Labor Certification and Petition Process for the Temporary Employment of Nonimmigrant Aliens in Agriculture in the United States; Modification of Fee Structure

AGENCY:

Employment and Training Administration, Labor.

ACTION:

Proposed rule; request for comments.

SUMMARY:

The Employment and Training Administration (ETA) of the Department of Labor (Department or DOL) proposes to amend its regulations relating to the temporary employment of nonimmigrant agricultural workers (H-2A workers) in the United States. The proposed amendments would require employers to submit the fees for labor certification and the associated H-2A petition with a consolidated application form at the time of filing. The proposal also would modify the fee structure for H-2A labor certification applications.

Concurrently with the publication of this proposed rule, the Department is publishing a final rule setting forth the procedures and requirements for submission and processing of a consolidated Application for Temporary Agricultural Labor Certification and H-2A Petition (Form ETA 9079). Form ETA 9079 is attached as Appendix A to the proposed rule and comments are requested thereon.

DATES:

Interested persons are invited to submit written comments on the proposed rule, on or before August 14, 2000.

ADDRESSES:

Submit written comments to the Assistant Secretary for Employment and Training, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-4456, Washington, DC 20210, Attention: James H. Norris, Chief, Division of Foreign Labor Certifications.

FOR FURTHER INFORMATION:

Contact Denis M. Gruskin, Senior Specialist, Division of Foreign Labor Certifications, Employment and Training Administration, 200 Constitution Avenue, NW., Room N-4456, Washington, DC 20210. Telephone: (202) 219-5263 (this is not a toll-free number.)

SUPPLEMENTARY INFORMATION:

I. Introduction

On October 2, 1998, ETA published in the Federal Register a Notice of Proposed Rulemaking (NPRM) proposing amendments to ETA's regulations at 20 CFR part 655, subpart B, relating to the temporary employment of nonimmigrant agricultural H-2A workers in the United States. One of those proposed amendments was to implement a proposed delegation from the Commissioner, Immigration and Naturalization Service (INS), to the Secretary of Labor (Secretary) of authority to adjudicate petitions currently processed by INS under 8 CFR 214.2(h)(5), “Petition for alien to perform agricultural labor or services of a temporary or seasonal nature (H-2A).” 63 FR at 53244 and 53248 (Oct. 2, 1998). The INS published an NPRM on December 7, 1998, proposing to amend its regulations by delegating to the Department of Labor such adjudication of H-2A petitions. 63 FR 67431 (Dec. 7, 1998). The Department published a final rule on June 29, 1999, relating to most of the amendments it had proposed on October 2, 1998. 64 FR 34958 (June 29, 1999). However, amendments to implement the delegation of H-2A petition authority were not included in that final rule. At that time, INS had not completed the rulemaking necessary to delegate the processing of H-2A petitions to the Department. Further, a number of technical issues had to be resolved by INS and the Department to implement a delegation of H-2A petition authority to DOL. The Department noted in the preamble to the June 29 final rule, however, that it was committed to completing the necessary rulemaking and associated procedural changes as soon as possible, if INS delegated to DOL the authority to adjudicate H-2A petitions. Comments received on that issue during the course of the earlier rulemaking have been considered in the development of this proposed rule and the concurrently published final rule.

II. Statutory Standard and Implementing Regulation

The decision whether to grant or deny an employer's petition to import nonimmigrant agricultural workers to the United States for the purpose of temporary employment is the responsibility of the Attorney General or her designee. The Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.) provides that the Attorney General may not approve a petition from an employer for employment of nonimmigrant agricultural workers (H-2A visa holders) for temporary or seasonal services or labor in agriculture unless the petitioner has applied to the Secretary for a labor certification showing that:

(A) There are not sufficient U.S. workers who are able, willing, and qualified, and who will be available at the time and place needed to perform the labor or services involved in the petition; and

(B) The employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.

(8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188.)

The Department of Labor has published regulations at 20 CFR part 655, subpart B, and 29 CFR part 501 to implement its responsibilities under the H-2A program. Regulations affecting employer-provided agricultural worker housing are in 20 CFR part 654, subpart E, and 29 CFR 1910.42.

III. Change in H-2A Fee Structure

The change in the H-2A fee structure which this NPRM addresses enhances the administrative efficiency and convenience to employers of filing a combined Application for Temporary Agricultural Labor Certification and H-2A Petition. This efficiency can best be achieved if employers submit a single check to cover the fees for both the issuance of the labor certification and the processing of the H-2A petition at the time the consolidated application is submitted to the Department.

The proposed procedural modification in the method of fee payment would depart from the current process in which the employer pays for the labor certification after it is issued and subsequently submits the H-2A petition to INS together with the INS filing fee. It is important to note that the proposed rule provides that both the certification fee and the money collected for the H-2A petition would be refunded if the labor certification were denied. The Department interprets the H-2A statute as permitting the collection of a fee only if a certification is issued. In the course of the 1987 rulemaking under the H-2A program Senator Simpson, the primary sponsor of the 1986 amendments to the INA, pointed out in response to the Department's proposal to require employers to submit a fee with the application, that the statute used the language as a “condition of issuing the certification” and not as a condition of processing the application. See 8 U.S.C. 1188(a)(2) (“The Secretary of Labor may require by regulation, as a condition of issuing the certification, the payment of a fee to recover the reasonable costs of processing applications for certification.”). Since the fee for labor certification would be returned if the application is denied, the money collected for the labor certification would remain a certification fee, as it is characterized in the statute and current regulations, as opposed to a processing fee. Few fees paid with requests for labor certification will require a refund as the denial rate has historically been low. Moreover, as stated above, the proposed rule provides that the H-2A petition fee would be returned to the employer if the certification is denied. Currently, the petition fee is collected as an up-front processing fee by INS and is not returned to the employer if the petition is denied. See 8 CFR 103.7. In the rare instances when certification is granted but the petition is denied, the fees would not be returned.

IV. Fee Structure

The proposed rule provides that the consolidated labor certification and H-2A petition application must be accompanied by a check or money order sufficient to cover the fee for the labor certification and the fee for the H-2A petition as specified by INS regulations at 8 CFR 103.7. The Department is proposing a three-tiered labor certification fee. Employers that file applications for 10 or fewer H-2A temporary workers would be charged $150.00 per certification issued, employers that file applications for more than 10 H-2A workers up to and including 99 workers would be charged $250.00 per certification issued, and employers that apply for 100 workers or more would be charged $1,000.00 per certification issued. The petition fee would be set at whatever fee is specified in INS regulation at 8 CFR 103.7. The petition fee is reviewed by INS every 2 years and currently is set at $110.00. 63 FR 43604 (Aug. 14, 1998). Consistent with current INS requirements, a joint employer association would pay one petition fee and, consistent with current DOL requirements, pay the appropriate labor certification fee for each of its members listed in the association's application.

The Department estimates that the proposed three-tiered fee structure for issuance of a labor certification would likely yield about the same revenue for a given number of employers as the current DOL fee structure, which requires employers to pay a fee of $100.00 for the issued certification plus $10.00 per H-2A job opportunity certified. In Fiscal Year 1998, ETA collected $775,380.00 in fees.

The Department is authorized by the INA, as amended by the Immigration Reform and Control Act of 1986, to require as a condition of certification a fee to recover the reasonable costs of processing applications for certification. 8 U.S.C. 1188(a)(2). The monies collected under the proposed certification fee structure will continue, like the current fee structure, to fall substantially short of the monies expended by ETA to administer the H-2A labor certification program.

ETA has not conducted a study to establish fees since the 1987 study referred to in the preamble to the 1987 rule. That study did not include all costs that could be attributed to the H-2A labor certification program. Specifically, the study did not include the cost of activities of State employment service agencies, post-certification activities and post-denial activities at all levels, ETA national office activities, DOL Office of the Solicitor activities, and DOL Office of Administrative Law Judges activities. 52 FR at 20499 (June 1, 1987). ETA plans to conduct a study to determine what it expends to administer the H-2A labor certification program at the same time INS will review its petition fee early in calendar year 2002.

As indicated above, fees for H-2A petitions are established by INS through notice and comment rulemaking. See 63 FR 1775 (Jan. 12, 1998) and 63 FR 43604 (Aug. 14, 1998). INS reviews the petition fee every two years, and, accordingly, the proposed rule would require that the fee collected for the H-2A petition be the amount specified in the INS regulations that are current at the time the Application for Temporary Agricultural Labor Certification and H-2A Petition is filed with the Department. It is contemplated that under the administrative procedures arrived at by INS and ETA to implement the delegation of H-2A petition authority from INS to the Department, DOL will collect the petition fee on behalf of INS and will be reimbursed by INS for the costs involved in processing the H-2A petition.

Consistent with INS’ proposed rule, the Department's proposed rule would also provide that if the H-2A petition is approved, DOL will forward to INS for action any requests for change of status or extension of stay pertaining to H-2A petitions for named aliens made on Form ETA 9079W, Named Alien Addendum.

INS has also delegated to the Department the authority to process applications to change the Consulate or port of entry on an approved petitions when DOL has previously processed a request for temporary agricultural workers on INS’ behalf, and to respond to requests for duplicate approval notices issued by DOL. Such applications shall be made on the ETA 9079M, Visa Issuance Change Addendum, and accompanied by a check or money order made payable to the “U.S. Department of Labor” in the amount specified by INS regulations at 8 CFR 103.7 for the I-824, Application for Action on an Approved Application or Petition—currently $120.00. The ETA 9079M is functionally equivalent to the I-824.

INS has also proposed to authorize DOL to accept on INS’ behalf any Forms I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document, and Forms I-539, Application to Extend/Change Nonimmigrant status, that are filed concurrently with DOL's form ETA-9079. The I-102 is used to obtain a replacement for a lost or mutilated arrival-departure document and the I-539 is used to extend or change the nonimmigrant status of dependents (H-4's) of the H-2A nonimmigrant. The submission of any Forms I-102 or I-539 must be accompanied by a check made payable to the “U.S. Department of Labor” in the amount specified by INS regulations at 8 CFR 103.7. The forms and fees will be forwarded to INS for adjudication after the ETA-9079 decision is made.

V. Short-term Extensions of Employment

INS is proposing to add automatically to every H-2A employer's petition a 14-day extension grace “period,” and to discontinue charging a separate fee for such short-term extensions. Thus, an employer's H-2A petition for any requested/certified period of employment, if approved, would be granted for the requested/certified period plus an additional 14 days (or the length of the labor certification if issued for less than 14 days). Should this proposal be included in INS’ final rule, DOL would add corresponding implementing regulations to Part 655. Comments are requested on such a change. Should this proposal not be included in the INS final rule, the current procedures (as described below) would continue, although a rule of agency procedure would be promulgated to delegate from INS to DOL the INS functions under the existing process.

Under the existing regulations and procedures, an employer seeking to extend the authorized period of employment by two weeks or less applies to INS for the short-term extension. 8 CFR 214.2(h)(5)(x) (1999); and 20 CFR 655.106(c)(3)(i) (1999); see also 214.2(h)(15)(ii)(C) (1999). INS charges a fee of $120.00 for this service. In such circumstances, the employer is not required to apply for extension of the labor certification granted by DOL and is granted a 14 day grace period. It is the agency's experience that a small minority of employers seek short-term extensions and that INS rarely disapproves such requests. Thus, the proposed change would further streamline the H-2A process for those employers that seek short-term extensions.

An automatic 14-day “grace period” extension, as proposed, may encourage some H-2A employers to understate the offered period of employment disclosed on their labor certification application(s) and H-2A petition(s), thereby affecting recruitment of U.S. workers and such existing rights under the H-2A program as the “50 percent rule,” the “three-quarter guarantee,” and reimbursement of in-bound and return transportation. U.S. workers must be offered employment during the first half (50 percent) of the work contract, which is ordinarily the work period specified by the employer on the job offer (see 20 CFR 655.103(e) (1999); 29 CFR 501.10(d)); covered workers are guaranteed pay for three-quarters of the workdays offered by the employer under the work contract (see 20 CFR 655.102(b)(6)(i) (1999)), and reimbursement for in-bound transportation costs on completion and payment for return transportation on completion of the offered employment under the work contract (see 20 CFR 655.102(b)(5)(i) and (ii) (1999)). If adopted DOL would evaluate whether the proposed automatic 14-day “grace period” extension is treated as offered employment for these various purposes and the consequences which occur if a worker declines to continue employment during the 14-day “grace period” extension.

The agency requests comments on the extent, if any, to which the addition of the 14-day “grace period” automatic extension, as proposed, impacts U.S. and foreign workers' rights, including their rights under the underlying work contract, as well as employers' responsibilities and obligations.

Executive Order 12866

The Department has determined that this proposed rule should be treated as a “significant regulatory action,” within the meaning of Executive Order 12866, because of the inter-agency coordination with INS. However, this rule is not an “economically significant regulatory action.” because it would not have an economic effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

Regulatory Flexibility Act

The Department of Labor has notified the Chief Counsel for Advocacy, Small Business Administration, and made the certification pursuant to the Regulatory Flexibility Act at 5 U.S.C. 605(b), that the proposed rule would not have a significant economic impact on a substantial number of small entities. The proposed amendments would enhance the administrative efficiency and convenience to employers by having them file a combined Application for Temporary Agricultural Labor Certification and H-2A Petition with one agency, as opposed to two forms filed with two agencies as at present. The total number of employers utilizing H-2A workers is only approximately 4,400.

Therefore, the proposed amendments would not have a significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

This proposed rule would not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year, and it will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This proposed rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. It would not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Paperwork Reduction Act

Title: Form ETA 9079 Application for Temporary Agricultural Labor Certification and H-2A Petition.

Summary: Section 218 of the Immigration and Nationality Act (Act) provides that an H-2A petition to import an H-2A worker may not be approved by the Attorney General unless the petitioner has applied to the Secretary of Labor for a certification that: (1) There are not sufficient workers who are able, willing and qualified, and who will not be available at the time and place needed to perform the labor or services involved in the petition; and (2) the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.

Section 214(c) of the Act provides the Attorney General with the authority to determine the admission of an alien for such and under such conditions as the attorney general may prescribe by regulation. The Attorney general has delegated her responsibilities under section 214(c) of the Act to the Commissioner, Immigration and Naturalization Service.

Currently, employers file an ETA Form 750 with the Department to obtain a labor certification and they file the labor certification in support of the I-129 to obtain a petition from INS.

Need: The current process has been criticized by some employers as complicated hard to understand, and too time consuming. In some instances the result has been that foreign workers have not arrived by the first date of the employer's need. In an effort to reduce the number of steps, paperwork and time necessary to obtain foreign workers necessary to perform critical agricultural functions the Department of Labor and INS issued final rules simultaneously with this proposed rule transferring the function of adjudicating H-2A petitions to the Department of Labor.

To streamline the process of obtaining certifications and petitions, the INS and DOL have developed the form ETA 9079 which includes all the information necessary to INS and DOL to administer and monitor the certification and petition process. The new form ETA 9079, and addendums thereto, will replace Form ETA 750 and INS Form I-129 for all H-2A filings. It is envisaged that the process will enable employers to obtain foreign agricultural workers by implementation of a one stop filing whereby all forms and supporting documentation are submitted to DOL. Currently employers have to complete a two step process to obtain a labor certification and petition which necessitates the filing of different forms with the Department and the Immigration and Naturalization Service. The final rule when it becomes effective and the Form ETA 9079 when it is approved will result in employers being able to obtain both the labor certification and petition for aliens outside the United States from the Department. The Department of Justice estimates that transferring the authority to adjudicate petitions to DOL will result in a combined reduction of 18 to 27 days in the time now taken from initial filing with DOL to completion of the petition processing by INS.

In cases involving named aliens, employers would file with the Department an ETA 9079W, Named Alien Addendum. The proposed rule issued by INS would require the alien to sign the form if an extension of stay or change of status is requested. If the petition is approved, this form will be sent to INS for a determination on any extension of stay or change of status requested for the alien.

INS has also in the interests of further simplifying the petition process delegated to DOL the responsibility of processing the small number of requests involving changes in the Consulate or port of entry designated on the petition when it was approved, and issue duplicate approval notices it has issued. To make such requests the employer will be required to file form ETA 9079M, Visa Issuance Change Addendum, with the fee specified by INS regulations at 8 CFR 103.7 for the I-824, Application for Action on an Approved Application or Petition. The 9079M is functionally equivalent to the I-824.

Respondents and proposed frequency of response: ETA estimates that 2,270 sole employers and joint-employer associations filing on behalf of member employers will submit about 1.3 Forms ETA 9079 each year, for a total of 2,950 forms filed annually. The actual number filed will depend upon the needs of the employers, which are dependent in part upon agricultural conditions, such as crop maturation.

Estimated total annual burden for filing: ETA estimates that approximately 2,950 Forms ETA 9079 will be submitted each year. The reporting burden is estimated to average 11/2 hours. This estimate includes the time for reviewing instructions, searching existing information/data sources, gathering and maintaining information and completing and reviewing the application.

The preparation of the application form may be done by a company employee, official, proprietor, or chief executive officer. Therefore, the salaries could range from about $5.15 an hour for an employee to $300.00 for a proprietor or chief executive officer of a large farming enterprise. The average hourly remuneration is estimated to be $25.00. This results in the estimated annual cost to respondents (employers) for filing the ETA 9079, “Application for Temporary Agricultural Labor Certification and H-2A Petition” of $110,625 (2,950 × 11/2 × $25.00).

The public is invited to provide comments on this information collection requirement so that the Department of Labor may:

(1) Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimates of the burdens of the collections of information, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility and clarity of the information to be collected; and

(4) Minimize the burden of the collections 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. Written comments should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Employment and Training Administration, U.S. Department of Labor, Washington, D.C. 20503.

Catalogue of Federal Domestic Assistance Number

This program is listed in the Catalogue of Federal Domestic Assistance as Number 17.202, “Certification of Foreign Workers for Agricultural and Logging Employment.”

List of Subjects:

• Administrative practice and procedure
• Agriculture
• Aliens
• Crewmembers
• Employment
• Enforcement
• Forest and forest products
• Guam
• Health professions
• Immigration
• Labor
• Longshore work
• Migrant labor
• Nurse
• Penalties
• Registered nurse
• Reporting and record keeping requirements
• Specialty occupation
• Students
• Wages

Proposed Rule

Accordingly, part 655 of Chapter V of title 20, code of Federal Regulations is amended as follows:

PART 655—[AMENDED]

1. The authority citation for part 655 continues to read as follows:

Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i) and (ii), 1182(m) and (n), 1184, 1188, and 1288(c) and (d); 29 U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); P.L. 103-206, 107 Stat 2419; and 8 CFR 214.2(h)(4)(i).

Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184, and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).

Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and 1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).

Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and 1188; and 29 U.S.C. 49 et seq. , and 8 CFR 103.1(f)(iii)(J), (W), 214.2(h)(5), (11) and (12).

Subparts D and E issued under 8 U.S.C. 1101(a)(15) (H)(i)(a), 1182(m), and 1184; 29 U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).

Subparts F and G issued under 8 U.S.C. 1184 and 1288(c) and (d); and 29 U.S.C. 49 et seq.; and P.L. 103-206, 107 Stat 2419.

Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b), 1182(n), and 1184; 29 U.S.C. 49 et seq.; and sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 note).

Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).

Appendix 1 (Not to be codified in the CFR): Form ETA 9079

Printed below is a copy of Form ETA 9079.