agency. DHS did not propose to provide parole or work
authorization in these circumstances, and the suggestions exceed the
scope of this rulemaking. However, DHS notes that as a matter of
prosecutorial discretion, it may defer removal action against
individual noncitizens on a case-by-case basis, and that a noncitizen
granted such deferred action may, per 8 CFR 274a.12(c)(33), apply for
and obtain employment authorization for the period of deferred action
if they establish ``an economic necessity for employment.'' \93\ This
process may, under appropriate circumstances, be applicable to workers
who bring credible reports of blacklisting to a labor agency.
---------------------------------------------------------------------------
\93\ USCIS, ``DHS Support of the Enforcement of Labor and
Employment Laws,'' https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/dhs-support-of-the-enforcement-of-labor-and-employment-laws (last updated Apr. 11,
2024).
---------------------------------------------------------------------------
Comment: A religious organization supported the proposed
whistleblower provision but recommended that DHS simplify, outline, and
provide to workers an explanation of this process ``so that the workers
are able to submit complaints to DHS regarding retaliation.'' The
commenter also urged DHS to include in the whistleblower process the
opportunity for certifications (I-918 Supplement B) or declarations (I-
914 Supplement B) for U or T visa status.
Response: DHS appreciates the opportunity to clarify what might be
a misunderstanding concerning the nature of the whistleblower provision
at new 8 CFR 214.2(h)(20)(ii). This provision, as proposed and as
finalized, does not create a new process in which an H-2 worker can
submit a complaint regarding retaliation directly to DHS. Instead, this
new provision allows a petitioner filing an H-2 petition requesting an
extension of stay or change of status on behalf of a beneficiary to
demonstrate that the beneficiary's loss or failure to maintain H-2A or
H-2B status was due to a retaliatory action from their employer. If DHS
determines such documentary evidence to be credible, DHS may consider
any loss or failure to maintain H-2 status by the beneficiary related
to such retaliatory action as an ``extraordinary circumstance'' for
purposes of 8 CFR 214.1(c)(4) and 8 CFR 248.1(b), and DHS may grant a
discretionary extension of H-2 stay or a change of status to another
nonimmigrant classification, as applicable. This provision does not
affect the existing processes or requirements for an H-2 beneficiary to
apply for certifications for U or T nonimmigrant status.
b. Opposition to Whistleblower Protections
Comment: Multiple commenters, including a joint submission, a
professional association, and a State Government, expressed concern
that the whistleblower protections as written give H-2 workers too much
power and may incentivize workers to make bad faith claims about
employer violations. Two commenters expressed concern that the standard
was too broad, with one recommending limiting whistleblower protections
to ``serious violations involving health and safety,'' while another
felt a formal report should be required evidence. Similarly, a State
Government remarked that with the proposed whistleblower protections,
DHS would eliminate employers' protections.
A business association expressing opposition to the proposed
whistleblower standards stated that H-2 workers are not as vulnerable
as the proposed standards assume and DHS does not offer any specific
evidence that these lowered standards would alleviate any
vulnerability. A professional association questioned DHS's authority to
decide protected activities for whistleblowers.
A couple of commenters, including a joint submission and an
association of State Governments, urged DHS to clarify how the
whistleblower provision would be enforced or how claims would be
investigated. The association of State Governments expressed concern
that the change in protections may be costly to employers and that
employers may not receive due process protections.
Response: DHS appreciates the commenters' concerns about the
broadness of the standard and the potential for bad faith claims of
violations but declines to make changes in response to these comments.
First, the ``credible documentary evidence'' standard should decrease
any potential for frivolous or bad faith claims. Second, DHS does not
anticipate that the new whistleblower protections would significantly
incentivize beneficiaries to make false claims of retaliation. New 8
CFR 214.2(h)(20)(ii) does not create a new process for H-2
beneficiaries to directly notify DHS of a violation of potential
violation of their rights. Instead, new 8 CFR 214.2(h)(20)(ii) will
only apply when a petitioner files an H-2 petition requesting an
extension of stay or change of status on behalf of an H-2 beneficiary.
An employer seeking to extend the stay of their own employee is
unlikely to admit their own wrongdoing. Assuming a different employer
was willing to advance a bad faith claim, DHS anticipates that the
``credible documentary evidence'' standard should decrease that risk.
Third, DHS emphasizes that these provisions are not intended to
penalize employers. Instead, they are designed to better enable an
employee who has a reasonable claim of retaliation to extend their stay
or change status. A grant of the request for an extension of stay or
change status for an H-2 worker under new 8 CFR 214.2(h)(20)(ii) based
on a claim of retaliation by a specific employer will not, for example,
trigger a discretionary or mandatory ground for denial of a petition
filed by that employer. Only in cases where the claim leads to a
separate proceeding that confirms an employer violation, with adequate
notice and an opportunity to respond, would the employer face any
adverse consequences. Because adjudications of the extension of stay or
change of status requests are not punitive to a prior employer, DHS
declines to elaborate further on how these extensions of stay or change
of status requests will be adjudicated and does not believe that this
provision raises due process concerns for employers. For the same
reason, given that the adjudication of these requests does not, by
itself, penalize an employer, DHS concludes there is no need to limit
the types of whistleblower claims that can support an extension of stay
or change of status request to formal reports or serious violations
involving health and safety.
E. Worker Flexibilities
1. Grace Periods/Admission Periods
a. General Support for Revisions to Grace Periods
Comment: Some commenters, including an advocacy group, a business
association, and a joint submission, generally supported the proposed
changes to grace periods. A professional association supported the
proposed worker flexibilities granting grace periods to H-2 workers,
especially H-2B workers. An advocacy group said the proposals to grant
workers greater flexibility in the form of grace periods and extended
periods of admission are important steps towards realizing mobility
between H-2 employers and alleviating the harms caused by the H-2
program's structure. A business organization stated that its members
welcomed the proposed grace periods as
[[Page 103263]]
the increased flexibility in these grace periods will help them meet
their workforce needs. The commenter noted that the grace periods will
help workers settle, which alleviates stress for both the employer and
employee, and will help companies seeking to hire additional workers.
Some commenters generally supported the proposed pre- and post-validity
grace periods (further discussed below) without providing specific
rationale.
Response: DHS appreciates these commenters' feedback on the
benefits of the new grace periods, which will improve worker mobility
and protections as well as benefit employers. DHS will finalize the
grace periods without change from the NPRM.
b. Harmonization of H-2 Grace Periods
Comment: Multiple commenters, mostly trade associations and a
business association, appreciated the harmonization of pre- and post-
validity grace periods between the H-2A and H-2B programs, with
commenters saying it would provide workers and employers with needed
flexibilities to minimize challenges associated with transferring
workers to a new contract. A joint submission said the proposed pre-
and post-validity periods would be a desirable change that improves
worker mobility and reduces the burden on both workers and employers.
A couple of trade associations said that aligning these periods
among both programs would help reduce potential confusion in
understanding the Department's ``already overly complicated''
regulatory structure governing the H-2A and H-2B programs. A joint
submission similarly said the harmonization makes the two programs more
efficient and provides uniformity in standards for affected employers
and employees. An advocacy group said the alignment would improve
certainty and predictability for H-2 workers and is a step towards
improving H-2B workers' ability to seek legal support if needed. An
advocacy group wrote that ensuring that pre- and post-employment
admissions periods align for H-2A and H-2B workers would make it easier
for advocates to inform workers about their rights and would improve
certainty and predictability for workers. Some commenters, including
several business associations, said the harmonization also allows
sufficient time for successive petitions to be filed and timely
processed by USCIS prior to the next contract start date.
Response: DHS appreciates the commenters' feedback on the benefits
of harmonizing the length of the pre- and post-validity grace periods
for H-2A and H-2B workers and will finalize these grace periods without
change.
Comment: Without elaborating, a religious organization invited DHS
to consider expanding the grace period for H-2 beneficiaries to be
consistent with the grace period afforded to H-1B workers, stating that
many of the proposed changes incorporate other H-1B protections to the
H-2 programs.
Response: The length of the new grace periods for H-2 workers
finalized in this rule will be the same as, and in some cases longer
than, the grace periods afforded to H-1B workers. Specifically, H-2A,
H-2B, and H-1B workers will have a pre-validity grace period of up to
10 days. New 8 CFR 214.2(h)(5)(viii)(B); 8 CFR 214.2(h)(6)(vii); 8 CFR
214.1(l). H-2A and H-2B workers will have a post-validity grace period
of up to 30 days, while H-1B workers have a post-validity grace period
of up to 10 days. New 8 CFR 214.2(h)(5)(viii)(B); 8 CFR
214.2(h)(6)(vii); 8 CFR 214.1(l). H-2A, H-2B, and H-1B workers will
have a grace period for cessation of employment of up to 60 days. 8 CFR
214.2(h)(13)(i)(C); 8 CFR 214.1(l). H-2A and H-2B workers will have a
grace period of up to 60 days upon the revocation of the employer's
petition, but H-1B workers have no such grace period. New 8 CFR
214.2(h)(11). These different grace periods take into consideration the
special vulnerabilities of H-2 workers.
c. Post-Validity Grace Period of Up to 30 Days Following Expiration of
the Petition
Comment: Some commenters specifically supported the proposed
expansion of the grace period from 10 to 30 days following the
expiration of the petition for H-2B workers, with most stating that it
would likely alleviate some of the pressure employers feel due to the
statutory cap when timing the filing of subsequent petitions against
the expiration of a previous contract. The commenters added that the
expansion would provide H-2B workers the time and flexibility to find
continued subsequent employment without risk. A business association,
examining the grace period in combination with the enhanced portability
provisions, wrote that employers are confident that the ability of H-2
workers to find subsequent employment would inure direct benefits to
their companies. The commenter said this would help H-2B employers
avert cap-related issues, as these individuals have already been
subject to the cap and would not be subject to the cap if they transfer
from one company to another in the same fiscal year.
A professional association similarly stated that, with the
unpredictability of DOL processing times and the unavailability of
additional visa numbers, this proposed grace period gives workers the
opportunity and the time needed to find alternative H-2 employment from
within the United States without having to potentially leave the United
States and, if applicable, then subject themselves to the annual H-2B
cap. The commenter also said that employers benefit, as this grace
period will make it easier for them to transfer workers to their employ
within the United States because the workers will remain in status for
up to 30 days after the expiration of their program end date.
An advocacy group stated that, without this post-contract admission
period, it would be ``near impossible'' for H-2 workers to take
advantage of the proposed rule's portability provisions, as workers
seeking to use these flexibilities may need time to look for another
job, or the start date of the new job may not align precisely with the
end date of their existing job. The commenter went on to state that a
30-day post-contract grace period would give workers returning to their
countries of origin after the end of their H-2 contract period time to
prepare for their departure. In addition, the commenter said the 30-day
period would allow H-2 workers to address any violations of their
rights by seeking legal assistance after they have finished employment,
during regular business hours, and within the United States. A joint
submission in support of the proposal stated that, where a worker seeks
additional H-2 employment or where a worker seeks to pursue complaints
relating to their employment, the current 10-day period of authorized
presence is ``grossly inadequate.''
Response: As noted in the NPRM and by commenters, the extension of
the post-validity grace period will benefit both H-2 workers and
employers by facilitating the use of the new portability provision. It
will also give workers more time to prepare for departure or applying
for an extension of stay based on a subsequent offer of employment. As
also noted by commenters, the extension of this grace period may also
provide workers more time to address any violations of their rights and
pursue complaints relating to their employment.
Comment: A research organization stated that this 30-day grace
period should be lengthened to at least 60 days to ensure that workers
do not find
[[Page 103264]]
themselves out of status when they cannot find an additional employer
within such a short period.
Response: DHS declines to extend the length of the new post-
validity grace period from up to 30 days to at least 60 days. Workers
who complete their contracted employment should know in advance when
their status ended and should have sufficient time to prepare for
departure or make other arrangements within the 30-day grace period
finalized in this rule, compared to H-2 workers who unexpectedly find
themselves out of employment and would be eligible, under this final
rule, for a longer grace period of up to 60 days.
Comment: A trade association stated that, with the change of work
authorization starting at the filing of the extension with USCIS,
``extending the grace period to 60 days after the authorized work
period is not necessary.'' The commenter said this extension may cause
issues with workers who do not have access to housing or give ``bad
player'' employers the opportunity to continue employment without the
proper work authorization. The commenter said changing the policy that
work can start when USCIS receives the petition would already increase
the worker's ability to find employment by several additional days and
should give employees appropriate time to find new employment.
Response: Assuming this commenter is referring to the post-validity
grace period at new 8 CFR 214.2(h)(5)(viii)(B) and 8 CFR
214.2(h)(6)(vii)(A) providing for a grace period of up to 30 days
(rather than 60 days) following the expiration of the H-2B petition,
DHS declines to eliminate or shorten this grace period as proposed. As
acknowledged by other commenters, the extension of the post-validity
grace period to 30 days for all H-2 workers provides valuable benefits
not only for H-2 workers, but also for H-2 employers by likely
alleviating some of the pressure employers feel due to the statutory
cap when timing the filing of subsequent petitions against the
expiration of a previous contract.
d. Support for 60-Day Grace Period Following Cessation of Employment
Comment: Multiple commenters including a group of Federal elected
officials, a union, and a professional association supported the
proposal to provide a new 60-day grace period following cessation of H-
2 employment if the worker was terminated, has resigned, or otherwise
ceased employment prior to the end date of their authorized validity
period. Some of these commenters said this grace period is essential to
allowing H-2 workers sufficient time to respond to the unexpected loss
of employment by seeking new H-2 employment, exploring their legal
options, or organizing their departure from the United States. A joint
submission said that this new provision would improve worker mobility
and reduce the administrative burden on workers and employers. A
professional association stated that in situations usually outside of
the worker's control, the H-2 worker should be allowed to seek new
employment. A union in support of this provision stated that, without
time to search for and secure new employment, visa portability would
not be practically accessible for H-2 workers. The aforementioned union
and professional association, said the proposal is consistent with the
benefits offered by other nonimmigrant classifications.
Multiple commenters, including a couple of unions, a joint
submission, and an advocacy group, supported the proposed grace period
because it would enhance worker autonomy, flexibility, and mobility to
leave unfair, unsafe, or abusive employment conditions and apply for
alternative employment without the risk of losing their visa. A group
of Federal elected officials stated that guest workers have a well-
founded fear of retaliation from employers that often prevents them
from speaking out and advocating for better working conditions, and it
is extremely challenging for workers to change employers, even when
employers break the law. Likewise, an advocacy group said this grace
period is especially critical when workers are terminated from
employment in retaliation for exercising their rights and will lessen
the power of bad-faith employers to leverage the immigration system as
a tool of retaliation. The commenter stated that the proposed rule
complements existing anti-retaliation provisions in DOL regulations
governing the H-2 programs, and in Federal and State law. The commenter
also welcomed DHS's application of this flexibility to any termination
rather than attempting to limit it to retaliatory firings, as
determining whether a termination constitutes retaliation often
requires a fact-intensive and time-consuming legal inquiry. The
commenter went on to say that workers need the 60-day post-employment
grace period to assess any potential violations of their rights and
take legal action if necessary.
A couple of trade associations supported the specification that
workers would not accrue any period of unlawful presence solely based
on cessation of employment. These commenters also agreed with the
proposal that workers would not have to notify DHS or USCIS to take
advantage of the new grace period. The commenters added that DHS should
not consider employer notification to be conclusive evidence regarding
a worker's status or trigger the start date of the 60-day grace period,
and that when an extension is filed the petitioner should provide
information or evidence regarding the cessation of employment to
demonstrate status maintenance.
Response: DHS appreciates the commenters' support for this grace
period, which is intended to improve worker flexibility, mobility, and
protections. DHS confirms that this grace period will apply regardless
of the reason for the H-2 worker's termination (subject to the worker's
maximum period of stay). DHS further confirms that an employer's
notification under 8 CFR 214.2(h)(5)(vi)(B) and 8 CFR 214.2(h)(6)(i)(F)
will not be considered conclusive evidence regarding a worker's status.
e. Concerns With the 60-Day Grace Period Following Cessation of
Employment
Comment: Multiple commenters, including several trade associations,
expressed concern over the 60-day cessation of work grace period as
proposed, stating that it could be abused if H-2 workers, in whom
employers have invested considerable time and expense resources,
immediately quit to spend 60 days, without risk, consequence, or
penalty, to look for another H-2 job. Some of these commenters cited
data indicating that most H-2 employers do not take advantage of their
workforce, nor are they removed from the program, asserting that, while
the 60-day grace period might be warranted if the Department revokes a
bad-actor H-2 employer's petition, it is not necessary or justified for
the majority of H-2 employers. A trade association wrote that the
uncertainty associated with this proposal would have a detrimental
impact on labor-intensive American agriculture. Another trade
association stated that their industry's peak harvest generally lasts
60 to 90 days and that a worker unexpectedly leaving in the last 60
days of the contract would be devastating. Another commenter urged DHS
``to be aware of perverse incentives'' created by this new grace period
and to consider how it ``would affect worker behavior, and the economic
cost of such impact on
[[Page 103265]]
employers should they experience turnover.''
Response: DHS will finalize the grace period for a cessation of
employment at 8 CFR 214.2(h)(13)(i)(C) as proposed. Without this new
grace period, an already financially vulnerable H-2 worker facing an
abusive employment situation or hazardous working conditions must
choose between remaining in a bad employment situation or facing the
harsh consequences of losing wages, benefits, and legal status from
their H-2 employment. As other commenters have noted, some H-2
employers leverage a potential loss of status to coerce workers into
continued employment, creating a power imbalance that allows forced
labor and trafficking to occur in the H-2 programs. Thus, this grace
period of up to 60 days is an important step towards addressing the
systemic power imbalance between H-2 workers and their employers by
giving H-2 workers a more realistic option of leaving a bad employer.
DHS acknowledges that an H-2 employer, like any employer in a free
labor market, risks losing valuable time, resources, and/or manpower
when a worker leaves employment. However, the new grace period is not
expected to provide a significant ``perverse incentive'' for H-2
workers to cease employment without good cause. DHS does not agree with
the commenters that an H-2 worker who ceases employment does so without
risk, consequence, or penalty. Whenever a H-2 worker ceases employment,
they face several risks and consequences including the loss of wages
and benefits that come from that employment, such as housing for H-2A
workers and certain H-2B workers. And as other commenters have noted,
the ability of H-2 workers to cease employment, especially when faced
with a harmful work environment, will help improve equality of wages
and working conditions with U.S. workers.
It is important to emphasize that the new grace period will not
authorize a beneficiary to lawfully work in the United States, but only
ensure that USCIS will not consider a beneficiary to have failed to
maintain nonimmigrant status or to have accrued unlawful status
``solely on the basis of a cessation of the employment.'' New 8 CFR
214.2(h)(13)(i)(C). As stated in the NPRM, the limitation that the
grace period will apply ``solely on the basis of a cessation of
employment'' should mitigate the risk that some workers would try to
use this grace period to engage in unauthorized employment or other
unlawful behavior. 88 FR 65040, 65065 (Sept. 20, 2023). This aspect of
the grace period serves as an important disincentive for H-2 workers to
abuse this provision. Considering the risks an H-2 worker incurs when
leaving their employer, such as losing wages and other benefits, DHS
disagrees that this grace period provides a ``perverse incentive'' for
an H-2 worker to start and immediately quit employment unless there was
good reason to do so. While DHS cannot completely eliminate all risk
that an H-2 worker who might not be deserving would still benefit from
the new grace period, for the reasons stated above, DHS maintains that
such a situation would likely be rare and that the importance of
protecting H-2 workers overall substantially outweighs the risk. Id.
f. Requested Changes to Proposed 60-Day Grace Period Following
Cessation of Employment
Comment: Several commenters suggested that the proposed grace
period following cessation of employment should only apply in certain
circumstances, stating that workers can voluntarily quit for a number
of reasons unrelated to an abusive or hazardous employment situation.
For instance, a joint submission concluded that it would be appropriate
to exclude beneficiaries terminated for cause from taking advantage of
the 60-day grace period in order to protect subsequent employers from
potentially dangerous or problematic behavior (for example, if workers
were terminated for committing violent acts, sexual harassment, or
other infractions that may pose a risk to the health, safety, and well-
being of others). The commenter understood the basis for ``casting a
wide net'' but said it is improbable that workers in an abusive or
unsafe situation would nonetheless remain employed and also engage in
behavior that would lead to their for-cause termination. The commenter
said this is particularly the case in light of both DOL's parallel
rulemaking that would narrow the scope of permissible circumstances in
which workers may be terminated for cause and DHS's ``very lenient''
grace period proposal. A trade association said DHS should consider
adding language defining a process by which employers and workers can
document workplace claims and the efforts made to resolve the concern.
This commenter stated that this provision is needed to provide a
pathway for those working for H-2 employers that have taken advantage
of their workforce, but added that a clearly defined process to utilize
this type of grace period is needed to avoid unnecessary abuse of the
provision. A few trade associations stated that there should be an
affirmative duty of the H-2 worker to attempt to resolve workplace
claims or concerns with the employer prior to quitting since the
employer has committed time and expense in exchange for the worker's
ability to enter and work in the United States, and that there should
be less concern about reprisal if an H-2 worker ceases employment
because they would have a 60-day grace period to seek other H-2
employment if they are unable to resolve the dispute with their
sponsoring employer. Other trade associations expressed concern that
providing a 60-day grace period after an employer has incurred the
expense of bringing a worker to the United States could lead to workers
arriving and quitting to spend 60 days searching for a higher paying H-
2 job elsewhere, stating that there should be associated consequences
for the worker who violates their contract instead of a ``reward'' by
allowing the worker to stay in the United States to pursue another
contract.
A business association urged DHS to consider options to ensure that
workers do not take advantage of this grace period in a manner that
harms employers and suggested an option of foreclosing an H-2 worker's
ability to avail themselves of the 60-day grace period within the first
month of their entry into the U.S to help diminish the potential for
mischief involving the 60-day grace period. Another commenter asked
whether DHS should impose ``a presumption of intent to defraud an
employer if the H-2 worker arrives and leaves within a short period of
time without trying to resolve any workplace dispute.''
Response: As proposed, the new grace period for cessation of
employment will apply regardless of the reason for cessation. DHS
declines to create a new discretionary process by which USCIS would
determine whether to grant or deny a request for a grace period on a
case-by-case basis, such as granting a grace period only when an H-2
worker can document that they made good faith efforts to resolve a
workplace claim or that a workplace is hazardous, or denying a grace
period when a beneficiary was terminated for cause (for example, if the
beneficiary was terminated for committing a violent act, sexual
harassment, or other infractions that may pose a risk to the health,
safety, and well-being of others). The main reason why DHS did not
propose--and now declines to adopt--a discretionary grace period
similar to the one under 8 CFR 214.1(l)(2) is to provide more certainty
to affected H-2
[[Page 103266]]
workers. As stated in the NPRM, 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. 88 FR 65040, 65064 (Sept. 20,
2023). Namely, ``termination for cause'' is both a law and fact-
specific inquiry and workers may not have sufficient understanding of
the concept to know with certainty where USCIS may land on such an
inquiry in a subsequent adjudication, and therefore adding this
limitation on the use of the grace period would likely create a
chilling effect that would undermine the policy objective of this
provision.
It would also be impracticable for USCIS to set up a separate
process outside petition adjudication for approving grace periods on a
case-by-case basis. USCIS would need to create a form for requesting
grace periods, as well as a legal framework for determining whether a
worker was terminated for cause and allow for the submission of
evidence and rebuttal evidence. DHS believes that, even if DHS were
inclined to adopt the commenter's suggestion, the regulated public
should have an opportunity to comment on any such framework and
process, including on the feasibility of workers complying with such a
process. More importantly, even if feasible, such an adjudication could
take a considerable amount of time, potentially undermining the utility
of the grace period for a terminated worker who most likely would not
know the outcome of the adjudication until the end or close to the end
of the grace period, which as explained above would likely lead to a
chilling effect of workers even attempting to use the 60-day grace
period. Regarding the commenter's concern about the grace period
possibly benefiting workers who were terminated for committing violent
acts, sexual harassment, or other infractions that may pose a risk to
the health, safety, and well-being of others, DHS believes that state
and local judicial systems provide avenues to address such and similar
serious criminal and civil infractions, and that limiting the use of
the finite 60-day grace periods is therefore not necessary for that
purpose. In addition, criminal charges may separately affect a worker's
ability to remain in the United States.
DHS declines to adopt the suggested alternative of foreclosing an
H-2 worker's ability to avail themselves of the grace period of up to
60 days within the first month of their entry. Similarly, DHS declines
to impose ``a presumption of intent to defraud an employer'' if the H-2
worker arrives and leaves within a short period of time without trying
to resolve any workplace dispute. As previously explained, the
limitation that the grace period would apply ``solely on the basis of a
cessation of employment'' and the fact that the H-2 worker would be
unable to work during this grace period absent any pending H-2 petition
filed on their behalf should mitigate the risk that some workers would
try to use this grace period for unlawful purposes. Again, while DHS
cannot completely eliminate all risk that an H-2 worker who might not
be deserving would still benefit from the new grace period, DHS
maintains that such a situation would likely be rare and that the
importance of protecting H-2 workers overall substantially outweighs
the risk. 88 FR 65040, 65065 (Sept. 20, 2023).
Comment: Several commenters urged DHS to revise the length of the
proposed grace period at 8 CFR 214.2(h)(13)(i)(C) to 30 days. A
commenter stated that while 60 days is consistent with other
nonimmigrant classifications, the H-2 programs are unique which
warrants some differences, noting that H-2 programs impose substantial
costs on employers compared to other nonimmigrant classifications. The
commenter said a 30-day grace period for cessation of employment would
reduce the likelihood of worker departure for ``arbitrary or
transient'' reasons while accommodating workers who are in an unsafe or
abusive employment relationship. The commenter also said a 30-day grace
period for cessation would be congruent to the 30 days afforded to
workers at the expiration of the petition validity, noting that it
makes little sense for workers who successfully complete a period of
employment to only have a 30-day grace period while affording workers
terminated for cause an extra month. Lastly, the commenter said the
unique low and unskilled nature of many H-2 occupations better lends
itself to a shorter grace period as employers in labor-intensive
industries are more likely than ``white collar'' employers to fill job
positions quickly, whereas a 60-day grace period may be more
appropriate for highly skilled visa classifications (for example, E-1,
E-2, E-3, H-1B, L-1, O-1, and TN) that typically command higher pay and
benefits, are subject to less frequent turnover, and are not associated
with extensive employer cost obligations.
A couple of business associations similarly stated that the
creation of a new separate 60-day grace period adds unnecessary
complexity and confusion regarding a beneficiary's legal status and
work authorization. The commenters recommended a standard 30-day grace
period applicable in all situations for ensuring uniformity and
simplicity in understanding and complying with the requirements.
Response: DHS declines to shorten the length of the proposed grace
period at 8 CFR 214.2(h)(13)(i)(C) to 30 days. Thirty days likely would
not allow sufficient time for a worker to respond to sudden or
unexpected changes related to their employment, such as by searching
for possible new employment or, if necessary, planning their departure
from the United States. A longer period of up to 60 days would better
allow affected H-2 workers to seek and secure new H-2 employment,
assess any potential violations of their rights and explore legal
actions, if necessary, and/or organize their departure from the United
States. While DHS agrees that the H-2 program is unique in the sense
that these programs impose some cost obligations (such as certain
housing and subsistence costs) that not all employers in other
nonimmigrant programs are responsible for, DHS does not agree that
these differences warrant a shortening of the grace period to 30 days.
Instead, because H-2 workers are a particularly vulnerable population,
a 30-day grace period likely would not be sufficient for affected
workers to respond to sudden or unexpected changes related to their
employment. As other commenters have noted, H-2 guest workers are
uniquely vulnerable given that they are temporary workers, rely on
their employers for basic needs, often have a language barrier, and may
live in isolated environments where their access to information and
resources is limited, among other factors.
DHS acknowledges that this means an H-2 worker who successfully
completes a period of employment will only have a 30-day grace period,
while H-2 workers who cease employment before the end of their validity
period will have a longer grace period by up to another month. However,
this is reasonable as workers who cease employment before the end of
their validity period may have such cessation of employment occur
unexpectedly and thus would need more time to plan their next steps.
Workers who successfully complete their period of employment would know
the end date of their employment in advance and would have had more
time to plan for their next steps.
[[Page 103267]]
g. 60-Day Grace Period Following Revocation of Approved H-2 Petition
Comment: Multiple commenters, including several trade associations,
a joint submission, and a professional association, specifically
supported the proposal to provide a new 60-day grace period following
the revocation of an approved H-2 petition, with most citing a similar
rationale as above relating to cessation of employment. Several of
these commenters said that this grace period would provide protection
and stability in circumstances beyond the petitioner's or worker's
control. An advocacy group said H-2 workers do not control the petition
or their employers' conduct and cannot prevent laws or violations that
might lead to a revocation. For example, the commenter stated that both
current and proposed rules call for petition revocation in the event of
a determination that an H-2 petitioner or its agent has charged a
recruitment fee or other prohibited fee. While supporting these
consequences, the commenter said that H-2 workers who lose their jobs
because of this would bear the brunt of their employer's violation. The
commenter concluded that the proposed grace period would lessen the
undue harm that a revoked H-2 petition causes workers.
A professional association agreed with proposed provision 8 CFR
214.2(h)(11)(iv) allowing H-2 beneficiaries to remain in lawful status
for 60 days or the end of their H-2B petition, whichever is shorter.
Response: DHS agrees that this new grace period will lessen some of
the harm to an H-2 worker who loses their job and H-2 status caused by
a revoked H-2 petition.
h. Work Authorization During the 60-Day Grace Periods
Comment: Multiple commenters urged DHS to provide work
authorization during the 60-day grace period, stating that not doing so
would limit workers' ability to take advantage of the grace period and
the flexibility this measure seeks to create. Specifically, several
advocacy groups recommended that DHS automatically issue interim work
authorization to H-2 workers. These commenters noted the financial
situations of most H-2 workers, such as often living paycheck to
paycheck, frequently arriving at their United States worksites already
deeply indebted, and not having the savings to support the time needed
to identify, apply to, and travel to new H-2 job opportunities. One of
these commenters detailed a suggested process through which H-2 workers
who experience an early cessation of employment for any reason during
an H-2 contract period, and who seek interim employment authorization,
could directly notify DHS of this cessation of employment and receive a
receipt at an address they would specify in their notice. Then, DHS
could issue guidance (as it currently does for H-2A employers who are
eligible to take advantage of the limited portability provisions) to
potential employers of H-2 workers during the grace period stating that
the employee's unexpired Form I-94 indicating their H-2 status,
combined with the receipt of notification of early cessation of
employment, would constitute sufficient proof the worker's employment
authorization. DHS would then instruct employers to make any notation
necessary on the I-9 to convey the limited 60-day period. The commenter
said this process would be consistent with INA sec. 214(c)(1), as well
as with DHS's broad authority to define the time periods and conditions
of any nonimmigrant's admission to the United States under section
214(a)(1) of the INA. Another advocacy group supported this commenter's
proposal. A couple of advocacy groups also stated that to the extent
DHS has continued doubts about the appropriateness of providing interim
employment authorization to all H-2 workers who experience an
unexpected cessation of employment before the end of the contract
period, DHS should at a minimum provide interim work authorization to
workers who lose their employment due to the revocation of their
employer's petition by no fault of the worker, as well as workers who
are involved in an ongoing labor dispute with the H-2 employer that is
the subject of an investigation by DOL or another relevant agency.
Response: As proposed and now finalized, none of the grace periods
would independently authorize the beneficiary to work. As stated in the
NPRM at 65065-65066, to the extent that such work authorization is
permissible, there are also operational challenges and costs associated
with providing work authorization documentation to H-2 workers who have
ceased employment. While commenters provided suggestions that could
have alleviated some operational challenges, other operational
challenges would have remained. For example, setting up a process for
beneficiaries to directly notify DHS of a cessation of employment and
receive a receipt at an address would still require the agency to set
up a new notification process for beneficiaries and mail out a physical
receipt notice, all of which takes time and resources which the agency
would not recover without imposing a new fee.
DHS acknowledges that not providing work authorization upon
cessation of employment makes it difficult for affected H-2 workers to
support themselves, thus potentially limiting their ability, as a
practical matter, to leave their current employment. DHS notes,
however, that the new portability provisions may offer help to affected
H-2 workers who wish to begin employment sooner if they find a new
petitioning employer. In addition, as previously noted, other forms of
relief such as deferred action may be possible depending on the
circumstances.
Providing employment authorization to only some, but not all, H-2
workers also would not be feasible. As discussed above, it would not be
operationally feasible for USCIS to ``adjudicate'' a grace period
within the context of the H-2 petition process. Similarly, it is not
operationally feasible for USCIS, using current processes, to determine
who would be eligible for interim employment authorization within the
limited timeframe of such a grace period; there is no current mechanism
in which DHS could provide interim work authorization, or issue such
proof of employment authorization, for only some H-2 workers, such as
those whose employment was terminated ``by no fault of their own.'' In
addition, as noted in the NPRM, DHS determined that the creation of 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. 88 FR 65040, 65066
(Sept. 20, 2023). Finally, while DHS acknowledges the commenters'
legitimate concern, the Department notes that not allowing for interim
work authorization during the grace period is consistent with
longstanding policy.\94\
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\94\ See, e.g., ``Modernizing H-2 Program Requirements,
Oversight, and Worker Protections,'' 88 FR 65040, 65065-65066 (Sept.
20, 2023) (``It has long been the policy of DHS that grace periods
do not authorize employment.''); ``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.'').
---------------------------------------------------------------------------
i. Requests To Extend the 60-Day Grace Periods
Comment: A couple of advocacy groups said DHS should allow at least
[[Page 103268]]
a 90-day grace period for all H-2 workers who experience an unexpected
end to their employment, with injured workers granted extensions beyond
the initial 90-day period. An advocacy group expounded that H-2 workers
need a longer grace period because of the acuteness and prevalence of
abusive labor practices in the H-2 programs; their isolated living and
working conditions; and their typically lower levels of income,
education, and web access. In addition, the commenter said DHS should
also provide for situations in which workers may need to remain in the
United States for a longer period due to work-related injury or
illness. The commenter stated that H-2 workers often are unable to take
advantage of their workers' compensation benefits because they are
forced to return to their home countries after a workplace injury or
illness by retaliatory employers. The commenter noted that 60 days is
insufficient for most workers to receive necessary treatment through
workers' compensation because medical treatment and associated
interactions can be time-consuming. Further, injured workers are
unlikely to find new H-2 employment during a 60-day grace period, and
therefore will be faced with the unfortunate choice between overstaying
or returning home to forfeit medical care and benefits. The commenter
suggested that DHS clarify that grace periods and the post-contract
admission period may be extended for workers who need to remain in the
United States to receive medical treatment related to an injury or
illness covered by a workers' compensation claim. Relatedly, the
commenter said DHS should also provide for a straightforward parole
process for injured workers who have already departed the United States
but need to return to seek medical care.
A couple of commenters, including an advocacy group and a research
organization, recommended a 120-day grace period following loss of
employment. One of these commenters provided similar rationale as
above, stating that a 60-day grace period would often be too short for
workers to seek care or find new employment, particularly given the
geographic, social, and cultural isolation of H-2A workers. A research
organization stated that, while it had previously urged that DHS should
at least grant H-2 workers the same in-petition 60-day grace period as
is granted to H-1B workers, given the ``bureaucratic realities of the
H-2 programs,'' 60 days is insufficiently short. The commenter cited
data indicating that the median U.S. worker took almost exactly 60 days
to find a new job, but those workers could accept any job, not just
seasonal jobs from employers willing to undergo the H-2 process.
Additionally, the commenter said the H-1B petition DOL process takes
only a week, while H-2 DOL processes take much longer. Citing data, the
commenter stated that, assuming that an H-2B worker finds a new
employer that is not already participating in the H-2B process, it will
take over 100 days to complete the steps to join the program. Even in
the case of the H-2A process, which takes about a month, the commenter
said this month should be added to the median of 60 days it takes to
find a new job to begin with.
Response: DHS declines to extend the grace period beyond 60 days.
While commenters expressed legitimate concerns about why 60 days may
not be sufficient (including TLC delays), DHS must balance these
concerns with other concerns about potential abuse of the grace period
if it were extended beyond 60 days. Also, the longer the grace period,
the more concerns DHS would have with beneficiaries engaging in
unlawful employment during the grace period.
DHS also declines to provide a longer grace period for only certain
beneficiaries such as those who experienced an ``unexpected'' end to
their employment or suffered a work-related injury or illness. As noted
above, it would not be operationally feasible for USCIS to
``adjudicate'' a grace period within the context of the H-2 petition
process using the current processes and mechanisms, or in a context
separate from the H-2 petition process. Absent an adjudication, USCIS
would not be able to provide a longer grace period only to certain H-2
beneficiaries. DHS again highlights that H-2 workers involved in labor
disputes may request DHS to exercise prosecutorial discretion,\95\
which may offer some relief for certain workers who were terminated for
an unlawful reason or suffered a work-related injury or illness. Other
avenues of relief, such as requesting a change of status to visitor
status (B-2), may also be available to H-2 workers who need to receive
medical treatment related to a workplace injury or illness.
---------------------------------------------------------------------------
\95\ USCIS, ``DHS Support of the Enforcement of Labor and
Employment Laws,'' https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/dhs-support-of-the-enforcement-of-labor-and-employment-laws (last updated Apr. 11,
2024).
---------------------------------------------------------------------------
j. Grace Period at the End of 3-Year Period of Stay
Comment: Multiple trade associations expressed concern that H-2
workers who continue three successive contracts (that is, workers whose
final contract within their 3-year authorization ends at the very end
of that authorization period) would be left with no time to prepare to
leave the country after their third contract expires. These commenters
stated that DHS should consider providing an additional minimum grace
period, such as 5 days, in those situations to ensure workers do not
inadvertently overstay due to waiting for the employer-scheduled
transportation or for delayed or canceled flights. The commenters said
adding a minimum grace period would benefit H-2 workers and allow them
to return to the United States without any unauthorized stay.
A research organization similarly stated that DHS should provide a
grace period of at least 10 days at the end of the 3-year period of
stay to avoid inadvertent periods where people lose status to give
people time to line up their transportation home. The commenter said
this would match the NPRM's proposed 10-day grace period to enter the
country.
Response: By regulation, an H-2 worker's maximum period of stay is
limited to 3 years. See 8 CFR 214.2(h)(5)(viii)(C); 8 CFR
214.2(h)(13)(iv)-(v). DHS did not propose to change the maximum period
of stay for H-2 workers and will not provide an additional grace period
beyond that 3-year limit in this final rule. Further, as new 8 CFR
214.2(h)(5)(viii)(B) and 8 CFR 214.2(h)(6)(vii) already provides a
post-validity grace period of up to 30 days, it is unclear why the
suggested additional 10-day grace period is necessary. It is the
petitioner's burden to be aware of when their H-2 workers' status will
end and arrange their return transportation accordingly.
k. Employer Obligations During Grace Periods
Comment: Several trade associations that were generally supportive
of the proposed grace periods requested that DHS consider and provide
clarity surrounding the obligations of parties during the grace
periods, specifically whether an H-2 employer is required to provide
housing and meals during those periods of time. These commenters
opposed requiring a petitioner to provide housing and meals for a
worker who is no longer employed, regardless of the circumstances of
the end of
[[Page 103269]]
employment. The commenters also noted the impact of and asked DHS to
clarify the situation when the worker quits mid-contract, and an
employer may need to seek an emergency labor certification to hire new
workers and have housing available for them. The commenters said DHS
should evaluate and plan for how a worker who ceases to be employed has
access to resources such as housing and food without placing those
obligations on an employer following the abandonment, termination,
revocation, or expiration of a petition period.
A research organization stated that DHS should clarify that all
employer obligations toward the worker end when the worker exercises
their rights to use the in-petition grace period, and DHS or the worker
or both should be required to notify the employer that they have
exercised the right to use the grace period. The commenter said
employers should not be forced to provide housing, pay, food, and other
benefits when a worker is no longer employed for them.
Response: H-2 employers must abide by applicable DOL regulations
concerning their obligations to provide housing, pay, food, and other
benefits when a worker's employment has terminated as described in DOL
regulations.\96\ DHS is not imposing any new obligations on an H-2
employer by virtue of providing these new grace periods or extending
existing ones.
---------------------------------------------------------------------------
\96\ See generally, 20 CFR 655.20(j)(ii), 20 CFR 655.122(h)(2).
---------------------------------------------------------------------------
Comment: Several advocacy groups suggested that, in addition to
granting H-2 workers work authorization during the grace period, DHS
should also ``clarify that otherwise eligible workers can qualify for
unemployment benefits during the grace period.''
Response: DHS declines to provide the requested clarification, as
DHS does not adjudicate or otherwise regulate eligibility for
unemployment benefits for H-2 nonimmigrants.
l. Restriction on Multiple Grace Periods During a Single Period of
Admission
Comment: A few commenters including advocacy groups said that DHS
should remove the restriction on multiple grace periods during a single
period of admission, which would leave at-risk workers with no grace
period in which they could leave a second abusive job. Specifically,
the commenters said DHS should clarify H-2 workers' access to a 60-day
(or 120-day) grace period in case of a second unforeseen cessation of
employment. Commenters said workers need access to multiple grace
periods during a single period of admission if they have multiple
employers due to the widespread nature of violations in H-2 industries,
which DHS itself acknowledges. The commenters said workers who have
previously changed employers would experience the same risks of labor
abuse that are endemic to the H-2 program as workers who have not
changed employers, and they should be able to access the same grace
period.
Response: DHS believes the commenters' concerns may be based on a
misunderstanding of the phrase ``once during each authorized period of
admission,'' as used in the NPRM and retained in this final rule at new
8 CFR 214.2(h)(13)(i)(C). DHS appreciates the opportunity to clarify
this point.
As noted in the NPRM, the phrase ``authorized period of admission''
refers to the time period noted on a worker's I-94, which will normally
have an end date 30 days after the end of the corresponding petition's
validity period to account for the 30-day grace period at 8 CFR
214.2(h)(5)(viii)(B) or 8 CFR 214.2(h)(6)(vii). In the scenario
described by the commenters, in which a worker is the beneficiary
granted an extension of stay based on a petition by a new employer, the
worker will have been granted a new ``authorized period of admission''
(and therefore, a new I-94) based on the approval of the new employer's
petition.\97\ Notably, 8 CFR 214.2(h)(13)(i)(C) allows a 60-day grace
period for a cessation of employment ``once during each authorized
period of admission'' (emphasis added). Accordingly, notwithstanding a
worker's prior use of the 60-day grace period for cessation of
employment in connection with a prior petition, such a worker would not
be considered 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 a cessation of
the new employment for 60 days or until the end of the new
authorization period, whichever is shorter.
---------------------------------------------------------------------------
\97\ When a Form I-129 petition with a request for extension is
approved, the Form I-797 approval notice includes a Form I-94. The
approval notice instructs the petitioner that the lower portion of
the notice, including the Form I-94, should be provided to the
beneficiary(ies).
---------------------------------------------------------------------------
2. Transportation Costs for Revoked H-2 Petitions
Comment: A few commenters expressed support for the proposed
provision requiring H-2A employers to pay for the beneficiary's
reasonable costs of return transportation in the event of petition
revocation. A professional association elaborated that this provision
is consistent with other nonimmigrant visa categories, including H-1B,
O, and P, and that it ensures the worker has the means to return to
their home country upon separation from employment. Another
professional association remarked that this requirement would create
uniformity between H-2A and H-2B and is fair and efficient. Conversely,
a professional association and a trade association stated that the
proposed provision is redundant with other existing regulations that
are already in place.
A trade association and a few other commenters commented that they
have no concerns regarding the proposed provision. A joint submission
remarked that they have no objections to the proposed provision since
the Department is making a conforming change and is not changing the
underlying substantive requirements. The joint submission further
commented that the proposed provision does not alter existing program
obligations under applicable DOL regulations.
Response: DHS appreciates the support and confirmation that these
revisions do not represent a change in an employer's obligation and
conform with other nonimmigrant classifications. DHS is not making any
additional revisions based on these comments.
3. Portability and Extension of Stay Petitions
a. Positive Impacts on Employers, Workers, Program Operability, and the
Economy
Comment: A professional association stated that the proposed
portability provisions were ``sound'' from both employers' and H-2B
workers' perspectives. While expressing support for the proposal to
allow workers to begin employment upon the filing of a nonfrivolous
petition, a trade association stated that the proposal would provide
employers with the ability to employ workers in a timely manner, and
provide beneficiaries with expanded job opportunities. A joint
submission and a trade association also expressed support for the
portability provisions, reasoning that permitting workers to begin
employment in the same classification upon receipt of the non-frivolous
petition would help avoid gaps in employment and potential hardships to
workers, and allow workers to capitalize on their presence in the
United States to earn income rather than waiting for a petition to be
finalized. The commenters also stated that the provisions would benefit
employers because employers seeking to
[[Page 103270]]
employ transferred workers would have access to workers, and have
already demonstrated that they have a temporary need for labor or
services. Similarly, a trade association expressed support for the
portability provisions, reasoning that current timelines frustrate both
workers seeking employment and employers who need workers, but that the
proposed provisions would allow workers to immediately help employers
that are in need of assistance. A professional association expressed
support for making permanent the portability provisions that were in
place during the COVID-19 pandemic, reasoning it would allow employers
to fully staff their workforce when the petition was valid rather than
having the workers remain idle until petitions were approved.
A joint submission added that the provisions would positively
impact the U.S. economy since workers pay taxes and purchase goods and
services, which would be lost if workers faced employment gaps. An
advocacy group expressed support for the portability provisions,
reasoning it would give workers the flexibility they desire while
benefiting U.S. regions with varied agriculture profiles.
A couple of advocacy groups expressed support for the proposed
portability provisions on the grounds that they would curtail the
coercive power employers have over H-2 workers. Discussing abuse faced
by H-2 workers, the commenters said that some H-2 employers leverage a
loss of status to coerce workers into continued employment, creating a
power imbalance that allows forced labor and trafficking to proliferate
in the H-2 programs. The commenter stated that permanent portability
would help address trafficking, violations, and other abuses in the H-2
program. Similarly, a union and an advocacy group expressing support
for the proposal stated that visa status is at the center of the power
imbalance between employers and workers that enables exploitation
within the H-2 program, and the portability provisions would help
restore a balanced relationship between workers and employers. A group
of Federal elected officials stated that workers' dependency on their
employers to live and work in the United States creates a ``well-
founded fear of retaliation'' that prevents workers from speaking out
against abuse and advocating for better working conditions. The
commenter stated that under DHS's current rules, it is ``extremely''
challenging for workers to change employers, even when the employers
break the law, which the proposed rule would ameliorate. A joint
submission also stated that existing procedures fail to allow H-2
workers to pursue alternative employment free from employer control and
retaliation.
A research organization expressed support for the portability
provisions, reasoning that the ability to change employers was a basic
freedom, that it was important for human and labor rights, and that it
would empower workers. A couple of advocacy groups and a joint
submission also expressed support for the proposal, reasoning that
workers who face abusive conditions or are unjustly fired would have a
greater chance of finding alternative employment. A religious
organization stated the proposed provisions would provide stronger
protections for workers to switch employers. A union expressed support
for the portability provisions' goal to empower and prevent hardships
to workers.
A trade association expressed support for the portability
provisions, reasoning it would establish a consistent policy between H-
2A and H-2B program regulations and help remove confusion in the
complexity of the regulations governing the H-2 programs. A trade
association expressed support for the portability provisions, reasoning
it would establish a consistent policy between H-2A and H-2B program
regulations and help remove confusion in the complexity of the
regulations governing the H-2 programs.
Response: DHS agrees with the commenters about the intended
benefits of portability, including empowering H-2 workers and providing
H-2 employers with the ability to employ workers in a timely manner.
b. Negative Impacts on Employers and Program Operability
Comment: A few trade associations expressed support for the
flexibility that the changes to the proposed extension of stay petition
and E-Verify requirements created, but said that the language of the
proposal was too broad when coupled with the other sections in the
rule, such as the section on grace periods. The commenters expressed
concern that workers would be encouraged to violate the terms of their
contracts with employers. The commenters also discussed the
``significant'' financial investments employers make prior to hiring H-
2 workers. A trade association added that in exchange for these
investments, employers require a level of certainty that workers are to
remain employed with them for the life of their contract. This
commenter and another trade association said that the proposed rule
could cause economic harm to employers by allowing workers to abandon
their employers and leave them in situations where they do not have
enough workers to perform their harvest. A few trade associations
recommended that in instances where a worker voluntarily abandons their
job for reasons not related to a hazardous work environment, there
should be consequences for workers who violate their contracts. A trade
association recommended that DHS require that workers attempt to
resolve workplace claims and concerns with employers before quitting a
contract, and that it only provide workers the ability to port to a new
contract when either the contract had been revoked, the employer is
found to have violated the contract, the worker provides evidence of a
hazardous workplace, or the worker completes their previous contract. A
couple of trade associations also suggested that the Department could
consider a requirement that a worker report to the Department that they
are voluntarily abandoning employment as a mechanism to ensure the
worker also meets their contractual obligations. The trade associations
added that such a notification would serve as a consequence for a
worker who violates their contract, and assist in tracking grace period
timelines and lawful presence.
Similarly, a trade association added that while employees may
voluntarily abandon employment for a variety of reasons, allowing
workers to leave their primary employer for economic or social reasons
would be detrimental to the program. The commenter urged the Department
to develop ``more rigid'' language surrounding the conditions under
which an employee may exercise the portability provisions in cases of
voluntary abandonment. The commenter also suggested the Department
develop a ``review and qualifications system using a series of
escalation and opportunities for corrective actions'' to be enacted
prior to permitting an employee to voluntarily abandon their primary
employer. The commenter added that this system should be open to public
comment prior to the Department moving forward with the portability
provisions.
An attorney expressed opposition to the portability provisions,
reasoning that the provisions would set up a bidding war to employ
workers, where the initial employer is subject to ``poaching'' attempts
by other employers who are able to pay higher wages and did not incur
travel costs for the employee.
[[Page 103271]]
Response: DHS will not make changes to the portability provision.
While DHS appreciates the commenters' concerns regarding the negative
impacts on an employer when an H-2 employee ports to another employer,
DHS does not agree that these concerns justify requiring an H-2 worker
to stay with that employer for the life of their contract or imposing
other limitations on an H-2 worker's ability to change employers. Nor
does DHS agree that these concerns justify requiring workers to report
to DHS when they leave employment as a mechanism to ensure that workers
meet contractual obligations. As other commenters have noted, worker
mobility is important to improving the ability of workers to leave an
abusive employer without fearing retaliation. Worker portability helps
to correct the power imbalance that has led to abusive employment
practices within the H-2 programs as a result of a petitioning
employer's control over the employee's legal status.
Implementing a ``review and qualifications system using a series of
escalation and opportunities for corrective actions'' or another
similar process prior to permitting an employee to port, as suggested
by commenters, would be counter to the central aims of the portability
policy. Such a mechanism would potentially require a lengthy, fact-
intensive adjudication that would delay an H-2 worker from leaving an
abusive or hazardous employment situation, undermining the benefit of
the portability provision in the first place.
DHS declines to exclude from portability H-2 workers who
voluntarily left their petitioning employer for economic or social
reasons, as suggested by another commenter. Portability provides
benefits even for workers not in an abusive employment situation. As
other commenters have noted, the ability for H-2 workers to change
workers for economic reasons may incentivize employers to offer better
wages and working conditions in order to retain their H-2 workers,
which in turn would raise labor standards for these workers as well as
U.S. workers. Portability also benefits employers that have already
demonstrated that they have a temporary need for workers to hire H-2
workers more quickly and avoid gaps in employment. 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. 88 FR 65040, 65068 (Sept. 20,
2023). Although portability could create instability or increase costs
for some employers that lose or risk losing H-2 workers porting to
another employer, this is not unlike the situation that any employer in
the labor market may face or situations when an employer files an H-2
petition for another employer's workers in the same classification, but
just has to wait until the petition is approved before such workers can
start working. Further, some of these costs may be offset by the
benefits and savings to employers of being able to have replacement
workers start work more quickly to avoid loss of income due to lack of
workers, and potentially averting some cap-related issues in the H-2B
program.
c. Mixed Comments on Portability Provision
Comment: While suggesting an ``at-will'' visa that allows employees
to move between employers without contractual commitments, an
association of State Governments stated that the portability provisions
in the proposed rule aim to create a similar dynamic. As such, the
commenter expressed support for the portability provisions. The
commenter reasoned that if the portability allowance permitted
employees to immediately begin new employment, the changes to
portability would allow employers to fill labor gaps, which is the
purpose of an employer petitioning to receive H-2 employees in the
first place. The commenter stated that this would impact the overall
success of the program. However, they also noted that it could create
instability and uncertainty for some employers, and expressed concern
that the ability for employees to leave in the middle of a harvest
could result in losses for employers. The commenter requested clarity
on the ``immediate'' effectiveness of portability without consideration
for the approval of the petition, except in cases of ``blatant misuse
or the program or abuse of an agricultural employee by the
petitioner.''
Response: Under new 8 CFR 214.2(h)(2)(i)(I), an eligible H-2
nonimmigrant on whose behalf a nonfrivolous H-2A or H-2B petition is
filed requesting the same classification that the nonimmigrant
noncitizen currently holds is authorized to start new employment upon
the proper filing of the petition, or as of the requested start date,
whichever is later. The eligible H-2 nonimmigrant does not need to wait
until the approval of the portability petition to start working, and
the H-2 nonimmigrant is authorized to work pursuant to the portability
petition until the adjudication or withdrawal of such petition. During
the pendency of the petition, the H-2 nonimmigrant 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 portability petition, even if such petition
is subsequently denied or withdrawn.
A portability petition must be properly filed and non-frivolous.
While these standards are intended to prevent a petitioner that is
misusing the program or abusing their workers from taking advantage of
portability provisions, DHS recognizes that these determinations will
not be made until USCIS has adjudicated the petition, meaning that an
H-2 worker may have worked under the portability petition even if it is
ultimately denied as frivolous. However, other provisions being
finalized in this rule, such as the strengthened site visit provisions
and the new mandatory or discretionary denial provisions, are intended
to address the concern of ``blatant misuse or the program or abuse of
an agricultural employee by the petitioner'' including the types of
potential abuses noted by the commenters.
d. Portability and the H-2B Cap
Comment: A professional association said that the portability
provisions would provide employers with ``significant cap relief,''
reasoning that an H-2B worker could ``seek employment, remain longer,
and not count towards'' toward the H-2B statutory cap. The commenter
added this was a ``win-win'' for employers and employees. Similarly, a
couple of trade associations and advocacy groups stated that the
portability provisions appeared to be helpful in providing cap relief
to a ``vastly oversubscribed'' H-2B program, but expressed concern that
an employer could be left without a workforce if an employee moves to
another employer that is ``capped out.''
Response: Under current practice, which DHS will not change in this
final rule, workers in the United States in H-2B status who extend
their stay, change employers, or change the terms and conditions of
employment generally will not be subject to the cap.\98\ Similarly, H-
2B workers who have previously been counted against the cap in the same
fiscal year that the proposed employment begins generally will not be
subject to the cap if the employer names them on the petition and
[[Page 103272]]
indicates that they have already been counted.\99\ It is therefore not
clear what the commenter's concern is regarding an employer that
``could be left without a workforce if an employee moves to another
employer that is `capped out''' because in that scenario, a petition
filed by a porting employer seeking an extension of stay for a worker
already in the United States in H-2B status generally would not be
subject to the cap.
---------------------------------------------------------------------------
\98\ USCIS, ``Cap Count for H-2B Nonimmigrants,'' https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/cap-count-for-h-2b-nonimmigrants (last
updated Mar. 8, 2024).
\99\ Id.
---------------------------------------------------------------------------
Comment: An advocacy group and a couple of unions stated that the
Department must ensure H-2B petitions filed on behalf of transferring
employees are subject to the statutory cap, reasoning that portability
must not be implemented in a way that allows employers to work around
the statutory H-2B cap. The commenters added that if the cap on
petitions was already reached in a given fiscal year, the Department
could count the positions against the cap in the following fiscal year.
A union said that DHS could also deny petitioners if the cap had
already been reached. Alternatively, another union suggested employers
be instructed to only offer H-2B positions to transferring workers when
there are still available positions under the current year's cap. The
union further stated that regulatory flexibilities have been used to
bypass the statutory cap in the past without increased accountability.
Citing the INA's annual cap, the commenter added that if the provisions
effectively created cap-exempt H-2B positions, it would result in a
violation of congressional intent.
Similarly, while expressing support for the portability provisions,
a research organization stated that they must not be implemented in a
way that enables employers to circumvent the H-2B program cap. The
commenter expressed concern that the NPRM did not consider the impact
of the portability provisions on the growth and size of the program and
that it did not put in place safeguards to ensure employers do not
circumvent the H-2B cap. The commenter said that because the proposed
portability provisions would allow employers to evade the statutory cap
limit, the ``true size'' of the H-2B program would increase to three
times the size of the total cap, which would be inconsistent with
congressional intent. The commenter stated that as a result, the
Department must subject workers who are continuing employment, either
by transferring employers or extending their employment with the same
employer, to the H-2B annual cap. The commenter concluded that the
simplest way to implement this requirement is to count an approved
continuing petition against the annual cap for the following fiscal
year. The advocacy group and a union added that keeping the program
closer to the size that Congress originally intended would incentivize
employers to improve pay and working opportunities, so employees do not
leave for better opportunities.
Response: This rulemaking does not make any changes to DHS's long-
standing method of counting the H-2B cap, and DHS will not make changes
to its cap counting methodology. DHS will continue its longstanding
practice of not counting against the statutory cap any petition seeking
to extend the stay of an H-2B worker in the United States in H-2B
status who has already been counted against the cap, which includes
portability petitions. This longstanding practice is codified at 8 CFR
214.2(h)(8)(ii)(A) (``Requests for petition extension or extension of
an alien's stay shall not be counted for the purpose of the numerical
limit'') and is also articulated on USCIS' ``Cap Count for H-2B
Nonimmigrants'' website.\100\
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\100\ USCIS, ``Cap Count for H-2B Nonimmigrants,'' https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/cap-count-for-h-2b-nonimmigrants (last
updated Mar. 8, 2024).
---------------------------------------------------------------------------
DHS does not agree with the commenters that its cap counting
methodology is inconsistent with congressional intent. Pursuant to INA
sec. 214(g)(1), ``[T]he total number of aliens who may be issued visas
or otherwise provided nonimmigrant status during any fiscal year . . .
under section 101(a)(15)(H)(ii)(b) of this Act may not exceed 66,000.''
An individual would be considered to have been ``otherwise provided''
H-2B nonimmigrant status upon admission into the United States without
a visa or through change of status to H-2B while already in the United
States. On the other hand, H-2B workers in the United States seeking an
extension of H-2B stay, whether or not with the same employer, will not
be counted against the cap because they have already been ``otherwise
provided'' such H-2B status, either at the time of their admission to
this country or in conjunction with their current H-2B grant of status.
Further, since the beneficiaries of a porting petition requesting an
extension of their H-2B stay are already in H-2B status, they are not
changing their status from another nonimmigrant classification. Thus,
H-2B workers seeking an extension of H-2B stay are not counted against
the cap consistent with INA sec. 214(g)(1).
These longstanding H-2B cap procedures have been codified at 8 CFR
214.2(h)(8)(ii) for over two decades.\101\ This methodology has also
been consistently and clearly documented in numerous reports that USCIS
has submitted to Congress.\102\ The commenters did not acknowledge
USCIS' longstanding cap counting methodology as codified in 8 CFR
214.2(h)(8)(ii) and, other than citing to INA sec. 214(g)(1)(B), did
not cite to anything else to support their assertions that USCIS' cap
counting methodology with respect to portability petitions and other
petitions for extensions of status is inconsistent with congressional
intent.
---------------------------------------------------------------------------
\101\ See, e.g., 8 CFR 214.2 version as of January 1, 2002,
https://www.govinfo.gov/content/pkg/CFR-2002-title8-vol1/xml/CFR-2002-title8-vol1-sec214-2.xml.
\102\ See, e.g., USCIS, ``H-2B Usage and Recommendations, Fiscal
Year 2016 Report to Congress'' (July 22, 2016), https://www.dhs.gov/sites/default/files/publications/U.S.%20Citizenship%20and%20Immigration%20Services%20-%20H-2B%20Usage%20and%20Recommendations.pdf; USCIS, ``Characteristics of
H-2B Nonagricultural Temporary Workers: Fiscal Year 2022 Report to
Congress Annual Submission'' (Feb. 14, 2023), https://www.uscis.gov/sites/default/files/document/data/USCIS_H2B_FY22_Characteristics_Report.pdf (``Generally, a worker
whose stay in H-2B status is extended will not be counted against
the H-2B cap.''); USCIS, ``USCIS Report to Congress'' (Mar. 20,
2006) https://www.uscis.gov/sites/default/files/document/data/h-2b-fy2005-petitions-report.pdf (``[A]liens who are currently in H-2B
status and who seek to extend their stay or seek concurrent
employment are not counted against the cap.''). See also CRS Report
R44306, ``The H-2B Visa and the Statutory Cap'' (July 13, 2022)
(providing a history of the H-2B annual numerical limitations,
including a history of special H-2B cap-related legislation
throughout the years).
---------------------------------------------------------------------------
Comment: Several commenters generally supported the permanent
portability provision but expressed concerns that an employer that paid
transportation and filing fees could be left paying those significant
costs and still be unable to find a replacement workforce. These
commenters asked whether subsequent employers could be made to
reimburse the costs paid by their previous employers.
Response: DHS will not adopt the suggestion to require a subsequent
porting employer to reimburse the preceding employer its transportation
and petition filing costs. Such a requirement could discourage the use
of portability, or even discourage situations that are allowed by long-
standing regulations, such as an H-2 nonimmigrant starting work for
another employer once USCIS approves a petition that has been filed on
their behalf. And while an H-2 employer that paid transportation and
filing fees risks losing those costs if the worker leaves, this is not
unlike the situation that any
[[Page 103273]]
employer in the labor market may face when a worker leaves and the
employer loses costs already paid to hire that worker (for example,
recruitment and training costs, relocation expenses, hiring bonuses).
e. Portability Within Same Classification
Comment: A joint submission, an advocacy group, and a trade
association expressed support for the Department's proposal to extend
portability to workers performing different jobs within the same
classification, rather than limiting employment to the initial
conditions of their authorization. Similarly, a professional
association and a trade association expressed support that portability
would be permanent and applied to new work in the same classification
with the same or different employer, reasoning it would not limit
workers' employment to the initial authorization, allowing the worker
to have successive petitions and perform other jobs. A trade
association and advocacy group reasoned that requiring beneficiaries to
only work in the ``exact same job'' that they were initially approved
for would be restrictive and undermine the provisions' goals.
Response: DHS appreciates these commenters' support for allowing H-
2 workers to port to different jobs within the same classification.
Comment: An advocacy group suggested that the Department allow H-2
workers to switch between H-2A and H-2B program categories. The
commenter noted that although transferring from H-2A status to H-2B
status would cause administrative hurdles as the status change would
require adherence to the H-2B cap, the commenter reasoned it would
significantly improve H-2A worker mobility by allowing them to accept
seasonal non-agriculture positions.
Response: While portability is intended to improve worker mobility,
DHS will not adopt the suggestion to allow portability for H-2 workers
to ``switch between H-2A and H-2B program categories'' and start
working merely upon the filing of a portability petition. As proposed,
new 8 CFR 214.2(h)(2)(i)(I) specifies that portability, or the ability
to work while a petition remains pending, will only apply to new
employment (with the same or different employer) in ``the same
classification that the nonimmigrant alien currently holds.''
There is an important distinction between a change of status and an
extension of stay. A worker in H-2A nonimmigrant status seeking to
change to an H-2B employer (for example) would need to change their
status, not merely extend their stay. Unlike extensions of stay that
fall under DHS regulations at 8 CFR 214.1, changes of status are
governed by INA sec. 248, 8 U.S.C. 1258, which, unlike 8 CFR 214.1,
specifically authorizes a nonimmigrant to change to any other
nonimmigrant classification only if they are ``continuing to maintain
that status.'' It is not clear how a nonimmigrant worker seeking to
change to another nonimmigrant classification will continue to maintain
their current status as required by INA sec. 248 while their change of
status petition is pending if they have ported to new employment based
on the new petition requesting a different status. Further, porting
between H-2A and H-2B nonimmigrant classifications may raise issues
related to administration of the H-2B cap if an H-2A worker starts
working while the petition seeking to change to H-2B nonimmigrant
status, which is subject to numerical limitations under INA sec.
214(g)(1)(B) and (10), is accepted by USCIS and remains pending.
f. Employment Authorization While an Application for a Temporary Labor
Certification Is Pending
Comment: Discussing the Department's proposal to consider
beneficiaries who are employed in the United States while their
petition is pending to be in a period of authorized stay, a joint
submission stated that the proposal was necessary to maximize the
portability provision and for it to be implemented and function
properly. Similarly, a research organization expressed support for the
NPRM's proposal to permit an H-2 worker to be employed while their
petition is pending, reasoning that it would make it faster to change
employers and complement the grace period proposal. However, the
research organization suggested that USCIS should further authorize
employment while a labor certification application is pending with the
DOL. The commenter stated that given the high percentage of H-2 TLC
approvals, it was ``sensible'' to allow workers to be employed pending
the outcome of their ``initial application,'' adding that it would
decrease unlawful employment and make the portability provisions more
``workable.'' The commenter further suggested that the Department
exempt workers already in the United States from the labor
certification process. The commenter reasoned that because they are
already in the United States, they do not have to be ``imported'' and
thus should not be subject to the H-2 labor certification statute, and
that because they are transferring between employers, they do not
increase the total amount of labor market competition.
Response: DHS will not implement the suggestion to authorize
employment while a labor certification application is pending with the
DOL. Allowing portability to occur upon the filing of an application
with a TLC would present integrity and operational issues due to the
TLC being adjudicated by another agency. The mere filing of a TLC
application does not guarantee that the labor market test with respect
to the particular job in question has been satisfied nor does it ensure
that the TLC application is non-frivolous and that DOL will approve it.
In addition, allowing portability to occur upon the mere filing of an
application with a TLC could incentivize frivolous TLC applications.
DHS would not be able to determine if the TLC was frivolous, nor would
DHS be able to codify a standard for whether a TLC filing is frivolous
(or another similar requirement) through this rule, as such a
regulation would necessarily have to be done by DOL and would be beyond
the scope of this rule and DHS's expertise.
Allowing portability to occur upon the filing of an application
with a TLC would also present integrity issues due to the potential for
abuse or fraud inherent in allowing employment authorization without
proper documentation. Because the TLC does not specifically name a
worker, employers would face difficulties in satisfying the employment
verification requirements of section 274A of the Act. Also, the mere
filing of a TLC does not guarantee that the employer will actually file
an H-2 petition based on that TLC. Without a signed and filed petition
naming the porting worker accompanied by evidence of the certified TLC,
DHS would be unable to identify the porting worker and verify their
eligibility. Further, without a petition, DHS and DOL would not have
evidence of the petitioner's agreement to employ the porting worker
consistent with the requirements of the applicable H-2 program,
including the employer's agreement to comply with all the obligations
and assurances that serve to protect the porting worker (and U.S.
workers). Thus, allowing portability to occur upon the filing of an
application with a TLC could also undermine this rule's goal of
improving worker protections.
g. Removal of E-Verify Requirement From H-2A Portability
Comment: Several commenters, including trade associations, advocacy
groups, and a professional association, expressed support for removing
the E-
[[Page 103274]]
Verify requirement from H-2A portability. A couple of advocacy groups
reasoned that the E-Verify requirement had limited the number of H-2A
jobs that qualified for the flexibility offered through permanent
portability, with a few trade associations stating that its removal
would open up the use of transfer petitions within the H-2A program. A
joint submission stated that removing the E-Verify requirement from H-
2A portability would provide many benefits, including improving worker
flexibility and mobility, helping workers avoid gaps in employment and
potential hardship and putting their U.S. presence to productive use
rather than forcing them to sit on the sidelines unable to earn an
income while the petition is pending. The submission also stated that
this would benefit employers that have already demonstrated that they
have a temporary labor need for such workers' labor or services (that
is, by virtue of having an approved labor certification from DOL), and
would benefit the U.S. economy overall, as such workers are earning,
purchasing goods and services from local businesses, and paying taxes.
Response: DHS appreciates the commenters' support for the benefits
of expanding H-2A portability beyond E-Verify participating employers.
Comment: A couple of commenters expressed support for removing the
E-Verify requirement but expressed concern that the increased fee
schedule in another DHS rulemaking, ``USCIS Fee Schedule and Changes to
Certain Other Immigration Benefit Request Requirements,'' will
``chill'' the use of the proposal by increasing the cost of filing a
named petition. The commenters expressed opposition to the fee
increase, stating that it will hamper their ability to take advantage
of in-country transfers. Similarly, a trade association expressed
opposition to the fee increase, reasoning that the increased fee will
negate the benefits of removing the E-Verify requirement.
Response: On January 31, 2024, DHS published a final rule, U.S.
Citizenship and Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request Requirements, 88 FR 6194,
with an effective date of April 1, 2024. The final fee rule raised the
Form I-129 filing fee for H-2A named beneficiaries from $460 to $1090
(or $545 for small employers and nonprofits), and the Form I-129 filing
fee for H-2B named beneficiaries from $460 to $1080 (or $540 for small
employers and nonprofits).\103\ It also raised the Form I-129 filing
fee for H-2A unnamed beneficiaries from $460 to $530 (or $460 for small
employers and nonprofits), and from $460 to $580 for H-2B unnamed
beneficiaries (or $460 for small employers and nonprofits).\104\ To the
extent that the commenter is suggesting changes to the USCIS Fee Rule,
those comments are outside the scope of this rulemaking. In addition,
while H-2A and H-2B filers for named beneficiaries (excluding small
employers and nonprofits) will pay significantly higher petition filing
fees compared to H-2A and H-2B filers for unnamed beneficiaries, DHS is
not persuaded that the increased filing fees will significantly negate
the benefits of portability for employers. Employers will still benefit
from portability in the form of the ability to employ workers earlier
since portability petitions are for workers who are already in the
United States in H-2 status and will not need to wait for petition
approval and visa issuance. By obtaining H-2 workers faster, these
employers may avoid financial hardships due to lack of workers to
perform time-sensitive labor. Further, the porting employer will
benefit by not paying for inbound transportation for the H-2 worker,
since those costs will have already been paid by the preceding
employer. The commenters did not account for these benefits, nor did
they provide data to support the assertion that the increased filing
fees will negate these benefits.
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\103\ USCIS, ``Frequently Asked Questions on the USCIS Fee
Rule,'' https://www.uscis.gov/forms/filing-fees/frequently-asked-questions-on-the-uscis-fee-rule (last visited Apr. 11, 2024). These
amounts represent the Form I-129 filing fees and do not include the
additional asylum fee, if applicable.
\104\ Id. These amounts represent the Form I-129 filing fees and
do not include the additional asylum fee, if applicable.
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Comment: A research organization expressed opposition to DHS's
proposal to remove the requirement that H-2A workers can only port to
an employer who participates in good standing in E-Verify. The
commenter said that the Department's initial goal to incentivize E-
Verify's use and reduce unauthorized workers in the agricultural sector
was still important. The commenter instead suggested DHS extend the
requirement to all employers who petition for workers in the H-2
program, reasoning that E-Verify participation has ``negligible costs
and significant benefits to employers.'' The commenter added that E-
Verify reduces the risk employers would hire unauthorized workers and
provides them with a rebuttable presumption to section 274A of the INA
if they do. The commenter also said that E-Verify participation reduces
the likelihood that employers engage in misconduct, because employers
who misuse E-Verify are subject to ``significant'' criminal and civil
liability.
Similarly, a joint submission from former DHS senior officials
expressed opposition to the removal of the E-Verify requirement,
reasoning that the NPRM was missing a justification for its removal.
Referencing statistics associated with the ``speed and accuracy'' of
the E-Verify program, the commenters stated that E-Verify is a
``signature enforcement program'' that deters undocumented immigration
and serves as a ``key indicator'' that an employer is fairly dealing
with its employees. The commenters said that the NPRM does not justify
the proposal to remove the requirement and that it does not seek
alternatives because the use of E-Verify is contrary to the goals of
the Administration and is viewed as a barrier to legal immigration.
While stating that there has been an increase in the number of
noncitizens arriving at the U.S. border, the commenters expressed
concern that ``a tool with a proven track record of effectiveness'' was
being eliminated. The commenters added that the removal of the
requirements ``illustrates'' the Administration's ``contentment with
illegal employment'' in the United States, and concluded that the
provision was arbitrary and capricious and that it should be struck
from the final rule.
Response: DHS disagrees with the commenters. Permanently making
portability available to all H-2 employers is expected to increase
worker mobility and employer flexibility; it is not related to alleged
``contentment with illegal employment'' nor to the utility of E-Verify
as a general enforcement tool. As stated in the NPRM, DHS remains
committed to promoting the use of E-Verify to ensure a legal workforce.
88 FR 65040, 65067 (Sept. 20, 2023). 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 and the various measures enhancing
program integrity that are established in this rulemaking. For
instance, other provisions being finalized in this rule will improve
program integrity and deter harmful or illegal conduct by petitioners.
These provisions include the strengthened site visit authority
provisions at new 8 CFR 214.2(h)(5)(vi)(A) and 8 CFR 214.2(h)(6)(i)(F)
and the mandatory and discretionary denial provisions at new 8 CFR
214.2(h)(10). These new provisions are targeted to address a
petitioner's misbehavior within the H-2 programs, which a petitioner's
E-Verify status may
[[Page 103275]]
or may not reveal. As also noted in the NPRM, this provision is not
anticipated to reduce E-Verify enrollment. This is because other
incentives or even legal requirements exist for E-Verify participation
outside of the H-2 programs.
Regarding the suggestion to expand the E-Verify requirement to all
employers who petition for workers in the H-2 program (regardless of
whether such employers are requesting the benefit of portability), such
an expansion of the E-Verify program within the H-2 programs was not
proposed in the NPRM and is beyond the scope of this rule. It would
also be inconsistent with this rulemaking's goal of improving worker
mobility, particularly as H-2B employers have never before been
required to participate in E-Verify program in order to benefit from
portability.
For all of the above reasons, DHS declines to make any changes to
the proposed portability flexibility for the H-2A and H-2B programs
that is permanently implemented in this final rule.
h. Additional Suggestions Related to Portability Provisions
Comment: A few advocacy groups and a union generally supported the
portability provisions but noted that, while the portability and grace
period provisions represent an improvement over the current status quo,
they will not fully achieve their goals unless H-2 workers have better
ways of obtaining accurate or real-time information about other
available H-2 employment opportunities. These commenters suggested that
the Department implement additional measures to ensure that H-2 workers
are aware of existing employment opportunities. For example, the
commenters suggested DHS:
Work with DOL to improve the SeasonalJobs.dol.gov platform
so that this website would provide accurate, real-time information
about available job opportunities;
Facilitate communication between workers and employers
during the recruitment process, the pendency of the petition, and when
porting between jobs, either through the enhancement of Seasonal Jobs
or another platform, which would be an important step towards a just
recruitment model through which workers would be able to connect
directly with vetted, legitimate employers through a multilingual and
accessible government database of verified job offers;
Work with State workforce agencies' job services to H-2
workers seeking alternative employment;
Consider the idea of allowing additional flexibility to
match workers with other employers that are in need of staffing
support;
Create a process for H-2A workers in the United States to
notify USCIS that they are seeking employment. These workers could be
added to a database accessible by prospective H-2A employers for the
duration of the worker's visa validity and grace period (although the
list should not include any personal identifying information that may
be used to retaliate or discriminate against workers, such as name,
age, or gender). Such a process could also allow workers to rebut
fraudulent abscondment or termination reports filed by their employers;
Require employers who have not made job offers to domestic
or prospective H-2 workers outside of the country to offer employment
to an H-2 worker or prospective H-2 worker seeking new employment that
qualifies for the position.
Response: DHS will not implement these suggestions in this final
rule. While DHS appreciates the commenters' concerns about the need to
provide workers with information about available job opportunities in
order to improve the utility of the new portability provision, it is
beyond DHS's purview to match or otherwise facilitate recruitment
between an H-2 worker and a prospective H-2 employer. Working with DOL
to enhance its SeasonalJobs.dol.gov platform or working with State
workforce agencies is outside the scope of this DHS rule. However, DHS
may continue to consider some of these suggestions and other ways to
enhance worker mobility outside of the regulatory process.
Comment: Some commenters expressed concerns that true job
portability would not be fully realized without a mechanism for H-2
workers to obtain information about a portability petition filed on
their behalf. These commenters stated that, currently, an H-2
beneficiary's knowledge of their status depends entirely upon their
employer's representations, and that existing procedures leave an H-2
worker vulnerable to unscrupulous employers and labor contractors who
withhold or misrepresent petition status information. The commenters
further stated that current procedures increase the worker's risk of
labor exploitation, abuse, trafficking, blacklisting, or other forms of
employer retaliation. These commenters made various recommendations on
how DHS could improve the benefits of portability by improving an H-2
worker's access to status information. These commenters recommended
DHS:
Directly notify H-2 workers of their continued lawful
status and employment authorization status where an H-2 employer
represents that it has filed an I-129 petition identifying them as a
beneficiary;
Provide I-129 petition and other immigration information
to H-2 beneficiaries;
Establish mechanisms for H-2 workers to independently
confirm they are the beneficiaries of petitions and receive information
about their immigration process;
Communicate immigration status information through
WhatsApp;
Work with DOL to improve seasonal.jobs to provide H-2
workers with full and accurate information about the terms and
conditions of offered H-2 employment and any agents authorized to
recruit on behalf of the employer.
Response: DHS appreciates these comments. In the NPRM, DHS stated
that it was 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 as well as other suggestions regarding
ways to ensure adequate notification to beneficiaries of actions taken
with respect to petitions filed on their behalf. DHS is not making any
regulatory changes as a result of the request for preliminary input in
this final rule but will seriously consider the input provided by these
commenters as it continues to research and consider the feasibility,
benefits, and costs of various options separate and apart from this
final rule.
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
a. General Support
Comment: A couple of trade associations expressed support for
USCIS' elimination of the ``dual intent'' provision. Similarly, several
trade associations and an advocacy group expressed support for the
proposal to allow H-2 workers to have a ``dual intent'' of being both a
noncitizen and an immigrant for purposes of obtaining a Green Card. A
trade association expressed support for a ``clearly defined path'' for
H-2 workers with a ``dual intent'' of obtaining a Green Card.
Similarly, a business association expressed support for the provisions,
[[Page 103276]]
reasoning it would ``form the beginning of a `dual intent' regime.''
Numerous commenters, including advocacy groups, professional
associations, and a research organization, expressed support for the
proposed rule's clarification that H-2 workers may take steps to become
lawful permanent residents while maintaining lawful immigration status.
A farming entity regarded proposed 8 CFR 214.2(h)(16)(ii) as ``a
significant and much-needed improvement to the current regulations
governing H-2A workers'' that recognizes the dynamic nature of
immigration intents, aligns with broader policy goals, and promotes
both flexibility and fairness in the H-2A program.
Other commenters expressed support for the proposed changes to H-2
workers' ability to seek lawful permanent resident status on the basis
that it would be beneficial for employers and H-2 workers. A trade
association said that the proposed change would benefit workers who
have followed H-2 program requirements and employers who want to offer
promotions to those workers. A farming entity wrote that the proposed
changes would provide a mechanism for improved stability in struggling
rural communities and farms, which face challenges in securing full-
time employees and working within the immigration system. Similarly, a
trade association said that due to domestic labor shortages, employers'
options for permanent agricultural employees are limited. The commenter
stated that the proposed rule's clarification would allow employers to
promote workers into permanent positions and expand opportunities for
worker mobility. Similarly, a union said the changes would increase
worker mobility and thus decrease the vulnerabilities faced by H-2
workers. A professional association stated that the proposed changes
would allow for more worker flexibility and would help them obtain
permanent residence. The commenter stated that while DHS would
scrutinize the conversion of the employer's job position from a
seasonal need to a permanent need, this conversion would assist
employers and workers with ongoing labor needs and stability. Another
trade association said the proposed change would allow employers to
sponsor employees who have an interest in moving to the United States
year-round roles in their business.
A group of Federal elected officials said that the proposed rule
would empower H-2 workers to seek permanent residence without fear that
they would lose their H-2 program status while they do so. Similarly, a
couple of trade associations expressed support that H-2 beneficiaries
who seek lawful permanent resident status through a petition related to
the permanent labor certification program would not jeopardize their
eligibility in the H-2 program in the interim. While expressing support
for amending 8 CFR 214.2(h)(16)(ii) to incorporate elements of ``dual
intent,'' a professional association said that the proposal reflected
the reality that agricultural and nonagricultural employment could be
temporary and permanent and that the employer's need should not be
``imputed'' on a worker's intention regarding employment or future
permanent status. The commenter stated that because existing
regulations allow approval of a permanent labor certification or filing
an H-2 petition to be used as a reason to deny a worker's extension of
stay, the process deters employers and employees from taking steps
toward permanent residence due to fear that future H-2 status could be
denied based on the worker's intent. The commenter added that the
proposal does not undermine the integrity of the H-2 program because
the requirement that employers demonstrate a temporary or seasonal need
remains covered by 8 CFR 214.2(h)(5)(iv) and 8 CFR 214.2(h)(6)(ii),
respectively.
A few commenters, including a farming entity, an attorney, and an
individual commenter, expressed support for the proposed provision
based on the necessary contributions of H-2 workers to U.S. businesses
and the economy. For example, the individual commenter and the attorney
said that under current regulations, workers who support U.S.
businesses and the U.S. economy are dissuaded from pursuing lawful
permanent residence due to the risk of losing eligibility for H-2
status once the permanent labor certification is certified. A couple of
commenters added that the potential loss of nonimmigrant status leaves
workers with the ``impossible'' choice between pursuing the long-term
goal of U.S. lawful permanent residence and sustaining the immediate
need for seasonal income. Such concerns, the commenters concluded,
drive potential full-time employees to Canada, harming U.S. businesses
that rely on H-2 workers. An attorney and farming entity additionally
reasoned that both nonimmigrants and businesses rely on the maintenance
of seasonal positions, adding that workers fully intend to abide by the
temporary nature of their placement while they wait ``in line'' to
pursue permanent residence through the employment-based (EB)-3 category
and other worker categories. The farming entity wrote that the proposed
provisions would enhance the ability of workers to contribute to the
United States while respecting the integrity of the immigration system
and would address the ``overly restrictive'' nature of regulations that
penalize workers for pursuing a more stable future in the United
States. Echoing the above remarks, an individual commenter also
expressed support for Section IV.B.4. of the proposed rule (``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'') and urged DHS to maintain the
proposed language in the final rule.
Response: DHS thanks these commenters and will finalize 8 CFR
214.2(h)(16)(ii) as proposed. As DHS explains further below, the
proposal and the finalized regulation do not change the requirements
that the H-2 petitioner's need be temporary or seasonal in nature, that
an H-2 beneficiary has a foreign residence that he/she has no intention
of abandoning, or that the H-2 worker be in this country temporarily to
perform labor or services. Rather, 8 CFR 214.2(h)(16)(ii) clarifies
that taking certain steps in seeking lawful permanent residence, by
itself, will not violate H-2 status.
b. Opposition on the Basis of Legal Authority
Comment: A couple of commenters, including a joint submission from
former DHS senior officials and a research organization, opposed the
proposed changes to clarify that an H-2 worker may take steps toward
becoming a lawful permanent resident while still maintaining lawful
nonimmigrant status. These commenters asserted that the proposal will
transform the H-2A and H-2B programs into ``dual intent'' visa programs
and claimed that the proposed change is ultra vires, as it is unlawful
for agencies to act in violation of their own regulations or enabling
statutory authority. The research organization said that both the H-2A
and H-2B visa programs are ``single intent'' visa programs that do not
allow beneficiaries to intend to take steps to adjust their status to
that of a lawful permanent resident. The commenter asserted that, under
the statute, H-2A and H-2B applicants must demonstrate that they are
not coming to the United States to reside permanently, as immigrants,
but will return home at the end of their authorized period of stay. The
[[Page 103277]]
commenter stated that proposed 8 CFR 214.2(h)(16)(i) is inconsistent
with statute and must be withdrawn, asserting that if a noncitizen
enters the United States on a ``single intent'' visa but nevertheless
intends to apply for a Green Card during the workers' time in the
United States, this indicates that the noncitizen misrepresented their
intention at the time they entered the United States. The commenter
concluded that it is both ultra vires and inappropriate for the
Executive Branch to actively encourage H-2A and H-2B workers to take
steps towards adjustment of status in violation of the INA. Stating
similar rationale, the joint submission from former DHS senior
officials said the Department seeks to undermine unambiguous statutory
language that the H-2 programs provide for temporary admission. The
commenter said, pursuant to clear statutory construction, admission of
an H-2 beneficiary cannot be granted when the beneficiary has an intent
to abandon a foreign residence. The commenter indicated the proposed
provision conflicts with the proposed regulation and violates the first
prong of Chevron.\105\ As further evidence of the asserted ultra vires
nature of the proposal, the commenter said Congress specifically
provided for dual intent of certain nonimmigrants but did not include
H-2 classification. The commenter concluded that this proposed rule
seeks to create a pathway for admission as a dual-intended H-2
beneficiary that is contrary to the law, asserting that DHS must
withdraw these provisions from the proposed rule.
---------------------------------------------------------------------------
\105\ Subsequent to receiving this comment, the Supreme Court in
Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024),
overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council,
467 U.S. 837 (1984). In its decision in Loper Bright, the Court
recognized that in certain cases Congress has given agencies
authority to exercise discretion, including by defining certain
terms or promulgating rules to fill in details of a statutory
scheme.
---------------------------------------------------------------------------
Response: New 8 CFR 214.2(h)(16)(ii) is consistent with the plain
language of section 101(a)(15)(H)(ii)(a) of the INA. This provision
does not exempt an H-2 worker from the statutory requirement that the
worker have a residence in a foreign country which he or she has no
intention of abandoning, nor from the requirement that the worker be
coming temporarily to the United States to perform H-2 services or
labor. This statutory provision includes the phrase ``having a
residence in a foreign country which he has no intention of
abandoning.'' Implicit in that phrase is discretion to determine, as a
factual matter, whether the noncitizen meets the definition for
classification as an H-2A or H-2B nonimmigrant based, in part, on the
noncitizen's intent, since the statute does not address how such intent
is to be ascertained; for example, by setting out facts or factors the
Government is to consider.\106\ Given that other sections of the INA
delegate authority to the Secretary of Homeland Security to administer
immigration laws, promulgate regulations regarding the same, and
specifically authorize the Secretary to prescribe regulations for the
admission of nonimmigrants,\107\ DHS is well within its authority to
establish which factors it will consider to ascertain the noncitizen's
intent, including whether any of those factors will de facto preclude
the noncitizen from being classified as an H-2A or H-2B nonimmigrant.
Therefore, final 8 CFR 214.2(h)(16)(ii) effectuates the authority
Congress delegated to the Secretary to fill in details necessary to
carry out the statutory scheme. As finalized, 8 CFR 214.2(h)(16)(ii)
simply clarifies that certain H-2 worker's actions seeking lawful
permanent resident status will not, standing alone, be the basis for
denying an H-2 benefit. This provision is, in fact, consistent with
established binding precedent.\108\ DHS is not persuaded that taking
steps described in new 8 CFR 214.2(h)(16)(ii) to secure lawful
permanent resident status necessarily demonstrates that the H-2 worker
misrepresented their intent when entering the United States or that the
H-2 worker does not intend to abide by the rules applicable to H-2A or
H-2B temporary status. An unexpected opportunity can arise after
admission.
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\106\ See Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244,
2263 (2024) (``In a case involving an agency, of course, the
statute's meaning may well be that the agency is authorized to
exercise a degree of discretion. Congress has often enacted such
statutes. For example, some statutes `expressly delegate' to an
agency the authority to give meaning to a particular statutory term.
Others empower an agency to prescribe rules to fill up the details
of a statutory scheme, or to regulate subject to the limits imposed
by a term or phrase that leaves agencies with flexibility, such as
`appropriate' or `reasonable.' '') (cleaned up).
\107\ As discussed in the Legal Authority section of this final
rule's preamble as well as in the proposed rule, under INA sec.
103(a) and (a)(3), 8 U.S.C. 1103(a) and (a)(3), the Secretary has
explicit authority to administer and enforce the immigration and
naturalization laws and establish regulations necessary to carry out
that authority. Furthermore, under INA sec. 214(a)(1), 8 U.S.C.
1184(a)(1), the Secretary has explicit authority to promulgate
regulations prescribing the conditions for the admission of
nonimmigrants, including explicitly ``to insure that at the
expiration of such time or upon failure to maintain the status under
which he was admitted, or to maintain any status subsequently
acquired . . . , such alien will depart from the United States.'' In
addition, INA sec. 214(c), 8 U.S.C. 1184(c), provides the Secretary
with explicit authority to prescribe the form and content of a
nonimmigrant visa petition, and to determine the eligibility for the
H-2 nonimmigrant classifications.
\108\ See Matter of Hosseinpour, 15 I&N Dec. 191 (BIA 1975)
(noting that ``a desire to remain in this country permanently in
accordance with the law, should the opportunity to do so present
itself, is not necessarily inconsistent with lawful nonimmigrant
status [citing cases]'' and holding that ``the filing of an
application for adjustment of status is not necessarily inconsistent
with the maintenance of lawful nonimmigrant status.'').
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The fact that DHS is amending 8 CFR 214.2(h)(16)(ii) to revise the
language put into place by its 1990 regulations regarding the
significance of the approval of a permanent labor certification and the
filing of an immigrant petition or adjustment of status application
with respect to the noncitizen's H-2 status does not call into question
DHS's statutory authority to do so. As stated in the proposed rule, the
current regulation conflates the beneficiary's nonimmigrant intent with
the nature of the employer's need. 88 FR 65040, 65068 (Sept. 20, 2023).
Further, while the agency in previous rulemaking 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, DHS continues to
maintain, as it did in the NRPM, that such a prohibition is overly
broad and that it is important to increase H-2 workers' mobility to the
extent legally possible, particularly given the vulnerability of H-2
workers to potential intimidation and threats made on the basis of
their nonimmigrant status. 55 FR 2606, 2619 (Jan. 26, 1990).
Significantly, the provision does not create a ``dual-intent''
classification or otherwise encourage H-2 workers to seek lawful
permanent resident status. It also does not create a new, direct
pathway to lawful permanent residence deriving from H-2 status or
otherwise contradict any statutory provisions applicable to the H-2A or
H-2B classifications. Rather, it allows an H-2 worker to avail
themselves of existing lawful pathways by clarifying that approval of a
permanent labor certification, the filing of an immigrant petition for
a noncitizen (family sponsored or employment-based), or an application
by a noncitizen 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.
DHS is also slightly revising the provision, as proposed in the NPRM,
to explicitly include those seeking benefits as an immediate relative
or under the diversity visa program, as it was not DHS's intention to
exclude
[[Page 103278]]
those benefits. See new 8 CFR 214.2(h)(16)(ii). DHS will consider these
actions, together with all other facts presented, in determining
whether the H-2 nonimmigrant is maintaining their H-2 status and
whether the noncitizen has a residence in a foreign country which he or
she has no intention of abandoning. For these reasons, DHS is
finalizing this provision with slight revisions relating to immediate
family and diversity visa programs described above.
c. Limited Impact of Proposed Provision
Comment: Some of the commenters who are in support of allowing H-2
workers to pursue lawful permanent residence specifically commented on
DHS's data, stating that such data show that ``the regulation will have
a minimal impact due to the low number of workers who apply for
permanent resident status'' and that ``the proposed rule would not
expand the underlying eligibility of H-2 workers for lawful permanent
resident status.''
A research organization stated that few H-2 workers ever obtain
lawful permanent resident status through the EB pathway. The commenter
stated that Congress must address this issue, as there are insufficient
pathways for workers in low-wage jobs and without advanced degrees to
obtain lawful permanent resident status or become naturalized.
Referencing statistics associated with employment-based lawful
permanent residence, the commenter said that only 1 percent of total
approved certifications by employers for employment-based lawful
permanent residence were for H-2 workers. The commenter attributed this
to DHS's interpretation of nonimmigrant intent, which the commenter
stated has deterred employers who would otherwise apply to permanently
hire H-2 workers.
Response: Congress has defined various employment-based immigrant
classifications. This rule is not the place to address the
applicability of those categories to H-2 workers. As noted in the
proposed rule, this provision does not expand the underlying
eligibility of H-2 workers for lawful permanent resident status and is
consistent with longstanding precedent. See Matter of Hosseinpour, 15
I&N Dec. 191, 192 (BIA 1975).
d. Temporary Need Requirement
Comment: A trade association expressed support for the proposed
rule's clarification that an employer may petition for permanent status
on behalf of an H-2 employee while still being able to demonstrate a
temporary need. Similarly, a joint submission expressing support for
this proposed change stated that it would have no substantive impact on
the current temporary need requirements of the H-2 programs and that it
would improve the flexibility and mobility of individual beneficiaries.
The commenter said that the current framework conflates the
beneficiary's intent and the temporary or permanent nature of the
employer's need. The commenter concluded that it was in the best
interest of the United States and its businesses for the Department to
not preclude H-2 status for beneficiaries that are at some point in the
lawful permanent residence process and urged the Department to
incorporate the provision in the final rule.
Response: DHS appreciates these comments and agrees that a more
nuanced approach to actions in pursuit of lawful permanent residence is
important for both H-2 workers and employers. As noted in the proposed
rule, the requirements that an H-2A or H-2B petitioner must establish
temporary need remain covered by the provisions at 8 CFR
214.2(h)(5)(iv) and 8 CFR 214.2(h)(6)(ii), respectively. Removing the
language of the prior regulation that mandates stringent consequences
for an H-2 worker who takes certain action to obtain lawful permanent
resident status creates flexibility for employers to promote H-2
workers.
e. Sponsoring of Lawful Permanent Resident Status by H-2 Employers
Comment: Several commenters, including several trade associations
and a few advocacy groups, suggested the Department clarify whether
employers can sponsor H-2 workers for permanent positions within their
business even if they are the same or similar role that the employer is
petitioning for. Some of the commenters reasoned that this was
important because some positions are structured the same but while some
employees are needed year-round, others are only needed for certain
seasonal periods, as they have a reduced need for staff in the off-
season. Several trade associations and an advocacy group added that
this would allow employers to sponsor H-2 workers more frequently. An
advocacy group added that this would provide clarity for workers and
employers. Similarly, a business association stated that the proposed
changes would provide welcome relief and certainty to H-2 workers and
employers if immigrant visa petitions did not preclude workers from
obtaining or maintaining H-2 status. However, the commenter also
requested that the Department clarify that the employer that files a
permanent immigrant visa petition for an H-2 worker could also be that
worker's employer on their H-2 visa.
Another trade association suggested that an additional
clarification needed to be proposed for public comment that would allow
employers to sponsor H-2 workers for permanent positions within their
operation regardless of whether the position corresponds to the
employment outlined in the H-2 petition.
Response: DHS appreciates the desire for greater clarity but is not
proposing or making any change to how it views an employer's temporary
need. As noted in the proposed rule, the requirements that an H-2A or
H-2B petitioner must establish temporary and/or seasonal need, as
applicable, remain covered by the provisions at 8 CFR 214.2(h)(5)(iv)
and 8 CFR 214.2(h)(6)(ii), respectively.
f. Other Feedback and Suggestions on the Impact of Seeking Lawful
Permanent Resident Status
Comment: A union and a research organization expressed support for
the proposed change, reasoning that it would increase the ability of H-
2 workers to adjust their status to become lawful permanent residents.
However, the commenters urged the Department to clarify that the change
would apply to workers seeking permanent residence through both
employment-based and family-based petitions.
Response: DHS appreciates the opportunity to clarify that the
provision at 8 CFR 214.2(h)(16)(ii) does indeed apply to workers
seeking permanent residence through both employment-based and family-
based, as well as diversity visa, petitions. The provision at 8 CFR
214.2(h)(16)(ii), as revised in this final rule, clarifies that the
fact that an individual has taken certain specified steps toward
becoming a permanent resident will not by itself be a basis for denying
an H-2 petition, a request to extend an H-2 petition, or an application
for admission in, change of status to, or extension of stay in H-2
status, but will instead be considered together with all other facts
presented in determining whether the individual is maintaining H-2
status and has a residence in a foreign country which he or she has no
intention of abandoning. DHS is making minor revisions to the final
rule to include all immigrant petitions, instead of just preference
petitions, to avoid inadvertently omitting immediate relative petitions
under INA sec. 204(a)(i)(I)(i) or diversity visa petitions filed with
DOS. See new 8 CFR 214.2(h)(16)(ii). Among the steps covered in the
revised provision is ``the filing of an immigrant petition'' on the
[[Page 103279]]
individual's behalf. The phrase ``immigrant petition'' in this context
refers to any immigrant petition filed under INA secs. 204(a), 8 U.S.C.
1154(a), and 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i) (``Immediate
Relatives''), 203(a), 8 U.S.C. 1153(a) (``Preference allocation for
family-sponsored immigrants''), or INA sec. 203(b), 8 U.S.C. 1153(b)
(``Preference allocation for employment-based immigrants''), as well as
INA sec. 203(c), 8 U.S.C. 1153(c) (``Diversity immigrants''), and thus
includes both family-based and employment-based petitions as well as
the diversity visa program. Similarly, the provision covers the filing
of an application to seek ``lawful permanent residence or an immigrant
visa'' without specifying limitations as to the basis for the permanent
residence application or the immigrant visa application.
Comment: While expressing support for the proposed change, a
research organization stated in the interest of fairness to applicants
in other programs, the change should not be limited to the H-2 program
and should be codified generally. Similarly, an advocacy group
suggested there be no barriers to legal migration and changes of status
for H-2 workers.
In response to proposed 8 CFR 214.2(h)(16)(ii), a research
organization requested that DHS provide an explanation as to why it
decided to ``partially address the barriers to citizenship by H-2A visa
participation'' rather than incentivizing citizenship. As an
alternative to the proposed approach outlined in the NPRM, the
organization suggested an approach to establish a clear pathway to
citizenship, while incentivizing workers to return to their country of
origin. Specifically, citing research, the organization suggested that
new immigrants could work during an initial period under a provisional
visa, during which they earn the benefit of permanent residence through
``a continuous and productive working career'' and through payment of
taxes. The suggested approach would additionally entail a measure
whereby workers would post a bond to an escrow account through their
wages, and the bond would be forfeited if the worker becomes a
resident.
Response: While DHS appreciates the comment, any new visa program
or pathway to citizenship would require legislation. The suggestion
about applying the language in new 8 CFR 214.2(h)(16) beyond the H-2
program is beyond the scope of this rule. The commenter's suggestion
``that there be no barriers to legal migration and change of status for
H-2 workers'' is unclear. However, DHS notes that it proposed numerous
changes to improve the efficiency of the H-2 programs and to reduce
barriers to use of those programs. For example, DHS proposed to remove
the eligible countries lists and to simplify the regulatory provisions
regarding the effect of a departure from the United States. These
provisions are part of this final rule and are discussed below.
Comment: While expressing support for an immigration process that
permits H-2 workers in good standing to apply for permanent residence
or citizenship, an association of State Governments questioned whether
this change would cause additional administrative burdens for employers
and employees, and for the requirements for lawful permanent resident
status. The commenter requested the Department clarify the details of
this immigration process in the final rulemaking.
Response: DHS does not expect the provision at 8 CFR
214.2(h)(16)(ii) to result in any additional administrative burden for
H-2 employers or employees. The provision at 8 CFR 214.2(h)(16)(ii) is
not creating a new program for lawful permanent residence or
citizenship and does not create any new obligation for H-2 employers or
employees; it merely clarifies that, standing alone, the fact that an
individual has taken certain steps to pursue permanent residence will
not be considered a violation of H-2 status or show an intent to
abandon a foreign residence. It is important to note that, for those
employers who choose to file an immigrant petition on behalf of a
current or former H-2 nonimmigrant--or those H-2 workers who choose to
pursue permanent residence through another avenue (whether employment-
based or family-sponsored, or on the basis of diversity)--the provision
at 8 CFR 214.2(h)(16)(ii) does not change the existing immigration
process or eligibility requirements. The provision also does not revise
existing eligibility requirements or procedures for adjustment to
lawful permanent resident status.
Comment: A business association referenced the consular review
process that H-2 workers face when they leave the United States and
return on another H-2 visa. The commenter stated that the ``dual
intent'' regulations would help the individuals if they were reviewed
by DHS, but that the regulations would not hold sway over consular
officials under the State Department. The commenter suggested DHS work
with the State Department to ``harmonize their respective regulations
and guidance documents'' to avoid conflictual applications of the two
agencies' policies.
A professional association and a trade association expressed
support for the Department's clarification but stated DHS's reasoning
for the clarification, that an H-2 worker taking steps to become a
permanent resident would not show an intent to abandon their foreign
residence, appeared to be counterintuitive.
Response: DHS disagrees that the provision is counterintuitive. An
H-2 worker may seek to eventually adjust status to that of a lawful
permanent resident while maintaining a current intent to leave the
United States at the end of their authorized period of stay and
continuing to have a foreign residence that they have no current
intention of abandoning. As the rule provides, the approval of a
permanent labor certification, filing of a preference or other
immigrant visa 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.
See new 8 CFR 214.2(h)(16)(ii). Standing alone, such filing will not,
however, be sufficient basis to conclude that the H-2 nonimmigrant has
failed to maintain his or her H-2 status or has the intent to abandon
the person's residence in a foreign country. As noted above, the
provision is consistent with longstanding precedent, Matter of
Hosseinpour, 15 I&N Dec. 191, 192 (BIA 1975) (``[C]ourts have held that
a desire to remain in this country permanently in accordance with the
law, should the opportunity to do so present itself, is not necessarily
inconsistent with lawful nonimmigrant status.'').
DHS agrees that coordination with DOS is important, and notes that
the Foreign Affairs Manual (FAM) is not inconsistent with new 8 CFR
214.2(h)(16)(ii). The FAM, which constitutes guidance to DOS employees,
is not binding on DHS and does not indicate that certain actions
seeking lawful permanent resident status, standing alone, warrant
denial of the visa.\109\
---------------------------------------------------------------------------
\109\ Currently, the FAM states, in pertinent part: ``Unlike H-
1B nonimmigrants, H-1B1, H-2, and H-3 nonimmigrants are subject to
INA sec. 214(b) and are not accorded dual intent under INA sec.
214(h). Under INA 101(a)(15)(H)(ii)-(iii), an applicant is not
classifiable as an H-2A, H-2B, or H-3 nonimmigrant unless the
applicant has a residence abroad and no intention to abandon that
residence. Thus, the fact that an H-2 or H-3 nonimmigrant has sought
or plans to seek permanent residence may be considered evidence of
the applicant's intention to abandon foreign residence.'' DOS,
Foreign Affairs Manual 9 FAM 402.10-10(A) (emphasis added), https://fam.state.gov/FAM/09FAM/09FAM040210.html#M402_10_10_A.
---------------------------------------------------------------------------
[[Page 103280]]
5. Removal of ``Abscondment,'' ``Abscond,'' and Its Other Variations,
and Notification to DHS
a. Removal of ``Abscondment,'' ``Abscond,'' and Its Other Variations
Comment: A few commenters expressed support for DHS's proposed
technical change. Several commenters, including a few trade
associations, an advocacy group, a joint submission, and a professional
association, expressed that they have no concerns or objections to
DHS's proposal to remove the words ``abscondment,'' ``abscond,'' and
its other variations from the H-2 regulations and 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.'' A trade
association stated that it was ``agnostic'' as to whether the
Department should remove the terms ``abscondment'' and ``abscond'' from
the regulations. A joint submission stated that it has no objections to
the Department's proposal to the extent that it does not substantively
change any existing program obligations. The joint submission commented
that it considers this a reasonable change to the regulatory text and
supports the Department's rulemaking on this front. The joint
submission concurred with the Department that workers deserve to be
treated fairly. They further commented that in their experience, though
rare, workers do leave employment for legitimate reasons, and in
isolation, the act of separating employment should not adversely affect
that worker's ability to secure subsequent employment if done through
lawful processes. Similarly, a professional association stated that
workers leave their employment for various reasons, the majority of
which are entirely legitimate, including to undergo medical procedures,
injury, pregnancy, emergencies back home, or to assume more
advantageous employment elsewhere. The commenter remarked that it is
critical to ensure that DHS uses appropriate and fair language when
describing those workers who leave their employment for valid reasons
since the negative connotation surrounding these words can negatively
impact the workers' ability to obtain future U.S. immigration benefits.
A professional association noted that some people have a negative
connotation of the words ``abscond'' and ``abscondment'' and recognized
that workers may have valid reasons for leaving their contracts. Two
advocacy groups welcomed the Department's removal of the words
``abscondment,'' ``abscond,'' and its other variations from the H-2
regulations as these words convey wrongdoing by the worker, without
regard for the reality of their working and living conditions. The
advocacy groups stated that there are many reasons why an H-2 worker
may not report for work, including illness, injury, unsafe working
conditions, and transportation issues. The commenters remarked that
replacing these words is a positive step in the recognition of the
imbalance of power between workers and employers since it is not
uncommon for employers to use the threat of reporting abscondment to
prevent workers from asserting their rights.
Response: DHS appreciates the support expressed by these commenters
for removing terms ``abscondment,'' ``abscond,'' and its other
variations from the H-2 regulations. These terms have negative
connotations which suggest wrongdoing on the part of H-2 workers who
may have a wholly valid reason to leave their employment prior to the
end of a work contract. As explained in the supporting comments, in
many instances, workers leave employment early for wholly valid
reasons, such as safety concerns, medical issues, or emergencies that
require their presence in their home countries. In finalizing the
proposals to remove these terms, DHS reaffirms its recognition of the
many legitimate reasons why workers may leave employment early.
b. Notification Requirements
Comment: A couple of advocacy groups urged the Department to
reevaluate its decision to maintain the notification requirements in 8
CFR 214.2(h)(5)(vi)(B) and 8 CFR 214.2(h)(6)(i)(F). The advocacy groups
stated that these requirements often function as another avenue of
exploitation for abusive employers, who can rely on the threat of
reporting a worker as having ``absconded'' to retaliate against workers
seeking to leave. The commenters added that the coercive effect of the
threat is intensified by the current policy that bars some absconded
workers from the H-2A program for 5 years, and USCIS does not have the
resources to verify the accuracy of these reports. The commenters asked
that the Department amend this notification system or include avenues
for worker notification and opportunities for workers to respond. The
commenters concluded that including workers in the process will
minimize the chances that H-2 employment-related reports will be used
to retaliate against workers who have exercised their rights or to
coerce them into remaining in an abusive or exploitative working
environment.
Response: DHS appreciates the commenters' concerns regarding the
potential for the H-2 notification requirements to be used by employers
in a coercive or retaliatory manner. As demonstrated by the worker
protection provisions finalized in this rule, the Department is
strongly committed to addressing all forms of abuse in the H-2
programs, including coercive actions and threats of retaliation
committed by employers. The Department has chosen not to substantially
change or eliminate the notification requirements in 8 CFR
214.2(h)(5)(vi)(B) and 8 CFR 214.2(h)(6)(i)(F), because these
information collections continue to have value for both DHS and DOL.
The Department reiterates, however, that it does not consider the
information provided in an employer notification, alone, to be
conclusive evidence indicating the worker is immediately out of status.
As noted in the proposed rule, in subsequent petitions on the workers'
behalf, information or evidence may be requested regarding a worker's
date of cessation to demonstrate maintenance of status. This is one
reason, in addition to operational limitations, DHS is not adopting the
suggestion that affected workers be made aware of and provided an
opportunity to respond to notifications submitted by their employers.
Comment: A trade association expressed its concerns about what it
described as the burdens, ``ineffective safeguards,'' and unequal
regulatory requirements placed on employers who avail themselves of the
H-2 program, such as notification requirements when a beneficiary does
not report for work. The commenter stated that employers must continue
to satisfy notification requirements when a beneficiary does not report
for work, which is yet another requirement for which employers must
comply. While the notifications may permit an employer to file for a
replacement worker, this is a marginal benefit, reasoned the commenter,
noting that a harvesting season may be nearly over before a replacement
worker can arrive. On the other hand, the commenter continued, failure
to provide such notification could result in sanctions on the
petitioner, including that DOL may find the employer liable
[[Page 103281]]
to pay wages for up to three-quarters of the hours offered to a worker
who abandoned the job. The commenter also suggests that ``[H-2]
regulating agencies show they are more concerned that employer submits
an email than whether a beneficiary maintains their status.'' The
commenter added that ``the Department must do better to ensure
beneficiaries maintain status--either by completing job contracts or
porting to another eligible job opportunity.''
Response: The commenter does not offer a clear supportive position
on retention of petitioner notification requirements other than to
suggest that it is important that employers notify DHS when workers
have ``abandoned'' their jobs. The commenter also does not clearly
oppose retention of these notification requirements or offer
suggestions for revising the related regulatory provisions. Instead,
the commenter appears to suggest that the current notification
requirements are not ``equitable,'' as the burdens of complying with
them fall heavily on petitioners yet these notification requirements
only provide ``marginal benefits'' to petitioners. While DHS
understands that the burdens of compliance fall on the petitioner, DHS
believes these information collections continue to have value. For
example, information that an H-2 worker is no longer working for a
petitioner could be useful for public safety reasons and to maintain
the integrity of the H-2 programs (or any other nonimmigrant visa
programs) as well.
With regard to the commenter's suggestion that ``[H-2] regulating
agencies show they are more concerned that employer submits an email
than whether a beneficiary maintains their status,'' DHS strongly
disagrees with these unfounded assertions. The Department also declines
to make any changes with respect to the comment's statement that DHS
must do even more to ensure beneficiaries maintain their status either
by completing job contracts or porting to another eligible job
opportunity. DHS is finalizing robust worker flexibility provisions in
this rule, including expanded grace periods and access to portability,
to help ensure H-2 beneficiaries can maintain status if situations
arise where they need to find new employment.
F. Program Efficiencies and Reducing Barriers to Legal Migration
1. Eligible Countries Lists
a. Support for Eliminating Eligible Countries Lists
Comment: Multiple commenters expressed general support for the
Department's removal of the H-2 eligible countries lists. While
expressing their support, a professional association and a business
association stated that the Department's rationale for the removal--
improving efficiency and removing burdens for the Department and
employers--seems appropriate. Another professional association remarked
that removing the lists provides another efficiency to the H-2 program.
A joint submission concurred with the Department that the existing
national interest waiver framework is burdensome, a waste of resources,
and difficult to administer, while adding that it unfairly punishes
foreign nationals for circumstances involving their home country's
government that are out of their control. The commenter agreed with the
Department's assessment that the costs of the eligible countries lists
outweigh its benefits to U.S. geopolitical interests. A professional
association applauded the proposed removal of the eligible countries
lists, stating that it would reduce burdens on DHS, USCIS, and H-2
employers, while also enhancing the accessibility of the H-2 programs.
A research organization welcomed the change to remove the eligible
countries lists, stating that the INA provides no authority to impose a
presumptive bar to entire nationalities from participating in these
programs. The commenter stated that banning certain countries can cause
overstay rates from those countries to increase, citing Haiti as an
example. An individual commenter expressed general support for the
regulations' stance on reducing barriers to legal migration, and stated
that the authorization of a select few countries/foreigners to work in
the United States temporarily creates domestic labor shortages and
diminishes opportunities for both foreign workers and U.S. industries.
An advocacy group remarked that the proposed provision would free
up resources to be used on other pressing projects across DHS and the
DOS, as well as reduce the burden on petitioners that seek to hire H-2
workers from ineligible countries. The commenter further stated that
the provision would increase access to workers who are potentially
available to businesses that utilize the H-2 programs.
Response: DHS appreciates the support from these commenters and
agrees that eliminating the eligible countries lists reduces
administrative burdens and avoids consequences for potentially
blameless workers as a result of the actions of the countries they come
from. DHS also appreciates the commenter's referral to a blog post
discussing the increase in the Haitian overstay rate when at the time
Haitian H-2A workers likely suspected that Haiti would be removed from
the lists.\110\ The author of the blog post infers that one reason H-2A
overstays rates are typically so low is that noncitizen workers can
usually count on returning to H-2 work each year if they abide by the
program's requirements, therefore limiting the incentive to overstay
their visa. The author believes that the perceived threat of a
country's nationals becoming ineligible for employment under the H-2
programs may lead to some individuals choosing to overstay rather than
risk being unable to return to H-2 employment the following year, as he
claims likely happened in the case of Haitian workers in 2016. While
the assumptions in that blog post are speculative, it is, if true, an
argument supporting the removal of the eligible countries lists.\111\
DHS is retaining the removal of the eligible countries lists in this
final rule.
---------------------------------------------------------------------------
\110\ Alex Nowrasteh, CATO Institute, ``Haitian Guest Workers
Overstayed their Visas Because the Government Cancelled the Program
for Them'' (Jan. 18, 2018), https://www.cato.org/blog/haitian-guest-workers-overstayed-their-visas-because-government-cancelled-program-them.
\111\ DHS removed Haiti from the eligible countries list on
January 18, 2018. See 83 FR 2646. It added Haiti back to the list on
November 10, 2021, while noting that some factors, including
nonimmigrant visa overstay and removal rates that precipitated
Haiti's removal from the H-2 programs in 2018 remain a concern. See
``Identification of Foreign Countries Whose Nationals Are Eligible
To Participate in the H-2A and H-2B Nonimmigrant Worker Programs,''
86 FR 62559, 62562 (Nov. 10, 2021). Thus, as this example shows, the
eligible countries list has not proven to be an especially effective
tool in preventing nonimmigrant overstays and punishing recalcitrant
countries.
---------------------------------------------------------------------------
Comment: While expressing support for the proposed rule and
specifically its provisions related to reducing paperwork burden by
allowing employers to request workers from multiple countries within
the same petition, a professional association suggested that DHS
explore additional streamlining measures for returning applicants who
have favorable reviews from previous employers.
Response: DHS appreciates the general support. However, as the
commenter did not provide specific suggestions for additional
streamlining measures for certain returning applicants, DHS is not
making any changes as a result of this comment.
b. Opposition to Elimination of Eligible Countries Lists
Comment: A couple of commenters, including a joint submission from
former DHS senior officials and a research organization, expressed
[[Page 103282]]
opposition to the proposed provision. The joint submission from former
DHS senior officials stated that the eligible countries lists are
important tools in preventing nonimmigrant overstays. The commenter
remarked that the concerns regarding time spent on adjudication of
waiver requests and the compilation of data prior to the lists being
generated do not form a basis to ``jettison'' the entire lists. The
commenter stated that the data in the entry-exit report pinpoint which
countries' citizens are more routine abusers of nonimmigrant visas,
information that should be used when evaluating which nationalities
should be eligible recipients of the visas. While expressing the
perceived importance of the lists to national security, public safety,
and immigration enforcement, the commenter further remarked that
removing one of the greatest punitive measures against a recalcitrant
country would breed further non-cooperation. Additionally, the joint
submission notes that it would not support the possible alternative to
allow less frequent publication of the lists by providing that they
remain in effect for up to 3 years instead of automatically expiring
after 1 year, as it would be insufficient to combat the overstay rates
and would still ``allow free passes for recalcitrant countries'' in
years when no list is published. The commenter concluded that there was
no attempt to find alternatives that would keep the lists in place,
such as exempting returning workers from the lists in subsequent years.
A research organization strongly recommended that DHS maintain and
strengthen the regulatory requirement that the Secretary designate
countries whose nationals are eligible to participate in the H-2
programs. The commenter stated that it serves the interests of foreign
workers and the U.S. government to bar participation from countries who
fail to cooperate with U.S. laws and policies or abuse the visa
programs. The commenter reasoned that limiting H-2 eligibility to
nationals of countries who meet specific standards enables DHS to
reduce risks of fraud and abuse in the H-2 programs and illegal
immigration to the United States, all of which harm the integrity of
the immigration system and labor conditions in the United States
generally. The commenter cited the removal of the Philippines and the
Dominican Republic from the list of eligible countries in 2019 as an
example of the potential harms that continued inclusion could pose to
the H-2 programs. The research organization disagreed with DHS that
program reforms made under this proposed rulemaking will be sufficient
to guard against harms such as illegal immigration and human
trafficking. The commenter requested that DHS publicize the information
it considered regarding agency resource allocation for making program
eligibility determinations.
The research organization recommended the following additional
requirements for country eligibility:
DHS should determine that a country's inclusion in the
visa programs would not negatively affect U.S. law enforcement and
security interests;
Participating countries should make similar forms of
temporary work visas available to U.S. citizens; and
Participating countries should enter into agreements with
the United Staes to share information regarding whether citizens or
nationals of the country represent a threat to the security or welfare
of the United States or its citizens.
Response: DHS shares the commenters' concerns about recalcitrant
countries but does not anticipate that retaining the eligible countries
lists would significantly reduce overstays or encourage countries to
cooperate with the United States on immigration matters. DHS reviewed
the Congressional Research Service report \112\ shared by one
commenter. That report addresses INA sec. 243(d) visa sanctions in
general,\113\ rather than focusing on the eligible countries list
within the context of the H-2 programs.\114\ Most significantly, the
report concludes that there are several alternatives to visa sanctions,
and that both DHS and DOS ``reported success in achieving cooperation
without resorting to visa sanctions, resulting in countries being
removed from the recalcitrant or [at risk of non-compliance (ARON)]
lists.''
---------------------------------------------------------------------------
\112\ Jill H. Wilson, Congressional Research Service,
``Immigration: `Recalcitrant' Countries and Use of Visa Sanctions to
Encourage Cooperation with Alien Removals,'' (July 10, 2020),
https://crsreports.congress.gov/product/pdf/IF/IF11025.
\113\ Section 243(d) of the INA, 8 U.S.C. 1253(d), provides for
the Department of State's discontinuation of the granting of
immigrant visas and/or nonimmigrant visas to citizens, subjects,
nationals, and residents of a specified country upon DHS
notification that such country denies or unreasonably delays in
accepting repatriation requests.
\114\ For example, the report discusses sanctions applied to
tourist and business visas for certain government officials while
vaguely referencing sanctions on a ``broader set of visa categories
and applicants.''
---------------------------------------------------------------------------
DHS notes that other provisions in the rule address labor
trafficking, including worker portability, whistleblower protections,
and mandatory and discretionary denials for employers with certain
violations. In addition, DOL recently finalized a rule that increases
oversight of the program, including protections for advocacy and labor
organizing, worker protections, and enhancing transparency from
employers. 89 FR 33898 (Apr. 29, 2024).
DHS appreciates the suggested alternative to exempt returning
employees from the lists in subsequent year to address the DHS's
concerns with the lists; however, DHS disagrees that this suggestion
would address all of those concerns. As noted in the proposed rule,
eliminating the lists frees up DHS resources which currently are
devoted to developing and publishing the lists in the Federal Register,
and collaborating between several DHS components and agencies as well
as DOS. DHS would also still incur the burden of adjudicating waiver
requests, as are currently allowed, for nationals of countries not on
the lists who are not returning workers. Similarly, employers would
still incur the extra burdens of preparing a petition that requests a
national from a country not on the lists who is not a returning
worker.\115\ While exempting returning workers could reduce some of the
burdens, those that remain are not outweighed by the benefits of
retaining the lists when, as discussed above, alternative visa
sanctions and diplomatic efforts have been shown to be effective in
encouraging cooperation with U.S. immigration laws by other countries.
---------------------------------------------------------------------------
\115\ 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.
---------------------------------------------------------------------------
As DHS declines to retain the eligible countries lists for the
reasons discussed above, it also declines to add the new factors the
commenter suggested for when DHS is deciding on which countries to
include on the lists.
Regarding the request that DHS publicize the information it
considered regarding agency's resource allocation for making program
eligibility determinations, the NPRM already described the burdens
associated with adjudicating waiver requests as well as the significant
collaboration needed between several DHS components and agencies and
DOS to come to these yearly eligibility determinations. 88 FR 65040,
65069-70, 65089-90 (Sept. 20, 2023). For example, the NPRM stated that
it takes ``months of work to gather recommendations and information
from
[[Page 103283]]
offices across ICE, U.S. Customs and Border Protection (CBP), and
USCIS, compile statistics and cooperate closely with DOS.'' 88 FR
65040, 65089. DHS is unable to provide more specific data beyond the
information already provided in the NPRM, as it is not possible to
quantify all the time and resources involved in these types of robust
agency collaborations and the unique foreign policy considerations
required for each analysis.
c. Mixed Feedback on Elimination of Eligible Countries Lists
Comment: A foreign government expressed mixed views on the removal
of the eligible countries lists. The commenter expressed that the
rationale for removing the list has merit, considering that the limited
data available indicated that during FY 2022, the majority of countries
currently on the lists did not participate in the H-2 programs.
However, the commenter remarked that the elimination of the list may
lead to workers from countries with high populations and rates of
unemployment flooding the H-2 programs, which would serve as a
disadvantage to smaller states that are already in the program. The
commenter recommended the implementation of a mechanism to protect the
participation of smaller countries, such as a quota system that
provides for a minimum level of participation by countries meeting
specific criteria.
Response: DHS appreciates the commenter's support for removing the
eligible countries lists and concerns with the impact of doing so on
smaller countries. DHS does not anticipate that elimination of the
lists will result in the adverse impacts mentioned, however, as
elimination of the country lists is country-neutral, and it is
speculative that smaller countries would be adversely affected by the
elimination of the lists.
2. Eliminating the ``Interrupted Stay'' Calculation, Reducing the
Period of Absence for Resetting the 3-Year Stay Clock
a. General Support for the Provisions
Comment: Commenters expressed support for the proposed changes for
a variety of reasons. Several commenters, including a business
association, a professional association, and a joint submission
expressed support for DHS simplifying the interrupted stay calculation
and shortening the period of absence that will reset H-2 workers' 3-
year limit of stay. A professional association said that shortening the
period of absence to 60 days is a welcome change because H-2 workers
satisfy a significant economic need for the United States, and
therefore it is important to remove unnecessary hurdles to their
contributions. A few commenters, including professional, business, and
trade associations, expressed support for simplifying the interrupted
stay calculation due to the current calculations being confusing for
employers and workers. While expressing their support, a few trade
organizations noted that this change would simplify the process of
determining an H-2 worker's remaining length of stay. Additionally, a
business association said that simplifying the interrupted stay
calculation and shortening the period of absence that would reset the
3-year limit of stay should work well when H-2 workers leave the United
States via an airport. A joint submission wrote that the proposed
changes would improve certainty and predictability for H-2 workers and
are a ``step towards improving H-2B workers' ability to seek legal
support if needed.''
While describing DHS's proposed changes to the interrupted stay
provisions and the 3-year clock, a joint submission concurred with
DHS's justification for this change, writing that the existing
standards are confusing, burdensome, and difficult to implement. The
commenters provided an example of how named petitions to extend a
beneficiary's stay require significant documentation, which the
commenters said creates administrative work and lengthens the
adjudication timeline. This joint submission also noted that reducing
the time to reset the 3-year limit of stay to 60 days would not only
accomplish the Department's policy objectives and reduce the burden on
workers and employers but also foster interagency harmony, as this
would bring DHS's standards in line with the DOL's ``10-month rule''
for evaluating temporary need. The commenters further stated that many
H-2A employers utilize the full 10-month period of need, which can
result in cases where workers reach their 3-year limit and are
ineligible for an extension of stay in H-2A status. The commenters
wrote that the proposed change would make it easier for employers with
longer periods of need to extend their H-2A workers' stay as necessary.
Similarly, a trade association wrote that for workers who return to
their home countries every year, this change would align DHS's
requirements with the maximum possible season of 10 months and clarify
the dates for when workers can return to the United States. A
professional association also expressed support for the proposed change
to the interrupted stay calculation, as it would create uniformity
between the two H-2 programs and increase efficiency and opportunity
for workers.
Response: DHS appreciates the commenters' support for these
changes. DHS agrees that these changes will simplify the process for
determining an individual's remaining available time in H-2 status and
will reduce confusion for employers. DHS also anticipates that the
change will simplify USCIS adjudications, resulting in fewer requests
for evidence and greater efficiency in adjudicating H-2 petitions.
b. Opposition to the Provisions
Comment: An advocacy group expressed opposition to the proposed
changes. The commenters reasoned that if a worker left the United
States, reducing the time to reset the 3-year limit of stay to 60 days
would neither pause the period of stay clock nor extend the time a
worker could work in H-2 status upon returning. The advocacy group
wrote that this could harm workers and prevent them from seeing their
families and taking care of them, when necessary, thereby potentially
harming the workers' health.
While a professional association noted that current regulations
regarding the 3-year limit and interrupted stay calculation are
complicated for employers and workers to understand, the commenter
stated that eliminating the interrupted stay calculation was not the
correct solution. Instead, the commenter suggested allowing employees
to maintain the ability to return to the United States if they had
``spent less time in H-2 status given potential `interrupted status.'
''
Response: DHS does not agree that this provision will harm workers.
Under current regulations, a period of absence from the United States
will interrupt the stay of H-2 workers only in the following
circumstances:
If the accumulated stay is 18 months or less, an absence
is interruptive if it lasts for at least 45 days.
If the accumulated stay is greater than 18 months, an
absence is interruptive if it lasts for at least 2 months.
Under the final rule, USCIS no longer recognizes certain absences
as an ``interrupted stay'' for purposes of pausing the calculation of
the 3-year limit of stay. Specifically, H-2 workers who have an
accumulated stay of less than 18 months and have an absence from the
United States of 45 to 59 days will no longer have their period of stay
[[Page 103284]]
``interrupted.'' DHS recognizes that this subset of H-2 workers may not
benefit from these changes, but as it relates to the H-2 program as a
whole, the change to simplify the calculations and shorten the time to
``reset'' the clock will benefit H-2 workers and employers and help
improve program efficiency overall. Further, this subset population of
H-2 workers may still benefit from the reduced period for resetting
their H-2 clock if they extend their stay outside of the United States
for at least 60 days. Rather than ``interrupting'' the stay, an absence
for the designated period of at least 60 days would in all cases
``reset'' the H-2 clock (instead of, per current regulations, just
``pausing'' the H-2 clock), and thus, allowing for an additional 3
years in the United States in H-2 status upon the worker's readmission.
Moreover, this change does not in any way prevent an H-2 worker from
making short trips outside the United States and returning to the
United States in H-2 status. Therefore, the basis of the commenters'
concerns about ``harm to the family and health of the worker'' and
``leaving in the ability for employees to return to the United States''
is unclear.
To the extent that these commenters are suggesting that any period
of absence should interrupt the H-2 period of stay, similar to the
current ``recapture'' provision for H-1B beneficiaries codified at 8
CFR 214.2(h)(13)(iii)(C), DHS explained in the NPRM that it considered
and rejected this alternative. As explained in the NPRM, DHS determined
that implementing a provision similar to the H-1B ``recapture''
provision'' would be only a minimally less confusing calculation for
petitioners and H-2 workers, as well as for USCIS adjudicators. 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. Therefore, DHS
declines to adopt the commenters' suggestions and is finalizing the
provision without change.
c. Other Feedback and Recommendations Regarding the Interrupted Stay
Provisions
Comment: While expressing support for simplifying the interrupted
stay calculation, a union suggested the period of absence to reset H-2
workers' 3-year limit of stay remain at 90 days. The commenter reasoned
that H-2 programs are temporary, and therefore a 90-day period of
absence aligns better with the purpose of the program. The commenter
added that program reform must advance both U.S. and migrant workers'
interests, and that creating rules employers could misuse as year-round
labor solutions would not be an acceptable outcome.
Response: DHS maintains that a 60-day period of absence is
sufficient to ensure that an H-2 worker's stay is temporary in nature,
while at the same time affording employers and workers the flexibility
to fill an employer's temporary needs. Further, the commenter did not
specifically explain why a 90-day period of absence would better align
with the purpose of the program as opposed to 60 days.\116\ DHS
therefore declines to make any changes based on this comment. DHS
maintains that a 60-day period of absence is sufficient to ensure that
an H-2 worker's stay is temporary in nature, while at the same time
affording employers and workers the flexibility to fill employers'
temporary needs.
---------------------------------------------------------------------------
\116\ As noted in the NPRM, DHS did not provide specific policy
reasons for setting the period of absence at ``3 months'' in prior
regulations, noting only that it was reducing that period from 6
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.'' Modernizing H-2 Program Requirements, Oversight, and
Worker Protections, 88 FR 65040, 65072 (Sept. 20, 2023); 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).
---------------------------------------------------------------------------
Comment: In the context of expressing support for the interrupted
stay provisions, several business associations suggested that the
Department implement a method for tracking land border crossings, which
are not currently tracked, reasoning that this could prevent issues
when H-2 workers who cross the border with Mexico return to the United
States. A few business associations recommended incorporating this
tracking method into the CBP One application so that workers could log
their exit when leaving the United States for Mexico. Another business
association expressed concern with the Department's ability to enforce
the current and proposed requirements, reasoning that the Department
does not currently have a way to track land border crossings and thus,
a way of tracking the H-2A workers that cross the land border with
Mexico. Like other commenters, the business association suggested
including a function in the CBP One application to allow H-2A workers
to log their location when returning to Mexico.
A business association provided a recommendation regarding the use
of the CBP One application to track land border crossings. The
commenter suggested that the Department build out the application's
capabilities so that H-2 workers are responsible for recording their
exit from the United States. Alternatively, the commenter suggested a
two-step process where an employer first records the end of an H-2
worker's employment, and the employee then logs their official exit on
the CBP One application when they leave the country.
Response: DHS notes that the burden of proof to establish
eligibility for an immigration benefit is on the petitioner or
applicant.\117\ In the NPRM and final rule, DHS has provided a non-
exhaustive list of evidence that may be provided to document relevant
absences from the United States, including arrival and departure
records, copies of tax returns, and records of employment abroad. While
DHS appreciates the commenters' suggestions, DHS did not propose a
method for tracking land border crossings or any changes or additions
to the CBP One application in the NPRM. Because DHS did not propose any
changes with respect to tracking land border crossings or the CBP One
application, these comments are outside the scope of this rulemaking.
Therefore, DHS declines to adopt these suggestions as part of this
final rule. The Department continues to make improvements to the
accuracy and reliability of the entry/exit system, and may consider
these suggestions as it does so.
---------------------------------------------------------------------------
\117\ See, e.g., INA sec. 291, 8 U.S.C. 1361; 8 CFR 103.2(b)(1),
214.1(a)(3).
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G. Severability
Comment: A professional association and a business association
expressed support for the Department's proposal for the regulations to
be severable. Another professional association remarked that it has no
objection to including severability in the rule proposal.
[[Page 103285]]
Response: DHS appreciates these comments and is finalizing the
severability provision with minor clarifying edits. DHS intends for the
provisions of this rule 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 will remain in effect as
to any other person or circumstance. While, as discussed in the NPRM
and in this preamble, the various provisions of this rule, taken
together, will 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. In the severability clause contained in this final
rule, DHS has identified the second level paragraphs (for example,
(h)(6)) in which the severable amended provisions contained in this
final rule can be found. These references along with the date of the
final rule are intended to better identify the severable provisions and
differentiate them from the existing provisions in 8 CFR 214.2 that are
not being impacted by this final rule.
H. Input on Future Actions/Proposals for Beneficiary Notification
Comment: Multiple commenters suggested that the Department
implement an electronic notification system of beneficiary and employer
statuses, while also recommending that the Department implement an
electronic filing process. A business association suggested using a
system like DOL's Foreign Labor Application Gateway (FLAG) system,
which would reduce cost and time burdens for employers and DHS. A trade
association remarked that electronic filing is a necessary efficiency,
and it would be a ``disservice'' to employers and beneficiaries to not
implement electronic filing for H-2A petitions. A couple of trade
associations, an advocacy group, and a business association recommended
that the Department implement an electronic notification system through
the technology the Department currently possesses, while also proposing
to make the entire filing process electronic to reduce cost and time
burdens to employers and the Department. The commenters added that it
is inconceivable that employers must still file their petitions on
paper, given they will be transcribed and entered into the Department's
electronic system. A trade association stated that the paper petitions
currently used are costly, time consuming, and inefficient, especially
given that the Department already stores a large amount of information
electronically.
A couple of commenters, including a professional association and a
business association remarked that moving USCIS systems into the
digital age as quickly as possible would be welcomed by H-2A workers,
employers, and the Department itself.
A professional association stated that using email with digitized
notices and enhancing website capabilities with real-time information
would be the most effective, efficient, and affordable method of
communication between beneficiaries, petitioners, and DHS. Another
professional association recommended that the Department add an email
section to Attachment-1 of Form I-129, which would allow USCIS to email
the beneficiary that someone applied to amend their status. The
commenter stated that at times, this may result in more work for
employers, agents, and associations, but it would be an efficiency that
would benefit the worker.
A joint submission concurred with DHS's reasoning on providing
notifications directly to beneficiaries, but cautioned the Department
not to implement a process that requires significant information
collection or disclosure on the part of the employer. The commenter
added that it would advocate against any process that makes the contact
information of beneficiaries, such as email address, a mandatory field
on petition forms. The commenter concluded that failure to provide
beneficiary contact information should not serve as a basis for
petition rejection or denial.
Another joint submission concurred with DHS that more notice and
transparency is beneficial, and limiting notifications to the
petitioning employer may restrict the beneficiary's options to transfer
to subsequent employment or extend or change their status. The
commenter expressed opposition to any changes to the Form I-129 that
would dramatically increase the transaction cost associated with a
named petition, such as the inclusion of multiple new fields or
additional pages. The commenter recommended adding an optional email
address field to Attachment-1 and using this information to copy the
beneficiary on any notifications. The commenter concluded that a copy
of notifications could be mailed to beneficiaries if an email address
is not available since the Attachment-1 already requires U.S. and
foreign addresses.
Response: DHS appreciates these comments. In the NPRM, DHS stated
that it was 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 as well as other suggestions regarding
ways to ensure adequate notification to beneficiaries of actions taken
with respect to petitions filed on their behalf. As indicated in the
NPRM, the feedback was being sought to inform a potential future
action, and DHS did not propose a particular approach in the NPRM.
Therefore, DHS is not making any regulatory changes as a result of the
request for preliminary input in this final rule but will take into
serious consideration the input provided by these commenters as it
continues to research and consider the feasibility, benefits, and costs
of various options separate and apart from this final rule.
I. Other Comments Related to the Rule or H-2 Programs/Requirements
1. Alternatives and Other General Comments on the Proposed Rule
Comment: Some commenters provided broad recommendations to improve
H-2 worker conditions while supporting USCIS for its efforts to protect
H-2 workers' rights. For example, an advocacy group stated that in the
longer term, additional changes would be needed to shift the balance of
power in the employer-worker relationship in favor of workers' rights.
A couple of individual commenters provided additional suggestions,
requesting that the proposed rule establish safe and clean housing for
workers and their families, a minimum wage for workers, access to
healthy food, medical care, English language learning opportunities,
and education for both adult workers and their children. An individual
commenter stated, without elaboration, that H-2 workers should be well
compensated for their labor, must have adequate rest periods and
opportunities to organize for fair wages, and should have their living
conditions and safety monitored.
Response: DHS appreciates the broad support for efforts to protect
H-2 workers' rights. However, while DHS appreciates these holistic
analyses of the H-2 programs, DHS declines to make any changes in
response to these comments as they do not address specific elements
outlined in this rulemaking or suggest specific changes. Further,
issues involving housing standards, access to housing, H-2 wages,
access to healthy foods, and rest periods, generally are better
addressed by local, State, and Federal labor agencies such as DOL and
are outside
[[Page 103286]]
the scope of this rule. Similarly, other concerns with the need for
medical care, English language learning opportunities, and education
for both adult workers and their children, are outside the scope of
this rule.
Comment: An individual commenter requested that any employers who
abuse H-2 workers face swift prosecution.
Response: DHS is committed to protecting all workers from
exploitation and abuse. However, though it is not entirely clear what
the commenter was referring to, DHS notes that the term ``prosecution''
generally relates to criminal proceedings.\118\ As this rulemaking does
not directly involve criminal proceedings, the comment is beyond the
scope of this rulemaking.
---------------------------------------------------------------------------
\118\ Prosecution definition, Black's Law Dictionary (11th ed.,
2019).
---------------------------------------------------------------------------
Comment: A research organization requested that USCIS prioritize
the selection of H-2B petitions in industries with the greatest need
for workers in order to curtail fraud and abuse in the program.
Response: DHS appreciates the comment but is not making any changes
in response to this comment because the comment is beyond the scope of
this rulemaking. In any event, it is also unclear how an industry-based
H-2B prioritization scheme would curtail fraud and abuse in the
program.
2. Implementation
Comment: An advocacy group recommended developing a ``multi-pronged
communications strategy to ensure that workers are aware of the changes
related to worker flexibility and program integrity once implemented''
including clearly communicating all implemented changes related to
aligning admissions periods and grace periods to H-2 workers, ensuring
workers are aware they may stay in the United States for 60 days
following unexpected termination of H-2 employment and for 30 days
following the validity period of their H-2 contract. The commenter also
requested that DHS partner with worker leaders, organizers, and trusted
community organizations to communicate the changes in the proposed rule
as well as workers' rights in the United States more broadly.
Response: DHS has worked diligently to develop a communications
strategy in preparation for this final rule. After the publication of
this final rule, DHS will announce various stakeholder events it
intends to hold, which will be open to the public, to raise awareness
of the final rule.
Comment: An individual commenter encouraged USCIS to improve the
clarity and readability of the regulatory text through the use of plain
language, active voice, bullet points, lists, examples, and
illustrations. The commenter suggested, for example, that USCIS replace
terms such as ``petitioner,'' ``beneficiary,'' ``certifying officer,''
or ``administrative law judge'' with simpler terms, such as
``employer,'' ``worker,'' ``DHS official,'' or ``judge.'' The commenter
concluded that these adjustments would enhance the ability of employers
and workers to understand and comply with program regulations.
Response: DHS/USCIS is dedicated to improving its communications
with the public. We support the Plain Writing Act of 2010 and have an
internal plain language program.\119\ We strive to use plain language
where it is possible to do so; however, often times it is necessary to
use precise terms such as ``petitioner'' and ``beneficiary'' because
these are the words that appear in related and corresponding regulatory
text and have established meaning, and using alternate words would
introduce ambiguity or confusion.
---------------------------------------------------------------------------
\119\ USCIS, ``About Us: USCIS Plain Language,'' https://www.uscis.gov/about-us/uscis-plain-language (last viewed May 6,
2024).
---------------------------------------------------------------------------
3. Employer/Petitioner Requirements, Processes, and Fees
Comment: A professional association expressed support for the
provision in the proposed rule that would allow for the substitution of
H-2A beneficiaries after admission and urged the Department to extend
it to H-2B beneficiaries. The commenter said that not extending the
provision to H-2B employers would place them on a different footing
than H-2A employers and hinders H-2B employers who were looking for
foreign labor assistance because they could not find domestic labor.
Response: The provision at 8 CFR 214.2(h)(5)(ix) that allows
substitution of H-2A beneficiaries after admission is an existing
provision to which DHS did not propose substantive changes. Rather, DHS
proposed minor revisions to the provision to remove and replace the
negatively charged terms ``abscond'' and ``absconded'' with more
neutral terms. 88 FR 65040, 65068 (Sept. 20, 2023). Therefore, the
commenter's suggestion is out of scope of this rulemaking.
4. Validity Period and 3-Year Maximum Period of Stay
Comment: A research organization suggested that the Department
extend the 3-year maximum stay provision to 6 years, stating that
easing the maximum stay provision would increase the availability of H-
2 workers, reduce agency and employer burdens, and improve the
bargaining power of workers. The commenter elaborated that the current
limit imposes ``unnecessary burdens'' on agencies by requiring them to
vet a new group of workers to replace those subject to the 3-year
limit, which would expose the country to ``avoidable security risks.''
The commenter further elaborated that the current 3-year limit imposes
burdens on employers, as employers are harmed by turnover caused by
workers leaving the country during their jobs and are potentially
blocked from rehiring returning workers whom they have already trained
on their operations. The commenter also noted that workers nearing the
end of their stay would not be able to change employers, thus giving
their employers ``excessive leverage in setting wages and working
conditions.'' The commenter added that the current maximum limit on
stay exacerbates the shortage of H-2B workers because H-2B hires who
are already in the United States are exempt from the H-2B cap, and that
extending the maximum stay provision to 6 years would lead to a lower
portion of the H-2 workforce receiving extensions. The commenter also
added that the NPRM's grace periods proposal may radically increase the
percentage of workers who reach their 3-year limit. Finally, the
commenter stated that the NPRM's proposal to limit H-2 workers to a
maximum of 3 years with H-2 status unless they have departed the United
States for an uninterrupted period of 60 days has no basis in law.
Referencing the regulatory history associated with the 3-year limit,
and the statutory history of the 6-year limit applicable to the H-1B
classification maximum period of admission, the commenter concluded
that there is ``statutory ground'' for extending the provision to 6
years. Specifically, the commenter indicated that Congress had defined
``coming temporarily'' in the H-1B context as up to 6 years.
Response: DHS declines to extend the 3-year maximum period of stay
provision to 6 years. First, the NPRM did not propose to substantively
change the 3-year maximum period of stay, but rather, proposed to
eliminate the ``interrupted stay'' calculation and reduce the period of
absence to restart the 3-year maximum period of stay clock. Second, it
is not necessary to change this longstanding regulatory standard which,
as the commenter stated has existed since 1964,\120\ was
[[Page 103287]]
again referenced in the 1987 final rule, and is intended to ensure that
a person's stay in H-2 status is in fact temporary, as required under
section 101(a)(15)(H)(ii)(a) of the INA.\121\ DHS further disagrees
with the commenter that because Congress defined what ``coming
temporarily'' means for purposes of the H-1B program, this provision
should be applied in the H-2 context or provide support for similar
treatment of H-2s. There is no requirement that the maximum period of
stay for the H-2 classification be the same as that for the H-1B
classification.
---------------------------------------------------------------------------
\120\ 29 FR 11956, 11958 (Aug. 21, 1964). As promulgated in that
rulemaking, 8 CFR 214.2(h)(3), the header for which read,
``Admission and extension,'' stated ``An alien defined in section
101(a) (15)(H)(ii) of the Act shall not be granted an extension
which would result in an unbroken stay in the United States of more
than 3 years.'' It is notable that while this regulation generally
applied to all H classifications, the 3-year limit was specifically
applied only to H-2s.
\121\ ``Nonimmigrant Classes,'' 52 FR 20554, 20555 (June 1,
1987) (interim final rule codifying the 3-year limit noting that
``[t]here has traditionally been a three year limit on an H-2
alien's uninterrupted stay'').
---------------------------------------------------------------------------
The new provisions being finalized in this rule, including the
provisions to reduce the period of absence required to reset the
worker's maximum period of stay and provide portability flexibility
permanently, will alleviate many of the commenter's concerns about
rehiring returning workers, pressures on employers due to the H-2B cap,
and improving the bargaining power of workers. DHS does not agree with
the commenter's concerns about agency burdens. The maximum validity
period on an H-2 petition remains unchanged; each H-2 petition may only
be approved for a validity period not to exceed 1 year (except for an
H-2B petition approved for a one-time occurrence under 8 CFR
214.2(h)(6)(ii)(B)(1)). An employer seeking to employ an H-2 worker
beyond the end of the petition validity period would still have to file
another H-2 petition requesting an extension of stay for that worker.
USCIS would still need to adjudicate each extension petition, at which
time USCIS would screen the beneficiary for continued eligibility, and
thus keeping the 3-year limit would not lead to ``avoidable security
risks'' as suggested by the commenter.
J. Statutory and Regulatory Requirements
1. Administrative Procedure Act (APA)
Comment: Numerous commenters, including multiple trade
associations, a joint submission from numerous industry associations,
State Government agencies, and Federal elected officials, expressed
general disappointment with the lack of extension or requested a 30- or
60-day extension to the comment period for the proposed rule. Many
commenters reasoned that they and their members or constituents are
limited in their ability to review and provide meaningful feedback on
the proposed changes, as the comment period aligns with peak harvesting
season or peak seasonal business needs. Additionally, multiple
commenters reasoned that the comment period overlaps with multiple
recent administrative actions--including public comment opportunities
with the DOL and the USDA, and other agencies--that impact the same
stakeholders and that require input during or around the same period.
The commenters concluded that an extension would be necessary for the
regulated community to analyze the full impact of the proposed changes,
submit comments based on a comprehensive review of the rule, and
meaningfully participate in the rulemaking process. A trade association
expressed concern that because the proposed regulation does not
acknowledge the existing legal investigative and enforcement structure
for H-2 employment conditions, that the public cannot properly evaluate
or comment on the proposal.
Response: As DHS noted in a November 3, 2023, letter that it posted
to the rule's electronic docket (USCIS-2023-0012) for public viewing,
DHS takes seriously the requirements under the Administrative Procedure
Act to provide an opportunity for members of the public to participate
in the rulemaking process by submitting data, views, or arguments on
the proposed agency action. In that letter, DHS stated that it decided
not to extend the comment period beyond 60 days, that is, past November
20, 2023, the last day of the comment period, noting that a 60-day
comment period is generally considered sufficient for the public to
provide input in response to proposed rulemaking actions. DHS has
provided 60 days for public comment for other comprehensive rulemakings
like this one in the past, and that duration has routinely been
sufficient as evidenced by the volume and substance of public comments
received. The letter emphasized that DHS believes the 60-day comment
period for the 2023 H-2 NPRM provides sufficient time and a reasonable
opportunity for the public to comment. DHS noted too that USCIS had
engaged stakeholder groups over the past several years and incorporated
comments and suggestions from these engagements into the 2023 H-2 NPRM.
As stated above, some commenters raised specific concerns with the
comment period because it aligned with peak harvesting season or
certain peak seasonal business needs, and because it overlapped with
public comment opportunities for administrative actions by other
agencies that could impact the same stakeholders. While the noted
circumstances may have rendered the 60-day comment period a busier time
for certain stakeholders, DHS believes it was sufficient to afford the
public a meaningful opportunity to participate in the rulemaking
process. Indeed, neither of these circumstances appears to have limited
the public's ability to meaningfully engage in the notice and comment
period. DHS notes that nearly two thousand commenters--including many
stakeholders impacted by the harvest season and other agencies'
administrative actions--submitted substantive comments during the 60-
day comment period.
Comment: Several commenters, including an advocacy group, a
professional association, and a business association, expressed
appreciation for the opportunity to meaningfully comment on the
proposed rulemaking. A joint submission from a union and numerous
advocacy organizations urged USCIS to expedite finalization of the rule
immediately following the standard 60-day comment period.
Response: DHS appreciates these commenters' support and the
significant response and feedback it received on the published H-2
NPRM. Given the importance of the issues addressed herein, DHS has
worked diligently to timely finalize the rule after carefully reviewing
public comments and making appropriate changes based on public
feedback.
Comment: A few commenters, including an advocacy group, a trade
association, and a business association, urged USCIS to engage
stakeholders more generously, such as through providing more details
for comment, publishing another notice to the Federal Register with
more detail, or other direct communication with stakeholders. One of
these commenters indicated that the NPRM lacked sufficient explanation
of the prohibited fees and denial provisions needed to properly apprise
stakeholders of what is to be expected of them under this proposed
rule. A State Government agency recommended USCIS offer forums for
recruiters or hirers of foreign workers to express concerns earlier in
the rulemaking process.
Response: DHS appreciates the suggestions from these commenters but
disagrees that the NPRM lacked specificity necessary to apprise
stakeholders of how the various proposal would operate or what would
[[Page 103288]]
be required of the public to comply. Nonetheless, as discussed in the
section addressing, for example, prohibited fees, DHS has further
refined these provisions to address requests for further clarification
received from commenters, and has made other responsive edits to the
regulation in response to public comments. The number and quality of
public comments received on the NPRM further demonstrate that most
commenters both understood the proposals and were able to provide
salient feedback on those proposals. Therefore, DHS believes that the
opportunity for notice and comment has been sufficient. In addition,
following publication of the final rule, DHS will consider ways to
effectively engage the regulated community on its new H-2 provisions
and provide further guidance, if needed, to assist program participants
with compliance.
Comment: A joint submission from former DHS senior officials stated
that the proposed rulemaking violates the APA as it is ``both arbitrary
and capricious'' and because USCIS must consider alternative options.
Response: DHS disagrees that the proposed changes in the NPRM,
which are finalized in this rule, are arbitrary, capricious, and fail
to consider alternatives. The NPRM and this final rule provide a
reasonable basis for each of the changes proposed and made. To the
extent possible and available, DHS has cited studies and data in
support of the proposed changes and has used available data to assess
the impact of the proposals, and where applicable, regulatory
alternatives. In addition, where possible, DHS generated and considered
specific alternative approaches to the changes made and explained why
it was not proposing such alternatives. For example, DHS explained that
rather than eliminating the eligible country list as proposed, it
considered keeping the list in place until it is replaced by a new list
and extending the timeframe for review from every 1 year to every 2
years. It then explained the shortcomings of this alternative as
reasons for not proposing it. 88 FR 65040, 65070 (Sept. 20, 2023). In
addition, 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. Ultimately, DHS
chose not to 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. 88 FR 65040, 65072. In addition, in the Initial
Regulatory Flexibility Analysis in the NPRM, DHS discussed alternatives
to the proposed regulation.\122\
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\122\ 88 FR 65040, 65098, subsection f, (Sept. 20, 2023).
(``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.'').
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Finally, in this final rule, DHS has considered and addressed
alternatives proposed by commenters. For example, in this final rule
DHS explains why it is not adopting the alternatives commenters
proposed to the elimination of the exception to the prohibition on
charging workers fees. As explained more fully in the responses to
comments relating to prohibited fees, the prohibited fee provisions in
this final rule are intended to complement DOL rules. DHS also
explained how inconsistency between DHS's and DOL's H-2 rules may cause
confusion and could discourage law-abiding employers from using the H-2
program to address labor shortages. As discussed elsewhere in this
preamble, this final rule further clarifies the employer obligations
related to prohibited fees to ensure that employers understand what is
expected of them and are not discouraged from using the H-2 program to
fill their legitimate temporary need for workers.
2. Regulatory Impact Analysis (RIA) (E.O. 12866 and E.O. 13563)
a. Impacts on Nonimmigrants/Workers or Their Representatives
Comment: An advocacy group responded to the request for comment on
``the prevalence, population, and cost of prohibited fees and their
impacts on H-2 workers.'' The advocacy group stated that despite
regulations prohibiting the requesting or receiving of payments or
recruitment fees from workers in exchange for activity related to H-2A
employment, workers are still vulnerable to fraud. The commenter
provided an example of H-2A workers being asked to pay recruitment fees
of between $3,000 and $4,000 per person as a condition for their
employment. The commenter also referenced other federal court cases and
reports of recruiters or employers charging prohibited fees, and
referred to statistics suggesting the average payment issued by workers
is $590 per person.\123\ The advocacy group added that predatory
actions such as charging workers prohibited fees can contribute to
human trafficking, because H-2A workers often arrive to the United
States in debt from unreimbursed costs and fees, putting them at
greater risk of trafficking.
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\123\ As examples of the reports of prohibited fees, the
commenter citedUlloa v. Fancy Farms, Inc., 762 Fed. Appx. 859 (2019
U.S. App.), Palma Ulloa v. Fancy Farms, Inc., 274 F. Supp. 3d 1287
(2017 U.S. Dist.), and ICE, ``3 Indicted In Immigration Fraud Scheme
That Exploited Immigrant Farm Workers By Charging Prohibited Fees
For Visas, Living Expenses'' (May 17, 2018), https://www.ice.gov/news/releases/3-indicted-immigration-fraud-scheme-exploited-immigrant-farm-workers-charging. As support for the statistics
suggesting an average prohibited fee payment of $590, the commenter
cited to Centro de los Derechos del Migrante, ``Recruitment
Revealed'' (2018), https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf.
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Response: DHS appreciates the commenters' input regarding the
average amount of prohibited fees H-2 workers are being asked to pay.
While DHS cannot independently verify the provided statistics, the
input is nevertheless valuable as generally demonstrating the
prevalence of the practice of charging prohibited fees despite current
regulations that prohibit them. This final rule attempts to mitigate,
to the extent possible, the harm to H-2 workers resulting from the
imposition or threat of prohibited fees by those engaged in the
practices described by the commenters.
b. Impacts on Employers/Petitioners or Their Representatives
Comment: An attorney remarked that while 88 FR 65040, 65045, n. 1
(Sept. 20, 2023) states that ``USCIS does not expect any additional
costs to H-2B employers as, generally, they do not have to provide
housing for workers,'' amusement industry employers have had to bear
additional costs related to housing provision since 2016. The commenter
then stated that USCIS has not conducted a cost-benefit analysis on
this matter.
Response: DHS acknowledges that, while there is no statutory
requirement for H-2B employers to provide housing, there are regulatory
prohibitions against deductions from wages for the cost of housing by
an H-2B employer when it is provided primarily for the benefit or
convenience of the employer, such as in the context of an employer with
a need for a mobile workforce. See 20 CFR 655.20(b), (c); 29 CFR
531.3(d)(1); 80 FR 24042, 24063 (Apr. 29, 2015). This rule's regulatory
impact analysis of costs and benefits is being revised to acknowledge
that certain H-2B employers in this limited scenario may face
additional costs such as for housing, but because DHS does not have
data on the population of H-2B employers that this provision would
affect at this granular of a level, monetized impacts cannot be
estimated.
[[Page 103289]]
Comment: An association of State Governments expressed concern that
the proposed rule could cause administrative delays to the H-2B program
and higher costs for agricultural employers. In particular, the
association suggested that a shortage of labor exacerbated by the
proposed rule could cause producers to turn to producing less labor-
intensive agricultural products or turn the costs of restructuring
their businesses onto consumers.
Response: It is speculative that this rule will exacerbate labor
shortages and cause higher costs for agricultural employers and
consumers. It is also speculative that this rule will cause
administrative delays to the H-2B program. Insofar as the rule codifies
new requirements for petitioners and new protections for workers, it
does so in furtherance of program integrity.
c. Impacts on Small Entities (Regulatory Flexibility Act, Initial
Regulatory Flexibility Analysis (IRFA))
Comment: An association of State Governments expressed concern that
the proposed rule would adversely impact small agricultural employers
who may lack resources needed to understand the regulatory requirements
of the H-2 program. The commenter urged USCIS to specifically contact
small entities to describe the proposed changes. A trade association
remarked that small employers who rely on agents for recruiting workers
and unintentionally violate the proposed stricter standards for
prohibited fees could be disproportionately harmed, and some small
growers could be put out of business.
Response: DHS appreciates the comment but declines to contact all
possibly affected small businesses. DHS emphasizes that all regulatory
requirements and procedures will be explained and analyzed through
multiple channels (the promulgation of this rule as evidenced by
publication after consideration of comments received during the notice
and comment period, relevant form instructions, and established
communication materials such as the ``Small Entity Compliance Guide'').
Additionally, DHS believes that marginal burdens being placed on small
entities in order to ensure that they comply with program requirements
and worker protections is justified by the benefits of increased
program integrity (as discussed above in the preamble).
d. Impacts on the Economy, U.S. Citizens/Taxpayers/Consumers
Comment: A research organization expressed concern that USCIS does
not provide an impact assessment of the proposed permanent and expanded
portability in the NPRM, stating that this prevents the public from
comprehending the impact of the proposed rule on the U.S. labor market.
Response: The comment that the NPRM did not provide an impact
assessment of the proposed permanent and expanded portability is
inaccurate. In the NPRM, DHS provided a detailed explanation of the
expected impact of the portability provision. 88 FR 65040, 65044,
65084-65089 (Sept. 20, 2023). Additionally, in this final rule DHS is
has provided additional data showing the number of approved H-2B
petitions and beneficiaries extending stay with and without a change in
employer pursuant to the commenter's request (see Table 2 and Table 3,
respectively).
Comment: A joint submission of former DHS senior officials stated
that the economic analysis in the NPRM does not consider administrative
costs of the proposed rule on U.S. workers, namely that the average
wage for H-2B workers is lower than the national mean wage in several
job categories. The joint submission remarked that this could make H-2B
employees more favorable to employers than U.S. citizens.
Response: DHS appreciates the comment but disagrees with the
commenters' conclusions regarding H-2B wages and making H-2B workers
more favorable to employers than U.S. citizens. A certified TLC issued
by the DOL is a necessary condition for the approval of a Form I-129
petition for H-2B workers. The TLC certifies that the employer has
already attested and demonstrated that a qualified U.S. worker was not
available to fill the petitioning H-2B employer's job opportunity and
that the H-2B worker's employment in said job will not 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).
K. Out of Scope
DHS received numerous comments that were unrelated to the proposed
revisions in the NPRM. Many of these comments would require
Congressional action or additional regulatory action by DHS that was
not proposed in the NPRM. Other comments suggested revisions within the
purview of DOL or other Federal, State, or local agencies.
Although DHS has summarized the comments it received below (and in
some cases, noted them above), DHS is not providing substantive
responses to those comments as they are beyond the scope of this
rulemaking. Comments from the public outside the scope of this
rulemaking concerned the following issues:
Comments specifically regarding DOL's rulemaking for H-2A
workers, or comments specifically directed to DOL asking them to
undertake certain actions;
Suggestions related to H-2 wages, such as increasing H-2
wages or that farm workers should receive 8 hours of pay for a 4-hour
workday;
Comments to improve or expand the functionality of DOL's
website, SeasonalJobs.dol.gov, or another similar resource to
facilitate H-2 workers seeking new jobs;
Comments asking DHS to engage in interagency efforts with
DOJ, the Equal Employment Opportunity Commission, and the Department of
Housing and Urban Development, in addressing discriminatory
recruitment, labor trafficking, retaliation, and substandard housing;
Comments to improve DOS's visa process;
A suggestion that DOL allow certifications of H-2A and H-
2B recurring jobs for up to 3 years, which would allow DHS to approve
these workers' status for up to 3 years;
A suggestion that DHS reduce the number of petitions an
employer needs to make for a given season, including increasing the
number of beneficiaries allowed per petition from 25 workers to at
least 35 workers;
Comments advocating for domestic solutions to the aging
services staffing crisis, including a guest worker program for
eldercare healthcare providers;
Comments about increasing filing fees for H-2 petitions;
Suggesting that ``employers without violations in the
previous 5 years should be able to receive a 3-year labor certification
rather than a single-year certification;''
A request that DHS consider permitting for-profit, non-
attorney agents who are not eligible to file a Form G-28, Notice of
Entry of Appearance, to communicate with USCIS on behalf of employers
if authorized to do so, and allow partial accreditation for this
purpose;
Comments about the annual statutory cap for H-2B visas;
Comments about the exclusion of certain occupations from
the H-2B program;
[[Page 103290]]
General concerns with unauthorized immigration and its
negative impacts on the United States;
A request to close the U.S. southern border and force
individuals who entered without authorization to work;
A request to adjust fees based on the size or type of the
employer, allocate visas based on employer and worker needs, and expand
the list of eligible occupations based on market demand or worker
availability;
Requests to create a pathway to citizenship;
Requests to create a clear path to ``legal permanent
residency'' in the United States for H-2 workers;
Suggestion to create a renewable seasonal visa;
Comments about deferred action or parole;
Comments about an ICE policy memorandum relating to
enforcement actions in or near protected areas;
Requests to authorize work employment for spouses of H-2
workers;
Suggestions to make year-round work easier, including
allocating a certain number of year-round temporary visas and
increasing the 2-week maximum period for emergent circumstances for H-
2A workers;
Suggestions to create a way for H-2 workers to self-
petition for their visas and connect directly with certified employers
through a multilingual, government-hosted database of available jobs.
V. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review) and Executive
Order 13563 (Improving Regulation and Regulatory Review)
Executive Orders 12866 (Regulatory Planning and Review), as amended
by Executive Order 14094 (Modernizing Regulatory Review), and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. 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'' under section 3(f) of Executive
Order 12866, as amended by Executive Order 14094, however it is not
significant under section 3(f)(1) because its annual effects on the
economy do not exceed $200 million in any year of the analysis.
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 final 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
final 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 Final Rule
This final rule will 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 will 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 final rule
will be approximately $16,905,113 to $22,607,100 (undiscounted). DHS
estimates the annualized costs of this final rule will range from
$1,825,104 to $2,438,679 at a 3-percent discount rate and $2,014,389 to
$2,686,606 at a 7-percent discount rate. In addition, DHS expects the
rule will result in transfers from consumers to a limited number of H-
2A and H-2B workers who may choose to supply additional labor
(consumers pay for the goods made available by the marginal labor
provided). The total annualized transfer amounts are estimated to be
$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 final rule's portability
provision constitute a transfer of $884,180 from petitioners of porting
workers to USCIS (3- and 7-percent annualized equivalent).
Certain petitioners may also incur other costs that are difficult
to quantify. 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 for charging prohibited fees, and/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 that are found to be noncompliant
with the provisions of the rule or other existing authorities (for
example, H-2 program violators subject to mandatory and discretionary
grounds for denial) 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 final rule will be diverse, though most are
difficult to quantify. The final 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 will also benefit
from the
[[Page 103291]]
extended grace periods, the permanent ability to port, the
clarification that employers who employ porting workers must continue
to abide by all H-2 requirements regarding worker benefits and
protections, and the elimination of the interrupted stay provisions and
instead reducing the period of absence out of the country to reset the
3-year maximum period of stay. The Federal Government will 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 4 provides a
more detailed summary of the final provisions and their impacts.
BILLING CODE 91111-97-P
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BILLING CODE 91111-97-C
Furthermore, a limited number of changes have been made to the
final rule relative to the NPRM. First, the final rule has been updated
to reflect the publication of the USCIS Fee Rule.\124\ Second, the
final rule has been updated to reflect the publication of the most
recent H-2B Supplemental Cap Temporary Final Rule.\125\ Both updates
affected the final rule's costs and transfers due to changes to the
analytical baseline depicting the world absent the impacts of this rule
rather than policy changes from the NPRM. Additionally, some small
methodological changes were made to the calculation for the number of
marginal Form I-129 filings due to the rule's portability provision.
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\124\ See ``U.S. Citizenship and Immigration Services Fee
Schedule and Changes to Certain Other Immigration Benefit Request
Requirements; Final Rule,'' 89 FR 6194 (31 Jan. 2024).
\125\ See ``Exercise of Time-Limited Authority to Increase the
Numerical Limitation for FY 2024 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers; Temporary Final Rule,'' 88 FR
80394 (17 Nov. 2023).
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3. Summary of Comments Related to the Regulatory Impact Analysis and
Associated Responses
DHS requested comments from the public on several topics discussed
in the NPRM. Several of those comments discussed issues related to the
regulatory impact analysis and the economic impacts of the rule. These
comments, and their responses, are discussed at length in the preamble
but, in the interest of transparency, are also discussed here.
a. Impacts on the Economy, U.S. Citizens/Taxpayers/Consumers
Comment: A research organization expressed concern that USCIS does
not provide an impact assessment of the proposed permanent and expanded
portability in the NPRM and that, in failing to do so, USCIS prevents
the public from comprehending the impact of the proposed rule on the
U.S. labor market.
Response: The comment that the NPRM did not provide an impact
assessment of the proposed permanent and expanded portability is
inaccurate. In the NPRM, DHS provided a detailed explanation of the
expected impact of the portability provision. 88 FR 65044, 65084-65089
(Sept. 20, 2023). Additionally, in this final rule DHS has provided
additional historical data showing the number of approved H-2B
petitions and beneficiaries extending stay with and without a change in
employer (see Table 2 and Table 3, respectively) pursuant to the
commenter's request.
Comment: A joint submission of former DHS senior officials stated
that the economic analysis in the NPRM does not consider administrative
costs of the proposed rule on U.S. workers, namely that the average
wage for H-2B workers is lower than the national mean wage in several
job categories. The joint submission remarked that this could make H-2B
employees more favorable to employers than U.S. citizens and therefore
could have negative impacts on the domestic labor force.
Response: DHS appreciates the comment but disagrees with the
commenter's conclusions regarding H-2B wages and making H-2B workers
more attractive relative to the domestic labor force. A certified TLC
is a necessary condition for the approval for a Form I-129 for H-2B
workers and, as such, any prospective H-2B employer has legally
attested that they have already attempted to hire domestic labor and
that any H-2B beneficiaries will not adversely impact wages and working
conditions of similar workers already in the United States.\126\
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\126\ See 20 CFR 655.1(a); see also INA sec. 214(c)(1), 8 U.S.C.
1184(c)(1); 8 CFR 214.2(h)(5)(i)(A) and (ii), (h)(6)(iii)(A), and
(h)(6)(v).
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Comment: A research organization expressed concern that the NPRM
does not discuss important aspects of the H-2B program, including
extensions of stay, and therefore does not properly address the
``true'' size of the program. The commenter discussed concerns
regarding publicly available data and that the program has grown beyond
its statutorily mandated parameters.
Response: DHS appreciates the comment but notes that much of the
comment's substance focuses on aspects of the H-2 program that would
not be affected by the rule and therefore should not be considered as
an impact of the rule. DHS provided an in-depth analysis regarding the
annual impacts of the final rule's portability provision. Furthermore,
DHS also provided additional data in this final rule to address the
commenter's concerns regarding extensions of stay (see Table 2 and
Table 3). In summary, the Department did not receive comments related
to the RIA or the rule's economic impacts that necessitated changing
the population calculation methodology or analytical content of the RIA
present in the NPRM.
4. 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 final 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 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 nature,
which may be a one-time occurrence, a seasonal need, a peakload need,
or an intermittent need.\127\ 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 Form I-129, Petition for a Nonimmigrant Worker,
with DHS. The temporary nature of the services or labor described on
the approved TLC is subject to DHS
[[Page 103300]]
review during adjudication of Form I-129.\128\
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\127\ See 8 CFR 214.2(h)(6)(ii).
\128\ 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.129 130 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.\131\
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\129\ See INA sec. 214(g)(1)(B), (g)(10), 8 U.S.C.
1184(g)(1)(B), (g)(10).
\130\ In addition to the statutorily available 66,000 H-2B visas
per fiscal year, DHS and DOL have also generally provided
supplemental visas when granted that authority by Congress. See,
e.g., 88 FR 80394.
\131\ 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).
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5. Population
The final rule will impact petitioners (employers) that file Form
I-129 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 rule
also will 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 described
in this final rule, does not include transferring from one H-visa
classification to another such as, for example, transferring from a H-
2A nonimmigrant status to an H-2B nonimmigrant status, 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
provision will 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.\132\ Portability allows H-
2A and H-2B workers to continue to earn wages and gaining employers to
continue obtaining necessary workers. Table 5 and Table 6 present the
total populations this final rule would impact. For provisions
impacting a subset of these populations, the analysis provides separate
population totals, when possible, for more specific analysis.
---------------------------------------------------------------------------
\132\ 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).
[GRAPHIC] [TIFF OMITTED] TR18DE24.015
As shown in Table 5, 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.\133\
The number of beneficiaries also increased over this 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 compared to petitions received and approved. On average,
13,722 H-2A petitions were received for an average 240,853
beneficiaries and 13,504 H-2A petitions
[[Page 103301]]
were approved for an annual average of 234,865 beneficiaries.
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\133\ DHS notes that the number of filed H-2A petitions has
grown by a compound average growth rate of approximately 12.76
percent between FY2013 and FY2022. DHS acknowledges that potential
costs may be underestimated in this analysis if historical growth
rates continue.
\134\ This number includes workers who are exempt from the H-2B
cap and those who were approved under any applicable temporary
supplemental cap. This number reflects the number of H-2B workers
who are in petitions that have been approved by DHS (including ones
that have not yet been issued an H-2B visa or otherwise acquired H-
2B status).
[GRAPHIC] [TIFF OMITTED] TR18DE24.016
Table 6 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.\135\ 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.\136\ Whereas the exact statutory limits (including any
supplemental limits) on H-2B visas are unknown for FY 2025 and beyond,
the receipts and approvals seen in FY 2022 are assumed to be a
reasonable estimate of future H-2B petitions and beneficiaries.
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\135\ 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 86 FR
28202 (May 25, 2021).
\136\ On November 17, 2023, DHS made available to employers an
additional 64,716 H-2B temporary nonagricultural worker visas for
fiscal year 2024. See 88 FR 80394.
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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.\137\ The supplements allocate additional visas for nonimmigrants
who may be granted H-2B nonimmigrant status in each half of a fiscal
year.\138\
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\137\ 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; Public Law 118-15,
Continuing Appropriations Act, 2024 and Other Extensions Act,
Division A, sections 101(6) and 106 (extending into 2024 DHS funding
and other authorities, including the authority to issue supplemental
H-2B visas that was provided under title III of Division O of Pub.
L. 117-328, through November 17, 2023).
\138\ See INA sec. 214(g)(1)(B), (g)(10), 8 U.S.C.
1184(g)(1)(B), (g)(10).
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6. Cost-Benefit Analysis
The provisions of this final 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, the final rule will:
(1) provide clearer requirements for USCIS compliance reviews and
inspections; (2)
[[Page 103302]]
provide H-2A and H-2B workers with ``whistleblower protections;'' (3)
include provisions relating to prohibited fees; and (4) institute
certain mandatory and discretionary grounds for denial of an H-2A or H-
2B petition. We address each of these provisions in turn below.
(1) USCIS Compliance Reviews and Inspections
The final rule includes provisions that codify USCIS' authority to
conduct compliance reviews and inspections within the H-2A and H-2B
programs, clarify the scope of such reviews and 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 FDNS conducts is mandatory, if an inspection is conducted,
this provision will make the successful completion of an inspection
required for a petition's approval.\139\ Inspections can include site
visits, telephone interviews, or correspondence (both electronic and
mail).\140\ This regulatory change will apply to both pre- and post-
adjudication petitions, which will codify USCIS' ability to either deny
or revoke petitions accordingly. This final rule will provide USCIS
with a greater ability to obtain compliance from petitioners and
employers. Outside of this final 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 later fiscal years.
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\139\ 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.
\140\ 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 87 FR 76816 (Dec.
15, 2022).
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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 pilot
program in FY 2018 and FY 2019 in which USCIS conducted site visits and
inspections at 364 (randomly selected) H-2B employment sites.\141\ 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).\142\ On average, each site visit took 1.7 hours.\143\ 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' ability to verify information about employers and workers, and
the overall conditions of employment.
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\141\ 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.
\142\ 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.
\143\ Data from USCIS FDNS, Reports and Analysis Branch.
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This final rule will 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 to the petitioner
having to expend 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.
However, DHS expects the benefit of participation in the H-2 program
would outweigh these costs. Additionally, employers who do not
cooperate would face denial or revocation of their petition(s), which
could result in costs to those businesses.
DHS does not expect this provision to result in additional costs to
the Federal Government because it will not require additional resources
or time to perform compliance reviews and inspections and, at the same
time, USCIS is not seeking 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 will have regulations to
clearly refer to its existing authority to deny or revoke a petition if
unable to verify information related to the petition. Additionally,
existing USCIS program integrity activities will be made more effective
by additional cooperation from employers. More effective program
integrity activities may benefit domestic workers, compliant
petitioners, and H-2 workers.
(2) Whistleblower Protections
This final rule provides H-2A and H-2B workers with ``whistleblower
protections'' comparable to the protections currently offered to H-1B
workers.\144\ For example, if an H-1B worker: (1) is a beneficiary of a
petition seeking to extend their H-1B status or change their
nonimmigrant status; (2) indicates that they faced retaliatory action
from their employer because they reported a labor condition application
violation; and (3) lost or failed to maintain their H-1B status related
to such violation, 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 loss or failure to maintain H-1B status on a case-by-case basis.
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\144\ 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.
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DHS does not currently have specific data related 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 populations.\145\
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
[[Page 103303]]
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.
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\145\ WHD prohibits retaliation and publishes fact sheets and
other resources online. See, e.g., WHD, ``Retaliation,'' https://www.dol.gov/agencies/whd/retaliation (last visited Jun. 17, 2024);
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; WHD, ``Fact Sheet
#78H: Retaliation Prohibited under the H-2B Temporary Visa
Program,'' https://www.dol.gov/agencies/whd/fact-sheets/78h-h2b-retaliation-prohibited (last visited Jun. 17, 2024).
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(3) Prohibited Fees
The final rule includes provisions relating to prohibited fees that
strengthen the existing prohibitions on, and consequences for, charging
certain fees to H-2A and H-2B workers, including new grounds for denial
for some H-2 petitions. The economic impacts of these 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' 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.\146\ 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.\147\ 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.\148\ 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.\149\ 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.
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\146\ Information from email discussions. See DOS Emails
Re_Prohibited fees (H-2) (Sept. 19, 2022).
\147\ Id.
\148\ Workers have a disincentive to report prohibited fees
since regulations stipulate that a visa should be denied to those
admitting to paying these fees.
\149\ 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.\150\ 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.\151\
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\150\ Id.
\151\ 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 are 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.\152\ Since data on the prevalence of prohibited fees are 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.\153\ If we assume 58 percent of beneficiaries pay an
average fee of $900,\154\ 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.\155\ 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 final rule provision seeks to minimize the
occurrence and burden of prohibited fees on H-2 beneficiaries.
---------------------------------------------------------------------------
\152\ See Centro de los Derechos del Migrante, ``Recruitment
Revealed: Fundamental Flaws in the H-2 Temporary Worker Program and
Recommendations for Change,'' https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf (last accessed Mar. 31,
2023).
\153\ FY 2022 Total H-2A beneficiaries 415,229x0.58=240,833
(rounded); FY 2022 Total H-2B beneficiaries 185,700x0.58=107,706
(rounded).
\154\ We take an average of the range provided by the consular
office in Mexico: ($800+$1000)/2=$900.
\155\ Calculations: Half of FY 2022 H-2A beneficiaries
240,833x$900 fee = $216.7 million (rounded); Half of FY 2022 H-2B
beneficiaries 107,706x$900 fee=$96.9 million (rounded).
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It is difficult to estimate the specific impacts that this
regulatory change will 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 that are to be implemented with 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 final rule, there will be additional unquantifiable and non-
monetizable reductions in indenture and harms from other more serious
abuses such as those discussed in section III, Background. Furthermore,
the more effective and consistent application of provisions regarding
prohibited fees will benefit domestic workers, compliant petitioners,
and H-2 beneficiaries by reducing the ability of noncompliant firms to
abuse the H-2 programs.
(4) Mandatory and Discretionary Grounds for Denial
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 will institute certain mandatory and discretionary
grounds for denial of an H-2A or H-2B petition. The impacts of these
provisions 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, DHS has data on current DOL
debarments.\156\ DHS 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
[[Page 103304]]
debarment and petitioner information to assist in adjudications. For
the period of debarment, a petition covered by the debarment cannot 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.
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\156\ Please note that impacts from this provision are based on
debarment data from DOL. DHS cannot accurately estimate the impact
of other mandatory and discretionary denials due to a lack of data,
as explained in this section.
---------------------------------------------------------------------------
Costs under this provision of the final rule will be borne by such
petitioners or their successor in interest through denials that
preclude participation in the H-2 program during the debarment period
which can range between 1 to 5 years. More petitioners may face
financial losses as a result of these new grounds for denial because
they may lose access to labor for extended periods. While DHS expects
program participants to comply with program requirements, however,
those who do not could experience significant impacts due to this final
rule such as experiencing too few workers, loss of revenue, and
possibly going out of business.
DHS also notes that the final rule encompasses more than debarments
as grounds for mandatory or discretionary denials, including but not
limited to USCIS findings of fraud or willful misrepresentation,
violation(s) under section 274(a) of the Act, the revocation of an
approved TLC, and final revocations by USCIS on the basis of a variety
of prohibited behaviors. However, DHS does not have data on the total
population of employers that these mandatory and discretionary denial
provisions would affect at this granular of a level, or what the impact
of potential economic losses could be given the heterogeneity of H-2
employers and the specific fact-patterns in each instance where new
mandatory or discretionary grounds for denial could apply.\157\
Monetized impacts therefore cannot be estimated. Although monetized
impacts cannot be estimated, DHS expects these provisions to provide
various benefits. For instance, DHS expects that the final rule will
hold certain petitioners more accountable for violations, including
certain findings of labor law and other violations, and will result in
fewer instances of worker exploitation and safer working environments
for beneficiaries. As is the case with other program integrity
provisions of the final rule, DHS believes that these provisions
benefit H-2 workers directly and benefit domestic workers and compliant
petitioners indirectly by reducing the ability of noncompliant firms to
abuse the H-2 programs.
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\157\ For example, DHS possesses limited data from DOL on H-2B
violators with violation findings in FY 2020 through FY 2023 as a
result of the H-2B TFRs from FY 2022 through FY 2024. DOL Wage and
Hour Division publishes enforcement data on several worker programs
at https://enforcedata.dol.gov/homePage.php. This data alone cannot
reliably predict how many of these employers might be subject to a
discretionary denial under this rule, because DHS will apply
multiple factors to consider whether to approve or deny a petition,
as noted above. Furthermore, these data cannot be relied upon here
to determine the possible population of violators because the
parameters of the violations are more limited than the violations
that could be covered under the new discretionary provision.
---------------------------------------------------------------------------
The Federal Government may experience costs associated with
implementing these provisions. Specifically, USCIS adjudicators may
require additional time associated with reviewing petitioner
information relating to debarment by DOL (in the case of H-2A and H-2B
debarments) and GDOL (in the case of H-2B debarments), and other
determinations of past violations more closely (as they will 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 expansion of grounds for denial based on
debarment as well as the need to improve the way debarments are tracked
in current USCIS systems would require additional inter-agency
coordination and information sharing.
b. Worker Flexibilities
This final rule provides 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 will provide increased flexibility for H-2 workers by extending
grace periods. Workers will not experience an increase in work time due
to these extended grace periods because these grace periods do not
authorize employment. More specifically, this rule will 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 updated initial grace period will also
apply to their dependents in the H-4 visa classification. DHS 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 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.\158\ However, since H-2A employers pay
for and normally arrange transportation to the worksite, DHS assumes
employers will 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. DHS will also extend the 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. DHS 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. Furthermore,
DHS notes that while there is no statutory requirement for H-2B
employers to provide housing, there are regulatory prohibitions against
deductions from wages for the cost of housing by an H-2B employer when
it is provided 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). DHS acknowledges that H-2B employers who are
subject to this provision may face additional costs if they opt to keep
[[Page 103305]]
workers in the United States for a longer period due to the extended
post-validity grace period. DHS does not have data on the population of
employers that this provision would affect at this granular of a level,
however, so monetized impacts cannot be estimated. Therefore, the
population that may be affected by this provision is unknown due to a
lack of available data. Lack of data notwithstanding, DHS does not
expect any significant additional costs to accrue to employers as this
final rule will extend only the H-2B grace period and, except for the
limited scenario described above, H-2B employers 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
will 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 provision will 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.
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\158\ 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 (last visited Jun. 17,
2024).
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DHS will also 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. DHS 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 will 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.
(2) Transportation Costs for Revoked H-2 Petitions
This final rule adds language clarifying that upon revocation of an
H-2A or H-2B petition, the petitioning employer will be liable for the
H-2 beneficiary's reasonable costs of return transportation to their
last place of foreign residence abroad. Under 20 CFR 655.20(j)(1)(ii)
and 20 CFR 655.122(h)(2), as well as prior 8 CFR 214.2(h)(6)(i)(C) and
existing 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 final change will not 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
This final rule clarifies 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 7. Historical receipts data for
Form I-485 (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.
[GRAPHIC] [TIFF OMITTED] TR18DE24.017
DHS 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 certain steps toward lawful
permanent residence with the ability to do so without concern over
becoming ineligible for H-2 status. This final rule will not expand the
underlying eligibility of H-2 workers for lawful permanent resident
status.
(4) Portability
This final rule permanently provides 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 will
provide stability and job flexibility to the beneficiaries of approved
H-2 visa petitions. This portability provision facilitates 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, the final rule clarifies 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.
[[Page 103306]]
Previously, portability was available on a permanent basis to H-2A
workers, but it was limited to E-Verify employers.\159\ 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.\160\ 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 final rule, employers petitioning for a porting
H-2A worker will no longer need to be enrolled in E-Verify, but will
remain subject to all program requirements based on the approved TLC
and the filing of the H-2 petition.
---------------------------------------------------------------------------
\159\ While unrelated to this final rule, we note that on April
20, 2020, a TFR was 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 TFR was effective from April 20, 2020, through August 18, 2020.
See 85 FR 21739. 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 85 FR 51304.
\160\ 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 requirement could
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 will not realize cost savings of these
expenses since they previously incurred enrollment costs and will
continue to participate in webinars and incorporate any new E-Verify
features and system changes regardless of this final rule.\161\
Additionally, DHS expects that only those employers who enroll for the
explicit purpose of petitioning on behalf of a porting employee will
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 final rule. For employers currently
enrolled in E-Verify that choose to hire an H-2A worker, the final rule
will 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 (MOU).\162\ Therefore,
with or without the final rule, an employer already enrolled in E-
Verify that chooses to hire a porting H-2A worker will continue to
incur the opportunity cost of time to confirm the employment
authorization of any newly hired employees.
---------------------------------------------------------------------------
\161\ 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.
\162\ See DHS, ``About E-Verify, Questions and Answers,''
https://www.e-verify.gov/about-e-verify/questions-and-answers?tid=All&page=0 (last updated Sept. 15, 2022).
---------------------------------------------------------------------------
Participating in E-Verify and remaining in good standing requires
employers to enroll in the program online,\163\ 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.\164\ If an employer violates the terms of this
agreement, it can be grounds for immediate termination from E-
Verify.\165\ Additionally, employers are required to designate and
register at least one person that serves as an E-Verify administrator
on their behalf.
---------------------------------------------------------------------------
\163\ See DHS, ``Enrolling in E-Verify, The Enrollment
Process,'' https://www.e-verify.gov/employers/enrolling-in-e-verify/the-enrollment-process (last updated Aug. 9, 2022).
\164\ 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.
\165\ 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.\166\ 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.\167\ 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.
---------------------------------------------------------------------------
\166\ 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).
\167\ Id.
---------------------------------------------------------------------------
Cost savings due to this provision relate only to the opportunity
costs of time to petitioners associated with the time an employer will
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.\168\ 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 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.\169\
[[Page 103307]]
Therefore, DHS calculates an average hourly compensation rate of $50.94
for HR specialists.\170\ 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.\171\ 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.
---------------------------------------------------------------------------
\168\ See BLS, Occupational Employment and Wages, May 2022,
Human Resources Specialists (13-1071), https://www.bls.gov/oes/2022/may/oes131071.htm.
\169\ 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 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.
\170\ Calculation: $35.13 average hourly wage rate for HR
specialists x 1.45 benefits-to-wage multiplier = $50.94 (rounded).
\171\ Calculation: 2.26 hours for the enrollment process x
$50.94 total compensation wage rate for an HR specialist = $115.12.
---------------------------------------------------------------------------
Newly enrolled employers will 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).\172\ Therefore, DHS estimates the opportunity
cost of time savings would be approximately $6.57 per case.\173\ These
employers will 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.
---------------------------------------------------------------------------
\172\ 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).
\173\ Calculation: 0.121 hours to submit a query x $50.94 total
compensation wage rate for an HR specialist = $6.57 (rounded).
---------------------------------------------------------------------------
Table 8 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 8 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.
[GRAPHIC] [TIFF OMITTED] TR18DE24.018
[[Page 103308]]
DHS expects that existing H-2A petitioners will continue to
participate in E-Verify and thus will not realize a cost savings due to
this final rule. Employers that do not yet port H-2A workers, but do
obtain TLCs from DOL, will experience a cost-savings relevant to
avoiding enrollment and participation in E-Verify. However, they will
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 will 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.\174\ 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.\175\ 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,\176\
regardless of the filer, a new H-2A porting employer needing to obtain
TLCs will not experience a cost-savings in the first year following
this rule.\177\
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\174\ See DOL, Form ETA-9142A, ``H-2A Application for Temporary
Employment Certification,'' 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.
\175\ 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).
\176\ Calculation: $115.12 enrollment + $50.94 annual training +
$6.57 query submission = $172.63.
\177\ 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 new employee.
---------------------------------------------------------------------------
By removing the requirement for a petitioner to participate in E-
Verify to benefit from portability, this provision may result in
increased demand for H-2A petitioners to petition 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 will 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 will continue to use E-Verify. Any new petitioners for
porting H-2A workers will still be required to obtain TLCs through DOL,
these H-2A employers will be subject to the site visit requirements and
comply with the terms and conditions of H-2 employment set forth in
this final rule and under other related regulations, and the porting
worker will 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 2025 H-2B Supplemental Cap TFR and was available
under previous supplemental caps dating back to FY 2021. 89 FR 95626
(Dec. 2, 2024). 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.\178\ Since it is
difficult to isolate the impacts of inclusion of temporary portability
provisions in the FY 2021 through FY 2025 H-2B Supplemental Cap TFRs
from the extensions of stay due to changes of employer that are
expected in the absence of this provision, we reproduce the FY 2025 H-
2B Supplemental Cap TFR's analysis here.\179\ Additionally, DHS is
unclear how many additional H-2B visas Congress will allocate in future
fiscal years beyond the 66,000 statutory cap for H-2B nonimmigrants.
---------------------------------------------------------------------------
\178\ Id.
\179\ 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
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 2025 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.\180\ DHS 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
9). 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.
---------------------------------------------------------------------------
\180\ 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
2022, USCIS approved 522 requests for change of status to H-2B, and
Customs and Border Protection (CBP) processed 1,217 crossings of
visa-exempt H-2B workers. See USCIS, ``Characteristics of H-2B
Nonagricultural Temporary Workers FY2022 Report to Congress'' (Apr.
17, 2022), https://www.uscis.gov/sites/default/files/document/data/USCIS_H2B_FY22_Characteristics_Report.pdf. 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 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.
---------------------------------------------------------------------------
[[Page 103309]]
[GRAPHIC] [TIFF OMITTED] TR18DE24.019
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 7,206
petitions filed for new employment.\181\ In FY 2022, there were 1,795
petitions filed using Form I-129 for extension of stay due to change of
employer compared to 9,231 petitions filed for new employment.\182\ In
FY 2023, there were 2,113 petitions filed using Form I-129 for
extension of stay due to change of employer compared to 9,579 petitions
filed for new employment.\183\ 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 19.3 percent.\184\ 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 19.3 percent
should be expected in periods with portability.
---------------------------------------------------------------------------
\181\ USCIS, Office of Performance and Quality--SAS PME C3
Consolidated, as of Sep. 09, 2023, TRK 12921.
\182\ Id.
\183\ Id.
\184\ Calculation, Step 1: 1,113 Form I-129 petitions for
extension of stay due to change of employer FY 2021 + 1,795 Form I-
129 petitions for extension of stay due to change of employer in FY
2022 + 2,113 Form I-129 petitions for extension of stay due to
change of employer in FY 2023 = 5,021 Form I-129 petitions filed
extension of stay due to change of employer in portability provision
years.
Calculation, Step 2: 7,206 Form I-129 petitions filed for new
employment in FY 2021 + 9,231 Form I-129 petitions filed for new
employment in FY 2022 + 9,579 Form I-129 petitions filed for new
employment in FY 2022 = 26,016 Form I-129 petitions filed for new
employment in portability provision years.
Calculation, Step 3: 5,021 extensions of stay due to change of
employment petitions / 26,016 new employment petitions = 19.3
percent rate of extension of stay due to change of employment to new
employment.
---------------------------------------------------------------------------
In order to estimate the number of marginal Forms I-129 filed as a
result of the final rule's portability provision, DHS must first
estimate the number of beneficiaries per petition. As discussed above,
DHS has provided supplemental H-2B visa allocations each year since FY
2021. These supplemental allocations are based on time-limited
authority granted by Congress, however, and should not be included in
any prospective analysis as their existence is not certain. As such,
the proper reference population for calculating the marginal impact of
the portability provision is the annual statutory cap of 66,000 H-2B
visas. Table 10 contains the total petitions, total beneficiaries, and
beneficiaries per petition for H-2B Forms I-129 filed under the
statutory cap for fiscal year 2019 through fiscal year 2023.
[[Page 103310]]
[GRAPHIC] [TIFF OMITTED] TR18DE24.020
Using 3,627 as our estimate for the number of petitions filed using
Form I-129 for H-2B new employment in FY 2024, we estimate that 381
petitions for extension of stay due to change of employer will be filed
in absence of this rulemaking's portability provision.\186\ With the
rule's portability provision in effect, we estimate that 700 petitions
will be filed using Form I-129 for extension of stay due to change of
employer.\187\ As a result of this provision, we estimate 319
additional petitions using Forms I-129 will be filed.\188\ DHS
acknowledges that any future legislation that provides a supplemental
allocation of H-2B visas will necessarily increase the number of Forms
I-129 filed as a result of the final rule's portability provision. As
such, the estimates presented here should be interpreted as a
reasonable lower bound for the impact of the final rule's portability
provision.
---------------------------------------------------------------------------
\185\ This number includes beneficiaries who are exempt from the
H-2B cap and reflects the number of H-2B workers who are in
petitions that have been approved by DHS (including ones that have
not yet been issued an H-2B visa or otherwise acquired H-2B status).
\186\ Calculation: 3,627 Form I-129 H-2B petitions filed for new
employment x 10.5 percent = 381 estimated number of Form I-129 H-2B
petitions filed for extension of stay due to change of employer, no
portability provision.
\187\ Calculation: 3,627 Form I-129 H-2B petitions filed for new
employment x 19.3 percent = 700 estimated number of Form I-129 H-2B
petitions filed for extension of stay due to change of employer,
with a portability provision.
\188\ Calculation: 700 estimated number of Form I-129 H-2B
petitions filed for extension of stay due to change of employer,
with a portability provision--381 estimated number of Form I-129 H-
2B petitions filed for extension of stay due to change of employer,
no portability provision = 319 Form I-129 H-2B petition increase as
a result of portability provision.
---------------------------------------------------------------------------
As shown in Table 17, an average 45.84 percent of Form I-129
petitions will be filed by an in-house or outsourced lawyer. Therefore,
we expect that a lawyer will file 146 of these petitions and an HR
specialist will file the remaining 173.\189\ 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
298 requests using Form I-907 will be filed.\190\ We expect lawyers to
file 137 requests using Forms I-907 and HR specialists to file the
remaining 161 requests.\191\
---------------------------------------------------------------------------
\189\ Calculation, Lawyers: 319 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 = 146
(rounded) estimated Form I-129 filed by a lawyer.
Calculation, HR specialist: 319 additional Form I-129 due to
portability provision--146 estimated Form I-129 filed by a lawyer =
173 estimated Form I-129 filed by an HR specialist.
\190\ Calculation: 316 Form I-129 H-2B petitions x 93.57 percent
premium processing filing rate = 298 (rounded) Forms I-907.
\191\ Calculation, Lawyers: 298 Forms I-907 x 45.84 percent
filed by an attorney or accredited representative = 137 Forms I-907
filed by a lawyer.
Calculation, HR specialists: 298 Forms I-907--137 Forms I-907
filed by lawyer = 161 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 will need to file
Form I-129 and pay the associated fees. 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 146 petitions will be filed by a lawyer and
the remaining 173 petitions will be filed by an HR specialist. The
opportunity cost of time to file a Form I-129 H-2B petition will be
approximately $243.85 for an HR specialist; and the opportunity cost of
time to file a Form I-129 H-2B petition with accompanying Form G-28
will be approximately $641.29 for an in-house lawyer and $1,105.71 for
an outsourced lawyer.\192\ Therefore, we estimate the cost of the
additional petitions filed using Form I-129 from the portability
provision for HR specialists will be approximately $42,186.\193\ The
estimated cost of the additional petitions filed using Form I-129
accompanied by Forms G-28 from the portability provision for lawyers
will be about $93,628 if filed by in-house lawyers and $161,434 if
filed by outsourced lawyers.\194\
---------------------------------------------------------------------------
\192\ Calculation, HR Specialist: $50.94 hourly opportunity cost
of time x 4.787-hour time burden for form I-129 = $243.85 estimated
cost to file a Form I-129 H-2B petition.
Calculation, In-house lawyer: $114.17 hourly opportunity cost of
time x 5.617-hour time burden for form I-129 and Form G-28 = $641.29
estimated cost to file a Form I-129 H-2B petition.
Calculation, outsourced lawyer: $196.85 hourly opportunity cost
of time x 5.617-hour time burden for form I-129 and Form G-28 =
$1,105.71 (rounded) estimated cost to file a Form I-129 H-2B
petition.
\193\ Calculation, HR specialist: $243.85 estimated cost to file
a Form I-129 H-2B petition x 173 petitions = $42186 (rounded).
\194\ Calculation, In-house Lawyer: $641.29 estimated cost to
file a Form I-129 H-2B petition and accompanying Form G-28 x 146
petitions = $93,628 (rounded).
Calculation, Outsourced Lawyer: $1,105.71 estimated cost to file
a Form I-129 H-2B petition and accompanying Form G-28 x 146
petitions = $161,434 (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 298
[[Page 103311]]
requests for premium processing using Form I-907 will be filed.\195\ We
expect 136 of those requests will be filed by a lawyer and the
remaining 160 will be filed by an HR specialist.\196\ The estimated
opportunity cost of time to file Form I-907 will be about $18.85 for an
HR specialist; and the estimated opportunity cost of time for an in-
house lawyer to file Form I-907 will be approximately $42.24 and for an
outsourced lawyer it will be about $72.83.\197\ The estimated annual
cost of filing additional requests for premium processing using Form I-
907 if HR specialists file will be approximately $3,035.\198\ The
estimated annual cost of filing additional requests for premium
processing using Form I-907 will be about $5,787 if filed by in-house
lawyers, and approximately $9,978 if filed by outsourced lawyers.\199\
---------------------------------------------------------------------------
\195\ Calculation: 319 estimated additional Form I-129 H-2B
petitions x 93.57 percent accompanied by Form I-907 = 298 (rounded)
additional Form I-907.
\196\ Calculation, Lawyers: 298 additional Form I-907 x 45.84
percent = 136 (rounded) Form I-907 filed by a lawyer. Calculation,
HR specialists: 298 Form I-907--136 Form I-907 filed by a lawyer =
160 Form I-907 filed by an HR specialist.
\197\ Calculation, HR Specialist: $50.94 hourly opportunity cost
of time x 0.37-hour time burden to file Form I-907 = $18.85 cost to
file Form I-907.
Calculation, In-house lawyer: $114.17 hourly opportunity cost of
time x 0.37-hour time burden to file Form I-907 = $42.24 cost to
file Form I-907.
Calculation, outsourced lawyer: $196.85 hourly opportunity cost
of time x 0.37-hour time burden to file Form I-907 = $114.17 cost to
file Form I-907.
\198\ Calculation, HR specialist: $18.85 to file a Form I-907 x
161 forms = $3,035 (rounded).
\199\ Calculation, In-house lawyer: $42.24 to file a Form I-907
x 137 forms=$5,787 (rounded).
Calculation for an outsourced lawyer: $72.72 to file a Form I-
907 x 137 forms = $9,978 (rounded).
---------------------------------------------------------------------------
The estimated annual cost of this provision ranges from $144,636 to
$216,633 depending on what share of the forms are filed by in-house or
outsourced lawyers.\200\
---------------------------------------------------------------------------
\200\ Calculation for HR specialists and in-house lawyers:
$42,186 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 = $144.636.
Calculation for HR specialists and outsourced lawyers: $42,186
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 = $216,633.
---------------------------------------------------------------------------
The transfer payments from filing petitions using Form I-129 for an
H-2B beneficiary include the filing costs to submit the form. USCIS'
current fee rule was published on January 31, 2024, and became
effective on April 1, 2024. 89 FR 6194, 6246-6248; 89 FR 20101 (Apr. 1,
2024). Table 11 shows the current fee schedule for Form I-129
requesting H-2A workers.
[GRAPHIC] [TIFF OMITTED] TR18DE24.021
Furthermore, certain petitioners must pay the $600 Asylum Program
Fee. Small employers with 25 or fewer employees pay a reduced Asylum
Program Fee of $300 while nonprofits are exempt from the Asylum Program
Fee. Therefore, total filing fees for H-2A petitioners range from
$1,690 to $460 depending on the characteristics of the petitioner.\201\
---------------------------------------------------------------------------
\201\ See USCIS, Form G-1055, ``USCIS Fee Schedule,'' https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf (last
accessed Apr. 18, 2024).
---------------------------------------------------------------------------
Similarly, Table 12 shows the base filing fees for petitioners
requesting H-2B workers.
[GRAPHIC] [TIFF OMITTED] TR18DE24.022
As was the case to H-2A petitioners, certain H-2B petitioners also
must pay the $600 Asylum Program Fee. Small employers with 25 or fewer
employees pay a reduced Asylum Program Fee of $300 while nonprofits are
exempt from the Asylum Program Fee. Additionally, petitioners
requesting H-2B workers must submit a $150 Fraud Prevention and
Detection Fee. Therefore, total filing fees for H-2B petitioners range
from $1,830 to $610 depending on the characteristics of the
petitioner.\202\
---------------------------------------------------------------------------
\202\ Id.
---------------------------------------------------------------------------
For the purposes of this analysis, USCIS assumes that all marginal
Forms I-129 filed due to the final rule's portability provision request
named
[[Page 103312]]
beneficiaries and that the petitioners are representative of the
greater Form I-129 filing population.\203\ More specifically, we assume
that of the 319 marginal Form I-129 petitions that were filed as a
result of the final rule's portability provision, 30 percent have 26 or
more employees, 55 percent have 25 or fewer employees, and that 15
percent have non-profit status.\204\ This equates to 96 ``large''
petitioners, 175 ``small'' petitioners, and 48 non-profit
petitioners.\205\ These petitioners will pay total fees of $1,830,
$990, and $690, respectively.\206\ 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. The annual value
of transfers from petitioners to the Government for filing Form I-129
due to the final rule's portability provision will be approximately
$382,050.\207\
---------------------------------------------------------------------------
\203\ Per Form I-129 instructions, beneficiaries must be named
if they are currently in the United States. Therefore, a Form I-129
petition filed as a result of the final rule's portability provision
would necessarily be for named beneficiaries. See USCIS, Form I-129,
``Instructions for Petition for Nonimmigrant Worker Department of
Homeland Security,'' OMB Control Number 1615-0009, (expires Feb. 28,
2027), https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf.
\204\ See 89 FR 6194, 6246-6248, Table 25 (Jan. 31, 2024); 89 FR
20101 (Apr. 1, 2024).
\205\ Calculation, ``Large'' Petitioners: 319 marginal Form I-
129 filings x 0.3 rate of ``large'' petitioners = 96 ``large''
petitioners (rounded).
``Small'' Petitioners: 319 marginal Form I-129 filings x 0.55
rate of ``small'' petitioners = 175 ``small'' petitioners (rounded).
Non-profit petitioners: 319 marginal Form I-129 filings x 0.15
rate of non-profit petitioners = 48 non-profit petitioners
(rounded).
\206\ Fees for ``large'' petitioner: $1,080 base filing fee +
$600 Asylum Program Fee + $150 Fraud Prevention and Detection Fee =
$1,830.
Fees for ``Small'' Petitioner: $540 base filing fee + $300
Asylum Program Fee + $150 Fraud Prevention and Detection Fee = $990.
Fees for Non-profit Petitioner: $540 base filing fee + $150
Fraud Prevention and Detection Fee = $690.
For more information regarding the fee schedule for Forms I-129,
please see https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf (accessed Apr. 29, 2024)
\207\ Calculation: (96 ``large'' petitioners x $1,830 total
fees) + (175 ``small'' petitioners x $990 total fees) + (48
nonprofit petitioners x $690 total fees) = $382,050.
---------------------------------------------------------------------------
Additionally, employers may use Form I-907 to request premium
processing of Form I-129 petitions for H-2B visas. The filing fee for
Form I-907 to request premium processing for H-2B petitions is
$1,685.\208\ Based on historical trends, DHS expects that 93.57 percent
of petitioners will file a Form I-907 with Form I-129. Applying that
rate to the expected number of filings of Form I-129 petitions will
result in 298 requests for premium processing using Form I-907 filed
due to the rule.\209\ We estimate that the annual transfers from
petitioners to the Federal Government related to filing Form I-907 due
to the rule will be approximately $502,130.\210\ The undiscounted
annual transfers from petitioners to the Federal Government due to the
rule are $884,180.211 212
---------------------------------------------------------------------------
\208\ See USCIS, Form I-907, ``Instructions for Request for
Premium Processing Service,'' OMB Control Number 1615-0048, https://www.uscis.gov/sites/default/files/document/forms/i-907instr.pdf
(last accessed Apr. 15, 2024).
\209\ Calculation: 319 petitions x 93.57 Form I-907 rate = 298
Forms I-907 (rounded).
\210\ Calculation: $1,685 per petition x 298 Forms I-907 =
$502,130.
\211\ Calculation: $382,050 + $502,130 = $884,180.
\212\ 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 allows 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.
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. The final rule includes the
following: (1) removing the eligible countries lists; and (2)
eliminating the calculation of interrupted stays and reducing the
period of absence that will reset an individual's 3-year maximum period
of stay.
(1) Eligible Countries Lists
DHS will 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.\213\
---------------------------------------------------------------------------
\213\ See USCIS, Form I-129, ``Instructions for Petition for
Nonimmigrant Worker Department of Homeland Security,'' OMB Control
Number 1615-0009 (expires Feb. 28, 2027), 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.\214\ 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's country of birth. Data are
primarily limited because of the high percentage of H-2 petitions filed
requesting unnamed beneficiaries. Additionally, these data are input
manually, with only certain fields entered. Country of birth is not a
mandatory field and tends to be blank.
---------------------------------------------------------------------------
\214\ Country of citizenship data are available for about 20
percent of the H-2A category but not for the H-2B category. For
consistency and because there are slightly more data available, we
use country of birth data in this analysis.
---------------------------------------------------------------------------
On the eligible countries lists published November 10, 2021, FY
2022 data did not identify any H-2A beneficiaries with a country of
birth from 55 of 85 eligible countries.\215\ 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.
---------------------------------------------------------------------------
\215\ The publication of the eligible countries lists for H-2A
and H-2B visa programs referred to here was published on November
10, 2022. 87 FR 67930. 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.
---------------------------------------------------------------------------
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
[[Page 103313]]
workers from countries not listed on the respective eligible countries
lists be filed separately. DHS 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
provision will result in saved fees.\216\ As discussed above, total
filing fees for H-2A petitioners range from $460 to $1,690 depending on
the characteristics of the petitioner while total filing fees for H-2B
petitioners range from $610 to $1,830 depending on the characteristics
of the petitioner.\217\ Therefore, employers currently filing separate
petitions could save $460 to $1,640 per H-2A petition and $610 to
$1,830 per H-2B petition.\218\
---------------------------------------------------------------------------
\216\ 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.
\217\ See USCIS, Form G-1055, ``Fee Schedule,'' https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf, (last
accessed Apr. 18, 2024).
\218\ See USCIS, Form I-129, ``Instructions for Petition for
Nonimmigrant Worker Department of Homeland Security,'' OMB Control
Number 1615-0009 (expires Feb. 28, 2027), 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 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-
2 work visas that it deems problematic regardless of the country's
standing on the eligible countries lists.
Benefits of this 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 also will reduce the burden on petitioners that
seek to hire H-2 workers from countries not designated as eligible
since they will no longer need to meet additional criteria showing that
it is in the U.S. interest to employ such workers. This provision also
will increase access to workers potentially available to businesses
that use the H-2 programs.
(2) Eliminating the ``Interrupted Stay'' Calculation and Reducing the
Period of Absence To Reset an Individual's 3-Year Period of Stay
DHS is eliminating 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.\219\ 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 final rule, the total period
of stay of 3 years remains unchanged, but the period of absence that
resets an individual's 3-year period of stay will be reduced. For ease
of understanding, the term ``clock'' is used in this section to
describe the 3-year maximum period of stay for an H-2 worker and the
term ``absence'' generally is used in place of ``interruption.'' As
critical context, the estimated population impacted by this 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 Labor 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 will be no direct
impacts nor costs to an employer from the simplifications to the
existing definition of absence for the purpose of resetting the 3-year
clock.\220\
---------------------------------------------------------------------------
\219\ 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.
\220\ See DOL, ``H-2A Temporary Labor Certification for
Agriculture Workers,'' https://flag.dol.gov/programs/H-2A (last
visited May 31, 2023) (``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); DOL, ``H-2B,
Temporary Labor Certification for Non-Agriculture Workers,'' https://flag.dol.gov/programs/H-2B (last visited May 31, 2023) (``The
employer's job opportunities must be . . . [t]emporary (9 months or
less, except one-time occurrences)''). 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, Pub. L. 117-328, Division H,
Title I, Sec. 111.
---------------------------------------------------------------------------
Additionally, under this simplification, DHS will 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 will 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 and whose clock
currently pauses when leaving 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 rule, the 3-year clock
will no longer pause when an individual leaves the United States for
the period of time specified in rows 2 and 3 of Table 13; rather, the
3-year clock will reset following an uninterrupted absence of 60 days,
irrespective of the individual's period of accumulated stay in the
United States.
[[Page 103314]]
[GRAPHIC] [TIFF OMITTED] TR18DE24.023
DHS 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 TLC three or more times
to maximize earnings over the 3-year (1,095 days) limit. DHS does not
have 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 present
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. 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.\221\ Additionally,
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.\222\
---------------------------------------------------------------------------
\221\ 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.
\222\ 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.\223\ 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 wage. Therefore, DHS believes that
a more accurate and timely estimate of wages is available via data from
the DOL, 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.\224\ 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.\225\ 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.\226\
---------------------------------------------------------------------------
\223\ See 29 U.S.C. 206; See also WHD, ``Minimum Wage,'' https://www.dol.gov/general/topic/wages/minimumwage (the minimum wage in
effect as of Dec. 15, 2022).
\224\ See Occupational Employment and Wage Estimates United
States, May 2022. BLS, ``Occupational Employment and Wage Statistics
program, All Occupations,'' https://www.bls.gov/oes/2022/may/oes_nat.htm#00-0000 (last visited July 28, 2023).
\225\ 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.
\226\ Calculations (1) for lower bound compensation: $13.14
lower bound wage x 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
[[Page 103315]]
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.\227\ 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.\228\ 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.\229\
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.\230\
---------------------------------------------------------------------------
\227\ 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. DHS
notes that the agricultural wages contained in the OEWS survey
represent a subset all agricultural workers.
\228\ Calculation of the weighted mean hourly wage for
agricultural workers: $17.04 per hour x 1.45 benefits-to-wage
multiplier = $24.71 (rounded).
\229\ 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.
\230\ 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 calculates absences from the United States based 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
days of the calendar week, or 71.4 percent, is allotted to work-time,
and that a workday is typically 8 hours.\231\ 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.\232\ 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 14).\233\
---------------------------------------------------------------------------
\231\ 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.
\232\ Calculations: 10thpercentile 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.
\233\ Calculations: 10th 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).
[GRAPHIC] [TIFF OMITTED] TR18DE24.024
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,\234\ 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).\235\ While
H-2A wages are exempt from these taxes, H-2B wages are not.\236\ 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.\237\ 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
[[Page 103316]]
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 14, tax transfers could range from $0 for H-2A workers to as much
as $1,131 for H-2B workers over a 30-day period.
---------------------------------------------------------------------------
\234\ See Quentin Fottrell, MarketWatch, ``More than 44 percent
of Americans pay no federal income tax,'' (Aug. 28, 2019), https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16.
\235\ 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.
\236\ See IRS, ``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).
\237\ 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.
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One benefit of this provision is that it will 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 15, 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.
[GRAPHIC] [TIFF OMITTED] TR18DE24.025
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 will at least render some RFEs unnecessary.\238\ This
will 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.
---------------------------------------------------------------------------
\238\ On July 25, 2022, USCIS extended its COVID-19-related
flexibilities for responding to RFEs through October 23, 2022. This
provided recipients an additional 60 calendar days after the due
date on an RFE to provide a response. Ultimately, while this
flexibility may have been helpful to petitioners it also added 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, DHS 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 impact to the employer nor to wages earned by the
worker. Multiplying the H-2A population of 169 in Table 15 by $4,234 in
additional wages for 30 days in Table 14 bounds potential additional
annual earnings at $715,546. Additionally, the H-2B population of 298
in Table 15 multiplied by $7,394 in Table 14 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
approximately $2,918,958 in additional earnings and about $337,122 in
tax transfers ($168,561 from workers + $168,561 from employers).
d. Other Impacts of the Final Rule
(1) Form I-129 Updates
The costs for filing Form I-129 include the opportunity costs of
time to complete and file the form. The estimated time needed to
complete and file Form I-129 is 2.487 hours.\239\ There is also an
estimated time burden of 2.07 hours for petitioners to complete the H
classification supplement for Form I-129. The total time burden of
4.557 hours for Form I-129 also includes the time for reviewing
instructions, to file and retain documents, and submit the request. In
this final rule, only the estimated burden to complete the H
classification supplement will change. This rule will increase the
public reporting burden for the H Classification Supplement by 0.23
hours, for a total of 2.3 hours. The increased time burden will result
in a total time burden of 4.787 hours for Form I-129 H-2
[[Page 103317]]
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 HR specialists
file Form I-129 or if only lawyers file Form I-129.\240\ 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.\241\ 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.
---------------------------------------------------------------------------
\239\ The public reporting burden for this form is 2.487 hours
for Form I-129 and an additional 2.07 hours for H Classification
Supplement. See USCIS, Form I-129, ``Instructions for Petition for
Nonimmigrant Worker Department of Homeland Security,'' OMB Control
Number 1615-0009 (expires Feb. 28, 2027), https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf.
\240\ For the purposes of this analysis, DHS assumes an HR
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 HR
departments or occupations and, therefore, recognizes equivalent
occupations may prepare these petitions.
\241\ 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.\242\ 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.\243\
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.\244\ 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.245 246 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.\247\ DHS estimates the time
burden to complete and submit Form G-28 for a lawyer is 50 minutes
(0.83 hours, rounded).\248\
---------------------------------------------------------------------------
\242\ See BLS, Occupational Employment and Wages, May 2022,
Human Resources Specialists (13-1071), https://www.bls.gov/oes/2022/may/oes131071.htm.
\243\ See BLS, Occupational Employment and Wages, May 2022,
Lawyers (23-1011), https://www.bls.gov/oes/2022/may/oes231011.htm.
\244\ Calculation for the total wage of an in-house lawyer:
$78.74 x 1.45 = $114.17 (rounded).
\245\ Calculation: Average hourly wage rate of lawyers x
Benefits-to-wage multiplier for outsourced lawyer = $78.74 x 2.5 =
$196.85 (rounded).
\246\ 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 ICE, ``Small Entity
Impact Analysis (Final): Supplemental Proposed Rule `Safe-Harbor
Procedures for Employers Who Receive a No-Match Letter,' '' p. G-4
(Sept. 1, 2015), https://www.regulations.gov/document/ICEB-2006-0004-0922.
\247\ USCIS, ``Filing Your Form G-28'' (Aug. 10, 2020), https://www.uscis.gov/forms/filing-your-form-g-28.
\248\ 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 will
change, this analysis only considers the additional opportunity cost of
time for 0.23 hours as a direct cost of this rule. Therefore, the
estimated additional opportunity cost of time for an HR specialist to
complete and file Form I-129 for an H-2 petition is $11.72, for an in-
house lawyer to complete and file is $26.26, and for an outsourced
lawyer to complete and file is $45.28.\249\
---------------------------------------------------------------------------
\249\ HR specialist calculation: $50.94 x (0.23 hours) = $11.72.
In-house lawyer calculation: $114.17 x (0.23 hours) = $26.26.
Outsourced lawyer calculation: $196.85 x (0.23 hours) = 45.28
(rounded).
---------------------------------------------------------------------------
DHS expects this rule to impose costs on the population of
employers that currently petition for H-2 workers, an estimated 36,762
petitioners.\250\ We expect filing the relevant forms will be performed
by an HR specialist, in-house lawyer, or outsourced lawyer, with the
assumption that this will be done at the same rate as petitioners who
file a Form G-28.
---------------------------------------------------------------------------
\250\ Calculation: 24,370 H-2A + 12,392 H-2B = 36,762 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 16 and
Table 17 show the recent G-28 filing trends for each separate H-2
population.
[[Page 103318]]
[GRAPHIC] [TIFF OMITTED] TR18DE24.026
[GRAPHIC] [TIFF OMITTED] TR18DE24.027
Using the data from Table 16 and Table 17, DHS calculates that the
weighted average rate of G-28 filing across the entire H-2 population
is 26.35 percent.\251\
---------------------------------------------------------------------------
\251\ Calculation: Step 1. 12,607 H-2A petitions with G-28 +
18,605 H-2B petitions with G-28 = 31,212 H-2 petitions with G-28;
Step 2. 77,890 total H-2A petitions + 40,583 total H-2B petitions =
118,473 total H-2 petitions; Step 3. 31,212 H-2 petitions with G-28
/ 118,473 total H-2 petitions = 0.2635 (rounded).
---------------------------------------------------------------------------
Therefore, we estimate that 9,687 lawyers will incur additional
filing costs, and 27,075 HR specialists will incur additional filing
costs.\252\
---------------------------------------------------------------------------
\252\ Calculation for lawyers: 36,762 H-2 petitioners x 26.35
percent represents by a lawyer = 9,687 (rounded) represented by a
lawyer. Calculation for HR specialists: 36,762 H-2 petitioners-9,687
represented by a lawyer = 27,075 represented by a HR specialist.
---------------------------------------------------------------------------
The estimated total opportunity cost of time for 27,075 HR
specialists to file petitions under this final rule is approximately
$317,319.\253\ The estimated annual opportunity cost of time for 9,687
lawyers to file petitions under this rule is approximately $254,381 if
all are in-house lawyers and $438,627 if all are outsourced
lawyers.\254\ Therefore, the estimated annual opportunity costs of time
for petitioners or their representatives to file H-2 petitions under
this rule will range from $571,700 to $755,946.\255\
---------------------------------------------------------------------------
\253\ Calculation: $11.72 additional burden x 27,075 HR
specialists = $317,319.
\254\ Calculations: $26.26 additional burden x 9,687 in-house
lawyers = $254,381; $45.28 additional burden x 9,687 outsourced
lawyers = $438,627 (rounded).
\255\ Calculation: HR specialists $317,319 + in-house lawyers
$254,381 = $571,700; HR specialists $317,319 + outsourced lawyers
$438,627 = $755,946.
---------------------------------------------------------------------------
(2) Technical Definitional Updates
As a technical update in this rule, DHS is removing the phrase
``abscond'' and the definition ``abscondment'' for clarification
purposes. DHS expects these changes will have only marginal impacts.
(3) Familiarization Costs
DHS expects this rule will 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
36,762 petitioners.\256\ We expect familiarization with the rule will
be performed by a HR specialist, in-house lawyer, or outsourced lawyer,
[[Page 103319]]
with the assumption that this will be done at the same rate as
petitioners who file a Form G-28. An estimated 26.34 percent will be
performed by lawyers and the remaining 73.66 percent by an HR
specialist. Therefore, we estimate that 27,075 HR specialists and 9,687
lawyers will incur familiarization costs.\257\
---------------------------------------------------------------------------
\256\ Calculation: 24,370 H-2A + 12,392 H-2B = 36,762 H-2
petitioners in FY 2022 as estimated as the population who would be
most likely to read this rule.
\257\ Calculation for lawyers: 36,762 H-2 petitioners x 44.43
percent represents by a lawyer = 9,687 (rounded) represented by a
lawyer. Calculation for HR specialists: 36,762 H-2 petitioners-9,687
represented by a lawyer = 27,075 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.\258\ This rule has approximately 56,000
words.\259\ Using a reading speed of 238 words per minute, DHS
estimates it will take approximately 3.92 hours to read and become
familiar with this rule.\260\ 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 $771.65, respectively.\261\ The estimated
total opportunity cost of time for 27,075 HR specialists to familiarize
themselves with this rule is approximately $5,406,336. Additionally,
the estimated total opportunity cost of time for 9,687 lawyers to
familiarize themselves with this rule is approximately $4,335,417 if
all are in-house lawyers or $7,474,974 if all are outsourced lawyers.
Thus, the estimated total opportunity costs of time for petitioners or
their representatives to familiarize themselves with this rule ranges
from $9,741,753 to $12,881,310, which we assume will be incurred in the
first year of the period of analysis.\262\
---------------------------------------------------------------------------
\258\ Marc Brysbaert, ``How many words do we read per minute? A
review and meta-analysis of reading rate,'' (Apr. 12, 2019) 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.
\259\ Please note that the actual word count of the final rule
may differ from the estimated length presented here.
\260\ Calculation: 56,000 words / 238 words per minute = 235
(rounded) minutes. 235 minutes / 60 minutes per hour = 3.92
(rounded) hours.
\261\ Calculation: Total respective hourly compensation HR
$50.94 x 3.92 hours = $199.68, In-house Lawyer $114.17 x 3.92 =
$447.55, or Outsourced Lawyer $196.85 x 3.92 hours = $771.65.
\262\ Calculation, lower bound: $5,406,336 familiarization
costs, HR Representative + $4,335,417 familiarization costs, in-
house lawyer = $9,741,753.
Calculation, upper bound: $5,406,336 familiarization costs, HR
Representative + $7,474,974 familiarization costs, outsourced lawyer
= $12,881,310.
---------------------------------------------------------------------------
e. Total Costs of the Rule
In the previous sections, we presented the estimates of the impacts
of the final rule. The quantifiable costs of this rule that will 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
$716,336 to $972,579 depending on the filer.\263\ Over the 10-year
period of analysis, DHS estimates the total costs of the final rule
will be approximately $16,905,113 to $22,607,100 (undiscounted).\264\
DHS estimates the annualized costs of this final rule will range from
$1,825,104 to $2,438,679 at a 3-percent discount rate, with a midpoint
of $2,131,891, and $2,012,604 to $2,686,606 at a 7-percent discount
rate, with a midpoint of $2,349,605. The midpoints of these ranges are
presented as the primary estimates.
---------------------------------------------------------------------------
\263\ Calculation, lower bound: $571,700 annual costs from
marginal OCT to file Forms I-129 + $144,636 in costs due to the
portability provision = $716,336 annual costs in years 1 through 10.
Calculation, upper bound: $755,946 annual costs from marginal
OCT to file Forms I-129 + $216,633 in costs due to the portability
provision = $972,579 annual costs in years 1 through 10.
\264\ Calculation, lower bound: familiarization costs of
$9,741,753 (year 1) + $716,336 annual costs due to the rule (year 1-
10) = $16,905,113 over 10-year period of analysis.
Calculation, upper bound: familiarization costs of $12,881,310
(year 1) + $972,579 annual costs due to the rule (year 1-10) =
$22,607,100 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 is
approximately $2,918,958 in additional earnings at the 3-percent and 7-
percent discount rate and related tax transfers are approximately
$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 final 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 rule on small entities in the analysis that follows.
Small entities primarily impacted by this final rule are those that
will 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 final 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 in this rule.
[[Page 103320]]
Final Regulatory Flexibility Analysis (FRFA)
1. A Statement of the Need for, and Objectives 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. Through this
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.
2. A Statement of the Significant Issues Raised by the Public Comments
in Response to the IRFA, a Statement of the Assessment of the Agency of
Such Issues, and a Statement of Any Changes Made in the Proposed Rule
as a Result of Such Comments
DHS requested comments on the IRFA as part of the NPRM and received
several specific to the IRFA. A brief summary of those comments and
USCIS' response are below.\265\
---------------------------------------------------------------------------
\265\ More thorough comment summaries and responses are
contained in the rule's preamble.
---------------------------------------------------------------------------
Comment: Various stakeholders expressed concern that affected small
entities may lack resources needed to understand the rule's changes and
may unintentionally violate certain provisions, harming such entities
in a disproportionate manner.
Response: DHS acknowledged the comments but declines to implement
any changes to the rule as a result of this comment. DHS emphasizes
that all regulatory requirements and procedures will be explained and
analyzed through multiple channels (the promulgation of this rule as
evidenced by publication after consideration of comments received
during the notice and comment period, relevant form instructions, and
established communication materials such as the ``Small Entity
Compliance Guide''). Additionally, DHS believes that marginal burdens
being placed on small entities in order to ensure that they comply with
program requirements and worker protections is justified by the
benefits of increased program integrity discussed in the preamble.
3. The Response of the Agency to Any Comments Filed by the Chief
Counsel for Advocacy of the Small Business Administration in Response
to the Proposed Rule
The Chief Counsel for Advocacy of the Small Business Administration
did not provide any comments on the IRFA.
4. A Description and an Estimate of the Number of Small Entities to
Which the Rule Will Apply or an Explanation of Why No Such Estimate Is
Available
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 final 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.\266\ 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.\267\ Some entities were
classified as ``small'' based on their annual revenue and some by
number of employees.
---------------------------------------------------------------------------
\266\ 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.
\267\ The 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.
---------------------------------------------------------------------------
Using FY 2018 to FY 2022 data on H-2A petitions, DHS collected
internal data for each filing organization.\268\ Each entity may make
multiple filings. For instance, there were 90,658 H-2A petitions filed
over the 5-fiscal-year period of analysis, but only 13,244 unique
entities that filed H-2A petitions. DHS developed 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 to increase the likelihood that our matches would meet or exceed
the minimum required sample.\269\ Of the 411 entities sampled, 387
instances resulted in entities defined as small (see Table 18). 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 FY 2018 through FY 2022,
DHS estimates that 96 percent or 12,714 entities are considered small
based on SBA size standards.\270\
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\268\ USCIS Office of Policy and Strategy, C3, ELIS (Oct. 19,
2022).
\269\ Calculation: 368 + (368 x 10 percent) = 405.
\270\ Calculation: 13,244 entities x 96 percent = 12,714 small
entities (rounded).
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BILLING CODE 9111-97-P
[[Page 103321]]
[GRAPHIC] [TIFF OMITTED] TR18DE24.028
As previously stated, DHS classified each entity by its NAICS code
to determine the size of each entity. Table 19 shows a list of the top
10 NAICS industries that submit H-2A petitions.
[[Page 103322]]
[GRAPHIC] [TIFF OMITTED] TR18DE24.029
DHS used the same methodology developed for H-2A petitions for
analyzing H-2B petitions. Using FY 2018 to FY 2022 data on H-2B
petitions, DHS collected internal data for each filing
organization.\271\ 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 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.\272\ Of the 405 entities sampled, 384
instances resulted in entities defined as small (see Table 20). 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 8,081 entities are considered small based
on SBA size standards.\273\
---------------------------------------------------------------------------
\271\ USCIS Office of Policy and Strategy, C3, ELIS (Oct. 19,
2022).
\272\ Calculation: 368 + (368 x 10 percent) = 405.
\273\ Calculation: 8,506 entities x 95 percent = 8,081 small
entities (rounded).
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[[Page 103323]]
[GRAPHIC] [TIFF OMITTED] TR18DE24.030
As previously stated, DHS classified each entity by its NAICS code
to determine the size of each business. Table 21 shows a list of the
top 10 NAICS industries that submit H-2B petitions.
[[Page 103324]]
[GRAPHIC] [TIFF OMITTED] TR18DE24.031
BILLING CODE 9111-97-C
As stated above, petitioning employers may incur costs they would
not have otherwise incurred if they are selected to participate in
compliance reviews or inspections that are necessary for the approval
of a petition, but fail or refuse to comply with such reviews or
inspections. 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 FRFA
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 changes to
the interrupted stay calculation. DHS cannot determine how
beneficiaries' behavior would change as a result of this simplification
to the calculation. Similarly, DHS does not expect flexibilities that
allow beneficiaries to arrive in-country earlier would impose any
compliance costs upon industries that choose to petition for or employ
H-2 workers.
Table 5 shows that an average 13,722 H-2A petitions are received
annually. Table 18 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 \274\ petitions are submitted by small entities.
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\274\ Calculation: 13,722 petitions received annually x 96
percent = 13,173 submitted by small entities (rounded).
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Table 6 shows that USCIS receives an average of 6,867 H-2B
petitions annually. Table 20 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 6,867 H-2B
petitions received, 6,524 petitions are submitted by small
entities.\275\
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\275\ Calculation: 6,867 annually selected petitions x 95
percent = 6,524 submitted by small entities (rounded).
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5. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including an Estimate of the
Classes of Small Entities That Will Be Subject to the Requirement and
the Types of Professional Skills Necessary for Preparation of the
Report or Record
This final rule does not impose any new or additional direct
``reporting'' or ``recordkeeping'' requirements on filers of H-2
petitions. The final 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
provision 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 final rule, a petitioner that was selected for a site visit and
would not have cooperated under the baseline would face (up to) a 1.7-
hour marginal time burden (on average) in order to comply with the
provisions of the rule. Also, the provisions of this final rule
regarding prohibited fees and labor law violations (see 8 CFR
214.2(h)(5)(xi)(A) through (C), 8 CFR 214.2(h)(6)(i)(B) through (D)
regarding prohibited fees, and 8 CFR 214.2(h)(10)(iv) regarding labor
law violations and other violations) will subject petitioners,
including small entities, to petition denials should they engage in
activities that are prohibited by the final rule.
Denial or revocation of petitions for noncooperation with existing
site visit and verification requirements is
[[Page 103325]]
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 final 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 final 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 0.23 hours. As previously stated in Section
d(1) of the regulatory impact analysis, this final rule will add $11.72
in costs if an HR specialist files, $26.26 in costs if an in-house
lawyer files, and $45.28 in costs if an outsourced lawyer files.\276\
USCIS acknowledges that the rule could impose other indirect costs on
small entities including, but not limited to, the time required to
comply with site visits and any actions required to remain compliant
with the rule's strengthened worker provisions. These indirect impacts
are not explicitly included within the RFA because of uncertainty
related to how many small entities would be affected and the degree to
which affected entities would be impacted. The Regulatory Impact
Analysis included above contains more in-depth analysis of those
possible impacts and how they may impact small entities. Those entities
not in compliance with the program would experience direct impacts as a
result of this rule; DHS does not know how many entities are
noncompliant.
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\276\ Calculations: HR specialist calculation: $50.94 x (0.23
hours) = $11.72 (rounded).
In-house lawyer calculation: $114.17 x (0.23 hours) = $26.26
(rounded).
Outsourced lawyer calculation: $196.85 x (0.23) = $45.28
(rounded).
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In all instances, DHS acknowledges that several aspects of the rule
impose costs on affected entities. DHS has determined, however, that
these costs are outweighed by the benefits of increased program
integrity and compliance. DHS has considered opportunities to achieve
the rule's stated objectives while minimizing costs to small entities.
6. A Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes, Including a Statement of the
Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule and Why Each of the Other Significant
Alternatives to the Rule Considered by the Agency Was Rejected
DHS considered alternatives to elements of the final 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, DHS acknowledges that, as discussed above,
the vast majority (approximately 96 percent of H-2A petitioners and 95
percent 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.
DHS 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' 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. DHS 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 more effective if, at some additional compliance costs to
would-be noncooperative small entities, USCIS was able to reach a
finding. For this reason, DHS 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 final 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. 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).\277\
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\277\ See BLS, ``Historical Consumer Price Index for All Urban
Consumers (CPI-U): U.S. city average, all items, by month,'' https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202403.pdf (last visited Apr. 29, 2024). 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)]
x 100 = [(292.655-152.383) / 152.383] x 100 = (140.272 / 152.383) x
100 = 0.92052263 x 100 = 92.05 percent = 92 percent (rounded).
Calculation of inflation-adjusted value: $100 million in 1995
dollars x 1.92 = $192 million in 2022 dollars.
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[[Page 103326]]
The term ``Federal mandate'' means a Federal intergovernmental
mandate or a Federal private sector mandate. See 2 U.S.C. 1502(1),
658(6). 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). 2 U.S.C. 658(5). 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). 2 U.S.C. 658(7).
This final 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. 2 U.S.C. 1502(1), 658(6). 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.
D. Congressional Review Act
The Office of Information and Regulatory Affairs has determined
that this final does not meet the definitional criteria outlined in 5
U.S.C. 804(2), for purposes of Congressional review of agency
rulemaking pursuant to the Congressional Review Act, Pub. L. 104-121,
title II, sec. 251 (Mar. 29, 1996), 110 Stat. 868 (codified at 5 U.S.C.
801-808). This rule will not result in an annual effect on the economy
of $100 million or more.
DHS will send this final rule to Congress and to the Comptroller
General as required by 5 U.S.C. 801(a)(1).
E. Executive Order 13132 (Federalism)
This final 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. Therefore, in accordance with section 6
of Executive Order 13132, it is determined that this final rule does
not have sufficient federalism implications to warrant the preparation
of a federalism summary impact statement.
F. Executive Order 12988 (Civil Justice Reform)
This final rule was drafted and reviewed in accordance with E.O.
12988, Civil Justice Reform. This final rule was written to provide a
clear legal standard for affected conduct and was carefully reviewed to
eliminate drafting errors and ambiguities, so as to minimize litigation
and undue burden on the Federal court system. DHS has determined that
this final rule meets the applicable standards provided in section 3 of
E.O. 12988.
G. Executive Order 13175
This final rule does not have Tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does 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.
H. National Environmental Policy Act (NEPA)
DHS and its components analyze proposed actions to determine
whether the National Environmental Policy Act \278\ (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) \279\ establish the procedures DHS and its
components use to comply with NEPA and the Council on Environmental
Quality (CEQ) regulations for implementing NEPA. See 40 CFR parts 1500
through 1508. 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 or Environmental Impact Statement. See 40 CFR
1501.4(a). Instruction Manual, Appendix A, Table 1 lists the DHS
categorical exclusions.
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\278\ See Pub. L. 91-190, 42 U.S.C. 4321 through 4347.
\279\ See DHS, Directive 023-01, Rev 01, ``Implementation of the
National Environmental Policy Act,'' (Oct. 31, 2014), and DHS
Instruction Manual 023-01-001-01, Revision 01, ``Implementation of
the National Environmental Policy Act (NEPA)'' (Nov. 6, 2014),
https://www.dhs.gov/publication/directive-023-01-rev-01-and-instruction-manual-023-01-001-01-rev-01-and-catex.
---------------------------------------------------------------------------
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 create the
potential for a significant environmental effect.\280\
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\280\ See Instruction Manual, section V.B.2 (a-c).
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This final rule amends administrative and procedural requirements
to modernize and improve H-2 programs. The final rule will improve
program integrity while increasing flexibility, efficiency, and
improving access to the H-2 programs. Specifically, DHS is clarifying
which fees are prohibited to be collected under H-2 regulations,
strengthening the prohibition on collecting or agreeing to collect such
fees from H-2 workers, extending 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 United States after
their employment ends to prepare for departure or seek new employment.
The final rule also includes a new, longer grace period for H-2 workers
whose employment terminated early. DHS is also making portability
permanent in the H-2 programs, and allowing H-2 workers to take certain
steps toward becoming permanent residents of the United States while
still maintaining lawful nonimmigrant status. DHS is also codifying
additional efficiencies in the H-2 programs by eliminating the H-2
eligible countries lists and the H-2 ``interrupted stay'' provisions,
and by 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 environmental effect from current H-2 program rules, that
will result from the final rule changes. DHS therefore finds that this
final rule clearly fits within categorical exclusion A3 established in
the Department's implementing procedures in Instruction Manual,
Appendix A.
The amendments contained in this final rule are stand-alone rule
changes for USCIS H-2 programs and are not a part of any larger action.
In accordance with its implementing procedures, DHS finds no
extraordinary circumstances
[[Page 103327]]
associated with this final rule 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.
I. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Pub. L. 104-13, all
agencies must submit to OMB, for review and approval, any reporting
requirements inherent in a rule, unless they are exempt.
In compliance with the PRA, DHS requested comments to the
information collection associated with this rulemaking in the NPRM
published in the Federal Register on September 20, 2023. DHS would have
addressed any comments received on information collection activities in
Section IV. of this final rule. After the publication of the NPRM, DHS
published the Fee Schedule Final Rule (``Fee Rule'') on January 31,
2024, and that rule went into effect on April 1, 2024. 89 FR 6194.
Subsequently, DHS updated the information collection and the baseline
estimated total number of respondents and the amount of time estimated
for an average respondent to respond, to reflect the changes to the
information collection approved in connection with the Fee Rule. As a
result, the estimated total public burden in hours and cost associated
with the information collection has changed since the publication of
the NPRM.\281\
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\281\ In the NPRM, DHS estimated that the total estimated number
of respondents for the information collection I-129 was 294,751 and
the estimated hour burden per response was 2.34 hours.
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Overview of information collection:
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Petition for a Nonimmigrant
Worker.
(3) Agency form number, if any, and the applicable component of the
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
572,606 and the estimated hour burden per response is 2.487 hours; the
estimated total number of respondents for the information collection E-
1/E-2 Classification Supplement to Form I-129 is 12,050 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 12,945 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
471,983 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
398,936 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 40,358 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 28,434 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
54 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 6,782 and the estimated
hour burden per response is 2.34 hours.
(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 3,023,717 hours. This is a 108,556 increase
from the current estimate of 2,915,161 burden hours annually. The
overall change in burden estimates reflects the 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 3-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 $294,892,090.
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.
Accordingly, DHS is amending 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);
[[Page 103328]]
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 and republishing paragraph (h)(5)(vi);
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 and republishing paragraph (h)(6)(i);
0
m. Revising paragraph (h)(6)(vii);
0
n. Adding paragraph (h)(10)(iv);
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 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. Up to 25 named beneficiaries 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, and in the same location. If more than 25 named
beneficiaries are being petitioned for, an additional petition is
required.
(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
[[Page 103329]]
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) Petitioner consent and notification requirements--(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) Agreements. The petitioner agrees to the following
requirements:
(1) To notify DHS, within 2 workdays, and beginning on a date and
in a manner specified in a notice published in the Federal Register if:
(i) An H-2A worker does not report for 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;
(ii) The agricultural labor or services for which H-2A workers were
hired is completed more than 30 days earlier than the employment end
date stated on the H-2A petition; or
(iii) The H-2A worker 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.
(2) To retain evidence of such notification and make it available
for inspection by DHS officers for a 1-year period beginning on the
date of the notification. To retain evidence of a different employment
start date if it is changed from that on the petition by the employer
and make it available for inspection by DHS officers for the 1-year
period beginning on the newly-established employment start date.
(3) To pay $10 in liquidated damages for each instance where the
employer cannot demonstrate that it has complied with the notification
requirements, unless, in the case of an untimely notification, the
employer demonstrates with such notification that good cause existed
for the untimely notification, and DHS, in its discretion, waives the
liquidated damages amount.
(C) Process. If DHS has determined that the petitioner has violated
the notification requirements in paragraph (h)(5)(vi)(B)(1) of this
section and has not received the required notification, the petitioner
will be given written notice and 30 days to reply before being given
written notice of the assessment of liquidated damages.
(D) Failure to pay liquidated damages. If liquidated damages are
not paid within 10 days of assessment, an H-2A petition may not be
processed for that petitioner or any joint employer shown on the
petition until such damages are paid.
(vii) Validity. An approved H-2A petition is valid through the
expiration of the relating certification for the purpose of allowing a
beneficiary to seek issuance of an H-2A nonimmigrant visa, admission or
an extension of stay for the purpose of engaging in the specific
certified employment.
(viii) * * *
(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 for 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.
* * * * *
[[Page 103330]]
(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 of
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 or any person acting on the beneficiary's behalf 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 term ``similar employment service'' refers
to any person or entity that recruits or solicits prospective
beneficiaries of the H-2A petition. 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
their employees), employers or any joint employers, agents, attorneys,
facilitators, recruiters, or similar employment services from receiving
reimbursement from the beneficiary for costs that are the
responsibility and primarily for the benefit of the worker, such as
government-required passport fees. This provision does not prohibit
employers from allowing workers to initially incur fees or expenses
that the employers are required to subsequently reimburse, where such
arrangement is specifically permitted by, and performed in compliance
with statute or regulations governing the H-2A program.
(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, USCIS will deny or revoke the H-2A
petition filed on or after January 17, 2025 on notice unless the
petitioner demonstrates through clear and convincing evidence that: the
petitioner made ongoing, good faith, reasonable efforts to prevent and
learn of the prohibited fee collection or agreement by its employees
throughout the recruitment, hiring, and employment process;
extraordinary circumstances beyond the petitioner's control resulted in
its failure to prevent collection or entry into agreement for
collection of prohibited fees; the petitioner took immediate remedial
action as soon as it became aware of the payment of or agreement to pay
the prohibited fee; and the petitioner fully reimbursed all affected
beneficiaries or, only if such beneficiaries cannot be located or are
deceased, it fully reimbursed the beneficiaries' designees.
(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, USCIS will deny or revoke
the H-2A petition filed on or after January 17, 2025 on notice unless
the petitioner demonstrates to USCIS through clear and convincing
evidence that: the petitioner made ongoing, good faith, reasonable
efforts to prevent and learn of the prohibited fee collection or
agreement by such parties throughout the recruitment, hiring, and
employment process; the petitioner took immediate remedial action as
soon as it became aware of the payment of or agreement to pay the
prohibited fee; and that all affected beneficiaries, or their designees
only if such beneficiaries cannot be located or are deceased, 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.
(3) For purposes of paragraph (h)(5)(xi) of this section, 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, 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.
(B) One-year denial period 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-2B or H-2A petition on the basis of paragraph (h)(6)(i)(B) or
(h)(5)(xi)(A), respectively, of this section, provided that the denied
or revoked petition was filed on or after January 17, 2025. In
addition, USCIS will deny any H-2A petition filed by the same
petitioner or successor in interest within 1 year after withdrawal of
an H-2A or H-2B petition filed on or after January 17, 2025, 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 of approval of future H-2A
petitions--(1) Additional 3-year denial period 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 only if such
beneficiary cannot be located or is deceased, of the denied or revoked
petition from whom a prohibited fee was collected. USCIS will deny H-2A
petitions under this provision based on the denial or revocation
decision(s) issued pursuant to paragraph (h)(5)(xi)(A) or (h)(6)(i)(B)
of this section on a prior petition filed on or after January 17, 2025.
(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;
[[Page 103331]]
(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) Petition--(A) H-2B nonagricultural temporary worker. An H-2B
nonagricultural temporary worker is an alien who is coming temporarily
to the United States to perform temporary services or labor without
displacing qualified United States workers available to perform such
services or labor and whose employment is not adversely affecting the
wages and working conditions of United States workers.
(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 or any person acting on the
beneficiary's behalf by a petitioner, a petitioner's employee, agent,
attorney, facilitator, recruiter, or similar employment service, or any
employer (if different from the petitioner). The term ``similar
employment service'' refers to any person or entity that recruits or
solicits prospective beneficiaries of the H-2B petition. 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
their employees), employers, agents, attorneys, facilitators,
recruiters, or similar employment services from receiving reimbursement
from the beneficiary for costs that are the responsibility and
primarily for the benefit of the worker, such as government-required
passport fees. This provision does not prohibit employers from allowing
workers to initially incur fees or expenses that the employers are
required to subsequently reimburse, where such arrangement is
specifically permitted by, and performed in compliance with, statute or
regulations governing the H-2B program.
(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, USCIS will deny or revoke the H-2B
petition filed on or after January 17, 2025 on notice unless the
petitioner demonstrates through clear and convincing evidence that: the
petitioner made ongoing, good faith, reasonable efforts to prevent and
learn of the prohibited fee collection or agreement throughout the
recruitment, hiring, and employment process; extraordinary
circumstances beyond the petitioner's control resulted in its failure
to prevent collection or entry into agreement for collection of
prohibited fees; the petitioner took immediate remedial action as soon
as it became aware of the payment of or agreement to pay the prohibited
fee; and the petitioner fully reimbursed all affected beneficiaries or,
only if such beneficiaries cannot be located or are deceased, it fully
reimbursed their designees.
(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, USCIS will
deny or revoke the H-2B petition filed on or after January 17, 2025 on
notice unless the petitioner demonstrates to USCIS through clear and
convincing evidence that: the petitioner made ongoing, good faith,
reasonable efforts to prevent and learn of the prohibited fee(s)
collection or agreement by such parties throughout the recruitment,
hiring, and employment process; the petitioner took immediate remedial
action as soon as it became aware of the payment of the prohibited fee
or agreement; and all affected beneficiaries, or their designees only
if such beneficiaries cannot be located or are deceased, 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.
(3) For purposes of paragraph (h)(6)(i) of this section, 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.
(C) One-year denial period 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, provided that the denied
or revoked petition was filed on or after January 17, 2025. 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 filed on or after January 17, 2025, 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 of approval of future H-2B
petitions--(1) Additional 3-year denial period 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 only if such beneficiary cannot be located or is deceased, of
the denied or revoked petition from whom a prohibited fee was
collected. USCIS will deny H-2B petitions under this provision based on
the denial or revocation decision(s) issued pursuant to paragraph
(h)(6)(i)(B) or (h)(5)(xi)(A) of this section on a prior petition filed
on or after January 17, 2025.
(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 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;
[[Page 103332]]
(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.
(E) [Reserved]
(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) * * *
(iv) 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 filed on or after January 17, 2025 and during the debarment
period, or if the debarment occurs during the pendency of the petition
filed on or after January 17, 2025, and the final administrative
determination debarring the petitioner is made on or after January 17,
2025; or
(2) A final USCIS denial or revocation decision issued during the
pendency of the petition or within 3 years prior to filing the petition
that includes a finding of fraud or willful misrepresentation of a
material fact with respect to a previously filed H-2A or H-2B petition.
This provision will only apply if the final denial or revocation
decision was issued on a petition filed on or after January 17, 2025;
or
[[Page 103333]]
(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 if the final determination of violation(s) under
section 274(a) of the Act is made on or after January 17, 2025 and the
petition is filed on or after January 17, 2025.
(B) Except as provided in paragraph (h)(10)(iv)(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 on or after
January 17, 2025, 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, regardless of whether the action(s) or
underlying violation(s) occurred before, on, or after January 17, 2025.
USCIS may deny such a petition if it determines that the petitioner or
successor has not established its intention and/or ability to comply
with H-2A or H-2B program requirements. The violation(s) underlying the
following actions that may call into question a petitioner's or
successor's intention and/or ability to comply include:
(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 final 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)(iv)(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)(iv)(B) of this section calls into question the intention and/or
ability 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)(iv) 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)(iv)(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)(iv)(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)(iv)(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.
(F) If USCIS has determined in the course of a prior adjudication
that a petitioner (or the preceding entity, if the petitioner is a
successor in interest) has established its intention and ability to
comply with H-2A or H-2B program requirements notwithstanding relevant
violation determination(s) under paragraph (h)(10)(iv)(B) of this
section, USCIS will not seek to deny a subsequent petition under
paragraph (h)(10)(iv)(B) based on the same previous violation
determination(s) unless USCIS becomes aware of a new material fact or
finds that its previous determination was based on a material error of
law.
(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.
[[Page 103334]]
(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. 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 an immediate relative or preference
petition for or by an alien or a diversity visa petition with the
Department of State, 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 an immediate relative petition, preference
petition, or diversity visa 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 8 CFR 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 8 CFR 214.1(c)(4) and 8
CFR 248.1(b). USCIS will determine the reasonableness of any claim from
the perspective of a reasonable person in the H-2A or H-2B worker's
position.
* * * * *
(30) Severability. The Department intends that should any of the
revisions effective on January 17, 2025, to provisions in paragraphs
(h)(2), (5), (6), (10), (11), (13), (16) and (20) of this section or to
the provision in 8 CFR 274a.12(b)(21) 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, unless
any such provision is held to be wholly invalid and unenforceable, in
which event the provision(s) should be severed from the remainder of
the provisions and the holding should not affect the other provisions
or the application of those other provisions to persons not similarly
situated or to dissimilar circumstances.
* * * * *
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
0
3. The authority citation for part 274a is revised 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) * * *
(21) A nonimmigrant alien within the class of aliens described in 8
CFR 214.2(h)(1)(ii)(C) or 8 CFR
[[Page 103335]]
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. 2024-29353 Filed 12-17-24; 8:45 am]
BILLING CODE 9111-97-P