This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

49109 

Vol. 73, No. 162 

Wednesday, August 20, 2008 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 204, 214 and 215 

[CIS No. 2432–07; Docket No. USCIS–2007– 

0058] 

RIN 1615–AB67 

Changes to Requirements Affecting H– 

2B Nonimmigrants and Their 

Employers 

AGENCY: U.S. Citizenship and 

Immigration Services, U.S. Customs and 

Border Protection, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Homeland 

Security is proposing to amend its 

regulations affecting temporary nonagricultural workers within the H–2B 

nonimmigrant classification and their 

U.S. employers. This proposed rule 

would modify current limitations with 

respect to petitions for unnamed H–2B 

workers and the period of time that an 

H–2B worker must remain outside the 

United States before he or she would be 

eligible to seek certain nonimmigrant 

status again. In addition, to better 

ensure the integrity of the H–2B 

program, this rule proposes to: Require 

employer attestations; preclude the 

imposition of fees by employers on 

prospective H–2B workers; require 

reimbursement of fees paid by H–2B 

workers to recruiters; preclude the 

change of the employment start date 

after the grant of the temporary labor 

certification; eliminate the process 

whereby H–2B petitions may be 

approved notwithstanding the absence 

of a valid temporary labor certification; 

require employer notifications when H– 

2B workers fail to show up for work, are 

terminated, or abscond from the 

worksite; require certain H–2B workers 

departing the United States to 

participate in a temporary worker visa 

exit pilot program; delegate authority to 

enforce the terms of the H–2B petition 

to the Secretary of Labor (in the event 

the Department and the Department of 

Labor (DOL) work out a mutually 

agreeable delegation of enforcement 

authority from the Department to DOL); 

and bar nationals of countries 

consistently refusing or unreasonably 

delaying repatriation of their nationals 

from obtaining H–2B status. This rule 

also proposes to change the definition of 

‘‘temporary employment’’ to recognize 

that such employment could last up to 

three years. This proposed rule would 

encourage and facilitate the lawful 

employment of eligible foreign 

temporary non-agricultural workers, 

while continuing to safeguard the rights 

of workers. 

DATES: Written comments must be 

submitted on or before September 19, 

2008, in order to be assured of 

consideration. 

ADDRESSES: You may submit comments, 

identified by DHS Docket No. USCIS– 

2007–0058, by any of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Chief, Regulatory 

Management Division, U.S. Citizenship 

and Immigration Services, Department 

of Homeland Security, 111 

Massachusetts Avenue, NW., Suite 

3008, Washington, DC 20529. To ensure 

proper handling, please reference DHS 

Docket No. USCIS–2007–0058 on your 

correspondence. This mailing address 

may also be used for paper, disk, or CD– 

ROM submissions. 

• Hand Delivery/Courier: Regulatory 

Management Division, U.S. Citizenship 

and Immigration Services, Department 

of Homeland Security, 111 

Massachusetts Avenue, NW., 3008, 

Washington, DC 20529. Contact 

Telephone Number (202) 272–8377. 

FOR FURTHER INFORMATION CONTACT: 

Hiroko Witherow, Service Center 

Operations, U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security, 20 Massachusetts 

Avenue, NW., Washington, DC 20529, 

telephone (202) 272–8410. 

SUPPLEMENTARY INFORMATION: 

I. Public Participation 

Interested persons are invited to 

participate in this rulemaking by 

submitting written data, views, or 

arguments on all aspects of this 

proposed rule. Comments that will 

provide the most assistance to the 

Department of Homeland Security 

(DHS), U.S. Citizenship and 

Immigration Services (USCIS), and U.S. 

Customs and Border Protection (CBP) in 

developing these procedures will 

reference a specific portion of the 

proposed rule, explain the reason for 

any recommended change, and include 

data, information, or authority that 

support such recommended change. 

Instructions: All submissions received 

must include the agency name and DHS 

Docket No. USCIS–2007–0058 for this 

rulemaking. All comments received will 

be posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov. Submitted 

comments may also be inspected at the 

Regulatory Management Division, U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, 111 

Massachusetts Avenue, NW., 3rd Floor, 

Washington, DC 20529. 

II. Background 

U.S. employers in seasonal and 

certain other industries have, in the 

past, faced a shortage of U.S. workers 

who are able, willing, and qualified to 

fill temporary non-agricultural jobs, and 

who would be available at the time and 

place needed to perform the work. To 

meet this need, U.S. employers have 

turned to hiring foreign workers. One 

avenue open to such employers is to 

petition for foreign workers who qualify 

within the H–2B nonimmigrant 

classification. Immigration and 

Nationality Act (Act or INA) sec. 

101(a)(15)(H)(ii)(b), 8 U.S.C. 

1101(a)(15)(H)(ii)(b); 8 CFR 

214.2(h)(1)(ii)(D) and (h)(6)(i). 

According to the DOL Employment and 

Training Administration, the top three 

occupations for which U.S. employers 

utilize the H–2B program are landscape 

laborers, housekeeping cleaners, and 

construction workers. 

A. Description of H–2B Nonimmigrant 

Classification 

The H–2B nonimmigrant 

classification applies to foreign workers 

coming to the United States temporarily 

to perform temporary, non-agricultural 

labor or services. INA sec. 

101(a)(15)(H)(ii)(b), 8 U.S.C. 

1101(a)(15)(H)(ii)(b); 8 CFR 214.1(a)(2) 

(H–2B classification designation). Such 

workers may not displace U.S. workers 

who are capable of performing such 


dwashington3 on PRODPC61 with PROPOSALS
49110 Federal Register / Vol. 73, No. 162 / Wednesday, August 20, 2008 / Proposed Rules 

1Section 214(g)(9)(A) of the INA provided that an 

alien who has already been counted toward the 

numerical limitation during fiscal year 2004, 2005, 

or 2006 shall not again be counted toward such 

limitation during fiscal year 2007. The provision 

sunset on September 30, 2007. National Defense 

Authorization Act, sec. 1074, Public Law No. 109–

364 (Oct. 17, 2006). 

services or labor. 8 CFR 214.2(h)(6)(i). In 

addition, their employment may not 

adversely affect the wages and working 

conditions of U.S. workers. Id. 

The total number of aliens who enter 

the United States pursuant to H–2B 

visas or who are accorded H–2B 

nonimmigrant status during either the 

first or last 6 months of a fiscal year is 

limited to 33,000, for a total of 66,000 

for the entire fiscal year.1 INA sec. 

214(g)(1)(B) and (g)(10), 8 U.S.C. 

1184(g)(1)(B) and (g)(10). During the 

past several fiscal years, the demand for 

new H–2B workers has exceeded these 

limits. Moreover, the H–2B cap for each 

half of the fiscal year has been reached 

progressively earlier in recent years and 

prospective employers are thus 

increasingly anxious about their ability 

to secure necessary H–2B workers each 

year. 

A USCIS-approved Form I–129, 

‘‘Petition for Nonimmigrant Worker’’

(hereinafter, ‘‘H–2B petition’’) is 

required before a foreign worker may 

seek H–2B nonimmigrant status. 8 CFR 

214.2(h)(2)(i)(A). Depending on the 

circumstances, the petitioner must be a 

U.S. employer, a U.S. agent, or a foreign 

employer filing through a U.S. agent. 8 

CFR 214.2(h)(6)(iii)(B). With a limited 

exception, an employer currently may 

not file a petition for an H–2B 

temporary worker unless that employer 

has obtained a temporary labor 

certification from the Secretary of Labor 

(or the Governor of Guam for 

employment on Guam). 8 CFR 

214.2(h)(6)(iv)(A) and (h)(6)(v)(A). To 

obtain a temporary labor certification, a 

prospective employer must test the U.S. 

labor market as to the availability of 

qualified U.S. workers and be willing to 

pay the alien a salary that will not 

adversely affect the wages and working 

conditions of similarly employed U.S. 

workers. 20 CFR 655.3(a); 8 CFR 

214.2(h)(6)(iv)(A)(1). Based on the labor 

certification, the H–2B petitioner files 

the H–2B petition with the appropriate 

USCIS service center. See 8 CFR 

214.2(h)(2)(i)(A). If, however, the 

petitioner receives notice from the 

Secretary of Labor that the certification 

cannot be made (referred to as a ‘‘Non 

Determination Notice’’), the petitioner 

nevertheless may file the H–2B petition 

with USCIS, but must include 

countervailing evidence to overcome the 

lack of such certification. 8 CFR 

214.2(h)(6)(iv)(D). 

Under current regulations, an H–2B 

petitioner must, at the time of filing, 

include in its petition the names of all 

beneficiaries, except in emergent 

situations involving multiple 

beneficiaries. See 8 CFR 214.2(h)(2)(iii). 

The H–2B petition also must include 

documentation that each beneficiary 

qualifies for the job offer as specified in 

the labor certification, where such job 

requires any education, training, 

experience, or other special 

requirements. 8 CFR 214.2(h)(6)(vi)(C). 

The H–2B petition must establish that 

the petitioner’s need for the services or 

labor is temporary, regardless of 

whether the underlying job is 

permanent or temporary. 8 CFR 

214.2(h)(6)(ii). The petitioner’s need is 

considered temporary if it is a one-time 

occurrence, a seasonal need, a peak-load 

need, or an intermittent need. 8 CFR 

214.2(h)(6)(ii)(B). One-time occurrence 

employment is where the employer has 

not employed workers to perform the 

services in the past and will not need 

workers to perform the services in the 

future, or where the employer has an 

employment situation that is otherwise 

permanent but a temporary event of 

short duration has created the need for 

a temporary worker. 8 CFR 

214.2(h)(6)(ii)(B)(1). Employment of a 

seasonal nature is recurring 

employment that is tied to a certain time 

of year by a predictable event or pattern 

and requires labor levels far above those 

necessary for ongoing operations. 8 CFR 

214.2(h)(6)(ii)(B)(2). Employment 

involving a peak-load need is where the 

employer regularly employs permanent 

workers to perform the services or labor 

at the place of employment and the 

employer needs to supplement the 

permanent staff on a temporary basis 

tied to a seasonal or short-term demand. 

8 CFR 214.2(h)(6)(ii)(B)(3). Such 

temporary peak-load additions to staff 

may not become a part of the 

petitioner’s regular operation. Id. 

Intermittent need is where an employer 

has not employed permanent or fulltime workers to perform the services or 

labor, but occasionally or intermittently 

needs temporary workers to perform the 

services or labor for short periods. 8 

CFR 214.2(h)(6)(ii)(B)(4). 

As a general rule, the period of the 

petitioner’s need must be less than one 

year, absent extraordinary 

circumstances. 8 CFR 214.2(h)(6)(ii)(B). 

With certain exceptions for commuters 

and workers who do not reside 

continually in the United States and 

whose employment is seasonal, 

intermittent or for six months or less per 

year, an H–2B nonimmigrant may hold 

H–2B nonimmigrant status for a 

maximum period of three years, 

following which he or she must depart 

from the United States for at least six 

months before he or she may again be 

admitted in H–2B or any other status 

under section 101(a)(15)(H) or (L) of the 

INA. 8 CFR 214.2(h)(13)(iv) and (v). 

B. Effective Use of H–2B Nonimmigrant 

Classification 

The H–2B program is most intensively 

used among businesses in seasonal 

industries that frequently have a 

difficult time locating temporary 

workers. USCIS is aware, however, that 

the current H–2B program regulations 

do not accommodate as effectively as 

possible the needs of U.S. employers 

and alien workers who use, or want to 

use, the H–2B program. Therefore, 

USCIS is proposing a number of 

significant changes to the H–2B 

regulations to reduce or eliminate 

burdens and restrictions that hinder 

employers’ ability to effectively use this 

visa category. In addition, USCIS 

proposes to enhance the protection of 

H–2B workers by curtailing abuses 

related to employment fees and visa 

selling that could lead to human 

trafficking and alien worker indenture. 

Additionally, worker protections are 

enhanced through strengthened 

revocation and debarment procedures 

and employer sanctions for a substantial 

or willful failure to meet the terms of 

the attestations. 

III. Proposed Regulatory Changes 

A. Allowing Unnamed Beneficiaries 

USCIS is proposing to amend 8 CFR 

214.2(h)(2)(iii) to allow employers 

petitioning for aliens to fill H–2B 

positions to specify only the number of 

positions sought and not name the 

individual alien(s), except where the 

alien is already present in the United 

States. The H–2B program is overseen 

by three Federal government agencies: 

The Department of Labor (DOL) issues 

the H–2B temporary labor certifications 

and oversees compliance with 

employment laws; USCIS adjudicates 

the H–2B petitions; and, if the petitions 

are approved, the Department of State 

issues the H–2B visas to the workers at 

consulates overseas. In the event that 

the Department and DOL work out a 

mutually agreeable delegation of 

authority from DHS to DOL, 

enforcement of the terms of the petition 

will be the responsibility of DOL. As 

this entire process, from temporary 

labor certification to issuance of an H–

2B visa, can take up to several months, 

many H–2B employers often start the 

temporary labor certification and 


dwashington3 on PRODPC61 with PROPOSALS
Federal Register / Vol. 73, No. 162 / Wednesday, August 20, 2008 / Proposed Rules 49111 

petitioning processes several months 

ahead of the actual date of stated 

employment need. Having to name 

beneficiaries that far in advance 

increases the likelihood that those 

beneficiaries may ultimately be 

unavailable to fill the positions. By 

eliminating the requirement to name 

beneficiaries outside of the United 

States on the petition, USCIS believes 

that H–2B employers would have more 

flexibility to recruit foreign workers 

who are actually interested in and 

available on the date of stated need. 

Conforming amendments have been 

made to proposed 8 CFR 

214.2(h)(6)(vi)(C). 

B. Post-H–2B Waiting Period 

Once an H–2B worker has reached the 

three-year ceiling on H–2B 

nonimmigrant status, current 

regulations require the worker to wait 

six months outside the United States 

immediately prior to filing for an 

extension, change of status, or 

readmission to the United States in H–

2B status or other status under section 

101(a)(15)(H) or (L) of the INA. 8 CFR 

214.2(h)(13)(iv). This rule proposes to 

reduce the required absence period to 

three months. This would reduce the 

amount of time employers would be 

required to be without the services of 

needed workers while not offending the 

fundamental temporary nature of 

employment under the H–2B program. 

C. Prohibiting H–2B Petitions or 

Admissions for Nationals of Countries 

That Consistently Refuse or Delay 

Repatriation 

An alien worker who violates his or 

her status may be subject to 

administrative proceedings before an 

immigration judge to remove the alien 

from the United States. See INA sections 

237(a)(1)(C), 239(a), 240(a); 8 U.S.C. 

1227(a)(1)(C), 1229(a), 1229a(a). A 

removal order typically includes the 

name of the country to which the alien 

is to be removed, which usually is the 

alien’s country of nationality. In order to 

effectuate the removal order, DHS must 

ensure that the alien has the necessary 

travel documents (e.g., passport) to 

return to the named country and that 

the country agrees to receive the alien. 

DHS has faced an ongoing problem of 

countries refusing to accept or 

unreasonably delaying the acceptance of 

their nationals who have been ordered 

removed. To combat this problem, 

Congress gave the Secretary of State the 

authority to discontinue the issuance of 

visas to citizens, subjects, nationals, and 

residents of a country upon notification 

by the Secretary of Homeland Security 

that the government of that country 

refuses to accept their return. INA sec. 

243(d), 8 U.S.C. 1253(d); see also Illegal 

Immigration Reform and Immigrant 

Responsibility Act of 1996 (IIRIRA) sec. 

307, Pub. L. No. 104–208, 110 Stat. 3456 

(September 30, 1996). 

In an effort to further address this 

problem, this rule proposes to preclude 

USCIS from approving a petition filed 

on behalf of one or more aliens from 

countries that the Secretary of 

Homeland Security has found to have 

consistently refused to accept or 

unreasonably delayed the prompt return 

of their citizens, subjects, nationals or 

residents. See proposed 8 CFR 

214.2(h)(6)(i)(D); see also INA secs. 

214(a)(1), 215(a)(1) and 243(d). The 

Secretary will periodically review 

determinations that countries have 

consistently refused to accept or 

unreasonably delayed accepting their 

nationals to ensure that the 

determinations are still justified. These 

provisions are intended to encourage 

more nations to promptly accept the 

return of nationals subject to a final 

order of removal. 

DHS expects that the proposals in this 

rule will increase the flexibility and 

attractiveness of the H–2B visa program, 

together with the modernizing proposals 

the DOL is making in its H–2B rule. 

DHS hereby invites comments from the 

public on additional or alternative 

approaches to the repatriation problem 

described above, such as restricting 

eligibility to nationals of countries that 

provide the most cooperation to the 

United States in administering the 

program, rather than excluding those 

whose governments provide the least 

cooperation. DHS is particularly 

interested in additional ways to promote 

cooperation by foreign governments in 

matters of security, particularly in 

connection with travel and immigration, 

such as the country’s willingness to 

share passport information and criminal 

records of aliens who are seeking 

admission to, or are present in, the 

United States under this program. 

D. Temporary Labor Certifications 

1. Consideration of Petitions Lacking an 

Approved Temporary Labor 

Certification 

Upon proper application by a 

prospective employer, a temporary labor 

certification is granted if the Secretary 

of Labor or the Governor of Guam (for 

employment on Guam) determines that 

the H–2B non-agricultural temporary 

worker will not displace U.S. workers 

and the H–2B employment will not 

adversely affect the wages and the 

working conditions of U.S. workers. 

Currently, if a petitioner receives a 

notice from the Secretary of Labor or the 

Governor of Guam that certification 

cannot be made, a petition containing 

countervailing evidence to overcome 

this lack of certification may be filed 

with USCIS. 8 CFR 214.2(h)(6)(iv)(D), 

(E), (h)(6)(v)(C), (D). In any case where 

USCIS decides that approval of the H–

2B petition is warranted despite the 

issuance of a Non-Determination Notice 

by the Secretary of Labor or the 

Governor of Guam, the approval must be 

certified by the USCIS Administrative 

Appeals Office (AAO) pursuant to 8 

CFR 103.4. 8 CFR 

214.2(h)(9)(iii)(B)(2)(ii). 

It is the view of DHS that, when the 

Secretary of Labor or the Governor of 

Guam decides that she cannot make 

such a labor certification determination, 

it would not be appropriate for USCIS 

to review that decision by adjudicating 

a petition that lacks an approved 

temporary labor certification. Thus, this 

rule proposes to eliminate USCIS’s 

current authority to adjudicate H–2B 

petitions where the Secretary of Labor 

or the Governor of Guam has not 

granted a temporary labor certification. 

Under this proposed rule, an H–2B 

petition may not be filed with USCIS 

unless the Secretary of Labor or the 

Governor of Guam has granted a 

temporary labor certification. 

Accordingly, this rule proposes to make 

conforming amendments to 8 CFR 

214.2(h)(1)(ii)(D), (h)(6)(iii)(C), 

(h)(6)(iii)(E), (h)(6)(iv)(A), (h)(6)(iv)(D), 

(h)(6)(iv)(E), (h)(6)(v)(A), (h)(6)(v)(A)(2), 

(h)(6)(v)(C), (h)(6)(v)(D), (h)(6)(vi)(A), 

(h)(6)(vi)(B), and (h)(9)(iii)(B)(2) to 

reflect elimination of this current 

practice. 

2. Employment Start Date 

At present, USCIS allows employers 

to file a Form I–129 with a start date 

that is later than what is stated on the 

approved temporary labor certification, 

as long as the requested employment 

period on the petition is within the 

validity period of the approved 

temporary labor certification. This rule 

proposes to preclude this practice, as 

the unintended consequences of this 

policy are that it unfairly benefits 

employers with longer seasonal or 

temporary employment windows, 

invalidates the labor market test 

certified by DOL in the approved 

application for labor certification, and 

can be easily exploited by certain 

employers to gain an advantage in 

obtaining H–2B visas from the limited 

pool of 66,000 available each fiscal year. 

Under this proposed rule, petitioners, 

with a limited exception discussed 

below, would not be able to request an 

employment start date on Form I–129 


dwashington3 on PRODPC61 with PROPOSALS
49112 Federal Register / Vol. 73, No. 162 / Wednesday, August 20, 2008 / Proposed Rules 

that is different than the date of 

employment need listed on the 

accompanying approved temporary 

labor certification. Proposed 8 CFR 

214.2(h)(6)(iv)(D). 

USCIS has determined that the 

current practice of allowing employers 

to file a Form I–129 with a start date 

that is later than what is stated on the 

temporary labor certification unfairly 

benefits employers with longer seasonal 

or temporary employment windows as 

they have the advantage of being able to 

file petitions before other employers 

with a shorter timeframe. An employer 

may, for example, submit a labor 

certification application requesting 

workers from January 1 to October 31; 

this labor certification could be filed as 

early as September 1 of the previous 

year, because the application for labor 

certification may be submitted to DOL 

as early as 120 days prior to the stated 

date of need. However, if the 33,000 cap 

for the first half of that fiscal year (i.e., 

October 1–March 31) is reached before 

the employer has an opportunity to file 

a petition with USCIS (note that the cap 

for the first half of FY08 was reached on 

September 27, 2007), the earliest time 

when this employer will be able to 

receive H–2B workers is April, when an 

additional new 33,000 H–2B visas 

become available. Upon receipt of the 

approved labor certification for the 

employment from January 1 to October 

31, the employer may currently file a 

Form I–129 petition with USCIS 

indicating that it will need a workforce 

from April 1 to October 31 in order to 

receive the necessary H–2B visa 

numbers allocated for the second half of 

the fiscal year. However, submission of 

a petition with a start date later than the 

start date of stated need on the approved 

labor certification in such a 

circumstance, and thus potentially 

receiving workers for at least the latter 

part of the employer’s period of need, 

may currently only be undertaken by 

employers with a lengthy, multiplemonth need for temporary workers. 

Employers in industries whose need for 

workers arises only during a very brief 

seasonal period or for any shorter period 

of time during the spring or summer 

cannot take advantage of this because 

their period of need is too short to allow 

them the same flexibility in shifting 

employment start dates. While such 

employers with shorter periods of need 

must wait until later to apply for a labor 

certification, employers with longer 

periods of need, as in the example 

above, are able to get a head start in 

requesting H–2B visas from the second 

half of the fiscal year. This does not 

ensure a fair and equitable distribution 

of the H–2B visa numbers among all H–

2B employers throughout the year. 

Furthermore, an appropriate labor 

market test must be conducted prior to 

the determination by the Secretary of 

Labor as to whether there are any U.S. 

workers available and capable of 

performing the temporary services or 

labor and whether the H–2B 

employment will adversely affect the 

wages and working conditions of U.S. 

workers. According to DOL, the labor 

market test will be invalidated if the 

employer changes the employment start 

date after the temporary labor 

certification is granted (e.g., due to 

qualified U.S. worker unavailability on 

the start date provided on the labor 

certification application). USCIS agrees 

with DOL on this issue. 

The H–2B classification is defined to 

include nonimmigrant foreign workers 

who perform non-agricultural temporary 

services or labor if United States 

workers who are capable of performing 

such services or labor cannot be found. 

INA sec. 101(a)(15)(H)(ii)(B), 8 U.S.C. 

1101(a)(15)(H)(ii)(b). The effect of a 

grant of a labor certification is to certify 

that qualified workers in the United 

States are not available ‘‘at the time and 

place needed to perform the work’’ for 

which H–2B workers are being 

requested and that the H–2B 

employment will not adversely affect 

the wages and working conditions of 

similarly employed United States 

workers. See 20 CFR 655.3(b). As the 

availability of temporary U.S. workers 

could change over short periods of time, 

the result of the labor market test could 

be different if the employment start date 

is changed after a labor certification is 

approved. Therefore, the grant of the H–

2B status based on a petition which 

contains a later employment start date 

than what was stated on the approved 

labor certification could have the 

practical effect of precluding otherwise 

available United States workers from 

filling the position in question, which is 

in violation of the statute. 

Allowing employers to file a Form I–

129 with a date that is later than what 

is stated on the temporary labor 

certification, as long as the employment 

period is within the validity period of 

the approved temporary labor 

certification, also can be easily 

exploited by employers whose period of 

need is actually shorter than the period 

stated in the labor certification 

application, but who state a longer need 

in order to move up the date on which 

they can file their H–2B petition. Given 

how quickly the H–2B cap for each half 

of the fiscal year has been reached in 

recent years (e.g., in FY 2008, the cap 

for the second half of the fiscal year was 

reached on January 2, 2008), the earlier 

an employer can file its petition the 

better are its chances of getting H–2B 

visas for its workers. 

In order to ensure a fair and equitable 

distribution of the 33,000 H–2B visa 

numbers becoming available each half 

fiscal year, this rule proposes to 

generally preclude a change of the 

requested employment start date on a 

Form I–129 from the date of 

employment need listed on the 

accompanying temporary labor 

certification. See proposed 8 CFR 

214.2(h)(6)(iv)(D). With the one limited 

exception stated below, if an employer 

has a reason to change the requested 

employment start date after a temporary 

labor certification was previously 

granted, it must obtain a new temporary 

labor certification with the new 

employment start date prior to filing a 

Form I–129 petition with USCIS. Id. 

The exception to this prohibition on 

petitioners’ requesting an employment 

start date on Form I–129 that is different 

than the date on the accompanying 

approved temporary labor certification 

would apply when an amended H–2B 

petition, accompanied by the previously 

approved temporary labor certification 

and a copy of the original petition 

approval notice, is filed at a later date 

due to the unavailability of the 

originally requested number of workers. 

The proposed rule would permit the 

amended H–2B petition securing the 

remaining number of workers that was 

originally approved in the labor 

certification to state an employment 

start date that is later than what is stated 

in the accompanying temporary labor 

certification. See Section L—

Substitution of Beneficiaries and 

proposed 8 CFR 214.2(h)(6)(viii). 

E. Payment of Fees by Beneficiaries To 

Obtain H–2B Employment 

1. Grounds for denial or revocation on 

notice 

USCIS has found that certain labor 

recruiters and U.S. employers are 

charging potential H–2B workers job 

placement fees in order to obtain H–2B 

employment. Such workers are coming 

to the United States to fill positions that 

U.S. workers are unwilling or unable to 

fill and are frequently doing so in order 

to improve their own difficult economic 

circumstances at home. USCIS has 

learned that payment by these workers 

of job placement-related fees not only 

results in further economic hardship for 

them, but also, in some instances, has 

resulted in their effective indenture. In 

an effort to protect H–2B workers from 

such abuses, this rule proposes to 

provide USCIS with the authority to 


dwashington3 on PRODPC61 with PROPOSALS
Federal Register / Vol. 73, No. 162 / Wednesday, August 20, 2008 / Proposed Rules 49113 

deny or revoke upon notice any H–2B 

petition if it determines that the 

petitioner knows or reasonably should 

know that the alien beneficiary has paid 

or has agreed to pay any fee or other 

form of compensation, whether directly 

or indirectly, to the petitioner or the 

petitioner’s agent, or to any facilitator, 

recruiter, or similar employment 

service, in connection with obtaining 

the H–2B employment. See proposed 8 

CFR 214.2(h)(6)(i)(B); see also 8 CFR 

214.2(h)(11)(iii)(A)(5) (revocation on 

notice). To further ensure that an alien 

in such a situation has not improperly 

incurred any expenses or debt in 

connection with obtaining employment 

in the United States under the H–2B 

program, the rule also proposes that an 

H–2B petitioner be required to 

demonstrate, as a precondition to 

approval of any subsequent H–2B 

petition, that it has reimbursed the alien 

beneficiary in full for any such fees or 

other form of compensation (other than 

those for which the petitioner may be 

reimbursed, as described in proposed 8 

CFR 214.2(h)(6)(i)(B)(3)). Those fees or 

other form of compensation also include 

those paid to the petitioner, an agent, 

facilitator, or similar employment 

service whether directly or indirectly, in 

connection with obtaining H–2B 

employment, whether or not such alien 

has opted to seek H–2B employment 

with another employer, as permitted 

under proposed 8 CFR 214.2(h)(6)(i)(B). 

For instance, the petitioner may submit 

a copy of the financial transaction 

record or a receipt signed by the 

beneficiary as evidence of 

reimbursement. 

An H–2B employer will be subject to 

these provisions if it knows or 

reasonably should know that its H–2B 

employees have been charged a fee by 

anyone (other than those fees for which 

the petitioner may be reimbursed, as 

described in proposed 8 CFR 

214.2(h)(6)(i)(B)(3)) related to their 

placement as an H–2B worker with the 

employer. For example, a recruiter 

advertises on the Internet or through 

other means to prospective H–2B 

employers that it can place temporary 

alien workers with such employers at no 

or minimal cost to the prospective 

employers. In such a case, if there is 

evidence that the prospective employer 

knew or reasonably should have known 

about the advertisement, it is reasonable 

to expect it to question the recruiter 

generally as to how it is able to provide 

such free services, and in particular, 

whether the alien workers it finds have 

been or will be charged any direct or 

indirect fee in connection with such 

placement. Failure to make such 

reasonable inquiries will not relieve the 

employer of its obligations under these 

provisions. Similarly, if an H–2B 

employer learns, directly or indirectly, 

that a prospective H–2B worker has 

been asked to pay a fee or other thing 

of value to a recruiter/facilitator or other 

downstream party in connection with 

his/her employment with the U.S. 

employer then the H–2B employer, in 

such a situation, will be deemed to be 

on notice that its prospective employees 

have been or may be asked to pay a job 

placement related fee by this recruiter/ 

facilitator or other downstream party, 

and can be expected to take reasonable 

steps to ascertain whether this is in fact 

true. 

USCIS believes that this proposal will 

help minimize immigration fraud and 

protect against other abuses that have 

occurred when such aliens have been 

required to pay such employment fees, 

including petition padding (i.e., the 

filing of requests for more workers than 

needed), visa selling, and human 

trafficking. While this proposal would 

provide necessary protections against 

the alien worker’s indenture, this 

proposal would not preclude the 

payment of any finder’s or similar fee by 

the prospective employer to a recruiter 

or similar service, provided that such 

payment is not assessed directly or 

indirectly against the alien worker. 

Further, this reimbursement 

requirement would not apply to the 

actual cost of transportation to the 

United States, or payment of any 

government-specified fees required of 

persons seeking to travel to the United 

States, such as those required by a 

foreign government for issuance of 

passports and by the U.S. Department of 

State for issuance of visas, provided that 

any such costs incurred be the lower of 

the fair market value or the actual cost 

of the service (unless the prospective 

employer has agreed with the alien to 

pay such fees and/or transportation 

costs). The prospective employer would 

be responsible, however, for the 

payment of any related indirect fees, 

attorneys’ fees, travel agent fees, and 

fees for assistance to prepare visa 

application forms. 

To provide protection to H–2B 

workers who are in the United States 

based upon an approved petition that is 

later revoked pursuant to proposed 8 

CFR 214.2(h)(6)(i)(B), this rule proposes 

a thirty-day grace period during which 

time such workers may apply for an 

extension of stay, depart the United 

States, or find new employment. During 

the thirty-day period, such workers, if 

they do not otherwise violate the terms 

and conditions of their nonimmigrant 

admission in H–2B classification, would 

not be unlawfully present in the United 

States, but, instead, would be in an 

authorized period of stay. See INA sec. 

212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B). This 

proposed rule, therefore, would prevent 

such persons from accruing a period of 

‘‘unlawful presence’’ that might 

otherwise subject such persons to the 

statutory bar on admissibility under that 

section of the INA. 

Further, to minimize the costs to H–

2B workers who are affected by the 

revocation of a petition pursuant to 

proposed 8 CFR 214.2(h)(6)(i)(B), this 

rule also proposes to require employers 

who know or reasonably should know 

the payment by the beneficiary of any 

such job placement or related fees (other 

than those for which the petitioner may 

be reimbursed, as described in 8 CFR 

214.2(h)(6)(i)(B)(3)), to pay such 

workers’ reasonable transportation 

expenses to return to their last place of 

foreign residence, and, as described 

above, to reimburse the alien for any 

fees or other compensation of which the 

employer knew or reasonably should 

have known (other than, in certain 

cases, transportation costs and any 

government-mandated passport, visa 

and inspection fees) paid in connection 

with obtaining H–2B employment with 

the petitioner. Proposed 8 CFR 

214.2(h)(6)(i)(B). 

2. Employer Attestation 

USCIS recognizes that some H–2B 

petitioners, particularly those 

petitioning for the first time and without 

the benefit of counsel, may not 

appreciate the limitations on H–2B 

employment imposed by the regulations 

or by the representations in the H–2B 

petition and the accompanying 

application for temporary labor 

certification. This rule proposes to 

require H–2B petitioners to include with 

their petitions an attestation, certified as 

true and accurate by the petitioner and 

signed under penalty of perjury, that 

during the period of intended 

employment for which the petition is 

approved, the petitioner will not 

materially change the information 

provided on the Form I–129 and the 

temporary labor certification, including, 

but not limited to, the alien workers’

duties, place of employment, nor the 

entities for which the duties will be 

performed. Proposed 8 CFR 

214.2(h)(6)(i)(C). USCIS believes that 

this requirement will apprise petitioners 

of their responsibilities and obligations, 

and, at the same time, help prevent the 

employment of H–2B alien workers in a 

manner that conflicts with the 

representations upon which approval of 

the petition is based. In the event that 

a material change does occur in the 


dwashington3 on PRODPC61 with PROPOSALS
49114 Federal Register / Vol. 73, No. 162 / Wednesday, August 20, 2008 / Proposed Rules 

terms and conditions of employment 

specified in the original petition, 

petitioners are currently obligated to file 

a new petition under 8 CFR 

214.2(h)(2)(i)(E). 

As an anti-fraud and worker 

protection measure to complement the 

proposed changes to 8 CFR 

214.2(h)(6)(i)(B), USCIS is further 

proposing in 8 CFR 214.2(h)(6)(i)(C)(2) 

that the petitioning employer also 

include in its attestation a statement 

that it has not received, nor intends to 

receive, any fee, compensation, or any 

other form of remuneration from the 

workers it intends to hire or from any 

person, agency or other entity in 

connection with H–2B employment. 

The petitioner would also be required to 

attest to whether it has used a facilitator, 

recruiter, or any other similar 

employment service to locate foreign 

workers to fill the positions covered by 

the H–2B petition, and if so, to provide 

the names of such facilitators, recruiters, 

or placement services and whether it 

believes, to the best of its knowledge, 

that any fees were paid or asked of its 

H–2B workers by such third parties. 

Finally, the petitioner would be 

required to attest to whether USCIS has 

previously determined that the H–2B 

petitioner knew, or reasonably should 

have known that any fee, compensation, 

or other form of remuneration has been 

collected, directly or indirectly, in 

connection with the filing by the 

petitioner of any previous H–2B petition 

on behalf of an alien, and if so, whether 

the petitioner has reimbursed that alien 

in full for any such fees, compensation, 

or other remuneration (other than, in 

certain cases described above, certain 

government-mandated passport, visa 

and inspection fees and/or 

transportation costs). 

F. Denial of Petition and Revocation of 

Approval of Petition 

USCIS is proposing to revise 8 CFR 

214.2(h)(10)(ii) and 8 CFR 

214.2(h)(11)(iii)(A)(2) to clarify USCIS’

authority to issue a notice of denial or 

revocation of a Form I–129 if USCIS 

determines that the statements on the 

Form I–129 petition or application for 

labor certification are inaccurate, 

fraudulent, or misrepresented a material 

fact. 

G. Employer Notifications to DHS of H–

2B No-Show, Termination, or 

Abscondment 

USCIS also proposes to add 8 CFR 

214.2(h)(6)(i)(E) to require petitioners to 

provide notification to DHS within 48 

hours in the following instances: an H–

2B worker fails to report to work within 

five days of the date of the employment 

start date on the H–2B petition or within 

five days of the start date established by 

his or her employer, whichever is later; 

the non-agricultural labor or services for 

which H–2B workers were hired is 

completed more than 30 days early; or 

an H–2B worker absconds from the 

worksite or is terminated prior to the 

completion of non-agricultural labor or 

services for which he or she was hired. 

This proposal would ensure that an 

approved H–2B petition filed by an 

employer is closed out when the basis 

for the alien’s status terminates and that 

USCIS is made aware of the change in 

employment status. The rule also 

proposes that the petitioner notify DHS 

beginning on a date and in a manner 

specified via notice published in the 

Federal Register. 

To enforce the notification provision, 

the rule proposes to require employers 

to retain evidence (e.g., a photocopy) of 

the notification for a one-year period. 

See proposed 8 CFR 214.2(h)(6)(i)(E). 

Additionally, the rule proposes to add a 

provision setting forth the 

circumstances in which an H–2B worker 

may be found to be an absconder, thus 

defining a term that would otherwise 

vary in interpretation from one 

employer to the next, possibly to the 

detriment of the alien worker. See 

proposed 8 CFR 214.2(h)(6)(i)(E). The 

definition employs the same five-day 

period used to trigger a notification 

requirement when the alien does not 

report to work at the beginning of the 

petition period. 

H. Violations of H–2B Status 

Currently, the regulations governing 

the H–2A classification include a 

provision regarding the consequences to 

aliens for violating H–2A status. See 8 

CFR 214.2(h)(5)(viii)(A). The regulations 

governing the H–2B classification do not 

contain such a provision. USCIS has 

determined that there is no reason for 

this disparity. In order to further the 

integrity of the H–2B program, DHS is 

proposing to add a new provision in the 

H–2B regulations at 8 CFR 

214.2(h)(6)(ix) that would preclude a 

new grant of H–2B status where the 

alien worker violated the conditions of 

H–2B status, other than through no fault 

of his or her own, within the five years 

prior to adjudication of the new H–2B 

petition by USCIS. 

I. Temporary Worker Visa Exit Program 

Pilot 

The Secretary of Homeland Security 

is authorized to prescribe conditions for 

the admission of nonimmigrant aliens 

under section 214 of the INA. Section 

235 of the INA provides for the 

inspection of applicants for admission. 

Pursuant to 8 CFR 235.1(h)(1), 

nonimmigrant aliens who are admitted 

to the United States, unless otherwise 

exempt, are issued Form I–94, ‘‘Arrival/ 

Departure Record,’’ as evidence of the 

terms of admission. Once admitted into 

the United States, nonimmigrant aliens 

are required to comply with all the 

conditions of their stay, depart the 

United States before the expiration of 

the period of authorized stay, and 

surrender the departure portion of the 

Form I–94 upon departure from the 

United States. Section 215 of the INA 

provides the authority for departure 

control for any person departing from 

the United States. Additionally, 8 CFR 

part 215 provides the regulations for 

controls of aliens departing from the 

United States. Specifically, 8 CFR 

215.2(a) allows for DHS, at its 

discretion, to require any alien 

departing from the United States to be 

examined under oath and to submit for 

official inspection all documents in the 

alien’s possession. 

Available statistics indicate that a 

significant number of nonimmigrant 

aliens either do not turn in their Form 

I–94 upon departure or overstay his or 

her authorized period of stay. DHS 

intends to strengthen its departure 

control recordkeeping system. On 

August 10, 2007, the Administration 

announced that it would establish a new 

land-border exit system for guest 

workers, starting on a pilot basis. 

In order to ensure that temporary 

agricultural workers depart the United 

States within the authorized period, on 

February 13, 2008, DHS published a 

notice of proposed rulemaking to amend 

its regulations regarding the H–2A 

nonimmigrant classification, in which it 

proposed to institute a temporary 

worker visa exit pilot program and to 

require certain H–2A temporary 

agricultural workers to participate in 

this program. 73 FR 8230. Under the 

proposed program, an H–2A alien 

admitted at a port of entry participating 

in the program must also depart through 

a port of entry participating in the 

program and present designated 

biographic and/or biometric information 

upon departure at the conclusion of 

their authorized period of stay. 

This rule proposes to expand this 

temporary worker visa exit pilot 

program to the H–2B classification by 

requiring an H–2B alien admitted at a 

port of entry participating in the 

program to depart through a port of 

entry participating in the program and 

to present designated biographic and/or 

biometric information upon departure at 

the conclusion of the authorized period 

of stay. CBP would publish a Notice in 

the Federal Register designating which 


dwashington3 on PRODPC61 with PROPOSALS
Federal Register / Vol. 73, No. 162 / Wednesday, August 20, 2008 / Proposed Rules 49115 

temporary workers must participate in 

the program, which ports of entry are 

participating in the program, which 

biographic and/or biometric information 

would be required, and the format for 

submission of that information by the 

departing designated temporary 

workers. The pilot program exit system 

would ensure that the designated 

temporary workers depart when their 

period of authorized stay expires and 

would provide a foundation for the 

comprehensive land border exit system 

for guest workers proposed by the 

Administration in August 2007. DHS 

requests comments on the establishment 

of the proposed pilot program. 

DHS previously conducted exit pilot 

programs at selected air and sea ports of 

entry through the United States Visitor 

and Immigrant Status Indicator 

Technology (US–VISIT) Program. See 69 

FR 46556. Those pilots began in August 

2004 and concluded in May 2007. US–

VISIT also conducted a limited pilot 

program at selected land borders to test 

radio frequency technology. See 70 FR 

44934. That pilot did not collect 

information from aliens departing the 

United States. 

The pilot program exit system 

proposed under this rule will utilize any 

applicable lessons learned from the US–

VISIT pilot programs. DHS will 

continue to coordinate these screening 

programs to ensure both security and 

efficiency of the programs. 

J. Temporary Need 

Under current regulations the period 

of a petitioner’s need for H–2B workers 

‘‘must be a year or less although there 

may be extraordinary circumstances 

where the temporary services or labor 

might last longer than one year.’’ 8 CFR 

214.2(h)(6)(ii)(B). USCIS has determined 

that the general one-year limit contained 

in the current definition of a petitioner’s 

temporary need for the services or labor 

performed by an H–2B alien, coupled 

with the ‘‘extraordinary circumstances’’

restriction on periods of need lasting 

longer than a year, is unnecessarily 

limiting on the employment 

opportunities that may otherwise 

qualify for H–2B classification. See 8 

CFR 214.2(h)(6)(ii)(B). This rule 

therefore proposes to amend the current 

definition of ‘‘temporary services or 

labor.’’ Under the proposed rule, a job 

would be defined to be temporary where 

the employer needs a worker to fill the 

job for a limited period of time. The 

term ‘‘limited period of time’’ is in turn 

defined as a period of need that will end 

in the near, definable future. As under 

the current regulations, USCIS would 

generally consider a period of temporary 

need to be limited to one year or less, 

but the proposed rule eliminates the 

‘‘extraordinary circumstances’’

restriction on periods longer than a year 

and explicitly provides that such a 

period could last up to three years. 

USCIS is proposing this change 

because there are some employers who 

may need temporary workers for a 

specific project, such as the 

construction of a specific building, 

structure (e.g., bridge, power plant) or 

other development, which will have a 

definable end point but may require 

more than one year to complete. Under 

this proposal, an employer’s need for 

the duties to be performed by H–2B 

workers can be considered temporary if 

it is a one-time occurrence and does not 

exceed three years. An employer with a 

multiple-year need is, however, 

required to retest the labor market 

annually and obtain a temporary labor 

certification annually. This contrasts 

with the nature of temporary work in 

the agricultural sector performed under 

the H–2A visa program, which generally 

is seasonal. USCIS believes that a more 

flexible rule that generally limits 

temporary work to one year but 

explicitly allows it to last up to three 

years better comports with the nature of 

temporary work in the H–2B context but 

is not at this time necessary in the H–

2A context. 

This rule also proposes to make a 

conforming amendment to 8 CFR 

214.2(h)(9)(iii)(B)(1). 

K. Interruptions in Accrual Towards 3- 

Year Maximum Period of Stay 

An alien’s total period of stay in H–

2B nonimmigrant status may not exceed 

three years. 8 CFR 214.2(h)(15)(ii)(C). In 

H–2A nonimmigrant status, there are 

certain periods of time spent outside the 

United States that are deemed to ‘‘stop 

the clock’’ towards the accrual of the 

three-year limit. 8 CFR 

214.2(h)(5)(viii)(C). USCIS has 

determined to apply the same standard 

to H–2B nonimmigrant status. This will 

also clarify what constitutes continuous 

presence in H–2B nonimmigrant status. 

See proposed 8 CFR 214.2(h)(13)(i)(B) 

and (h)(13)(v). 

L. Substitution of Beneficiaries 

USCIS understands that there are 

instances when an employer is not 

successful in finding and/or bringing 

from abroad the intended number of 

workers, as approved on the temporary 

labor certification and the Form I–129. 

In a continued and subsequent effort to 

fill vacant positions, an employer may 

be able to find workers it could hire 

who are currently legally in the United 

States. USCIS’ current regulations 

regarding the substitution of H–2B 

beneficiaries do not provide a process 

for an employer to substitute 

beneficiaries with aliens who are 

currently in the United States. 8 CFR 

214.2(h)(2)(iv). This rule proposes to redesignate this paragraph as paragraph 

(h)(6)(viii) and provides a clarified 

process based on possible situations that 

an H–2B employer may encounter. See 

proposed 8 CFR 214.2(h)(6)(viii). 

M. Employer Sanctions 

Section 214(c)(14)(A)(i) of the INA 

provides DHS with the authority to 

impose certain administrative remedies 

(including civil monetary penalties) as it 

deems appropriate if DHS finds, after 

notice and an opportunity for a hearing, 

a substantial failure to meet any of the 

conditions of the H–2B petition or a 

willful misrepresentation of a material 

fact in such petition. Section 

214(c)(14)(A)(ii) of the INA, in turn, 

provides DHS with the authority to 

deny petitions filed with respect to an 

offending employer under section 204 

or 214(c)(1) of the INA during a period 

of at least one year, but not more than 

five years, if DHS finds, after notice and 

an opportunity for a hearing, a 

substantial failure to meet any of the 

conditions of the H–2B petition or a 

willful misrepresentation of a material 

fact in such petition. Under this 

provision, petitions for workers in the H 

(except for H–1B1), L, O and P–1 

nonimmigrant visa classifications may 

be barred. See INA sec. 214(c)(1), 8 

U.S.C. 1184(c)(1). 

DHS interprets section 214(c)(14)(B) 

of the INA, in conjunction with 

214(c)(14)(A) of the INA, to permit DHS 

to delegate to DOL the authority to make 

such a finding and impose the 

administrative remedies authorized by 

section 214(c)(14)(i) of the INA. DHS is 

currently in discussions with DOL 

concerning whether to delegate 

authority to DOL to establish an 

enforcement process to investigate 

employers’ compliance with H–2B 

requirements, including new 

requirements in proposed 8 CFR 

214.2(h)(6)(i)(B) and (C), and to seek 

remedies for violations disclosed by any 

resulting investigations. This proposed 

rule describes potential immigrant and 

nonimmigrant petition debarment 

procedures USCIS could institute in the 

event that DHS and DOL reach a 

mutually agreeable delegation of 

enforcement authority from DHS to 

DOL. See proposed 8 CFR 204.5(o) and 

8 CFR 214.1(k). 

USCIS seeks comment on other means 

to encourage employer compliance with 

the terms and conditions of petitions to 

DHS as well as filings with other 

governmental agencies. 


dwashington3 on PRODPC61 with PROPOSALS
49116 Federal Register / Vol. 73, No. 162 / Wednesday, August 20, 2008 / Proposed Rules 

N. Miscellaneous Changes 

USCIS is proposing to amend 8 CFR 

214.2(h)(6)(iii)(B), 

214.2(h)(6)(v)(E)(2)(iii), and 

214.2(h)(6)(vii) to correct typographical 

errors. USCIS is also proposing to 

amend 8 CFR 214.2(h)(8)(ii)(A) to codify 

the current numerical counting 

procedures for the H–2B classification. 

IV. Rulemaking Requirements 

A. 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. 

B. Small Business Regulatory 

Enforcement Fairness Act of 1996 

This rule is not a major rule as 

defined by section 804 of the Small 

Business Regulatory Enforcement Act of 

1996. This rule will not result in an 

annual effect on the economy of $100 

million or more; a major increase in 

costs or prices; or significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

on the ability of United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

C. Executive Order 12866 

This rule has been designated as 

significant under Executive Order 

12866. Thus, under section 6(a)(3)(C) of 

the Executive Order, USCIS is required 

to prepare an assessment of the benefits 

and costs anticipated to occur as a result 

of this regulatory action. A complete 

analysis of the costs and benefits of this 

rule is available in the docket for this 

rule at www.regulations.gov in 

rulemaking Docket No. USCIS–2007–

0058. The impacts of the changes 

proposed in this rule are summarized as 

follows: 

• Filing volumes. The number of 

petitions filed by H–2B employers is 

expected to increase, but the annual 

volume of petitions processed will not 

change because the maximum number 

of available visas will not change, 

absent action from Congress. Therefore, 

the increased volume will result in more 

petitions being returned without 

depositing their fee payment or 

reviewing the petition. 

• Decreased processing times. The 

average USCIS processing time for an 

H–2B petition of around 60 days will 

decrease as a result of petitioners not 

being required to name the individual 

alien on initial H–2B petitions. USCIS 

will not have to perform an Interagency 

Border Inspection System (IBIS) name 

check, removing the largest source of 

delays in the processing of H–2B 

petitions. 

• Increased flexibility for longer-term 

projects. By eliminating the 

‘‘extraordinary circumstances’’

restriction on periods longer than a year 

and explicitly providing that such a 

period could last up to three years, this 

proposed rule would benefit employers 

who need workers for a specific project 

that will take longer than one year to 

complete. 

• No effect on labor pool. Because of 

the statutory maximum on the annual 

number of H–2B visas available, this 

rule will result in no increase in the 

availability of temporary seasonal 

workers. There may be some slight 

benefit from helping employers fill jobs 

and find workers more efficiently, but 

businesses will still be constrained by a 

limited labor supply. 

• More attractive program. The 

administrative improvements proposed 

in this rule are intended to make 

employers more likely to participate in 

the program. This may cause some 

employers who currently hire seasonal 

workers who are not properly 

authorized to seek to replace those 

workers with lawful workers. 

• Better control and monitoring of 

employees. By requiring an employer to 

notify USCIS quickly after the employer 

terminates an alien’s employment, 

immigration authorities will have better 

information regarding the presence in 

the U.S. of an alien without legal 

immigration status to determine his or 

her whereabouts for enforcement 

measures. 

• No changes in fee collections. Only 

those H–2B petitions received before the 

maximum annual number of H–2B visas 

is reached are adjudicated and the fee 

check deposited. Petitions not received 

before the maximum annual number is 

reached are rejected. Because the total 

number of H–2B visas available per year 

will not increase and the total number 

of workers requested already greatly 

exceeds the number of H–2B visas 

available, fees will not increase because 

there will be no increase in Form I–129 

filings that are processed. 

• Increase in petitions filed. The 

administrative improvements proposed 

by this rule are expected to result in 

more petitions for H–2B workers being 

submitted to USCIS. Therefore, the 

aggregate burden imposed on the public 

may increase in relation to the 

additional respondents who will file a 

Form I–129 as a result of this rule’s 

proposed changes. However, since the 

total number of workers requested 

already greatly exceeds the number of 

H–2B visas available, more petitions 

will not be processed and/or approved. 

• Repatriation provision effects will 

be slight. This rule proposes to prohibit 

approval of an H–2B petition for a 

worker from a country that consistently 

denies or unreasonably delays 

repatriation of its citizen, subjects, 

nationals, or residents. The current 

impact of this proposed change is 

expected to be negligible, since very few 

H–2B workers are from countries DHS 

believes may see an impact from this 

provision. In addition, since the total 

number of workers requested exceeds 

the number of H–2B visas available, 

such impacts as may occur would 

represent transfers from one country’s 

workers to another. 

• Costs of exit registration 

requirement is low. Under the proposed 

rule, certain aliens admitted on H–2B 

visas must comply with the DHS 

Biometric Exit Pilot. An alien admitted 

at a port of entry participating in the 

program must depart through a port of 

entry participating in the program and 

present designated biographic and or 

biometric information upon departure at 

the conclusion of their authorized 

period of stay. The annual undiscounted 

costs of the time for H–2B employees to 

exit as required under this rule is 

estimated to be around $136,500. 

• Restrictions on recruitment or 

placement fees—added compliance 

costs to petitioning firms. Petitioners 

must demonstrate that they have 

reimbursed alien beneficiaries in full for 

any such fees or other form of 

compensation (other than those for 

which the petitioners may be 

reimbursed) or risk denial of their 

petition. Most foreign worker recruiters 

charge each H–2B employee about 

$500.00 (inclusive of visa fees and some 

other fees) and USCIS believes most H–

2B workers use a recruiter, or adviser of 

some sort in their home country. Some 

companies provide discounts to repeat 

customers for their placement fee and 

offer referral fees to workers who refer 

their friends and family to the program. 

Most of the recruiting companies refund 

or do not collect fees if the applicant’s 

visa is denied at the embassy. An 

employer, on the other hand, pays from 

$500 to $4,000, per H–2B employee, 

including expenses, depending on the 

complexity of the situation, the home 

country, and the skills needed for the 

position. By barring petitions when the 

alien has reimbursed the petitioner for 

recruitment or job placement fees or 


dwashington3 on PRODPC61 with PROPOSALS
Federal Register / Vol. 73, No. 162 / Wednesday, August 20, 2008 / Proposed Rules 49117 

2U.S. Department of Commerce, Economics and 

Statistics Administration, U.S. Census Bureau, at 

http://www.census.gov/prod/ec02/ec0223sg1t.pdf. 

Page 9. 

requiring a showing in a future petition 

that the petitioner has reimbursed the 

alien for such fees, this rule will 

effectively ban the payment of fees by 

the alien beneficiary above the visa fees, 

travel expenses and other normal 

expenses. Since the majority of H–2B 

employees are estimated to pay such 

fees, and such practices are expected to 

continue, this will result in a transfer of 

those costs to employers. If the entire 

$500 fee is considered a recruitment or 

placement fee, the estimated costs of 

this requirement is about $4,500 per 

employer, based on an average of 9 

employees sponsored by each 

participating employer, or about $33 

million total for all 66,000 H–2B 

employees per year. 

• Added transportation cost 

negligible. The impact of requiring 

employers to pay workers’

transportation expenses to return to 

their last place of foreign residence 

when there is a determination that they 

knew or reasonably should have known 

about the payment by the beneficiary of 

any job placement or related fees is 

expected to be negligible, because 

employers would be expected to 

reimburse the alien before being 

subjected to this sanction. 

• Ramifications for firms that collect 

a fee from the employee. This rule will 

have an impact on employee recruiters, 

although the exact effects are not 

certain. USCIS has no data on the 

number of firms that recruit workers in 

foreign countries to come to the United 

States as H–2B employees, but the 

majority of H–2B workers are believed 

to use such a service. The proposal to 

reject petitions where there have been 

such fees charged the employee could 

have substantial ramifications for these 

firms, because their collecting a fee from 

the employee will put the employee at 

risk of being determined ineligible for 

the benefit for which they are assisting 

the employee in obtaining. 

• Reduced government burden and 

costs. This rule is expected to reduce 

costs for the government by terminating 

the review of petitions approved based 

on countervailing evidence and the 

related mandatory H–2B reviews. 

Employees handling these reviews will 

be able to focus on eliminating 

application and petition backlogs for 

other benefits. 

D. Regulatory Flexibility Act—Initial 

Regulatory Flexibility Analysis 

The Regulatory Flexibility Act of 

1980, 5 U.S.C. 601–612, as amended by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 (Pub. 

L. 104–121), requires Federal agencies 

to conduct a regulatory flexibility 

analysis which describes the impact of 

the proposed rule on small entities 

whenever an agency is publishing a 

notice of proposed rulemaking such as 

this one. 

1. Description of and, where feasible, an 

estimate of the number of small entities 

to which the proposed rule will apply 

a. Regulated entities 

The four industries that are dominant 

users of the H–2B program are the 

landscaping, hotel, construction, and 

forestry industries, according to 

Department of Labor data on the 

participants in the employment-based 

visa program. The Small Business 

Administration (SBA) Small Business 

Size Regulations at 13 CFR part 121 

provide standards for how large a forprofit concern can be and still qualify as 

a small business for Federal 

Government programs, based on the 

firm’s average annual receipts and or the 

average employment of a firm. The SBA 

standards indicate that firms in 

landscaping, forestry, and hotels with 

average gross annual sales below $6.5 

million are small businesses. For 

building contractors, the small business 

size guideline is maximum sales of $31 

million and 500 employees. 

b. Number of small entities to which the 

proposed rule will apply 

Based on the above definitions, the 

U.S. Census Bureau’s 2002 Economic 

Census reported that approximately 99.9 

percent of employers in the construction 

industry, 95 percent in the forestry and 

landscaping industry, and 90.8 percent 

of those in the accommodation and food 

services industry were small 

businesses.2 If the proportion of small 

employers participating in the H–2B 

program is similar to the overall market, 

these figures imply that, of the 15,000 

Form I–129 filings per year for H–2B 

employees, at least 14,000 will be filed 

by small businesses looking to hire a 

seasonal worker. Therefore, this rule 

applies mainly to small businesses. 

2. Description of the projected reporting, 

recordkeeping and other compliance 

requirements of the proposed rule, 

including an estimate of the classes of 

small entities that will be subject to the 

requirement and the type of professional 

skills necessary for preparation of the 

report or record 

a. Paperwork Reduction Act 

The proposed rule adds a new 

‘‘reporting’’ or ‘‘recordkeeping’’

requirement within the meaning of the 

Paperwork Reduction Act. The rule does 

not require professional skills for the 

preparation of ‘‘reports’’ or ‘‘records’’

under that Act. 

The mechanism and parameters of the 

absconder reporting requirement are 

proposed in this rule at 8 CFR 

214.2(h)(6)(i)(E)(1). The actual reporting 

requirements will be imposed when the 

Federal Register notice instructing 

approved petitioners on how, where, 

and what to report in accordance with 

that section is published. The 

Paperwork Reduction Act requirements 

will be complied with along with 

approval of that notice at that time after 

the remainder of the requirements of 

this rule have taken effect. DHS will 

obtain OMB approval and a new OMB 

control number of the requirements 

established at that time. 

b. New Reporting Requirement 

Reporting requirements will under 8 

CFR 214.2(h)(6)(i)(E)(1) of this rule be 

provided via notice published in the 

Federal Register. This rule also adds 

recordkeeping requirements, because 

the petitioner will also be required to 

retain evidence of notification for a oneyear period beginning from the date of 

the notification. DHS has no basis for 

estimating the cost of this new 

requirement on H–2B employers at this 

time and requests further comment on 

the actual costs or expenditures, if any, 

of the impact on firms as a result of this 

new reporting and recordkeeping 

requirement and how that impact may 

differ or vary for small entities. 

3. Identification of federal rules that 

may duplicate, overlap or conflict with 

the proposed rule 

DHS is unaware of any duplicative, 

overlapping, or conflicting federal rules. 

However, there are areas of interplay 

and dependency between this rule and 

those of the U.S. Department of Labor 

(DOL). For example, a proposed rule 

was recently published by DOL 

proposing changes that comport with 

this rule and vice versa. 73 FR 29942 

(May 22, 2008). As noted below, DHS 

seeks comments and information about 

duplicative rules, as well as any other 

state, local, or industry rules or policies 

that impose similar requirements as 

those in this proposed rule. Comments 

pointing out provisions of this rule that 

duplicate, contradict, or are better 

suited for inclusion in the regulations of 

another Federal agency are welcome. 


dwashington3 on PRODPC61 with PROPOSALS
49118 Federal Register / Vol. 73, No. 162 / Wednesday, August 20, 2008 / Proposed Rules 

4. Description of any significant 

alternatives to the proposed rule that 

accomplish the stated objectives of 

applicable statutes and that minimize 

any significant economic impact of the 

proposed rule on small entities, 

including alternatives considered, such 

as: (1) Establishment of differing 

compliance or reporting requirements or 

timetables that take into account the 

resources available to small entities; (2) 

clarification, consolidation, or 

simplification of compliance and 

reporting requirements under the rule 

for such small entities; (3) use of 

performance rather than design 

standards; (4) any exemption from 

coverage of the rule, or any part thereof, 

for such small entities 

Alternatives considered. The proposal 

in this rule that provides that petitions 

where a recruitment or finder’s fee paid 

by an employee will be denied, may 

have an impact on a substantial number 

of small entities engaged in the foreign 

worker recruiting business. As a result, 

to regulate the practice of charging the 

alien beneficiary a placement or finder’s 

fee in the home country, DHS 

considered the following alternatives. 

1. Prohibit the sponsoring employer from 

passing along any fees or expenses 

associated with finding, petitioning for, and 

hiring the employee through payroll 

deductions, or any other methods. This 

requirement would mirror the requirements 

proposed by DOL that would prohibit 

employers from passing any of the expenses 

associated with obtaining a labor certification 

on to the employee. This option was not 

proposed because USCIS felt that imposing 

this requirement would have no effect on the 

practice of charging H–2B employees in the 

home country, which is the practice that has 

been the subject of numerous fraud 

complaints that the change is intending to 

address. Further, USCIS research indicates 

that most employers do not pass their 

administrative costs for finding or hiring the 

employee on to the employee, thus that 

restriction would serve no purpose. 

2. Establish a maximum allowable 

recruitment fee. This option was not adopted 

for the proposed rule because USCIS has 

insufficient data on which to base such a fee. 

The maximum or reasonable recruiting fee 

would need to be based on the market value 

for the services provided to the alien 

beneficiary. An informal guideline has been 

suggested that if the fee is so high that the 

applicant would be tempted to stay longer 

than the visa expiration to make it worth his 

while, then the fee is exorbitant. However, 

defining a fee standard is not subjective. 

USCIS could not establish a valid fee amount 

without a thorough analysis, and the 

available information on the foreign worker 

recruiting industry is not sufficiently 

complete so as to afford such an analysis. 

USCIS feels that the employer would be in 

a stronger negotiating position than the alien 

to determine the proper fee. By establishing 

that the employer must reimburse the 

employee for the fee, or have the petition 

rejected or revoked, USCIS believes 

exorbitant fees will not be paid. 

3. Maintain status quo, and propose no 

provisions regarding employee paid fees. 

USCIS has seen numerous reports recently of 

recruiters advertising that they can place 

temporary alien workers with such 

employers at no or minimal cost to the U.S. 

employers, and of employees being subjected 

to extortion or exorbitant fees. Therefore, 

some action was deemed necessary in the H–

2B rulemaking context to provided added 

protections to workers while increasing the 

flexibility of the program for employers. 

4. Fines. DHS considered promulgating 

regulatory authority to impose a fine of 

several thousand dollars against an agent or 

employer in the event that an agent and/or 

the employer were found to have knowledge 

of aliens being charged exorbitant fees or 

otherwise subject to abusive practices. The 

fine would depend upon the number of 

aliens involved. The agent or employer 

would be barred from being able to file any 

H–2B petitions with USCIS for two years. 

This option was not proposed because the 

level of the fine would be difficult to 

determine and the amount established could 

be viewed as arbitrary. Also, the level of fee 

to consider as exorbitant and practices to be 

considered abusive would have to be 

researched considerably for this provision to 

be effective. 

5. Questions for Comment To Assist 

Regulatory Flexibility Analysis 

Please provide comment on any or all 

of the provisions in the proposed rule 

with regard to: 

a. The impact of the provision(s) 

(including any benefits and costs), if 

any; and 

b. What alternatives, if any, DHS 

should consider, as well as the costs and 

benefits of those alternatives, paying 

specific attention to the effect of the rule 

on small entities in light of the above 

analysis. In particular, please provide 

the above information with regard to the 

following sections of the proposed rule: 

i. The new reporting requirements on 

H–2B employers, including the time 

frame for reporting in 8 CFR 

214.2(h)(6)(i)(E). 

ii. The requirement for petitioners to 

reimburse H–2B workers under 8 CFR 

214.2(h)(6)(i)(B). 

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 

materials, including, materials or 

requests for access to information; and 

recordkeeping. 

Please describe ways in which the 

rule could be modified to reduce any 

costs or burdens for small entities 

consistent with the Immigration and 

Nationality Act’s requirements. 

Please describe whether and how 

technological developments could 

reduce the costs of implementing and 

complying with the rule for small 

entities or other operators. 

Please provide any information 

quantifying the economic benefits of: 

a. Reducing delays in the petition, 

application, and approval process. 

b. Reducing the time required for an 

H–2B worker to be out of the country. 

c. Encouraging employers that 

currently hire temporary 

nonagricultural workers who are not 

properly authorized to work in the 

United States to replace those workers 

with legal workers. 

d. Minimizing immigration fraud and 

protecting against abuses that occur 

when aliens are required to pay 

employment fees. 

Please identify all relevant federal, 

state or local rules that may duplicate, 

overlap or conflict with the proposed 

rule. In addition, please identify any 

industry rules or policies that already 

require compliance with the 

requirements of the DHS proposed rule. 

E. Provisions to Which the Regulatory 

Flexibility Act Does Not Apply 

CBP is also seeking comments 

through this rule with respect to a pilot 

program that would require that aliens 

admitted on certain temporary worker 

visas at a port of entry must depart 

through a port of entry participating in 

the program. Although there may be 

costs associated with participation in 

this program, the aliens impacted by 

this portion of the rule are not 

considered ‘‘small entities,’’ as that term 

is defined in 5 U.S.C. 601(6). Since the 

regulation will require the aliens to 

comply with the pilot program, rather 

than placing a requirement on the 

employers, the employers are not 

directly impacted by this provision of 

the proposed rule. Employers, including 

small entities, are free to offer assistance 

to their H–2B workers in complying 

with this requirement if they choose to 

do so. However, the employer’s 

assumption of any costs inherent with 

complying with this requirement on 

behalf of their workers is voluntary and, 

therefore, not subject to the Regulatory 

Flexibility Act. 

F. Executive Order 13132 

This rule 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 


dwashington3 on PRODPC61 with PROPOSALS
Federal Register / Vol. 73, No. 162 / Wednesday, August 20, 2008 / Proposed Rules 49119 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, it is determined that this 

rule does not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. 

G. Executive Order 12988 

This rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988. 

H. Paperwork Reduction Act 

This rule does not impose any new 

reporting or record-keeping 

requirements. This rule requires that a 

petitioner submit Form I–129, seeking to 

classify an alien as an H–2B 

nonimmigrant. This form has been 

previously approved for use by the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act. The OMB control number for this 

collection is 1615–0009. 

However, this rule requires that 

certain H–2B workers departing the 

United States participate in a temporary 

worker visa exit pilot program. This 

requirement will add to the number of 

respondents approved by OMB for the 

information collections in OMB control 

number 1600–0006, U.S. Visitor 

Immigrant Status and Indicator 

Technology (US–VISIT). When this rule 

is final, DHS will submit a request for 

a non-substantive change to OMB to 

account for this requirement’s added 

burden. 

List of Subjects 

8 CFR Part 204 

Administrative practice and 

procedure, Immigration, Reporting and 

recordkeeping requirements. 

8 CFR Part 214 

Administrative practice and 

procedure, Aliens, Cultural exchange 

programs, Employment, Foreign 

officials, Health professions, Reporting 

and recordkeeping requirements. 

8 CFR Part 215 

Administrative practice and 

procedure, Aliens, Travel restrictions. 

Accordingly, chapter I of title 8 of the 

Code of Federal Regulations is proposed 

to be amended as follows: 

PART 204—IMMIGRANT PETITIONS 

1. The authority citation for part 204 

is revised to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 

1154, 1182, 1184, 1186a, 1255, 1641; 8 CFR 

part 2. 

2. Section 204.5 is amended by 

adding paragraph (o) to read as follows: 

§ 204.5 Petitions for employment-based 

immigrants. 

* * * * * 

(o) Denial of petitions under section 

204 of the Act based on a finding by the 

Department of Labor. Upon a finding by 

the Department of Labor pursuant to 

section 214(c)(14)(A) of the Act that a 

petitioner substantially failed to meet 

any of the conditions of the H–2B 

petition or otherwise failed to provide 

H–2B status, or willfully misrepresented 

a material fact in such petition, USCIS 

may deny any employment-based 

immigrant petitions filed by that 

petitioner for a period of at least 1 year 

but not more than 5 years. The period 

of such bar to petition approval shall be 

based on the severity of the violation or 

violations. The decision to deny 

petitions, the time period for the bar to 

petitions, and the reasons for the time 

period will be explained in a written 

notice to the petitioner. 

PART 214—NONIMMIGRANT CLASSES 

3. The authority citation for part 214 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 

1184, 1185 (pursuant to Executive Order 

13323, published January 2, 2004), 1186a, 

1187, 1221, 1281, 1282, 1301–1305; 1372; 

1379; 1731–32; sec. 14006, Pub. L. 108–287; 

sec. 643, Pub. L. 104–208; 110 Stat. 3009–

708; section 141 of the Compacts of Free 

Association with the Federated States of 

Micronesia and the Republic of the Marshall 

Islands, and with the Government of Palau, 

48 U.S.C. 1901, note, and 1931, note, 

respectively. 

4. Section 214.1 is amended by 

adding paragraph (k) to read as follows: 

§ 214.1 Requirements for admission, 

extension, and maintenance of status. 

* * * * * 

(k) Denial of petitions under section 

214(c) of the Act based on a finding by 

the Department of Labor. Upon a 

finding by the Department of Labor 

pursuant to section 214(c)(14)(A) and 

(B) of the Act that a petitioner 

substantially failed to meet any of the 

conditions of the H–2B petition or 

otherwise failed to provide H–2B status, 

or willfully misrepresented a material 

fact in such petition, USCIS may deny 

any petition filed by that petitioner for 

nonimmigrant status under section 

101(a)(15)(H) (except for status under 

section 101(a)(15)(H)(i)(b1)), (L), (O), 

and (P)(i) of the Act for a period of at 

least 1 year but not more than 5 years. 

The period of such bar to petition 

approval shall be based on the severity 

of the violation or violations. The 

decision to deny petitions, the time 

period for the bar to petitions, and the 

reasons for the time period will be 

explained in a written notice to the 

petitioner. 

5. Section 214.2 is amended by: 

a. Revising paragraph (h)(1)(ii)(D); 

b. Revising paragraph (h)(2)(iii); 

c. Redesignating paragraph (h)(2)(iv) 

as paragraph (h)(6)(viii), and by 

reserving paragraph (h)(2)(iv); 

d. Revising paragraph (h)(6)(i); 

e. Revising paragraph (h)(6)(ii)(B) 

introductory text; 

f. Revising the word ‘‘amendable’’ to 

read ‘‘amenable’’ in the second sentence 

in paragraph (h)(6)(iii)(B); 

g. Adding the word ‘‘favorable’’

immediately after the phrase ‘‘has 

obtained a’’ in paragraph (h)(6)(iii)(C); 

h. Adding the word ‘‘favorable’’

immediately after the phrase ‘‘After 

obtaining a’’ in paragraph (h)(6)(iii)(E); 

i. Revising paragraph (h)(6)(iv)(A); 

j. Revising paragraph (h)(6)(iv)(D); 

k. Removing paragraph (h)(6)(iv)(E); 

l. Revising paragraph (h)(6)(v)(A); 

m. Removing and reserving 

paragraphs (h)(6)(v)(C) and (D); 

n. Adding the word ‘‘States’’

immediately before ‘‘and’’ in the first 

sentence in paragraph (h)(6)(v)(E)(2)(iii); 

o. Revising paragraph (h)(6)(vi)(A); 

p. Removing and reserving paragraph 

(h)(6)(vi)(B); 

q. Revising paragraph (h)(6)(vi)(C); 

r. Removing the period at the end of 

paragraph (h)(6)(vi)(D), and adding a ‘‘; 

or’’ in its place; 

s. Revising the word ‘‘or’’ to read ‘‘to’’

in the first sentence in paragraph 

(h)(6)(vii); 

t. Revising newly designated 

paragraph (h)(6)(viii); 

u. Adding new paragraph (h)(6)(ix); 

v. Adding new paragraph (h)(6)(x); 

w. Revising paragraph (h)(8)(ii)(A); 

x. Revising paragraph (h)(9)(iii)(B)(1); 

y. Revising paragraph (h)(10)(ii); 

z. Revising paragraph 

(h)(11)(iii)(A)(2); 

aa. Revising paragraph (h)(13)(i)(B); 

bb. Revising paragraph (h)(13)(iv); and 

by 

cc. Revising paragraph (h)(13)(v). 

The revisions read as follows: 

§ 214.2 Special requirements for 

admission, extension, and maintenance of 

status. 

* * * * * 

(h) * * * 

(1) * * * 

(ii) * * * 

(D) An H–2B classification applies to 

an alien who is coming temporarily to 

the United States to perform nonagricultural work of a temporary or 

seasonal nature, if there are not 

sufficient workers who are able, willing, 

qualified, and available at the time of 

application for a visa and admission to 


dwashington3 on PRODPC61 with PROPOSALS
49120 Federal Register / Vol. 73, No. 162 / Wednesday, August 20, 2008 / Proposed Rules 

the United States and at the place where 

the alien is to perform such services or 

labor. This classification does not apply 

to graduates of medical schools coming 

to the United States to perform services 

as members of the medical profession. 

The temporary or permanent nature of 

the services or labor to be performed 

must be determined by USCIS. This 

classification requires a temporary labor 

certification issued by the Secretary of 

Labor or the Governor of Guam prior to 

the filing of a petition with USCIS. 

* * * * * 

(2) * * * 

(iii) Naming beneficiaries. H–1B, H–

1C, and H–3 petitions must include the 

name of each beneficiary. Except as 

provided in this paragraph (h), all H–2A 

and H–2B petitions must include the 

name of each beneficiary who is 

currently in the United States, but need 

not name any beneficiary who is not 

currently in the United States. Unnamed 

beneficiaries must be shown on the 

petition by total number. If all of the 

beneficiaries covered by an H–2A or H–

2B temporary labor certification have 

not been identified at the time a petition 

is filed, multiple petitions for 

subsequent beneficiaries may be filed at 

different times but must include a copy 

of the same temporary labor 

certification. Each petition must 

reference all previously filed petitions 

associated with that temporary labor 

certification. 

(iv) [Reserved.] 

* * * * * 

(6) * * * 

(i) Petition—(A) H–2B nonagricultural temporary worker. An H–2B 

non-agricultural temporary worker is an 

alien who is coming temporarily to the 

United States to perform temporary 

services or labor, is not displacing 

qualified United States workers 

available to perform such services or 

labor, and whose employment is not 

adversely affecting the wages and 

working conditions of United States 

workers. 

(B) Prohibition on fee collection from 

alien beneficiaries. 

(1) Denial or revocation of petition. 

No fee or other compensation (either 

direct or indirect) may be collected from 

a beneficiary of an H–2B petition by a 

petitioner, agent, facilitator, recruiter, or 

similar employment service in 

connection with an offer or condition of 

H–2B employment (other than the lower 

of the actual transportation costs or fair 

market value of such transportation 

costs and any government-mandated 

passport, visa or inspection fees, if the 

employer has not agreed with the alien 

to pay such costs and fees). If USCIS 

determines that the petitioner has 

collected, or entered into an agreement 

to collect, such fee or compensation or 

that the petitioner knows or reasonably 

should know that the beneficiary has 

paid or agreed to pay any facilitator, 

recruiter, or similar employment service 

in connection with obtaining the H–2B 

employment, the H–2B petition will be 

denied or revoked on notice. 

(2) Effect of petition revocation. Upon 

revocation of an H–2B petition based 

upon paragraph (h)(6)(i)(B)(1) of this 

section, the alien beneficiary’s stay will 

be authorized and the alien will not 

accrue any period of unlawful presence 

under section 212(a)(9) of the Act for a 

30-day period following the date of the 

revocation for the purpose of departure 

or extension of stay based upon a 

subsequent offer of employment. The 

employer shall be liable for the alien 

beneficiary’s reasonable costs of return 

to his or her last place of foreign 

residence abroad, unless such alien 

obtains an extension of stay based on an 

approved H–2B petition filed by a 

different employer. 

(3) Reimbursement as condition to 

approval of future H–2B petitions. 

Where it has been determined that a fee 

or other compensation (either direct or 

indirect) was collected from a 

beneficiary of an H–2B petition by the 

petitioner, agent, facilitator, recruiter, or 

similar employment service in 

connection with an offer or condition of 

H–2B employment (other than the lower 

of the actual transportation costs or fair 

market value of such transportation 

costs and any government-mandated 

passport, visa or inspection fees, if the 

employer has not agreed with the alien 

to pay such costs and fees), and the H–

2B petitioner knew, or reasonably 

should have known such payment by 

the beneficiary, the H–2B petitioner 

must demonstrate to the satisfaction of 

USCIS that the petitioner has 

reimbursed the alien in full for such 

fees, compensation, or other 

remuneration as a condition to approval 

of any subsequent H–2B petition filed 

by such petitioner. 

(C) Petitioner’s attestation. A petition 

must include an attestation by the 

petitioner, certified as true and accurate 

by an appropriate official of the 

petitioner, of the following: 

(1) During the period of intended 

employment for which the petition is 

approved, neither the alien workers’

duties, place of employment, nor the 

entities for which the duties will be 

performed will expand beyond the 

related information provided on the 

Form I–129 and labor certification. 

(2) Whether it received, directly or 

indirectly, any fee or other form of 

compensation from any alien 

beneficiary or has any arrangement or 

intends to have an arrangement for 

remuneration, direct or indirect, from 

any recruiter, facilitator or similar 

employment service with which it 

coordinates employment of H–2B 

workers in connection with H–2B 

employment, and if so, the name of any 

recruiter, facilitator, or similar 

employment service used to locate H–

2B workers. 

(3) To the best of its knowledge, 

whether any alien beneficiary has 

provided, or intends to provide, any 

remuneration, direct or indirect, to any 

such recruiter, facilitator, or similar 

employment service in connection with 

his or her H–2B employment; and 

(4) Whether there has been any 

previous determination by USCIS that 

any fee, compensation, or other form of 

remuneration has been collected, 

directly or indirectly, from an alien 

beneficiary of the current H–2B petition 

in connection with the filing by the 

petitioner of any previous H–2B 

petition, and if so, whether the 

petitioner has reimbursed the alien in 

full for any such fees, compensation, or 

other remuneration (other than the 

lower of the actual transportation costs 

or fair market value of such 

transportation costs and any 

government-mandated passport, visa or 

inspection fees, if the employer has not 

agreed with the alien to pay such costs 

and fees). 

(D) Petitions for nationals of countries 

that refuse repatriation. No H–2B 

petition can be approved for a citizen, 

subject, national or resident of a country 

whose government the Secretary of 

Homeland Security has determined 

consistently denies or unreasonably 

delays accepting the return of citizens, 

subjects, nationals, or residents who are 

subject to a final order of removal from 

the United States. The Secretary will 

review such determinations periodically 

to evaluate if the subject country is 

accepting repatriated nationals. 

(E) Petitioner agreements and 

notification requirements—(1) 

Agreements. The petitioner agrees to 

notify DHS, within 48 hours, and 

beginning on a date and in a manner 

specified in a notice published in the 

Federal Register if: An H–2B worker 

fails to report for work within 5 days 

after the employment start date stated 

on the petition or within five days of the 

start date established by his or her 

employer, whichever is later; the nonagricultural labor or services for which 

H–2B workers were hired is completed 

more than 30 days early; or an H–2B 

worker absconds from the worksite or is 

terminated prior to the completion of 


dwashington3 on PRODPC61 with PROPOSALS
Federal Register / Vol. 73, No. 162 / Wednesday, August 20, 2008 / Proposed Rules 49121 

non-agricultural labor or services for 

which he or she was hired. The 

petitioner also agrees to retain evidence 

of such notification and make it 

available for inspection by DHS officers 

for a one-year period beginning on the 

date of the notification. 

(2) Abscondment. An H–2B worker 

has absconded if he or she has not 

reported for work for a period of 5 

consecutive work days without the 

consent of the employer. 

(ii) * * * 

(B) Nature of petitioner’s need. 

Employment is of a temporary nature 

when the employer needs a worker for 

a limited period of time. That means the 

employer must establish that the need 

for the employee will end in the near, 

definable future. Generally, that period 

of time will be limited to one year or 

less, but in the case of a one-time 

occurrence event, could last longer than 

one year and up to three years. The 

petitioner’s need for the services or 

labor shall be a one-time occurrence, a 

seasonal need, a peak load need, or an 

intermittent need. 

* * * * * 

(iv) * * * 

(A) Secretary of Labor’s 

determination. An H–2B petition for 

temporary employment in the United 

States, except for temporary 

employment on Guam, shall be 

accompanied by an approved labor 

certification from the Secretary of Labor 

stating that qualified workers in the 

United States are not available and that 

the alien’s employment will not 

adversely affect wages and working 

conditions of similarly employed 

United States workers. 

* * * * * 

(D) Employment start date. An H–2B 

petition must state an employment start 

date that is the same as the date of 

employment need stated on the 

approved temporary labor certification. 

A petitioner filing an amended H–2B 

petition due to the unavailability of 

originally requested workers may state 

an employment start date that is later 

than the date of employment need 

stated on the previously approved 

temporary labor certification that is 

accompanying the amended H–2B 

petition. 

(v) * * * 

(A) Governor of Guam’s 

determination. An H–2B petition for 

temporary employment on Guam shall 

be accompanied by an approved labor 

certification determination from the 

Governor of Guam stating that qualified 

workers in the United States are not 

available to perform the required 

services, and that the alien’s 

employment will not adversely affect 

the wages and working conditions of 

United States resident workers who are 

similarly employed on Guam. 

(C) [Reserved.] 

(D) [Reserved.] 

* * * * * 

(vi) * * * 

(A) Labor certification. A temporary 

labor certification issued by the 

Secretary of Labor or the Governor of 

Guam, as appropriate; 

(B) [Reserved.] 

(C) Alien’s qualifications. In petitions 

where the labor certification application 

requires certain education, training, 

experience, or special requirements of 

the beneficiary who is present in the 

United States, documentation that the 

alien qualifies for the job offer as 

specified in the application for labor 

certification; 

* * * * * 

(viii) Substitution of beneficiaries. 

Beneficiaries in H–2B petitions that are 

approved for named or unnamed 

beneficiaries who have not been 

admitted may be substituted only if the 

employer can demonstrate that the total 

number of beneficiaries will not exceed 

the number of beneficiaries certified in 

the original labor certification. 

Beneficiaries who have been admitted 

may not be substituted without a new 

petition accompanied by a newly 

approved labor certification. 

(A) To substitute beneficiaries who 

were previously approved for consular 

processing but have not been admitted 

with aliens who are outside of the 

United States, the petitioner shall, by 

letter and a copy of the petition 

approval notice, notify the consular 

office at which the alien will apply for 

a visa or the port of entry where the 

alien will apply for admission. The 

petitioner shall also submit evidence of 

qualifications of beneficiaries to the 

consular office or port of entry prior to 

issuance of a visa or admission, if 

applicable. 

(B) To substitute beneficiaries who 

were previously approved for consular 

processing but have not been admitted 

with aliens who are currently in the 

United States, the petitioner shall file an 

amended petition with fees at the 

Service Center where the original 

petition was filed, with a copy of the 

original petition approval notice, a 

statement explaining why the 

substitution is necessary, evidence of 

the qualifications of beneficiaries, if 

applicable, evidence of the 

beneficiaries’ current status in the 

United States, and evidence that the 

number of beneficiaries will not exceed 

the number allocated on the approved 

labor certification, such as employment 

records or other documentary evidence 

to establish that the number of visas 

sought in the amended petition were not 

already issued. The amended petition 

must retain a period of employment 

within the same half of the fiscal year 

as the original petition. Otherwise, a 

new labor certification and subsequent 

H–2B petition would be required. 

(ix) Effect of violations of status. An 

alien may not be accorded H–2B status 

who USCIS finds to have, at any time 

during the past 5 years, violated, other 

than through no fault of his or her own, 

any of the terms or conditions of 

admission into the United States as an 

H–2B nonimmigrant, including 

remaining beyond the specific period of 

authorized stay or engaging in 

unauthorized employment. 

(x) Enforcement. The Secretary of 

Labor may investigate employers to 

enforce compliance with the conditions 

of a petition to admit or otherwise 

provide status to an H–2B worker. 

* * * * * 

(8) * * * 

(ii) * * * 

(A) Each alien issued a visa or 

otherwise provided nonimmigrant 

status under section 101(a)(15)(H)(i)(b), 

101(a)(15)(H)(i)(c), or 101(a)(15)(H)(ii) of 

the Act shall be counted for purposes of 

any applicable numerical limit, unless 

otherwise exempt from such numerical 

limit. The spouse and children of 

principal H aliens are classified as H–

4 nonimmigrants and shall not be 

counted against numerical limits 

applicable to principals. In the event the 

U.S. Congress authorizes special 

provisions exempting certain H workers 

from numerical limits, such aliens shall 

not be counted against the applicable 

numerical limit, in accordance with 

such legislation. 

* * * * * 

(9) * * * 

(iii) * * * 

(B) H–2B petition. (1) The approval of 

the petition to accord an alien a 

classification under section 

101(a)(15)(H)(ii)(b) of the Act shall be 

valid for the period of the approved 

labor certification. 

* * * * * 

(10) * * * 

(ii) Notice of denial. The petitioner 

shall be notified of the reasons for the 

denial, and of his or her right to appeal 

the denial of the petition under 8 CFR 

part 103. A determination that the 

statements on the petition were 

inaccurate, fraudulent, or 

misrepresented a material fact will 

result in denial of the petition. There is 

no appeal from a decision to deny an 

extension of stay to the alien. 


dwashington3 on PRODPC61 with PROPOSALS
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