[Federal Register: August 20, 2008 (Volume 73, Number 162)]
[Proposed Rules]
[Page 49122-49123]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20au08-13]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 214
[CIS No. 2448-08; DHS Docket No. USCIS-2008-0024]
RIN 1615-AA82
Petitions for Aliens To Perform Nonagricultural Temporary
Services or Labor (H-2B): Withdrawal of Proposed Rule
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Withdrawal of proposed rule.
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SUMMARY: U.S. Citizenship and Immigration Services (USCIS) is
withdrawing the proposed rule, Petitions for Aliens to Perform
Nonagricultural Temporary Services or Labor (H-2B), published on
January 27, 2005, in the Federal Register at 70 FR 3984. The rule
proposed significant changes to USCIS' regulations that were designed
to increase the effectiveness of the H-2B nonimmigrant visa
classification while providing protections for U.S. workers. The H-2B
nonimmigrant visa classification applies to foreign workers to perform
nonagricultural temporary labor or services. The proposed rule would
have established a one-step petition process for U.S. employers seeking
H-2B temporary workers eliminating the need for U.S. employers to apply
for a labor certification from the Department of Labor (DOL); required
electronic filing of the Petition for a Nonimmigrant Worker, Form I-
129, within 60 days in advance of the requested employment start date;
eliminated the use of agents as H-2B petitioners; and, established new
management mechanisms allowing USCIS to maintain the integrity of the
program. In light of the public's comments, USCIS is no longer moving
forward with the proposed rule as designed and will publish a new
proposed rule for public comments.
DATES: The proposed rule, published on January 27, 2005 (70 FR 3984),
is withdrawn as of August 20, 2008.
FOR FURTHER INFORMATION CONTACT: Hiroko Witherow, Service Center
Operations, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 20 Massachusetts Ave., NW., Washington, DC 20529,
telephone (202) 272-8410.
SUPPLEMENTARY INFORMATION:
I. Purpose of the Proposed Rule
The H-2 temporary worker program has existed without substantial
modification since 1952. The
[[Page 49123]]
Immigration Reform and Control Act of 1986 divided H-2 workers into two
categories: Temporary workers to perform agricultural labor or services
(H-2A), and all other temporary workers (H-2B). In 1990, Congress
attached a limitation on the number of H-2B workers, but otherwise the
program has not significantly changed to accommodate employers' needs
or to offer worker protections. After consulting with DOL and the
Department of State, and reviewing the definitions and procedures used
to regulate the H-2B nonagricultural temporary worker program, USCIS
determined that the H-2B process should be modified to reduce
unnecessary burdens that hinder petitioning employers' ability to
effectively use this visa category. The proposed rule was published on
January 27, 2005, with its intent being to increase efficiency in the
program by removing existing regulatory barriers. 70 FR 3984.
II. Changes Contained in the Proposed Rule
The most significant proposed change was a migration to a one-stop
attestation-based process whereby most U.S. employers seeking H-2B
temporary workers would only be required to file one application, the
Form I-129, Petition for a Nonimmigrant Worker, with USCIS. The
proposal would have reduced the paper-based application process by
requiring that most Form I-129 petitions be submitted to USCIS
electronically through e-filing. The proposal would also have required
e-filed petitions to be filed not more than 60 days in advance of the
employment need. The proposed rule also would have precluded agents
from filing H-2B petitions on behalf of the actual H-2B employer.
Finally, the proposed rule included additional changes to ensure the
integrity of the program through enforcement mechanisms.
III. Comments Received on the Proposed Rule
USCIS received 125 comments on the proposed rule during the 60-day
comment period. The majority of the commenters were opposed to many
changes proposed in the rule. The comments are summarized as follows:
There were a significant number of negative comments
regarding the proposal to create a one-stop attestation-based process.
Some commenters stated that the existing labor certification process
should remain with DOL because DOL, not USCIS, is directly charged with
the protection of U.S. workers. Some also expressed concern that this
change would lead to widespread fraud and misrepresentation.
A considerable number of commenters were in opposition to the
proposed change requiring that petitioners e-file a petition within 60
days in advance of the employment need. Some raised concern that many
employers are not necessarily well-versed in the access and use of the
Internet.
A significant number of comments were opposed to the
proposal to eliminate agents. Many commenters stressed that agents
perform a vital function in the H-2B filing process on behalf of the
employers who are not conversant with the applicable laws and
regulations related to the H-2B program.
The majority of the comments stressed that the proposed
changes would result in decreased protections for U.S. workers and the
likely proliferation of fraud within the program.
Based upon a review of the rulemaking record as a whole, DHS has
decided to withdraw the January 27, 2005, proposed rule and terminate
the associated proposed rulemaking action. DHS, therefore, will not
publish specific responses to each comment.
IV. Withdrawal of the Proposed Rule
For the reasons described in this document, DHS is withdrawing the
proposed rule published on January 27, 2005 (FR Doc. 05-1240, 70 FR
3984).
Dated: August 11, 2008.
Michael Chertoff,
Secretary.
[FR Doc. E8-19322 Filed 8-19-08; 8:45 am]
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