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[Federal Register: September 28, 2001 (Volume 66, Number 189)]
[Rules and Regulations]               
[Page 49514]
From the Federal Register Online via GPO Access []

[[Page 49514]]


Immigration and Naturalization Service

8 CFR Parts 103 and 214

[INS 1946-98]
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; delay of effective date.
SUMMARY: The Immigration and Naturalization Service (Service) is 
delaying, for the second time, the effective date of a final rule 
previously published in the Federal Register on July 13, 2000, at 65 FR 
43528-43534, which delegated the adjudication of certain petitions for 
agricultural workers (H-2A) to the United States Department of Labor 
(DOL). This action is necessary to allow additional time for the DOL to 
effectively implement the delegation of authority, develop new systems 
and procedures, and to train and brief members of the effected public 
and the employment and training community in the new systems and 

DATES: The effective date for the regulation published on July 13, 
2000, at 65 FR 43528-43534, amending 8 CFR Parts 103 and 214, which was 
delayed from November 13, 2000, until October 1, 2001, by regulation 
published in the Federal Register on November 13, 2000, at 65 FR 67616-
67617, is further delayed until October 1, 2002.

FOR FURTHER INFORMATION CONTACT: John W. Brown, Adjudications Officer, 
Business and Trade Services Branch, Adjudications Division, Immigration 
and Naturalization Service, 425 I Street NW., Room 3214, Washington, DC 
20536, telephone (202) 353-8177.


Rulemaking Delegating H-2A Authority to DOL and First Extension

    On July 13, 2000, the Service published in the Federal Register at 
65 FR 43528-43534 a final rule (INS No. 1946-98) delegating to the DOL 
the authority to adjudicate certain H-2A petitions for the temporary 
employment of nonimmigrant aliens in agriculture in the United States. 
The final rule, which amended 8 CFR parts 103 and 214, was to take 
effect on November 13, 2000.
    Also on July 13, 2000, the DOL published a final rule at 65 FR 
43538 with an effective date of November 13, 2000, implementing the 
above-mentioned delegation of authority from the Service to the DOL.
    On November 13, 2000, the Service at 65 FR 67616 published a final 
rule; and DOL at 65 FR 67628 published an interim final rule delaying 
the effective date of their respective July 13, 2000, H-2A rules until 
October 1, 2001.

Rulemaking Regarding Procedures for Processing H-2A Petitions

    On July 13, 2000, and concurrently with the H-2A delegation of 
authority rule (INS No. 1946-98), the Service published a proposed rule 
for comment (INS No. 2059-00) proposing among other things, that all 
petition requests, extensions of stay, and change of status petitions 
must be filed with DOL and that the current Service petition fee would 
be collected by DOL as part of the combined fee.
    Concurrently with publication of INS No. 2059-00, the DOL published 
at 65 FR 43545 a companion notice of proposed rulemaking (NPRM) setting 
forth implementation measures necessary for the successful 
implementation of the delegation of authority to adjudicate 
    \1\ Among the DOL implementation measures was a new form, Form 
ETA 9079, Application for Alien Employment Certification and H-2A 
Petition, which consolidated two current forms, Form ETA 750, 
Application for Alien Employment Certification, and Service Form I-
129, Petition for Nonimmigrant Workers. The NPRM also set forth the 
implementation of a new fee schedule to collect a combined fee for 
processing the petition and labor certification application. It is 
contemplated that under the administrative procedures developed by 
the Service and the Employment and Training Administration to 
implement the delegation of the petition authority from the Service 
to the DOL, the DOL will collect the petition fee on behalf of the 
Service and will be reimbursed by the Service for the costs involved 
in processing the H-2A petition.
    On August 17, 2000, at 65 FR 50166 the Service reopened and 
extended the comment period for INS No. 2059-00. Also on August 17, 
2000, at 65 FR 50170 the DOL reopened and extended the comment period 
on its NPRM that is a companion to INS No. 2059-00.

Additional Information Needed Before H-2A Delegation Rules Can Be 

    Commenters raised a number of issues about the proposed rules. The 
comments received by the DOL as a result of the August 17, 2000, 
reopening and extension of the proposed rule did not provide sufficient 
information to permit the DOL to draft a final rule. As a result, the 
DOL has decided to reopen and extend the comment period on its proposed 
rule published at 65 FR 43545 (July 13, 2000). In addition, DOL intends 
to hold informal briefings to obtain additional information necessary 
to address the concerns of commenters and resolve a number of issues 
raised during the initial comment period on its proposed rule.
    Finalizing both the Service and DOL proposed rules is essential to 
the effective implementation of the Service delegation of authority to 
the DOL to adjudicate petitions for temporary employment of 
nonimmigrant aliens in the United States. Allowing the Service's final 
rule to become effective without finalizing the action on the proposed 
rule published by the DOL would lead to administrative uncertainty and 
result in confusion on the part of employers, agricultural workers, and 
other interested parties. In response to DOL's intended actions to 
reopen and extend the comment period on the July 13, 2000, proposed 
rule and their additional plans to hold informal briefings, the Service 
has concluded that it is necessary to delay the effective date of the 
final rule until the rulemaking on the DOL companion proposal is 
completed. Therefore, the Service is delaying the effective date of the 
July 13, 2000, final rule until October 1, 2002.

    Dated: September 25, 2001.
James W. Ziglar,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 01-24331 Filed 9-25-01; 2:04 pm]