Exercise of Time-Limited Authority To Increase the Fiscal Year 2017 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program, 32987-33000 [2017-15208]
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Rules and Regulations
Federal Register
Vol. 82, No. 137
Wednesday, July 19, 2017
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
DEPARTMENT OF HOMELAND
SECURITY
8 CFR Part 214
[CIS No. 2605–17; DHS Docket No. USCIS–
2017–0004]
RIN 1615–AC12
DEPARTMENT OF LABOR
Employment and Training
Administration Wage and Hour
Division
FOR FURTHER INFORMATION CONTACT:
Regarding 8 CFR part 214: Kevin J.
Cummings, Chief, Business and Foreign
Workers Division, Office of Policy and
Strategy, U.S. Citizenship and
Immigration Services, Department of
Homeland Security, 20 Massachusetts
Ave NW., Suite 1100, Washington, DC
20529–2120, telephone (202) 272–8377
(not a toll-free call). Regarding 20 CFR
part 655: William W. Thompson, II,
Administrator, Office of Foreign Labor
Certification, Employment and Training
Administration, Department of Labor,
Box #12–200, 200 Constitution Ave.
NW., Washington, DC 20210, telephone
(202) 513–7350 (this is not a toll-free
number).
Individuals with hearing or speech
impairments may access the telephone
numbers above via TTY by calling the
toll-free Federal Information Relay
Service at 1–877–889–5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
20 CFR Part 655
Table of Contents
[DOL Docket No. 2017–0003]
I. Background
A. Legal Framework
B. H–2B Numerical Limitations Under the
INA
C. FY 2017 Omnibus
D. Joint Issuance of the Final Rule
II. Discussion
A. Statutory Determination
B. Numerical Increase of Up to 15,000
C. Business Need Standard—Irreparable
Harm
D. DHS Petition Procedures
E. DOL Procedures
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Small Business Regulatory Enforcement
Fairness Act of 1996
E. Executive Orders 12866 (Regulatory
Planning and Review) and 13563
(Improving Regulation and Regulatory
Review), and 13771 (Reducing
Regulation and Controlling Regulatory
Costs)
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice
Reform)
H. National Environmental Policy Act
I. Paperwork Reduction Act
RIN 1205–AB84
Exercise of Time-Limited Authority To
Increase the Fiscal Year 2017
Numerical Limitation for the H–2B
Temporary Nonagricultural Worker
Program
U.S. Citizenship and
Immigration Services, Department of
Homeland Security and Employment
and Training Administration and Wage
and Hour Division, Department of
Labor.
ACTION: Temporary rule.
AGENCY:
The Secretary of Homeland
Security (‘‘Secretary’’), in consultation
with the Secretary of Labor, has decided
to increase the numerical limitation on
H–2B nonimmigrant visas to authorize
the issuance of up to an additional
15,000 through the end of Fiscal Year
(FY) 2017. This is a one-time increase
based on a time-limited statutory
authority and does not affect the H–2B
program in future fiscal years. The
Departments are promulgating
regulations to implement this
determination.
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SUMMARY:
This final rule is effective from
July 19, 2017 through September 30,
2017, except for the addition of 20 CFR
655.65, which is effective from July 19,
2017 through September 30, 2020.
DATES:
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I. Background
A. Legal Framework
The Immigration and Nationality Act
(INA) establishes the H–2B
nonimmigrant classification for a
nonagricultural temporary worker
‘‘having a residence in a foreign country
which he has no intention of
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abandoning who is coming temporarily
to the United States to perform . . .
temporary [non-agricultural] service or
labor if unemployed persons capable of
performing such service or labor cannot
be found in this country.’’ INA section
101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b). Employers must
petition DHS for classification of
prospective temporary workers as H–2B
nonimmigrants. INA section 214(c)(1), 8
U.S.C. 1184(c)(1). DHS must approve
this petition before the beneficiary can
be considered eligible for an H–2B visa.
Finally, the INA requires that ‘‘[t]he
question of importing any alien as [an
H–2B] nonimmigrant . . . in any
specific case or specific cases shall be
determined by [DHS],1 after
consultation with appropriate agencies
of the Government.’’ INA section
214(c)(1), 8 U.S.C. 1184(c)(1).
DHS regulations provide that an H–2B
petition for temporary employment in
the United States must be accompanied
by an approved temporary labor
certification (TLC) from DOL. 8 CFR
214.2(h)(6)(iii)(A) & (C), (iv)(A). The
TLC serves as DHS’s consultation with
DOL with respect to whether a qualified
U.S. worker is available to fill the
petitioning H–2B employer’s job
opportunity and whether a foreign
worker’s employment in the job
opportunity will adversely affect the
wages or working conditions of
similarly employed U.S. workers. See
INA section 214(c)(1), 8 U.S.C.
1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and
(D).
The Departments have established
regulatory procedures under which DOL
certifies whether a qualified U.S. worker
is available to fill the job opportunity
described in the employer’s petition for
a temporary nonagricultural worker, and
whether a foreign worker’s employment
in the job opportunity will adversely
affect the wages or working conditions
of similarly employed U.S. workers. See
1 As of March 1, 2003, in accordance with section
1517 of Title XV of the Homeland Security Act of
2002 (HSA), Public Law 107–296, 116 Stat. 2135,
any reference to the Attorney General in a provision
of the Immigration and Nationality Act describing
functions which were transferred from the Attorney
General or other Department of Justice official to the
Department of Homeland Security by the HSA
‘‘shall be deemed to refer to the Secretary’’ of
Homeland Security. See 6 U.S.C. 557 (2003)
(codifying HSA, Title XV, § 1517); 6 U.S.C. 542
note; 8 U.S.C. 1551 note.
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20 CFR part 655, subpart A. The
regulations establish the process by
which employers obtain a TLC, and the
rights and obligations of workers and
employers.
The INA also authorizes DHS to
impose appropriate remedies against an
employer for a substantial failure to
meet the terms and conditions of
employing an H–2B nonimmigrant
worker, or for a willful
misrepresentation of a material fact in a
petition for an H–2B nonimmigrant
worker. INA section 214(c)(14)(A), 8
U.S.C. 1184(c)(14)(A). The INA
expressly authorizes DHS to delegate
certain enforcement authority to DOL.
INA section 214(c)(14)(B), 8 U.S.C.
1184(c)(14)(B). DHS has delegated this
authority to DOL. See DHS, Delegation
of Authority to DOL under Section
214(c)(14)(A) of the Immigration and
Nationality Act (Jan. 16, 2009); see also
8 CFR 214.2(h)(6)(ix) (stating that DOL
may investigate employers to enforce
compliance with the conditions of,
among other things, an H–2B petition
and a DOL-approved TLC). This
enforcement authority has been
delegated within DOL to the Wage and
Hour Division, and is governed by
regulations at 29 CFR part 503.
B. H–2B Numerical Limitations Under
the INA
The INA sets the annual number of
aliens who may be issued H–2B visas or
otherwise provided H–2B nonimmigrant
status to perform temporary
nonagricultural work at 66,000, to be
distributed semi-annually beginning in
October and in April. See INA sections
214(g)(1)(B) and 214(g)(10), 8 U.S.C.
1184(g)(1)(B) and 8 U.S.C. 1184(g)(10).
Up to 33,000 aliens may be issued H–
2B visas or provided H–2B
nonimmigrant status in the first half of
a fiscal year, and the remaining annual
allocation will be available for
employers seeking to hire H–2B workers
during the second half of the fiscal
year.2 If insufficient petitions are
approved to use all H–2B numbers in a
given fiscal year, the unused numbers
cannot be carried over for petition
approvals in the next fiscal year.
Because of the intense competition for
H–2B visas in recent years, the semiannual visa allocation, and the
regulatory requirement that employers
apply for labor certification 75 to 90
days before the start date of work,3
employers who wish to obtain visas for
2 The Federal Government’s fiscal year runs from
October 1 of the budget’s prior year through
September 30 of the year being described. For
example, fiscal year 2017 is from October 1, 2016
through September 30, 2017.
3 20 CFR 655.15(b).
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their workers under the semi-annual
allotment must act early to receive a
TLC and file a petition with USCIS. As
a result, DOL typically sees a significant
spike in TLC applications for H–2B
visas for temporary or seasonal jobs
during the U.S.’s warm weather months.
For example, in FY 2017, from
Applications for Temporary Labor
Certification filed in January, DOL’s
Office of Foreign Labor Certification
(OFLC) certified 54,827 worker
positions for start dates of work on April
1, in excess of the entire semi-annual
visa allocation. USCIS received
sufficient H–2B petitions to meet the
second half of the fiscal year regular cap
on March 13, 2017. This was the earliest
date that the cap was reached in a
respective fiscal year since FY 2009 and
reflects an ongoing trend of high
program demand, as further represented
by the FY 2016 reauthorization of the
returning worker cap exemption and by
section 543 of the Consolidated
Appropriations Act, 2017, Public Law
115–31 (FY 2017 Omnibus), which is
discussed below.
C. FY 2017 Omnibus
On May 5, 2017, the President signed
the FY 2017 Omnibus, which contains
a provision (section 543 of division F,
hereinafter ‘‘section 543’’) permitting
the Secretary of Homeland Security,
under certain circumstances and after
consultation with the Secretary of
Labor, to increase the number of H–2B
visas available to U.S. employers,
notwithstanding the otherwise
established statutory numerical
limitation. Specifically, section 543
provides that ‘‘the Secretary of
Homeland Security, after consultation
with the Secretary of Labor, and upon
the determination that the needs of
American businesses cannot be satisfied
in [FY] 2017 with U.S. workers who are
willing, qualified, and able to perform
temporary nonagricultural labor,’’ may
increase the total number of aliens who
may receive an H–2B visa in FY 2017
by not more than the highest number of
H–2B nonimmigrants who participated
in the H–2B returning worker program
in any fiscal year in which returning
workers were exempt from the H–2B
numerical limitation.4 This rule
implements the authority contained in
section 543.
4 The highest number of returning workers in any
such fiscal year was 64,716, which represents the
number of beneficiaries covered by H–2B returning
worker petitions that were approved for FY 2007.
DHS also considered using an alternative approach,
under which DHS measured the number of H–2B
returning workers admitted at the ports of entry
(66,792 for FY 2007).
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D. Joint Issuance of the Final Rule
The Departments have determined
that it is appropriate to issue this final
rule jointly. This determination is
related to ongoing litigation following
conflicting court decisions concerning
DOL’s authority to independently issue
legislative rules to carry out its
consultative function pertaining to the
H–2B program under the INA.5
Although DHS and DOL each have
authority to independently issue rules
implementing their respective duties
under the H–2B program, the
Departments are implementing section
543 in this manner to ensure there can
be no question about the authority
underlying the administration and
enforcement of the temporary cap
increase. This approach is consistent
with recent rules implementing DOL’s
general consultative role under section
214(c)(1) of the INA, 8 U.S.C. 1184(c)(1).
See also 8 CFR 214.2(h)(6)(iv).6
II. Discussion
A. Statutory Determination
Following consultation with the
Secretary of Labor, the Secretary of
Homeland Security has determined that
the needs of some American businesses
cannot be satisfied in FY 2017 with U.S.
workers who are willing, qualified, and
able to perform temporary
nonagricultural labor. In accordance
with the FY 2017 Omnibus, the
Secretary of Homeland Security has
determined that it is appropriate, for the
reasons stated below, to raise the
numerical limitation on H–2B
nonimmigrant visas by up to an
additional 15,000 for the remainder of
the fiscal year. Consistent with such
authority, the Secretary of Homeland
Security has decided to increase the H–
2B cap for FY 2017 by up to 15,000
additional visas for those American
businesses that attest to a level of need
such that, if they do not receive all of
the workers under the cap increase, they
are likely to suffer irreparable harm, i.e.,
suffer a permanent and severe financial
loss. These businesses must attest that
they will likely suffer irreparable harm
and must retain documentation, as
5 See Temporary Non-Agricultural Employment
of H–2B Aliens in the United States, 80 FR 24042
(Apr. 29, 2015) (codified at 8 CFR part 214, 20 CFR
part 655, and 29 CFR part 503).
6 On April 29, 2015, following a court’s vacatur
of nearly all of DOL’s H–2B regulations, Perez v.
Perez, No. 14–cv–682 (N.D. Fla. Mar. 4, 2015), the
Departments jointly promulgated an interim final
rule governing DOL’s role in enforcing the statutory
and regulatory rights and obligations applicable to
employment under the H–2B program. See
Temporary Non-Agricultural Employment of H–2B
Aliens in the United States, 80 FR 24042 (Apr. 29,
2015) (codified at 8 CFR part 214, 20 CFR part 655,
and 29 CFR part 503).
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described below, supporting this
attestation.
The Secretary of Homeland Security’s
determination to increase the numerical
limitation is based on the conclusion
that some businesses face closing their
doors in the absence of a cap increase.
Some stakeholders have reported that
access to additional H–2B visas is
essential to the continued viability of
some small businesses that play an
important role in sustaining the
economy in their states, while others
have stated that an increase is
unnecessary and raises the possibility of
abuse.7 The Secretary of Homeland
Security has deemed it appropriate,
notwithstanding such risk of abuse, to
take immediate action to avoid
irreparable harm to businesses; such
harm would in turn result in wage and
job losses by their U.S. workers, and
other adverse downstream economic
effects.8
The decision to direct the benefits of
this one-time cap increase to businesses
that need workers to avoid irreparable
harm, rather than directing the cap
increase to any and all businesses
seeking temporary workers, is consistent
with the Secretary’s broad discretion
under section 543. Section 543 provides
that the Secretary, upon satisfaction of
the statutory business need standard,
may increase the numerical limitation to
meet such need.9 The scope of the
assessment called for by the statute is
7 Other stakeholders have reported abuses of the
H–2B program. For example, the Government
Accountability Office, has recommended increased
worker protections in the H–2B program based on
certain abuses of the program by unscrupulous
employers and recruiters. See U.S. Government
Accountability Office, H–2A and H–2B Visa
Programs: Increased Protections Needed for Foreign
Workers, GAO–15–154 (Washington DC, revised
2017), https://www.gao.gov/assets/690/684985.pdf;
U.S. Government Accountability Office, H–2B Visa
Program: Closed Civil Criminal Cases Illustrate
Instances of H–2B Workers Being Targets of Fraud
and Abuse, GAO–10–1053 (Washington DC, 2010),
https://www.gao.gov/assets/320/310640.pdf; see also
Testimony of Stephen G. Bronars, The Impact of the
H–2B Program on the U.S. Labor Market, before the
Senate Subcommittee on Immigration and the
National Interest (June 8, 2016), https://
www.judiciary.senate.gov/imo/media/doc/06-0816BronarsTestimony.pdf. Preliminary Analysis of
the Economic Impact of the H–2B Worker Program
on Virginia’s Economy, Thomas J. Murray (Sept.
2011), https://web.vims.edu/GreyLit/VIMS/mrr1112.pdf.
8 See Randel K. Johnson & Tamar Jacoby, U.S.
Chamber of Commerce & ImmigrationWorks USA,
The Economics of the H–2B Program (Oct. 28,
2010), available at https://www.uschamber.com/
sites/default/files/documents/files/16102_LABR
%2520H2BReport_LR.pdf. (last visited June 22,
2017).
9 DHS believes it is reasonable to infer that
Congress intended, in enacting the FY 2017
Omnibus, to authorize the Secretary to allocate any
new H–2B visas authorized under section 543 to the
entities with the ‘‘business need’’ that serves as the
basis for the increase.
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quite broad, and accordingly delegates
the Secretary broad discretion to
identify the business needs he finds
most relevant. Within that context, DHS
has determined to focus on the
businesses with the most permanent,
severe potential losses, for the below
reasons.
First, DHS interprets section 543’s
reference to ‘‘the needs of American
businesses’’ as describing a need
different than the need required of
employers in petitioning for an H–2B
worker.10 If the term ‘‘needs’’ in section
543 referred to the same business need
entailed under the existing H–2B
program, it would not have been
necessary for Congress to reference such
need, because Congress could have
relied on existing statute and
regulations. Alternatively, Congress
could have made explicit reference to
such statute and regulations.
Accordingly, DHS interprets this
authority as authorizing DHS to address
relatively heightened business need,
beyond the existing requirements of the
H–2B program. DOL concurs in this
interpretation.
Second, this approach limits the onetime increase in a way that is responsive
to stakeholders who, citing potential
adverse impacts on U.S. workers from a
general cap increase applicable to all
potential employers, sought
opportunities for more formal input and
analysis prior to such an increase.
Although the calendar does not lend
itself to such additional efforts, the
Secretary has determined that in the
unique circumstances presented here, it
is appropriate to tailor the availability of
this temporary cap increase to those
businesses likely to suffer irreparable
harm, i.e., those facing permanent and
severe financial loss.
Under this rule, employers must also
meet, among other requirements, the
generally applicable requirements that
insufficient qualified U.S. workers are
available to fill the petitioning H–2B
employer’s job opportunity and that the
foreign worker’s employment in the job
opportunity will not adversely affect the
wages or working conditions of
similarly employed U.S. workers. INA
section 214(c)(1), 8 U.S.C. 1184(c)(1); 8
CFR 214.2(h)(6)(iii)(A) and (D); 20 CFR
655.1. To meet this standard, in order to
be eligible for additional visas under
this rule, employers must have a valid
TLC in accordance with 8 CFR
214.2(h)(6)(iv)(A) and (D), and 20 CFR
655 subpart A. Under DOL’s H–2B
10 A petitioning employer must demonstrate that
it has a temporary need for the services or labor for
which it seeks to hire H–2B workers. See 8 CFR
214.2(h)(6)(ii); 20 CFR 655.6.
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regulations, TLCs expire on the last day
of authorized employment. 20 CFR
655.55(a). Therefore, in order to have an
unexpired TLC, the date on the
employer’s visa petition must not be
later than the last day of authorized
employment on the TLC. This rule also
requires an additional recruitment for
certain petitioners, as discussed below.
Accordingly, this rule increases the
FY 2017 numerical limitation by up to
15,000 to ensure a sufficient number of
visas to meet the level of demand in
past years, but also restricts the
availability of such visas by prioritizing
only the most significant business
needs. These provisions are each
described in turn below.
B. Numerical Increase of Up to 15,000
DHS expects the increase of up to
15,000 visas 11 to be sufficient to meet
at least the same amount of need as the
H–2B program met in FY 2016. Section
543 of the FY 2017 Omnibus sets as the
maximum limit for any increase in the
H–2B numerical limitation for FY 2017,
the highest number of H–2B returning
workers 12 who were exempt from the
cap in previous years. Consistent with
the statute’s reference to H–2B returning
workers, in determining the appropriate
number by which to increase the H–2B
numerical limitation, the Secretary
focused on the number of visas
allocated to returning workers in years
in which Congress enacted ‘‘returning
11 In contrast with section 214(g)(1) of the INA,
8 U.S.C. 1184(g)(1), which establishes a cap on the
number of individuals who may be issued visas or
otherwise provided H–2B status, and section
214(g)(10) of the INA, 8 U.S.C. 1184(g)(10), which
imposes a first half of the fiscal year cap on H–2B
issuance with respect to the number of individuals
who may be issued visas or are accorded [H–2B]
status’’ (emphasis added), section 543 only
authorizes DHS to increase the number of available
H–2B visas. Accordingly, DHS will not permit
individuals authorized for H–2B status pursuant to
an H–2B petition approved under section 543 to
change to H–2B status from another nonimmigrant
status. See INA section 248, 8 U.S.C. 1258; see also
8 CFR pt. 248. If a petitioner files a petition seeking
H–2B workers in accordance with this rule and
requests a change of status on behalf of someone in
the United States, the change of status request will
be denied, but the petition will be adjudicated in
accordance with applicable DHS regulations. Any
alien authorized for H–2B status under the
approved petition would need to obtain the
necessary H–2B visa at a consular post abroad and
then seek admission to the United States in H–2B
status at a port of entry.
12 During fiscal years 2005 to 2007, and 2016,
Congress enacted ‘‘returning worker’’ exemptions to
the H–2B visa cap, allowing workers who were
counted against the H–2B cap in one of the three
preceding fiscal years not to be counted against the
upcoming fiscal year cap. Save Our Small and
Seasonal Businesses Act of 2005, Public Law 109–
13, Sec. 402 (May 11, 2005); John Warner National
Defense Authorization Act, Public Law 109–364,
Sec. 1074, (Oct. 17, 2006); Consolidated
Appropriations Act of 2016, Public Law 114–113,
Sec. 565 (Dec. 18, 2015).
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worker’’ exemptions from the H–2B
numerical limitation. During each of the
years the returning worker provision
was in force, U.S. employers’ standard
business needs for H–2B workers
exceeded the normal 66,000 cap.
Most recently, in FY 2016, 18,090
returning workers were approved for H–
2B petitions, despite Congress having
reauthorized the returning worker
program with more than three-quarters
of the fiscal year remaining. Of those
18,090 workers authorized for
admission, 13,382 were admitted into
the United States or otherwise acquired
H–2B status. While section 543 does not
limit the issuance of additional H–2B
visas to returning workers, the
Secretary, in consideration of the
statute’s reference to returning workers,
determined that it would be appropriate
to use these recent figures as a basis for
the maximum numerical limitation
under section 543. This rule therefore
authorizes up to 15,000 additional H–2B
visas (rounded up from 13,382) for FY
2017.
C. Business Need Standard—Irreparable
Harm
To file an H–2B petition during the
remainder of FY 2017, petitioners must
meet all existing H–2B eligibility
requirements, including having an
approved, valid and unexpired TLC per
8 CFR 214.2(h)(6) and 20 CFR 655
subpart A. In addition, the petitioner
must submit an attestation in which the
petitioner affirms, under penalty of
perjury, that it meets the business need
standard set forth above. Under that
standard, the petitioner must be able to
establish that if they do not receive all
of the workers under the cap increase,
they are likely to suffer irreparable
harm, that is, permanent and severe
financial loss. Although the TLC process
focuses on establishing whether a
petitioner has a need for workers, the
TLC does not directly address the harm
a petitioner may face in the absence of
such workers; the attestation addresses
this question. The attestation must be
submitted directly to USCIS, together
with the Petition for a Nonimmigrant
Worker (Form I–129), the valid TLC,
and any other necessary documentation.
The new attestation form is included in
this rulemaking as Appendix A.
The attestation serves as prima facie
initial evidence to DHS that the
petitioner’s business is likely to suffer
irreparable harm.13 Any petition
received lacking the requisite attestation
may be denied in accordance with 8
13 An employer may request fewer workers on the
H–2B petition than the number of workers listed on
the TLC.
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CFR 103.2(b)(8)(ii). Although this
regulation does not require submission
of evidence at the time of filing of the
petition, other than an attestation, the
employer must have such evidence on
hand and ready to present to DHS or
DOL at any time starting with the date
of filing, through the prescribed
document retention period discussed
below.
In addition to the statement regarding
the irreparable harm standard, the
attestation will also state that the
employer: Meets all other eligibility
criteria for the available visas; will
comply with all assurances, obligations,
and conditions of employment set forth
in the Application for Temporary
Employment Certification (Form ETA
9142B and Appendix B) certified by the
DOL for the job opportunity; will
conduct additional recruitment of U.S.
workers, in accordance with this
rulemaking; and will document and
retain evidence of such compliance. The
process under this regulation is similar
to the process the Departments have
employed with respect to the statutory
provisions authorizing seafood
employers to stagger crossing of H–2B
workers. For seafood employers, a
similar attestation, which provides that
the employer has conducted additional
recruitment, is provided to the consular
officer at the time they apply for a visa
and/or to the U.S. Customs and Border
Protection officer at the time the H–2B
worker seeks admission at a port of
entry. See 20 CFR 655.15(f). Because the
new attestation will be submitted to
USCIS as initial evidence with the Form
I–129 petition, a denial of the petition
based on or related to statements made
in the attestation is appealable under
existing USCIS procedures. Specifically,
DHS considers the attestation to be
evidence that is incorporated into and a
part of the petition consistent with 8
CFR 103.2(b).
The requirement to provide a postTLC attestation to USCIS is sufficiently
protective of U.S. workers given that the
employer, in completing the TLC
process, has already made one
unsuccessful attempt to recruit U.S.
workers. In addition, the employer is
required to retain documentation, which
must be provided upon request,
supporting the new attestations,
including a recruitment report for any
additional recruitment required under
this rule. Accordingly, USCIS may issue
a denial or a request for additional
evidence in accordance with 8 CFR
103.2(b) or 8 CFR 214.2(h)(11) based on
such documentation, and DOL’s WHD
will be able to review this
documentation and enforce the
attestations. Although the employer
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must have such documentation on hand
at the time it files the petition, the
Departments have determined that if
employers were required to submit the
attestations to DOL before seeking a
petition from DHS or to complete all
recruitment before submitting a petition,
the attendant delays would render any
visas unlikely to satisfy the needs of
American businesses given processing
timeframes and that there are only a few
months remaining in this fiscal year.
In accordance with the attestation
requirement, whereby petitioners attest
that they meet the irreparable harm
standard, and the documentation
retention requirements at 20 CFR
655.65, the petitioner must retain
documents and records meeting their
burden to demonstrate compliance with
this rule, and must provide the
documents and records upon the
request of DHS or DOL, such as in the
event of an audit or investigation.
Supporting evidence may include, but is
not limited to, the following types of
documentation:
(1) Evidence that the business is or
would be unable to meet financial or
contractual obligations without H–2B
workers, including evidence of
contracts, reservations, orders, or other
business arrangements that have been or
would be cancelled absent the requested
H–2B workers; and evidence
demonstrating an inability to pay debts/
bills;
(2) Evidence that the business has
suffered or will suffer permanent and
severe financial loss during the period
of need, as compared to the period of
need in prior years, such as: Financial
statements (including profit/loss
statements) comparing present period of
need as compared to prior years; bank
statements, tax returns or other
documents showing evidence of current
and past financial condition; relevant
tax records, employment records, or
other similar documents showing hours
worked and payroll comparisons from
prior years to current year;
(3) Evidence showing the number of
workers needed in previous seasons to
meet the employer’s temporary need as
compared to those currently employed,
including the number of H–2B workers
requested, the number of H–2B workers
actually employed, the dates of their
employment, and their hours worked
(e.g., payroll records), particularly in
comparison to the weekly hours stated
on the TLC. In addition, for employers
that obtain authorization to employ H–
2B workers under this rule, evidence
showing the number of H–2B workers
requested under this rule, the number of
workers actually employed, including
H–2B workers, the dates of their
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employment, and their hours worked
(e.g., payroll records), particularly in
comparison to the weekly hours stated
on the TLC; and/or
(4) Evidence that the business is
dependent on H–2B workers, such as:
Number of H–2B workers compared to
U.S. workers needed prospectively or in
the past; business plan or reliable
forecast showing that, due to the nature
and size of the business, there is a need
for a specific number of H–2B workers.
These examples of potential evidence,
however, will not exclusively or
necessarily establish that the business
meets the irreparable harm standard,
and petitioners may retain other types of
evidence they believe will satisfy this
standard. If an audit or investigation
occurs, DHS or DOL will review all
evidence available to it to confirm that
the petitioner properly attested to DHS
that their business would likely suffer
irreparable harm. If DHS subsequently
finds that the evidence does not support
the employer’s attestation, DHS may
deny or revoke the petition consistent
with existing regulatory authorities and/
or notify DOL. In addition, DOL may
independently take enforcement action,
including, among other things, to debar
the petitioner from using the H–2B
program generally for not less than one
year or more than 5 years from the date
of the final agency decision and may
disqualify the debarred party from filing
any labor certification applications or
labor condition applications with DOL
for the same period set forth in the final
debarment decision. See, e.g., 20 CFR
655.73; 29 CFR 503.20, 503.24.14
To the extent that evidence reflects a
preference for hiring H–2B workers over
U.S. workers, an investigation by other
agencies enforcing employment and
labor laws, such as the Immigrant and
Employee Rights Section of the
Department of Justice’s Civil Rights
Division, may be warranted. See INA
section 274B, 8 U.S.C. 1324b
(prohibiting certain types of
employment discrimination based on
citizenship status or national origin). In
addition, if members of the public have
information that a participating
employer may be abusing this program,
DHS invites them to notify USCIS’s
Fraud Detection and National Security
Directorate by contacting the general H–
14 Pursuant to the statutory provisions governing
enforcement of the H–2B program, INA section
214(c)(14), 8 U.S.C. 1184(c)(14), a violation exists
under the H–2B program where there has been a
willful misrepresentation of a material fact or a
substantial failure to meet any of the terms and
conditions. A substantial failure is a willful failure
to comply that constitutes a significant deviation
from the terms and conditions. See, e.g., 29 CFR
503.19.
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2B complaint address at
ReportH2BAbuse@uscis.dhs.gov.15
DHS, in exercising its statutory
authority under INA section
101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b), and section 543, is
responsible for adjudicating eligibility
for H–2B classification. As in all cases,
the burden rests with the petitioner to
establish eligibility by a preponderance
of the evidence. Accordingly, as noted
above, where the petition lacks initial
evidence, such as a properly completed
attestation, DHS may deny the petition
in accordance with 8 CFR 103.2(b)(8)(ii).
Further, where the initial evidence
submitted with the petition contains
inconsistencies or is inconsistent with
other evidence in the petition and
underlying TLC, DHS may issue a
Request for Evidence, Notice of Intent to
Deny, or Denial in accordance with 8
CFR 103.2(b)(8). In addition, where it is
determined that an H–2B petition filed
pursuant to the FY 2017 Omnibus was
granted erroneously, the H–2B petition
approval may be revoked, see 8 CFR
214.2(h)(11).
Because of the unique circumstances
of this regulation, and because the
attestation plays a vital role in achieving
the purposes of this regulation, DHS and
DOL intend that the attestation
requirement be non-severable from the
remainder of the regulation. Thus, in the
event the attestation requirement is
enjoined or held invalid, the remainder
of the regulation, with the exception of
the retention requirements, is also
intended to cease operation in the
relevant jurisdiction, without prejudice
to workers already present in the United
States under this regulation, as
consistent with law.
D. DHS Petition Procedures
To petition for H–2B workers under
this rule, the petitioner must file a
Petition for a Nonimmigrant Worker,
Form-129 in accordance with applicable
regulations and form instructions, and
must submit the attestation described
above. The attestation must be filed on
Form ETA–9142–B–CAA, Attestation
for Employers Seeking to Employ H–2B
Nonimmigrants Workers Under Section
543 of the Consolidated Appropriations
Act, which is attached to this
rulemaking as Appendix A. See 20 CFR
655.64. Once a petitioner has completed
the Form ETA–9142–B–CAA attestation,
it must submit the attestation to USCIS
along with an unexpired TLC. See new
8 CFR 214.2(h)(6)(x). A petitioner is
required to retain a copy of such
15 DHS may publicly disclose information
regarding the H–2B program consistent with
applicable law and regulations.
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32991
attestation and all supporting evidence
for 3 years from the date the associated
TLC was approved, consistent with 20
CFR 655.56 and 29 CFR 503.17. See new
20 CFR 655.65. Petitions submitted
pursuant to the FY 2017 Omnibus will
be processed in the order in which they
were received. Petitioners may also
choose to request premium processing
of their petition under 8 CFR 103.8(e),
which allows for expedited processing
for an additional fee.
To encourage timely filing of any
petition seeking a visa under the FY
2017 Omnibus, DHS is notifying the
public that the petition may not be
approved by USCIS on or after October
1, 2017. See new 8 CFR 214.2(h)(6)(x).
Petitions not approved before October 1,
2017 will be denied and any fees will
not be refunded. See new 8 CFR
214.2(h)(6)(x).
USCIS’s current processing goals for
H–2B petitions that can be adjudicated
without the need for further evidence
(i.e., without a Request for Evidence or
Notice of Intent to Deny) are 15 days for
petitions requesting premium
processing and 30 days for standard
processing.16 Given USCIS’s processing
goals for premium processing, DHS
believes that 15 days from the end of the
fiscal year is the minimum time needed
for petitions to be adjudicated, although
USCIS cannot guarantee that it will be
sufficient time in all cases. Therefore, if
the increase in the H–2B numerical
limitation to 15,000 visas has not yet
been reached, USCIS will begin
rejecting petitions received after
September 15, 2017. See new 8 CFR
214.2(h)(6)(x)(C).
As with other Form I–129 filings, DHS
encourages petitioners to provide a
duplicate copy of Form I–129 and all
supporting documentation at the time of
filing if the beneficiary is seeking a
nonimmigrant visa abroad. Failure to
submit duplicate copies may cause a
delay in the issuance of a visa to
otherwise eligible applicants.17
F. DOL Procedures
Because all employers are required to
have an approved and valid TLC from
DOL in order to file a Form I–129
petition with DHS in accordance with 8
CFR 214.2(h)(6)(iv)(A) and (D),
employers with an approved TLC will
have already conducted recruitment, as
16 These processing goals are not binding on
USCIS; depending on the evidence presented,
actual processing times may vary from these 15and 30-day periods.
17 Petitioners should note that under section 543,
the H–2B numerical increase relates to the total
number of aliens who may receive a visa under
section 101(a)(15)(H)(ii)(b) of the INA in this fiscal
year.
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set forth in 20 CFR 655.40–48, to
determine whether U.S. workers are
qualified and available to perform the
work for which H–2B workers are
sought. In addition to the recruitment
already conducted, employers with
current labor certification containing a
start date of work before June 1, 2017,
must conduct a fresh round of
recruitment for U.S. workers. As noted
in the 2015 H–2B comprehensive rule,
U.S. workers seeking employment in
these jobs typically do not search for
work months in advance, and cannot
make commitments about their
availability for employment far in
advance of the work. See 80 FR 24041,
24061, 24071. Given the 75–90 day
labor certification process applicable in
the H–2B program generally, employer
recruitment typically occurs between 40
and 60 days before the start date of
employment. Therefore, employers with
TLCs containing a start date of work
before June 1, 2017, likely began their
recruitment around April 1, 2017, and
likely ended it about April 20, 2017. In
order to provide U.S. workers a realistic
opportunity to pursue jobs for which
employers will be seeking foreign
workers under this rule, the
Departments have determined that
employers with start dates of work
before June 1, 2017 have not conducted
recent recruitment so that the
Departments can reasonably conclude
that there are currently an insufficient
number of U.S. workers qualified and
available to perform the work absent an
additional, though abbreviated,
recruitment attempt.
Therefore, employers with still valid
TLCs with a start date of work before
June 1, 2017, will be required to
conduct additional recruitment, and
attest that the recruitment will be
conducted, as follows. The employer
must place a new job order for the job
opportunity with the State Workforce
Agency (SWA), serving the area of
intended employment. The job order
must contain the job assurances and
contents set forth in 20 CFR 655.18 for
recruitment of U.S. workers at the place
of employment, and remain posted for
at least 5 days beginning not later than
the next business day after submitting a
petition for H–2B worker to USCIS. In
addition, eligible employers will also be
required to place one newspaper
advertisement, which may be published
on any day of the week, meeting the
advertising requirements of 20 CFR
655.41, during the period of time the
SWA is actively circulating the job order
for intrastate clearance. Employers must
retain the additional recruitment
documentation, including a recruitment
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16:17 Jul 18, 2017
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report that meets the requirements for
recruitment reports set forth in 20 CFR
655.48(a)(1)(2) & (7), together with a
copy of the attestation and supporting
documentation, as described above, for
a period of 3 years from the date that the
TLC was approved, consistent with the
document retention requirements under
20 CFR 655.56. These requirements are
similar to those that apply to seafood
employers who bring in additional
workers between 90 and 120 days after
their certified start date of need under
20 CFR 655.15(f).
The employer must hire any qualified
U.S. worker who applies or is referred
for the job opportunity until 2 business
days after the last date on which the job
order is posted. The two business day
requirement permits an additional brief
period of time to enable U.S. workers to
contact the employer following the job
order or newspaper advertisement.
Consistent with 20 CFR 655.40(a),
applicants can be rejected only for
lawful job-related reasons.
DOL’s Wage and Hour Division has
the authority to investigate the
employer’s attestations, as the
attestations are a required part of the H–
2B petition process under this rule and
the attestations rely on the employer’s
existing, approved TLC. Where a WHD
investigation determines that there has
been a willful misrepresentation of a
material fact or a substantial failure to
meet the required terms and conditions
of the attestations, WHD may institute
administrative proceedings to impose
sanctions and remedies, including (but
not limited to) assessment of a civil
money penalty, recovery of wages due,
make whole relief for any U.S. worker
who has been improperly rejected for
employment, laid off or displaced, or
debarment for 1 to 5 years. See 29 CFR
503.19, 503.20. This regulatory
authority is consistent with WHD’s
existing enforcement authority and is
not limited by the expiration date of this
rule. Therefore, in accordance with the
documentation retention requirements
at new 20 CFR 655.65, the petitioner
must retain documents and records
proving compliance with this rule, and
must provide the documents and
records upon request by DHS or DOL.
Petitioners must also comply with any
other applicable laws in their
recruitment, such as avoiding unlawful
discrimination against U.S. workers
based on their citizenship status or
national origin. Specifically, the failure
to recruit and hire qualified and
available U.S. workers on account of
such individuals’ national origin or
citizenship status may violate INA
section 274B, 8 U.S.C. 1324b.
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III. Statutory and Regulatory
Requirements
A. Administrative Procedure Act
This rule is issued without prior
notice and opportunity to comment and
with an immediate effective date
pursuant to the Administrative
Procedure Act (APA). 5 U.S.C. 553(b)
and (d).
1. Good Cause To Forgo Notice and
Comment Rulemaking
The APA, 5 U.S.C. 553(b)(B),
authorizes an agency to issue a rule
without prior notice and opportunity to
comment when the agency for good
cause finds that those procedures are
‘‘impracticable, unnecessary, or contrary
to the public interest.’’ The good cause
exception for forgoing notice and
comment rulemaking ‘‘excuses notice
and comment in emergency situations,
or where delay could result in serious
harm.’’ Jifry v. FAA, 370 F.3d 1174,
1179 (D.C. Cir. 2004). Although the good
cause exception is ‘‘narrowly construed
and only reluctantly countenanced,’’
Tenn. Gas Pipeline Co. v. FERC, 969
F.2d 1141, 1144 (D.C. Cir. 1992), the
Departments have appropriately
invoked the exception in this case, for
the reasons set forth below.
In this case, the Departments are
bypassing advance notice and comment
because of the exigency created by
section 543 of the Consolidated
Appropriations Act, 2017 (FY 2017
Omnibus), which went into effect on
May 5, 2017 and expires on September
30, 2017. Because the statutory cap was
reached in mid-March, USCIS stopped
accepting H–2B petitions on March 13,
2017, and given high demand by
American businesses for H–2B workers,
and the short period of time remaining
in the fiscal year for U.S. employers to
avoid the economic harms described
above, a decision to undertake notice
and comment rulemaking would likely
delay final action on this matter by
weeks or months, and would therefore
complicate and likely preclude the
Departments from successfully
exercising the authority in section 543.
Courts have found ‘‘good cause’’
under the APA when an agency is
moving expeditiously to avoid
significant economic harm to a program,
program users, or an industry. Courts
have held that an agency may use the
good cause exception to address ‘‘a
serious threat to the financial stability of
[a government] benefit program,’’ Nat’l
Fed’n of Fed. Emps. v. Devine, 671 F.2d
607, 611 (D.C. Cir. 1982), or to avoid
‘‘economic harm and disruption’’ to a
given industry, which would likely
result in higher consumer prices, Am.
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Fed’n of Gov’t Emps. v. Block, 655 F.2d
1153, 1156 (D.C. Cir. 1981).
Consistent with the above authorities,
the Departments have bypassed notice
and comment to prevent the ‘‘serious
economic harm to the H–2B
community,’’ including associated U.S.
workers, that could result from ongoing
uncertainty over the status of the
numerical limitation, i.e., the effective
termination of the program through the
remainder of FY 2017. See Bayou Lawn
& Landscape Servs. v. Johnson, 173 F.
Supp. 3d 1271, 1285 & n.12 (N.D. Fla.
2016). The Departments note that this
action is temporary in nature, see id.,18
and includes appropriate conditions to
ensure that it affects only those
businesses most in need.
2. Good Cause To Proceed With an
Immediate Effective Date
The APA also authorizes agencies to
make a rule effective immediately, upon
a showing of good cause instead of
imposing a 30-day delay. 5 U.S.C.
553(d)(3). The good cause exception to
the 30-day effective date requirement is
easier to meet than the good cause
exception for foregoing notice and
comment rulemaking. Riverbend Farms,
Inc. v. Madigan, 958 F.2d 1479, 1485
(9th Cir. 1992); Am. Fed’n of Gov’t
Emps., AFL–CIO v. Block, 655 F.2d
1153, 1156 (D.C. Cir. 1981); U.S. Steel
Corp. v. EPA, 605 F.2d 283, 289–90 (7th
Cir. 1979). An agency can show good
cause for eliminating the 30-day delayed
effective date when it demonstrates
urgent conditions the rule seeks to
correct or unavoidable time limitations.
U.S. Steel Corp., 605 F.2d at 290; United
States v. Gavrilovic, 511 F.2d 1099,
1104 (8th Cir. 1977). For the same
reasons set forth above, we also
conclude that the Departments have
good cause to dispense with the 30-day
effective date requirement given that
this rule is necessary to prevent U.S.
businesses from suffering irreparable
harm and therefore causing significant
economic disruption.
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B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5
U.S.C. 601 et seq. (RFA), imposes
18 Because the Departments have issued this rule
as a temporary final rule, this rule—with the sole
exception of the document retention
requirements—will be of no effect after September
30, 2017, even if Congress includes an authority
similar to section 543 in a subsequent act of
Congress.
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16:17 Jul 18, 2017
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certain requirements on Federal agency
rules that are subject to the notice and
comment requirements of the APA. See
5 U.S.C. 603(a), 604(a). This final rule is
exempt from notice and comment
requirements for the reasons stated
above. Therefore, the requirements of
the RFA applicable to final rules, 5
U.S.C. 604, do not apply to this final
rule. Accordingly, the Departments are
not required to either certify that the
final rule would not have a significant
economic impact on a substantial
number of small entities or conduct a
regulatory flexibility analysis.
C. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995 (UMRA) is intended, among
other things, to curb the practice of
imposing unfunded Federal mandates
on State, local, and tribal governments.
Title II of the Act requires each Federal
agency to prepare a written statement
assessing the effects of any Federal
mandate in a proposed or final agency
rule that may result in $100 million or
more expenditure (adjusted annually for
inflation) in any one year by State, local,
and tribal governments, in the aggregate,
or by the private sector. The value
equivalent of $100 million in 1995
adjusted for inflation to 2016 levels by
the Consumer Price Index for All Urban
Consumer (CPI–U) is $157 million.
This rule does not exceed the $100
million expenditure in any 1 year when
adjusted for inflation ($157 million in
2016 dollars), and this rulemaking does
not contain such a mandate. The
requirements of Title II of the Act,
therefore, do not apply, and the
Departments have not prepared a
statement under the Act.
D. Small Business Regulatory
Enforcement Fairness Act of 1996
This temporary rule is not a major
rule as defined by section 804 of the
Small Business Regulatory Enforcement
Act of 1996, Public Law 104–121, 804,
110 Stat. 847, 872 (1996), 5 U.S.C.
804(2). This rule has not been found to
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-
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32993
based companies in domestic or export
markets.
E. Executive Orders 12866 (Regulatory
Planning and Review), 13563
(Improving Regulation and Regulatory
Review), and 13771 (Reducing
Regulation and Controlling Regulatory
Costs)
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits,
reducing costs, harmonizing rules, and
promoting flexibility. Executive Order
13771 (‘‘Reducing Regulation and
Controlling Regulatory Costs’’) directs
agencies to reduce regulation and
control regulatory costs.
The Office of Management and Budget
(OMB) has determined that this rule is
a ‘‘significant regulatory action’’
although not an economically
significant regulatory action.
Accordingly, OMB has reviewed this
regulation. This regulation is exempt
from Executive Order 13771. OMB
considers this final rule to be an
Executive Order 13771 deregulatory
action.
1. Summary
With this final rule, DHS is
authorizing up to an additional 15,000
visas for the remainder of FY 2017,
pursuant to the FY 2017 Omnibus, to be
available to certain U.S. businesses
under the H–2B visa classification. By
the authority given under the FY 2017
Omnibus, DHS is increasing the H–2B
cap for the remainder of FY 2017 for
those businesses that: (1) Show that
there are an insufficient number of
qualified U.S. workers to meet their
needs in FY 2017; and (2) attest that
their businesses are likely to suffer
irreparable harm without the ability to
employ the H–2B workers that are the
subject of their petition. This final rule
aims to help prevent such harm by
allowing them to hire additional H–2B
workers within FY 2017. Table 1
(below) provides a brief summary of the
provision and its impact.
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TABLE 1—SUMMARY OF PROVISION AND IMPACT
Current provision
Changes resulting from the proposed provisions
Expected cost of the proposed
provision
Expected benefit of the proposed
provision
The current statutory cap limits H–
2B visa allocations by 66,000
workers a year.
The amended provisions would
allow for up to 15,000 additional H–2B visas for the remainder of the fiscal year.
• The total estimated cost to file
Form
I–129
would
be
$1,502,984 (rounded) if human
resource
specialists
file,
$2,216,881 (rounded) if inhouse
lawyers
file,
and
$3,042,989
(rounded)
if
outsourced lawyers file.
• If a Form I–907 is submitted as
well, the total estimated cost to
file for Form I–907 would be a
maximum of $2,867,398 if
human resource specialists file,
$2,927,882 if in-house lawyers
file,
and
$3,008,243
if
outsourced lawyers file.
• DHS may incur some additional
adjudication costs as more applicants may file Form I–129.
However, these additional costs
are expected to be covered by
the fees paid for filing the form
• The total estimated cost to petitioners to complete and file
ETA–9142–B–CAA
is
$1,597,426.
• Eligible petitioners would be
able to hire the temporary
workers needed to prevent their
businesses from suffering irreparable harm.
• U.S. employees of these businesses would avoid harm.
Petitioners would also be required
to fill out newly created Form
ETA–9142–B–CAA, Attestation
for Employers Seeking to Employ
H–2B
Nonimmigrants
Workers Under Section 543 of
the Consolidated Appropriations Act.
• Serves as initial evidence to
DHS that the petitioner meets
the irreparable harm standard.
Source: USCIS and DOL analysis.
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2. Background and Purpose of the Rule
The H–2B visa classification program
was designed to serve U.S. businesses
that are unable to find a sufficient
number of qualified U.S. workers to
perform nonagricultural work of a
temporary or seasonal nature. For an H–
2B nonimmigrant worker to be admitted
into the United States under this visa
classification, the hiring employer is
required to: (1) Receive a TLC from DOL
and (2) file a Form I–129 with DHS. The
temporary nature of the services or labor
described on the approved TLC is
subject to DHS review during
adjudication of Form I–129.19 Up to
33,000 aliens may be issued H–2B visas
or provided H–2B nonimmigrant status
in the first half of a fiscal year, and the
remaining annual allocation will be
available for employers seeking to hire
H–2B workers during the second half of
the fiscal year.20 Any unused numbers
from the first half of the fiscal year will
be available for employers seeking to
hire H–2B workers during the second
half of the fiscal year. However, any
unused H–2B numbers from one fiscal
19 Revised
effective 1/18/2009; 73 FR 78104.
20 See INA section 214(g)(1)(B), 8 U.S.C.
1184(g)(1)(B), INA section 214(g)(10) and 8 U.S.C.
1184(g)(10).
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year do not carry over into the next and
will therefore not be made available.21
The H–2B cap for the second half of
FY 2017 was reached on March 13,
2017. Normally, once the H–2B cap has
been reached, petitioners must wait
until the next half of the fiscal year, or
the beginning of the next fiscal year, for
additional visas to become available.
However, on May 5, 2017, the President
signed the FY 2017 Omnibus that
contains a provision (Sec. 543 of Div. F)
authorizing the Secretary of Homeland
Security, under certain circumstances,
to increase the number of H–2B visas
available to U.S. employers,
notwithstanding the established
statutory numerical limitation. After
consulting with the Secretary of Labor,
the Secretary of the Homeland Security
has determined it is appropriate to
exercise his discretion and raise the H–
2B cap by up to an additional 15,000
visas for the remainder of FY 2017 for
those businesses who would qualify
under certain circumstances.
21 A TLC approved by the Department of Labor
must accompany an H–2B petition. The
employment start date stated on the petition
generally must match the start date listed on the
TLC. See 8 CFR 214.2(h)(6)(iv)(A) and (D).
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3. Population
This temporary rule would impact
those employers who file Form I–129 on
behalf of the nonimmigrant worker they
seek to hire under the H–2B visa
program. More specifically, this rule
would impact those employers who
could establish that their business is
likely to suffer irreparable harm because
they cannot employ the H–2B workers
requested on their petition in this fiscal
year. Due to the temporary nature of this
rule and the limited time left for these
additional visas to be available, DHS
believes it is more reasonable to assume
that eligible petitioners for these
additional 15,000 visas will be those
employers that have already completed
the steps to receive an approved TLC
prior to the issuance of this rule.22
According to DOL OFLC’s certification
data for FY 2017, there were about 4,174
H–2B certifications with expected work
start dates between April 1 and
September 30, 2017. However, many of
these certifications have already been
filled under the existing cap. Of the
4,174 certifications, we estimated that
22 Note that as in the standard H–2B visa issuance
process, petitioning employers must still apply for
a temporary labor certification and receive approval
from DOL before submitting the Form I–129
petition with USCIS.
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1,876 certifications would have been
filled with the second semi-annual
statutory cap of 33,000 visas.23 We
believe that the remaining certifications
of 2,298 (= 4,174 ¥ 1,876) represents
the pool of employers with approved
certifications that may apply for
additional H–2B workers under this
rule, and therefore serves as a
reasonable proxy for the number of
petitions we may receive under this
rule.24
4. Cost-Benefit Analysis
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The costs for this form include filing
costs and the opportunity costs of time
to complete and file the form. The
current filing fee for Form I–129 is $460
and the estimated time needed to
complete and file Form I–129 for H–2B
classification is 4.26 hours.25 The time
burden of 4.26 hours for Form I–129
also includes the time to file and retain
documents. The application must be
filed by a U.S. employer, a U.S. agent,
or a foreign employer filing through the
U.S. agent. 8 CFR 214.2(h)(2). Due to the
expedited nature of this rule, DHS was
unable to obtain data on the number of
Form I–129 H–2B applications filed
directly by a petitioner and those that
are filed by a lawyer on behalf of the
petitioner. Therefore, DHS presents a
range of estimated costs including if
only human resource (HR) specialists
file Form I–129 or if only lawyers file
Form I–129.26 Further, DHS presents
cost estimates for lawyers filing on
behalf of applicants based on whether
all Form I–129 applications are filed by
in-house lawyers or by outsourced
23 DOL approved a total of 4,174 certifications for
73,424 H–2B positions with work start date between
April and September in 2017. Therefore, we
estimated that the average number of H–2B
positions per certification is 17.59 (= 73,424/4,174)
and the number of certifications that would have
been filled with the second semi-annual statutory
cap of 33,000 is 1,876 (= 33,000/17.59).
24 The preamble of this rule explains how DHS
established 15,000 as the number of H–2B visas to
be made available for the remainder of the fiscal
year. Based on the FY 2016 returning workers
program, the USCIS Service Center Operations
Directorate estimates that approximately 1,538
petitions were associated with the 18,090 returning
workers discussed in the preamble of this rule. For
consistency and to provide a reasonable estimate for
the number of possible petitioners, USCIS uses the
2,298 petitioners based on the DOL OFLC’s
certification data in FY 2017.
25 The public reporting burden for this form is
2.26 hours for Form I–129 and an additional 2
hours for H Classification Supplement. See Form I–
129 instructions at https://www.uscis.gov/i-129.
26 For the purposes of this analysis, DHS assumes
a human resource specialist or some similar
occupation completes and files these forms as the
employer or petitioner who is requesting the H–2B
worker. However, DHS understands that not all
entities have human resources departments or
occupations and, therefore, recognizes equivalent
occupations may prepare these petitions.
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lawyers.27 DHS presents an estimated
range of costs assuming that only HR
specialists, in-house lawyers, or
outsourced lawyers file these forms,
though DHS recognizes that it is likely
that filing will be conducted by a
combination of these different types of
filers.
To estimate the total opportunity cost
of time to petitioners who complete and
file Form I–129, DHS uses the mean
hourly wage rate of HR specialists of
$31.20 as the base wage rate.28 If
applicants hire an in-house or
outsourced lawyer to file Form I–129 on
their behalf, DHS uses the mean hourly
wage rate of $67.25 as the base wage
rate.29 Using the most recent Bureau of
Labor Statistics (BLS) data, DHS
calculated a benefits-to-wage multiplier
of 1.46 to estimate the full wages to
include benefits such as paid leave,
insurance, and retirement.30 DHS
multiplied the average hourly U.S. wage
rate for HR specialists and for in-house
lawyers by the benefits-to-wage
multiplier of 1.46 to estimate the full
cost of employee wages. The total per
hour wage is $45.55 for an HR specialist
and $98.19 for an in-house lawyer.31 In
addition, DHS recognizes that an entity
may not have in-house lawyers and
therefore, seek outside counsel to
complete and file Form I–129 on behalf
of the petitioner. Therefore, DHS
presents a second wage rate for lawyers
labeled as outsourced lawyers. DHS
estimates the total per hour wage is
27 For the purposes of this analysis, DHS adopts
the terms ‘‘in-house’’ and ‘‘outsourced’’ lawyers as
they were used in the DHS, U.S. Immigration and
Customs Enforcement (ICE) analysis, ‘‘Final Small
Entity Impact Analysis: Safe-Harbor Procedures for
Employers Who Receive a No-Match Letter’’ at G–
4 (posted Nov. 5, 2008), available at https://
www.regulations.gov/#!documentDetail;D=ICEB2006-0004-0922. The DHS ICE analysis highlighted
the variability of attorney wages and was based on
information received in public comment to that
rule. We believe the distinction between the varied
wages among lawyers is appropriate for our
analysis.
28 U.S. Department of Labor, Bureau of Labor
Statistics, Occupational Employment Statistics,
May 2016, Human Resources Specialist: https://
www.bls.gov/oes/current/oes131071.htm.
29 U.S. Department of Labor, Bureau of Labor
Statistics. May 2016 National Occupational
Employment and Wage Estimates, Mean Hourly
Wage (23–1011 Lawyers), available at https://
www.bls.gov/oes/current/oes231011.htm.
30 The benefits-to-wage multiplier is calculated as
follows: (Total Employee Compensation per hour)/
(Wages and Salaries per hour). See Economic News
Release, U.S. Department of Labor, Bureau of Labor
Statistics, Table 1. Employer costs per hour worked
for employee compensation and costs as a percent
of total compensation: Civilian workers, by major
occupational and industry group (June 2016),
available at https://www.bls.gov/news.release/pdf/
ecec.pdf.
31 Calculation for the total wage of an HR
specialist: $31.20 × 1.46 = $45.55 (rounded).
Calculation for the total wage of an in-house lawyer:
$67.25 × 1.46 = $98.19 (rounded).
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$168.13 for an outsourced lawyer.32 33 If
a lawyer submits Form I–129 on behalf
of the petitioner, Form G–28 (Notice of
Entry of Appearance as Attorney or
Accredited Representative), must
accompany the Form I–129
submission.34 DHS estimates the time
burden to complete and submit Form G–
28 for a lawyer is 53 minutes (0.88 hour,
rounded). For this analysis, DHS adds
the time to complete Form G–28 to the
opportunity cost of time to lawyers for
filing Form I–129 on behalf of a
petitioner. Therefore, the total
opportunity cost of time for an HR
specialist to complete and file Form I–
129 is $194.04, for an in-house lawyer
to complete and file is $504.70, and for
an outsourced lawyer to complete and
file is $864.19.35 The total cost,
including filing fee and opportunity
costs of time, per petitioner to file Form
I–129 is $654.04 if HR specialists file,
$964.70 if an in-house lawyer files, and
$1,324.19 if an outsourced lawyer files
the form.36
(a) Cost to Petitioners
As mentioned in Section 3, the
population impacted by this rule is the
2,298 petitioners who may apply for up
to 15,000 additional H–2B visas for the
remainder of FY 2017. Based on the
previously presented total filing costs
per petitioner, DHS estimates the total
cost to file Form I–129 is $1,502,984
(rounded) if HR specialists file,
$2,216,881 (rounded) if in-house
lawyers file, and $3,042,989 (rounded) if
outsourced lawyers file.37 DHS
32 Calculation: Average hourly wage rate of
lawyers × Benefits-to-wage multiplier for
outsourced lawyer = $67.25 × 2.5 = $168.125 =
$168.13.
33 The DHS ICE ‘‘Safe-Harbor Procedures for
Employers Who Receive a No-Match Letter’’ used
a multiplier of 2.5 to convert in-house attorney
wages to the cost of outsourced attorney based on
information received in public comment to that
rule. We believe the explanation and methodology
used in the Final Small Entity Impact Analysis
remains sound for using 2.5 as a multiplier for
outsourced labor wages in this rule, see page G–4
[Sept. 1, 2015] [https://www.regulations.gov/#
!documentDetail;D=ICEB-2006-0004-0922].
34 USCIS, Filing Your Form G–28, https://
www.uscis.gov/forms/filing-your-form-g-28.
35 Calculation if an HR specialist files: $45.55 ×
(4.26 hours) = $194.04 (rounded); Calculation if an
in-house lawyer files: $98.19 × (4.26 hours to file
Form I–129 H2B + 0.88 hour to file Form G–28) =
$504.70 (rounded); Calculation if an outsourced
lawyer files: $168.13 × (4.26 hours to file Form I–
129 H2B + 0.88 hour to file Form G–28) = $864.19
(rounded).
36 Calculation if an HR specialist files: $194.04 +
$460 (filing fee) = $654.04; Calculation if an inhouse lawyer files: $504.70 + $460 (filing fee) =
$964.70; Calculation if outsourced lawyer files:
$864.19 + $460 (filing fee) = $1,324.19.
37 Calculation if HR specialist files: $654.04 ×
2,298 (population applying for H–2B visas) =
$1,502,983.92 = $1,502,984 (rounded); Calculation
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recognizes that not all Form I–129
applications are likely to be filed by
only one type of filer and cannot predict
how many applications would be filed
by each type of filer. Therefore, DHS
estimates that the total cost to file Form
I–129 could range from $1,502,984
(rounded) to $3,042,989 (rounded)
depending on the combination of
applications filed by each type of filer.
(1) Form I–907
Employers may use Form I–907,
Request for Premium Processing
Service, to request faster processing of
their Form I–129 petitions for H–2B
visas. The filing fee for Form I–907 is
$1,225 and the time burden for
completing the form is 0.5 hours. Using
the wage rates established previously,
the opportunity cost of time is $22.78
for an HR specialist to file Form I–907,
$49.10 for an in-house lawyer to file,
and $84.07 for an outsourced lawyer to
file.38 Therefore, the total filing cost to
complete and file Form I–907 per
petitioner is $1,247.78 if HR specialists
file, $1,274.10 if in-house lawyers file,
and $1,309.07 if outsourced lawyers
file.39 Due to the expedited nature of
this rule, DHS was unable to obtain data
on the average percentage of Form I–907
applications that were submitted with
Form I–129 H–2B petitions. Table 2
(below) shows the range of percentages
of the 2,298 petitioners who may also
request their Form I–129 adjudications
be premium processed as well as the
estimated total cost of filing Form I–907.
DHS anticipates that most, if not all, of
the additional 2,298 Form I–129
petitions will be requesting premium
processing due to the limited time
between the publication of this rule and
the end of the fiscal year. Further, as
shown in table 2, the total estimated
cost to complete and file a request for
premium processing (Form I–907) when
submitted with Form I–129 on behalf of
an H–2B worker is a maximum of
$2,867,398 if human resources
specialists file, $2,927,882 if in-house
lawyers file, and $3,008,243 if
outsourced lawyers file.
TABLE 2—TOTAL COST OF FILING FORM I–907 UNDER THE H–2B VISA PROGRAM
Number of
filers
requesting
premium
processing b
Percent of filers requesting premium processing a
25 .....................................................................................................................
50 .....................................................................................................................
75 .....................................................................................................................
90 .....................................................................................................................
95 .....................................................................................................................
100 ...................................................................................................................
575
1,149
1,724
2,068
2,183
2,298
Total cost to filers c
Human
resources
specialist
($)
716,850
1,433,699
2,150,549
2,580,659
2,724,029
2,867,398
In-house
lawyer
($)
731,970
1,463,941
2,195,911
2,635,094
2,781,488
2,927,882
Outsourced
lawyer
($)
752,061
1,504,121
2,256,182
2,707,419
2,857,831
3,008,243
Notes:
a Assumes that all 15,000 additional H–2B visas will be filled by 2,298 petitioners.
b Numbers and dollar amounts are rounded to the nearest whole number.
c Calculation: (Total cost per filer of Form I–907) × Number of filers who request premium processing = Total cost to filer (rounded to the nearest dollar).
Source: USCIS analysis.
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(2) Attestation Requirements
The remaining provisions of this rule
include a new form for applicants, Form
ETA–9142–B–CAA–Attestation for
Admission of H–2B Workers, attached
to this rulemaking as Appendix A.
The new attestation form includes
new recruiting requirements, the
irreparable harm standard, and
document retention obligations. DOL
estimates the time burden for
completing and signing the form is 0.25
hour and 1 hour for retaining
documents and records relating to
recruitment. The petitioner must retain
documents and records of a new job
order for the job opportunity placed
with the State Workforce Agency (SWA)
and one newspaper advertisement. DOL
estimates that it would take up to one
hour to file and retain documents and
records relating to recruitment. Using
the total per hour wage for an HR
specialist ($45.55), the opportunity cost
of time for an HR specialist to complete
the new attestation form and to retain
documents relating to recruitment is
$56.94.40
Additionally, the new form requires
that the petitioner assess and document
supporting evidence for meeting the
irreparable harm standard, and retain
those documents and records, which we
assume will require the resources of a
financial analyst (or another equivalent
occupation). Using the same
methodology previously described for
wages, the total per hour wage for a
financial analyst is $68.53.41 DOL
estimates the time burden for these tasks
is at least 4 hours and 1 hour for
gathering and retaining documents and
records. Therefore, the total opportunity
costs of time for a financial analyst to
assess, document, and retain supporting
evidence is $342.65.42
As discussed previously, we believe
that the estimated 2,298 remaining
unfilled certifications for the latter half
of FY 2017 would include all potential
employers who might request to employ
H–2B workers under this rule. This
number of certifications is a reasonable
proxy for the number of employers who
may need to review and sign the
attestation. Using this estimate for the
total number of certifications, DOL
if an in-house lawyer files: $964.70 × 2,298
(population applying for H–2B visas) =
$2,216,880.60 = $2,216,881 (rounded); Calculation
if an outsourced lawyer files: $1,324.19 × 2,298
(population applying for H–2B visas) =
$3,042,988.62 = $3,042,989 (rounded).
38 Calculation if an HR specialist files: $45.55 ×
(0.5 hours) = $22.78 (rounded); Calculation if an inhouse lawyer files: $98.19 × (0.5 hours) = $49.10
(rounded); Calculation if an outsourced lawyer files:
$168.13 × (0.5 hours) = $84.07 (rounded).
39 Calculation if an HR specialist files: $22.78 +
$1,225 = $1,247.78; Calculation if an in-house
lawyer files: $49.10 + $1,225 = 1,274.10;
Calculation if outsourced lawyer files: $84.07 +
$1,225 = $1,309.07.
40 Calculation: $45.55 (total per hour wage for an
HR specialist) × 1.25 (time burden for the new
attestation form and retaining recruitment
documentation) = $56.94.
41 Calculation: $46.94 (total per hour wage for a
financial analyst, based on BLS wages) × 1.46
(benefits-to-wage multiplier) = $68.53. U.S.
Department of Labor, Bureau of Labor Statistics,
Occupational Employment Statistics, May 2016,
Financial Analysts: https://www.bls.gov/oes/current/
oes132051.htm.
42 Calculation: $68.53 (total per hour wage for a
financial analyst) × 5 hours (time burden for
assessing, documenting and retention of supporting
evidence demonstrating the employer is likely to
suffer irreparable harm) = $342.65.
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estimates that the cost for HR specialists
is $130,842 and for financial analysts is
$787,410 (rounded).43 The total cost is
estimated to be $918,252.44
Employers will place a new job order
for the job opportunity with the SWA
serving the area of intended
employment for at least 5 days
beginning no later than the next
business day after submitting a petition
for an H–2B worker and the attestation
to USCIS. DOL estimates that an HR
specialist (or another equivalent
occupation) would spend 1 hour to
prepare a new job order and submit it
to the SWA.45 DOL estimates the total
cost of placing a new job order is
$104,674.46
Employers will also place one
newspaper advertisement during the
period of time the SWA is actively
circulating the job order for intrastate
clearance. DOL estimates that a standard
job listing in an online edition of a
newspaper is $250.47 The total cost
associated with one online newspaper
job listing is $574,500.48
Therefore, the total cost for the new
attestation form is estimated to be
$1,597,426.49
(b) Cost to the Federal Government
DHS anticipates some additional costs
in adjudicating the additional petitions
submitted as a result of the increase in
cap limitation for H–2B visas. However,
DHS expects these costs to be covered
by the fees associated with the forms.
(c) Benefits to Petitioners
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The inability to access H–2B workers
for these entities may cause their
43 Calculations: Cost for HR Specialists: $45.55
(total per hour wage for an HR specialist) × 2,298
certifications × 1.25 hours = $130,842. Cost for
Financial Analysts: $68.53 (total per hour wage for
a financial analyst) × 2,298 certifications × 5 hours
= $787,410.
44 Calculation: $130,842 (total cost for HR
specialists) + $787,410 (total cost for financial
analysts) = $918,252.
45 The job order must address the content
requirements at 20 CFR 655.18, consistent with new
requirements contained in the 2016 Department of
Labor Appropriations Act (Division H, Title I of
Pub. L. 114–113) (2016 DOL Appropriations Act),
which was enacted on December 18, 2015.
46 Calculation: $45.55 (total per hour wage for an
HR specialist) × 2,298 certifications × 1 hour (time
burden for placing a job order with the SWA) =
$104,674.
47 Source: The Washington Post, Online Only Job
Listings (35 days), page 4 available at: https://
www.washingtonpost.com/wp-stat/ad/public/static/
media_kit/16-3729-01-jobs.pdf.
48 Calculation: $250 (cost of one online
newspaper job listing) × 2,298 certifications =
$574,500.
49 Calculation: $918,252 (total cost for HR
specialists and financial analysts) + $104,674 (total
cost to place job order with State Workforce
Agency) + $574,500 (total cost to place online
newspaper job listings) = $1,597,426.
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businesses to suffer irreparable harm.
Temporarily increasing the number of
available H–2B visas for this fiscal year
may allow some businesses to hire the
additional labor resources necessary to
avoid such harm. Preventing such harm
may ultimately rescue the jobs of any
other employees (including U.S.
employees) at that establishment.
F. Executive Order 13132 (Federalism)
This rule does 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 section 6 of Executive
Order No. 13132, 64 FR 43,255 (Aug. 4,
1999), this rule does not have sufficient
federalism implications to warrant the
preparation of a federalism summary
impact statement.
G. 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 No. 12988, 61
FR 4729 (Feb. 5, 1996).
H. National Environmental Policy Act
DHS analyzes actions to determine
whether NEPA applies to them and if so
what degree of analysis is required. DHS
Directive (Dir) 023–01 Rev. 01
establishes the procedures that DHS and
its components use to comply with
NEPA and the Council on
Environmental Quality (CEQ)
regulations for implementing NEPA, 40
CFR parts 1500 through 1508. The CEQ
regulations allow federal agencies to
establish, with CEQ review and
concurrence, categories of actions
(‘‘categorical exclusions’’) which
experience has shown do not
individually or cumulatively have a
significant effect on the human
environment and, therefore, do not
require an Environmental Assessment
(EA) or Environmental Impact
Statement (EIS). 40 CFR
1507.3(b)(1)(iii), 1508.4. DHS
Instruction 023–01 Rev. 01 establishes
such Categorical Exclusions that DHS
has found to have no such effect. Dir.
023–01 Rev. 01 Appendix A Table 1.
For an action to be categorically
excluded, DHS Instruction 023–01 Rev.
01 requires the action to satisfy each of
the following three conditions: (1) The
entire action clearly fits within one or
more of the Categorical Exclusions; (2)
the action is not a piece of a larger
action; and (3) no extraordinary
circumstances exist that create the
potential for a significant environmental
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32997
effect. Inst. 023–01 Rev. 01 section V.B
(1)–(3).
This rule temporarily amends the
regulations implementing the H–2B
nonimmigrant visa program to increase
the numerical limitation on H–2B
nonimmigrant visas for the remainder of
FY 2017 based on the Secretary of
Homeland Security’s determination, in
consultation with the Secretary of
Labor, consistent with the FY 2017
Omnibus. Generally, a rule which
changes the number of visas which can
be issued has no impact on the
environment and any attempt to analyze
that impact would be largely, if not
completely, speculative. The
Departments cannot estimate with
reasonable certainty which employers
will successfully petition for employees
in what locations and numbers. At most,
however, it is reasonably foreseeable
that an increase of up to15,000 visas
may be issued for temporary entry into
the United States in diverse industries
and locations. For purposes of the cost
estimates contained in the economic
analysis above, DHS bases its
calculations on the assumption that all
15,000 will be issued. Even making that
assumption, with a current U.S.
population in excess of 323 million and
a U.S. land mass of 3.794 million square
miles, this is insignificant by any
measure.
DHS has determined that this rule
does not individually or cumulatively
have a significant effect on the human
environment and it thus would fit
within one categorical exclusion under
Environmental Planning Program, DHS
Instruction 023–01 Rev. 01, Appendix
A, Table 1. Specifically, the rule fits
within Categorical Exclusion number
A3(d) for rules that interpret or amend
an existing regulation without changing
its environmental effect.
This rule maintains the current
human environment by helping to
prevent irreparable harm to certain U.S.
businesses and to prevent a significant
adverse effect on the human
environment that would likely result
from loss of jobs and income. With the
exception of recordkeeping
requirements, this rulemaking
terminates after September 30, 2017; it
is not part of a larger action and
presents no extraordinary circumstances
creating the potential for significant
environmental effects. No further NEPA
analysis is required.
I. Paperwork Reduction Act
The Paperwork Reduction Act (PRA),
44 U.S.C. 3501 et seq., provides that a
Federal agency generally cannot
conduct or sponsor a collection of
information, and the public is generally
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not required to respond to an
information collection, unless it is
approved by OMB under the PRA and
displays a currently valid OMB Control
Number. In addition, notwithstanding
any other provisions of law, no person
shall generally be subject to penalty for
failing to comply with a collection of
information that does not display a
valid Control Number. See 5 CFR
1320.5(a) and 1320.6. DOL has
submitted the Information Collection
Request (ICR) contained in this rule to
OMB and obtained approval using
emergency clearance procedures
outlined at 5 CFR 1320.13. The
Departments note that while DOL
submitted the ICR, both DHS and DOL
will use the information.
More specifically, this rule includes a
new form (Attestation for Employers
Seeking to Employ H–2B
Nonimmigrants Workers Under Section
543 of the Consolidated Appropriations
Act, Form ETA–9142–B–CAA) for
petitioners to submit to DHS, and that
petitioners will use to make the
irreparable harm attestation described
above. The petitioner would file the
attestation with DHS. In addition, the
petitioner may need to advertise the
positions. Finally, the petitioner will
need to retain documents and records
proving compliance with this
implementing rule, and must provide
the documents and records to DHS and
DOL staff in the event of an audit or
investigation. The information
collection requirements associated with
this rule are summarized as follows:
Agency: DOL–ETA.
Type of Information Collection: New
collection.
Title of the Collection: H–2B
Nonimmigrants Workers Under Section
543 of the Consolidated Appropriations
Act.
Agency Form Number: ETA–9142–B–
CAA.
Affected Public: Private Sector—
businesses or other for-profits.
Total Estimated Number of
Respondents: 2,298.
Average Responses per Year per
Respondent: 1.
Total Estimated Number of
Responses: 2,298.
Average Time per Response: 6.25
hours per application.
Total Estimated Annual Time Burden:
14,363 hours.
Total Estimated Other Costs Burden:
$679,174.
List of Subjects
8 CFR Part 214
Administrative practice and
procedure, Aliens, Cultural exchange
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programs, Employment, Foreign
officials, Health professions, Reporting
and recordkeeping requirements,
Students.
20 CFR Part 655
Administrative practice and
procedure, Employment, Employment
and training, Enforcement, Foreign
workers, Forest and forest products,
Fraud, Health professions, Immigration,
Labor, Longshore and harbor work,
Migrant workers, Nonimmigrant
workers, Passports and visas, Penalties,
Reporting and recordkeeping
requirements, Unemployment, Wages,
Working conditions.
Department of Homeland Security
8 CFR Chapter I
For the reasons discussed in the joint
preamble, part 214 of chapter I of title
8 of the Code of Federal Regulations is
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, 1102, 1103,
1182, 1184, 1186a, 1187, 1221, 1281, 1282,
1301–1305 and 1372; sec. 643, Pub. L. 104–
208, 110 Stat. 3009–708; Public Law 106–
386, 114 Stat. 1477–1480; section 141 of the
Compacts of Free Association with the
Federated States of Micronesia and the
Republic of the Marshall Islands, and with
the Government of Palau, 48 U.S.C. 1901 note
and 1931 note, respectively; 48 U.S.C. 1806;
8 CFR part 2.
2. Effective July 19, 2017 through
September 30, 2017, amend § 214.2 by
adding paragraph (h)(6)(x) to read as
follows:
■
§ 214.2 Special requirements for
admission, extension, and maintenance of
status
*
*
*
*
*
(h) * * *
(6) * * *
(x) Special requirements for
additional cap allocations under the
Consolidated Appropriations Act, 2017,
Public Law 115–31—(A) Public Law
115–31. Notwithstanding the numerical
limitations set forth in paragraph
(h)(8)(i)(C) of this section, for fiscal year
2017 only, the Secretary has authorized
up to an additional 15,000 aliens who
may receive H–2B nonimmigrant visas
pursuant to section 543 of the
Consolidated Appropriations Act, 2017,
Public Law 115–31. Notwithstanding
§ 248.2 of this part, an alien may not
change status to H–2B nonimmigrant
under this provision.
(B) Eligibility. In order to file a
petition with USCIS under this
paragraph (h)(6)(x), the petitioner must:
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(1) Comply with all other statutory
and regulatory requirements for H–2B
classification, including requirements in
this section, under part 103 of this
chapter, and under parts 655 of Title 20
and 503 of Title 29; and
(2) Submit to USCIS, at the time the
employer files its petition, a U.S.
Department of Labor attestation, in
compliance with 20 CFR 655.64,
evidencing that without the ability to
employ all of the H–2B workers
requested on the petition filed pursuant
to this paragraph (h)(6)(x), its business
is likely to suffer irreparable harm (that
is, permanent and severe financial loss),
and that the employer will provide
documentary evidence of this fact to
DHS or DOL upon request.
(C) Processing. USCIS will reject
petitions filed pursuant to this
paragraph (h)(6)(x) that are received
after the numerical limitation has been
reached or after September 15, 2017,
whichever is sooner. USCIS will not
approve a petition filed pursuant to this
paragraph (h)(6)(x) on or after October 1,
2017.
(D) Sunset. This paragraph (h)(6)(x)
expires on October 1, 2017.
(E) Non-severability. The requirement
to file an attestation under paragraph
(h)(6)(x)(B)(2) of this section is intended
to be non-severable from the remainder
of this paragraph (h)(6)(x); in the event
that paragraph (h)(6)(x)(B)(2) is enjoined
or held to be invalid by any court of
competent jurisdiction, this paragraph
(h)(6)(x) is also intended to be enjoined
or held to be invalid in such
jurisdiction, without prejudice to
workers already present in the United
States under this regulation, as
consistent with law.
*
*
*
*
*
Department of Labor
Accordingly, for the reasons stated in
the joint preamble, 20 CFR part 655 is
amended as follows:
Title 20—Employees’ Benefits
PART 655—TEMPORARY
EMPLOYMENT OF FOREIGN
WORKERS IN THE UNITED STATES
3. The authority citation for part 655
continues to read as follows:
■
Authority: Section 655.0 issued under 8
U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i)
and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n) and
(t), 1184(c), (g), and (j), 1188, and 1288(c) and
(d); sec. 3(c)(1), Pub. L. 101–238, 103 Stat.
2099, 2102 (8 U.S.C. 1182 note); sec. 221(a),
Pub. L. 101–649, 104 Stat. 4978, 5027 (8
U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102–
232, 105 Stat. 1733, 1748 (8 U.S.C. 1101
note); sec. 323(c), Pub. L. 103–206, 107 Stat.
2428; sec. 412(e), Pub. L. 105–277, 112 Stat.
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2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L.
106–95, 113 Stat. 1312, 1316 (8 U.S.C. 1182
note); 29 U.S.C. 49k; Pub. L. 107–296, 116
Stat. 2135, as amended; Pub. L. 109–423, 120
Stat. 2900; 8 CFR 214.2(h)(4)(i); and 8 CFR
214.2(h)(6)(iii).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8
CFR 214.2(h).
Subparts F and G issued under 8 U.S.C.
1288(c) and (d); sec. 323(c), Pub. L. 103–206,
107 Stat. 2428; and 28 U.S.C. 2461 note, Pub.
L. 114–74 at section 701.
Subparts H and I issued under 8 U.S.C.
1101(a)(15)(H)(i)(b) and (b)(1), 1182(n) and
(t), and 1184(g) and (j); sec. 303(a)(8), Pub. L.
102–232, 105 Stat. 1733, 1748 (8 U.S.C. 1101
note); sec. 412(e), Pub. L. 105–277, 112 Stat.
2681; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114–74 at section 701.
Subparts L and M issued under 8 U.S.C.
1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d),
Pub. L. 106–95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109–423, 120 Stat. 2900;
and 8 CFR 214.2(h).
4. Effective July 19, 2017 through
September 30, 2017, add § 655.64 to
read as follows:
■
mstockstill on DSK30JT082PROD with RULES
§ 655.64 Special Eligibility Provisions for
Fiscal Year 2017 under the Consolidated
Appropriations Act.
An employer filing a petition with
USCIS under 8 CFR 214.2(h)(6)(x) to
employ H–2B workers from July 19,
2017 through September 15, 2017 must
meet the following requirements:
(a) The employer must attest on Form
ETA–9142–B–CAA that without the
ability to employ all of the H–2B
workers requested on the petition filed
pursuant to 8 CFR 214.2(h)(6)(x), its
business is likely to suffer irreparable
harm (that is, permanent and severe
financial loss), and that the employer
will provide documentary evidence of
this fact to DHS or DOL upon request.
(b) An employer with a start date of
work before June 1, 2017 on its
approved Temporary Labor
Certification, must conduct additional
recruitment of U.S. workers as follows:
(1) The employer must place a new
job order for the job opportunity with
the State Workforce Agency, serving the
area of intended employment. The job
order must contain the job assurances
and contents set forth in 20 CFR 655.18
for recruitment of U.S. workers at the
place of employment, and remain
posted for at least 5 days beginning not
later than the next business day after
submitting a petition for H–2B
worker(s); and
(2) The employer must place one
newspaper advertisement on any day of
the week meeting the advertising
requirements of 20 CFR 655.41, during
the period of time the State Workforce
Agency is actively circulating the job
order for intrastate clearance; and
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(3) The employer must hire any
qualified U.S. worker who applies or is
referred for the job opportunity until 2
business days after the last date on
which the job order is posted under
paragraph (c)(1) of this section.
Consistent with 20 CFR 655.40(a),
applicants can be rejected only for
lawful job-related reasons.
(c) This section expires on October 1,
2017.
(d) Non-severability. The requirement
to file an attestation under paragraph (a)
of this section is intended to be nonseverable from the remainder of this
section; in the event that paragraph (a)
is enjoined or held to be invalid by any
court of competent jurisdiction, the
remainder of this section is also
intended to be enjoined or held to be
invalid in such jurisdiction, without
prejudice to workers already present in
the United States under this regulation,
as consistent with law.
3. Effective July 19, 2017 through
September 30, 2020, add § 655.65 to
read as follows:
■
§ 655.65 Special Document Retention
Provisions for Fiscal Years 2017 through
2020 under the Consolidated
Appropriations Act.
(a) An employer that files a petition
with USCIS to employ H–2B workers in
fiscal year 2017 under authority of the
temporary increase in the numerical
limitation under Public Law 115–31
must maintain for a period of 3 years
from the date of certification, consistent
with 20 CFR 655.56 and 29 CFR 503.17,
the following:
(1) A copy of the attestation filed
pursuant to regulations governing that
temporary increase;
(2) Evidence establishing that
employer’s business is likely to suffer
irreparable harm (that is, permanent and
severe financial loss), if it cannot
employ H–2B nonimmigrant workers in
fiscal year 2017;
(3) If applicable, evidence of
additional recruitment and a
recruitment report that meets the
requirements set forth in 20 CFR
655.48(a)(1), (2), and (7).
DOL or DHS may inspect these
documents upon request.
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32999
(b) This section expires on October 1,
2020.
John F. Kelly,
Secretary of Homeland Security.
Alexander Acosta,
Secretary of Labor.
Appendix A
Attestation for Employers Seeking To
Employ H–2B Nonimmigrant Workers Under
Section 543 of the Consolidated
Appropriations Act, 2017 Public Law 115–31
(May 5, 2017)
By virtue of my signature below, I hereby
certify that the following is true and correct:
(A) I am an employer with an approved
labor certification from the Department of
Labor seeking permission to employ H–2B
nonimmigrant workers for temporary
employment in the United States.
(B) I was granted temporary labor
certification from the Department of Labor
(DOL) for my business’s job opportunity,
which required that the worker(s) begin
employment before October 1, 2017 and is
currently valid.
(C) I attest that if my business cannot
employ all the H–2B nonimmigrant workers
requested on my Form I–129 petition before
the end of this fiscal year (September 30,
2017) in the job opportunity certified by
DOL, my business is likely to suffer
irreparable harm (that is, permanent and
severe financial loss).
(D) I attest that my business has a bona fide
temporary need for all the H–2B
nonimmigrant workers requested on the
Form I–129 petition, consistent with 8 CFR
214.2(h)(6)(ii).
(E) If my current labor certification
contains a start date of work before June 1,
2017, I will complete a new assessment of the
United States labor market in advance of H–
2B nonimmigrant workers coming to the
United States to begin employment before
October 1, 2017, as follows:
1. I will place a new job order for the job
opportunity with the State Workforce Agency
(SWA) serving the area of intended
employment that contains the job assurances
and contents set forth in 20 CFR 655.18 for
recruitment of U.S. workers at the place of
employment for at least 5 days beginning not
later than the next business day after
submitting a petition for an H–2B
nonimmigrant worker(s) and this
accompanying attestation to U.S. Citizenship
and Immigration Services;
2. I will place one newspaper
advertisement, which may be published on
any day of the week, meeting the advertising
requirements of 20 CFR 655.41, during the
period of time the SWA is actively
circulating the job order for intrastate
clearance; and
3. I will offer the job to any qualified and
available U.S. worker who applies or is
referred for the job opportunity until 2
business days after the last date on which the
job order is posted. I understand that
consistent with 20 CFR 655.40(a), applicants
can be rejected only for lawful job-related
reasons.
(F) I agree to retain a copy of this signed
attestation form, the additional recruitment
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documentation, including a recruitment
report that meets the requirements for
recruitment reports set forth in 20 CFR
655.48(a)(1),(2) & (7), together with evidence
establishing that my business meets the
standard described in paragraph (C) of this
attestation, for a period of 3 years from the
date of certification, consistent with the
document retention requirements under 20
CFR 655.65, 20 CFR 655.56, and 29 CFR
503.17. Further, I agree to provide this
documentation to a DHS or DOL official
upon request.
(G) I agree to comply with all assurances,
obligations, and conditions of employment
set forth in the Application for Temporary
Employment Certification (Form ETA 9142B
and Appendix B) certified by the DOL for my
business’s job opportunity.
I hereby sign this under penalty of perjury:
[FR Doc. 2017–15208 Filed 7–17–17; 11:15 am]
(ADAMS): You may obtain publiclyavailable documents online in the
ADAMS Public Documents collection at
https://www.nrc.gov/reading-rm/
adams.html. To begin the search, select
‘‘ADAMS Public Documents’’ and then
select ‘‘Begin Web-based ADAMS
Search.’’ For problems with ADAMS,
please contact the NRC’s Public
Document Room (PDR) reference staff at
1–800–397–4209, 301–415–4737, or by
email to pdr.resource@nrc.gov.
• NRC’s PDR: You may examine and
purchase copies of public documents at
the NRC’s PDR, Room O1–F21, One
White Flint North, 11555 Rockville
Pike, Rockville, Maryland 20852.
FOR FURTHER INFORMATION CONTACT:
Michele Kaplan, Office of the Chief
Financial Officer, U.S. Nuclear
Regulatory Commission, Washington,
DC 20555–0001, telephone: 301–415–
5256, email: Michele.Kaplan@nrc.gov.
SUPPLEMENTARY INFORMATION: The NRC
published a final rule amending its
regulations in parts 170 and 171 of title
10 of the Code of Federal Regulations
that will become effective August 29,
2017. The FY 2017 final fee rule,
published June 30, 2017 (82 FR 30682),
amends the licensing, inspection,
special project, and annual fees charged
to NRC applicants and licensees.
The FY 2017 final fee rule contained
inadvertent errors in the calculation of
the fuel facilities fee class annual fees.
Although the fuel facilities total annual
fee recovery amount was correctly
calculated at $28.4 million, the NRC
staff incorrectly calculated the prorated
unpaid portion of Lead Cascade’s
annual fee to be spread among the six
fee categories within the fee class for the
remaining licensees. When prorating
Lead Cascade’s expected annual fee, the
NRC staff mistakenly used the 1.E. fee
category, which caused the calculated
unpaid prorated amount to be higher
than the actual prorated amount by $1.5
million. To correct this situation, the
NRC staff lowered the amount to be
recovered from the remaining licensees
by $1.5 million. This rule, therefore,
corrects fee categories 1.A.(1)(a),
1.A.(1)(b), 1.A.(2)(b), 1.A.(2)(c), 1.E., and
2.A.(1) in the table in § 171.16(d) and
Table VIII in the portion of the final rule
preamble that includes these fees.
NUCLEAR REGULATORY
COMMISSION
10 CFR Parts 170 and 171
[NRC–2016–0081]
RIN 3150–AJ73
Revision of Fee Schedules; Fee
Recovery for Fiscal Year 2017;
Corrections
Nuclear Regulatory
Commission.
ACTION: Final rule; correction.
AGENCY:
The U.S. Nuclear Regulatory
Commission (NRC) published a final
rule amending regulations that will
become effective August 29, 2017. The
fiscal year (FY) 2017 final fee rule,
published June 30, 2017, amends the
licensing, inspection, special project,
and annual fees charged to NRC
applicants and licensees. This
document corrects the annual fees for
fuel facility licensees.
DATES: Effective Date: These corrections
are effective on August 29, 2017.
ADDRESSES: Please refer to Docket ID
NRC–2016–0081 when contacting the
NRC about the availability of
information for this action. You may
obtain publicly-available information
related to this action by any of the
following methods:
• Federal Rulemaking Web site: Go to
https://www.regulations.gov and search
for Docket ID NRC–2016–0081. Address
questions about NRC dockets to Carol
Gallagher; telephone: 301–415–3463;
email: Carol.Gallagher@nrc.gov. For
technical questions, contact the
individual listed in the FOR FURTHER
INFORMATION CONTACT section of this
document.
• NRC’s Agencywide Documents
Access and Management System
mstockstill on DSK30JT082PROD with RULES
SUMMARY:
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Rulemaking Procedure
Under the Administrative Procedure
Act (5 U.S.C. 553(b)), an agency may
waive the normal notice and comment
requirements if it finds, for good cause,
that they are impracticable,
unnecessary, or contrary to the public
interest. As authorized by 5 U.S.C.
553(b)(3)(B) and (d)(3), the NRC finds
good cause to waive notice and
opportunity for comment on these
amendments and to make this final rule
effective on August 29, 2017, the
effective date of the FY 2017 final rule.
These amendments are necessary to
correct an error in the NRC’s fee
calculations and do not involve changes
to NRC policy or the exercise of agency
discretion. Second, these amendments
will have no adverse effect on any
person or entity regulated by the NRC
because these amendments will lower
annual fees (if anything, these
amendments will have a beneficial
effect on the affected fee classes). For
these reasons, an opportunity for
comment would not be meaningful.
These amendments need to be effective
on August 29, 2017, the effective date of
the FY 2017 final rule, in order to avoid
incorrect payments by stakeholders in
the affected fee classes and the
consequent administrative burden on
the NRC if refunds must be processed.
Correction of Errors
In FR Doc. 2017–13520, appearing on
page 30682 in the Federal Register of
Friday, June 30, 2017, the following
corrections are made:
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BILLING CODE 4510–FP–P; 4510–27–P; 9111–97–P
]]>Agencies
- DEPARTMENT OF HOMELAND SECURITY
- DEPARTMENT OF LABOR
- Employment and Training Administration Wage and Hour Division
[Federal Register Volume 82, Number 137 (Wednesday, July 19, 2017)]
[Rules and Regulations]
[Pages 32987-33000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-15208]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 82, No. 137 / Wednesday, July 19, 2017 /
Rules and Regulations
[[Page 32987]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 214
[CIS No. 2605-17; DHS Docket No. USCIS-2017-0004]
RIN 1615-AC12
DEPARTMENT OF LABOR
Employment and Training Administration Wage and Hour Division
20 CFR Part 655
[DOL Docket No. 2017-0003]
RIN 1205-AB84
Exercise of Time-Limited Authority To Increase the Fiscal Year
2017 Numerical Limitation for the H-2B Temporary Nonagricultural Worker
Program
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security and Employment and Training Administration and Wage
and Hour Division, Department of Labor.
ACTION: Temporary rule.
-----------------------------------------------------------------------
SUMMARY: The Secretary of Homeland Security (``Secretary''), in
consultation with the Secretary of Labor, has decided to increase the
numerical limitation on H-2B nonimmigrant visas to authorize the
issuance of up to an additional 15,000 through the end of Fiscal Year
(FY) 2017. This is a one-time increase based on a time-limited
statutory authority and does not affect the H-2B program in future
fiscal years. The Departments are promulgating regulations to implement
this determination.
DATES: This final rule is effective from July 19, 2017 through
September 30, 2017, except for the addition of 20 CFR 655.65, which is
effective from July 19, 2017 through September 30, 2020.
FOR FURTHER INFORMATION CONTACT: Regarding 8 CFR part 214: Kevin J.
Cummings, Chief, Business and Foreign Workers Division, Office of
Policy and Strategy, U.S. Citizenship and Immigration Services,
Department of Homeland Security, 20 Massachusetts Ave NW., Suite 1100,
Washington, DC 20529-2120, telephone (202) 272-8377 (not a toll-free
call). Regarding 20 CFR part 655: William W. Thompson, II,
Administrator, Office of Foreign Labor Certification, Employment and
Training Administration, Department of Labor, Box #12-200, 200
Constitution Ave. NW., Washington, DC 20210, telephone (202) 513-7350
(this is not a toll-free number).
Individuals with hearing or speech impairments may access the
telephone numbers above via TTY by calling the toll-free Federal
Information Relay Service at 1-877-889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Legal Framework
B. H-2B Numerical Limitations Under the INA
C. FY 2017 Omnibus
D. Joint Issuance of the Final Rule
II. Discussion
A. Statutory Determination
B. Numerical Increase of Up to 15,000
C. Business Need Standard--Irreparable Harm
D. DHS Petition Procedures
E. DOL Procedures
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Small Business Regulatory Enforcement Fairness Act of 1996
E. Executive Orders 12866 (Regulatory Planning and Review) and
13563 (Improving Regulation and Regulatory Review), and 13771
(Reducing Regulation and Controlling Regulatory Costs)
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice Reform)
H. National Environmental Policy Act
I. Paperwork Reduction Act
I. Background
A. Legal Framework
The Immigration and Nationality Act (INA) establishes the H-2B
nonimmigrant classification for a nonagricultural temporary worker
``having a residence in a foreign country which he has no intention of
abandoning who is coming temporarily to the United States to perform .
. . temporary [non-agricultural] service or labor if unemployed persons
capable of performing such service or labor cannot be found in this
country.'' INA section 101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b). Employers must petition DHS for classification
of prospective temporary workers as H-2B nonimmigrants. INA section
214(c)(1), 8 U.S.C. 1184(c)(1). DHS must approve this petition before
the beneficiary can be considered eligible for an H-2B visa. Finally,
the INA requires that ``[t]he question of importing any alien as [an H-
2B] nonimmigrant . . . in any specific case or specific cases shall be
determined by [DHS],\1\ after consultation with appropriate agencies of
the Government.'' INA section 214(c)(1), 8 U.S.C. 1184(c)(1).
---------------------------------------------------------------------------
\1\ As of March 1, 2003, in accordance with section 1517 of
Title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-
296, 116 Stat. 2135, any reference to the Attorney General in a
provision of the Immigration and Nationality Act describing
functions which were transferred from the Attorney General or other
Department of Justice official to the Department of Homeland
Security by the HSA ``shall be deemed to refer to the Secretary'' of
Homeland Security. See 6 U.S.C. 557 (2003) (codifying HSA, Title XV,
Sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note.
---------------------------------------------------------------------------
DHS regulations provide that an H-2B petition for temporary
employment in the United States must be accompanied by an approved
temporary labor certification (TLC) from DOL. 8 CFR 214.2(h)(6)(iii)(A)
& (C), (iv)(A). The TLC serves as DHS's consultation with DOL with
respect to whether a qualified U.S. worker is available to fill the
petitioning H-2B employer's job opportunity and whether a foreign
worker's employment in the job opportunity will adversely affect the
wages or working conditions of similarly employed U.S. workers. See INA
section 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and
(D).
The Departments have established regulatory procedures under which
DOL certifies whether a qualified U.S. worker is available to fill the
job opportunity described in the employer's petition for a temporary
nonagricultural worker, and whether a foreign worker's employment in
the job opportunity will adversely affect the wages or working
conditions of similarly employed U.S. workers. See
[[Page 32988]]
20 CFR part 655, subpart A. The regulations establish the process by
which employers obtain a TLC, and the rights and obligations of workers
and employers.
The INA also authorizes DHS to impose appropriate remedies against
an employer for a substantial failure to meet the terms and conditions
of employing an H-2B nonimmigrant worker, or for a willful
misrepresentation of a material fact in a petition for an H-2B
nonimmigrant worker. INA section 214(c)(14)(A), 8 U.S.C.
1184(c)(14)(A). The INA expressly authorizes DHS to delegate certain
enforcement authority to DOL. INA section 214(c)(14)(B), 8 U.S.C.
1184(c)(14)(B). DHS has delegated this authority to DOL. See DHS,
Delegation of Authority to DOL under Section 214(c)(14)(A) of the
Immigration and Nationality Act (Jan. 16, 2009); see also 8 CFR
214.2(h)(6)(ix) (stating that DOL may investigate employers to enforce
compliance with the conditions of, among other things, an H-2B petition
and a DOL-approved TLC). This enforcement authority has been delegated
within DOL to the Wage and Hour Division, and is governed by
regulations at 29 CFR part 503.
B. H-2B Numerical Limitations Under the INA
The INA sets the annual number of aliens who may be issued H-2B
visas or otherwise provided H-2B nonimmigrant status to perform
temporary nonagricultural work at 66,000, to be distributed semi-
annually beginning in October and in April. See INA sections
214(g)(1)(B) and 214(g)(10), 8 U.S.C. 1184(g)(1)(B) and 8 U.S.C.
1184(g)(10). Up to 33,000 aliens may be issued H-2B visas or provided
H-2B nonimmigrant status in the first half of a fiscal year, and the
remaining annual allocation will be available for employers seeking to
hire H-2B workers during the second half of the fiscal year.\2\ If
insufficient petitions are approved to use all H-2B numbers in a given
fiscal year, the unused numbers cannot be carried over for petition
approvals in the next fiscal year.
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\2\ The Federal Government's fiscal year runs from October 1 of
the budget's prior year through September 30 of the year being
described. For example, fiscal year 2017 is from October 1, 2016
through September 30, 2017.
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Because of the intense competition for H-2B visas in recent years,
the semi-annual visa allocation, and the regulatory requirement that
employers apply for labor certification 75 to 90 days before the start
date of work,\3\ employers who wish to obtain visas for their workers
under the semi-annual allotment must act early to receive a TLC and
file a petition with USCIS. As a result, DOL typically sees a
significant spike in TLC applications for H-2B visas for temporary or
seasonal jobs during the U.S.'s warm weather months. For example, in FY
2017, from Applications for Temporary Labor Certification filed in
January, DOL's Office of Foreign Labor Certification (OFLC) certified
54,827 worker positions for start dates of work on April 1, in excess
of the entire semi-annual visa allocation. USCIS received sufficient H-
2B petitions to meet the second half of the fiscal year regular cap on
March 13, 2017. This was the earliest date that the cap was reached in
a respective fiscal year since FY 2009 and reflects an ongoing trend of
high program demand, as further represented by the FY 2016
reauthorization of the returning worker cap exemption and by section
543 of the Consolidated Appropriations Act, 2017, Public Law 115-31 (FY
2017 Omnibus), which is discussed below.
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\3\ 20 CFR 655.15(b).
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C. FY 2017 Omnibus
On May 5, 2017, the President signed the FY 2017 Omnibus, which
contains a provision (section 543 of division F, hereinafter ``section
543'') permitting the Secretary of Homeland Security, under certain
circumstances and after consultation with the Secretary of Labor, to
increase the number of H-2B visas available to U.S. employers,
notwithstanding the otherwise established statutory numerical
limitation. Specifically, section 543 provides that ``the Secretary of
Homeland Security, after consultation with the Secretary of Labor, and
upon the determination that the needs of American businesses cannot be
satisfied in [FY] 2017 with U.S. workers who are willing, qualified,
and able to perform temporary nonagricultural labor,'' may increase the
total number of aliens who may receive an H-2B visa in FY 2017 by not
more than the highest number of H-2B nonimmigrants who participated in
the H-2B returning worker program in any fiscal year in which returning
workers were exempt from the H-2B numerical limitation.\4\ This rule
implements the authority contained in section 543.
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\4\ The highest number of returning workers in any such fiscal
year was 64,716, which represents the number of beneficiaries
covered by H-2B returning worker petitions that were approved for FY
2007. DHS also considered using an alternative approach, under which
DHS measured the number of H-2B returning workers admitted at the
ports of entry (66,792 for FY 2007).
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D. Joint Issuance of the Final Rule
The Departments have determined that it is appropriate to issue
this final rule jointly. This determination is related to ongoing
litigation following conflicting court decisions concerning DOL's
authority to independently issue legislative rules to carry out its
consultative function pertaining to the H-2B program under the INA.\5\
Although DHS and DOL each have authority to independently issue rules
implementing their respective duties under the H-2B program, the
Departments are implementing section 543 in this manner to ensure there
can be no question about the authority underlying the administration
and enforcement of the temporary cap increase. This approach is
consistent with recent rules implementing DOL's general consultative
role under section 214(c)(1) of the INA, 8 U.S.C. 1184(c)(1). See also
8 CFR 214.2(h)(6)(iv).\6\
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\5\ See Temporary Non-Agricultural Employment of H-2B Aliens in
the United States, 80 FR 24042 (Apr. 29, 2015) (codified at 8 CFR
part 214, 20 CFR part 655, and 29 CFR part 503).
\6\ On April 29, 2015, following a court's vacatur of nearly all
of DOL's H-2B regulations, Perez v. Perez, No. 14-cv-682 (N.D. Fla.
Mar. 4, 2015), the Departments jointly promulgated an interim final
rule governing DOL's role in enforcing the statutory and regulatory
rights and obligations applicable to employment under the H-2B
program. See Temporary Non-Agricultural Employment of H-2B Aliens in
the United States, 80 FR 24042 (Apr. 29, 2015) (codified at 8 CFR
part 214, 20 CFR part 655, and 29 CFR part 503).
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II. Discussion
A. Statutory Determination
Following consultation with the Secretary of Labor, the Secretary
of Homeland Security has determined that the needs of some American
businesses cannot be satisfied in FY 2017 with U.S. workers who are
willing, qualified, and able to perform temporary nonagricultural
labor. In accordance with the FY 2017 Omnibus, the Secretary of
Homeland Security has determined that it is appropriate, for the
reasons stated below, to raise the numerical limitation on H-2B
nonimmigrant visas by up to an additional 15,000 for the remainder of
the fiscal year. Consistent with such authority, the Secretary of
Homeland Security has decided to increase the H-2B cap for FY 2017 by
up to 15,000 additional visas for those American businesses that attest
to a level of need such that, if they do not receive all of the workers
under the cap increase, they are likely to suffer irreparable harm,
i.e., suffer a permanent and severe financial loss. These businesses
must attest that they will likely suffer irreparable harm and must
retain documentation, as
[[Page 32989]]
described below, supporting this attestation.
The Secretary of Homeland Security's determination to increase the
numerical limitation is based on the conclusion that some businesses
face closing their doors in the absence of a cap increase. Some
stakeholders have reported that access to additional H-2B visas is
essential to the continued viability of some small businesses that play
an important role in sustaining the economy in their states, while
others have stated that an increase is unnecessary and raises the
possibility of abuse.\7\ The Secretary of Homeland Security has deemed
it appropriate, notwithstanding such risk of abuse, to take immediate
action to avoid irreparable harm to businesses; such harm would in turn
result in wage and job losses by their U.S. workers, and other adverse
downstream economic effects.\8\
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\7\ Other stakeholders have reported abuses of the H-2B program.
For example, the Government Accountability Office, has recommended
increased worker protections in the H-2B program based on certain
abuses of the program by unscrupulous employers and recruiters. See
U.S. Government Accountability Office, H-2A and H-2B Visa Programs:
Increased Protections Needed for Foreign Workers, GAO-15-154
(Washington DC, revised 2017), https://www.gao.gov/assets/690/684985.pdf; U.S. Government Accountability Office, H-2B Visa
Program: Closed Civil Criminal Cases Illustrate Instances of H-2B
Workers Being Targets of Fraud and Abuse, GAO-10-1053 (Washington
DC, 2010), https://www.gao.gov/assets/320/310640.pdf; see also
Testimony of Stephen G. Bronars, The Impact of the H-2B Program on
the U.S. Labor Market, before the Senate Subcommittee on Immigration
and the National Interest (June 8, 2016), https://www.judiciary.senate.gov/imo/media/doc/06-08-16BronarsTestimony.pdf.
Preliminary Analysis of the Economic Impact of the H-2B Worker
Program on Virginia's Economy, Thomas J. Murray (Sept. 2011), https://web.vims.edu/GreyLit/VIMS/mrr11-12.pdf.
\8\ See Randel K. Johnson & Tamar Jacoby, U.S. Chamber of
Commerce & ImmigrationWorks USA, The Economics of the H-2B Program
(Oct. 28, 2010), available at https://www.uschamber.com/sites/default/files/documents/files/16102_LABR%2520H2BReport_LR.pdf. (last
visited June 22, 2017).
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The decision to direct the benefits of this one-time cap increase
to businesses that need workers to avoid irreparable harm, rather than
directing the cap increase to any and all businesses seeking temporary
workers, is consistent with the Secretary's broad discretion under
section 543. Section 543 provides that the Secretary, upon satisfaction
of the statutory business need standard, may increase the numerical
limitation to meet such need.\9\ The scope of the assessment called for
by the statute is quite broad, and accordingly delegates the Secretary
broad discretion to identify the business needs he finds most relevant.
Within that context, DHS has determined to focus on the businesses with
the most permanent, severe potential losses, for the below reasons.
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\9\ DHS believes it is reasonable to infer that Congress
intended, in enacting the FY 2017 Omnibus, to authorize the
Secretary to allocate any new H-2B visas authorized under section
543 to the entities with the ``business need'' that serves as the
basis for the increase.
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First, DHS interprets section 543's reference to ``the needs of
American businesses'' as describing a need different than the need
required of employers in petitioning for an H-2B worker.\10\ If the
term ``needs'' in section 543 referred to the same business need
entailed under the existing H-2B program, it would not have been
necessary for Congress to reference such need, because Congress could
have relied on existing statute and regulations. Alternatively,
Congress could have made explicit reference to such statute and
regulations. Accordingly, DHS interprets this authority as authorizing
DHS to address relatively heightened business need, beyond the existing
requirements of the H-2B program. DOL concurs in this interpretation.
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\10\ A petitioning employer must demonstrate that it has a
temporary need for the services or labor for which it seeks to hire
H-2B workers. See 8 CFR 214.2(h)(6)(ii); 20 CFR 655.6.
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Second, this approach limits the one-time increase in a way that is
responsive to stakeholders who, citing potential adverse impacts on
U.S. workers from a general cap increase applicable to all potential
employers, sought opportunities for more formal input and analysis
prior to such an increase. Although the calendar does not lend itself
to such additional efforts, the Secretary has determined that in the
unique circumstances presented here, it is appropriate to tailor the
availability of this temporary cap increase to those businesses likely
to suffer irreparable harm, i.e., those facing permanent and severe
financial loss.
Under this rule, employers must also meet, among other
requirements, the generally applicable requirements that insufficient
qualified U.S. workers are available to fill the petitioning H-2B
employer's job opportunity and that the foreign worker's employment in
the job opportunity will not adversely affect the wages or working
conditions of similarly employed U.S. workers. INA section 214(c)(1), 8
U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and (D); 20 CFR 655.1. To
meet this standard, in order to be eligible for additional visas under
this rule, employers must have a valid TLC in accordance with 8 CFR
214.2(h)(6)(iv)(A) and (D), and 20 CFR 655 subpart A. Under DOL's H-2B
regulations, TLCs expire on the last day of authorized employment. 20
CFR 655.55(a). Therefore, in order to have an unexpired TLC, the date
on the employer's visa petition must not be later than the last day of
authorized employment on the TLC. This rule also requires an additional
recruitment for certain petitioners, as discussed below.
Accordingly, this rule increases the FY 2017 numerical limitation
by up to 15,000 to ensure a sufficient number of visas to meet the
level of demand in past years, but also restricts the availability of
such visas by prioritizing only the most significant business needs.
These provisions are each described in turn below.
B. Numerical Increase of Up to 15,000
DHS expects the increase of up to 15,000 visas \11\ to be
sufficient to meet at least the same amount of need as the H-2B program
met in FY 2016. Section 543 of the FY 2017 Omnibus sets as the maximum
limit for any increase in the H-2B numerical limitation for FY 2017,
the highest number of H-2B returning workers \12\ who were exempt from
the cap in previous years. Consistent with the statute's reference to
H-2B returning workers, in determining the appropriate number by which
to increase the H-2B numerical limitation, the Secretary focused on the
number of visas allocated to returning workers in years in which
Congress enacted ``returning
[[Page 32990]]
worker'' exemptions from the H-2B numerical limitation. During each of
the years the returning worker provision was in force, U.S. employers'
standard business needs for H-2B workers exceeded the normal 66,000
cap.
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\11\ In contrast with section 214(g)(1) of the INA, 8 U.S.C.
1184(g)(1), which establishes a cap on the number of individuals who
may be issued visas or otherwise provided H-2B status, and section
214(g)(10) of the INA, 8 U.S.C. 1184(g)(10), which imposes a first
half of the fiscal year cap on H-2B issuance with respect to the
number of individuals who may be issued visas or are accorded [H-2B]
status'' (emphasis added), section 543 only authorizes DHS to
increase the number of available H-2B visas. Accordingly, DHS will
not permit individuals authorized for H-2B status pursuant to an H-
2B petition approved under section 543 to change to H-2B status from
another nonimmigrant status. See INA section 248, 8 U.S.C. 1258; see
also 8 CFR pt. 248. If a petitioner files a petition seeking H-2B
workers in accordance with this rule and requests a change of status
on behalf of someone in the United States, the change of status
request will be denied, but the petition will be adjudicated in
accordance with applicable DHS regulations. Any alien authorized for
H-2B status under the approved petition would need to obtain the
necessary H-2B visa at a consular post abroad and then seek
admission to the United States in H-2B status at a port of entry.
\12\ During fiscal years 2005 to 2007, and 2016, Congress
enacted ``returning worker'' exemptions to the H-2B visa cap,
allowing workers who were counted against the H-2B cap in one of the
three preceding fiscal years not to be counted against the upcoming
fiscal year cap. Save Our Small and Seasonal Businesses Act of 2005,
Public Law 109-13, Sec. 402 (May 11, 2005); John Warner National
Defense Authorization Act, Public Law 109-364, Sec. 1074, (Oct. 17,
2006); Consolidated Appropriations Act of 2016, Public Law 114-113,
Sec. 565 (Dec. 18, 2015).
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Most recently, in FY 2016, 18,090 returning workers were approved
for H-2B petitions, despite Congress having reauthorized the returning
worker program with more than three-quarters of the fiscal year
remaining. Of those 18,090 workers authorized for admission, 13,382
were admitted into the United States or otherwise acquired H-2B status.
While section 543 does not limit the issuance of additional H-2B visas
to returning workers, the Secretary, in consideration of the statute's
reference to returning workers, determined that it would be appropriate
to use these recent figures as a basis for the maximum numerical
limitation under section 543. This rule therefore authorizes up to
15,000 additional H-2B visas (rounded up from 13,382) for FY 2017.
C. Business Need Standard--Irreparable Harm
To file an H-2B petition during the remainder of FY 2017,
petitioners must meet all existing H-2B eligibility requirements,
including having an approved, valid and unexpired TLC per 8 CFR
214.2(h)(6) and 20 CFR 655 subpart A. In addition, the petitioner must
submit an attestation in which the petitioner affirms, under penalty of
perjury, that it meets the business need standard set forth above.
Under that standard, the petitioner must be able to establish that if
they do not receive all of the workers under the cap increase, they are
likely to suffer irreparable harm, that is, permanent and severe
financial loss. Although the TLC process focuses on establishing
whether a petitioner has a need for workers, the TLC does not directly
address the harm a petitioner may face in the absence of such workers;
the attestation addresses this question. The attestation must be
submitted directly to USCIS, together with the Petition for a
Nonimmigrant Worker (Form I-129), the valid TLC, and any other
necessary documentation. The new attestation form is included in this
rulemaking as Appendix A.
The attestation serves as prima facie initial evidence to DHS that
the petitioner's business is likely to suffer irreparable harm.\13\ Any
petition received lacking the requisite attestation may be denied in
accordance with 8 CFR 103.2(b)(8)(ii). Although this regulation does
not require submission of evidence at the time of filing of the
petition, other than an attestation, the employer must have such
evidence on hand and ready to present to DHS or DOL at any time
starting with the date of filing, through the prescribed document
retention period discussed below.
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\13\ An employer may request fewer workers on the H-2B petition
than the number of workers listed on the TLC.
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In addition to the statement regarding the irreparable harm
standard, the attestation will also state that the employer: Meets all
other eligibility criteria for the available visas; will comply with
all assurances, obligations, and conditions of employment set forth in
the Application for Temporary Employment Certification (Form ETA 9142B
and Appendix B) certified by the DOL for the job opportunity; will
conduct additional recruitment of U.S. workers, in accordance with this
rulemaking; and will document and retain evidence of such compliance.
The process under this regulation is similar to the process the
Departments have employed with respect to the statutory provisions
authorizing seafood employers to stagger crossing of H-2B workers. For
seafood employers, a similar attestation, which provides that the
employer has conducted additional recruitment, is provided to the
consular officer at the time they apply for a visa and/or to the U.S.
Customs and Border Protection officer at the time the H-2B worker seeks
admission at a port of entry. See 20 CFR 655.15(f). Because the new
attestation will be submitted to USCIS as initial evidence with the
Form I-129 petition, a denial of the petition based on or related to
statements made in the attestation is appealable under existing USCIS
procedures. Specifically, DHS considers the attestation to be evidence
that is incorporated into and a part of the petition consistent with 8
CFR 103.2(b).
The requirement to provide a post-TLC attestation to USCIS is
sufficiently protective of U.S. workers given that the employer, in
completing the TLC process, has already made one unsuccessful attempt
to recruit U.S. workers. In addition, the employer is required to
retain documentation, which must be provided upon request, supporting
the new attestations, including a recruitment report for any additional
recruitment required under this rule. Accordingly, USCIS may issue a
denial or a request for additional evidence in accordance with 8 CFR
103.2(b) or 8 CFR 214.2(h)(11) based on such documentation, and DOL's
WHD will be able to review this documentation and enforce the
attestations. Although the employer must have such documentation on
hand at the time it files the petition, the Departments have determined
that if employers were required to submit the attestations to DOL
before seeking a petition from DHS or to complete all recruitment
before submitting a petition, the attendant delays would render any
visas unlikely to satisfy the needs of American businesses given
processing timeframes and that there are only a few months remaining in
this fiscal year.
In accordance with the attestation requirement, whereby petitioners
attest that they meet the irreparable harm standard, and the
documentation retention requirements at 20 CFR 655.65, the petitioner
must retain documents and records meeting their burden to demonstrate
compliance with this rule, and must provide the documents and records
upon the request of DHS or DOL, such as in the event of an audit or
investigation. Supporting evidence may include, but is not limited to,
the following types of documentation:
(1) Evidence that the business is or would be unable to meet
financial or contractual obligations without H-2B workers, including
evidence of contracts, reservations, orders, or other business
arrangements that have been or would be cancelled absent the requested
H-2B workers; and evidence demonstrating an inability to pay debts/
bills;
(2) Evidence that the business has suffered or will suffer
permanent and severe financial loss during the period of need, as
compared to the period of need in prior years, such as: Financial
statements (including profit/loss statements) comparing present period
of need as compared to prior years; bank statements, tax returns or
other documents showing evidence of current and past financial
condition; relevant tax records, employment records, or other similar
documents showing hours worked and payroll comparisons from prior years
to current year;
(3) Evidence showing the number of workers needed in previous
seasons to meet the employer's temporary need as compared to those
currently employed, including the number of H-2B workers requested, the
number of H-2B workers actually employed, the dates of their
employment, and their hours worked (e.g., payroll records),
particularly in comparison to the weekly hours stated on the TLC. In
addition, for employers that obtain authorization to employ H-2B
workers under this rule, evidence showing the number of H-2B workers
requested under this rule, the number of workers actually employed,
including H-2B workers, the dates of their
[[Page 32991]]
employment, and their hours worked (e.g., payroll records),
particularly in comparison to the weekly hours stated on the TLC; and/
or
(4) Evidence that the business is dependent on H-2B workers, such
as: Number of H-2B workers compared to U.S. workers needed
prospectively or in the past; business plan or reliable forecast
showing that, due to the nature and size of the business, there is a
need for a specific number of H-2B workers.
These examples of potential evidence, however, will not exclusively
or necessarily establish that the business meets the irreparable harm
standard, and petitioners may retain other types of evidence they
believe will satisfy this standard. If an audit or investigation
occurs, DHS or DOL will review all evidence available to it to confirm
that the petitioner properly attested to DHS that their business would
likely suffer irreparable harm. If DHS subsequently finds that the
evidence does not support the employer's attestation, DHS may deny or
revoke the petition consistent with existing regulatory authorities
and/or notify DOL. In addition, DOL may independently take enforcement
action, including, among other things, to debar the petitioner from
using the H-2B program generally for not less than one year or more
than 5 years from the date of the final agency decision and may
disqualify the debarred party from filing any labor certification
applications or labor condition applications with DOL for the same
period set forth in the final debarment decision. See, e.g., 20 CFR
655.73; 29 CFR 503.20, 503.24.\14\
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\14\ Pursuant to the statutory provisions governing enforcement
of the H-2B program, INA section 214(c)(14), 8 U.S.C. 1184(c)(14), a
violation exists under the H-2B program where there has been a
willful misrepresentation of a material fact or a substantial
failure to meet any of the terms and conditions. A substantial
failure is a willful failure to comply that constitutes a
significant deviation from the terms and conditions. See, e.g., 29
CFR 503.19.
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To the extent that evidence reflects a preference for hiring H-2B
workers over U.S. workers, an investigation by other agencies enforcing
employment and labor laws, such as the Immigrant and Employee Rights
Section of the Department of Justice's Civil Rights Division, may be
warranted. See INA section 274B, 8 U.S.C. 1324b (prohibiting certain
types of employment discrimination based on citizenship status or
national origin). In addition, if members of the public have
information that a participating employer may be abusing this program,
DHS invites them to notify USCIS's Fraud Detection and National
Security Directorate by contacting the general H-2B complaint address
at ReportH2BAbuse@uscis.dhs.gov.\15\
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\15\ DHS may publicly disclose information regarding the H-2B
program consistent with applicable law and regulations.
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DHS, in exercising its statutory authority under INA section
101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b), and section 543,
is responsible for adjudicating eligibility for H-2B classification. As
in all cases, the burden rests with the petitioner to establish
eligibility by a preponderance of the evidence. Accordingly, as noted
above, where the petition lacks initial evidence, such as a properly
completed attestation, DHS may deny the petition in accordance with 8
CFR 103.2(b)(8)(ii). Further, where the initial evidence submitted with
the petition contains inconsistencies or is inconsistent with other
evidence in the petition and underlying TLC, DHS may issue a Request
for Evidence, Notice of Intent to Deny, or Denial in accordance with 8
CFR 103.2(b)(8). In addition, where it is determined that an H-2B
petition filed pursuant to the FY 2017 Omnibus was granted erroneously,
the H-2B petition approval may be revoked, see 8 CFR 214.2(h)(11).
Because of the unique circumstances of this regulation, and because
the attestation plays a vital role in achieving the purposes of this
regulation, DHS and DOL intend that the attestation requirement be non-
severable from the remainder of the regulation. Thus, in the event the
attestation requirement is enjoined or held invalid, the remainder of
the regulation, with the exception of the retention requirements, is
also intended to cease operation in the relevant jurisdiction, without
prejudice to workers already present in the United States under this
regulation, as consistent with law.
D. DHS Petition Procedures
To petition for H-2B workers under this rule, the petitioner must
file a Petition for a Nonimmigrant Worker, Form-129 in accordance with
applicable regulations and form instructions, and must submit the
attestation described above. The attestation must be filed on Form ETA-
9142-B-CAA, Attestation for Employers Seeking to Employ H-2B
Nonimmigrants Workers Under Section 543 of the Consolidated
Appropriations Act, which is attached to this rulemaking as Appendix A.
See 20 CFR 655.64. Once a petitioner has completed the Form ETA-9142-B-
CAA attestation, it must submit the attestation to USCIS along with an
unexpired TLC. See new 8 CFR 214.2(h)(6)(x). A petitioner is required
to retain a copy of such attestation and all supporting evidence for 3
years from the date the associated TLC was approved, consistent with 20
CFR 655.56 and 29 CFR 503.17. See new 20 CFR 655.65. Petitions
submitted pursuant to the FY 2017 Omnibus will be processed in the
order in which they were received. Petitioners may also choose to
request premium processing of their petition under 8 CFR 103.8(e),
which allows for expedited processing for an additional fee.
To encourage timely filing of any petition seeking a visa under the
FY 2017 Omnibus, DHS is notifying the public that the petition may not
be approved by USCIS on or after October 1, 2017. See new 8 CFR
214.2(h)(6)(x). Petitions not approved before October 1, 2017 will be
denied and any fees will not be refunded. See new 8 CFR 214.2(h)(6)(x).
USCIS's current processing goals for H-2B petitions that can be
adjudicated without the need for further evidence (i.e., without a
Request for Evidence or Notice of Intent to Deny) are 15 days for
petitions requesting premium processing and 30 days for standard
processing.\16\ Given USCIS's processing goals for premium processing,
DHS believes that 15 days from the end of the fiscal year is the
minimum time needed for petitions to be adjudicated, although USCIS
cannot guarantee that it will be sufficient time in all cases.
Therefore, if the increase in the H-2B numerical limitation to 15,000
visas has not yet been reached, USCIS will begin rejecting petitions
received after September 15, 2017. See new 8 CFR 214.2(h)(6)(x)(C).
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\16\ These processing goals are not binding on USCIS; depending
on the evidence presented, actual processing times may vary from
these 15- and 30-day periods.
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As with other Form I-129 filings, DHS encourages petitioners to
provide a duplicate copy of Form I-129 and all supporting documentation
at the time of filing if the beneficiary is seeking a nonimmigrant visa
abroad. Failure to submit duplicate copies may cause a delay in the
issuance of a visa to otherwise eligible applicants.\17\
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\17\ Petitioners should note that under section 543, the H-2B
numerical increase relates to the total number of aliens who may
receive a visa under section 101(a)(15)(H)(ii)(b) of the INA in this
fiscal year.
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F. DOL Procedures
Because all employers are required to have an approved and valid
TLC from DOL in order to file a Form I-129 petition with DHS in
accordance with 8 CFR 214.2(h)(6)(iv)(A) and (D), employers with an
approved TLC will have already conducted recruitment, as
[[Page 32992]]
set forth in 20 CFR 655.40-48, to determine whether U.S. workers are
qualified and available to perform the work for which H-2B workers are
sought. In addition to the recruitment already conducted, employers
with current labor certification containing a start date of work before
June 1, 2017, must conduct a fresh round of recruitment for U.S.
workers. As noted in the 2015 H-2B comprehensive rule, U.S. workers
seeking employment in these jobs typically do not search for work
months in advance, and cannot make commitments about their availability
for employment far in advance of the work. See 80 FR 24041, 24061,
24071. Given the 75-90 day labor certification process applicable in
the H-2B program generally, employer recruitment typically occurs
between 40 and 60 days before the start date of employment. Therefore,
employers with TLCs containing a start date of work before June 1,
2017, likely began their recruitment around April 1, 2017, and likely
ended it about April 20, 2017. In order to provide U.S. workers a
realistic opportunity to pursue jobs for which employers will be
seeking foreign workers under this rule, the Departments have
determined that employers with start dates of work before June 1, 2017
have not conducted recent recruitment so that the Departments can
reasonably conclude that there are currently an insufficient number of
U.S. workers qualified and available to perform the work absent an
additional, though abbreviated, recruitment attempt.
Therefore, employers with still valid TLCs with a start date of
work before June 1, 2017, will be required to conduct additional
recruitment, and attest that the recruitment will be conducted, as
follows. The employer must place a new job order for the job
opportunity with the State Workforce Agency (SWA), serving the area of
intended employment. The job order must contain the job assurances and
contents set forth in 20 CFR 655.18 for recruitment of U.S. workers at
the place of employment, and remain posted for at least 5 days
beginning not later than the next business day after submitting a
petition for H-2B worker to USCIS. In addition, eligible employers will
also be required to place one newspaper advertisement, which may be
published on any day of the week, meeting the advertising requirements
of 20 CFR 655.41, during the period of time the SWA is actively
circulating the job order for intrastate clearance. Employers must
retain the additional recruitment documentation, including a
recruitment report that meets the requirements for recruitment reports
set forth in 20 CFR 655.48(a)(1)(2) & (7), together with a copy of the
attestation and supporting documentation, as described above, for a
period of 3 years from the date that the TLC was approved, consistent
with the document retention requirements under 20 CFR 655.56. These
requirements are similar to those that apply to seafood employers who
bring in additional workers between 90 and 120 days after their
certified start date of need under 20 CFR 655.15(f).
The employer must hire any qualified U.S. worker who applies or is
referred for the job opportunity until 2 business days after the last
date on which the job order is posted. The two business day requirement
permits an additional brief period of time to enable U.S. workers to
contact the employer following the job order or newspaper
advertisement. Consistent with 20 CFR 655.40(a), applicants can be
rejected only for lawful job-related reasons.
DOL's Wage and Hour Division has the authority to investigate the
employer's attestations, as the attestations are a required part of the
H-2B petition process under this rule and the attestations rely on the
employer's existing, approved TLC. Where a WHD investigation determines
that there has been a willful misrepresentation of a material fact or a
substantial failure to meet the required terms and conditions of the
attestations, WHD may institute administrative proceedings to impose
sanctions and remedies, including (but not limited to) assessment of a
civil money penalty, recovery of wages due, make whole relief for any
U.S. worker who has been improperly rejected for employment, laid off
or displaced, or debarment for 1 to 5 years. See 29 CFR 503.19, 503.20.
This regulatory authority is consistent with WHD's existing enforcement
authority and is not limited by the expiration date of this rule.
Therefore, in accordance with the documentation retention requirements
at new 20 CFR 655.65, the petitioner must retain documents and records
proving compliance with this rule, and must provide the documents and
records upon request by DHS or DOL.
Petitioners must also comply with any other applicable laws in
their recruitment, such as avoiding unlawful discrimination against
U.S. workers based on their citizenship status or national origin.
Specifically, the failure to recruit and hire qualified and available
U.S. workers on account of such individuals' national origin or
citizenship status may violate INA section 274B, 8 U.S.C. 1324b.
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
This rule is issued without prior notice and opportunity to comment
and with an immediate effective date pursuant to the Administrative
Procedure Act (APA). 5 U.S.C. 553(b) and (d).
1. Good Cause To Forgo Notice and Comment Rulemaking
The APA, 5 U.S.C. 553(b)(B), authorizes an agency to issue a rule
without prior notice and opportunity to comment when the agency for
good cause finds that those procedures are ``impracticable,
unnecessary, or contrary to the public interest.'' The good cause
exception for forgoing notice and comment rulemaking ``excuses notice
and comment in emergency situations, or where delay could result in
serious harm.'' Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004).
Although the good cause exception is ``narrowly construed and only
reluctantly countenanced,'' Tenn. Gas Pipeline Co. v. FERC, 969 F.2d
1141, 1144 (D.C. Cir. 1992), the Departments have appropriately invoked
the exception in this case, for the reasons set forth below.
In this case, the Departments are bypassing advance notice and
comment because of the exigency created by section 543 of the
Consolidated Appropriations Act, 2017 (FY 2017 Omnibus), which went
into effect on May 5, 2017 and expires on September 30, 2017. Because
the statutory cap was reached in mid-March, USCIS stopped accepting H-
2B petitions on March 13, 2017, and given high demand by American
businesses for H-2B workers, and the short period of time remaining in
the fiscal year for U.S. employers to avoid the economic harms
described above, a decision to undertake notice and comment rulemaking
would likely delay final action on this matter by weeks or months, and
would therefore complicate and likely preclude the Departments from
successfully exercising the authority in section 543.
Courts have found ``good cause'' under the APA when an agency is
moving expeditiously to avoid significant economic harm to a program,
program users, or an industry. Courts have held that an agency may use
the good cause exception to address ``a serious threat to the financial
stability of [a government] benefit program,'' Nat'l Fed'n of Fed.
Emps. v. Devine, 671 F.2d 607, 611 (D.C. Cir. 1982), or to avoid
``economic harm and disruption'' to a given industry, which would
likely result in higher consumer prices, Am.
[[Page 32993]]
Fed'n of Gov't Emps. v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981).
Consistent with the above authorities, the Departments have
bypassed notice and comment to prevent the ``serious economic harm to
the H-2B community,'' including associated U.S. workers, that could
result from ongoing uncertainty over the status of the numerical
limitation, i.e., the effective termination of the program through the
remainder of FY 2017. See Bayou Lawn & Landscape Servs. v. Johnson, 173
F. Supp. 3d 1271, 1285 & n.12 (N.D. Fla. 2016). The Departments note
that this action is temporary in nature, see id.,\18\ and includes
appropriate conditions to ensure that it affects only those businesses
most in need.
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\18\ Because the Departments have issued this rule as a
temporary final rule, this rule--with the sole exception of the
document retention requirements--will be of no effect after
September 30, 2017, even if Congress includes an authority similar
to section 543 in a subsequent act of Congress.
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2. Good Cause To Proceed With an Immediate Effective Date
The APA also authorizes agencies to make a rule effective
immediately, upon a showing of good cause instead of imposing a 30-day
delay. 5 U.S.C. 553(d)(3). The good cause exception to the 30-day
effective date requirement is easier to meet than the good cause
exception for foregoing notice and comment rulemaking. Riverbend Farms,
Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992); Am. Fed'n of
Gov't Emps., AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981);
U.S. Steel Corp. v. EPA, 605 F.2d 283, 289-90 (7th Cir. 1979). An
agency can show good cause for eliminating the 30-day delayed effective
date when it demonstrates urgent conditions the rule seeks to correct
or unavoidable time limitations. U.S. Steel Corp., 605 F.2d at 290;
United States v. Gavrilovic, 511 F.2d 1099, 1104 (8th Cir. 1977). For
the same reasons set forth above, we also conclude that the Departments
have good cause to dispense with the 30-day effective date requirement
given that this rule is necessary to prevent U.S. businesses from
suffering irreparable harm and therefore causing significant economic
disruption.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), imposes
certain requirements on Federal agency rules that are subject to the
notice and comment requirements of the APA. See 5 U.S.C. 603(a),
604(a). This final rule is exempt from notice and comment requirements
for the reasons stated above. Therefore, the requirements of the RFA
applicable to final rules, 5 U.S.C. 604, do not apply to this final
rule. Accordingly, the Departments are not required to either certify
that the final rule would not have a significant economic impact on a
substantial number of small entities or conduct a regulatory
flexibility analysis.
C. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the Act
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in $100 million or more expenditure (adjusted annually
for inflation) in any one year by State, local, and tribal governments,
in the aggregate, or by the private sector. The value equivalent of
$100 million in 1995 adjusted for inflation to 2016 levels by the
Consumer Price Index for All Urban Consumer (CPI-U) is $157 million.
This rule does not exceed the $100 million expenditure in any 1
year when adjusted for inflation ($157 million in 2016 dollars), and
this rulemaking does not contain such a mandate. The requirements of
Title II of the Act, therefore, do not apply, and the Departments have
not prepared a statement under the Act.
D. Small Business Regulatory Enforcement Fairness Act of 1996
This temporary rule is not a major rule as defined by section 804
of the Small Business Regulatory Enforcement Act of 1996, Public Law
104-121, 804, 110 Stat. 847, 872 (1996), 5 U.S.C. 804(2). This rule has
not been found to 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 or export markets.
E. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 13771 (Reducing
Regulation and Controlling Regulatory Costs)
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
Executive Order 13771 (``Reducing Regulation and Controlling Regulatory
Costs'') directs agencies to reduce regulation and control regulatory
costs.
The Office of Management and Budget (OMB) has determined that this
rule is a ``significant regulatory action'' although not an
economically significant regulatory action. Accordingly, OMB has
reviewed this regulation. This regulation is exempt from Executive
Order 13771. OMB considers this final rule to be an Executive Order
13771 deregulatory action.
1. Summary
With this final rule, DHS is authorizing up to an additional 15,000
visas for the remainder of FY 2017, pursuant to the FY 2017 Omnibus, to
be available to certain U.S. businesses under the H-2B visa
classification. By the authority given under the FY 2017 Omnibus, DHS
is increasing the H-2B cap for the remainder of FY 2017 for those
businesses that: (1) Show that there are an insufficient number of
qualified U.S. workers to meet their needs in FY 2017; and (2) attest
that their businesses are likely to suffer irreparable harm without the
ability to employ the H-2B workers that are the subject of their
petition. This final rule aims to help prevent such harm by allowing
them to hire additional H-2B workers within FY 2017. Table 1 (below)
provides a brief summary of the provision and its impact.
[[Page 32994]]
Table 1--Summary of Provision and Impact
----------------------------------------------------------------------------------------------------------------
Changes resulting from Expected cost of the Expected benefit of the
Current provision the proposed provisions proposed provision proposed provision
----------------------------------------------------------------------------------------------------------------
The current statutory cap limits The amended provisions The total Eligible
H-2B visa allocations by 66,000 would allow for up to estimated cost to file petitioners would be
workers a year. 15,000 additional H-2B Form I-129 would be able to hire the
visas for the remainder $1,502,984 (rounded) if temporary workers
of the fiscal year. human resource needed to prevent their
specialists file, businesses from
$2,216,881 (rounded) if suffering irreparable
in-house lawyers file, harm.
and $3,042,989 U.S. employees
(rounded) if outsourced of these businesses
lawyers file. would avoid harm.
If a Form I-907
is submitted as well,
the total estimated
cost to file for Form I-
907 would be a maximum
of $2,867,398 if human
resource specialists
file, $2,927,882 if in-
house lawyers file, and
$3,008,243 if
outsourced lawyers file.
DHS may incur
some additional
adjudication costs as
more applicants may
file Form I-129.
However, these
additional costs are
expected to be covered
by the fees paid for
filing the form
Petitioners would also be The total Serves as
required to fill out estimated cost to initial evidence to DHS
newly created Form ETA- petitioners to complete that the petitioner
9142-B-CAA, Attestation and file ETA-9142-B-CAA meets the irreparable
for Employers Seeking to is $1,597,426. harm standard.
Employ H-2B
Nonimmigrants Workers
Under Section 543 of the
Consolidated
Appropriations Act.
----------------------------------------------------------------------------------------------------------------
Source: USCIS and DOL analysis.
2. Background and Purpose of the Rule
The H-2B visa classification program was designed to serve U.S.
businesses that are unable to find a sufficient number of qualified
U.S. workers to perform nonagricultural work of a temporary or seasonal
nature. For an H-2B nonimmigrant worker to be admitted into the United
States under this visa classification, the hiring employer is required
to: (1) Receive a TLC from DOL and (2) file a Form I-129 with DHS. The
temporary nature of the services or labor described on the approved TLC
is subject to DHS review during adjudication of Form I-129.\19\ Up to
33,000 aliens may be issued H-2B visas or provided H-2B nonimmigrant
status in the first half of a fiscal year, and the remaining annual
allocation will be available for employers seeking to hire H-2B workers
during the second half of the fiscal year.\20\ Any unused numbers from
the first half of the fiscal year will be available for employers
seeking to hire H-2B workers during the second half of the fiscal year.
However, any unused H-2B numbers from one fiscal year do not carry over
into the next and will therefore not be made available.\21\
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\19\ Revised effective 1/18/2009; 73 FR 78104.
\20\ See INA section 214(g)(1)(B), 8 U.S.C. 1184(g)(1)(B), INA
section 214(g)(10) and 8 U.S.C. 1184(g)(10).
\21\ A TLC approved by the Department of Labor must accompany an
H-2B petition. The employment start date stated on the petition
generally must match the start date listed on the TLC. See 8 CFR
214.2(h)(6)(iv)(A) and (D).
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The H-2B cap for the second half of FY 2017 was reached on March
13, 2017. Normally, once the H-2B cap has been reached, petitioners
must wait until the next half of the fiscal year, or the beginning of
the next fiscal year, for additional visas to become available.
However, on May 5, 2017, the President signed the FY 2017 Omnibus that
contains a provision (Sec. 543 of Div. F) authorizing the Secretary of
Homeland Security, under certain circumstances, to increase the number
of H-2B visas available to U.S. employers, notwithstanding the
established statutory numerical limitation. After consulting with the
Secretary of Labor, the Secretary of the Homeland Security has
determined it is appropriate to exercise his discretion and raise the
H-2B cap by up to an additional 15,000 visas for the remainder of FY
2017 for those businesses who would qualify under certain
circumstances.
3. Population
This temporary rule would impact those employers who file Form I-
129 on behalf of the nonimmigrant worker they seek to hire under the H-
2B visa program. More specifically, this rule would impact those
employers who could establish that their business is likely to suffer
irreparable harm because they cannot employ the H-2B workers requested
on their petition in this fiscal year. Due to the temporary nature of
this rule and the limited time left for these additional visas to be
available, DHS believes it is more reasonable to assume that eligible
petitioners for these additional 15,000 visas will be those employers
that have already completed the steps to receive an approved TLC prior
to the issuance of this rule.\22\ According to DOL OFLC's certification
data for FY 2017, there were about 4,174 H-2B certifications with
expected work start dates between April 1 and September 30, 2017.
However, many of these certifications have already been filled under
the existing cap. Of the 4,174 certifications, we estimated that
[[Page 32995]]
1,876 certifications would have been filled with the second semi-annual
statutory cap of 33,000 visas.\23\ We believe that the remaining
certifications of 2,298 (= 4,174 - 1,876) represents the pool of
employers with approved certifications that may apply for additional H-
2B workers under this rule, and therefore serves as a reasonable proxy
for the number of petitions we may receive under this rule.\24\
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\22\ Note that as in the standard H-2B visa issuance process,
petitioning employers must still apply for a temporary labor
certification and receive approval from DOL before submitting the
Form I-129 petition with USCIS.
\23\ DOL approved a total of 4,174 certifications for 73,424 H-
2B positions with work start date between April and September in
2017. Therefore, we estimated that the average number of H-2B
positions per certification is 17.59 (= 73,424/4,174) and the number
of certifications that would have been filled with the second semi-
annual statutory cap of 33,000 is 1,876 (= 33,000/17.59).
\24\ The preamble of this rule explains how DHS established
15,000 as the number of H-2B visas to be made available for the
remainder of the fiscal year. Based on the FY 2016 returning workers
program, the USCIS Service Center Operations Directorate estimates
that approximately 1,538 petitions were associated with the 18,090
returning workers discussed in the preamble of this rule. For
consistency and to provide a reasonable estimate for the number of
possible petitioners, USCIS uses the 2,298 petitioners based on the
DOL OFLC's certification data in FY 2017.
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4. Cost-Benefit Analysis
The costs for this form include filing costs and the opportunity
costs of time to complete and file the form. The current filing fee for
Form I-129 is $460 and the estimated time needed to complete and file
Form I-129 for H-2B classification is 4.26 hours.\25\ The time burden
of 4.26 hours for Form I-129 also includes the time to file and retain
documents. The application must be filed by a U.S. employer, a U.S.
agent, or a foreign employer filing through the U.S. agent. 8 CFR
214.2(h)(2). Due to the expedited nature of this rule, DHS was unable
to obtain data on the number of Form I-129 H-2B applications filed
directly by a petitioner and those that are filed by a lawyer on behalf
of the petitioner. Therefore, DHS presents a range of estimated costs
including if only human resource (HR) specialists file Form I-129 or if
only lawyers file Form I-129.\26\ Further, DHS presents cost estimates
for lawyers filing on behalf of applicants based on whether all Form I-
129 applications are filed by in-house lawyers or by outsourced
lawyers.\27\ DHS presents an estimated range of costs assuming that
only HR specialists, in-house lawyers, or outsourced lawyers file these
forms, though DHS recognizes that it is likely that filing will be
conducted by a combination of these different types of filers.
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\25\ The public reporting burden for this form is 2.26 hours for
Form I-129 and an additional 2 hours for H Classification
Supplement. See Form I-129 instructions at https://www.uscis.gov/i-129.
\26\ For the purposes of this analysis, DHS assumes a human
resource specialist or some similar occupation completes and files
these forms as the employer or petitioner who is requesting the H-2B
worker. However, DHS understands that not all entities have human
resources departments or occupations and, therefore, recognizes
equivalent occupations may prepare these petitions.
\27\ For the purposes of this analysis, DHS adopts the terms
``in-house'' and ``outsourced'' lawyers as they were used in the
DHS, U.S. Immigration and Customs Enforcement (ICE) analysis,
``Final Small Entity Impact Analysis: Safe-Harbor Procedures for
Employers Who Receive a No-Match Letter'' at G-4 (posted Nov. 5,
2008), available at https://www.regulations.gov/#!documentDetail;D=ICEB-2006-0004-0922. The DHS ICE analysis
highlighted the variability of attorney wages and was based on
information received in public comment to that rule. We believe the
distinction between the varied wages among lawyers is appropriate
for our analysis.
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To estimate the total opportunity cost of time to petitioners who
complete and file Form I-129, DHS uses the mean hourly wage rate of HR
specialists of $31.20 as the base wage rate.\28\ If applicants hire an
in-house or outsourced lawyer to file Form I-129 on their behalf, DHS
uses the mean hourly wage rate of $67.25 as the base wage rate.\29\
Using the most recent Bureau of Labor Statistics (BLS) data, DHS
calculated a benefits-to-wage multiplier of 1.46 to estimate the full
wages to include benefits such as paid leave, insurance, and
retirement.\30\ DHS multiplied the average hourly U.S. wage rate for HR
specialists and for in-house lawyers by the benefits-to-wage multiplier
of 1.46 to estimate the full cost of employee wages. The total per hour
wage is $45.55 for an HR specialist and $98.19 for an in-house
lawyer.\31\ In addition, DHS recognizes that an entity may not have in-
house lawyers and therefore, seek outside counsel to complete and file
Form I-129 on behalf of the petitioner. Therefore, DHS presents a
second wage rate for lawyers labeled as outsourced lawyers. DHS
estimates the total per hour wage is $168.13 for an outsourced
lawyer.\32\ \33\ If a lawyer submits Form I-129 on behalf of the
petitioner, Form G-28 (Notice of Entry of Appearance as Attorney or
Accredited Representative), must accompany the Form I-129
submission.\34\ DHS estimates the time burden to complete and submit
Form G-28 for a lawyer is 53 minutes (0.88 hour, rounded). For this
analysis, DHS adds the time to complete Form G-28 to the opportunity
cost of time to lawyers for filing Form I-129 on behalf of a
petitioner. Therefore, the total opportunity cost of time for an HR
specialist to complete and file Form I-129 is $194.04, for an in-house
lawyer to complete and file is $504.70, and for an outsourced lawyer to
complete and file is $864.19.\35\ The total cost, including filing fee
and opportunity costs of time, per petitioner to file Form I-129 is
$654.04 if HR specialists file, $964.70 if an in-house lawyer files,
and $1,324.19 if an outsourced lawyer files the form.\36\
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\28\ U.S. Department of Labor, Bureau of Labor Statistics,
Occupational Employment Statistics, May 2016, Human Resources
Specialist: https://www.bls.gov/oes/current/oes131071.htm.
\29\ U.S. Department of Labor, Bureau of Labor Statistics. May
2016 National Occupational Employment and Wage Estimates, Mean
Hourly Wage (23-1011 Lawyers), available at https://www.bls.gov/oes/current/oes231011.htm.
\30\ The benefits-to-wage multiplier is calculated as follows:
(Total Employee Compensation per hour)/(Wages and Salaries per
hour). See Economic News Release, U.S. Department of Labor, Bureau
of Labor Statistics, Table 1. Employer costs per hour worked for
employee compensation and costs as a percent of total compensation:
Civilian workers, by major occupational and industry group (June
2016), available at https://www.bls.gov/news.release/pdf/ecec.pdf.
\31\ Calculation for the total wage of an HR specialist: $31.20
x 1.46 = $45.55 (rounded). Calculation for the total wage of an in-
house lawyer: $67.25 x 1.46 = $98.19 (rounded).
\32\ Calculation: Average hourly wage rate of lawyers x
Benefits-to-wage multiplier for outsourced lawyer = $67.25 x 2.5 =
$168.125 = $168.13.
\33\ The DHS ICE ``Safe-Harbor Procedures for Employers Who
Receive a No-Match Letter'' used a multiplier of 2.5 to convert in-
house attorney wages to the cost of outsourced attorney based on
information received in public comment to that rule. We believe the
explanation and methodology used in the Final Small Entity Impact
Analysis remains sound for using 2.5 as a multiplier for outsourced
labor wages in this rule, see page G-4 [Sept. 1, 2015] [https://www.regulations.gov/#!documentDetail;D=ICEB-2006-0004-0922].
\34\ USCIS, Filing Your Form G-28, https://www.uscis.gov/forms/filing-your-form-g-28.
\35\ Calculation if an HR specialist files: $45.55 x (4.26
hours) = $194.04 (rounded); Calculation if an in-house lawyer files:
$98.19 x (4.26 hours to file Form I-129 H2B + 0.88 hour to file Form
G-28) = $504.70 (rounded); Calculation if an outsourced lawyer
files: $168.13 x (4.26 hours to file Form I-129 H2B + 0.88 hour to
file Form G-28) = $864.19 (rounded).
\36\ Calculation if an HR specialist files: $194.04 + $460
(filing fee) = $654.04; Calculation if an in-house lawyer files:
$504.70 + $460 (filing fee) = $964.70; Calculation if outsourced
lawyer files: $864.19 + $460 (filing fee) = $1,324.19.
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(a) Cost to Petitioners
As mentioned in Section 3, the population impacted by this rule is
the 2,298 petitioners who may apply for up to 15,000 additional H-2B
visas for the remainder of FY 2017. Based on the previously presented
total filing costs per petitioner, DHS estimates the total cost to file
Form I-129 is $1,502,984 (rounded) if HR specialists file, $2,216,881
(rounded) if in-house lawyers file, and $3,042,989 (rounded) if
outsourced lawyers file.\37\ DHS
[[Page 32996]]
recognizes that not all Form I-129 applications are likely to be filed
by only one type of filer and cannot predict how many applications
would be filed by each type of filer. Therefore, DHS estimates that the
total cost to file Form I-129 could range from $1,502,984 (rounded) to
$3,042,989 (rounded) depending on the combination of applications filed
by each type of filer.
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\37\ Calculation if HR specialist files: $654.04 x 2,298
(population applying for H-2B visas) = $1,502,983.92 = $1,502,984
(rounded); Calculation if an in-house lawyer files: $964.70 x 2,298
(population applying for H-2B visas) = $2,216,880.60 = $2,216,881
(rounded); Calculation if an outsourced lawyer files: $1,324.19 x
2,298 (population applying for H-2B visas) = $3,042,988.62 =
$3,042,989 (rounded).
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(1) Form I-907
Employers may use Form I-907, Request for Premium Processing
Service, to request faster processing of their Form I-129 petitions for
H-2B visas. The filing fee for Form I-907 is $1,225 and the time burden
for completing the form is 0.5 hours. Using the wage rates established
previously, the opportunity cost of time is $22.78 for an HR specialist
to file Form I-907, $49.10 for an in-house lawyer to file, and $84.07
for an outsourced lawyer to file.\38\ Therefore, the total filing cost
to complete and file Form I-907 per petitioner is $1,247.78 if HR
specialists file, $1,274.10 if in-house lawyers file, and $1,309.07 if
outsourced lawyers file.\39\ Due to the expedited nature of this rule,
DHS was unable to obtain data on the average percentage of Form I-907
applications that were submitted with Form I-129 H-2B petitions. Table
2 (below) shows the range of percentages of the 2,298 petitioners who
may also request their Form I-129 adjudications be premium processed as
well as the estimated total cost of filing Form I-907. DHS anticipates
that most, if not all, of the additional 2,298 Form I-129 petitions
will be requesting premium processing due to the limited time between
the publication of this rule and the end of the fiscal year. Further,
as shown in table 2, the total estimated cost to complete and file a
request for premium processing (Form I-907) when submitted with Form I-
129 on behalf of an H-2B worker is a maximum of $2,867,398 if human
resources specialists file, $2,927,882 if in-house lawyers file, and
$3,008,243 if outsourced lawyers file.
---------------------------------------------------------------------------
\38\ Calculation if an HR specialist files: $45.55 x (0.5 hours)
= $22.78 (rounded); Calculation if an in-house lawyer files: $98.19
x (0.5 hours) = $49.10 (rounded); Calculation if an outsourced
lawyer files: $168.13 x (0.5 hours) = $84.07 (rounded).
\39\ Calculation if an HR specialist files: $22.78 + $1,225 =
$1,247.78; Calculation if an in-house lawyer files: $49.10 + $1,225
= 1,274.10; Calculation if outsourced lawyer files: $84.07 + $1,225
= $1,309.07.
Table 2--Total Cost of Filing Form I-907 Under the H-2B Visa Program
----------------------------------------------------------------------------------------------------------------
Number of Total cost to filers \c\
filers --------------------------------
Percent of filers requesting premium processing requesting Human Outsourced
\a\ premium resources In-house lawyer ($)
processing \b\ specialist ($) lawyer ($)
----------------------------------------------------------------------------------------------------------------
25.............................................. 575 716,850 731,970 752,061
50.............................................. 1,149 1,433,699 1,463,941 1,504,121
75.............................................. 1,724 2,150,549 2,195,911 2,256,182
90.............................................. 2,068 2,580,659 2,635,094 2,707,419
95.............................................. 2,183 2,724,029 2,781,488 2,857,831
100............................................. 2,298 2,867,398 2,927,882 3,008,243
----------------------------------------------------------------------------------------------------------------
Notes:
\a\ Assumes that all 15,000 additional H-2B visas will be filled by 2,298 petitioners.
\b\ Numbers and dollar amounts are rounded to the nearest whole number.
\c\ Calculation: (Total cost per filer of Form I-907) x Number of filers who request premium processing = Total
cost to filer (rounded to the nearest dollar).
Source: USCIS analysis.
(2) Attestation Requirements
The remaining provisions of this rule include a new form for
applicants, Form ETA-9142-B-CAA-Attestation for Admission of H-2B
Workers, attached to this rulemaking as Appendix A.
The new attestation form includes new recruiting requirements, the
irreparable harm standard, and document retention obligations. DOL
estimates the time burden for completing and signing the form is 0.25
hour and 1 hour for retaining documents and records relating to
recruitment. The petitioner must retain documents and records of a new
job order for the job opportunity placed with the State Workforce
Agency (SWA) and one newspaper advertisement. DOL estimates that it
would take up to one hour to file and retain documents and records
relating to recruitment. Using the total per hour wage for an HR
specialist ($45.55), the opportunity cost of time for an HR specialist
to complete the new attestation form and to retain documents relating
to recruitment is $56.94.\40\
---------------------------------------------------------------------------
\40\ Calculation: $45.55 (total per hour wage for an HR
specialist) x 1.25 (time burden for the new attestation form and
retaining recruitment documentation) = $56.94.
---------------------------------------------------------------------------
Additionally, the new form requires that the petitioner assess and
document supporting evidence for meeting the irreparable harm standard,
and retain those documents and records, which we assume will require
the resources of a financial analyst (or another equivalent
occupation). Using the same methodology previously described for wages,
the total per hour wage for a financial analyst is $68.53.\41\ DOL
estimates the time burden for these tasks is at least 4 hours and 1
hour for gathering and retaining documents and records. Therefore, the
total opportunity costs of time for a financial analyst to assess,
document, and retain supporting evidence is $342.65.\42\
---------------------------------------------------------------------------
\41\ Calculation: $46.94 (total per hour wage for a financial
analyst, based on BLS wages) x 1.46 (benefits-to-wage multiplier) =
$68.53. U.S. Department of Labor, Bureau of Labor Statistics,
Occupational Employment Statistics, May 2016, Financial Analysts:
https://www.bls.gov/oes/current/oes132051.htm.
\42\ Calculation: $68.53 (total per hour wage for a financial
analyst) x 5 hours (time burden for assessing, documenting and
retention of supporting evidence demonstrating the employer is
likely to suffer irreparable harm) = $342.65.
---------------------------------------------------------------------------
As discussed previously, we believe that the estimated 2,298
remaining unfilled certifications for the latter half of FY 2017 would
include all potential employers who might request to employ H-2B
workers under this rule. This number of certifications is a reasonable
proxy for the number of employers who may need to review and sign the
attestation. Using this estimate for the total number of
certifications, DOL
[[Page 32997]]
estimates that the cost for HR specialists is $130,842 and for
financial analysts is $787,410 (rounded).\43\ The total cost is
estimated to be $918,252.\44\
---------------------------------------------------------------------------
\43\ Calculations: Cost for HR Specialists: $45.55 (total per
hour wage for an HR specialist) x 2,298 certifications x 1.25 hours
= $130,842. Cost for Financial Analysts: $68.53 (total per hour wage
for a financial analyst) x 2,298 certifications x 5 hours =
$787,410.
\44\ Calculation: $130,842 (total cost for HR specialists) +
$787,410 (total cost for financial analysts) = $918,252.
---------------------------------------------------------------------------
Employers will place a new job order for the job opportunity with
the SWA serving the area of intended employment for at least 5 days
beginning no later than the next business day after submitting a
petition for an H-2B worker and the attestation to USCIS. DOL estimates
that an HR specialist (or another equivalent occupation) would spend 1
hour to prepare a new job order and submit it to the SWA.\45\ DOL
estimates the total cost of placing a new job order is $104,674.\46\
---------------------------------------------------------------------------
\45\ The job order must address the content requirements at 20
CFR 655.18, consistent with new requirements contained in the 2016
Department of Labor Appropriations Act (Division H, Title I of Pub.
L. 114-113) (2016 DOL Appropriations Act), which was enacted on
December 18, 2015.
\46\ Calculation: $45.55 (total per hour wage for an HR
specialist) x 2,298 certifications x 1 hour (time burden for placing
a job order with the SWA) = $104,674.
---------------------------------------------------------------------------
Employers will also place one newspaper advertisement during the
period of time the SWA is actively circulating the job order for
intrastate clearance. DOL estimates that a standard job listing in an
online edition of a newspaper is $250.\47\ The total cost associated
with one online newspaper job listing is $574,500.\48\
---------------------------------------------------------------------------
\47\ Source: The Washington Post, Online Only Job Listings (35
days), page 4 available at: https://www.washingtonpost.com/wp-stat/ad/public/static/media_kit/16-3729-01-jobs.pdf.
\48\ Calculation: $250 (cost of one online newspaper job
listing) x 2,298 certifications = $574,500.
---------------------------------------------------------------------------
Therefore, the total cost for the new attestation form is estimated
to be $1,597,426.\49\
---------------------------------------------------------------------------
\49\ Calculation: $918,252 (total cost for HR specialists and
financial analysts) + $104,674 (total cost to place job order with
State Workforce Agency) + $574,500 (total cost to place online
newspaper job listings) = $1,597,426.
---------------------------------------------------------------------------
(b) Cost to the Federal Government
DHS anticipates some additional costs in adjudicating the
additional petitions submitted as a result of the increase in cap
limitation for H-2B visas. However, DHS expects these costs to be
covered by the fees associated with the forms.
(c) Benefits to Petitioners
The inability to access H-2B workers for these entities may cause
their businesses to suffer irreparable harm. Temporarily increasing the
number of available H-2B visas for this fiscal year may allow some
businesses to hire the additional labor resources necessary to avoid
such harm. Preventing such harm may ultimately rescue the jobs of any
other employees (including U.S. employees) at that establishment.
F. Executive Order 13132 (Federalism)
This rule does 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 section 6 of
Executive Order No. 13132, 64 FR 43,255 (Aug. 4, 1999), this rule does
not have sufficient federalism implications to warrant the preparation
of a federalism summary impact statement.
G. 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 No. 12988, 61 FR 4729 (Feb. 5, 1996).
H. National Environmental Policy Act
DHS analyzes actions to determine whether NEPA applies to them and
if so what degree of analysis is required. DHS Directive (Dir) 023-01
Rev. 01 establishes the procedures that DHS and its components use to
comply with NEPA and the Council on Environmental Quality (CEQ)
regulations for implementing NEPA, 40 CFR parts 1500 through 1508. The
CEQ regulations allow federal agencies to establish, with CEQ review
and concurrence, categories of actions (``categorical exclusions'')
which experience has shown do not individually or cumulatively have a
significant effect on the human environment and, therefore, do not
require an Environmental Assessment (EA) or Environmental Impact
Statement (EIS). 40 CFR 1507.3(b)(1)(iii), 1508.4. DHS Instruction 023-
01 Rev. 01 establishes such Categorical Exclusions that DHS has found
to have no such effect. Dir. 023-01 Rev. 01 Appendix A Table 1. For an
action to be categorically excluded, DHS Instruction 023-01 Rev. 01
requires the action to satisfy each of the following three conditions:
(1) The entire action clearly fits within one or more of the
Categorical Exclusions; (2) the action is not a piece of a larger
action; and (3) no extraordinary circumstances exist that create the
potential for a significant environmental effect. Inst. 023-01 Rev. 01
section V.B (1)-(3).
This rule temporarily amends the regulations implementing the H-2B
nonimmigrant visa program to increase the numerical limitation on H-2B
nonimmigrant visas for the remainder of FY 2017 based on the Secretary
of Homeland Security's determination, in consultation with the
Secretary of Labor, consistent with the FY 2017 Omnibus. Generally, a
rule which changes the number of visas which can be issued has no
impact on the environment and any attempt to analyze that impact would
be largely, if not completely, speculative. The Departments cannot
estimate with reasonable certainty which employers will successfully
petition for employees in what locations and numbers. At most, however,
it is reasonably foreseeable that an increase of up to15,000 visas may
be issued for temporary entry into the United States in diverse
industries and locations. For purposes of the cost estimates contained
in the economic analysis above, DHS bases its calculations on the
assumption that all 15,000 will be issued. Even making that assumption,
with a current U.S. population in excess of 323 million and a U.S. land
mass of 3.794 million square miles, this is insignificant by any
measure.
DHS has determined that this rule does not individually or
cumulatively have a significant effect on the human environment and it
thus would fit within one categorical exclusion under Environmental
Planning Program, DHS Instruction 023-01 Rev. 01, Appendix A, Table 1.
Specifically, the rule fits within Categorical Exclusion number A3(d)
for rules that interpret or amend an existing regulation without
changing its environmental effect.
This rule maintains the current human environment by helping to
prevent irreparable harm to certain U.S. businesses and to prevent a
significant adverse effect on the human environment that would likely
result from loss of jobs and income. With the exception of
recordkeeping requirements, this rulemaking terminates after September
30, 2017; it is not part of a larger action and presents no
extraordinary circumstances creating the potential for significant
environmental effects. No further NEPA analysis is required.
I. Paperwork Reduction Act
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., provides
that a Federal agency generally cannot conduct or sponsor a collection
of information, and the public is generally
[[Page 32998]]
not required to respond to an information collection, unless it is
approved by OMB under the PRA and displays a currently valid OMB
Control Number. In addition, notwithstanding any other provisions of
law, no person shall generally be subject to penalty for failing to
comply with a collection of information that does not display a valid
Control Number. See 5 CFR 1320.5(a) and 1320.6. DOL has submitted the
Information Collection Request (ICR) contained in this rule to OMB and
obtained approval using emergency clearance procedures outlined at 5
CFR 1320.13. The Departments note that while DOL submitted the ICR,
both DHS and DOL will use the information.
More specifically, this rule includes a new form (Attestation for
Employers Seeking to Employ H-2B Nonimmigrants Workers Under Section
543 of the Consolidated Appropriations Act, Form ETA-9142-B-CAA) for
petitioners to submit to DHS, and that petitioners will use to make the
irreparable harm attestation described above. The petitioner would file
the attestation with DHS. In addition, the petitioner may need to
advertise the positions. Finally, the petitioner will need to retain
documents and records proving compliance with this implementing rule,
and must provide the documents and records to DHS and DOL staff in the
event of an audit or investigation. The information collection
requirements associated with this rule are summarized as follows:
Agency: DOL-ETA.
Type of Information Collection: New collection.
Title of the Collection: H-2B Nonimmigrants Workers Under Section
543 of the Consolidated Appropriations Act.
Agency Form Number: ETA-9142-B-CAA.
Affected Public: Private Sector--businesses or other for-profits.
Total Estimated Number of Respondents: 2,298.
Average Responses per Year per Respondent: 1.
Total Estimated Number of Responses: 2,298.
Average Time per Response: 6.25 hours per application.
Total Estimated Annual Time Burden: 14,363 hours.
Total Estimated Other Costs Burden: $679,174.
List of Subjects
8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
programs, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students.
20 CFR Part 655
Administrative practice and procedure, Employment, Employment and
training, Enforcement, Foreign workers, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Longshore and harbor
work, Migrant workers, Nonimmigrant workers, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.
Department of Homeland Security
8 CFR Chapter I
For the reasons discussed in the joint preamble, part 214 of
chapter I of title 8 of the Code of Federal Regulations is amended as
follows:
PART 214--NONIMMIGRANT CLASSES
0
1. The authority citation for part 214 continues to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187,
1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110
Stat. 3009-708; Public Law 106-386, 114 Stat. 1477-1480; section 141
of the Compacts of Free Association with the Federated States of
Micronesia and the Republic of the Marshall Islands, and with the
Government of Palau, 48 U.S.C. 1901 note and 1931 note,
respectively; 48 U.S.C. 1806; 8 CFR part 2.
0
2. Effective July 19, 2017 through September 30, 2017, amend Sec.
214.2 by adding paragraph (h)(6)(x) to read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status
* * * * *
(h) * * *
(6) * * *
(x) Special requirements for additional cap allocations under the
Consolidated Appropriations Act, 2017, Public Law 115-31--(A) Public
Law 115-31. Notwithstanding the numerical limitations set forth in
paragraph (h)(8)(i)(C) of this section, for fiscal year 2017 only, the
Secretary has authorized up to an additional 15,000 aliens who may
receive H-2B nonimmigrant visas pursuant to section 543 of the
Consolidated Appropriations Act, 2017, Public Law 115-31.
Notwithstanding Sec. 248.2 of this part, an alien may not change
status to H-2B nonimmigrant under this provision.
(B) Eligibility. In order to file a petition with USCIS under this
paragraph (h)(6)(x), the petitioner must:
(1) Comply with all other statutory and regulatory requirements for
H-2B classification, including requirements in this section, under part
103 of this chapter, and under parts 655 of Title 20 and 503 of Title
29; and
(2) Submit to USCIS, at the time the employer files its petition, a
U.S. Department of Labor attestation, in compliance with 20 CFR 655.64,
evidencing that without the ability to employ all of the H-2B workers
requested on the petition filed pursuant to this paragraph (h)(6)(x),
its business is likely to suffer irreparable harm (that is, permanent
and severe financial loss), and that the employer will provide
documentary evidence of this fact to DHS or DOL upon request.
(C) Processing. USCIS will reject petitions filed pursuant to this
paragraph (h)(6)(x) that are received after the numerical limitation
has been reached or after September 15, 2017, whichever is sooner.
USCIS will not approve a petition filed pursuant to this paragraph
(h)(6)(x) on or after October 1, 2017.
(D) Sunset. This paragraph (h)(6)(x) expires on October 1, 2017.
(E) Non-severability. The requirement to file an attestation under
paragraph (h)(6)(x)(B)(2) of this section is intended to be non-
severable from the remainder of this paragraph (h)(6)(x); in the event
that paragraph (h)(6)(x)(B)(2) is enjoined or held to be invalid by any
court of competent jurisdiction, this paragraph (h)(6)(x) is also
intended to be enjoined or held to be invalid in such jurisdiction,
without prejudice to workers already present in the United States under
this regulation, as consistent with law.
* * * * *
Department of Labor
Accordingly, for the reasons stated in the joint preamble, 20 CFR
part 655 is amended as follows:
Title 20--Employees' Benefits
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
0
3. The authority citation for part 655 continues to read as follows:
Authority: Section 655.0 issued under 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C.
1103(a)(6), 1182(m), (n) and (t), 1184(c), (g), and (j), 1188, and
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978,
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206,
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat.
[[Page 32999]]
2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat.
1312, 1316 (8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116
Stat. 2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR
214.2(h)(4)(i); and 8 CFR 214.2(h)(6)(iii).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
and 1188; and 8 CFR 214.2(h).
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec.
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note,
Pub. L. 114-74 at section 701.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub.
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114-74 at section 701.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
0
4. Effective July 19, 2017 through September 30, 2017, add Sec. 655.64
to read as follows:
Sec. 655.64 Special Eligibility Provisions for Fiscal Year 2017 under
the Consolidated Appropriations Act.
An employer filing a petition with USCIS under 8 CFR 214.2(h)(6)(x)
to employ H-2B workers from July 19, 2017 through September 15, 2017
must meet the following requirements:
(a) The employer must attest on Form ETA-9142-B-CAA that without
the ability to employ all of the H-2B workers requested on the petition
filed pursuant to 8 CFR 214.2(h)(6)(x), its business is likely to
suffer irreparable harm (that is, permanent and severe financial loss),
and that the employer will provide documentary evidence of this fact to
DHS or DOL upon request.
(b) An employer with a start date of work before June 1, 2017 on
its approved Temporary Labor Certification, must conduct additional
recruitment of U.S. workers as follows:
(1) The employer must place a new job order for the job opportunity
with the State Workforce Agency, serving the area of intended
employment. The job order must contain the job assurances and contents
set forth in 20 CFR 655.18 for recruitment of U.S. workers at the place
of employment, and remain posted for at least 5 days beginning not
later than the next business day after submitting a petition for H-2B
worker(s); and
(2) The employer must place one newspaper advertisement on any day
of the week meeting the advertising requirements of 20 CFR 655.41,
during the period of time the State Workforce Agency is actively
circulating the job order for intrastate clearance; and
(3) The employer must hire any qualified U.S. worker who applies or
is referred for the job opportunity until 2 business days after the
last date on which the job order is posted under paragraph (c)(1) of
this section. Consistent with 20 CFR 655.40(a), applicants can be
rejected only for lawful job-related reasons.
(c) This section expires on October 1, 2017.
(d) Non-severability. The requirement to file an attestation under
paragraph (a) of this section is intended to be non-severable from the
remainder of this section; in the event that paragraph (a) is enjoined
or held to be invalid by any court of competent jurisdiction, the
remainder of this section is also intended to be enjoined or held to be
invalid in such jurisdiction, without prejudice to workers already
present in the United States under this regulation, as consistent with
law.
0
3. Effective July 19, 2017 through September 30, 2020, add Sec. 655.65
to read as follows:
Sec. 655.65 Special Document Retention Provisions for Fiscal Years
2017 through 2020 under the Consolidated Appropriations Act.
(a) An employer that files a petition with USCIS to employ H-2B
workers in fiscal year 2017 under authority of the temporary increase
in the numerical limitation under Public Law 115-31 must maintain for a
period of 3 years from the date of certification, consistent with 20
CFR 655.56 and 29 CFR 503.17, the following:
(1) A copy of the attestation filed pursuant to regulations
governing that temporary increase;
(2) Evidence establishing that employer's business is likely to
suffer irreparable harm (that is, permanent and severe financial loss),
if it cannot employ H-2B nonimmigrant workers in fiscal year 2017;
(3) If applicable, evidence of additional recruitment and a
recruitment report that meets the requirements set forth in 20 CFR
655.48(a)(1), (2), and (7).
DOL or DHS may inspect these documents upon request.
(b) This section expires on October 1, 2020.
John F. Kelly,
Secretary of Homeland Security.
Alexander Acosta,
Secretary of Labor.
Appendix A
Attestation for Employers Seeking To Employ H-2B Nonimmigrant Workers
Under Section 543 of the Consolidated Appropriations Act, 2017 Public
Law 115-31 (May 5, 2017)
By virtue of my signature below, I hereby certify that the
following is true and correct:
(A) I am an employer with an approved labor certification from
the Department of Labor seeking permission to employ H-2B
nonimmigrant workers for temporary employment in the United States.
(B) I was granted temporary labor certification from the
Department of Labor (DOL) for my business's job opportunity, which
required that the worker(s) begin employment before October 1, 2017
and is currently valid.
(C) I attest that if my business cannot employ all the H-2B
nonimmigrant workers requested on my Form I-129 petition before the
end of this fiscal year (September 30, 2017) in the job opportunity
certified by DOL, my business is likely to suffer irreparable harm
(that is, permanent and severe financial loss).
(D) I attest that my business has a bona fide temporary need for
all the H-2B nonimmigrant workers requested on the Form I-129
petition, consistent with 8 CFR 214.2(h)(6)(ii).
(E) If my current labor certification contains a start date of
work before June 1, 2017, I will complete a new assessment of the
United States labor market in advance of H-2B nonimmigrant workers
coming to the United States to begin employment before October 1,
2017, as follows:
1. I will place a new job order for the job opportunity with the
State Workforce Agency (SWA) serving the area of intended employment
that contains the job assurances and contents set forth in 20 CFR
655.18 for recruitment of U.S. workers at the place of employment
for at least 5 days beginning not later than the next business day
after submitting a petition for an H-2B nonimmigrant worker(s) and
this accompanying attestation to U.S. Citizenship and Immigration
Services;
2. I will place one newspaper advertisement, which may be
published on any day of the week, meeting the advertising
requirements of 20 CFR 655.41, during the period of time the SWA is
actively circulating the job order for intrastate clearance; and
3. I will offer the job to any qualified and available U.S.
worker who applies or is referred for the job opportunity until 2
business days after the last date on which the job order is posted.
I understand that consistent with 20 CFR 655.40(a), applicants can
be rejected only for lawful job-related reasons.
(F) I agree to retain a copy of this signed attestation form,
the additional recruitment
[[Page 33000]]
documentation, including a recruitment report that meets the
requirements for recruitment reports set forth in 20 CFR
655.48(a)(1),(2) & (7), together with evidence establishing that my
business meets the standard described in paragraph (C) of this
attestation, for a period of 3 years from the date of certification,
consistent with the document retention requirements under 20 CFR
655.65, 20 CFR 655.56, and 29 CFR 503.17. Further, I agree to
provide this documentation to a DHS or DOL official upon request.
(G) I agree to comply with all assurances, obligations, and
conditions of employment set forth in the Application for Temporary
Employment Certification (Form ETA 9142B and Appendix B) certified
by the DOL for my business's job opportunity.
I hereby sign this under penalty of perjury:
[GRAPHIC] [TIFF OMITTED] TR19JY17.019
[FR Doc. 2017-15208 Filed 7-17-17; 11:15 am]
BILLING CODE 4510-FP-P; 4510-27-P; 9111-97-P
