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[Federal Register: July 13, 2000 (Volume 65, Number 135)]
[Proposed Rules]               
[Page 43535-43537]
From the Federal Register Online via GPO Access []

[[Page 43535]]


Immigration and Naturalization Service

8 CFR Parts 103, 214, 248, and 264

[INS No. 2059-00]
RIN 1115-AF29

Procedures For Processing Temporary Agricultural Worker (H-2A) 
Petitions by the Secretary of Labor

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.


SUMMARY: This proposed rule will amend the Immigration and 
Naturalization Service (Service) regulations regarding the temporary 
agricultural worker (H-2A) program. The proposed rule requires alien 
workers to sign a petition request for change of status or extension of 
stay; provides that all petition requests including extension of stay 
and change of status petitions must be field with the Department of 
Labor (DOL); and provides that the current Service petition fee will be 
collected by DOL as a part of a combined fee. These changes will 
further streamline the H-2A petitioning process. (See the final rule 
published elsewhere in this issue of the Federal register in which the 
Attorney General has delegated the authority to adjudicate petitions 
for H-2A workers to the Secretary of Labor.)

DATES: Written comments must be submitted on or before August 14, 2000.

ADDRESSES: Please submit written comments, in triplicate, to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street, NW, Room 5307, Washington, DC 
20536. To ensure proper handling, please reference INS No. 2059-00 on 
your correspondence. Comments are available for public inspection at 
the above address by calling (202) 514-3048 to arrange for an 

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-2A workers.

What Changes Does This Rule Make?

    Under this proposed rule, the DOL would accept additional forms and 
fees associated with the H-2A program on the Service's behalf. The DOL 
would forward petitions requesting extension of stay or change of 
status to the Service for adjudication of those portions of the 
petitions. For example, the DOL would accept Service Forms I-102, 
Application for Replacement/Initial Nonimmigrant Arrival-Departure 
Document, and Froms I-539, Application to Extend/Change Nonimmigrant 
Status, that are filed concurrently with the DOL's Form ETA-9079. 
Service Forms I-102 are sometimes filed by H-2A workers or their 
dependents to replace a Form I-94, Arrival-Departure Record. Forms I-
539 are sometimes filed by accompanying dependents who need a change of 
nonimmigrant status or extension of stay to remain with the principal 
H-2A worker. The DOL would accept these forms and fees on the Service's 
behalf, and would forward them to the Service for adjudication after 
the ETA-9079 decision is made.

Are There Any Other Requirements Being Imposed?

    Yes, the proposed regulation requires an alien worker who seeks a 
change of status or extension of stay as an H-2A worker to sign the 
application for this purpose. This requirement demonstrates the alien's 
assent to his or her benefit request ensuring that the alien has taken 
the legal responsibility for the information entered on the form 
concerning the alien, and that the alien is a responsible party to the 
request for extension of stay or change of nonimmigrant status.

What About Short Term Extensions of Employment?

    Where an employer needs a short term extension of the employment 
period for up to 14 days, the existing procedure allows for the 
employer to obtain an extension of the petition authorization by filing 
a Form 1-129. The DOL provides an automatic co-extension of the 
underlying labor certification if the petition is approved. The 
proposed procedure provides that an automatic grace period of 14 days 
or the length of the labor certification if issued for less than 14 
days, be added to the validity date of the approved labor certification 
and petition if the H-2A petition is approved. No separate application 
or fee is required to receive this grace period. Any extension of the 
employer's need beyond the initially authorized period (which includes 
the grace period) requires that a petition and application for labor 
certification be filed with the DOL along with an application to extend 
the alien's temporary stay. The Service requests comments on this 

Is There Any Change in the Fee Required for the Service's Petition 
Portion of the H-2A Process?

    No; the Service will not change the fee requirement for the 
petition at this time. The current fee charged for the Form I-129 will 
be charged as part of the combined fee for the DOL's new Form ETA-9079 
($110 plus the DOL fee). The Service will collect no separate fee for 
the adjudication of changes of status or extensions of stay at this 
time. The Service does conduct periodic reviews of its fees in order to 
ensure that the cost to the Service for adjudication of benefit 
applications and petitions is recovered. These reviews are scheduled 
every 2 years. The existing fee will be reevaluated during those 
periodic reviews and adjusted accordingly.

Is There Any Change in the Requirement to Report Workers Who Depart 
Before Completing the Services Requested?

    The Service has required employers to report alien workers who 
abscond or leave their employment more than 5 days in advance of the 
completion of the stated employment period. The employer must make this 
report within 24 hours, and in order to avoid paying a liquidated 
damage, must establish that the worker departed from the United States 
or found other authorized status. The proposed rule requires this same 
reporting but specifies that the report be made to the Nebraska Service 
Center. This Center will handle all aspects of the H-2A process for the 
Service. The Service requires compliance with this reporting 
requirement in order to provide meaningful data on violations of the H-
2A employment program, and to help ensure that employers do everything 
possible to assist the Service in ensuring the departure of these 
workers from the United States.

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 of the 
following factors: The regulation is administrative in nature and 
merely transfers authority to make certain determinations to the DOL. 
It does not

[[Page 43536]]

expand the existing process requirements. The interim rule does not 
involve an increase in fees. The number of Form I-129 petitions filed 
in the past few years has ranged from 1,400 to 4,000.

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 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effective 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 Executive Order 12866, section 3(f), Regulatory Planning and 
Review. Accordingly, this regulation has been submitted to the Office 
of Management and Budget for review.

Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of poser and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 12132, it is determined tat this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary statement.

Executive Order 12988: Civil Justice Reform

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

List of Subjects

8 CFR Part 214

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

8 CFR Part 248

    Aliens, Reporting and recordkeeping requirements.

8 CFR Part 264

    Reporting and recordkeeping requirement.

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


    1. The authority citation for part 214 would continue to read as 

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

    Section 214.1 is amended by adding a new sentence at the end of 
paragraph (c) (2), to read as follows:

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

* * * * *
    (c) * * *
    (2) * * * A Form I-539 filed for dependents of an H-2A seeking 
extension(s) of stay must be filed along with the ETA-9079, and ETA-
9079W, with the Department of Labor.
* * * * *
    3. Section 214.2 is amended by:
    a. Adding paragraph (h)(2)(i)(D)(2);
    b. Revising paragraph (h)(5)(vi)(A);
    c. Revising paragraphs (h)(5)(vii) and (h)(5)(x);
    d. Revising paragraph (h)(9)(ii)(B);
    e. Revising the parenthetical phrase at the end of paragraph 
(h)(14); and by
    f. Revising paragraph (h)(15)(ii)(C), to read as follows:

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

* * * * *
    (h) * * *
    (2) * * *
    (i) * * *
    (D) * * *
    (2) A prospective new employer of H-2A workers must file a petition 
and a request for labor certification, if needed, on Form ETA-9079, 
with the appropriate fee specified in Sec. 103.7(b) (1) of this 
chapter. Each named beneficiary must sign an individual request for 
extension of stay, if extension of that individual's stay is required, 
on Form ETA-9079W (Named Alien Addendum), along with the employer's 
application to the DOL. The Service fee submitted with the Form ETA-
9079 includes processing of the petition for classification as an H-2A 
agricultural worker and for change(s) of nonimmigrant status to H-2A 
and extension(s) of stay. There is no separate direct fee for filing 
Form ETA-9079W (Named Alien Addendum) for change(s) of status and 
extension(s) of stay.
* * * * *
    (5) * * *
    (vi) Petition agreements--
    (A) Consent and liabilities. In filing an H-2A petition, a 
petitioner and each employer consents to allow the Government access to 
the site where the labor is being performed for the purpose of 
determining compliance with H-2A requirements. The petitioner further 
agrees to notify the Nebraska Service Center, by overnight delivery 
service or overnight mail within 24 hours, if an H-2A worker absconds, 
or if the authorized employment ends more than 5 days before the 
relating certification document expires, and to pay liquidated damages 
of $10 for each instance where the petitioner cannot demonstrate 
compliance with this notification requirement. The petitioner also 
agrees to pay liquidated damages of $200 for each instance where the 
petitioner cannot demonstrate that its H-2A worker either departed the 
United States or obtained other authorized status during the period of 
admission of within 5 calendar days of early termination that is based 
upon the expiration date of the labor certification, whichever comes 
* * * * *
    (vii) Validity. An approved H-2A petition is valid through the 
expiration of the relating certification, plus 14 days (or the length 
of the labor certification if less than 14 days), for the purpose of 
allowing a beneficiary to seek issuance of an H-2A nonimmigrant visa, 
admission, change of status, or an extension of stay for the purpose of 
engaging in the specific certified employment.
* * * * *
    (x) Petition extensions. All employers have received an automatic 
extension of an H-2A petition for 14 days (or the length of the labor 
certification if less than 14 days) as part of the initial approval. If 
the employer requests an extension beyond the initial petition 
validity, the employer must file a request for an H-2A petition 
extension with an application for an extension of a labor 
certification, with the DOL Regional Administrator on Form ETA-9079, 
including the fee specified in Sec. 103.7(b)(1) of this chapter. For

[[Page 43537]]

extensions of stay for individual beneficiaries, see paragraph (h)(15) 
of this section.
* * * * *
    (9) * * *
    (ii) * * *
    (B) If a new H petition is approved after the date the petitioner 
indicates that the services or training will begin, the approved 
petition and approval notice will show a validity period commencing 
with the date of approval and ending with the date requested by the 
petitioner, as long as that date does not exceed either the limits 
specified by paragraph (h)(5)(vii), or (h)(9)(iii) of this section, or 
other Service policy.
* * * * *
    (14) * * * (See paragraph (h)(5)(x) of this section for extension 
requirements for H-2A petitions.)
    (15) * * *
    (ii) * * *
    (C) H-2A or H-2B extension of stay. An extension of stay for an 
alien in H-2A status must be requested on Form ETA-9079W (Named Alien 
Addendum). It must be submitted concurrently with a petition filed by 
the employer on the alien's behalf with the DOL on Form ETA-9079. The 
DOL will forward the extension requests to the Nebraska Service Center 
for adjudication. An extension of stay for the beneficiary of an H-2A 
petition is included in the Form I-129 petition extension request. An 
extension of stay for the beneficiary of an H-2A or H-2B petition may 
be authorized for the validity of the labor certification and approved 
petition or for a period of up to 1 year, except as provided for in 
paragraph (h)(5)(x) of this section. The alien's total period of stay 
as an H-2A or H-2B worker may not exceed 3 years, except in the Virgin 
Islands where the alien's total period of stay may not exceed 45 days.
* * * * *


    4. The authority citation for part 248 continues to read as 

    Authority: 8 U.S.C. 1101, 1103, 1184, 1187, 1258; 8 CFR part 2.

    5. Section 248.3 is amended by:
    a. Removing the reference to ``H-2A,'' from the first sentence in 
paragraph (a);
    b. Revising the first sentence of paragraph (b);
    c. Adding a new sentence immediately after the first sentence of 
paragraph (b);
    d. Redesignating paragraph (c) as paragraph (d); and by
    e. Adding a new paragraph (c), to read as follows:

Sec. 248.3  Application.

* * * * *
    (b) * * * Any nonimmigrant, except an H-2A, who desires a change of 
status to any other nonimmigrant classification, other than those 
listed in paragraph (a) of this section, or to E-1 or E-2 
classification as the spouse or child of a principal E-1 or E-2, must 
apply for a change of status on Form I-539. A Form I-539 application 
filed by a dependent of an H-2A must be submitted along with the fee 
specified in Sec. 103.7(b)(1) of this chapter, to the Department of 
Labor if filed at the same time as an ETA-9079, or submitted to the 
Nebraska Service Center, if filed at any other time. * * *
    (c) Change of status on Form ETA-9079W. Any nonimmigrant seeking a 
change of status to H-2A must apply for that change on Form ETA-9079W. 
The application must be filed with the Form ETA-9079 filed by the 
prospective employer of the nonimmigrant. All Forms ETA 9079 and ETA 
9079W are submitted to the Department of Labor, along with the fee 
specified in Sec. 103.7(b)(1) of this chapter.
* * * * *


    6. The authority citation for part 264 continues to read as 

    Authority: 8 U.S.C. 1103, 1201, 1201a, 1301-1305.

    7. Section 264.6 is amended by adding a sentence at the end of 
paragraph (a) to read as follows:

Sec. 264.6  Application for an initial or replacement Form I-94, 
Nonimmigrant Arrival-Departure Document, or Form I-95, Crewmen's 
Landing Permit.

    (a) * * * An application filed by an H-2A or the dependent of an H-
2A must be submitted along with the fee specified in Sec. 103.7(b)(1) 
of this chapter, to the Department of Labor, if filed at the same time 
as an ETA-9079, or submitted to the Nebraska Service Center, if filed 
at any other time.
* * * * *

    Dated: June 9, 2000.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 00-17640 Filed 7-12-00; 8:45 am]