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[Federal Register: July 13, 2000 (Volume 65, Number 135)]
[Rules and Regulations]               
[Page 43538-43544]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jy00-18]                         

[[Page 43538]]
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

RIN 1205-AB23

 
Labor Certification and Petition Process for the Temporary 
Employment of Nonimmigrant Aliens in Agriculture in the United States; 
Delegation of Authority to Adjudicate Petitions

AGENCY: Employment and Training Administration, Labor.

ACTION: Final rule.

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

SUMMARY: This rule amends the Employment and Training Administration 
(ETA) regulations to implement the delegation of authority to 
adjudicate petitions for temporary nonimmigrant agricultural workers 
(H-2A's) from the Department of Justice/Immigration and Naturalization 
Service (INS) to the United States Department of Labor (DOL or 
Department). Among the implementation measures is a new Form ETA 9079, 
Application for Temporary Agricultural Labor Certification and H-2A 
Petition, which consolidates two current forms, ETA 750 (Application 
for Alien Employment Certification) and INS I-129 (Petition for 
Nonimmigrant Workers) for use in the H-2A program. This form is set 
forth as an appendix to a proposed rule published simultaneously with 
this final rule to implement a new fee schedule. The proposed rule 
requests comments on the form in accordance with the Paperwork 
Reduction Act. This rulemaking further implements the delegation of 
authority, from INS to DOL, to hear appeals on determinations and to 
revoke petition approvals. The INS delegation is also published 
simultaneously in the Federal Register, together with a proposed rule 
regarding collection of the INS fee by DOL. The rule does not affect 
INS authority to make determinations at the port-of-entry of an alien's 
admissibility to the United States, to make determinations of an 
alien's eligibility for change of nonimmigrant status, or to make 
determinations of an alien's eligibility for extension of stay. This 
rule streamlines existing H-2A processes to make it more efficient for 
petitioners seeking the admission of temporary agricultural workers 
without diminishing the workplace rights of U.S. workers or foreign 
workers admitted under the program.

DATES: Effective Date: This final rule is effective November 13, 2000. 
Affected parties do not have to comply with the information and 
recordkeeping requirements in Secs. 655.101(a)(1), 655.101(a)(2) and 
655.101(h), until the Department publishes in the Federal Register the 
control numbers assigned by the Office of Management and Budget (OMB) 
to these information collection requirements. Publication of the 
control numbers notifies the public that OMB has approved these 
information collection requirements under the Paperwork Reduction Act 
of 1995.

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) 219-4369 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

Background and Explanation of Changes

    ETA published a proposed a rule on October 2, 1998, which included 
a proposal to delegate from INS to DOL authority to adjudicate certain 
temporary agricultural worker (H-2A) petitions. 63 FR 53244. As 
proposed, INS would delegate authority to ETA to adjudicate H-2A 
petitions for alien beneficiaries located outside of the United States. 
Under that proposal, INS would have continued to adjudicate petitions 
in those relatively few instances when the alien beneficiaries are 
located within the United States. The INS published a proposed rule to 
delegate this authority to DOL on December 7, 1998 (63 FR 6743).
    INS is concurrently publishing a final rule implementing its 
delegation of petition and revocation authority to ETA. The INS rule 
addresses changes in its regulations necessary to effectuate this 
delegation and guide ETA in the exercise of its delegated authority to 
grant and revoke petitions. This final rule implements the delegation 
from INS. The process is being modified to require all H-2A petitions 
to be filed with ETA, hereafter the sole recipient of H-2A petitions. 
Requests for change of status and extension of stay for individual 
aliens already present in the United States made on the Form ETA 9079 
at the time the H-2A petition is filed will be forwarded to INS by ETA 
so that INS can adjudicate the requests for extension of stay or change 
of status.
    H-2A petition revocation authority also is being delegated to ETA 
as a natural extension of the adjudication process. INS currently 
confers that authority upon the person who was responsible for the 
initial determination. Granting to ETA INS revocation authority allows 
ETA to reexamine its original decision based on evidence sufficient to 
consider petition revocation using INS criteria found in 8 CFR 214.2.
    Administrative appeals of petition denials and determinations to 
revoke petitions are also being delegated to DOL. Appeals of 
determinations made by ETA on petitions and revocations of H-2A 
petitions based on existing INS criteria will be decided by the 
Department's Office of Administrative Law Judges (OALJ). The OALJ is 
separate from the agency (ETA) making determinations on temporary 
agricultural labor certification applications, petitions, and 
revocation of petitions. The OALJ has the necessary separation of 
function and authority to allow for independent, impartial 
determinations from ETA. This administrative review process is similar 
to INS' separation of field office determinations and its 
Administrative Appeals Unit (AAU).
    To implement the delegation of authority and to further streamline 
the H-2A process, ETA is developing a form that will allow the employer 
to submit a consolidated application that includes all the information 
concerning the application for certification and the petition. This new 
Form ETA 9079 will replace the current Form ETA 750 (Application for 
Alien Employment Certification), and Form I-129 (Petition for a 
Nonimmigrant Worker) for those employers seeking temporary agricultural 
workers under the H-2A program. This consolidated form will eliminate 
the need to submit multiple forms to multiple agencies and greatly 
reduce the paperwork burden associated with the H-2A program. Form ETA 
9079 is incorporated as an appendix to a proposed rule separately 
published in the Federal Register as discussed below, and is available 
for public comment in accordance with the Paperwork Reduction Act.
    The delegation of authority to the Department from INS also 
includes the authority to process applications from employers involving 
changes in the Consulate designated on a petition, to process requests 
for changes in the designation of the port of entry for aliens entering 
without visas, and requests for duplicate notices after a decision 
notice has been sent. Such applications must be filed with the 
Department on the ETA 9079M, Visa Issuance Change Addendum. The ETA 
9079M is functionally equivalent to the I-824 that has been used by INS 
to

[[Page 43539]]

process changes in the Consulates and ports of entry designated on 
approved petitions.
    ETA also publishes today a notice of proposed rulemaking to address 
issues concerning fees associated with both H-2A labor certification 
and H-2A petitions.
    The changes made by this rule are a logical outgrowth of ETA's 
October 2, 1998, proposed rule (63 FR at 53244 and 53248), as well as 
INS' December 7, 1998, proposed rule (63 FR 67431). In any event, the 
changes from the ETA notice of proposed rulemaking are rules of agency 
procedure exempt from the requirements of the Administrative Procedure 
Act requiring notice of proposed rulemaking. See U.S.C. 553(b)(A). 
These changes merely affect the administration of the H-2A program 
without making material changes to or modifying any substantive 
requirements of the petition process.
    The effect of this and the INS rule will be to greatly simplify the 
process H-2A users must use when seeking H-2A certification and 
petition adjudication. Instead of seeking a determination from two 
agencies on virtually the identical factual criteria, only one agency 
will be involved in the determinations. Instead of submitting two forms 
with redundant information, only one will be required: a combined H-2A 
certification application and H-2A petition. Finally, the time 
necessary to make determinations on labor certification and petitions 
will be greatly reduced, potentially eliminating weeks from the 
process.

Discussion of Comments

    ETA received thirty-six comments on the proposed rule. Seventeen 
comments addressed the proposed delegation of petition authority from 
INS to ETA. The comments were from agricultural employer associations, 
farmworker advocacy organizations, State agencies, the American 
Immigration Lawyers Association (AILA), two private attorneys and one 
ETA regional office. Most commenters were generally supportive of the 
delegation. Some commenters raised concerns about the revised petition 
process and questioned whether or not the process, in fact, would 
result in less paperwork and a more efficient certification and 
petition process. AILA was opposed to the delegation. The specific 
comments are addressed below.

1. Comments on the Delegation of H-2A Petition Determination From INS 
to ETA

    Four agricultural employer organizations commented on the proposal 
to delegate adjudication of the H-2A petition from INS to ETA. The 
Florida Fruit and Vegetable Association (FFVA) stated that it believed 
the delegation would ``greatly expedite the grower's ability to receive 
the H-2A workers in a timely manner.'' The National Council of 
Agricultural Employers (NCAE) strongly supported the intent of the 
delegation but emphasized the need for combining the H-2A labor 
certification and petition into a single document and indicated that 
DOL and INS should issue a proposal in the Federal Register setting 
forth the precise regulation and procedures for public comment. In a 
similar vein the American Farm Bureau Federation urged the Department 
to withdraw the delegation proposal until the Department and INS have 
worked out the procedures and developed the forms so that an employer 
can file one form which will serve as a certification application and 
petition, ensuring that the certification also constitutes the visa 
approval decision. The New England Apple Council, a major user of the 
H-2A program, stated that the proposed delegation could make good 
common sense but also indicated that a more detailed proposal should be 
published so that it could comment intelligently, and emphasized the 
need for combining the H-2A labor certification and H-2A petition. This 
rule and the proposed rule published in this edition of the Federal 
Register have incorporated a combined form concept.
    The Farmworker Justice Fund (FJF) opposed the delegation on the 
basis that the Department should institute a wide-ranging review and 
comprehensive approach to improving the administration of the H-2A 
program. FJF further stated that the delegation should be accomplished 
only after the Department addresses worker needs identified by FJF and 
the informational and data collection failings identified by the 
General Accounting Office.
    Several State agencies commented on the delegation. Four States--
Texas, Arizona, New Jersey, and Nevada--asserted that additional 
funding was needed for the regional offices performing the new 
function. A transfer of funds from INS to ETA to perform the new 
petition functions will address this concern. Three States--Washington, 
Idaho, and Kentucky--supported the delegation and stated it would 
result in reduced time needed for employers to obtain foreign workers. 
One State-- Ohio--``guardedly'' agreed with the change but expressed 
reservation because the proposed delegation may result in more work for 
State agencies, which are underfunded. AILA and two private attorneys 
expressed the greatest opposition to the proposal. They questioned the 
Department's capability to adjudicate visa petitions for a variety of 
reasons.

2. Combined Form

    As indicated above the development of a combined labor 
certification and H-2A petition form discussed in the October 1998, 
Notice of Proposed Rulemaking (63 FR at 53246) were extremely important 
to some of the commenters. They were concerned in view of delays that 
employers have experienced in obtaining labor certifications, that 
sequential processing of two forms by DOL would lead to lengthening the 
time to complete the process necessary to obtain nonimmigrant H-2A 
workers. Extensive discussions have taken place between ETA and INS on 
the development of a combined H-2A labor certification and petition, 
which would enable the DOL to make a determination on both the labor 
certification and H-2A petition based on submission of a properly 
completed form and supporting documentation. Since most petitions are 
filed on behalf of unnamed aliens and most job opportunities involving 
named aliens require little or no skill, it would be an extremely rare 
occurrence that a certification would be issued and the H-2A petition 
would be denied. Further, it should also be recognized, as pointed out 
in the NPRM published today concerning fees for the H-2A labor 
certification and petition, that historically the denial rate for labor 
certifications has been low. The new Form ETA 9079, Application for 
Temporary Agricultural Labor Certification and H-2A Petition, will 
replace Form ETA 750 and INS Form I-129 for all H-2A filings. Whenever 
the employer is petitioning for named aliens the 9079W, an addendum to 
Form ETA 9079, must be completed and the Department will determine 
whether the aliens qualify for the proposed employment. Further, as 
explained in the proposed rule, requests to change nonimmigrant status 
or for extension of stay for named beneficiaries will be made on the 
form 9079W and will be sent to INS, which will continue to make 
determinations about the named beneficiaries' eligibility to change 
nonimmigrant status or eligibility for extension of stay. The new Form 
ETA 9079 is incorporated as an appendix to the proposed rule being 
published today and is available for public comment in accordance with 
the Paperwork Reduction Act.

[[Page 43540]]

3. Countervailing Evidence

    As pointed out in the concurrently published INS final rule, INS' 
role in H-2A petition processing is limited. Most H-2A petitions are 
filed before the petitioner has identified or named the H-2A workers 
(beneficiaries) to be admitted. INS reviews the certification 
determinations made by ETA, and determines that the petitioner is 
making a valid job offer and that any INS assessed liquidated damages 
have been paid. Liquidated damages are assessed to an employer who 
fails to notify INS of the departure of H-2A workers from the United 
States or when the employer cannot establish that H-2A workers who have 
left employment have obtained other legal status. See 8 CFR 
214.2(h)(5)(vi). The overwhelming majority of applications for 
temporary agricultural labor certifications and H-2A petitions are for 
unnamed aliens. In the rare cases with named beneficiaries, INS reviews 
the ability of the beneficiary to perform the needed temporary 
services. Also in rare cases, INS reviews countervailing evidence on 
the availability of U.S. workers to perform needed services under 8 
U.S.C. 1101(a)(15)(H)(ii).
    Three commenters indicated that the provision in the INS 
regulations which permits the filing of a petition with countervailing 
evidence with INS should be retained. In delegating adjudication of 
petition authority to the Secretary, INS has determined that a separate 
review concerning the availability of U.S. workers is unwarranted. ETA 
will make the labor certification and petition determination 
concurrently and administrative-judicial review of these determinations 
will be available through the existing appeal process before the 
Department of Labor Office of Administrative Law Judges. An additional 
review by INS would be redundant.
    DOL and INS are establishing a mechanism to notify ETA of any 
unpaid liquidated damage claims, in order for ETA to consider this 
factor in its adjudication of the petition.

4. ETA Capabilities

    Several commenters opposed the proposal due to concerns about ETA's 
ability to perform its current function in a timely manner. The INS and 
ETA believe that the new, consolidated process is not complex. Only 
rarely will ETA be required to make additional findings or consider 
additional evidence. The additional determinations to be made by ETA 
will encompass whether INS has notified ETA of a failure to pay 
liquidated damages. If a named beneficiary(ies) is included with the 
petition, ETA will determine whether the worker has the qualifications 
to perform the stated services. Knowledge of all areas of immigration 
law alluded to by AILA and some individual attorneys is not necessary 
to address the limited issues normally arising in the adjudication of 
H-2A petitions. Further, DOL and INS will be providing training to ETA 
personnel on the issues considered by INS under its current role in the 
H-2A process.
    Finally, the processing time for the overwhelming majority of cases 
should be reduced substantially. Currently, three to six days are 
normally consumed by mail notification from ETA to the employer and the 
employer's subsequent H-2A petition filing with INS. INS then takes two 
to three weeks to process the petition. The additional work presented 
by the combined form and adjudication process should not adversely 
impact the H-2A process for ETA. The new process should result in a 
reduction from the current process of at least two to three weeks in 
the time taken from initial filing with ETA to completion of the 
certification and petition process. This is a very substantial time 
saving in a process that now commonly commences only 45 days before the 
``date of need.'' ETA is continuing to explore additional means for 
streamlining the H-2A nonagricultural labor certification program.
    Some commenters expressed concern about the resources available to 
DOL to take on the additional responsibilities associated with 
processing visa petitions. The Department as explained in the NPRM 
concerning the fee issues published concurrently with this rule, will 
be collecting the petition fee on behalf of INS and will be reimbursed 
by INS for the costs it incurs in processing H-2A petitions.

5. Changes in Consulate or Port of Entry and Requests for Duplicate 
Approval Notices

    In the interests of further simplifying the petition process INS 
has also delegated to ETA the responsibility of processing the small 
number of requests involving changes in the Consulate or port of entry 
(for aliens entering without visas) designated on the petition when it 
was approved, and to respond to requests for duplicates of approval 
notices. To make such requests the employer shall file the ETA Form 
9079M, Visa Issuance Change Addendum, with the $120.00 fee currently 
required by INS to process an I-824, Application for Action on an 
Approved Application or Petition. The ETA 9079M is functionally 
equivalent to the I-824. The Department would, as explained in the 
above mentioned NPRM, collect the fee on behalf of INS and be 
reimbursed by INS for its costs in processing requests to make changes 
in the Consulates or port of entry that were designated on the approved 
H-2A petition.

6. Notification of State Department

    Two attorneys raised concerns about notifying the Department of 
State (DOS) about approvals of H-2A petitions. This issue is fully 
addressed in the final rule transferring authority to adjudicate visa 
petitions concurrently published in the Federal Register by INS. As 
explained in INS' final rule, currently, the INS mails the duplicate 
copy of the H-2A petition to the consulate selected by the petitioner. 
Occasionally, when warranted, the INS notifies the consulate by 
telephone or telefax. The three agencies have now agreed that routine 
telefax notification from DOL to DOS will assist in streamlining the H-
2A process and are finalizing the internal details to ensure that such 
notifications are secure. Telefax notification should result in an 
additional 2 to 3 days reduction in obtaining workers.

7. Certification 30 Days Before Date of Need

    The regulations are amended to conform to Public Law 106-78, sec. 
748, effective October 22, 1999, which amended section 218(c)(3)(A) of 
the Immigration and Nationality Act (Act) (8 U.S.C. 1188(c)(3)((A)) to 
enlarge the time that certifications must be issued before the 
employer's date of need from 20 days to 30 days. The Department points 
out that its regulation at 20 CFR 656.403, effective, July 29, 1999, 
requires that the employer's housing be in full compliance with the 
requirements of the housing standards at least 20 days before the date 
the housing is to be occupied, which in cases involving foreign 
agricultural workers is the employer's date of need. (See 64 FR 34958). 
The Act, however, also requires that employers furnish housing that 
meets the applicable standards before certification can be issued. (See 
section 218(c)(4) of the Act, 8 U.S.C. 1188(c)(4).) The amendment to 
the Act that certifications be issued 20 days before the employer's 
date of need does not negate the statutory requirement regarding 
housing in the Act. Consequently, certifications cannot be issued if 
housing does not meet applicable standards. ETA provided this guidance 
to its regional offices regarding

[[Page 43541]]

the administration of the H-2A program in light of amendments to the 
Act by section 748 of Public Law 107-78 in Field Memorandum No. 16-00, 
issued February 10, 2000, which is published as Appendix A to the 
preamble of this rule.

Effective Date of Final Rule

    The 120 day effective date of this rule will allow INS and ETA to 
establish the automated systems needed to electronically capture and 
share data between the Department of Labor, INS, and the Department of 
State; seek comments and obtain OMB approval of the consolidated Form 
ETA 9079 to be used for the application for H-2A labor certification 
and petition; and complete the proposed rulemaking on the fee 
provisions.

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

    At the time the proposed rule was published, the Department of 
Labor 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 amendments will 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 successively filing two forms to two agencies as 
at present.
    The regulation is administrative in nature and merely transfers 
authority to make certain determinations from INS to ETA. It does not 
expand the existing procedural requirements and should reduce the 
administrative and paperwork burden on users, including small 
businesses. The total number of employers utilizing H-2A workers is 
only approximately 4,400.
    Therefore, the amendments will not have a significant economic 
impact on a substantial number of small entities.

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

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. It 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.

Executive Order 13132

    This final 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 Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a summary impact 
statement.

Paperwork Reduction Act

    The combined Form ETA 9079 is being published for comment as an 
appendix with the proposed rule being published today, in accordance 
with the Paperwork Reduction Act of 1995.

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 in 20 CFR Part 655

    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.

Appendix A Field Memorandum No. 16-00, Changes to H-2A Program

    Note: Appendix A will not be codified in the Code of Federal 
Regulations.

U.S. Department of Labor

Employment and Training Administration, Washington, DC 20210

    Classification: ES.
    Correspondence Symbol: TEES.
    Date: February 10, 2000.

DIRECTIVE: FIELD MEMORANDUM NO. 16-00
TO: ALL REGIONAL ADMINISTRATORS
FROM: LENITA JACOBS-SIMMONS, Deputy Assistant Secretary.
SUBJECT: CHANGES TO H-2A PROGRAM

    1. Purpose. To provide policy and guidance regarding the effect on 
the H-2A program of recent amendments to the Immigration and 
Nationality Act by Pub. L. 106-78 sec. 748 (McConnell Amendment).
    2. References. 20 CFR Part 655, Subpart B (H-2A Regulations); 29 
CFR Part 501 (H-2A Enforcement); 20 CFR Part 653, Subpart F 
(Agricultural Clearance Orders); 20 CFR Part 654, Subpart E, and 29 CFR 
1910.142 (Migrant Housing Standards); 8 U.S.C. 1188(c)(1) and 
(c)(3)(A), as amended by Pub. L. 106-78 sec. 748 (McConnell Amendment); 
64 FR 34957-34966 (June 29, 1999).
    3. Background. The McConnell Amendment became effective on June 29, 
1999. The McConnell Amendment shortens the lead time for filing the 
certification before the date of need from 60 days to 45 days and 
requires that certifications be issued 30 days before the date of need. 
The reduction in the lead time for filing labor certification 
applications is consistent with the amendments to the labor 
certification regulations for temporary agricultural employment that 
were effective on July 29, 1999. (See 64 FR 34957-34966, June 29, 99). 
The new statutory requirement that certification be issued 30 days 
prior to date of need differs considerably from the current statutory 
and regulatory requirement that certification be issued 20 days before 
the date of need. While the requirement that the certification be 
issued 30 days prior to the date of need reduced the recruitment period 
prior to certification to 15 days, the employer continues to have an 
obligation to actively recruit U.S. workers up until the date on which 
the H-2A workers leave their home country of origin.


[[Page 43542]]


RESCISSIONS
EXPIRATION DATE: September 30, 2002.

    The requirement that certification be issued 30 days before the 
date of need is inconsistent with the recent amendment to the 
regulations that the employer's housing be in full compliance with the 
requirements of the applicable housing standards at least 20 days 
before the date the housing is to be occupied, which in cases involving 
certification of foreign agricultural workers is 20 days before the 
date of need. However, the statute requires that employers furnish 
housing that meets the applicable standards before certification can be 
issued. (See section 218(c)(4) of the Immigration and Nationality Act 
of 1952 as amended.) The McConnell amendment does not negate this 
statutory requirement. Consequently, certifications cannot be issued if 
housing does not meet applicable standards.
    The following guidance should be followed in processing H-2A 
applications to ensure the timeliness of certifications:
    4. Guidance:
    a. Acceptance of Applications: Regional offices should accept H-2A 
applications for consideration that are filed 45 days prior to the date 
of need.
    b. Housing: Documentation that the employer's housing meets 
applicable standards must be received by Certifying Officers prior to 
certification being granted. State Employment Security Agencies (SESAs) 
should encourage employers who expect to obtain their certification 30 
days before the date of need to have housing ready for inspection at 
the time of filing their application or earlier. SESAs should be 
prepared to conduct housing inspections prior to the filing of 
applications, as appropriate; and should even plan to schedule housing 
inspections prior to filing for those employers who regularly use the 
H-2A program.
    c. Recruitment: The employer must show that an advertisement and 
job order have been placed prior to the issuance of the labor 
certification, however, recruitment results do not have to be 
finalized. The employer should provide a report on the recruitment 
results 24 hours prior to certification. If workers have been referred, 
the employer must also provide the disposition of those workers 
referred prior to the 30th day before the date of need. We anticipate 
that there will be some instances where the required advertising will 
not be completed prior to the certification date. Therefore, the 
employer must provide documentation to show that the job order has been 
placed and that advertising has been contracted for the job openings, 
by submitting the text of the contracted advertising. As soon as tear 
sheets are received they should be submitted to the Regional Office.
    Moreover, the McConnell Amendment did not make any changes to the 
current recruitment requirements. 20 CFR 655.103(d)(1)(2)(i)(ii). All 
of the recruitment measures are still intact and employers should be 
instructed to place advertisements in order to attract potentially 
qualified and available U.S. workers. Even if advertising occurs after 
certification is granted, the employer remains obligated to hire 
workers until fifty percent of the period of the work contract has 
elapsed.
    d. Workers Compensation. The employer must provide documentation to 
support the fact that workers compensation insurance coverage is in 
effect prior to the 30th day before the date of need.
    5. Action Required: Regional Administrators are requested to 
provide the above guidance to appropriate staff in the Regional Offices 
and State Agencies.
    6. Inquiries. Inquiries should be directed to Charlene G. Giles on 
(202) 219-5263 x113.

Final Rule

    Accordingly, Part 655 of Chapter V of Title 20 of the Code of 
Federal Regulations is amended as follows:

PART 655--[AMENDED]

    1. The authority citations for Part 655 is revised 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); Pub. L. 103-206, 107 Stat 2419; 8 
CFR 103.1(f)(3)(iii)(J) and (W); 8 CFR 214.2(h)(4)(i); 8 CFR 
214.2(h)(5),(11), and (12).

    Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184, 
and 1188; 29 U.S.C. 49 et seq.; 8 CFR 103.1(f)(3)(iii)(J) and (W); 8 
CFR 214.2(h)(4)(i); and 8 CFR 214.2(h)(5), (11), and (12).
    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.; 8 CFR 103.1(f)(3)(iii)(J) and (W); 8 
CFR 214.2(h)(4)(i); and 8 CFR 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 Pub. 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. 655.0  [Amended]

    2. Section 655.0 is amended by adding a new paragraph (a)(4), to 
read as follows:


Sec. 655.0  Scope and purpose of part.

    (a) * * *
    (4) Subpart B; Delegation From Immigration and Naturalization 
Service. Subpart B also contains the authority from the Commissioner of 
Immigration and Naturalization for the Secretary to consider H-2A 
petitions and revocations under criteria set out in 8 CFR 214.2(h) of 
the Immigration and Naturalization Service's regulations.
* * * * *


Sec. 655.00  [Amended]

    3. Section 655.00 is amended by revising the second sentence to 
read as follows:
    * * * The Director, however, may direct that certain applications, 
types of applications, H-2A petitions, or H-2A petition revocations 
shall be handled by, and the determinations made by, the United States 
Employment Service (USES) in Washington, DC. * * *

Subpart B--Labor Certification and Petition Process for Temporary 
Agricultural Employment in the United States (H-2A Workers)

    3a. Subpart B is amended by revising the heading to read as set 
forth above.


Sec. 655.90  [Amended]

    4. Section 655.90(a) is amended by adding before the last sentence 
a new sentence to read as follows: (a) * * * This subpart also 
describes the processes and procedures governing consideration of 
requests for H-2A petition approval and revocation, set out in the 
Immigration and Naturalization Service regulations at 8 CFR 214.2(h). * 
* *


Sec. 655.92  [Amended]

    5. Section 655.92 is amended by revising the first sentence to read 
as follows:

[[Page 43543]]

    Under this subpart and INS regulations at 8 CFR 214.2(h), the 
accepting for consideration, the making of temporary alien agricultural 
labor certification determinations, and H-2A petition determinations 
ordinarily are performed by the Regional Administrator (RA) of an 
Employment and Training Administration region, who, in turn, may 
delegate this responsibility to a designated staff member. * * *


Sec. 655.100  [Amended]

    6. Section 655.100(a)(1) is amended as follows:
    (a) By adding after ``certification'' in the first sentence, the 
phrase ``and H-2A petition approval''; and
    (b) By adding at the end thereof a new sentence to read as follows:
    (a) * * * (1) * * * The term `application' here used in this 
subpart shall mean an application for temporary alien labor 
certification and an H-2A petition unless otherwise stated.

    7. Section 655.100(a)(4)(i) is amended as follows:
    a. In the second sentence the phrase ``20 calendar days'' is 
removed and the phrase ``30 calendar days'' is added in lieu thereof.
    b. In the last sentence the phrase ``for certification'' is 
removed.

    8. Section 655.100(a)(4)(iv) is amended by removing the phrase 
``for temporary alien agricultural labor certification''.

    9. Section 655.100(b) is amended as follows:
    a. In the final sentence of the definition of Accept for 
consideration by removing the phrase ``in a temporary alien 
agricultural labor certification determination'; and

    b. In the definition of ``Immigration and Naturalization Service 
(INS)'', by removing the phrase ``which makes'' and adding in lieu 
thereof the phrase ``having the authority to make''.


Sec. 655.101  [Amended]

    10. Section 655.101(a)(1) is amended by removing from the first 
sentence the final period and by adding in lieu thereof the phrase 
``and H-2A petition on Form ETA 9079, Application for Temporary 
Agricultural Labor Certification and H-2A Petition.''; and by removing 
from the second sentence the phrase ``for temporary alien agricultural 
worker certification''.

    11. Section 655.101 is amended by revising paragraph (a)(2) and the 
section heading as follows:


Sec. 655.101  Temporary alien agricultural labor certification 
applications and petitions.

    (a) *  *  *
    (2) Applications filed by agents. If an employer intends to be 
represented by an agent, the employer shall sign the statement set 
forth on the Form ETA 9079--Application for Temporary Agricultural 
Labor Certification and H-2A Petition that the agent is representing 
the employer and that the employer takes full responsibility for the 
accuracy of any representations made by the agent. The agent may accept 
for interview workers being referred to the job and make hiring 
commitments on behalf of the employer.

    12. Section 655.101(b)(1) is amended by removing from the first 
sentence the phrase ``A copy of the'' and adding in lieu thereof the 
word ``The''.
    13. Section 655.101(b)(2) is amended by removing the period at the 
end of the sentence and adding in lieu thereof the phrase ``; and''.

    14. Section 655.101 is amended by adding new paragraphs (b)(3) and 
(h) to read as follows:


Sec. 655.101  Temporary alien agricultural labor certification 
applications and petitions.

* * * * *
    (b) *  *  *
    (3) An H-2A petition.
* * * * *
    (h) Requests to change Consulates or ports of entry designated on 
approved petitions or to request a duplicate approval notice, shall be 
made by filing an ETA Form 9079M, Visa Issuance Change Addendum, with 
the Certifying Officer that approved ETA Form 9079, Application for 
Temporary Agricultural Labor Certification and H-2A Petition.

    15. Section 655.101(c), introductory text, is amended as follows:
    a. In the first sentence the phrase ``for temporary alien 
agricultrual labor certification is removed.
    b. In the third sentence the phrase ``20 calendar days'' is removed 
and the phrase ``30 calendar days'' is added in lieu thereof.

    16. Section 655.101(c)(2) is amended by removing the phrase ``20 
calendar days'' in the four places it appears and the phrase ``30 
calendar days'' is added in each place in lieu thereof.


Sec. 655.103  [Amended]

    17. Section 655.103 is amended by removing from the first sentence 
of the introductory text the phrase ``temporary alien agricultural 
labor certification''.


Sec. 655.104  [Amended]

    18. Section 655.104 (e) is amended by removing in the two places it 
appears the phrase ``20 calendar days'' and adding in each place the 
phrase ``30 calendar days'' in lieu thereof.


Sec. 655.105  [Amended]

    19. Section 655.105 is amended by revising the section heading to 
read as follows:


Sec. 655.105  Recruitment of U.S. workers and final determinations on 
certification and H-2A petition.

* * * * *

    20. Section 655.105(a) is amended by removing from the first 
sentence the word ``H-2A'.

    21. Section 655.105(b) is amended by removing the phrase ``for 
temporary alien agricultural labor certification''.

    22. Section 655.105(c) is amended by removing from the last 
sentence the phrase ``20 calendar days'' and adding the phrase ``30 
calendar days'' in lieu thereof.

    23. Section 655.105(d) is amended as follows:
    a. In the first sentence the phrase ``20 calendar days'' is removed 
and the phrase ``30 calendar days'' is added in lieu thereof.
    b. Adding after the second sentence the following sentence:
    (d) *  *  * If the RA denies the application for temporary alien 
agricultural labor certification, the RA shall also deny the petition 
for lack of a labor certification and any other applicable reason in 
accordance with the criteria set out in 8 CFR 214.2(h).* * *


Sec. 655.106  [Amended]

    24. Section 655.106(a) is amended by removing the phrase ``for 
temporary alien agricultural labor certification''.

    25. Section 655.106(b)(1) is amended by removing from the first 
sentence the phrase ``20 calendar days'' and adding the phrase ``30 
calendar days'' in lieu thereof.

    26. Section 655.106(c), introductory text, is amended by removing 
from the paragraph heading the phrase ``temporary alien agricultural 
labor certifications'', and adding in lieu thereof the word 
``applications''.

    27. Section 655.106(c)(1) is amended as follows:
    a. By removing from the first sentence the phrase ``Temporary alien 
agricultural labor certifications are'' and adding in lieu thereof the 
phrase ``The application is''; and
    b. By removing from the third sentence the phrase ``certification 
shall be'' and adding in lieu thereof the phrase ``certifications and 
H-2A petitions shall be''.

    28. Section 655.106(c)(2)(i) is amended as follows:

[[Page 43544]]

    a. By removing from the first sentence the phrase ``certification 
as a joint employer'' and adding in lieu thereof the phrase 
``certification and H-2A petition as a joint employer'' and by removing 
the phrase ``the temporary alien agricultural labor certification 
granted'' and adding in lieu thereof the phrase ``the temporary labor 
certification and petition granted'';
    b. By removing from the second sentence the phrase ``certification 
was'' and adding in lieu thereof the phrase ``certification and H-2A 
petition were'';
    c. By removing from the third sentence the phrase ``certifications 
to associations'' and adding in lieu thereof the phrase 
``certifications and H-2A petitions to associations'; and
    d. By removing from the fourth sentence the phrase ``certification 
as a sole employer'' and adding in lieu thereof the phrase 
``certification and H-2A petition as a sole employer''.

    29. Section 655.106(d) is amended by removing from the first 
sentence the phrase ``certification (in whole or in part)'' and adding 
in lieu thereof the phrase ``certification and H-2A petition (in whole 
or in part)''.

    30. Section 655.106(e)(1) is amended by removing the phrase ``a 
temporary agricultural labor certification'' and adding in lieu thereof 
the phrase ``an application''.

    31. Section 655.106(h) is amended by removing from the first 
sentence the phrase ``20 calendar days'' and adding in lieu thereof the 
phrase ``30 calendar days''.


Sec. 655.108  [Amended]

    32. Section 655.108(a) is amended as follows:
    a. By removing from the first sentence the phrase ``temporary alien 
agricultural labor certification'' and adding in lieu thereof the 
phrase ``an application''; and
    b. By removing from the second sentence the word ``certification'' 
and adding in lieu thereof the phrase ``certification and the 
determination on the H-2A petition cannot be made until the 
investigation has been completed'.


Sec. 655.112  [Amended]

    33. Section 655.112(a)(1) is amended by removing from the first 
sentence the phrase ``of the denial of the temporary alien agricultural 
labor certification'' and adding in lieu thereof the phrase ``of the 
denial of the temporary alien agricultural labor certification, the H-
2A petition, or the revocation of an H-2A petition''.

    34. A new Sec. 655.114 is added, to read as follows:


Sec. 655.114  Revocation of H-2A petition approval.

    Determinations to revoke an approved H-2A petition shall be made by 
the RA in accordance with accordance with the criteria established by 
the Immigration and Naturalization Service at 8 CFR 214.2(h).

    Signed at Washington, DC, this 7th day of July, 2000.
Raymond L. Bramucci,
Assistant Secretary of Labor for Employment and Training.
[FR Doc. 00-17641 Filed 7-12-00; 8:45 am]
BILLING CODE 4510-30-P





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