Exercise of Time-Limited Authority To Increase the Fiscal Year 2019 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program
| Published date | 08 May 2019 |
| Citation | 84 FR 20005 |
| Record Number | 2019-09500 |
| Section | Rules and Regulations |
| Court | Employment And Training Administration,Labor Department |
Federal Register, Volume 84 Issue 89 (Wednesday, May 8, 2019)
[Federal Register Volume 84, Number 89 (Wednesday, May 8, 2019)]
[Rules and Regulations]
[Pages 20005-20021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09500]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 84, No. 89 / Wednesday, May 8, 2019 / Rules
and Regulations
[[Page 20005]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 214
[CIS No. 2646-19; DHS Docket No. USCIS-2019-0008]
RIN 1615-AC38
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
[DOL Docket No. ETA-2019-0002]
RIN 1205-AB95
Exercise of Time-Limited Authority To Increase the Fiscal Year
2019 Numerical Limitation for the H-2B Temporary Nonagricultural Worker
Program
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security and Employment and Training Administration and Wage
and Hour Division, Department of Labor.
ACTION: Temporary rule.
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SUMMARY: The Secretary of Homeland Security, in consultation with the
Secretary of Labor, has decided to increase the numerical limitation on
H-2B nonimmigrant visas to authorize the issuance of up to, but not
more than, an additional 30,000 visas through the end of Fiscal Year
(FY) 2019. The Departments have determined that employers who attest
that they are likely to suffer irreparable harm may request these
supplemental visas only for workers who were issued an H-2B visa or
otherwise granted H-2B status in FY 2016, 2017, or 2018. This increase
is based on a time-limited statutory authority and does not affect the
H-2B program in future fiscal years. The Departments are promulgating
regulations to implement this determination.
DATES: This final rule is effective from May 8, 2019 through September
30, 2019, except for 20 CFR 655.67, which is effective from May 8, 2019
through September 30, 2022. The Office of Foreign Labor Certification
within the U.S. Department of Labor will be accepting comments in
connection with the new information collection Form ETA-9142B-CAA-3
associated with this rule until July 8, 2019.
ADDRESSES: You may submit comments on the new information collection
Form ETA-9142B-CAA-3, identified by Regulatory Information Number (RIN)
1205-AB95, by any one of the following methods:
Electronic Comments: Comments may be sent via http://www.regulations.gov, a Federal E-Government website that allows the
public to find, review, and submit comments on documents that agencies
have published in the Federal Register and that are open for comment.
Simply type in `1205-AB95' (in quotes) in the Comment or Submission
search box, click Go, and follow the instructions for submitting
comments.
Mail: Address written submissions to (including disk and CD-ROM
submissions) to Adele Gagliardi, Administrator, Office of Policy
Development and Research, Employment and Training Administration, U.S.
Department of Labor, 200 Constitution Avenue NW, Room N-5641,
Washington, DC 20210.
Instructions: Please submit only one copy of your comments by only
one method. All submissions must include the agency's name and the RIN
1205-AB95. Please be advised that comments received will become a
matter of public record and will be posted without change to http://www.regulations.gov, including any personal information provided.
Comments that are mailed must be received by the date indicated for
consideration.
Docket: For access to the docket to read background documents or
comments, go to the Federal e-Rulemaking Portal at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Regarding 8 CFR part 214: Brian J. Hunt, Acting Chief, Business and
Foreign Workers Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
20 Massachusetts Ave. NW, Suite 1100, Washington, DC 20529-2120,
telephone (202) 272-8377 (not a toll-free call).
Regarding 20 CFR part 655: Thomas M. Dowd, Deputy Assistant
Secretary, Employment and Training Administration, Department of Labor,
Box #12-200, 200 Constitution Ave. NW, Washington, DC 20210, telephone
(202) 513-7350 (this is not a toll-free number).
Individuals with hearing or speech impairments may access the
telephone numbers above via TTY by calling the toll-free Federal
Information Relay Service at 1-877-889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Legal Framework
B. H-2B Numerical Limitations Under the INA
C. FY 2019 Omnibus
D. Joint Issuance of the Final Rule
II. Discussion
A. Statutory Determination
B. Numerical Increase of Up to 30,000 Visas
C. Returning Workers
D. Business Need Standard--Irreparable Harm and FY 2019
Attestation
E. DHS Petition Procedures
F. DOL Procedures
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Executive Orders 12866 (Regulatory Planning and Review) and
13563 (Improving Regulation and Regulatory Review), and 13771
(Reducing Regulation and Controlling Regulatory Costs)
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Small Business Regulatory Enforcement Fairness Act of 1996
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice Reform)
H. National Environmental Policy Act
I. Paperwork Reduction Act
I. Background
A. Legal Framework
The Immigration and Nationality Act (INA), as amended, establishes
the H-2B nonimmigrant classification for a nonagricultural temporary
worker ``having a residence in a foreign country which he has no
intention of abandoning who is coming temporarily to the United States
to perform . . . temporary [non-agricultural] service or labor if
unemployed persons capable of performing such service or labor cannot
be found in this country.'' INA section
[[Page 20006]]
101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b). Employers must
petition the Department of Homeland Security (DHS) for classification
of prospective temporary workers as H-2B nonimmigrants. INA section
214(c)(1), 8 U.S.C. 1184(c)(1). DHS must approve this petition before
the beneficiary can be considered eligible for an H-2B visa. Finally,
the INA requires that ``[t]he question of importing any alien as [an H-
2B] nonimmigrant . . . in any specific case or specific cases shall be
determined by [DHS],\1\ after consultation with appropriate agencies of
the Government.'' INA section 214(c)(1), 8 U.S.C. 1184(c)(1).
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\1\ As of March 1, 2003, in accordance with section 1517 of
Title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-
296, 116 Stat. 2135, any reference to the Attorney General in a
provision of the Immigration and Nationality Act describing
functions which were transferred from the Attorney General or other
Department of Justice official to the Department of Homeland
Security by the HSA ``shall be deemed to refer to the Secretary'' of
Homeland Security. See 6 U.S.C. 557 (2003) (codifying HSA, Title XV,
sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note.
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DHS regulations provide that an H-2B petition for temporary
employment in the United States must be accompanied by an approved
temporary labor certification (TLC) from the Department of Labor (DOL)
issued pursuant to regulations established at 20 CFR part 655, 8 CFR
214.2(h)(6)(iii)(A), (C)-(E), (h)(6)(iv)(A); see also INA section
103(a)(6), 8 U.S.C. 1103(a)(6). The TLC serves as DHS's consultation
with DOL with respect to whether a qualified U.S. worker is available
to fill the petitioning H-2B employer's job opportunity and whether a
foreign worker's employment in the job opportunity will adversely
affect the wages or working conditions of similarly employed U.S.
workers. See INA section 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR
214.2(h)(6)(iii)(A) and (D).
In order to determine whether to issue a temporary labor
certification, the Departments have established regulatory procedures
under which DOL certifies whether a qualified U.S. worker is available
to fill the job opportunity described in the employer's petition for a
temporary nonagricultural worker, and whether a foreign worker's
employment in the job opportunity will adversely affect the wages or
working conditions of similarly employed U.S. workers. See 20 CFR part
655, subpart A. The regulations establish the process by which
employers obtain a TLC and the rights and obligations of workers and
employers.
The INA also authorizes DHS to impose appropriate remedies against
an employer for a substantial failure to meet the terms and conditions
of employing an H-2B nonimmigrant worker, or for a willful
misrepresentation of a material fact in a petition for an H-2B
nonimmigrant worker. INA section 214(c)(14)(A), 8 U.S.C.
1184(c)(14)(A). The INA expressly authorizes DHS to delegate certain
enforcement authority to DOL. INA section 214(c)(14)(B), 8 U.S.C.
1184(c)(14)(B); see also INA section 103(a)(6), 8 U.S.C. 1103(a)(6).
DHS has delegated its authority under INA section 214(c)(14)(A)(i), 8
U.S.C. 1184(c)(14)(A)(i) to DOL. See DHS, Delegation of Authority to
DOL under Section 214(c)(14)(A) of the Immigration and Nationality Act
(Jan. 16, 2009); see also 8 CFR 214.2(h)(6)(ix) (stating that DOL may
investigate employers to enforce compliance with the conditions of,
among other things, an H-2B petition and a DOL-approved TLC). This
enforcement authority has been delegated within DOL to the Wage and
Hour Division (WHD), and is governed by regulations at 29 CFR part 503.
B. H-2B Numerical Limitations Under the INA
The INA sets the annual number of aliens who may be issued H-2B
visas or otherwise provided H-2B nonimmigrant status to perform
temporary nonagricultural work at 66,000, to be distributed semi-
annually beginning in October and April. See INA sections 214(g)(1)(B)
and 214(g)(10), 8 U.S.C. 1184(g)(1)(B) and 8 U.S.C. 1184(g)(10). Up to
33,000 aliens may be issued H-2B visas or provided H-2B nonimmigrant
status in the first half of a fiscal year, and the remaining annual
allocation will be available for employers seeking to hire H-2B workers
during the second half of the fiscal year.\2\ If insufficient petitions
are approved to use all H-2B numbers in a given fiscal year, the unused
numbers cannot be carried over for petition approvals in the next
fiscal year.
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\2\ The Federal Government's fiscal year runs from October 1 of
the budget's prior year through September 30 of the year being
described. For example, fiscal year 2019 is from October 1, 2018,
through September 30, 2019.
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In FY 2005, 2006, 2007, and 2016, Congress exempted H-2B workers
identified as returning workers from the annual H-2B cap of 66,000.\3\
A returning worker is defined by statute as an H-2B worker who was
previously counted against the annual H-2B cap during a designated
period of time. For example, Congress designated that returning workers
for FY 2016 needed to have been counted against the cap during FY 2013,
2014, or 2015. DHS and Department of State (DOS) worked together to
confirm that all requested workers qualified for the program, i.e.,
were issued an H-2B visa or provided H-2B status during one of the
prior three fiscal years.
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\3\ INA 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A), see also
Consolidated Appropriations Act, 2016, Public Law 114-113, div. F,
tit. V, sec. 565; John Warner National Defense Authorization Act for
Fiscal Year 2007, Public Law 109-364, div. A, tit. X, sec. 1074,
(2006); Save Our Small and Seasonal Businesses Act of 2005, Public
Law. 109-13, div. B, tit. IV, sec. 402.
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Because of the strong demand for H-2B visas in recent years, the
statutorily limited semi-annual visa allocation, and the regulatory
requirement that employers apply for temporary labor certification 75
to 90 days before the start date of work,\4\ employers who wish to
obtain visas for their workers under the semi-annual allotment must act
early to receive a TLC and file a petition with U.S. Citizenship and
Immigration Services (USCIS). As a result, DOL typically sees a
significant spike in TLC applications from employers seeking to hire H-
2B temporary or seasonal workers prior to the United States' warm
weather months. For example, in FY 2019, based on Applications for
Temporary Labor Certification filed as of January 8, 2019, DOL's Office
of Foreign Labor Certification (OFLC) received requests to certify more
than 96,400 worker positions for start dates of work on April 1, a
number nearly three times greater than the entire semi-annual visa
allocation. USCIS received sufficient H-2B petitions to meet the second
half of the fiscal year regular cap by February 19, 2019.\5\ This was
the earliest date that the cap was reached in a respective fiscal year
since FY 2009 and reflects an ongoing trend of high H-2B program
demand. The increased demand is further represented by Congress
authorizing additional H-2B workers through the FY 2016 reauthorization
of the returning worker cap exemption; the supplemental cap authorized
by section 543 of Division F of the Consolidated Appropriations Act,
[[Page 20007]]
2017, Public Law 115-31 (FY 2017 Omnibus); section 205 of Division M of
the Consolidated Appropriations Act, 2018, Public Law 115-141 (FY 2018
Omnibus); and section 105 of Division H of the Consolidated
Appropriations Act, 2019, Public Law 116-6 (FY 2019 Omnibus), which is
discussed below.
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\4\ 20 CFR 655.15(b).
\5\ On February 22, 2019, USCIS announced that it had received a
sufficient number of petitions to reach the congressionally mandated
H-2B cap for FY 2019. On February 19, the number of beneficiaries
listed on petitions received by USCIS surpassed the total number of
remaining H-2B visas available against the H-2B cap for the second
half of FY 2019. In accordance with regulations, USCIS determined it
was necessary to use a computer-generated process, commonly known as
a lottery, to ensure the fair and orderly allocation of H-2B visa
numbers to meet, but not exceed, the remainder of the FY 2019 cap. 8
CFR 214.2(h)(8)(ii)(B). On February 21, USCIS conducted a lottery to
randomly select petitions from those received on February 19. As a
result, USCIS assigned all petitions selected in the lottery the
receipt date of February 22.
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C. FY 2019 Omnibus
On February 15, 2019, the President signed the FY 2019 Omnibus
which contains a provision, section 105 of Division H (section 105),
permitting the Secretary of Homeland Security, under certain
circumstances and after consultation with the Secretary of Labor, to
increase the number of H-2B visas available to U.S. employers,
notwithstanding the otherwise established statutory numerical
limitation. Specifically, section 105 provides that ``the Secretary of
Homeland Security, after consultation with the Secretary of Labor, and
upon the determination that the needs of American businesses cannot be
satisfied in [FY] 2019 with U.S. workers who are willing, qualified,
and able to perform temporary nonagricultural labor,'' may increase the
total number of aliens who may receive an H-2B visa in FY 2019 by not
more than the highest number of H-2B nonimmigrants who participated in
the H-2B returning worker program in any fiscal year in which returning
workers were exempt from the H-2B numerical limitation.\6\ This rule
implements the authority contained in section 105.
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\6\ The highest number of returning workers in any such fiscal
year was 64,716, which represents the number of beneficiaries
covered by H-2B returning worker petitions that were approved for FY
2007. DHS also considered using an alternative approach, under which
DHS measured the number of H-2B returning workers admitted at the
ports of entry (66,792 for FY 2007).
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In FY 2017, Congress enacted section 543 of Division F of the
Consolidated Appropriations Act, 2017, Public Law 115-31, and, in FY
2018, Congress enacted section 205 of Division M of the Consolidated
Appropriations Act, 2018, Public Law 115-141. Both statutory provisions
were materially identical to section 105 of the FY 2019 Omnibus
pertaining to the FY 2017 and FY 2018 H-2B visa allocations. In both FY
2017 and FY 2018, the Secretary of Homeland Security, after consulting
with the Secretary of Labor, determined that the needs of some American
businesses could not be satisfied in FY 2017 and FY 2018, respectively,
with U.S. workers who were willing, qualified, and able to perform
temporary nonagricultural labor. Based on these determinations, on July
19, 2017, and May 31, 2018, respectively, DHS and DOL jointly published
temporary final rules allowing an increase of up to 15,000 additional
H-2B visas[thinsp]for those businesses that attested to a level of need
such that, if they did not receive all of the workers requested on the
Petition for a Nonimmigrant Worker (Form I-129), they were likely to
suffer irreparable harm, i.e., suffer a permanent and severe financial
loss.\7\ A total of 12,294 H-2B workers were approved for H-2B
classification under petitions filed pursuant to the FY 2017
supplemental cap increase. In FY 2018, USCIS received petitions for
more than 15,000 beneficiaries during the first five business days of
filing for the supplemental cap, and held a lottery on June 7, 2018.
The total number of H-2B workers approved toward the FY 2018
supplemental cap increase was 15,672.\8\ The vast majority of the H-2B
petitions received under the FY 2017 and FY 2018 supplemental caps
requested premium processing and were adjudicated within 15 calendar
days.
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\7\ Temporary Rule, Exercise of Time-Limited Authority To
Increase the Fiscal Year 2017 Numerical Limitation for the H-2B
Temporary Nonagricultural Worker Program, 82 FR 32987, 32998 (Jul.
19, 2017); Temporary Rule, Exercise of Time-Limited Authority To
Increase the Fiscal Year 2018 Numerical Limitation for the H-2B
Temporary Nonagricultural Worker Program, 83 FR 24905, 24917 (May
31, 2018).
\8\ The number of approved workers exceeded the number of
additional visas authorized for FY 2018 to allow for the possibility
that some approved workers would either not seek a visa or
admission, would not be issued a visa, or would not be admitted to
the United States.
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D. Joint Issuance of This Final Rule
As they did in implementing the FY 2017 and FY 2018 Omnibus H-2B
supplemental caps,\9\ the Departments have determined that it is
appropriate to issue this temporary rule jointly. This determination is
related to ongoing litigation following conflicting court decisions
concerning DOL's authority to independently issue legislative rules to
carry out its consultative and delegated functions pertaining to the H-
2B program under the INA.\10\ Although DHS and DOL each have authority
to independently issue rules implementing their respective duties under
the H-2B program, the Departments are implementing section 105 in this
manner to ensure there can be no question about the authority
underlying the administration and enforcement of the temporary cap
increase. This approach is consistent with rules implementing DOL's
general consultative role under section 214(c)(1) of the INA, 8 U.S.C.
1184(c)(1), and delegated functions under sections 103(a)(6) and
214(c)(14)(B), 8 U.S.C. 1103(a)(6), 1184(c)(14)(B). See 8 CFR
214.2(h)(6)(iii)(A) & (C), (h)(6)(iv)(A).
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\9\ 82 FR 32987 (Jul. 19, 2017); 83 FR 24905 (May 31, 2018).
\10\ See Outdoor Amusement Bus. Ass'n v. Dep't of Homeland Sec.,
334 F. Supp. 3d 697 (D. Md. 2018), appeal docketed, No. 18-2370 (4th
Cir. Nov. 15, 2018); see also Temporary Non-Agricultural Employment
of H-2B Aliens in the United States, 80 FR 24042, 24045 (Apr. 29,
2015).
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II. Discussion
A. Statutory Determination
Following consultation with the Secretary of Labor, the Secretary
of Homeland Security has determined that the needs of some American
businesses cannot be satisfied in FY 2019 with U.S. workers who are
willing, qualified, and able to perform temporary nonagricultural
labor. In accordance with section 105 of the FY 2019 Omnibus, the
Secretary of Homeland Security has determined that it is appropriate,
for the reasons stated below, to raise the numerical limitation on H-2B
nonimmigrant visas by up to an additional 30,000 visas for the
remainder of the fiscal year. Consistent with such authority, the
Secretary of Homeland Security has decided to increase the H-2B cap for
FY 2019 by up to 30,000 additional visas for those American businesses
that attest to a level of need such that, if they do not receive all of
the workers under the cap increase, they are likely to suffer
irreparable harm, in other words, suffer a permanent and severe
financial loss. These businesses must attest that they will likely
suffer irreparable harm and must retain documentation, as described
below, supporting this attestation. In addition, the Secretary has
determined that employers may only request these supplemental visas for
specified H-2B returning workers. Specifically, these individuals must
be workers who were issued H-2B visas or were otherwise granted H-2B
status in FY 2016, 2017, or 2018.\11\
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\11\ For purposes of this rule, these returning workers could
have been H-2B cap exempt or extended H-2B status in FY 2016, 2017,
or 2018. Additionally they may have been previously counted against
the annual H-2B cap of 66,000 visas during FY 2016, 2017, or 2018,
or the supplemental caps in FY 2017 or FY 2018, or the returning
worker provision of FY 2016.
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The Secretary of Homeland Security's determination to increase the
numerical limitation is based, in part, on the conclusion that some
businesses risk closing their doors in the absence of a cap increase.
Some stakeholders have reported that access to additional H-2B visas is
essential to the continued viability of some small businesses that play
an important role in sustaining the economy in their states, while
others
[[Page 20008]]
have stated that an increase is unnecessary and raises the possibility
of abuse, by, among other things, creating an incentive for employers
who, unable to hire workers under the normal 66,000 annual cap, would
misrepresent their actual need in order to hire H-2B workers from
amongst the limited number of newly available visa numbers under the
Omnibus.\12\ The Secretary of Homeland Security has deemed it
appropriate, notwithstanding such risk of abuse, to take immediate
action to avoid irreparable harm to businesses, specifically, wage and
job losses by their U.S. workers, as well as other adverse downstream
economic effects.\13\
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\12\ Other stakeholders have reported abuses of the H-2B
program. For example, the Government Accountability Office has
recommended increased worker protections in the H-2B program based
on certain abuses of the program by unscrupulous employers and
recruiters. See U.S. Government Accountability Office, H-2A and H-2B
Visa Programs: Increased Protections Needed for Foreign Workers,
GAO-15-154 (Washington, DC, revised 2017), http://www.gao.gov/assets/690/684985.pdf (last visited Apr. 9, 2019); U.S. Government
Accountability Office, H-2B Visa Program: Closed Civil Criminal
Cases Illustrate Instances of H-2B Workers Being Targets of Fraud
and Abuse, GAO-10-1053 (Washington, DC, 2010), http://www.gao.gov/assets/320/310640.pdf (last visited Apr. 9, 2019); see also
Testimony of Stephen G. Bronars, The Impact of the H-2B Program on
the U.S. Labor Market, before the Senate Subcommittee on Immigration
and the National Interest (June 8, 2016), https://www.judiciary.senate.gov/imo/media/doc/06-08-16 Bronars
Testimony.pdf (last visited Apr. 9, 2019); Preliminary Analysis of
the Economic Impact of the H-2B Worker Program on Virginia's
Economy, Thomas J. Murray (Sept. 2011), http://web.vims.edu/GreyLit/VIMS/mrr11-12.pdf (last visited Apr. 9, 2019).
\13\ See Randel K. Johnson & Tamar Jacoby, U.S. Chamber of
Commerce & ImmigrationWorks USA, The Economic Impact of H-2B Workers
(Oct. 28, 2010), available at https://www.uschamber.com/sites/default/files/documents/files/16102_LABR%2520H2BReport_LR.pdf (last
visited Mar. 4, 2019).
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The decision to afford the benefits of this cap increase to
businesses that need workers to avoid irreparable harm, rather than
applying the cap increase to any and all businesses seeking temporary
workers, is consistent with section 105. Specifically, section 105
provides that the Secretary of Homeland Security, upon satisfaction of
the statutory business need standard, may increase the numerical
limitation to meet such need.\14\ In implementing section 105, the
Secretary of Homeland Security, in determining the scope of any such
increase, has broad discretion to identify the business needs the
Secretary finds most relevant, while bearing in mind the need to
protect U.S. workers. Within that context, for the below reasons, the
Secretary has determined to allow an increase solely for the businesses
facing the most permanent, severe potential losses.
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\14\ DHS believes it is reasonable to infer that Congress
intended, in enacting the FY 2019 Omnibus, to authorize the
Secretary to allocate any new H-2B visas authorized under section
105 to the entities with the ``business need'' that serves as the
basis for the increase.
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First, DHS interprets section 105's reference to ``the needs of
American businesses'' as describing a need different than the need
required of employers in petitioning for an H-2B worker. Under the
generally applicable H-2B program, each individual H-2B employer must
demonstrate that it has a temporary need for the services or labor for
which they seek to hire H-2B workers. See 8 CFR 214.2(h)(6)(ii); 20 CFR
655.6. The use of the term ``needs of American businesses,'' which is
not found in INA section 101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b), or the regulations governing the standard H-2B
cap, authorizes the Secretary of Homeland Security to require that
employers establish a need above and beyond the normal standard under
the H-2B program, i.e., an inability to find sufficient qualified U.S.
workers willing and available to perform services or labor and that the
employment of the H-2B worker will not adversely affect the wages and
working conditions of U.S. workers, see 8 CFR 214.2(h)(6)(i)(A), in
allocating additional H-2B visas under section 105. DOL concurs with
this interpretation.
Second, the approach set forth in this rule limits the increase in
a way that is similar to the implementation of the FY 2017 and FY 2018
supplemental caps, and provides protections against adverse effects on
U.S. workers that may result from a larger cap increase. Although there
is not enough time remaining in FY 2019 to conduct more formal analysis
of such effects and the calendar does not lend itself to such
additional efforts, the Secretary of Homeland Security has determined
that in the particular circumstances presented here, it is appropriate,
within the limits discussed below, to tailor the availability of this
temporary cap increase to those businesses likely to suffer irreparable
harm, i.e., those facing permanent and severe financial loss.
To address the increased, and, in some cases, imminent need for H-
2B workers, for FY 2019, the Secretary has determined that employers
may only petition for supplemental visas on behalf of workers who were
issued an H-2B visa or were otherwise granted H-2B status in FY 2016,
2017, or 2018. The last-three-fiscal-years temporal limitation in the
returning worker definition in this temporary rule mirrors the temporal
limitation Congress imposed in previous returning worker statutes.\15\
Such workers (i.e., those who recently participated in the H-2B
program) have previously obtained H-2B visas and therefore been vetted
by DOS, would have departed the United States after their authorized
period of stay as generally required by the terms of their nonimmigrant
admission, and therefore may obtain their new visas through DOS and
begin work more expeditiously.\16\
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\15\ Consolidated Appropriations Act, 2016, Public Law 114-113,
div. F, tit. V, sec. 565; John Warner National Defense Authorization
Act for Fiscal Year 2007, Public Law 109-364, div. A, tit. X, sec.
1074, (2006); Save Our Small and Seasonal Businesses Act of 2005,
Public Law 109-13, div. B, tit. IV, sec. 402.
\16\ The Department of State has informed DHS that, in general,
H-2B visa applicants who are able to clearly demonstrate having
previously abided by the terms of their status granted by DHS tend
to be issued at a higher rate when applying to renew their H-2B
visa, as compared with the overall visa applicant pool from a given
country. Consequently, some consular sections waive the in-person
interview requirement for H-2B applicants whose visa expired within
the previous 12 months and who otherwise meet the strict limitations
set out under INA 222(h), 8 U.S.C. 1202(h). Non-returning workers
cannot meet the statutory criteria under INA 222(h)(1)(B) for an
interview waiver. The previous review of an applicant's
qualifications and current evidence of lawful travel to the United
States will generally lead to a shorter processing time of a renewal
application.
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Limiting the supplemental cap to returning workers is beneficial
because these workers have generally demonstrated the willingness to
return home after they have completed their temporary labor or services
or their period of authorized stay, which is a condition of H-2B
status. The returning workers condition therefore provides a basis to
believe that H-2B workers under this cap increase will likely return
home again after another temporary stay in the United States. That same
basis does not exist for non-returning workers, not all of whom have a
track record of returning home. Although the returning worker
requirement limits the flexibility of employers, the requirement
provides an important safeguard, which DHS deems paramount.
Employers must also establish, among other requirements, that
insufficient qualified U.S. workers are available to fill the
petitioning H-2B employer's job opportunity and that the foreign
worker's employment in the job opportunity will not adversely affect
the wages or working conditions of similarly employed U.S. workers. INA
section 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and
(D); 20 CFR 655.1. To meet this standard, and therefore, in order to be
eligible for additional visas under this rule, employers must have
applied for and
[[Page 20009]]
received a valid TLC in accordance with 8 CFR 214.2(h)(6)(iv)(A) and
(D), and 20 CFR part 655, subpart A. Under DOL's H-2B regulations, TLCs
expire on the last day of authorized employment. 20 CFR 655.55(a). In
order to have an unexpired TLC, therefore, the date on the employer's
visa petition must not be later than the last day of authorized
employment on the TLC. This rule also requires an additional
recruitment for certain petitioners, as discussed below.
In sum, this rule increases the FY 2019 numerical limitation by up
to 30,000 visas to ensure a sufficient number of visas to allow for
increased need for H-2B workers, but also restricts the availability of
such additional visas by prioritizing only the most significant
business needs and limiting eligibility to H-2B returning workers.
These provisions are each described in turn below.
B. Numerical Increase of Up to 30,000 Visas
DHS expects the increase of up to 30,000 visas \17\ to be
sufficient to meet the urgent need of eligible employers for additional
H-2B workers for the remainder of FY 2019. The determination to allow
up to 30,000 additional H-2B visas is based on the increased demand for
supplemental visas in FY 2018 over FY 2017, H-2B returning worker data,
and the amount of time remaining for employers to hire and obtain H-2B
workers in the fiscal year.
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\17\ In contrast with section 214(g)(1) of the INA, 8 U.S.C.
1184(g)(1), which establishes a cap on the number of individuals who
may be issued visas or otherwise provided H-2B status, and section
214(g)(10) of the INA, 8 U.S.C. 1184(g)(10) (emphasis added), which
imposes a first half of the fiscal year cap on H-2B issuance with
respect to the number of individuals who may be issued visas or are
accorded [H-2B] status (emphasis added), section 105 only authorizes
DHS to increase the number of available H-2B visas. Accordingly, DHS
will not permit individuals authorized for H-2B status pursuant to
an H-2B petition approved under section 105 to change to H-2B status
from another nonimmigrant status. See INA section 248, 8 U.S.C.
1258; see also 8 CFR part 248. If a petitioner files a petition
seeking H-2B workers in accordance with this rule and requests a
change of status on behalf of someone in the United States, the
change of status request will be denied, but the petition will be
adjudicated in accordance with applicable DHS regulations. Any alien
authorized for H-2B status under the approved petition would need to
obtain the necessary H-2B visa at a consular post abroad and then
seek admission to the United States in H-2B status at a port of
entry.
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Section 105 of the FY 2019 Omnibus sets the highest number of H-2B
returning workers \18\ who were exempt from the cap in previous years
as the maximum limit for any increase in the H-2B numerical limitation
for FY 2019. Consistent with the statute's reference to H-2B returning
workers, in determining the appropriate number by which to increase the
H-2B numerical limitation, the Secretary of Homeland Security focused
on the number of visas allocated to returning workers in years in which
Congress enacted returning worker exemptions from the H-2B numerical
limitation. During each of the years the returning worker provision was
in force, U.S. employers' standard business needs for H-2B workers
exceeded the normal 66,000 cap. The highest number of H-2B returning
workers approved was 64,716 in FY 2007. In setting the number of
additional H-2B visas to be made available during FY 2019, DHS
considered this number, overall indications of increased need, and the
time remaining in FY 2019, and determined that it would be appropriate
to limit the supplemental cap to approximately half of the highest
number for returning workers, or up to 30,000.
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\18\ During fiscal years 2005 to 2007, and 2016, Congress
enacted ``returning worker'' exemptions to the H-2B visa cap,
allowing workers who were counted against the H-2B cap in one of the
three preceding fiscal years not to be counted against the upcoming
fiscal year cap. Save Our Small and Seasonal Businesses Act of 2005,
Public Law 109-13, Sec. 402 (May 11, 2005); John Warner National
Defense Authorization Act, Public Law 109-364, Sec. 1074 (Oct. 17,
2006); Consolidated Appropriations Act of 2016, Public Law 114-113,
Sec. 565 (Dec. 18, 2015).
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Available data indicates that need for supplemental H-2B visas in
FY 2019 will exceed the previous supplemental caps. In FY 2018, USCIS
received petitions for approximately 29,000 beneficiaries during the
first 5 business days of filing for the 15,000 supplemental cap. USCIS
therefore conducted a lottery on June 7, 2018, to randomly select
petitions that would be accepted under the supplemental cap. Of the
petitions that were selected, USCIS issued approvals for 15,672
beneficiaries.
Given indications of increased demand in the H-2B program overall
and the FY 2018 supplemental cap relative to prior year supplemental
caps, the Secretary of Homeland Security has considered both FY 2007
data in which the highest number of returning workers approved was
64,716, and the previous cap determinations. The Secretary has
determined that authorizing up to 30,000 additional visas, which is
approximately half of the highest number of returning worker visas
approved for H-2B beneficiaries in FY 2007 as well as almost half of
the regular H-2B cap, will better ensure that additional H-2B visas
will be available to businesses that need H-2B workers.\19\ The 30,000
limit also takes into account the increased demand for workers that the
Departments witnessed with respect to the FY 2018 supplemental cap, and
the fact that the FY 2019 supplemental cap is being implemented at
approximately the same time in the year that the FY 2018 supplemental
cap was implemented.\20\ Additionally, the Secretary has determined
that authorizing returning workers will best protect the integrity of
the H-2B visa program and the U.S. workforce, and will also help those
businesses who may suffer irreparable harm.
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\19\ In FY 2007, the returning worker provision was authorized
in October 2006, with approximately 11 months for employers to
petition for H-2B workers. In contrast, upon publication of this
rule, employers will only have approximately 5 months to file for
additional H-2B workers.
\20\ USCIS recognizes it may have received petitions for more
than 29,000 supplemental H-2B workers if the cap had not been
exceeded within the first five days of opening. However, DHS
estimates that not all of the 29,000 workers requested under the FY
2018 supplemental cap would have been approved and/or issued visas.
For instance, although DHS approved petitions for 15,672
beneficiaries under the FY 2018 cap increase, the Department of
State data shows that as of January 15, 2019, it issued only 12,243
visas under that cap increase. Similarly, DHS approved petitions for
12,294 beneficiaries under the FY 2017 cap increase, but the
Department of State data shows that it issued only 9,160 visas.
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C. Returning Workers
Although the increase of up to 30,000 additional workers is higher
than previous years, the Secretary has determined that the supplemental
visas should only be granted to returning workers from the past three
fiscal years, in order to meet the immediate need for H-2B workers. The
Secretary has determined that for purposes of this program, H-2B
returning workers include those individuals who were issued an H-2B
visa or were otherwise granted H-2B status in FY 2016, 2017, or 2018.
As discussed above, the Secretary determined that limiting returning
workers to those who were issued an H-2B visa or granted H-2B status in
the past three fiscal years is appropriate as it mirrors the previous
standard that Congress designated in previous returning worker
provisions. As also discussed above, returning workers have previously
obtained H-2B visas and therefore been vetted by DOS, would have
departed the United States after their authorized period of stay as
generally required by the terms of their nonimmigrant admission, and
therefore may obtain their new visas through DOS and begin work more
expeditiously.
To ensure compliance with the requirement that additional visas
only be made available to returning workers,
[[Page 20010]]
petitioners seeking H-2B workers under the supplemental cap will be
required to attest that each employee requested or instructed to apply
for a visa under the FY 2019 supplemental cap was issued an H-2B visa
or otherwise granted H-2B status in FY 2016, 2017, or 2018. The
attestation will serve as prima facie initial evidence to DHS that each
worker meets the returning worker requirement. DHS and DOS retain the
right to review and verify that each beneficiary is in fact a returning
worker any time before and after approval of the petition or visa. OFLC
will have the sole authority within DOL to review documentation
supporting this attestation during the course of an audit examination
or based on information obtained or received from DHS or other
appropriate agencies.
D. Business Need Standard--Irreparable Harm and FY 2019 Attestation
To file an H-2B petition during the remainder of FY 2019,
petitioners must meet all existing H-2B eligibility requirements,
including having an approved, valid, and unexpired TLC. See 8 CFR
214.2(h)(6) and 20 CFR part 655, subpart A. In addition, the petitioner
must submit an attestation to USCIS in which the petitioner affirms,
under penalty of perjury, that it meets the business need standard set
forth above. Under that standard, the petitioner must be able to
establish that if it does not receive all of the workers requested
under the cap increase,\21\ it is likely to suffer irreparable harm,
that is, permanent and severe financial loss. Although the TLC process
focuses on establishing whether a petitioner has a need for workers,
the TLC does not directly address the harm a petitioner may face in the
absence of such workers; the attestation addresses this question. The
attestation must be submitted directly to USCIS, together with Form I-
129, the approved and valid TLC, and any other necessary documentation.
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\21\ An employer may request fewer workers on the H-2B petition
than the number of workers listed on the TLC.
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The attestation will serve as prima facie initial evidence to DHS
that the petitioner's business is likely to suffer irreparable harm.
Any petition received lacking the requisite attestation may be denied
in accordance with 8 CFR 103.2(b)(8)(ii). Although this regulation does
not require submission of evidence at the time of filing of the
petition, other than an attestation, the employer must have such
evidence on hand and ready to present to DHS, DOL, or DOS at any time
starting with the date of filing, through the prescribed document
retention period discussed below.
In addition to the statement regarding the irreparable harm
standard, the attestation will also state that the employer: Meets all
other eligibility criteria for the available visas, including the
returning worker requirement; will comply with all assurances,
obligations, and conditions of employment set forth in the Application
for Temporary Employment Certification (Form ETA 9142B and Appendix B)
certified by DOL for the job opportunity (which serves as the TLC);
will conduct additional recruitment of U.S. workers in accordance with
this rulemaking; and will document and retain evidence of such
compliance. Because the attestation will be submitted to USCIS as
initial evidence with Form I-129, DHS considers the attestation to be
evidence that is incorporated into and a part of the petition
consistent with 8 CFR 103.2(b)(1). Accordingly, a petition may be
denied or revoked, as applicable, based on or related to statements
made in the attestation, including, but not limited to, because the
employer failed to demonstrate employment of all of the requested
workers as required under the irreparable harm standard, or because the
employer failed to demonstrate that it requested and/or instructed that
each worker petitioned was a returning worker as required by this rule.
Any denial or revocation on such basis, however, would be appealable
under 8 CFR part 103, consistent with existing USCIS procedures.
It is the view of the Secretaries of Homeland Security and Labor
that requiring a post-TLC attestation to USCIS is sufficiently
protective of U.S. workers given that the employer, in completing the
TLC process, has already made one unsuccessful attempt to recruit U.S.
workers. In addition, the employer is required to retain documentation,
which must be provided upon request, supporting the new attestations,
including a recruitment report for any additional recruitment required
under this rule. Although the employer must have such documentation on
hand at the time it files the petition, the Departments have determined
that if employers were required to submit the attestations to DOL
before seeking a petition from DHS or to complete any additional
recruitment required before submitting a petition, the attendant delays
would render any visas unlikely to satisfy the needs of American
businesses given processing timeframes and the time remaining in this
fiscal year. USCIS may issue a notice of intent to revoke and request
additional evidence, or issue a revocation notice, based on such
documentation, and DOL's OFLC and WHD will be able to review this
documentation and enforce the attestations during the course of an
audit examination or investigation. See 8 CFR 103.2(b) or 8 CFR
214.2(h)(11).
In accordance with the attestation requirement, under which
petitioners attest that they meet the irreparable harm standard and
that they are seeking to only employ returning workers, and the
document retention requirements at 20 CFR 655.67, the petitioner must
retain documents and records meeting their burden to demonstrate
compliance with this rule for 3 years, and must provide the documents
and records upon the request of DHS or DOL, such as in the event of an
audit or investigation. Supporting evidence may include, but is not
limited to, the following types of documentation:
(1) Evidence that the business is or would be unable to meet
financial or contractual obligations without H-2B workers, including
evidence of contracts, reservations, orders, or other business
arrangements that have been or would be cancelled absent the requested
H-2B workers, and evidence demonstrating an inability to pay debts/
bills;
(2) Evidence that the business has suffered or will suffer
permanent and severe financial loss during the period of need, as
compared to the period of need in prior years, such as financial
statements (including profit/loss statements) comparing the present
period of need to prior years; bank statements, tax returns, or other
documents showing evidence of current and past financial condition; and
relevant tax records, employment records, or other similar documents
showing hours worked and payroll comparisons from prior years to
current year;
(3) Evidence showing the number of workers needed in previous
seasons to meet the employer's temporary need as compared to those
currently employed, including the number of H-2B workers requested, the
number of H-2B workers actually employed, the dates of their
employment, and their hours worked (for example, payroll records),
particularly in comparison to the weekly hours stated on the TLC. In
addition, for employers that obtain authorization to employ H-2B
workers under this rule, evidence showing the number of H-2B workers
requested under this rule, the number of workers actually employed,
including H-2B workers, the dates of their employment, and their hours
worked (for example,
[[Page 20011]]
payroll records), particularly in comparison to the weekly hours stated
on the TLC;
(4) Evidence that the business is dependent on H-2B workers, such
as documentation showing the number of H-2B workers compared to U.S.
workers needed prospectively or in the past; business plan or reliable
forecast showing that, due to the nature and size of the business,
there is a need for a specific number of H-2B workers; and
(5) Evidence that the employer requested and/or instructed that
each of the workers petitioned by the employer in connection with this
temporary rule were issued H-2B visas or otherwise granted H-2B status
in FY 2016, 2017, or 2018. Such evidence would include, but is not
limited to, a date-stamped written communication from the employer to
its agent(s) and/or recruiter(s) that instructs the agent(s) and/or
recruiter(s) to only recruit and provide instruction regarding an
application for an H-2B visa to those foreign workers who were
previously issued an H-2B visa or granted H-2B status in FY 2016, 2017,
or 2018.
This temporary rule does not apply to workers who have already been
counted under the fiscal year 2019 H-2B (66,000) cap. Further, this
rule does not apply to persons who are exempt from the fiscal year 2019
H-2B cap, including those who are extending their stay in H-2B status.
Accordingly, petitioners who are filing on behalf of such workers are
not subject to the attestation requirement.
These examples are not exclusive, nor will they necessarily
establish that the business meets the irreparable harm or returning
worker standards; petitioners may retain other types of evidence they
believe will satisfy these standards. If an audit or investigation
occurs, DHS or DOL will review all evidence available to it to confirm
that the petitioner properly attested to DHS that their business would
likely suffer irreparable harm and that they petitioned for and
employed only returning workers. If DHS subsequently finds that the
evidence does not support the employer's attestation, DHS may deny or,
if the petition has already been approved, revoke the petition at any
time consistent with existing regulatory authorities. DHS may also, or
alternatively, notify DOL. In addition, DOL may independently take
enforcement action, including by, among other things, debarring the
petitioner from the H-2B program generally for not less than one year
or more than 5 years from the date of the final agency decision which
also disqualifies the debarred party from filing any labor
certification applications or labor condition applications with DOL for
the same period set forth in the final debarment decision. See, for
example, 20 CFR 655.73; 29 CFR 503.20, 503.24.\22\
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\22\ Pursuant to the statutory provisions governing enforcement
of the H-2B program, INA section 214(c)(14), 8 U.S.C. 1184(c)(14), a
violation exists under the H-2B program where there has been a
willful misrepresentation of a material fact in the petition or a
substantial failure to meet any of the terms and conditions of the
petition. A substantial failure is a willful failure to comply that
constitutes a significant deviation from the terms and conditions.
See, e.g., 29 CFR 503.19.
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To the extent that evidence reflects a preference for hiring H-2B
workers over U.S. workers, an investigation by other agencies enforcing
employment and labor laws, such as the Immigrant and Employee Rights
Section (IER) of the Department of Justice's Civil Rights Division, may
be warranted. See INA section 274B, 8 U.S.C. 1324b (prohibiting certain
types of employment discrimination based on citizenship status or
national origin). Moreover, DHS and DOL may refer potential
discrimination to IER pursuant to applicable interagency agreements.
See IER, Partnerships, https://www.justice.gov/crt/partnerships (last
visited Apr. 9, 2019). In addition, if members of the public have
information that a participating employer may be abusing this program,
DHS invites them to notify USCIS's Fraud Detection and National
Security Directorate by contacting the general H-2B complaint address
at [email protected].\23\
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\23\ DHS may publicly disclose information regarding the H-2B
program consistent with applicable law and regulations. For
information about DHS disclosure of information contained in a
system of records see https://www.dhs.gov/system-records-notices-sorns. Additional general information about DHS privacy policy
generally can be accessed at https://www.dhs.gov/policy.
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DHS, in exercising its statutory authority under INA section
101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b), and section 105
of the FY 2019 Omnibus, is responsible for adjudicating eligibility for
H-2B classification. As in all cases, the burden rests with the
petitioner to establish eligibility by a preponderance of the evidence.
INA section 291, 8 U.S.C. 1361. Accordingly, as noted above, where the
petition lacks initial evidence, such as a properly completed
attestation, DHS may deny the petition in accordance with 8 CFR
103.2(b)(8)(ii). Further, where the initial evidence submitted with the
petition contains inconsistencies or is inconsistent with other
evidence in the petition and underlying TLC, DHS may issue a Request
for Evidence, Notice of Intent to Deny, or Denial in accordance with 8
CFR 103.2(b)(8). In addition, where it is determined that an H-2B
petition filed pursuant to the FY 2019 Omnibus was granted erroneously,
the H-2B petition approval may be revoked. See 8 CFR 214.2(h)(11).
Because of the particular circumstances of this regulation, and
because the attestation plays a vital role in achieving the purposes of
this regulation, DHS and DOL intend that the attestation requirement be
non-severable from the remainder of the regulation. Thus, in the event
the attestation requirement is enjoined or held invalid, the remainder
of the regulation, with the exception of the retention requirements
being codified in 20 CFR 655.67, is also intended to cease operation in
the relevant jurisdiction, without prejudice to workers already present
in the United States under this regulation, as consistent with law.
E. DHS Petition Procedures
To petition for H-2B workers under this rule, the petitioner must
file a Form I-129 in accordance with applicable regulations and form
instructions, an unexpired TLC, and the attestation described above.
See new 8 CFR 214.2(h)(6)(x). The attestation must be filed on Form
ETA-9142-B-CAA-3, Attestation for Employers Seeking to Employ H-2B
Nonimmigrants Workers Under Section 105 of Division H of the
Consolidated Appropriations Act. See 20 CFR 655.64. A petitioner is
required to retain a copy of such attestation and all supporting
evidence for 3 years from the date the associated TLC was approved,
consistent with 20 CFR 655.56 and 29 CFR 503.17. See new 20 CFR 655.67.
Petitions submitted pursuant to the FY 2019 Omnibus will be processed
in the order in which they were received. Petitioners may also choose
to request premium processing of their petition under 8 CFR 103.7(e),
which allows for expedited processing for an additional fee.
To encourage timely filing of any petition seeking a visa under the
FY 2019 Omnibus, DHS is notifying the public that the petition may not
be approved by USCIS on or after October 1, 2019. See new 8 CFR
214.2(h)(6)(x). Petitions pending with USCIS that are not approved
before October 1, 2019, will be denied and any fees will not be
refunded. See new 8 CFR 214.2(h)(6)(x).
USCIS's current processing goals for H-2B petitions that can be
adjudicated without the need for further evidence (i.e., without a
Request for Evidence or Notice of Intent to Deny) are 15 days for
petitions requesting premium processing and 30 days for standard
[[Page 20012]]
processing.\24\ Given USCIS' processing goals for premium processing,
DHS believes that 15 days from the end of the fiscal year is the
minimum time needed for petitions to be adjudicated, although USCIS
cannot guarantee the time period will be sufficient in all cases.
Therefore, if the increase in the H-2B numerical limitation to 30,000
visas has not yet been reached, USCIS will stop accepting petitions
received after September 16, 2019.\25\ See new 8 CFR 214.2(h)(6)(x)(C).
Such petitions will be rejected and the filing fees will be returned.
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\24\ These processing goals are not binding on USCIS; depending
on the evidence presented, actual processing times may vary from
these 15- and 30-day periods.
\25\ In FY 2017, USCIS used September 15th as the cutoff date
for accepting petitions filed under the supplemental cap. The 15
days for processing was tied to the Premium Processing clock.
However, in FY 2018 and FY 2019, September 15th is on a Saturday and
Sunday, respectively, when USCIS does not accept petitions. USCIS
has revised this date accordingly to remain consistent with the
expectation of adjudication within the premium processing clock and
to avoid potential confusion and frustration from petitioners who
might have otherwise expected their petitions to be received on the
15th but would instead face rejection.
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As with other Form I-129 filings, DHS encourages petitioners to
provide a duplicate copy of Form I-129 and all supporting documentation
at the time of filing if the beneficiary is seeking a nonimmigrant visa
abroad. Failure to submit duplicate copies may cause a delay in the
issuance of a visa to otherwise eligible applicants.\26\
F. DOL Procedures
All employers are required to have an approved and valid TLC from
DOL in order to file a Form I-129 petition with DHS. See 8 CFR
214.2(h)(6)(iv)(A) and (D). Employers with an approved TLC will have
already conducted recruitment, as set forth in 20 CFR 655.40 through
655.48, to determine whether U.S. workers are qualified and available
to perform the work for which H-2B workers are sought.
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\26\ Petitioners should note that under section 105, the H-2B
numerical increase relates to the total number of aliens who may
receive a visa under section 101(a)(15)(H)(ii)(b) of the INA in this
fiscal year.
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In addition to the recruitment already conducted in connection with
a valid TLC, in order to ensure the recruitment does not become stale,
employers with current TLCs must conduct a fresh round of recruitment
for U.S. workers if they file an I-129 petition 45 or more days after
the certified start date of work on the TLC. As noted in the 2015 H-2B
Interim Final Rule, U.S. workers seeking employment in temporary non-
agricultural jobs typically do not search for work months in advance,
and cannot make commitments about their availability for employment far
in advance of the work start date. See 80 FR 24041, 24061, 24071. Given
that the labor certification process generally begins 75 to 90 days in
advance of the employer's start date of work, employer recruitment
typically occurs between 40 and 60 days before that date. Therefore,
employers with TLCs containing a start date of work on April 1, 2019
likely began their recruitment around February 1, 2019 and likely ended
it about February 20, 2019; thus, their recruitment continues to be
valid. In order to provide U.S. workers a realistic opportunity to
pursue jobs for which employers will be seeking foreign workers under
this rule, the Departments have determined that if employers file the
petition 45 or more days after their dates of need, they have not
conducted recent enough recruitment so that the Departments can
reasonably conclude that there are currently an insufficient number of
U.S. workers qualified, willing, and available to perform the work
absent an additional, though abbreviated, recruitment attempt. The 45-
day threshold for additional recruitment identified in this rule
reflects a timeframe between the end of the employer's recruitment and
filing of the petition similar to that provided under the FY 2017 and
FY 2018 H-2B supplemental cap rules.
Therefore, only those employers with still-valid TLCs with a start
date of work that is 45 or more days before the date they file a
petition will be required to conduct additional recruitment, and attest
that the recruitment will be conducted, as follows. The employer must
place a new job order for the job opportunity with the State Workforce
Agency (SWA), serving the area of intended employment. The job order
must contain the job assurances and contents set forth in 20 CFR 655.18
for recruitment of U.S. workers at the place of employment, and remain
posted for at least 5 days beginning not later than the next business
day after submitting a petition for H-2B workers to USCIS. The employer
must also follow all applicable SWA instructions for posting job orders
and receive applications in all forms allowed by the SWA, including
online applications. In addition, eligible employers will also be
required to place one newspaper advertisement, which may be published
online or in print on any day of the week, meeting the advertising
requirements of 20 CFR 655.41, during the period of time the SWA is
actively circulating the job order for intrastate clearance. Employers
must retain the additional recruitment documentation, including a
recruitment report that meets the requirements for recruitment reports
set forth in 20 CFR 655.48(a)(1), (2), and (7), together with a copy of
the attestation and supporting documentation, as described above, for a
period of 3 years from the date that the TLC was approved, consistent
with the document retention requirements under 20 CFR 655.56. These
requirements are similar to those that apply to certain seafood
employers who stagger the entry of H-2B workers under 20 CFR 655.15(f).
The employer must hire any qualified U.S. worker who applies or is
referred for the job opportunity until 2 business days after the last
date on which the job order is posted. The 2 business day requirement
permits a brief additional period of time to enable U.S. workers to
contact the employer following the job order or newspaper
advertisement. Consistent with 20 CFR 655.40(a), applicants can be
rejected only for lawful job-related reasons.
DOL's WHD has the authority to investigate the employer's
attestations, as the attestations are a required part of the H-2B
petition process under this rule and the attestations rely on the
employer's existing, approved TLC. Where a WHD investigation determines
that there has been a willful misrepresentation of a material fact or a
substantial failure to meet the required terms and conditions of the
attestations, WHD may institute administrative proceedings to impose
sanctions and remedies, including (but not limited to) assessment of
civil money penalties, recovery of wages due, make whole relief for any
U.S. worker who has been improperly rejected for employment, laid off
or displaced, and/or debarment for 1 to 5 years. See 29 CFR 503.19,
503.20. This regulatory authority is consistent with WHD's existing
enforcement authority and is not limited by the expiration date of this
rule. Therefore, in accordance with the documentation retention
requirements at new 20 CFR 655.67, the petitioner must retain documents
and records evidencing compliance with this rule, and must provide the
documents and records upon request by DHS or DOL.
DHS has the authority to verify any information submitted to
establish H-2B eligibility at any time before or after the petition has
been adjudicated by USCIS. See, e.g., INA section 103, 204, and 214 (8
U.S.C. 1103, 1154, 1184) and 8 CFR part 103 and section 214.2(h). DHS's
verification methods may include, but are not limited to, review of
public records and information; contact via written correspondence or
telephone;
[[Page 20013]]
unannounced physical site inspections; and interviews. USCIS will use
information obtained through verification to determine H-2B eligibility
and assess compliance with the requirements of the H-2B program.
Subject to the exceptions described in 8 CFR 103.2(b)(16), USCIS will
provide petitioners with an opportunity to address any adverse
information that may result from a USCIS compliance review,
verification, or site visit after a formal decision is made on a
petition or after the agency has initiated an adverse action that may
result in revocation or termination of an approval.
DOL's OFLC already has the authority under 20 CFR 655.70 to conduct
audit examinations on adjudicated Applications for Temporary Employment
Certification, including all appropriate appendices, and verify any
information supporting the employer's attestations. DOL considers the
Form ETA-9142B-CAA-3 to be an appendix to the Application for Temporary
Employment Certification and the attestations contained on the Form
ETA-9142B-CAA-3 and documentation supporting the attestations to be
evidence that is incorporated into and a part of the approved TLC.
Where an audit examination or review of information from DHS or other
appropriate agencies determines that there has been fraud or willful
misrepresentation of a material fact or a substantial failure to meet
the required terms and conditions of the attestations or failure to
comply with the audit examination process, OFLC may institute
appropriate administrative proceedings to impose sanctions on the
employer. These sanctions may result in revocation of an approved TLC,
the requirement that the employer undergo assisted recruitment in
future filings of an Application for Temporary Employment Certification
for a period of up to 2 years, and/or debarment from the H-2B program
and any other foreign labor certification program administered by the
DOL for 1 to 5 years. See 29 CFR 655.71, 655.72, 655.73. Additionally,
OFLC has the authority to provide any finding made or documents
received during the course of conducting an audit examination to the
DHS, WHD, IER, or other enforcement agencies. OFLC's existing audit
authority is independently authorized, and is not limited by the
expiration date of this rule. Therefore, in accordance with the
documentation retention requirements at new 20 CFR 655.67, the
petitioner must retain documents and records proving compliance with
this rule, and must provide the documents and records upon request by
DHS or DOL.
Petitioners must also comply with any other applicable laws, such
as avoiding unlawful discrimination against U.S. workers based on their
citizenship status or national origin. Specifically, the failure to
recruit and hire qualified and available U.S. workers on account of
such individuals' national origin or citizenship status may violate INA
section 274B, 8 U.S.C. 1324b.
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
This rule is issued without prior notice and opportunity to comment
and with an immediate effective date pursuant to the Administrative
Procedure Act (APA). 5 U.S.C. 553(b) and (d).
1. Good Cause To Forgo Notice and Comment Rulemaking
The APA, 5 U.S.C. 553(b)(B), authorizes an agency to issue a rule
without prior notice and opportunity to comment when the agency for
good cause finds that those procedures are ``impracticable,
unnecessary, or contrary to the public interest.'' The good cause
exception for forgoing notice and comment rulemaking ``excuses notice
and comment in emergency situations, or where delay could result in
serious harm.'' Jifry v. FAA, 370 F.3d 1174, 1179 (DC Cir. 2004).
Although the good cause exception is ``narrowly construed and only
reluctantly countenanced,'' Tenn. Gas Pipeline Co. v. FERC, 969 F.2d
1141, 1144 (DC Cir. 1992) the Departments have appropriately invoked
the exception in this case, for the reasons set forth below.
In this case, the Departments are bypassing advance notice and
comment because of the exigency created by section 105 of Div. H of the
Consolidated Appropriations Act, 2019 (FY 2019 Omnibus), which went
into effect on February 15, 2019, and expires on September 30, 2019.
USCIS received more than enough petitions to meet the H-2B visa
statutory cap for the second half of FY 2019 on February 19, 2019,
which is 8 days earlier than when the cap for the second half of FY
2018 was reached, and is the earliest date the cap for the second half
of the fiscal year has been reached since FY 2016. USCIS conducted a
lottery on February 21, 2019, to randomly select a sufficient number of
petitions to meet the cap. USCIS rejected and returned the petitions
and associated filing fees to petitioners that were not selected, as
well as all cap-subject petitions received after February 19, 2019.
Given high demand by American businesses for H-2B workers, and the
short period of time remaining in the fiscal year for U.S. employers to
avoid the economic harms described above, a decision to undertake
notice and comment rulemaking would likely delay final action on this
matter by weeks or months, and would therefore complicate and likely
preclude the Departments from successfully exercising the authority in
section 105.
Courts have found ``good cause'' under the APA when an agency is
moving expeditiously to avoid significant economic harm to a program,
program users, or an industry. Courts have held that an agency may use
the good cause exception to address ``a serious threat to the financial
stability of [a government] benefit program,'' Nat'l Fed'n of Fed.
Emps. v. Devine, 671 F.2d 607, 611 (DC Cir. 1982), or to avoid
``economic harm and disruption'' to a given industry, which would
likely result in higher consumer prices, Am. Fed'n of Gov't Emps. v.
Block, 655 F.2d 1153, 1156 (DC Cir. 1981).
Consistent with the above authorities, the Departments have
bypassed notice and comment to prevent the ``serious economic harm to
the H-2B community,'' including associated U.S. workers, that could
result from ongoing uncertainty over the status of the numerical
limitation, i.e., the effective termination of the program through the
remainder of FY 2019. See Bayou Lawn & Landscape Servs. v. Johnson, 173
F. Supp. 3d 1271, 1285 & n.12 (N.D. Fla. 2016). The Departments note
that this action is temporary in nature, see id.,\27\ and includes
appropriate conditions to ensure that it affects only those businesses
most in need.
---------------------------------------------------------------------------
\27\ Because the Departments have issued this rule as a
temporary final rule, this rule--with the sole exception of the
document retention requirements--will be of no effect after
September 30, 2019, even if Congress includes an authority similar
to section 105 in a subsequent act of Congress.
---------------------------------------------------------------------------
2. Good Cause To Proceed With an Immediate Effective Date
The APA also authorizes agencies to make a rule effective
immediately, upon a showing of good cause, instead of imposing a 30-day
delay. 5 U.S.C. 553(d)(3). The good cause exception to the 30-day
effective date requirement is easier to meet than the good cause
exception for foregoing notice and comment rulemaking. Riverbend Farms,
Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992); Am. Fed'n of
Gov't Emps., AFL-CIO v. Block, 655 F.2d 1153, 1156 (DC Cir. 1981); U.S.
Steel Corp. v. EPA, 605 F.2d 283, 289-90 (7th
[[Page 20014]]
Cir. 1979). An agency can show good cause for eliminating the 30-day
delayed effective date when it demonstrates urgent conditions the rule
seeks to correct or unavoidable time limitations. U.S. Steel Corp., 605
F.2d at 290; United States v. Gavrilovic, 511 F.2d 1099, 1104 (8th Cir.
1977). For the same reasons set forth above, we also conclude that the
Departments have good cause to dispense with the 30-day effective date
requirement given that this rule is necessary to prevent U.S.
businesses from suffering irreparable harm and therefore causing
significant economic disruption.
B. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 13771 (Reducing
Regulation and Controlling Regulatory Costs)
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
Executive Order 13771 (``Reducing Regulation and Controlling Regulatory
Costs'') directs agencies to reduce regulation and control regulatory
costs.
The Office of Management and Budget (OMB) has determined that this
rule is a ``significant regulatory action'' although not an
economically significant regulatory action. Accordingly, OMB has
reviewed this regulation. This final rule is considered an Executive
Order 13771 deregulatory action. Details on the estimated cost savings
of this temporary rule are discussed in the rule's economic analysis.
1. Summary
With this final rule, DHS is authorizing up to an additional 30,000
visas for the remainder of FY 2019, pursuant to the FY 2019 Omnibus, to
be available to certain H-2B workers for certain U.S. businesses under
the H-2B visa classification. By the authority given under the FY 2019
Omnibus, DHS is increasing the H-2B cap for the remainder of FY 2019
for those businesses that: (1) Show that there are an insufficient
number of qualified U.S. workers to meet their needs in FY 2019; (2)
attest that their businesses are likely to suffer irreparable harm
without the ability to employ the H-2B workers that are the subject of
their petition; and (3) petition for returning H-2B workers who were
issued an H-2B visa or were otherwise granted H-2B status in FY 2016,
2017, or 2018. DHS estimates that the total cost of this rule ranges
from $9,360,053 (rounded) to $11,949,369 (rounded) depending on the
combination of petitions filed by each type of filer.\28\ Table 1
(below) provides a brief summary of the provision and its impact.
---------------------------------------------------------------------------
\28\ Calculation: Petitioner costs to file (Form I-129:
$2,484,797 (rounded) to $4,802,392 (rounded)) + (Form I-907:
$5,425,961 to $5,697,682) + (Form ETA:-9142-B-CAA-3 $1,449,295) =
$9,360,053 (rounded) to $11,949,369 (rounded).
Table 1--Summary of Provision and Impact
----------------------------------------------------------------------------------------------------------------
Changes resulting Expected benefit of
Current provision from the proposed Expected cost of the proposed the proposed
provisions provision provision
----------------------------------------------------------------------------------------------------------------
The current statutory cap limits H- The amended The total estimated Eligible
2B visa allocations by 66,000 provisions would cost to file Form I-129 would petitioners would
workers a year. allow for up to be $2,484,797 (rounded) if be able to hire the
30,000 additional H- human resource specialists temporary workers
2B visas for the file, $3,527,162 (rounded) if needed to prevent
remainder of the in-house lawyers file, and their businesses
fiscal year. $4,802,392 (rounded) if from suffering
outsourced lawyers file. irreparable harm.
U.S.
employees of these
businesses would
avoid harm.
If a Form I-907 is
submitted as well, the total
estimated cost to file for
Form I-907 would be a maximum
of $5,425,961 if human
resource specialists file,
$5,542,300 if in-house lawyers
file, and $5,697,682 if
outsourced lawyers file.
DHS may incur some
additional adjudication costs
as more applicants may file
Form I-129. However, these
additional costs are expected
to be covered by the fees paid
for filing the form.
Petitioners would The total estimated Serves as
also be required to cost to petitioners to initial evidence to
fill out newly complete and file Form ETA- DHS that the
created Form ETA- 9142-B-CAA-3 is $1,449,295. petitioner meets
9142-B-CAA-3, the irreparable
Attestation for harm and returning
Employers Seeking to workers standards.
Employ H-2B
Nonimmigrants
Workers Under
Section 105 of Div.
H of the
Consolidated
Appropriations Act,
2019.
----------------------------------------------------------------------------------------------------------------
Source: USCIS and DOL analysis.
[[Page 20015]]
2. Background and Purpose of the Rule
The H-2B visa classification program was designed to serve U.S.
businesses that are unable to find a sufficient number of qualified
U.S. workers to perform nonagricultural work of a temporary or seasonal
nature. For an H-2B nonimmigrant worker to be admitted into the United
States under this visa classification, the hiring employer is required
to: (1) Receive a TLC from DOL and (2) file a Form I-129 with DHS. The
temporary nature of the services or labor described on the approved TLC
is subject to DHS review during adjudication of Form I-129.\29\ Up to
33,000 aliens may be issued H-2B visas or provided H-2B nonimmigrant
status in the first half of a fiscal year, and the remaining annual
allocation (66,000 is the total annual allocation) will be available
for employers seeking to hire H-2B workers during the second half of
the fiscal year.\30\ Any unused numbers from the first half of the
fiscal year will be available for employers seeking to hire H-2B
workers during the second half of the fiscal year. However, any unused
H-2B numbers from one fiscal year do not carry over into the next and
will therefore not be made available.\31\
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\29\ Revised effective 1/18/2009; 73 FR 78104.
\30\ See INA section 214(g)(1)(B), 8 U.S.C. 1184(g)(1)(B), INA
section 214(g)(10) and 8 U.S.C. 1184(g)(10).
\31\ A TLC approved by the Department of Labor must accompany an
H-2B petition. The employment start date stated on the petition
generally must match the start date listed on the TLC. See 8 CFR
214.2(h)(6)(iv)(A) and (D).
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The H-2B cap for the second half of FY 2019 was reached on February
19, 2019. Normally, once the H-2B cap has been reached, petitioners
must wait until the next half of the fiscal year, or the beginning of
the next fiscal year, for additional cap-subject visas to become
available. However, on February 15, 2019, the President signed the FY
2019 Omnibus that contains a provision (Sec. 105 of Div. H) authorizing
the Secretary of Homeland Security, under certain circumstances, to
increase the number of H-2B visas available to U.S. employers,
notwithstanding the established statutory numerical limitation. After
consulting with the Secretary of Labor, the Secretary of Homeland
Security has determined it is appropriate to raise the H-2B cap by up
to an additional 30,000 visas for the remainder of FY 2019 for certain
H-2B workers who would be employed with certain businesses.
3. Population
This temporary rule would impact those employers who file Form I-
129 on behalf of the nonimmigrant worker(s) they seek to hire under the
H-2B visa program. More specifically, this rule would impact those
employers who could establish that their business is likely to suffer
irreparable harm because they cannot employ the H-2B returning workers
requested on their petition in this fiscal year. Due to the temporary
nature of this rule and the limited time left for these additional
visas to be available, DHS believes it is more reasonable to assume
that eligible petitioners for these additional 30,000 visas will be
those employers that have already completed the steps to receive an
approved TLC prior to the issuance of this rule.\32\
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\32\ Note that as in the standard H-2B visa issuance process,
petitioning employers must still apply for a temporary labor
certification and receive approval from DOL before submitting the
Form I-129 petition with USCIS. Additionally, petitioning employers
can only apply for returning workers who were issued an H-2B visa or
were otherwise granted H-2B status in FY 2016, 2017, or 2018.
---------------------------------------------------------------------------
According to DOL OFLC's certification data for FY 2019, as of March
25, 2019, about 6,183 H-2B certification applications were received
with expected work start dates between April 1 and September 30, 2019.
DOL OFLC has approved 4,687 certifications for 82,539 H-2B positions
and is still reviewing the remaining 863 TLC requests for 13,701 H-2B
positions. However, many of these certified worker positions have
already been filled under the semi-annual cap of 33,000. Of the 4,687
certified Applications for Temporary Employment Certification, USCIS
data shows that 1,774 were already filed with H-2B petitions toward the
second semi-annual cap of 33,000 visas. We believe that approximately
up to 3,776 Applications for Temporary Employment Certification may be
filed under this rule and the FY 2019 supplemental cap. This number is
based on the sum of the remaining 2,913 certified H-2B Applications for
Temporary Employment Certification (4,687 (total certified)-1,774
(certified and already submitted under the second semi-annual cap) and
863 Applications for Temporary Employment Certification that are still
being processed by DOL, and therefore represents a reasonable estimate
of the pool of potential petitions that may request additional H-2B
workers under this rule; i.e., under the FY 2019 supplemental cap.\33\
---------------------------------------------------------------------------
\33\ DHS recognizes that some of the 863 Applications for
Temporary Employment Certification that are currently in process may
ultimately be denied by DOL, and for those that are not denied, not
all will be submitted with H-2B petitions toward the FY 2019
supplemental cap. Similarly, DHS recognizes that not all of the
2,913 approved Applications for Temporary Employment Certification
not submitted under the second semi-annual cap of 33,000 will
ultimately be submitted with H-2B petitions under the FY 2019
supplemental cap. This is in large part because of the heightened
``irreparable harm standard'' and the returning workers requirement
that employers must meet in order to qualify for additional H-2B
visas. However, since DHS cannot more closely estimate the number of
petitions that will be submitted under the FY 2019 supplemental cap,
DHS believes that 3,776 is reasonable proxy to use as the upper
limit of potential petitions for purposes of this analysis.
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4. Cost-Benefit Analysis
The costs for this form include filing costs and the opportunity
costs of time to complete and file the form. The current filing fee for
Form I-129 is $460 and the estimated time needed to complete and file
Form I-129 for H-2B classification is 4.26 hours.\34\ The time burden
of 4.26 hours for Form I-129 also includes the time to file and retain
documents. The application must be filed by a U.S. employer, a U.S.
agent, or a foreign employer filing through the U.S. agent. 8 CFR
214.2(h)(2). Due to the expedited nature of this rule, DHS was unable
to obtain data on the number of Form I-129 H-2B petitions filed
directly by a petitioner and those that are filed by a lawyer on behalf
of the petitioner. Therefore, DHS presents a range of estimated costs
including if only human resource (HR) specialists file Form I-129 or if
only lawyers file Form I-129.\35\ Further, DHS presents cost estimates
for lawyers filing on behalf of applicants based on whether all Form I-
129 applications are filed by in-house lawyers or by outsourced
lawyers.\36\ DHS presents an estimated range of costs assuming that
only HR specialists, in-house lawyers, or outsourced lawyers file these
forms, though DHS recognizes that it is likely that filing will be
[[Page 20016]]
conducted by a combination of these different types of filers.
---------------------------------------------------------------------------
\34\ The public reporting burden for this form is 2.26 hours for
Form I-129 and an additional 2 hours for H Classification
Supplement. See Form I-129 instructions at https://www.uscis.gov/i-129 (last visited Apr. 10, 2019).
\35\ For the purposes of this analysis, DHS assumes a human
resource specialist or some similar occupation completes and files
these forms as the employer or petitioner who is requesting the H-2B
worker. However, DHS understands that not all entities have human
resources departments or occupations and, therefore, recognizes
equivalent occupations may prepare these petitions.
\36\ For the purposes of this analysis, DHS adopts the terms
``in-house'' and ``outsourced'' lawyers as they were used in the
DHS, U.S. Immigration and Customs Enforcement (ICE) analysis,
``Final Small Entity Impact Analysis: Safe-Harbor Procedures for
Employers Who Receive a No-Match Letter'' at G-4 (posted Aug. 5,
2008), available at http://www.regulations.gov/#!documentDetail;D=ICEB-2006-0004-0922. The DHS ICE analysis
highlighted the variability of attorney wages and was based on
information received in public comment to that rule. We believe the
distinction between the varied wages among lawyers is appropriate
for our analysis. Additionally, this methodology was also utilized
in the analysis for the temporary final rule increasing the FY 2018
H-2B Cap. See 83 FR 24905 (May 31, 2018).
---------------------------------------------------------------------------
To estimate the total opportunity cost of time to petitioners who
complete and file Form I-129, DHS uses the mean hourly wage rate of HR
specialists of $31.84 as the base wage rate.\37\ If applicants hire an
in-house or outsourced lawyer to file Form I-129 on their behalf, DHS
uses the mean hourly wage rate of $68.22 as the base wage rate.\38\
Using Bureau of Labor Statistics (BLS) data, DHS calculated a benefits-
to-wage multiplier of 1.46 to estimate the full wages to include
benefits such as paid leave, insurance, and retirement.\39\ DHS
multiplied the average hourly U.S. wage rate for HR specialists and for
in-house lawyers by the benefits-to-wage multiplier of 1.46 to estimate
the full cost of employee wages. The total per hour wage is $46.49 for
an HR specialist and $99.60 for an in-house lawyer.\40\ In addition,
DHS recognizes that an entity may not have in-house lawyers and
therefore, seek outside counsel to complete and file Form I-129 on
behalf of the petitioner. Therefore, DHS presents a second wage rate
for lawyers labeled as outsourced lawyers. DHS estimates the total per
hour wage is $170.55 for an outsourced lawyer.\41,42\ If a lawyer
submits Form I-129 on behalf of the petitioner, Form G-28 (Notice of
Entry of Appearance as Attorney or Accredited Representative), must
accompany the Form I-129 submission.\43\ DHS estimates the time burden
to complete and submit Form G-28 for a lawyer is 30 minutes (0.5 hour).
For this analysis, DHS adds the time to complete Form G-28 to the
opportunity cost of time to lawyers for filing Form I-129 on behalf of
a petitioner. Therefore, the total opportunity cost of time for an HR
specialist to complete and file Form I-129 is $198.05, for an in-house
lawyer to complete and file is $474.10, and for an outsourced lawyer to
complete and file is $811.82.\44\ The total cost, including filing fee
and opportunity costs of time, per petitioner to file Form I-129 is
$658.05 if HR specialists file, $934.10 if an in-house lawyer files,
and $1,271.82 if an outsourced lawyer files the form.\45\
---------------------------------------------------------------------------
\37\ U.S. Department of Labor, Bureau of Labor Statistics,
Occupational Employment Statistics, May 2017, Human Resources
Specialist: https://www.bls.gov/oes/2017/may/oes131071.htm.
\38\ U.S. Department of Labor, Bureau of Labor Statistics.
Occupational Employment Statistics May 2017, Lawyers: https://www.bls.gov/oes/2017/may/oes231011.htm.
\39\ The benefits-to-wage multiplier is calculated as follows:
(Total Employee Compensation per hour)/(Wages and Salaries per
hour). See Economic News Release, U.S. Department of Labor, Bureau
of Labor Statistics, Table 1. Employer costs per hour worked for
employee compensation and costs as a percent of total compensation:
Civilian workers, by major occupational and industry group (Mar.
2019), available at https://www.bls.gov/news.release/archives/ecec_03192019.pdf.
\40\ Calculation for the fully loaded hourly total wage of an HR
specialist: $31.84 x 1.46 = $46.49. Calculation for the fully loaded
hourly wage of an in-house lawyer: $68.22 x 1.46 = $99.60.
\41\ Calculation: Average hourly wage rate of lawyers x
Benefits-to-wage multiplier for outsourced lawyer = $68.22 x 2.5 =
$170.55.
\42\ The DHS ICE ``Safe-Harbor Procedures for Employers Who
Receive a No-Match Letter'' used a multiplier of 2.5 to convert in-
house attorney wages to the cost of outsourced attorney based on
information received in public comment to that rule. We believe the
explanation and methodology used in the Final Small Entity Impact
Analysis remains sound for using 2.5 as a multiplier for outsourced
labor wages in this rule, see page G-4 [Aug. 25, 2008] [http://www.regulations.gov/#!documentDetail;D=ICEB-2006-0004-0922].
Additionally, this methodology was also utilized in the analysis for
the temporary final rule increasing the FY 2018 H-2B Cap. See 83 FR
24905 (May 31, 2018).
\43\ USCIS, Filing Your Form G-28, https://www.uscis.gov/forms/filing-your-form-g-28.
\44\ Calculation if an HR specialist files: $46.49 x (4.26
hours) = $198.05;
Calculation if an in-house lawyer files: $99.60 x (4.26 hours to
file Form I-129 H-2B + 0.5 hour to file Form G-28) = $474.10;
Calculation if an outsourced lawyer files: $170.55 x (4.26 hours
to file Form I-129 H-2B + 0.5 hour to file Form G-28) = $811.82.
\45\ Calculation if an HR specialist files: $198.05 + $460
(filing fee) = $658.05;
Calculation if an in-house lawyer files: $474.10 + $460 (filing
fee) = $934.10;
Calculation if outsourced lawyer files: $811.82 + $460 (filing
fee) = $1,271.82.
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(a) Cost to Petitioners
As mentioned in Section III.B.3., the population impacted by this
rule is the 3,776 petitioners who may apply for up to 30,000 additional
H-2B visas for the remainder of FY 2019. Based on the previously
presented total filing costs per petitioner, DHS estimates the total
cost to file Form I-129 is $2,484,797 (rounded) if HR specialists file,
$3,527,162 (rounded) if in-house lawyers file, and $4,802,392 (rounded)
if outsourced lawyers file.\46\ DHS recognizes that not all Form I-129
petitions are likely to be filed by only one type of filer and cannot
predict how many petitions would be filed by each type of filer.
Therefore, DHS estimates that the total cost to file Form I-129 could
range from $2,484,797 (rounded) to $4,802,392 (rounded) depending on
the combination of petitions filed by each type of filer.
---------------------------------------------------------------------------
\46\ Calculation if HR specialist files: $658.05 x 3,776
(population applying for H-2B visas) = $2,484,796.80 = $2,484,797
(rounded);
Calculation if an in-house lawyer files: $934.1 x 3,776
(population applying for H-2B visas) = $3,527,161.60 = $3,527,162
(rounded);
Calculation if an outsourced lawyer files: $1,271.82 x 3,776
(population applying for H-2B visas) = $4,802,392.32 = $4,802,392
(rounded).
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(1) Form I-907
Employers may use Request for Premium Processing Service (Form I-
907) to request faster processing of their Form I-129 petitions for H-
2B visas. The filing fee for Form I-907 is $1,410 and the time burden
for completing the form is 0.58 hours. Using the wage rates established
previously, the opportunity cost of time is $26.96 for an HR specialist
to file Form I-907, $57.77 for an in-house lawyer to file, and $98.92
for an outsourced lawyer to file.\47\ Therefore, the total filing cost
to complete and file Form I-907 per petitioner is $1,436.96 if HR
specialists file, $1,467.77 if in-house lawyers file, and $1,508.92 if
outsourced lawyers file.\48\ Due to the expedited nature of this rule,
DHS was unable to obtain data on the average percentage of Form I-907
applications that were submitted with Form I-129 H-2B petitions. Table
2 (below) shows the range of percentages of the 3,776 petitioners who
may also request their Form I-129 adjudications be premium processed as
well as the estimated total cost of filing Form I-907. DHS anticipates
that most, if not all, of the additional 3,776 Form I-129 petitions
will be requesting premium processing due to the limited time between
the publication of this rule and the end of the fiscal year. Further,
as shown in table 2, the total estimated cost to complete and file a
Form I-907 when submitted with Form I-129 on behalf of an H-2B worker
is a maximum of $5,425,961 if human resources specialists file,
$5,542,300 if in-house lawyers file, and $5,697,682 if outsourced
lawyers file.
---------------------------------------------------------------------------
\47\ Calculation if an HR specialist files: $46.49 x (0.58
hours) = $26.96;
Calculation if an in-house lawyer files: $99.60 x (0.58 hours) =
$57.77;
Calculation if an outsourced lawyer files: $170.55 x (0.58
hours) = $98.92.
\48\ Calculation if an HR specialist files: $26.96 + $1,410 =
$1,436.96;
Calculation if an in-house lawyer files: $57.77 + $1,410 =
1,467.77;
Calculation if outsourced lawyer files: $98.92 + $1,410 =
$1,508.92.
[[Page 20017]]
Table 2--Total Cost of Filing Form I-907 Under the H-2B Visa Program
----------------------------------------------------------------------------------------------------------------
Number of Total cost to filers c
filers -----------------------------------------------
Percent of filers requesting premium processing requesting
a premium Human In-house Outsourced
processing b resources lawyer lawyer
specialist
----------------------------------------------------------------------------------------------------------------
25.............................................. 944 $1,356,490 $1,385,575 $1,424,420
50.............................................. 1,888 2,712,980 2,771,150 2,848,841
75.............................................. 2,832 4,069,471 4,156,725 4,273,261
90.............................................. 3,398 4,883,365 4,988,070 5,127,914
95.............................................. 3,587 5,154,663 5,265,185 5,412,798
100............................................. 3,776 5,425,961 5,542,300 5,697,682
----------------------------------------------------------------------------------------------------------------
Notes:
a Assumes that all 30,000 additional H-2B visas will be filled by 3,776 petitioners.
b Numbers and dollar amounts are rounded to the nearest whole number.
c Calculation: (Total cost per filer of Form I-907) x Number of filers who request premium processing = Total
cost to filer (rounded to the nearest dollar).
Source: USCIS analysis.
(2) Attestation Requirements
The attestation form includes recruiting requirements, the
irreparable harm standard, and document retention obligations. DOL
estimates the time burden for completing and signing the form is 0.25
hour and 0.5 hour for notifying third parties and retaining records
relating to the returning worker requirements. Using the total per hour
wage for an HR specialist ($46.49), the opportunity cost of time for an
HR specialist to complete the attestation form and notifying third
parties and retaining records relating to the returning worker
requirements, is $34.87.\49\
---------------------------------------------------------------------------
\49\ Calculation: $46.49 (average per hour wage for an HR
specialist) x 0.75 (time burden for the new attestation form and
notifying third parties and retaining records related to the
returning worker requirements.) = $34.87.
---------------------------------------------------------------------------
Additionally, the form requires that the petitioner assess and
document supporting evidence for meeting the irreparable harm standard,
and retain those documents and records, which we assume will require
the resources of a financial analyst (or another equivalent
occupation). Using the same methodology previously described for wages,
the total per hour wage for a financial analyst is $69.79.\50\ DOL
estimates the time burden for these tasks is at least 4 hours, and 1
hour for gathering and retaining documents and records. Therefore, the
total opportunity costs of time for a financial analyst to assess,
document, and retain supporting evidence is $348.95.\51\
---------------------------------------------------------------------------
\50\ Calculation: $47.80 (average per hour wage for a financial
analyst, based on BLS wages) x 1.46 (benefits-to-wage multiplier) =
$69.79. U.S. Department of Labor, Bureau of Labor Statistics,
Occupational Employment Statistics May 2017, Financial Analysts:
https://www.bls.gov/oes/2017/may/oes132051.htm.
\51\ Calculation: $69.79 (fully loaded hourly wage for a
financial analyst) x 5 hours (time burden for assessing, documenting
and retention of supporting evidence demonstrating the employer is
likely to suffer irreparable harm) = $348.95.
---------------------------------------------------------------------------
As discussed previously, we believe that the estimated 3,776
remaining unfilled certifications for the latter half of FY 2019 would
include all potential employers who might request to employ H-2B
workers under this rule. This number of certifications is a reasonable
proxy for the number of employers who may need to review and sign the
attestation. Using this estimate for the total number of
certifications, DOL estimates that the cost for HR specialists is
$131,660 and for financial analysts is $1,317,635 (rounded).\52\ The
total cost is estimated to be $1,449,295.\53\
---------------------------------------------------------------------------
\52\ Calculations: Cost for HR Specialists: $46.49 (fully loaded
hourly wage for an HR specialist) x 3,776 certifications x .75 hours
= $131,660. Cost for Financial Analysts: $69.79 (fully loaded hourly
wage for a financial analyst) x 3,776 certifications x 5 hours =
$1,317,635.
\53\ Calculation: $131,660 (total cost for HR specialists) +
$1,317,635 (total cost for financial analysts) = $1,449,295.
---------------------------------------------------------------------------
(b) Cost to the Federal Government
DHS anticipates some additional costs in adjudicating the
additional petitions submitted as a result of the increase in cap
limitation for H-2B visas. However, DHS expects these costs to be
covered by the fees associated with the forms.
(c) Benefits to Petitioners
The inability to access H-2B workers for these entities may cause
their businesses to suffer irreparable harm. Temporarily increasing the
number of available H-2B visas for this fiscal year may result in a
cost savings, because it will allow some businesses to hire the
additional labor resources necessary to avoid such harm. Preventing
such harm may ultimately rescue the jobs of any other employees
(including U.S. employees) at that establishment. Additionally,
returning workers are most likely very familiar with the H-2B process
and requirements and may be positioned to more expeditiously begin work
with these employers. In addition, employers may already be familiar
with returning workers as they have trained, vetted, and worked with
some of these returning workers in past years. As such, limiting the
supplemental visas to returning workers would assist employers who are
facing irreparable harm.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), imposes
certain requirements on Federal agency rules that are subject to the
notice and comment requirements of the APA. See 5 U.S.C. 603(a),
604(a). This final rule is exempt from notice and comment requirements
for the reasons stated above. Therefore, the requirements of the RFA
applicable to final rules, 5 U.S.C. 604, do not apply to this final
rule. Accordingly, the Departments are not required to either certify
that the final rule would not have a significant economic impact on a
substantial number of small entities or conduct a regulatory
flexibility analysis.
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the Act
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed rule, or final rule
for which the agency published a proposed rule that includes any
Federal mandate that may result in $100 million or more expenditure
(adjusted annually for inflation) in any one year by State, local, and
tribal governments, in the aggregate, or by the private sector. This
[[Page 20018]]
rule is exempt from the written statement requirement, because DHS did
not publish a notice of proposed rulemaking for this rule.
In addition, this rule does not exceed the $100 million expenditure
in any 1 year when adjusted for inflation ($165 million in 2018
dollars), and this rulemaking does not contain such a mandate. The
requirements of Title II of the Act, therefore, do not apply, and the
Departments have not prepared a statement under the Act.
E. Small Business Regulatory Enforcement Fairness Act of 1996
This temporary rule is not a major rule as defined by section 804
of the Small Business Regulatory Enforcement Act of 1996, Public Law
104-121, 804, 110 Stat. 847, 872 (1996), 5 U.S.C. 804(2). This rule has
not been found to 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 foreign-based companies in domestic or export markets.
F. Executive Order 13132 (Federalism)
This rule does not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order No. 13132, 64 FR 43255 (Aug. 4, 1999), this rule does
not have sufficient federalism implications to warrant the preparation
of a federalism summary impact statement.
G. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order No. 12988, 61 FR 4729 (Feb. 5, 1996).
H. National Environmental Policy Act
DHS analyzes actions to determine whether the National
Environmental Policy Act (NEPA) applies to them and if so what degree
of analysis is required. DHS Directive (Dir) 023-01 Rev. 01 establishes
the procedures that DHS and its components use to comply with NEPA and
the Council on Environmental Quality (CEQ) regulations for implementing
NEPA, 40 CFR parts 1500 through 1508. The CEQ regulations allow federal
agencies to establish, with CEQ review and concurrence, categories of
actions (``categorical exclusions'') which experience has shown do not
individually or cumulatively have a significant effect on the human
environment and, therefore, do not require an Environmental Assessment
(EA) or Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(1)(iii),
1508.4. DHS Instruction 023-01 Rev. 01 establishes such Categorical
Exclusions that DHS has found to have no such effect. Dir. 023-01 Rev.
01 Appendix A Table 1. For an action to be categorically excluded, DHS
Instruction 023-01 Rev. 01 requires the action to satisfy each of the
following three conditions: (1) The entire action clearly fits within
one or more of the Categorical Exclusions; (2) the action is not a
piece of a larger action; and (3) no extraordinary circumstances exist
that create the potential for a significant environmental effect. Inst.
023-01 Rev. 01 section V.B (1)-(3).
This rule temporarily amends the regulations implementing the H-2B
nonimmigrant visa program to increase the numerical limitation on H-2B
nonimmigrant visas for the remainder of FY 2019 based on the Secretary
of Homeland Security's determination, in consultation with the
Secretary of Labor, consistent with the FY 2019 Omnibus. Generally, DHS
believes that NEPA does not apply to a rule which changes the number of
visas which can be issued because any attempt to analyze its impact
would be largely, if not completely, speculative. The Departments
cannot estimate with reasonable certainty which employers will
successfully petition for employees in what locations and numbers. At
most, it is reasonably foreseeable that an increase of up to 30,000
visas may be issued for temporary entry into the United States in
diverse industries and locations. For purposes of the cost estimates
contained in the economic analysis above, DHS bases its calculations on
the assumption that all 30,000 will be issued. However, estimating the
cost of document filings is qualitatively different from analyzing
environmental impacts. Being able to estimate the costs per filing and
number of filings at least allows a calculation. Even making that
assumption, analyzing the environmental impacts of 30,000 visa
recipients among a current U.S. population in excess of 323 million and
across a U.S. land mass of 3.794 million square miles, would require a
degree of speculation that causes DHS to conclude that NEPA does not
apply to this action.
DHS has determined that even if NEPA were to apply to this action,
this rule would fit within one categorical exclusion under
Environmental Planning Program, DHS Instruction 023- 01 Rev. 01,
Appendix A, Table 1 and does not individually or cumulatively have a
significant effect on the human environment. Specifically, the rule
fits within Categorical Exclusion number A3(d) for rules that interpret
or amend an existing regulation without changing its environmental
effect.
This rule maintains the current human environment by helping to
prevent irreparable harm to certain U.S. businesses and to prevent a
significant adverse effect on the human environment that would likely
result from loss of jobs and income. With the exception of
recordkeeping requirements, this rulemaking terminates after September
30, 2019; it is not part of a larger action and presents no
extraordinary circumstances creating the potential for significant
environmental effects. No further NEPA analysis is required.
I. Paperwork Reduction Act
Attestation for Employers Seeking To Employ H-2B Nonimmigrants Workers
Under Section 105 of Division H of the Consolidated Appropriations Act,
Form ETA-9142-B-CAA-3
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., provides
that a Federal agency generally cannot conduct or sponsor a collection
of information, and the public is generally not required to respond to
an information collection, unless it is approved by OMB under the PRA
and displays a currently valid OMB Control Number. In addition,
notwithstanding any other provisions of law, no person shall generally
be subject to penalty for failing to comply with a collection of
information that does not display a valid Control Number. See 5 CFR
1320.5(a) and 1320.6. DOL has submitted the Information Collection
Request (ICR) contained in this rule to OMB using emergency clearance
procedures outlined at 5 CFR 1320.13. That review is ongoing, and DOL
will publish a notice announcing the results of that review. The
Departments note that while DOL submitted the ICR, both DHS and DOL
will use the information.
Moreover, this rule includes a new form, Attestation for Employers
Seeking To Employ H-2B Nonimmigrants Workers Under Section 105 of
Division H of the Consolidated Appropriations Act, Form ETA-9142-B-CAA-
3 that petitioners submit to DHS. Petitioners will use this form to
make the
[[Page 20019]]
irreparable harm and returning worker attestation described above. The
petitioner would file the attestation with DHS. In addition, the
petitioner may need to advertise the positions. Finally, the petitioner
will need to retain documents and records proving compliance with this
implementing rule, and must provide the documents and records to DHS
and DOL staff in the event of an audit or investigation.
In addition to the request for an emergency approval, DOL is
seeking comments on this information collection pursuant to 5 CFR
1320.10. Comments must be received by July 8, 2019. This process of
engaging the public and other Federal agencies helps ensure that
requested data can be provided in the desired format, reporting burden
(time and financial resources) is minimized, collection instruments are
clearly understood, and the impact of collection requirements on
respondents can be properly assessed. The PRA provides that a Federal
agency generally cannot conduct or sponsor a collection of information,
and the public is generally not required to respond to an information
collection, unless it is approved by OMB under the PRA and displays a
currently valid OMB Control Number. See 44 U.S.C. 3501 et seq. In
addition, notwithstanding any other provisions of law, no person must
generally be subject to a penalty for failing to comply with a
collection of information that does not display a valid OMB Control
Number. See 5 CFR 1320.5(a) and 1320.6.
In accordance with the PRA, DOL is affording the public with notice
and an opportunity to comment on the new information collection, which
is necessary to implement the requirements of this temporary rule. The
information collection activities covered by this rule are required
under Section 105 of Division H of the Consolidated Appropriations Act,
which provides that ``the Secretary of Homeland Security, after
consultation with the Secretary of Labor, and upon the determination
that the needs of American businesses cannot be satisfied in [FY] 2019
with U.S. workers who are willing, qualified, and able to perform
temporary nonagricultural labor,'' may increase the total number of
aliens who may receive an H-2B visa in FY 2019 by not more than the
highest number of H-2B nonimmigrants who participated in the H-2B
returning worker program in any fiscal year in which returning workers
were exempt from the H-2B numerical limitation. As previously discussed
in the preamble of this rule, the Secretary of Homeland Security in
consultation with the Secretary of Labor has decided to increase the
numerical limitation on H-2B nonimmigrant visas to authorize the
issuance of up to, but not more than, an additional 30,000 visas
through the end of FY 2019 for certain H-2B workers.
The agencies are particularly interested in comments that:
Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
Evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
Enhance the quality, utility, and clarity of the
information to be collected; and
Minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
The aforementioned information collection requirements are
summarized as follows:
Agency: DOL-ETA.
Type of Information Collection: New Collection.
Title of the Collection: Attestation for Employers Seeking To
Employ H-2B Nonimmigrant Workers Under Section 105 of Division H of the
Consolidated Appropriations Act.
Agency Form Number: Form ETA-9142-B-CAA-3.
Affected Public: Private Sector--businesses or other for-profits.
Total Estimated Number of Respondents: 3,776.
Average Responses per Year per Respondent: 1.
Total Estimated Number of Responses: 3,776.
Average Time per Response: 5.75 hours per application.
Total Estimated Annual Time Burden: 21,712 hours.
Total Estimated Other Costs Burden: $0.
Application for Premium Processing Service, Form I-907
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., provides
that a Federal agency generally cannot conduct or sponsor a collection
of information, and the public is generally not required to respond to
an information collection, unless it is approved by OMB under the PRA
and displays a currently valid OMB Control Number. In addition,
notwithstanding any other provisions of law, no person shall generally
be subject to penalty for failing to comply with a collection of
information that does not display a valid Control Number. See 5 CFR
1320.5(a) and 1320.6. Application for Premium Processing Service, Form
I-907 has been approved by OMB and assigned OMB control number 1615-
0048. DHS is making no changes to the Form I-907 in connection with
this temporary rule implementing the time-limited authority pursuant to
section 105 of Division H, Consolidated Appropriations Act, 2019,
Public Law 116-6 (which expires on October 1, 2019). However, USCIS
estimates that this temporary rule may result in approximately 3,776
additional filings of Form I-907 in fiscal year 2019. The current OMB-
approved estimate of the number of annual respondents filing a Form I-
907 is 319,310. USCIS has determined that the OMB-approved estimate is
sufficient to fully encompass the additional respondents who will be
filing Form I-907 in connection with this temporary rule, which
represents a small fraction of the overall Form I-907 population.
Therefore, DHS is not changing the collection instrument or increasing
its burden estimates in connection with this temporary rule, and is not
publishing a notice under the PRA or making revisions to the currently
approved burden for OMB control number 1615-0048.
List of Subjects
8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
programs, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students.
20 CFR Part 655
Administrative practice and procedure, Employment, Employment and
training, Enforcement, Foreign workers, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Longshore and harbor
work, Migrant workers, Nonimmigrant workers, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.
DEPARTMENT OF HOMELAND SECURITY
8 CFR Chapter I
For the reasons discussed in the joint preamble, part 214 of
chapter I of title
[[Page 20020]]
8 of the Code of Federal Regulations is amended as follows:
PART 214--NONIMMIGRANT CLASSES
0
1. The authority citation for part 214 continues to read as follows:
Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182,
1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305 and 1372; sec. 643,
Pub. L. 104-208, 110 Stat. 3009-708; Public Law 106-386, 114 Stat.
1477-1480; 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; 48 U.S.C. 1806; 8 CFR part 2.
0
2. Effective May 8, 2019 through September 30, 2019, amend Sec. 214.2
by adding paragraph (h)(6)(x) to read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(6) * * *
(x) Special requirements for additional cap allocations under the
Consolidated Appropriations Act, 2019. (A) Notwithstanding the
numerical limitations set forth in paragraph (h)(8)(i)(C) of this
section, for fiscal year 2019 only, the Secretary has authorized up to
an additional 30,000 aliens who may receive H-2B nonimmigrant visas
pursuant to section 105 of Division H of the Consolidated
Appropriations Act, 2019, Public Law 116-6. Aliens may be eligible to
receive H-2B nonimmigrant visas under this paragraph (h)(6)(x) if they
are returning workers. The term returning workers under this paragraph
(h)(6)(x) is defined as those persons who were issued H-2B visas or
were otherwise granted H-2B status in Fiscal Years 2016, 2017, or 2018.
Notwithstanding Sec. 248.2 of this chapter, an alien may not change
status to H-2B nonimmigrant under the provision in this paragraph
(h)(6)(x).
(B) In order to file a petition with USCIS under this paragraph
(h)(6)(x), the petitioner must:
(1) Comply with all other statutory and regulatory requirements for
H-2B classification, including but not limited to requirements in this
section, under part 103 of this chapter, and under 20 CFR part 655 and
29 CFR part 503; and
(2) Submit to USCIS, at the time the employer files its petition, a
U.S. Department of Labor attestation, in compliance with 20 CFR 655.64,
evidencing that:
(i) Without the ability to employ all of the H-2B workers requested
on the petition filed pursuant to this paragraph (h)(6)(x), its
business is likely to suffer irreparable harm (that is, permanent and
severe financial loss);
(ii) All workers requested and/or instructed to apply for a visa
have been issued an H-2B visa or otherwise granted H-2B status in
Fiscal Years 2016, 2017, or 2018; and
(iii) The employer will provide documentary evidence of this fact
to DHS or DOL upon request.
(C) USCIS will reject petitions filed pursuant to this paragraph
(h)(6)(x) that are received after the numerical limitation has been
reached or after September 16, 2019, whichever is sooner. USCIS will
not approve a petition filed pursuant to this paragraph (h)(6)(x) on or
after October 1, 2019.
(D) This paragraph (h)(6)(x) expires on October 1, 2019.
(E) The requirement to file an attestation under paragraph
(h)(6)(x)(B)(2) of this section is intended to be non-severable from
the remainder of this paragraph (h)(6)(x); in the event that paragraph
(h)(6)(x)(B)(2) of this section is enjoined or held to be invalid by
any court of competent jurisdiction, this paragraph (h)(6)(x) is also
intended to be enjoined or held to be invalid in such jurisdiction,
without prejudice to workers already present in the United States under
this part, as consistent with law.
* * * * *
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Chapter V
Accordingly, for the reasons stated in the joint preamble, 20 CFR
part 655 is amended as follows:
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
0
3. The authority citation for part 655 continues to read as follows:
Authority: Section 655.0 issued under 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C.
1103(a)(6), 1182(m), (n) and (t), 1184(c), (g), and (j), 1188, and
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978,
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206,
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat.
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR
214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218,
132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
and 1188; and 8 CFR 214.2(h).
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec.
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note,
Pub. L. 114-74 at section 701.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub.
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114-74 at section 701.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
0
4. Effective May 8, 2019 through September 30, 2019, add Sec. 655.64
to read as follows:
Sec. 655.64 Special eligibility provisions for Fiscal Year 2019 under
the Consolidated Appropriations Act, 2019.
An employer filing a petition with USCIS under 8 CFR 214.2(h)(6)(x)
to employ H-2B workers from May 8, 2019 through September 16, 2019,
must meet the following requirements:
(a) The employer must attest on Form ETA-9142-B-CAA-3 that without
the ability to employ all of the H-2B workers requested on the petition
filed pursuant to 8 CFR 214.2(h)(6)(x), its business is likely to
suffer irreparable harm (that is, permanent and severe financial loss),
and that the employer will provide documentary evidence of this fact to
DHS or DOL upon request.
(b) The employer must attest on Form ETA-9142-B-CAA-3 that each of
the workers requested and/or instructed to apply for a visa, on a
petition filed pursuant to 8 CFR 214.2(h)(6)(x), have been issued an H-
2B visa or otherwise granted H-2B status during one of the last three
(3) fiscal years (Fiscal Years 2016, 2017, or 2018).
(c) An employer that files Form ETA-9142B-CAA-3 and the I-129
petition 45 or more days after the certified start date of work, as
shown on its approved Application for Temporary Employment, must
conduct additional recruitment of U.S. workers as follows:
(1) The employer must place a new job order for the job opportunity
with the State Workforce Agency, serving the area of intended
employment. The employer must follow all applicable State Workforce
Agency instructions for posting job orders and receive applications in
all forms allowed by the State Workforce Agency, including online
applications (sometimes known as ``self-referrals''). The job order
must contain the job assurances and contents set forth in Sec. 655.18
for recruitment of
[[Page 20021]]
U.S. workers at the place of employment, and remain posted for at least
5 days beginning not later than the next business day after submitting
a petition for H-2B worker(s); and
(2) The employer must place one newspaper advertisement using an
online or print format on any day of the week meeting the advertising
requirements of Sec. 655.41, during the period of time the State
Workforce Agency is actively circulating the job order for intrastate
clearance; and
(3) The employer must hire any qualified U.S. worker who applies or
is referred for the job opportunity until 2 business days after the
last date on which the job order is posted under paragraph (c)(1) of
this section. Consistent with Sec. 655.40(a), applicants can be
rejected only for lawful job-related reasons.
(d) This section expires on October 1, 2019.
(e) The requirement to file an attestation under paragraph (a) of
this section is intended to be non-severable from the remainder of this
section; in the event that paragraph (a) is enjoined or held to be
invalid by any court of competent jurisdiction, the remainder of this
section is also intended to be enjoined or held to be invalid in such
jurisdiction, without prejudice to workers already present in the
United States under this part, as consistent with law.
0
5. Effective May 8, 2019 through September 30, 2022, add Sec. 655.67
to read as follows:
Sec. 655.67 Special document retention provisions for Fiscal Years
2019 through 2022 under the Consolidated Appropriations Act, 2019.
(a) An employer who files a petition with USCIS to employ H-2B
workers in fiscal year 2019 under authority of the temporary increase
in the numerical limitation under section 105 of Division H, Public Law
116-6 must maintain for a period of 3 years from the date of
certification, consistent with Sec. 655.56 and 29 CFR 503.17, the
following:
(1) A copy of the attestation filed pursuant to regulations
governing that temporary increase;
(2) Evidence establishing that employer's business is likely to
suffer irreparable harm (that is, permanent and severe financial loss),
if it cannot employ H-2B nonimmigrant workers in fiscal year 2019; and
(3) Documentary evidence establishing that each of the workers the
employer requested and/or instructed to apply for a visa, whether named
or unnamed, had been issued an H-2B visa or otherwise granted H-2B
status during one of the last three (3) fiscal years (Fiscal Years
2016, 2017 or 2018), as attested to pursuant to 8 CFR 214.2(h)(6)(x).
(4) If applicable, evidence of additional recruitment and a
recruitment report that meets the requirements set forth in Sec.
655.48(a)(1), (2), and (7).
DOL or DHS may inspect these documents upon request.
(b) This section expires on October 1, 2022.
Kevin K. McAleenan,
Acting Secretary of Homeland Security.
R. Alexander Acosta,
Secretary of Labor.
[FR Doc. 2019-09500 Filed 5-6-19; 11:15 am]
BILLING CODE 4510-FP-P; 4510-27-P; 9111-97-P
