Proposed Rule: Changes To Requirements Affecting H-2A Nonimmigrants

8230
Proposed Rules Federal Register

Vol. 73, No. 30
Wednesday, February 13, 2008
This section of the FEDERAL REGISTER absconds from the worksite. To better and Immigration Services, Department
contains notices to the public of the proposed ensure the integrity of the H–2A of Homeland Security, 111
issuance of rules and regulations. The program, this rule also proposes to Massachusetts Avenue, NW., Suite
purpose of these notices is to give interested require certain employer attestations, 3008, Washington, DC 20529. Contact
persons an opportunity to participate in the preclude the imposition of fees by Telephone Number (202) 272–8377.
rule making prior to the adoption of the final
rules.
employers or recruiters on prospective FOR FURTHER INFORMATION CONTACT:
beneficiaries, preclude reconsideration Hiroko Witherow, Service Center
of certain temporary labor certification Operations, U.S. Citizenship and
DEPARTMENT OF HOMELAND denials, and bar H–2A status for Immigration Services, Department of
SECURITY nationals of countries consistently Homeland Security, 111 Massachusetts
refusing or unreasonably denying Avenue, NW., Suite 3000, Washington,
8 CFR Parts 214, 215 and 274a repatriation of its nationals. These DC 20529, telephone (202) 272–8410.
changes are necessary to encourage and SUPPLEMENTARY INFORMATION:
[CIS No. 2428–07; Docket No. USCIS–2007–
0055] facilitate the lawful employment of
foreign temporary and seasonal I. Public Participation
RIN 1615–AB65 agricultural workers. Interested persons are invited to
Finally, this rule proposes to establish participate in this rulemaking by
Changes to Requirements Affecting H– a pilot program under which aliens
2A Nonimmigrants submitting written data, views, or
admitted on certain temporary worker arguments on all aspects of this
AGENCY: U.S. Citizenship and visas at a port of entry participating in proposed rule. Comments that will
Immigration Services, U.S. Customs and the program must also depart through a provide the most assistance to the
Border Protection, DHS. port of entry participating in the Department of Homeland Security
ACTION: Notice of proposed rulemaking.
program and present designated (DHS), U.S. Citizenship and
biographical information, possibly Immigration Services (USCIS), and U.S.
SUMMARY: The Department of Homeland including biometric identifiers, upon Customs and Border Protection (CBP) in
Security is proposing amendments to its departure. U.S. Customs and Border developing these procedures will
regulations affecting temporary and Protection will publish a Notice in the reference a specific portion of the
seasonal agricultural workers within the Federal Register designating which proposed rule, explain the reason for
H–2A nonimmigrant classification and temporary workers must participate in any recommended change, and include
their U.S. employers. This rule proposes the program, which ports of entry are data, information, or authority that
to relax the current limitations on the participating in the program, which support such recommended change.
ability of U.S. employers to petition biographical and/or biometric Instructions: All submissions received
unnamed agricultural workers to come information would be required, and the must include the agency name and DHS
to the United States and include format for submission. Docket No. USCIS–2007–0055 for this
multiple beneficiaries who are outside DATES: Written comments on this rule rulemaking. All comments received will
the United States on one petition. The must be submitted on or before March be posted without change to http://
rule proposes to revise the current 31, 2008 in order to be assured of www.regulations.gov, including any
limitations on agricultural workers’ consideration. personal information provided.
length of stay including: lengthening the Written comments on the Paperwork Docket: For access to the docket to
amount of time an agricultural worker Reduction Act section of this rule must read background documents or
may remain in the United States after be submitted on or before April 14, comments received, go to http://
his or her employment has ended and 2008. www.regulations.gov. Submitted
shortening the time period that an ADDRESSES: You may submit comments, comments may also be inspected at the
agricultural worker whose H–2A identified by DHS Docket No. USCIS– Regulatory Management Division, U.S.
nonimmigrant status has expired must 2007–0055, by any of the following Citizenship and Immigration Services,
wait before he or she is eligible to obtain methods: Department of Homeland Security, 111
H–2A nonimmigrant status again. This • Federal eRulemaking Portal: http:// Massachusetts Avenue, NW., Suite
rule also proposes to provide for www.regulations.gov. Follow the 3008, Washington, DC 20529.
temporary employment authorization to instructions for submitting comments.
II. Background
agricultural workers seeking an • Mail: Chief, Regulatory
extension of their H–2A nonimmigrant Management Division, U.S. Citizenship Over the years, U.S. employers have
status through a different U.S. employer, and Immigration Services, Department faced a shortage of U.S. workers who are
provided that the employer is a of Homeland Security, 111 able, willing, and qualified to fill
registered user of the E–Verify Massachusetts Avenue, NW., Suite agricultural jobs, and who would be
employment eligibility verification 3008, Washington, DC 20529. To ensure available at the time and place needed
program. In addition, the rule proposes proper handling, please reference DHS to perform the work. To meet this need,
pwalker on PROD1PC71 with PROPOSALS
to modify the current notification and Docket No. USCIS–2007–0055 on your U.S. employers have considered hiring
payment requirements for employers correspondence. This mailing address foreign workers. However, before U.S.
when an alien fails to show up at the may also be used for paper, disk, or CD– employers may hire such workers,
start of the employment period, an H– ROM submissions. immigration law requires that they first
2A employee’s employment is • Hand Delivery/Courier: Regulatory sponsor the workers by filing a petition
terminated, or an H–2A employee Management Division, U.S. Citizenship based on their qualification within the
VerDate Aug<31>2005 16:59 Feb 12, 2008 Jkt 214001 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 E:\FR\FM\13FEP1.SGM 13FEP1
Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Proposed Rules 8231
H–2A nonimmigrant classification. required, apply for admission at the Once an H–2A worker’s petition has
Immigration and Nationality Act (Act or same port of entry). 8 CFR expired, the H–2A worker is allowed an
INA) sec. 101(a)(15)(H)(ii)(a), 8 U.S.C. 214.2(h)(5)(i)(B). Where the employer additional ten-day period before he or
1101(a)(15)(H)(ii)(a). seeks to employ only one H–2A worker, she is required to depart the United
the Form I–129 submitted by the States. 8 CFR 214.2(h)(5)(viii)(B).
A. Description of the Current H–2A
employer must name that worker. 8 CFR However, an H–2A worker whose three-
Nonimmigrant Program
214.2(h)(5)(i)(C). If the employer year limit has not been reached may
The H–2A nonimmigrant includes multiple beneficiaries in the seek to extend his or her stay with the
classification applies to aliens seeking petition, the workers must be named same employer or a new employer. He
to perform agricultural labor or services unless they are unnamed in the DOL or she is employment authorized for not
of a temporary or seasonal nature in the certification and are outside the United more than 240 days past the authorized
United States on a temporary basis. INA States. Id. The petition also must period of stay if the same employer
sec. 101(a)(15)(H)(ii)(a), 8 U.S.C. establish the temporary or seasonal petitions for an extension of stay before
1101(a)(15)(H)(ii)(a); see 8 CFR nature of the employment and that the expiration of the authorized period of
214.1(a)(2) (designation for H–2A beneficiary meets the requirements in stay. 8 CFR 274a.12(b)(20). If a new
classification). Under current the temporary labor certification, employer files a request to extend the
regulations, employment of a seasonal including job and training requirements alien’s stay in H–2A status, the alien is
nature is employment that is tied to a and any necessary post-secondary not employment authorized past the
certain time of year by an event or education or other formal training. 8 authorized period of stay and is not able
pattern and requires labor levels far CFR 214.2(h)(5)(v). to begin employment with the new
above those necessary for ongoing The petitioner must make several employer until the petition is approved.
operations. 8 CFR 214.2(h)(5)(iv). petition agreements. The petitioner 8 CFR 214.2(h)(2)(i)(D).
Employment is considered to be of a must: consent to allow access to the
temporary nature where the employer’s worksite where the labor will be USCIS will not grant H–2A
need to fill the position will last no performed; notify USCIS within twenty- nonimmigrant status to an alien who
longer than one year, absent four hours if an H–2A worker absconds violated the conditions of H–2A status
extraordinary circumstances. Id. or if the authorized employment ends within the previous five years by
Aliens seeking H–2A nonimmigrant more than five days before the remaining beyond the authorized period
status must be petitioned for by a U.S. temporary labor certification document of stay or engaging in unauthorized
employer. However, prior to filing the expires, and pay $10 in liquidated employment. 8 CFR 214.2(h)(5)(viii)(A).
petition, the U.S. employer must damages for each instance where the
complete the temporary agricultural B. Limited Use of H–2A Nonimmigrant
employer cannot demonstrate Classification
labor certification process with the compliance with the notification
Department of Labor (DOL) for the job requirement; and pay $200 in liquidated Despite the availability of the H–2A
opening the employer seeks to fill with damages for each instance where the nonimmigrant classification, a high
an H–2A worker. This process employer cannot demonstrate that its percentage of the agricultural workforce
determines: whether the proposed H–2A worker either departed the United is comprised of aliens who have no
employment is for agricultural labor or States or obtained authorized status immigration status and are
services; whether it is open to U.S. based on another petition during the unauthorized to work. The
workers; if qualified U.S. workers are period of admission, or within five days Congressional Research Service Report
available; the adverse impact, if any, on of early termination (whichever comes to Congress, ‘‘Farm Labor Shortages and
similarly employed U.S. workers of first). 8 CFR 214.2(h)(5)(vi)(A). Immigration Policy’’ (Sept. 5, 2007),
employment of a qualified alien; and An H–2A worker’s stay is limited by states that persons in the country
whether employment conditions, the term of the approved H–2A petition. illegally accounted for an estimated
including housing, meet applicable 8 CFR 214.2(h)(5)(viii)(C). He or she 37% of the domestic crop workforce in
requirements. 8 CFR 214.2(h)(5)(ii). may remain longer to engage in other fiscal year (FY) 1994 to FY 1995. In FY
After receiving a temporary labor qualifying temporary agricultural 1997/FY 1998, this percentage increased
certification, the U.S. employer files employment by obtaining an extension to 52% out of the estimated 1.8 million
Form I–129, ‘‘Petition for Nonimmigrant of stay. 8 CFR 214.2(h)(15)(ii)(C). workers employed on crop farms. By FY
Worker,’’ with the appropriate USCIS However, his or her total period of stay 1999/FY 2000, their proportion had
office. See 8 CFR 214.2(h)(5)(i)(A). In in H–2A nonimmigrant status may not increased to 55% before retreating to
rare instances, when domestic labor exceed three years. Id. An H–2A worker 53% in FY 2001/FY 2002.1
fails to appear at the worksite and DOL who has reached the three-year
has denied the employer’s temporary maximum period of stay may seek H–2A Members of the public have cited
labor certification and appeal of the nonimmigrant status again, but only what they consider to be unnecessarily
denial, USCIS may consider the written after remaining outside the United burdensome regulatory restrictions
denial of appeal as a certification if it is States for a six-month period. 8 CFR placed on the H–2A nonimmigrant
filed with evidence that domestic labor 214.2(h)(5)(viii)(C). classification as one of the principal
is unavailable. Id. Significant absences can interrupt the reasons why U.S. agricultural employers
In order to meet its employment accrual towards the three-year cap of facing a shortage of qualified U.S.
needs, an employer may petition for one time spent as an H–2A worker. The H– workers do not fully use the H–2A
or more H–2A workers. However, in the 2A worker can interrupt an accumulated nonimmigrant classification to petition
case of multiple beneficiaries, the total stay of eighteen months or less by an for temporary or seasonal agricultural
number of beneficiaries in the petition absence from the United States of at

cannot exceed the number of positions least three months. Id. He or she can 1 See also Research Report No. 8, U.S. Department
indicated on the temporary labor interrupt an accumulated stay of more of Labor Office of the Assistant Secretary for Policy
Office of Program Economics (March 2000) (finding
certification, and all the beneficiaries on than eighteen months by an absence that in 1997–98, 52 percent of hired farm workers
one petition must obtain a visa at the from the United States of at least one- lacked work authorization, 22 percent were citizens
same consulate (or, if no visa is sixth of the accumulated stay. Id. and 24 percent were lawful permanent residents).
8232 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Proposed Rules
workers from abroad.2 Upon an (8 U.S.C.A. 1324a note). Fourth, this unavailable by removing most of the
examination of the regulatory provisions rule proposes to prohibit the approval of constraints on an employer’s ability to
governing the H–2A nonimmigrant an H–2A petition for a national of a petition for unnamed beneficiaries and
classification, USCIS has identified country that consistently refuses or maintaining only the requirement that
several requirements regarding the unreasonably delays repatriation of its the petition include the names of those
duration of the H–2A workers’ nationals who have been ordered beneficiaries who are already in the
authorized period of stay that add removed from the United States. United States.
unnecessary burdens for both the Finally, this rule proposes a program to By removing from the current
petitioning employers and H–2A strengthen the reporting system for regulations the requirement to name
workers. The regulations include temporary workers departing the United beneficiaries outside of the United
limitations on the use of unnamed and States at the conclusion of their States on the petition, USCIS believes
multiple beneficiaries in the petition, authorized period of stay. that agricultural employers would have
and employment authorization more flexibility to recruit foreign
III. Proposed Changes workers that are actually interested in
following a change in employers. The
regulations also require certain A. Consideration of Denied Temporary the position on the date of stated need.
employer agreements and include Agricultural Labor Certifications Since employers often start the
financial consequences for failure to temporary labor certification and
While current regulations allow
comply. This proposed rule modifies petitioning processes several months
USCIS, in limited circumstances, to
these regulatory limitations and ahead of the actual date of stated need,
approve H–2A petitions that are filed
requirements. In so doing, USCIS naming beneficiaries that far in advance
with denied temporary agricultural
anticipates that these changes will increases the likelihood that those
labor certifications, USCIS believes that
improve the utility of the H–2A beneficiaries are unavailable to fill the
this authority is of limited use and is
nonimmigrant classification, so that this positions. Conversely, if a beneficiary is
proposing to remove it from the
classification will be a more effective already in the United States, USCIS
regulations. Current regulations permit believes that naming such beneficiaries
means for supplying a legal workforce to USCIS to accept a written denial of an
agricultural employers. is necessary because the granting of the
appeal of a denied temporary labor petition will either confer a new
To better ensure that the requirements certification as a labor certification if the
proposed in this rule do not adversely immigration status or extend the status
appeal denial is accompanied by of a particular alien immediately upon
affect H–2A workers, compromise evidence establishing that qualified
national security, or undermine the approval, whereas prospective
domestic labor is unavailable to do the beneficiaries abroad still must undergo
integrity of the H–2A program, the rule work. See 8 CFR 214.2(h)(5)(i)(A); 3 see
also proposes a limited number of new both a visa interview at a U.S. consulate
also 8 CFR 214.2(h)(5)(ii) (last sentence). and an inspection by a U.S. Customs
terms and conditions on employers’ USCIS believes that determinations as to
participation in the program. First, the and Border Protection officer upon
the availability of U.S. workers are not arrival at a port of entry to the United
rule proposes to require an employer within the expertise of USCIS, but
attestation regarding the scope of the H– States. Based on the proposed changes,
instead are more appropriately made by if an employer wishes to petition for
2A employment and the use of DOL. Therefore, USCIS will remove this
recruiters to locate beneficiaries. multiple beneficiaries, some of whom
process from 8 CFR 214.2(h)(5)(i)(A) and are in the United States and some of
Second, the rule proposes to provide for (ii). The employer, however, is not left whom are outside the United States, the
denial or revocation of the H–2A without recourse. If the employer can employer must name the beneficiaries
petition if an H–2A worker was charged establish that domestic labor is who are in the United States, and only
a fee by the petitioner in connection unavailable, it may seek a new provide the number of beneficiaries who
with the employment. Third, the rule temporary labor certification from DOL. are outside the United States. This
proposes to allow H–2A workers who
B. Unnamed Beneficiaries in the naming requirement would apply
are changing employers to begin work
Petition regardless of the number of beneficiaries
with the new petitioning employer
on the petition or whether the
before the change is approved by USCIS, Currently, H–2A employers must temporary labor certification named
but only if the new employer name in the petition all the workers beneficiaries.
participates in USCIS’ E–Verify being sought (i.e., beneficiaries) unless Rather than amend the applicable H–
program. The E–Verify program unnamed in the temporary labor 2A provision at 8 CFR 214.2(h)(5)(i)(C),
(successor to the Basic Pilot Program) certification involving multiple this rule proposes to incorporate these
provides employers with a free and beneficiaries. This requirement places changes into the general provision at 8
electronic method for confirming the an undue burden on employers. See 8 CFR 214.2(h)(2)(iii), governing the
employment eligibility of their newly- CFR 214.2(h)(5)(i)(C) (naming naming of beneficiaries in H categories.
hired employees. See Illegal requirement). It also fails to USCIS believes that maintaining two
Immigration Reform and Immigrant accommodate the hiring practices of separate provisions on the naming of
Responsibility Act of 1996 (IIRIRA) sec. agricultural employers. An intervening beneficiaries unnecessarily complicates
401–05, Pub. L. No. 104–208, 110 Stat. event may preclude an employer from the regulations and results in confusion.
3546 (September 30, 1996), as amended being able to continue to petition for the Therefore, this rule proposes to remove
beneficiaries named in the temporary the unnamed beneficiary requirements
2 See Mexico-Migration: A Shared Responsibility.
labor certification. This rule proposes to from 8 CFR 214.2(h)(5)(i)(C) and revise
The U.S.-Mexico Migration Panel Carnegie alleviate the problems encountered by the requirements in the general
Endowment for International Peace and Instituto

Tecnológico Autónomo de México (2001); see also employers when workers become provision at 8 CFR 214.2(h)(2)(iii). This
Washington, April M., ‘‘Canada offers migrant tips; provision, as revised, would specify
Colorado looks north of the border for ways to draw 3 Note that 8 CFR 214.2(h)(5)(i)(A) currently
which H classifications must name
workers,’’ Rocky Mtn. News 10 (Sep. 15, 2007) erroneously cites to section 216(e)(2) of the INA as
(quoting a farmer, ‘‘There is a bottleneck at the the statutory authority for administrative appeals of
beneficiaries in the petition and which
federal level in approving work visas, causing real denied temporary labor certifications. The correct do not need to name beneficiaries and
problems for farmers’’). statutory provision is section 218(e)(2) of the INA. under what circumstances. Note that
USCIS also is developing a separate deny or revoke upon notice any H–2A but, instead, would be in an authorized
rulemaking action to amend petition if it determines (1) That the period of stay. See INA sec. 212(a)(9)(B),
requirements for H–2B that may have alien beneficiary has paid or has agreed 8 U.S.C. 1182(a)(9)(B). In general, the
additional impacts on H classifications. to pay any fee or other form of unlawful presence of an alien in the
compensation, whether directly or United States for more than 180 days
C. Multiple Beneficiaries indirectly, to the petitioner, or (2) that results in the alien being inadmissible to
USCIS has determined that the the petitioning employer is aware that the United States for a minimum of
current regulatory provision at 8 CFR the alien beneficiary has paid or agreed three years. Id.
214.2(h)(5)(i)(B) that permits petitioners to pay any facilitator, recruiter, or Further, to minimize the costs to H–
to petition for multiple beneficiaries similar employment service, in 2A workers who are affected by the
who are overseas only if all the connection with obtaining the H–2A revocation of a petition pursuant to
beneficiaries will obtain a visa at the employment. See proposed 8 CFR proposed 8 CFR 214.2(h)(5)(xi)(A), this
same overseas consulate or apply for 214.2(h)(5)(xi)(A); see also 8 CFR rule also proposes to require employers
admission at the same port of entry is 214.2(h)(11)(iii) (revocation on notice). to pay such workers’ reasonable
no longer necessary. This rule proposes We understand that there may be transportation expenses to return to
to eliminate this requirement from 8 circumstances where an alien their last place of foreign residence.
CFR 214.2(h)(5)(i)(B). This requirement beneficiary may seek to pay or Proposed 8 CFR 214.2(h)(5)(xi)(B).
previously was necessary because, in otherwise compensate a recruiter, However, the rule would not require
the past, USCIS had to forward each facilitator or similar employment employers to be held liable for such
approved petition to the consulate service without the knowledge of the expenses in cases where affected aliens
overseas where a beneficiary will apply petitioner. By revoking or denying the obtain approval of an extension of H–2A
for a visa. For petitions containing a petition in such circumstance, USCIS stay based on a subsequent job offer
request for multiple beneficiaries, the would be penalizing the alien with another employer during the
beneficiaries had to apply for their visas beneficiary whose illegal actions should thirty-day grace period, provided that
at the same consulate to ensure effective not be rewarded by continued stay in the new employer states in the job offer
tracking and usage of available numbers the United States, and deterring both that it will pay such reasonable return
in an approved petition. However, the aliens and recruiters from entering into transportation expenses upon
U.S. Department of State recently such arrangements in the future. completion of the alien’s new
implemented a new electronic system to However, revocation or denial would employment.
effectively track visa issuance for also harm the petitioner as well, through 2. Employer Attestation
specific petitions approved for multiple loss of an employee. DHS solicits
beneficiaries in real time regardless of comments on appropriate USCIS recognizes that some H–2A
the consulate location where a administrative penalties in the event petitioners, particularly those
beneficiary may apply for a visa. Thus, that USCIS determines that the alien petitioning for the first time and without
the proposed change will benefit a beneficiary, without the knowledge of the benefit of counsel, may not
prospective H–2A employer by the petitioner, paid or agreed to pay a appreciate the limitations on H–2A
fee or any form of compensation to a employment imposed by the regulations
permitting the employer to file only one
facilitator, recruiter, or similar and the representations in the H–2A
petition with USCIS when petitioning
employment service, in connection with petition and the accompanying
for multiple H–2A beneficiaries from
an offer or as a condition of H–2A application for temporary labor
multiple countries. The benefit to the
employment. certification. This rule proposes to
employer will be realized not only in
USCIS believes that this proposal will require H–2A petitioners to include
terms of convenience but also from a
help minimize immigration fraud and with their petitions an attestation,
financial standpoint since the employer
protect against other abuses that have certified as true and accurate by the
will only be responsible for paying one
occurred when such aliens have been petitioner under penalty of perjury, that
petition filing fee.
required to pay such employment fees, during the period of intended
D. Payment of Fees by Beneficiaries To including petition padding (i.e., the employment for which the petition is
Obtain H–2A Employment filing of requests for more workers than approved, the petitioner will not
needed), visa selling, and human materially change the information
1. Grounds for Denial or Revocation on provided on the Form I–129 and the
Notice trafficking. This proposal would not
preclude the payment of any finder’s or temporary labor certification, including,
USCIS has found that certain job similar fee by the prospective employer but not limited to, the alien workers’
recruiters and U.S. employers are to a recruiter or similar service, duties, their place of employment, and
charging potential H–2A workers job provided that such payment is not the entities for which the duties will be
placement fees in order to obtain H–2A assessed directly or indirectly against performed. Proposed 8 CFR
employment. Such workers are coming the alien worker. 214.2(h)(5)(i)(C). USCIS believes that
to the United States to fill positions that To provide protection to H–2A this requirement will apprise petitioners
U.S. workers are unwilling or unable to workers who are in the United States of their responsibilities and obligations,
fill and are doing so in order to improve based upon an approved petition that is and, at the same time, help prevent the
their own difficult economic later revoked pursuant to proposed 8 employment of H–2A alien workers in
circumstances at home. USCIS has CFR 214.2(h)(5)(xi)(A), this rule a manner that conflicts with the
learned that payment by these workers proposes a thirty-day grace period representations upon which approval of
of job placement-related fees not only during which time such workers may the petition is based. In the event that
results in further economic hardship for find new employment and apply for an a material change does occur in the
them, but also, in some instances, has extension of stay, or depart the United terms and conditions of employment
resulted in their effective indenture. In States. See proposed 8 CFR specified in the original petition,
an effort to protect H–2A workers from 214.2(h)(5)(xi)(B). During the thirty-day petitioners are currently obligated to file
such abuses, this rule proposes to period, such workers would not be a new petition under 8 CFR
provide USCIS with the authority to unlawfully present in the United States, 214.2(h)(2)(i)(E).
As an anti-fraud and worker or within five days of early termination. immigration judge to remove the alien
protection measure to complement the USCIS believes that petitioners are not from the United States. See INA sections
proposed changes to 8 CFR in a position to know or easily obtain 237(a)(1)(C), 239(a), 240(a); 8 U.S.C.
214.2(h)(5)(xi), USCIS is further this information. 1227(a)(1)(C), 1229(a), 1229a(a). A
proposing that the petitioning employer Additionally, the rule proposes to add removal order typically includes the
also include in its attestation a a provision setting forth the name of the country to which the alien
statement that it has not received, nor circumstances in which an H–2A is to be removed, which usually is the
intends to receive, any fee, worker may be found to be an alien’s country of nationality. In order to
compensation, or other form of absconder, thus defining a term that effectuate the removal order, DHS must
remuneration from the workers it would otherwise vary in interpretation ensure that the alien has the necessary
intends to hire or from any person, from one employer to the next, possibly travel documents (e.g., passport) to
agency or other entity. The petitioner to the detriment of the alien worker. See return to the named country and that
would also be required to attest to proposed 8 CFR 214.2(h)(5)(vi)(E). The the country agrees to receive the alien.
whether it has used a facilitator, definition employs the same five-day DHS has faced an on-going problem of
recruiter, or any other similar period used to trigger a notification countries refusing to accept or
employment service, to locate foreign requirement when the alien does not unreasonably delaying the acceptance of
workers to fill the positions covered by show-up for work at the beginning of their nationals who have been ordered
the H–2A petition, and if so, to provide the petition period. removed. To combat this problem,
the names of such facilitators, recruiters, In proposed 8 CFR 214.2(h)(5)(vi), Congress gave the Secretary of State the
or placement services. USCIS is restructuring the entire authority to discontinue the issuance of
paragraph. Substantive modifications visas to citizens, subjects, nationals, and
E. Petition Agreements and Liquidated
were only made to the notification and residents of a country if DHS notifies
Damages
liquidated damage requirements. the Secretary of State that the
USCIS has found that the notification Conforming amendments were made to government of that country consistently
and liquidated damages requirements 8 CFR 214.2(h)(5)(ix). denies or unreasonably delays their
provided for in the current regulations return. INA sec. 243(d), 8 U.S.C.
at 8 CFR 214.2(h)(5)(vi)(A) are onerous F. Violations of H–2A Status
1253(d); see also IIRIRA sec. 307.
on employers and not effective in USCIS has determined that the In an effort to further alleviate the
ensuring that H–2A workers maintain current provision at 8 CFR problem, this rule proposes to preclude
their nonimmigrant status. Therefore, 214.2(h)(5)(viii)(A) precluding a new USCIS from approving a petition filed
USCIS is proposing to modify this grant of H–2A status where the alien on behalf of one or more aliens from
provision by requiring petitioners to worker violated the conditions of H–2A countries determined by the Secretary of
provide written notification to DHS in status within the prior five years Homeland Security to consistently deny
the following instances: an H–2A requires clarification. This provision or unreasonably delay the prompt return
worker fails to report to work within only lists two types of status violations of their citizens, subjects, nationals or
five days of the date of the employment and fails to include all status violations. residents. See proposed 8 CFR
start date; the employment terminates This rule clarifies that any violation of 214.2(h)(5)(i)(F); see also INA secs.
more than five days early; or the H–2A a condition of H–2A status committed 214(a)(1), 215(a)(1) and 243(d); 8 U.S.C.
worker absconds from the worksite. See within the five years prior to 1184(a)(1), 1185(a)(1), and 1243(d). At
proposed 8 CFR 214.2(h)(5)(vi)(B)(1). adjudication of the petition by USCIS the time that DHS makes such
The rule proposes to lengthen the time will result in a denial of H–2A status. determination, DHS expects in most
within which the petitioner must meet cases to notify the Secretary of State
the notification requirements from the G. Revocation of Labor Certification under INA 243(d) of the determination
current twenty-four hours to forty-eight DOL published a rule that proposes to so that applications for H–2A visas from
hours. The rule also proposes to provide allow for the revocation of an approved citizens, subjects, nationals, and
the method of notification via notice in temporary agricultural labor residents of that country may be
the Federal Register, as well as the date certification when an employer violates lawfully denied on that basis. The
on which the new notification the terms of that labor certification. The Secretary of Homeland Security will
requirements will take effect. To enforce proposal includes a means to contest a periodically review determinations that
the notification provision, the rule possible revocation of the labor countries have consistently denied or
proposes to require employers to retain certification. Accordingly, in this rule, unreasonably delayed acceptance of
evidence (e.g., a photocopy) of the USCIS is proposing to provide for the their nationals to ensure the
written notification for a one-year immediate and automatic revocation of determinations are still justified. These
period. See proposed 8 CFR the petition upon the revocation of the provisions are intended to encourage
214.2(h)(5)(vi)(B)(2). labor certification by DOL. See proposed more nations to promptly accept the
This rule further proposes to increase 8 CFR 214.2(h)(2)(11)(ii). Since the labor return of nationals subject to a final
the liquidated damages for failing to certification is a prerequisite for an H– order of removal.
meet the notification requirement from 2A petition, and the DOL proposed rule More generally, DHS expects that the
$10 to $500 per instance because the would provide for contesting revocation proposals in this rule intended to
$10 amount is not a sufficient deterrent of the labor certification, USCIS need increase the flexibility and
against noncompliance. See proposed 8 not engage in a separate review before attractiveness of the H–2A visa program,
CFR 214.2(h)(5)(vi)(B)(3). However, the the petition is revoked. complemented by the streamlining
rule removes the current requirement proposals the Department of Labor is
for the petitioner to pay $200 in H. Prohibiting H–2A Petitions or making in its H–2A rule, will increase
liquidated damages for failing to Admissions for Nationals of Countries the popularity of the program with U.S.
demonstrate that its H–2A worker either That Refuse Repatriation agricultural employers. But even though
departed the United States or obtained An alien worker who violates his or a more workable H–2A program would
authorized status based on another her status may be subject to mean fewer aliens entering the country
petition during the period of admission administrative proceedings before an illegally to seek work, it could also lead
to an increase in the number of H–2A workers and their employers, causing extension of stay. USCIS issues such
workers that abscond from their disruptive breaks in employment and notices on Form I–797, ‘‘Notice of
workplace or overstay their immigration difficulty for employers to meet their Action.’’ The notice date on Form I–797
status. The repatriation proposal time-sensitive agricultural requirements. is called the ‘‘Received Date.’’ Note that
outlined above is designed, in part, to This rule proposes to reduce from three if the application for the extension of
address this challenge. DHS hereby months to forty-five days the minimum stay is denied by USCIS prior to the
invites comments from the public on period spent outside the United States expiration of this 120-day period,
additional or alternative approaches, for that would be considered interruptive of employment authorization would
example by restricting eligibility to accrual of time towards the three-year automatically terminate upon
nationals of countries that provide the limit, where the accumulated stay is notification of the denial decision.
most cooperation to the United States in eighteen months or less. See proposed 8 The proposed rule places one
administering the program, rather than CFR 214.2(h)(5)(viii)(C). If the condition on this employment
by excluding those whose governments accumulated stay is longer than authorization benefit: The new H–2A
provide the least cooperation. DHS is eighteen months, this rule proposes to employer must be a registered user in
particularly interested in additional simplify the calculation of the good standing (as determined by USCIS)
ways to promote cooperation by foreign interruptive period required from at of USCIS’ E–Verify program. If the new
governments in matters of security, least one-sixth of the period of employer does not meet this condition,
particularly in connection with travel accumulated stay to two months. Id. proposed 8 CFR 274a.12(b)(21) would
and immigration, such as the country’s These proposed reductions would not apply, and the alien worker would
willingness to share passport reduce the amount of time employers not be authorized to work for the new
information and criminal records of are required to be without the services employer until USCIS grants the
aliens who are seeking admission to, or of needed workers and enable the extension of stay application. USCIS
are present in, the United States under employers to have a set timeframe from believes that this proposed employment
this program. which they can better monitor authorization provision will create an
compliance with the terms and incentive for agricultural employers to
I. Period of Admission
conditions of H–2A status. enroll in the E-Verify program, thereby
This rule proposes to extend the H– reducing opportunities for aliens
2A admission period following the K. Post-H–2A Waiting Period
without employment authorization to
expiration of the H–2A petition from not Once an H–2A worker has reached the work in the agricultural sector and
more than ten days to an absolute thirty- three-year ceiling on H–2A helping protect the integrity of the H–
day period. See proposed 8 CFR nonimmigrant status, current 2A program.
214.2(h)(5)(viii)(B). The purpose of this regulations require the worker to wait This proposed rule makes conforming
post-petition period is to provide the H– six months outside the United States amendments to 8 CFR 214.2(h)(2)(i)(D)
2A worker enough time to prepare for prior to seeking H–2A nonimmigrant (prohibiting an alien from commencing
departure or apply for an extension of status again (or any other nonimmigrant employment until the new employer’s
stay based on a subsequent offer of status based on agricultural activities). 8
petition is approved) and includes a
employment. As discussed below, CFR 214.2(h)(5)(viii)(C). USCIS believes
cross-reference to proposed 8 CFR
USCIS is proposing to increase the that a shorter waiting period would
274a.12(b)(21). It also includes a cross-
mobility of aliens from one H–2A better meet the needs of agricultural
reference to section 214(n) of the INA,
employer to another (see proposed 8 employers in a time-sensitive industry
8 U.S.C. 1184(n). This statutory
CFR 274a.12(b)(21)). USCIS believes experiencing such a shortage of U.S.
provision applies to aliens within the
that the change to a thirty-day period workers. This rule proposes to reduce
H–1B specialty worker classification
will facilitate this new benefit. the required absence period to three
and, in general, permits such aliens to
The proposed rule also corrects 8 CFR months, in order to reduce the amount
work for a new employer before such an
214.2(h)(5)(viii)(B) by removing an of time employers would be required to
employer’s petition is approved. The
incorrect cross-reference to 8 CFR be without the services of needed
addition of section 214(n) of the INA, 8
214.2(h)(5)(ix)(C). In its place, a cross- workers, while not offending the
U.S.C. 1184(n), in this proposed
reference to 8 CFR 214.2(h)(5)(viii)(B) fundamental temporary nature of
rulemaking is made so that the
should be included in 8 CFR employment under the H–2A program.
regulations conform to the statute.
214.2(h)(5)(viii)(C).
L. Extending Status With New Employer
J. Interruptions in Accrual Towards 3- and Participation in E-Verify M. Miscellaneous Changes to H–2A
Year Maximum Period of Stay Program
This proposed rule would permit H–
An alien’s total period of stay in H– 2A workers to continue to be 1. Extensions of Stay Without New
2A nonimmigrant status may not exceed employment authorized while awaiting Temporary Labor Certifications
three years. 8 CFR 214.2(h)(15)(ii)(C). an extension of H–2A status based on a USCIS regulations currently provide
However, certain periods of time spent petition filed by a new employer that, under certain circumstances, an
outside the United States are deemed to accompanied by an approved labor application for an extension of stay for
‘‘stop the clock’’ towards the accrual of certification. Proposed 8 CFR an H–2A nonimmigrant worker need not
the three-year limit. 8 CFR 274a.12(b)(21). Specifically, the new contain an approved temporary labor
214.2(h)(5)(viii)(C). USCIS has provision would authorize an certification. 8 CFR 214.2(h)(5)(x). This
determined that the length of time that individual who has filed an application rule proposes revisions to this provision
the current regulations require before an for an extension of stay during his or her to improve its readability; it proposes no
H–2A’s three-year period of stay is period of admission to be employed by substantive changes.

deemed interrupted is unnecessarily the new, petitioning employer for a
long. This results in H–2A workers period not to exceed 120 days beginning 2. Filing Locations
reaching the three-year cap on their from the date of the notice that USCIS To improve the efficient processing of
authorized period of stay much sooner issues to acknowledge that it has H–2A nonimmigrant petitions, USCIS
than reasonably anticipated by both the received the application for the recently established special mailing
addresses at the USCIS California agricultural labor or services in the to strengthen its departure control
Service Center for all H–2A petition United States on a temporary basis. record keeping system. On August 10,
filings. The current regulations, Without imposing a meaningful 2007, the Administration announced
however, only permit petitions to be departure after the three-year maximum that it would establish a new land-
filed with the USCIS Service Center that period of stay has been reached, USCIS border exit system for guest workers,
has jurisdiction in the area where the has found that H–2A sheepherders’ stay starting on a pilot basis. In order to
alien will perform services (or receive is not truly temporary. ensure that temporary workers depart
training) except as provided for Therefore, USCIS proposes to impose the United States within the authorized
elsewhere in the regulations or by a on H–2A sheepherders the same period, DHS is proposing to institute a
designation specified in a notice departure requirement applicable to all land-border exit system for H–2A guest
published in the Federal Register. 8 H–2A workers. However, before doing workers on a pilot basis. Under the
CFR 214.2(h)(2)(i)(A). USCIS has found so, USCIS is soliciting comments from proposed program, an alien admitted on
that effecting changes to filing the public regarding this change in an H–2A visa at a port of entry
procedures by notice in the Federal policy. Under the proposed change, participating in the program must also
Register creates an unnecessary obstacle USCIS would not take action against depart through a port of entry
to the timely implementation of petition individuals who have already been participating in the program and present
processing improvements. Such changes admitted in H–2A classification to designated biographic and/or biometric
would be more timely conveyed to the engage in sheepherding activities. Such information upon departure at the
public via the petition’s form individuals, however, would be conclusion of their authorized period of
instructions and USCIS’s Web site. required to depart from the United stay. CBP would publish a Notice in the
Therefore, this rule proposes to remove States at the end of their period of Federal Register designating which
the Federal Register notice requirement admission in H–2A status and remain ports of entry are participating in the
at 8 CFR 214.2(h)(2)(i)(A) and instead outside of this country for the requisite program, which biographic and/or
provides that the form instructions will time period (six months under the biometric information would be
contain information regarding current regulation; three months under required, and the format for submission
appropriate filing locations for these the proposed rule) before being eligible of that information by the departing H–
nonimmigrant visa petitions. to obtain H–2A status again. See INA 2A workers. The exit pilot program
sec. 101(a)(15)(H)(ii)(A), 8 U.S.C. would allow DHS to ensure that the H–
N. USCIS Policy Applicable to H–2A 1101(a)(15)(H)(ii)(A); 8 CFR
Sheepherders 2A workers subject to this pilot program
214.2(h)(5)(iv). have departed from the United States
For a number of years, the
O. Land Border Exit System Pilot when their authorization expires and
Immigration and Naturalization Service
The Secretary of Homeland Security would provide a foundation for the
(INS) and now USCIS have refrained
is authorized to prescribe conditions for comprehensive land border exit system
from applying the three-year maximum
the admission of nonimmigrant aliens for guest workers proposed by the
period of stay to H–2A aliens who work
under section 214 of the INA. Section Administration in August 2007. DHS
as sheepherders. See Memorandum
235 of the INA provides for the requests comments on the establishment
from INS Assistant Commissioner John
inspection of applicants for admission. of the proposed pilot program. DHS also
R. Schroeder to Northern Service Center
Pursuant to 8 CFR 235.1(h)(1), solicits comments on whether to
Director James M. Bailey, ‘‘Limits of
Stay for H–2A Sheepherders under 8 nonimmigrant aliens who are admitted include H–2B workers in the exit pilot
CFR 214.2(h)(5)(viii)(C)’’ (Oct. 31, 1991) to the United States, unless otherwise program. (The H–2B nonimmigrant
(referring to Letter from INS exempt, are issued Form I–94, ‘‘Arrival/ classification applies to foreign workers
Commissioner Alan Nelson to Senator Departure Record,’’ as evidence of the performing nonagricultural temporary
Alan K. Simpson (Nov. 11, 1987)) terms of admission. Once admitted into labor or services in the United States.
(stating that a 6-month absence from the country, nonimmigrant aliens are INA sec. 101(a)(15)(H)(ii)(b), 8 U.S.C.
United States is not required of H–2A required to comply with all the 1101(a)(15)(H)(ii)(b); 8 CFR 214.1(a)(2)
sheepherders). As a result, H–2A aliens conditions of their stay, depart the (H–2B classification designation)).
working as sheepherders who have United States before the expiration of DHS previously conducted exit pilot
reached the three-year maximum period the period of authorized stay, and programs at selected air and sea ports of
of stay have been able to commence a surrender the departure portion of the entry through United States Visitor and
new three-year period of stay in H–2A Form I–94 upon departure from the Immigrant Status Indicator Technology
status without ever departing and United States. Section 215 of the INA (US–VISIT) Program. See 69 FR 46556.
remaining outside the United States for provides the authority for departure Those pilots began in August 2004 and
six months. See 8 CFR control for any person departing from concluded in May 2007. The pilot
214.2(h)(5)(viii)(C) (specifying 6-month the United States. Additionally, 8 CFR program exit system proposed under
departure requirement). While USCIS part 215 provides the regulations for this rule will utilize any applicable
recognizes the special nature of this controls of aliens departing from the lessons learned from the US–VISIT air
unique type of agricultural work, United States. Specifically, 8 CFR 215.2 and sea exit pilot program. DHS will
including the need to herd sheep over allows for DHS, at its discretion, to continue to coordinate these screening
extensive expanses of open range for require any alien departing from the programs to ensure both security and
long periods of time, USCIS has United States to be examined under efficiency of the programs.
concluded that its policy of exempting oath and to submit for official IV. Rulemaking Requirements
H–2A sheepherders from the six-month inspection all documents in the alien’s
departure requirement is inconsistent possession. A. Regulatory Flexibility Act-Initial

with the parameters of the H–2A Available statistics indicate that a Regulatory Flexibility Analysis
classification. Those parameters require significant number of nonimmigrant The H–2A program establishes a
that H–2A workers have a residence in aliens either do not turn in their Form means for agricultural employers who
a foreign country that they have no I–94 upon departure or overstay their anticipate a shortage of domestic
intention of abandoning, and perform authorized period of stay. DHS intends workers to bring nonimmigrant foreign
workers to the United States to perform 2. Description of the Projected 4. Description of Any Significant
agricultural labor or services of a Reporting, Recordkeeping and Other Alternatives to the Proposed Rule That
temporary or seasonal nature. U.S. Compliance Requirements of the Accomplish the Stated Objectives of
employers have historically faced a Proposed Rule, Including an Estimate of Applicable Statutes and That Minimize
shortage of domestically available the Classes of Small Entities That Will Any Significant Economic Impact of the
workers for seasonal agricultural jobs. Be Subject to the Requirement and the Proposed Rule on Small Entities,
Many farm workers also in America lack Type of Professional Skills Necessary Including Alternatives Considered,
proper work authorization and for Preparation of the Report or Record Such as: (1) Establishment of Differing
immigration status. In addition, the Compliance or Reporting Requirements
a. Paperwork Reduction Act or Timetables That Take into Account
requirements that Federal labor and
immigration authorities impose on the Resources Available to Small
The proposed rule adds no
farmers and agribusinesses to obtain H– Entities; (2) Clarification, Consolidation,
‘‘reporting’’ or ‘‘recordkeeping’’
or Simplification of Compliance and
2A workers are generally felt to be requirements within the meaning of the Reporting Requirements Under the Rule
overly burdensome. Therefore, USCIS is Paperwork Reduction Act; thus the rule for Such Small Entities; (3) Use of
proposing changes intended to does not require professional skills for Performance Rather Than Design
encourage and facilitate the lawful the preparation of ‘‘reports’’ or Standards; (4) Any Exemption From
employment of foreign temporary and ‘‘records’’ under that Act. Coverage of the Rule, or Any Part
seasonal agricultural workers. Thereof, for Such Small Entities
b. New Reporting Requirement
1. Description of and, Where Feasible, Throughout the development of the
an Estimate of the Number of Small The proposed rule would impose new proposed rule DHS has made every
Entities to Which the Proposed Rule reporting requirements on H–2A effort to gather information regarding
Will Apply employers, including the time frame for the economic impact of the rule’s
reporting, the mechanisms for reporting, requirements on all operators, including
a. Regulated Entities the amount of liquidated damages for small entities. Questions for public
USCIS has concluded that the entities failure to comply, and defenses for comment regarding the costs and
affected by this rule are generally failure to comply. This rule proposes to benefits associated with the proposed
categorized as small. By and large this announce via notice published in the rule with respect to how operators,
rule applies to farms engaged in the Federal Register appropriate including small entities, can comply
production of livestock, livestock notification requirements and assesses with the rule’s requirements are
products, field crops, row crops, tree liquidated damages for failure to comply included in this part of the rule.
crops, and various other enterprises. It with the notification requirements at 5. Questions For Comment To Assist
does not apply to support activities for $500 per violation. DHS has no basis for Regulatory Flexibility Analysis
agriculture. The industry affected by estimating the cost of this new
requirement on H–2A employers. Please provide comment on any or all
this rule, as described in the North of the provisions in the proposed rule
American Industry Classification However, DHS believes that the
occurrence of non-compliance is not with regard to:
System (NAICS), as encompassing a. The impact of the provision(s)
NAICS subsectors 111, Crop Production, prevalent enough to affect a substantial
(including any benefits and costs), if
and 112, Animal Production. number of the affected entities.
any; and
However, the agency has requested and
b. Number of Small Entities to Which b. What alternatives, if any, DHS
seeks further comment on the actual should consider, as well as the costs and
the Proposed Rule Will Apply costs or expenditures, if any, of impact benefits of those alternatives, paying
on any one firm that is assessed specific attention to the effect of the rule
USCIS estimates that it will receive
liquidated damages as a result of being on small entities in light of the above
approximately 6,300 petitions per year
found to be in violation of this new analysis. In particular, please provide
for H–2A workers with many farms
requirement and how that impact may the above information with regard to the
submitting multiple petitions. About
differ or vary for small entities. following sections of the proposed rule:
5,000 of those are expected to be
submitted by small entities. The number 3. Identification of Federal Rules That i. The new reporting requirements on
of regulated firms represents about 0.3 H–2A employers, including the time
May Duplicate, Overlap or Conflict With
frame for reporting, the mechanisms for
percent of all farmers and the number of the Proposed Rule
reporting, the amount of liquidated
H–2A employees make up about 9.3
DHS is unaware of any duplicative, damages for failure to comply, and
percent of all farm workers. Finally, defenses for failure to comply in 8 CFR
about 550 sheep ranchers (an unknown overlapping, or conflicting federal rules.
As noted below, DHS seeks comments 214.2(h)(2)(vi)(B)(2).
number but presumed majority of which ii. The requirement for H–2A
are small entities) are expected to be and information about any such rules,
as well as any other state, local, or sheepherders to have the same
directly affected by this proposed rule departure requirement applicable to all
as a result of the proposed changes that industry rules or policies that impose
H–2A workers under 8 CFR
are specific to sheepherders. similar requirements as those in this
214.2(h)(5)(viii)(C) (specifying 6-month
proposed rule.
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;
preparing relevant materials; processing workers is voluntary and, therefore, not • Preventing the filing of requests for
materials, including, materials or subject to the Regulatory Flexibility Act. more workers than needed, visa selling,
requests for access to information; and coercion of alien workers and their
C. Unfunded Mandates Reform Act of
recordkeeping. family members, or other practices that
1995
Please describe ways in which the exploit workers and stigmatize the H–
rule could be modified to reduce any This rule will not result in the 2A program.
costs or burdens for small entities expenditure by State, local and tribal • Encouraging employers who
consistent with the Immigration and governments, in the aggregate, or by the currently hire seasonal agricultural
Nationality Act’s requirements. private sector, of $100 million or more workers who are not properly
Please describe whether and how in any one year, and it will not authorized to work in the United States
technological developments could significantly or uniquely affect small to replace those workers with legal
reduce the costs of implementing and governments. Therefore, no actions were workers.
complying with the rule for small deemed necessary under the provisions • Minimizing immigration fraud and
entities or other operators. of the Unfunded Mandates Reform Act human trafficking.
of 1995. The H–2A program establishes a
Please provide any information
means for agricultural employers who
quantifying the economic benefits of: D. Small Business Regulatory anticipate a shortage of domestic
a. Reducing delays in the petition, Enforcement Fairness Act of 1996 workers to bring nonimmigrant foreign
application, and approval process.
This rule is not a major rule as workers to the United States to perform
b. Reducing the time required for an agricultural labor or services of a
defined by section 804 of the Small
H–2A worker to be out of the country, temporary or seasonal nature. This rule
Business Regulatory Enforcement Act of
allowing more time for departure after is being promulgated as part of the
1996. This rule will not result in an
the visa has expired, and allowing for an reform process to make changes that are
annual effect on the economy of $100
extension of stay while a new petition intended to provide agricultural
million or more; a major increase in
is pending. employers with an orderly and timely
costs or prices; or significant adverse
c. Encouraging employers who effects on competition, employment, flow of legal workers while protecting
currently hire seasonal agricultural investment, productivity, innovation, or laborers’ rights.
workers who are not properly on the ability of United States-based
authorized to work in the United States F. Temporary Alien Farm Workers: The
companies to compete with foreign- Current H–2A Program
to replace those workers with legal based companies in domestic and
workers. export markets. The H–2A nonimmigrant
d. Minimize immigration fraud and classification applies to aliens who are
protect against abuses that occur when E. Executive Order 12866 coming to the United States temporarily
aliens are required to pay employment This rule has been designated as to perform agricultural labor or services
fees. significant under Executive Order of a temporary or seasonal nature.
Please identify all relevant federal, 12866. Thus, under section 6(a)(3)(C) of Seasonal employment is tied to a certain
state or local rules that may duplicate, the Executive Order, USCIS is required time of year that requires labor above
overlap or conflict with the proposed to prepare an assessment of the benefits regular operations. Temporary labor
rule. In addition, please identify any and costs anticipated to occur as a result means the employer’s need will last no
industry rules or policies that already of this regulatory action and provide the longer than one year.
require compliance with the assessment to the Executive Office of Aliens seeking H–2A nonimmigrant
requirements of the DHS proposed rule. the President, Office of Management status first must be petitioned by a U.S.
and Budget, Office of Information and employer, after the employer has
B. Provisions to Which the Regulatory
Regulatory Affairs. completed a temporary agricultural
Flexibility Act Does Not Apply
In summary, this rule proposes labor certification process with the
CBP is also seeking comments several changes to the H–2A visa Department of Labor (DOL). DOL
through this rule with respect to a pilot program that USCIS believes are determines whether employment is
program that would require that aliens necessary to encourage and facilitate the agricultural, whether it is open to U.S.
admitted on certain temporary worker lawful employment of foreign temporary workers, if qualified U.S. workers are
visas at a port of entry must depart and seasonal agricultural workers. There available, the adverse impact of
through a port of entry participating in are no additional regulatory compliance employment of a qualified alien, and
the program. Although there may be requirements to be added that will cause whether employment conditions,
costs associated with participation in a detectable increase in costs for including housing, meet applicable
this program, the aliens impacted by participating firms. Costs of compliance requirements. The U.S. employer then
this portion of the rule are not will not be changed by this proposed files Form I–129, ‘‘Petition for
considered ‘‘small entities,’’ as that term rule. Volume of applications may Nonimmigrant Worker,’’ which must
is defined in 5 U.S.C. 601(6). Since the increase slightly, but the burden of name one or more alien beneficiaries; if
regulation will require the alien to compliance both in time and fees will multiple beneficiaries, they may be
comply with the pilot program, rather not increase above that currently unnamed if unnamed in the DOL
than placing a requirement on the imposed. Qualitatively, this rule will certification and outside the United
employers, the employers are not benefit applicants by: States. The petition must establish the
directly impacted by this proposed rule. • Reducing delays caused by IBIS temporary, seasonal employment and
Employers, including small entities, are checks holding up the petition that the beneficiary meets job and
free to offer assistance to their H–2A application process. training, post-secondary education or
workers in complying with this • Reducing disruption of the life and other formal training requirements if
requirement if they choose to do so. affairs of H–2A workers in the United necessary.
However, the employer’s assumption of States. H–2A nonimmigrant status is valid for
any costs inherent with complying with • Protecting laborers’ rights by a total of three years, but can be
this requirement on behalf of their precluding payment of fees by the alien. renewed after the alien remains outside
the United States for a six-month farmworkers in America lack proper sufficient workers.8 A few sources feel
period. The H–2A nonimmigrant can work authorization and immigration the shortage of farm workers has been
interrupt an accumulated stay of status.4 The United States Department exacerbated by tighter security at the
eighteen months or less by an absence of Labor reports that in 1997 and 1998, Mexican border.9 Therefore, whether
from the United States of at least three 52 percent of hired farmworkers lacked there is an ample supply of farm
months. He or she can interrupt an work authorization, 22 percent were workers is a major concern in
accumulated stay of more than eighteen citizens and 24 percent were lawful agricultural communities. In short, there
months by absence from the United permanent residents.5 is fairly widespread agreement that
States of at least one-sixth of the there is a problem in the seasonal
2. Insufficient Labor Pool
accumulated stay. Once an H–2A agricultural worker program that needs
nonimmigrant’s authorized period of The H–2A temporary agricultural to be addressed in some fashion.
stay has expired, they have a ten-day program establishes a means for
grace period before being required to agricultural employers who anticipate a A. Regulatory Flexibility Act
leave the United States. However, an H– shortage of domestic workers to bring
nonimmigrant foreign workers to the The Regulatory Flexibility Act of
2A nonimmigrant whose three-year
limit has not been reached can be U.S. to perform agricultural labor or 1980, 5 U.S.C. 601–612, as amended by
employment authorized for another 240 services of a temporary or seasonal the Small Business Regulatory
days past the authorized period of stay nature. Before USCIS can approve an Enforcement Fairness Act of 1996 (P.L.
if requested by the same employer. If for employer’s petition for such workers, 104–121), requires Federal agencies to
a new employer, employment will not the employer must file an application conduct a regulatory flexibility analysis
be authorized past the authorized period with the Department of Labor stating that describes the impact of the
of stay until the petition is approved. H– there are not sufficient workers who are proposed rule on small entities
2A nonimmigrant status is not approved able, willing, qualified, and available, whenever an agency is publishing a
for an alien who violated the conditions and the employment of aliens will not notice of proposed rulemaking. In
of H–2A status within the previous five adversely affect the wages and working accordance with the RFA, this section
years by remaining beyond the conditions of similarly employed U.S. discusses the changes proposed in the
authorized period of stay or engaging in workers. subject rule and analyzes whether any
unauthorized employment. Labor concerns are prevalent in areas of the changes entail compliance
where the agricultural industry is requirements with a significant
V. Full Regulatory Impact Assessment dependent on seasonal labor. For economic impact on a substantial
Over the years, U.S. employers have example, the California Farm Bureau number of small entities requiring
faced a shortage of available U.S. Federation estimated that farm labor publication of an Initial Regulatory
workers who are able, willing, and shortages resulted in $85 million in Flexibility Analysis.
qualified to fill agricultural jobs, and losses to its members in 2006.6 Also, a
who would be available at the time and 2007 survey of Wisconsin dairy 1. Regulated Entities
place needed to perform the work. To producers cited an ample labor supply a. Agriculture Employment.
meet this need, U.S. employers have as a main limiting factor in the future of
considered hiring foreign workers. U.S. the survey subjects’ farming operations.7 The H–2A nonimmigrant
law requires that they first sponsor the Some commenters believe the classification applies to aliens seeking
workers by filing a petition based on requirements that Federal labor and to perform agricultural labor or services
their qualification within the H–2A immigration authorities impose on of a temporary or seasonal nature in the
nonimmigrant classification. farmers and agribusinesses to obtain H– United States on a temporary basis. The
2A workers are overly burdensome. work must be agricultural in nature.
1. Unauthorized Workers Others suggest that excessive Table 1 10 below summarizes the total
Estimates from many different bureaucratic delays by the responsible number of farm workers in the most
government and non-government agencies in approving worker petitions recent 5 calendar years and their
sources suggest that up to 70% of contribute to the inability to attract average hourly wages in those years.
TABLE 1.—FARM WORKERS, UNITED STATES, 2002–2006

Average annual wages
Total number (Dollars per hour)
Year of workers in
thousands Field and live-
All workers Field workers stock workers
2002 ................................................................................................................. 885.7 8.81 8.12 8.18

2003 ................................................................................................................. 836.0 9.08 8.31 8.42
2004 ................................................................................................................. 825.2 9.23 8.45 8.56
2005 ................................................................................................................. 780.0 9.51 8.70 8.84
2006 ................................................................................................................. 751.9 9.87 9.06 9.15
4 Regelbrugge, Craig J., American Nursery & 6 Farm Labor Shortages, Mechanization, Rural 9 Mountain State Reporter, United States
Landscape Association. Co-chair, Agriculture Migration News, Vol. 14 No. 4 (October 2007). Department of Agriculture, National Agricultural
Coalition for Immigration Reform, speech given at 7 2007 Dairy Producer Survey, USDA, National Statistics Service, West Virginia Department of
USDA Agricultural Outlook Conference, American Agricultural Statistics Service (July 2007). Agriculture, Vol., 19, no. 9 (Sept. 2006).
8 Washington, April M., Canada offers migrant 10 U.S. Department of Agriculture, National
Agriculture And Immigration Reform: An Industry
Perspective, March 1, 2007. tips; Colorado looks north of the border for ways to Agricultural Statistics Service, Statistical Bulletin
5 Research Report No. 8, U.S. Department of Labor
draw workers Sep. 15, 2007 Rocky Mtn. News 10 1007, Statistical Highlights of U.S. Agriculture for
(quoting a farmer, ‘‘There is a bottleneck at the 2006 and 2007, October 2007, http://
Office of the Assistant Secretary for Policy, Office federal level in approving work visas, causing real www.nass.usda.gov/Publications/
of Program Economics (March 2000). problems for farmers,’’). Statistical_Highlights/2007/2007stathi.txt.
The H–2A program is used mainly by 2. Size Categories of Affected Entities on any one firm that is assessed
farms engaged in the production of The U.S. Small Business liquidated damages as a result of being
livestock, livestock products, field Administration (SBA) Small Business found to be in violation of this new
crops, row crops, tree crops, and various Size Regulations at 13 CFR part 121, requirement.
other enterprises. The affected provide that farms with average annual 2. Costs of Exit Requirement
industries do not include support receipts of less than $750,000 qualify as
activities for agriculture.11 Therefore, in small businesses for Federal Under the proposed rule, certain
accordance with the RFA, USCIS has Government programs. According to aliens admitted on an H–2A visa must
identified the industry affected by this United States Department of Agriculture comply with the DHS Biometric Exit
rule as described in the North American data, 44,348, or 2.1 percent, of the Pilot as part of US–VISIT. The Exit Pilot
2,128,982 farms in the U.S. had gross Program was implemented to provide a
Industry Classification System (NAICS)
cash receipts of more than $500,000.16 straightforward exit process to ensure
as encompassing NAICS subsectors 111,
Since 97.9 percent of farms have sales that individuals adhere to the terms of
Crop Production, and 112, Animal
of less than $500,000 it appears that their admission and is intended as an
Production.12 added measure to ensure the integrity of
almost all farms are small entities under
b. Number Affected the SBA definition. That means that our immigration system. This means
almost all of the employers requesting that the alien must depart through a port
In fiscal year 2007 USCIS received USCIS approval to hire H–2A alien of entry participating in the program
6,212 Form I–129 petitions for H–2A employees per year, an estimated 5,220, and present designated biographic and
employees, and approved petitions for are small businesses looking to hire a or biometric information upon
78,089 H–2A workers.13 In fiscal year seasonal farm worker. departure at the conclusion of their
2006, USCIS received 5,667 Form I–129 The fact that the very small authorized period of stay.17 The alien
petitions and approved 5,448 of them percentage of farms that use the H–2A must either: (1) Check out at an
for 56,183 workers. Also, in fiscal year program accounts for 9.3 percent of all automated exit kiosk or with a US–
2006, 6,717 employers requested farm workers indicates that those farms VISIT exit attendant at the departure
certification from the Department of that use the H–2A program are larger gate at the port, have their travel
Labor (DOL) for 64,146 H–2A workers, than average. Nonetheless, the impacts documents read, their two index fingers
and for those workers, the United States of this rule would have to be totally digitally scanned, a digital picture
Department of State (DOS) issued concentrated among the largest farms in taken, receive a printed receipt that
37,149 H–2A visas. In fiscal year 2005, the U.S. in order for the affected entities verifies that they have checked out, and
USCIS approved Form I–129 petitions to not be small as determined under present the receipt at their departure
for 49,229 workers, 6,725 employers SBA guidelines. Therefore, USCIS has gate to confirm that they checked out; or
concluded that the entities affected by (2) go through a biometric check-out
requested certification from the
this rule are generally categorized as process with a US–VISIT exit attendant
Department of Labor for 50,721
small. stationed at visitors’ departure gates.
employees, and 31,892 visas were USCIS assumes that the additional time
issued by DOS.14 B. New Compliance Requirements of the
Proposed Rule to register at time of departure is
Thus, based on recent results, USCIS between 1⁄2 to 1 hour. USCIS seeks
estimates that the baseline number of 1. Compliance Costs comment on this assumption. Thus, this
H–2A petitions volume absent this rule Liquidated Damages for Non- rule will require H–2A to incur the
would in an average year be reporting. USCIS is proposing new following additional time costs,
approximately 6,300 petitions 15 for an reporting requirements on H–2A analyzed in the following model.
average of 70,000 total H–2A workers employers, including the time frame for Estimating how many H–2A workers
per year. In 2006 there were 2,089,790 reporting, the mechanisms for reporting, will be subject to the Exit Pilot requires
farms in the United States and about the amount of liquidated damages for determining how many H–2A workers
752,000 workers employed in failure to comply, and defenses for who leave the country each year are
agricultural jobs. Thus, about 0.3 failure to comply. This rule also doing so because their periods of
percent of all farmers use the H–2A proposes to enable DHS to announce via authorized stay have ended. As stated
program and 9.3 percent of all farm notice published in the Federal Register above, that is why the Exit Pilot
workers are aliens employed under the appropriate procedures for notifying program was instituted—DHS had no
H–2A program. DHS of events requiring employer process for ensuring that aliens
notification. USCIS has no data on the complied with their periods of
11 A few larger Farm Labor Contractors and Crew number of employers that typically fail authorized stay. Since there is no
Leaders (NAICS Code 115115) and Custom to comply with reporting requirements follow-up monitoring system, there is
Harvesting Operations (NAICS 115113) are believed and no estimate of the number of firms little data available, and the statistics
to use the H–2A program to meet their client’s that will have to pay liquidated that are available are unreliable. USCIS
seasonal needs, but the objectives of the program
and this rule are focused on the independent
damages. However, USCIS believes that does know that, in fiscal year 2007, it
producer. the occurrence of non-compliance is not approved petitions for 78,089 H–2A
12 U.S. Small Business Administration, Table of prevalent enough to affect a substantial workers.18 This number, however,
Small Business Size Standards, http://www.sba.gov/ number of the affected entities. Further, includes requests for extensions of stay
idc/groups/public/documents/sba_homepage/ while $500 is believed to be sufficient and changes in employers; thus, it does
serv_sstd_tablepdf.pdf.
13 These are not all new employees or entrants to
to provide an incentive for participating not represent the number of H–2A
the United States. This number includes petitions firms to comply, it is not large enough
approved for an extension or change of employer to impose a significant economic impact 17 http://www.dhs.gov/xnews/releases/
that are not segregated for reporting purposes. press_release_0476.shtm.
14 http://www.foreignlaborcert.doleta.gov/. 16 Economic Class of Farms by Market Value of 18 These are not all new employees or entrants to
15 This figure may not represent the actual Agricultural Products Sold and Government the United States. This number includes petitions
number of farm owners or operators as some larger Payments: 2002 http://www.nass.usda.gov/census/ approved for an extension or change of employer
farms may submit multiple petitions per year. census02/volume1/us/st99_1_003_003.pdf. that are not segregated for reporting purposes.
employees entering or exiting the U.S.19 approximately $28,000 (1⁄3 * $9.49 * a. Size of Sheep Farming Entities
USCIS believes that the closest indicator 18,000 * 1⁄2 hour). However, if each Affected
available of the number of H–2A visitor worker spends an hour in the exit
exits per year would be the average The sheep farming entities affected by
process, the opportunity costs rise to
number of entries per year. It is logical this rule (Sheep Farming is NAICS Code
approximately $56,000 (1⁄3 * $9.49 *
to assume that the number of employees 112410) are defined as small. No data
18,000 * 1 hour). As such, depending on
beginning their authorized employment exists on the relative breakdown on the
what assumptions are made about the number of sheep farms with average
would vary only slightly from the time required to exit and whether the
number ending their authorized term of annual receipts of more than $750,000
time forgone is work or leisure, the (making them not qualify as a small
employment from one year to the next. annual undiscounted costs range from
The number of H–2A entries during business). However, nothing points to
$28,000 to $171,000. sheep ranches being comprised of a
fiscal years 2002 through 2006 averaged
17,551 per year.20 As such, 3. Fees significantly higher percentage of large
approximately 18,000 immigrant operations than other farm
workers are expected to be affected by USCIS funds the cost of processing enterprises.23 The number of people
this rule and spend between 1⁄2 to 1 applications and petitions for employed by sheep farms in the United
hour in the registration process during immigration and naturalization benefits States is unknown.24 However, the
exit. and services, and USCIS’ associated number of United States farming
The costs of exit in this case are operating costs, by charging and operations with sheep totaled 69,090
entirely opportunity costs, as the worker collecting fees. For each Form I–129 during 2006.
forgoes 1⁄2 to 1 hour in the registration USCIS charges a filing fee of $320. Total sales of sheep and lambs in
process, and gives up this amount of While the enhancements in this rule 2006 were $473 million for an average
time to his or her ‘‘second best’’ activity. will increase the number of H–2A of $6,846 per farm.25 Of these farms,
It is also important to note that the petitions per year by making the 90.8 percent were comprised of
opportunity cost to the worker depends program more attractive, there is no operations having from 1 to 99 head.
on whether he or she could have been increase in per petition fees for Farms with a range of 100 to 499 head
working, or could have been engaging in employees being imposed by this rule. of sheep comprise 7.6 percent of the
a leisure activity. According to Fugitt Thus, the fee impacts of this rule on industry and the remaining 1.6 percent
and Wilcox 21 (1999), opportunity cost each petitioning firm are neutral. were operations with 500 head or
of leisure time is calculated as 1⁄3 of the more.26 Operations with more than 500
wage rate. However, if the respective H– 4. Paperwork Burden sheep account for 47.3 percent of the
2A individual could have been at work sheep production in the United States.
instead of in the exit registration USCIS estimates that the public
27 USDA, National Agricultural
process, the opportunity cost is the full reporting burden for each Form I–129 is
2 hours and 45 minutes per response, Statistics Service, http://
value of the wage.
including the time for reviewing www.nass.usda.gov/QuickStats/
According to the U.S. Department of
Labor 22, the hourly wage rate for the H– instructions, completing, and index2.jsp.
2A worker is $9.49. As such, the total submitting the form. The aggregate The table below lists the top sheep
annual undiscounted cost of H–2A public reporting burden for all firms producing states for 2007, indicating
workers having to spend 1⁄2 hour during affected by this rule may increase as a that the larger sheep farming operations
the exit process is approximately result of the increased due of the are concentrated in the western United
$85,000 ($9.49 * 1⁄2 hour * 18,000). The program. However, this rule proposes States.
opportunity costs if all workers spend a no changes to the per-firm reporting
full hour in the exit process are requirements or costs of the existing H– SHEEP AND LAMBS.—TOTAL SHEEP
approximately $171,000 ($9.49 *1 hour 2A program. AND LAMBS FOR 2007 27
* 18,000).
However, the preceding estimates of 5. Costs Imposed on Sheepherders and Total sheep
opportunity costs to the H–2A worker Their Employers State rank State and lambs
(thousand
assume that each individual is forgoing head)
There may be a slightly negative
an hour of time at work. It may also be
impact on sheep ranchers in the few
the case that the individual is foregoing 1 ............. Texas ................ 1,070
leisure. As such, the opportunity cost of states in the Western United States as a 2 ............. California .......... 610
leisure time is represented as 1⁄3 the result of one change that is necessary to 3 ............. Wyoming ........... 460
wage rate (Fugitt and Wilcox, 1999) as bring sheepherder H–2A employees in 4 ............. Colorado ........... 400
opposed to the full wage. under the requirements to return to their 5 ............. South Dakota ... 380
The undiscounted opportunity costs home countries that are applied to all
to workers in this case spending a 1⁄2 other H–2A employees. Currently, H–2A
23 Sheep and Lambs—Inventory, Wool
hour in the exit process are aliens working as sheepherders who
Production, and Number Sold by Size of Flock:
have reached their three-year maximum 2002. http://www.nass.usda.gov/census/census02/
19 See 2003–2005 figures at http://www.dhs.gov/ stay period may obtain a new three-year volume1/us/st99_1_030_032.pdf.
xlibrary/assets/statistics/publications/ period of stay in H–2A status without 24 E-mail from Scott Hollis, Livestock Section
2005_NI_rpt.pdf. Statistician, USDA, NASS to Phillip Elder,
20 Yearbook of Immigration Statistics, Temporary
departing and remaining outside the
Associate Counsel, USCIS, (November 02, 2007 1:15
Admissions of Nonimmigrants to the United States: United States for six-months as required PM EST) (on file with author).
2006 http://www.dhs.gov/xlibrary/assets/statistics/ for other H–2A aliens. The period of 25 Total sales divided by total number of farms.
publications/NI_FR_2006_508_final.pdf. stay in the alien’s home country is Smaller farms do not generally derive a significant
21 Fugitt, D. and S. Wilcox. (1999). Cost-Benefit portion of their income from sheep farming.
proposed to be changed to three months
Analysis for Public Sector Decision Makers. 26 Farms, Land in Farms, and Livestock
London, Quorium Books. in this rule and will be imposed on Operations, 2006 Summary, Agricultural Statistics
22 Available at: http://www.dol.gov/compliance/ sheepherders the same as for all other Board, United States Department of Agriculture,
topics/wages-foreign-workers.htm. H–2A workers. National Agricultural Statistics Service.
b. Number of Sheep Farming Entities c. Size of Sheep Farming Entities which is much higher than in other
Affected Affected employment based visa programs. A
The sheep farms that are members of major complaint that sheep ranchers
The policy exception for sheepherders
not returning home for 6 months Mountain Plains and Western Range have about the H–2A program is the
between their three year employment have flocks that range in size from inability to have absconding employees,
stints was provided because livestock approximately 500 ewes to as high as detained, deported, and replaced.
operations utilize rangeland in the about 10,000 ewes with total sales from (iii) Training
Western United States as a source of sheep, lambs and wool ranging from
pasture and forage needed year round, $50,000 to $950,000. Operations, such If a farm loses an employee it may
and not seasonal employees, and a as these, with more than 500 sheep have to bring in another sheepherder
reliable domestic labor source did not account for 1.6 percent of sheep farming and incur the costs of training the new
exist. USCIS is proposing to reduce the operations. Annual sales per sheep farm employee on the specific requirements
required period for an H–2A employee averages about $7,000 per farm; of that ranch. This rule is not expected
to return to their home country to three however, that figure includes many to impact this cost.
months and believes that this reduced farms that barely exceed the minimum
period will be reasonable for H–2A annual $1,000 in sales threshold that the (iv) Time Away From U.S. Between 3
sheepherders as well, obviating the need United States Internal Revenue Service Year Maximum Stays
for the sheepherder policy exception. and USDA use to define a ‘‘farm.’’ The
Currently, a sheepherder may return
According to the American Sheep number of these directly affected farms
to the United States immediately after
Industry Association, more than 500 that are small or large entities as a result
of exceeding or falling below the returning home. This proposed rule will
sheep operations depend on foreign require him or her to remain outside the
sheepherders for sheep production and $750,000 threshold defining those
categories are unknown. United States for three months.
more than 1,500 herders are in the
United States continuously helping care The productivity and overall expenses
d. Increased Compliance Costs for
for the flocks.28 USCIS receives about of a typical user of the H–2A
Sheep Farms
300 petitions a year for sheepherder H– sheepherder program are not expected
2A employees, mostly from two sources: (i) Travel Expenses to be affected. A six-month stay-home
Western Range Association, of Salt Lake This rule only proposes that the requirement would be a major concern
City Utah, and Mountain Plains sheepherder be required to stay away for sheep farms because that length of
Association, of Cheyenne, Wyoming. As from the United States for three months time may reduce the likelihood of the
of September 30, 2007, Western Range, or more before returning, as opposed to employee returning to the U.S. and
had 929 H–2A sheepherders under returning immediately as currently increases the sheep farmers’ risk of
contract with 217 member sheep allowed. This rule does not change the having an insufficient number of
ranchers. Of the 929 employees, 774 requirement that a sheepherder return to employees. However, the three-month
were from Peru, 79 were from Chile, 52 his or her home country or regulations stay home requirement will have a
from Mexico, and 23 from Bolivia.29 governing payment of the alien’s travel minimal impact. According to major
During calendar year 2007, Mountain expenses. The farmer must pay the costs users of the sheepherder H–2A program,
Plains has acted as agent for 1,460 H– for many of his H–2A sheepherders to most sheepherders stay home for two or
2A employees for livestock farms or go home every year anyway as a result three months already. Employers active
ranches. Mountain Plains has placed of normal turnover, and this rule will in the program have already built that
employees with approximately 330 not have an impact on that cost. expectation into their planning.31 The
range production livestock operations, (ii) Availability and Cost of Labor new mandatory three-month stay-away
which are not limited to sheep but for requirement will be an additional factor
this analysis USCIS will assume that This proposed rule will not for a sheep ranch’s consideration in
they are all sheep farmers. Mountain substantially reduce the availability of deciding how many H–2A alien
Plains estimates that the 1,460 H–2A seasonal sheepherders or increase the employees it needs. Also, the ranch will
employees they have had in 2007 were cost of employing them. Sheepherders want to make sure that all of its H–2A
60 percent from Peru, 30 percent from are unique from other H–2A seasonal sheepherders are not on the same cycle
Mexico, and 10 percent from Chile or agricultural employees in that for their requirement to return home
other countries. sheepherders are needed year round,
and stay. However, alien workers leave
Thus, about 550 sheep ranchers 30 are and not for short term needs with a start
their jobs for a number of reasons on a
expected to be directly affected by this and end, such as a crop harvest. While
regular basis and often have to return
proposed rule, representing less than 1 the need for sheepherders increases in
home for family events and
percent of the 69,090 sheep operations lambing or sheering season, the nature
emergencies. No increase in expenses is
in the United States in 2006 and only 6 of the employment is not necessarily
seasonal. The requirement to return expected as a result of sheepherders
percent of the sheep producers in being mandated under this rule to stay
California, Colorado, Idaho, Montana, home for six months fits a vegetable or
row crop farm with at least six months away. In addition, qualitative impacts
Nevada, Mew Mexico, and Wyoming. are expected to be slight, if they occur
This small group will face a between harvests. Ranches, however,
need at least a few hands year round. at all.
disproportionate impact from the
Due to the solitude experienced by a Therefore, the changes proposed in
proposed rule relative to other sheep
sheepherder who must live out on the the subject rule that add new
farmers.
range for extended periods of time, compliance requirements on rangeland
28 http://www.sheepusa.com.
employee turnover may be more livestock operations will not have a
29 Telephone conversations with Sarah Peters and
pronounced in the sheep ranching significant economic impact.
Dennis Richens of the Western Range Association. industry than in many others. Rates of
30 Western Range—217 plus Mountain Plains— employees absconding from rangeland 31 Sheep Industry Association, Mountain Plans,
330 = 547—rounded to 550. H–2A jobs is estimated at 10 percent, and Western Range.
C. Effect of Repatriation Provision 2. Qualitative Impacts application, and petition, it may after
As stated above, this rule proposes to Reduced delays: USCIS expects no complying with some requirements
prohibit the approval of an H–2A significant increase in filings to result depending on the circumstances. This
petition for a worker from a country that from allowing employers to petition for change will ensure continued
refuses repatriation of its citizen, unnamed beneficiaries and only compliance with section 218 of the INA
subjects, nationals or residents. Thus, requires the petition to include the and the integrity of the H–2A program.
where a country has no repatriation names of those beneficiaries who are in In summary, the changes in e, f, g, and
agreement with the United States, or the United States. In H–2A filings many h are essential for ensuring against the
where the country routinely refuses to beneficiaries are currently unnamed. most egregious of the documented
issue travel documents, or cooperate in This change will benefit applicants abuses to the H–2A program while in no
repatriation, or where for whatever mainly by eliminating the requirement way limiting the availability of H–2A
reason the United States is unable to that beneficiaries be named so that no workers to U.S. agricultural employers.
systematically repatriate deportees, H– Intragency Border Inspection System Illegal immigration (number of
2A employees from that country will (IBIS) check will hold up the petition agricultural workers who are
not be permitted. application process. unauthorized) will decline. It is
This change is intended to encourage Improved quality of life for H–2A presumed that this rule will result in
more nations to promptly accept the seasonal workers. Reducing the time those employers who currently hire
return of their nationals who no longer required for an H–2A worker to be out seasonal agricultural workers who are
have valid status as nonimmigrants in of the country, allowing more time for not properly authorized to work in the
the United States. However, the actual departure after the visa has expired, and United States to replace those workers
impact is expected to be negligible allowing for an extension of stay while with legal workers to the extent that this
because very few H–2A workers are a new petition is pending, will cause rule allows the employer to obtain a
from such countries. According to U.S. less disruption of the life and affairs of sufficient number of H–2A employees
Immigrations and Customs H–2A workers in the United States. considering the costs and risk associated
Enforcement, the top five non- Reduce abuses in the program. with hiring no worker or an
cooperating countries are the People’s Another major goal of this rule, in unauthorized worker.
Republic of China, India, Vietnam, addition to providing agricultural 3. Government Costs
Pakistan, and Laos. However, 98 percent employers with an orderly and timely
of all H–2A workers during FY 2006, flow of legal workers, is protecting This rule is expected to result in no
based on number of admissions, were laborers’ rights. Changes e, f, g, and h changes in program costs for the
from Mexico (40,283), Jamaica (3,376), above, go directly to protecting laborers’ government.
South Africa (757), Peru (562), and rights by precluding the payment of E. Summary and Conclusion
Canada (454). Repatriation is not a employment or recruitment fees by
problem with these countries and there aliens seeking H–2A positions. 1. Small Entity Effects
is no reason to believe that the changes Specifically, these changes will reduce The entities affected by this rule are
made in this rule will cause any shift in the abuse of H–2A employees by nearly all categorized as small under the
major source countries for temporary unscrupulous H–2A petitioners and/or RFA. However, only about 0.3 percent
agricultural workers at all, much less to their agents, who have required (or who of all farmers use the H–2A program and
the countries where this is a problem. have used third parties that require) 9.3 percent of all farm workers are
Thus this change is not expected to have persons seeking H–2A positions to pay aliens employed under the H–2A
any impact on the availability of H–2A such fees. USCIS also believes that this program. As for sheep ranchers that may
labor. rule will help minimize the immigration be directly affected by the changes in
D. Other Impacts of the Proposed fraud and abuses that have been known this rule, the 550 identified
Changes to occur when aliens are required to pay predominant users comprise less than 1
employment fees. Abuses that will be percent of the 69,090 sheep operations
1. Volume of Applications reduced by the changes in e, f, g and h in the United States and Puerto Rico in
The changes proposed by this rule are will include petition padding (i.e., the 2006, and only 6 percent of the
intended to increase the flexibility and filing of requests for more workers than operations in California, Colorado,
attractiveness of the H–2A visa program. needed), sale of H–2A positions to the Idaho, Montana, Nevada, New Mexico,
Therefore, the proposals in this rule are highest bidder, and human trafficking. and Wyoming. USCIS believes that the
expected to result in a small increase in Changes e, f, g and h are also intended percentages of total farms affected by
the number of H–2A visas petitioned for to deter the coercion of alien workers this rule do not represent a sufficient
and approved. USCIS has no reliable and their family members by recruiters, portion of the agricultural producers in
way to estimate the impact of these facilitators, and others who would the United States to rise to a level that
proposed changes on petition filings otherwise pressure such persons for could be called substantial as the term
and approval volume with any payment of debts incurred in is intended under the RFA.
precision. Nonetheless, it is reasonable connection with seeking an H–2A This rule will not impose a significant
to expect about a 5 percent increase per position. These changes will also economic impact on any firms. This rule
year in the number of employers filing discourage other exploitative practices proposes several changes to the H–2A
a Form I–129 to request H–2A that, in the past, have tarnished the visa program that USCIS believes are
employees as a result of the proposals reputation of the H–2A program. necessary to encourage and facilitate the
in this rule. Based on the 6,000 In addition, the attestation lawful employment of foreign temporary
projected Form I–129 filings for H–2A requirement referred to in change f and seasonal agricultural workers. There
employees per fiscal year, this would above will ensure continued compliance are no additional regulatory compliance
result in an estimated 300 additional with section 218 of the INA. Should the requirements to be added that will cause
filings per year.32 employer wish to employ an H–2A a detectable increase in costs for
worker in a different capacity than that participating firms. Thus, when
32 5,667 + 6,212/2 = 5,940 × .05 = 297. represented in its labor certification, comparing the annualized costs of this
proposed rule as a percentage of a Nonimmigrant Worker, seeking to 8 CFR Part 215

typical participating regulated small classify an alien as an H–2A Administrative practice and
firm’s annual sales there is no nonimmigrant. This form has been procedure, Aliens.
significant economic effect. previously approved for use by the
Office of Management and Budget 8 CFR Part 274a
2. Increased Costs for Small Businesses
(OMB) under the Paperwork Reduction Administrative practice and
Costs of compliance for small Act. The OMB control number for this procedure, Aliens, Employment,
businesses will not be changed by this collection is 1615–0009. However, Penalties, Reporting and recordkeeping
proposed rule. Volume of applications USCIS will make minor changes to the requirements.
may increase slightly, but the burden of Form I–129 by requiring an employer to Accordingly, chapter I of title 8 of the
compliance both in time and fees will certify that during the period of Code of Federal Regulations is proposed
not increase above that currently intended employment for which the to be amended as follows:
imposed.
petition is approved, the petitioner will
3. Increased Costs for Individuals not expand the alien workers’ duties, PART 214—NONIMMIGRANT CLASSES
The annual undiscounted costs for place of employment, nor the entities 1. The authority citation for part 214
aliens admitted on an H–2A visa to for which the duties will be performed is revised to read as follows:
comply with the DHS Biometric Exit beyond the information provided on the
Authority: 8 U.S.C. 1101, 1102, 1103, 1182,
Pilot as Part of US–VISIT range from Form I–129 and temporary labor 1184, 1185, 1186a, 1187, 1221, 1253, 1281,
$28,000 to $171,000. certification, and by updating the 1282, 1301–1305 and 1372; section 643, Pub.
language describing employers’ L. 104–208, 110 Stat. 3009–708; Pub. L. 106–
4. Benefits responsibility to inform DHS of H–2A 386, 114 Stat. 1477–1480; section 141 of the
This rule will benefit applicants by: employee no-show, termination, or Compacts of Free Association with the
• Reducing delays caused by IBIS abscondment and the requirement to Federated States of Micronesia and the
checks holding up the petition pay liquidated damages for failure to Republic of the Marshall Islands, and with
the Government of Palau, 48 U.S.C. 1901
application process: make such notification. In addition, note, and 1931 note, respectively; 8 CFR part
• Reducing disruption of the life and USCIS estimates that the number of U.S. 2.
affairs of H–2A workers in the United employers using the Form I–129 will
States; increase. Accordingly, once this rule is 2. Section 214.2 is amended by:
• Protecting laborers’ rights by published as a final rule, USCIS will a. Revising paragraphs (h)(2)(i)(A) and
precluding payment of fees by the alien; (D);
submit to OMB, the Form I–129 (with
• Preventing the filing of requests for minor changes) and raise the number of
b. Revising paragraph (h)(2)(iii);
more workers than needed, visa selling, c. Revising paragraph (h)(5)(i)(A);
respondents and burden hours
coercion of alien workers and their d. Revising paragraph (h)(5)(i)(B);
associated for this information e. Revising paragraph (h)(5)(i)(C);
family members, or other practices that collection using an OMB 83–C,
exploit workers and stigmatize the H– f. Adding a new paragraph (h)(5)(i)(F);
Correction Worksheet. g. Removing last sentence from
2A program;
• Encouraging employers who In addition, this rule requires, as a (h)(5)(ii);
currently hire seasonal agricultural prerequisite to an H–2A worker h. Revising paragraph (h)(5)(vi);
workers who are not properly receiving an automatic extension of i. Revising paragraph (h)(5)(viii)(A);
authorized to work in the United States employment authorization with the j. Revising paragraph (h)(5)(viii)(B);
to replace those workers with legal filing of a petition by a new employer, k. Revising paragraph (h)(5)(viii)(C);
workers; and that employers enroll in E-Verify, which l. Adding a new paragraph
• Minimizing immigration fraud and is an information collection system (h)(5)(viii)(D);
human trafficking. previously approved for use under the m. Revising paragraph (h)(5)(ix);
Paperwork Reduction Act. The OMB n. Revising paragraph (h)(5)(x);
F. Executive Order 13132 o. Adding a new paragraph (h)(5)(xi);
Control Number for this information
This rule will not have substantial collection is 1615–0092. and by
direct effects on the States, on the p. Revising paragraph (h)(11)(ii).
Under the changes contained in this The revisions and additions read as
relationship between the National
Government and the States, or on the regulation, USCIS estimates that the follows:
distribution of power and number of U.S. employers using E-
responsibilities among the various Verify will increase. Accordingly, once § 214.2 Special requirements for
this rule is published as a final rule, admission, extension, and maintenance of
levels of government. Therefore, in status.
accordance with section 6 of Executive USCIS will submit an OMB 83–C,
Order 13132, it is determined that this Correction Worksheet, to OMB raising * * * * *
rule does not have sufficient federalism the number of respondents and burden (h) * * *
implications to warrant the preparation hours associated for this information (2) * * *
of a federalism summary impact collection. (i) * * *
statement. (A) General. A United States
List of Subjects employer seeking to classify an alien as
G. Executive Order 12988 an H–1B, H–2A, H–2B, or H–3
8 CFR Part 214
This rule meets the applicable temporary employee must file a petition
standards set forth in sections 3(a) and Administrative practice and on Form I–129, Petition for
3(b)(2) of Executive Order 12988. procedure, Aliens, Cultural exchange Nonimmigrant Worker, as provided in
programs, Employment, Foreign the form instructions.
H. Paperwork Reduction Act officials, Health professions, Reporting * * * * *
This rule requires that a petitioner and recordkeeping requirements, (D) Change of employers. If the alien
submit Form I–129, Petition for Students, Victims. is in the United States and seeks to
change employers, the prospective new total number does not exceed the employment of an H–2A worker
employer must file a petition on Form number of positions indicated on the terminates more than 5 days before the
I–129 requesting classification and an relating temporary labor certification. employment end date stated on the
extension of the alien’s stay in the (C) Petitioner’s Attestation. A petition; or an H–2A worker absconds
United States. If the new petition is petitioner must file an attestation, from the worksite.
approved, the extension of stay may be certified as true and accurate by an (2) To retain evidence of such
granted for the validity of the approved appropriate official of the petitioner, notification and make it available for
petition. The validity of the petition and that during the period of intended inspection by DHS officers for a one-
the alien’s extension of stay must employment for which the petition is year period beginning on the date of the
conform to the limits on the alien’s approved, neither the alien workers’ notification.
temporary stay that are prescribed in duties, place of employment, nor the (3) To pay $500 in liquidated damages
paragraph (h)(13) of this section. Except entities for which the duties will be for each instance where it cannot
as provided by 8 CFR 274a.12(b)(21) or performed will expand beyond the demonstrate it is in compliance with the
section 214(n) of the Act, 8 U.S.C. related information provided on the notification requirement.
1184(n), the alien is not authorized to Form I–129 and labor certification. The (C) Process. Except when the
begin the employment with the new petitioner must also state in the petitioner has admitted in writing a
petitioner until the petition is approved. attestation whether: It received, directly failure to comply with the notification
An H–1C nonimmigrant alien may not or indirectly, any fee or other form of requirement, the petitioner will be given
change employers. compensation from any alien written notice and 10 days to reply
* * * * * beneficiary; it has any arrangement or before being given written notice of the
(iii) Naming beneficiaries. H–1B, H– intends to have an arrangement for assessment of liquidated damages.
1C, and H–3 petitions must include the remuneration, direct or indirect, from (D) Failure to pay liquidated damages.
name of each beneficiary. All H–2A and any recruiter, facilitator or similar If liquidated damages are not paid
H–2B petitions must include the name employment service with which it within 10 days of assessment, an H–2A
of each beneficiary who is currently in coordinates employment of the H–2A petition may not be processed for that
the United States, but need not name workers, and if so, the name of any petitioner or any joint employer shown
any beneficiary who is not currently in recruiter, facilitator, or similar on the petition until such damages are
the United States. However, a petitioner employment service used to locate H– paid.
who files on behalf of workers who are 2A workers; and, to the best of its (E) Abscondment. An H–2A worker
not present in the United States an H– knowledge, any alien beneficiary has has absconded if he or she has not
2B petition that is supported by a provided, or intends to provide, any reported for work for a period of 5 days
temporary labor certification requiring remuneration, direct or indirect, to any without the consent of the employer.
education, training, experience, or such recruiter, facilitator, or similar * * * * *
special requirements of the beneficiary employment service. (viii) * * *
must name all the requested workers in * * * * * (A) Effect of violations of status. An
each petition. Unnamed beneficiaries (F) Petitions for Nationals of alien may not be accorded H–2A status
must be shown on the petition by total Countries That Refuse Repatriation. No who USCIS finds to have, at any time
number. If all of the beneficiaries H–2A petition can be approved for a during the past 5 years, violated any of
covered by an H–2A or H–2B temporary citizen, subject, national or resident of the terms or conditions of admission
labor certification have not been a country whose government the into the United States as an H–2A
identified at the time a petition is filed, Secretary of Homeland Security has nonimmigrant, including remaining
multiple petitions for subsequent determined consistently denies or beyond the specific period of authorized
beneficiaries may be filed at different unreasonably delays accepting the stay or engaging in unauthorized
times but must include a copy of the return of citizens, subjects, nationals or employment.
same temporary labor certification. Each residents who are subject to a final order (B) Period of admission. An alien
petition must reference all previously of removal from the United States. The admissible as an H–2A nonimmigrant
filed petitions for that temporary labor Secretary will review such shall be admitted for the period of the
certification. determinations periodically to evaluate approved petition. Such alien will be
* * * * * if the subject country is accepting admitted for an additional period of up
(5) * * * repatriated nationals. to one week before the beginning of the
(i) * * * * * * * * approved period for the purpose of
(A) General. An H–2A petition must (vi) Petitioner consent and travel to the worksite, and a 30-day
be filed on Form I–129 with a single notification requirements—(A) Consent. period following the expiration of the
valid temporary agricultural labor In filing an H–2A petition, a petitioner H–2A petition for the purpose of
certification. The petition may be filed and each employer consents to allow departure or extension based on a
by either the employer listed on the access to the site where the labor is subsequent offer of employment. Unless
temporary labor certification, the being performed for the purpose of authorized under 8 CFR 274a.12 or
employer’s agent, or the association of determining compliance with H–2A section 214(n) of the Act, the beneficiary
United States agricultural producers requirements. may not work except during the validity
named as a joint employer on the (B) Agreements. The petitioner agrees period of the petition.
temporary labor certification. to the following requirements: (C) Limits on an individual’s stay.
(B) Multiple beneficiaries. The total (1) To notify DHS in writing, within Except as provided in paragraph
number of beneficiaries of a petition or 48 hours, and beginning on a date and (h)(5)(viii)(B) of this section, an alien’s
series of petitions based on the same in a manner specified in a notice stay as an H -2A nonimmigrant is
temporary labor certification may not published in the Federal Register if: An limited by the term of an approved
exceed the number of workers indicated H–2A worker fails to report for work petition. An alien may remain longer to
on that document. A single petition can within 5 days after the employment start engage in other qualifying temporary
include more than one beneficiary if the date stated on the petition; the agricultural employment by obtaining
an extension of stay. However, an an approved petition on the PART 215—CONTROLS OF ALIENS

individual who has held H–2A status beneficiary’s behalf, so long as the DEPARTING FROM THE UNITED
for a total of 3 years may not again be employee continues to perform the same STATES
granted H–2A status until such time as duties and will be employed for no
he or she remains outside the United 2. The authority citation for part 215
longer than 2 weeks after the expiration
States for an uninterrupted period of 3 continues to read as follows:
of previously-approved petition. The
months. An absence from the United previously approved petition must have Authority: 8 U.S.C. 1104; 1184; 1185
States can interrupt the accrual of time been based on an approved temporary (pursuant to Executive Order 13323,
spent as an H–2A nonimmigrant against published January 2, 2004), 1365a note, 1379,
labor certification. 1731–32.
the three-year limit. If the accumulated
stay is 18 months or less, an absence is (xi) Treatment of petitions and alien
3. Section 215.9 is added to read as
interruptive if it lasts for at least 45 beneficiaries upon a determination that
follows:
days. If the accumulated stay is greater fees were collected from alien
than 18 months, an absence is beneficiaries—(A) Denial or revocation § 215.9 Temporary Worker Visa Exit
interruptive if it lasts for at least two of petition. As a condition to approval Program.
months. Eligibility under this paragraph of an H–2A petition, no fee or other An alien admitted on an H–2A visa at
(h)(5)(viii)(C) will be determined in compensation (either direct or indirect) a port of entry participating in the
admission, change of status or extension may be collected from a beneficiary of Temporary Worker Visa Exit Program
proceedings. An alien found eligible for an H–2A petition by a petitioner, agent, must also depart at the end of their
a shorter period of H–2A status than facilitator, recruiter, or similar authorized period of stay through a port
that indicated by the petition due to the employment service in connection with of entry participating in the program
application of this paragraph an offer or condition of H–2A and present designated biographic and/
(h)(5)(viii)(C) shall only be admitted for employment. If a Service Center director or biometric information upon
that abbreviated period. determines that the petitioner has departure. U.S. Customs and Border
(D) Nationals of Countries That collected, or entered into an agreement Protection will publish a notice in the
Refuse Repatriation. No alien may be to collect, such fee or compensation or Federal Register designating which H–
accorded H–2A status who is a citizen, that the petitioner is aware that the 2A workers must participate in the
subject, national or resident of a country beneficiary has paid or agreed to pay Temporary Worker Visa Exit Program,
whose government the Secretary of any facilitator, recruiter, or similar which ports of entry are participating in
Homeland Security has determined employment service, in connection with the program, which biographical and/or
consistently denies or unreasonably obtaining the H–2A employment, the H– biometric information would be
delays accepting the return of citizens, required, and the format for submission
2A petition will be denied or revoked
subjects, nationals or residents who are of that information by the departing
on notice.
subject to a final order of removal from designated temporary workers.
the United States. The Secretary of (B) Effect of petition revocation. Upon
Homeland Security will review such revocation of an H–2A petition based PART 274a—CONTROL OF
determinations periodically to evaluate upon paragraph (h)(5)(xi)(A) of this EMPLOYMENT OF ALIENS
if the subject country is accepting section, the alien beneficiary’s stay will
be authorized and the alien will not 4. The authority citation for section
repatriation within a reasonable period
274a continues to read as follows:
of time. accrue any period of unlawful presence
(ix) Substitution of beneficiaries after under section 212(a)(9) of the Act for a Authority: 8 U.S.C. 1101, 1103, 1324a; 8
admission. An H–2A petition may be 30-day period following the date of the CFR part 2.
filed to replace H–2A workers whose revocation for the purpose of departure 5. Section 274a.12 is amended by:
employment was terminated early. The or extension of stay based upon a a. Removing the word ‘‘or’’ at the end
petition must be filed with a copy of the subsequent offer of employment. The of paragraph (b)(19);
certification document, a copy of the employer shall be liable for the alien b. Removing the period at the end of
approval notice covering the workers for beneficiary’s reasonable costs of return paragraph (b)(20), and adding a ‘‘; or’’ in
which replacements are sought, and to his or her last place of foreign its place; and by
other evidence required by paragraph residence abroad, unless such alien c. Adding a new paragraph (b)(21).
(h)(5)(i)(D) of this section. It must also obtains an extension of stay based on an The addition reads as follows:
be filed with a statement giving each approved H–2A petition filed by a
terminated worker’s name, date and § 274a.12 Classes of aliens authorized to
different employer, and such employer accept employment.
country of birth, and termination date.
states in the job offer that it will pay the * * * * *
A petition for a replacement may not be
alien’s reasonable return transportation (b) * * *
approved where the requirements of
expenses upon completion of the his or (21) A nonimmigrant alien within the
paragraph (h)(5)(vi) of this section have
not been met. A petition for her new employment. class of aliens described in 8 CFR
replacements does not constitute the * * * * * 214.2(h)(1)(ii)(C) who filed an
notification required by paragraph (11) * * * application for an extension of stay
(h)(5)(vi)(B)(1 ) of this section. pursuant to 8 CFR 214.2 or 8 CFR 214.6
(x) Extensions in emergent (ii) Immediate and automatic during his or her period of admission.
circumstances. In emergent revocation. The approval of any petition Such alien is authorized to be employed
circumstances, as determined by a is immediately and automatically by a new employer that has filed an H–
Service Center director, a single H–2A revoked if the petitioner goes out of 2A petition naming the alien as a
petition may be extended without an business, files a written withdrawal or beneficiary and requesting an extension
approved labor certification if filed on the petition, or the Department of Labor of stay for the alien for a period not to
behalf of one or more beneficiaries who revokes the labor certification upon exceed 120 days beginning from the
will continue to be employed by the which the petition is based. ‘‘Received Date’’ on Form I–797 (Notice
same employer that previously obtained * * * * * of Action) acknowledging receipt of the
petition requesting an extension of stay, opportunity for public comment on the environmental, and energy aspects of
provided that the employer has enrolled proposed requirements of that NPRM. the proposed AD.
in and is a participant in good standing DATES: We must receive comments on Actions Since NPRM Was Issued
in the E-Verify program, as determined this proposed AD by March 31, 2008.
by USCIS in its discretion. Such Since we issued the NPRM, we have
ADDRESSES: You may send comments by
authorization will be subject to any received one comment. Lynden Air
any of the following methods: Cargo requests an additional 45 days to
conditions and limitations noted on the
initial authorization, except as to the • Federal eRulemaking Portal: Go to comment on the NPRM. Lynden Air
employer and place of employment. http://www.regulations.gov. Follow the Cargo states that it needs more time to:
However, if the District Director or instructions for submitting comments. • Review Lockheed Martin Model
Service Center director adjudicates the • Fax: 202–493–2251. 382, 382B, 382E, 382F, and 382G Series
application prior to the expiration of • Mail: U.S. Department of Aircraft Service Manual Publication
this 120-day period and denies the Transportation, Docket Operations, M– (SMP), Supplemental Structural
application for extension of stay, the 30, West Building Ground Floor, Room Inspection Document, SMP 515–C–
employment authorization under this W12–140, 1200 New Jersey Avenue, SE., SSID, Change 1, dated September 10,
paragraph (b)(21) shall automatically Washington, DC 20590. 2007 (referred to the NPRM as the
terminate upon 15 days after the denial • Hand Delivery: U.S. Department of appropriate source of service
decision. The employment Transportation, Docket Operations, M– information for accomplishing the
authorization shall also terminate 30, West Building Ground Floor, Room proposed actions). Lynden Air Cargo
automatically if the employer fails to W12–140, 1200 New Jersey Avenue, SE., states that the service information was
remain a participant in good standing in Washington, DC 20590, between 9 a.m. not made available by the Type
the E-Verify program, as determined by and 5 p.m., Monday through Friday, Certificate holder until December 18,
USCIS in its discretion. except Federal holidays. 2007.
* * * * *
For service information identified in • Comment about the conclusion in
this AD, contact Lockheed Martin the Regulatory Evaluation (located in
Michael Chertoff, Aeronautics Company, 86 South Cobb the docket) that the NPRM does not
Secretary. Drive, Marietta, Georgia 30063. affect intrastate aviation in Alaska.
[FR Doc. E8–2532 Filed 2–12–08; 8:45 am] Examining the AD Docket Lynden Air Cargo states that its military
BILLING CODE 4410–10–P operations in Alaska account for some
You may examine the AD docket on 4.5 million pounds of lift per year.
the Internet at http:// • Review service difficulty reports to
www.regulations.gov; or in person at the validate the presence of an unsafe
DEPARTMENT OF TRANSPORTATION
Docket Management Facility between 9 condition relating to the affected
Federal Aviation Administration a.m. and 5 p.m., Monday through airplanes. Lynden Air Cargo states that
Friday, except Federal holidays. The AD it does not appear that the requirements
14 CFR Part 39 docket contains this proposed AD, the of the NPRM are based upon any unsafe
regulatory evaluation, any comments condition related to a particular type
[Docket No. FAA–2007–0109; Directorate received, and other information. The design.
Identifier 2007–NM–235–AD] street address for the Docket Office It is our intent to address the
RIN 2120–AA64 (telephone 800–647–5527) is in the identified unsafe condition in a timely
ADDRESSES section. Comments will be manner with minimum disruption to
Airworthiness Directives; Lockheed available in the AD docket shortly after industry. We encourage interested
Model 382, 382B, 382E, 382F, and 382G receipt. parties to continue to evaluate the
Series Airplanes FOR FURTHER INFORMATION CONTACT: Carl NPRM and to submit additional
Gray, Aerospace Engineer, Airframe comments with more specific details
AGENCY: Federal Aviation
Branch, ACE–117A, FAA, Atlanta concerning issues that we may need to
Administration (FAA), Department of
Aircraft Certification Office, One Crown evaluate before finalizing decisions on
Transportation (DOT).
Center, 1895 Phoenix Boulevard, suite the proposal. We have determined that
ACTION: Notice of proposed rulemaking such input may be beneficial before
450, Atlanta, Georgia 30349; telephone
(NPRM); reopening of comment period. (770) 703–6131; fax (770) 703–6097. adoption of a final rule. As a result, we
SUMMARY: This document announces a SUPPLEMENTARY INFORMATION: have decided to reopen the comment
reopening of the comment period for the We proposed to amend 14 CFR part period for 45 days to receive additional
above-referenced NPRM. The NPRM 39 with a notice of proposed rulemaking comments.
proposed the adoption of a new (NPRM) for an AD for all Lockheed No part of the regulatory information
airworthiness directive for all Lockheed Model 382, 382B, 382E, 382F, and 382G has been changed; therefore, the NPRM
Model 382, 382B, 382E, 382F, and 382G series airplanes. The NPRM was is not republished in the Federal
series airplanes. That NPRM invites published in the Federal Register on Register.
comments concerning the proposed November 14, 2007 (72 FR 64005). The Comments Due Date
requirements for revising the FAA- NPRM proposed to require revising the
We must receive comments on this
approved maintenance inspection FAA-approved maintenance inspection
AD action by March 31, 2008.
program to include inspections that will program to include inspections that will
give no less than the required damage give no less than the required damage Issued in Renton, Washington, on February
tolerance rating for each structural tolerance rating for each structural 7, 2008.
significant item (SSI), doing repetitive significant item (SSI), doing repetitive Kevin Hull,
inspections to detect cracks of all SSIs, inspections to detect cracks of all SSIs, Acting Manager, Transport Airplane
and repairing cracked structure. This and repairing cracked structure. The Directorate, Aircraft Certification Service.
reopening of the comment period is NPRM action invites comments on the [FR Doc. E8–2742 Filed 2–12–08; 8:45 am]
necessary to provide additional overall regulatory, economic, BILLING CODE 4910–13–P

Proposed Rule: Changes To Requirements Affecting H-2A Nonimmigrants

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8230

Proposed Rules Federal Register

Wednesday, February 13, 2008

number of beneficiaries in the petition absence from the United States of at

Endowment for International Peace and Instituto

H–2A’s three-year period of stay is period of admission to be employed by substantive changes.

departure requirement is inconsistent possession. A. Regulatory Flexibility Act-Initial

TABLE 1.—FARM WORKERS, UNITED STATES, 2002–2006

2002 ................................................................................................................. 885.7 8.81 8.12 8.18

proposed rule as a percentage of a Nonimmigrant Worker, seeking to 8 CFR Part 215

an extension of stay. However, an an approved petition on the PART 215—CONTROLS OF ALIENS

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