[Federal Register Volume 73, Number 245 (Friday, December 19, 2008)]
[Rules and Regulations]
[Pages 78104-78130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30094]
[[Page 78103]]
-----------------------------------------------------------------------
Part VII
Department of Homeland Security
-----------------------------------------------------------------------
8 CFR Parts 204, 214 and 215
Changes to Requirements Affecting H-2B Nonimmigrants and Their
Employers; Final Rule
Federal Register / Vol. 73, No. 245 / Friday, December 19, 2008 /
Rules and Regulations
[[Page 78104]]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 204, 214 and 215
[CIS No. 2432-07; Docket No. USCIS-2007-0058]
RIN 1615-AB67
Changes to Requirements Affecting H-2B Nonimmigrants and Their
Employers
AGENCY: U.S. Citizenship and Immigration Services, U.S. Customs and
Border Protection, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends Department of Homeland Security (DHS)
regulations regarding temporary nonagricultural workers, and their U.S.
employers, within the H-2B nonimmigrant classification. The final rule
removes certain limitations on H-2B employers and adopts streamlining
measures in order to facilitate the lawful employment of foreign
temporary nonagricultural workers. The final rule also addresses
concerns regarding the integrity of the H-2B program and sets forth
several conditions to prevent fraud and protect laborers' rights. The
final rule will benefit U.S. businesses by facilitating a timely flow
of legal workers while ensuring the integrity of the program.
The rule generally removes the requirement for H-2B petitioners to
state on petitions the names of prospective H-2B workers who are
outside the United States and reduces the existing obligatory waiting
period from 6 months to 3 months for an H-2B worker who has reached his
or her maximum three-year period of stay in H-2B nonimmigrant status
before such person may seek an extension of nonimmigrant stay, change
of status, or readmission to the United States in any H or L
nonimmigrant status. The rule provides a more flexible definition of
``temporary services or labor,'' which is generally defined as a period
of one year but could be for a specific one-time need of up to 3 years.
To better ensure the integrity of the H-2B program, this rule
eliminates DHS's current practice of adjudicating H-2B petitions where
the Secretary of Labor or the Governor of Guam has not granted a
temporary labor certification. The rule also prohibits H-2B petitioners
from requesting an employment start date on the Form I-129, Petition
for a Nonimmigrant Worker, that is different than the date of need
listed on the approved temporary labor certification. The final rule
requires H-2B petitioners to notify DHS when the H-2B worker fails to
report for work, is terminated prior to the completion of the work for
which he was hired, or absconds from the worksite. This rule also
precludes employers from passing the cost of recruiter fees charged by
a petitioner, agent, facilitator, recruiter, or similar employment
service to prospective H-2B workers as a condition of an offer of H-2B
employment. Under this rule, employers and H-2B workers may agree that
certain transportation costs and government-imposed fees be borne by H-
2B workers, if the passing of such costs to these workers is not
prohibited under the Fair Labor Standards Act or any other statute.
Moreover, the rule enforces the existing penalties at section
214(c)(14) of the Immigration and Nationality Act (INA) in the case of
an employer who fails to meet any of the conditions of the H-2B
petition, or who willfully misrepresented a material fact in the H-2B
petition. Employers who fail to meet the H-2B conditions or who
willfully make material misrepresentations on an H-2B petition may,
under the statute, be precluded from approval for a period of up to 5
years of any H (except H-1B1), L, O, or P-1 nonimmigrant visa petition,
or any immigrant visa petition described in section 204 of the INA,
they may file with DHS.
This rule also provides that DHS will publish in a notice in the
Federal Register a list of countries that the Secretary of Homeland
Security has designated, with the concurrence of the Secretary of
State, as eligible for its nationals to participate in the H-2B
program. Finally, this rule establishes a pilot exit control program
for certain H-2B workers, by requiring them to report their departure
at designated ports of entry. U.S. Customs and Border Protection (CBP)
will publish a notice in the Federal Register describing the procedures
and requirements for participation in this pilot program.
DATES: This rule is effective January 18, 2009.
FOR FURTHER INFORMATION CONTACT: Hiroko Witherow, Service Center
Operations, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529-
2060, telephone (202) 272-8410.
SUPPLEMENTARY INFORMATION: This supplementary information section is
organized as follows:
Table of Contents
I. Background
A. Proposed Rule
B. Discussion of the Final Rule
II. Public Comments on the Proposed Rule
A. Summary of Comments
B. General Comments
C. Specific Comments
III. Regulatory Requirements
A. Unfunded Mandates Reform Act of 1995
B. Small Business Regulatory Enforcement Fairness Act of 1996
C. Executive Order 12866
D. Regulatory Flexibility Act
E. Executive Order 13132
F. Executive Order 12988
G. Paperwork Reduction Act
I. Background
A. Proposed Rule
The H-2B nonimmigrant classification applies to aliens seeking to
perform nonagricultural labor or services of a temporary nature in the
United States. Immigration and Nationality Act (the Act or INA) sec.
101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b); see 8 CFR
214.1(a)(2) (designation for H-2B classification). The H-2B program is
most frequently used by businesses in seasonal industries that have a
difficult time locating temporary workers. DHS is aware, however, that
the current H-2B program regulations do not effectively accommodate the
needs of U.S. employers and alien workers who use, or want to use, the
H-2B program. Therefore, on August 20, 2008, DHS published a notice of
proposed rulemaking seeking to amend its H-2B regulations. 73 FR 49109.
On May 20, 2008, the Department of Labor (DOL) also published a notice
of proposed rulemaking to amend its regulations regarding the temporary
labor certification process and enforcement for temporary employment in
occupations other than agriculture or registered nursing in the United
States. 73 FR 29942.
Some of the changes that DHS proposed in its rule included
provisions that:
Relax the limitations on naming beneficiaries on the H-2B
petition, if such beneficiaries are outside of the United States;
Require DHS to deny or revoke any H-2B petition if DHS
determines that the petitioner knows, or reasonably should know, that
the alien beneficiary paid, or agreed to pay, any fee or other form of
compensation to the petitioner, the petitioner's agent, or to any
facilitator, recruiter, or similar employment service, in connection
with the H-2B employment;
Require H-2B petitioners: (a) To attest that they will not
materially change the facts as represented on the Form I-129 and the
approved temporary labor certification; (b) to attest that they have
not received and do not intend to
[[Page 78105]]
receive any fee, compensation, or any other form of remuneration from
prospective H-2B workers; and (c) to identify any facilitator,
recruiter, or other similar employment service that the petitioner used
to locate foreign workers;
Require H-2B petitioners to provide written notification
to DHS within 48 hours if: (a) An H-2B worker fails to report to work
within 5 days of the date of the employment start date on the H-2B
petition or within 5 days of the start date established by his or her
employer, whichever is later; (b) the nonagricultural labor or services
for which H-2B workers were hired is completed more than 30 days early;
or (c) an H-2B worker absconds from the worksite or is terminated prior
to the completion of the nonagricultural labor or services for which he
or she was hired;
Clarify that any violation of a condition of H-2B
nonimmigrant status, within the previous 5 years, will preclude an
alien from being accorded H-2B nonimmigrant status, unless the alien
can establish that such violation occurred through no fault of the
alien;
Discontinue DHS's current practice of accepting and
adjudicating an H-2B petition that lacks an approved temporary labor
certification from DOL;
Preclude the employer from using a different employment
start date on the H-2B petition than the date of need stated on the
temporary labor certification approved by DOL;
Preclude DHS from approving H-2B petitions filed on behalf
of beneficiaries from countries determined by DHS to consistently deny
or unreasonably delay the prompt return of their citizens, subjects,
nationals, or residents;
Set forth the minimum period spent outside of the United
States that will stop the H-2B worker from accruing time towards the 3-
year overall limit on H-2B status;
Reduce the period that an individual who has held H-2B
status for a total of 3 years must remain outside of the United States
before he or she may be granted H-2B nonimmigrant status again from 6
to 3 months;
Amend the current definition of ``temporary services or
labor'' by defining them to be services or labor that will be needed by
the employer for a limited period of time, i.e., where the job will end
in the near, definable future; and
Authorize the establishment of a temporary worker exit
program on a pilot basis that would require certain H-2B workers to
register with DHS at the time of departure from the United States.
DHS provided a 30-day comment period in the proposed rule, which
ended on September 19, 2008. During this comment period, DHS received
119 comments. DHS received comments from a broad spectrum of
individuals and organizations, including: Business owners in the
hospitality industry; landscape companies; agents that work with H-2B
employers; job placement companies; trade associations; labor
organizations; an H-2B worker; Chambers of Commerce; a political group;
private attorneys; state government agencies; an independent office to
a federal government agency; members of Congress; and other interested
organizations and individuals.
DHS considered the comments received and all other materials
contained in the docket in preparing this final rule. The final rule
does not address comments seeking changes in regulations unrelated to,
or not addressed by, the proposed rule; changes in procedures of other
components within DHS or other agencies; or the resolution of any other
issues not within the scope of the rulemaking or the authority of DHS.
All comments and other docket materials may be viewed at the
Federal Docket Management System (FDMS) at http://www.regulations.gov,
docket number USCIS-2007-0058.
B. Discussion of the Final Rule
The final rule adopts many of the changes set forth in the proposed
rule. The rationale for the proposed rule and the reasoning provided in
the preamble remain valid, and DHS adopts such reasoning in support of
the promulgation of this final rule. Based on the public comments
received in response to the proposed rule, however, DHS has modified
some of the proposed changes for the final rule.
1. Payment of Fees by Aliens To Obtain H-2B Employment
To address some commenters' concerns about the proposed provisions
related to the payment of fees by beneficiaries to obtain H-2B
employment, the final rule makes several changes.
First, the final rule offers petitioners a means by which to avoid
denial or revocation (following notice to the petitioner) of the H-2B
petition in cases where DHS determines that the petitioner knows or
should reasonably know that the worker has paid or agreed to pay
prohibited fees as a condition of an offer of H-2B employment. In cases
where prohibited fees were collected prior to the petition filing date
and in cases where prohibited fees were collected by the labor
recruiter or agent after petition filing, DHS will not deny or revoke
the petition if the petitioner demonstrates that:
The beneficiary has been reimbursed in full for fees paid
or,
The agreement for the beneficiary to pay such fees has
been terminated, if the fees have not yet been paid. New 8 CFR
214.2(h)(6)(i)(B)(1) and (2).
Additionally, as an alternative to reimbursement where the
prohibition is violated by the recruiter or agent after the petition is
filed, the petitioner may avoid denial or revocation of the petition by
notifying DHS of the improper payments, or agreement to make such
payments, within two work days of learning of them. New 8 CFR
214.2(h)(6)(i)(B)(4). Where the beneficiary has paid the petitioner the
prohibited fees after the filing of the H-2B petition, the petition
will be denied or revoked. New 8 CFR 214.2(h)(6)(i)(B)(3). If DHS
revokes or denies an H-2B petition as a result of the collection of
prohibited fees, then, as a condition of approval of future H-2B
petitions filed within one year of the denial or revocation, the
petitioner must demonstrate that the beneficiary of the denied or
revoked petition from whom prohibited fees were collected has been
reimbursed or that the beneficiary cannot be located despite the
petitioner's reasonable efforts. New 8 CFR 214.2(h)(6)(i)(D).
Further, the final rule does not include the proposed requirement
that the petitioner make a separate attestation regarding the reliance
upon employment services to locate H-2B workers and the acceptance or
knowledge of the beneficiary's payment of prohibited recruitment fees.
DHS is not including a separate attestation requirement in the final
rule, because it has determined that would increase petitioners'
administrative burdens and be duplicative. DHS will instead amend the
Form I-129 to include the attestation requirement.
2. H-2B No-Show, Termination, or Abscondment Notification Requirements
The final rule requires petitioners to provide notification to DHS,
within two work days, beginning on a date and in a manner specified in
a notice published in the Federal Register, in the following instances:
(a) When an H-2B worker fails to report to work within 5 work days of
the employment start date on the H-2B petition; (b) when the temporary
labor or services for which H-2B workers were hired is completed more
than 30 days earlier than the date
[[Page 78106]]
specified by the petitioner in its H-2B petition; or (c) when the H-2B
worker absconds from the worksite or is terminated prior to the
completion of the temporary nonagricultural labor or services for which
he or she was hired. 8 CFR 214.2(h)(6)(i)(E). The final rule clarifies
that the H-2B worker must report to work within 5 ``work days'' of the
employment start date, rather than the proposed 5 days. The H-2B
petitioner must report a violation to DHS within two work days, rather
than the proposed 48 hours. The final rule adopts the term ``work
days'' to ensure that the reporting deadlines are clear to H-2B
petitioners. ``Work day,'' in general, means the period between the
time on any particular day when such employee commences his or her
principal activity or activities and the time on that day at which he
or she ceases such principal activity or activities. Also, for purposes
of clarity, the final rule amends 8 CFR 214.2(h)(11)(i)(A) to cross-
reference the notification provision.
In addition, the final rule does not include the proposal that the
employer may establish an employment start date that is different from
the start date stated on the H-2B petition for purposes of determining
when the notification requirement is triggered where the H-2B worker
fails to report for work. See new 8 CFR 214.2(h)(6)(i)(F)(1). This
ability to change the employment start date is inconsistent with the
requirement from the proposed rule, adopted by this final rule, that
the employment start date must be the same as the date of need stated
on the temporary labor certification approved by the Secretary of
Labor, and therefore, cannot be changed thereafter by the petitioner.
The final rule corrects this inconsistency.
3. Petition Filing Period
This final rule modifies the current regulations governing the
filing period for H petitions to provide for a separate filing period
for H-2B petitions. See 8 CFR 214.2(h)(9)(i)(B). This procedural change
is necessary to ensure parity between DHS and related DOL regulations.
Under the new DOL regulations, an employer cannot start recruiting
(initiate advertising) for the nonagricultural positions any earlier
than 120 days ahead of the date of stated employment need. However,
under current DHS regulations, an employer must file an H-2B petition
along with a DOL-approved temporary labor certification, yet may file
the petition up to 6 months ahead of the date of actual employment
need. 8 CFR 214.2(h)(9)(i)(B). This final rule adopts the proposed
requirement that an H-2B petition identify an employment start date
that is the same as the date of employment need stated on the approved
temporary labor certification. New 8 CFR 214.2(h)(6)(iv)(D).
Considering this requirement, it would be procedurally impossible for a
petitioner to file an H-2B petition any sooner than the earliest date
upon which it is able to start recruiting for a nonagricultural
position. Therefore, this final rule modifies 8 CFR 214.2(h)(9)(i)(B)
to provide that an employer may not file, and USCIS may not approve, an
H-2B petition more than 120 days before the date of the employer's
actual need for the beneficiary's temporary nonagricultural worker
services, as identified on the temporary labor certification.
4. Naming Beneficiaries Exempt From the Numerical Limits
The final rule retains the proposal to allow certain H-2B
petitioners to specify only the number of positions sought, without
naming individual H-2B workers, unless they are already in the United
States. A few commenters were concerned about how the provision
allowing petitioners to include unnamed beneficiaries in the H-2B
petition would be impacted by a possible reauthorization of the
``returning worker'' provisions. New 8 CFR 214.2(h)(2)(iii) and 8 CFR
214.2(h)(6)(vi)(C). The returning worker provisions expired September
30, 2007. INA sec. 214(g)(9), 8 U.S.C. 1184(g)(9) (2007). Under these
provisions, H-2B aliens who were already counted towards the H-2B
numerical limit during one of the 3 fiscal years preceding the fiscal
year of the requested employment start date were not counted again
against the numerical limit. While the returning worker provisions have
expired, their future reauthorization is possible. To ensure that DHS
is able to implement any future reauthorization of these provisions,
this final rule provides DHS the flexibility to collect information
needed about the alien beneficiary to establish eligibility as a
returning worker.
5. Numerical Limits and Petition Extensions or Extension of an Alien's
Stay
The final rule adopts the proposed modifications to 8 CFR
214.2(h)(8)(ii)(A), which provide for the application of the annual
numerical limitations on H nonimmigrant classifications. However, the
proposed rule inadvertently omitted a sentence that is in the current
regulations. This sentence provides that requests for petition
extension or extension of an alien's stay may not be counted towards
the annual numerical limits on H nonimmigrant classifications. DHS
acknowledges this error made in the proposed rule and retains the
sentence in the provision. See new 8 CFR 214.2(h)(8)(ii)(A).
6. Effect of Violations of H-2B Status
The final rule does not adopt the proposed addition of a new
provision that would have precluded an alien from being accorded H-2B
status if USCIS finds that the alien has, at any time during the past 5
years, violated any of the terms or conditions of the current or
previously accorded H-2B status, other than through no fault of the
alien. Several commenters opposed the addition of the proposed
provision. DHS has determined that it is not necessary to add the
proposed provision to the regulations at this time given the remaining
improvements that this rule makes to the H-2B program. DHS may revisit
this issue in a future rulemaking if necessary to further enhance the
integrity of the H-2B program. DHS notes, however, that the fact that
the proposed provision is not adopted in the final rule does not change
existing requirements for change of status, extension of stay, or any
other immigration benefit requiring proper maintenance of status, nor
would it preclude a consular officer from exercising his or her
authority with respect to the issuance or validity of visas under the
immigration laws.
7. Permitting H-2B Petitions for Nationals of Participating Countries
The final rule modifies the proposal to preclude DHS from approving
an H-2B petition filed on behalf of aliens from countries that
consistently deny or unreasonable delay the prompt return of their
citizens, subjects, nationals, or residents who are subject to a final
order of removal from the United States. Instead of publishing a list
of countries that refuse repatriation, DHS will publish in a notice in
the Federal Register a list of countries that the Secretary of Homeland
Security has designated, with the concurrence of the Secretary of
State, as eligible for its nationals to participate in the H-2B
program. In designating countries to allow the participation of their
nationals in the H-2B program, DHS, with the concurrence of the
Department of State, will take into account factors including, but not
limited to, the following: (1) The country's cooperation with respect
to the issuance of travel documents for citizens, subjects, nationals,
and
[[Page 78107]]
residents of that country who are subject to a final order of removal;
(2) the number of final and unexecuted orders of removal against
citizens, subjects, nationals, and residents of that country; (3) the
number of orders of removal executed against citizens, subjects,
nationals, and residents of that country; and (4) such other factors as
may serve the U.S. interest. Initially, the list will be composed of
countries that are important for the operation of the H-2B program and
are cooperative in the repatriation of their nationals. The countries
included on the list are the countries whose nationals contributed the
vast majority of the total beneficiaries of the H-2B program during the
last three fiscal years. Additional details on how this list will be
administered are included in the discussion in response to comments
received on this proposed provision below.
8. Employment Start Date
The final rule retains the provision in the proposed rule
prohibiting the employer from requesting an employment start date on
Form I-129 that is different from the date of need listed on the
accompanying approved temporary labor certification. See new 8 CFR
214.2(h)(6)(iv)(D). As noted below, to ease the initial difficulties in
administering this provision, it will take effect starting with the
filing period for the first half of fiscal year (FY) 2010.
9. Conforming Amendments and Non-Substantive Changes
The final rule includes non-substantive structural or wording
changes from the proposed rule for purposes of clarity and readability.
II. Public Comments on the Proposed Rule
A. Summary of Comments
DHS received 119 comments on the proposed rule. Most commenters
generally supported the streamlining measures in the proposed rule,
such as: Removing the requirement to name the beneficiaries who are
outside of the United States; reducing the required time abroad once an
H-2B worker has reached the maximum period of stay before filing for an
extension, change of status, or readmission to the United States in the
H or L nonimmigrant status; and clarification of the process for
substituting beneficiaries. Many commenters, however, were opposed to
several changes that they believe will create additional burdens on and
costs to U.S. businesses. They suggested that some of the proposed
changes would prevent certain U.S. businesses from utilizing the H-2B
program, such as: Prohibiting the current practice of approving H-2B
petitions that are filed with denied temporary labor certifications;
prohibiting a change of the employment start date on the Form I-129
from what is stated on the approved temporary labor certification;
providing DHS with the authority to deny or revoke on notice any H-2B
petition if it determines that the petitioner knows or reasonably
should know that the alien beneficiary has paid or has agreed to pay
any fee to the petitioner or the petitioner's agent, or to any
facilitator, recruiter, or similar employment service, in connection
with obtaining the H-2B employment; and requiring petitioners to notify
DHS of H-2B workers' no-show, early completion of work, termination, or
abscondment. Many commenters also were concerned about the proposal to
preclude DHS from approving a petition filed on behalf of one or more
aliens from countries that the Secretary of Homeland Security has found
to have consistently refused to accept or unreasonably delayed the
prompt return of their citizens, subjects, nationals, or residents who
are subject to a final order of removal from the United States.
Commenters also objected to the proposed amendment to the definition of
``temporary services or labor.''
The concerns of the commenters are addressed below organized by
subject area.
B. General Comments
1. Comments About the Congressionally Mandated Numerical Limit for the
H-2B Program
Comment: The majority of commenters stated that the biggest problem
with the H-2B program is the lack of Congressional action to increase
the numerical limit or to reauthorize the returning worker provisions.
They believed that all the proposals that DHS suggested would not be
necessary if the numerical limit were lifted. Many U.S. businesses also
expressed their frustration with the fact that they are not able to use
the program because the program is oversubscribed.
Response: DHS is fully aware that the H-2B program is
oversubscribed. However, as many commenters pointed out, the numerical
limit and the authorization of the returning worker provisions are a
matter entirely within the discretion of Congress and cannot be altered
by DHS. DHS has thus made no change to the final rule to reflect these
comments. Additionally, the value of and necessity for the streamlining
and other improvements to the H-2B program included in this final rule
would not be vitiated by any change in the number of H-2B workers
Congress allows to be admitted each year.
2. Protections for U.S. Workers
Comment: DHS received some comments that urged the withdrawal of
the proposed rule, questioning the need for the H-2B program and the
need to streamline the program at a time when the nation is
experiencing such a high unemployment rate.
Response: DHS disagrees that the proposed rule should be withdrawn.
DHS is aware of its responsibility to help maintain the careful balance
between protecting U.S. workers from adverse affect and administering
nonimmigrant programs designed to invite foreign workers to the United
States. The Department of Labor's temporary labor certification
process, which requires employers to perform a labor market test, is
the principal means by which U.S. workers are protected from adverse
affect due to foreign competition for temporary jobs with U.S.
employers. Only if the labor market test establishes the unavailability
of U.S. workers and that there is no adverse affect will DOL approve
the H-2B employer's application for temporary labor certification. The
final rule contains two major revisions to the regulations designed to
further protect U.S. workers while at the same time provide a
streamlined petitioning process: (1) Precluding DHS from approving H-2B
petitions filed without an approved temporary labor certification
issued by DOL, thus avoiding the current need for DHS in certain cases
to delve into the merits of the sufficiency of the employer's market
test; and (2) prohibiting employers from changing the employment start
date identified on the Form I-129 from that identified on the DOL-
approved temporary labor certification. Both of these changes help
strengthen the integrity of the DOL temporary labor certification
process Furthermore, the streamlining measures provided in the proposed
rule (which allows employers to file for unnamed beneficiaries outside
of the United States and more easily substitute workers who are already
in the United States) occur toward the end of the H-2B process, only
after the DOL has certified that U.S. workers are not available and
will not be harmed by the employment of workers using the H-2B program.
[[Page 78108]]
3. Lack of Enforcement Against the Employment of Unauthorized Aliens
Comment: A few commenters criticized this proposed rule for
imposing stiffer requirements and increased costs on employers who are
trying to hire a legal workforce through the H-2B program, while at the
same time failing to provide a sound method for strong enforcement
against employers that hire unauthorized aliens.
Response: DHS recognizes these concerns; however, compliance
measures included in this rulemaking are necessary to ensure the
integrity of the H-2B program and to protect workers' rights. The
purpose of this rule is to strengthen the integrity and efficiency of
the H-2B program so that employers will be encouraged to obtain
temporary workers through the program, rather than resort to unlawful
means.
C. Specific Comments
1. Allowing Unnamed Beneficiaries
Comment: Twenty-seven out of 36 commenters supported the proposal
to allow H-2B petitioners to specify only the number of positions
sought and not name the individual alien(s), except where the alien is
already present in the United States. They agreed that the proposal
would give employers far greater flexibility to recruit workers who are
interested and available to start on the date needed but were unsure of
how this proposal would be affected by a possible re-authorization of
the returning worker provisions.
Response: Based on the support from the commenters, the final rule
adopts the proposal to allow certain unnamed beneficiaries on the H-2B
petition. New 8 CFR 214.2(h)(2)(iii). As discussed below, there is also
a change concerning the naming of beneficiaries from countries that
have not been designated as participating countries. In response to
comments, however, the final rule provides the flexibility to require
H-2B petitioners to name beneficiaries, if located outside the United
States, in the event that Congress re-authorizes the returning worker
provisions or enacts similar legislation exempting certain H
nonimmigrants from the numerical limits. The adjudication of an H-2B
petition for such workers would require DHS to identify eligible aliens
and verify their previous status. Inclusion in this rule of the
requirement to name affected workers in H-2B petitions, even though not
currently applicable, would facilitate implementation of the returning
worker provisions or similar amendments should they be enacted.
The final rule retains the requirement that the petition include
the names of those beneficiaries who are present in the United States.
The granting of an H-2B petition on behalf of beneficiaries in the
United States will serve to either confer a new immigration status or
extend the status of a particular alien immediately upon approval.
Since such an approval, unlike a nonimmigrant admission from outside
the country, does not afford, as in the case of alien beneficiaries
abroad, the United States Government the opportunity to first inspect
and/or interview the H-2B beneficiary (either by the State Department
at a consular office abroad or by CBP at a U.S. port of entry) before
the granting of H-2B nonimmigrant status to the alien, it is essential
that DHS have the names of the beneficiaries already present in the
United States.
Comment: Some commenters suggested that DHS will need to establish
a mechanism for calculating the number of new workers, as opposed to
the number of returning workers when the returning worker provisions
are reauthorized. Another commenter stated that this provision should
be extended further to capture returning workers.
Response: As stated above, the final rule gives DHS the flexibility
to require the names of ``returning worker'' as that term is currently
defined in section 214(g)(9)(A) of the INA, 8 U.S.C. 1184(g)(9)(A),
whether or not such workers would be in the United States, should
Congress choose to enact special provisions once again exempting such
H-2B returning workers from the numerical limits. Although Congress has
not, to date, extended section 214(g)(9) to cover H-2B returning
workers beyond fiscal year 2007, or enacted similar legislation to
cover such persons beyond that date, the final rule would ensure an
accurate count of workers exempt from the cap if Congress were to enact
such legislation.
Comment: Several commenters opposed this provision allowing unnamed
beneficiaries, because it will make it easier for some employers to
inflate the number of workers they need, and that as a result,
employers requesting the legitimate number of workers would be unable
to secure a legal workforce through the H-2B program.
Response: DHS disagrees with these commenters' concerns. Prior to
filing an H-2B petition with DHS, a prospective employer must obtain a
temporary labor certification from DOL. When it deems necessary, DOL
will verify the employer's need for the number of temporary workers
requested at the time it adjudicates the temporary labor certification
application or thereafter on a post audit basis. Once an employer
obtains an approved temporary labor certification and files an H-2B
petition with DHS, DHS evaluates whether there is an actual need for
the work itself and whether there is a genuine job offer. This
evaluation would include verifying, based on the petition and
accompanying documentation, whether the employer, as a matter of fact,
has a need for the number of temporary workers described on the
approved temporary labor certification. In short, both DHS and DOL must
ensure compliance with the statutory requirements for the H-2B
classification, including shared responsibility for assessing the
temporary nature of the services or labor to be performed. INA sec.
101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b); INA sec.
214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 103.2(b)(1); 20 CFR 655.6. DHS
may request additional evidence from the petitioner in those cases
where questions arise regarding the legitimate number of H-2B workers
requested on the H-2B petition.
Comment: One commenter further asked how the unnamed beneficiaries
will be tracked to ensure that they will not exceed the 3-year limit on
H-2B status.
Response: The final rule removes the requirement to name
beneficiaries, but only if they are outside of the United States or H-
2B returning workers. Upon approval of the H-2B petition, these
prospective beneficiaries must generally undergo a visa interview at a
U.S. consulate, unless they are visa exempt (e.g., Canadians). All
individuals seeking admission to the United States must undergo
inspection by a U.S. Customs and Border Protection officer upon arrival
at a U.S. port of entry. During this visa application and/or admission
process, the necessary screening will be conducted to ensure that the
H-2B worker will not be granted any benefit exceeding the 3-year
ceiling.
Comment: One commenter further asked how the unnamed beneficiaries
will be tracked in case the petitioner must request substitutions of
beneficiaries.
Response: DHS tracks the number of H-2B workers approved for the H-
2B employer. As a result, DHS will know how many substitutions the
petitioner has requested.
2. Post H-2B Waiting Period
Comment: Sixteen out of 22 commenters supported the proposed rule
suggesting the reduction of the waiting period from 6 months to 3
[[Page 78109]]
months for an H-2B worker who has reached the 3-year maximum period of
stay on H-2B nonimmigrant status prior to seeking an application for
extension of nonimmigrant stay, change of status, or readmission to the
United States in H-2B status or other nonimmigrant status under section
101(a)(15)(H) or (L) of the INA, 8 U.S.C. 1101(a)(15)(H) or (L). These
commenters supported this proposal stating that it will make the H-2B
process more efficient for the users.
Response: DHS finds that the adoption of this proposal will reduce
the amount of time employers would be required to be without the
services of needed workers while not offending the fundamentally
temporary nature of employment under the H-2B program. Accordingly, the
final rule adopts the proposed reduction in waiting time without
change. New 8 CFR 214.2(h)(13)(iv).
Comment: Several commenters argued that the post-H-2B waiting
period provisions contained in the proposed rule may harm domestic
workers in seasonal industries that may slow down or come to a stop
during the winter months. A commenter suggested that this change gives
an advantage to employers in the construction markets, as it gives them
the ability to address their hiring needs with H-2B workers throughout
the seasons, which in turn, reduces the incentives to train and recruit
domestic workers. Another commenter stated that this proposed rule
offends the fundamentally temporary nature of employment under the H-2B
program.
Response: DHS disagrees that a reduction in the waiting period will
result in the displacement of domestic workers. The law requires H-2B
employers to obtain a temporary labor certification certifying that
there are insufficient U.S. workers who are able, willing, qualified,
and available to perform the nonagricultural temporary labor or
services required by the employer, and that the H-2B employment will
not adversely affect the wages and working conditions of similarly
employed U.S. workers. Whether the prospective worker is a first-time
H-2B worker or an H-2B worker who has previously worked in the United
States but is eligible to receive H-2B status anew, the requirement
that the unavailability of U.S. workers be established, as determined
by DOL, remains unchanged by this rule. When filing the application for
temporary labor certification with DOL, H-2B employers are required to
establish that the temporary job for which the H-2B workers are sought
is not permanent and ongoing.
Comment: Those who opposed this provision expressed concern that it
will allow employers to create a long-term workforce comprising H-2B
workers who reside in the U.S. for 3 years and then take a relatively
short trip to their home country before re-entering to resume
employment.
Response: USCIS disagrees that this provision will undermine the
U.S. workforce. The H-2B program requires employers to obtain temporary
labor certification from DOL to cover the period of employment need.
This process requires a labor market test, which certifies that no U.S.
workers are available for employment or will be harmed by the
employment of nonimmigrant workers.
3. Prohibiting H-2B Petitions or Admissions for Nationals of Countries
That Consistently Refuse or Delay Repatriation
Comment: Five out of 14 commenters supported the proposal to
include a new provision at 8 CFR 214.2(h)(6)(i)(E) precluding DHS from
approving an H-2B petition filed on behalf of one or more aliens from a
country that the Secretary of Homeland Security has found to have
consistently refused to accept or unreasonably delayed the prompt
return of its citizens, subjects, nationals, or residents. They thought
that this would be a fair and logical provision. One commenter
supported this provision, stating that it will help limit the problem
of H-2B workers who overstay their visas.
Response: After reviewing all comments, DHS has modified this
proposal in the final rule for the reasons and in the manner discussed
below.
Instead of publishing a list of countries that consistently deny or
unreasonably delay the prompt return of their citizens, subjects,
nationals, or residents who are subject to a final removal order, DHS
is publishing in a notice in the Federal Register a list of countries
that the Secretary of Homeland Security has designated, with the
concurrence of the Secretary of State, as eligible for its nationals to
participate in the H-2B temporary nonagricultural worker program. DHS
is making this modification to the rule in consideration of public
comments received recommending DHS rework the proposal in order to make
the process more positive and to encourage countries to improve
cooperation in the repatriation of their nationals.
In designating countries to allow the participation of their
nationals in the H-2B program, DHS, with the concurrence of the
Department of State, will take into account factors including, but not
limited to, the following: (1) The country's cooperation with respect
to the issuance of travel documents for citizens, subjects, nationals,
and residents of that country who are subject to a final order of
removal; (2) the number of final and unexecuted orders of removal
against citizens, subjects, nationals, and residents of that country;
(3) the number of orders of removal executed against citizens,
subjects, nationals, and residents of that country; and (4) such other
factors as may serve the U.S. interest.
Designation of countries on the list of eligible countries will be
valid for one year from publication. The designation shall be without
effect at the end of that one-year period. The Secretary, with the
concurrence of the Secretary of State, expects to publish a new list
prior to the expiration of the previous designation by publication of a
notice in the Federal Register, considering a variety of factors
including, but not limited to the four described above.
Initially, the list will be composed of countries that are
important for the operation of the H-2A and H-2B programs and are
cooperative in the repatriation of their nationals. The countries
included on the list are the countries whose nationals contributed the
vast majority of the total beneficiaries of the H-2B program during the
last three fiscal years.
The Secretary of Homeland Security may allow a national from a
country not on the list to be named as a beneficiary on an H-2B
petition and to participate in the H-2B program based on a
determination that such participation is in the U.S. interest. The
Secretary's determination of such a U.S. interest will take into
account a variety of factors, including but not limited to
consideration of: (1) Evidence from the petitioner demonstrating that a
worker with the required skills is not available either from among U.S.
workers or from among workers from a country currently on the list of
eligible countries for participation in the program; (2) evidence that
the beneficiary has been admitted to the United States previously in H-
2B status; (3) the potential for abuse, fraud, or other harm to the
integrity of the H-2B visa program through the potential admission of a
beneficiary from a country not currently on the list of eligible
countries for participation in the program; and (4) such other factors
as may serve the U.S. interest. Therefore, DHS is requiring petitioners
for beneficiaries who are nationals of countries not designated as
participating countries to name each beneficiary. New 8 CFR
214.2(h)(2)(iii). In addition, petitions for beneficiaries
[[Page 78110]]
from designated countries and undesignated countries are to be filed
separately. 8 CFR 214.2(h)(2)(ii). These changes will permit DHS to
more easily adjudicate H-2B petitions involving nationals of countries
not named on the list by permitting DHS to properly evaluate the
factors used to make a determination of U.S. interest, discussed above,
without slowing the adjudication of petitions on behalf of nationals of
designated countries.
As discussed in the proposed rule, DHS expects that the provisions
in this rule intended to increase the flexibility of the H-2B program,
complemented by the streamlining proposals the Department of Labor is
making in its H-2B rule, will increase the appeal of the H-2B program
with U.S. employers. While the statutory maximum number of H-2B workers
will remain 66,000, the program is enhanced by countries accepting the
return of their nationals.
This rule provides that petitions may only be filed and approved on
behalf of beneficiaries who are nationals of a country that is included
in the list of participating countries published by notice in the
Federal Register or, in the case of an individual beneficiary, an alien
whose participation in the H-2B program has been determined by the
Secretary of Homeland Security to be in the U.S. interest. See new 8
CFR 214.2(h)(6)(i)(E). Likewise, in order to be admitted as an H-2B,
aliens must be nationals of countries included on the list of
participating countries or, in the case of an individual beneficiary,
an alien whose participation in the H-2B program has been determined by
the Secretary of Homeland Security to be in the U.S. interest. To
ensure program integrity, such petitioners must state the nationality
of all beneficiaries on the petition, even if there are beneficiaries
from more than one country. See new 8 CFR 214.2(h)(2)(iii).
Comment: Several commenters argued that this provision would
unnecessarily penalize potential H-2B workers who are seeking to
improve their standard of living, due to the actions of their
government. These commenters also stated that it is not fair to U.S.
employers who will be denied willing and able workers.
Response: Though it appreciates these concerns, DHS notes that all
nonimmigrants, including H-2B temporary workers, must abide by the
terms and conditions of their nonimmigrant admission. This final rule
will encourage countries to work collaboratively with the United States
to ensure the timely return of their nationals who have been subject to
a final order of removal, in order to ensure that the H-2B program will
be available to other nationals of their countries in the future.
Comment: A few commenters also stated that they would not support
any provisions that restrict eligibility to nationals of countries that
provide the most cooperation to the United States in administering the
program. They stated that such preference could harm the effectiveness
of the H-2B program and adversely impact industries that rely heavily
on workers from particular countries.
Response: DHS strongly believes the success of the program is
enhanced by countries accepting the return of their nationals. However,
as discussed in response to the comment above, this rule provides an
alternative approach to address the repatriation problem. DHS will
publish a list of participating countries based on factors which
include, but are not limited to, the country's cooperation in the
repatriation of its nationals, citizens, subjects, or residents who are
subject to a final removal order. Therefore, the commenters' suggestion
is not adopted.
Comment: One commenter objected to this proposal, stating that this
provision may cause H-2B aliens from such countries who are already
present in the United States (knowing that they would not be able to
obtain an H-2B visa again) to overstay their visas if/when their
requests for an extension are denied, with the full knowledge that they
would not be eligible for any subsequent H-2B visa issuance, and
therefore, if they overstayed, DHS would not have the means to remove
them.
Response: Each alien is required to depart the United States once
his or her authorized period of stay has expired. Additionally, this
proposal, as modified in this final rule, will create an incentive for
countries to better cooperate with the United States regarding the
timely repatriation of aliens who are subject to a final order of
removal.
Comments: Two commenters stated that this regulatory provision is
unnecessary because the authority to deny visa issuance to nationals of
these countries already exists in the statute.
Response: DHS finds that this change as modified in this final rule
is needed in order to preclude DHS from approving a petition filed on
behalf of one or more aliens from such countries at the start of the
process. Adopting this change will save DHS from the unnecessary
allotment of the limited number of H-2B visas to aliens who will be
found by the Department of State to be ineligible for H-2B visas
pursuant to INA section 243(d), 8 U.S.C. 1253(d).
Comment: A few commenters requested that a list of such countries
should be provided to the public as it may impact some employers'
ability to use the program.
Response: DHS will publish a notice in the Federal Register listing
eligible countries and expects to publish a new list prior to the
expiration of the previous designation.
4. Temporary Labor Certifications
a. Consideration of Petitions Lacking an Approved Temporary Labor
Certification
Comment: Fifty-two out of 57 commenters objected to the elimination
of DHS's current authority to adjudicate H-2B petitions where the
Secretary of Labor or the Governor of Guam has not granted a temporary
labor certification.
Response: After considering the commenters' objections, DHS
nevertheless retains this proposal in this final rule, as discussed in
the comments and responses below. 8 CFR 214.2(h)(6)(iv)(D), (E),
(h)(6)(v)(C), and (D).
Comment: Some commenters suggested that the INA does not support
this provision because the INA vests the authority for the admission of
H-2B workers with DHS, not DOL, and only requires consultation with
appropriate agencies of the Government.
Response: DHS is vested with the statutory authority to approve a
petition for H-2B workers after consultation with DOL. INA sec.
214(c)(1), 8 U.S.C. 1184(c)(1). DHS, however, does not have the
expertise needed to make any labor market determinations, independent
of those already made by DOL. For this reason, DHS finds that it is in
the best interests of U.S. workers and the public that DHS not approve
H-2B petitions when DOL has denied an employer's application for
temporary labor certification.
Comment: Many commenters were concerned that this provision has the
potential do serious harm to employers by barring recourse for them
when human errors occur in the temporary labor certification process.
They suggested that DHS should not eliminate the fundamental right to
appeal.
Response: In its final H-2B rule, DOL establishes an appeal process
for an employer whose temporary labor certification is denied. DHS
believes that this DOL provision addresses these commenters' concerns.
Therefore, under this final rule, DHS removes the provisions allowing
the approval of H-
[[Page 78111]]
2B petitions that are filed with denied temporary labor certifications.
Comment: A few commenters suggested that DHS should accept and
process petitions for H-2B workers based upon an appealed temporary
labor certification with the U.S. Department of Labor, whether the
current statutory limitation on H-2B visas has been met or not.
Response: The final rule does not adopt this suggestion because DHS
cannot accept H-2B petitions once the statutory limitation on H-2B
visas has been reached. INA sec. 214(g)(1)(B) and 214(g)(10), 8 U.S.C.
1184(g)(1)(B) and 8 U.S.C. 1184(g)(10). Petitioners would derive no
advantage by filing an H-2B petition with a pending DOL appeal, as
there are no provisions authorizing DHS to set aside an H-2B visa
number. Moreover, all applicants and petitioners must establish
eligibility at the time of filing. 8 CFR 103.2(b)(1). USCIS has also
determined that it would be an inappropriate intrusion into the DOL
appeal process if DHS were to accept petitions before that process is
complete.
b. Employment Start Date
Comment: Sixty-four out of 69 commenters opposed the proposal to
prohibit H-2B petitioners from requesting an employment start date on
the Form I-129 that is different from the date of need listed on the
approved temporary labor certification. Many commenters stated that
start dates have become problematic due to an unrealistic numeric cap
imposed by Congress. Of those, the majority of commenters stated that
this change would allow only employers who have a need for temporary H-
2B workers beginning on October 1 or April 1 to obtain H-2B visas due
to the fact that, in recent years, allocation of the 66,000 annual H-2B
visas has become increasingly competitive, causing the numeric cap of
33,000 visas in each half of the fiscal year to be reached within a few
weeks of each filing period. Employers, particularly small business
owners, with seasonal needs beginning in later months expressed concern
that this change will effectively leave them ``shut out'' of the H-2B
visa program. Furthermore, a number of commenters stated that the only
way the proposed regulation can be fair to all employers is if the
66,000 H-2B visas are allocated evenly each month.
Four commenters expressed support for this proposed change. One
commenter who supported this change expressed concern that the practice
of altering the employment start date for H-2B workers would result in
depriving recently unemployed domestic workers of job opportunities.
Response: The final rule retains the provision prohibiting the
employer from requesting an employment start date on Form I-129 that is
different from the date of need listed on the accompanying approved
temporary labor certification. See new 8 CFR 214.2(h)(6)(iv)(D).
However, H-2B employers who have already started the labor
certification process as of the date of publication of this rule and
wish to change their stated employment start dates would be required to
apply for new temporary labor certifications using a new employment
start date to comply with this change. Further, DHS believes it would
be confusing to employers if DHS implemented this new process to reject
petitions that do not comply with this provision during the anticipated
surge in the number of petitions for the second half of FY 2009.
Therefore, DHS has determined that this provision will take effect for
the FY 2010 filing and will not apply to H-2B petitions that are being
filed for the second half of the FY 2009 cap.
DHS recognizes the concerns of the commenters that requiring the
petition start date to reflect that of the temporary labor
certification may have the effect of disadvantaging certain filers
whose employment start date begins more than four months after the
beginning of the first or second half of the fiscal year. Congress's
intent in requiring the biannual allocation of the H-2B annual
numerical limitation (see section 214(g)(10) of the INA, 8 U.S.C.
1184(g)(10)) was to provide relief to seasonal employers who might not
otherwise be able to use the H-2B program. With respect to the comments
urging that DHS change its method of allocating H-2B numbers to address
this concern, we note, preliminarily that it is unclear whether
Congress, in enacting section 214(g)(10) of the INA, 8 U.S.C.
1184(g)(10), contemplated further divisions of allocations during
specific periods of the year (such as on a monthly or quarterly basis),
or that such allocations would adequately address the problem
identified by the commenters. However, DHS did not provide for any such
allocation in its proposed rule. The public, therefore, has not had an
adequate opportunity to express its views as to the desirability of
changing to a monthly or other type of H-2B number allocation system,
as suggested by these commenters. DHS recognizes, however, that even if
certain seasonal employers might derive benefit from a change in the
current allocation methodology, there nevertheless exists the
possibility that, given the lack of sufficient numbers in previous
years based on high demand for H-2B numbers, other seasonal employers
would still face being cut.
In any event, there are strong arguments in favor of adopting the
same employment start date requirement in this final rule. As noted in
the Supplementary Information section of the proposed rule, the purpose
of this requirement is to preclude certain petitioners from competing
unfairly with other prospective employers for the limited number of H-
2B visa numbers available by using a fictitious employment start date
in order to be considered in the semi-annual allocation process.
Additionally, the proposed rule is intended to ensure compliance with
section 101(a)(15)(H)(ii)(b) of the INA, 8 U.S.C.
1101(a)(15)(H)(ii)(b), regarding unavailability of U.S. workers.
Requiring that an employer adhere to the start date stated in the
approved temporary labor certification will ensure that U.S. workers
are able to make an informed decision as to their availability to fill
the position in question on the actual employment start date. For these
reasons, the final rule retains the same employment start date
requirement. See new 8 CFR 214.2(h)(6)(iv)(D).
Comment: Many commenters expressed concern that the provision to
prohibit the employer from changing the employment start date will have
a severe negative effect on employers who have made every effort to
comply with H-2B visa requirements. Under this provision, employers
unable to obtain H-2B workers for the first half of the fiscal year
(due to the numeric cap), will need to begin an entirely new
recruitment process by filing a new temporary labor certification with
DOL 120 days prior to the filing period for the second half of the
fiscal year.
Response: The final rule retains the provision prohibiting the
employer from requesting an employment start date on Form I-129 that is
different from the date of need listed on the accompanying approved
temporary labor certification. See new 8 CFR 214.2(h)(6)(iv)(D). DHS
recognizes the efforts employers make to file H-2B petitions in a
timely manner and the frustration experienced by the lack of available
visa numbers. The commenters should be aware, however, that such
unavailability of visa numbers is a result of the statutorily-imposed
numerical limitations on the H-2B category and the heavy demand for
such numbers by prospective employers rather than any action on the
part of DHS. Moreover, in administering the H-2B program, DHS is under
a mandate to ensure compliance with section
[[Page 78112]]
101(a)(15)(H)(ii)(b) of the INA, 8 U.S.C. 1101(a)(15)(ii)(b), which
requires that willing U.S. workers be unavailable to fill the position
in question. As discussed above, the only way DHS can satisfy itself
that there has been a fair and accurate labor market test and that
there is in fact a shortage of U.S. workers is by receiving a temporary
labor certification from DOL covering the employment period set forth
in the petition, including the same employment start date. Accordingly,
if an employer is not able to obtain the needed number of H-2B workers
in the first half of the fiscal year, and remains eligible to file a
petition in the second half of the year, then that employer must submit
a new approved temporary labor certification from DOL covering the new
employment period.
Comment: Some commenters asked for clarification regarding the one
exception to the prohibition on the change of the employment start
date.
Response: The exception is described in new 8 CFR
214.2(h)(6)(viii)(B). The sole exception is designed to be used by
employers when they need to substitute beneficiaries who were
previously approved for consular processing but not admitted with
aliens who are currently in the United States. As new 8 CFR
214.2(h)(6)(viii)(B) provides, such an amended petition must retain a
period of employment within the same half of the fiscal year as the
original petition.
Comment: Several commenters stated that employers need the
flexibility to write a different start date in the petition when
unforeseen circumstances occur. Although employers prefer that their
petitions reflect the full period of need, since the allocation of the
66,000 annual H-2B visas has become increasingly competitive, the fact
that employers can salvage at least part of the period of H-2B
employment authorized on the temporary labor certification is important
for companies. For example, if an H-2B employer is unable to receive
the H-2B workers authorized by the Secretary of Labor at the start date
specified on its temporary labor certification and there are no more H-
2B visas available, the employer would need the flexibility to apply
again for H-2B workers for the second half of the year. If denied an H-
2B visa during the first filing period, the employer will unfairly have
to restart the entire filing process from the beginning. Another
commenter similarly responded that the ability of the program to cover
graduated increases in workload is important and that it is imperative
that employers be able to manage the start date of their H-2B
employees.
Response: As the ability to change the date of employment on the
Form I-129 from that of the temporary labor certification has been
exploited, DHS finds that this change is needed to curtail abuses and
ensure the integrity of the H-2B temporary worker program. While there
may be rare instances when an employer would need flexibility to change
the date of employment due to an unforeseen circumstance, DHS finds
that, in practice, an increasingly disproportionate number of H-2B
employers have changed the date of H-2B employment on the Form I-129 in
order to gain an unfair advantage in obtaining H-2B visas from the
limited pool of 66,000 available H-2B visas.
5. Payment of Fees by Beneficiaries To Obtain H-2B Employment
a. Grounds for Denial or Revocation on Notice
Comment: Forty-seven out of 57 commenters opposed the proposal to
authorize the denial or revocation of an H-2B petition if DHS
determines that the petitioner knows or should know 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, to the
petitioner's agent, or to any facilitator, recruiter, or similar
employment service in connection with obtaining H-2B employment.
Response: After carefully considering these comments, for the
reasons stated in the paragraphs below, the final rule retains the
proposal. DHS has the authority to deny or revoke an H-2B petition
(following notice and an opportunity to respond) if DHS determines that
the petitioner has collected, or entered into an agreement to collect,
a fee or compensation as a condition of obtaining the offer of H-2B
employment, or that the petitioner knows or should know that the
beneficiary has paid or agreed to pay any facilitator, recruiter, or
similar employment service to obtain H-2B employment. See new 8 CFR
214.2(h)(6)(i)(B). However, the final rule includes provisions to allow
H-2B employers to avoid denial or revocation if one of 3 exceptions
applies: (1) Prior to the filing of the petition, the alien beneficiary
has been reimbursed for any prohibited fees the alien paid; (2) before
the filing of the petition and payment of any prohibited fees, the
agreement for the alien to pay such fees has been terminated; or (3)
where an agent or recruiter violates the prohibition on collecting or
agreeing to collect a fee without the petitioner's knowledge or reason
to know, the petitioner notifies DHS of the prohibited payments or
agreement within two work days of learning of such payments or
agreement. A petitioner will not be able to avoid denial or revocation
of the petition if DHS determines that the beneficiary paid the
petitioner the prohibited fees after the petition was filed. It is
contemplated that a petitioner who avoids denial or revocation of a
petition based on timely notification of a recruiter or agent violation
will be on notice to take precautions to ensure that its workers will
not be required to make such prohibited payments in the future.
DHS has determined that a prohibition on any payment made by a
foreign worker in connection with the offer of H-2B employment is more
restrictive than necessary to address the problem of worker
exploitation by unscrupulous employers, recruiters, or facilitators
imposing costs on workers as a condition of selection for the offer of
H-2B employment. Accordingly, DHS has not included in the final rule
the prohibition on payments made in connection with the offer of H-2B
employment, but retains the prohibition on payments made to an
employer, recruiter, facilitator, or other employment service by the
foreign worker that are a condition of obtaining the offer of H-B
employment.
Comment: Some commenters who supported this proposal recognized
this provision as an important step to deter petition padding, visa
selling, and human trafficking schemes that lead to the effective
indenture of H-2B workers. Another commenter stated that, rather than
attestation from employers, DHS should instead propose meaningful
enforcement measures that will empower guest workers. This commenter
further suggested that the violation of this provision should result in
debarment from the H-2B and other visa programs.
Response: DHS has reached agreement with DOL regarding the
delegation by DHS of statutory authority to DOL to establish an
enforcement process to investigate compliance with the H-2B
requirements and to remedy violations uncovered as a result by imposing
fines or debarment. INA sec. 214(c)(14), 8 U.S.C. 1184(c)(14)(A). DHS
and DOL have reached a mutually agreeable delegation of such
enforcement authority. Appropriate debarment procedures will be
instituted to implement new 8 CFR 204.5(o) and 214.1(k). Specifically,
upon a debarment determination by DOL under 20 CFR 655.31, and
exhaustion of an employer's administrative remedies provided under
[[Page 78113]]
DOL's H-2B regulations challenging such a DOL debarment determination,
DHS may, under the authority provided DHS in section 214(a)(14)(A)(ii)
of the INA, 8 U.S.C. 1184(a)(14)(A)(ii), deny both immigrant and
nonimmigrant visa petitions for a period of one to five years,
depending on the severity of the employer's violation leading to such
DOL-debarment action. With regard to the H-2B program on Guam, it
should be noted that, although the Governor of Guam, as opposed to DOL,
continues to have the authority under 8 CFR 214.2(h)(6)(iii)(D) to
establish procedures for administering the H-2B temporary labor
certification program in the Territory of Guam, DHS retains its
ultimate authority to invalidate a temporary labor certification issued
by the Governor of Guam. 8 CFR 214.2(h)(6)(v)(H). Further, the
authority of the Governor of Guam to issue temporary labor
certifications in that territory does not in any way limit the
authority of DHS to take any action it deems necessary under section
214(a)(14)(A)(i) or (ii) of the INA, 8 U.S.C. 1184(a)(14)(A)(i) or
(ii).
Comment: One commenter, stating that small businesses can do little
to curb malicious behavior/practice in foreign countries, requested
that DHS change the legal standard so that an employer would only be
liable for actually ``knowing'' that a worker paid a recruiter or labor
contractor, which may decrease employer confusion and liability.
Response: DHS does not believe that including ``should know'' in
addition to the ``knowing'' standard that was contained in the proposed
rule imposes excessive risks of a violation or liability on the
employer. The employer is responsible for initiating the recruitment
process and chooses whom it will use to obtain foreign labor. The U.S.
employer has control over whether to use recruiters and the terms and
conditions of any recruitment arrangement, including the costs of such
services. The employer can comply with this requirement by making
reasonable arrangements and inquiries as to whether its employees have
paid or will be required to pay a fee.
Comment: Many commenters argued that this proposal is unreasonable
and that it does not afford any protections to the employer. They
stated that overseas recruiters are engaged in actions beyond the
employer's control and that the employer is not involved in, and has no
knowledge of, any agreements made between an overseas recruiter and the
temporary worker. Some commenters also raised concerns about workers
who may abandon their employment after making a false claim about the
payment of prohibited fees, resulting in reimbursement by the employer.
Response: DHS recognizes this concern and notes that it will serve
notice of intent to revoke on a petitioner before revoking an H-2B
petition. The employer will be provided with an opportunity to respond
and submit documentation responding to the notice. To protect a
petitioner who discovers, after the filing of the petition, that the
alien worker paid or agreed to pay an employment service the prohibited
fees, the final rule provides that the petitioner can avoid denial or
revocation by notifying DHS within two work days of obtaining this
knowledge as an alternative to reimbursing the alien or terminating the
agreement. New 8 CFR 214.2(h)(6)(i)(B)(4). DHS will publish a notice in
the Federal Register to describe the manner in which the notification
must be provided.
DHS does not believe that it is appropriate to impose the same
adverse consequence on petitioners who discover a post-filing violation
by a labor recruiter that is imposed on more culpable petitioners who
themselves violate the prohibition on collection of fees from H-2B
workers, nor should petitioners have to pay for the recruiter's
violation by reimbursing the alien. Petitioners should be encouraged to
report information about post-filing wrongdoing by labor recruiters,
even if reimbursement is not possible. In this way, DHS can help
provide further protections to H-2B workers against unscrupulous
recruiter practices.
Further, where the petitioner does not reimburse the beneficiary
and DHS denies or revokes the H-2B petition, the final rule provides
that a condition of approval of subsequent H-2B petitions filed within
one year of the denial or revocation is reimbursement to the
beneficiary of the denied or revoked petition or a demonstration that
the petitioner could not locate the beneficiary despite reasonable
efforts to do so. New 8 CFR 214.2(h)(6)(i)(D)(1). This requirement is
intended to balance the commenters' concerns that an H-2B alien worker
should not be required to pay fees as a condition of the offer of
obtaining H-2B employment with the legitimate concern that petitioners
who run afoul of new 8 CFR 214.2(h)(6)(i)(B) but have attempted in good
faith to remedy their noncompliance continue to have access to the H-2B
program. The question of whether a petitioner will be able to
demonstrate to DHS that it has exercised reasonable efforts to locate
the alien worker will depend on the specific facts and circumstances
presented. In this regard, DHS will take into consideration the amount
of time and effort the petitioner expended in attempting to locate the
beneficiary and will require, at a minimum, that the petitioner have
attempted to locate the worker at all of the alien's known addresses.
The final rule also clarifies that the one-year condition on petition
approval will apply anew each time an H-2B petition is denied or
revoked on the basis of new 8 CFR 214.2(h)(6)(i)(D)(2).
Comment: A few commenters suggested that DHS should target its
foreign worker abuse provisions toward foreign labor contractors and
recruiters that are responsible for the abuses of the H-2B program.
Another commenter suggested that DHS work with the Department of State
to develop a list of good and bad foreign recruiters and foreign labor
contractors so that those that have been found to engage in undesirable
practices with regard to H-2B workers would not be allowed to continue
recruiting workers from abroad.
Response: DHS has no authority to enforce the labor laws of any
foreign country nor can it specifically regulate the business practices
of recruiters in any foreign country. Since no program for foreign
recruiter accreditation was proposed, the establishment of such a
program exceeds what can be provided for in this final rule. Also, DHS
cannot limit the use of recruiters and facilitators for H-2B purposes
to those that maintain an office in the United States and have a
license to do business in the United States according to Federal and
State laws. However, DHS finds merit in the suggestion and will discuss
this matter with the Department of State in the future to determine the
feasibility of monitoring foreign recruiters so as to be able to
provide information on recruiters and their practices to the affected
public.
Comment: Many commenters who objected to this proposal suggested
that it increases the burden on U.S. employers and makes the cost of
the program, which is already expensive, more prohibitive.
Response: While DHS understands that this rule requires employers
to bear these costs, this provision is necessary to ensure that the
actual wages specified on the temporary labor certification will, in
fact, be paid to the H-2B worker, thereby ensuring the validity of the
labor market test and compliance with section 101(a)(15)(H)(ii)(B) of
the INA, 8 U.S.C. 1101(a)(15)(H)(ii)(B). The choice whether to use
recruiters or facilitators and the terms and costs for such services is
left entirely to the employer.
[[Page 78114]]
Comment: A number of commenters stated that they could not
effectively run their businesses if they did not use their
international agents and recruiters. Similarly, a few commenters
objected, stating that there is no statutory authority in the INA for
DHS to prohibit prospective workers from paying a recruiter or
facilitator. They stated that it is a longstanding practice that
foreign agents collect fees from those who wish to find work in the
United States and who need assistance with their visa applications and/
or the admission process, and in fact, such services have become
essential with constant changes in the visa application procedures at
U.S. consulates abroad. A few commenters expressed concerns that this
provision will disadvantage workers who need help with the process
(e.g., who are illiterate, unable to use computers, etc.).
Response: DHS believes that these comments misinterpret the
proposed change. The proposal would neither prohibit the use of such
recruiters or facilitators during the recruitment or visa application
process nor the collection of fees that have been paid by the
petitioner. Instead, the proposal would prohibit the imposition of fees
on prospective workers. It 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. Under section 214(a) of the INA, 8
U.S.C. 1184(a), DHS has plenary authority to determine the conditions
of all nonimmigrants' admission to the United States, including H-2B
workers. It is thus within the authority of DHS to bar the payment by
prospective workers of recruitment-related fees as a condition of an
alien worker's admission to this country in H-2B classification. This
provision does not prevent disadvantaged workers from seeking
assistance from accredited representatives duly recognized by DHS.
Comment: Several commenters asked DHS to distinguish between fees
for recruitment, and DOL and DHS processes with fees, imposed by the
employer or a third party, associated with helping prospective workers
to complete visa application forms. They further stated that a fee of
$60 should be allowed to be paid by the potential worker to gain
assistance. A commenter suggested that DHS should initiate a reasonable
cap on what fees can be charged to the prospective workers. Another
commenter stated that the term ``indirect fees'' is of particular
concern, as it is overly broad and will likely increase litigation.
Response: The types of fees that petitioners and recruiters will be
prohibited from passing onto H-2B workers include recruitment fees,
attorneys' fees, and fees for preparation of visa applications. The
final rule does not provide a list of prohibited fees, so that the
prohibition against impermissible fees remains general, covering any
money paid by the beneficiary to a third party as a condition of the
offer of H-2B employment. However, the final rule provides that
prohibited fees do not include the lower of the fair market value of or
actual costs for transportation to the United States, or payment of any
government-specified fees required of persons seeking to travel to the
United States, such as fees required by a foreign government for
issuance of passports and by the U.S. Department of State for the
issuance of visas, to the extent that the passing of such costs to the
worker is not prohibited by statute. As such costs would have to be
assumed by any alien intending to travel to the United States, DHS
believes that each alien should be responsible for them, (except where
the passing of such costs to the worker is prohibited by statute). New
8 CFR 214.2(h)(6)(i)(B)(3).
Comment: Some commenters found that this provision is unclear as to
how, in practice, employers will be able to demonstrate reimbursement
of any fees, compensation, or other remuneration not related to
transportation costs or government-specific fees, particularly for H-2B
workers who are only present in the United States for short periods of
time and may work at remote worksites.
Response: DHS finds that there can be many ways that proof of
payment can be established, regardless of the location of a worksite or
the length of an employment, with evidence such as copies of receipts,
signed contracts, etc. Where a worker is only present for a short
period of time, the petitioner may be able to reach the alien by using
the alien's known address abroad, etc. As such, DHS finds that any
further clarification is unnecessary in the final rule.
Comment: One commenter stated that foreign workers should not be
given more labor protections than U.S. workers. Since employers are not
currently required to pay for U.S. employees' relocation costs or job
search costs, they should not be expected to cover such costs for H-2B
workers. Another commenter stated that it is not the place of DHS or
DOL to dictate the terms and conditions of foreign worker recruitment.
Response: DHS has a responsibility not only to protect U.S.
workers, but also the foreign workers who are admitted into the H-2B
program. As discussed above, DHS will retain in this final rule a
provision eliminating the current practice of approving, in certain
circumstances, H-2B petitions that are filed with denied or non-
determination temporary labor certifications. This significant change
will ensure that no H-2B petition is ever approved without a
certification from the Department of Labor that an employer has
performed adequate recruitment for U.S. workers to fill the temporary
positions. The H-2B temporary nonimmigrant program often is a place of
last resort for U.S. employers who cannot find sufficient U.S. workers.
As such, use of this program may incur additional burdens on the
employer. As the agency granted the authority to oversee the H-2B visa
program, it is the duty and responsibility of DHS to prevent and
protect H-2B workers from improper labor practices and abuse. DHS finds
that this provision is necessary in order to ensure that H-2B workers
are not charged excessive fees.
Comment: One commenter suggested that the definition of the term
``agent'' be modified to exclude attorneys and other representatives as
defined in 8 CFR 292.2, arguing that DHS should more directly target
abusive recruiters, facilitators, or similar employment facilitators
without unintentionally impacting the attorney-client relationship or
inhibiting an employer's and H-2B worker's rights to seek counsel.
Response: DHS disagrees with the commenter's concern that, with
respect to the collection of fees from H-2B workers, the current
definition of ``agent'' should exclude attorneys and other
representatives. This rule is intended to prohibit the collection of
fees or other compensation from a prospective or actual H-2B worker by
anyone or any entity as a condition of an offer or condition of H-2B
employment. The rule is not intended to limit the employer's or H-2B
worker's right to seek counsel, but would prohibit imposition of
petitioner's agent/attorney fees on an alien. Furthermore, it is not
intended to have any impact on the attorney-client relationship or on
an alien's ability to secure his or her own counsel at his or her own
volition and not as an express or implicit condition to securing the H-
2B employment. DHS believes that it is appropriate to consider an
attorney to be an agent, as it does in other
[[Page 78115]]
circumstances. 8 CFR 214.2(h)(2)(i)(F). When an attorney or other
representative files a petition, it stands in the shoes of the employer
and appropriately is charged with ensuring compliance with that the
statements made in the petition, and the responsibilities assigned to
petitioners and employers, including regarding the alien worker
reimbursement provisions of the regulations.
b. Employer Attestation
Comment: Eight out of 13 commenters opposed the attestation
requirement for H-2B petitioners. One commenter suggested that the
employer's attestation should be added as part of the Form I-129. A few
commenters were concerned about the undue burdens being placed on the
H-2B employer by this additional requirement.
Response: DHS has carefully considered the attestation requirement
and has determined that a separate attestation requirement is not
necessary. A proposed separate attestation requirement in the
regulations would be duplicative. However, an attestation relates to
eligibility requirements that the petitioner must demonstrate on the H-
2B petition that the petitioner must sign as being true and correct.
DHS will amend the Form I-129 to include the attestation requirements
to minimize the burdens on the H-2B petitioner.
Comment: Six commenters responded negatively to this proposal,
questioning the effectiveness of the employer's attestation. A few
commenters also stated that the employer's attestation would have only
a marginal impact if DHS enters into an agreement to delegate auditing
and enforcement of petitions to DOL. Another commenter suggested that a
certain degree of employer attestation in the current regulations is
seldom verified by DHS.
Response: DHS has reached agreement with DOL concerning the
delegation of authority under section 214(c)(14) of the INA, 8 U.S.C.
1184(c)(14), to establish an enforcement process to investigate
compliance with H-2B petition requirements, including violations of the
requirements of the temporary labor certification process, and to
impose certain administrative sanctions for violations disclosed by any
resulting investigations. DHS notes that the attestations made by
petitioners, under penalty of perjury, would not be rendered
superfluous by the delegation of authority under section 214(c)(14) of
the INA, 8 U.S.C. 1184(c), as the information would be of use to DHS in
its own investigations of petition violations.
6. Denial of Petition and Revocation of Approval of Petition
Comment: DHS received seven comments on the proposal to amend 8 CFR
214.2(h)(10)(ii) and (h)(11)(iii)(A)(2) to provide for the denial or
revocation of petitions on notice where statements on the petition (or
temporary labor certification in the case of revocation) are untrue,
inaccurate, fraudulent or misrepresented a material fact. Five out of
seven comments opposed the provision. A couple of commenters
recommended that the rule allow for an appeals process within DHS.
Response: After considering the comments, the final rule adopts the
proposal. DHS already has in place procedures which provide petitioners
with the opportunity to appeal the denial or revocation of a petition
for this nonimmigrant classification. See 8 CFR 103.3(a)(1)(ii).
Comment: Commenters questioned DHS's authority to make
determinations on whether the facts were inaccurate, fraudulent, or
misrepresented on a previously approved temporary labor certification.
Response: In reviewing whether a petition is approvable, DHS
reviews all of the necessary documentation that is required to be
submitted with the petition, including the underlying temporary labor
certification and any accompanying documentation. In so doing, DHS may
examine elements that are presented not only on the petition, but on
the temporary labor certification as well for consistency such as
stated wages, the nature of the job offered, the location, and other
factors common to both petition and temporary labor certification. It
is not new to DHS to make determinations, often upon further inquiry,
as to misrepresentations, material omissions, discrepancies and the
like. While DHS will not go into the merits of the determination
previously made by DOL, DHS is responsible for ensuring the integrity
of the H-2B program, that the facts presented in the entire petition
package are true and verifiable. Where it is established on notice and
with opportunity to respond, that the statement of facts contained in
the petition or on the application for a temporary labor certification
was inaccurate, fraudulent, or misrepresented, DHS acts completely
within its authority to deny or revoke a petition. In other words, DHS
disagrees with the commenters that it must simply ignore
misrepresentation or fraud solely because such appears more prevalently
on the temporary labor certification document. It is inevitable that
any material misrepresentations or fraud at any stage of the H-2B
process will taint the entire process.
7. Employer Notifications to DHS of H-2B No-Shows, Terminations, or
Abscondments
Comment: Eight out of 20 commenters objected to the requirement of
notifying DHS in three instances within 48 hours for a variety of
reasons as explained fully below.
Response: After careful consideration of the comments, the final
rule adopts this provision with minor modifications. The final rule
requires H-2B petitioners to notify DHS within two work days in the
following instances: Where an H-2B worker fails to report to work
within 5 work days of the date of the employment start date on the H-2B
petition; where the nonagricultural labor or services for which H-2B
workers were hired were completed more than 30 days early; or where an
H-2B worker absconds from the worksite or is terminated prior to the
completion of nonagricultural labor or services for which he or she was
hired. New 8 CFR 214.2(h)(6)(i)(F)(1). The final rule clarifies that
the H-2B worker must report to work within 5 ``work days'' of the
employment start date, rather than the proposed 5 days. The H-2B
employer must report a violation to DHS within two work days, rather
than the proposed 48 hours. The final rule adopts the term ``work
days'' to clarify the reporting deadlines for H-2B employers. As
discussed previously, the final rule does not include the proposal that
the employer may establish an employment start date that is different
than the start date stated on the H-2B petition for purposes of
determining when the notification requirement is triggered where the H-
2B worker fails to report for work. This change from the proposed rule
is necessary to be consistent with the requirement in this rule that
petitioners retain the same employment start date on the H-2B petition
as the date of employment need stated on the temporary labor
certification approved by the Secretary of Labor.
Comment: Several commenters suggested that this provision
represents a significant administrative burden on employers. They
stated that a notification within 48 hours would be burdensome because
it may be impossible for the employer to know with certainty that the
H-2B worker absconded from the worksite.
Response: DHS disagrees with the commenters' concerns on these
points, because the proposed rule defined the circumstances causing an
H-2B worker
[[Page 78116]]
to be an absconder. An absconder is defined as a worker who has not
reported to work for 5 consecutive work days without the consent of the
employer. New 8 CFR 214.2(h)(6)(i)(F)(2). Therefore, the employer will
know whether the H-2B worker has absconded, and whether the regulatory
requirement to report this incident to DHS has been triggered. Once the
H-2B worker is deemed to be an absconder in accordance with the
regulatory definition of absconder, the employer has two additional
work days to report this event to DHS.
Comment: Some commenters requested that DHS create a simple
reporting method via the Internet and/or over the phone to comply with
the notification requirements.
Response: A notice outlining the notification requirements will be
published in the Federal Register. In that notice, DHS will provide a
designated e-mail address and alternate mail address for employers to
send notifications. DHS believes that establishing a dedicated e-mail
address for notification purposes will reduce the burden on employers.
As H-2B petitioners are required to retain evidence of notifications
and make such evidence available for inspection by DHS officers for a
one-year period, the final rule does not adopt the suggestion that
notification be available by telephone, because that suggestion would
interfere with the retention requirement.
Comment: One commenter asked how the employer is expected to handle
the situation where an H-2B worker is hospitalized due to an accidental
injury and is unable to communicate, then at a later date contacts the
employer and returns to work upon completion of the treatment for the
injury.
Response: In the event that an H-2B employer encounters a situation
where it chooses to reinstate an absconded employee who has been
reported, DHS strongly suggests that the employer notify DHS in the
same manner as the original notification. The information will be
updated accordingly; however, the employer should document such an
incident to support a claim during any future inspection.
Comment: A few commenters were concerned that, together with the
new provision to preclude a new grant of H-2B status where the alien
worker violated the conditions of H-2B status within the 5 years prior
to adjudication of the new H-2B petition, this notification is not fair
to a worker who absconds but returns home promptly and to a worker who
is reported as having absconded but really has left to pursue other H-
2B employment.
Response: Once an employee absconds, there is no truly effective
way for the employer or DHS to verify such employee's whereabouts. The
employee could have left the country or could have been working for
another employer. If the employee left the United States, he or she
should have evidence to establish he or she departed the United States.
If an employee is approved and does work for another U.S. employer, he
or she should be able to present such documentation to DHS in case of
an inspection. This provision is intended to ensure that all H-2B
workers maintain legal immigration status. DHS has no intention of
imposing adverse consequences on workers who leave the United States or
start working for another employer as long as they do so legally.
Comment: A few commenters stated that it is a complex legal issue
to determine an alien's status and the reporting requirements will
force H-2B employers to make such a determination and thus potentially
expose them to legal liability from the employees.
Response: DHS disagrees with the commenter because DHS does not
expect an H-2B employer to make any determination on any alien worker's
legal status outside of the requirements to verify employment
eligibility pursuant to section 274A of the INA, 8 U.S.C. 1324a. Once
DHS receives a notification from the employer that an alien has not
shown up, has been terminated, or has absconded, DHS will review the
notification, make a determination regarding the alien worker's status,
and decide on any further action, as appropriate. DHS, not the
employer, will make any determination regarding the alien worker's
status.
Comment: One commenter suggested that DHS should allow standard
arbitration language as part of the foreign worker placement process
and the employee should be allowed to agree to mediation or arbitration
of any issues. The employer should be relieved of further
responsibility to the worker if he or she disappears without attempting
arbitration.
Response: DHS does not specifically regulate the business practices
between private parties under existing authorities. Thus, the final
rule does not adopt this suggestion, as it is beyond the scope of this
rulemaking.
Comment: One commenter recommended that DHS reconcile its
requirements for employers to notify DHS of an H-2B worker no-show,
termination, or abscondment with those proposed by DOL for their H-2B
regulations.
Response: DHS shares the commenter's concerns that employers should
not be confused by inconsistencies between the two agencies' reporting
requirements. Therefore, in developing the final rule DHS has worked
with DOL to ensure that the agencies' requirements for reporting H-2B
employee no-shows, early terminations, and abscondments are consistent
with each other.
Comment: There were several comments that pointed out the lack of
resources at DHS and therefore the lack of enforcement. They suggested
that, given the fact that DHS is unlikely to use its limited resources
to pursue these reported alien workers, the notification requirements
will accomplish little while imposing burdens on employers.
Response: DHS disagrees with the commenters' concerns. All
notifications will be reviewed and enforcement actions will be taken,
as appropriate.
Comment: One commenter opposed this provision, stating that H-2B
employers will likely abuse the reporting process to threaten workers,
such as workers who leave their jobs because of unlawful conditions,
because promised work is not available to them, or because they have
been injured on the job.
Response: The purpose of the reporting requirement is to enable DHS
to keep track of H-2B workers while they are in the United States and
take appropriate enforcement action where DHS determines that the H-2B
workers have violated the terms and conditions of their nonimmigrant
stay. The reporting requirement is not, however, intended to be used by
employers as a threat against their alien workers to keep them in an
abusive work situation. Allegations of improper reporting, abuse and/or
intimidation are subject to investigation and enforcement action by DHS
and other government agencies. If DHS determines that an employer is
engaging in worker intimidation or other abuses, such employer will be,
at a minimum, in violation of the terms and conditions of its H-2B
petition and therefore subject to having its petition revoked on notice
under 8 CFR 214.2(h)(11)(iii)(A)(3). For this reason, DHS disagrees
with the commenter's concerns and will adopt the proposed provision.
8. Violations of H-2B Status
Comment: Four out of seven commenters opposed the proposal to add a
new provision to the regulations (proposed 8 CFR 214.2(h)(6)(ix)) that
would preclude a new grant of H-2B
[[Page 78117]]
status within five years of an alien worker's having violated the
conditions of H-2B status, other than through no fault of his or her
own. One commenter argued that DHS lacks the authority to impose
additional or more restrictive grounds of inadmissibility on
applicants. Another commenter stated that although DHS justifies the
proposed 5-year bar for H-2B workers by comparing it to the existing
bar in the H-2A agricultural temporary worker program, there are
multiple disparities between the H-2A and H-2B programs. The commenter
noted that the H-2B program does not require the H-2A program's Adverse
Effect Wage Rate, worker's compensation insurance, free housing, free
transportation, free tools, 75 percent work guarantee, 50 percent U.S.-
worker hiring rule, and other benefits and protections, all of which
could be promulgated by regulation in the H-2B program. Moreover, H-2A
workers qualify for Legal Services Corporation (LSC)-funded legal
representation whereas H-2B workers do not.
Response: DHS carefully considered the comments and has decided not
to adopt the proposed provision to preclude a new grant of H-2B status
where the alien worker violated the conditions of H-2B status, other
than through no fault of his or her own, within the 5 years prior to
adjudication of the new H-2B petition by DHS. In light of the comments
opposing the proposal, DHS finds that the provisions it has adopted in
this final rule that are intended to enforce the terms and conditions
of an alien's admission and compliance with H-2B program requirements
are sufficient at this time. However, DHS may consider the proposal in
the future. Note that DHS's decision not to impose the 5-year bar does
not alter existing requirements regarding maintenance of status.
Comment: A few commenters suggested that there should be a process
whereby a worker can request a review and reinstatement based on
previous experience where the workers were improperly detained and
deported by U.S. Immigration and Customs Enforcement (ICE) while they
were actually in status.
Response: ICE is charged with enforcing the laws against the
employment of unauthorized aliens and with detaining and removing
aliens. ICE's policies and authorities are outside of the scope of this
rulemaking.
9. Temporary Worker Visa Exit Program Pilot
Comment: Five out of thirteen commenters expressed support for the
proposal to add a new provision at 8 CFR 215.9 that establishes the
Temporary Worker Visa Exit Program Pilot. The commenters are in favor
of the Temporary Worker Visa Exit Program Pilot because it will improve
the exit control system at the U.S. border and will also provide data
that accurately reflects the number of H-2B workers that remain in the
U.S. illegally.
Response: DHS carefully considered all of the comments and
appreciates those that are in favor of the Temporary Worker Visa Exit
Program Pilot and adopts the proposed provision at 8 CFR 215.9. Those
comments that are not favorable or express concerns about the program
are discussed more fully below.
Comment: Several commenters requested additional information
regarding the Temporary Worker Visa Exit Program Pilot and the ports of
entry that will participate in the program.
Response: CBP will publish a notice in the Federal Register to
provide further details about the program pilot including the ports of
entry that will participate in the pilot. The notice will also provide
the biographic and biometric information that will need to be provided
by those H-2B workers and the means by which they can provide the
information upon departure.
Comment: Some commenters expressed concern that it is currently
very difficult for H-2B workers to submit the Form I-94, Arrival-
Departure Record, to CBP and have the CBP agent note they are leaving
the United States. These commenters note that this is especially true
if the H-2B workers leave the United States at a land port via bus. The
commenters suggest that CBP make it a rule that all buses need to stop
and allow the passengers to cancel their I-94 when they leave the
United States.
Response: The Temporary Worker Visa Exit Program Pilot will
facilitate the exit process by providing kiosks that allow for easy
scanning of H-2B workers' travel documents and the deposit of their I-
94. While the commenters' suggestion that CBP should require all buses
that travel across the border to stop for immigration purposes is
appreciated, the comment is beyond the scope of this rule.
Comment: Some commenters expressed concerns regarding the re-
admission of H-2B workers who depart the United States during their
term of admission in the United States.
Response: The implementation of the Temporary Worker Visa Exit
Program Pilot does not change the documentary requirements or the terms
of admission or re-admission to the United States after a brief
departure for H-2B workers admitted under H-2B classifications.
Additionally, the requirement that an H-2B worker depart through one of
the participating ports of entry and present designated biographic and
biometric information applies only to the alien's final departure, at
the end of his or her authorized period of stay.
Comment: Several commenters expressed concern that, if there are
insufficient ports of entry participating in the program (e.g., there
are no participating ports in the geographical vicinity of the H-2B
employer), it will impose an undue burden on those H-2B workers that
must depart through a port participating in the program.
Response: The Temporary Worker Visa Exit Program Pilot is being
initiated at two ports of entry. Only those H-2B workers that enter the
United States at one of the two ports participating in the program
pilot will be required to depart from one of the participating ports.
Moreover, most H-2B workers generally are admitted at the port of entry
that is most convenient to their residence. Therefore, it would
generally be expected that H-2B workers would depart from the port of
entry that is most convenient to their residence in their home country.
By initially conducting the program pilot at two ports, CBP is
minimizing the impact of the program pilot while at the same time
collecting the data and information necessary to make determinations
regarding expansion of the program in the future.
Comment: One commenter suggested that when H-2B workers leave their
employers early, DHS should be informed so that DHS can stay in contact
with the H-2B workers and the Temporary Worker Visa Exit Program can
know which H-2B workers have left the country.
Response: Pursuant to 8 CFR 214.2(h)(6)(i)(F), employers are
required to notify DHS if an H-2B worker fails to report for work
within 5 work days of the employment start date stated on the petition,
absconds from the worksite, or is terminated prior to the completion of
the services for which he or she was hired.
Comment: Some commenters questioned whether H-2B workers would be
allowed to depart only through ports of entry participating in the
program.
Response: Only those H-2B workers who enter the United States at
one of the two ports participating in the program pilot will be
required to depart at the end of their authorized period of stay from
either one of the participating ports.
[[Page 78118]]
Comment: One commenter requested the opportunity to have
stakeholder input through notice and comment on the implementation
process for the Temporary Worker Visa Exit Program Pilot.
Response: DHS believes that stakeholders have been given the
opportunity to provide input on the program pilot through this
rulemaking.
Comment: One commenter expressed concern that H-2B workers will not
receive sufficient notice of their responsibilities under the Temporary
Worker Visa Exit Program Pilot.
Response: DHS agrees that H-2B workers must be given sufficient
notice of their responsibilities under the program. Accordingly, CBP
will publish a Federal Register notice that will provide further
details about the program pilot including the ports of entry that will
participate in the pilot. The notice will also provide the biographic
and biometric information that will need to be provided by those H-2B
workers and the means by which they can provide the information upon
departure. Additionally, upon admission into the United States, CBP
will explain their obligations under this program, which is to register
their final departure from the United States before or upon expiration
of their work authorization. This explanation will include both verbal
instructions and written walk-away materials (in both English and
Spanish) to fully explain the pilot program to the participants.
Comment: One commenter expressed concern that the Temporary Worker
Visa Exit Program Pilot will facilitate illegal immigration.
Specifically, the commenter expresses concern that unless biographic
and biometric information are collected at arrival, departure
procedures will not be effective.
Response: The Temporary Worker Visa Exit Program Pilot will
increase the ability of CBP to monitor the departure of workers
admitted on H-2B visas. Currently, as part of the arrival process for
most aliens, H-2B workers must submit both biographical (passport/visa)
and biometric (fingerprints) information. The pilot program is designed
to positively record the departure of H-2B workers by utilizing the
biographic and biometric information submitted at the time of entry and
departure. Thus, the pilot program is designed to reduce, not
facilitate, illegal immigration.
Comment: One commenter expressed concern that the proposed rule
does not state the consequences for H-2B workers who fail to comply
with the exit requirements. The commenter further states that if non-
compliance with the pilot program requirements results in H-2B workers
being denied H-2B status in the future, then the sanction would be
unduly severe and would have a negative impact on employers who would
be prevented from utilizing the services of H-2B workers in future
years.
Response: DHS recognizes these concerns. As discussed above, the
final rule does not include the proposed provision to preclude aliens
from being granted H-2B status based on a prior violation of the
conditions of H-2B status, other than through no fault of their own,
within the 5 years prior to adjudication of the new H-2B petition by
DHS.
10. Temporary Need
Comment: Seven out of 26 commenters supported the proposed rule
amending the current definition of ``temporary services or labor.''
Under the proposed rule, a job would be defined as temporary where the
employer needs a worker to fill a specific need that will end in the
near definable future. The proposed rule would eliminate the
``extraordinary circumstances'' restriction for validity periods of
more than one year and explicitly provided that such a validity period
could last up to 3 years. A few commenters indicated that they
supported these provisions without any additional changes.
Response: DHS appreciates the comments received from the public in
favor of the modified and more flexible definition of ``temporary,''
which is generally defined as a period of duration of one year, but
could be for a specific one-time need of up to 3 years. This more
flexible definition of ``temporary'' will allow U.S. employers and
eligible foreign workers the maximum flexibility allowed under this
program to complete projects with a definable end that require H-2B
workers when U.S. workers are otherwise unavailable. For this and the
other reasons stated in the proposed rule, DHS is retaining the
proposed rule's amendment to the current definition of ``temporary
services or labor.'' While a petitioner need no longer demonstrate
``extraordinary circumstances'' to justify an H-2B petition validity
period of longer than one year, the 3-year maximum validity period is
not intended to be a default, but would be available only where the
petitioner can demonstrate a specific and typically one-time need for
the worker's services for that period of time. Under the final rule,
the validity period of an H-2B petition will therefore be tied to the
nature and period of the employer's temporary need and not to any
specific period of time.
Comment: Several commenters stated that the amended definition of
``temporary services or labor,'' which could be for as long as 3 years
based on a one-time need, will have a disproportionately adverse impact
on domestic workers in the construction industry, which DHS singled out
as the illustrative example justifying the changes. These commenters
further stated that the requirement that employers must re-test the
labor market each year does not represent a meaningful safeguard for
current and future domestic construction workers, if DOL adopts the
attestation-based system it proposed in their corresponding proposed
rule. These commenters also proposed that DHS keep the H-2B program
congruent with the H-2A program, which defines temporary to be a
duration of generally one year or less.
Response: DHS recognizes these concerns regarding the amended
definition of ``temporary services or labor,'' but notes the following.
First, while a ``temporary period of time'' is defined in the proposed
rule as a period of up to 3 years, H-2B status will not necessarily be
granted for the maximum 3-year period in every case. Three years is the
maximum period of time permissible, but not necessarily the actual
period of time needed for the specific job described on the temporary
labor certification and in the H-2B petition. Therefore, each
application for temporary labor certification will be evaluated on a
case-by-case basis, considering the nature and specific needs of the
job to be performed to determine if it is temporary. In cases where the
H-2B employer requires the services of H-2B workers for more than one
year, the H-2B employer is required to each year apply for and receive
an approved temporary labor certification from DOL that re-tests the
labor market and contains an accurate and current prevailing wage
determination. DOL only grants another temporary labor certification to
enable an extension of stay for the H-2B workers if that labor market
test has been satisfied, and there are no able and qualified U.S.
workers available to fill the positions in question and the employment
of the foreign workers will not adversely affect the wage and working
conditions of similarly employed U.S. workers. Lastly, in response to
the comment that DHS keep the H-2B program congruent with the H-2A
program, there are many similarities between the H-2A and H-2B
programs; however, the H-2A program is specifically geared towards
[[Page 78119]]
the agricultural industry. Typically, an agricultural growing season
is, by its very nature, a duration of less than one year. By contrast,
the H-2B program covers a broad spectrum of industries, each
representing divergent circumstances. An H-2B petitioner might be able
to provide verifiable evidence of a one-time need for workers to
complete a particular project within a specific period of time not to
exceed 3 years. Therefore, DHS will retain without change the
definition of ``temporary,'' as stated in the proposed H-2B rule.
Comment: Several commenters stated that the period of time
described in the proposed rule, longer than one year but shorter than
the maximum 3-year period, would allow employers to bypass the former
requirement that employers show extraordinary circumstances justifying
a one-time need, and that it appears to coincide with the length of
time required to complete most domestic construction projects.
Response: DHS appreciates the concerns raised; however, the amended
definition of ``temporary,'' which is generally one year but could last
as long as 3 years based on a one-time need, is not geared to any one
industry, nor is it intended to change the basic requirement that an
employer's need in fact be temporary--rather than permanent--in nature.
While it is true, therefore, that a petitioner need not establish the
existence of extraordinary circumstances justifying a one-time need of
duration longer than one year, this amended definition of the term
temporary is still tied to an employer's specific needs, and is not
intended to create as a default a validity period of greater than one
year in duration. Instead, this amended definition of ``temporary''
accounts for circumstances that may necessitate the need for H-2B
temporary workers for a period of more than one year. As a further
protection for U.S. workers, this regulation also requires that, in
cases where the employer's need exceeds one year, the employer submit
to DHS a petition extension request, together with a newly approved
labor certification issued by DOL covering the requested extension
period.
Comment: A few commenters inquired about how this rule could
justify H-2B visas lasting up to a period of 3 years, noting that a job
of 3 years is not temporary.
Response: This rule defines the term ``temporary service or labor''
to be employment for which there is a need lasting a finite, specific
period, generally defined as one year, but possibly as long as 3 years
if there is a specific one-time need. The employer must establish that
the need for the employee will end in the near, definable future. H-2B
petitions will be granted for the period authorized on the temporary
labor certification. As noted, each petition must be evaluated on its
own merits, on a case-by-case basis. In this regard, the regulation
contemplates a double-check system to ensure that the job in question
is in fact temporary in nature. First, when seeking a temporary labor
certification with DOL, the employer must not only describe to DOL the
nature, scope, and duration of the temporary job, but also justify the
need for temporary workers to fill those jobs for which U.S. workers
are not available. USCIS will approve the H-2B petition for the
validity period endorsed by the DOL on the approved temporary labor
certification. If the temporary labor certification is not endorsed for
the full validity period requested by the employer on the H-2B
petition, USCIS will require an extension petition to be filed with a
current temporary labor certification covering the extended validity
period.
Second, DHS retains the authority, even after DOL approves the
temporary labor certification, to determine, at the time it adjudicates
the H-2B petition, whether the petitioner's need is in fact temporary,
that is, of a limited, finite nature. Similarly, DHS has the authority
to revoke such a petition if it determines that the job is in fact not
temporary in nature.
Finally, it is important to understand that the changes in this
rule to the definition of ``temporary labor or services'' do not alter
what have always been the outer limits of permissible H-2B employment;
even under current regulations it would be possible to demonstrate a
temporary need of more than one year and possibly up to 3 years in
duration, provided extraordinary circumstances were demonstrated.
Comment: Two commenters opposed this provision, concerned that the
change would allow employers in industries that in the past have relied
heavily on the H-1B specialty occupation worker program (including the
high-tech and construction industries) to now be eligible for the H-2B
program (for types of employment for which the H-2B program was never
intended) and overrun the limited supply of H-2B visas. One such
commenter was concerned that H-1B employers and lawyers will seize upon
this change and instantly ruin this program for employers in industries
that have traditionally relied upon the H-2B visa program.
Response: While DHS appreciates the concerns regarding numerical
limitations on the H-1B and H-2B nonimmigrant programs, DHS believes
that the requirement that H-2B employers establish that both the nature
of the employment and the job itself are temporary sufficiently reduces
the likelihood that foreign workers who would otherwise apply for H-1B
visas will consume all the H-2B visas. Many types of H-1B employment do
not satisfy the first requirement that the job itself be temporary. DHS
disagrees with the commenters that admission of greater numbers of
higher skilled qualified workers in the H-2B classification would
``instantly ruin'' the program for traditional H-2B petitioners. First,
other than providing that the H-2B category be available to temporary
nonagricultural workers, Congress generally did not specify or limit
the types of jobs which an alien might fill in H-2B classification. The
H-2B category is available to both professional and nonprofessional
workers, provided that such persons meet the other requirements for H-
2B classification. That said, unlike the H-2B category, which requires
that the employer's need be temporary in nature, the H-1B category
allows petitioners to fill, on a temporary basis, specialty occupation
positions that themselves are permanent in nature, that is, jobs for
which the H-1B employer has a permanent need. For this reason, many
persons who might qualify for H-1B classification would not be able to
obtain H-2B status. Second, as an additional safeguard, Congress
established numerical limitations on the total numbers of persons who
may be granted H-2B status each year; those limitations do not favor
any one industry over another. In short, in situations where the H-2B
petitioner could in fact establish that its need for a worker is
temporary in nature in a profession common to the H-1B classification
(e.g., programmer analyst), that the alien would in fact be coming to
the United States as an H-2B temporarily, and that all other
requirements for H-2B classification have been satisfied, there is
nothing in existing law that would preclude DHS from approving an H-2B
petition on such a person's behalf.
Comment: A few commenters expressed concern with requiring
employers to retest the labor market for prevailing wage rates. These
commenters indicated that this process was not only burdensome, but
also time-consuming and expensive for employers, costing anywhere
between
[[Page 78120]]
$500 and $1850. They also mentioned the concern that an H-2B worker
employed on a multi-year visa might have to be fired if the labor test
results in the employer being prevented from employing some or all of
the previously approved H-2B workers (even if the U.S. Government
approved such workers for H-2B classification erroneously). Finally,
one commenter mentioned that re-testing the labor market for prevailing
wage rates did not represent a meaningful safeguard for current and
future construction workers if DOL were to adopt the attestation based
system described in its proposed rule.
Response: The requirement for employers to retest the labor market
provides the safeguards needed to ensure that the amended definition of
temporary work, which is generally one year, but potentially up to 3
years if there is a specific one-time need, and does not adversely
impact the U.S. job market. Notwithstanding the costs of retesting the
labor market each year, this system is geared towards ensuring that the
employer is offering the prevailing wage rate, which is an inherent
requirement mandated by section 101(a)(15)(H)(ii)(b) of the INA, 8
U.S.C. 1101(a)(15)(H)(ii)(b), and therefore, a legitimate cost of
participating in the H-2B program.
Comment: One commenter suggested that a new visa classification be
created for skilled workers and workers who are coming to jobs that
will last longer than one year to facilitate more specific and far
reaching tests of the U.S. labor market, thereby ensuring that
temporary foreign workers filling these longer term jobs are not
displacing U.S. workers.
Response: DHS appreciates this suggestion for a new and more
flexible visa classification, but only Congress has the authority to
create new or to modify existing visa classifications. Absent a
statutory amendment, DHS lacks the authority to create a classification
for the types of workers referred to by the commenter. We note,
however, that some of these workers might be eligible for H-2B
classification under this rule, while others might be eligible for
classification in other nonimmigrant visa categories.
Comment: One commenter asked whether DHS will count a 3-year visa
against the cap for 3 consecutive years.
Response: This provision provides no change to the way that H-2B
aliens are currently counted against the H-2B visa cap. An alien is
counted against the cap when an initial H-2B petition for consular
notification or change of status is filed on his or her behalf. H-2B
aliens requesting an extension of stay, for up to their total period of
stay of 3 years, are exempt from the numerical limitations.
11. Interruptions in Accrual Towards 3-Year Maximum Period of Stay
Comment: Two out of four commenters supported the proposed rule
exempt certain periods of time spent outside the United States from
being counted toward the 3-year maximum period of stay in H-2B
nonimmigrant status.
Response: The final rule adopts the proposed revision, reducing the
minimum period spent outside the United States that would be considered
interruptive of accrual of time toward the 3-year limit, where the
accumulated stay is 18 months or less, to 45 days. If the accumulated
stay is longer than 18 months, the required interruptive period will be
2 months. See new 8 CFR 214.2(h)(13)(v).
Comment: Two commenters requested clarification of this proposal.
Response: An alien worker's total period of stay in H-2B
nonimmigrant status may not exceed three years. 8 CFR
214.2(h)(15)(ii)(C). In order to clarify what constitutes continuous
presence in H-2B status, DHS determined to apply the same standard to
the H-2B status as is used for H-2A ``temporary agricultural worker''
nonimmigrant classification. In the H-2A nonimmigrant visa
classification, certain periods of time spent outside the United States
are deemed to ``stop the clock'' toward the accrual of the 3-year limit
on the total period of stay in that status. 8 CFR 214.2(h)(5)(viii)(C).
In other words, if an alien who has been in the United States in H-2A
status for a certain period of time that counts towards his or her 3-
year maximum period of stay, then leaves the United States for one of
the ``interruptive'' periods proposed in this rule, that time spent
outside of the United States will not count towards the exhaustion of
that alien's 3-year maximum period of stay in the United States. DHS
recently revised these periods for the H-2A classification to
streamline the program. Similarly, for H-2B nonimmigrants, the minimum
period spent outside the United States that would be considered
interruptive of accrual of time toward the 3-year limit, where the
accumulated period of time the worker has physically been present in
the United States H-2B status is 18 months or less, is 45 days. If the
accumulated period of time the worker has been physically present in
the United States in H-2B status is longer than 18 months, the required
interruptive period is two months.
12. Substitution of Beneficiaries
Comment: Seven out of 11 commenters supported the provisions
allowing the substitution of beneficiaries who were previously approved
with aliens either inside or outside of the United States. Some
commenters indicated that they felt as though the provision would be
very helpful and would provide employers greater flexibility to meet
their staffing needs.
Response: DHS appreciates these comments and agrees that this would
make the H-2B program more user-friendly. Accordingly, the final rule
adopts this provision. To ensure the integrity of the congressionally-
mandated H-2B semi-annual numerical limitations, the final rule
contains the caveat that the amended petition filed on the substituted
beneficiaries' behalf must retain a period of employment within the
same half of the same fiscal year as the original petition. Otherwise,
a new petition, together with a new temporary labor certification, must
be filed in order to effect the substitution.
Comment: One commenter indicated that the fees should not be
required for second or amended petitions.
Response: DHS understands the concern but does not adopt the
commenters' suggestion, because there will be additional labor and
material costs incurred by USCIS in processing and adjudicating
petitions for substituted beneficiaries. Section 286(m) of the INA, 8
U.S.C. 1356(m), allows USCIS to recover the costs incurred in providing
these services.
Comment: One commenter indicated that when seeking to substitute
beneficiaries, the petitioner should be able to file on behalf of
beneficiaries outside the United States and inside the United States on
the same petition.
Response: It is not operationally feasible for DHS to adopt this
suggestion, as petition approvals on behalf of aliens who will be
seeking consular processing abroad and petition approvals on behalf of
aliens who will be applying within the United States for a change of
status or extension of stay are generated and documented differently,
as separate and distinct actions. This suggestion would require USCIS
to take two separate actions (consular notification for aliens abroad
and adjudication of the alien's application for change of status/
extension of stay for aliens in the United States) on one petition. DHS
will not adopt the suggestion.
Comment: With respect to the issue of substitution, one commenter
inquired whether once the first half cap is
[[Page 78121]]
reached, substituted workers would be counted against the cap, and
whether an amended petition could be filed to allow substituted workers
to be used during the second half of the fiscal year.
Response: The proposed rule specified that the amended petition to
substitute workers must retain a period of employment within the same
half of the fiscal year as the original petition. The purpose of this
restriction is to ensure that employers who are substituting workers do
not gain an unfair advantage with respect to obtaining cap numbers over
others seeking H-2B numbers by gaining access to new workers during the
second cap period, which is from April 1 through September 30 of each
fiscal year. For example, if the employer, whose original petition was
approved for an employment that starts on October 1, could not find all
of the workers abroad, he or she is allowed to file an amended petition
to substitute vacant positions with aliens who are already in the
United States as long as the employment of the substituted worker
starts prior to April 1 of the following year.
Comment: One commenter opposed the proposed rule, stating that its
adoption would severely harm prospective H-2B workers who frequently
spend tremendous resources and leave employment in their home countries
in order to enter the H-2B program.
Response: DHS disagrees that adoption of the proposed rule will
harm prospective H-2B workers abroad. The annual cap of 66,000 H-2B
visas is reached earlier every year. The changes in this final rule
will allow employers to maximize the number of approved H-2B workers
available for employment regardless of their location. It will also
allow H-2B workers to maximize their 3 years of H-2B visa eligibility,
since employers can more easily apply for them. Further, DOL has
provided protections, including the payment of return transportation,
for aliens who are terminated.
13. Employer Sanctions
Comment: Ten out of 20 commenters expressed support concerning the
employer sanctions provisions. Some commenters found this provision to
be misguided because it would specifically target employers who hire
workers legally through the H-2B program instead of employers who hire
falsely documented workers and/or undocumented workers. One commenter
suggested that, along with this provision, an appeals process should be
established for employers found to be in violation. Of those opposed to
this provision, most found that these regulations do not go far enough
to protect H-2B workers against exploitation and abuse or to prevent
employers and recruiters from violating immigration and labor laws. One
commenter stated, in particular, that the rule does not provide
protection for workers from retaliation by employers and recruiters who
violate the law.
Response: After carefully considering the comments received on this
provision, the final rule adopts the employer sanctions provisions. New
8 CFR 204.5(o) and 214.1(k). As such, DHS has delegated to the
Department of Labor the authority to impose the administrative
penalties described in section 214(c)(14)(A) of the INA, 8 U.S.C.
1184(c)(14)(A).
14. Miscellaneous Changes
DHS proposed to amend 8 CFR 214.2(h)(6)(iii)(B),
214.2(h)(6)(v)(E)(2)(iii), and 214.2(h)(6)(vii) to correct
typographical errors. DHS also proposed to amend 8 CFR
214.2(h)(8)(ii)(A) to codify the current numerical counting procedures
for the H-2B classification. No comments were received on these
proposals, and they will be adopted as final without change.
IV. Rulemaking Requirements
A. 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.
B. 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.
C. 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. A complete analysis of
the costs and benefits of this rule is available in the docket for this
rule at http://www.regulations.gov in rulemaking Docket No. USCIS-2007-
0058.
1. Comments From the U.S. Small Business Administration (SBA), Office
of Advocacy
In addition to the public comments received on the proposed rule,
DHS received a comment from SBA, Office of Advocacy (Advocacy). The
comment letter from Advocacy summarized the concerns that they heard
from small business owners and representatives of the small business
community. Advocacy's comments on the substance of the rule are
addressed in the rule's preamble along with other comments received on
the proposed rule, and their comments on the rule's estimated costs and
benefits are summarized and addressed as follows:
(i). DHS must disclose how it estimated the cost of $500 per
employee for job placement fees, because the State Department has
reported that applicants have paid foreign recruiters from $2000 to
$20,000.
The regulatory impact analysis for the final rule indicates that
recruiting practices vary widely among employers and industries, and
provides an explanation for how the estimate of $500 was determined.
Also, as stated in the cost benefit analysis for the proposed rule, a
detailed breakdown of what services were being provided in return for
the $500 payment was not obtained, and none was provided in a comment
on the rule. DHS included the entire $500 in its calculation of the
costs of this change on employers so that the estimated costs would be
at the highest point in the range of costs that would actually be
imposed. Even using those liberal cost estimates, as shown below, the
costs imposed by this rule do not result in a significant economic
impact on the affected entities.
(ii). DHS should quantify the costs to employers for the payment of
the worker's indirect fees, such as attorney's fees, travel agent fees,
and fees for assistance to prepare visa application forms. Advocacy
indicated that the proposed rule stated that the prospective employer
would be responsible for the payment of indirect fees, attorneys fees,
travel agent fees, and fees for assistance to prepare visa application
forms.
The $500 estimated cost per employee that will result from this ban
on fees is
[[Page 78122]]
intended to include incidental attorney's fees, travel agent fees, and
fees for assistance to prepare visa application forms. Therefore they
have been quantified. This provision will require an employer to ask
the employee about any fees the employee may have paid. The fee
allowable is dependent on: (a) What is paid after the employee
establishes meaningful contact with the agent or recruiter and (b)
whether the alien has an independent choice with respect to such
payment. For example, if a Mexican national hears that a recruiter will
be in Pueblo on Tuesday looking for landscapers he or she may, for
example, pay bus fare to Pueblo, and the associated lodging and meals.
However, once the Mexican national establishes meaningful contact with
the recruiter, any fee that the recruiter makes the person pay (except
for the limited exceptions specified) must be borne by the employer,
otherwise that person is not eligible for H-2B status. Some of those
fees, may, in fact be indirect fees that the recruiter is requiring as
a condition for the recruitment. If the worker decides on his or her
own to hire an attorney, for personal legal assistance unrelated to
obtaining their H-2B job, or a travel agent for arrangement of personal
travel, and the amounts paid are reasonable and not an obvious effort
to get around this prohibition, or are not otherwise incurred at the
behest or urging of the recruiter (such as an implied promise or other
commitment to engage the alien if the alien presents himself or herself
at a specific location or perform certain preliminary actions), then
the employer need not reimburse the alien for such fees. Likewise,
amounts for purely personal items or actions paid by the alien at the
suggestion of the recruiter, such as, grooming or wearing freshly
washed clothing, that might increase the worker's chances of getting
the job, would not be required to be reimbursed. Ultimately, the
determination of what may or may not be reimbursed to the employer is
necessarily dependent on the specific facts surrounding the alien's
engagement in or recruitment for the H-2B position.
(iii). DHS should quantify the costs to employers to pay for
transportation expenses for workers to return to their last place of
foreign residence.
DOL regulations make employers liable for return transportation if
the employee is dismissed early by the employer. As stated above, this
rule simply reinforces the DOL requirement. Even so, very few employers
are expected to take the actions necessary to be subject to this
sanction.
(iv). DHS should attribute recordkeeping costs for employers that
have to complete reasonable inquiries pursuant to the prohibition on
fees.
The final rule removes the separate attestation requirement that
was proposed regarding use of employment services to locate H-2B
workers, and knowledge of the beneficiary's payment of prohibited
recruitment fees. DHS has determined that the attestation increased a
petitioner's burdens, and duplicated information that petitioners must
provide on the H-2B petition to establish benefit eligibility. In
conjunction with the final rule, DHS has amended the H Supplement to
Form I-129 to explicitly ask the employer if they used a recruiting
firm, how much they paid the recruiting firm, the name of the
recruiting firm, and if the beneficiary employee has paid a fee to
anyone. This replaces the need to attest to any knowledge and provides
space for employers to expressly indicate such knowledge. These
questions will apply to petitions for both H-2A and H-2B workers. This
method for obtaining this information is superior to asking the
petitioner to attest to whether it knows or does not know about a fee.
By asking the question, the employer may answer yes, no, or do not
know, rather than attesting to that knowledge, and USCIS will have the
name of the recruiter they used for future reference. As stated in the
Paperwork Reduction Act section of this rule, USCIS estimates that the
public reporting burden for each Form I-129 at 2 hours and 45 minutes
per response is sufficient to encompass the questions added to the
forms to address this requirement. Thus, the current OMB approved
inventory of the costs imposed by this information collection includes
sufficient leeway to account for these additional questions.
As for the burden for a firm to complete reasonable inquiries
pursuant to the prohibition on fees, there are no additional costs. DHS
agrees that this rule may require reasonable inquiries as part of the
``due diligence'' requirement imposed on prospective recruiters.
However, after this rule takes effect, employers should notify
recruiters upfront that no fees may be collected from a prospective
recruit. Interviews and inquiries will provide opportunities for the
employer to quite easily and quickly ask the employee, ``Did you pay
anyone a fee to get this job (or interview).'' If the answer is yes,
they may ask, ``Who and how much did you pay, what services were
provided for the fee, and were you provided with an itemized bill?''
The answers may have significant ramifications for the employee by
rendering him ineligible unless any fee he or she identifies is only
for allowable transportation costs and/or government fees. The employer
that is informed by its potential employee that a particular recruiter
has charged fees should keep a record of such firms or agents and
either continue to deal with those firms in the future or not. However,
asking the straightforward question does not impose a substantial
record keeping or information collection burden.
If an employer determines that its workers have been charged or
will be charged a fee, they may incur costs in reimbursing such
persons. If a fee payment is discovered prior to the commencement of
the work, the employer may replace that worker with a worker who did
not pay fees or reimburse those it intends to hire. In any event, it
cannot be predicted in advance the amount a prospective employer might
have to pay to go forward with planned work, as this will depend on how
much the alien has paid or if the employer would seek other workers in
lieu of those it originally intended to hire. In the end, though, it is
the employer's responsibility to set the terms and conditions of any
recruitment contract, and the employer will be in a position to
require, as a condition of any such contract, that the domestic
recruiter and agent working in the worker's home country do not charge
any fee of prospective alien workers.
(v). DHS should quantify the costs to employers for the opportunity
costs of losing potential employees and scheduled contracts.
This comment relates to workers lost by the employer as a result of
the prohibition on employee-paid placement fees. The comment does not
explain how such employees would be lost, could not be readily
replaced, or how a contract may be lost by application of the no-fee
requirement of this rule. As a result of this rule, an employer must
consider the availability of an alternative employee and the costs of
any delays if the employer determines the employee paid a fee that is
larger than the employer wants to reimburse. The discovery that an
employee paid a fee may be large enough to result in the employer
choosing not to hire that employee and finding a replacement employee
who paid no fee that must be reimbursed, if there is an adequate supply
of replacement workers readily available. That is a business decision
that is up to the employer. As stated above, the cost that an employer
would expend per employee as a result of this ban on fees has been
quantified as about $500.
[[Page 78123]]
Delays caused by an employer's discovery of such a fee payment by a
prospective employee may result from the employer's decision to not
incur that expense, but they do not result directly from this rule.
(vi). DHS should quantify the costs and fees to notify DHS within
48 hours if: (1) An H-2B worker fails to report for work within 5 days
after the employment start date, (2) the services for which H-2B
workers were hired is completed more than 30 days early, (3) an H-2B
worker leaves the worksite (for a period of 5 consecutive work days
without the consent of the employer), or (4) an H-2B worker is
terminated prior to the completion of the services for which he or she
was hired.
These costs have been quantified in the regulatory impact analysis
of the final rule in the discussion of the paperwork reduction act
impacts of this rule. DHS has estimated the costs of this new report to
amount to $8,123 per year. This cost will be incurred only by a few
employers that have employees abscond, so the cost per petition and per
H-2B worker are not appropriate for comparison, because affected firms
will not bear these costs equally.
(vii). There are opportunity costs to employers that are debarred
from the H-2B program for a notification failure.
This rule does not provide that an employer that fails to report
abscondment will be debarred. The costs of the absconder reporting
requirement have been discussed above. The costs imposed as a result of
violations of H-2B regulations petitions and to impose administrative
penalties, fines, and debarment are enforcement provisions and not
regulatory compliance costs. Should DOL determine that a petitioner
substantially failed to meet any of the conditions of the H-2B petition
or willfully misrepresented a material fact in such petition, then DHS
may debar the petitioner. However, DHS and DOL have authority
notwithstanding this rule to investigate violations of H-2B petitions
and to impose administrative penalties including debarment An employer
will want to consider that possibility before it decides to not report
an abscondment or to not meet any other requirement of the H-2B
program. An employer who was unable to hire an H-2B employee as a
result of being debarred from participation in the program may be
harmed, but only because of their failure to report the abscondment of
an employee as required by this rule, not as a direct result of this
rule. If the employer chooses to comply with the rule they would not
incur any additional cost.
(viii). DHS should quantify the additional costs to small business
to pay a premium processing fee of $1000 for their application to be
considered in time.
USCIS' Premium Processing Program is a program by which certain
petitioners and applicants may request USCIS to expedite handling of
those petitions and applications and approve or deny them within 15
days. The comment assumes that, in order to be assured that they will
receive one of the 66,000 limited slots for an H-2B employee, the
petitioner must request premium processing for their petition because
normal processing times are too lengthy to ensure they will obtain
approval for the number of employees needed. This assumption is
incorrect. It is true that most petitioners request premium processing
for their petitions because they think that normal processing times are
too long to ensure they will obtain approval for the number of
employees needed. In fiscal year 2007, 10,481 of the 13,561 H-2B
petitions filed, or 77 percent, were accompanied by Form I-907, Request
for Premium Processing Service, and the required $1,000 fee. While
processing times may improve as a result of this rule, the proportion
of petitioners requesting premium processing is not expected to
increase or decrease. USCIS average processing time for an H-2B
petition is less than 60 days and most petitions are filed with USCIS
more than 60 days, and often up to 120 days, before start of the
employment. Premium processing is not required except for the time
pressure that employers feel to have their petitions approved before
other employers and before the number of annual H-2B workers approved
reaches the 66,000 limitation imposed by law. That limitation is not
imposed or addressed by this rule; thus, this rule does not require
petitioners to request premium processing.
2. Comments From the Public on the Regulatory Cost Benefit Analysis
(i) The add-on of incidental recruiting costs to employers is
counterproductive and the estimates used to justify this move are not
accurately documented.
As commenters on the rule acknowledged, the documented abuses of H-
2B workers are serious and must be addressed. In fact, DHS has now
learned that some aliens have paid as much as $80,000 to recruiters and
others in order to obtain H-2B employment in this country. Further, the
practice of passing fees to the alien has resulted in a number of
serious abuses, including, but not limited to, visa sales, petition
padding, and extortionate practices directed at aliens and their family
members. While it is true that DHS lacks jurisdiction to regulate the
activities of recruiters and other facilitators abroad, DHS has, under
section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), the authority to
determine, by regulation, the terms and conditions of H-2B nonimmigrant
status and petition approval within the United States. It is
inequitable to extract fees from economically disadvantaged foreign
workers by passing on costs to an alien by reducing the alien's net
wages. Recruiting costs may be factored into the initial wage offer and
reflected in the temporary labor certification. Thus, these new
requirements are not ``counterproductive.'' The estimates used in
calculating the costs were the best available in light of the lack of
detailed records on the practice.
(ii) This rule imposes significant, unspecified and uncapped
financial liability on employers making them liable for related
indirect and other fees associated with H-2B employees' travel.
DHS is unclear as to what uncertain and unspecified costs the
comment is referring. This rule provides that an alien will not bear
the cost to use a job placement service or prepare the H-2B petition.
Any costs incurred by the employee because the recruiter requires it as
a condition of employment will have to be borne by the employer.
However, this rule will not require an employer to bear the cost if the
alien chooses to hire a lawyer on his or her own volition. The employer
will not have to pay what the employee paid for transportation or
government fees, unless required to do so by statute.
(iii) DHS does not calculate the cost of an employer having to do
research on foreign labor recruiters so that employers are able to feel
they met the standard of ``having reasonably known'' that their
employees did not pay a recruiter.
The prospective employer has a number of means of ascertaining
whether the alien has paid or may be under an obligation to pay fees.
It is the employer who chooses to contract with a recruiter or job
placement service. That provides them with the ability to negotiate the
terms and conditions of the contract, including a prohibition on
workers paying fees. This may require switching from one foreign labor
recruiter to another until one is found that does not charge alien's
fees. There is no way to calculate the cost, if any, of that
potentiality.
(iv) The DHS analysis does not take into account the increased
costs from having to file multiple temporary labor
[[Page 78124]]
certifications if an employer needs to change their employee's start
date.
This rule requires that the employment start date on the H-2B
petition be the same as the dates on the temporary labor certification.
An exception is made for the time needed to replace an unavailable
worker. Some businesses stated that they list the actual date of need
in their temporary labor certifications to DOL, but need to write a
different start date in their DHS H-2B petitions when, for example, the
H-2B cap is filled for the winter season and they need to re-apply for
the summer season, or when employees arrive late due to delays at a
foreign consulate or an illness. The commenters suggest that, by not
allowing those employers to use a different start date, this rule adds
the cost of obtaining a new DOL temporary labor certification when re-
applying for a petition.
DHS recognizes that requiring the petition start date to be the
same as that on the temporary labor certification may disadvantage
filers whose employment start date begins more than four months after
the beginning of the first or second half of the fiscal year. The fact
that an employer may have to obtain a new temporary labor certification
may be an indirect effect of this change, but it is not directly
related. That result is, unfortunately, another by-product of the over
subscription of the H-2B program. Nevertheless, this change ensures
compliance with the law which requires the unavailability of U.S.
workers. Requiring that an employer adhere to the start date stated in
the temporary labor certification will ensure that U.S. workers were
able to make an informed decision as to their availability to fill the
position in question.
2. Summary of Final Rule Impacts
The impacts of the changes in this rule are summarized as follows:
The number of petitions filed by H-2B employers is expected to
increase, but the annual volume of petitions processed will not change.
More petitions will be returned without depositing their fee payment
and reviewing the petition.
The average USCIS processing time for an H-2B petition of around 60
days will decrease as a result of petitioners not being required to
name the individual alien on initial H-2B petitions. USCIS will not
have to perform an Interagency Border Inspection System (IBIS) name
check, removing the largest source of delays in the processing of H-2B
petitions.
By eliminating the ``extraordinary circumstances'' restriction on
periods longer than a year and providing that such a period could last
up to 3 years, this proposed rule would benefit employers who need
workers for a specific project that will take longer than one year to
complete.
Because of the statutory maximum on the annual number of H-2B visas
available, this rule will result in no increase in the availability of
temporary seasonal workers. There may be some slight benefit from
helping employers fill jobs and find workers in a more timely manner,
but businesses will still be constrained by a limited labor supply.
The administrative improvements proposed in this rule are intended
to make employers more likely to participate in the program. This is
expected to cause some employers who currently hire seasonal workers
who are not properly authorized to replace those workers with lawful
workers.
By requiring an employer to notify USCIS quickly after the employer
terminates an alien's employment, immigration authorities will be made
more aware of the fact that an alien without legal immigration status
may be in the United States, and determine his or her whereabouts for
appropriate enforcement measures.
The fee impacts of this rule are neutral. Only those petitions
received before the maximum annual number is reached are adjudicated
and the fee check deposited. Petitions not received before the maximum
annual number is reached are rejected. Because the total number of H-2B
visas available per year will not increase under this final rule and
the total number of workers requested already greatly exceeds the
number of H-2B visas available, fees will not increase because there
will be no increase in Form I-129 filings that are processed.
Most H-2B petitions filed, or about 77 percent, are accompanied by
Form I-907, Request for Premium Processing Service, and the required
$1,000 fee. While processing times may improve as a result of this
rule, the proportion of petitioners requesting premium processing is
not expected to increase or decrease.
Paperwork Burden. The administrative improvements proposed by this
rule are expected to result in more petitions for H-2B workers being
submitted to USCIS. Therefore, the aggregate burden imposed on the
public may increase in relation to the additional respondents who will
file a Form I-129 as a result of this rule's proposed changes. However,
since the total number of workers requested already greatly exceeds the
number of H-2B visas available, more petitions will not be processed
and or approved.
Effect of repatriation provision. This rule will prohibit approval
of an H-2B petition for a worker from a country that has not been
designated, with the concurrence of the Secretary of State, as eligible
for its nationals to participate in the H-2B program, unless DHS
determines that participation of that worker in the H-2B program is in
the U.S. interest. The actual impact of this proposed change is
expected to be negligible, since very few H-2B workers are from
countries DHS believes may see an impact from this provision. In
addition, since the total number of workers requested exceeds the
number of H-2B visas available, such small impacts as may occur would
represent transfers from one country's workers to another.
Costs of exit registration requirement. U.S. Customs and Border
Protection (CBP) will establish a new land-border exit system for H-2
temporary workers in San Luis, Arizona, or Douglas, Arizona. Aliens who
entered through these ports must depart from either one of those ports
and provide biometric information at one of the kiosks established for
this purpose. CBP will collect biometrics under this pilot from all
returning workers. This rule change will require an H-2B worker to
incur opportunity costs of between thirty minutes and one hour as a
result of having to go through the registration process. In its
regulatory impact analysis prepared for this rule, DHS estimated that
the total annual costs for the time required for aliens to comply what
this exit registration process is around $2,424.
Effects of proposed requirement for petitioners to reimburse
workers for any fee or risk denial of their petition. By requiring a
petitioner to demonstrate that the alien has paid no fees or show they
have reimbursed the alien for such fees, this rule would effectively
ban the payment of such fees by the alien beneficiary with limited
exceptions for certain transportation costs and government-imposed
fees, if the passing of such transportation costs and government-
imposed fees to the alien is not precluded by statute. Since the
majority of H-2B employees are estimated to pay such fees, and such
practices are expected to continue, this will result in a transfer of
those costs to employers. DHS prepared an analysis of the costs of this
rule in order to comply with the Regulatory Flexibility Act (RFA) and
Executive Order 12866. In that analysis DHS estimated that the cost of
this requirement could be as high as about $4,500 per employer, based
on
[[Page 78125]]
the average number of employees sponsored by each employer, if all of
their H-2B workers were found to have paid a fee, or $33 million total,
in the unlikely event that all 66,000 H-2B employees per year, every
year, pay such a fee.
Absconder reporting. This rule requires an employer to notify DHS
within two work days if: (1) An H-2B worker fails to report for work
within 5 days after the employment start date, (2) the services for
which H-2B workers were hired is completed more than 30 days early, (3)
an H-2B worker leaves the worksite (for a period of 5 consecutive work
days without the consent of the employer), or (4) an H-2B worker is
terminated prior to the completion of the services for which he or she
was hired. Following publication of this rule, USCIS will publish a
Federal Register Notice outlining the employer's requirements under
this provision. DHS has estimated the total costs per year that will be
imposed on the public for the absconder notification requirement are
about $8,123.
This rule is expected to reduce costs for the government by
terminating mandatory H-2B review. Employees handling these appeals
will then be able to focus on eliminating application and petition
backlogs for other benefits.
The exit pilot program being implemented in San Luis, Arizona, and
Douglas, Arizona is expected to cost the Federal Government at least
$27,201 for the DHS employees' time to carry out the registration
process. These costs do not include the costs of setting up the
biometrics collection kiosks and otherwise equipping these offices with
the required staffing and technology, which may be additional.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121), requires Federal agencies to conduct a
regulatory flexibility analysis which describes the impact of a rule on
small entities whenever an agency is publishing a notice of rulemaking.
In accordance with the RFA, DHS certifies that this rule will not have
a significant economic impact on a substantial number of small
entities. The factual basis for that determination is as follows:
1. Number of Regulated Entities
In FY06, an estimated 15,000 Form I-129 petitions were received by
USCIS for H-2B workers; approximately 14,000 of those petitions were
approved. In fiscal year 2007, USCIS received 13,561 petitions and
approved 14,355. For fiscal year 2008, USCIS received 7,739 H-2B
petitions and approved 7,755. In fiscal year 2008, the mean and median
number of H-2B worker beneficiaries requested per petition were 19 and
9 workers, respectively.
Since the current volume of petitions already meets the statutory
annual maximum of 66,000, the number of petitions processed will not
change and USCIS will have to reject a higher number of petitions
without depositing their fee payment or reviewing the petition. USCIS
expects processing volume to continue along these lines in the near
future, barring a major change to underlying legislation. Thus, an
estimated 7,700 H-2B petitions are expected to be accepted per year.\1\
---------------------------------------------------------------------------
\1\ For this analysis it is assumed that a firm will request all
of the foreign workers they need in a given year on one petition. As
a result of this assumption, the number of firms affected in this
case is assumed to equal the number of petitions filed in a year,
although some firms may file multiple petitions.
---------------------------------------------------------------------------
2. Size Categories of Affected Entities
Typical petitioner. The actual average or median revenue of the
typical H-2B employer is unknown. However, DHS considered what was
considered small for the typical firm in the industries that use most
H-2B workers according to the U.S. Small Business Administration (SBA)
Small Business Size Regulations at 13 CFR part 121. The SBA regulations
provide that the annual gross revenue threshold for firms in the
Landscape Architectural Services (NAICS code 541320 \2\) or a hotel
industry (NAICS 721110) is $7.0 million. For Nursery and Tree
Production (NAICS 111421) it is $750,000. For Construction, it is $33.5
million. Based on these definitions, the U.S. Census Bureau's 2002
Economic Census reported that approximately 99.9 percent of employers
in the construction industry, 95 percent in the forestry and
landscaping industry, and 90.8 percent of those in the accommodation
and food services industry were small businesses.\3\ Assuming that the
proportion of small employers participating in the H-2B program is
similar to the overall market, more than 90 percent of H-2B petitions
are filed by firms which are classified as small businesses. Thus, this
rule will have an impact on about 7,000 small entities.
---------------------------------------------------------------------------
\2\ The North American Industry Classification System (NAICS) is
the standard used by Federal statistical agencies in classifying
business establishments for the purpose of collecting, analyzing,
and publishing statistical data related to the U.S. business
economy. See, http://www.census.gov/eos/www/naics/.
\3\ U.S. Department of Commerce, Economics and Statistics
Administration, U.S. CENSUS BUREAU, at http://www.census.gov/prod/ec02/ec0223sg1t.pdf. Page 9.
---------------------------------------------------------------------------
3. Other Firms That May Be Affected by This Change
a. Employee Recruiters.
DHS has no reliable data on the number of firms that recruit H-2B
employees, but DHS research in this area indicates that the majority of
new, and many returning, H-2B employees have utilized such a service in
their home countries. This rule does not prohibit firms from charging
nonimmigrant workers for some services, such as: preparation of the
worker's income tax return; certain transportation costs (except where
the passing of such costs to the worker is prohibited by statute);
lodging; food; clothing; translation services; or other services for
which the value is generally known based on an existing market or can
be readily quantified, and which are not charged as a condition of the
employee being referred to a petitioner.\4\
---------------------------------------------------------------------------
\4\ Notwithstanding that DOL may or may not prohibit such fees
in some instances.
---------------------------------------------------------------------------
b. Employer Agents.
The agent hired by the seasonal employer assists in completing
applications and locating and processing worker applicants abroad.
Agents usually charge a flat fee per employee to process the employer's
DOL, the Department of State, and DHS certification, application, and
petition. Some agents collect an initial retainer and then charge
additional fees based on the number of workers, the application fees,
the advertising costs required, and other expenses. The total charges
an employer pays the agent per H-2B employee ranges from approximately
$500 to $4,000, including travel expenses and all application and
petition fees. The actual cost depends on the home country, the skills
needed for the position, and the general complexity of the worker and
employer's respective situations. DHS does not have any estimate of the
number of employer agents who are active in the recruiting of H-2B
employees. However, the relationship between employers and agents is
not affected by this rule, except to the extent the agent may also be
collecting a fee from the foreign worker.
4. Significance of Impact
DHS has determined that this rule will require affected employers
to pay between $150 and $500 per employee because recruiter fees that
are now being paid by employees will be shifted by recruiters from
employees to employers.
[[Page 78126]]
Also, the absconder notification requirements of this rule are
estimated to cost $8,123 per year, for an average of $.12 per employee.
Guidelines suggested by the SBA Office of Advocacy provide that, to
illustrate the impact could be significant, the cost of the proposed
regulation may exceed 1 percent of the gross revenues of the entities
in a particular sector or 5 percent of the labor costs of the entities
in the sector.
In fiscal year 2008, the mean and median authorized duration of H-
2B employment were 219 and 231 days, respectively. Thus, a new H-2B
employee in 2008 worked an average of 31.3 weeks. Assuming that the
typical employee worked an 8 hour work day and took two days per week
off from work, the employee would have worked 156 days and accrued
1,251 hours. Using the U.S. Department of Labor hourly wage rate for an
H-2B worker of $9.32 per hour,\5\ plus a multiplier of 1.4 to account
for fringe benefits and incidental expenses, the average hourly wage
compensation costs equal $13.05. Multiplying the hourly compensation
costs by the hours worked provides an average compensation cost for an
H-2B employee for the period he or she is in the United States of about
$16,326. If the employer is required to pay a recruiter or reimburse
the employee $500 for fees paid, and if that employee absconds,
requiring the employer to file a report, the added cost of $501 is only
3.1 percent of the $16,326 annual salary for only one H-2B worker.
Since the cost increase per H-2B employee is less than 5 percent of the
costs associated with hiring only one H-2B worker, the average cost
increase imposed by this rule will not exceed 5 percent of the average
labor costs of the entire sector.
---------------------------------------------------------------------------
\5\ Average of the DOL required Level 1 salaries for a
Landscaper in Memphis, a Food Server in DC, a Bellhop in Miami, a
Tree Trimmer in Denver, and a Pesticide Applicator in Seattle.
Available at: http://www.dol.gov/compliance/topics/wages-foreign-workers.htm.
---------------------------------------------------------------------------
Also, as stated above, guidelines provided by the SBA Office of
Advocacy suggest that an added cost of more than one percent of the
gross revenues of the affected entities in a particular sector may be a
significant impact. USCIS believes that it is unlikely that an employer
will incur costs of $4,501 due to this rulemaking, as it is the high
end of the range of possible costs. Again, if each firm affected by
this rule hires the average of 9 workers and all 9 are recruited by a
firm that charges or causes the employer to reimburse all 9 employees
$500, the additional cost of this rule could reach as high as $4,501
per employer. While the actual revenue of the typical H-2B employer is
unknown, DHS believes that the companies that use the H-2B program are
likely to be on the upper bounds of the small business size standards
for annual gross cash receipts. If an employer hires 9 employees and
incurs recruiting costs of $500 for every one of them, the $4,500 added
cost represents only 0.6 percent of $750,000 (the standard for Nursery
and Tree Production). To further illustrate, for $4,500 to exceed one
percent of annual revenues, sales would have to be $450,000 per year or
less. While most H-2B petitioners are small entities, DHS believes that
a firm with annual sales below $450,000 would be very unlikely to hire
9 temporary seasonal employees and incur the $4,500 in added costs.
Therefore, DHS believes that the costs of this rulemaking to small
entities will not exceed one percent of annual revenues.
Therefore, using both average annual labor costs and the percentage
of the affected entities' annual revenue stream as guidelines, USCIS
concludes that this rule will not have a significant economic impact on
a substantial number of small entities.
5. Impact on U.S.-Based Recruiting Firms
As outlined above, this rule affects recruiting firms' activities
tangentially. Nonetheless, the effect of the fee prohibition on
recruiting companies, staffing firms, or employment agents is not a new
compliance requirement on regulated entities. Establishment of a non-
immigrant temporary worker program was intended to alleviate seasonal
labor shortages. Demand from employers for foreign workers makes the
66,000 H-2B slots significantly insufficient to meet the demand. This
has created a market where the ``price'' for the scarce good, the
nonimmigrant temporary worker visa, has increased. That employer demand
and the demand from foreign workers to come to the U.S. have combined
to result in a portion of the ``price'' being passed on to the workers.
DHS views that trend and practice as undesirable and is attempting to
take action in this rule to limit those costs. The formation of firms
that recruit workers in foreign countries is an unintended consequence
of nonimmigrant temporary worker programs since those firms are not the
intended recipients of the benefits that are supposed to inure to
participants in those programs. In any event, DHS does not believe the
prohibition on charging aliens will cause a significant economic impact
on the affected placement, recruiting, or staffing firms because they
may, and are expected to, transfer those costs to the employers, as
analyzed above.
6. Certification
For these reasons, DHS certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
E. 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.
F. Executive Order 12988
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
This rule requires that a petitioner submit Form I-129, seeking to
classify an alien as an H-2B nonimmigrant. This form has been
previously approved for use by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act (PRA). The OMB control number
for this collection is 1615-0009. This rule requires under 8 CFR
214.2(h)(6)(i)(F) that the petitioner notify DHS if:
An H-2B worker fails to report for work;
The services for which an H-2B worker is hired is
completed 30 days early;
An H-2B worker absconds from the worksite; or
An H-2B worker is terminated prior to completion of
services for which he or she is hired.
This notification requirement is considered an information
collection covered under the PRA. Accordingly, this information
collection has been submitted and approved by OMB under the PRA.
However, this rule requires that certain H-2B workers departing the
United States participate in a temporary worker visa exit pilot
program. This requirement will add to the number of respondents
approved by OMB for the information collections in OMB control number
1600-0006, U.S. Visitor Immigrant Status and Indicator Technology (US-
VISIT). DHS has submitted a request for a non-
[[Page 78127]]
substantive change to OMB to account for this requirement's added
burden.
List of Subjects
8 CFR Part 204
Administrative practice and procedure, Immigration, Reporting and
recordkeeping requirements.
8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
programs, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements.
8 CFR Part 215
Administrative practice and procedure, Aliens, Travel restrictions.
0
Accordingly, chapter I of title 8 of the Code of Federal Regulations is
amended as follows:
PART 204--IMMIGRANT PETITIONS
0
1. The authority citation for part 204 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1184,
1186a, 1255, 1641; 8 CFR part 2.
0
2. Section 204.5 is amended by adding paragraph (o) to read as follows:
Sec. 204.5 Petitions for employment-based immigrants.
* * * * *
(o) Denial of petitions under section 204 of the Act based on a
finding by the Department of Labor. Upon debarment by the Department of
Labor pursuant to 20 CFR 655.31, USCIS may deny any employment-based
immigrant petition filed by that petitioner for a period of at least 1
year but not more than 5 years. The time period of such bar to petition
approval shall be based on the severity of the violation or violations.
The decision to deny petitions, the time period for the bar to
petitions, and the reasons for the time period will be explained in a
written notice to the petitioner.
PART 214--NONIMMIGRANT CLASSES
0
3. The authority citation for part 214 continues to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant
to Executive Order 13323, published January 2, 2004), 1186a, 1187,
1221, 1281, 1282, 1301-1305; 1372; 1379; 1731-32; sec. 14006, Public
Law 108-287; sec. 643, Public Law 104-208; 110 Stat. 3009-708;
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.
0
4. Section 214.1 is amended by adding paragraph (k) to read as follows:
Sec. 214.1 Requirements for admission, extension, and maintenance of
status.
* * * * *
(k) Denial of petitions under section 214(c) of the Act based on a
finding by the Department of Labor. Upon debarment by the Department of
Labor pursuant to 20 CFR 655.31, USCIS may deny any petition filed by
that petitioner for nonimmigrant status under section 101(a)(15)(H)
(except for status under sections 101(a)(15)(H)(i)(b1)), (L), (O), and
(P)(i) of the Act) for a period of at least 1 year but not more than 5
years. The length of the period shall be based on the severity of the
violation or violations. The decision to deny petitions, the time
period for the bar to petitions, and the reasons for the time period
will be explained in a written notice to the petitioner.
0
5. Section 214.2 is amended by:
0
a. Revising paragraph (h)(1)(ii)(D);
0
b. Adding a new sentence to the end of paragraph (h)(2)(ii);
0
c. Revising paragraph (h)(2)(iii);
0
d. Redesignating paragraph (h)(2)(iv) as paragraph (h)(6)(viii), and by
reserving paragraph (h)(2)(iv);
0
e. Revising paragraph (h)(6)(i);
0
f. Revising paragraph (h)(6)(ii)(B) introductory text;
0
g. Revising the word ``amendable'' to read ``amenable'' in the second
sentence in paragraph (h)(6)(iii)(B);
0
h. Adding the word ``favorable'' immediately after the phrase ``has
obtained a'' in paragraph (h)(6)(iii)(C);
0
i. Adding the word ``favorable'' immediately after the phrase ``After
obtaining a'' in paragraph (h)(6)(iii)(E);
0
j. Revising paragraph (h)(6)(iv)(A);
0
k. Revising paragraph (h)(6)(iv)(D);
0
l. Removing paragraph (h)(6)(iv)(E);
0
m. Revising paragraph (h)(6)(v)(A);
0
n. Removing and reserving paragraphs (h)(6)(v)(C) and (D);
0
o. Adding the word ``States'' immediately before ``and'' in the first
sentence in paragraph (h)(6)(v)(E)(2)(iii);
0
p. Revising paragraph (h)(6)(vi)(A);
0
q. Removing and reserving paragraph (h)(6)(vi)(B);
0
r. Revising paragraph (h)(6)(vi)(C);
0
s. Removing the period at the end of paragraph (h)(6)(vi)(D), and
adding a ``; or'' in its place;
0
t. Revising the word ``or'' to read ``to'' in the first sentence in
paragraph (h)(6)(vii);
0
u. Revising newly designated paragraph (h)(6)(viii);
0
v. Adding new paragraph (h)(6)(ix);
0
w. Revising paragraph (h)(8)(ii)(A);
0
x. Revising paragraph (h)(9)(i)(B);
0
y. Revising paragraph (h)(9)(iii)(B)(1);
0
z. Revising paragraph (h)(10)(ii);
0
aa. Adding a new sentence to the end of paragraph (h)(11)(i)(A);
0
bb. Revising paragraph (h)(11)(iii)(A)(2);
0
cc. Revising paragraph (h)(13)(i)(B);
0
dd. Revising paragraph (h)(13)(iv); and by
0
ee. Revising paragraph (h)(13)(v).
The revisions read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(1) * * *
(ii) * * *
(D) An H-2B classification applies to an alien who is coming
temporarily to the United States to perform nonagricultural work of a
temporary or seasonal nature, if there are not sufficient workers who
are able, willing, qualified, and available at the time of application
for a visa and admission to the United States and at the place where
the alien is to perform such services or labor. This classification
does not apply to graduates of medical schools coming to the United
States to perform services as members of the medical profession. The
temporary or permanent nature of the services or labor described on the
approved temporary labor certification are subject to review by USCIS.
This classification requires a temporary labor certification issued by
the Secretary of Labor or the Governor of Guam prior to the filing of a
petition with USCIS.
* * * * *
(2) * * *
(ii) * * * H-2A and H-2B petitions for workers from countries not
designated in accordance with paragraph (h)(6)(i)(E) of this section
should be filed separately.
(iii) Naming beneficiaries. H-1B, H-1C, and H-3 petitions must
include the name of each beneficiary. Except as provided in this
paragraph (h), all H-2A and H-2B petitions must include the name of
each beneficiary who is currently in the United States, but need not
name any beneficiary who is not currently in the United States. Unnamed
beneficiaries must be shown on the petition by total number. USCIS may
require the petitioner to name H-2B beneficiaries where the name is
needed to establish eligibility for H-2B nonimmigrant status. If all of
the beneficiaries covered by an H-2A or H-2B temporary labor
certification have not been identified at the time a petition is filed,
multiple petitions for subsequent beneficiaries may be filed at
different times but must include a copy
[[Page 78128]]
of the same temporary labor certification. Each petition must reference
all previously filed petitions associated with that temporary labor
certification. All H-2A and H-2B petitions on behalf of workers who are
not from a country that has been designated as a participating country
in accordance with paragraphs (h)(5)(i)(F)(1) or (h)(6)(i)(E)(1) of
this section must name all the workers in the petition who fall within
these categories. All H-2A and H-2B petitions must state the
nationality of all beneficiaries, whether or not named, even if there
are beneficiaries from more than one country.
(iv) [Reserved]
* * * * *
(6) * * *
(i) Petition. (A) H-2B nonagricultural temporary worker. An H-2B
nonagricultural temporary worker is an alien who is coming temporarily
to the United States to perform temporary services or labor without
displacing qualified United States workers available to perform such
services or labor and whose employment is not adversely affecting the
wages and working conditions of United States workers.
(B) Denial or revocation of petition upon a determination that fees
were collected from alien beneficiaries. As a condition of approval of
an H-2B petition, no job placement fee or other compensation (either
direct or indirect) may be collected at any time, including before or
after the filing or approval of the petition, from a beneficiary of an
H-2B petition by a petitioner, agent, facilitator, recruiter, or
similar employment service as a condition of an offer or condition of
H-2B employment (other than the lower of the actual cost or fair market
value of transportation to such employment and any government-mandated
passport, visa, or inspection fees, to the extent that the passing of
such costs to the beneficiary is not prohibited by statute, unless the
employer, agent, facilitator, recruiter, or similar employment service
has agreed with the beneficiary that it will pay such costs and fees).
(1) If USCIS determines that the petitioner has collected or
entered into an agreement to collect such fee or compensation, the H-2B
petition will be denied or revoked on notice, unless the petitioner
demonstrates that, prior to the filing of the petition, either the
petitioner reimbursed the beneficiary in full for such fees or
compensation or the agreement to collect such fee or compensation was
terminated before the fee or compensation was paid by the beneficiary.
(2) If USCIS determines that the petitioner knew or should have
known at the time of filing the petition that the beneficiary has paid
or agreed to pay any agent, facilitator, recruiter, or similar
employment service as a condition of an offer of the H-2B employment,
the H-2B petition will be denied or revoked on notice unless the
petitioner demonstrates that, prior to filing the petition, either the
petitioner or the agent, facilitator, recruiter, or similar employment
service reimbursed the beneficiary in full for such fees or
compensation or the agreement to collect such fee or compensation was
terminated before the fee or compensation was paid by the beneficiary.
(3) If USCIS determines that the beneficiary paid the petitioner
such fees or compensation as a condition of an offer of H-2B employment
after the filing of the H-2B petition, the petition will be denied or
revoked on notice.
(4) If USCIS determines that the beneficiary paid or agreed to pay
the agent, facilitator, recruiter, or similar employment service such
fees or compensation after the filing of the H-2B petition and that the
petitioner knew or had reason to know of the payment or agreement to
pay, the petition will be denied or revoked unless the petitioner
demonstrates that the petitioner or agent, facilitator, recruiter, or
similar employment service reimbursed the beneficiary in full, that the
parties terminated any agreement to pay before the beneficiary paid the
fees or compensation, or that the petitioner has notified DHS within 2
work days of obtaining knowledge, in a manner specified in a notice
published in the Federal Register.
(C) Effect of petition revocation Upon revocation of an employer's
H-2B petition based upon paragraph (h)(6)(i)(B) of this section, the
alien beneficiary's stay will be authorized and the beneficiary will
not accrue any period of unlawful presence under section 212(a)(9) of
the Act (8 U.S.C. 1182(a)(9)) 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 transportation to
his or her last place of foreign residence abroad, unless such alien
obtains an extension of stay based on an approved H-2B petition filed
by a different employer.
(D) Reimbursement as condition to approval of future H-2B
petitions. (1) Filing subsequent H-2B petitions within 1 year of denial
or revocation of previous H-2B petition. A petitioner filing an H-2B
petition within 1 year after a decision denying or revoking on notice
an H-2B petition filed by the same petitioner on the basis of paragraph
(h)(6)(i)(B) of this section must demonstrate to the satisfaction of
USCIS, as a condition of the approval of the later petition, that the
petitioner or agent, facilitator, recruiter, or similar employment
service reimbursed in full each beneficiary of the denied or revoked
petition from whom a prohibited fee was collected or that the
petitioner has failed to locate each such beneficiary despite the
petitioner's reasonable efforts to locate them. If the petitioner
demonstrates to the satisfaction of USCIS that each such beneficiary
was reimbursed in full, such condition of approval shall be satisfied
with respect to any subsequently filed H-2B petitions, except as
provided in paragraph (h)(6)(i)(D)(2) of this section. If the
petitioner demonstrates to the satisfaction of USCIS that it has made
reasonable efforts to locate but has failed to locate each such
beneficiary within 1 year after the decision denying or revoking the
previous H-2B petition on the basis of paragraph (h)(6)(i)(B) of this
section, such condition of approval shall be deemed satisfied with
respect to any H-2B petition filed 1 year or more after the denial or
revocation. Such reasonable efforts shall include contacting all of
each such beneficiary's known addresses.
(2) Effect of subsequent denied or revoked petitions. An H-2B
petition filed by the same petitioner subsequent to a denial under
paragraph (h)(6)(i)(B) of this section shall be subject to the
condition of approval described in paragraph (h)(6)(i)(D)(1) of this
section, regardless of prior satisfaction of such condition of approval
with respect to a previously denied or revoked petition.
(E) Eligible countries. (1) H-2B petitions may be approved for
nationals of countries that the Secretary of Homeland Security has
designated as participating countries, with the concurrence of the
Secretary of State, in a notice published in the Federal Register,
taking into account factors, including but not limited to:
(i) The country's cooperation with respect to issuance of travel
documents for citizens, subjects, nationals and residents of that
country who are subject to a final order of removal;
(ii) The number of final and unexecuted orders of removal against
citizens, subjects, nationals, and residents of that country;
(iii) The number of orders of removal executed against citizens,
subjects,
[[Page 78129]]
nationals and residents of that country; and
(iv) Such other factors as may serve the U.S. interest.
(2) A national from a country not on the list described in
paragraph (h)(6)(i)(E)(1) of this section may be a beneficiary of an
approved H-2B petition upon the request of a petitioner or potential H-
2B petitioner, if the Secretary of Homeland Security, in his sole and
unreviewable discretion, determines that it is in the U.S. interest for
that alien to be a beneficiary of such petition. Determination of such
a U.S. interest will take into account factors, including but not
limited to:
(i) Evidence from the petitioner demonstrating that a worker with
the required skills is not available from among foreign workers from a
country currently on the list described in paragraph (h)(6)(i)(E)(1) of
this section;
(ii) Evidence that the beneficiary has been admitted to the United
States previously in H-2B status;
(iii) The potential for abuse, fraud, or other harm to the
integrity of the H-2B visa program through the potential admission of a
beneficiary from a country not currently on the list; and
(iv) Such other factors as may serve the U.S. interest.
(3) Once published, any designation of participating countries
pursuant to paragraph (h)(6)(i)(E)(1) of this section shall be
effective for one year after the date of publication in the Federal
Register and shall be without effect at the end of that one-year
period.
(F) Petitioner agreements and notification requirements. (1)
Agreements. The petitioner agrees to notify DHS, within 2 work days,
and beginning on a date and in a manner specified in a notice published
in the Federal Register if: An H-2B worker fails to report for work
within 5 work days after the employment start date stated on the
petition; the nonagricultural labor or services for which H-2B workers
were hired were completed more than 30 days early; or an H-2B worker
absconds from the worksite or is terminated prior to the completion of
the nonagricultural labor or services for which he or she was hired.
The petitioner also agrees 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.
(2) Abscondment. An H-2B worker has absconded if he or she has not
reported for work for a period of 5 consecutive work days without the
consent of the employer.
(ii) * * *
(B) Nature of petitioner's need. Employment is of a temporary
nature when the employer needs a worker for a limited period of time.
The employer must establish that the need for the employee will end in
the near, definable future. Generally, that period of time will be
limited to one year or less, but in the case of a one-time event could
last up to 3 years. The petitioner's need for the services or labor
shall be a one-time occurrence, a seasonal need, a peak load need, or
an intermittent need.
* * * * *
(iv) * * *
(A) Secretary of Labor's determination. An H-2B petition for
temporary employment in the United States, except for temporary
employment on Guam, shall be accompanied by an approved temporary labor
certification from the Secretary of Labor stating that qualified
workers in the United States are not available and that the alien's
employment will not adversely affect wages and working conditions of
similarly employed United States workers.
* * * * *
(D) Employment start date. Beginning with petitions filed for
workers for fiscal year 2010, an H-2B petition must state an employment
start date that is the same as the date of need stated on the approved
temporary labor certification. A petitioner filing an amended H-2B
petition due to the unavailability of originally requested workers may
state an employment start date later than the date of need stated on
the previously approved temporary labor certification accompanying the
amended H-2B petition.
(v) * * *
(A) Governor of Guam's determination. An H-2B petition for
temporary employment on Guam shall be accompanied by an approved
temporary labor certification issued by the Governor of Guam stating
that qualified workers in the United States are not available to
perform the required services, and that the alien's employment will not
adversely affect the wages and working conditions of United States
resident workers who are similarly employed on Guam.
(C) [Reserved]
(D) [Reserved]
* * * * *
(vi) * * *
(A) Labor certification. An approved temporary labor certification
issued by the Secretary of Labor or the Governor of Guam, as
appropriate;
(B) [Reserved]
(C) Alien's qualifications. In petitions where the temporary labor
certification application requires certain education, training,
experience, or special requirements of the beneficiary who is present
in the United States, documentation that the alien qualifies for the
job offer as specified in the application for such temporary labor
certification. This requirement also applies to the named beneficiary
who is abroad on the basis of special provisions stated in paragraph
(h)(2)(iii) of this section;
* * * * *
(viii) Substitution of beneficiaries. Beneficiaries of H-2B
petitions that are approved for named or unnamed beneficiaries who have
not been admitted may be substituted only if the employer can
demonstrate that the total number of beneficiaries will not exceed the
number of beneficiaries certified in the original temporary labor
certification. Beneficiaries who were admitted to the United States may
not be substituted without a new petition accompanied by a newly
approved temporary labor certification.
(A) To substitute beneficiaries who were previously approved for
consular processing but have not been admitted with aliens who are
outside of the United States, the petitioner shall, by letter and a
copy of the petition approval notice, notify the consular office at
which the alien will apply for a visa or the port of entry where the
alien will apply for admission. The petitioner shall also submit
evidence of the qualifications of beneficiaries to the consular office
or port of entry prior to issuance of a visa or admission, if
applicable.
(B) To substitute beneficiaries who were previously approved for
consular processing but have not been admitted with aliens who are
currently in the United States, the petitioner shall file an amended
petition with fees at the USCIS Service Center where the original
petition was filed, with a copy of the original petition approval
notice, a statement explaining why the substitution is necessary,
evidence of the qualifications of beneficiaries, if applicable,
evidence of the beneficiaries' current status in the United States, and
evidence that the number of beneficiaries will not exceed the number
allocated on the approved temporary labor certification, such as
employment records or other documentary evidence to establish that the
number of visas sought in the amended petition were not already issued.
The amended petition must retain a period of employment within the same
half of the same fiscal year as the original petition. Otherwise, a new
[[Page 78130]]
temporary labor certification issued by DOL or the Governor of Guam and
subsequent H-2B petition are required.
(ix) Enforcement. The Secretary of Labor may investigate employers
to enforce compliance with the conditions of a petition and Department
of Labor-approved temporary labor certification to admit or otherwise
provide status to an H-2B worker.
* * * * *
(8) * * *
(ii) * * *
(A) Each alien issued a visa or otherwise provided nonimmigrant
status under sections 101(a)(15)(H)(i)(b), 101(a)(15)(H)(i)(c), or
101(a)(15)(H)(ii) of the Act shall be counted for purposes of any
applicable numerical limit, unless otherwise exempt from such numerical
limit. Requests for petition extension or extension of an alien's stay
shall not be counted for the purpose of the numerical limit. The spouse
and children of principal H aliens are classified as H-4 nonimmigrants
and shall not be counted against numerical limits applicable to
principals..
* * * * *
(9) * * *
(i) * * *
(B) The petition may not be filed or approved earlier than 6 months
before the date of actual need for the beneficiary's services or
training, except that an H-2B petition for a temporary nonagricultural
worker may not be filed or approved more than 120 days before the date
of the actual need for the beneficiary's temporary nonagricultural
services that is identified on the temporary labor certification.
(iii) * * *
(B) H-2B petition. (1) The approval of the petition to accord an
alien a classification under section 101(a)(15)(H)(ii)(b) of the Act
shall be valid for the period of the approved temporary labor
certification.
* * * * *
(10) * * *
(ii) Notice of denial. The petitioner shall be notified of the
reasons for the denial and of the right to appeal the denial of the
petition under 8 CFR part 103. The petition will be denied if it is
determined that the statements on the petition were inaccurate,
fraudulent, or misrepresented a material fact. There is no appeal from
a decision to deny an extension of stay to the alien.
(11) * * *
(i) * * *
(A) * * * However, H-2A and H-2B petitioners must send notification
to DHS pursuant to paragraphs (h)(5)(vi) and (h)(6)(i)(F) of this
section respectively.
* * * * *
(iii) * * *
(A) * * *
(2) The statement of facts contained in the petition or on the
application for a temporary labor certification was not true and
correct, inaccurate, fraudulent, or misrepresented a material fact: or
* * * * *
(13) * * *
(i) * * *
(B) When an alien in an H classification has spent the maximum
allowable period of stay in the United States, a new petition under
sections 101(a)(15)(H) or (L) of the Act may not be approved unless
that alien has resided and been physically present outside the United
States, except for brief trips for business or pleasure, for the time
limit imposed on the particular H classification. Brief trips to the
United States for business or pleasure during the required time abroad
are not interruptive, but do not count towards fulfillment of the
required time abroad. A certain period of absence from the United
States of H-2A and H-2B aliens can interrupt the accrual of time spent
in such status against the 3-year limit set forth in 8 CFR
214.2(h)(13)(iv). The petitioner shall provide information about the
alien's employment, place of residence, and the dates and purposes of
any trips to the United States during the period that the alien was
required to reside abroad.
* * * * *
(iv) H-2B and H-3 limitation on admission. An H-2B alien who has
spent 3 years in the United States under section 101(a)(15)(H) and/or
(L) of the Act may not seek extension, change status, or be readmitted
to the United States under sections 101(a)(15)(H) and/or (L) of the Act
unless the alien has resided and been physically present outside the
United States for the immediately preceding 3 months. An H-3 alien
participant in a special education program who has spent 18 months in
the United States under sections 101(a)(15)(H) and/or (L) of the Act;
and an H-3 alien trainee who has spent 24 months in the United States
under sections 101(a)(15)(H) and/or (L) of the Act may not seek
extension, change status, or be readmitted to the United States under
sections 101(a)(15)(H) and/or (L) of the Act unless the alien has
resided and been physically present outside the United States for the
immediate prior 6 months.
(v) Exceptions. The limitations in paragraphs (h)(13)(iii) through
(h)(13)(iv) of this section shall not apply to H-1B, H-2B, and H-3
aliens who did not reside continually in the United States and whose
employment in the United States was seasonal or intermittent or was for
an aggregate of 6 months or less per year. In addition, the limitations
shall not apply to aliens who reside abroad and regularly commute to
the United States to engage in part-time employment. An absence from
the United States can interrupt the accrual of time spent as an H-2B
nonimmigrant against the 3-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. To qualify for this
exception, the petitioner and the alien must provide clear and
convincing proof that the alien qualifies for such an exception. Such
proof shall consist of evidence such as arrival and departure records,
copies of tax returns, and records of employment abroad.
* * * * *
PART 215--CONTROLS OF ALIENS DEPARTING FROM THE UNITED STATES
0
6. 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.
0
7. Section 215.9 is revised to read as follows:
Sec. 215.9 Temporary Worker Visa Exit Program.
An alien admitted on certain temporary worker visas at a port of
entry participating in the Temporary Worker Visa Exit Program must also
depart at the end of his or her authorized period of stay through a
port of entry participating in the program and must 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 temporary 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.
Paul A. Schneider,
Deputy Secretary.
[FR Doc. E8-30094 Filed 12-18-08; 8:45 am]
BILLING CODE 4410-10-P