49122 Federal Register / Vol. 73, No. 162 / Wednesday, August 20, 2008 / Proposed Rules 

(11) * * * 

(iii) * * * 

(A) * * * 

(2) The statement of facts contained in 

the petition or on the application for a 

labor certification was not true and 

correct, inaccurate, fraudulent, or 

misrepresented a material fact; or 

* * * * * 

(13) * * * 

(i) * * * 

(B) When an alien in an H 

classification has spent the maximum 

allowable period of stay in the United 

States, a new petition under sections 

101(a)(15)(H) or (L) of the Act may not 

be approved unless that alien has 

resided and been physically present 

outside the United States, except for 

brief trips for business or pleasure, for 

the time limit imposed on the particular 

H classification. Brief trips to the United 

States for business or pleasure during 

the required time abroad are not 

interruptive, but do not count towards 

fulfillment of the required time abroad. 

A certain period of absence from the 

United States of H–2A and H–2B aliens 

can interrupt the accrual of time spent 

in such status against the three-year 

limit. The petitioner shall provide 

information about the alien’s 

employment, place of residence, and the 

dates and purposes of any trips to the 

United States during the period that the 

alien was required to spend time 

abroad. 

* * * * * 

(iv) H–2B and H–3 limitation on 

admission. An H–2B alien who has 

spent 3 years in the United States under 

section 101(a)(15)(H) and/or (L) of the 

Act may not seek extension, change 

status, or be readmitted to the United 

States under section 101(a)(15)(H) and/ 

or (L) of the Act unless the alien has 

resided and been physically present 

outside the United States for the 

immediate prior 3 months. An H–3 alien 

participant in a special education 

program who has spent 18 months in 

the United States under section 

101(a)(15)(H) and/or (L) of the Act; and 

an H–3 alien trainee who has spent 24 

months in the United States under 

section 101(a)(15)(H) and/or (L) of the 

Act may not seek extension, change 

status, or be readmitted to the United 

States under section 101(a)(15)(H) and/ 

or (L) of the Act unless the alien has 

resided and been physically present 

outside the United States for the 

immediate prior 6 months. 

(v) Exceptions. The limitations in 

paragraph (h)(13)(iii) through (h)(13)(iv) 

of this section shall not apply to H–1B, 

H–2B, and H–3 aliens who did not 

reside continually in the United States 

and whose employment in the United 

States was seasonal or intermittent or 

was for an aggregate of six months or 

less per year. In addition, the limitations 

shall not apply to aliens who reside 

abroad and regularly commute to the 

United States to engage in part-time 

employment. An absence from the 

United States can interrupt the accrual 

of time spent as an H–2B nonimmigrant 

against the three-year limit. If the 

accumulated stay is 18 months or less, 

an absence is interruptive if it lasts for 

at least 45 days. If the accumulated stay 

is greater than 18 months, an absence is 

interruptive if it last for at least two 

months. To qualify for this exception, 

the petitioner and the alien must 

provide clear and convincing proof that 

the alien qualifies for such an exception. 

Such proof shall consist of evidence 

such as arrival and departure records, 

copies of tax returns, and records of 

employment abroad. 

* * * * * 

PART 215—CONTROLS OF ALIENS 

DEPARTING FROM THE UNITED 

STATES 

6. The authority citation for part 215 

continues to read as follows: 

Authority: 8 U.S.C. 1104; 1184; 1185 

(pursuant to Executive Order 13323, 

published January 2, 2004), 1365a note, 1379, 

1731–32. 

7. Section 215.9 is added to read as 

follows: 

§ 215.9 Temporary Worker Visa Exit 

Program. 

An alien admitted on certain 

temporary worker visas at a port of entry 

participating in the Temporary Worker 

Visa Exit Program must also depart at 

the end of their authorized period of 

stay through a port of entry participating 

in the program and present designated 

biographic and/or biometric information 

upon departure. U.S. Customs and 

Border Protection will publish a Notice 

in the Federal Register designating 

which temporary workers must 

participate in the Temporary Worker 

Visa Exit Program, which ports of entry 

are participating in the program, which 

biographical and/or biometric 

information would be required, and the 

format for submission of that 

information by the departing designated 

temporary workers. 

Dated: August 11, 2008. 

Michael Chertoff, 

Secretary. 

[FR Doc. E8–19306 Filed 8–19–08; 8:45 am] 

BILLING CODE 9111–97–P 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Part 214 

[CIS No. 2448–08; DHS Docket No. USCIS–

2008–0024] 

RIN 1615–AA82 

Petitions for Aliens To Perform 

Nonagricultural Temporary Services or 

Labor (H–2B): Withdrawal of Proposed 

Rule 

AGENCY: U.S. Citizenship and 

Immigration Services, DHS. 

ACTION: Withdrawal of proposed rule. 

SUMMARY: U.S. Citizenship and 

Immigration Services (USCIS) is 

withdrawing the proposed rule, 

Petitions for Aliens to Perform 

Nonagricultural Temporary Services or 

Labor (H–2B), published on January 27, 

2005, in the Federal Register at 70 FR 

3984. The rule proposed significant 

changes to USCIS’ regulations that were 

designed to increase the effectiveness of 

the H–2B nonimmigrant visa 

classification while providing 

protections for U.S. workers. The H–2B 

nonimmigrant visa classification applies 

to foreign workers to perform 

nonagricultural temporary labor or 

services. The proposed rule would have 

established a one-step petition process 

for U.S. employers seeking H–2B 

temporary workers eliminating the need 

for U.S. employers to apply for a labor 

certification from the Department of 

Labor (DOL); required electronic filing 

of the Petition for a Nonimmigrant 

Worker, Form I–129, within 60 days in 

advance of the requested employment 

start date; eliminated the use of agents 

as H–2B petitioners; and, established 

new management mechanisms allowing 

USCIS to maintain the integrity of the 

program. In light of the public’s 

comments, USCIS is no longer moving 

forward with the proposed rule as 

designed and will publish a new 

proposed rule for public comments. 

DATES: The proposed rule, published on 

January 27, 2005 (70 FR 3984), is 

withdrawn as of August 20, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Hiroko Witherow, Service Center 

Operations, U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security, 20 Massachusetts 

Ave., NW., Washington, DC 20529, 

telephone (202) 272–8410. 

SUPPLEMENTARY INFORMATION: 

I. Purpose of the Proposed Rule 

The H–2 temporary worker program 

has existed without substantial 

modification since 1952. The 


dwashington3 on PRODPC61 with PROPOSALS
Federal Register / Vol. 73, No. 162 / Wednesday, August 20, 2008 / Proposed Rules 49123 

Immigration Reform and Control Act of 

1986 divided H–2 workers into two 

categories: Temporary workers to 

perform agricultural labor or services 

(H–2A), and all other temporary workers 

(H–2B). In 1990, Congress attached a 

limitation on the number of H–2B 

workers, but otherwise the program has 

not significantly changed to 

accommodate employers’ needs or to 

offer worker protections. After 

consulting with DOL and the 

Department of State, and reviewing the 

definitions and procedures used to 

regulate the H–2B nonagricultural 

temporary worker program, USCIS 

determined that the H–2B process 

should be modified to reduce 

unnecessary burdens that hinder 

petitioning employers’ ability to 

effectively use this visa category. The 

proposed rule was published on January 

27, 2005, with its intent being to 

increase efficiency in the program by 

removing existing regulatory barriers. 70 

FR 3984. 

II. Changes Contained in the Proposed 

Rule 

The most significant proposed change 

was a migration to a one-stop 

attestation-based process whereby most 

U.S. employers seeking H–2B temporary 

workers would only be required to file 

one application, the Form I–129, 

Petition for a Nonimmigrant Worker, 

with USCIS. The proposal would have 

reduced the paper-based application 

process by requiring that most Form I–

129 petitions be submitted to USCIS 

electronically through e-filing. The 

proposal would also have required efiled petitions to be filed not more than 

60 days in advance of the employment 

need. The proposed rule also would 

have precluded agents from filing H–2B 

petitions on behalf of the actual H–2B 

employer. Finally, the proposed rule 

included additional changes to ensure 

the integrity of the program through 

enforcement mechanisms. 

III. Comments Received on the 

Proposed Rule 

USCIS received 125 comments on the 

proposed rule during the 60-day 

comment period. The majority of the 

commenters were opposed to many 

changes proposed in the rule. The 

comments are summarized as follows: 

• There were a significant number of 

negative comments regarding the 

proposal to create a one-stop attestationbased process. Some commenters stated 

that the existing labor certification 

process should remain with DOL 

because DOL, not USCIS, is directly 

charged with the protection of U.S. 

workers. Some also expressed concern 

that this change would lead to 

widespread fraud and 

misrepresentation. 

A considerable number of 

commenters were in opposition to the 

proposed change requiring that 

petitioners e-file a petition within 60 

days in advance of the employment 

need. Some raised concern that many 

employers are not necessarily wellversed in the access and use of the 

Internet. 

• A significant number of comments 

were opposed to the proposal to 

eliminate agents. Many commenters 

stressed that agents perform a vital 

function in the H–2B filing process on 

behalf of the employers who are not 

conversant with the applicable laws and 

regulations related to the H–2B program. 

• The majority of the comments 

stressed that the proposed changes 

would result in decreased protections 

for U.S. workers and the likely 

proliferation of fraud within the 

program. 

Based upon a review of the 

rulemaking record as a whole, DHS has 

decided to withdraw the January 27, 

2005, proposed rule and terminate the 

associated proposed rulemaking action. 

DHS, therefore, will not publish specific 

responses to each comment. 

IV. Withdrawal of the Proposed Rule 

For the reasons described in this 

document, DHS is withdrawing the 

proposed rule published on January 27, 

2005 (FR Doc. 05–1240, 70 FR 3984). 

Dated: August 11, 2008. 

Michael Chertoff, 

Secretary. 

[FR Doc. E8–19322 Filed 8–19–08; 8:45 am] 

BILLING CODE 9111–97–P 

DEPARTMENT OF THE TREASURY 

Alcohol and Tobacco Tax and Trade 

Bureau 

27 CFR Part 9 

[Notice No. 90; Docket No. TTB–2008–0009] 

RIN 1513–AB57 

Proposed Expansions of the Russian 

River Valley and Northern Sonoma 

Viticultural Areas (2008R–031P) 

AGENCY: Alcohol and Tobacco Tax and 

Trade Bureau, Treasury. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Alcohol and Tobacco Tax 

and Trade Bureau proposes to expand 

the Russian River Valley and Northern 

Sonoma American viticultural areas in 

Sonoma County, California. The Russian 

River Valley viticultural area proposed 

expansion of 14,044 acres would 

increase the size of that viticultural area 

to 169,028 acres. The Northern Sonoma 

viticultural area proposed expansion of 

approximately 44,244 acres would 

increase the size of that viticultural area 

to 394,088 acres. We designate 

viticultural areas to allow vintners to 

better describe the origin of their wines 

and to allow consumers to better 

identify wines they may purchase. We 

invite comments on this proposed 

change to our regulations. 

DATES: We must receive written 

comments on or before October 20, 

2008. 

ADDRESSES: You may send comments to 

any of the following addresses: 

• http://www.regulations.gov (via the 

online comment form for this notice as 

posted within Docket No. TTB–2008–

0009 at ‘‘Regulations.gov,’’ the Federal 

e-rulemaking portal); or 

• Director, Regulations and Rulings 

Division, Alcohol and Tobacco Tax and 

Trade Bureau, P.O. Box 14412, 

Washington, DC 20044–4412. 

See the Public Participation section of 

this notice for specific instructions and 

requirements for submitting comments, 

and for information on how to request 

a public hearing. 

You may view copies of this notice, 

selected supporting materials, and any 

comments we receive about this 

proposal at http://www.regulations.gov 

within Docket No. TTB–2008–0009. A 

link to that docket is posted on the TTB 

Web site at http://www.ttb.gov/wine/ 

wine_rulemaking.shtml under Notice 

No. 90. You also may view copies of this 

notice, all related petitions, maps or 

other supporting materials, and any 

comments we receive about this 

proposal by appointment at the TTB 

Information Resource Center, 1310 G 

Street, NW., Washington, DC 20220. 

Please call 202–927–2400 to make an 

appointment. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Berry, Alcohol and Tobacco 

Tax and Trade Bureau, Regulations and 

Rulings Division, P.O. Box 18152, 

Roanoke, VA 24014; telephone (540) 

344–9333. 

SUPPLEMENTARY INFORMATION: 

Background on Viticultural Areas 

TTB Authority 

Section 105(e) of the Federal Alcohol 

Administration Act (FAA Act), 27 

U.S.C. 205(e), authorizes the Secretary 

of the Treasury to prescribe regulations 

for the labeling of wine, distilled spirits, 

and malt beverages. The FAA Act 

requires that these regulations, among 


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