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[Federal Register: July 13, 2000 (Volume 65, Number 135)]
[Proposed Rules]               
[Page 43545-43583]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jy00-29]                         



[[Page 43545]]


-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

RIN 1205-AB24

 
Labor Certification and Petition Process for the Temporary 
Employment of Nonimmigrant Aliens in Agriculture in the United States; 
Modification of Fee Structure

AGENCY: Employment and Training Administration, Labor.

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (Department or DOL) proposes to amend its 
regulations relating to the temporary employment of nonimmigrant 
agricultural workers (H-2A workers) in the United States. The proposed 
amendments would require employers to submit the fees for labor 
certification and the associated H-2A petition with a consolidated 
application form at the time of filing. The proposal also would modify 
the fee structure for H-2A labor certification applications.
    Concurrently with the publication of this proposed rule, the 
Department is publishing a final rule setting forth the procedures and 
requirements for submission and processing of a consolidated 
Application for Temporary Agricultural Labor Certification and H-2A 
Petition (Form ETA 9079). Form ETA 9079 is attached as Appendix A to 
the proposed rule and comments are requested thereon.

DATES: Interested persons are invited to submit written comments on the 
proposed rule, on or before August 14, 2000.

ADDRESSES: Submit written comments to the Assistant Secretary for 
Employment and Training, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Room N-4456, Washington, DC 20210, Attention: James H. 
Norris, Chief, Division of Foreign Labor Certifications.

FOR FURTHER INFORMATION: Contact Denis M. Gruskin, Senior Specialist, 
Division of Foreign Labor Certifications, Employment and Training 
Administration, 200 Constitution Avenue, NW., Room N-4456, Washington, 
DC 20210. Telephone: (202) 219-5263 (this is not a toll-free number.)

SUPPLEMENTARY INFORMATION:

I. Introduction

    On October 2, 1998, ETA published in the Federal Register a Notice 
of Proposed Rulemaking (NPRM) proposing amendments to ETA's regulations 
at 20 CFR part 655, subpart B, relating to the temporary employment of 
nonimmigrant agricultural H-2A workers in the United States. One of 
those proposed amendments was to implement a proposed delegation from 
the Commissioner, Immigration and Naturalization Service (INS), to the 
Secretary of Labor (Secretary) of authority to adjudicate petitions 
currently processed by INS under 8 CFR 214.2(h)(5), ``Petition for 
alien to perform agricultural labor or services of a temporary or 
seasonal nature (H-2A).'' 63 FR at 53244 and 53248 (Oct. 2, 1998). The 
INS published an NPRM on December 7, 1998, proposing to amend its 
regulations by delegating to the Department of Labor such adjudication 
of H-2A petitions. 63 FR 67431 (Dec. 7, 1998). The Department published 
a final rule on June 29, 1999, relating to most of the amendments it 
had proposed on October 2, 1998. 64 FR 34958 (June 29, 1999). However, 
amendments to implement the delegation of H-2A petition authority were 
not included in that final rule. At that time, INS had not completed 
the rulemaking necessary to delegate the processing of H-2A petitions 
to the Department. Further, a number of technical issues had to be 
resolved by INS and the Department to implement a delegation of H-2A 
petition authority to DOL. The Department noted in the preamble to the 
June 29 final rule, however, that it was committed to completing the 
necessary rulemaking and associated procedural changes as soon as 
possible, if INS delegated to DOL the authority to adjudicate H-2A 
petitions. Comments received on that issue during the course of the 
earlier rulemaking have been considered in the development of this 
proposed rule and the concurrently published final rule.

II. Statutory Standard and Implementing Regulation

    The decision whether to grant or deny an employer's petition to 
import nonimmigrant agricultural workers to the United States for the 
purpose of temporary employment is the responsibility of the Attorney 
General or her designee. The Immigration and Nationality Act (INA) (8 
U.S.C. 1101 et seq.) provides that the Attorney General may not approve 
a petition from an employer for employment of nonimmigrant agricultural 
workers (H-2A visa holders) for temporary or seasonal services or labor 
in agriculture unless the petitioner has applied to the Secretary for a 
labor certification showing that:
    (A) There are not sufficient U.S. workers who are able, willing, 
and qualified, and who will be available at the time and place needed 
to perform the labor or services involved in the petition; and
    (B) The employment of the alien in such labor or services will not 
adversely affect the wages and working conditions of workers in the 
United States similarly employed.

(8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188.)
    The Department of Labor has published regulations at 20 CFR part 
655, subpart B, and 29 CFR part 501 to implement its responsibilities 
under the H-2A program. Regulations affecting employer-provided 
agricultural worker housing are in 20 CFR part 654, subpart E, and 29 
CFR 1910.42.

III. Change in H-2A Fee Structure

    The change in the H-2A fee structure which this NPRM addresses 
enhances the administrative efficiency and convenience to employers of 
filing a combined Application for Temporary Agricultural Labor 
Certification and H-2A Petition. This efficiency can best be achieved 
if employers submit a single check to cover the fees for both the 
issuance of the labor certification and the processing of the H-2A 
petition at the time the consolidated application is submitted to the 
Department.
    The proposed procedural modification in the method of fee payment 
would depart from the current process in which the employer pays for 
the labor certification after it is issued and subsequently submits the 
H-2A petition to INS together with the INS filing fee. It is important 
to note that the proposed rule provides that both the certification fee 
and the money collected for the H-2A petition would be refunded if the 
labor certification were denied. The Department interprets the H-2A 
statute as permitting the collection of a fee only if a certification 
is issued. In the course of the 1987 rulemaking under the H-2A program 
Senator Simpson, the primary sponsor of the 1986 amendments to the INA, 
pointed out in response to the Department's proposal to require 
employers to submit a fee with the application, that the statute used 
the language as a ``condition of issuing the certification'' and not as 
a condition of processing the application. See 8 U.S.C. 1188(a)(2) 
(``The Secretary of Labor may require by regulation, as a condition of 
issuing the certification, the payment of

[[Page 43546]]

a fee to recover the reasonable costs of processing applications for 
certification.''). Since the fee for labor certification would be 
returned if the application is denied, the money collected for the 
labor certification would remain a certification fee, as it is 
characterized in the statute and current regulations, as opposed to a 
processing fee. Few fees paid with requests for labor certification 
will require a refund as the denial rate has historically been low. 
Moreover, as stated above, the proposed rule provides that the H-2A 
petition fee would be returned to the employer if the certification is 
denied. Currently, the petition fee is collected as an up-front 
processing fee by INS and is not returned to the employer if the 
petition is denied. See 8 CFR 103.7. In the rare instances when 
certification is granted but the petition is denied, the fees would not 
be returned.

IV. Fee Structure

    The proposed rule provides that the consolidated labor 
certification and H-2A petition application must be accompanied by a 
check or money order sufficient to cover the fee for the labor 
certification and the fee for the H-2A petition as specified by INS 
regulations at 8 CFR 103.7. The Department is proposing a three-tiered 
labor certification fee. Employers that file applications for 10 or 
fewer H-2A temporary workers would be charged $150.00 per certification 
issued, employers that file applications for more than 10 H-2A workers 
up to and including 99 workers would be charged $250.00 per 
certification issued, and employers that apply for 100 workers or more 
would be charged $1,000.00 per certification issued. The petition fee 
would be set at whatever fee is specified in INS regulation at 8 CFR 
103.7. The petition fee is reviewed by INS every 2 years and currently 
is set at $110.00. 63 FR 43604 (Aug. 14, 1998). Consistent with current 
INS requirements, a joint employer association would pay one petition 
fee and, consistent with current DOL requirements, pay the appropriate 
labor certification fee for each of its members listed in the 
association's application.
    The Department estimates that the proposed three-tiered fee 
structure for issuance of a labor certification would likely yield 
about the same revenue for a given number of employers as the current 
DOL fee structure, which requires employers to pay a fee of $100.00 for 
the issued certification plus $10.00 per H-2A job opportunity 
certified. In Fiscal Year 1998, ETA collected $775,380.00 in fees.
    The Department is authorized by the INA, as amended by the 
Immigration Reform and Control Act of 1986, to require as a condition 
of certification a fee to recover the reasonable costs of processing 
applications for certification. 8 U.S.C. 1188(a)(2). The monies 
collected under the proposed certification fee structure will continue, 
like the current fee structure, to fall substantially short of the 
monies expended by ETA to administer the H-2A labor certification 
program.
    ETA has not conducted a study to establish fees since the 1987 
study referred to in the preamble to the 1987 rule. That study did not 
include all costs that could be attributed to the H-2A labor 
certification program. Specifically, the study did not include the cost 
of activities of State employment service agencies, post-certification 
activities and post-denial activities at all levels, ETA national 
office activities, DOL Office of the Solicitor activities, and DOL 
Office of Administrative Law Judges activities. 52 FR at 20499 (June 1, 
1987). ETA plans to conduct a study to determine what it expends to 
administer the H-2A labor certification program at the same time INS 
will review its petition fee early in calendar year 2002.
    As indicated above, fees for H-2A petitions are established by INS 
through notice and comment rulemaking. See 63 FR 1775 (Jan. 12, 1998) 
and 63 FR 43604 (Aug. 14, 1998). INS reviews the petition fee every two 
years, and, accordingly, the proposed rule would require that the fee 
collected for the H-2A petition be the amount specified in the INS 
regulations that are current at the time the Application for Temporary 
Agricultural Labor Certification and H-2A Petition is filed with the 
Department. It is contemplated that under the administrative procedures 
arrived at by INS and ETA to implement the delegation of H-2A petition 
authority from INS to the Department, DOL will collect the petition fee 
on behalf of INS and will be reimbursed by INS for the costs involved 
in processing the H-2A petition.
    Consistent with INS' proposed rule, the Department's proposed rule 
would also provide that if the H-2A petition is approved, DOL will 
forward to INS for action any requests for change of status or 
extension of stay pertaining to H-2A petitions for named aliens made on 
Form ETA 9079W, Named Alien Addendum.
    INS has also delegated to the Department the authority to process 
applications to change the Consulate or port of entry on an approved 
petitions when DOL has previously processed a request for temporary 
agricultural workers on INS' behalf, and to respond to requests for 
duplicate approval notices issued by DOL. Such applications shall be 
made on the ETA 9079M, Visa Issuance Change Addendum, and accompanied 
by a check or money order made payable to the ``U.S. Department of 
Labor'' in the amount specified by INS regulations at 8 CFR 103.7 for 
the I-824, Application for Action on an Approved Application or 
Petition--currently $120.00. The ETA 9079M is functionally equivalent 
to the I-824.
    INS has also proposed to authorize DOL to accept on INS' behalf any 
Forms I-102, Application for Replacement/Initial Nonimmigrant Arrival-
Departure Document, and Forms I-539, Application to Extend/Change 
Nonimmigrant status, that are filed concurrently with DOL's form ETA-
9079. The I-102 is used to obtain a replacement for a lost or mutilated 
arrival-departure document and the I-539 is used to extend or change 
the nonimmigrant status of dependents (H-4's) of the H-2A nonimmigrant. 
The submission of any Forms I-102 or I-539 must be accompanied by a 
check made payable to the ``U.S. Department of Labor'' in the amount 
specified by INS regulations at 8 CFR 103.7. The forms and fees will be 
forwarded to INS for adjudication after the ETA-9079 decision is made.

V. Short-term Extensions of Employment

    INS is proposing to add automatically to every H-2A employer's 
petition a 14-day extension grace ``period,'' and to discontinue 
charging a separate fee for such short-term extensions. Thus, an 
employer's H-2A petition for any requested/certified period of 
employment, if approved, would be granted for the requested/certified 
period plus an additional 14 days (or the length of the labor 
certification if issued for less than 14 days). Should this proposal be 
included in INS' final rule, DOL would add corresponding implementing 
regulations to Part 655. Comments are requested on such a change. 
Should this proposal not be included in the INS final rule, the current 
procedures (as described below) would continue, although a rule of 
agency procedure would be promulgated to delegate from INS to DOL the 
INS functions under the existing process.
    Under the existing regulations and procedures, an employer seeking 
to extend the authorized period of employment by two weeks or less 
applies to INS for the short-term

[[Page 43547]]

extension. 8 CFR 214.2(h)(5)(x) (1999); and 20 CFR 655.106(c)(3)(i) 
(1999); see also 214.2(h)(15)(ii)(C) (1999). INS charges a fee of 
$120.00 for this service. In such circumstances, the employer is not 
required to apply for extension of the labor certification granted by 
DOL and is granted a 14 day grace period. It is the agency's experience 
that a small minority of employers seek short-term extensions and that 
INS rarely disapproves such requests. Thus, the proposed change would 
further streamline the H-2A process for those employers that seek 
short-term extensions.
    An automatic 14-day ``grace period'' extension, as proposed, may 
encourage some H-2A employers to understate the offered period of 
employment disclosed on their labor certification application(s) and H-
2A petition(s), thereby affecting recruitment of U.S. workers and such 
existing rights under the H-2A program as the ``50 percent rule,'' the 
``three-quarter guarantee,'' and reimbursement of in-bound and return 
transportation. U.S. workers must be offered employment during the 
first half (50 percent) of the work contract, which is ordinarily the 
work period specified by the employer on the job offer (see 20 CFR 
655.103(e) (1999); 29 CFR 501.10(d)); covered workers are guaranteed 
pay for three-quarters of the workdays offered by the employer under 
the work contract (see 20 CFR 655.102(b)(6)(i) (1999)), and 
reimbursement for in-bound transportation costs on completion and 
payment for return transportation on completion of the offered 
employment under the work contract (see 20 CFR 655.102(b)(5)(i) and 
(ii) (1999)). If adopted DOL would evaluate whether the proposed 
automatic 14-day ``grace period'' extension is treated as offered 
employment for these various purposes and the consequences which occur 
if a worker declines to continue employment during the 14-day ``grace 
period'' extension.
    The agency requests comments on the extent, if any, to which the 
addition of the 14-day ``grace period'' automatic extension, as 
proposed, impacts U.S. and foreign workers' rights, including their 
rights under the underlying work contract, as well as employers' 
responsibilities and obligations.

Executive Order 12866

    The Department has determined that this proposed rule should be 
treated as a ``significant regulatory action,'' within the meaning of 
Executive Order 12866, because of the inter-agency coordination with 
INS. However, this rule is not an ``economically significant regulatory 
action.'' because it would not have an economic effect on the economy 
of $100 million or more or adversely affect in a material way the 
economy, a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities.

Regulatory Flexibility Act

    The Department of Labor has notified the Chief Counsel for 
Advocacy, Small Business Administration, and made the certification 
pursuant to the Regulatory Flexibility Act at 5 U.S.C. 605(b), that the 
proposed rule would not have a significant economic impact on a 
substantial number of small entities. The proposed amendments would 
enhance the administrative efficiency and convenience to employers by 
having them file a combined Application for Temporary Agricultural 
Labor Certification and H-2A Petition with one agency, as opposed to 
two forms filed with two agencies as at present. The total number of 
employers utilizing H-2A workers is only approximately 4,400.
    Therefore, the proposed amendments would not have a significant 
economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This proposed rule would 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 1 year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions are necessary under the provisions of the Unfunded Mandates 
Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Act of 1996. It would 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.

Paperwork Reduction Act

    Title: Form ETA 9079 Application for Temporary Agricultural Labor 
Certification and H-2A Petition.
    Summary: Section 218 of the Immigration and Nationality Act (Act) 
provides that an H-2A petition to import an H-2A worker may not be 
approved by the Attorney General unless the petitioner has applied to 
the Secretary of Labor for a certification that: (1) There are not 
sufficient workers who are able, willing and qualified, and who will 
not be available at the time and place needed to perform the labor or 
services involved in the petition; and (2) the employment of the alien 
in such labor or services will not adversely affect the wages and 
working conditions of workers in the United States similarly employed.
    Section 214(c) of the Act provides the Attorney General with the 
authority to determine the admission of an alien for such and under 
such conditions as the attorney general may prescribe by regulation. 
The Attorney general has delegated her responsibilities under section 
214(c) of the Act to the Commissioner, Immigration and Naturalization 
Service.
    Currently, employers file an ETA Form 750 with the Department to 
obtain a labor certification and they file the labor certification in 
support of the I-129 to obtain a petition from INS.
    Need: The current process has been criticized by some employers as 
complicated hard to understand, and too time consuming. In some 
instances the result has been that foreign workers have not arrived by 
the first date of the employer's need. In an effort to reduce the 
number of steps, paperwork and time necessary to obtain foreign workers 
necessary to perform critical agricultural functions the Department of 
Labor and INS issued final rules simultaneously with this proposed rule 
transferring the function of adjudicating H-2A petitions to the 
Department of Labor.
    To streamline the process of obtaining certifications and 
petitions, the INS and DOL have developed the form ETA 9079 which 
includes all the information necessary to INS and DOL to administer and 
monitor the certification and petition process. The new form ETA 9079, 
and addendums thereto, will replace Form ETA 750 and INS Form I-129 for 
all H-2A filings. It is envisaged that the process will enable 
employers to obtain foreign agricultural workers by implementation of a 
one stop filing whereby all forms and supporting documentation are 
submitted to DOL. Currently employers have to complete a two step 
process to obtain a labor certification and petition which necessitates 
the filing of different forms with the Department and the Immigration 
and Naturalization Service. The final rule when it becomes effective 
and the Form ETA 9079 when it is approved will result in employers 
being able to obtain both the labor

[[Page 43548]]

certification and petition for aliens outside the United States from 
the Department. The Department of Justice estimates that transferring 
the authority to adjudicate petitions to DOL will result in a combined 
reduction of 18 to 27 days in the time now taken from initial filing 
with DOL to completion of the petition processing by INS.
    In cases involving named aliens, employers would file with the 
Department an ETA 9079W, Named Alien Addendum. The proposed rule issued 
by INS would require the alien to sign the form if an extension of stay 
or change of status is requested. If the petition is approved, this 
form will be sent to INS for a determination on any extension of stay 
or change of status requested for the alien.
    INS has also in the interests of further simplifying the petition 
process delegated to DOL the responsibility of processing the small 
number of requests involving changes in the Consulate or port of entry 
designated on the petition when it was approved, and issue duplicate 
approval notices it has issued. To make such requests the employer will 
be required to file form ETA 9079M, Visa Issuance Change Addendum, with 
the fee specified by INS regulations at 8 CFR 103.7 for the I-824, 
Application for Action on an Approved Application or Petition. The 
9079M is functionally equivalent to the I-824.
    Respondents and proposed frequency of response: ETA estimates that 
2,270 sole employers and joint-employer associations filing on behalf 
of member employers will submit about 1.3 Forms ETA 9079 each year, for 
a total of 2,950 forms filed annually. The actual number filed will 
depend upon the needs of the employers, which are dependent in part 
upon agricultural conditions, such as crop maturation.
    Estimated total annual burden for filing: ETA estimates that 
approximately 2,950 Forms ETA 9079 will be submitted each year. The 
reporting burden is estimated to average 1\1/2\ hours. This estimate 
includes the time for reviewing instructions, searching existing 
information/data sources, gathering and maintaining information and 
completing and reviewing the application.
    The preparation of the application form may be done by a company 
employee, official, proprietor, or chief executive officer. Therefore, 
the salaries could range from about $5.15 an hour for an employee to 
$300.00 for a proprietor or chief executive officer of a large farming 
enterprise. The average hourly remuneration is estimated to be $25.00. 
This results in the estimated annual cost to respondents (employers) 
for filing the ETA 9079, ``Application for Temporary Agricultural Labor 
Certification and H-2A Petition'' of $110,625 (2,950  x  1\1/2\  x  
$25.00).
    The public is invited to provide comments on this information 
collection requirement so that the Department of Labor may:
    (1) Evaluate whether the proposed collections of information are 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimates of the burdens 
of the collections of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collections of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses. Written comments should be sent to the Office 
of Information and Regulatory Affairs, Office of Management and Budget, 
Attention: Desk Officer for Employment and Training Administration, 
U.S. Department of Labor, Washington, D.C. 20503.

Catalogue of Federal Domestic Assistance Number

    This program is listed in the Catalogue of Federal Domestic 
Assistance as Number 17.202, ``Certification of Foreign Workers for 
Agricultural and Logging Employment.''

List of Subjects:

    Administrative practice and procedure, Agriculture, Aliens, 
Crewmembers, Employment, Enforcement, Forest and forest products, Guam, 
Health professions, Immigration, Labor, Longshore work, Migrant labor, 
Nurse, Penalties, Registered nurse, Reporting and record keeping 
requirements, Specialty occupation, Students, Wages.

Proposed Rule

    Accordingly, part 655 of Chapter V of title 20, code of Federal 
Regulations is amended as follows:

PART 655--[AMENDED]

    1. The authority citation for part 655 continues to read as 
follows:

    Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i) 
and (ii), 1182(m) and (n), 1184, 1188, and 1288(c) and (d); 29 
U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 
2103 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 
4978, 5027 (8 U.S.C. 1184 note); P.L. 103-206, 107 Stat 2419; and 8 
CFR 214.2(h)(4)(i).
    Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184, 
and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
    Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and 
1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and 
1188; and 29 U.S.C. 49 et seq. , and 8 CFR 103.1(f)(iii)(J), (W), 
214.2(h)(5), (11) and (12).
    Subparts D and E issued under 8 U.S.C. 1101(a)(15) (H)(i)(a), 
1182(m), and 1184; 29 U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L. 
101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).
    Subparts F and G issued under 8 U.S.C. 1184 and 1288(c) and (d); 
and 29 U.S.C. 49 et seq.; and P.L. 103-206, 107 Stat 2419.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b), 
1182(n), and 1184; 29 U.S.C. 49 et seq.; and sec. 303(a)(8), Pub. L. 
102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 note).
    Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec. 
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).


Sec. 655.100  [Amended]

    2. Section 655.100 is amended by revising paragraph (a)(4)(iii) to 
read as follows:


Sec. 655.100  Overview of this subpart and definition of terms.

    (a) *  *  *
    (4) *  *  *
    (iii) Fees--(A) General. Fees must be submitted with the Form ETA 
9079 Application for Temporary Agricultural Labor Certification and H-
2A Petition. The fees which must accompany the form must include the 
fee for the issuance of the labor certification, and the fee required 
for the H-2A petition as specified by INS regulations at 8 CFR 103.7. 
The amount of the labor certification fee is dependent upon the number 
of job openings for which the employer requests certification. The 
labor certification fee for applications for 10 job openings or fewer 
is $150.00, the certification fee for applications for more than 10 job 
openings up to and including 99 job openings is $250.00, and the 
certification fee is $1,000 when the application is for 100 job 
openings or more. The INS fee was set at $110.00 as of October 13, 1998 
and is subject to revision by INS every two years. Requests for changes 
in the Consulate or

[[Page 43549]]

port of entry designated on the petition when it was approved or to 
request a duplicate of a lost approval notice shall be made by filing 
an ETA 9079M, which is functionally equivalent to INS Form I-824 
(Application for Action on an Approved Application or Petition), and 
the fee specified in INS regulations at 8 CFR 103.7 with DOL. As of 
October 13, 1998, the INS fee for the Form I-824 was set at $120.00. 
INS has authorized DOL to accept on behalf of INS any Forms I-102, 
Application for Replacement/Initial Nonimmigrant Arrival-Departure 
Document, and Forms I-539, Application to Extend/Change Nonimmigrant 
Status, which are filed concurrently with the DOL's new form ETA 9079. 
The submission of any Forms I-102 or I-539 must be accompanied by a 
check made payable to the ``U.S. Department of Labor'' in the amount 
specified by INS regulations at 8 CFR 103.7. Fees will be deposited in 
a special account while the application is being processed and 
adjudicated. If the labor certification is denied, all fees will be 
refunded. If certification is granted, but the petition is denied, the 
fees will not be refunded.
    (B) Payment. Payment must be made by check or money drawn on a 
financial institution in the United States and payable to the ``U.S. 
Department of Labor'' in United States currency. A charge of $30.00 
will be imposed if a check in payment of a fee is not honored by the 
financial institution on which it is drawn and, if a certification has 
not been issued, processing of the application will be suspended until 
a certified check or money order made payable to the U.S. Department of 
Labor is received by the Department.
    (C) Application and Petition. Fees must be paid at the time the 
application is filed as follows:
    (1) Sole employers filing a Form ETA 9079--Application for 
Temporary Agricultural Labor Certification and H-2A Petition shall 
submit with their application a single check or money order made 
payable to the ``U.S. Department of Labor'' for the total amount of the 
required fees to include:
    (i) A certification fee of $150.00 when the application is for 10 
job openings or fewer, $250.00 when the application is for more than 10 
openings up to and including 99 job openings, or $1,000 when the 
application is for 100 job openings or more;
    (ii) The fee required to pay for the processing of the H-2A 
petition as specified in INS regulations at 8 CFR 103.7.
    (2) In the case of a joint employer association filing a single 
Form ETA 9079--Application for Temporary Agricultural Labor 
Certification and H-2A Petition on behalf of its members, the 
application shall be accompanied by a single check or money order made 
payable to the ``U.S. Department of Labor'' for the total amount of 
required fees. The amount of the check or money order must include:
    (i) A certification fee of $150.00 for each member applying for 10 
job openings or fewer, $250.00 for each member applying for more than 
10 job openings up to and including 99 job openings, and $1000.00 for 
each member applying for 100 or more job openings. The joint employer 
association shall not be charged a separate fee; and
    (ii) The fee required for the H-2A petition filed by the joint 
employer association as specified by the INS regulations at 8 CFR 
103.7.
    (3) In the case of an employer association acting as an agent for 
its employer-members in filing of individual applications by its 
members, each Form ETA 9079--Application for Temporary Agricultural 
Labor Certification and H-2A Petition shall be accompanied by a single 
check or money order made payable to the ``U.S. Department of Labor'' 
for an amount sufficient to include:
    (i) A certification fee of $150.00 from each member applying for 10 
job openings or fewer, $250.00 from each member applying for more than 
10 job openings up to and including 99 job openings, and $1,000.00 from 
each member applying for 100 or more job openings;
    (ii) The fee required for the processing of the H-2A petition from 
each member as specified by INS regulations at 8 CFR 103.7.
    (D) INS Forms I-102 and I-539. Forms I-102, Application for 
Replacement/Initial Nonimmigrant Arrival-Departure Document, and Forms 
I-539, Application to Extend/Change Nonimmigrant Status, which are 
filed concurrently with the DOL's form ETA 9079 must be accompanied by 
a check made payable to the ``U.S. Department of Labor'' in the amount 
specified by INS regulations at 8 CFR 103.7.
    (E) Refunds. (1) If a labor certification is denied, all fees will 
be refunded to the employer or association as appropriate. If a labor 
certification is partially denied a refund shall be made, if 
appropriate, in accordance with the fee schedule in paragraph 
(a)(4)(iii)(C) of this section. If the certification is granted whole 
or in part, but the petition is denied, no refund will be made of the 
petition fee.
    (2) If an amendment to decrease the number workers is made prior to 
an RA certification, a refund shall be made, if appropriate, in 
accordance with the fee schedule in paragraph (a)(4)(iii)(C) of this 
section.
    (F) Increase in Number of Workers. Amendments to applications to 
increase the number of workers requested made prior to an RA 
certification determination shall be accompanied by an increase in fees 
that are in accordance with the fee schedule in paragraph 
(a)(4)(iii)(B) of this section. Amendments to increase the number of 
workers requested shall not be processed if they are not accompanied by 
a check made out to the ``U.S. Department of Labor'' sufficient to 
cover any increase in fees required due to the increase in workers 
requested.
    (G) Applications for Change in Consulate or to Obtain Duplicate 
Approval Notice. Applications requesting changes in the notification to 
the Consulate or port of entry designated on an approved petition, or 
to request a duplicate approval notice, shall be filed on ETA Form 
9079M, Visa Issuance Change Addendum, with the RA who originally 
processed the case, and must be accompanied by a check or money order 
made payable to the ``U.S. Department of Labor'' in the amount 
specified by INS regulations at 8 CFR 103.7.
* * * * *
    3. Section 655.101 is amended by removing the period at the end of 
paragraph (b)(3) and adding in lieu thereof the phrase ``; and'', and 
by adding new paragraphs (b)(4) and (i) to read as follows:


Sec. 655.101  Temporary alien labor certification applications and 
petitions.

* * * * *
    (b) *  *  *
    (4) A check or money order for the fee in accordance with 
Sec. 655.100(a)(4)(iii).
* * * * *
    (i) Changes of status and extensions of stay. If the H-2A petition 
is granted, any requests to change nonimmigrant status or for extension 
of stay for named beneficiaries made on the Form ETA 9079W will be sent 
by ETA to INS, which will make determinations about the named 
beneficiaries' eligibility to change nonimmigrant status or eligibility 
for extension of stay.


Sec. 655.103  [Amended]

    4. Section 655.103 is amended by removing paragraph (h).


Sec. 655.106  [Amended]

    5. Section 655.106 is amended by removing paragraph (b)(2).


[[Page 43550]]


    Signed at Washington, DC, this 7th day of July, 2000.
Raymond L. Bramucci,
Assistant Secretary of Labor for Employment and Training.

Appendix 1 (Not to be codified in the CFR): Form ETA 9079







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