Exercise of Time-Limited Authority To Increase the Fiscal Year 2018 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program
Temporary rule.
CFR Part: "8 CFR Part 214"
RIN Number: "RIN 1205-AB88"
Citation: "83 FR 24905"
Document Number: "RIN 1615-AC21"
Page Number: "24905"
"Rules and Regulations"
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 an additional 15,000 through the end of Fiscal Year (FY) 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.
EFFECTIVE DATE: This final rule is effective from
FOR FURTHER INFORMATION CONTACT: Regarding 8 CFR part 214:
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SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Legal Framework
B. H-2B Numerical Limitations Under the INA
C. FY 2018 Omnibus
D. Joint Issuance of the Final Rule
II. Discussion
A. Statutory Determination
B. Numerical Increase of up to 15,000
C. Business Need Standard--Irreparable Harm
D. DHS Petition Procedures
E. DOL Procedures
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Small Business Regulatory Enforcement Fairness Act of 1996
E. Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review), and 13771 (Reducing Regulation and Controlling Regulatory Costs)
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) 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
FOOTNOTE 1 As of
DHS regulations provide that an H-2B petition for temporary employment in
In order to determine whether to issue a labor certification, the Departments have established regulatory procedures under which DOL certifies whether a qualified
The INA also authorizes
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 in 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.
FOOTNOTE 2 The Federal Government's fiscal year runs from
Because of the intense demand for H-2B visas in recent years, the semi-annual visa allocation, and the regulatory requirement that employers apply for labor certification 75 to 90 days before the start date of work, /3/ employers who wish to obtain visas for their workers under the semi-annual allotment must act early to receive a
FOOTNOTE 3 20 CFR 655.15(b). END FOOTNOTE
FOOTNOTE 4 On
C. FY 2018 Omnibus
On
FOOTNOTE 5 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.
In FY 2017,
FOOTNOTE 6 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 (
D. Joint Issuance of This Final Rule
As they did in implementing the FY 2017 Omnibus H-2B supplemental cap /7/ , the Departments have determined that it is appropriate to issue this final 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. /8/ 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 205 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). /9/ See 8 CFR 214.2(h)(6)(iii)(A) & (C), (iv)(A).
II. Discussion
A. Statutory Determination
FOOTNOTE 7 82 FR 32987 (
FOOTNOTE 8 See Temporary Non-Agricultural Employment of H-2B Aliens in
FOOTNOTE 9 See, e.g., id. END FOOTNOTE
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 2018 with
The Secretary of Homeland Security's determination to increase the numerical limitation is based 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 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. /10/ The Secretary of Homeland Security has deemed it appropriate, notwithstanding such risk of abuse, to take immediate action to avoid irreparable harm to businesses; such harm would in turn result in wage and job losses by their
FOOTNOTE 10 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
FOOTNOTE 11 See
The decision to direct the benefits of this cap increase to businesses that need workers to avoid irreparable harm, rather than directing the cap increase to any and all businesses seeking temporary workers, is consistent with the Secretary of Homeland Security's broad discretion under section 205. Section 205 provides that the Secretary of Homeland Security, upon satisfaction of the statutory business need standard, may increase the numerical limitation to meet such need. /12/ The scope of the assessment called for by the statute is quite broad, and accordingly delegates the Secretary of Homeland Security broad discretion to identify the business needs she finds most relevant. Within that context,
FOOTNOTE 12
First,
FOOTNOTE 13 A petitioning employer must demonstrate that it has a temporary need for the services or labor for which it seeks to hire H-2B workers. See 8 CFR 214.2(h)(6)(ii); 20 CFR 655.6. END FOOTNOTE
Second, this approach limits the increase in a way that is consistent with the implementation of the FY 2017 supplemental cap, and provides protections against adverse effects on
Under this rule, employers must also meet, among other requirements, the generally applicable requirements that insufficient qualified
Accordingly, this rule increases the FY 2018 numerical limitation by up to 15,000 to ensure a sufficient number of visas to meet the level of demand in past years, but also restricts the availability of such visas by prioritizing only the most significant business needs. These provisions are each described in turn below.
B. Numerical Increase of up to 15,000
DHS expects the increase of up to 15,000 visas /14/ to be sufficient to meet at least the same amount of need as the H-2B returning worker provision met in FY 2016 and the supplemental cap met in FY 2017. Section 205 of the FY 2018 Omnibus sets as the maximum limit for any increase in the H-2B numerical limitation for FY 2018, the highest number of H-2B returning workers /15/ who were exempt from the cap in previous years. 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
FOOTNOTE 14 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), 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 205 only authorizes
FOOTNOTE 15 During fiscal years 2005 to 2007, and 2016,
Under the most recent returning worker statute in FY 2016, 18,090 returning workers were approved for H-2B petitions, despite
The Secretary of Homeland Security also considered the number of H-2B workers who were approved under the FY 2017 supplemental H-2B cap. /16/ Out of a maximum of 15,000 supplemental H-2B visas for FY 2017, a total of 12,294 beneficiaries were approved for H-2B classification. Although fewer beneficiaries were approved for H-2B classification than the available number of visas in FY 2017, the Secretary has determined that it is appropriate to authorize 15,000 additional visas again, as employers will have a longer period in which to submit their petitions due to the earlier publication date of this rule, thereby allowing for the possibility of more petitions being filed this fiscal year than in FY 2017.
FOOTNOTE 16 See section 543 of Div. F of the Consolidated Appropriations Act, 2017, Public Law 115-31. END FOOTNOTE
C. Business Need Standard--Irreparable Harm
To file an H-2B petition during the remainder of FY 2018, petitioners must meet all existing H-2B eligibility requirements, including having an approved, valid and unexpired
The attestation serves as prima facie initial evidence to
FOOTNOTE 17 An employer may request fewer workers on the H-2B petition than the number of workers listed on the
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; 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 the DOL for the job opportunity (which serves as the
The requirement to provide a post-
In accordance with the attestation requirement, under which petitioners attest that they meet the irreparable harm standard, and the documentation retention requirements at 20 CFR 655.66, the petitioner must retain documents and records meeting their burden to demonstrate compliance with this rule, and must provide the documents and records upon the request of
(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 present period of need as compared 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
(4) Evidence that the business is dependent on H-2B workers, such as: number of H-2B workers compared to
These examples of potential evidence, however, will not exclusively or necessarily establish that the business meets the irreparable harm standard, and petitioners may retain other types of evidence they believe will satisfy this standard. If an audit or investigation occurs,
FOOTNOTE 18 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. END FOOTNOTE
To the extent that evidence reflects a preference for hiring H-2B workers over
FOOTNOTE 19
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 205 of the FY 2018 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,
Because of the particular circumstances of this regulation, and because the attestation plays a vital role in achieving the purposes of this regulation,
D. DHS Petition Procedures
To petition for H-2B workers under this rule, the petitioner must file a Form-129 in accordance with applicable regulations and form instructions, an unexpired
To encourage timely filing of any petition seeking a visa under the FY 2018 Omnibus,
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 processing. /20/ Given USCIS's processing goals for premium processing,
FOOTNOTE 20 These processing goals are not binding on
FOOTNOTE 21 In FY 2017,
As with other Form I-129 filings,
E. DOL Procedures
All employers are required to have an approved and valid
FOOTNOTE 22 Petitioners should note that under section 205, 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. END FOOTNOTE
Therefore, employers with still valid TLCs with a start date of work before
The employer must hire any qualified
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
DHS has the authority to verify any information submitted to establish H-2B eligibility before or after the petition has been adjudicated by
DOL's OFLC has the existing authority to conduct audit examinations on adjudicated Applications for Temporary Employment Certification, and verify any information supporting the employer's attestations under 20 CFR 655.70. Where an audit examination 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
Petitioners must also comply with any other applicable laws in their recruitment, such as avoiding unlawful discrimination against
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 (
In this case, the Departments are bypassing advance notice and comment because of the exigency created by section 205 of Div. M of the Consolidated Appropriations Act, 2018 (FY 2018 Omnibus), which went into effect on
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 (
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
FOOTNOTE 23 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
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.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C.
C. 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 or final agency rule that may result in
This rule does not exceed the
D. 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
E. 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. OMB considers this final rule to be an Executive Order 13771 deregulatory action.
1. Summary
With this final rule,
FOOTNOTE 24 Calculation: Petitioner costs to file (Form I-129:
Table 1--Summary of Provision and Impact Current provision Changes resulting Expected cost of Expected benefit from the proposed of the proposed provision the proposed provisions provision The current The amended . The total . Eligible statutory cap provisions would estimated cost to petitioners would limits H-2B visa allow for up to file Form I-129 be able to hire allocations by 15,000 additional would be the temporary 66,000 workers a H-2B visas for the$2,024,162 workers needed to year remainder of the (rounded) if human prevent their fiscal year resource businesses from specialists file, suffering$2,989,687 irreparable harm. (rounded) if . U.S. employees in-house lawyers of these file, and businesses would$4,111,474 avoid harm. (rounded) if outsourced lawyers file . If a Form I-907 is submitted as well, the total estimated cost to file for Form I-907 would be a maximum of$3,839,617 if human resource specialists file,$3,921,285 if in-house lawyers file, and$4,030,421 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 . Serves as also be required estimated cost to initial evidence to fill out newly petitioners to to DHS that the created Form complete and file petitioner meets ETA-9142-B-CAA-2, Form the irreparable Attestation for ETA-9142-B-CAA-2 harm standard. Employers Seeking is$2,164,127 to Employ H-2B Nonimmigrant Workers Under Section 205 of Div. M of the Consolidated Appropriations Act, 2018 Source:USCIS and DOL analysis.
2. Background and Purpose of the Rule
The H-2B visa classification program was designed to serve
FOOTNOTE 25 Revised effective 1/18/2009; 73 FR 78104. END FOOTNOTE
FOOTNOTE 26 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). END FOOTNOTE
FOOTNOTE 27 A
The H-2B cap for the second half of FY 2018 was reached on
3. Population
This temporary rule would impact those employers who file Form I-129 on behalf of the nonimmigrant worker 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 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,
FOOTNOTE 28 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
FOOTNOTE 29 Between
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
FOOTNOTE 30 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. END FOOTNOTE
FOOTNOTE 31 For the purposes of this analysis,
FOOTNOTE 32 For the purposes of this analysis,
To estimate the total opportunity cost of time to petitioners who complete and file Form I-129,
FOOTNOTE 33
FOOTNOTE 34
FOOTNOTE 35 The benefits-to-wage multiplier is calculated as follows: (Total Employee Compensation per hour)/(Wages and Salaries per hour). See Economic News Release,
FOOTNOTE 36 Calculation for the total wage of an HR specialist:
FOOTNOTE 37 Calculation: Average hourly wage rate of lawyers x Benefits-to-wage multiplier for outsourced lawyer =
FOOTNOTE 38 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 [
FOOTNOTE 39
FOOTNOTE 40 Calculation if an HR specialist files:
Calculation if an in-house lawyer files:
Calculation if an outsourced lawyer files:
FOOTNOTE 41 Calculation if an HR specialist files:
Calculation if an in-house lawyer files:
Calculation if outsourced lawyer files:
(a) Cost to Petitioners
As mentioned in Section 3, the population impacted by this rule is the 3,076 petitioners who may apply for up to 15,000 additional H-2B visas for the remainder of FY 2017. Based on the previously presented total filing costs per petitioner,
FOOTNOTE 42 Calculation if HR specialist files:
Calculation if an in-house lawyer files:
Calculation if an outsourced lawyer files:
(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
FOOTNOTE 43 Calculation if an HR specialist files:
Calculation if an in-house lawyer files:
Calculation if an outsourced lawyer files:
FOOTNOTE 44 Calculation if an HR specialist files:
Calculation if an in-house lawyer files:
Calculation if outsourced lawyer files:
Table 2--Total Cost of Filing Form I-907 Under the H-2B Visa Program Total cost to filers *c Percent of filers Number of Human In-house Outsourced requesting premium filers resources lawyer lawyer processing *a requesting specialist premium processing *b 25 769$959,904 $980,321 $1,007,605 50 1,538 1,919,809 1,960,642 2,015,211 75 2,307 2,879,713 2,940,964 3,022,816 90 2,768 3,455,655 3,529,156 3,627,379 95 2,922 3,647,636 3,725,221 3,828,900 100 3,076 3,839,617 3,921,285 4,030,421 Notes: *a Assumes that all 15,000 additional H-2B visas will be filled by 3,076 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 1 hour for retaining documents and records relating to recruitment. The petitioner must retain documents and records of a new job order for the job opportunity placed with the
FOOTNOTE 45 Calculation:
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
FOOTNOTE 46 Calculation:
U.S. Department of Labor,
FOOTNOTE 47 Calculation:
As discussed previously, we believe that the estimated 3,076 remaining unfilled certifications for the latter half of FY 2018 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
FOOTNOTE 48 Calculations:
Cost for
Cost for Financial Analysts:
FOOTNOTE 49 Calculation:
Employers will place a new job order for the job opportunity with the SWA serving the area of intended employment for at least 5 days beginning no later than the next business day after submitting a petition for an H-2B worker and the attestation to
FOOTNOTE 50 The job order must address the content requirements at 20 CFR 655.18, consistent with new requirements contained in the 2016
FOOTNOTE 51 Calculation:
Employers will also place one newspaper advertisement during the period of time the SWA is actively circulating the job order for intrastate clearance. DOL estimates that a standard job listing in an online edition of a newspaper is
FOOTNOTE 52 Source: The
FOOTNOTE 53 Calculation:
Therefore, the total cost for the attestation form is estimated to be
FOOTNOTE 54 Calculation:
(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,
(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 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
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 (
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 (
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
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 2018 based on the Secretary of Homeland Security's determination, in consultation with the Secretary of Labor, consistent with the FY 2018 Omnibus. Generally,
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
I. Paperwork Reduction Act
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 and obtained approval using emergency clearance procedures outlined at 5 CFR 1320.13. The Departments note that while DOL submitted the ICR, both
More specifically, this rule includes a new form, Attestation for Employers Seeking to Employ H-2B Nonimmigrants Workers Under Section 205 of Division M of the Consolidated Appropriations Act, Form ETA-9142-B-CAA-2 that petitioners submit to
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 205 of Division M of the Consolidated Appropriations Act.
Agency Form Number: Form ETA-9142-B-CAA-2.
Affected Public: Private Sector--businesses or other for-profits.
Total Estimated Number of Respondents: 3,076.
Average Responses per Year per Respondent: 1.
Total Estimated Number of Responses: 3,076.
Average Time per Response: 6.25 hours per application.
Total Estimated Annual Time Burden: 19,225 hours.
Total Estimated Other Costs Burden:
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.
8 CFR Chapter I
For the reasons discussed in the joint preamble, part 214 of chapter I of title 8 of the Code of Federal Regulations is amended as follows:
PART 214--NONIMMIGRANT CLASSES
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; Pub. L. 106-386, 114 Stat. 1477-1480; section 141 of the Compacts of
2. Effective
* * * * *
(h) * * *
(6) * * *
(x) Special requirements for additional cap allocations under the Consolidated Appropriations Act, 2018, Public Law 115-141. (A) Public Law 115-141. Notwithstanding the numerical limitations set forth in paragraph (h)(8)(i)(C) of this section, for fiscal year 2018 only, the Secretary has authorized up to an additional 15,000 aliens who may receive H-2B nonimmigrant visas pursuant to section 205 of Division M of the Consolidated Appropriations Act, 2018, Public Law 115-141. Notwithstanding section 248.2 of this part, an alien may not change status to H-2B nonimmigrant under this provision.
(B) Eligibility. In order to file a petition with
(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 parts 655 of Title 20 and 503 of Title 29; and
(2) Submit to
(C) Processing.
(D) Sunset. This paragraph (h)(6)(x) expires on
(E) Non-severability. 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
* * * * *
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
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); and 8 CFR 214.2(h)(6)(iii).
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), Public Law 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, 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), Public Law 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), Public Law 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 note, Public Law 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), Public Law 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Public Law 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
4. Effective
An employer filing a petition with
(a) The employer must attest on Form ETA-9142-B-CAA-2 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
(b) An employer with a start date of work before
(1) The employer must place a new job order for the job opportunity with the
(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 20 CFR 655.41, during the period of time the
(3) The employer must hire any qualified
(c) This section expires on
(d) Non-severability. 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
5. Effective
(a) An employer that files a petition with
(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 2018; and
(3) If applicable, evidence of additional recruitment and a recruitment report that meets the requirements set forth in 20 CFR 655.48(a)(1), (2), and (7).
DOL or
(b) This section expires on
Kirstjen M. Nielsen,
Secretary of Homeland Security.
Secretary of Labor.
Note: The following appendix will not appear in the Code of Federal Regulations.
Appendix A--Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers Under Section 205 of Division M of the Consolidated Appropriations Act, 2018 Public Law 115-141 (
By virtue of my signature below, I hereby certify that the following is true and correct:
(A) I am an employer with an approved labor certification from the
(B) I was granted temporary labor certification from the
(C) I attest that if my business cannot employ all the H-2B nonimmigrant workers requested on my Form I-129 petition before the end of this fiscal year (
(D) I attest that my business has a bona fide temporary need for all the H-2B nonimmigrant workers requested on the Form I-129 petition, consistent with 8 CFR 214.2(h)(6)(ii).
(E) If my current labor certification contains a start date of work before
1. I will place a new job order for the job opportunity with the
2. I will 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; and
3. I will offer the job to any qualified and available
(F) I agree to retain a copy of this signed attestation form, 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) & (7), together with evidence establishing that my business meets the standard described in paragraph (C) of this attestation, for a period of 3 years from the date of certification, consistent with the document retention requirements under 20 CFR 655.66, 20 CFR 655.56, and 29 CFR 503.17. Further, I agree to provide this documentation to a
(G) I agree to 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 the DOL for my business's job opportunity.
I declare under penalty of perjury under the laws of
1.Name of hiring or designated official of the employer 2. *DOL Case (Last Name, First Name) * Number * 3. Signature * 4. Date signed *
[FR Doc. 2018-11732 Filed 5-25-18;
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