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[Federal Register: July 13, 2000 (Volume 65, Number 135)]
[Rules and Regulations]               
[Page 43527-43534]
From the Federal Register Online via GPO Access []

[[Page 43527]]

Part V
Department of Justice
Immigration and Naturalization Service
8 CFR Parts 103, 214, 248, 264

Nonimmigrant Classes: Aliens Coming Temporarily to U.S. to Perform 
Agricultural Labor or Services; H-2A Classification Petitions; Final 

Nonimmigrant Classes: Temporary Agricultural Worker (H-2A) Petitions; 
Processing Procedures; Proposed Rule
Department of Labor
Employment and Training Administration
20 CFR Part 655

Labor Certification and Petition Process for the Temporary Employment 
of Nonimmigrant Aliens in the United States Agriculture; Authority 
Delegation to Adjudicate; Final Rule and Modification of Fee Structure; 
Proposed Rule

[[Page 43528]]


Immigration and Naturalization Service

8 CFR Parts 103 and 214

[INS No. 1946-98, AG Order No. 2313-2000]

RIN 1115-AF29
Delegation of the Adjudication of Certain Temporary Agricultural 
Worker (H-2A) Petitions, Appellate and Revocation Authority for Those 
Petitions to the Secretary of Labor

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: This rule amends the Immigration and Naturalization Service 
(Service) regulations to transfer to the Secretary of Labor the 
authority to adjudicate petitions for temporary agricultural workers 
(H-2As), and the authority to decide appeals on those decisions and to 
make determinations for revocation of petition approvals. This rule 
does not affect the Service's authority to make determinations at a 
port-of-entry of an alien's admissibility to the United States, or of 
an alien's eligibility for change of nonimmigrant status, or for 
extension of stay. This rule streamlines the existing H-2A petitioning 
process and makes the process easier and faster for employers of 
temporary agricultural workers.

DATES: This rule is effective November 13, 2000.

FOR FURTHER INFORMATION CONTACT: Bert Rizzo, Supervisory Immigration 
Adjudications Officer, Programs Division, Immigration and 
Naturalization Service, 425 I Street, NW, Room 4213, Washington, DC 
20536, telephone (202) 307-8996.


What Is An H-2A Petition?

    The Immigration and Nationality Act (Act) provides for an employer 
to seek the services of foreign workers to perform temporary or 
seasonal agricultural services in the United States. These temporary 
agricultural workers are known as H-2As.

What Are the Department of Labor's (DOL) and Service's Current 

    Under present procedures, DOL plays the principal role with respect 
to employment of H-2A workers since DOL must first consider an 
employer's application and issue a labor certification for the hiring 
of temporary agricultural workers. Once DOL issues a labor 
certification, the employer then files an H-2A petition with the 
Service and attaches DOL certification.
    The Service's role in the process consists mainly of confirming 
that DOL has issued a labor certification, that the services required 
are temporary or seasonal (which is also considered by DOL), and that 
any prior H-2A violations by that employer have been corrected.

Why Is the Service Delegating Authority to the Secretary of Labor?

    On December 7, 1998, the Service published a proposed rule in the 
Federal Register at 63 FR 67431 to transfer authority to adjudicate 
certain temporary agricultural worker petitions (H-2As) to the 
Secretary of Labor. The initial proposal was to allow DOL to adjudicate 
all H-2A petitions where the alien beneficiaries were located outside 
of the United States, while the Service would continue to adjudicate 
petitions when the alien beneficiaries were located within the United 
States. As described below, the Service has revised the approach of the 
proposed rule to effectuate a more comprehensive, one-step process for 
the adjudication of H-2A petitions by DOL.
    This rule is intended to streamline the process and consolidate the 
H-2A determinations within DOL, the agency having the far greater role 
in the existing process. Consolidation under DOL is logical because of 
the Service's minimal role and the ability of DOL to handle the limited 
additional considerations to adjudicate completely both the labor 
certification and petition portions of the process.
    However, the transfer of authority to DOL is being made only for 
determinations of the eligibility for classification of alien 
beneficiaries for H-2A status. The Attorney General is not further 
delegating to DOL the control of aliens within the United States. 
Therefore, this rule provides that DOL will forward requests to extend 
the stay or change the status of alien beneficiaries of H-2A petitions 
to the Service for adjudication. Since DOL and the Service will conduct 
the necessary interagency coordination, the petitioners will still have 
the advantage of a one-stop forum for the filing of all H-2A matters.

What Comments Did the Service Receive on the Proposed Rule?

    The Service received eight comments to the proposed rule. The 
comments were from employer associations and the American Immigration 
Lawyers Association. The comments generally were divided among six 
issues. The following is a discussion of the comments and the Service's 

1. Filing Form

    Five of the commenters believed that the Service was not properly 
planning for its continued role in developing the filing form(s) or the 
data to be gathered from the petitioner, although they did not offer 
reasons for this belief. DOL and the Service engaged in extensive 
discussions on the appropriate filing vehicle for H-2As. The Service 
has specific data requirements for its management information system, 
statistical records, and the administration of immigration laws. The 
Service is ensuring that those data requirements are met through the 
consultation process and through an interagency agreement outlining all 
areas of concern in the transfer of this process to DOL.
    The agencies will use a single form with multiple pages to capture 
all the necessary data for both agencies. DOL envisions a scannable 
form that can be machine read, which will expedite its data input into 
a new management information system and assist in the adjudication 
process. Data elements derived from the current DOL Forms ETA-750 and 
the Service Form I-129 will be combined on a new filing form. The new 
Form ETA-9079 will be submitted for approval to the Office of 
Management and Budget in accordance with the Paperwork Reduction Act of 
1995. This rule will not be implemented until that form has received 
approval under the Paperwork Reduction Act requirements. The new Form 
ETA-9079, Application for Temporary Agricultural Labor Certification 
and H-2A Petition, will replace the Service Form I-129 for all H-2A 
filings, as well as replace DOL Form ETA-750 for this purpose. It will 
contain separate sections for capturing data on individual aliens named 
in the new form. The separate section, which is being created through 
our proposed rule published elsewhere in this Federal Register, will 
require that an alien beneficiary who is present in the United States 
and seeking an extension of stay or change of status to H-2A sign that 
section. This will ensure that the alien has taken legal responsibility 
for the information entered on the form concerning himself or herself 
and that the alien is a responsible party to the request for extension 
of stay or change of status.

2. Split Filing Locations

    Four commenters believed that the split in required filing 
location, based upon the location of the beneficiaries

[[Page 43529]]

either inside or outside of the United States, would be confusing and 
would not streamline the process.
    The Service believes that the commenters correctly identified a 
weakness in the proposal and has revised it accordingly. As mentioned 
earlier, the proposed split in filing between DOL and the Service has 
been amended to require employers to file all H-2A filings with DOL. 
DOL will also have authority to approve the H-2A petitions as well as 
issue labor certifications.
    Although all H-2A filings will now be made with DOL, the Service is 
retaining the authority over requests by individual aliens who are 
already present in the United States to change their status to H-2A or 
to extend their H-2A stay. As explained in a new proposed rule to 
accomplish this published elsewhere in this issue of the Federal 
Register, we are separating the determinations on change of status and 
extension of stay from the determination on the petition. DOL will 
forward to the Service the information from the joint application 
concerning an alien beneficiary in the United States in all cases where 
change of status or extension of stay is requested. The process will 
require that after the joint application (Form ETA-9079) is adjudicated 
by DOL, the Service's management information system would be updated 
with information indicating whether the labor certification 
application/petition was approved or denied. With this information, the 
Service can complete its adjudication of the extension of stay or 
change of status application (Form ETA-9079W) and notify the individual 
alien(s) of its determination.
    The worker and employer will benefit from complete one-stop filing 
because all forms and supporting documentation are submitted to a 
single agency. DOL will determine the correct processing routes needed 
for all pieces of the one-stop package. The Service will receive data 
from DOL and the Form(s) ETA-9079W (Named Alien Addendum) to 
adjudicate. The Service's determination(s) on the Addendum will be 
based upon the individual alien's eligibility and a final determination 
by DOL on the Form ETA-9079.

3. Countervailing Evidence

    As discussed in the proposed rule, the Service's role in most H-2A 
petition proceedings is limited. Most H-2A petitions are filed before 
the petitioner has identified, or named, the H-2A workers 
(beneficiaries). Currently, the Service's role is limited to a review 
of the determinations made by DOL that the job offer is for temporary 
or seasonal agricultural employment, that the petitioner is making a 
valid job offer, and that any liquidated damages from prior H-2A 
petition proceedings have been paid. Liquidated damages are assessed to 
an employer who fails to notify the Service of the departure of workers 
from the United States or when the employer cannot establish that 
workers have left the employment for other legal status. In cases with 
named beneficiaries, the Service judges the ability of the beneficiary 
to perform the needed services. Additionally, in rare cases, the 
Service reviews countervailing evidence on the availability of U.S. 
    Four commenters pointed out that the proposed rule was silent about 
the countervailing evidence procedure currently provided in 
regulations. Briefly, this procedure allows a petitioner to seek a 
review by the Service of DOL determination on the labor certification, 
if countervailing evidence can be produced to establish that U.S. 
workers are not in fact available to the petitioner. Only DOL 
determination concerning the availability of U.S. workers is reviewable 
by the Service. The Service rarely entertains countervailing evidence 
on H-2A petitions and almost universally follows the DOL determination 
because of DOL's expertise. Under this rule change, a separate review 
of this availability issue is no longer practical or necessary. Because 
DOL/Employment and Training Administration will be making the 
determination on the labor certification and petition concurrently, and 
a fresh review of these determinations is already provided for through 
appeal to DOL Office of Administrative Law Judges, an additional review 
is not useful and is removed from this rule.
    The Service is establishing a mechanism to notify DOL of any unpaid 
liquidated damage claims to enable DOL to judge this factor as part of 
the adjudication process. Finally, in instances in which the petitioner 
identifies named beneficiaries, DOL has the necessary expertise to 
review the documentation presented to establish that each beneficiary 
is qualified to perform the unskilled agricultural labor.

4. DOL Capabilities

    Five of the commenters objected to the proposal due to various 
concerns about the ability of DOL to perform its current functions in a 
timely fashion and to handle requests for expedited processing of 
problem cases. The Service believes that the consolidated new process 
is not highly complex and will allow concurrent adjudication of the 
petition with the labor certification. The additional determinations to 
be made by DOL will encompass whether the Service has notified DOL of a 
failure to pay liquidated damages and whether the worker has the 
qualifications to perform the stated services. The Service is providing 
training to DOL personnel on the issues considered by the Service under 
its present role in the H-2A petition process. The time savings for the 
average case under the new system should be at least 3 to 6 days, which 
is normally consumed by mail notification by DOL to the employer and 
the employer's filing by mail of the petition with the Service, in 
addition to the time needed to process the petition by the Service 
(normally 15 to 21 days). The additional work for DOL presented by the 
combined process should not adversely impact the H-2A process and 
should result in a combined reduction of 18 to 27 days in the time 
taken from initial filing with DOL to completion of petition processing 
by the Service under the current system.

5. Department of State Notification

    The proposed rule was silent on how DOL would notify the Department 
of State (DOS) of its determinations on the new combined application. 
One commenter was concerned that DOL is unfamiliar with the current 
notification process and that the process itself needed improvement. 
Currently, the Service mails the duplicate copy of the petition (Form 
I-129) to the consulate selected by the petitioner. Occasionally, when 
warranted, the Service notifies the consulate by telephone or telefax. 
The three agencies have now agreed that routine telefax notification 
from DOL to DOS will assist the efforts to streamline the H-2A process. 
The agencies are finalizing the internal details to ensure that these 
notifications are secure. This process should result in an additional 2 
to 5 day reduction in obtaining workers through the faster notification 
to DOS. DOL will notify the Service of approvals for any workers not 
requiring a visa for admission to the United States. Notification will 
be either to the port-of-entry or to the Nebraska Service Center for 
extension of stay or change of status cases.

6. Earlier Filing of H-2A Cases

    One commenter expressed a desire to be able to file a request for 
H-2As earlier than the current process permits to allow for 
determination before the current ``20-day notice in advance of need.'' 
DOL regulations currently encourage earlier filing of applications for 
labor certification. DOL has recently

[[Page 43530]]

reduced its minimum lead-time for submission of a labor certification 
request from 60 days to 45 days (64 FR 34958). This minimum is intended 
to assist employers by reducing the advance filing requirement to allow 
them to better determine the dates of need for the services to be 
performed. This also leaves sufficient time for DOL to make 
determinations at least 20 days in advance of the date of need for the 
workers. DOL regulations will still encourage earlier filing. However, 
DOL is only legally required to issue its determination 20 days in 
advance of the need and cannot guarantee an earlier issuance. Also, the 
combined process should realize large savings in time from initial 
filings to final notifications as previously described.

What Other Change Does This Rule Make?

    The Service is authorizing DOL to accept Form I-824, Application 
for Action on an Approved Application or Petition (or its equivalent), 
and to process the application when DOL has previously processed a 
request for temporary agricultural workers on the Service's behalf. The 
Form I-824 is used to request a change in notification to a consulate 
or port-of-entry after a petition has been approved. DOL will use an 
addendum to its proposed Form ETA-9079, which is the ETA-9079M, for 
this purpose.

What Is the Intended Effect of These Changes?

    This rule will provide a more streamlined procedure for the 
processing of temporary agricultural worker cases (H-2As) from initial 
submission seeking labor certification to notification of either DOS or 
the Service for issuance of a visa or status changes, respectively. It 
simplifies employers' points of contact with the Government by 
requiring all certification and petition filings to occur with the same 
agency. It also allows for simultaneous adjudication of DOL and the 
Service portions of the case. Finally, it provides these benefits to 
all employers needing H-2A workers.
    Currently, a number of employers seek labor certification from DOL 
but do not follow through by filing an H-2A petition with the Service. 
The Service and DOL believe that these cases represent situations where 
an employer was using the system as insurance against not obtaining 
adequate U.S. workers to perform the needed services. The new procedure 
will require all users of the H-2A process to file for both DOL and 
Service benefits.
    This rule is designed to benefit employers who do need to hire H-2A 
temporary workers to perform needed services, by providing ease of use 
and greatly shortened processing times. The new, streamlined one-stop 
filing procedure allows an employer to access the Government system in 
a simplified process that requires less burdensome paperwork and 
provides faster service.

Effective Date of This Rule

    We are publishing this as a delayed effective final rule to allow 
the Service and DOL time to establish the administrative systems needed 
to accomplish the electronic capture and transfer of data and funds 
between the agencies. Also, DOL needs to issue a notice of proposed 
rulemaking to modify its fee collection process and amount of the fee 
before the new H-2A process can begin. Delay is further justified to 
allow for clearance of the Form ETA-9079 joint application for labor 
certification issuance and petition approval. The Service is also 
making changes to the H-2A program in a new notice of proposed 
rulemaking included elsewhere in this issue of the Federal Register.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving 
it, certifies that this rule will not have a significant economic 
impact on a substantial number of small entities because the regulation 
is administrative in nature and merely transfers authority to make 
certain determinations to DOL. Moreover, it does not expand the 
existing process requirements. Finally, the rule does not involve an 
increase in fees.

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 were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. 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.

Executive Order 12866

    This rule is considered by the Department of Justice, Immigration 
and Naturalization Service, to be a ``significant regulatory action'' 
under section 3(f) of Executive Order 12866, Regulatory Planning and 
Review. Accordingly, this regulation has been submitted to the Office 
of Management and Budget for review.

Executive Order 13132

    The 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.

Executive Order 12988

    This rule meets the applicable standards set forth in section 3(a) 
and 3(b)(2) of Executive Order 12988: Civil Justice Reform.

Paperwork Reduction Act

    The information collection requirement addressed in this rule (Form 
I-129) has been previously approved for use by the Office of Management 
and Budget (OMB). The OMB control number for this collection is 
contained in 8 CFR 299.5, Display of control numbers.
    Instead of using Form I-129, H-2A petitioners who seek the services 
of foreign workers must complete Department of Labor Form ETA-9079, 
Application for Temporary Agricultural Labor Certification and H-2A 
Petition. The Form ETA-9079 will be submitted by the Department of 
Labor for OMB approval in accordance with the Paperwork Reduction Act. 
The effective date of this rule will be adjusted if necessary to make 
sure that it does not go into effect until that process has been 

[[Page 43531]]

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies).

8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, 
Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:


    1. The authority citation for part 103 continues to read as 

    Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252 
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 
15557, 3 CFR 1982 Comp., p. 166; 8 CFR part 2.

    2. Section 103.1 is amended by:
    a. Revising paragraph (f)(3)(iii)(J); and by
    b. Revising paragraph (f)(3)(iii)(W), to read as follows:

Sec. 103.1  Delegation of authority.

* * * * *
    (f) * * *
    (3) * * *
    (iii) * * *
    (J) Petitions for temporary workers or trainees and fiancees or 
fiances of U.S. citizens under Sec. 214.2 and Sec. 214.6 of this 
chapter, except petitions for temporary agricultural workers (H-2As), 
which are delegated to the Secretary of Labor.
* * * * *
    (W) Revoking approval of certain petitions, as provided in 
Sec. 214.2 and Sec. 214.6 of this chapter, except petitions for 
temporary agricultural workers (H-2As), which are delegated to the 
Secretary of Labor.
* * * * *
    3. Section 103.7(b)(1) is amended by adding the entry for ``Form 
ETA-9079'' immediately following ``Form EOIR-42'', to read as follows:

Sec. 103.7  Fees.

* * * * *
    (b) * * * (1) * * *
* * * * *
    Form ETA-9079. The fee for filing for a labor certification is 
designated in 20 CFR 655.100. The fee for filing the Service's 
petition portion of Form ETA-9079, to classify an agricultural 
worker as an H-2A nonimmigrant, is $110. The total fee will be the 
sum of DOL labor certification fee and the Service's fee. There is 
no additional fee if supplemental Form(s) ETA-9079W is filed with 
Form ETA-9079. A fee of $120 is required to file supplemental Form 
ETA-9079M (the equivalent to Form I-824).
* * * * *


    4. The authority citation for part 214 continues to read as 

    Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221, 
1281, 1282; 8 CFR part 2.

    5. Section 214.1 is amended by:
    a. Removing the reference to ``H-2A,'' from the first sentence in 
paragraph (c)(1); and by
    b. Adding a new sentence immediately after the first sentence in 
paragraph (c)(1) to read as follows:

Sec. 214.1  Requirements for admission, extension, and maintenance of 

* * * * *
    (c) * * *
    (1) * * * An employer seeking extension of services for an H-2A 
must petition on Form ETA-9079 and ETA-9079W and file with the 
Department of Labor. * * *
* * * * *

    6. Section 214.2 is amended by:
    a. Revising paragraphs (h)(2)(i)(A), (B), (D), and (E);
    b. Revising paragraphs (h)(2)(iii), (iv), and (v);
    c. Revising paragraphs (h)(5)(i)(A), (B), (C), and (D);
    d. Revising paragraph (h)(5)(ii);
    e. Revising paragraph (h)(5)(iv)(B);
    f. Revising paragraph (h)(5)(v);
    g. Revising paragraph (h)(5)(ix);
    h. Adding paragraph (h)(9)(i)(C);
    i. Revising paragraph (h)(9)(ii)(C);
    j. Revising paragraphs (h)(10)(ii) and (iii);
    k. Revising paragraph (h)(11)(i);
    l. Revising paragraph (h)(11)(ii);
    m. Revising paragraph (h)(11)(iii)(A) introductory text and 
paragraph (h)(11)(iii)(B);
    n. Revising paragraph (h)(12)(i);
    o. Revising paragraph (h)(13)(i)(A);
    p. Revising paragraph (h)(14);
    q. Revising paragraph (h)(16)(ii); and by
    r. Revising paragraph (h)(18), to read as follows:

Sec. 214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (h) * * *
    (2) * * *
    (i) * * *
    (A) General. Except as provided in this section, even in emergency 
situations, a United States employer seeking to classify an alien as an 
H-1B, H-2B, or H-3 temporary employee must file a petition on Form I-
129, Petition for Nonimmigrant Worker, with the service center which 
has jurisdiction in the area where the alien will perform services or 
receive training. A United States employer seeking to classify an alien 
as an H-2A worker must file a petition on Department of Labor (DOL) 
Form ETA-9079, Application for Temporary Agricultural Labor 
Certification and H-2A Petition, only with the DOL Regional 
Administrator having jurisdiction in the area where the alien will 
first perform services (see 20 CFR 655, Subpart B). All petitions for 
temporary workers, except petitions for temporary agricultural workers 
(H-2As), in Guam and the Virgin Islands, and petitions involving 
special filing situations as determined by Service Headquarters, must 
be filed with the local Service office or a designated Service office. 
Petitions for temporary agricultural workers (H-2A) in Guam and the 
Virgin Islands must be filed with the DOL Regional Administrator having 
jurisdiction. The petitioner may submit a legible photocopy of a 
document in support of the petition in lieu of the original document. 
However, the original document must be submitted if requested by the 
    (B) Service or training in more than one location. A petition that 
requires services to be performed or training to be received in more 
than one location must include an itinerary with the dates and 
locations of the services or training and must be filed with the 
Service office that has jurisdiction over petitions in the area where 
the petitioner is located, or in the case of H-2As, it must be filed 
with the DOL Regional Administrator having jurisdiction over the 
location where services will be performed first. The address that the 
petitioner specifies as its location on the petition must be where the 
petitioner is located for purposes of this paragraph.
* * * * *
    (D) Change of employers. (1) If the alien is in the United States 
and seeks to change employers, the prospective new employer (except in 
the case of H-2As) must file a petition on Form I-129, with the fee 
required in Sec. 103.7(b)(1) of this chapter, requesting classification 
and extension of the alien's stay in the United States. If the new 
petition is approved, the extension of stay may be granted for the 
validity of the approved petition. The validity of the petition and the 
alien's extension of stay must conform to the limits on the alien's 
temporary stay that are prescribed in paragraph (h)(13) of this 
section. The

[[Page 43532]]

alien is not authorized to begin the employment with the new petitioner 
until the petition is approved.
    (2) [Reserved]
    (3) An H-1A nonimmigrant alien may not change employers.
    (E) Amended or new petition. The petitioner must file an amended or 
new petition, with fee, with the Service Center or, in the case of H-2A 
workers, with the DOL Regional Administrator where the original 
petition was filed, to reflect any material changes in the terms and 
conditions of employment or training or the beneficiary's eligibility 
as specified in the original approved petition. An amended or new H-1A, 
H-1B, or H-2B petition must be accompanied by a current or new DOL 
determination. An H-2A petition must be filed with a valid labor 
certification or an application for the certification. In the case of 
an H-1B petition, this requirement includes a new labor condition 
* * * * *
    (iii) Named beneficiaries. Nonagricultural petitions must include 
the names of beneficiaries and other required information at the time 
of filing. Under the H-2B classification, exceptions may be granted in 
emergency situations involving multiple beneficiaries at the discretion 
of the Service Center Director, and in special filing situations as 
determined by the Service's Headquarters. If all of the beneficiaries 
covered by an H-2B labor certification have not been identified at the 
time a petition is filed, multiple petitions naming subsequent 
beneficiaries may be filed at different times with a copy of the same 
labor certification. Each petition must reference all previously filed 
petitions for that labor certification. An H-2A petition may contain 
both named and unnamed beneficiaries and must agree in total number of 
positions with the labor certification request. The H-2A petition does 
not need to agree in total number when seeking an extension of stay for 
H-2A beneficiaries in the United States.
    (iv) Substitution of beneficiaries. Beneficiaries may be 
substituted in H-2B petitions that are approved for a group, or H-2B 
petitions that are approved for unnamed beneficiaries, or approved H-2B 
petitions where the job offered to the alien(s) does not require any 
education, training, and/or experience. To request a substitution, the 
petitioner must, by letter and a copy of the petition approval notice, 
notify the consular office where the alien will apply for a visa or the 
port-of-entry where the alien will apply for admission. Where evidence 
of the qualifications of beneficiaries is required in petitions for 
unnamed beneficiaries, the petitioner must also submit such evidence to 
the consular office or port-of-entry prior to issuance of a visa or 
admission. (See paragraph (h)(5) of this section for substitution of H-
2A beneficiaries.)
    (v) H-2A petitions. Special criteria for admission, extension, 
maintenance of status, and substitution of beneficiaries apply to H-2A 
petitions and are specified in paragraph (h)(5) of this section. The 
other provisions of Sec. 214.2(h) apply to H-2A only to the extent that 
they do not conflict with the special agricultural provisions in 
paragraph (h)(5) of this section.
* * * * *
    (5) * * *
    (i) * * *
    (A) General. An H-2A petition must be filed on Form ETA-9079 with 
the DOL Regional Administrator having jurisdiction over the area of 
employment and be accompanied by the filing fee specified in 
Sec. 103.7(b)(1) of this chapter. An H-2A petition may be filed by 
either the employer listed on the certification application, the 
employer's agent, or the association of United States agricultural 
producers named as a joint employer on the certification application.
    (B) Multiple beneficiaries. The total number of beneficiaries of a 
petition must equal the number of workers indicated on the application 
for labor certification, except when the petitioner is seeking an 
extension of stay for H-2A beneficiaries in the United States. A 
petition can include more than one beneficiary even when all 
beneficiaries will not obtain a visa at the same consulate or are not 
required to have a visa and will not apply for admission at the same 
port-of-entry. A petition may also include beneficiaries seeking change 
of status or extension of stay.
    (C) Identification of beneficiaries. The sole beneficiary of an H-
2A petition must be named in the petition. All beneficiaries located in 
the United States must be named in the petition. The total number of 
unnamed beneficiaries must be shown on the petition. Names of 
beneficiaries located outside of the United States may be included on 
the petition, but are not required to be identified until application 
for visa issuance from the Department of State.
    (D) Evidence. An H-2A petitioner must show that the proposed 
employment qualifies as a basis for H-2A status, and that any named 
beneficiary satisfies any qualifications for that employment. A 
petition will be automatically denied if filed without the initial 
evidence required in paragraph (h)(5)(v) of this section for each named 
* * * * *
    (ii) Effect of the labor certification process. The temporary 
agricultural labor certification process determines whether employment 
is for a temporary or seasonal agricultural worker, whether it is open 
to U.S. workers, if qualified U.S. workers are available, the adverse 
impact of employment of a qualified alien, and whether employment 
conditions, including housing, meet applicable requirements. In 
petition proceedings, a petitioner must establish that the employment 
and beneficiary meet the requirements of paragraph (h)(5) of this 
* * * * *
    (iv) * * *
    (B) Effect of permanent labor certification application. Employment 
will be found not to be temporary or seasonal where an application for 
permanent labor certification has been filed for the same alien, or for 
another alien to be employed in the same position, by the same employer 
or by its parent, subsidiary or affiliate. This can be overcome only by 
the petitioner's demonstration that there will be at least a 6 month 
interruption of employment in the United States after H-2A status ends.
    (v) The beneficiary's qualifications--
    (A) Eligibility requirements. An H-2A petitioner must establish 
that any named beneficiary met the stated minimum requirements and was 
fully able to perform the stated duties when the application for 
certification was filed. It must be established at the time of 
application for an H-2A visa, or for admission if a visa is not 
required, that any unnamed beneficiary either met these requirements 
when the certification was applied for or passed any certified aptitude 
test at any time prior to visa issuance, or prior to admission if a 
visa is not required.
    (B) Initial evidence of employment/job training. A petition must be 
filed with evidence that at the time of filing the named beneficiary 
met the certification's minimum employment and job training 
requirements. Initial evidence must be in the form of the past 
employer's detailed statement or actual employment documents, such as 
company payroll or tax records. Alternately, a petitioner must show 
that such evidence cannot be obtained, and submit affidavits from 
people who worked with the beneficiary that demonstrate the claimed 

[[Page 43533]]

    (C) Initial evidence of education and other training. A petition 
must be filed with evidence that at the time of filing each named 
beneficiary met the certification's minimum post-secondary education 
and other formal training requirements. Initial evidence must be in the 
form of documents, issued by the relevant institution or organization, 
that show periods of attendance, majors, and degrees or certificates 
* * * * *
    (ix) Substitution of beneficiaries after admission. An H-2A 
petition may be filed with the DOL Regional Administrator to replace H-
2A workers whose employment was terminated early. The petition must be 
filed with a copy of the labor certification, a copy of the approval 
notice covering the workers for whom replacements are sought, and other 
evidence required by paragraph (h)(5)(i)(D) of this section. It must 
also be filed with a statement giving each terminated worker's name, 
date and country of birth, termination date, and evidence the worker 
has departed the United States. A petition for a replacement may not be 
approved when the requirements of paragraph (h)(5)(vi) of this section 
have not been met. A petition for replacements does not constitute the 
notice to the Service that an H-2A worker has absconded or has ended 
authorized employment more than 5 days before the relating 
certification expires.
* * * * *
    (9) * * *
    (i) * * *
    (C) For H-2As, the Department of Labor will issue a notice of 
petition approval as part of its notification of labor certification 
approval. The notice will conform with paragraph (h)(9)(i)(A) of this 
    (ii) * * *
    (C) If the period of services or training requested by the 
petitioner exceeds the limit specified in paragraph (h)(5)(vii), or 
(h)(9)(iii) of this section, the petition will be approved only up to 
the limit specified in that paragraph.
* * * * *
    (10) * * *
    (ii) Notice of intent to deny. When an adverse decision is proposed 
on the basis of derogatory information of which the petitioner is 
unaware, the director, or the DOL Regional Administrator in the case of 
H-2A petitions, must notify the petitioner of the intent to deny the 
petition and the basis for the denial. The petitioner may inspect and 
rebut the evidence and will be granted a period of 30 days from the 
date of the notice (7 days for H-2A petitions) in which to do so. All 
relevant rebuttal material will be considered in making a final 
    (iii) Notice of denial. The petitioner must be notified of the 
reasons for the petition denial, and of the right to appeal the denial 
of the petition under 8 CFR part 103, and in the case of H-2A 
petitions, under the rules established by DOL in 20 CFR 655, subpart B. 
There is no appeal from a decision to deny a change of status or an 
extension of stay to the alien.
    (11) * * *
    (i) General.
    (A) The petitioner must immediately notify the Service (or the DOL 
Regional Administrator for H-2As) of any changes in the terms and 
conditions of employment of a beneficiary that may affect eligibility 
under section 101(a)(15)(H) of the Act and paragraph (h) of this 
section. An amended petition on Form I-129, or on Form ETA-9079 in the 
case of H-2A workers, must be filed when the petitioner continues to 
employ the beneficiary. If the petitioner no longer employs the 
beneficiary, the petitioner must send a letter notifying the director 
or the Regional Administrator who approved the petition.
    (B) The director or the Regional Administrator who approved the 
petition may revoke a petition at any time, even after the expiration 
of the petition.
    (ii) Automatic revocation. The approval of any petition is 
automatically revoked if the petitioner goes out of business or files a 
written withdrawal of the petition. No notice to the petitioner is 
    (iii) * * *
    (A) Grounds for revocation. The director (or the DOL Regional 
Administrator in the case of H-2A workers) must send to the petitioner 
a notice of intent to revoke the petition, or relevant part of the 
petition, if he or she finds that:
* * * * *
    (B) Notice and decision. The notice of intent to revoke must 
contain a detailed statement of the grounds for the revocation and the 
time period allowed for the petitioner's rebuttal. The petitioner may 
submit evidence in rebuttal within 30 days of receipt of the notice. 
The director or the DOL Regional Administrator must consider all 
relevant evidence presented in deciding whether to revoke the petition 
in whole or in part. If the petition is revoked in part, the remainder 
of the petition must remain approved and a revised approval notice must 
be sent to the petitioner with the revocation notice.
    (12) * * *
    (i) Denial. A petition (other than an H-2A petition) denied in 
whole or in part by the Service may be appealed under 8 CFR part 103. 
In the case of an H-2A petition, the appeal must be filed with DOL 
concurrently with the appeal of the denial of a labor certification (or 
if the certification was not denied, within 30 days) under the rules 
established by DOL in 20 CFR 655 subpart B.
* * * * *
    (13) * * *
    (i) * * *
    (A) A beneficiary may be admitted to the United States for the 
validity period of the petition, plus a period of up to 10 days before 
the validity period begins and 10 days after the validity period ends. 
The beneficiary may not work except during the validity period of the 
petition. (See paragraph (h)(5)(viii) of this section for admission and 
limits on admission for H-2As.)
* * * * *
    (14) Extension of petition validity. Except with respect to H-2A 
petitions, the petitioner must file a request for a petition extension 
on Form I-129 to extend the validity of the original petition under 
section 101(a)(15)(H) of the Act. Supporting evidence is not required 
unless requested by the director. A request for a petition extension 
may be filed only if the validity of the original petition has not 
expired. (See paragraph (h)(5)(x) of this section for extension 
requirements for H-2A petitions.)
* * * * *
    (16) * * *
    (ii) H-2A, H-2B, and H-3 classification. The approval of a 
permanent labor certification, or the filing of a preference petition 
for an alien currently employed by or in a training position with the 
same petitioner, may be a reason, by itself, to deny a petition 
extension request and the alien's extension of stay.
* * * * *
    (18) Use of approval notice, Form I-797 and DOL notification. The 
Service must notify the petitioner on Form I-797 whenever a petition, 
an extension of a petition, or an alien's extension of stay is approved 
under the H classification (except with respect to H-2A). DOL must 
notify the petitioner as part of its certification notice whenever an 
H-2A petition or an extension of a petition is approved by a Regional 
Administrator. The beneficiary of an H petition who does not require a 
nonimmigrant visa may present a copy of the approval notice at a port-
of-entry to facilitate entry into the United States. A beneficiary who 
is required to present a

[[Page 43534]]

visa for admission and whose visa will have expired before the date of 
his or her intended return may use a copy of Form I-797 or DOL 
notification to apply for a new or revalidated visa during the validity 
period of the petition. The copy of Form I-797 or DOL notification must 
be retained by the beneficiary and presented during the validity period 
of the petition when re-entering the United States to resume the same 
employment with the same petitioner.
* * * * *

    Dated: July 5, 2000.
Janet Reno,
Attorney General.
[FR Doc. 00-17598 Filed 7-12-00; 8:45 am]