Changes to Requirements Affecting H-2A Nonimmigrants, 8230-8247 [E8-2532]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 73, Number 30 (Wednesday, February 13, 2008)]
[Proposed Rules]
[Pages 8230-8247]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-2532]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / 
Proposed Rules

[[Page 8230]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214, 215 and 274a

[CIS No. 2428-07; Docket No. USCIS-2007-0055]
RIN 1615-AB65


Changes to Requirements Affecting H-2A Nonimmigrants

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is proposing amendments to 
its regulations affecting temporary and seasonal agricultural workers 
within the H-2A nonimmigrant classification and their U.S. employers. 
This rule proposes to relax the current limitations on the ability of 
U.S. employers to petition unnamed agricultural workers to come to the 
United States and include multiple beneficiaries who are outside the 
United States on one petition. The rule proposes to revise the current 
limitations on agricultural workers' length of stay including: 
lengthening the amount of time an agricultural worker may remain in the 
United States after his or her employment has ended and shortening the 
time period that an agricultural worker whose H-2A nonimmigrant status 
has expired must wait before he or she is eligible to obtain H-2A 
nonimmigrant status again. This rule also proposes to provide for 
temporary employment authorization to agricultural workers seeking an 
extension of their H-2A nonimmigrant status through a different U.S. 
employer, provided that the employer is a registered user of the E-
Verify employment eligibility verification program. In addition, the 
rule proposes to modify the current notification and payment 
requirements for employers when an alien fails to show up at the start 
of the employment period, an H-2A employee's employment is terminated, 
or an H-2A employee absconds from the worksite. To better ensure the 
integrity of the H-2A program, this rule also proposes to require 
certain employer attestations, preclude the imposition of fees by 
employers or recruiters on prospective beneficiaries, preclude 
reconsideration of certain temporary labor certification denials, and 
bar H-2A status for nationals of countries consistently refusing or 
unreasonably denying repatriation of its nationals. These changes are 
necessary to encourage and facilitate the lawful employment of foreign 
temporary and seasonal agricultural workers.
    Finally, this rule proposes to establish a pilot program under 
which aliens admitted on certain temporary worker visas at a port of 
entry participating in the program must also depart through a port of 
entry participating in the program and present designated biographical 
information, possibly including biometric identifiers, upon departure. 
U.S. Customs and Border Protection will publish a Notice in the Federal 
Register designating which temporary workers must participate in the 
program, which ports of entry are participating in the program, which 
biographical and/or biometric information would be required, and the 
format for submission.

DATES: Written comments on this rule must be submitted on or before 
March 31, 2008 in order to be assured of consideration.
    Written comments on the Paperwork Reduction Act section of this 
rule must be submitted on or before April 14, 2008.

ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2007-0055, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Chief, Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529. To 
ensure proper handling, please reference DHS Docket No. USCIS-2007-0055 
on your correspondence. This mailing address may also be used for 
paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: Regulatory Management Division, 
U.S. Citizenship and Immigration Services, Department of Homeland 
Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 
20529. Contact Telephone Number (202) 272-8377.

FOR FURTHER INFORMATION CONTACT: Hiroko Witherow, Service Center 
Operations, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 111 Massachusetts Avenue, NW., Suite 3000, 
Washington, DC 20529, telephone (202) 272-8410.

SUPPLEMENTARY INFORMATION:

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
proposed rule. Comments that will provide the most assistance to the 
Department of Homeland Security (DHS), U.S. Citizenship and Immigration 
Services (USCIS), and U.S. Customs and Border Protection (CBP) in 
developing these procedures will reference a specific portion of the 
proposed rule, explain the reason for any recommended change, and 
include data, information, or authority that support such recommended 
change.
    Instructions: All submissions received must include the agency name 
and DHS Docket No. USCIS-2007-0055 for this rulemaking. All comments 
received will be posted without change to https://www.regulations.gov, 
including any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov. Submitted comments 
may also be inspected at the Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529.

II. Background

    Over the years, U.S. employers have faced a shortage of U.S. 
workers who are able, willing, and qualified to fill agricultural jobs, 
and who would be available at the time and place needed to perform the 
work. To meet this need, U.S. employers have considered hiring foreign 
workers. However, before U.S. employers may hire such workers, 
immigration law requires that they first sponsor the workers by filing 
a petition based on their qualification within the

[[Page 8231]]

H-2A nonimmigrant classification. Immigration and Nationality Act (Act 
or INA) sec. 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a).

A. Description of the Current H-2A Nonimmigrant Program

    The H-2A nonimmigrant classification applies to aliens seeking to 
perform agricultural labor or services of a temporary or seasonal 
nature in the United States on a temporary basis. INA sec. 
101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a); see 8 CFR 
214.1(a)(2) (designation for H-2A classification). Under current 
regulations, employment of a seasonal nature is employment that is tied 
to a certain time of year by an event or pattern and requires labor 
levels far above those necessary for ongoing operations. 8 CFR 
214.2(h)(5)(iv). Employment is considered to be of a temporary nature 
where the employer's need to fill the position will last no longer than 
one year, absent extraordinary circumstances. Id.
    Aliens seeking H-2A nonimmigrant status must be petitioned for by a 
U.S. employer. However, prior to filing the petition, the U.S. employer 
must complete the temporary agricultural labor certification process 
with the Department of Labor (DOL) for the job opening the employer 
seeks to fill with an H-2A worker. This process determines: whether the 
proposed employment is for agricultural labor or services; whether it 
is open to U.S. workers; if qualified U.S. workers are available; the 
adverse impact, if any, on similarly employed U.S. workers of 
employment of a qualified alien; and whether employment conditions, 
including housing, meet applicable requirements. 8 CFR 214.2(h)(5)(ii). 
After receiving a temporary labor certification, the U.S. employer 
files Form I-129, ``Petition for Nonimmigrant Worker,'' with the 
appropriate USCIS office. See 8 CFR 214.2(h)(5)(i)(A). In rare 
instances, when domestic labor fails to appear at the worksite and DOL 
has denied the employer's temporary labor certification and appeal of 
the denial, USCIS may consider the written denial of appeal as a 
certification if it is filed with evidence that domestic labor is 
unavailable. Id.
    In order to meet its employment needs, an employer may petition for 
one or more H-2A workers. However, in the case of multiple 
beneficiaries, the total number of beneficiaries in the petition cannot 
exceed the number of positions indicated on the temporary labor 
certification, and all the beneficiaries on one petition must obtain a 
visa at the same consulate (or, if no visa is required, apply for 
admission at the same port of entry). 8 CFR 214.2(h)(5)(i)(B). Where 
the employer seeks to employ only one H-2A worker, the Form I-129 
submitted by the employer must name that worker. 8 CFR 
214.2(h)(5)(i)(C). If the employer includes multiple beneficiaries in 
the petition, the workers must be named unless they are unnamed in the 
DOL certification and are outside the United States. Id. The petition 
also must establish the temporary or seasonal nature of the employment 
and that the beneficiary meets the requirements in the temporary labor 
certification, including job and training requirements and any 
necessary post-secondary education or other formal training. 8 CFR 
214.2(h)(5)(v).
    The petitioner must make several petition agreements. The 
petitioner must: consent to allow access to the worksite where the 
labor will be performed; notify USCIS within twenty-four hours if an H-
2A worker absconds or if the authorized employment ends more than five 
days before the temporary labor certification document expires, and pay 
$10 in liquidated damages for each instance where the employer cannot 
demonstrate compliance with the notification requirement; and pay $200 
in liquidated damages for each instance where the employer cannot 
demonstrate that its H-2A worker either departed the United States or 
obtained authorized status based on another petition during the period 
of admission, or within five days of early termination (whichever comes 
first). 8 CFR 214.2(h)(5)(vi)(A).
    An H-2A worker's stay is limited by the term of the approved H-2A 
petition. 8 CFR 214.2(h)(5)(viii)(C). He or she may remain longer to 
engage in other qualifying temporary agricultural employment by 
obtaining an extension of stay. 8 CFR 214.2(h)(15)(ii)(C). However, his 
or her total period of stay in H-2A nonimmigrant status may not exceed 
three years. Id. An H-2A worker who has reached the three-year maximum 
period of stay may seek H-2A nonimmigrant status again, but only after 
remaining outside the United States for a six-month period. 8 CFR 
214.2(h)(5)(viii)(C).
    Significant absences can interrupt the accrual towards the three-
year cap of time spent as an H-2A worker. The H-2A worker can interrupt 
an accumulated stay of eighteen months or less by an absence from the 
United States of at least three months. Id. He or she can interrupt an 
accumulated stay of more than eighteen months by an absence from the 
United States of at least one-sixth of the accumulated stay. Id.
    Once an H-2A worker's petition has expired, the H-2A worker is 
allowed an additional ten-day period before he or she is required to 
depart the United States. 8 CFR 214.2(h)(5)(viii)(B). However, an H-2A 
worker whose three-year limit has not been reached may seek to extend 
his or her stay with the same employer or a new employer. He or she is 
employment authorized for not more than 240 days past the authorized 
period of stay if the same employer petitions for an extension of stay 
before expiration of the authorized period of stay. 8 CFR 
274a.12(b)(20). If a new employer files a request to extend the alien's 
stay in H-2A status, the alien is not employment authorized past the 
authorized period of stay and is not able to begin employment with the 
new employer until the petition is approved. 8 CFR 214.2(h)(2)(i)(D).
    USCIS will not grant H-2A nonimmigrant status to an alien who 
violated the conditions of H-2A status within the previous five years 
by remaining beyond the authorized period of stay or engaging in 
unauthorized employment. 8 CFR 214.2(h)(5)(viii)(A).

B. Limited Use of H-2A Nonimmigrant Classification

    Despite the availability of the H-2A nonimmigrant classification, a 
high percentage of the agricultural workforce is comprised of aliens 
who have no immigration status and are unauthorized to work. The 
Congressional Research Service Report to Congress, ``Farm Labor 
Shortages and Immigration Policy'' (Sept. 5, 2007), states that persons 
in the country illegally accounted for an estimated 37% of the domestic 
crop workforce in fiscal year (FY) 1994 to FY 1995. In FY 1997/FY 1998, 
this percentage increased to 52% out of the estimated 1.8 million 
workers employed on crop farms. By FY 1999/FY 2000, their proportion 
had increased to 55% before retreating to 53% in FY 2001/FY 2002.\1\
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    \1\ See also Research Report No. 8, U.S. Department of Labor 
Office of the Assistant Secretary for Policy Office of Program 
Economics (March 2000) (finding that in 1997-98, 52 percent of hired 
farm workers lacked work authorization, 22 percent were citizens and 
24 percent were lawful permanent residents).
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    Members of the public have cited what they consider to be 
unnecessarily burdensome regulatory restrictions placed on the H-2A 
nonimmigrant classification as one of the principal reasons why U.S. 
agricultural employers facing a shortage of qualified U.S. workers do 
not fully use the H-2A nonimmigrant classification to petition for 
temporary or seasonal agricultural

[[Page 8232]]

workers from abroad.\2\ Upon an examination of the regulatory 
provisions governing the H-2A nonimmigrant classification, USCIS has 
identified several requirements regarding the duration of the H-2A 
workers' authorized period of stay that add unnecessary burdens for 
both the petitioning employers and H-2A workers. The regulations 
include limitations on the use of unnamed and multiple beneficiaries in 
the petition, and employment authorization following a change in 
employers. The regulations also require certain employer agreements and 
include financial consequences for failure to comply. This proposed 
rule modifies these regulatory limitations and requirements. In so 
doing, USCIS anticipates that these changes will improve the utility of 
the H-2A nonimmigrant classification, so that this classification will 
be a more effective means for supplying a legal workforce to 
agricultural employers.
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    \2\ See Mexico-Migration: A Shared Responsibility. The U.S.-
Mexico Migration Panel Carnegie Endowment for International Peace 
and Instituto Tecnol[oacute]gico Aut[oacute]nomo de M[eacute]xico 
(2001); see also Washington, April M., ``Canada offers migrant tips; 
Colorado looks north of the border for ways to draw workers,'' Rocky 
Mtn. News 10 (Sep. 15, 2007) (quoting a farmer, ``There is a 
bottleneck at the federal level in approving work visas, causing 
real problems for farmers'').
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    To better ensure that the requirements proposed in this rule do not 
adversely affect H-2A workers, compromise national security, or 
undermine the integrity of the H-2A program, the rule also proposes a 
limited number of new terms and conditions on employers' participation 
in the program. First, the rule proposes to require an employer 
attestation regarding the scope of the H-2A employment and the use of 
recruiters to locate beneficiaries. Second, the rule proposes to 
provide for denial or revocation of the H-2A petition if an H-2A worker 
was charged a fee by the petitioner in connection with the employment. 
Third, the rule proposes to allow H-2A workers who are changing 
employers to begin work with the new petitioning employer before the 
change is approved by USCIS, but only if the new employer participates 
in USCIS' E-Verify program. The E-Verify program (successor to the 
Basic Pilot Program) provides employers with a free and electronic 
method for confirming the employment eligibility of their newly-hired 
employees. See Illegal Immigration Reform and Immigrant Responsibility 
Act of 1996 (IIRIRA) sec. 401-05, Pub. L. No. 104-208, 110 Stat. 3546 
(September 30, 1996), as amended (8 U.S.C.A. 1324a note). Fourth, this 
rule proposes to prohibit the approval of an H-2A petition for a 
national of a country that consistently refuses or unreasonably delays 
repatriation of its nationals who have been ordered removed from the 
United States. Finally, this rule proposes a program to strengthen the 
reporting system for temporary workers departing the United States at 
the conclusion of their authorized period of stay.

III. Proposed Changes

A. Consideration of Denied Temporary Agricultural Labor Certifications

    While current regulations allow USCIS, in limited circumstances, to 
approve H-2A petitions that are filed with denied temporary 
agricultural labor certifications, USCIS believes that this authority 
is of limited use and is proposing to remove it from the regulations. 
Current regulations permit USCIS to accept a written denial of an 
appeal of a denied temporary labor certification as a labor 
certification if the appeal denial is accompanied by evidence 
establishing that qualified domestic labor is unavailable to do the 
work. See 8 CFR 214.2(h)(5)(i)(A); \3\ see also 8 CFR 214.2(h)(5)(ii) 
(last sentence). USCIS believes that determinations as to the 
availability of U.S. workers are not within the expertise of USCIS, but 
instead are more appropriately made by DOL. Therefore, USCIS will 
remove this process from 8 CFR 214.2(h)(5)(i)(A) and (ii). The 
employer, however, is not left without recourse. If the employer can 
establish that domestic labor is unavailable, it may seek a new 
temporary labor certification from DOL.
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    \3\ Note that 8 CFR 214.2(h)(5)(i)(A) currently erroneously 
cites to section 216(e)(2) of the INA as the statutory authority for 
administrative appeals of denied temporary labor certifications. The 
correct statutory provision is section 218(e)(2) of the INA.
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B. Unnamed Beneficiaries in the Petition

    Currently, H-2A employers must name in the petition all the workers 
being sought (i.e., beneficiaries) unless unnamed in the temporary 
labor certification involving multiple beneficiaries. This requirement 
places an undue burden on employers. See 8 CFR 214.2(h)(5)(i)(C) 
(naming requirement). It also fails to accommodate the hiring practices 
of agricultural employers. An intervening event may preclude an 
employer from being able to continue to petition for the beneficiaries 
named in the temporary labor certification. This rule proposes to 
alleviate the problems encountered by employers when workers become 
unavailable by removing most of the constraints on an employer's 
ability to petition for unnamed beneficiaries and maintaining only the 
requirement that the petition include the names of those beneficiaries 
who are already in the United States.
    By removing from the current regulations the requirement to name 
beneficiaries outside of the United States on the petition, USCIS 
believes that agricultural employers would have more flexibility to 
recruit foreign workers that are actually interested in the position on 
the date of stated need. Since employers often start the temporary 
labor certification and petitioning processes several months ahead of 
the actual date of stated need, naming beneficiaries that far in 
advance increases the likelihood that those beneficiaries are 
unavailable to fill the positions. Conversely, if a beneficiary is 
already in the United States, USCIS believes that naming such 
beneficiaries is necessary because the granting of the petition will 
either confer a new immigration status or extend the status of a 
particular alien immediately upon approval, whereas prospective 
beneficiaries abroad still must undergo both a visa interview at a U.S. 
consulate and an inspection by a U.S. Customs and Border Protection 
officer upon arrival at a port of entry to the United States. Based on 
the proposed changes, if an employer wishes to petition for multiple 
beneficiaries, some of whom are in the United States and some of whom 
are outside the United States, the employer must name the beneficiaries 
who are in the United States, and only provide the number of 
beneficiaries who are outside the United States. This naming 
requirement would apply regardless of the number of beneficiaries on 
the petition or whether the temporary labor certification named 
beneficiaries.
    Rather than amend the applicable H-2A provision at 8 CFR 
214.2(h)(5)(i)(C), this rule proposes to incorporate these changes into 
the general provision at 8 CFR 214.2(h)(2)(iii), governing the naming 
of beneficiaries in H categories. USCIS believes that maintaining two 
separate provisions on the naming of beneficiaries unnecessarily 
complicates the regulations and results in confusion. Therefore, this 
rule proposes to remove the unnamed beneficiary requirements from 8 CFR 
214.2(h)(5)(i)(C) and revise the requirements in the general provision 
at 8 CFR 214.2(h)(2)(iii). This provision, as revised, would specify 
which H classifications must name beneficiaries in the petition and 
which do not need to name beneficiaries and under what circumstances. 
Note that

[[Page 8233]]

USCIS also is developing a separate rulemaking action to amend 
requirements for H-2B that may have additional impacts on H 
classifications.

C. Multiple Beneficiaries

    USCIS has determined that the current regulatory provision at 8 CFR 
214.2(h)(5)(i)(B) that permits petitioners to petition for multiple 
beneficiaries who are overseas only if all the beneficiaries will 
obtain a visa at the same overseas consulate or apply for admission at 
the same port of entry is no longer necessary. This rule proposes to 
eliminate this requirement from 8 CFR 214.2(h)(5)(i)(B). This 
requirement previously was necessary because, in the past, USCIS had to 
forward each approved petition to the consulate overseas where a 
beneficiary will apply for a visa. For petitions containing a request 
for multiple beneficiaries, the beneficiaries had to apply for their 
visas at the same consulate to ensure effective tracking and usage of 
available numbers in an approved petition. However, the U.S. Department 
of State recently implemented a new electronic system to effectively 
track visa issuance for specific petitions approved for multiple 
beneficiaries in real time regardless of the consulate location where a 
beneficiary may apply for a visa. Thus, the proposed change will 
benefit a prospective H-2A employer by permitting the employer to file 
only one petition with USCIS when petitioning for multiple H-2A 
beneficiaries from multiple countries. The benefit to the employer will 
be realized not only in terms of convenience but also from a financial 
standpoint since the employer will only be responsible for paying one 
petition filing fee.

D. Payment of Fees by Beneficiaries To Obtain H-2A Employment

1. Grounds for Denial or Revocation on Notice
    USCIS has found that certain job recruiters and U.S. employers are 
charging potential H-2A workers job placement fees in order to obtain 
H-2A employment. Such workers are coming to the United States to fill 
positions that U.S. workers are unwilling or unable to fill and are 
doing so in order to improve their own difficult economic circumstances 
at home. USCIS has learned that payment by these workers of job 
placement-related fees not only results in further economic hardship 
for them, but also, in some instances, has resulted in their effective 
indenture. In an effort to protect H-2A workers from such abuses, this 
rule proposes to provide USCIS with the authority to deny or revoke 
upon notice any H-2A petition if it determines (1) That the alien 
beneficiary has paid or has agreed to pay any fee or other form of 
compensation, whether directly or indirectly, to the petitioner, or (2) 
that the petitioning employer is aware that the alien beneficiary has 
paid or agreed to pay any facilitator, recruiter, or similar employment 
service, in connection with obtaining the H-2A employment. See proposed 
8 CFR 214.2(h)(5)(xi)(A); see also 8 CFR 214.2(h)(11)(iii) (revocation 
on notice). We understand that there may be circumstances where an 
alien beneficiary may seek to pay or otherwise compensate a recruiter, 
facilitator or similar employment service without the knowledge of the 
petitioner. By revoking or denying the petition in such circumstance, 
USCIS would be penalizing the alien beneficiary whose illegal actions 
should not be rewarded by continued stay in the United States, and 
deterring both aliens and recruiters from entering into such 
arrangements in the future. However, revocation or denial would also 
harm the petitioner as well, through loss of an employee. DHS solicits 
comments on appropriate administrative penalties in the event that 
USCIS determines that the alien beneficiary, without the knowledge of 
the petitioner, paid or agreed to pay a fee or any form of compensation 
to a facilitator, recruiter, or similar employment service, in 
connection with an offer or as a condition of H-2A employment.
    USCIS believes that this proposal will help minimize immigration 
fraud and protect against other abuses that have occurred when such 
aliens have been required to pay such employment fees, including 
petition padding (i.e., the filing of requests for more workers than 
needed), visa selling, and human trafficking. This proposal would not 
preclude the payment of any finder's or similar fee by the prospective 
employer to a recruiter or similar service, provided that such payment 
is not assessed directly or indirectly against the alien worker.
    To provide protection to H-2A workers who are in the United States 
based upon an approved petition that is later revoked pursuant to 
proposed 8 CFR 214.2(h)(5)(xi)(A), this rule proposes a thirty-day 
grace period during which time such workers may find new employment and 
apply for an extension of stay, or depart the United States. See 
proposed 8 CFR 214.2(h)(5)(xi)(B). During the thirty-day period, such 
workers would not be unlawfully present in the United States, but, 
instead, would be in an authorized period of stay. See INA sec. 
212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B). In general, the unlawful presence 
of an alien in the United States for more than 180 days results in the 
alien being inadmissible to the United States for a minimum of three 
years. Id.
    Further, to minimize the costs to H-2A workers who are affected by 
the revocation of a petition pursuant to proposed 8 CFR 
214.2(h)(5)(xi)(A), this rule also proposes to require employers to pay 
such workers' reasonable transportation expenses to return to their 
last place of foreign residence. Proposed 8 CFR 214.2(h)(5)(xi)(B). 
However, the rule would not require employers to be held liable for 
such expenses in cases where affected aliens obtain approval of an 
extension of H-2A stay based on a subsequent job offer with another 
employer during the thirty-day grace period, provided that the new 
employer states in the job offer that it will pay such reasonable 
return transportation expenses upon completion of the alien's new 
employment.
2. Employer Attestation
    USCIS recognizes that some H-2A petitioners, particularly those 
petitioning for the first time and without the benefit of counsel, may 
not appreciate the limitations on H-2A employment imposed by the 
regulations and the representations in the H-2A petition and the 
accompanying application for temporary labor certification. This rule 
proposes to require H-2A petitioners to include with their petitions an 
attestation, certified as true and accurate by the petitioner under 
penalty of perjury, that during the period of intended employment for 
which the petition is approved, the petitioner will not materially 
change the information provided on the Form I-129 and the temporary 
labor certification, including, but not limited to, the alien workers' 
duties, their place of employment, and the entities for which the 
duties will be performed. Proposed 8 CFR 214.2(h)(5)(i)(C). USCIS 
believes that this requirement will apprise petitioners of their 
responsibilities and obligations, and, at the same time, help prevent 
the employment of H-2A alien workers in a manner that conflicts with 
the representations upon which approval of the petition is based. In 
the event that a material change does occur in the terms and conditions 
of employment specified in the original petition, petitioners are 
currently obligated to file a new petition under 8 CFR 
214.2(h)(2)(i)(E).

[[Page 8234]]

    As an anti-fraud and worker protection measure to complement the 
proposed changes to 8 CFR 214.2(h)(5)(xi), USCIS is further proposing 
that the petitioning employer also include in its attestation a 
statement that it has not received, nor intends to receive, any fee, 
compensation, or other form of remuneration from the workers it intends 
to hire or from any person, agency or other entity. The petitioner 
would also be required to attest to whether it has used a facilitator, 
recruiter, or any other similar employment service, to locate foreign 
workers to fill the positions covered by the H-2A petition, and if so, 
to provide the names of such facilitators, recruiters, or placement 
services.

E. Petition Agreements and Liquidated Damages

    USCIS has found that the notification and liquidated damages 
requirements provided for in the current regulations at 8 CFR 
214.2(h)(5)(vi)(A) are onerous on employers and not effective in 
ensuring that H-2A workers maintain their nonimmigrant status. 
Therefore, USCIS is proposing to modify this provision by requiring 
petitioners to provide written notification to DHS in the following 
instances: an H-2A worker fails to report to work within five days of 
the date of the employment start date; the employment terminates more 
than five days early; or the H-2A worker absconds from the worksite. 
See proposed 8 CFR 214.2(h)(5)(vi)(B)(1). The rule proposes to lengthen 
the time within which the petitioner must meet the notification 
requirements from the current twenty-four hours to forty-eight hours. 
The rule also proposes to provide the method of notification via notice 
in the Federal Register, as well as the date on which the new 
notification requirements will take effect. To enforce the notification 
provision, the rule proposes to require employers to retain evidence 
(e.g., a photocopy) of the written notification for a one-year period. 
See proposed 8 CFR 214.2(h)(5)(vi)(B)(2).
    This rule further proposes to increase the liquidated damages for 
failing to meet the notification requirement from $10 to $500 per 
instance because the $10 amount is not a sufficient deterrent against 
noncompliance. See proposed 8 CFR 214.2(h)(5)(vi)(B)(3). However, the 
rule removes the current requirement for the petitioner to pay $200 in 
liquidated damages for failing to demonstrate that its H-2A worker 
either departed the United States or obtained authorized status based 
on another petition during the period of admission or within five days 
of early termination. USCIS believes that petitioners are not in a 
position to know or easily obtain this information.
    Additionally, the rule proposes to add a provision setting forth 
the circumstances in which an H-2A worker may be found to be an 
absconder, thus defining a term that would otherwise vary in 
interpretation from one employer to the next, possibly to the detriment 
of the alien worker. See proposed 8 CFR 214.2(h)(5)(vi)(E). The 
definition employs the same five-day period used to trigger a 
notification requirement when the alien does not show-up for work at 
the beginning of the petition period.
    In proposed 8 CFR 214.2(h)(5)(vi), USCIS is restructuring the 
entire paragraph. Substantive modifications were only made to the 
notification and liquidated damage requirements. Conforming amendments 
were made to 8 CFR 214.2(h)(5)(ix).

F. Violations of H-2A Status

    USCIS has determined that the current provision at 8 CFR 
214.2(h)(5)(viii)(A) precluding a new grant of H-2A status where the 
alien worker violated the conditions of H-2A status within the prior 
five years requires clarification. This provision only lists two types 
of status violations and fails to include all status violations. This 
rule clarifies that any violation of a condition of H-2A status 
committed within the five years prior to adjudication of the petition 
by USCIS will result in a denial of H-2A status.

G. Revocation of Labor Certification

    DOL published a rule that proposes to allow for the revocation of 
an approved temporary agricultural labor certification when an employer 
violates the terms of that labor certification. The proposal includes a 
means to contest a possible revocation of the labor certification. 
Accordingly, in this rule, USCIS is proposing to provide for the 
immediate and automatic revocation of the petition upon the revocation 
of the labor certification by DOL. See proposed 8 CFR 
214.2(h)(2)(11)(ii). Since the labor certification is a prerequisite 
for an H-2A petition, and the DOL proposed rule would provide for 
contesting revocation of the labor certification, USCIS need not engage 
in a separate review before the petition is revoked.

H. Prohibiting H-2A Petitions or Admissions for Nationals of Countries 
That Refuse Repatriation

    An alien worker who violates his or her status may be subject to 
administrative proceedings before an immigration judge to remove the 
alien from the United States. See INA sections 237(a)(1)(C), 239(a), 
240(a); 8 U.S.C. 1227(a)(1)(C), 1229(a), 1229a(a). A removal order 
typically includes the name of the country to which the alien is to be 
removed, which usually is the alien's country of nationality. In order 
to effectuate the removal order, DHS must ensure that the alien has the 
necessary travel documents (e.g., passport) to return to the named 
country and that the country agrees to receive the alien. DHS has faced 
an on-going problem of countries refusing to accept or unreasonably 
delaying the acceptance of their nationals who have been ordered 
removed. To combat this problem, Congress gave the Secretary of State 
the authority to discontinue the issuance of visas to citizens, 
subjects, nationals, and residents of a country if DHS notifies the 
Secretary of State that the government of that country consistently 
denies or unreasonably delays their return. INA sec. 243(d), 8 U.S.C. 
1253(d); see also IIRIRA sec. 307.
    In an effort to further alleviate the problem, this rule proposes 
to preclude USCIS from approving a petition filed on behalf of one or 
more aliens from countries determined by the Secretary of Homeland 
Security to consistently deny or unreasonably delay the prompt return 
of their citizens, subjects, nationals or residents. See proposed 8 CFR 
214.2(h)(5)(i)(F); see also INA secs. 214(a)(1), 215(a)(1) and 243(d); 
8 U.S.C. 1184(a)(1), 1185(a)(1), and 1243(d). At the time that DHS 
makes such determination, DHS expects in most cases to notify the 
Secretary of State under INA 243(d) of the determination so that 
applications for H-2A visas from citizens, subjects, nationals, and 
residents of that country may be lawfully denied on that basis. The 
Secretary of Homeland Security will periodically review determinations 
that countries have consistently denied or unreasonably delayed 
acceptance of their nationals to ensure the determinations are still 
justified. These provisions are intended to encourage more nations to 
promptly accept the return of nationals subject to a final order of 
removal.
    More generally, DHS expects that the proposals in this rule 
intended to increase the flexibility and attractiveness of the H-2A 
visa program, complemented by the streamlining proposals the Department 
of Labor is making in its H-2A rule, will increase the popularity of 
the program with U.S. agricultural employers. But even though a more 
workable H-2A program would mean fewer aliens entering the country 
illegally to seek work, it could also lead

[[Page 8235]]

to an increase in the number of H-2A workers that abscond from their 
workplace or overstay their immigration status. The repatriation 
proposal outlined above is designed, in part, to address this 
challenge. DHS hereby invites comments from the public on additional or 
alternative approaches, for example by restricting eligibility to 
nationals of countries that provide the most cooperation to the United 
States in administering the program, rather than by excluding those 
whose governments provide the least cooperation. DHS is particularly 
interested in additional ways to promote cooperation by foreign 
governments in matters of security, particularly in connection with 
travel and immigration, such as the country's willingness to share 
passport information and criminal records of aliens who are seeking 
admission to, or are present in, the United States under this program.

I. Period of Admission

    This rule proposes to extend the H-2A admission period following 
the expiration of the H-2A petition from not more than ten days to an 
absolute thirty-day period. See proposed 8 CFR 214.2(h)(5)(viii)(B). 
The purpose of this post-petition period is to provide the H-2A worker 
enough time to prepare for departure or apply for an extension of stay 
based on a subsequent offer of employment. As discussed below, USCIS is 
proposing to increase the mobility of aliens from one H-2A employer to 
another (see proposed 8 CFR 274a.12(b)(21)). USCIS believes that the 
change to a thirty-day period will facilitate this new benefit.
    The proposed rule also corrects 8 CFR 214.2(h)(5)(viii)(B) by 
removing an incorrect cross-reference to 8 CFR 214.2(h)(5)(ix)(C). In 
its place, a cross-reference to 8 CFR 214.2(h)(5)(viii)(B) should be 
included in 8 CFR 214.2(h)(5)(viii)(C).

J. Interruptions in Accrual Towards 3-Year Maximum Period of Stay

    An alien's total period of stay in H-2A nonimmigrant status may not 
exceed three years. 8 CFR 214.2(h)(15)(ii)(C). However, certain periods 
of time spent outside the United States are deemed to ``stop the 
clock'' towards the accrual of the three-year limit. 8 CFR 
214.2(h)(5)(viii)(C). USCIS has determined that the length of time that 
the current regulations require before an H-2A's three-year period of 
stay is deemed interrupted is unnecessarily long. This results in H-2A 
workers reaching the three-year cap on their authorized period of stay 
much sooner than reasonably anticipated by both the workers and their 
employers, causing disruptive breaks in employment and difficulty for 
employers to meet their time-sensitive agricultural requirements. This 
rule proposes to reduce from three months to forty-five days the 
minimum period spent outside the United States that would be considered 
interruptive of accrual of time towards the three-year limit, where the 
accumulated stay is eighteen months or less. See proposed 8 CFR 
214.2(h)(5)(viii)(C). If the accumulated stay is longer than eighteen 
months, this rule proposes to simplify the calculation of the 
interruptive period required from at least one-sixth of the period of 
accumulated stay to two months. Id. These proposed reductions would 
reduce the amount of time employers are required to be without the 
services of needed workers and enable the employers to have a set 
timeframe from which they can better monitor compliance with the terms 
and conditions of H-2A status.

K. Post-H-2A Waiting Period

    Once an H-2A worker has reached the three-year ceiling on H-2A 
nonimmigrant status, current regulations require the worker to wait six 
months outside the United States prior to seeking H-2A nonimmigrant 
status again (or any other nonimmigrant status based on agricultural 
activities). 8 CFR 214.2(h)(5)(viii)(C). USCIS believes that a shorter 
waiting period would better meet the needs of agricultural employers in 
a time-sensitive industry experiencing such a shortage of U.S. workers. 
This rule proposes to reduce the required absence period to three 
months, in order to reduce the amount of time employers would be 
required to be without the services of needed workers, while not 
offending the fundamental temporary nature of employment under the H-2A 
program.

L. Extending Status With New Employer and Participation in E-Verify

    This proposed rule would permit H-2A workers to continue to be 
employment authorized while awaiting an extension of H-2A status based 
on a petition filed by a new employer accompanied by an approved labor 
certification. Proposed 8 CFR 274a.12(b)(21). Specifically, the new 
provision would authorize an individual who has filed an application 
for an extension of stay during his or her period of admission to be 
employed by the new, petitioning employer for a period not to exceed 
120 days beginning from the date of the notice that USCIS issues to 
acknowledge that it has received the application for the extension of 
stay. USCIS issues such notices on Form I-797, ``Notice of Action.'' 
The notice date on Form I-797 is called the ``Received Date.'' Note 
that if the application for the extension of stay is denied by USCIS 
prior to the expiration of this 120-day period, employment 
authorization would automatically terminate upon notification of the 
denial decision.
    The proposed rule places one condition on this employment 
authorization benefit: The new H-2A employer must be a registered user 
in good standing (as determined by USCIS) of USCIS' E-Verify program. 
If the new employer does not meet this condition, proposed 8 CFR 
274a.12(b)(21) would not apply, and the alien worker would not be 
authorized to work for the new employer until USCIS grants the 
extension of stay application. USCIS believes that this proposed 
employment authorization provision will create an incentive for 
agricultural employers to enroll in the E-Verify program, thereby 
reducing opportunities for aliens without employment authorization to 
work in the agricultural sector and helping protect the integrity of 
the H-2A program.
    This proposed rule makes conforming amendments to 8 CFR 
214.2(h)(2)(i)(D) (prohibiting an alien from commencing employment 
until the new employer's petition is approved) and includes a cross-
reference to proposed 8 CFR 274a.12(b)(21). It also includes a cross-
reference to section 214(n) of the INA, 8 U.S.C. 1184(n). This 
statutory provision applies to aliens within the H-1B specialty worker 
classification and, in general, permits such aliens to work for a new 
employer before such an employer's petition is approved. The addition 
of section 214(n) of the INA, 8 U.S.C. 1184(n), in this proposed 
rulemaking is made so that the regulations conform to the statute.

M. Miscellaneous Changes to H-2A Program

1. Extensions of Stay Without New Temporary Labor Certifications
    USCIS regulations currently provide that, under certain 
circumstances, an application for an extension of stay for an H-2A 
nonimmigrant worker need not contain an approved temporary labor 
certification. 8 CFR 214.2(h)(5)(x). This rule proposes revisions to 
this provision to improve its readability; it proposes no substantive 
changes.
2. Filing Locations
    To improve the efficient processing of H-2A nonimmigrant petitions, 
USCIS recently established special mailing

[[Page 8236]]

addresses at the USCIS California Service Center for all H-2A petition 
filings. The current regulations, however, only permit petitions to be 
filed with the USCIS Service Center that has jurisdiction in the area 
where the alien will perform services (or receive training) except as 
provided for elsewhere in the regulations or by a designation specified 
in a notice published in the Federal Register. 8 CFR 214.2(h)(2)(i)(A). 
USCIS has found that effecting changes to filing procedures by notice 
in the Federal Register creates an unnecessary obstacle to the timely 
implementation of petition processing improvements. Such changes would 
be more timely conveyed to the public via the petition's form 
instructions and USCIS's Web site. Therefore, this rule proposes to 
remove the Federal Register notice requirement at 8 CFR 
214.2(h)(2)(i)(A) and instead provides that the form instructions will 
contain information regarding appropriate filing locations for these 
nonimmigrant visa petitions.

N. USCIS Policy Applicable to H-2A Sheepherders

    For a number of years, the Immigration and Naturalization Service 
(INS) and now USCIS have refrained from applying the three-year maximum 
period of stay to H-2A aliens who work as sheepherders. See Memorandum 
from INS Assistant Commissioner John R. Schroeder to Northern Service 
Center Director James M. Bailey, ``Limits of Stay for H-2A Sheepherders 
under 8 CFR 214.2(h)(5)(viii)(C)'' (Oct. 31, 1991) (referring to Letter 
from INS Commissioner Alan Nelson to Senator Alan K. Simpson (Nov. 11, 
1987)) (stating that a 6-month absence from United States is not 
required of H-2A sheepherders). As a result, H-2A aliens working as 
sheepherders who have reached the three-year maximum period of stay 
have been able to commence a new three-year period of stay in H-2A 
status without ever departing and remaining outside the United States 
for six months. See 8 CFR 214.2(h)(5)(viii)(C) (specifying 6-month 
departure requirement). While USCIS recognizes the special nature of 
this unique type of agricultural work, including the need to herd sheep 
over extensive expanses of open range for long periods of time, USCIS 
has concluded that its policy of exempting H-2A sheepherders from the 
six-month departure requirement is inconsistent with the parameters of 
the H-2A classification. Those parameters require that H-2A workers 
have a residence in a foreign country that they have no intention of 
abandoning, and perform agricultural labor or services in the United 
States on a temporary basis. Without imposing a meaningful departure 
after the three-year maximum period of stay has been reached, USCIS has 
found that H-2A sheepherders' stay is not truly temporary.
    Therefore, USCIS proposes to impose on H-2A sheepherders the same 
departure requirement applicable to all H-2A workers. However, before 
doing so, USCIS is soliciting comments from the public regarding this 
change in policy. Under the proposed change, USCIS would not take 
action against individuals who have already been admitted in H-2A 
classification to engage in sheepherding activities. Such individuals, 
however, would be required to depart from the United States at the end 
of their period of admission in H-2A status and remain outside of this 
country for the requisite time period (six months under the current 
regulation; three months under the proposed rule) before being eligible 
to obtain H-2A status again. See INA sec. 101(a)(15)(H)(ii)(A), 8 
U.S.C. 1101(a)(15)(H)(ii)(A); 8 CFR 214.2(h)(5)(iv).

O. Land Border Exit System Pilot

    The Secretary of Homeland Security is authorized to prescribe 
conditions for the admission of nonimmigrant aliens under section 214 
of the INA. Section 235 of the INA provides for the inspection of 
applicants for admission. Pursuant to 8 CFR 235.1(h)(1), nonimmigrant 
aliens who are admitted to the United States, unless otherwise exempt, 
are issued Form I-94, ``Arrival/Departure Record,'' as evidence of the 
terms of admission. Once admitted into the country, nonimmigrant aliens 
are required to comply with all the conditions of their stay, depart 
the United States before the expiration of the period of authorized 
stay, and surrender the departure portion of the Form I-94 upon 
departure from the United States. Section 215 of the INA provides the 
authority for departure control for any person departing from the 
United States. Additionally, 8 CFR part 215 provides the regulations 
for controls of aliens departing from the United States. Specifically, 
8 CFR 215.2 allows for DHS, at its discretion, to require any alien 
departing from the United States to be examined under oath and to 
submit for official inspection all documents in the alien's possession.
    Available statistics indicate that a significant number of 
nonimmigrant aliens either do not turn in their Form I-94 upon 
departure or overstay their authorized period of stay. DHS intends to 
strengthen its departure control record keeping system. On August 10, 
2007, the Administration announced that it would establish a new land-
border exit system for guest workers, starting on a pilot basis. In 
order to ensure that temporary workers depart the United States within 
the authorized period, DHS is proposing to institute a land-border exit 
system for H-2A guest workers on a pilot basis. Under the proposed 
program, an alien admitted on an H-2A visa at a port of entry 
participating in the program must also depart through a port of entry 
participating in the program and present designated biographic and/or 
biometric information upon departure at the conclusion of their 
authorized period of stay. CBP would publish a Notice in the Federal 
Register designating which ports of entry are participating in the 
program, which biographic and/or biometric information would be 
required, and the format for submission of that information by the 
departing H-2A workers. The exit pilot program would allow DHS to 
ensure that the H-2A workers subject to this pilot program have 
departed from the United States when their authorization expires and 
would provide a foundation for the comprehensive land border exit 
system for guest workers proposed by the Administration in August 2007. 
DHS requests comments on the establishment of the proposed pilot 
program. DHS also solicits comments on whether to include H-2B workers 
in the exit pilot program. (The H-2B nonimmigrant classification 
applies to foreign workers performing nonagricultural temporary labor 
or services in the United States. INA sec. 101(a)(15)(H)(ii)(b), 8 
U.S.C. 1101(a)(15)(H)(ii)(b); 8 CFR 214.1(a)(2) (H-2B classification 
designation)).
    DHS previously conducted exit pilot programs at selected air and 
sea ports of entry through United States Visitor and Immigrant Status 
Indicator Technology (US-VISIT) Program. See 69 FR 46556. Those pilots 
began in August 2004 and concluded in May 2007. The pilot program exit 
system proposed under this rule will utilize any applicable lessons 
learned from the US-VISIT air and sea exit pilot program. DHS will 
continue to coordinate these screening programs to ensure both security 
and efficiency of the programs.

IV. Rulemaking Requirements

A. Regulatory Flexibility Act-Initial Regulatory Flexibility Analysis

    The H-2A program establishes a means for agricultural employers who 
anticipate a shortage of domestic workers to bring nonimmigrant foreign

[[Page 8237]]

workers to the United States to perform agricultural labor or services 
of a temporary or seasonal nature. U.S. employers have historically 
faced a shortage of domestically available workers for seasonal 
agricultural jobs. Many farm workers also in America lack proper work 
authorization and immigration status. In addition, the requirements 
that Federal labor and immigration authorities impose on farmers and 
agribusinesses to obtain H-2A workers are generally felt to be overly 
burdensome. Therefore, USCIS is proposing changes intended to encourage 
and facilitate the lawful employment of foreign temporary and seasonal 
agricultural workers.
1. Description of and, Where Feasible, an Estimate of the Number of 
Small Entities to Which the Proposed Rule Will Apply
a. Regulated Entities
    USCIS has concluded that the entities affected by this rule are 
generally categorized as small. By and large this rule applies to farms 
engaged in the production of livestock, livestock products, field 
crops, row crops, tree crops, and various other enterprises. It does 
not apply to support activities for agriculture. The industry affected 
by this rule, as described in the North American Industry 
Classification System (NAICS), as encompassing NAICS subsectors 111, 
Crop Production, and 112, Animal Production.
b. Number of Small Entities to Which the Proposed Rule Will Apply
    USCIS estimates that it will receive approximately 6,300 petitions 
per year for H-2A workers with many farms submitting multiple 
petitions. About 5,000 of those are expected to be submitted by small 
entities. The number of regulated firms represents about 0.3 percent of 
all farmers and the number of H-2A employees make up about 9.3 percent 
of all farm workers. Finally, about 550 sheep ranchers (an unknown 
number but presumed majority of which are small entities) are expected 
to be directly affected by this proposed rule as a result of the 
proposed changes that are specific to sheepherders.
2. Description of the Projected Reporting, Recordkeeping and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities That Will Be Subject to the Requirement 
and the Type of Professional Skills Necessary for Preparation of the 
Report or Record
a. Paperwork Reduction Act
    The proposed rule adds no ``reporting'' or ``recordkeeping'' 
requirements within the meaning of the Paperwork Reduction Act; thus 
the rule does not require professional skills for the preparation of 
``reports'' or ``records'' under that Act.
b. New Reporting Requirement
    The proposed rule would impose new reporting requirements on H-2A 
employers, including the time frame for reporting, the mechanisms for 
reporting, the amount of liquidated damages for failure to comply, and 
defenses for failure to comply. This rule proposes to announce via 
notice published in the Federal Register appropriate notification 
requirements and assesses liquidated damages for failure to comply with 
the notification requirements at $500 per violation. DHS has no basis 
for estimating the cost of this new requirement on H-2A employers. 
However, DHS believes that the occurrence of non-compliance is not 
prevalent enough to affect a substantial number of the affected 
entities. However, the agency has requested and seeks further comment 
on the actual costs or expenditures, if any, of impact on any one firm 
that is assessed liquidated damages as a result of being found to be in 
violation of this new requirement and how that impact may differ or 
vary for small entities.
3. Identification of Federal Rules That May Duplicate, Overlap or 
Conflict With the Proposed Rule
    DHS is unaware of any duplicative, overlapping, or conflicting 
federal rules. As noted below, DHS seeks comments and information about 
any such rules, as well as any other state, local, or industry rules or 
policies that impose similar requirements as those in this proposed 
rule.
4. Description of Any Significant Alternatives to the Proposed Rule 
That Accomplish the Stated Objectives of Applicable Statutes and That 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities, Including Alternatives Considered, Such as: (1) Establishment 
of Differing Compliance or Reporting Requirements or Timetables That 
Take into Account the Resources Available to Small Entities; (2) 
Clarification, Consolidation, or Simplification of Compliance and 
Reporting Requirements Under the Rule for Such Small Entities; (3) Use 
of Performance Rather Than Design Standards; (4) Any Exemption From 
Coverage of the Rule, or Any Part Thereof, for Such Small Entities
    Throughout the development of the proposed rule DHS has made every 
effort to gather information regarding the economic impact of the 
rule's requirements on all operators, including small entities. 
Questions for public comment regarding the costs and benefits 
associated with the proposed rule with respect to how operators, 
including small entities, can comply with the rule's requirements are 
included in this part of the rule.
5. Questions For Comment To Assist Regulatory Flexibility Analysis
    Please provide comment on any or all of the provisions in the 
proposed rule with regard to:
    a. The impact of the provision(s) (including any benefits and 
costs), if any; and
    b. What alternatives, if any, DHS should consider, as well as the 
costs and benefits of those alternatives, paying specific attention to 
the effect of the rule on small entities in light of the above 
analysis. In particular, please provide the above information with 
regard to the following sections of the proposed rule:
    i. The new reporting requirements on H-2A employers, including the 
time frame for reporting, the mechanisms for reporting, the amount of 
liquidated damages for failure to comply, and defenses for failure to 
comply in 8 CFR 214.2(h)(2)(vi)(B)(2).
    ii. The requirement for H-2A sheepherders to have the same 
departure requirement applicable to all H-2A workers under 8 CFR 
214.2(h)(5)(viii)(C) (specifying 6-month departure requirement).
    iii. Any other requirement not mentioned above.
    c. Costs to ``implement and comply'' with the rule including 
expenditures of time and money for any employee training; attorney, 
computer programmer, or other professional time;

[[Page 8238]]

preparing relevant materials; processing materials, including, 
materials or requests for access to information; and recordkeeping.
    Please describe ways in which the rule could be modified to reduce 
any costs or burdens for small entities consistent with the Immigration 
and Nationality Act's requirements.
    Please describe whether and how technological developments could 
reduce the costs of implementing and complying with the rule for small 
entities or other operators.
    Please provide any information quantifying the economic benefits 
of:
    a. Reducing delays in the petition, application, and approval 
process.
    b. Reducing the time required for an H-2A worker to be out of the 
country, allowing more time for departure after the visa has expired, 
and allowing for an extension of stay while a new petition is pending.
    c. Encouraging employers who currently hire seasonal agricultural 
workers who are not properly authorized to work in the United States to 
replace those workers with legal workers.
    d. Minimize immigration fraud and protect against abuses that occur 
when aliens are required to pay employment fees.
    Please identify all relevant federal, state or local rules that may 
duplicate, overlap or conflict with the proposed rule. In addition, 
please identify any industry rules or policies that already require 
compliance with the requirements of the DHS proposed rule.

B. Provisions to Which the Regulatory Flexibility Act Does Not Apply

    CBP is also seeking comments through this rule with respect to a 
pilot program that would require that aliens admitted on certain 
temporary worker visas at a port of entry must depart through a port of 
entry participating in the program. Although there may be costs 
associated with participation in this program, the aliens impacted by 
this portion of the rule are not considered ``small entities,'' as that 
term is defined in 5 U.S.C. 601(6). Since the regulation will require 
the alien to comply with the pilot program, rather than placing a 
requirement on the employers, the employers are not directly impacted 
by this proposed rule. Employers, including small entities, are free to 
offer assistance to their H-2A workers in complying with this 
requirement if they choose to do so. However, the employer's assumption 
of any costs inherent with complying with this requirement on behalf of 
their workers is voluntary and, therefore, not subject to the 
Regulatory Flexibility Act.

C. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

D. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

E. Executive Order 12866

    This rule has been designated as significant under Executive Order 
12866. Thus, under section 6(a)(3)(C) of the Executive Order, USCIS is 
required to prepare an assessment of the benefits and costs anticipated 
to occur as a result of this regulatory action and provide the 
assessment to the Executive Office of the President, Office of 
Management and Budget, Office of Information and Regulatory Affairs.
    In summary, this rule proposes several changes to the H-2A visa 
program that USCIS believes are necessary to encourage and facilitate 
the lawful employment of foreign temporary and seasonal agricultural 
workers. There are no additional regulatory compliance requirements to 
be added that will cause a detectable increase in costs for 
participating firms. Costs of compliance will not be changed by this 
proposed rule. Volume of applications may increase slightly, but the 
burden of compliance both in time and fees will not increase above that 
currently imposed. Qualitatively, this rule will benefit applicants by:
     Reducing delays caused by IBIS checks holding up the 
petition application process.
     Reducing disruption of the life and affairs of H-2A 
workers in the United States.
     Protecting laborers' rights by precluding payment of fees 
by the alien.
     Preventing the filing of requests for more workers than 
needed, visa selling, coercion of alien workers and their family 
members, or other practices that exploit workers and stigmatize the H-
2A program.
     Encouraging employers who currently hire seasonal 
agricultural workers who are not properly authorized to work in the 
United States to replace those workers with legal workers.
     Minimizing immigration fraud and human trafficking.
    The H-2A program establishes a means for agricultural employers who 
anticipate a shortage of domestic workers to bring nonimmigrant foreign 
workers to the United States to perform agricultural labor or services 
of a temporary or seasonal nature. This rule is being promulgated as 
part of the reform process to make changes that are intended to provide 
agricultural employers with an orderly and timely flow of legal workers 
while protecting laborers' rights.

F. Temporary Alien Farm Workers: The Current H-2A Program

    The H-2A nonimmigrant classification applies to aliens who are 
coming to the United States temporarily to perform agricultural labor 
or services of a temporary or seasonal nature. Seasonal employment is 
tied to a certain time of year that requires labor above regular 
operations. Temporary labor m