Tracking Usage of the H-1B and H-2B Nonimmigrant Classifications

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS 1805-96]

RIN 1115-AC72

Tracking Usage of the H-1B and H-2B Nonimmigrant Classifications

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the Immigration and Naturalization

Service's (Service) regulations by explaining in detail the new method

by which the Service tracks the number of H-1B and H-2B petitions

approved in a fiscal year and by removing incorrect references in the

regulation regarding the tracking mechanism. This rule was written in

response to a number of queries from the public asking how the Service

determines which H-1B and H-2B petitions are included in the count.

This rule will alleviate much of the confusion regarding the Service's

method of counting H-1B and H-2B petitions.

DATES: Written comments must be submitted on or before March 2, 1998.

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 the INS number 1805-

96 in your correspondence. Comments are available for public inspection

at the above address by calling (202) 514-3048 to arrange for an

appointment.

FOR FURTHER INFORMATION CONTACT:

John W. Brown, Adjudications Officer, Adjudications Division,

Immigration and Naturalization Service, 425 I Street, NW., Room 3214,

Washington, DC 20536, telephone (202) 514-3240.

SUPPLEMENTARY INFORMATION: The Immigration Act of 1990 (IMMACT), among

other things, imposed a 65,000 annual numerical limitation on the

number of aliens who may be granted H-1B visas or accorded such status

in a fiscal year and a 66,000 annual numerical limitation on the number

of aliens who may be accorded H-2B status. The Service agreed to track

the number of aliens accorded H-1B and H-2B status since the Department

of State, the agency which issues nonimmigrant visa's to aliens, has no

centralized database to track visa issuance. Further, an H-1B or H-2B

visa may not be issued to an alien without the Service first approving

Form I-129, Petition for Nonimmigrant Worker, in the alien's behalf

and, in addition, some H-1B and H-2B nonimmigrant aliens are not

required to obtain a nonimmigrant visa.

The Service published a final rule in the Federal Register on

December 2, 1991, at 56 FR 61111, in which the present tracking system

was implemented. In the preamble to the rule, the Service advised that

the numerical limitations would apply to new H-1B and H-2B petitions

only and that petitions filed for extensions of stay would not be

counted, since the alien beneficiary of the extended petition had

previously been accorded H status. It was also stated in the preamble

to the final rule that the Service would count petitions for concurrent

employment, i.e., where a beneficiary holds two H-1B or H-2B positions

at the same time, and petitions for sequential employment, i.e., where

the beneficiary assumes one H-1B or H-2B position after another in the

same fiscal year, in the cap. As stated in the preamble to the final

rule published in December 1991, the reason for adopting this procedure

was efficiency.

The Service has recently had reason to revisit its procedures for

tracing the usage of H petitions in general, and the H-1B category in

particular. On August 21, 1996, a preliminary report indicated that,

under the tracking system then in place, the Service had approved in

excess of 65,000 H-1B petitions for fiscal year 1996. While attempting

to verify the validity of the preliminary count, the Service made a

number of observations which culminated in the publication of this

proposed rule.

The most significant observation that the Service made with respect

to its current tracking system was that, by counting concurrent

employment and sequential employment, it was actually counting

positions, and not aliens. The Service has reconsidered its prior

procedure and no longer counts either sequential or concurrent

employment in the same fiscal year towards the numerical limitations.

The numerical limitations would now relate solely to individuals

regardless of the number of H-1B or H-2B positions such persons hold.

This proposed rule would amend the regulation at 8 CFR

214.2(h)(8)(ii)(A) to reflect this change. The Service has made

available on a quarterly basis the usage of H-1B/H-2B numbers. The

Service intends to continue this practice.

Approved H-1B and H-2B petitions which are subsequently revoked by

the Service will not be counted in the numerical limitation. The

Service will run a periodic report containing the number of revoked

petitions and adjust the numerical count accordingly. In view of this,

petitioners are encouraged to notify the Service as soon as they learn

that the beneficiary of an H-1B or H-2B petition does not intend to

accept the petitioner's offer of employment.

This rule also proposes to amend the regulation at 8 CFR

214.2(h)(8)(ii)(B) and (D) which makes reference to the ``system which

maintains and assigns numbers,'' since the regulatory language is not

accurate. When this regulation was initially drafted, the Service had

envisioned developing and designing a system which would count each

petition which it approved and assign each petition a number. This

system was never developed. Instead, the Service tracks the number of

H-1B and H-2B petitions which it approves through its Computer-Linked

Application Information Management System (CLAIMS) database. The

terminology contained in the current rule implies that a petition is

assigned a number upon approval. This is inaccurate. Instead, the

Service runs periodic reports which count the number of petitions

approved for the fiscal year without assigning a petition an actual

number. There is no system which keeps a running count of approved H-1B

and H-2B petitions.

This rule also proposes to remove the paragraph at 8 CFR

214.2(h)(8)(ii)(C) which makes reference to assigning numbers to

petitions filed in Guam and the United States Virgin Islands. Since

these petitions are counted in the same fashion as H petitions filed in

the continental United States, the paragraph serves no purpose.

Finally, this rule proposes to amend the regulation at 8 CFR

214.2(h)(8)(ii)(E) and to redesignate it as 8 CFR 214.2(h)(8)(ii)(D).

The regulation currently provides that, in the event that the numerical

limitation is reached in a fiscal year, the Service shall reject any

new petitions which are filed with a notice that numbers are not

available until the next fiscal year. This proposed rule modifies the

regulatory language by enabling the Service to adopt a different

procedure in the event that rejecting petitions is determined not to be

the most appropriate action for the Service to undertake. For example,

in the situation where the numerical limitation is reached near the end

of the fiscal year, it would not seem prudent to reject an H-1B

petition or H-2B petition filed for that fiscal year since this

procedure could create unnecessary work for the Service and an

unnecessary hardship on petitioners in certain situations. The Service

will notify the public through

[[Page 67765]]

the publication of a notice in the Federal Register of any such

procedure should such a situation arise.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in

accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has

reviewed this regulation and, by approving it, certifies that the rule

will not have a significant economic impact on a substantial number of

small entities. This regulation merely explains the system which the

Service currently uses to track the number of H-1B petition approved in

a given fiscal year.

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 one 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

1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule in 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 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 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 12612

The regulation proposed herein 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 12612, it is determined that this rule

does not have sufficient Federalism implications to warrant the

preparation of a Federalism Assessment.

Executive Order 12988--Civil Justice Reform

This rule meets the applicable standards set forth in sections 3(a)

and 3(b)(2) of E.O. 12988.

List of Subjects in 8 CFR Part 214

Administrative practice and procedure, Aliens, Employment,

Reporting and recordkeeping requirements.

Accordingly, part 214 of chapter I of title 8 of the Code of

Federal Regulation is proposed to be amended as follows:

PART 214--NONIMMIGRANT GLASSES

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

follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,

1281, 1282; 8 CFR part 2.

2. Section 214.2 is amended by revising paragraph (h)(8)(ii) to

read as follows:

Sec. 214.2 Special requirements for admission, extension, and

maintenance of status.

* * * * *

(h) * * *

(8) * * *

(ii) Procedures. (A) Each alien issued a visa or otherwise provided

nonimmigrant status under section 101(a)(15)(H)(i)(b) or (ii)(b) of the

Act shall be counted for purposes of the numerical limit prescribed in

section 214(g)(1) of the Act. Requests for petition extension or an

extension of the alien's stay, concurrent employment, or sequential

employment within the same fiscal year shall not be counted against the

numerical limit. The spouse and children of principal aliens classified

as H-4 nonimmigrant aliens shall not be counted against the numerical

limit.

(B) An alien will be counted against the annual H-1B or H-2B

numerical limit only after an H-1B or H-2B petition has been approved

on his or her behalf. An alien will be counted in the order by which

the H-1B or H-2B petition has been approved on his or her behalf. An

alien on whose behalf an H-1B or H-2B petition has been denied will not

be counted against the annual numerical limit.

(C) When an approved petition is not used because the

beneficiary(ies) does not obtain H-1B or H-2B classification, the

petitioner shall notify the Service Center Director who approved the

petition that the petition was not used as soon as the petitioner

becomes aware of the circumstance. The petition shall be revoked

pursuant to paragraph (h)(11)(ii) of this section.

(D) If the total numbers available in a fiscal year are used, the

Service may reject and return the petition and the accompanying fee

with a notice that numbers are not available for the nonimmigrant

classification until the next fiscal year. The Service, may, in its

discretion, adopt other mechanisms for processing petitions filed after

the numerical limit has been reached in order to prevent unnecessary

hardship to the public. The Service shall provide notice of such new

mechanisms through publication in the Federal Register.

* * * * *

Dated: October 21, 1997.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 97-33827 Filed 12-29-97; 8:45 am]

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