67764 Federal Register / Vol. 62, No. 249 / Tuesday, December 30, 1997 / Proposed Rules

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS 1805–96]

RIN 1115–AC72

Tracking Usage of the H–1B and H–2B

Nonimmigrant Classifications

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Proposed rule.

SUMMARY: This rule proposes to amend

the Immigration and Naturalization

Service’s (Service) regulations by

explaining in detail the new method by

which the Service tracks the number of

H–1B and H–2B petitions approved in a

fiscal year and by removing incorrect

references in the regulation regarding

the tracking mechanism. This rule was

written in response to a number of

queries from the public asking how the

Service determines which H–1B and H–

2B petitions are included in the count.

This rule will alleviate much of the

confusion regarding the Service’s

method of counting H–1B and H–2B

petitions.

DATES: Written comments must be

submitted on or before March 2, 1998.

ADDRESSES: Please submit written

comments, in triplicate, to the Director,

Policy Directives and Instructions

Branch, Immigration and Naturalization

Service, 425 I Street, NW., Room 5307,

Washington, DC 20536. To ensure

proper handling, please reference the

INS number 1805–96 in your

correspondence. Comments are

available for public inspection at the

above address by calling (202) 514–3048

to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT:

John W. Brown, Adjudications Officer,

Adjudications Division, Immigration

and Naturalization Service, 425 I Street,

NW., Room 3214, Washington, DC

20536, telephone (202) 514–3240.

SUPPLEMENTARY INFORMATION: The

Immigration Act of 1990 (IMMACT),

among other things, imposed a 65,000

annual numerical limitation on the

number of aliens who may be granted

H–1B visas or accorded such status in

a fiscal year and a 66,000 annual

numerical limitation on the number of

aliens who may be accorded H–2B

status. The Service agreed to track the

number of aliens accorded H–1B and H–

2B status since the Department of State,

the agency which issues nonimmigrant

visa’s to aliens, has no centralized

database to track visa issuance. Further,

an H–1B or H–2B visa may not be issued

to an alien without the Service first

approving Form I–129, Petition for

Nonimmigrant Worker, in the alien’s

behalf and, in addition, some H–1B and

H–2B nonimmigrant aliens are not

required to obtain a nonimmigrant visa.

The Service published a final rule in

the Federal Register on December 2,

1991, at 56 FR 61111, in which the

present tracking system was

implemented. In the preamble to the

rule, the Service advised that the

numerical limitations would apply to

new H–1B and H–2B petitions only and

that petitions filed for extensions of stay

would not be counted, since the alien

beneficiary of the extended petition had

previously been accorded H status. It

was also stated in the preamble to the

final rule that the Service would count

petitions for concurrent employment,

i.e., where a beneficiary holds two H–1B

or H–2B positions at the same time, and

petitions for sequential employment,

i.e., where the beneficiary assumes one

H–1B or H–2B position after another in

the same fiscal year, in the cap. As

stated in the preamble to the final rule

published in December 1991, the reason

for adopting this procedure was

efficiency.

The Service has recently had reason

to revisit its procedures for tracing the

usage of H petitions in general, and the

H–1B category in particular. On August

21, 1996, a preliminary report indicated

that, under the tracking system then in

place, the Service had approved in

excess of 65,000 H–1B petitions for

fiscal year 1996. While attempting to

verify the validity of the preliminary

count, the Service made a number of

observations which culminated in the

publication of this proposed rule.

The most significant observation that

the Service made with respect to its

current tracking system was that, by

counting concurrent employment and

sequential employment, it was actually

counting positions, and not aliens. The

Service has reconsidered its prior

procedure and no longer counts either

sequential or concurrent employment in

the same fiscal year towards the

numerical limitations. The numerical

limitations would now relate solely to

individuals regardless of the number of

H–1B or H–2B positions such persons

hold. This proposed rule would amend

the regulation at 8 CFR 214.2(h)(8)(ii)(A)

to reflect this change. The Service has

made available on a quarterly basis the

usage of H–1B/H–2B numbers. The

Service intends to continue this

practice.

Approved H–1B and H–2B petitions

which are subsequently revoked by the

Service will not be counted in the

numerical limitation. The Service will

run a periodic report containing the

number of revoked petitions and adjust

the numerical count accordingly. In

view of this, petitioners are encouraged

to notify the Service as soon as they

learn that the beneficiary of an H–1B or

H–2B petition does not intend to accept

the petitioner’s offer of employment.

This rule also proposes to amend the

regulation at 8 CFR 214.2(h)(8)(ii)(B)

and (D) which makes reference to the

‘‘system which maintains and assigns

numbers,’’ since the regulatory language

is not accurate. When this regulation

was initially drafted, the Service had

envisioned developing and designing a

system which would count each

petition which it approved and assign

each petition a number. This system

was never developed. Instead, the

Service tracks the number of H–1B and

H–2B petitions which it approves

through its Computer-Linked

Application Information Management

System (CLAIMS) database. The

terminology contained in the current

rule implies that a petition is assigned

a number upon approval. This is

inaccurate. Instead, the Service runs

periodic reports which count the

number of petitions approved for the

fiscal year without assigning a petition

an actual number. There is no system

which keeps a running count of

approved H–1B and H–2B petitions.

This rule also proposes to remove the

paragraph at 8 CFR 214.2(h)(8)(ii)(C)

which makes reference to assigning

numbers to petitions filed in Guam and

the United States Virgin Islands. Since

these petitions are counted in the same

fashion as H petitions filed in the

continental United States, the paragraph

serves no purpose.

Finally, this rule proposes to amend

the regulation at 8 CFR 214.2(h)(8)(ii)(E)

and to redesignate it as 8 CFR

214.2(h)(8)(ii)(D). The regulation

currently provides that, in the event that

the numerical limitation is reached in a

fiscal year, the Service shall reject any

new petitions which are filed with a

notice that numbers are not available

until the next fiscal year. This proposed

rule modifies the regulatory language by

enabling the Service to adopt a different

procedure in the event that rejecting

petitions is determined not to be the

most appropriate action for the Service

to undertake. For example, in the

situation where the numerical limitation

is reached near the end of the fiscal

year, it would not seem prudent to reject

an H–1B petition or H–2B petition filed

for that fiscal year since this procedure

could create unnecessary work for the

Service and an unnecessary hardship on

petitioners in certain situations. The

Service will notify the public through
Federal Register / Vol. 62, No. 249 / Tuesday, December 30, 1997 / Proposed Rules 67765

the publication of a notice in the

Federal Register of any such procedure

should such a situation arise.

Regulatory Flexibility Act

The Commissioner of the Immigration

and Naturalization Service, in

accordance with the Regulatory

Flexibility Act (5 U.S.C. 605(b)), has

reviewed this regulation and, by

approving it, certifies that the rule will

not have a significant economic impact

on a substantial number of small

entities. This regulation merely explains

the system which the Service currently

uses to track the number of H–1B

petition approved in a given fiscal year.

Unfunded Mandates Reform Act of

1995

This rule will not result in the

expenditure by State, local and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more

in any one year, and it will not

significantly or uniquely affect small

governments. Therefore, no actions were

deemed necessary under the provisions

of the Unfunded Mandates Reform Act

of 1995.

Small Business Regulatory Enforcement

Fairness Act of 1996

This rule in not a major rule as

defined by section 804 of the Small

Business Regulatory Enforcement Act of

1996. This rule will not result in an

annual effect on the economy of $100

million or more; a major increase in

costs or prices; or significant adverse

effects on competition, employment,

investment, productivity, innovation, or

on the ability of United States-based

companies to compete with foreignbased companies in domestic and

export markets.

Executive Order 12866

This rule is considered by the

Department of Justice, Immigration and

Naturalization Service, to be a

‘‘significant regulatory action’’ under

Executive Order 12866, section 3(f),

Regulatory Planning and Review.

Accordingly, this regulation has been

submitted to the Office of Management

and Budget for review.

Executive Order 12612

The regulation proposed herein will

not have substantial direct effects on the

States, on the relationship between the

National Government and the States, or

on the distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with Executive Order 12612,

it is determined that this rule does not

have sufficient Federalism implications

to warrant the preparation of a

Federalism Assessment.

Executive Order 12988—Civil Justice

Reform

This rule meets the applicable

standards set forth in sections 3(a) and

3(b)(2) of E.O. 12988.

List of Subjects in 8 CFR Part 214

Administrative practice and

procedure, Aliens, Employment,

Reporting and recordkeeping

requirements.

Accordingly, part 214 of chapter I of

title 8 of the Code of Federal Regulation

is proposed to be amended as follows:

PART 214—NONIMMIGRANT

GLASSES

1. The authority citation for part 214

continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1184,

1186a, 1187, 1221, 1281, 1282; 8 CFR part 2.

2. Section 214.2 is amended by

revising paragraph (h)(8)(ii) to read as

follows:

§ 214.2 Special requirements for

admission, extension, and maintenance of

status.

* * * * *

(h) * * *

(8) * * *

(ii) Procedures. (A) Each alien issued

a visa or otherwise provided

nonimmigrant status under section

101(a)(15)(H)(i)(b) or (ii)(b) of the Act

shall be counted for purposes of the

numerical limit prescribed in section

214(g)(1) of the Act. Requests for

petition extension or an extension of the

alien’s stay, concurrent employment, or

sequential employment within the same

fiscal year shall not be counted against

the numerical limit. The spouse and

children of principal aliens classified as

H–4 nonimmigrant aliens shall not be

counted against the numerical limit.

(B) An alien will be counted against

the annual H–1B or H–2B numerical

limit only after an H–1B or H–2B

petition has been approved on his or her

behalf. An alien will be counted in the

order by which the H–1B or H–2B

petition has been approved on his or her

behalf. An alien on whose behalf an H–

1B or H–2B petition has been denied

will not be counted against the annual

numerical limit.

(C) When an approved petition is not

used because the beneficiary(ies) does

not obtain H–1B or H–2B classification,

the petitioner shall notify the Service

Center Director who approved the

petition that the petition was not used

as soon as the petitioner becomes aware

of the circumstance. The petition shall

be revoked pursuant to paragraph

(h)(11)(ii) of this section.

(D) If the total numbers available in a

fiscal year are used, the Service may

reject and return the petition and the

accompanying fee with a notice that

numbers are not available for the

nonimmigrant classification until the

next fiscal year. The Service, may, in its

discretion, adopt other mechanisms for

processing petitions filed after the

numerical limit has been reached in

order to prevent unnecessary hardship

to the public. The Service shall provide

notice of such new mechanisms through

publication in the Federal Register.

* * * * *

Dated: October 21, 1997.

Doris Meissner,

Commissioner, Immigration and

Naturalization Service.

[FR Doc. 97–33827 Filed 12–29–97; 8:45 am]

BILLING CODE 4410–10–M

DEPARTMENT OF THE TREASURY

Customs Service

19 CFR Parts 123 and 142

RIN 1515–AC16

Land Border Carrier Initiative Program

AGENCY: Customs Service, Treasury.

ACTION: Notice of proposed rulemaking.

SUMMARY: This document proposes to

amend the Customs Regulations to

provide for the Land Border Carrier

Initiative Program (LBCIP), a program

designed to prevent smugglers of illicit

drugs from utilizing commercial land

conveyances for their contraband. The

program provides for agreements

between carriers and Customs in which

the carrier agrees to increase its security

measures and cooperate more closely

with Customs and Customs agrees to

apply special administrative provisions

pertaining to penalty amounts and

expedited processing of penalty actions

if illegal drugs are found on a

conveyance belonging to the

participating carrier. Further, at certain

high-risk locations along the land

border, it is proposed to condition an

importer’s continued use of the Line

Release method of processing entries of

merchandise on the use of carriers/

drivers that participate in the LBCIP.

These proposed regulatory changes are

designed to improve Customs

enforcement of Federal drug laws along

the land border by enhancing its ability

to interdict illicit drug shipments

through additional trade movement

information provided by common