[Federal Register Volume 90, Number 189 (Thursday, October 2, 2025)]
[Rules and Regulations]
[Pages 47507-47512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-19235]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 214
[CIS No. 2832-25; DHS Docket No. USCIS-2025-0238]
RIN 1615-AD04
Facilitating Earlier Filing of Certain Electronically Submitted
H-2A Petitions
AGENCY: U.S. Citizenship and Immigration Services (``USCIS''),
Department of Homeland Security (``DHS'').
ACTION: Final rule.
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SUMMARY: This final rule amends DHS regulations to modify the timing of
when USCIS must receive a valid temporary labor certification when an
H-2A petitioner electronically files a Petition for a Nonimmigrant
Worker requesting unnamed beneficiaries.
DATES: This final rule is effective on October 2, 2025.
FOR FURTHER INFORMATION CONTACT: Business and Foreign Workers Division,
Office of Policy and Strategy, U.S. Citizenship and Immigration
Services, Department of Homeland Security, 5900 Capital Gateway Drive,
Camp Springs, MD 20746; telephone 240-721-3000 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Background
The Immigration and Nationality Act (INA), as amended, establishes
the H-2A nonimmigrant classification for a temporary worker ``having a
residence in a foreign country which he has no intention of abandoning
who is coming temporarily to the United States to perform agricultural
labor or services . . . of a temporary or seasonal nature.'' INA
section 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a). Employers
must petition the Department of Homeland Security (DHS), U.S.
Citizenship and Immigration Services (USCIS), for classification of
prospective temporary workers as H-2A nonimmigrants. INA section
214(c)(1), 8 U.S.C. 1184(c)(1). DHS must approve this petition before
the beneficiary can be considered eligible for an H-2A visa. Finally,
the INA requires that ``[t]he question of importing any alien as [an H-
2A] nonimmigrant . . . in any specific case or specific cases shall be
determined by [DHS],\1\ after consultation with
[[Page 47508]]
appropriate agencies of the Government . . . mean[ing] the U.S.
Department of Labor and includ[ing] the U.S. Department of
Agriculture.'' INA section 214(c)(1), 8 U.S.C. 1184(c)(1).
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\1\ As of March 1, 2003, in accordance with section 1517 of
Title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-
296, 116 Stat. 2135, any reference to the Attorney General in a
provision of the Immigration and Nationality Act (INA) describing
functions which were transferred from the Attorney General or other
Department of Justice official to the Department of Homeland
Security by the HSA ``shall be deemed to refer to the Secretary'' of
Homeland Security. See 6 U.S.C. 557 (2003) (codifying HSA, Title XV,
sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note. The Secretary of
Homeland Security has authority to enforce and administer the
immigration laws, including those relating to nonimmigrants, and to
``establish such regulations; prescribe such forms of bond, reports,
entries, and other papers; issue such instructions; and perform such
other acts as [s]he deems necessary for carrying out h[er]
authority'' under the INA. 8 U.S.C. 1103(a)(1), (a)(3); see also,
e.g., 6 U.S.C. 202(3)-(4), 236(b), 271(a)(3), (b); 8 U.S.C. 1184.
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Existing DHS regulations provide that an H-2A petition for
temporary employment in the United States must be accompanied by a
single valid temporary labor certification (TLC) from the U.S.
Department of Labor (DOL) issued in accordance with INA section 218, 8
U.S.C. 1188, and DOL regulations established at 20 CFR part 655,
subpart B. 8 CFR 214.2(h)(5)(i)(A), (D), (h)(5)(iv); see also INA
sections 214(c)(1) and 218, 8 U.S.C. 1184(c)(1) and 1188.\2\ The TLC
serves as DHS's consultation with DOL regarding whether: (i) An able,
willing, and qualified U.S. worker is available to fill the petitioning
H-2A employer's job opportunity, and (ii) whether a foreign worker's
employment in the job opportunity will adversely affect the wages or
working conditions of similarly employed workers in the U.S. See INA
sections 214(c)(1) and 218, 8 U.S.C. 1184(c)(1) and 1188; see also 8
CFR 214.2(h)(5)(ii); 20 CFR 655.100.
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\2\ Under certain emergent circumstances, petitions requesting a
continuation of employment with the same employer for 2 weeks or
less are exempt from the TLC requirement. See 8 CFR 214.2(h)(5)(x).
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DHS regulations refer to a valid TLC by various terms including
``Department of Labor determination'' at 8 CFR 214.2(h)(2)(i)(E),
``approved labor certification'' at 8 CFR 214.2(h)(5)(x), and
``temporary agricultural labor certification'' at 8 CFR
214.2(h)(5)(i)(A), (h)(5)(iv)(B). The Form I-129, H-2A instructions
also indicate that petitioners must submit a single valid temporary
labor certification from DOL.\3\
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\3\ See https://www.uscis.gov/i-129. Under certain emergent
circumstances, petitions requesting a continuation of employment
with the same employer for 2 weeks or less are exempt from the TLC
requirement. See 8 CFR 214.2(h)(5)(x).
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In 2019, DOL's Office of Foreign Labor Certification (OFLC)
announced that it was transitioning electronic filing of H-2A
applications to the new Foreign Labor Application Gateway (FLAG) system
beginning October 1, 2019.\4\ The transition to the FLAG system meant
that employers whose TLCs were approved would receive the Form ETA-
9142A, Final Determination: H-2A Temporary Labor Certification
Approval, and Final Determination letter electronically, rather than
receiving a paper TLC and Final Determination by mail. DOL provided a
paper delivery exception for employers, including their authorized
attorneys or agents who were not able to receive this documentation
electronically. To effectuate this change, on March 6, 2020, USCIS
published a notice in the Federal Register announcing that employers
who received TLCs through DOL's FLAG system would need to provide a
printed copy of the DOL Final Determination with the H-2A petition as
required initial evidence and that a printed copy of the Final
Determination completed and electronically signed by DOL satisfies the
requirement that petitioners provide evidence of a valid TLC pursuant
to 8 CFR 214.2(h)(5)(i)(A).\5\
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\4\ See https://www.dol.gov/agencies/eta/foreign-labor/news.
\5\ Notice of DHS's Requirement of the Temporary Labor
Certification Final Determination Under the H-2A Temporary Worker
Program, 85 FR 13176 (Mar. 6, 2020).
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In 2022, DOL made electronic filing and issuance of temporary
agricultural labor certifications in the H-2A program mandatory, except
in limited circumstances.\6\ A printed copy of the signed DOL Final
Determination is still required to be submitted to USCIS with the
paper-filed H-2A petition on Form I-129 as initial evidence of a valid
TLC.
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\6\ Temporary Agricultural Employment of H-2A Nonimmigrants in
the United States, 87 FR 61660, 61783 (Oct. 12, 2022) (``. . .
[T]his final rule requires an employer to submit the Application for
Temporary Employment Certification and all required supporting
documentation using an electronic method(s) designated by the OFLC
Administrator, unless the employer cannot file electronically due to
disability or lack of internet access.''); 20 CFR 655.130(c).
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II. Purpose of Final Rule
This rule modifies the timing of when USCIS must receive a valid
TLC for certain H-2A petitions, as part of a larger effort by DOL and
DHS (collectively, ``the Departments'') to modernize and streamline the
H-2A process. In light of an urgent demand for an authorized
agricultural labor force \7\ and requests from the regulated community
and members of Congress to make the H-2A program easier to use and more
efficient for U.S. agricultural producers,\8\ the Departments are
collaborating to create a more streamlined application and petition
filing process for U.S. agricultural producers to help meet an urgent
need for H-2A temporary agricultural workers while simultaneously
ensuring that petitioners are complying with all statutory and
regulatory requirements of the H-2A program. While both OFLC and USCIS
have separately been meeting applicable processing timeframes,\9\ this
effort is nonetheless aimed at improving customer service by reducing
the overall time across Federal departments it takes to complete the
temporary agricultural labor certification and nonimmigrant petition
processes for petitioners seeking to employ H-2A workers, and also make
the process more modernized and streamlined for H-2A petitioners.
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\7\ See, e.g., American Enterprise Institute, Immigration
Enforcement and the US Agricultural Sector in 2025 (Apr. 15, 2025)
(``Anticipation of a reduced unauthorized immigrant worker supply
will likely incentivize the agricultural sector to renew efforts to
pass legislation that streamlines the H-2A program.''), https://www.aei.org/research-products/report/immigration-enforcement-and-the-us-agricultural-sector-in-2025/ (last visited July 30, 2025);
USDA, Economic Research Service, Farm Labor (July 7, 2025) (noting
that ``[o]ne of the clearest indicators of the scarcity of farm
labor is the fact that the number of H-2A positions requested and
approved has increased more than sevenfold in the past 18 years''),
https://www.ers.usda.gov/topics/farm-economy/farm-labor (last
visited July 29, 2025); Fran Howard, Dairy Herd Management, Labor
Shortage Continues to Plague Farms (Mar. 11, 2025) (based on recent
trends, anticipating that ``U.S. farm employment will drop to the
lowest annual average since USDA began keeping track in 1996'' and
that ``the steep decline in jobs this year is primarily driven by
worker shortages''), https://www.dairyherd.com/news/labor/labor-shortage-continues-plague-farms (last visited July 29, 2025).
\8\ See the docket for this rulemaking for access to these
letters.
\9\ DOL OFLC issues 98 percent of complete temporary
agricultural labor certifications no later than 30 days before the
first date of need and within approximately 21-34 calendar days of
receipt. See DOL Flag Processing Times, https://flag.dol.gov/processingtimes (last visited Aug. 7, 2025); DOL, H-2A Selected
Statistics, https://www.dol.gov/agencies/eta/foreign-labor/performance (last visited Aug. 7, 2025). USCIS provides expedited
processing of Form I-129 for H-2A petitions and aims to process most
H-2A petitions within 15 days. See GAO, GAO-25-106389, ``H-2A
Program, Agencies Should Take Additional Steps to Improve Oversight
and Enforcement'' 21 (Nov. 2024), https://files.gao.gov/reports/GAO-25-106389/index.html#_ftnref48. Currently, USCIS's average
processing time for H-2A petitions is 11 days. See Department of
Homeland Security, U.S. Citizenship and Immigration Services, Office
of Performance and Quality, CLAIMS3, queried 08/2025, TRK 18511.
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In furtherance of that overarching objective, DHS has received OMB
approval on August 13, 2025 of a newly developed, streamlined PDF
version of the Form I-129 petition, called Form I-129H2A, Petition for
Nonimmigrant Worker: H-2A Classification, that H-2A petitioners may use
to electronically file with USCIS. With the new Form I-129H2A, the
petitioner is able to
[[Page 47509]]
electronically submit evidence of the approved TLC to USCIS, rather
than having to submit a printed copy of the approved TLC to USCIS as
with the current paper-filed Form I-129. Because the streamlined Form
I-129H2A is currently available for petitioners to submit
electronically, this rule has no effect on the availability of
electronic submission.
Under this rule, petitioners seeking unnamed beneficiaries will be
able to electronically submit the H-2A petition after DOL issues a
Notice of Acceptance (NOA) on the H-2A TLC application, pursuant to 20
CFR 655.143, and before the TLC is certified. New 8 CFR
214.2(h)(5)(i)(A). This change alters the earliest permissible
submission date and enables USCIS to commence concurrent processing
\10\ of the H-2A petition while DOL processes the TLC, thereby allowing
electronic filers to file earlier than currently permitted. Petitioners
seeking concurrent processing under this rule must provide on the H-2A
petition the ETA case number for the underlying TLC application but are
not required to electronically submit a copy of the NOA or TLC as
initial evidence, as USCIS will generally be able to access the
relevant DOL information and verify both issuance of the NOA and
subsequent approval of the TLC from the ETA case number. USCIS will
continue to ensure that no H-2A petition is approved until DOL approves
the TLC. New 8 CFR 214.2(h)(5)(i)(A)(2). If applicable, USCIS will make
necessary modifications to the concurrently processed H-2A petition to
reflect any modifications made by DOL to the TLC after issuance of the
NOA and before certification, such as when DOL amends the first date of
need or reduces the number of workers requested through partial
certification. Id. H-2A TLC applications that are ultimately denied
will lead to a denial of the H-2A petition. Id. Note that concurrent
processing will be optional; petitioners seeking unnamed beneficiaries
may choose to wait until the underlying TLC has been approved before
electronically filing their H-2A petition.
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\10\ Not to be confused with ``concurrent filing,'' concurrent
processing will permit USCIS to electronically intake the H-2A
petition and commence processing after DOL issues a notice of
acceptance and continues processing the H-2A TLC application.
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Petitioners seeking named beneficiaries will not be affected by
this rule. Thus, petitioners seeking named beneficiaries will continue
to be able to submit a petition to USCIS only after DOL certifies the
H-2A TLC application. Named beneficiary petitions trigger additional
legal and operational considerations, such as the 25-beneficiary limit
requiring multiple petition filings supported by the same TLC, a more
complicated fee structure, and the associated extension of stay or
change of employer requests. H-2A portability, which allows a named H-
2A worker to start working upon a petitioner's proper filing of an H-2A
petition filed on the worker's behalf and in accordance with DHS
regulations, also assumes a valid TLC, at the time the H-2A petition is
filed, that accurately covers terms and conditions of employment that
are applicable while the H-2A petition is pending.\11\ Finally,
modifications to the TLC by DOL could have significant ramifications on
H-2A portability or for any named beneficiaries that USCIS cannot
simply account for with corresponding modification of the petition.\12\
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\11\ See 8 CFR 214.2(h)(2)(i)(I).
\12\ For instance, if DOL were to approve a TLC for fewer
workers than those named on the corresponding H-2A petition, USCIS
would need to make additional determinations as to which of the
named alien beneficiaries (who may already be in the United States)
would be omitted from the petition.
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In addition, the procedural change in this rule will not apply to
paper-filed H-2A petitions; petitioners submitting paper H-2A petitions
must continue to file only after DOL approves the H-2A TLC application.
As electronic filing is a more efficient process than paper filing and
offers greater potential for future development of further processing
efficiencies, DHS believes that it is appropriate to limit the
concurrent processing facilitated by this rule to electronically filed
petitions as an incentive for H-2A petitioners to choose to
electronically file their petitions. Since USCIS has recently made
electronic filing available to H-2A petitioners, DHS anticipates fast
and widespread adoption of electronic filing by H-2A petitioners
covered by this rule given that H-2A petitioners already must
electronically file their H-2A TLC applications with DOL.\13\
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\13\ See 20 CFR 655.130(c) (stating that an H-2A employer ``must
file'' the TLC application ``using the electronic method(s)
designated by the OFLC Administrator,'' while providing a limited
exception to allow employers to file by mail if they are granted a
reasonable accommodation request by DOL).
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In summary, this final rule amends 8 CFR 214.2(h)(5)(i)(A) and (D)
to add an exception to the existing requirement that a valid temporary
agricultural labor certification must be provided at the time of
filing, for H-2A petitions requesting unnamed beneficiaries that are
being filed electronically, and to make other conforming edits. See new
8 CFR 214.2(h)(5)(i)(A)(1) and (2) and revised (h)(5)(i)(D). This
change enables USCIS to commence processing of the H-2A petition while
DOL is also processing the TLC in these cases. However, USCIS will
continue to ensure that DOL approved the TLC before approving the H-2A
petition.\14\
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\14\ In issuing this final rule, the Department consulted with
the U.S. Department of Labor and the U.S. Department of Agriculture.
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III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
The Administrative Procedure Act, 5 U.S.C. 553(b)-(c) requires
agencies to publish a notice of proposed rulemaking and provide an
opportunity for public comment when issuing rules, unless such rules
are rules of agency organization, procedure, or practice. DHS has
issued this final rule without prior notice and opportunity for comment
because this is a rule of agency organization, procedure, or practice
(``procedural rule''). 5 U.S.C. 553(b)(A). The procedural rule
exception ``covers agency actions that do not themselves alter the
rights or interests of parties, although it may alter the manner in
which the parties present themselves or their viewpoints to the
agency.'' JEM Broad. Co., Inc. v. FCC, 22 F.3d 320, 326 (D.C. Cir.
1994) (quoting Batterton v. Marshall, 648 F.2d 694, 707 (D.C. Cir.
1980)); see also Mendoza v. Perez, 754 F.3d 1002, 1023-24 (D.C. Cir.
2014); Am. Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1047 (D.C. Cir. 1987)
(holding that procedural rules are those that do not ``encode a
substantive value judgment or put a stamp of approval or disapproval on
a given type of behavior'').
This final rule merely changes the timing of when a valid TLC may
be provided to USCIS when a petitioner is voluntarily filing an H-2A
petition requesting unnamed beneficiaries electronically with USCIS. It
does not alter the rights or interests of any party or encode a
substantive value judgment on a given type of private behavior. An
approved TLC still must be provided to USCIS before USCIS can complete
the adjudication of the H-2A petition. Accordingly, DHS may forgo
advance notice and opportunity for comment.
Section 553(d) of the APA requires that agencies publish
substantive rules at least 30 days before their effective date, unless
one of the enumerated exceptions applies. Because this rule governs
agency procedure and does not alter the substantive rights or
obligations of regulated parties, it is not a substantive rule within
the meaning of
[[Page 47510]]
section 553(d). Some courts have recognized that the 30-day delayed
effective date requirement applies only to substantive rules, and
therefore does not extend to rules of agency procedure. See, e.g.,
Rowell v. Andrus, 631 F.2d 699, 702 (10th Cir. 1980) (recognizing that
5 U.S.C. 553(d) applies to substantive rules and by implication exempts
procedural rules). The D.C. Circuit has, however, suggested that
section 553(d) may apply more broadly, stating that the 30-day
requirement ``applies even to rules of agency organization, procedure,
or practice, but is not required for `interpretive rules and statements
of policy.'' Batterton v. Marshall, 648 F.2d 694, 701 (D.C. Cir. 1980).
To the extent section 553(d) is construed to apply to this rule, we
find good cause under section 553(d)(3) to make this rule effective
upon publication. Courts have recognized that section 553(d) serves a
distinct purpose and have applied a test weighing whether the need for
immediate implementation outweighs affected parties' need to prepare
for implementation of the new rule. See Riverbend Farms, Inc. v.
Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992); Am. Fed'n of Gov't Emps.,
AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981). In the case of
this procedural rule, we find immediate implementation appropriate. The
rule simply permits concurrent processing of electronically filed
petitions with unnamed beneficiaries, allowing petitioners the
flexibility to file a petition with USCIS sooner than previously
permitted. As such, petitioners do not need to take any preparatory
steps and delaying implementation would only postpone the intended
efficiency. For these reasons, DHS may forgo a 30-day delayed effective
date in implementing this procedural rule.
B. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and Executive
Order 14192 (Unleashing Prosperity Through Deregulation)
Executive Orders 12866 (Regulatory Planning and 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. Executive Order 13563 emphasizes the importance of
quantifying costs and benefits, reducing costs, harmonizing rules, and
promoting flexibility. The Office of Management and Budget (OMB) has
not designated this rule a ``significant regulatory action,'' under
section 3(f) of Executive Order 12866. Accordingly, OMB has not
reviewed it.
Executive Order 14192 (Unleashing Prosperity Through Deregulation)
directs agencies to significantly reduce the private expenditures
required to comply with Federal regulations and provides that ``any new
incremental costs associated with new regulations shall, to the extent
permitted by law, be offset by the elimination of existing costs
associated with at least 10 prior regulations.'' This rule is not an
Executive Order 14192 regulatory action because it is being issued with
respect to an immigration-related function of the United States. The
rule's primary direct purpose is to implement or interpret the
immigration laws of the United States (as described in INA Sec.
101(a)(17), 8 U.S.C. 1101(a)(17)) or any other function performed by
the U.S. Federal Government with respect to aliens. See OMB Memorandum
M-25-20, ``Guidance Implementing Section 3 of Executive Order 14192,
titled `Unleashing Prosperity Through Deregulation' '' (Mar. 26, 2025).
The costs to the public of this rule include the potential cost to
petitioners pursuing concurrent processing whose TLC is denied by the
DOL after having paid the non-refundable filing fees to USCIS.\15\ We
estimate that 73.0 percent of H-2A petitions are filed annually for
unnamed beneficiaries, and that 94.8 percent of petitioners file
unnamed beneficiary petitions.\16\ Given that DOL has mandated
electronic filing of H-2A TLC applications, by regulation, since
November 14, 2022, we anticipate that many of those petitioners, and
particularly those familiar with DOL programmatic requirements, will
choose concurrent processing for electronically filed unnamed
beneficiary petitions as their risk of having their TLCs denied after
DOL issues a Notice of Acceptance is likely low. However, DHS cannot
definitively estimate the number of petitioners who will ultimately opt
for concurrent processing. The filing fees for Form I-129 for unnamed
beneficiaries range from $460 for small employers and non-profits to
$530 for other filers.\17\ Employers that file a Form I-129 also pay
the Asylum Program Fee; the standard fee is $600, but is $300 for small
employer petitioners with 25 or fewer full-time equivalent employees.
Nonprofit employers are exempt from the Asylum Program Fee.\18\
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\15\ DOL's denial rates for H-2A Applications are low. In fiscal
year 2024, DOL denied 158 applications out of 22,623 received--a
denial rate of less than 1 percent. Calculation: 158 denials/22,623
applications = 0.00698 (rounded) approximately 0.7 percent. See DOL,
Office of Foreign Labor Certification ``H-2A Temporary Agricultural
Program--Selected Statistics, Fiscal Year (FY) 2024'' available at
https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2A_Selected_Statistics_FY2024_Q4.pdf (accessed August 5, 2025).
\16\ Source: DHS, USCIS, Office of Performance and Quality,
CLAIMS3 & ELIS, queried 08/2025, PAER0018649.
\17\ See DHS, USCIS, Form G-1055 Fee Schedule available at
https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf
(accessed August 1, 2025).
\18\ See DHS, USCIS, ``USCIS Reminds Certain Employment-Based
Petitioners to Submit the Correct Required Fees'' available at
https://www.uscis.gov/newsroom/alerts/uscis-reminds-certain-employment-based-petitioners-to-submit-the-correct-required-fees
(accessed August 4, 2025).
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The benefits to the employers using H-2A concurrent processing for
certain electronically filed H-2A petitions, and to the resulting
employees, is that productivity is shifted forward by approximately two
weeks. This is not an extension of the time an H-2A employee is
permitted to work in the United States; it only expedites the process.
However, DHS expects that employers using this process will receive
some expected benefit; otherwise, they are not expected to incur the
risk associated with a denied TLC and lost filing fee. However, we are
not able to monetize this expected benefit.
Given these factors, DHS has determined that this rule is not
likely to have an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; and is therefore not economically significant under
section 3(f)(1) of Executive Order 12866.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), requires an agency to prepare and make available to the
public a regulatory flexibility analysis that describes the effect of
the rule on small entities (i.e., small businesses, small
organizations, and small governmental jurisdictions). The RFA's
regulatory flexibility analysis requirements apply only to those rules
for which an agency is required to publish a general notice of proposed
rulemaking pursuant to 5 U.S.C. 553 or any other law. See 5 U.S.C.
604(a). DHS did not issue a notice of proposed rulemaking for this
action. Therefore, a regulatory flexibility analysis is not required
for this rule.
[[Page 47511]]
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed rule, or final rule
for which the agency published a proposed rule, which includes any
Federal mandate 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.\19\ The
inflation adjusted value of $100 million in 1995 is approximately $206
million in 2024 based on the Consumer Price Index for All Urban
Consumers (CPI-U).\20\ This final rule is exempt from the written
statement requirement, because DHS did not publish a notice of proposed
rulemaking for this rule. In addition, this final rule does not contain
a Federal mandate as the term is defined under UMRA.\21\ The
requirements of title II of UMRA, therefore, do not apply, and DHS has
not prepared a statement under UMRA.
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\19\ See 2 U.S.C. 1532(a).
\20\ See DOL, 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-202412.pdf (last visited Apr. 30, 2025). Calculation of inflation:
(1) Calculate the average monthly CPI-U for the reference year
(1995) and the current year (2024); (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 2024 -
Average monthly CPI-U for 1995) / (Average monthly CPI-U for 1995)]
x 100 = [(313.689 - 152.383) / 152.383] = (161.306 / 152.383) =
1.059 x 100 = 105.86 percent = 106 percent (rounded). Calculation of
inflation-adjusted value: $100 million in 1995 dollars x 2.06 = $206
million in 2024 dollars.
\21\ The term ``Federal mandate'' means a Federal
intergovernmental mandate or a Federal private sector mandate. See 2
U.S.C. 1502(1), 658(6).
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E. Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)
This final rule is not a ``rule'' as defined by the Congressional
Review Act (CRA), enacted as part of the Small Business Regulatory
Enforcement Fairness Act of 1996, Public Law 104-121. See 5 U.S.C.
804(3)(C) (defining the term ``rule'' to exclude ``any rule of agency
organization, procedure, or practice that does not substantially affect
the rights or obligations of non-agency parties'').
F. Executive Order 13132 (Federalism)
This final rule does not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of E.O. 13132, Federalism, 64 FR 43255 (Aug. 4, 1999), this rule does
not have sufficient federalism implications to warrant the preparation
of a federalism summary impact statement.
G. Executive Order 12988 (Civil Justice Reform)
This 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 reviewed carefully to
eliminate drafting errors and ambiguities, so as to minimize litigation
and undue burden on the Federal court system. DHS has determined that
this rule meets the applicable standards provided in section 3 of E.O.
12988.
H. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This final rule does not have Tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would not have a substantial direct effect on
one or more Indian Tribes, on the relationship between the Federal
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes.
I. National Environmental Policy Act
DHS and its components analyze proposed regulatory actions to
determine whether the National Environmental Policy Act (NEPA), 42
U.S.C. 4321 et seq., applies to them and, if so, what degree of
analysis is required. DHS Directive 023-01 Rev. 01 ``Implementing the
National Environmental Policy Act'' (Dir. 023- 01 Rev. 01) and
Instruction Manual 023-01-001-01 Rev. 01 (Instruction Manual) \22\
establish the policies and procedures that DHS and its components use
to comply with NEPA.
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\22\ The Instruction Manual, which contains DHS's procedures for
implementing NEPA, was issued on November 6, 2014, and is available
at https://www.dhs.gov/ocrso/eed/epb/nepa (last updated Apr. 14,
2025).
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NEPA allows Federal agencies to establish, in their NEPA
implementing procedures, categories of actions (``categorical
exclusions'') that experience has shown do not, individually or
cumulatively, have a significant effect on the human environment and,
therefore, do not require an environmental assessment or environmental
impact statement. See 42 U.S.C. 4336(a)(2), 4336e(1). The Instruction
Manual, Appendix A lists the DHS Categorical Exclusions.\23\
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\23\ See Appendix A, Table 1.
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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.\24\
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\24\ Instruction Manual 023-01 at V.B(2)(a)-(c).
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This procedural final rule is limited to amending DHS's existing
regulations at 8 CFR 214.2(h)(5)(i)(A) and (D) to facilitate earlier
filing and concurrent processing by DOL and USCIS of H-2A petitions
filed on behalf of unnamed beneficiaries. DHS has reviewed this final
rule and finds that no significant impact on the environment, or any
change in environmental effect, will result from the amendments being
promulgated in this rule.
Accordingly, DHS finds that the promulgation of this rule's
amendments to current regulations clearly fits within categorical
exclusion A3 established in DHS's NEPA implementing procedures as an
administrative change with no change in environmental effect, is not
part of a larger Federal action, and does not present extraordinary
circumstances that create the potential for a significant environmental
effect.
J. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501-
3512, and implementing regulations, 5 CFR part 1320, DHS must submit to
the Office of Management and Budget (OMB) for review and approval, any
reporting requirements inherent in a rule, unless they are exempt. This
rule does not impose any new reporting or recordkeeping requirements
under the PRA.
However, this rule requires the use of USCIS Form I-129H2A,
Petition for Nonimmigrant Worker: H-2A Classification. OMB previously
approved this form under the PRA. The OMB control number for this
information collection is 1615-0009.
[[Page 47512]]
List of Subjects in 8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
program, Employment, Foreign officials, Health professionals, Reporting
and recordkeeping requirements, Students.
Accordingly, for the reasons set forth in the preamble, DHS amends
8 CFR part 214 as follows:
PART 214--NONIMMIGRANT CLASSES
0
1. Revise the authority citation for part 214 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 revising paragraphs (h)(5)(i)(A) and (D)
to read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(5) * * *
(i) * * *
(A) General. (1) An H-2A petition must be filed on the form
prescribed by USCIS and, except for an H-2A petition seeking unnamed
beneficiaries filed electronically pursuant to paragraph
(h)(5)(i)(A)(2) of this section, must be filed with a single valid
temporary agricultural labor certification issued by the Department of
Labor (DOL). The petition may be filed by either the employer listed on
the application for temporary labor certification, the employer's
agent, or the association of United States agricultural producers named
as a joint employer on the application for temporary labor
certification.
(2) An H-2A petition requesting unnamed beneficiaries may be filed
electronically after DOL issues a notice of acceptance and before DOL
approves the underlying application for temporary agricultural labor
certification. If applicable, USCIS will make necessary modifications
to the concurrently processed H-2A petition to reflect any
modifications made by DOL to the application for temporary agricultural
labor certification after issuance of the notice of acceptance and
before certification. The temporary agricultural labor certification
must be approved by DOL before USCIS may approve the H-2A petition,
provided that all other statutory and regulatory requirements are met.
If the H-2A petition is filed before DOL issues a notice of acceptance,
or if DOL denies the application for temporary agricultural labor
certification, USCIS will deny the H-2A petition.
* * * * *
(D) Evidence. An H-2A petitioner must show that the proposed
employment qualifies as a basis for H-2A status, and that any named
beneficiary qualifies for that employment. Except for an H-2A petition
filed electronically pursuant to paragraph (h)(5)(i)(A)(2) of this
section, an H-2A petition will be automatically denied if filed without
the certification evidence required in paragraph (h)(5)(i)(A)(1) of
this section and, for each named beneficiary, the initial evidence
required in paragraph (h)(5)(v) of this section.
* * * * *
Kristi Noem,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2025-19235 Filed 9-30-25; 4:15 pm]
BILLING CODE 9111-97-P