Delegation of the Adjudication of Certain H-2A Petitions to the Department of Labor

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS No. 1946-98; AG Order No. 2194-98]

RIN 1115-AF29

Delegation of the Adjudication of Certain H-2A Petitions to the

Department of Labor

AGENCY: Immigration and Naturalization Service, Department of Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the Immigration and Naturalization

Service's (Service) regulations by delegating to the United States

Department of Labor (DOL) the adjudication of certain petitions for

aliens coming temporarily to the United States to perform agricultural

labor or services (H-2A petition). The H-2A petitions affected by this

action would involve only petitions filed for initial H-2A employment

where the alien is not physically present in the United States and

petitions to replace H-2A workers who were terminated before the end of

their authorized stays with workers from outside the United States.

This rule would not affect the Service's authority to make

determinations at the port-of-entry of an alien's admissibility to the

United States or to adjudicate other petitions. The Service has

proposed these changes in order to streamline the existing H-2A

petitioning process for certain foreign agricultural workers, and the

proposals are intended to make it easier and less burdensome for United

States employers to file petitions for such workers.

DATES: Written comments must be submitted on or before February 5,

1999.

ADDRESSES: Please submit the original and two copies of written

comments to the Policy Directives and Instructions Branch, Immigration

and Naturalization Service, 425 I Street, N.W., Room 5307, Washington,

DC 20536. To ensure proper handling, please reference the INS No. 1946-

98 on 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, Programs Division, Immigration

and Naturalization Service, 425 I Street, N.W., Room 3214, Washington,

DC 20536, telephone (202) 514-4754.

SUPPLEMENTARY INFORMATION:

Background

What Is an H-2A Agricultural Worker?

Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act

(Act) defines an H-2A worker as an alien ``having a residence in a

foreign country which he has no intention of abandoning who is coming

temporarily to the United States to perform agricultural labor or

services * * * of a temporary or seasonal nature.'' 8 U.S.C.

1101(a)(15)(H)(ii)(a), 1188(i)(2).

What Is the Current Procedure for Hiring an H-2A Agriculture Worker?

Section 218 of the Act provides the statutory framework for the H-

2A nonimmigrant program. 8 U.S.C. 1188. The current procedures for

filing an H-2A petition to hire an alien to perform temporary or

seasonal agricultural labor or services are described at 8 CFR

214.2(h)(5). A United States employer that desires to hire an H-2A

agricultural worker must first obtain a labor certification from the

DOL. The procedures for obtaining a labor certification are contained

in the DOL regulations at 20 CFR part 655, subpart B. Briefly, the

prospective United States employer must establish, among other things,

that there are not sufficient available United States workers for the

position and that the employer will pay the foreign worker in

accordance with the regulations of the DOL and the United States

Department of Agriculture (USDA). If the United States employer and the

proposed employment of the H-2A worker meet all of the DOL

requirements, the DOL will issue a labor certification. If the

application for a labor certification is denied, an employer may obtain

review of the denial by an administrative law judge within the DOL.

After obtaining a labor certification from the DOL, the employer is

required to file a Form I-129, Petition for nonimmigration Worker, with

the Service. The Service reviews the Form I-129 and supporting

documentation and, if approved, forwards notice of the approved

petition to a consular post or port-of-entry. The foreign workers are

then identified and either apply for a nonimmigrant visa at a United

States consular post or for admission to the United States if exempt

from the nonimmigrant visa requirements. If an H-2A petition is denied

by the Service, the employer may appeal the denial of the petition to

the Administrative Appeals Office (AAO). See 8 CFR 103.3, 214.2(h)(12).

Why Is the Service Making These Changes?

The Administration, including the Department of State (DOS), the

DOL, the USDA, and the Service, has, for some time, been considering

possible changes to the H-2A program to help streamline it, improve its

operation, and address complaints by some users of the program, without

weakening the program's worker protections. The General Accounting

Office and the DOL's Office of Inspector General have recently

completed in-depth reviews of the H-2A program, providing useful

analysis and findings and making several recommendations for program

changes, many of which have been accepted by the administering

agencies. This rulemaking represents an attempt by the Service to

simplify the petitioning process for United States employers seeking to

employ foreign agricultural workers. The DOL published corresponding,

proposed regulations in the Federal Register on October 2, 1998, 63 FR

53244-53249.

The Service's current role in the adjudication of H-2A petitions

generally is limited to reviewing the Form I-129 filed by the United

States employer to determine if the job offered to the foreign worker

is temporary and if the United States employer has obtained a labor

certification from the DOL. Moreover, the labor certification issued by

the DOL is normally accepted by the Service as evidence that the

position is temporary and that the United States employer has met all

of the DOL's requirements with respect to the H-2A classification.

Although the Service currently is authorized to approve a H-2A petition

in spite of the DOL's denial of a labor certificate, it can

[[Page 67432]]

do so only if the petitioner overcomes the DOL's finding that qualified

domestic labor is available. 8 CFR 214.2(h)(5)(ii). The Service,

however, accords great weight to the DOL's findings and rarely

overturns them. In addition, most Form I-129 petitions are filed for

unnamed beneficiaries; the vast majority of United States employers,

due to the nature of the agricultural industry, identify only the

number of positions that they want to fill, not the names of the

specific foreign workers. The foreign workers are identified only after

the petition is approved by the Service and before visas are issued.

Thus, as a practical matter, the Service's role in the processing of H-

2A petitions for aliens outside of the United States generally is

limited to a review of the Form I-129 petition to determine if it is

accompanied by a labor certificate. Given its minimal role in this

process, the Service has determined that the interests in streamlining

the H-2A process outweigh those of retaining jurisdiction over the

adjudication of H-2A petitions filed on behalf of aliens outside of the

country.

Explanation of Changes

What Changes Are We Making to the Regulations?

The control of aliens admitted to the United States as

nonimmigrants is solely the responsibility of the Attorney General. 8

U.S.C. 1103(a). Under section 103(a)(6) of the Act, however, the

Attorney General has the authority ``to confer or impose upon any

employee of the United States * * * any of the powers, privileges, or

duties conferred or imposed by this Act or regulations issued

thereunder upon officers or employees of the Service.'' 8 U.S.C.

1103(a)(6). Pursuant to this section of the Act, the Attorney General

proposes to amend the Service's regulations by delegating to the

Secretary of Labor her authority to adjudicate H-2A petitions where the

beneficiary is not physically present in the United States.

This rule proposes to implement this delegation to the Secretary of

Labor by amending 8 CFR 214.2(h)(5)(i). The rule would further advise

potential United States employers to refer to the DOL regulations for

information regarding the filing requirements for petitions for H-2A

agricultural workers who are not physically present in the United

States.

This proposed rule also would amend 8 CFR 214.2(h)(5)(ix) to

delegate authority to the DOL to adjudicate a petition filed to replace

an H-2A worker whose employment has been terminated early with a worker

from outside of the United States. The Service, however, would retain

its authority to adjudicate petitions where the substitute worker is

physically present in the United States. The Service would also retain

authority to adjudicate extensions of stay and petitions filed in

connection with applications to change an alien's nonimmigrant status

to H-2A nonimmigrant status.

What Portions of the H-2A Program Are Not Being Changed by This Rule?

As noted above, the Service does not propose to delegate its

authority to adjudicate extensions of temporary stay and changes of

nonimmigrant status to an H-2A nonimmigrant. The Service proposes to

retain its authority in these two areas because the decisions to change

nonimmigrant status and to extend an alien's period of temporary stay

require complex determinations as to whether the alien is maintaining a

valid nonimmigrant status and is eligible for other benefits under the

Act. In addition, it would be burdensome on the DOL, whose mission does

not include direct control over aliens, to make these determinations.

For these reasons, the Service will not remove itself entirely from the

H-2A program, but will retain a certain amount of control over the

program in order to ensure that both the employer and the foreign

agricultural worker remain in compliance with the Act.

Under the proposed regulation, extensions of stay would continue to

be filed with the Service in accordance with 8 CFR 214.1 and 8 CFR

214.2(h)(15)(ii)(C). In addition, requests for a change of nonimmigrant

status to H-2A nonimmigrant classification would continue to be filed

with the Service pursuant to 8 CFR part 248. The Service also would

retain its authority to adjudicate petitions filed for a change of

United States employers under this proposed regulation.

The Service also intends to retain its right to adjudicate appeals

of denied H-2A petitions. See 8 CFR 103.3, 214.2(h)(12). Petitions

denied by the DOL would, therefore, continue to be appealed to the AAO.

In this regard, the proposed regulation clarifies that, as a condition

to delegation of authority, the DOL has agreed to provide notice to the

petitioner of the reasons for denial and of the right to appeal to the

AAO. The Service's retention of its appeal authority ensures that

United States employers can obtain an independent, second-agency review

of a petition denied by the DOL. This is not to be confused with the

DOL's decision with respect to an application for a labor

certification. Under this proposed rule, the DOL will be rendering two

decisions, one on the application for a labor certification and one on

the H-2A petition itself. Appeals from the denial of a labor

certification will continue to be handled by the DOL.

The Service also intends to retain its authority, described in 8

CFR 214.2(h)(11), to revoke an H-2A petition approved by the DOL.

This proposed rule also would not alter the petitioner's

responsibilities, set forth in 8 CFR 214.2(h)(5)(vi), to notify the

Service if an H-2A alien absconds or the alien's employment ends more

than 5 days before the labor certification expires. Similarly, the

proposed rule would not change the provisions in 8 CFR 214.2(h)(5)(vi)

requiring the petitioner to pay liquidated damages for violating its

notification obligations. Further, this proposed rule would not alter 8

CFR 214.2(h)(5)(viii), which sets forth the period of an H-2A

nonimmigrant admission to the United States.

In addition, the delegation of the authority to adjudicate certain

H-2A petitions would not, in any way, affect the Service's

responsibilities with respect to the employer sanctions provisions

contained at 8 CFR part 274a, including the limitation that an H-2A

worker may be employed only by the petitioning employer, as described

at 8 CFR 274a.12(b)(9).

This rule also would not delegate authority to make determinations

of admissibility to the United States. The Service would retain sole

authority to make such determinations at the time an alien makes an

application for admission at a designated port-of-entry. The delegation

in this rule would only involve the approval of petitions for H-2A

nonimmigrant classification. The H-2A workers would still be required

to obtain a nonimmigrant visa abroad, where applicable, and make

application for admission to the United States.

Finally, the Service will continue to issue Form I-94, Arrival-

Departure Record, to the foreign worker at the time the alien is

admitted to the United States. The Service will also continue to issue

replacement Form I-94s.

What Is the Effect of These Proposed Changes?

These proposed changes will make it easier for United States

employers to file petitions for H-2A agricultural workers located

outside of the United States. Under this proposed rule, these employers

generally will be required to file petition-related documents with only

one agency--the DOL--instead of the current two agencies. This proposed

change should shorten the time required for these employers to obtain

the

[[Page 67433]]

services of H-2A workers located outside of the United States because

it generally will remove the Service from the H-2A petition approval

process, thereby eliminating the time and mailing costs associated with

the submission of the petition package to the Service.

What Issues Will Remain After These Proposed Changes Are Made?

The adoption of the changes proposed in this rule will create a

number of issues to be resolved among the Service, the DOL, and the

DOS. These issues will require further discussion between the agencies

and, possibly, further rulemaking. An example of one such issue is

whether the DOL should use the Service's Form I-129 or create its own

form to capture the information required to determine eligibility for

the H-2A classification. Another issue is whether, if the DOL devises

its own form, it should gather the same information that the Service

currently captures on Form I-129. A further example is the issue of how

to notify consular posts and ports-of-entry after a petition is

approved. In this regard, the DOL could continue to use the Service's

Form I-797, Notice of Action, or devise another mechanism to notify the

appropriate parties of its actions. The Service, the DOL, and the DOS

will continue to discuss and to work collaboratively on these issues,

and others, as they arise in order to determine the best procedures to

implement the delegation described in this rule. Such procedures will

be addressed by the agencies in their respective regulations through

the rulemaking process.

What Types of Comments Does the Service Wish to Receive From the

Public?

In addition to comments directly addressing the changes proposed in

this rule, the Service would appreciate comments from the public on

other pertinent issues associated with this proposed delegation of

authority. The Service does not wish to adopt changes that would have

an adverse impact on the users of the H-2A program.

Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility

Act (5 U.S.C. 605(b)), has reviewed this rule and, by approving it,

certifies that the rule will not have a significant economic impact on

a substantial number of small entities. The Service is issuing this

rule to reduce the impact on small entities that petition for

agricultural workers who are not physically present in the United

States. This change is intended to reduce the amount of time required

to petition for an H-2A worker and should ease the paperwork burden on

prospective United States employers.

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

1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by 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 to be a

``significant regulatory action'' under section 3(f) of Executive Order

12866, Regulatory Planning and Review. Accordingly, this rule has been

submitted to the Office of Management and Budget for review.

Executive Order 12612

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 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 Executive Order 12988.

List of Subjects in 8 CFR Part 214

Administrative practice and procedures, Aliens, Employment,

Reporting and recordkeeping requirements.

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

Federal Regulations is proposed to be amended as follows:

PART 214--NONIMMIGRANT CLASSES

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:

a. Removing the reference to ``H-2A,'' from the first sentence in

paragraph (h)(2)(i)(A);

b. Revising paragraph (h)(5)(i);

c. Revising paragraph (h)(5)(ix); and by

d. Revising paragraph (h)(10)(iii) to read as follows:

Sec. 214.2 Special requirements for admission, extension, and

maintenance of status.

* * * * *

(h) * * *

(5) * * *

(i) Petition for alien to perform agricultural labor or services of

a temporary or seasonal nature (H-2A)--(A) Filing a petition on behalf

of an alien who is not physically present in the United States.

Pursuant to section 103 of the Act, the Attorney General has delegated

the authority to adjudicate H-2A petitions where the beneficiary is

outside of the United States to the Secretary of Labor. Therefore, an

H-2A petition for a foreign agricultural worker who is not physically

present in the United States shall be filed with the United States

Department of Labor pursuant to its regulations at 20 CFR part 655,

subpart B.

(B) H-2A petitions filed for an alien who is in the United States

or for a change of nonimmigrant status to an H-2A nonimmigrant alien.--

(1) General. An H-2A petition filed by a United States employer for an

alien currently in the United States, or an H-2A petition requesting a

change of an alien's nonimmigrant status to that of an H-2A

nonimmigrant alien, must be filed with the Service on Form I-129. The

petition must be filed with a single valid temporary agricultural labor

certification. However, if a certification is denied, domestic labor

subsequently fails to appear at the worksite, and the Department of

Labor denies an appeal under section 218(e)(2) of the Act, the written

denial of appeal shall be considered a certification for this purpose

if filed with evidence that establishes that qualified domestic labor

is unavailable. An H-2A petition may

[[Page 67434]]

be filed by either the employer listed on the certification, the

employer's agent, or the association of United States agricultural

producers named as a joint employer on the certification.

(2) Multiple beneficiaries not present in the United States. The

total number of beneficiaries of a petition or series of petitions

based on the same certification may not exceed the number of workers

indicated on that document. A single petition can include more than one

beneficiary if the total number does not exceed the number of positions

indicated on the relating certification, and all beneficiaries will

obtain a visa at the same consulate or not required to have a visa and

will apply for admission at the same port-of-entry.

(3) Unnamed beneficiaries not present in the United States. The

sole beneficiary of an H-2A petition must be named in the petition. In

a petition for multiple beneficiaries, each beneficiary must be named

unless he or she is not named in the certification and is outside the

United States. Unnamed beneficiaries must be shown on the petition by

total number.

(4) Evidence supporting H-2A petitions filed with the Service. An

H-2A petitioner must show that the proposed employment qualifies as a

basis for H-2A status, and that any named beneficiary qualifies for

that employment. A petition will be automatically denied if filed

without the certification evidence required in paragraph

(h)(5)(i)(B)(1) of this section and, for each named beneficiary,

without the initial evidence required in paragraph (h)(5)(v) of this

section.

(5) Special filing requirements for H-2A petitions filed with the

Service. Where a certification shows joint employers, a petition must

be filed with an attachment showing that each employer has agreed to

the conditions of H-2A eligibility. A petition filed by an agent must

be filed with an attachment in which the employer has authorized the

agent to act on its behalf, has assumed full responsibility for all

representations made by the agent on its behalf, and has agreed to the

conditions of H-2A eligibility.

(C) Petitions for H-2A nonimmigrant aliens requesting an extension

of temporary stay. An H-2A petition requesting an extension of the

beneficiary's temporary stay shall be filed on Form I-129 with the

Service pursuant to paragraph (h)(15)(ii)(C) of this section.

* * * * *

(ix) Substitution of beneficiaries who are terminated prior to the

completion of their authorized stay in H-2A classification. An H-2A

petition may be filed to replace an H-2A worker whose employment has

been terminated prior to the completion of the alien's authorized stay.

In cases where the worker replacing the terminated H-2A worker is

located outside the United States, the authority to adjudicate the H-2A

petition is delegated to the Department of Labor. In such cases, the

petition must be filed pursuant to the Department of Labor's

regulations at 20 CFR part 655, subpart B. In cases where the worker

who will replace the terminated H-2A worker is physically present in

the United States, the H-2A petition for the substitute worker must be

filed with the Service.

* * * * *

(10 * * *

(iii) Notice of denial. The petitioner shall be notified of the

reasons for the denial and of his or her right to appeal the denial of

the petition under 8 CFR part 103. In cases where the Department of

Labor has adjudicated an H-2A petition, the Department of Labor will

notify the petitioner of the reasons for the denial and of his or her

right to file an appeal with the Administrative Appeals Office pursuant

to 8 CFR part 103. There is no appeal from a decision to deny an

extension of stay to the alien.

* * * * *

Dated: December 1, 1998.

Janet Reno,

Attorney General.

[FR Doc. 98-32396 Filed 12-4-98; 8:45 am]

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