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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: December 18, 2008 (Volume 73, Number 244)]
[Notices]               
[Page 77047-77049]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de08-77]                         

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

DEPARTMENT OF HOMELAND SECURITY

U.S. Citizenship and Immigration Services

U.S. Customs and Border Protection

U.S. Immigration and Customs Enforcement

[CIS No. 2461-08; DHS Docket No. USCIS-2008-0065]
RIN 1615-ZA75

 
H-2A Petitioner's Employment-Related or Fee-Related Notification

AGENCY: U.S. Citizenship and Immigration Services, U.S. Customs and 
Border Protection, U.S. Immigration and Customs Enforcement, DHS.

ACTION: Notice.

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

SUMMARY: This Notice announces the manner in which petitioners must 
notify U.S. Citizenship and Immigration Services regarding their 
employment of agricultural workers in H-2A nonimmigrant status or job 
placement fee information. These procedures are necessary to enable 
petitioners to comply with the notification requirements established by 
the Department of Homeland Security's regulations governing the H-2A 
nonimmigrant classification.

DATES: This Notice is effective January 17, 2009.

FOR FURTHER INFORMATION CONTACT:
    USCIS: Hiroko Witherow, Service Center Operations, U.S. Citizenship 
and Immigration Services, Department of Homeland Security, 20 
Massachusetts Avenue, NW., Washington, DC 20529, telephone (202) 272-
8410.
    USICE: Joe Jeronimo, National Program Manager, U.S. Immigration and 
Customs Enforcement, Department of Homeland Security, 500 12th Street,

[[Page 77048]]

SW., Washington, DC 20024, telephone (202) 732-3978.
    USCBP: Bruce Ingalls, Chief, Debt Management Branch, U.S. Customs 
and Border Protection, Revenue Division, Attn: H-2 Team, Suite 100, 
6650 Telecom Drive, Indianapolis, IN 46278, telephone (317) 298-1307.

SUPPLEMENTARY INFORMATION:

I. Background

    The H-2A nonimmigrant classification applies to alien workers 
seeking to perform agricultural labor or services of a temporary or 
seasonal nature in the United States on a temporary basis. Immigration 
and Nationality Act (INA) sec. 101(a)(15)(H)(ii)(a), 8 U.S.C. 
1101(a)(15)(H)(ii)(a); see 8 CFR 214.1(a)(2) (H-2A classification 
designation). Aliens seeking H-2A nonimmigrant status must be 
petitioned for by a U.S. employer. However, prior to filing the 
petition, the U.S. employer must complete a temporary agricultural 
labor certification process with the Department of Labor (DOL) for the 
job opening the employer seeks to fill with an H-2A worker. After 
receiving a temporary labor certification, the U.S. employer files Form 
I-129, ``Petition for Nonimmigrant Worker,'' with the appropriate USCIS 
office. See 8 CFR 214.2(h)(5)(i)(A). Once a petition has been granted, 
the regulations impose additional responsibilities on such H-2A 
petitioners. These responsibilities include notifying DHS of certain 
occurrences related to their H-2A workers, as discussed below.

A. Employment-Related Notifications

    The regulations require H-2A petitioners to provide notification to 
DHS within 2 work days in the following instances:
     When an H-2A worker fails to report to work within 5 work 
days of the employment start date on the H-2A petition or within 5 work 
days of the start date established by the petitioner, whichever is 
later;
     When the agricultural labor or services for which H-2A 
workers were hired is completed more than 30 days early; or
     When the H-2A worker absconds from the worksite or is 
terminated prior to the completion of agricultural labor or services 
for which he or she was hired.

    8 CFR 214.2(h)(5)(vi)(B). The regulations also require that 
petitioners retain evidence of the notification filed with DHS for a 
one-year period beginning from the date of the notification. 8 CFR 
214.2(h)(5)(vi)(B)(2). Those petitioners that use a different 
employment start date than the start date stated on the H-2A petition 
must retain evidence of the changed start date and make such evidence 
available for inspection by DHS officers for a one-year period 
beginning on the newly established employment start date. Id. An H-2A 
petitioner that fails to meet these requirements is subject to 
liquidated damages in the amount of $10. 8 CFR 214.2(h)(5)(vi)(B)(3).

B. Fee-Related Notifications

    The regulations provide petitioners with the opportunity to avoid 
denial or revocation (on notice) of their H-2A petition if they notify 
DHS regarding information they obtained following the filing of their 
H-2A petition concerning the beneficiary's payment or agreement to pay 
a fee or compensation in connection to any facilitator, recruiter, or 
similar employment service as a condition of obtaining the H-2A 
employment. 8 CFR 214.2(h)(5)(xi)(A)(4). The regulations prohibit such 
payments and agreements. 8 CFR 214.2(h)(5)(xi)(A). Notification of a 
beneficiary's payment or agreement to pay the prohibited fees must be 
made within 2 workdays of gaining such knowledge. 8 CFR 
214.2(h)(5)(xi)(A)(4).
    This Notice specifies the manner in which H-2A petitioners must 
file employment-related and fee-related notifications with DHS in order 
to comply with the regulations. 8 CFR 214.2(h)(5)(vi)(B) and 8 CFR 
214.2(h)(5)(xii)(A)(4).

II. Employment-Related Notifications

A. Filing Notifications

    This Notice announces that beginning on January 17, 2009, H-2A 
petitioners must provide employment-related notifications to USCIS 
within 2 workdays of an event specified in 8 CFR 214.2(h)(5)(vi)(B). 
The petitioner must include the following information in the 
notification.
    (1) The reason for the notification;
    (2) The reason for untimely notification and evidence for good 
cause, if applicable;
    (3) The USCIS receipt number of the approved H-2A petition;
    (4) The petitioner's name, address, telephone number, and employer 
identification number (EIN);
    (5) The employer's name, address, and telephone number, if it is 
different from that of the petitioner;
    (6) The name of the H-2A worker in question;
    (7) The date and place of birth of the H-2A worker in question; and
    (8) The last known physical address and telephone number of the H-
2A worker in question.
    USCIS acknowledges that where an H-2A petitioner is reporting the 
failure of an H-2A worker to report to work within the prescribed time 
frame, petitioners may not know the names of H-2A workers who fail to 
report to the employment site if the workers are unnamed beneficiaries 
of the H-2A petition. In such cases, USCIS requires the petitioner to 
supply only the number of workers who failed to report to work within 
the prescribed time frame instead of such workers' names, dates of 
birth, and places of birth.
    USCIS encourages the petitioner to submit notification 
electronically by e-mail. However, USCIS realizes that in certain 
instances electronic notification may not be possible or feasible for 
the H-2A petitioner. Accordingly, the following two methods for 
notification are acceptable. Notification by mail must be postmarked 
before the end of the 2 workday reporting window.
    By e-mail: CSC-X.H-2AAbs@dhs.gov.
    By mail: California Service Center, Attn: Div X/BCU ACD, P.O. Box 
30050, Laguna Niguel, CA 92607-3004.

B. Failure To Comply With the Requirements

    In cases where an H-2A petitioner makes an admission of an untimely 
notification (for example, a notification letter admitting that the 
notification is being sent after the close of the 2 workdays window), 
USCIS will make a determination of liability for liquidated damages. 
Untimely notification must be accompanied by evidence of good cause. 
Failure to notify timely may be excused in the discretion of USCIS if 
it is demonstrated that the delay was due to extraordinary 
circumstances beyond the control of the H-2A petitioner, and USCIS 
finds the delay commensurate with the circumstances. If the H-2A 
petitioner fails to demonstrate good cause for failure to make a timely 
notification, USCIS will communicate liability for liquidated damages 
to the H-2A petitioner and inform the petitioner that it will receive a 
demand letter for payment directly from U.S. Customs and Border 
Protection (CBP). H-2A petitioners must not send checks to USCIS when 
sending untimely notifications.
    In any situation where U.S. Immigration and Customs Enforcement 
(ICE) uncovers evidence of liability for H-2A liquidated damages in the 
course of its investigatory work, ICE will make a determination of 
liability. ICE will provide the petitioner with written notice of non-
compliance as well as the

[[Page 77049]]

petitioner's liability for liquidated damages. If the petitioner wishes 
to contest the allegations set forth in the notice of non-compliance, 
written notice must be received by ICE within 30 days of receipt of the 
notice of non-compliance. 8 CFR 214.2(h)(5)(vi)(C). If the petitioner 
fails to contest the finding of non-compliance, or the petitioner's 
response fails to raise an issue of material fact, ICE will communicate 
liability for liquidated damages to the H-2A petitioner and inform the 
petitioner that it will receive a demand letter for payment for 
liquidated damages directly from CBP.
    CBP will collect all liquidated damage payments. The CBP demand 
letter will specify the manner in which payment must be made.

III. Fee-Related Notifications

    This Notice announces that on January 17, 2009, H-2A petitioners 
may begin filing fee-related notifications to USCIS pursuant to 8 CFR 
214.2(h)(5)(xi)(A)(4). The notification must include the following 
information:
    (1) The USCIS receipt number of the H-2A petition;
    (2) The petitioner's name, address, and telephone number;
    (3) The employer's name, address, and telephone number, if it is 
different from that of the petitioner; and the
    (4) Name and address of the facilitator, recruiter, or placement 
service to which alien beneficiaries paid or agreed to pay the 
prohibited fees.
    As previously stated, USCIS encourages the petitioner to submit 
notification electronically by e-mail. However, USCIS realizes that in 
certain instances, electronic notification may not be possible or 
feasible for the H-2A petitioner. Accordingly, the following two 
methods for notification are acceptable. Notification by mail must be 
postmarked before the end of the 2 workday reporting window.
    By e-mail: CSC.H2AFee@dhs.gov.
    By mail: California Service Center, P.O. Box 10695, Laguna Niguel, 
CA 92607-1095.

IV. Paperwork Reduction Act

    This Notice sets forth the procedures for H-2A petitioners to 
notify USCIS when:
     An H-2A worker fails to report to work within 5 workdays 
of the employment start date on the H-2A petition or within 5 workdays 
of the start date established by the petitioner, whichever is later;
     When the agricultural labor or services for which H-2A 
workers were hired is completed more than 30 days early; or
     When the H-2A worker absconds from the worksite or is 
terminated prior to the completion of agricultural labor or services 
for which he or she was hired.

H-2A petitioners must retain evidence of any such notification sent to 
USCIS, as well as evidence of an employment start date if different 
from the start date stated on the H-2A petition, for a one-year period.
    This Notice further provides the procedures for H-2A petitioners to 
notify USCIS, after an H-2A petition has been filed, within 2 work days 
of learning that an H-2A alien worker paid a fee or other compensation 
to a facilitator, recruiter, or similar employment service as a 
condition of obtaining the H-2A employment.
    These notification requirements are considered information 
collections covered under the Paperwork Reduction Act (PRA).
    Since implementation will begin 30 days from the date of 
publication of this notice in the Federal Register, this new 
information collection has been submitted and approved by OMB under the 
emergency review and clearance procedures covered under the PRA. USCIS 
is requesting comments on this new information collection no later than 
January 17, 2009. When submitting comments on the information 
collection, your comments should address one or more of the following 
four points:
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the agency, including whether the information 
will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of the information on 
those who are to respond, including through the use of any and all 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology, e.g., 
permitting electronic submission of responses.
Overview of Information Collection
    a. Type of information collection: New information collection.
    b. Title of Form/Collection: H-2A's Petitioners Employment-Related 
or Fee-Related Notification
    c. Agency form number, if any, and the applicable component of the 
Department of Homeland Security sponsoring the collection: No form 
number. U.S. Citizenship and Immigration Services.
    d.  Affected public who will be asked or required to respond, as 
well as a brief abstract: Individuals or Households. This information 
collection is necessary to provide employment related or fee related 
notification by an H-2A petitioner.
    e. An estimate of the total number of respondents and the amount of 
time estimated for an average respondent to respond: 1,000 respondents 
at .50 (30 minutes) per response.
    f. An estimate of the total of public burden (in hours) associated 
with the collection: Approximately 500 burden hours.
    All comments and suggestions or questions regarding additional 
information should be directed to the Department of Homeland Security, 
U.S. Citizenship and Immigration Services, Regulatory Management 
Division, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 
20529, Attention: Chief, 202-272-8377.

Paul A. Schneider,
Deputy Secretary.
 [FR Doc. E8-29786 Filed 12-17-08; 8:45 am]
BILLING CODE 9117-97-P



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