[Federal Register: February 13, 2008 (Volume 73, Number 30)]
[Proposed Rules]
[Page 8230-8247]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13fe08-21]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 8230]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214, 215 and 274a
[CIS No. 2428-07; Docket No. USCIS-2007-0055]
RIN 1615-AB65
Changes to Requirements Affecting H-2A Nonimmigrants
AGENCY: U.S. Citizenship and Immigration Services, U.S. Customs and
Border Protection, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security is proposing amendments to
its regulations affecting temporary and seasonal agricultural workers
within the H-2A nonimmigrant classification and their U.S. employers.
This rule proposes to relax the current limitations on the ability of
U.S. employers to petition unnamed agricultural workers to come to the
United States and include multiple beneficiaries who are outside the
United States on one petition. The rule proposes to revise the current
limitations on agricultural workers' length of stay including:
lengthening the amount of time an agricultural worker may remain in the
United States after his or her employment has ended and shortening the
time period that an agricultural worker whose H-2A nonimmigrant status
has expired must wait before he or she is eligible to obtain H-2A
nonimmigrant status again. This rule also proposes to provide for
temporary employment authorization to agricultural workers seeking an
extension of their H-2A nonimmigrant status through a different U.S.
employer, provided that the employer is a registered user of the E-
Verify employment eligibility verification program. In addition, the
rule proposes to modify the current notification and payment
requirements for employers when an alien fails to show up at the start
of the employment period, an H-2A employee's employment is terminated,
or an H-2A employee absconds from the worksite. To better ensure the
integrity of the H-2A program, this rule also proposes to require
certain employer attestations, preclude the imposition of fees by
employers or recruiters on prospective beneficiaries, preclude
reconsideration of certain temporary labor certification denials, and
bar H-2A status for nationals of countries consistently refusing or
unreasonably denying repatriation of its nationals. These changes are
necessary to encourage and facilitate the lawful employment of foreign
temporary and seasonal agricultural workers.
Finally, this rule proposes to establish a pilot program under
which aliens admitted on certain temporary worker visas at a port of
entry participating in the program must also depart through a port of
entry participating in the program and present designated biographical
information, possibly including biometric identifiers, upon departure.
U.S. Customs and Border Protection will publish a Notice in the Federal
Register designating which temporary workers must participate in the
program, which ports of entry are participating in the program, which
biographical and/or biometric information would be required, and the
format for submission.
DATES: Written comments on this rule must be submitted on or before
March 31, 2008 in order to be assured of consideration.
Written comments on the Paperwork Reduction Act section of this
rule must be submitted on or before April 14, 2008.
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2007-0055, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Chief, Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529. To
ensure proper handling, please reference DHS Docket No. USCIS-2007-0055
on your correspondence. This mailing address may also be used for
paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: Regulatory Management Division,
U.S. Citizenship and Immigration Services, Department of Homeland
Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC
20529. Contact Telephone Number (202) 272-8377.
FOR FURTHER INFORMATION CONTACT: Hiroko Witherow, Service Center
Operations, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 111 Massachusetts Avenue, NW., Suite 3000,
Washington, DC 20529, telephone (202) 272-8410.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
proposed rule. Comments that will provide the most assistance to the
Department of Homeland Security (DHS), U.S. Citizenship and Immigration
Services (USCIS), and U.S. Customs and Border Protection (CBP) in
developing these procedures will reference a specific portion of the
proposed rule, explain the reason for any recommended change, and
include data, information, or authority that support such recommended
change.
Instructions: All submissions received must include the agency name
and DHS Docket No. USCIS-2007-0055 for this rulemaking. All comments
received will be posted without change to http://www.regulations.gov,
including any personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Submitted comments
may also be inspected at the Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529.
II. Background
Over the years, U.S. employers have faced a shortage of U.S.
workers who are able, willing, and qualified to fill agricultural jobs,
and who would be available at the time and place needed to perform the
work. To meet this need, U.S. employers have considered hiring foreign
workers. However, before U.S. employers may hire such workers,
immigration law requires that they first sponsor the workers by filing
a petition based on their qualification within the
[[Page 8231]]
H-2A nonimmigrant classification. Immigration and Nationality Act (Act
or INA) sec. 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a).
A. Description of the Current H-2A Nonimmigrant Program
The H-2A nonimmigrant classification applies to aliens seeking to
perform agricultural labor or services of a temporary or seasonal
nature in the United States on a temporary basis. INA sec.
101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a); see 8 CFR
214.1(a)(2) (designation for H-2A classification). Under current
regulations, employment of a seasonal nature is employment that is tied
to a certain time of year by an event or pattern and requires labor
levels far above those necessary for ongoing operations. 8 CFR
214.2(h)(5)(iv). Employment is considered to be of a temporary nature
where the employer's need to fill the position will last no longer than
one year, absent extraordinary circumstances. Id.
Aliens seeking H-2A nonimmigrant status must be petitioned for by a
U.S. employer. However, prior to filing the petition, the U.S. employer
must complete the temporary agricultural labor certification process
with the Department of Labor (DOL) for the job opening the employer
seeks to fill with an H-2A worker. This process determines: whether the
proposed employment is for agricultural labor or services; whether it
is open to U.S. workers; if qualified U.S. workers are available; the
adverse impact, if any, on similarly employed U.S. workers of
employment of a qualified alien; and whether employment conditions,
including housing, meet applicable requirements. 8 CFR 214.2(h)(5)(ii).
After receiving a temporary labor certification, the U.S. employer
files Form I-129, ``Petition for Nonimmigrant Worker,'' with the
appropriate USCIS office. See 8 CFR 214.2(h)(5)(i)(A). In rare
instances, when domestic labor fails to appear at the worksite and DOL
has denied the employer's temporary labor certification and appeal of
the denial, USCIS may consider the written denial of appeal as a
certification if it is filed with evidence that domestic labor is
unavailable. Id.
In order to meet its employment needs, an employer may petition for
one or more H-2A workers. However, in the case of multiple
beneficiaries, the total number of beneficiaries in the petition cannot
exceed the number of positions indicated on the temporary labor
certification, and all the beneficiaries on one petition must obtain a
visa at the same consulate (or, if no visa is required, apply for
admission at the same port of entry). 8 CFR 214.2(h)(5)(i)(B). Where
the employer seeks to employ only one H-2A worker, the Form I-129
submitted by the employer must name that worker. 8 CFR
214.2(h)(5)(i)(C). If the employer includes multiple beneficiaries in
the petition, the workers must be named unless they are unnamed in the
DOL certification and are outside the United States. Id. The petition
also must establish the temporary or seasonal nature of the employment
and that the beneficiary meets the requirements in the temporary labor
certification, including job and training requirements and any
necessary post-secondary education or other formal training. 8 CFR
214.2(h)(5)(v).
The petitioner must make several petition agreements. The
petitioner must: consent to allow access to the worksite where the
labor will be performed; notify USCIS within twenty-four hours if an H-
2A worker absconds or if the authorized employment ends more than five
days before the temporary labor certification document expires, and pay
$10 in liquidated damages for each instance where the employer cannot
demonstrate compliance with the notification requirement; and pay $200
in liquidated damages for each instance where the employer cannot
demonstrate that its H-2A worker either departed the United States or
obtained authorized status based on another petition during the period
of admission, or within five days of early termination (whichever comes
first). 8 CFR 214.2(h)(5)(vi)(A).
An H-2A worker's stay is limited by the term of the approved H-2A
petition. 8 CFR 214.2(h)(5)(viii)(C). He or she may remain longer to
engage in other qualifying temporary agricultural employment by
obtaining an extension of stay. 8 CFR 214.2(h)(15)(ii)(C). However, his
or her total period of stay in H-2A nonimmigrant status may not exceed
three years. Id. An H-2A worker who has reached the three-year maximum
period of stay may seek H-2A nonimmigrant status again, but only after
remaining outside the United States for a six-month period. 8 CFR
214.2(h)(5)(viii)(C).
Significant absences can interrupt the accrual towards the three-
year cap of time spent as an H-2A worker. The H-2A worker can interrupt
an accumulated stay of eighteen months or less by an absence from the
United States of at least three months. Id. He or she can interrupt an
accumulated stay of more than eighteen months by an absence from the
United States of at least one-sixth of the accumulated stay. Id.
Once an H-2A worker's petition has expired, the H-2A worker is
allowed an additional ten-day period before he or she is required to
depart the United States. 8 CFR 214.2(h)(5)(viii)(B). However, an H-2A
worker whose three-year limit has not been reached may seek to extend
his or her stay with the same employer or a new employer. He or she is
employment authorized for not more than 240 days past the authorized
period of stay if the same employer petitions for an extension of stay
before expiration of the authorized period of stay. 8 CFR
274a.12(b)(20). If a new employer files a request to extend the alien's
stay in H-2A status, the alien is not employment authorized past the
authorized period of stay and is not able to begin employment with the
new employer until the petition is approved. 8 CFR 214.2(h)(2)(i)(D).
USCIS will not grant H-2A nonimmigrant status to an alien who
violated the conditions of H-2A status within the previous five years
by remaining beyond the authorized period of stay or engaging in
unauthorized employment. 8 CFR 214.2(h)(5)(viii)(A).
B. Limited Use of H-2A Nonimmigrant Classification
Despite the availability of the H-2A nonimmigrant classification, a
high percentage of the agricultural workforce is comprised of aliens
who have no immigration status and are unauthorized to work. The
Congressional Research Service Report to Congress, ``Farm Labor
Shortages and Immigration Policy'' (Sept. 5, 2007), states that persons
in the country illegally accounted for an estimated 37% of the domestic
crop workforce in fiscal year (FY) 1994 to FY 1995. In FY 1997/FY 1998,
this percentage increased to 52% out of the estimated 1.8 million
workers employed on crop farms. By FY 1999/FY 2000, their proportion
had increased to 55% before retreating to 53% in FY 2001/FY 2002.\1\
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\1\ See also Research Report No. 8, U.S. Department of Labor
Office of the Assistant Secretary for Policy Office of Program
Economics (March 2000) (finding that in 1997-98, 52 percent of hired
farm workers lacked work authorization, 22 percent were citizens and
24 percent were lawful permanent residents).
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Members of the public have cited what they consider to be
unnecessarily burdensome regulatory restrictions placed on the H-2A
nonimmigrant classification as one of the principal reasons why U.S.
agricultural employers facing a shortage of qualified U.S. workers do
not fully use the H-2A nonimmigrant classification to petition for
temporary or seasonal agricultural
[[Page 8232]]
workers from abroad.\2\ Upon an examination of the regulatory
provisions governing the H-2A nonimmigrant classification, USCIS has
identified several requirements regarding the duration of the H-2A
workers' authorized period of stay that add unnecessary burdens for
both the petitioning employers and H-2A workers. The regulations
include limitations on the use of unnamed and multiple beneficiaries in
the petition, and employment authorization following a change in
employers. The regulations also require certain employer agreements and
include financial consequences for failure to comply. This proposed
rule modifies these regulatory limitations and requirements. In so
doing, USCIS anticipates that these changes will improve the utility of
the H-2A nonimmigrant classification, so that this classification will
be a more effective means for supplying a legal workforce to
agricultural employers.
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\2\ See Mexico-Migration: A Shared Responsibility. The U.S.-
Mexico Migration Panel Carnegie Endowment for International Peace
and Instituto Tecnol[oacute]gico Aut[oacute]nomo de M[eacute]xico
(2001); see also Washington, April M., ``Canada offers migrant tips;
Colorado looks north of the border for ways to draw workers,'' Rocky
Mtn. News 10 (Sep. 15, 2007) (quoting a farmer, ``There is a
bottleneck at the federal level in approving work visas, causing
real problems for farmers'').
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To better ensure that the requirements proposed in this rule do not
adversely affect H-2A workers, compromise national security, or
undermine the integrity of the H-2A program, the rule also proposes a
limited number of new terms and conditions on employers' participation
in the program. First, the rule proposes to require an employer
attestation regarding the scope of the H-2A employment and the use of
recruiters to locate beneficiaries. Second, the rule proposes to
provide for denial or revocation of the H-2A petition if an H-2A worker
was charged a fee by the petitioner in connection with the employment.
Third, the rule proposes to allow H-2A workers who are changing
employers to begin work with the new petitioning employer before the
change is approved by USCIS, but only if the new employer participates
in USCIS' E-Verify program. The E-Verify program (successor to the
Basic Pilot Program) provides employers with a free and electronic
method for confirming the employment eligibility of their newly-hired
employees. See Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA) sec. 401-05, Pub. L. No. 104-208, 110 Stat. 3546
(September 30, 1996), as amended (8 U.S.C.A. 1324a note). Fourth, this
rule proposes to prohibit the approval of an H-2A petition for a
national of a country that consistently refuses or unreasonably delays
repatriation of its nationals who have been ordered removed from the
United States. Finally, this rule proposes a program to strengthen the
reporting system for temporary workers departing the United States at
the conclusion of their authorized period of stay.
III. Proposed Changes
A. Consideration of Denied Temporary Agricultural Labor Certifications
While current regulations allow USCIS, in limited circumstances, to
approve H-2A petitions that are filed with denied temporary
agricultural labor certifications, USCIS believes that this authority
is of limited use and is proposing to remove it from the regulations.
Current regulations permit USCIS to accept a written denial of an
appeal of a denied temporary labor certification as a labor
certification if the appeal denial is accompanied by evidence
establishing that qualified domestic labor is unavailable to do the
work. See 8 CFR 214.2(h)(5)(i)(A); \3\ see also 8 CFR 214.2(h)(5)(ii)
(last sentence). USCIS believes that determinations as to the
availability of U.S. workers are not within the expertise of USCIS, but
instead are more appropriately made by DOL. Therefore, USCIS will
remove this process from 8 CFR 214.2(h)(5)(i)(A) and (ii). The
employer, however, is not left without recourse. If the employer can
establish that domestic labor is unavailable, it may seek a new
temporary labor certification from DOL.
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\3\ Note that 8 CFR 214.2(h)(5)(i)(A) currently erroneously
cites to section 216(e)(2) of the INA as the statutory authority for
administrative appeals of denied temporary labor certifications. The
correct statutory provision is section 218(e)(2) of the INA.
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B. Unnamed Beneficiaries in the Petition
Currently, H-2A employers must name in the petition all the workers
being sought (i.e., beneficiaries) unless unnamed in the temporary
labor certification involving multiple beneficiaries. This requirement
places an undue burden on employers. See 8 CFR 214.2(h)(5)(i)(C)
(naming requirement). It also fails to accommodate the hiring practices
of agricultural employers. An intervening event may preclude an
employer from being able to continue to petition for the beneficiaries
named in the temporary labor certification. This rule proposes to
alleviate the problems encountered by employers when workers become
unavailable by removing most of the constraints on an employer's
ability to petition for unnamed beneficiaries and maintaining only the
requirement that the petition include the names of those beneficiaries
who are already in the United States.
By removing from the current regulations the requirement to name
beneficiaries outside of the United States on the petition, USCIS
believes that agricultural employers would have more flexibility to
recruit foreign workers that are actually interested in the position on
the date of stated need. Since employers often start the temporary
labor certification and petitioning processes several months ahead of
the actual date of stated need, naming beneficiaries that far in
advance increases the likelihood that those beneficiaries are
unavailable to fill the positions. Conversely, if a beneficiary is
already in the United States, USCIS believes that naming such
beneficiaries is necessary because the granting of the petition will
either confer a new immigration status or extend the status of a
particular alien immediately upon approval, whereas prospective
beneficiaries abroad still must undergo both a visa interview at a U.S.
consulate and an inspection by a U.S. Customs and Border Protection
officer upon arrival at a port of entry to the United States. Based on
the proposed changes, if an employer wishes to petition for multiple
beneficiaries, some of whom are in the United States and some of whom
are outside the United States, the employer must name the beneficiaries
who are in the United States, and only provide the number of
beneficiaries who are outside the United States. This naming
requirement would apply regardless of the number of beneficiaries on
the petition or whether the temporary labor certification named
beneficiaries.
Rather than amend the applicable H-2A provision at 8 CFR
214.2(h)(5)(i)(C), this rule proposes to incorporate these changes into
the general provision at 8 CFR 214.2(h)(2)(iii), governing the naming
of beneficiaries in H categories. USCIS believes that maintaining two
separate provisions on the naming of beneficiaries unnecessarily
complicates the regulations and results in confusion. Therefore, this
rule proposes to remove the unnamed beneficiary requirements from 8 CFR
214.2(h)(5)(i)(C) and revise the requirements in the general provision
at 8 CFR 214.2(h)(2)(iii). This provision, as revised, would specify
which H classifications must name beneficiaries in the petition and
which do not need to name beneficiaries and under what circumstances.
Note that
[[Page 8233]]
USCIS also is developing a separate rulemaking action to amend
requirements for H-2B that may have additional impacts on H
classifications.
C. Multiple Beneficiaries
USCIS has determined that the current regulatory provision at 8 CFR
214.2(h)(5)(i)(B) that permits petitioners to petition for multiple
beneficiaries who are overseas only if all the beneficiaries will
obtain a visa at the same overseas consulate or apply for admission at
the same port of entry is no longer necessary. This rule proposes to
eliminate this requirement from 8 CFR 214.2(h)(5)(i)(B). This
requirement previously was necessary because, in the past, USCIS had to
forward each approved petition to the consulate overseas where a
beneficiary will apply for a visa. For petitions containing a request
for multiple beneficiaries, the beneficiaries had to apply for their
visas at the same consulate to ensure effective tracking and usage of
available numbers in an approved petition. However, the U.S. Department
of State recently implemented a new electronic system to effectively
track visa issuance for specific petitions approved for multiple
beneficiaries in real time regardless of the consulate location where a
beneficiary may apply for a visa. Thus, the proposed change will
benefit a prospective H-2A employer by permitting the employer to file
only one petition with USCIS when petitioning for multiple H-2A
beneficiaries from multiple countries. The benefit to the employer will
be realized not only in terms of convenience but also from a financial
standpoint since the employer will only be responsible for paying one
petition filing fee.
D. Payment of Fees by Beneficiaries To Obtain H-2A Employment
1. Grounds for Denial or Revocation on Notice
USCIS has found that certain job recruiters and U.S. employers are
charging potential H-2A workers job placement fees in order to obtain
H-2A employment. Such workers are coming to the United States to fill
positions that U.S. workers are unwilling or unable to fill and are
doing so in order to improve their own difficult economic circumstances
at home. USCIS has learned that payment by these workers of job
placement-related fees not only results in further economic hardship
for them, but also, in some instances, has resulted in their effective
indenture. In an effort to protect H-2A workers from such abuses, this
rule proposes to provide USCIS with the authority to deny or revoke
upon notice any H-2A petition if it determines (1) That the alien
beneficiary has paid or has agreed to pay any fee or other form of
compensation, whether directly or indirectly, to the petitioner, or (2)
that the petitioning employer is aware that the alien beneficiary has
paid or agreed to pay any facilitator, recruiter, or similar employment
service, in connection with obtaining the H-2A employment. See proposed
8 CFR 214.2(h)(5)(xi)(A); see also 8 CFR 214.2(h)(11)(iii) (revocation
on notice). We understand that there may be circumstances where an
alien beneficiary may seek to pay or otherwise compensate a recruiter,
facilitator or similar employment service without the knowledge of the
petitioner. By revoking or denying the petition in such circumstance,
USCIS would be penalizing the alien beneficiary whose illegal actions
should not be rewarded by continued stay in the United States, and
deterring both aliens and recruiters from entering into such
arrangements in the future. However, revocation or denial would also
harm the petitioner as well, through loss of an employee. DHS solicits
comments on appropriate administrative penalties in the event that
USCIS determines that the alien beneficiary, without the knowledge of
the petitioner, paid or agreed to pay a fee or any form of compensation
to a facilitator, recruiter, or similar employment service, in
connection with an offer or as a condition of H-2A employment.
USCIS believes that this proposal will help minimize immigration
fraud and protect against other abuses that have occurred when such
aliens have been required to pay such employment fees, including
petition padding (i.e., the filing of requests for more workers than
needed), visa selling, and human trafficking. This proposal would not
preclude the payment of any finder's or similar fee by the prospective
employer to a recruiter or similar service, provided that such payment
is not assessed directly or indirectly against the alien worker.
To provide protection to H-2A workers who are in the United States
based upon an approved petition that is later revoked pursuant to
proposed 8 CFR 214.2(h)(5)(xi)(A), this rule proposes a thirty-day
grace period during which time such workers may find new employment and
apply for an extension of stay, or depart the United States. See
proposed 8 CFR 214.2(h)(5)(xi)(B). During the thirty-day period, such
workers would not be unlawfully present in the United States, but,
instead, would be in an authorized period of stay. See INA sec.
212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B). In general, the unlawful presence
of an alien in the United States for more than 180 days results in the
alien being inadmissible to the United States for a minimum of three
years. Id.
Further, to minimize the costs to H-2A workers who are affected by
the revocation of a petition pursuant to proposed 8 CFR
214.2(h)(5)(xi)(A), this rule also proposes to require employers to pay
such workers' reasonable transportation expenses to return to their
last place of foreign residence. Proposed 8 CFR 214.2(h)(5)(xi)(B).
However, the rule would not require employers to be held liable for
such expenses in cases where affected aliens obtain approval of an
extension of H-2A stay based on a subsequent job offer with another
employer during the thirty-day grace period, provided that the new
employer states in the job offer that it will pay such reasonable
return transportation expenses upon completion of the alien's new
employment.
2. Employer Attestation
USCIS recognizes that some H-2A petitioners, particularly those
petitioning for the first time and without the benefit of counsel, may
not appreciate the limitations on H-2A employment imposed by the
regulations and the representations in the H-2A petition and the
accompanying application for temporary labor certification. This rule
proposes to require H-2A petitioners to include with their petitions an
attestation, certified as true and accurate by the petitioner under
penalty of perjury, that during the period of intended employment for
which the petition is approved, the petitioner will not materially
change the information provided on the Form I-129 and the temporary
labor certification, including, but not limited to, the alien workers'
duties, their place of employment, and the entities for which the
duties will be performed. Proposed 8 CFR 214.2(h)(5)(i)(C). USCIS
believes that this requirement will apprise petitioners of their
responsibilities and obligations, and, at the same time, help prevent
the employment of H-2A alien workers in a manner that conflicts with
the representations upon which approval of the petition is based. In
the event that a material change does occur in the terms and conditions
of employment specified in the original petition, petitioners are
currently obligated to file a new petition under 8 CFR
214.2(h)(2)(i)(E).
[[Page 8234]]
As an anti-fraud and worker protection measure to complement the
proposed changes to 8 CFR 214.2(h)(5)(xi), USCIS is further proposing
that the petitioning employer also include in its attestation a
statement that it has not received, nor intends to receive, any fee,
compensation, or other form of remuneration from the workers it intends
to hire or from any person, agency or other entity. The petitioner
would also be required to attest to whether it has used a facilitator,
recruiter, or any other similar employment service, to locate foreign
workers to fill the positions covered by the H-2A petition, and if so,
to provide the names of such facilitators, recruiters, or placement
services.
E. Petition Agreements and Liquidated Damages
USCIS has found that the notification and liquidated damages
requirements provided for in the current regulations at 8 CFR
214.2(h)(5)(vi)(A) are onerous on employers and not effective in
ensuring that H-2A workers maintain their nonimmigrant status.
Therefore, USCIS is proposing to modify this provision by requiring
petitioners to provide written notification to DHS in the following
instances: an H-2A worker fails to report to work within five days of
the date of the employment start date; the employment terminates more
than five days early; or the H-2A worker absconds from the worksite.
See proposed 8 CFR 214.2(h)(5)(vi)(B)(1). The rule proposes to lengthen
the time within which the petitioner must meet the notification
requirements from the current twenty-four hours to forty-eight hours.
The rule also proposes to provide the method of notification via notice
in the Federal Register, as well as the date on which the new
notification requirements will take effect. To enforce the notification
provision, the rule proposes to require employers to retain evidence
(e.g., a photocopy) of the written notification for a one-year period.
See proposed 8 CFR 214.2(h)(5)(vi)(B)(2).
This rule further proposes to increase the liquidated damages for
failing to meet the notification requirement from $10 to $500 per
instance because the $10 amount is not a sufficient deterrent against
noncompliance. See proposed 8 CFR 214.2(h)(5)(vi)(B)(3). However, the
rule removes the current requirement for the petitioner to pay $200 in
liquidated damages for failing to demonstrate that its H-2A worker
either departed the United States or obtained authorized status based
on another petition during the period of admission or within five days
of early termination. USCIS believes that petitioners are not in a
position to know or easily obtain this information.
Additionally, the rule proposes to add a provision setting forth
the circumstances in which an H-2A worker may be found to be an
absconder, thus defining a term that would otherwise vary in
interpretation from one employer to the next, possibly to the detriment
of the alien worker. See proposed 8 CFR 214.2(h)(5)(vi)(E). The
definition employs the same five-day period used to trigger a
notification requirement when the alien does not show-up for work at
the beginning of the petition period.
In proposed 8 CFR 214.2(h)(5)(vi), USCIS is restructuring the
entire paragraph. Substantive modifications were only made to the
notification and liquidated damage requirements. Conforming amendments
were made to 8 CFR 214.2(h)(5)(ix).
F. Violations of H-2A Status
USCIS has determined that the current provision at 8 CFR
214.2(h)(5)(viii)(A) precluding a new grant of H-2A status where the
alien worker violated the conditions of H-2A status within the prior
five years requires clarification. This provision only lists two types
of status violations and fails to include all status violations. This
rule clarifies that any violation of a condition of H-2A status
committed within the five years prior to adjudication of the petition
by USCIS will result in a denial of H-2A status.
G. Revocation of Labor Certification
DOL published a rule that proposes to allow for the revocation of
an approved temporary agricultural labor certification when an employer
violates the terms of that labor certification. The proposal includes a
means to contest a possible revocation of the labor certification.
Accordingly, in this rule, USCIS is proposing to provide for the
immediate and automatic revocation of the petition upon the revocation
of the labor certification by DOL. See proposed 8 CFR
214.2(h)(2)(11)(ii). Since the labor certification is a prerequisite
for an H-2A petition, and the DOL proposed rule would provide for
contesting revocation of the labor certification, USCIS need not engage
in a separate review before the petition is revoked.
H. Prohibiting H-2A Petitions or Admissions for Nationals of Countries
That Refuse Repatriation
An alien worker who violates his or her status may be subject to
administrative proceedings before an immigration judge to remove the
alien from the United States. See INA sections 237(a)(1)(C), 239(a),
240(a); 8 U.S.C. 1227(a)(1)(C), 1229(a), 1229a(a). A removal order
typically includes the name of the country to which the alien is to be
removed, which usually is the alien's country of nationality. In order
to effectuate the removal order, DHS must ensure that the alien has the
necessary travel documents (e.g., passport) to return to the named
country and that the country agrees to receive the alien. DHS has faced
an on-going problem of countries refusing to accept or unreasonably
delaying the acceptance of their nationals who have been ordered
removed. To combat this problem, Congress gave the Secretary of State
the authority to discontinue the issuance of visas to citizens,
subjects, nationals, and residents of a country if DHS notifies the
Secretary of State that the government of that country consistently
denies or unreasonably delays their return. INA sec. 243(d), 8 U.S.C.
1253(d); see also IIRIRA sec. 307.
In an effort to further alleviate the problem, this rule proposes
to preclude USCIS from approving a petition filed on behalf of one or
more aliens from countries determined by the Secretary of Homeland
Security to consistently deny or unreasonably delay the prompt return
of their citizens, subjects, nationals or residents. See proposed 8 CFR
214.2(h)(5)(i)(F); see also INA secs. 214(a)(1), 215(a)(1) and 243(d);
8 U.S.C. 1184(a)(1), 1185(a)(1), and 1243(d). At the time that DHS
makes such determination, DHS expects in most cases to notify the
Secretary of State under INA 243(d) of the determination so that
applications for H-2A visas from citizens, subjects, nationals, and
residents of that country may be lawfully denied on that basis. The
Secretary of Homeland Security will periodically review determinations
that countries have consistently denied or unreasonably delayed
acceptance of their nationals to ensure the determinations are still
justified. These provisions are intended to encourage more nations to
promptly accept the return of nationals subject to a final order of
removal.
More generally, DHS expects that the proposals in this rule
intended to increase the flexibility and attractiveness of the H-2A
visa program, complemented by the streamlining proposals the Department
of Labor is making in its H-2A rule, will increase the popularity of
the program with U.S. agricultural employers. But even though a more
workable H-2A program would mean fewer aliens entering the country
illegally to seek work, it could also lead
[[Page 8235]]
to an increase in the number of H-2A workers that abscond from their
workplace or overstay their immigration status. The repatriation
proposal outlined above is designed, in part, to address this
challenge. DHS hereby invites comments from the public on additional or
alternative approaches, for example by restricting eligibility to
nationals of countries that provide the most cooperation to the United
States in administering the program, rather than by excluding those
whose governments provide the least cooperation. DHS is particularly
interested in additional ways to promote cooperation by foreign
governments in matters of security, particularly in connection with
travel and immigration, such as the country's willingness to share
passport information and criminal records of aliens who are seeking
admission to, or are present in, the United States under this program.
I. Period of Admission
This rule proposes to extend the H-2A admission period following
the expiration of the H-2A petition from not more than ten days to an
absolute thirty-day period. See proposed 8 CFR 214.2(h)(5)(viii)(B).
The purpose of this post-petition period is to provide the H-2A worker
enough time to prepare for departure or apply for an extension of stay
based on a subsequent offer of employment. As discussed below, USCIS is
proposing to increase the mobility of aliens from one H-2A employer to
another (see proposed 8 CFR 274a.12(b)(21)). USCIS believes that the
change to a thirty-day period will facilitate this new benefit.
The proposed rule also corrects 8 CFR 214.2(h)(5)(viii)(B) by
removing an incorrect cross-reference to 8 CFR 214.2(h)(5)(ix)(C). In
its place, a cross-reference to 8 CFR 214.2(h)(5)(viii)(B) should be
included in 8 CFR 214.2(h)(5)(viii)(C).
J. Interruptions in Accrual Towards 3-Year Maximum Period of Stay
An alien's total period of stay in H-2A nonimmigrant status may not
exceed three years. 8 CFR 214.2(h)(15)(ii)(C). However, certain periods
of time spent outside the United States are deemed to ``stop the
clock'' towards the accrual of the three-year limit. 8 CFR
214.2(h)(5)(viii)(C). USCIS has determined that the length of time that
the current regulations require before an H-2A's three-year period of
stay is deemed interrupted is unnecessarily long. This results in H-2A
workers reaching the three-year cap on their authorized period of stay
much sooner than reasonably anticipated by both the workers and their
employers, causing disruptive breaks in employment and difficulty for
employers to meet their time-sensitive agricultural requirements. This
rule proposes to reduce from three months to forty-five days the
minimum period spent outside the United States that would be considered
interruptive of accrual of time towards the three-year limit, where the
accumulated stay is eighteen months or less. See proposed 8 CFR
214.2(h)(5)(viii)(C). If the accumulated stay is longer than eighteen
months, this rule proposes to simplify the calculation of the
interruptive period required from at least one-sixth of the period of
accumulated stay to two months. Id. These proposed reductions would
reduce the amount of time employers are required to be without the
services of needed workers and enable the employers to have a set
timeframe from which they can better monitor compliance with the terms
and conditions of H-2A status.
K. Post-H-2A Waiting Period
Once an H-2A worker has reached the three-year ceiling on H-2A
nonimmigrant status, current regulations require the worker to wait six
months outside the United States prior to seeking H-2A nonimmigrant
status again (or any other nonimmigrant status based on agricultural
activities). 8 CFR 214.2(h)(5)(viii)(C). USCIS believes that a shorter
waiting period would better meet the needs of agricultural employers in
a time-sensitive industry experiencing such a shortage of U.S. workers.
This rule proposes to reduce the required absence period to three
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.
L. Extending Status With New Employer and Participation in E-Verify
This proposed rule would permit H-2A workers to continue to be
employment authorized while awaiting an extension of H-2A status based
on a petition filed by a new employer accompanied by an approved labor
certification. Proposed 8 CFR 274a.12(b)(21). Specifically, the new
provision would authorize an individual who has filed an application
for an extension of stay during his or her period of admission to be
employed by the new, petitioning employer for a period not to exceed
120 days beginning from the date of the notice that USCIS issues to
acknowledge that it has received the application for the extension of
stay. USCIS issues such notices on Form I-797, ``Notice of Action.''
The notice date on Form I-797 is called the ``Received Date.'' Note
that if the application for the extension of stay is denied by USCIS
prior to the expiration of this 120-day period, employment
authorization would automatically terminate upon notification of the
denial decision.
The proposed rule places one condition on this employment
authorization benefit: The new H-2A employer must be a registered user
in good standing (as determined by USCIS) of USCIS' E-Verify program.
If the new employer does not meet this condition, proposed 8 CFR
274a.12(b)(21) would not apply, and the alien worker would not be
authorized to work for the new employer until USCIS grants the
extension of stay application. USCIS believes that this proposed
employment authorization provision will create an incentive for
agricultural employers to enroll in the E-Verify program, thereby
reducing opportunities for aliens without employment authorization to
work in the agricultural sector and helping protect the integrity of
the H-2A program.
This proposed rule makes conforming amendments to 8 CFR
214.2(h)(2)(i)(D) (prohibiting an alien from commencing employment
until the new employer's petition is approved) and includes a cross-
reference to proposed 8 CFR 274a.12(b)(21). It also includes a cross-
reference to section 214(n) of the INA, 8 U.S.C. 1184(n). This
statutory provision applies to aliens within the H-1B specialty worker
classification and, in general, permits such aliens to work for a new
employer before such an employer's petition is approved. The addition
of section 214(n) of the INA, 8 U.S.C. 1184(n), in this proposed
rulemaking is made so that the regulations conform to the statute.
M. Miscellaneous Changes to H-2A Program
1. Extensions of Stay Without New Temporary Labor Certifications
USCIS regulations currently provide that, under certain
circumstances, an application for an extension of stay for an H-2A
nonimmigrant worker need not contain an approved temporary labor
certification. 8 CFR 214.2(h)(5)(x). This rule proposes revisions to
this provision to improve its readability; it proposes no substantive
changes.
2. Filing Locations
To improve the efficient processing of H-2A nonimmigrant petitions,
USCIS recently established special mailing
[[Page 8236]]
addresses at the USCIS California Service Center for all H-2A petition
filings. The current regulations, however, only permit petitions to be
filed with the USCIS Service Center that has jurisdiction in the area
where the alien will perform services (or receive training) except as
provided for elsewhere in the regulations or by a designation specified
in a notice published in the Federal Register. 8 CFR 214.2(h)(2)(i)(A).
USCIS has found that effecting changes to filing procedures by notice
in the Federal Register creates an unnecessary obstacle to the timely
implementation of petition processing improvements. Such changes would
be more timely conveyed to the public via the petition's form
instructions and USCIS's Web site. Therefore, this rule proposes to
remove the Federal Register notice requirement at 8 CFR
214.2(h)(2)(i)(A) and instead provides that the form instructions will
contain information regarding appropriate filing locations for these
nonimmigrant visa petitions.
N. USCIS Policy Applicable to H-2A Sheepherders
For a number of years, the Immigration and Naturalization Service
(INS) and now USCIS have refrained from applying the three-year maximum
period of stay to H-2A aliens who work as sheepherders. See Memorandum
from INS Assistant Commissioner John R. Schroeder to Northern Service
Center Director James M. Bailey, ``Limits of Stay for H-2A Sheepherders
under 8 CFR 214.2(h)(5)(viii)(C)'' (Oct. 31, 1991) (referring to Letter
from INS Commissioner Alan Nelson to Senator Alan K. Simpson (Nov. 11,
1987)) (stating that a 6-month absence from United States is not
required of H-2A sheepherders). As a result, H-2A aliens working as
sheepherders who have reached the three-year maximum period of stay
have been able to commence a new three-year period of stay in H-2A
status without ever departing and remaining outside the United States
for six months. See 8 CFR 214.2(h)(5)(viii)(C) (specifying 6-month
departure requirement). While USCIS recognizes the special nature of
this unique type of agricultural work, including the need to herd sheep
over extensive expanses of open range for long periods of time, USCIS
has concluded that its policy of exempting H-2A sheepherders from the
six-month departure requirement is inconsistent with the parameters of
the H-2A classification. Those parameters require that H-2A workers
have a residence in a foreign country that they have no intention of
abandoning, and perform agricultural labor or services in the United
States on a temporary basis. Without imposing a meaningful departure
after the three-year maximum period of stay has been reached, USCIS has
found that H-2A sheepherders' stay is not truly temporary.
Therefore, USCIS proposes to impose on H-2A sheepherders the same
departure requirement applicable to all H-2A workers. However, before
doing so, USCIS is soliciting comments from the public regarding this
change in policy. Under the proposed change, USCIS would not take
action against individuals who have already been admitted in H-2A
classification to engage in sheepherding activities. Such individuals,
however, would be required to depart from the United States at the end
of their period of admission in H-2A status and remain outside of this
country for the requisite time period (six months under the current
regulation; three months under the proposed rule) before being eligible
to obtain H-2A status again. See INA sec. 101(a)(15)(H)(ii)(A), 8
U.S.C. 1101(a)(15)(H)(ii)(A); 8 CFR 214.2(h)(5)(iv).
O. Land Border Exit System Pilot
The Secretary of Homeland Security is authorized to prescribe
conditions for the admission of nonimmigrant aliens under section 214
of the INA. Section 235 of the INA provides for the inspection of
applicants for admission. Pursuant to 8 CFR 235.1(h)(1), nonimmigrant
aliens who are admitted to the United States, unless otherwise exempt,
are issued Form I-94, ``Arrival/Departure Record,'' as evidence of the
terms of admission. Once admitted into the country, nonimmigrant aliens
are required to comply with all the conditions of their stay, depart
the United States before the expiration of the period of authorized
stay, and surrender the departure portion of the Form I-94 upon
departure from the United States. Section 215 of the INA provides the
authority for departure control for any person departing from the
United States. Additionally, 8 CFR part 215 provides the regulations
for controls of aliens departing from the United States. Specifically,
8 CFR 215.2 allows for DHS, at its discretion, to require any alien
departing from the United States to be examined under oath and to
submit for official inspection all documents in the alien's possession.
Available statistics indicate that a significant number of
nonimmigrant aliens either do not turn in their Form I-94 upon
departure or overstay their authorized period of stay. DHS intends to
strengthen its departure control record keeping system. On August 10,
2007, the Administration announced that it would establish a new land-
border exit system for guest workers, starting on a pilot basis. In
order to ensure that temporary workers depart the United States within
the authorized period, DHS is proposing to institute a land-border exit
system for H-2A guest workers on a pilot basis. Under the proposed
program, an alien admitted on an H-2A visa at a port of entry
participating in the program must also depart through a port of entry
participating in the program and present designated biographic and/or
biometric information upon departure at the conclusion of their
authorized period of stay. CBP would publish a Notice in the Federal
Register designating which ports of entry are participating in the
program, which biographic and/or biometric information would be
required, and the format for submission of that information by the
departing H-2A workers. The exit pilot program would allow DHS to
ensure that the H-2A workers subject to this pilot program have
departed from the United States when their authorization expires and
would provide a foundation for the comprehensive land border exit
system for guest workers proposed by the Administration in August 2007.
DHS requests comments on the establishment of the proposed pilot
program. DHS also solicits comments on whether to include H-2B workers
in the exit pilot program. (The H-2B nonimmigrant classification
applies to foreign workers performing nonagricultural temporary labor
or services in the United States. INA sec. 101(a)(15)(H)(ii)(b), 8
U.S.C. 1101(a)(15)(H)(ii)(b); 8 CFR 214.1(a)(2) (H-2B classification
designation)).
DHS previously conducted exit pilot programs at selected air and
sea ports of entry through United States Visitor and Immigrant Status
Indicator Technology (US-VISIT) Program. See 69 FR 46556. Those pilots
began in August 2004 and concluded in May 2007. The pilot program exit
system proposed under this rule will utilize any applicable lessons
learned from the US-VISIT air and sea exit pilot program. DHS will
continue to coordinate these screening programs to ensure both security
and efficiency of the programs.
IV. Rulemaking Requirements
A. Regulatory Flexibility Act-Initial Regulatory Flexibility Analysis
The H-2A program establishes a means for agricultural employers who
anticipate a shortage of domestic workers to bring nonimmigrant foreign
[[Page 8237]]
workers to the United States to perform agricultural labor or services
of a temporary or seasonal nature. U.S. employers have historically
faced a shortage of domestically available workers for seasonal
agricultural jobs. Many farm workers also in America lack proper work
authorization and immigration status. In addition, the requirements
that Federal labor and immigration authorities impose on farmers and
agribusinesses to obtain H-2A workers are generally felt to be overly
burdensome. Therefore, USCIS is proposing changes intended to encourage
and facilitate the lawful employment of foreign temporary and seasonal
agricultural workers.
1. Description of and, Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Will Apply
a. Regulated Entities
USCIS has concluded that the entities affected by this rule are
generally categorized as small. By and large this rule applies to farms
engaged in the production of livestock, livestock products, field
crops, row crops, tree crops, and various other enterprises. It does
not apply to support activities for agriculture. The industry affected
by this rule, as described in the North American Industry
Classification System (NAICS), as encompassing NAICS subsectors 111,
Crop Production, and 112, Animal Production.
b. Number of Small Entities to Which the Proposed Rule Will Apply
USCIS estimates that it will receive approximately 6,300 petitions
per year for H-2A workers with many farms submitting multiple
petitions. About 5,000 of those are expected to be submitted by small
entities. The number of regulated firms represents about 0.3 percent of
all farmers and the number of H-2A employees make up about 9.3 percent
of all farm workers. Finally, about 550 sheep ranchers (an unknown
number but presumed majority of which are small entities) are expected
to be directly affected by this proposed rule as a result of the
proposed changes that are specific to sheepherders.
2. Description of the Projected Reporting, Recordkeeping and Other
Compliance Requirements of the Proposed Rule, Including an Estimate of
the Classes of Small Entities That Will Be Subject to the Requirement
and the Type of Professional Skills Necessary for Preparation of the
Report or Record
a. Paperwork Reduction Act
The proposed rule adds no ``reporting'' or ``recordkeeping''
requirements within the meaning of the Paperwork Reduction Act; thus
the rule does not require professional skills for the preparation of
``reports'' or ``records'' under that Act.
b. New Reporting Requirement
The proposed rule would impose new reporting requirements on H-2A
employers, including the time frame for reporting, the mechanisms for
reporting, the amount of liquidated damages for failure to comply, and
defenses for failure to comply. This rule proposes to announce via
notice published in the Federal Register appropriate notification
requirements and assesses liquidated damages for failure to comply with
the notification requirements at $500 per violation. DHS has no basis
for estimating the cost of this new requirement on H-2A employers.
However, DHS believes that the occurrence of non-compliance is not
prevalent enough to affect a substantial number of the affected
entities. However, the agency has requested and seeks further comment
on the actual costs or expenditures, if any, of impact on any one firm
that is assessed liquidated damages as a result of being found to be in
violation of this new requirement and how that impact may differ or
vary for small entities.
3. Identification of Federal Rules That May Duplicate, Overlap or
Conflict With the Proposed Rule
DHS is unaware of any duplicative, overlapping, or conflicting
federal rules. As noted below, DHS seeks comments and information about
any such rules, as well as any other state, local, or industry rules or
policies that impose similar requirements as those in this proposed
rule.
4. 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, Including Alternatives Considered, Such as: (1) Establishment
of Differing Compliance or Reporting Requirements or Timetables That
Take into Account the Resources Available to Small Entities; (2)
Clarification, Consolidation, or Simplification of Compliance and
Reporting Requirements Under the Rule for Such Small Entities; (3) Use
of Performance Rather Than Design Standards; (4) Any Exemption From
Coverage of the Rule, or Any Part Thereof, for Such Small Entities
Throughout the development of the proposed rule DHS has made every
effort to gather information regarding the economic impact of the
rule's requirements on all operators, including small entities.
Questions for public comment regarding the costs and benefits
associated with the proposed rule with respect to how operators,
including small entities, can comply with the rule's requirements are
included in this part of the rule.
5. Questions For Comment To Assist Regulatory Flexibility Analysis
Please provide comment on any or all of the provisions in the
proposed rule with regard to:
a. The impact of the provision(s) (including any benefits and
costs), if any; and
b. What alternatives, if any, DHS should consider, as well as the
costs and benefits of those alternatives, paying specific attention to
the effect of the rule on small entities in light of the above
analysis. In particular, please provide the above information with
regard to the following sections of the proposed rule:
i. The new reporting requirements on H-2A employers, including the
time frame for reporting, the mechanisms for reporting, the amount of
liquidated damages for failure to comply, and defenses for failure to
comply in 8 CFR 214.2(h)(2)(vi)(B)(2).
ii. The requirement for H-2A sheepherders to have the same
departure requirement applicable to all H-2A workers under 8 CFR
214.2(h)(5)(viii)(C) (specifying 6-month departure requirement).
iii. Any other requirement not mentioned above.
c. Costs to ``implement and comply'' with the rule including
expenditures of time and money for any employee training; attorney,
computer programmer, or other professional time;
[[Page 8238]]
preparing relevant materials; processing materials, including,
materials or requests for access to information; and recordkeeping.
Please describe ways in which the rule could be modified to reduce
any costs or burdens for small entities consistent with the Immigration
and Nationality Act's requirements.
Please describe whether and how technological developments could
reduce the costs of implementing and complying with the rule for small
entities or other operators.
Please provide any information quantifying the economic benefits
of:
a. Reducing delays in the petition, application, and approval
process.
b. Reducing the time required for an H-2A worker to be out of the
country, allowing more time for departure after the visa has expired,
and allowing for an extension of stay while a new petition is pending.
c. Encouraging employers who currently hire seasonal agricultural
workers who are not properly authorized to work in the United States to
replace those workers with legal workers.
d. Minimize immigration fraud and protect against abuses that occur
when aliens are required to pay employment fees.
Please identify all relevant federal, state or local rules that may
duplicate, overlap or conflict with the proposed rule. In addition,
please identify any industry rules or policies that already require
compliance with the requirements of the DHS proposed rule.
B. Provisions to Which the Regulatory Flexibility Act Does Not Apply
CBP is also seeking comments through this rule with respect to a
pilot program that would require that aliens admitted on certain
temporary worker visas at a port of entry must depart through a port of
entry participating in the program. Although there may be costs
associated with participation in this program, the aliens impacted by
this portion of the rule are not considered ``small entities,'' as that
term is defined in 5 U.S.C. 601(6). Since the regulation will require
the alien to comply with the pilot program, rather than placing a
requirement on the employers, the employers are not directly impacted
by this proposed rule. Employers, including small entities, are free to
offer assistance to their H-2A workers in complying with this
requirement if they choose to do so. However, the employer's assumption
of any costs inherent with complying with this requirement on behalf of
their workers is voluntary and, therefore, not subject to the
Regulatory Flexibility Act.
C. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
D. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
E. Executive Order 12866
This rule has been designated as significant under Executive Order
12866. Thus, under section 6(a)(3)(C) of the Executive Order, USCIS is
required to prepare an assessment of the benefits and costs anticipated
to occur as a result of this regulatory action and provide the
assessment to the Executive Office of the President, Office of
Management and Budget, Office of Information and Regulatory Affairs.
In summary, this rule proposes several changes to the H-2A visa
program that USCIS believes are necessary to encourage and facilitate
the lawful employment of foreign temporary and seasonal agricultural
workers. There are no additional regulatory compliance requirements to
be added that will cause a detectable increase in costs for
participating firms. Costs of compliance will not be changed by this
proposed rule. Volume of applications may increase slightly, but the
burden of compliance both in time and fees will not increase above that
currently imposed. Qualitatively, this rule will benefit applicants by:
Reducing delays caused by IBIS checks holding up the
petition application process.
Reducing disruption of the life and affairs of H-2A
workers in the United States.
Protecting laborers' rights by precluding payment of fees
by the alien.
Preventing the filing of requests for more workers than
needed, visa selling, coercion of alien workers and their family
members, or other practices that exploit workers and stigmatize the H-
2A program.
Encouraging employers who currently hire seasonal
agricultural workers who are not properly authorized to work in the
United States to replace those workers with legal workers.
Minimizing immigration fraud and human trafficking.
The H-2A program establishes a means for agricultural employers who
anticipate a shortage of domestic workers to bring nonimmigrant foreign
workers to the United States to perform agricultural labor or services
of a temporary or seasonal nature. This rule is being promulgated as
part of the reform process to make changes that are intended to provide
agricultural employers with an orderly and timely flow of legal workers
while protecting laborers' rights.
F. Temporary Alien Farm Workers: The Current H-2A Program
The H-2A nonimmigrant classification applies to aliens who are
coming to the United States temporarily to perform agricultural labor
or services of a temporary or seasonal nature. Seasonal employment is
tied to a certain time of year that requires labor above regular
operations. Temporary labor means the employer's need will last no
longer than one year.
Aliens seeking H-2A nonimmigrant status first must be petitioned by
a U.S. employer, after the employer has completed a temporary
agricultural labor certification process with the Department of Labor
(DOL). DOL determines whether employment is agricultural, 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.
The U.S. employer then files Form I-129, ``Petition for Nonimmigrant
Worker,'' which must name one or more alien beneficiaries; if multiple
beneficiaries, they may be unnamed if unnamed in the DOL certification
and outside the United States. The petition must establish the
temporary, seasonal employment and that the beneficiary meets job and
training, post-secondary education or other formal training
requirements if necessary.
H-2A nonimmigrant status is valid for a total of three years, but
can be renewed after the alien remains outside
[[Page 8239]]
the United States for a six-month period. The H-2A nonimmigrant can
interrupt an accumulated stay of eighteen months or less by an absence
from the United States of at least three months. He or she can
interrupt an accumulated stay of more than eighteen months by absence
from the United States of at least one-sixth of the accumulated stay.
Once an H-2A nonimmigrant's authorized period of stay has expired, they
have a ten-day grace period before being required to leave the United
States. However, an H-2A nonimmigrant whose three-year limit has not
been reached can be employment authorized for another 240 days past the
authorized period of stay if requested by the same employer. If for a
new employer, employment will not be authorized past the authorized
period of stay until the petition is approved. H-2A nonimmigrant status
is not approved for an alien who violated the conditions of H-2A status
within the previous five years by remaining beyond the authorized
period of stay or engaging in unauthorized employment.
V. Full Regulatory Impact Assessment
Over the years, U.S. employers have faced a shortage of available
U.S. workers who are able, willing, and qualified to fill agricultural
jobs, and who would be available at the time and place needed to
perform the work. To meet this need, U.S. employers have considered
hiring foreign workers. U.S. law requires that they first sponsor the
workers by filing a petition based on their qualification within the H-
2A nonimmigrant classification.
1. Unauthorized Workers
Estimates from many different government and non-government sources
suggest that up to 70% of farmworkers in America lack proper work
authorization and immigration status.\4\ The United States Department
of Labor reports that in 1997 and 1998, 52 percent of hired farmworkers
lacked work authorization, 22 percent were citizens and 24 percent were
lawful permanent residents.\5\
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\4\ Regelbrugge, Craig J., American Nursery & Landscape
Association. Co-chair, Agriculture Coalition for Immigration Reform,
speech given at USDA Agricultural Outlook Conference, American
Agriculture And Immigration Reform: An Industry Perspective, March
1, 2007.
\5\ Research Report No. 8, U.S. Department of Labor Office of
the Assistant Secretary for Policy, Office of Program Economics
(March 2000).
---------------------------------------------------------------------------
2. Insufficient Labor Pool
The H-2A temporary agricultural program establishes a means for
agricultural employers who anticipate a shortage of domestic workers to
bring nonimmigrant foreign workers to the U.S. to perform agricultural
labor or services of a temporary or seasonal nature. Before USCIS can
approve an employer's petition for such workers, the employer must file
an application with the Department of Labor stating there are not
sufficient workers who are able, willing, qualified, and available, and
the employment of aliens will not adversely affect the wages and
working conditions of similarly employed U.S. workers.
Labor concerns are prevalent in areas where the agricultural
industry is dependent on seasonal labor. For example, the California
Farm Bureau Federation estimated that farm labor shortages resulted in
$85 million in losses to its members in 2006.\6\ Also, a 2007 survey of
Wisconsin dairy producers cited an ample labor supply as a main
limiting factor in the future of the survey subjects' farming
operations.\7\ Some commenters believe the requirements that Federal
labor and immigration authorities impose on farmers and agribusinesses
to obtain H-2A workers are overly burdensome. Others suggest that
excessive bureaucratic delays by the responsible agencies in approving
worker petitions contribute to the inability to attract sufficient
workers.\8\ A few sources feel the shortage of farm workers has been
exacerbated by tighter security at the Mexican border.\9\ Therefore,
whether there is an ample supply of farm workers is a major concern in
agricultural communities. In short, there is fairly widespread
agreement that there is a problem in the seasonal agricultural worker
program that needs to be addressed in some fashion.
---------------------------------------------------------------------------
\6\ Farm Labor Shortages, Mechanization, Rural Migration News,
Vol. 14 No. 4 (October 2007).
\7\ 2007 Dairy Producer Survey, USDA, National Agricultural
Statistics Service (July 2007).
\8\ Washington, April M., Canada offers migrant tips; Colorado
looks north of the border for ways to draw workers Sep. 15, 2007
Rocky Mtn. News 10 (quoting a farmer, ``There is a bottleneck at the
federal level in approving work visas, causing real problems for
farmers,'').
\9\ Mountain State Reporter, United States Department of
Agriculture, National Agricultural Statistics Service, West Virginia
Department of Agriculture, Vol., 19, no. 9 (Sept. 2006).
---------------------------------------------------------------------------
A. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (P.L. 104-121), requires Federal agencies to conduct a regulatory
flexibility analysis that describes the impact of the proposed rule on
small entities whenever an agency is publishing a notice of proposed
rulemaking. In accordance with the RFA, this section discusses the
changes proposed in the subject rule and analyzes whether any of the
changes entail compliance requirements with a significant economic
impact on a substantial number of small entities requiring publication
of an Initial Regulatory Flexibility Analysis.
1. Regulated Entities
a. Agriculture Employment.
The H-2A nonimmigrant classification applies to aliens seeking to
perform agricultural labor or services of a temporary or seasonal
nature in the United States on a temporary basis. The work must be
agricultural in nature. Table 1 \10\ below summarizes the total number
of farm workers in the most recent 5 calendar years and their average
hourly wages in those years.
---------------------------------------------------------------------------
\10\ U.S. Department of Agriculture, National Agricultural
Statistics Service, Statistical Bulletin 1007, Statistical
Highlights of U.S. Agriculture for 2006 and 2007, October 2007,
http://www.nass.usda.gov/Publications/Statistical_Highlights/2007/2007stathi.txt
.
Table 1.--Farm Workers, United States, 2002-2006
----------------------------------------------------------------------------------------------------------------
Average annual wages (Dollars per hour)
Total number -----------------------------------------------
Year of workers in Field and
thousands All workers Field workers livestock
workers
----------------------------------------------------------------------------------------------------------------
2002............................................ 885.7 8.81 8.12 8.18
2003............................................ 836.0 9.08 8.31 8.42
2004............................................ 825.2 9.23 8.45 8.56
2005............................................ 780.0 9.51 8.70 8.84
2006............................................ 751.9 9.87 9.06 9.15
----------------------------------------------------------------------------------------------------------------
[[Page 8240]]
The H-2A program is used mainly by farms engaged in the production
of livestock, livestock products, field crops, row crops, tree crops,
and various other enterprises. The affected industries do not include
support activities for agriculture.\11\ Therefore, in accordance with
the RFA, USCIS has identified the industry affected by this rule as
described in the North American Industry Classification System (NAICS)
as encompassing NAICS subsectors 111, Crop Production, and 112, Animal
Production.\12\
---------------------------------------------------------------------------
\11\ A few larger Farm Labor Contractors and Crew Leaders (NAICS
Code 115115) and Custom Harvesting Operations (NAICS 115113) are
believed to use the H-2A program to meet their client's seasonal
needs, but the objectives of the program and this rule are focused
on the independent producer.
\12\ U.S. Small Business Administration, Table of Small Business
Size Standards, http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf
.
---------------------------------------------------------------------------
b. Number Affected
In fiscal year 2007 USCIS received 6,212 Form I-129 petitions for
H-2A employees, and approved petitions for 78,089 H-2A workers.\13\ In
fiscal year 2006, USCIS received 5,667 Form I-129 petitions and
approved 5,448 of them for 56,183 workers. Also, in fiscal year 2006,
6,717 employers requested certification from the Department of Labor
(DOL) for 64,146 H-2A workers, and for those workers, the United States
Department of State (DOS) issued 37,149 H-2A visas. In fiscal year
2005, USCIS approved Form I-129 petitions for 49,229 workers, 6,725
employers requested certification from the Department of Labor for
50,721 employees, and 31,892 visas were issued by DOS.\14\
---------------------------------------------------------------------------
\13\ These are not all new employees or entrants to the United
States. This number includes petitions approved for an extension or
change of employer that are not segregated for reporting purposes.
\14\ http://www.foreignlaborcert.doleta.gov/.
---------------------------------------------------------------------------
Thus, based on recent results, USCIS estimates that the baseline
number of H-2A petitions volume absent this rule would in an average
year be approximately 6,300 petitions \15\ for an average of 70,000
total H-2A workers per year. In 2006 there were 2,089,790 farms in the
United States and about 752,000 workers employed in agricultural jobs.
Thus, about 0.3 percent of all farmers use the H-2A program and 9.3
percent of all farm workers are aliens employed under the H-2A program.
---------------------------------------------------------------------------
\15\ This figure may not represent the actual number of farm
owners or operators as some larger farms may submit multiple
petitions per year.
---------------------------------------------------------------------------
2. Size Categories of Affected Entities
The U.S. Small Business Administration (SBA) Small Business Size
Regulations at 13 CFR part 121, provide that farms with average annual
receipts of less than $750,000 qualify as small businesses for Federal
Government programs. According to United States Department of
Agriculture data, 44,348, or 2.1 percent, of the 2,128,982 farms in the
U.S. had gross cash receipts of more than $500,000.\16\ Since 97.9
percent of farms have sales of less than $500,000 it appears that
almost all farms are small entities under the SBA definition. That
means that almost all of the employers requesting USCIS approval to
hire H-2A alien employees per year, an estimated 5,220, are small
businesses looking to hire a seasonal farm worker.
---------------------------------------------------------------------------
\16\ Economic Class of Farms by Market Value of Agricultural
Products Sold and Government Payments: 2002 http://www.nass.usda.gov/census/census02/volume1/us/st99_1_003_003.pdf
.
---------------------------------------------------------------------------
The fact that the very small percentage of farms that use the H-2A
program accounts for 9.3 percent of all farm workers indicates that
those farms that use the H-2A program are larger than average.
Nonetheless, the impacts of this rule would have to be totally
concentrated among the largest farms in the U.S. in order for the
affected entities to not be small as determined under SBA guidelines.
Therefore, USCIS has concluded that the entities affected by this rule
are generally categorized as small.
B. New Compliance Requirements of the Proposed Rule
1. Compliance Costs
Liquidated Damages for Non-reporting. USCIS is proposing new
reporting requirements on H-2A employers, including the time frame for
reporting, the mechanisms for reporting, the amount of liquidated
damages for failure to comply, and defenses for failure to comply. This
rule also proposes to enable DHS to announce via notice published in
the Federal Register appropriate procedures for notifying DHS of events
requiring employer notification. USCIS has no data on the number of
employers that typically fail to comply with reporting requirements and
no estimate of the number of firms that will have to pay liquidated
damages. However, USCIS believes that the occurrence of non-compliance
is not prevalent enough to affect a substantial number of the affected
entities. Further, while $500 is believed to be sufficient to provide
an incentive for participating firms to comply, it is not large enough
to impose a significant economic impact on any one firm that is
assessed liquidated damages as a result of being found to be in
violation of this new requirement.
2. Costs of Exit Requirement
Under the proposed rule, certain aliens admitted on an H-2A visa
must comply with the DHS Biometric Exit Pilot as part of US-VISIT. The
Exit Pilot Program was implemented to provide a straightforward exit
process to ensure that individuals adhere to the terms of their
admission and is intended as an added measure to ensure the integrity
of our immigration system. This means that the alien must depart
through a port of entry participating in the program and present
designated biographic and or biometric information upon departure at
the conclusion of their authorized period of stay.\17\ The alien must
either: (1) Check out at an automated exit kiosk or with a US-VISIT
exit attendant at the departure gate at the port, have their travel
documents read, their two index fingers digitally scanned, a digital
picture taken, receive a printed receipt that verifies that they have
checked out, and present the receipt at their departure gate to confirm
that they checked out; or (2) go through a biometric check-out process
with a US-VISIT exit attendant stationed at visitors' departure gates.
USCIS assumes that the additional time to register at time of departure
is between \1/2\ to 1 hour. USCIS seeks comment on this assumption.
Thus, this rule will require H-2A to incur the following additional
time costs, analyzed in the following model.
---------------------------------------------------------------------------
\17\ http://www.dhs.gov/xnews/releases/press_release_0476.shtm
.
---------------------------------------------------------------------------
Estimating how many H-2A workers will be subject to the Exit Pilot
requires determining how many H-2A workers who leave the country each
year are doing so because their periods of authorized stay have ended.
As stated above, that is why the Exit Pilot program was instituted--DHS
had no process for ensuring that aliens complied with their periods of
authorized stay. Since there is no follow-up monitoring system, there
is little data available, and the statistics that are available are
unreliable. USCIS does know that, in fiscal year 2007, it approved
petitions for 78,089 H-2A workers.\18\ This number, however, includes
requests for extensions of stay and changes in employers; thus, it does
not represent the number of H-2A
[[Page 8241]]
employees entering or exiting the U.S.\19\ USCIS believes that the
closest indicator available of the number of H-2A visitor exits per
year would be the average number of entries per year. It is logical to
assume that the number of employees beginning their authorized
employment would vary only slightly from the number ending their
authorized term of employment from one year to the next. The number of
H-2A entries during fiscal years 2002 through 2006 averaged 17,551 per
year.\20\ As such, approximately 18,000 immigrant workers are expected
to be affected by this rule and spend between \1/2\ to 1 hour in the
registration process during exit.
---------------------------------------------------------------------------
\18\ These are not all new employees or entrants to the United
States. This number includes petitions approved for an extension or
change of employer that are not segregated for reporting purposes.
\19\ See 2003-2005 figures at http://www.dhs.gov/xlibrary/assets/statistics/publications/2005_NI_rpt.pdf
.
\20\ Yearbook of Immigration Statistics, Temporary Admissions of
Nonimmigrants to the United States: 2006 http://www.dhs.gov/xlibrary/assets/statistics/publications/NI_FR_2006_508_final.pdf
.
---------------------------------------------------------------------------
The costs of exit in this case are entirely opportunity costs, as
the worker forgoes \1/2\ to 1 hour in the registration process, and
gives up this amount of time to his or her ``second best'' activity. It
is also important to note that the opportunity cost to the worker
depends on whether he or she could have been working, or could have
been engaging in a leisure activity. According to Fugitt and Wilcox
\21\ (1999), opportunity cost of leisure time is calculated as \1/3\ of
the wage rate. However, if the respective H-2A individual could have
been at work instead of in the exit registration process, the
opportunity cost is the full value of the wage.
---------------------------------------------------------------------------
\21\ Fugitt, D. and S. Wilcox. (1999). Cost-Benefit Analysis for
Public Sector Decision Makers. London, Quorium Books.
---------------------------------------------------------------------------
According to the U.S. Department of Labor \22\, the hourly wage
rate for the H-2A worker is $9.49. As such, the total annual
undiscounted cost of H-2A workers having to spend \1/2\ hour during the
exit process is approximately $85,000 ($9.49 * \1/2\ hour * 18,000).
The opportunity costs if all workers spend a full hour in the exit
process are approximately $171,000 ($9.49 *1 hour * 18,000).
---------------------------------------------------------------------------
\22\ Available at: http://www.dol.gov/compliance/topics/wages-foreign-workers.htm
.
---------------------------------------------------------------------------
However, the preceding estimates of opportunity costs to the H-2A
worker assume that each individual is forgoing an hour of time at work.
It may also be the case that the individual is foregoing leisure. As
such, the opportunity cost of leisure time is represented as \1/3\ the
wage rate (Fugitt and Wilcox, 1999) as opposed to the full wage.
The undiscounted opportunity costs to workers in this case spending
a \1/2\ hour in the exit process are approximately $28,000 (\1/3\ *
$9.49 * 18,000 * \1/2\ hour). However, if each worker spends an hour in
the exit process, the opportunity costs rise to approximately $56,000
(\1/3\ * $9.49 * 18,000 * 1 hour). As such, depending on what
assumptions are made about the time required to exit and whether the
time forgone is work or leisure, the annual undiscounted costs range
from $28,000 to $171,000.
3. Fees
USCIS funds the cost of processing applications and petitions for
immigration and naturalization benefits and services, and USCIS'
associated operating costs, by charging and collecting fees. For each
Form I-129 USCIS charges a filing fee of $320. While the enhancements
in this rule will increase the number of H-2A petitions per year by
making the program more attractive, there is no increase in per
petition fees for employees being imposed by this rule. Thus, the fee
impacts of this rule on each petitioning firm are neutral.
4. Paperwork Burden
USCIS estimates that the public reporting burden for each Form I-
129 is 2 hours and 45 minutes per response, including the time for
reviewing instructions, completing, and submitting the form. The
aggregate public reporting burden for all firms affected by this rule
may increase as a result of the increased due of the program. However,
this rule proposes no changes to the per-firm reporting requirements or
costs of the existing H-2A program.
5. Costs Imposed on Sheepherders and Their Employers
There may be a slightly negative impact on sheep ranchers in the
few states in the Western United States as a result of one change that
is necessary to bring sheepherder H-2A employees in under the
requirements to return to their home countries that are applied to all
other H-2A employees. Currently, H-2A aliens working as sheepherders
who have reached their three-year maximum stay period may obtain a new
three-year period of stay in H-2A status without departing and
remaining outside the United States for six-months as required for
other H-2A aliens. The period of stay in the alien's home country is
proposed to be changed to three months in this rule and will be imposed
on sheepherders the same as for all other H-2A workers.
a. Size of Sheep Farming Entities Affected
The sheep farming entities affected by this rule (Sheep Farming is
NAICS Code 112410) are defined as small. No data exists on the relative
breakdown on the number of sheep farms with average annual receipts of
more than $750,000 (making them not qualify as a small business).
However, nothing points to sheep ranches being comprised of a
significantly higher percentage of large operations than other farm
enterprises.\23\ The number of people employed by sheep farms in the
United States is unknown.\24\ However, the number of United States
farming operations with sheep totaled 69,090 during 2006.
---------------------------------------------------------------------------
\23\ Sheep and Lambs--Inventory, Wool Production, and Number
Sold by Size of Flock: 2002. http://www.nass.usda.gov/census/census02/volume1/us/st99_1_030_032.pdf
.
\24\ E-mail from Scott Hollis, Livestock Section Statistician,
USDA, NASS to Phillip Elder, Associate Counsel, USCIS, (November 02,
2007 1:15 PM EST) (on file with author).
---------------------------------------------------------------------------
Total sales of sheep and lambs in 2006 were $473 million for an
average of $6,846 per farm.\25\ Of these farms, 90.8 percent were
comprised of operations having from 1 to 99 head. Farms with a range of
100 to 499 head of sheep comprise 7.6 percent of the industry and the
remaining 1.6 percent were operations with 500 head or more.\26\
Operations with more than 500 sheep account for 47.3 percent of the
sheep production in the United States.
---------------------------------------------------------------------------
\25\ Total sales divided by total number of farms. Smaller farms
do not generally derive a significant portion of their income from
sheep farming.
\26\ Farms, Land in Farms, and Livestock Operations, 2006
Summary, Agricultural Statistics Board, United States Department of
Agriculture, National Agricultural Statistics Service.
---------------------------------------------------------------------------
\27\ USDA, National Agricultural Statistics Service, http://www.nass.usda.gov/QuickStats/index2.jsp
.
The table below lists the top sheep producing states for 2007,
indicating that the larger sheep farming operations are concentrated in
the western United States.
Sheep and Lambs.--Total Sheep and Lambs for 2007 \27\
------------------------------------------------------------------------
Total sheep
and lambs
State rank State (thousand
head)
------------------------------------------------------------------------
1.............................. Texas.................. 1,070
2.............................. California............. 610
3.............................. Wyoming................ 460
4.............................. Colorado............... 400
5.............................. South Dakota........... 380
------------------------------------------------------------------------
[[Page 8242]]
b. Number of Sheep Farming Entities Affected
The policy exception for sheepherders not returning home for 6
months between their three year employment stints was provided because
livestock operations utilize rangeland in the Western United States as
a source of pasture and forage needed year round, and not seasonal
employees, and a reliable domestic labor source did not exist. USCIS is
proposing to reduce the required period for an H-2A employee to return
to their home country to three months and believes that this reduced
period will be reasonable for H-2A sheepherders as well, obviating the
need for the sheepherder policy exception.
According to the American Sheep Industry Association, more than 500
sheep operations depend on foreign sheepherders for sheep production
and more than 1,500 herders are in the United States continuously
helping care for the flocks.\28\ USCIS receives about 300 petitions a
year for sheepherder H-2A employees, mostly from two sources: Western
Range Association, of Salt Lake City Utah, and Mountain Plains
Association, of Cheyenne, Wyoming. As of September 30, 2007, Western
Range, had 929 H-2A sheepherders under contract with 217 member sheep
ranchers. Of the 929 employees, 774 were from Peru, 79 were from Chile,
52 from Mexico, and 23 from Bolivia.\29\ During calendar year 2007,
Mountain Plains has acted as agent for 1,460 H-2A employees for
livestock farms or ranches. Mountain Plains has placed employees with
approximately 330 range production livestock operations, which are not
limited to sheep but for this analysis USCIS will assume that they are
all sheep farmers. Mountain Plains estimates that the 1,460 H-2A
employees they have had in 2007 were 60 percent from Peru, 30 percent
from Mexico, and 10 percent from Chile or other countries.
---------------------------------------------------------------------------
\28\ http://www.sheepusa.com.
\29\ Telephone conversations with Sarah Peters and Dennis
Richens of the Western Range Association.
---------------------------------------------------------------------------
Thus, about 550 sheep ranchers \30\ are expected to be directly
affected by this proposed rule, representing less than 1 percent of the
69,090 sheep operations in the United States in 2006 and only 6 percent
of the sheep producers in California, Colorado, Idaho, Montana, Nevada,
Mew Mexico, and Wyoming. This small group will face a disproportionate
impact from the proposed rule relative to other sheep farmers.
---------------------------------------------------------------------------
\30\ Western Range--217 plus Mountain Plains--330 = 547--rounded
to 550.
---------------------------------------------------------------------------
c. Size of Sheep Farming Entities Affected
The sheep farms that are members of Mountain Plains and Western
Range have flocks that range in size from approximately 500 ewes to as
high as about 10,000 ewes with total sales from sheep, lambs and wool
ranging from $50,000 to $950,000. Operations, such as these, with more
than 500 sheep account for 1.6 percent of sheep farming operations.
Annual sales per sheep farm averages about $7,000 per farm; however,
that figure includes many farms that barely exceed the minimum annual
$1,000 in sales threshold that the United States Internal Revenue
Service and USDA use to define a ``farm.'' The number of these directly
affected farms that are small or large entities as a result of
exceeding or falling below the $750,000 threshold defining those
categories are unknown.
d. Increased Compliance Costs for Sheep Farms
(i) Travel Expenses
This rule only proposes that the sheepherder be required to stay
away from the United States for three months or more before returning,
as opposed to returning immediately as currently allowed. This rule
does not change the requirement that a sheepherder return to his or her
home country or regulations governing payment of the alien's travel
expenses. The farmer must pay the costs for many of his H-2A
sheepherders to go home every year anyway as a result of normal
turnover, and this rule will not have an impact on that cost.
(ii) Availability and Cost of Labor
This proposed rule will not substantially reduce the availability
of seasonal sheepherders or increase the cost of employing them.
Sheepherders are unique from other H-2A seasonal agricultural employees
in that sheepherders are needed year round, and not for short term
needs with a start and end, such as a crop harvest. While the need for
sheepherders increases in lambing or sheering season, the nature of the
employment is not necessarily seasonal. The requirement to return home
for six months fits a vegetable or row crop farm with at least six
months between harvests. Ranches, however, need at least a few hands
year round.
Due to the solitude experienced by a sheepherder who must live out
on the range for extended periods of time, employee turnover may be
more pronounced in the sheep ranching industry than in many others.
Rates of employees absconding from rangeland H-2A jobs is estimated at
10 percent, which is much higher than in other employment based visa
programs. A major complaint that sheep ranchers have about the H-2A
program is the inability to have absconding employees, detained,
deported, and replaced.
(iii) Training
If a farm loses an employee it may have to bring in another
sheepherder and incur the costs of training the new employee on the
specific requirements of that ranch. This rule is not expected to
impact this cost.
(iv) Time Away From U.S. Between 3 Year Maximum Stays
Currently, a sheepherder may return to the United States
immediately after returning home. This proposed rule will require him
or her to remain outside the United States for three months.
The productivity and overall expenses of a typical user of the H-2A
sheepherder program are not expected to be affected. A six-month stay-
home requirement would be a major concern for sheep farms because that
length of time may reduce the likelihood of the employee returning to
the U.S. and increases the sheep farmers' risk of having an
insufficient number of employees. However, the three-month stay home
requirement will have a minimal impact. According to major users of the
sheepherder H-2A program, most sheepherders stay home for two or three
months already. Employers active in the program have already built that
expectation into their planning.\31\ The new mandatory three-month
stay-away requirement will be an additional factor for a sheep ranch's
consideration in deciding how many H-2A alien employees it needs. Also,
the ranch will want to make sure that all of its H-2A sheepherders are
not on the same cycle for their requirement to return home and stay.
However, alien workers leave their jobs for a number of reasons on a
regular basis and often have to return home for family events and
emergencies. No increase in expenses is expected as a result of
sheepherders being mandated under this rule to stay away. In addition,
qualitative impacts are expected to be slight, if they occur at all.
---------------------------------------------------------------------------
\31\ Sheep Industry Association, Mountain Plans, and Western
Range.
---------------------------------------------------------------------------
Therefore, the changes proposed in the subject rule that add new
compliance requirements on rangeland livestock operations will not have
a significant economic impact.
[[Page 8243]]
C. Effect of Repatriation Provision
As stated above, this rule proposes to prohibit the approval of an
H-2A petition for a worker from a country that refuses repatriation of
its citizen, subjects, nationals or residents. Thus, where a country
has no repatriation agreement with the United States, or where the
country routinely refuses to issue travel documents, or cooperate in
repatriation, or where for whatever reason the United States is unable
to systematically repatriate deportees, H-2A employees from that
country will not be permitted.
This change is intended to encourage more nations to promptly
accept the return of their nationals who no longer have valid status as
nonimmigrants in the United States. However, the actual impact is
expected to be negligible because very few H-2A workers are from such
countries. According to U.S. Immigrations and Customs Enforcement, the
top five non-cooperating countries are the People's Republic of China,
India, Vietnam, Pakistan, and Laos. However, 98 percent of all H-2A
workers during FY 2006, based on number of admissions, were from Mexico
(40,283), Jamaica (3,376), South Africa (757), Peru (562), and Canada
(454). Repatriation is not a problem with these countries and there is
no reason to believe that the changes made in this rule will cause any
shift in major source countries for temporary agricultural workers at
all, much less to the countries where this is a problem. Thus this
change is not expected to have any impact on the availability of H-2A
labor.
D. Other Impacts of the Proposed Changes
1. Volume of Applications
The changes proposed by this rule are intended to increase the
flexibility and attractiveness of the H-2A visa program. Therefore, the
proposals in this rule are expected to result in a small increase in
the number of H-2A visas petitioned for and approved. USCIS has no
reliable way to estimate the impact of these proposed changes on
petition filings and approval volume with any precision. Nonetheless,
it is reasonable to expect about a 5 percent increase per year in the
number of employers filing a Form I-129 to request H-2A employees as a
result of the proposals in this rule. Based on the 6,000 projected Form
I-129 filings for H-2A employees per fiscal year, this would result in
an estimated 300 additional filings per year.\32\
---------------------------------------------------------------------------
\32\ 5,667 + 6,212/2 = 5,940 x .05 = 297.
---------------------------------------------------------------------------
2. Qualitative Impacts
Reduced delays: USCIS expects no significant increase in filings to
result from allowing employers to petition for unnamed beneficiaries
and only requires the petition to include the names of those
beneficiaries who are in the United States. In H-2A filings many
beneficiaries are currently unnamed. This change will benefit
applicants mainly by eliminating the requirement that beneficiaries be
named so that no Intragency Border Inspection System (IBIS) check will
hold up the petition application process.
Improved quality of life for H-2A seasonal workers. Reducing the
time required for an H-2A worker to be out of the country, allowing
more time for departure after the visa has expired, and allowing for an
extension of stay while a new petition is pending, will cause less
disruption of the life and affairs of H-2A workers in the United
States.
Reduce abuses in the program. Another major goal of this rule, in
addition to providing agricultural employers with an orderly and timely
flow of legal workers, is protecting laborers' rights. Changes e, f, g,
and h above, go directly to protecting laborers' rights by precluding
the payment of employment or recruitment fees by aliens seeking H-2A
positions. Specifically, these changes will reduce the abuse of H-2A
employees by unscrupulous H-2A petitioners and/or their agents, who
have required (or who have used third parties that require) persons
seeking H-2A positions to pay such fees. USCIS also believes that this
rule will help minimize the immigration fraud and abuses that have been
known to occur when aliens are required to pay employment fees. Abuses
that will be reduced by the changes in e, f, g and h will include
petition padding (i.e., the filing of requests for more workers than
needed), sale of H-2A positions to the highest bidder, and human
trafficking. Changes e, f, g and h are also intended to deter the
coercion of alien workers and their family members by recruiters,
facilitators, and others who would otherwise pressure such persons for
payment of debts incurred in connection with seeking an H-2A position.
These changes will also discourage other exploitative practices that,
in the past, have tarnished the reputation of the H-2A program.
In addition, the attestation requirement referred to in change f
above will ensure continued compliance with section 218 of the INA.
Should the employer wish to employ an H-2A worker in a different
capacity than that represented in its labor certification, application,
and petition, it may after complying with some requirements depending
on the circumstances. This change will ensure continued compliance with
section 218 of the INA and the integrity of the H-2A program.
In summary, the changes in e, f, g, and h are essential for
ensuring against the most egregious of the documented abuses to the H-
2A program while in no way limiting the availability of H-2A workers to
U.S. agricultural employers.
Illegal immigration (number of agricultural workers who are
unauthorized) will decline. It is presumed that this rule will result
in those employers who currently hire seasonal agricultural workers who
are not properly authorized to work in the United States to replace
those workers with legal workers to the extent that this rule allows
the employer to obtain a sufficient number of H-2A employees
considering the costs and risk associated with hiring no worker or an
unauthorized worker.
3. Government Costs
This rule is expected to result in no changes in program costs for
the government.
E. Summary and Conclusion
1. Small Entity Effects
The entities affected by this rule are nearly all categorized as
small under the RFA. However, only about 0.3 percent of all farmers use
the H-2A program and 9.3 percent of all farm workers are aliens
employed under the H-2A program. As for sheep ranchers that may be
directly affected by the changes in this rule, the 550 identified
predominant users comprise less than 1 percent of the 69,090 sheep
operations in the United States and Puerto Rico in 2006, and only 6
percent of the operations in California, Colorado, Idaho, Montana,
Nevada, New Mexico, and Wyoming. USCIS believes that the percentages of
total farms affected by this rule do not represent a sufficient portion
of the agricultural producers in the United States to rise to a level
that could be called substantial as the term is intended under the RFA.
This rule will not impose a significant economic impact on any
firms. This rule proposes several changes to the H-2A visa program that
USCIS believes are necessary to encourage and facilitate the lawful
employment of foreign temporary and seasonal agricultural workers.
There are no additional regulatory compliance requirements to be added
that will cause a detectable increase in costs for participating firms.
Thus, when comparing the annualized costs of this
[[Page 8244]]
proposed rule as a percentage of a typical participating regulated
small firm's annual sales there is no significant economic effect.
2. Increased Costs for Small Businesses
Costs of compliance for small businesses will not be changed by
this proposed rule. Volume of applications may increase slightly, but
the burden of compliance both in time and fees will not increase above
that currently imposed.
3. Increased Costs for Individuals
The annual undiscounted costs for aliens admitted on an H-2A visa
to comply with the DHS Biometric Exit Pilot as Part of US-VISIT range
from $28,000 to $171,000.
4. Benefits
This rule will benefit applicants by:
Reducing delays caused by IBIS checks holding up the
petition application process:
Reducing disruption of the life and affairs of H-2A
workers in the United States;
Protecting laborers' rights by precluding payment of fees
by the alien;
Preventing the filing of requests for more workers than
needed, visa selling, coercion of alien workers and their family
members, or other practices that exploit workers and stigmatize the H-
2A program;
Encouraging employers who currently hire seasonal
agricultural workers who are not properly authorized to work in the
United States to replace those workers with legal workers; and
Minimizing immigration fraud and human trafficking.
F. Executive Order 13132
This rule will 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 rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
G. Executive Order 12988
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act
This rule requires that a petitioner submit Form I-129, Petition
for Nonimmigrant Worker, seeking to classify an alien as an H-2A
nonimmigrant. This form has been previously approved for use by the
Office of Management and Budget (OMB) under the Paperwork Reduction
Act. The OMB control number for this collection is 1615-0009. However,
USCIS will make minor changes to the Form I-129 by requiring an
employer to certify that during the period of intended employment for
which the petition is approved, the petitioner will not expand the
alien workers' duties, place of employment, nor the entities for which
the duties will be performed beyond the information provided on the
Form I-129 and temporary labor certification, and by updating the
language describing employers' responsibility to inform DHS of H-2A
employee no-show, termination, or abscondment and the requirement to
pay liquidated damages for failure to make such notification. In
addition, USCIS estimates that the number of U.S. employers using the
Form I-129 will increase. Accordingly, once this rule is published as a
final rule, USCIS will submit to OMB, the Form I-129 (with minor
changes) and raise the number of respondents and burden hours
associated for this information collection using an OMB 83-C,
Correction Worksheet.
In addition, this rule requires, as a prerequisite to an H-2A
worker receiving an automatic extension of employment authorization
with the filing of a petition by a new employer, that employers enroll
in E-Verify, which is an information collection system previously
approved for use under the Paperwork Reduction Act. The OMB Control
Number for this information collection is 1615-0092.
Under the changes contained in this regulation, USCIS estimates
that the number of U.S. employers using E-Verify will increase.
Accordingly, once this rule is published as a final rule, USCIS will
submit an OMB 83-C, Correction Worksheet, to OMB raising the number of
respondents and burden hours associated for this information
collection.
List of Subjects
8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
programs, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students, Victims.
8 CFR Part 215
Administrative practice and procedure, Aliens.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is proposed to be amended as follows:
PART 214--NONIMMIGRANT CLASSES
1. The authority citation for part 214 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185, 1186a,
1187, 1221, 1253, 1281, 1282, 1301-1305 and 1372; section 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; 8 CFR part 2.
2. Section 214.2 is amended by:
a. Revising paragraphs (h)(2)(i)(A) and (D);
b. Revising paragraph (h)(2)(iii);
c. Revising paragraph (h)(5)(i)(A);
d. Revising paragraph (h)(5)(i)(B);
e. Revising paragraph (h)(5)(i)(C);
f. Adding a new paragraph (h)(5)(i)(F);
g. Removing last sentence from (h)(5)(ii);
h. Revising paragraph (h)(5)(vi);
i. Revising paragraph (h)(5)(viii)(A);
j. Revising paragraph (h)(5)(viii)(B);
k. Revising paragraph (h)(5)(viii)(C);
l. Adding a new paragraph (h)(5)(viii)(D);
m. Revising paragraph (h)(5)(ix);
n. Revising paragraph (h)(5)(x);
o. Adding a new paragraph (h)(5)(xi); and by
p. Revising paragraph (h)(11)(ii).
The revisions and additions read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(2) * * *
(i) * * *
(A) General. A United States employer seeking to classify an alien
as an H-1B, H-2A, H-2B, or H-3 temporary employee must file a petition
on Form I-129, Petition for Nonimmigrant Worker, as provided in the
form instructions.
* * * * *
(D) Change of employers. If the alien is in the United States and
seeks to
[[Page 8245]]
change employers, the prospective new employer must file a petition on
Form I-129 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 by
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.
* * * * *
(iii) Naming beneficiaries. H-1B, H-1C, and H-3 petitions must
include the name of each beneficiary. 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. However, a petitioner who files on behalf of workers who
are not present in the United States an H-2B petition that is supported
by a temporary labor certification requiring education, training,
experience, or special requirements of the beneficiary must name all
the requested workers in each petition. Unnamed beneficiaries must be
shown on the petition by total number. If all of the beneficiaries
covered by an H-2A or H-2B temporary labor certification have not been
identified at the time a petition is filed, multiple petitions for
subsequent beneficiaries may be filed at different times but must
include a copy of the same temporary labor certification. Each petition
must reference all previously filed petitions for that temporary labor
certification.
* * * * *
(5) * * *
(i) * * *
(A) General. An H-2A petition must be filed on Form I-129 with a
single valid temporary agricultural labor certification. The petition
may be filed by either the employer listed on the temporary labor
certification, the employer's agent, or the association of United
States agricultural producers named as a joint employer on the
temporary labor certification.
(B) Multiple beneficiaries. The total number of beneficiaries of a
petition or series of petitions based on the same temporary labor
certification may not exceed the number of workers indicated on that
document. A single petition can include more than one beneficiary if
the total number does not exceed the number of positions indicated on
the relating temporary labor certification.
(C) Petitioner's Attestation. A petitioner must file an
attestation, certified as true and accurate by an appropriate official
of the petitioner, that during the period of intended employment for
which the petition is approved, neither the alien workers' duties,
place of employment, nor the entities for which the duties will be
performed will expand beyond the related information provided on the
Form I-129 and labor certification. The petitioner must also state in
the attestation whether: It received, directly or indirectly, any fee
or other form of compensation from any alien beneficiary; it has any
arrangement or intends to have an arrangement for remuneration, direct
or indirect, from any recruiter, facilitator or similar employment
service with which it coordinates employment of the H-2A workers, and
if so, the name of any recruiter, facilitator, or similar employment
service used to locate H-2A workers; and, to the best of its knowledge,
any alien beneficiary has provided, or intends to provide, any
remuneration, direct or indirect, to any such recruiter, facilitator,
or similar employment service.
* * * * *
(F) Petitions for Nationals of Countries That Refuse Repatriation.
No H-2A petition can be approved for a citizen, subject, national or
resident of a country whose government the Secretary of Homeland
Security has determined consistently denies or unreasonably delays
accepting the return of citizens, subjects, nationals or residents who
are subject to a final order of removal from the United States. The
Secretary will review such determinations periodically to evaluate if
the subject country is accepting repatriated nationals.
* * * * *
(vi) Petitioner consent and notification requirements--(A) Consent.
In filing an H-2A petition, a petitioner and each employer consents to
allow access to the site where the labor is being performed for the
purpose of determining compliance with H-2A requirements.
(B) Agreements. The petitioner agrees to the following
requirements:
(1) To notify DHS in writing, within 48 hours, and beginning on a
date and in a manner specified in a notice published in the Federal
Register if: An H-2A worker fails to report for work within 5 days
after the employment start date stated on the petition; the employment
of an H-2A worker terminates more than 5 days before the employment end
date stated on the petition; or an H-2A worker absconds from the
worksite.
(2) To retain evidence of such notification and make it available
for inspection by DHS officers for a one-year period beginning on the
date of the notification.
(3) To pay $500 in liquidated damages for each instance where it
cannot demonstrate it is in compliance with the notification
requirement.
(C) Process. Except when the petitioner has admitted in writing a
failure to comply with the notification requirement, the petitioner
will be given written notice and 10 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.
(E) Abscondment. An H-2A worker has absconded if he or she has not
reported for work for a period of 5 days without the consent of the
employer.
* * * * *
(viii) * * *
(A) Effect of violations of status. An alien may not be accorded H-
2A status who USCIS finds to have, at any time during the past 5 years,
violated any of the terms or conditions of admission into the United
States as an H-2A nonimmigrant, including remaining beyond the specific
period of authorized stay or engaging in unauthorized employment.
(B) Period of admission. An alien admissible as an H-2A
nonimmigrant shall be admitted for the period of the approved petition.
Such alien will be admitted for an additional period of up to one week
before the beginning of the approved period for the purpose of travel
to the worksite, and a 30-day period following the expiration of the H-
2A petition for the purpose of departure or extension based on a
subsequent offer of employment. Unless authorized under 8 CFR 274a.12
or section 214(n) of the Act, the beneficiary 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 term of an approved petition. An alien
may remain longer to engage in other qualifying temporary agricultural
employment by obtaining
[[Page 8246]]
an extension of stay. However, an individual who has held H-2A status
for a total of 3 years may not again be granted H-2A status until such
time as he or she remains outside the United States for an
uninterrupted period of 3 months. An absence from the United States can
interrupt the accrual of time spent as an H-2A nonimmigrant against the
three-year limit. 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 two months. Eligibility under this paragraph
(h)(5)(viii)(C) will be determined in admission, change of status or
extension proceedings. 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) shall only be admitted for that
abbreviated period.
(D) Nationals of Countries That Refuse Repatriation. No alien may
be accorded H-2A status who is a citizen, subject, national or resident
of a country whose government the Secretary of Homeland Security has
determined consistently denies or unreasonably delays accepting the
return of citizens, subjects, nationals or residents who are subject to
a final order of removal from the United States. The Secretary of
Homeland Security will review such determinations periodically to
evaluate if the subject country is accepting repatriation within a
reasonable period of time.
(ix) Substitution of beneficiaries after admission. An H-2A
petition may be filed to replace H-2A workers whose employment was
terminated early. The petition must be filed with a copy of the
certification document, 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 each terminated worker's name, date and country of
birth, and termination date. A petition for a replacement may 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.
(x) Extensions in emergent circumstances. In emergent
circumstances, as determined by a Service Center director, a single H-
2A petition may be extended without an approved labor certification if
filed on behalf of one or more beneficiaries who will continue to be
employed by the same employer that previously obtained an approved
petition on the beneficiary's behalf, so long as the employee continues
to perform the same duties and will be employed for no longer than 2
weeks after the expiration of previously-approved petition. The
previously approved petition must have been based on an approved
temporary labor certification.
(xi) Treatment of petitions and alien beneficiaries upon a
determination that fees were collected from alien beneficiaries--(A)
Denial or revocation of petition. As a condition to approval of an H-2A
petition, no fee or other compensation (either direct or indirect) may
be collected from a beneficiary of an H-2A petition by a petitioner,
agent, facilitator, recruiter, or similar employment service in
connection with an offer or condition of H-2A employment. If a Service
Center director determines that the petitioner has collected, or
entered into an agreement to collect, such fee or compensation or that
the petitioner is aware that the beneficiary has paid or agreed to pay
any facilitator, recruiter, or similar employment service, in
connection with obtaining the H-2A employment, the H-2A petition will
be denied or revoked on notice.
(B) Effect of petition revocation. Upon revocation of an H-2A
petition based upon paragraph (h)(5)(xi)(A) of this section, the alien
beneficiary's stay will be authorized and the alien will not accrue any
period of unlawful presence under section 212(a)(9) of the Act for a
30-day period following the date of the revocation for the purpose of
departure or extension of stay based upon a subsequent offer of
employment. The employer shall be liable for the alien beneficiary's
reasonable costs of return to his or her last place of foreign
residence abroad, unless such alien obtains an extension of stay based
on an approved H-2A petition filed by a different employer, and such
employer states in the job offer that it will pay the alien's
reasonable return transportation expenses upon completion of the his or
her new employment.
* * * * *
(11) * * *
(ii) Immediate and automatic revocation. The approval of any
petition is immediately and automatically revoked if the petitioner
goes out of business, files a written withdrawal or the petition, or
the Department of Labor revokes the labor certification upon which the
petition is based.
* * * * *
PART 215--CONTROLS OF ALIENS DEPARTING FROM THE UNITED STATES
2. The authority citation for part 215 continues to read as
follows:
Authority: 8 U.S.C. 1104; 1184; 1185 (pursuant to Executive
Order 13323, published January 2, 2004), 1365a note, 1379, 1731-32.
3. Section 215.9 is added to read as follows:
Sec. 215.9 Temporary Worker Visa Exit Program.
An alien admitted on an H-2A visa at a port of entry participating
in the Temporary Worker Visa Exit Program must also depart at the end
of their authorized period of stay through a port of entry
participating in the program and present designated biographic and/or
biometric information upon departure. U.S. Customs and Border
Protection will publish a notice in the Federal Register designating
which H-2A workers must participate in the Temporary Worker Visa Exit
Program, which ports of entry are participating in the program, which
biographical and/or biometric information would be required, and the
format for submission of that information by the departing designated
temporary workers.
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
4. The authority citation for section 274a continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
5. Section 274a.12 is amended by:
a. Removing the word ``or'' at the end of paragraph (b)(19);
b. Removing the period at the end of paragraph (b)(20), and adding
a ``; or'' in its place; and by
c. Adding a new paragraph (b)(21).
The addition reads 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) who filed an application for an extension of
stay pursuant to 8 CFR 214.2 or 8 CFR 214.6 during his or her period of
admission. Such alien is authorized to be employed by a new employer
that has filed an H-2A petition naming the alien as a beneficiary and
requesting an extension of stay for the alien for a period not to
exceed 120 days beginning from the ``Received Date'' on Form I-797
(Notice of Action) acknowledging receipt of the
[[Page 8247]]
petition requesting an extension of stay, provided that the employer
has enrolled in and is a participant in good standing in the E-Verify
program, as determined by USCIS in its discretion. Such authorization
will be subject to any conditions and limitations noted on the initial
authorization, except as to the employer and place of employment.
However, if the District Director or Service Center director
adjudicates the application prior to the expiration of this 120-day
period and denies the application for extension of stay, the employment
authorization under this paragraph (b)(21) shall automatically
terminate upon 15 days after the denial decision. The employment
authorization shall also terminate automatically if the employer fails
to remain a participant in good standing in the E-Verify program, as
determined by USCIS in its discretion.
* * * * *
Michael Chertoff,
Secretary.
[FR Doc. E8-2532 Filed 2-12-08; 8:45 am]
BILLING CODE 4410-10-P