Changes to Requirements Affecting H-2A Nonimmigrants, 76891-76914 [E8-29888]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 73, Number 244 (Thursday, December 18, 2008)]
[Rules and Regulations]
[Pages 76891-76914]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29888]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214, 215 and 274a

[Docket No. USCIS-2007-0055; CIS No. 2428-07]
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: Final rule.

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SUMMARY: This final rule amends Department of Homeland Security 
regulations regarding temporary and seasonal agricultural workers, and 
their U.S. employers, within the H-2A nonimmigrant classification. The 
final rule removes certain limitations on H-2A employers and adopts 
streamlining measures in order to encourage and facilitate the lawful 
employment of foreign temporary and seasonal agricultural workers. The 
final rule also addresses concerns regarding the integrity of the H-2A 
program and sets forth several conditions to prevent fraud and to 
protect laborers' rights. The purpose of the final rule is to provide 
agricultural employers with an orderly and timely flow of legal 
workers, thereby decreasing their reliance on unauthorized workers, 
while protecting the rights of laborers.
    The rule revises 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 
provides 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 in good standing with the E-Verify employment eligibility 
verification program. In addition, DHS modifies the current 
notification and

[[Page 76892]]

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 requires 
certain employer attestations and precludes the imposition of fees by 
employers or recruiters on prospective beneficiaries. Under this final 
rule, DHS also will revoke an H-2A petition if the Department of Labor 
revokes the petitioner's underlying labor certification. Also, this 
rule provides that DHS will publish in a notice in the Federal Register 
a list of countries that the Secretary of Homeland Security has 
designated, with the concurrence of the Secretary of State, as eligible 
for its nationals to participate in the H-2A program. These changes are 
necessary to encourage and facilitate the lawful employment of foreign 
temporary and seasonal agricultural workers.
    Finally, this rule establishes criteria for 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 upon departure. U.S. Customs and Border Protection (CBP) 
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, and the types of information that CBP 
will collect from the departing workers.

DATES: This rule is effective January 17, 2009.

FOR FURTHER INFORMATION CONTACT: Hiroko Witherow, Service Center 
Operations, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529, 
telephone (202) 272-8410.

SUPPLEMENTARY INFORMATION: This supplementary information section is 
organized as follows:

Table of Contents

I. Background
    A. Proposed Rule
    B. Discussion of the Final Rule
II. Public Comments on the Proposed Rule
    A. Summary of Comments
    B. General Comments
    B. Specific Comments
III. Regulatory Requirements
    A. Small Business Regulatory Enforcement Fairness Act of 1996
    B. Executive Order 12866
    C. Executive Order 13132
    D. Executive Order 12988
    E. Regulatory Flexibility Act
    F. Unfunded Mandates Reform Act of 1995
    G. Paperwork Reduction Act

I. Background

A. Proposed Rule

    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. Immigration and Nationality Act (Act or 
INA) section 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). 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. In response to members 
of the public citing what they consider to be unnecessarily burdensome 
regulatory restrictions placed on the H-2A nonimmigrant classification 
and resulting limits on the utility of this nonimmigrant category to 
U.S. agricultural employers, the Department of Homeland Security (DHS) 
published a notice of proposed rulemaking on February 13, 2008, 
proposing to amend its regulations regarding the H-2A nonimmigrant 
classification. 73 FR 8230. On the same date, the Department of Labor 
(DOL) published a notice of proposed rulemaking to amend its 
regulations regarding the certification of H-2A employment and the 
enforcement of the contractual obligations applicable to H-2A 
employers. 73 FR 8538.
    DHS, among other changes, proposed to:
     Relax the limitations on naming beneficiaries on the H-2A 
petition who are outside of the United States.
     Permit H-2A employers to file only one petition when 
petitioning for multiple H-2A beneficiaries from multiple countries.
     Deny or revoke any H-2A petition if the alien-beneficiary 
paid or agreed to pay any prohibited fee or other form of compensation 
to the petitioner, or, with the petitioner's knowledge, to a 
facilitator, recruiter, or similar employment service, in connection 
with the H-2A employment.
     Require H-2A petitioners: (a) To attest that they will not 
materially change the information provided on the Form I-129 and the 
temporary labor certification; (b) to attest that they have not 
received and do not intend to receive, any fee, compensation, or other 
form of remuneration from prospective H-2A workers; and (c) to identify 
any facilitator, recruiter, or similar employment service that they 
used to locate foreign workers.
     Require H-2A petitioners to provide written notification 
to DHS, or be subject to an imposition of $500 in liquidated damages, 
within forty-eight hours if: (a) An H-2A worker fails to report to work 
within five days of the date of the employment start date; (b) the 
employment terminates more than five days early; or (c) the H-2A worker 
has not reported for work for a period of five days without the consent 
of the employer.
     Clarify that DHS will not accord H-2A status to any alien 
who has violated any condition of H-2A nonimmigrant status within the 
previous five years.
     Immediately and automatically revoke an H-2A petition upon 
the revocation of the underlying labor certification by DOL.
     Refuse to approve H-2A petitions filed on behalf of 
beneficiaries from or to grant admission to aliens from countries 
determined by DHS to consistently deny or unreasonably delay the prompt 
return of their citizens, subjects, nationals, or residents who are 
subject to a final order of removal.
     Extend the H-2A admission period following the expiration 
of the H-2A petition from not more than 10 days to 30 days.
     Reduce from 3 months to 45 days the minimum period spent 
outside the United States that would interrupt the accrual of time 
toward the 3-year maximum period of stay where the accumulated stay is 
18 months or less, and to reduce such minimum period from 1/6 of the 
period of accumulated stay to 2 months if the accumulated stay is 
longer than 18 months.
     Reduce from 6 months to 3 months the period that an 
individual who has held H-2A status for a total of 3 years must remain 
outside of the United States before he or she may be granted H-2A 
nonimmigrant status again.
     Extend H-2A workers' employment authorization for up to 
120 days while they are awaiting an extension of H-2A status based on a 
petition filed by a new employer, provided that the new employer is a 
registered user in good standing in DHS's E-Verify program.
     Impose on sheepherders the departure requirement 
applicable to all H-2A workers.
     Establish a temporary worker exit program on a pilot basis 
that would require certain H-2A workers to register at the time of 
departure from the United States.
    DHS initially provided a 45-day comment period in the proposed 
rule, which ended on March 31, 2008. DHS provided an additional 15-day 
comment

[[Page 76893]]

period from April 1, 2008 through April 14, 2008. During this 60-day 
comment period, DHS received 163 comments. DHS received comments from a 
broad spectrum of individuals and organizations, including various 
agricultural producers, agricultural trade associations, farm workers' 
labor unions, civil and human rights advocacy organizations, 
agricultural producers' financial cooperatives, farm management 
services companies, voluntary public policy organizations, private 
attorneys, state government agencies, a Member of Congress, and other 
interested organizations and individuals. During the public comment 
period, DHS officials, together with those from DOL, also met with 
stakeholders to discuss the proposed rule. Meeting participants were 
encouraged to submit written comments on the rule.
    DHS considered the comments received and all other materials 
contained in the docket in preparing this final rule. The final rule 
does not address comments seeking changes in United States statutes, 
changes in regulations or petitions outside the scope of the proposed 
rule, or changes to the procedures of other DHS components or agencies.
    All comments and other docket materials may be viewed at the 
Federal Docket Management System (FDMS) at https://www.regulations.gov, 
docket number USCIS-2007-0055.

B. Discussion of the Final Rule

    The final rule adopts many of the regulatory amendments set forth 
in the proposed rule. The rationale for the proposed rule and the 
reasoning provided in the preamble to the proposed rule remain valid 
with respect to these regulatory amendments, and DHS adopts such 
reasoning in support of the promulgation of this final rule. Based on 
the public comments received in response to the proposed rule, however, 
DHS has modified some of the proposed changes for the final rule as 
follows.
1. Notification and Liquidated Damages Requirements
    The final rule requires petitioners to notify DHS, within two 
workdays, beginning on a date and in a manner specified in a notice 
published in the Federal Register, of the following circumstances: (a) 
An H-2A worker's failure to report to work within five workdays of the 
employment start date on the H-2A petition or within five workdays of 
the start date established by his or her employer, whichever is later; 
(b) an H-2A worker's completion of agricultural labor or services 30 
days or more before the date specified by the petitioner in its H-2A 
petition; or (c) an H-2A worker's absconding from the worksite or 
termination prior to the completion of the agricultural labor or 
services for which he or she was hired. New 8 CFR 
214.2(h)(5)(vi)(B)(1). By ``workday,'' DHS means the period between the 
time on any particular day when such employee commences his or her 
principal activity and the time on that day at which he or she ceases 
such principal activity or activities.
a. Liquidated Damages
    DHS has revisited the proposed increase in liquidated damages from 
$10 to $500 for an employer's failure to comply with the notification 
requirement. For the time being, DHS will retain the liquidated damages 
provision under 8 CFR 214.2(h)(5)(vi)(B)(3), and require an employer 
who fails to comply with the notification requirements, as revised 
under this final rule, to pay liquidated damages in the amount of $10.
b. Timeframes Triggering Notification Requirement
    To minimize the impacts on petitioners, the final rule relaxes the 
notification requirement in response to commenters' concerns that the 
proposed timeframes were not workable within current business 
realities. The final rule allows an employer, in certain circumstances, 
to use a start date newly established by the employer as the 
notification trigger date. The final rule also clarifies that the H-2A 
worker must report to work within five ``workdays'' of the employment 
start date, rather than the proposed five days. If the H-2A worker does 
not timely report to the worksite, the H-2A employer must report this 
violation to DHS within two workdays, rather than the proposed 48 
hours. The final rule adopts the term ``workdays'' to ensure that H-2A 
employers are clear on the reporting deadlines. The final rule also 
requires DHS notification where the work is completed 30 days early 
rather than the proposed five days. The rule relieves the employer of 
its obligation to notify DHS when the worker's employment terminates 
upon completion of the work (unless the work is completed more than 30 
days early). The final rule also provides that, if the petitioner 
demonstrates in the notification itself that good cause exists for an 
untimely notification to DHS, then DHS, in its discretion, may waive 
the liquidated damages amount.
c. Remedy for Petitioners
    While the notification provision furthers DHS's enforcement goals 
of locating aliens who have not met the terms of their nonimmigrant 
status, DHS recognizes that the current regulations do not provide a 
sufficient remedy to petitioners that ``lose'' H-2A workers before the 
completion of work in the instances covered in the notification 
provision. Under the current regulations, petitioners may replace H-2A 
workers whose employment was terminated before the work has been 
completed. 8 CFR 214.2(h)(5)(ix). Such petitioners must file a new H-2A 
petition using a copy of the previously approved temporary labor 
certification to request replacement workers. However, the current 
regulations do not cover situations where H-2A workers fail to show up 
at the worksite or abscond.
    To minimize the adverse impact on petitioners who lose workers for 
these reasons, DHS has determined that petitioners should be permitted 
to seek substitute H-2A workers in these instances, as well, provided 
that petitioners comply with the notification requirements in 8 CFR 
214.2(h)(5)(vi). Thus, the final rule allows a petitioner to file an H-
2A petition using a copy of the previously-approved temporary labor 
certification to replace an H-2A worker where: (a) An H-2A worker's 
employment was terminated early (i.e., before the completion of work); 
(b) a prospective H-2A worker fails to report to work within five 
workdays of the employment start date on the previous H-2A petition or 
within five workdays of the date established by his or her employer, 
whichever is later; or (c) an H-2A worker absconds from the worksite. 
New 8 CFR 214.2(h)(5)(ix). These three instances parallel the instances 
that trigger the notification requirement in new 8 CFR 
214.2(h)(5)(vi)(B)(1) (except where the work for which the petitioner 
needed H-2A workers has been completed).
d. Retention of Evidence of a Change in Employment Start Date
    The final rule also adds to the provision requiring the petitioner 
to retain evidence of its notification to DHS a requirement that the 
petitioner also retain evidence of a different employment start date 
for one year if the start date has changed from that stated on the H-2A 
petition. New 8 CFR 214.2(h)(5)(vi)(B)(2). Since the notification 
provision allows for the petitioner to use a new start date that the 
petitioner has established rather than the start date stated in the H-
2A

[[Page 76894]]

petition, DHS believes that it must require the employer to retain 
evidence of the change in the start date to protect against 
misrepresentations by the petitioner regarding the employment start 
date.
e. Response Period Upon Receipt of a Notice of Noncompliance With the 
Notification Requirement
    The final rule extends from 10 days to 30 days the time period 
within which a petitioner must reply to a DHS notice of noncompliance 
with the notification requirement. New 8 CFR 214.2(h)(5)(vi)(C). Based 
upon comments received, DHS recognizes that small businesses may have 
difficulty in responding to a DHS notice within 10 days. Many do not 
have a human resources department to handle administrative tasks and 
may find it difficult to respond to a notice within 10 days, especially 
if the notice arrives during the petitioner's busiest season. DHS 
believes that a 30-day time period for responding to a notice is 
reasonable.
2. Payment of Fees by Aliens To Obtain H-2A Employment
    To address some commenters' concerns about the proposed provisions 
addressing job placement-related fees paid by beneficiaries to obtain 
H-2A employment, the final rule makes several clarifications and 
changes.
    First, the final rule specifies that the fees prohibited by the 
rule do not include the lower of the fair market value or the actual 
costs of transportation to the United States and any payment of 
government-specified fees required of persons seeking to travel to the 
United States (e.g., fees required by a foreign government for issuance 
of passports, fees imposed by the U.S. Department of State for issuance 
of visas, inspection fees), except where the passing of such costs to 
the worker is prohibited by statute or the Department of Labor's 
regulations. See 20 CFR 655.104(h). Prospective H-2A workers may be 
required to pay such costs, unless the prospective employer has agreed 
with the alien to pay such fees and/or transportation costs. New 8 CFR 
214.2(h)(5)(xi)(A). DHS determined that payment of these costs by the 
H-2A worker should not be prohibited since they are personal costs 
related to the alien's travel to the United States, rather than fees 
charged by a recruiter or employer for finding employment.
    Second, to clarify the standard for the petitioner's knowledge of 
fees being paid by the alien, the final rule modifies the standard to 
include both knowledge by the petitioner and circumstances in which the 
petitioner should reasonably know that that worker has paid or has 
entered an agreement to pay the prohibited fees.
    Third, the final rule offers petitioners a means by which to avoid 
denial or revocation (following notice to the petitioner) of the H-2A 
petition in cases where USCIS determines that the petitioner knows or 
reasonably should know that the worker has agreed to pay the prohibited 
fees as a condition of obtaining H-2A employment. In cases where 
prohibited fees were collected prior to petition filing, and in cases 
where prohibited fees were collected by the labor recruiter or agent 
after petition filing, USCIS will not deny or revoke the petition if 
the petitioner demonstrates that the beneficiary has been reimbursed in 
full for fees paid or, if the fees have not yet been paid, that the 
agreement to pay such fees has been terminated. Additionally, as an 
alternative to reimbursement in the case where the prohibition is 
violated by the recruiter or agent after the filing of the petition, 
the petitioner may avoid denial or revocation of the petition by 
notifying DHS of the improper payments, or agreement to make such 
payments, within two workdays of finding out about such payments or 
agreements. If the H-2A petition is denied or revoked on these grounds, 
then, as a condition of approval of future H-2A petitions filed within 
one year of the denial or revocation, the petitioner must demonstrate 
that the beneficiary has been reimbursed or that the beneficiary cannot 
be located despite the petitioner's reasonable efforts. New 8 CFR 
214.2(h)(5)(xi)(C).
    Fourth, the final rule does not include the requirement that the 
petitioner submit a separate document attesting to: The scope of the H-
2A employment and the use of recruiters to locate H-2A workers, and the 
absence of any payment of prohibited recruitment fees by the 
beneficiary. Although petitioners will be required to attest to these 
factors, DHS is instead amending the Form I-129 to include those 
attestation provisions rather than requiring petitioners to submit a 
separate attestation document. DHS has determined that a separate 
attestation would increase petitioners' administrative burdens as well 
as duplicate much of the same information that petitioner must provide 
on the H-2A petition to establish eligibility.
3. Revocation of Labor Certification
    The final rule addresses the effect of the revocation of temporary 
labor certifications by DOL on H-2A petitioners and their 
beneficiaries. This rule provides for the immediate and automatic 
revocation of the H-2A petition if the underlying temporary labor 
certification is revoked by DOL. New 8 CFR 214.2(h)(5)(xii). DHS 
believes that immediate and automatic revocation of the petition is a 
necessary consequence of a revocation of the temporary labor 
certification. The temporary labor certification is the basis for the 
petition, and DHS does not have the expertise to second-guess DOL's 
decision to revoke the temporary labor certification.
    Because the denial or revocation of a petition based on the 
revocation of temporary labor certification will have a direct effect 
on an H-2A worker's status, DHS will authorize the alien beneficiary's 
period of stay for an additional 30-day period for the purpose of 
departure or extension of stay based upon a new offer of employment. 
Id. During this 30-day period, such alien will not be deemed to be 
unlawfully present in the United States. Id.; see also INA section 
212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B) (description of unlawful 
presence). Although DHS also proposed to require a petitioner to pay 
for the alien's reasonable transportation costs of return to his or her 
last place of foreign residence abroad after DHS revokes a petition for 
improper payment of fees, DHS has removed that requirement from this 
final rule.
4. Violations of H-2A Status
    The final rule clarifies that DHS will deny H-2A nonimmigrant 
status based on a finding that the alien violated any condition of H-2A 
status within the past 5 years, unless the violation occurred through 
no fault of the alien. DHS has added this clarification to ensure that 
this provision will not adversely affect the aliens whose previous 
violations of status were caused by illegal or inappropriate conduct by 
their employers. New 8 CFR 214.2(h)(5)(viii)(A).
5. Permitting H-2A Petitions for Nationals of Participating Countries
    The final rule modifies the proposal that would have precluded DHS 
from approving an H-2A petition filed on behalf of aliens from 
countries that consistently deny or unreasonable delay the prompt 
return of their citizens, subjects, nationals or residents who are 
subject to a final order of removal from the United States. DHS will 
now publish in a notice in the Federal Register a list of countries 
that the Secretary of Homeland Security has designated, with the 
concurrence of the Secretary of State, as eligible for its nationals to 
participate in the H-2A program. In designating countries to

[[Page 76895]]

allow the participation of their nationals in the H-2A program, DHS, 
with the concurrence of the Department of State, will take into account 
factors including, but not limited to, the following: (1) The country's 
cooperation with respect to the issuance of travel documents for 
citizens, subjects, nationals and residents of that country who are 
subject to a final order of removal; (2) the number of final and 
unexecuted orders of removal against citizens, subjects, nationals, and 
residents of that country; (3) the number of orders of removal executed 
against citizens, subjects, nationals, and residents of that country; 
and (4) such other factors as may serve the U.S. interest. Initially, 
the list will be composed of countries that are important for the 
operation of the H-2A program and are cooperative in the repatriation 
of their nationals. The countries included on the list are the 
countries whose nationals contributed the vast majority of the total 
beneficiaries of the H-2A program during the last three fiscal years. 
Additional details on how this list will be administered are included 
in the discussion in response to comments received on this proposed 
provision below.
6. Conforming Amendments and Non-Substantive Changes
    The final rule makes conforming amendments to 8 CFR 214.2(h)(2)(B) 
and (C) by providing that the form instructions will contain 
information regarding appropriate filing locations for the H-1B, H-2A, 
H-2B, and H-3 classifications. The final rule also makes conforming 
amendments to 8 CFR 214.2(h)(5)(v)(B) and 8 CFR 214.2(h)(5)(v)(C) to 
clarify job qualification documentation requirements and the timing for 
such documents to be filed for named and unnamed beneficiaries. 
Finally, the final rule includes non-substantive structure or wording 
changes from the proposed rule for purposes of clarity and readability.

II. Public Comments on the Proposed Rule

A. Summary of Comments

    Out of the 163 comments USCIS received on the proposed rule, 
several comments supported the proposals in the rule as a whole and 
welcomed DHS's recognition of the need for H-2A workers and for 
modifications to the current H-2A regulations. Agricultural employers 
submitted 115 of the total comments received.
    Most commenters generally supported the streamlining measures in 
the proposed rule, such as: Removing the requirement to name the sole 
beneficiary and beneficiaries who are outside of the United States if 
the beneficiaries are named in the labor certification; permitting an 
employer to file only one petition for multiple beneficiaries from 
multiple countries; extending the admission period to 30 days after the 
conclusion of the H-2A employment; and reducing the required time 
abroad once an H-2A worker has reached the maximum period of stay 
before being able to seek H-2A nonimmigrant status again. However, many 
commenters were opposed to several changes that they believe will 
impose additional burdens and costs on farm businesses. They suggested 
that some of the proposed changes could lead to a decrease in usage of 
the H-2A program, such as the following proposals: Precluding the 
current practice of approving H-2A petitions that are filed with denied 
temporary labor certifications; authorizing USCIS to deny or revoke 
upon notice any H-2A petition if it determines that the beneficiary 
paid a fee in connection with or as a condition of obtaining the H-2A 
employment; modifying the current notification and liquidated damages 
requirements; providing for the immediate and automatic revocation of 
the petition upon the revocation of the labor certification; and 
imposing on sheepherders the same departure requirement applicable to 
all H-2A workers. Many commenters also were concerned about the 
proposals to authorize employment of H-2A workers while they are 
changing employers (if the new employer is a participant in good 
standing in E-Verify) and to institute a land-border exit system for 
certain H-2A workers on a pilot basis.
    The concerns of the commenters summarized above and additional, 
more specific comments are organized by subject area and addressed 
below.
B. General Comments
1. Comments From the Dairy Industry
    Comment: Several commenters expressed disappointment about what was 
described as the continued exclusion of the dairy industry from the H-
2A program.
    Response: DHS notes that most dairy farmer's needs are year-round 
and, therefore, may not be able to meet the requirements of the H-2A 
program. Dairy farmers that can demonstrate a temporary need for H-2A 
workers, however, are able to utilize the program. The applicable 
statute precludes DHS from extending the program to work that is 
considered permanent. See INA section 101(a)(15)(H)(ii)(a), 8 U.S.C. 
1101(a)(15)(H)(ii)(a).
2. U.S. and Foreign Worker Protections
    Comment: DHS received some comments that urged the withdrawal of 
the proposed rule entirely on the basis that the rule fails to reflect 
the critical balance between the nonimmigrant labor force and the U.S. 
workforce and undermines critical labor protections that serve as the 
foundation of the H-2A program. Some commenters also opined that the 
proposed rule would result in the exploitation of temporary foreign 
workers and the undermining of wages and working conditions of U.S. 
workers.
    Response: DHS is aware of its responsibility to help maintain the 
careful balance between preserving jobs for U.S. workers and 
administering nonimmigrant programs designed to invite foreign workers 
to the United States. The final rule contains two major revisions to 
the regulations designed to protect U.S. workers: (1) Removal of DHS's 
authority to approve H-2A petitions filed with temporary labor 
certifications that have been denied by DOL (revised 8 CFR 
214.2(h)(5)(i)(A)); and (2) the addition of a provision to provide for 
the immediate and automatic revocation of an H-2A petition upon the 
revocation of the temporary labor certification by DOL (new 8 CFR 
214.2(h)(5)(xii)). DHS believes that a temporary labor certification 
process is required to protect U.S. workers.
    In order to protect foreign workers from exploitation, the final 
rule requires petitioners to return any recruiter or finders' fees paid 
by alien beneficiaries as a condition of the H-2A employment if paid 
with the knowledge of the petitioner (or if the petitioner reasonably 
should have known about the payment). See new 8 CFR 214.2(h)(5)(xi)(A). 
Failure to return the prohibited fees to the beneficiaries will result 
in the denial or revocation of the H-2A petition.
3. Lack of Enforcement Against the Employment of Unauthorized Aliens
    Comment: A few commenters criticized the lack of a sound method for 
strong enforcement against employers that obtain and maintain a 
workforce of unauthorized aliens while the rule proposed to impose 
stiffer fines, revocations, and increase in costs to those employers 
who are trying to obtain and maintain a legal workforce through the H-
2A program.
    Response: U.S. Immigration and Customs Enforcement (ICE) is charged 
with enforcing the laws against the

[[Page 76896]]

employment of unauthorized aliens, including the applicable provisions 
at section 274A of the INA, 8 U.S.C. 1324a. Enforcement of these 
provisions is outside the scope of this rulemaking. The purpose of this 
rule is to strengthen the integrity of the H-2A program so that 
employers will be encouraged to obtain workers through the H-2A program 
rather than through unlawful means. The added authority to deny or 
revoke petitions, and any increase in costs to employers included in 
this rule reflect necessary anti-fraud and worker protection measures. 
Employers that follow the rules of the program will not be unreasonably 
affected by these measures.

C. Specific Comments

1. Consideration of Denied Temporary Agricultural Labor Certifications
    Comment: Seventeen out of 24 commenters who discussed this issue 
objected to the removal of regulatory language permitting, in limited 
circumstances, the approval of H-2A petitions filed with temporary 
labor certifications that have been denied by DOL.
    Response: After considering the commenters' objections, DHS 
nevertheless retains this proposal in this final rule as discussed in 
the comments and responses below. See new 8 CFR 214.2(h)(5)(i)(A).
    Comment: Some commenters among those who objected to this proposal 
suggested that the INA vests the authority for making decisions on the 
H-2A workers' admission solely with DHS, not DOL.
    Response: DHS's statutory authority is to determine whether or not 
to approve a petition for H-2A workers after consultation with DOL. INA 
section 214(c)(1), 8 U.S.C. 1184(c)(1). By no longer permitting the 
approval of H-2A petitions in instances where DOL has denied the 
temporary labor certification, DHS does not believe that it is 
abrogating its statutory responsibility in adjudicating H-2A petitions. 
Rather, DHS is recognizing that it does not have the expertise in 
evaluating the current U.S. labor market to make a determination 
independent from DOL's determination on the temporary labor 
certification. It is therefore in the best interests of U.S. workers 
and the public in general that DHS relinquish its ability to approve H-
2A petitions in the absence of the grant of such labor certification by 
DOL.
    Comment: A few commenters pointed out that the language of the INA 
requires an employer only to apply for, not obtain, a temporary labor 
certification from the Secretary of Labor. See INA section 218(a)(1), 8 
U.S.C. 1188(a)(1).
    Response: DHS disagrees with the commenters' interpretation of the 
statute. While the statutory language only refers to a petitioner's 
application for a temporary labor certification, DHS believes that its 
interpretation of this language requiring petitioners also to obtain a 
temporary labor certification as a condition of H-2A employment is 
reasonable. A temporary labor certification certifies that there are 
insufficient U.S. workers who are able, willing, and qualified, and who 
will be available at the time and place needed, to perform the labor or 
services involved in the petition, and that the employment of the alien 
in such labor or services will not adversely affect the wages and 
working conditions of U.S. workers who are similarly employed. INA 
section 218(a)(1), 8 U.S.C. 1188(a)(1). The statute includes the 
temporary labor certification requirement as a means to protect U.S. 
workers from losing jobs to foreign laborers. INA section 218(c)(3)(A), 
8 U.S.C. 1188(c)(3)(A). Without requiring that the temporary labor 
certification actually be obtained by the petitioner, the temporary 
labor certification requirement would fail to offer such protection. 
Moreover, it is clear that the determinations as to the availability of 
U.S. workers and the effect on their wages and working conditions are 
within the expertise of DOL, not DHS. Without certification by the 
Secretary of Labor, DHS would not be well equipped to make a 
determination on the petition for an employer to import foreign 
workers. Additionally, section 214(a)(1) of the INA grants the 
Secretary of Homeland Security authority to establish by regulation the 
conditions for nonimmigrant admissions. 8 U.S.C. 1184(a)(1). This rule 
is establishing a requirement that employers obtain a temporary labor 
certification as a condition for an alien to be admitted as an H-2A 
nonimmigrant.
    Comment: Many commenters who objected to this proposal suggested 
that this proposal and the lack of an expeditious process to make a new 
determination on the denied temporary labor certification will leave 
employers without recourse if U.S. workers do not report to work on the 
date of their need. They asserted that filing a petition without a 
temporary labor certification should be allowed in any circumstance 
where DOL denies certification or fails to act in a timely manner.
    Response: In its final H-2A rule, DOL establishes a process for an 
employer to request re-determination of need if U.S. workers fail to 
report on the date of need. DHS believes that this DOL provision 
addresses these commenters' concerns. Therefore, under this final rule, 
DHS abrogates the process for approving H-2A petitions, in limited 
circumstances, that are filed with denied temporary labor 
certifications.
2. Unnamed Beneficiaries in the Petition
    Comment: Ten commenters addressed and supported the proposal to 
allow H-2A petitions to include unnamed beneficiaries for those who are 
outside the United States regardless of the number of beneficiaries on 
the petition or whether the temporary labor certification named 
beneficiaries. They agreed that it would provide agricultural employers 
with more flexibility to recruit foreign workers months ahead of the 
actual date of stated need.
    Response: Based on the support from the commenters, the final rule 
adopts this proposal with minor changes. The changes discussed below 
concern beneficiaries from countries that have not been designated as 
participating countries under the H-2A program as well as minor, 
nonsubstantive changes to improve the clarity of the text. The final 
rule revises 8 CFR 214.2(h)(2)(iii) and removes 8 CFR 
214.2(h)(5)(i)(C). Also, as noted earlier, the final rule makes 
conforming amendments to 8 CFR 214.2(h)(5)(v)(B) and 8 CFR 
214.2(h)(5)(v)(C) to clarify job qualification documentation 
requirements and the timing for such documents for named and unnamed 
beneficiaries. The final rule also maintains the requirement that the 
petition include the names of those beneficiaries who are present in 
the United States. It should be noted that, in the case of an alien who 
is already in the United States, an H-2A petition encompasses both an 
employer's request to classify its worker as H-2A nonimmigrant and the 
alien worker's request to change from a different nonimmigrant status 
to H-2A or to extend his or her H-2A status. If eligible, the approval 
of the H-2A petition and the related request for extension of stay or 
change of status will serve either to confer a new immigration status 
or to extend the status of a particular alien immediately upon 
approval. Since such an approval, unlike a nonimmigrant admission from 
outside the country, does not afford the U.S. Government the 
opportunity to first inspect and/or interview the H-2A beneficiary at a 
consular office abroad or at a U.S. port of entry, it is essential that 
DHS have the names of beneficiaries in the country.

[[Page 76897]]

3. Multiple Beneficiaries
    Comment: Eleven out of 12 commenters supported the proposal to 
permit petitioners to file only one petition with DHS when petitioning 
for multiple H-2A beneficiaries from multiple countries. They stated 
that this change to the regulations would benefit the employer not only 
in terms of convenience but also financially.
    Response: Based on the positive responses from commenters, the 
final rule retains the proposal. New 8 CFR 214.2(h)(5)(i)(B).
    Comment: One commenter suggested that this change would 
unnecessarily complicate the visa issuance process.
    Response: DHS disagrees with this commenter's concern. DHS proposed 
the change as a result of the implementation of the Petition 
Information Management System (PIMS) by the Department of State in 
2007. PIMS effectively tracks 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. Therefore, 
DHS does not believe that this proposed change would complicate the 
visa issuance process. A consular officer would have full and timely 
access to information regarding the exact number of beneficiaries who 
have been issued visas based on the approved H-2A petition at the time 
an alien applies for his or her H-2A visa based on that petition. The 
Department of State website provides more information about PIMS at 
https://travel.state.gov/visa/laws/telegrams/telegrams_4201.html.
    Comment: The same commenter also stated that the proposal would 
result in an employer recruiting and hiring workers from different 
geographical regions of a country and/or from different nations. The 
commenter further suggested that such hiring process would increase the 
likelihood of problems for workers who feel isolated, decreasing the 
workers' ability to unite and communicate among themselves.
    Response: DHS does not intend to change employers' recruiting 
processes as a result of this proposal. Under the current regulations, 
an employer may bring in H-2A workers from many different countries 
rather than from a single country or from one region within a country. 
The change made by this final rule merely would permit petitioners to 
file only one petition with DHS when petitioning for multiple H-2A 
beneficiaries from multiple countries instead of requiring multiple 
petitions.
4. Payment of Fees by Beneficiaries To Obtain H-2A Employment
a. Grounds for Denial or Revocation on Notice.
    Comment: Eleven out of 83 commenters supported the proposal to 
authorize the denial or revocation of an H-2A petition if DHS 
determines 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 that the petitioner is aware or reasonably should be 
aware that such payment was made to the petitioner's agent, or to any 
facilitator, recruiter, or similar employment service, in connection 
with or as a condition of obtaining the H-2A employment. Seventy-one 
commenters responded negatively to this proposal and one comment was 
neutral.
    Response: After carefully considering the commenters' support and 
objections, for the reasons stated in the paragraphs below, the final 
rule provides DHS with the authority to deny or to revoke (following 
notice and an opportunity to respond) an H-2A petition if DHS 
determines that the petitioner has collected, or entered into an 
agreement to collect a fee or compensation as a condition of obtaining 
the H-2A employment, or that the petitioner knows or reasonably should 
know that the beneficiary has paid or agreed to pay any facilitator, 
recruiter, or similar employment service as a condition of H-2A 
employment. See new 8 CFR 214(h)(5)(xi)(A). DHS has determined that a 
prohibition on any payment made by a foreign worker in connection with 
the H-2A employment is more restrictive than necessary to address the 
problem of worker exploitation by unscrupulous employers, recruiters, 
or facilitators imposing costs on workers as a condition of selection 
for H-2A employment. Accordingly, DHS has not included in the final 
rule the prohibition on payments made in connection with the H-2A 
employment, but retains the prohibition on payments made to an 
employer, recruiter, facilitator, or other employment service by the 
foreign worker that are a condition of obtaining the H-2A employment.
    DHS will not deny or revoke the petition if the petitioner 
demonstrates that (1) prior to the filing of the petition, the alien 
beneficiary has been reimbursed for the prohibited fees paid; (2) where 
the prohibited fees have not yet been paid, that the agreement to pay 
has been terminated; or (3) where the prohibition on collecting or 
agreeing to collect a fee is violated by a recruiter or agent after the 
filing of the petition, the petitioner notifies DHS about the 
prohibited payments, or agreement to make such payments, within 2 
workdays of finding out about such payments or agreements.
    Comment: The commenters who supported this proposal welcomed this 
addition to the regulations as a positive change to recognize worker 
abuses, such as human trafficking and effective indenture. They 
suggested that DHS should take further measures to deter future 
violations by implementing procedures to debar a violator from the 
program.
    Response: DHS does not have the statutory authority to implement 
procedures to debar petitioners from the H-2A program. The statute 
provides DHS with the authority to deny petitions filed with respect to 
an offending employer under section 204 or 214(c)(1) of the INA (8 
U.S.C. 1154 or 1184(c)(1)) for 1 to 5 years if it finds a significant 
failure to meet any of the conditions of an H-2B petition or a willful 
misrepresentation of a material fact in an H-2B petition. INA section 
214(c)(14)(A)(ii), 8 U.S.C. 1184(c)(14)(A)(ii). However, there is no 
similar provision applicable to the H-2A nonimmigrant classification 
that provides such authority.
    Comment: Most of the commenters supporting worker protections also 
suggested that DHS should take further measures to provide appropriate 
remedies to help the foreign workers receive the funds to which they 
were entitled.
    Response: DHS agrees that the proposed rule, while offering some 
safeguards against the indenture of H-2A workers by providing a direct 
disincentive to employers and/or their recruiters to collect recruiting 
and similar fees from prospective and current H-2A workers, does not 
address fully the basic problem such workers face: They remain 
``indentured'' until such time as they are relieved of this debt 
burden. While the proposed rule addresses this concern by providing an 
alien worker who has incurred such debt in connection with obtaining H-
2A employment with the opportunity to change employers or return to his 
or her home country, it does not relieve the alien of his or her 
improperly imposed H-2A placement-related debt burden. DHS agrees with 
the commenters' concern in this regard and believes that it is in the 
interests of both the alien and legitimate H-2A employers to ensure the 
fair and even-handed administration of the H-2A program by providing a 
means to make such alien workers whole. Consistent with the expressed 
intent of the proposed rule to afford

[[Page 76898]]

adequate protections for alien agricultural workers seeking H-2A 
nonimmigrant classification and to remove unnecessary administrative 
burdens on legitimate employers seeking to hire such workers, the final 
rule, therefore, provides that an H-2A petitioner can avoid denial or 
revocation of the H-2A petition if the petitioner demonstrates that the 
petitioner or the employment service reimbursed the alien worker in 
full for the prohibited fees paid or that any agreement for future 
payment is terminated. New 8 CFR 214.2(h)(5)(xi)(A)(1), (2), and (4). 
However, the remedy of reimbursement would not apply if the petitioner 
collected the fees after the filing of the petition. New 8 CFR 
214.2(h)(5)(xi)(A)(3). For a petitioner who discovers after the filing 
of the petition that the alien worker paid or agreed to pay an 
employment service the prohibited fees, the petitioner can avoid denial 
or revocation by notifying DHS within 2 workdays of obtaining this 
knowledge instead of reimbursing the worker or effecting termination of 
the agreement. New 8 CFR 214.2(h)(5)(xi)(A)(4). DHS will publish a 
notice in the Federal Register to describe the manner in which the 
notification must be provided.
    DHS does not believe it appropriate to impose on petitioners who 
discover a post-filing violation by a labor recruiter the same adverse 
consequence--denial or revocation of the petition--that is imposed on 
more culpable petitioners who themselves violate the prohibition on 
collection of fees from H-2A workers after petition filing, nor should 
petitioners discovering such post-filing violations by a labor 
recruiter be put in a situation where the only way to avert denial or 
revocation of the petition might be for the petitioner to pay for the 
recruiter's violation by reimbursing the alien itself. Petitioners 
should be encouraged to come forward with information about post-filing 
wrongdoing by labor recruiters, even if reimbursement is not possible. 
In this way, DHS can help provide further protections to H-2A workers 
against unscrupulous recruiter practices.
    Further, where the petitioner does not reimburse the beneficiary 
and USCIS denies or revokes the H-2A petition, the final rule provides 
that a condition of approval of subsequent H-2A petitions filed within 
one year of the denial or revocation is reimbursement of the 
beneficiary of the denied or revoked petition or a demonstration that 
the petitioner could not locate the beneficiary. New 8 CFR 
214.2(h)(5)(xi)(C)(1). This requirement is intended to balance the 
commenters' concerns that an H-2A alien worker not be required to pay 
fees as a condition of obtaining his or her H-2A employment with the 
legitimate concern that petitioners who run afoul of 8 CFR 
214.2(h)(5)(xi)(A) but who have reimbursed the alien worker in full or 
who, despite their reasonable efforts, are unable to locate such 
workers, continue to have access to participation in the H-2A program. 
Whether the petitioner will be able to demonstrate to the satisfaction 
of DHS that it has exercised reasonable efforts to locate the alien 
worker will depend on the specific facts and circumstances presented. 
In this regard, DHS would take into consideration the amount of time 
and effort the petitioner expended in attempting to locate the 
beneficiary, and would require, at a minimum, that the petitioner has 
attempted to locate the worker at every known address(es). The final 
rule also clarifies that the 1-year condition on petition approval will 
apply anew each time an H-2A petition is denied or revoked on the basis 
of new 8 CFR 214.2(h)(5)(xi)(A)(1)-(4). New 8 CFR 
214.2(h)(5)(xi)(C)(2).
    Comment: Many commenters further suggested that employers should be 
obligated to pay for aliens' subsistence costs while the workers are 
not permitted to work.
    Response: DHS agrees that the revocation of a petition based on the 
payment of prohibited fees should not penalize H-2A workers. 
Accordingly, to minimize the adverse impact on workers, DHS will 
authorize the alien beneficiary's period of stay for an additional 30-
day period for the purpose of departure or extension of stay based upon 
a new offer of employment. Id. During this 30-day period, such alien 
will not be deemed to be unlawfully present in the United States. Id.; 
see also INA section 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B) (description 
of unlawful presence).
    DHS, however, will not be requiring employers to provide financial 
assistance to aliens adversely affected by the revocation of a 
petition. While we understand that certain H-2A workers will be 
adversely affected when DHS revoked H-2A petitions due to actions by 
the employer, we do not believe that DHS can require employers to cover 
expenses for workers without further notice and comment. This 
determination, however, does not impact any other legal remedy or claim 
that an affected worker may have against his or her employer.
    Further, although DHS proposed to also require a petitioner to pay 
for the alien's reasonable transportation costs of return to his or her 
last place of foreign residence abroad after DHS revokes a petition for 
improper payment of fees, DHS has removed that requirement from this 
final rule. While section 214(c)(5)(A) of the INA (8 U.S.C. 
1184(c)(5)(A)), requires petitioners to pay the workers' reasonable 
transportation expenses to return to their last place of foreign 
residence following revocation of a petition, that provision pertains 
solely to H-1B and H-2B nonimmigrant workers. 8 U.S.C. 1184(c)(5)(A). 
As there is no similar statutory requirement for employers of H-2A 
temporary workers to cover expenses for beneficiaries even when the 
petitioner's actions result in the revocation of the petition and thus 
require the alien to leave the United States, DHS does not believe that 
it may impose such costs onto the H-2A employer.
    Comment: Several commenters suggested that employers should be 
required to ensure that workers' passports are not confiscated.
    Response: Existing laws satisfactorily meet these commenters' 
concerns and they are not addressed by this final rule. For example, it 
is unlawful to conceal, remove or confiscate an immigration document in 
furtherance of peonage or involuntary servitude. See 18 U.S.C. 1592.
    Comment: Some commenters suggested that the U.S. government should 
require H-2A employers to comply with Article 28 of Mexico's Federal 
Labor Law, which requires that employers recruiting Mexican citizens in 
Mexico for employment abroad comply with such requirements as 
registering with the applicable Board of Conciliation and Arbitration, 
submitting the employment contract to the Board, and posting a bond to 
ensure a fund to compensate workers for illegal employment practices. 
They further stated that the North American Agreement on Labor 
Cooperation (NAALC), which requires each signatory nation to cooperate 
to ensure compliance with all labor laws and improve conditions for 
workers, is a treaty that binds the United States.
    Response: DHS does not enforce the labor law of a foreign country. 
As it is DOL's function to administer the U.S. government's 
responsibilities under the NAALC and to enforce federal labor laws, DHS 
is not in a position to reply to these comments and no changes were 
made to the final rule to respond to them.
    Comment: One commenter suggested that the proposed rule contains no 
plan for dealing with unscrupulous, fraudulent recruiters in foreign

[[Page 76899]]

countries and that this change may result in DHS penalizing the victims 
rather than the perpetrators as workers lose jobs and employers lose 
workers. Some commenters made a variety of recommendations to enforce 
the methods to protect H-2A workers from abuses, such as requiring an 
H-2A employer to reach written agreements with labor contractors, 
recruiters, or facilitators to prohibit the imposition of job 
placement-related fees on prospective workers or limiting the use of 
recruiters and facilitators for H-2A purposes to those that maintain an 
office in the United States and are duly licensed to do business in the 
United States according to Federal and State laws.
    Response: While DHS agrees that these precautions would further 
protect H-2A workers from abuses, including such precautions in this 
final rule would be outside DHS' authority. DHS cannot specifically 
regulate the business practices of recruiters in foreign countries or 
the agreements between private entities under existing authorities.
    Comment: Some commenters who objected to this proposal suggested 
that this proposal would lead to a decrease in the usage of the H-2A 
program as it will make the program more costly.
    Response: While DHS understands that this rule has the effect of 
requiring employers rather than H-2A workers to bear these costs, the 
H-2A program was never intended to encourage the importation of 
indebted workers. The intention of the final rule is to ensure that the 
actual wages paid to H-2A workers reflect those set forth in the labor 
certification; passing recruitment-related costs on to the alien worker 
would have the effect of reducing the alien worker's actual wages. 
Further, DHS does not believe that this rule would have a chilling 
effect on the recruitment of H-2A workers; demand for such workers is 
based on a prospective employer's need for workers. So too, the choice 
whether to use recruiters and/or facilitators is that of the employer 
and is presumably based on a determination that it makes economic sense 
to use such persons to assist in finding alien workers. Assuming that 
making the employer bear such recruitment costs would make the program 
more cost prohibitive, the solution is not to pass those costs on to 
economically disadvantaged alien workers but to leave to the free 
market the amount an employer is willing to agree to pay the recruiter, 
facilitator, or employment service.
    Comment: A number of commenters who objected to this proposal 
asserted that there is no statutory authority in the INA for DHS to 
prohibit prospective workers from paying a recruiter or a facilitator 
for the services they receive in order to secure employment in the 
United States. They stated that it is a longstanding practice that 
foreign agents collect fees from those who wish to find work in the 
United States and need assistance with their visa applications and/or 
the admission process and, in fact, such services have become essential 
with constant changes in the visa application procedure at U.S. 
consulates abroad.
    Response: DHS believes that these comments misinterpret the 
proposed change. The proposal would neither prohibit the use of such 
recruiters or facilitators during the recruitment or visa application 
process nor the collection of fees itself. Instead, the proposal would 
prohibit imposition of fees on prospective workers as a condition of 
selection for such employment. It 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. Under section 214(a) of the INA, 8 
U.S.C. 1184(a), DHS has plenary authority to determine the conditions 
of admission of all nonimmigrants to the United States, including H-2A 
workers. It is within the authority of DHS to bar the payment by 
prospective workers of recruitment-related fees as a condition of an 
alien worker's admission to this country in H-2A classification.
    DHS notes that this final rule is consistent with the Department of 
Labor's bar on the employer passing to prospective alien agricultural 
workers fees the employer incurs in recruiting U.S. workers in 
conjunction with obtaining a temporary agricultural worker labor 
certification. See new 20 CFR 655.105(o).
    Comment: Many commenters asked DHS to specify what types of fees 
are prohibited by the rule. Several commenters argued that obtaining a 
passport and a visa for arriving H-2A workers should not be the 
employer's responsibility.
    Response: DHS agrees that passport and visa fees should not be 
included in the types of fees prohibited by the rule, except where the 
passing of such costs to the worker is prohibited by statute or the 
Department of Labor's regulations. Generally, the types of fees that 
would be prohibited include recruitment fees, attorneys' fees, and fees 
for preparation of visa applications. So that the prohibition against 
impermissible fees remains general, covering any money paid by the 
beneficiary to a third party as a condition of the H-2A employment, the 
final rule does not provide a list of prohibited fees. However, as 
discussed earlier, the final rule provides that prohibited fees do not 
include the lesser of the fair market value or actual costs of 
transportation to the United States, or payment of any government-
specified fees required of persons seeking to travel to the United 
States, such as, fees required by a foreign government for issuance of 
passports and by the U.S. Department of State for issuance of visas. As 
these costs would have to be assumed by any alien intending to travel 
to the United States, DHS believes that each alien should be 
responsible for them. New 8 CFR 214.2(h)(5)(i)(C)(5) and (h)(5)(xi)(A) 
and (C).
    Comment: Many commenters expressed concerns about petition 
revocation based on an employer's knowledge of the payment of job 
placement-related fees by prospective workers. Many commenters 
requested that DHS clarify the standard by which an employer will be 
deemed to lack knowledge of the prohibited payment by the prospective 
worker.
    Response: The final rule clarifies that an H-2A petition will be 
subject to denial or revocation only if DHS determines that the H-2A 
petitioner knew, or reasonably should have known, that the H-2A worker 
paid or agreed to pay a prohibited fee. New 8 CFR 214.2(h)(5)(xi)(A). 
For example, if a recruiter advertises to prospective H-2A petitioners 
that it can place temporary alien workers with such employers at no or 
minimal cost to the employers, it is reasonable for prospective 
petitioners to view these claims as suspect and question whether the 
recruiter has passed its recruitment costs to the prospective H-2A 
workers. A determination by DHS that the petitioner failed to make 
reasonable inquiries to ensure that prospective H-2A workers did not 
pay the recruiter any fees will subject the petition to denial or 
revocation. Similarly, if an H-2A petitioner learns, directly or 
indirectly, that a prospective H-2A worker has been asked to pay a fee 
or other thing of value as a condition of his or her employment with 
the U.S. employer, the H-2A petitioner will be deemed to be on notice 
that the prospective worker has paid a prohibited fee and reasonably 
can be expected to ascertain whether this is in fact true before 
petitioning for the worker.
    Comment: Another comment stated that this proposal would make 
petitioners subject to liability by opening additional avenues for 
lawsuits

[[Page 76900]]

against the petitioners who may be held responsible for a third party's 
action.
    Response: This provision is not intended to provide any party with 
the authority to engage in legal proceedings based on this decision by 
DHS.
    Comment: Some commenters suggested that DHS should recognize that 
some assistance in recruiting and/or in the visa application and 
admission process could be conducted informally by friends or family 
members, not as a for-profit activity, and requested DHS to specify 
facilitators and recruiters that fall under these provisions.
    Response: Since assistance in recruiting and in the visa 
application or admission process that is provided without charge is not 
precluded by this rule, DHS determined that it is not necessary for the 
final rule to reference such assistance.
    Comment: There were additional suggestions to prevent fraud and to 
protect laborers' rights, as well as administrative recommendations.
    Response: Because these comments exceeded the scope of the proposed 
rule, they are not addressed in this final rule.
b. Employer Attestation
    Comment: One out of 8 commenters supported the proposed addition to 
require H-2A petitioners to attest that they will not materially change 
the information provided on the Form I-129 and the temporary labor 
certification; that they have not received, nor intend to receive, any 
fee, compensation, or other form of remuneration from prospective H-2A 
workers; and whether they used a facilitator, recruiter, or any other 
similar employment service, to locate foreign workers, and if so, to 
name such facilitators, recruiters, or placement services. Seven 
commenters wrote that the employer attestation would not reduce the 
amount of paperwork required by an employer nor streamline the process.
    Response: DHS has carefully considered the attestation requirement, 
and has determined that a separate attestation requirement would be a 
duplicative addition to the regulations. However, an attestation 
relates to eligibility requirements that the petitioner must 
demonstrate on the H-2A petition which the petitioner must sign as 
being true and correct. DHS is instead amending the Form I-129 to 
include the attestation requirements.
    Comment: Many commenters pointed out that there are some minor 
activities in the overall scope of work on an agricultural operation 
and the workers' secondary duties change from season to season. They 
suggested that the narrow and restrictive view of unchanging duties in 
the proposed rule could result in good-faith employers violating this 
portion of the rule.
    Response: While the final rule does not contain a separate 
attestation requirement, these comments relate to the requirement that 
the petitioner notify DHS of any changes in the terms and conditions of 
employment of a beneficiary which may affect eligibility. 8 CFR 
214.2(h)(11)(i)(A). DHS does not agree with these commenters' 
interpretations and understands that farm laborers generally perform 
several duties and their secondary duties may vary from season to 
season. For example, while a worker's main duty may be to harvest the 
crop, there may be a time when he or she is required to drive a 
tractor, to transport the crop to a processor, or to repair farm 
equipment. Incidental duties that are associated with the worker's main 
duty and are part of routine farm maintenance are not considered 
material changes and do