The website with latest news on US Immigration http://www.Dr-Immigration.com USCIS Updates Count of FY2010 H-1B Petition Filings By: Office of Communications USCIS Update April 9, 2009 USCIS Updates Count of FY2010 H-1B Petition Filings WASHINGTONU.S. Citizenship and Immigration Services (USCIS) today announced an updated number of filings for H-1B petitions for the fiscal year 2010 program. USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap. Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas. For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition. USCIS will provide regular updates as the processing of FY2010 H-1B petitions continue. USCIS http://www.Dr-Immigration.com/news/shownews.asp?newsID=98 Wed, 22 Apr 2009 13:27:06 EST SECTION 214(b) Visa Denials by US Consulate By US DOS: Visa Denials The United States is an open society. Unlike many other countries, the United States does not impose internal controls on most visitors, such as registration with local authorities. In order to enjoy the privilege of unencumbered travel in the United States, aliens have a responsibility to prove they are going to return abroad before a visitor or student visa is issued. Our immigration law requires consular officers to view every visa applicant as an intending immigrant until the applicant proves otherwise. WHAT IS SECTION 214(b)? Section 214(b) is part of the Immigration and Nationality Act (INA). It states: Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status... To qualify for a visitor or student visa, an applicant must meet the requirements of sections 101(a)(15)(B) or (F) of the INA respectively. Failure to do so will result in a refusal of a visa under INA 214(b). The most frequent basis for such a refusal concerns the requirement that the prospective visitor or student possess a residence abroad he/she has no intention of abandoning. Applicants prove the existence of such residence by demonstrating that they have ties abroad that would compel them to leave the U.S. at the end of the temporary stay. The law places this burden of proof on the applicant. Our consular officers have a difficult job. They must decide in a very short time if someone is qualified to receive a temporary visa. Most cases are decided after a brief interview and review of whatever evidence of ties an applicant presents. WHAT CONSTITUTES "STRONG TIES"? Strong ties differ from country to country, city to city, individual to individual. Some examples of ties can be a job, a house, a family, a bank account. "Ties" are the various aspects of your life that bind you to your country of residence: your possessions, employment, social and family relationships. As a U.S. citizen or legal permanent resident, imagine your own ties in the United States. Would a consular office of a foreign country consider that you have a residence in the United States that you do not intend to abandon? It is likely that the answer would be "yes" if you have a job, a family, if you own or rent a house or apartment, or if you have other commitments that would require you to return to the United States at the conclusion of a visit abroad. Each person's situation is different. Our consular officers are aware of this diversity. During the visa interview they look at each application individually and consider professional, social, cultural and other factors. In cases of younger applicants who may not have had an opportunity to form many ties, consular officers may look at the applicants specific intentions, family situations, and long-range plans and prospects within his or her country of residence. Each case is examined individually and is accorded every consideration under the law. IS A DENIAL UNDER SECTION 214(B) PERMANENT? No. The consular officer will reconsider a case if an applicant can show further convincing evidence of ties outside the United States. Your friend, relative or student should contact the embassy or consulate to find out about reapplication procedures. Unfortunately, some applicants will not qualify for a nonimmigrant visa, regardless of how many times they reapply, until their personal, professional, and financial circumstances change considerably. HOW CAN I HELP? You may provide a letter of invitation or support. However, this cannot guarantee visa issuance to a foreign national friend, relative or student. Visa applicants must qualify for the visa according to their own circumstances, not on the basis of an American sponsor's assurance. WHAT CAN YOU DO IF AN AQUAINTANCE IS REFUSED A VISA UNDER 214(B) FOR LACK OF A RESIDENCE ABROAD? First encourage your relative, friend or student to review carefully their situation and evaluate realistically their ties. You can suggest that they write down on paper what qualifying ties they think they have which may not have been evaluated at the time of their interview with the consular officer. Also, if they have been refused, they should review what documents were submitted for the consul to consider. Applicants refused visas under section 214(b) may reapply for a visa. When they do, they will have to show further evidence of their ties or how their circumstances have changed since the time of the original application. It may help to answer the following questions before reapplying: (1) Did I explain my situation accurately? (2) Did the consular officer overlook something? (3) Is there any additional information I can present to establish my residence and strong ties abroad? Your acquaintances should also bear in mind that they will be charged a nonrefundable application fee each time they apply for a visa, regardless of whether a visa is issued. WHO CAN INFLUENCE THE CONSULAR OFFICER TO REVERSE A DECISION? Immigration law delegates the responsibility for issuance or refusal of visas to consular officers overseas. They have the final say on all visa cases. By regulation the U.S. Department of State has authority to review consular decisions, but this authority is limited to the interpretation of law, as contrasted to determinations of facts. The question at issue in such denials, whether an applicant possesses the required residence abroad, is a factual one. Therefore, it falls exclusively within the authority of consular officers at our Foreign Service posts to resolve. An applicant can influence the post to change a prior visa denial only through the presentation of new convincing evidence of strong ties. http://www.Dr-Immigration.com/news/shownews.asp?newsID=97 Wed, 1 Apr 2009 13:24:41 EST AC21 Portability rule AC21 Potability Memo AC21 Aytes Memo By USCIS: To: REGIONAL DIRECTORS SERVICE CENTER DIRECTORS From: Michael Aytes Acting Director of Domestic Operations Date: December 27, 2005 Re: Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) This memorandum serves to reissue the prior guidance of May 12, 2005 without change except to clarify the answer to question 1 in Section I. The entire reissued memorandum, with the clarification, follows: Purpose: The purpose of this memorandum is to provide field offices with interim guidance on: (1) Processing Form I-140 petitions and Form I-485 applications in connection with the I-140 portability provision of 106(c) of AC21; (2) Adjudication of H-1B petitions in connection with the 7th year extension provisions of 106(a) of AC21; (3) Adjudication of H-1B petitions in connection with the 7th year extension provisions of 104(c) for aliens subject to per country visa limitations; and (4) Adjudication of H-1B petitions in connection with the H-1B portability provisions of 105 of AC21; This interim guidance will only be in effect until regulations that are currently in progress are published as a final rule. The proposed rule may take a more restrictive position than this memorandum. Please note that the Adjudicators Field Manual ( AFM) will not be updated at this time. Prior AC21 Guidance On January 29, 2001, the Office of Field Operations issued a memorandum entitled " Interim Guidance for Processing H-1B Applications for Admission as Affected by the American Competitiveness in the Twenty-First Century Act of 2002, Public Law 106-313." On June 19, 2001, the Office of Programs issued a follow-up memorandum entitled " Initial Guidance for Processing H-1B Petitions as Affected by the American Competitiveness in the Twenty-First Century Act (Public Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106- 396)." On February 28, 2003, the Immigration Service Division issued a memorandum entitled Procedures for concurrently filed family-based or employment-based Form I-485 when the underlying visa petition is denied. HQPRD 70/6.2.8-P 20 Massachusetts Avenue, NW Washington, DC 20529 Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) On April 24, 2003, the Office of Operations issued a memorandum entitled Guidance for Processing H-1B Petitions as Affected by the Twenty-First Century Department of Justice Appropriations Authorization Act (Public Law 107-273). On August 4, 2003, the Office of Operations issued a memorandum entitled Continuing Validity of Form I-140 Petition in Accordance with Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). All of these memoranda remain in effect and this memorandum supplements the existing guidance. New AC21 Guidance New issues and questions in connection with I-140 portability cases and H-1B cases have arisen since the previous guidance memoranda were issued. Implementation of the provisions of AC21 have been further complicated by the interim rule published on July 31, 2002, allowing, in certain circumstances, the concurrent filing of Form I-140 and Form I-485. Previous Service regulations required an alien worker to first obtain approval of the underlying Form I-140 before applying for permanent resident status on the Form I-485. This guidance is intended to address those questions and issues. This memorandum is divided into four separate sections, establishing guidelines and interim procedures for use by USCIS personnel: Section I - Processing of Form I-140 petitions and Form I-485 applications when there is a question of eligibility for I-140 portability benefits under 106(c) of AC21. Section II - Processing of H-1B petitions where there is a question of eligibility for an H-1B extension past the 6-year limit under 106(a) of AC21. Section III - Processing of H-1B petitions where there is a question of eligibility for an H-1B extension past the 6-year limit under 104(c) of AC21 (aliens subject to per country limitations). Section IV - Processing of H-1B petitions where there is a question of the affect of H-1B portability under 105 of AC21. I. Q & A ON PROCESSING OF I-140 PETITIONS AND I-485 APPLICATIONS UNDER THE I- 140 PORTABILITY PROVISIONS OF 106(C) OF AC21 Question 1. How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days in relation to the I-140 portability provisions under 106(c) of AC21? Answer: If it is discovered that a beneficiary has ported off of an unapproved I-140 and I-485 that has been pending for 180 days or more, the following procedures should be applied: A. Review the pending I-140 petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within 180 days. If the petition is approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on its merits. Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I-140 portability purposes. B. If a request for additional evidence (RFE) is necessary to resolve a material issue, other than post-filing issues such as ability to pay, an RFE can be issued to try to resolve the issue. When a response is received, and if the petition is approvable, follow the procedures in part A above. Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 3 Question 2. How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days and a Request for Evidence (RFE) has been issued? Answer: If a response to an RFE is received, and the response does not adequately address the issues, or the response is simply that the beneficiary no longer works for the petitioner, or a response is not received at all, and the petition still cannot be approved: A. Deny the petition on the merits of the case; and B. Deny the I-485 and the portability request since there was never an approved petition from which to port. Question 3. What is same or similar occupational classification for purposes of I-140 portability? Answer: When making a determination if the new employment is the same or similar occupational classification in comparison to the employment in the initial I-140, adjudicators should consider the following factors: A. Description of the job duties contained in the ETA 750A or the initial I-140 and the job duties of the new employment to determine if they are the same or similar occupational classification. B. The DOT code and/or SOC code assigned to the initial I-140 employment for petitions that have a certified ETA 750A or consider what DOT and/or SOC code is appropriate for the position for an initial I-140 that did not require a certified ETA 750A. Then consider the DOT code and/or SOC code, whichever is appropriate for the new position to make a determination of same or similar occupational classification. C. A substantial discrepancy between the previous and the new wage. (See Question 5 of this section for further clarification). Question 4. Should service centers or district offices use a difference in geographic location of the employment in the approved labor certification and initial I-140, and the new employment as basis for denial in I-140 portability cases? Answer: No. The relevant inquiry is if the new position is the same or similar occupational classification to the aliens I-140 employment when considering the aliens new position and job duties and not the geographic location of the new employment. Question 5. Should service centers or district officers use a difference in the wage offered on the approved labor certification and initial I-140, and the new employment as basis for denial in adjustment portability cases? Answer: No. As noted above the relevant inquiry is if the new position is the same or similar occupational classification to the aliens I-140 employment. A difference in the wage offered on the approved labor certification, initial I-140 and the new employment cannot be used as a basis of a denial. However, a substantial discrepancy between the previous and the new wage may be taken into consideration as a factor in determining if the new employment is same or similar. Question 6. Can multinational managers or executives classifiable under 8 USC 203(b)(1)(C) avail themselves of AC21 106(c) (8 USC 204(j)) portability benefits even where the alien changes to a new job as a manager for an unrelated company? Can same or similar for multinational employees mean employment with an unrelated company? Answer: Yes, multinational managers or executives can avail themselves of portability benefits where the alien changes to a new job as a manager or executive even for an unrelated company. However, there may be factual circumstances where such aliens cannot benefit from porting (i.e. where the job Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 4 duties are vastly different, so that the new position is not in the same or similar occupational classification as the I-140 employment). Question 7. Should service centers or district offices request proof of ability to pay from successor employers in I-140 portability cases, in other words, from the new company/employer to which someone has ported? Answer: No. The relevant inquiry is whether the new position is in the same or similar occupational classification as the aliens I-140 employment. It may be appropriate to confirm the legitimacy of a new employer and the job offer through an RFE to the adjustment applicant for relevant information about these issues. In an adjustment setting, public charge is also a relevant inquiry. Question 8. Can an alien port to self-employment under INA 204(j)? Answer: Yes, as long as the requirements are met. First, the key is whether the employment is in a "same or similar" occupational classification as the job for which the original I-140 petition was filed. Second, it may be appropriate to confirm that the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues. Third, as with any portability case, USCIS will focus on whether the I-140 petition represented the truly intended employment at the time of the filing of both the I-140 and the I-485. This means that, as of the time of the filing of the I-140 and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate. Question 9. Must a successor employer in an I-140 portability case provide a new labor certification Answer: No. There is no requirement that successor employers in adjustment portability cases obtain a new labor certification for those occupations traditionally requiring one. AC21 also provides that any underlying labor certification also remains valid if the conditions of 106(c) are satisfied. The beneficiary of an approved labor certification may benefit from it although the alien seeks to adjust on the basis of different employment. Question 10. Should service centers or district offices deny portability cases on the sole basis that the alien has left his or her employment with the I-140 petitioner prior to the I-485 application pending for 180 days? Answer: No. The basis for adjustment is not actual (current) employment but prospective employment. Since there is no requirement that the alien have ever been employed by the petitioner while the I-140 and/or I-485 was pending, the fact that an alien left the I-140 petitioner before the I-485 has been pending 180 days will not necessarily render the alien ineligible to port. However, in all cases an offer of employment must have been bona fide. This means that, as of the time the I-140 was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate. Question 11. When is an I-140 no longer valid for porting purposes? Answer: An I-140 is no longer valid for porting purposes when: A. an I-140 is withdrawn before the aliens I-485 has been pending 180 days, or B. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days. Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 5 Question 12. Can the 180 days that an I-485 application must be pending for I-140 portability eligibility accrue during a period when visa numbers are unavailable? Answer: Yes. The fact that a visa number becomes unavailable after the filing of the I-485 application does not stop the number of days required for I-140 portability eligibility from accruing. Question 13. Does the aliens priority date change as a result of porting under 106(c) of AC21? Answer: No. The priority date continues to be determined at the time of the initial labor certification filing with the Department of Labor or at the time the initial I-140 immigrant petition is filed with USCIS (in cases where no labor certification is required). Question 14. Must the alien have a new offer of employment at the time the I-485 is being adjudicated under the I-140 portability provisions? Answer: Yes. The alien cannot still be looking for same or similar employment at the time the I-485 is being adjudicated under the adjustment portability provisions. The alien must be able to show there is a new valid offer of employment at the time the I-485 is adjudicated. II. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE EXTENSION PROVISION OF 106(A) ALLOWING EXTENSION PAST THE H-1B 6 YEAR LIMIT Question 1. When an alien would otherwise be eligible for an H-1B extension, is it necessary to first file a Form I-129 requesting an extension of time to allow the beneficiary to complete or nearly complete the initial 6 years, and then file an additional Form I-129 requesting an extension of time beyond the 6 years? Answer: No. Section 106(a) of AC21 allows an alien to obtain an extension of H-1B status beyond the 6-year maximum period, when: A. 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or B. 365 days or more have passed since the filing of an EB immigrant petition. Once these requirements have been met, the alien may be granted an extension beyond the 6-year maximum on or prior to the date the alien reaches the 6-year maximum. Such extensions may only be granted in one-year increments, but may be requested on a single (combined) extension request for any remaining time left in the initial 6-year period. Requiring the filing of two extension petitions merely increases petitioner and CIS workloads, and has no basis in statute. In no case, however, may the total period of time granted on an extension exceed a cumulative total of 3 years. 8 CFR 214.2(h)(15)(ii)(B)(1). Question 2. How early can a request for an H-1B extension beyond the 6th year be filed? Answer: The April 24, 2003 guidance memorandum is modified in the following manner: a petitioner must establish that the above criteria (see Question 1 outlining requirements under Section 106(a)) were or will be met either on or before the requested start date on the H-1B extension application. Thus, an alien is eligible for an extension of H-1B status beyond the 6th year as long as either the qualifying labor certification application or I-140 petition has or will have been pending for at least 365 days prior to the aliens requested start date, regardless of whether the H-1B extension application was filed prior to the passage of such period If the alien would no longer be in H-1B status at the time that 365 days from the filing of the labor certification application or immigrant petition has run, thus leaving a gap in valid status, then the extension of stay request cannot be granted. Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 6 Question 3. Are there cases where an alien, who has been granted an H-1B extension beyond the 6th year, will nonetheless only be allowed to remain for the 6-year maximum period of stay? Answer: Yes. As addressed in the April 24, 2003 guidance memorandum, USCIS is required to grant the extension of stay request made under section 106(a) of AC21, in one-year increments, until such time as a final decision has been made to: A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification; B. Deny the EB immigrant petition, or C. Grant or deny the aliens application for an immigrant visa or for adjustment of status. If at any time before or after the filing of the single (combined) extension request a final decision is made on the above-stated grounds, the beneficiary of the extension request will not be entitled to an extension beyond the time remaining on his or her 6-year maximum stay unless another basis for exceeding the maximum applies. Question 4. In a labor substitution context, can both the original alien and the substituted alien apply for an H-1B extension beyond the 6-year limit based on 106(a) of AC21? Answer: No. Only the current beneficiary (meaning the alien that was most recently substituted into the labor certification) is eligible to get an H-1B extension beyond the 6-year limit. Question 5. Does a timely and non-frivolous I-140 appeal pending at the AAO allow an alien to request an H-1B extension beyond the 6-year limit? Answer: Subject to regulatory modification, as long as a decision may be reversed on direct appeal or certification to the Administrative Appeals Office (AAO), USCIS will not consider that decision final for this purpose. Question 6. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification was filed over 365 days ago, has been approved, but the I-140/I-485 has not yet been filed? Answer: No. Until further guidance is published, a request for an H-1B extension beyond the 6-year limit should not be denied on the sole basis that an I-140 petition has not yet been filed. Question 7. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification or immigrant petition from an employer who is not the H-1B petitioner was filed for the beneficiary more than 365 days ago? Answer: No. The statute does not require that the labor certification or immigrant petition must be from the same employer requesting the H-1B extension. Question 8. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification or the immigrant petition was filed over 365 days ago, but the H-1B nonimmigrant intends to consular process rather than adjust status? Answer: No. Question 9. Are H-4 dependents eligible for an H extension beyond the 6-year limit? Answer: Yes. H-4 dependents are eligible for an extension of their H-4 status beyond the 6-year limit provided they meet the H-4 requirements and based on the principal (H-1B) aliens eligibility for an H-1B extension beyond the 6-year limit. This includes cases where the dependent may have held another status prior to becoming an H-4 dependent. However, in order to qualify for an H-1B Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 7 extension beyond the 6 year limit year of their own H-1B status, the alien must meet all the requirements independently of their H-1B spouses eligibility for a 7th year extension. Question 10. What are the guidelines for processing 7th Year Extensions with the implementation of the new DOL PERM Program? Answer: Guidance on this subject will be provided via separate memorandum. III. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE ONE-TIME PROTECTION UNDER PER COUNTRY CEILING PROVISION OF 104(C) ALLOWING EXTENSION PAST THE H-1B 6-YEAR LIMIT Question 1. Must an alien be the beneficiary of an approved I-140 petition in order to qualify for extension of H-1B status beyond the 6-year limit based on 104(c) of AC21? Answer: Yes. Consistent with prior USCIS guidance on this subject, an approved I-140 petition is required in order for an alien to qualify for an extension of H-1B status beyond the 6-year limit under 104(c). Question 2. If an alien qualifies for an extension past the H-1B 6-year limit under 104(c), may an extension be granted for a period of up to three years? Answer: Yes, provided all other H-1B statutory and regulatory requirements are met (e.g., the petition must request three years, and include a Labor Condition Application covering such period). Question 3. If an alien qualifies for an extension past the H-1B 6-year limit under 104(c), may more than one extension be granted? Answer: Yes. USCIS recognizes that in some cases, because of per country visa limitations, it may take more than three years for the alien to be eligible to adjust. Thus, despite the reference to a onetime protection a qualifying alien may be granted more than one extension under this provision. IV. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE H-1B PORTABILITY PROVISIONS Question 1. Can an H-1B temporary worker port under 105 of AC21 (INA 214(n)) from one employer to another even after the aliens I-94 or last approved petition has expired as long as he or she is still in a period of stay authorized by the Attorney General? Answer: Yes. Under certain circumstances, an H-1B alien may still be able to port to another H-1B employer even after the aliens I-94 or last approved petition has expired. In order to port, however, such alien must meet all the requirements of INA 214(n), including the requirement that the new petition be filed while the alien is in a period of stay authorized by the Attorney General. USCIS has previously determined and issued guidance explaining what constitutes a period of stay authorized by the Attorney General. One example would be: Alien is in H-1B status. Employer A timely files a non-frivolous extension of the aliens H-1B status. Aliens original petition, approved for Employer A, expires during the pendency of the extension. Alien is then in a period of stay as authorized by the Attorney General while Employer As extension is pending. Employer B then files new petition and alien wants to port to Employer B. Under INA 214(n), the alien should be permitted to port because he or she is in a period of stay as authorized by the Attorney General. In other words, porting under INA 214 does not require that the alien currently be in H-1B status as long as he or she is in a period of stay authorized by the Attorney General. Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 8 Question 2. Can there be successive H-1B portability petitions filed for an alien while the previous H-1B petitions remain pending (i.e. creating a bridge of H-1B petitions)? Answer: Yes. However, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay. Question 3. If successive H-1B portability petitions can be filed, what happens if an aliens nonimmigrant status expires while the H-1B portability petitions are pending and a petition in the bridge is denied? Answer: As stated above, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay. In the event the aliens nonimmigrant status has expired while the petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filings undercuts the bridge that carried any petition filed after the expiration of any approved status which will result in the denial of the successive requests to extend or change status. * * * * * Questions regarding this memorandum may be directed through appropriate channels to Service Center Operations. http://www.Dr-Immigration.com/news/shownews.asp?newsID=96 Mon, 30 Mar 2009 09:22:50 EST Donald Neufeld Guidance on Form N-648 Adjudication Medical Certification for Disability Exceptions in Naturalization applications form N-400 BY USCIS: 20 Massachusetts Avenue, NW Washington, DC 20529 HQRPM 70/33-P AD07-01 To: FIELD LEADERSHIP From: Donald Neufeld /s/ Acting Deputy Associate Director Domestic Operations Directorate Date: September 18, 2007 Re: Guidance Clarifying the Adjudication of Form N-648, Medical Certification for Disability Exceptions Revisions to Adjudicators Field Manual (AFM) Chapters 72.2(d) (AFM Update AD07-01) 1. Purpose This memorandum explains and clarifies review standards in the adjudication of Form N-648 (Medical Certification for Disability Exceptions) under 8 CFR 312 and also revises subchapter 72.2(d)(5) of the Adjudicators Field Manual (AFM) accordingly. In addition, USCIS is revising the next edition of Form N-648 to detail and clarify eligibility requirements and to facilitate the adjudication of the form. 2. Background On May 10, 2006, USCIS issued a memorandum entitled Adjudication of Form N-648, Medical Certification for Disability Exceptions to the Immigration and Nationality Act (INA) Section 312 Naturalization Requirements. The May 2006 memorandum updated Chapter 72.2(d)(5) of the Adjudicators Field Manual (AFM), which provides guidance regarding adjudication of Form N-648. Naturalization applicants, who have a medically determinable physical or mental impairment that renders them unable to demonstrate a proficiency of the English language or knowledge of U.S. history and government, may submit Form N-648 in order to establish eligibility for an exception to the English and/or U.S. history and government requirements. Guidance Clarifying on the Adjudication of Form N-648 (AD07-01) HQRPM 70/33-P Page 2 Since the publication of the May 2006 memorandum, USCIS Headquarters has received numerous inquiries pertaining to the adjudication of Form N-648. To address these inquiries, USCIS is issuing the following field guidance. 3. Field Guidance The adjudicator is directed to comply with the following guidance and instructions when evaluating Form N-648. Major points of emphasis are highlighted in this section and further instructions are described in detail in section 4 of this memorandum. A. Submission of Form N-648 8 CFR 312.2(b)(2) indicates that Form N-648 must be submitted as an attachment to the applicants Form N-400, Application for Naturalization. Nevertheless, USCIS has routinely encountered applicants submitting multiple N-648s at different stages of the N-400 review process when USCIS has not requested or required the submission of additional N-648s. This practice generally places an undue administrative burden on the adjudicator and casts doubt on the applicants claim to the disability exception under section 312 of the Act. Accordingly, the applicant should submit Form N-648 for consideration at the time the N-400 application is filed. Neither the submission of Form N-648 after the filing of the N-400 nor the submission of multiple Form N-648s is, by itself, sufficient grounds to reject a request for an exception to the English and/or U.S. history and government requirements. However, the submission of late or multiple Form N-648s may raise credible doubts about the veracity of the medical certifications or justify additional scrutiny to ensure the applicant is entitled to the exception unless there is evidence of changed facts or circumstances that would explain the basis for filing multiple forms. In addition, USCIS reserves the right to require the submission of additional N-648s, if there are credible doubts as to the veracity of the medical certification. B. Appropriate Role of the Adjudicator in Reviewing Form N-648 In reviewing the Form N-648, the adjudicators role is to determine whether the Form N-648 contains sufficient information to establish that the applicant is eligible for a disability exception under section 312 of the Act. The adjudicator accordingly should focus on determining whether the medical professional has established and documented the nature and extent of the diagnosed medical condition and how the applicants diagnosed condition has impaired functioning so severely that it has rendered the applicant unable to learn or demonstrate knowledge of English and/or United States history and government. To this end, the adjudicator must ensure that the Form N-648 contains: An explanation of the origin, nature, and extent of the medical condition which is established and documented by medically acceptable clinical or laboratory diagnostic techniques, including a list of the medically acceptable clinical or laboratory diagnostic tests employed in reaching the diagnosis. Guidance Clarifying on the Adjudication of Form N-648 (AD07-01) HQRPM 70/33-P Page 3 An explanation of how the applicants diagnosed medical condition or impairment so severely affects the applicant that it renders him/her unable to learn or demonstrate English proficiency and/or knowledge of United States history and government; An attestation that the disability has lasted, or is expected to last, 12 months or longer; and An attestation that the disability is not the direct effect of the illegal use of drugs. C. Making Medical Determinations The adjudicator is not a physician and should not be placed in the position of making a medical determination. Hence, the adjudicator should not engage in medical determination practices reserved for and performed by a licensed medical professional. D. Questioning the Veracity of the Medical Determination As mentioned in previous guidance, the adjudicator should assume that the medical professionals diagnosis is valid in the absence of credible doubt. As a general rule, USCIS does not want an applicant with a disability to submit extensive medical reports or medical background information regarding the applicants condition. E. Procedures for Cases of Suspected Fraud The adjudicator should not presume the existence of fraud merely based on the number of applicants who seek a medical examination from a particular medical professional. Because applicants of an immigrant community commonly seek the care and services of medical professionals who share the same language, culture, ethnicity, and/or nationality, this practice is not, in and of itself, an indication of fraud. If the adjudicator has reason to suspect fraud, the adjudicator should consult with the Office of Fraud Detection and National Security (FDNS) according to the current fraud referral policy. All referrals to FDNS should be based on fraud indicators that can be articulated. In the event that FDNS is unable to provide a final response within a period of 120 days from the date of the initial interview, the adjudicator should proceed with the adjudication of the application. F. Explain the Reasons for N-400 Denial Decisions Based on the Deficiency of an N-648 Every denial that is based in whole or in part on credible doubts about or the deficiencies of an N-648 must explain the reasons why the credible doubts and deficiencies are preponderant over favorable medical evidence submitted on behalf of the applicant. Merely stating that the applicant has failed to meet the requirements for the waiver is insufficient. Guidance Clarifying on the Adjudication of Form N-648 (AD07-01) HQRPM 70/33-P Page 4 G. Maintain a Local Field Office Point-of-Contact (POC) Finally, to facilitate communication with USCIS external customers and stakeholders, each district or field office should maintain a point-of-contact (POC) for the N-648 program. Such POC should be an adjudicator with expert knowledge of N-648 adjudications or a supervisory adjudications officer who is responsible for administration of the N-648 program within the district or field office. The POC will be responsible for overseeing N-648 training and quality assurance within the district or field office and conducting liaison with community-based organizations, medical associations, and medical professionals interested in the N-648 process. If the adjudicator has credible doubts about the veracity of the medical certification, the adjudicator should seek supervisory guidance and approval as a general practice before requesting the applicants medical records. Furthermore, the adjudicator is encouraged to consult with the N- 648 supervisory adjudications officer or POC, as needed, before requiring the applicant to complete a supplemental disability determination. 4. Adjudicators Field Manual (AFM) Update The Adjudicators Field Manual (AFM) is updated accordingly, and subchapter 72.2(d)(5) of the AFM is revised as follows: (5) Adjudication Guidelines for the Form N-648 Waiver (A) Submission and Validity of the Form N-648 8 CFR 312.2(b)(2) indicates that Form N-648 must be submitted as an attachment to the applicants Form N-400, Application for Naturalization. Notwithstanding, USCIS routinely encounters instances where USCIS has not required the submission of more than one Form N-648 and yet the N-400 applicant submits multiple Form N-648s upon and after initially filing his or her N-400. This practice can cast doubt on the credibility of the applicants claim to the disability exception, especially if the adjudicator discovers discrepancies between and among the N-648s. The submission of Form N-648 after the filing of the Form N-400 or the submission of multiple Form N-648s is not, by itself, sufficient grounds to reject a request for an exception to the English and/or U.S. history and government requirements. However, the submission of late or multiple Form N-648s may be considered in determining whether there are credible doubts about the veracity of the medical certification or justify additional scrutiny to ensure the applicant is entitled to the exception unless there is evidence of changed facts or circumstances that would explain the basis for filing multiple forms. In addition, USCIS reserves the right to require the submission of additional N-648s, if there are credible doubts about the veracity of the medical certification. A properly submitted Form N-648 will remain valid indefinitely unless the adjudicator determines that the N-400 applicant doesnt qualify for the exemption. Guidance Clarifying on the Adjudication of Form N-648 (AD07-01) HQRPM 70/33-P Page 5 (B) Successful Completion of English Proficiency and/or U.S. History and Government Test(s) during the N-648 Review Process If an applicant submits to or the adjudicator administers the English proficiency and/or U.S. history and government test(s) at any time during the N-648 review process and the applicant passes such test(s), then the applicant will have satisfied the requirements of section 312 of the Act. In this instance, the adjudicator should indicate in the record of proceeding that the applicant has passed the required test(s) and that the N-648 is no longer required. (C) Medical Professionals Authorized to Complete the Form N-648 (1) General. Under 8 CFR 312.2, the following medical professionals who are licensed to practice in the United States (including Guam, Puerto Rico, and the Virgin Islands) are eligible to sign a Form N-648 diagnosis and medical opinion on behalf of an applicant: 1) medical doctors, 2) doctors of osteopathy, and 3) clinical psychologists. The medical professional must certify under penalty of perjury that his or her statements are true and correct and agree to the release of all pertinent medical records upon consent of the applicant and as requested by USCIS. (2) Role of the Medical Professional. The medical professional completing the N-648 must have general experience in the area of the applicant's disability and must be qualified to diagnose the applicant's disability and/or impairment(s). A doctor who is a general practitioner and not a specialist may complete the form if his or her experience or other qualifications permit him or her to make the disability and/or impairment(s) assessment. The medical professional must also be able to attest to the origin, nature, and extent of the medical condition and explain how the medical condition affects the applicants ability to demonstrate English proficiency and/or knowledge of U.S. history and government. In particular, the medical professional should establish and certify the applicants diagnosis, explaining in plain English and laymans terms how the medical professional diagnosed the anatomical, physiological, or psychological impairment and explaining how the diagnosed condition affects the applicants ability to learn or demonstrate English proficiency and/or knowledge of U.S. history and government. The medical professional should also cite the medically acceptable clinical or laboratory diagnostic tests or other diagnostic methods used and the results and conclusions drawn from these diagnostic tests which assisted the medical professional in reaching the definitive diagnosis. (D) Role of the Adjudicator in Reviewing Form N-648 (1) Primary Focus of the Adjudicator. The adjudicator is responsible for determining whether the applicant meets the requirements of Section 312 of the Immigration and Nationality Act. In reviewing the Form N-648, the adjudicators role is to determine whether the Form N-648 contains sufficient information to establish that the applicant is eligible for a disability exception. Therefore, the adjudicator should focus on determining whether the medical professional has established and documented the nature and extent of the diagnosed medical condition and how the applicants diagnosed condition has impaired Guidance Clarifying on the Adjudication of Form N-648 (AD07-01) HQRPM 70/33-P Page 6 functioning so severely that it has rendered applicant unable to learn or demonstrate knowledge of English and/or United States history and government. To this end, the adjudicator must ensure that the Form N-648 contains: An explanation of the origin, nature, and extent of the medical condition which is established and documented by medically acceptable clinical or laboratory diagnostic techniques, including a list of the medically acceptable clinical or laboratory diagnostic tests used in diagnosing the condition. An explanation of how the applicants diagnosed medical condition or impairment so severely affects the applicant that it renders him/her unable to learn or demonstrate knowledge of English and/or United States history and government. An attestation that the disability has lasted, or is expected to last, 12 months or longer; and An attestation that the disability is not the direct effect of the illegal use of drugs. (2) Making Medical Determinations. The adjudicator is not a physician and should not be placed in the position of making a medical determination. Accordingly, the adjudicator should not: Require or recommend that an applicant complete specific medical, clinical, or laboratory diagnostic techniques, tests, or methods; Develop and substitute his or her own diagnosis of the applicants medical condition in lieu of the medical professionals diagnosis; Use questionnaires or tests to challenge each applicants diagnosed medical condition as a routine practice; and Request or require an applicants medical records solely to question whether there was a proper basis for the medical professionals diagnosis. (3) Questioning the Veracity of the Medical Certification. The adjudicator should assume that the medical professionals diagnosis is unless there is credible doubt about the veracity of the medical certification. As a general rule, USCIS does not want an applicant with a disability to submit extensive medical reports or medical background information regarding the applicants condition. Notwithstanding, credible doubts may arise when the adjudicator establishes or has reason to believe that: Guidance Clarifying on the Adjudication of Form N-648 (AD07-01) HQRPM 70/33-P Page 7 The medical professional completing the Form N-648 is under investigation by FDNS, Immigration and Customs Enforcement, or other law enforcement agency, or a state medical board; The medical professional has a pattern of submitting Form N-648 with similar or boiler plate language that does not appear to reflect a case-specific analysis; Form N-648 was submitted more than six (6) months after it was completed by the medical professional; Form N-648 was completed by someone other than the certifying medical professional; Evidence in the record or other credible information available to the adjudicator indicates fraud or willful misrepresentation; The medical professional failed to conduct a personal examination of the applicant in the course of diagnosing the applicants medical condition; or The medical professional neglected to conduct specific medical, clinical, or laboratory diagnostic techniques that are considered standard methods in diagnosing the applicants medical condition. If the adjudicator finds or has reason to believe the medical determination is suspect at the time of the naturalization interview, the adjudicator may question the applicant about the facts pertaining to the applicants medical care, job duties, community and civic affairs, and/or other daily living activities. In particular, the adjudicators line of inquiry should focus on eliciting facts about the applicants activities and conduct, which may reveal the applicants functional capacity or inability to demonstrate English proficiency and/or knowledge of U.S. history and government. If the applicants conduct and responses are inconsistent with the description of the applicants diagnosed condition as described on the Form N-648 and other supporting documentation, the adjudicator may have a justifiable basis for doubting the authenticity of the medical determination. If the adjudicator has credible doubts about the veracity of the medical certification, the adjudicator should refer to (E)(5)(c) below for guidance on requesting medical records and requiring a supplemental disability determination. (4) Maintaining a Point-of-Contact (POC) for N-648 Process. To facilitate communication with USCIS external customers and stakeholders, each district or field office should maintain a point-of-contact (POC) for the N-648 program. Such POC may be an adjudicator with expert knowledge of N-648 adjudications or a supervisory adjudications officer who is responsible for administration of the N-648 program within the district or field office. The POC will be responsible for overseeing N-648 training and quality assurance within the district or field office and conducting liaison with community-based organizations, medical associations, and medical professionals interested in the N-648 process. Guidance Clarifying on the Adjudication of Form N-648 (AD07-01) HQRPM 70/33-P Page 8 (E) Review of Form N-648 (1) Completion of Form N-648. An adjudicator must first review the Form N-648 to ensure that it is properly completed. (2) Nexus between Medical Impairment and Applicants Ability to Learn or Demonstrate English Proficiency and/or Knowledge of United States history and government. The adjudicator must evaluate each Form N-648 individually and determine, based on all the information, whether the applicant has proven by preponderance of evidence that the anatomical, physiological, or psychological abnormality described has so severely impaired the applicants functioning that the applicant is unable to demonstrate English proficiency and/or knowledge of U.S. history and government. Consequently, the adjudicator should focus on determining whether the medical professional has established the connection between the nature and extent of the diagnosed medical condition and the applicants inability to demonstrate English proficiency and/or knowledge of U.S. history and government. Accordingly, Form N-648 must include a sufficiently thorough explanation in plain English and laymans terms of (a) how the medical professional diagnosed the disability or impairment, and (b) how the diagnosed disability or impairment renders the applicant unable to demonstrate English proficiency and/or knowledge of U.S. history and government. The adjudicative standards used to evaluate disability exceptions under section 312 of the Act apply to any mental impairments cited on Form N-648. Advanced aging, in and of itself, is not a medically determinable physical or developmental disability or mental impairment. The diagnosed mental disability must result in an impairment of functioning so severe that the applicant is unable to learn or demonstrate English proficiency and/or knowledge of U.S. history and government. (3) Medical, Clinical, or Laboratory Diagnostic Techniques. There are no key words, phrases, or a specific test that will, by itself, demonstrate a sufficient nexus between the applicants medical impairment and the applicants ability to learn or demonstrate English proficiency or knowledge or U.S. history and government. Likewise, there are no lists of conditions, symptoms, or complications that will always be caused by or linked to certain disabilities or impairments. The medical professional, however, should include a list of all medically acceptable clinical or laboratory diagnostic techniques or other diagnostic methods and the results and conclusions of these diagnostic tests which assisted the medical professional in determining and concluding that the applicant has a disability that so severely renders him/her unable to learn or unable to demonstrate English proficiency and/or knowledge of U.S. history and government. (4) Consideration of Federal Agency Reports and Determinations. The adjudicator should consider any authoritative federal agency report or determination in the applicants record file that addresses the applicants diagnosed medical condition. To illustrate, if the Social Security Administration has granted the applicant a disability benefit based on the applicants diagnosed medical condition, then such determination may validate the medical Guidance Clarifying on the Adjudication of Form N-648 (AD07-01) HQRPM 70/33-P Page 9 professionals diagnosis. Likewise, if a Department of States report of the applicants medical condition is consistent with the medical professionals diagnosis, then such report may authenticate the applicants diagnosed condition. (5) Issuance of Form N-14 to Address the Deficiencies of the N-648. (a) Discontinued Use of N-648B, Notice of Incomplete N-648 Medical Certification For Disability Exception. The adjudicator should use Form N-14 in lieu of the N- 648B to address deficiencies in the N-648. Use of the N-648B is hereby discontinued. (b) Clarification of the Medical Professionals Assessment. If the medical professionals assessment is unclear and/or if an applicants request for a disability exception is otherwise deemed to be insufficient, the adjudicator must request additional information to clarify the assessment and address any deficiencies. Such request may include asking the medical professional to explain the medical, clinical, or laboratory diagnostic techniques used to diagnose the applicants medical condition, to explain the applicants medical condition in plain English and laymans terms, and/or to explain how the applicants diagnosed condition renders the applicant unable to demonstrate English proficiency or knowledge of U.S. history and government. In the case of minor deficiencies to the N-648, the adjudicator may request additional information without requiring the applicant to submit a new N-648. In the case of major deficiencies, the adjudicator may require the applicant to submit a new N-648. The burden is on the applicant to obtain the information from the medical professional who completed the N-648. (c) Request for Medical Records and Requirement of Supplemental Disability Determination. USCIS has the authority to request the release of the applicants medical records if there is credible doubt as to the veracity of the medical certification. The adjudicator may only request and review medical records to determine the veracity of the certifying medical professionals claims on the Form N- 648 regarding how the medical professional reached the diagnosis, which may include verifying the completion and results of any medically acceptable clinical or laboratory diagnostic techniques used to diagnose the impairment. As noted above, the adjudicator may not request medical records solely to question whether there was a proper medical basis for the noted impairment. USCIS also reserves the right to refer the applicant to another authorized medical professional, at the applicants expense, when USCIS has credible doubts about the veracity of the medical certification. See 8 CFR 312.2(b)(2). If the adjudicator has credible doubts about the veracity of the medical certification, the adjudicator should seek supervisory guidance and approval as a general practice before requesting the applicants medical records. Furthermore, the Guidance Clarifying on the Adjudication of Form N-648 (AD07-01) HQRPM 70/33-P Page 10 adjudicator is encouraged to consult with the N-648 supervisory adjudications officer or POC, as needed, before requiring the applicant to complete a supplemental disability determination. If an applicant is required to complete a supplementary disability determination, each district or field office must provide the applicant with the contact information of the appropriate state medical board, which maintains a list of licensed and boardcertified medical professionals in the appropriate specialty area, such as psychiatrist, neurologist, or psychologist. See Appendix 72-13 Attachment A and Appendix 72- 13 Attachment B. (6) Examination. Under 8 CFR 312.5, an applicant should receive two opportunities to meet the requirements of section 312 of the Act. If the adjudicator finds that the Form N-648 is insufficient to establish eligibility for an exception from the English and/or U.S. history and government requirements for naturalization, the adjudicator must give the applicant a choice to either proceed with testing or to be rescheduled for re-examination. The adjudicator must explain to the applicant that rescheduling the examination will constitute a refusal to submit to testing, which is considered the equivalent of failing the test for purposes of the two opportunities under 8 CFR 312.5. If the applicant refuses to submit to testing, the adjudicator must note on the application, Applicant refused testing. This notation will help to ensure that the applicant is only scheduled for one additional chance to meet the requirements of section 312. If an applicant fails the test or chooses to reschedule, the adjudicator must issue a Form N- 14, which must include a detailed explanation of the deficiencies and inconsistencies in the Form N-648 and, if appropriate, request the applicant to obtain another evaluation from an authorized medical specialist for a supplemental determination. The adjudicator must schedule the applicant for re-examination within 45 days of responding to the N-14 or filing the new N-648. If the applicant fails to submit the new N-648, then the adjudicator should proceed with the adjudication based on the N-648 form contained in the applicants record file. (7) Denial of N-400. If upon re-examination, the adjudicator determines that an applicant is not eligible for a disability exception and the applicant fails to pass the English and/or U.S. history and government tests, the Form N-400 must be denied. The merits and deficiencies of the Form N-648 may be reviewed in the context of a hearing on the denial of the Form N- 400 under section 336 of the Act. An applicant may submit additional documentation for review at the 336 hearing. Every denial that is based in whole or in part on credible doubts about or deficiencies of an N-648 or its supporting certification must explain the reasons why the credible doubts and deficiencies outweigh any favorable medical evidence submitted on the applicants behalf. Merely stating that the applicant has failed to meet the requirements for the waiver is insufficient. See 8 CFR 316.14(b)(1) and 8 CFR 336.1(b). Guidance Clarifying on the Adjudication of Form N-648 (AD07-01) HQRPM 70/33-P Page 11 (F) Procedures for Cases of Suspected Fraud Because applicants of an immigrant community commonly seek the care and services of medical professionals who share the same language, culture, ethnicity, and/or nationality, this practice is not, in and of itself, an indication of fraud. If the adjudicator has reason to suspect fraud, the adjudicator should consult with the Office of Fraud Detection and National Security (FDNS) according to the current fraud referral policy. All referrals to FDNS should be based on fraud indicators that can be articulated. After conferring with FDNS and consulting with the appropriate N-648 supervisory adjudications officer or POC, if appropriate, the adjudicator may issue a Form N-14 to the applicant, requiring the applicant to obtain another medical evaluation from an authorized medical professional for a supplemental disability determination. A new Form N-648 must then be completed and filed, and the applicant must be scheduled for re-examination within 45 days of filing the new Form N-648. If Form N-14 is issued for the purpose of obtaining another medical evaluation for supplemental disability determination, the adjudicator must include the contact information for the specific state medical association and category of specialized medical professional that the applicant should contact in order to complete the new Form N-648. The information for the state medical associations and the categories of specialized medical professionals are attached in Appendix 72-13 Attachment A and Appendix 72-13 Attachment B. An applicants failure to appear at the re-examination or failure to submit a new Form N-648 may result in denial of the Form N-400. In the event that FDNS is unable to provide a final response within a period of 120 days from the date of the initial interview, the adjudicator should proceed with the adjudication of the application. (G) Reasonable Accommodations and Modifications under the Rehabilitation Act *** (H) Procedures for Waiver of the Oath of Allegiance *** In addition, current subchapter 72.2(d)(6), N-648B: Notice of Incomplete Medical Certification for Disability Exception, is deleted and subchapters 72.2(d)(7) through (d)(10) are renumbered accordingly as follows: (6) Notice to Appear, Order to Show Cause, and Removal Order *** Guidance Clarifying on the Adjudication of Form N-648 (AD07-01) HQRPM 70/33-P Page 12 (7) Fingerprint Rap Sheets *** (8) N650 or N-650A: N400 Clerical Processing Worksheet *** (9) N-650B: N400 Adjudication Processing Worksheet *** AD07-01 [INSERT DATE] Chapters 72.2(d)(5), (6), (7), (8), and (9) This memorandum revises sections of subchapter 72.2(d)(5), (6), (7), (8), and (9) of the Adjudicators Field Manual. 5. Use This memorandum is intended solely for the instruction and guidance of USCIS personnel in performing their duties relative to adjudications. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. In addition, the instruction and guidance in this memorandum is in no way intended to and does not prohibit enforcement of the immigration laws of the United States. 6. Contact Information Questions regarding this memorandum may be directed to Mark Phillips, USCIS Office of Regulations and Product Management (RPM), through appropriate supervisory channels. Distribution: Regional Directors District Office Directors Service Center Directors Field Office Directors Asylum Office Directors cc: USCIS Headquarters Directors Bureau of Immigration and Customs Enforcement Bureau of Customs and Border Protection http://www.Dr-Immigration.com/news/shownews.asp?newsID=95 Wed, 11 Mar 2009 07:03:55 EST The Department of Defense, General Services Administration, and National Aeronautics and Space Administration have agreed to delay the effective and applicability dates of FAR Case 2007-013, Employment Eligibility Verification, to January 19, 2009, and February 20, 2009, respectively. [Federal Register: January 14, 2009 (Volume 74, Number 9)] [Rules and Regulations] [Page 1937] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr14ja09-12] --------------------------------------- DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 2, 22, and 52 [FAC 2005-29, Amendment-1; FAR Case 2007-013; Docket 2008-0001; Sequence 2] RIN 9000-AK91 Federal Acquisition Regulation; FAR Case 2007-013, Employment Eligibility Verification AGENCIES: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Final rule; delay of effective and applicability dates. --------------------------------------- SUMMARY: The Department of Defense, General Services Administration, and National Aeronautics and Space Administration have agreed to delay the effective and applicability dates of FAR Case 2007-013, Employment Eligibility Verification, to January 19, 2009, and February 20, 2009, respectively. DATES: Effective Date: The effective date of FAC 2005-29, the final rule amending 48 CFR Parts 2, 22, and 52, published in the Federal Register on November 14, 2008, at 73 FR 67650, is delayed January 15, 2009, until January 19, 2009. Applicability Date: The applicability date of FAC 2005-29 is delayed until February 20, 2009. Contracting officers shall not include the new clause at 52.222-54, Employment Eligibility Verification, in any solicitation or contract prior to the applicability date of February 20, 2009. On or after February 20, 2009, contracting officers-- Shall include the clause in solicitations in accordance with the clause prescription at 22.1803; and Should modify, on a bilateral basis, existing indefinite- delivery/indefinite-quantity contracts in accordance with FAR 1.108(d)(3) to include the clause for future orders if the remaining period of performance extends beyond August 20, 2009, and the amount of work or number of orders expected under the remaining performance period is substantial. FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755 for further information pertaining to status or publication schedule. Please cite FAC 2005-29 (delay of effective and applicability dates). SUPPLEMENTARY INFORMATION: This document extends to January 19, 2009, the effective date of the E-Verify rule, in order to comply with the Congressional Review Act (5 U.S.C. 801(a)(3)(A)). Although this rule was published in the Federal Register on November 14, 2008 (73 FR 67650), it was not received by Congress until November 19, 2008. Because of pending litigation, the applicability date for the regulation is being extended until February 20, 2009. Federal Acquisition Circular Federal Acquisition Circular (FAC) 2005-29, Amendment-1, is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator for the National Aeronautics and Space Administration. The Federal Acquisition Regulation (FAR) contained in FAC 2005-29 is effective January 19, 2009, and applicable February 20, 2009. Dated: January 9, 2009. Linda W. Neilson, Acting Deputy Director, Defense Procurement (Defense Acquisition Regulations System). Dated: January 9, 2009. David A. Drabkin, Senior Procurement Executive & Deputy Chief Acquisition Officer, U.S. General Services Administration. Dated: January 9, 2009. William P. McNally, Assistant Administrator for Procurement, National Aeronautics and Space Administration. [FR Doc. E9-651 Filed 1-13-09; 8:45 am] BILLING CODE 6820-EP-P http://www.Dr-Immigration.com/news/shownews.asp?newsID=94 Sun, 8 Mar 2009 16:59:13 EST BY US DHS DHS Reminds Visa Waiver Program Travelers of ESTA Requirements Effective Today Release Date: January 12, 2009 For Immediate Release Office of the Press Secretary Contact: 202-282-8010 The U.S. Department of Homeland Security (DHS) today reminded travelers from all Visa Waiver Program (VWP) countries that they are now required to obtain approval through the Electronic System for Travel Authorization (ESTA) prior to traveling to the United States. This requirement, effective today, applies to all eligible citizens or nationals traveling under the VWP. We have been collecting information from visa waiver travelers for decades, and establishing a program to get that same information in advance is one enhancement that allowed us to extend the valuable benefit of visa-free travel to eight new countries in 2008, said Homeland Security Secretary Michael Chertoff. In addition to building business and cultural ties with our partners overseas, this is a commonsense step into the 21st century that will improve our efficiency in screening and welcoming international travelers at our ports of entry. ESTA is a web-based system, initially launched in August 2008, that determines the preliminary eligibility of visitors to travel under the VWP prior to boarding a carrier to the United States. To date, more than 1.2 million ESTA applications have been received, and more than 99.6 percent of applicants have been approved, most within seconds. DHS will take a reasonable approach to travelers who have not obtained an approved travel authorization via ESTA, and will continue an aggressive advertising and outreach campaign throughout 2009. Travelers without an approved ESTA are advised, however, that they may be denied boarding, experience delayed processing, or be denied admission at a U.S. port of entry. Visitors may apply for travel authorization via the ESTA Web site at https://esta.cbp.dhs.gov. DHS received authorization for VWP reforms through the Implementing Recommendations of the 9/11 Commission Act of 2007. The VWP is administered by the department and enables eligible citizens or nationals of certain countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa. To be admitted to the VWP, a country must meet various statutory requirements, such as more enhanced law enforcement and security-related data sharing with the U.S. and timely reporting of both blank and issued lost and stolen passports. VWP members are also required to maintain high counter-terrorism, law enforcement, border control, and document security standards. The citizens or nationals of the following countries are currently eligible to travel to the United States under the VWP: Andorra, Australia, Austria, Belgium, Brunei, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, the Republic of Korea, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. Eight of these countries joined the VWP in 2008, and their citizens and nationals have been required to comply with an ESTA since their designation as VWP participants: the Czech Republic, Estonia, Hungary, the Republic of Korea, Latvia, Lithuania, Slovakia and Malta. For additional information on ESTA, visit www.cbp.gov/esta, and for more information on the VWP, please visit http://www.cbp.gov/xp/cgov/travel/id_visa/business_pleasure/vwp/. http://www.Dr-Immigration.com/news/shownews.asp?newsID=93 Sun, 8 Mar 2009 16:54:39 EST DOL issue questions and answers on Supervised Recruitment BY US DOL FAQS ON SUPERVISED RECRUITMENT 1. Under what authority can the Department of Labor's Office of Foreign Labor Certification select an employer's application for supervised recruitment? * 20 CFR 656.21 provides, "Where the Certifying Officer determines it appropriate, post-filing supervised recruitment may be required of the employer for the pending application or future applications pursuant to 20 CFR 656.20(b)," and 20 CFR 656.24(f) provides, in part, "If the Certifying Officer determines the employer substantially failed to produce required documentation, or the documentation was inadequate, or determines a material misrepresentation was made with respect to the application, or if the Certifying Officer determines it appropriate for other reasons, the employer may be required to conduct supervised recruitment pursuant to 656.21 in future filings of labor certification applications for up to two years from the date of the Final Determination. 2. How will the employer know it has been selected for Supervised Recruitment? * The employer will be notified by the Office of Foreign Labor Certification/Atlanta National Processing Center (OFLC/ANPC). 3. What does the Supervised Recruitment process entail? * The supervised recruitment process generally consists of the following steps: 1. The employer will receive a Notification of Supervised Recruitment letter. Using the advertisement's general content requirements outlined in the Notification of Supervised Recruitment letter, the employer must supply a draft advertisement of the job opportunity to the Certifying Officer for review within 30 calendar days from the date of the notification letter. The employer may submit a request for one extension (for good cause) of the 30-day timeframe, to be granted at the Certifying Officer's discretion. In drafting the advertisement, the employer cannot substantively deviate from the job opportunity's requirements as listed in Section H of the submitted ETA Form 9089. 2. Upon receipt and review of the draft advertisement, the Certifying Officer may issue an Assessment/Correction Letter to the employer, identifying any changes/additions that must be made before recruitment can begin. 3. Once the draft advertisement is approved, the Certifying Officer will send the employer a Recruitment Instructions letter identifying in what sources or publications, as well as when, the employer's advertisement(s) must be placed. The employer must not initiate recruitment for U.S. workers until it receives this letter. 4. The employer's advertising will direct applicants to send resumes and or applications to an OFLC or ANPC post office box address as outlined in the Recruitment Instructions letter. The Certifying Officer will send all resumes and applications received in response to the employer's advertisement(s) along with a cover letter listing the resumes/applications to the employers attorney or agent of record, if any, with a copy of the cover letter to the employer. If the employer is not represented by an attorney or agent, the resumes and or applications will be sent directly to the employer. The employer will be required to consider all U.S. applicants for this job opportunity and any rejections must be made only for lawful reasons. 5. A Recruitment Report Letter outlining the requirements set forth under 20 CFR 656.21(e) will be sent to the employer requiring it to submit a written recruitment report to the OFLC/ANPC within 30 calendar days of the request. The employer may request one extension (for good cause) of the 30-day timeframe, to be granted at the OFLC/ANPC's discretion. 6. The Certifying Officer will utilize all recruitment information and supporting documentation to determine whether to grant or deny the employer's application. 4. What is the average time it takes for an application to be processed in Supervised Recruitment? * A "clean" application undergoing supervised recruitment i.e., one that does not require additional information or clarification from the employer, should take approximately 180 days to process and receive a final determination. The process may take longer, depending upon whether the employer requests extensions of time or the analyst requires additional time to review documentation and make a determination. 5. What will happen if the employer fails to timely respond or request an extension of time at any point in the Supervised Recruitment process? * In accordance with the regulation, failure to adhere to any timeframe throughout the supervised recruitment process will result in a denial of the employer's application. A pattern or practice of failing to comply in the supervised recruitment process is a ground for debarment of an employer, attorney, agent, or any combination thereof from the permanent labor certification program for a reasonable period of up to three years. 6. When should an exployer undergoing Supervised Recruitment provide notice that it has changed its attorney/agent? * The employer must provide notification of a change of representation as soon as the decision to hire the attorney or agent is finalized. The notification may be included with other correspondence or communication with the OFLC/ANPC. If the employer's communication with OFLC/ANPC is via e-mail, a copy of the notification, in PDF format, must be attached to the email and, thereafter, the signed original must be mailed to the OFLC/ANPC. Please note: Communication will not be held with an attorney or agent who is not listed on the ETA Form 9089 and for whom no notification establishing employer representation is provided to the OFLC/ANPC. 7. What documentation and/or notice is needed when an employer undergoing Supervised Recruitment changes its attorney/agent? * The employer and/or the newly retained attorney or agent must provide documentation signed by the employer establishing that it intends to be represented by the attorney or agent named, providing all applicable information as requested in Section E, Agent or Attorney Information, of the ETA Form 9089, and containing the statement, "I hereby designate the agent or attorney identified in this letter to represent me for the purpose of labor certification. I take full responsibility for the accuracy of any representations made by the agent or attorney identified above." 8. Can the employer list a wage range in its advertisement(s)? * Yes. If the employer wishes to state a wage range in the advertisement, the bottom of the range must not be lower than the prevailing wage or the wage being offered to the foreign worker named on the ETA Form 9089, whichever is higher. 9. Must the employer advertise at the prevailing wage it listed at the time of filing the ETA Form 9089 OR, if different, the current prevailing wage? * Where the employer includes a wage in its advertisement, the wage must be equal to or greater than the current prevailing wage for the job opportunity. Where necessary, the OFLC/ANPC will provide the employer with the new prevailing wage applicable to the job opportunity. If the employer chooses to use a source other than the Occupational Employment Statistics (OES) survey, the employer must provide an acceptable survey, as outlined in 20 CFR 656.40(g), to the Certifying Officer. 10. What is the extent to which the employer must provide any additional information requested in the notification of Supervised Recruitment Letter? * All documentation required by the OFLC/ANPC as part of the supervised recruitment process must be provided in full. Where one form of documentation lends itself more readily for submission to the OFLC/ANPC, e.g., electronic versus hardcopy, arrangements can possibly be made to accommodate the one form over the other. 11. To whom will the Office of Foreign Labor Certification send any resumes received in response to the advertisement(s)? * Resumes and or applications received by the OFLC/ANPC in response to the employer's advertisement(s) will be sent to the employer's attorney or agent of record, if any, with a copy to the employer. If the employer is not represented by an attorney or agent, the resumes and or applications received by the OFLC/ANPC in response to the employer's advertisement(s) will be sent directly to the employer. 12. What are the consequences of an employer requesting to withdraw an application undergoing Supervised Recruitment? * While OFLC/ANPC may grant an employer's request to withdraw an application undergoing supervised recruitment and the employer then files a new application meeting all regulatory requirements, the future application for the same foreign worker as in the withdrawn application will be subject to supervised recruitment pursuant to 20 CFR 656.21. Additionally, where the OFLC/ANPC determines it appropriate, all other applications filed by the employer for any foreign worker or job opportunity may also be subject to supervised recruitment. An employer that wishes to file a future application for the same foreign worker as in an application withdrawn while undergoing supervised recruitment must do so by completing the ETA Form 9089, except Section I, Recruitment Information, which will be completed after submission at the instruction of the OFLC/ANPC. The employer must file the above referenced application by mail to the Atlanta National Processing Center at the following address: U.S. Department of Labor Employment and Training Administration Foreign Labor Certification National Processing Center Harris Tower 233 Peachtree Street, Suite 410 Atlanta, Georgia 30333 Repeated requests to withdraw different applications undergoing supervised recruitment will be carefully reviewed and may evidence a pattern or practice of the employer's failure to comply with the supervised recruitment process, and may subject the employer to debarment from the permanent labor certification program for a reasonable period of no more than three years pursuant to 20 CFR 656.31(f)(1)(v). http://www.Dr-Immigration.com/news/shownews.asp?newsID=92 Sun, 8 Mar 2009 16:53:27 EST USCIS issue supplemental Questions and Answers on Final Religious Worker Rule Effective November 26, 2008 By USCIS: U.S. Citizenship and Immigration Services (USCIS) published the final rule on the special immigrant and nonimmigrant religious worker visa categories on November 26, 2008. This rule became effective immediately on the date of publication. USCIS published an initial set of questions and answers related to the final religious worker rule on November 21, 2008. Below are a supplemental group of questions and answers that provide additional details on the program. Supplemental Qs and As Part 1 Special Immigrant Religious Workers (I-360 petitions) Q1. The final religious worker rule contains a stipulation that any unauthorized employment in the United States does not count towards and interrupts the two-year continuous period of experience required for classification as a special immigrant religious worker. Does this provision conflict with section 245(k) of the Immigration and Nationality Act (Act), which allows individuals who have been out of status and/or worked without authorization for up to 180 days to apply for adjustment of status to that of a permanent resident? A1. No. The provisions in the final religious worker rule governing the eligibility requirements for special immigrant religious workers, specifically the experience requirements, do not negate the statutory provisions of section 245(k) of the Act relating to the subsequent adjustment of status application. Section 245(k) of the Act applies to adjustment of status (I-485) applications, and 8 CFR 204.5(m)(4) applies to special immigrant (I-360) petitions. Because the final rule was enacted largely to combat fraud, any employment in the United States that the religious worker seeks to have counted towards the 2-year experience requirement to qualify as a special immigrant religious worker must be authorized. Unauthorized employment in the United States will break the continuity of the required religious work experience for the purpose of I-360 adjudications. If the two-year period is interrupted, the qualifying period of employment must re-start but may be completed in the United States or abroad. If the applicant is in the United States once the I-360 petition for special immigrant religious worker classification is approved, and if he/she is in valid status or has been out of status for less than 180 days in the aggregate, he/she may proceed with applying for adjustment of status and may utilize section 245(k) of the Act, if applicable. Q2. Does any break in employment in the United States disrupt the two-year continuous period of qualifying experience for special immigrant classification? A2. No. USCIS regulations at 204.5(m)(4) state that a break in the continuity of the work during the preceding two years will not affect eligibility so long as: (i) the beneficiary was still employed as a religious worker; (ii) the break did not exceed two years; and (iii) the nature of the break was for further religious training or for sabbatical that did not involve unauthorized work in the United States. However, the beneficiary must have been a member of the petitioners denomination throughout the two years of qualifying employment. Additionally, as a point of clarification, the supplemental information section to the final rule published on November 26, 2008 indicates that events such as sick leave, pregnancy leave, spousal care, and/or vacations are typical in the normal course of any employment and will not be seen as a break of the two-year requirement as long as the beneficiary is still considered employed during that time and such employment is pursuant to a valid employment authorization. Q3. Regarding the definition of a religious occupation, how do religious novices and those in formation qualify for a religious occupation? The preamble to the final rule addresses this issue and states that a missionary and a novice would qualify under a religious occupation; however, the regulations at 8 CFR 204.5(m)(5) and 214.2(r)(3) state that religious study or training for religious work does not constitute a religious occupation. A3. The preamble to the final rule states that missionaries and novitiates may not be qualified to be considered as religious workers performing a religious vocation if vocations in their denominations do not require a lifetime commitment. However, missionaries and novitiates may qualify as religious workers under the religious occupation definition if they are coming to the United States primarily to perform the duties described in 8 CFR 204.5(m)(5) and 214.2(r)(3). These regulations further state that a religious worker may pursue study or training incident to status. If the religious novices and those in formation are coming primarily to attend theological institutions or to pursue religious study or training, F-1 student visas would be more appropriate than R-1 religious worker visas. Q4. USCIS regulations at 8 CFR 204.5(m)(5) and 214.2(r)(3) state that a religious vocation must be distinguished from the secular member of the religion. Do the religious communities standards determine membership in the religious order? A4. USCIS regulations at 8 CFR 204.5(m)(5) and 214.2(r)(3) further define religious worker as an individual engaged in and, according to the denominations standards, qualified for a religious occupation or vocation, whether or not in a professional capacity, or as a minister. Although it is the religious communities standards that will determine membership in the religious order, a formal lifetime commitment to a religious way of life must be demonstrated in order for an individual to qualify as a religious worker in a religious vocation, within the specific meaning of section 101(a)(27)(C)(ii)(I) of the Act and 8 CFR 204.5(m)(2)(ii). Q5. How can an organization filing an I-360 petition for a special immigrant religious worker or an I-129/R-1 petition for a nonimmigrant religious worker establish their eligibility as a tax exempt organization? A5. Under the final religious worker rule, there are three ways for the petitioning organization to establish tax exempt status that will support an I-360 or an I-129R filing. * If the petitioner is a religious organization with its own determination from the Internal Revenue Service (IRS) as a tax exempt organization, it must submit a copy of its valid 501(c)(3) determination letter. * If the petitioner is a religious organization recognized as tax exempt under group IRS tax exempt determination, it must submit a copy of a currently valid 501(c)(3) determination letter for the group. * As an individual tax exempt organization affiliated with a religious denomination: If the petitioner is an individual tax exempt organization affiliated with a religious organization, in addition to a copy of its valid 501(c)(3) determination letter, it must also submit: o A currently valid 501(c)(3) determination letter from the IRS; o Documentation establishing its religious nature and purpose, such as a copy of the organizing instrument, specifying the nature and purpose of its own organization; o Organizational literature, such as books, articles, brochures, calendars, flyers, and other literature describing the religous purpose and nature of its own activities; and o A religious denomination certification, (which may be in the form of a letter) which is part of the Form I-360 with the revision date of 11/26/08 or later, from the affiliated religious organization certifying that both organizations are affiliated. Q6. USCIS regulations at204.5(m)(9)(ii) and 214.2(r)(10)(ii) require evidence of education at an accredited theological institution and documents to establish that the theological institution is accredited by the denomination. Is submission of an ordination certificate alone sufficient to establish that a religious worker meets the requirements for ministers seeking to establish they have received education at an accredited theological institution? A6. No. For a religious denomination that requires a prescribed theological education, a certificate of ordination alone would not be sufficient evidence to establish that the beneficiary received his/her education at an accredited theological institution . The certificate of ordination must be accompanied by documentation reflecting acceptance of the beneficiarys qualifications as a minister in the religious denomination and evidence that the educational institution is accredited by the denomination. If, however, the denomination operates under specific laws and regulations regarding the accreditation of a theological institution and the issuance of ordination certificate, a copy of such laws and regulations may be attached to the certificate and be deemed sufficient. For denominations that do not require a prescribed theological education, the required evidence is enumerated at 8 CFR 204.5(m)(9)(iii) and 214.2(r)(10)(iii). Q7. Is a financial statement from the petitioner sufficient to verify how the petitioner intends to compensate the individual? A7. If IRS documentation, such as IRS Form W-2 or certified tax returns, is available, it must be provided. If IRS documentation is not available, an explanation for its absence must be provided, along with comparable, verifiable, documentation such as an audited financial statement from the petitioner. Q8. What type of documentation does the IRS provide to document non-salaried compensation? Is a job experience letter for experience gained in the U.S. or abroad alone sufficient in lieu of IRS documentation of non-salaried compensation? For members who have taken vows of poverty, is a letter from an authorized official of the religious community attesting to its support and experience of the individual over the last two years sufficient? A8. The petitioners IRS documentation such as tax returns may reflect expenses incurred as a result of providing non-salaried compensation to the beneficiary. Additionally, individuals with non-salaried compensation are not precluded from filing a tax return with the IRS. If IRS documentation is unavailable, the petitioner must provide an explanation for its absence along with comparable, verifiable documentation reflecting non-salaried compensation. Examples of documentation that establish non-salaried compensation include, but are not limited to, lease or purchase agreements for vehicles and lease or ownership documents relating to housing. While a letter from an authorized official of the religious community is very helpful in explaining the non-salaried compensation for those religious workers who have taken vows of poverty, it must nevertheless be supported by verifiable evidence. Part 2 Non-immigrant Religious Workers (I-129 petitions) Q9. USCIS regulations at 8 CFR 214.2(r)(4)(i) require a visa exempt individual to present original documentation of the petition approval. Many Canadians are traveling home for the holidays and due to significant delays in processing I-129 petitions, will not have an approved petition in time for their intended return. Are Canadians who are visa exempt and are traveling with current I-94s valid for multiple entries permitted to enter the U.S. without an approved petition? A9. The final religious worker rule became effective immediately upon publication. See 73 FR, 72276-72297, November 26, 2008. Effective November 26, 2008, nonimmigrant religious workers may no longer be issued R-1 visas unless they are the beneficiary of an approved R-1 nonimmigrant visa petition. This requirement also applies to visa exempt religious workers, e.g., Canadians. See 8 CFR 214.2(r)(4)(i), which states in part that, [i]f visa exempt, the alien must present original documentation of the petition approval. Religious workers in possession of valid R-1 nonimmigrant visas issued on or before November 25, 2008, whether based on an approved R-1 petition or not, may be admitted for the duration of the visas validity, provided they are otherwise admissible. All subsequent R-1 visa issuance must be in accordance with the November 26, 2008 final rule. Similarly, visa-exempt aliens whose current I-94s are valid for multiple entries and granted before November 26, 2008 without an approved R-1 petition may be admitted for the duration of the I-94s validity period, provided they are otherwise admissible, and only if they are traveling to and from the contiguous U.S. territories for less than 30 days. However, if the visa-exempt alien is traveling to and from the contiguous U.S. territories for more than 30 days or beyond the contiguous U.S. territories, the alien will be required to present evidence that he or she is the beneficiary of an approved I-129 petition in order to be admitted into the United States. Q10. Since the final rule became effective immediately on the date of publication, many employers and individuals that had been making international travel plans in reliance on the old regulations may need to change those plans. Will USCIS commit to expedited processing of religious worker petitions? A10. Because the extension of the sunset provision for special immigrant non-minister religious workers was contingent upon the publication of the final rule, the rule was made to be effective immediately in order to allow the maximum possible period of extension. While USCIS will try to process R-1 nonimmigrant visa petitions as quickly as possible, it cannot commit to expediting them, due to the site visit requirement. As noted in Q&A #11, below, USICS is making accommodations for early filing of R-1 petition extensions for visa exempt religious workers who do not have an R-1 petition approved on their behalf. Q11. The Form I-129 instructions indicate that a Form I-129 petition may not generally be filed more than six months prior to the date employment is scheduled to begin. How do visa exempt religious workers comply with the new requirement to have an approved R-1 petition on their behalf for admission to the United States, and at the same time, comply with the I-129 filing instructions? A11. As a point of clarification, visa exempt religious workers in possession of a valid Form I-94 and who are traveling to a contiguous territory for 30 days or less, may continue using that I-94 for the duration of the overall admission without the need to have an R-1 petition filed on their behalf. If an extension is later sought, an R-1 petition must be filed to comply with the November 26, 2008, final rule. For visa exempt religious workers who are traveling to a non-contiguous territory, they cannot be readmitted to the United States unless an R-1 petition has been approved on their behalf. To accommodate visa exempt religious workers affected by the final rule who anticipate the need to travel to a noncontiguous territory, and to ensure compliance with the final rule, USCIS will accept the R-1 petition with a request for an extension, regardless of the I-94 expiration date. Q12. May R-2 dependents study in the United States while they are accompanying the R-1 principal? A12. Yes. Dependents in valid R-2 status may study in the United States. Q13. If a religious worker was issued an R-1 visa under the old regulations without an approved petition, will he/she be readmitted with that visa or must a petition be filed? A13. As the final rule is not retroactive, individuals who had been issued a valid R-1 visa under the previous regulations may be admitted for the duration of the visas validity, provided they are otherwise admissible, and will not be required to have an approved I-129 for readmission in R-1 status. Upon application for extension, however, the new requirements must be met. Please see Q&A #11 above regarding visa-exempt individuals who have been approved for R-1 status prior to November 26, 2008. Q14. May an individual with a valid I-797 approval notice granted prior to the enactment of the new regulations apply for a new R-1 visa? A14. As previously mentioned above, the final rule is not retroactive. Hence, an individual may apply for an R-1 visa based on an I-129 R petition approved under the previous regulations as long as the prior approval has not been revoked under the new regulations. Q15. May an individual with a valid visa and a pending application for extension of status and/or change of employer depart the United States and be re-admitted using his/her valid R-1 visa and I-129 receipt notice? A15. If an individual with a pending I-129 R-1 petition for extension of status possesses a valid R-1 visa, he or she may depart the U.S. and be readmitted using his or her R-1 visa during its validity period. Likewise, if an individual with a pending I-129 R-1 petition for change of employer continues to work for the same original employer for whom the initial petition was approved and otherwise maintains his or her R-1 status, he or she may depart the U.S. and be readmitted using his or her R-1 visa during its validity period. However, if an employment of an individual with a pending I-129 R-1 petition for change of employer has been terminated, such individual will no longer be in valid R-1 status and therefore will be unable to be readmitted in R-1 status after he or she departs the U.S. unless the I-129 petition is approved and the petitioner has not terminated the employment. Q16. If the individual departs the United States,will a pending I-129 petition for extension of status and/or change of employer be denied for abandonment? A16. An I-129 R-1 nonimmigrant petition for extension of status and/or change of employer will not be denied for abandonment as long as the individual is in a valid status during the time of departure and readmission. It should be noted, however, that an individual who is requesting a change of status to R-1 status would not be able to be admitted in R-1 status until the I-129 petition is approved by USCIS. An individual who is requesting an extension of stay in R-1 status may depart the U.S. and be readmitted in the same status as long as he or she is in possession of a valid, unexpired R-1 visa. Q17. Can an individual who was granted R-1 status without a petition prior to the rules effective date and now filing an extension of stay in an R-1 status request more than 30 months of extension, as long as the total period of time spent in R-1 status does not exceed five years? A17. No. The final rule allows an extension of R-1 stay or readmission in R-1 status for the validity period of the petition, up to 30 months, provided the total period of time spent in R-1 status does not exceed the statutory maximum of five years (or 60 months). See 8 CFR 214.2(r)(5). As such, an I-129 petition requesting an extension of stay in R-1 status for an alien who was admitted or granted a change of status to an R-1 prior to the rules effective date may be approved for the requested period of up to 30 months or for the remaining period in R-1 status within the statutory maximum of five years but not to exceed 30 months, whichever is shorter. The extension petition must be accompanied by documentation such as Form I-94, visa stamps, and evidence of work and compensation, as required under 8 CFR 214.2(r)(12)(i). Assuming the legal requirements for an extension have been met, the period of time the religious worker has already spent in the United States in R-1 status will be deducted from the maximum allowable time in determining the validity period of the extension. Q18. Under the prior regulations, brief and intermittent visits to the United States did not disrupt the required one year of physical presence outside the country. The new regulations are silent on this point. Please confirm that brief and intermittent visits to the United States will not disrupt the requirement of one year of physical presence outside the U.S. A18. Consistent with the treatment of absences for determining other nonimmigrant eligibility benefits, brief and intermittent visits to the United States will not be deemed to be disruptive of the one year physical presence outside the United States required for a subsequent term of R-1 admission. Q19. Would a missionary program that previously brought in its missionaries in B-1 status be eligible to bring in missionaries in R-1 status? A19. The final rule provides that R-1 missionaries may be self-supporting, but only if they seek admission as part of an established program for temporary, uncompensated missionary work, which is part of a broader international program of missionary work sponsored by the denomination. An established program is one that has previously sponsored R-1 missionaries. If the missionary is to be self-supporting, both the B-1 and the R-1 options would be available to the petitioning organization, but only if it has previously sponsored R-1 missionaries. Both the B-1 and R-1 options would also be available if the missionary will not be self-supporting, i.e., will receive compensation. Q20. Would new missionary programs be excluded from bringing missionaries to the U.S. in R-1 status under the regulations at 8 CFR 214.2(r)(11)(ii)(B), which define an established program? A20. Yes, they would be excluded. A missionary program is as an established program for temporary, uncompensated work. One of the criteria for defining a missionary program is that foreign workers must have previously participated in R-1 status. As a new missionary program would not have foreign workers previously participating in R-1 status, it would not qualify as an established missionary program. However, the new missionary program may bring missionaries to the U.S. in B-1 status. Q21. USCIS regulations at 8 CFR 214.2(r)(12)(i) require evidence of work and compensation in R-1 status for the preceding two years. Please confirm that there is no two-year experience requirement for extensions of stay. An individual who has been in the U.S. in R-1 status for less than two years would only be able to submit evidence of work and compensation in that status for the length of his period of stay in the U.S. A21. The regulations allow an initial period of R-1 admission of up to 30 months. As such, the regulations pre-suppose an initial admission of at least two years in the context of this section. However, if the petition was approved and/or the beneficiary was admitted for a lesser period of time, evidence of work and compensation in that status for the duration of the beneficiarys authorized admission would be acceptable. Q22. Regarding employer obligations described at 8 CFR 214.2(r)(14), if an employer is delayed or fails to notify DHS of a religious worker who has been released or terminated from employment, what penalties does the employer face? Please clarify the procedures by which a petitioning employer must notify DHS of such changes and by which DHS will confirm receipt of such information. A22. The regulations do not specify the consequence of the employers delay in notification or failure to meet the employer obligation. However, it may result in the denial of future immigration benefits. USCIS is currently in a process of implementing the specific notification procedures and will notify the public once they are in place. Q23. Will an applicant for subsequent admission be denied admission because of a pending or approved visa petition? A23. The filing of a labor certification application or an immigrant visa petition will not result in the denial of R-1 admission if all eligibility criteria continue to be met and the religious worker is not otherwise inadmissible. 8 CFR 214.2(r)(15) states, in pertinent part, that a nonimmigrant petition, application for initial admission, change of status, or extension of stay in R classification may not be denied solely on the basis of a filed or an approved request for permanent labor certification or a filed or approved immigrant visa preference petition. http://www.Dr-Immigration.com/news/shownews.asp?newsID=91 Sun, 8 Mar 2009 16:42:24 EST Cap Count for H-1B and H-2B Workers for Fiscal Year 2009 By USCIS: Home > Services & Benefits > Employer Information Printer Friendly Cap Count for H-1B and H-2B Workers for Fiscal Year 2009 Please see the information relating to H-1B Program Changes for FY 2009 in the Related Links section of this page. What is a "Cap" The word "Cap" used in this Update refers to annual numerical limitations set by Congress on certain nonimmigrant visa classifications, e.g., H-1B and H-2B. Caps control the number of workers that can be issued a visa in a given fiscal year to enter the United States pursuant to a particular nonimmigrant classification. Caps also control the number of aliens already in the United States that may be authorized to change status to a cap-subject classification. H-1B The H-1B visa program is used by some U.S.employers to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field and a bachelor's degree or its equivalent. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. The H-1B visa program also includes certain fashion models of distinguished merit and ability and up to 100 persons who will performing services of an exceptional nature in connection with Department of Defense (DOD) research and development projects or coproduction projects. The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. H-1B Employer Exemptions H-1B nonimmigrants who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap. H-1B Advanced Degree Exemption The H-1B Visa Reform Act of 2004 makes available 20,000 new H-1B visas for foreign workers with a Master's or higher level degree from a U.S. academic institution. For each fiscal year, 20,000 persons who hold such credentials are statutorily exempted from the cap. Update on Duplicate H-1B Petitions Filed Requesting Fiscal Year 2009 Employment On March 24, 2008, USCIS published an interim rule in the Federal Register prohibiting H-1B petitioners from filing multiple petitions for the same prospective beneficiary in an effort to increase the chances of receiving an H-1B visa number. The overall goal of the new rule is to ensure that prospective petitioners filing H-1B petitions subject to congressionally mandated numerical limits have an equal chance to employ an H-1B worker. USCIS will deny or revoke all petitions filed by an employer for the same H-1B worker if more than one filing is discovered. If multiple petitions are discovered, whether one or more such petitions are approved, USCIS will data enter all those duplicative petitions, retain all fees, and either deny the petitions or, if a petition was approved, revoke the petition. The petitions will not be returned to the petitioner. As of June 6, 2008, USCIS has discovered that less than of one percent of the total H-1B cap eligible petitions received involved duplicate or multiple filings for the same prospective beneficiary. H-1B Cap Type Cap Beneficiaries Approved Beneficiaries Pending Petitions Receipted Beneficiaries Pending Petitions yet to be Receipted Total Date of Last Count H-1B (FY 09) 58,200 1 ------ ------ ------ Cap Reached 4/1/2008 H-1B Advanced Degree Exemption (FY 09) 20,000 ------ ------ ------ Cap Reached 4/1/2008 Page 1 of 3 Cap Count for H-1B and H-2B Workers for Fiscal Year 2009 1/8/2009 http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgn... 1 6,800 visas are set aside during the fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool can be made available for H-1B use with start dates beginning on October 1, 2008, the start of FY 2009. USCIS has added 5,800, the projected number of unused H-1B1 Chile/Singapore visas to the FY 2009 H-1B cap. H-1B1 An H-1B1 is a national of Chile or Singapore coming to the Unites States to work temporarily in a specialty occupation. The law defines an H-1B1 specialty occupation as a position that requires theoretical and practical application of a body of specialized knowledge. The beneficiary must have a bachelor's degree or higher (or equivalent) in the specific specialty. The combined statutory limit is 6,800 per year. 1,400 visas are set aside annually for nationals of Chile, and 5,400 for nationals of Singapore. The cap for H-1B1 for FY2009 has not been reached as of the date of this Update. H-2B The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services. The Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) divided the annual numerical limitations of 66,000 into two halves. USCIS regulations allow for filings 6 months in advance. However, H-2B petitioners first must obtain a temporary labor certification from the Department of Labor (DOL). DOL regulations stipulate that the application for temporary labor certification may not be filed more than 120 days in advance of the need for the employee to ensure the accuracy of the labor market test. Thus, USCIS normally begins receiving H-2B petitions with employment start dates in October in June or July. What is the H-2B numerical limit set by Congress? The H-2B numerical limit set by Congress per fiscal year is 66,000. Generally, an H-2B worker who extends his/her stay in H-2B status will not be counted again against the numerical limit. An alien who changes nonimmigrant status to H-2B is counted against the annual H-2B cap. 1 Refers to the estimated numbers of beneficiary applications needed to reach a cap, with an allowance for withdrawals, denials and revocations. 2 A shortfall in the 1st half would be made up in the 2nd half. 3 Visas issued plus beneficiaries changing status already in the United States. H-3 The H-3 nonimmigrant visa category is for aliens who are coming temporarily to the U.S. to receive training (other than graduate medical education or training). The training may be provided by a business entity, academic, or vocational institute. The H-3 nonimmigrant visa category also includes aliens who are coming temporarily to the U.S. to participate in a special education training program for children with physical, mental, or emotional disabilities. There is a limit of 50 visas per fiscal year allocated to H-3 aliens participating in special education training programs. As of June 18, 2008, five of these H-3 visas had been approved with a start date in FY 2008. Last updated: 01/07/2009 Cap Type Cap Amount Beneficiaries Approved Beneficiaries Pending Beneficiaries. Target 1 Total Date of Last Count H-2B 1st Half 33,000 ------ ------ ------ Cap Reached 7/29/2008 H-2B 2nd Half 33,000 2 ------- ------ ----- Cap Reached 1/7/2009 H-2B Annual (FY 09) 66,000 3 ------ ------ ------ ------ ------ Home Contact Us Privacy Policy Website Policies PDF Reader No FEAR Freedom Of Information Act USA.gov Skip http://www.Dr-Immigration.com/news/shownews.asp?newsID=90 Sun, 8 Mar 2009 16:38:17 EST In the Matter of Compean-Bangaly-J-E-C the Attorney General overruled Lozada and Assaad and held that there is no Fifth Amendment right to counsel in immigration proceedings By USDOJ: Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 710 Matter of Enrique Salas COMPEAN, Respondent File A078 566 977 - Houston, Texas Matter of Sylla BANGALY, Respondent File A078 555 848 - Houston, Texas Matter of J-E-C-, et al., Respondents Decided by Attorney General January 7, 2009 U.S. Department of Justice Office of the Attorney General (1) Aliens in removal proceedings have a statutory privilege to retain private counsel at no expense to the Government. (2) Aliens in removal proceedings have no right to counsel, including Government-appointed counsel, under the Sixth Amendment of the Constitution because the Sixth Amendment applies only to criminal proceedings and removal proceedings are civil in nature. (3) Aliens in removal proceedings also have no right to counsel, including Government-appointed counsel, under the Fifth Amendment. Although the Fifth Amendment applies to removal proceedings, its guarantee of due process does not include a general right to counsel, or a specific right to effective assistance of counsel, and is violated only by state action, namely, action that can be legally attributed to the Government. Lawyers privately retained by aliens in removal proceedings are not state actors for due process purposes. Accordingly, there is no Fifth Amendment right to effective assistance of counsel in removal proceedings. To the extent the Boards decisions in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and Matter of Assaad, 23 I&N Dec. 553 (BIA 2003), are inconsistent with this conclusion, those decisions are overruled. (4) Although the Constitution and the immigration laws do not entitle an alien in removal proceedings to relief for his lawyers mistakes, the Department of Justice may, as a matter of administrative grace, reopen removal proceedings where an alien shows that he was prejudiced by the actions of private counsel. (5) There is a strong public interest in ensuring that a lawyers deficiencies do not affirmatively undermine the fairness and accuracy of removal proceedings. At the same time, there is a strong public interest in the expeditiousness and finality of removal proceedings. On balance, these interests justify allowing the Board to reopen removal proceedings in the extraordinary case where a lawyers deficient performance likely changed the outcome of an aliens initial removal proceedings. In addition, they call for a set of standards and requirements that will allow the Board to resolve most claims expeditiously and on the basis of an aliens motion to reopen and accompanying documents alone. Whether an alien has made a sufficient showing to warrant relief based Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 711 on counsels allegedly deficient performance is, in each case, committed to the discretion of the Board or the immigration judge. (6) The deficient performance of counsel claim extends only to the conduct of a lawyer, an accredited representative, or a non-lawyer that the alien reasonably but erroneously believed to be a lawyer who was retained to represent the alien in the proceedings. (7) An alien who seeks to reopen his removal proceedings based on deficient performance of counsel bears the burden of establishing (i) that his lawyers failings were egregious; (ii) that in cases where the alien moves to reopen beyond the applicable time limit, he exercised due diligence in discovering and seeking to cure his lawyers alleged deficient performance; and (iii) that he suffered prejudice from the lawyers errors, namely, that but for the deficient performance, it is more likely than not that the alien would have been entitled to the ultimate relief he was seeking. (8) An alien who seeks to reopen his removal proceedings based on deficient performance of counsel must submit a detailed affidavit setting forth the facts that form the basis of the deficient performance of counsel claim. He also must attach to his motion five documents or sets of documents: (i) a copy of his agreement, if any, with the lawyer whose performance he alleges was deficient; (ii) a copy of a letter to his former lawyer specifying the lawyers deficient performance and a copy of the lawyers response, if any; (iii) a completed and signed complaint addressed to, but not necessarily filed with, the appropriate State bar or disciplinary authority; (iv) a copy of any document or evidence, or an affidavit summarizing any testimony, that the alien alleges the lawyer failed to submit previously; and (v) a statement by new counsel expressing a belief that the performance of former counsel fell below minimal standards of professional competence. If any of these documents is unavailable, the alien must explain why. If any of these documents is missing rather than nonexistent, the alien must summarize the documents contents in his affidavit. Matter of Lozada, superseded. (9) The Boards discretion to reopen removal proceedings on the basis of a lawyers deficient performance is not limited to conduct that occurred during the agency proceedings. The Board may reopen on the basis of deficient performance that occurred subsequent to the entry of a final order of removal if the standards established for a deficient performance of counsel claim are satisfied. FOR RESPONDENT COMPEAN: Cyril Chuckwurah, Esquire, Houston, Texas FOR RESPONDENT BANGALY: Isuf Kola, Esquire, Glen Ellyn, Illinois FOR RESPONDENT J-E-C-, et al.: Robert J. Jacobs, Esquire, Gainesville, Florida AMICI CURIAE: Advocates for Human Rights; Massachusetts Law Reform Institute, and other organizations; National Immigrant Justice Center; American Immigration Law Foundation, and other organizations; Immigration Law Clinic at the University of Detroit Mercy School of Law; Immigrant and Refugee Appellate Center; and others FOR THE DEPARTMENT OF HOMELAND SECURITY: Gus P. Coldebella, Acting General Counsel; David A. Landau, Chief Appellate Counsel Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 712 BEFORE THE ATTORNEY GENERAL (January 7, 2009) On August 7, 2008, pursuant to 8 C.F.R. 1003.1(h)(1)(i) (2007), I directed the Board of Immigration Appeals (Board) to refer to me for review its decisions in the above-captioned cases, and I invited the parties and any interested amici to submit briefs addressing the questions I planned to consider on certification. For the reasons set forth in the accompanying opinion, I affirm the Boards orders denying reopening in the certified cases and overrule the Boards decisions in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and Matter of Assaad, 23 I&N Dec. 553 (BIA 2003), to the extent those decisions are inconsistent with the legal conclusions and administrative framework set forth in the opinion. OPINION The Supreme Court has recognized constitutional claims for ineffective assistance of counsel only where a person has a constitutional right to a Government-appointed lawyer. In contrast to a defendant in a criminal case, an alien has no rightconstitutional or statutoryto Government-appointed counsel in an administrative removal proceeding. Compare section 240(b)(4)(A) of the Immigration and Nationality Act (INA or Act), 8 U.S.C. 1229a(b)(4)(A) (2006) (providing that an alien has a privilege of being represented, at no expense to the Government, by counsel of the aliens choosing), and section 292 of the Act, 8 U.S.C. 1362 (2006), with U.S. Const. amend. VI (In all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence.), and Gideon v. Wainwright, 372 U.S. 335 (1963). The question before me is whether, notwithstanding the absence of a constitutional right to a Government-appointed lawyer, there is nevertheless a constitutional right to effective assistance of counsel in removal proceedings. More specifically, the question is whether the Constitution entitles an alien who has been harmed by his lawyers deficient performance in removal proceedings to redo those proceedings. In Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) (Lozada), the Board of Immigration Appeals (Board) responded to an aliens constitutional claim of ineffective assistance of counsel by assuming, consistent with the earlier rulings of two Federal courts of appeals, that an alien may have a constitutional right to effective assistance of counsel under the Due Process Clause of the Fifth Amendment. Id. at 638. Having thus accepted the potential existence of such a right, the Boards decision established three threshold requirementscommonly known as the Lozada factorsthat an Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 713 alien must satisfy to reopen his removal proceedings on the basis of lawyer error. The Board revisited these issues 15 years later in Matter of Assaad, 23 I&N Dec. 553 (BIA 2003) (Assaad), in response to a claim from the Immigration and Naturalization Service (INS) that Supreme Court precedent in criminal and habeas cases undermined the notion of a constitutional right to effective assistance of counsel in removal proceedings. The Board acknowledged some ambiguity in the basis set forth in [Lozada] for [aliens] to assert ineffective assistance claims, but declined to overrule its prior decision. Id. at 558. Among the reasons cited by the Board, one loomed large: [S]ince Matter of Lozada was decided 15 years ago, the circuit courts have consistently continued to recognize that . . . [an alien] has a Fifth Amendment due process right to a fair immigration hearing and may be denied that right if counsel prevents the respondent from meaningfully presenting his or her case. Id. (citing cases). Five years later, that condition no longer holds, as several courts of appeals, relying on the same Supreme Court precedent that the INS had cited in Assaad, have rejected the proposition that there is a constitutional right to the effective assistance of counsel in removal proceedings. See, e.g., Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008); Afanwi v. Mukasey, 526 F.3d 788, 798-99 (4th Cir. 2008); Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir. 2005); see also Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006) (suggesting the same in dictum); Stroe v. INS, 256 F.3d 498, 500-01 (7th Cir. 2001) (same and noting that the question whether there is ever a constitutional right to [effective assistance of] counsel in immigration cases is ripe for reconsideration). In addition, the courts of appeals that continue to recognize the constitutional right have diverged with respect to the standards and requirements for a successful ineffective assistance claim. Some courts, for example, have applied a strict standard of prejudice while others have not; some have treated the Lozada factors as mandatory while others have not. Because of the circuit splits on these important issues, and the resulting patchwork of rules governing motions to reopen removal proceedings in different parts of the country, I ordered the Board to refer these matters to me so that I could review the Boards position on both the constitutional question and the question of how best to resolve an aliens claim that his removal proceeding was prejudiced by his lawyers errors. See Atty Gen. Order Nos. 2990-2008, 2991-2008, & 2992-2008 (Aug. 7, 2008); see also 8 C.F.R. 1003.1(h)(1)(i) (2008); cf. Matter of R-A-, 24 I&N Dec. 629, 631 (Atty Gen. 2008) (stressing the importance of a consistent, authoritative, nationwide interpretation of ambiguous provisions of the immigration laws). To aid my review, I invited the parties and any interested amici curiae to submit briefs addressing the constitutional question. I invited them to address also whether, if there is no constitutional right to effective assistance of counsel, an alien Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 1 My orders of August 7, 2008, called for submission of all briefs by September 15, 2008, and stated that requests for extensions will be disfavored. Following requests from a few parties and amici, however, I extended the briefing deadline for all briefs by 3 weeks, until October 6, 2008. See Atty Gen. Order No. 2998-2008 (Sept. 8, 2008). Thus, in total, the parties and amici had 1 day shy of 2 full months to prepare their submissions, which is more time than that usually granted for briefing matters before the Board. See Board of Immigration Appeals Practice Manual ch. 4.7(a) and (c), at 65-67 (rev. July 30, 2004). I received more than a dozen amicus briefs from interested organizations and individuals. 714 nevertheless should be permitted, as a matter of administrative discretion, to reopen removal proceedings based on his lawyers deficient performance.1 I conclude, as have a growing number of Federal courts, that the Constitution does not confer a constitutional right to effective assistance of counsel in removal proceedings. The reason is simple: Under Supreme Court precedent, there is no constitutional right to effective assistance of counsel under the Due Process Clause or any other provision whereas here and as in most civil proceedingsthere is no constitutional right to counsel, including Government-appointed counsel, in the first place. Therefore, although the Fifth Amendments Due Process Clause applies in removal proceedings, as it does in any civil lawsuit or in any administrative proceeding, that Clause does not entitle an alien to effective assistance of counsel, much less the specific remedy of a second bite at the apple based on the mistakes of his own lawyer. However, the foregoing conclusion does not foreclose a remedy for aliens prejudiced by their lawyers errors, because the Department of Justice is not limited to the very least that the Constitution demands. Although the Constitution does not entitle an alien to relief for his lawyers mistakes, I conclude that the Department may, in its discretion, allow an alien to reopen removal proceedings based on the deficient performance of his lawyer. Balancing the strong public interest in the fairness and accuracy of removal proceedings with the strong public interest in the finality of completed proceedings, I establish in this opinion an administrative framework for the exercise of that discretion. In extraordinary cases, where a lawyers deficient performance likely changed the outcome of an aliens removal proceedings, the Board may reopen those proceedings notwithstanding the absence of a constitutional right to such relief. Applying this administrative framework to the three cases before me, I affirm the Boards orders. I. I begin with a brief summary of the certified matters. In Matter of Compean, respondent, a native and citizen of Mexico, unlawfully entered the United States in 1989. In 2004, he was placed in removal proceedings and sought cancellation of removal. The Immigration Judge denied respondents Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 715 request on the ground that he had failed to establish the exceptional and extremely unusual hardship required by section 240A(b)(1)(D) of the Act, 8 U.S.C. 1229b(b)(1)(D) (2006), and ordered him removed from the United States. After the Board affirmed on the merits, respondent filed a motion to reopen on the grounds of ineffective assistance of counsel. Respondents self-described most important claim was that his former lawyer had failed to present evidence of a pending Form I-130 visa petition, although in point of fact that form had been part of the record before the Immigration Judge. In May 2008, the Board denied the motion on two grounds. First, the Board found that respondent had not filed a complaint with disciplinary authorities regarding his lawyers deficient representation or explained his failure to do so, as required by Lozada. Second, noting that respondent had not produced any evidence that his lawyers conduct precluded him from presenting before the Immigration Judge, the Board concluded that respondent had failed to establish that he had suffered prejudice from his lawyers actions. In Matter of Bangaly, respondent, a native and citizen of Mali, entered the United States in 1998 on a non-immigrant visa, which he unlawfully overstayed. He was placed in removal proceedings in 2003. Respondent subsequently obtained several continuances because he had filed for adjustment of status based upon his 2002 marriage to a United States citizen. In 2004, the Department of Homeland Security denied respondents request for adjustment of status because his wife had failed three times to appear for an interview. The Immigration Judge denied respondents request for a further continuance so that he could seek reopening of his adjustment of status petition and ordered him removed. Respondents lawyer filed a notice of appeal, which stated that respondent would challenge the denial of the additional continuance. Respondents lawyer never filed an appellate brief, however, and in 2005 the Board summarily affirmed the Immigration Judges order. Approximately 2 years later, respondent moved to reopen his removal proceedings. Respondent alleged that his former counsels failure to file an appellate brief and to notify him that his appeal had been summarily denied constituted ineffective assistance of counsel but did not explain how he had been prejudiced by these failures. In March 2008, the Board denied respondents motion because he had failed to comply with one of Lozadas requirements: He had not given his former counsel a chance to respond to his allegations of ineffective representation. Finally, in Matter of J-E-C-, the lead respondent, a native and citizen of Colombia, was admitted to the United States in 2000 on a 6-month visa. His wife and children, also respondents, were admitted in 2001, on 6-month visas as well. Lead respondent then sought asylum, withholding of removal, and protection under the Convention Against Torture on his own behalf and derivatively for his wife and children. In 2003, the Department of Homeland Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 2 The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 (enacted Sept. 30, 1996), established a new type of proceeding known as a removal proceeding to replace deportation proceedings. 716 Security found respondents ineligible for relief and began removal proceedings. In those proceedings, lead respondent conceded removability, but renewed his application for asylum and withholding of removal. The Immigration Judge denied relief, concluding that, among other things, lead respondent had failed to demonstrate persecution on account of a protected ground, and ordered respondents removed. Respondents lawyer filed a notice of appeal with the Board alleging four points of error, but the Board never received a brief in support of the appeal. Notwithstanding the absence of a brief, the Board addressed the four points of error on the merits, and affirmed what it called the thorough and well-reasoned decision of the Immigration Judge. Thereafter, respondents moved to reopen, contending that counsels failure to file a brief constituted ineffective assistance and submitting a copy of the brief they would have submitted. In April 2008, the Board denied respondents motion. Noting its previous decision addressing the merits of the claims, and reviewing those claims again, the Board concluded that respondents had suffered no prejudice from the failure to file a brief because a brief would not have changed the outcome of their proceedings. II. Several uncontroversial propositions inform whether there is a constitutional right to effective assistance of counsel in removal proceedings. A removal proceeding is a civil action, not a criminal proceeding. See, e.g., INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry.); Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952) (Deportation, however severe its consequences, has been consistently classified as a civil rather than a criminal procedure.).2 Therefore, the Sixth Amendments guarantee that, in all criminal prosecutions, an accused shall . . . have the Assistance of counsel for his defence does not apply. See, e.g., Abel v. United States, 362 U.S. 217, 237 (1960) ([D]eportation proceedings are not subject to the constitutional safeguards for criminal prosecutions.). Accordingly, the Federal courts uniformly have held that the Sixth Amendment right to counsel (which includes the right to Government-appointed counsel) does not apply in removal proceedings. See, e.g., Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003); United States v. Loaisiga, 104 F.3d 484, 485 (1st Cir. 1997); Delgado-Corea v. INS, 804 F.2d 261, 262 (4th Cir. 1986); United States v. Cerda-Pena, 799 F.2d 1374, 1376 n.2 (9th Cir. 1986). The corresponding Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 717 Sixth Amendment right to effective assistance of counsel, see Strickland v. Washington, 466 U.S. 668, 685-86 (1984), does not apply either. See, e.g., Afanwi, 526 F.3d at 796 & n.31 (citing cases). Unlike the Sixth Amendment, the Due Process Clause of the Fifth Amendment, which provides that [n]o person shall . . . be deprived of life, liberty, or property, without due process of law, applies to civil and criminal proceedings alike. Moreover, that Clause applies to all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. Zadvydas v. Davis, 533 U.S. 678, 693 (2001). Therefore, it is well established that the Fifth Amendment entitles all aliens who have entered the United States to due process of law in removal proceedings. See, e.g., Reno v. Flores, 507 U.S. 292, 306 (1993); see also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) ([A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.). The Fifth Amendments due process guarantee, however, applies only against the Government. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (stating that the Due Process Clause applies only to governmental decisions which deprive individuals of liberty or property interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment) (emphasis added). Thus, the actions of a private party, including a privately retained lawyer, can give rise to a due process claim only if those actions can be attributed to the Government for constitutional purposes. See, e.g., San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 542-43 (1987) (stating that where a plaintiff alleges a violation of the Fifth Amendment, [t]he fundamental inquiry is whether the [defendant] is a governmental actor to whom the prohibitions of the Constitution apply); cf. Shelley v. Kraemer, 334 U.S. 1, 13 (1948) (stating that the Due Process Clause of the Fourteenth Amendment erects no shield against merely private conduct, however discriminatory or wrongful). The question presented in these cases, therefore, is whether the conduct of a privately retained lawyer can be attributed to the Government for Due Process Clause purposes such that a litigants general right to due process with respect to state action would include a specific right to effective representation by that private lawyer. Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 3 The Supreme Court has recognized a due process right to Government-appointed counsel (and thus a constitutional right to effective assistance of counsel) in certain civil proceedings that pose the same ultimate threat to a defendants physical liberty as a criminal trial that may result in incarceration. See Vitek v. Jones, 445 U.S. 480, 496-97 (1980) (plurality) (holding that an individual has a constitutional right to appointed counsel in a civil proceeding the outcome of which may result in physical confinement at a psychiatric institution); In re Gault, 387 U.S. 1, 36-41 (1967) (holding that a juvenile has a constitutional due process right to appointed counsel in a delinquency proceeding where he faces commitment to a juvenile-detention facility). But these cases involved the right to Government-appointed counsel, and the Supreme Court has largely limited these holdings to their particular contexts. See, e.g., Stroe, 256 F.3d at 500 (noting that Murray v. Giarratano, 492 U.S. 1 (1989), and Pennsylvania v. Finley, 481 U.S. 551 (1987), seem . . . to have cut back on earlier cases according a Fifth Amendment right to counsel when physical liberty is at stake in a noncriminal proceeding) (citing Lassiter v. Department of Social Services, 452 U.S. 18, 31-32 (1981), and In re Gault, 387 U.S. at 36). And, in any event, the pre-eminent generalization that emerges from these cases is that the right to Government-appointed counsel has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation. Lassiter, 452 U.S. at 25 (emphasis added). Although an alien may be detained during the course of a removal proceeding, he does not lose his physical liberty based on the outcome of the proceeding. That is, the point of the proceeding is not to determine or provide the basis for incarceration or an equivalent deprivation of physical liberty, but rather to determine whether the alien is entitled to live freely in the United States or must be released elsewhere. 718 In the usual civil case, the answer to this question is a resounding no.3 It is well established that, as a general matter, there is no constitutional right to counsel, and thus no constitutional right to effective assistance of counsel, in civil cases. See, e.g., MacCuish v. United States, 844 F.2d 733, 735 (10th Cir. 1988) (citing cases). Instead, the rule is that counsels errors are imputed to the client who chose his counsel, and that the clients sole remedy is a suit for malpractice against counsel and not a litigation do-over. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 397 (1993); Irwin v. Department of Veterans Affairs, 498 U.S. 89, 92 (1990); Link v. Wabash R.R., 370 U.S. 626, 634 n.10 (1962); Magala, 434 F.3d at 525. That is true even when the case is complex or the stakes are especially high. Indeed, [t]he non-right to effective assistance of counsel in civil cases is the rule even when the proceeding though nominally civil involves liberty or even life, as in a capital habeas corpus case, where the Supreme Court has held that there is no right to effective assistance of counsel. Stroe, 256 F.3d at 500 (citing Murray v. Giarratano, 492 U.S. 1 (1989), and Pennsylvania v. Finley, 481 U.S. 551 (1987)). Despite the foregoing uncontroversial principles, several courts of appeals have suggested or held that the Due Process Clause creates a right to effective Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 4 It is important to note that many of these courts have limited the right to effective assistance of counsel to proceedings in which an alien seeks non-discretionary relief, thus precluding constitutional ineffective assistance of counsel claims in proceedings seeking purely discretionary relief such as waiver or cancellation of removal, asylum, adjustment of status, or voluntary departure. See, e.g., Garcia v. Attorney General, 329 F.3d 1217, 1223-24 (11th Cir. 2003); Huicochea-Gomez v. INS, 237 F.3d 696, 700 (6th Cir. 2001); Mejia-Rodriguez v. Reno, 178 F.3d 1139, 1148 (11th Cir. 1999); see also Gutierrez-Morales v. Homan, 461 F.3d 605, 609-10 (5th Cir. 2006); Guerra-Soto v. Ashcroft, 397 F.3d 637, 640-41 (8th Cir. 2005); United States v. Torres, 383 F.3d 92, 104-05 (3d Cir. 2004). But see, e.g., Fernandez v. Gonzales, 439 F.3d 592, 602 & n.8 (9th Cir. 2006); Rabiu v. INS, 41 F.3d 879, 882-83 (2d Cir. 1994). These limitations flow from Supreme Court precedent holding that the constitutional guarantee of procedural due process applies to government proceedings only where a constitutionally protected interest in life, liberty, or property is at stake in those proceedings, see, e.g., Wilkinson v. Austin, 545 U.S. 209, 221 (2005), and that such interests are not implicated where proceedings involve only the pursuit of purely discretionary administrative relief, see, e.g., Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464-67 (1981); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7-10 (1979). 719 assistance of counsel in removal proceedings. See, e.g., Nehad v. Mukasey, 535 F.3d 962, 967 (9th Cir. 2008); Aris v. Mukasey, 517 F.3d 595, 600-01 (2d Cir. 2008); Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007); Fadiga v. Attorney General, 488 F.3d 142, 155 (3d Cir. 2007); Sene v. Gonzales, 453 F.3d 383, 386 (6th Cir. 2006); Dakane v. United States Attorney General, 399 F.3d 1269, 1274 (11th Cir. 2005); Tang, 354 F.3d at 1196; see also Nelson v. Boeing Co., 446 F.3d 1118, 1120 (10th Cir. 2006) ([T]he only context in which courts have recognized a constitutional right to effective assistance of counsel in civil litigation is in immigration cases.).4 As noted, the Board has accepted these decisions as well. See Assaad, 23 I&N Dec. at 560; Lozada, 19 I&N Dec. at 638. In doing so, however, the Board did not consider several critical points. For one thing, the cases the Board has accepted as supporting a potential Fifth Amendment right to effective assistance of counsel in removal proceedings rest on a weak foundation. As several courts now recognize, the cases acknowledging a constitutional right to effective assistance of counsel in removal proceedings trace back to a pair of 1975 decisions by the United States Court of Appeals for the Fifth Circuit, Barthold v. INS, 517 F.2d 689 (5th Cir. 1975), and Paul v. INS, 521 F.2d 194 (5th Cir. 1975), neither of which actually held that such a right exists. See Afanwi, 526 F.3d at 797. In fact, the Fifth Circuit explicitly stated in those cases that the existence, let alone the nature and scope, of such a right has not been established, and merely suggested in dictum that any right an alien may have in this regard is grounded in the fifth amendment guarantee of due process rather than the sixth Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 5 In Assaad, the Board emphasized that the Fifth Circuit had joined the other circuits that have found a basis in the Fifth Amendment for ineffective assistance of counsel claims. 23 I&N Dec. at 558 (citing Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n.2 (5th Cir. 2001)). But the Fifth Circuit itself has stated that it has repeatedly assumed without deciding that an aliens claim of ineffective assistance may implicate due process concerns under the Fifth Amendment. Mai, 473 F.3d at 165 (emphasis added). 720 amendment right to counsel. Barthold, 517 F.2d at 690 (emphasis added); see also Paul, 521 F.2d at 197 (following Barthold).5 More important, the constitutional analysis in the cases that recognize a Fifth Amendment right to effective assistance of counsel in removal proceedings is, in the words of the Seventh Circuit distinctly perfunctory, Stroe, 256 F.3d at 500; see also Assaad, 23 I&N Dec. at 558 (We . . . acknowledge some ambiguity in the basis set forth in [Lozada] for [aliens] to assert ineffective assistance claims.), and fails to establish that lawyers privately retained to represent aliens in removal proceedings are state actors for purposes of the Due Process Clause. This is a fatal flaw because, as noted, it is indisputable that the Fifth Amendment applies only against the Government. See, e.g., San Francisco Arts & Athletics, Inc., 483 U.S. at 542- 43; Mathews, 424 U.S. at 332. And as the Eighth Circuit recently observed, it is difficult to see how an individual, such as an aliens attorney, who is not a state actor, can deprive anyone of due process rights. Rafiyev, 536 F.3d at 860-61. For private action to trigger scrutiny under the Due Process Clause, there must be a sufficiently close nexus between the Federal Government and the conduct of the private party so that the action of the latter may be fairly treated as that of the Government itself. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974); accord Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982) (stating that constitutional standards may be invoked to challenge private action only when it can be said that the [Government] is responsible for the specific conduct of which the plaintiff complains); Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982) (emphasizing that the Due Process Clause applies to a private actor only if he may fairly be said to be a state actor). That may be the case where the private actor has exercised powers that are traditionally the exclusive prerogative of the [Government], or where the Government has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the [Government]. Blum, 457 U.S. at 1004-05 (internal quotation marks omitted). But [t]he mere fact that a [private party] is subject to state regulation does not by itself convert its action into that of the [Government] for purposes of the Due Process Clause. Id. at 1004 (internal quotation marks omitted). And [m]ere approval of or acquiescence in the initiatives of a private party is not sufficient either. Id. at 1004-05. Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 721 Applying these standards here, I agree with the courts that have concluded that the Government is not responsible for the conduct of a privately retained lawyer in removal proceedings. See Rafiyev, 536 F.3d at 861; Afanwi, 526 F.3d at 798-99; Magala, 434 F.3d at 525. A private lawyer plainly does not exercise powers that are traditionally the exclusive prerogative of the Government because the lawyer is an adversary of the Government. Cf. Brentwood Academy v. Tennessee Secondary Sch. Athletic Assn, 531 U.S. 288, 304 (2001) (The state-action doctrine does not convert opponents into virtual agents.); Polk County v. Dodson, 454 U.S. 312, 317-24 (1981) (holding that adversaries of the state are not state actors for purposes of 42 U.S.C. 1983). Nor, in the ordinary case, can it be said that a private lawyers deficient performance in representing an alien in removal proceedings is the product either of Government coerci[on] or encouragement. Blum, 457 U.S. at 1004-05; see, e.g., Afanwi, 526 F.3d at 799 (Afanwis counsel was privately retained pursuant to 8 U.S.C. 1362, and his alleged ineffectiveness . . . was a purely private act. The federal government was under no obligation to provide Afanwi with legal representation, and there was no connection between the federal government and counsels failure.) (footnote omitted). It is true that, as respondents and their amici assert, the Federal Government has taken affirmative steps to notify aliens of the availability of counsel, see, e.g., 8 C.F.R. 1240.10(a)(1)-(3) (2008), and to regulate the private immigration bar, see, e.g., id. 1003.101(a)(1)-(4), 1003.102(k), 1292.1(a)(1)-(6), 1292.2(a), (c), (d), 1292.3(a). But as noted, the mere fact that a [private party] is subject to state regulation does not by itself convert its action into that of the [Government] for purposes of the Due Process Clause. Blum, 457 U.S. at 1004 (internal quotation marks omitted). Moreover, for the constitutional standards to apply, the Government must be responsible for the specific conduct of which the plaintiff complains. Id. (emphasis added). It cannot accurately be said that the Governments steps to encourage competent representation and to improve the quality of counsel as a general matter are responsible for a specific lawyers incompetent performance. Cf. Lawrence v. Florida, 547 U.S. 327, 337 (2007) ([A] States effort to assist prisoners in postconviction proceedings does not make the State accountable for a prisoners delay.). The relevant regulatory provisions do not condone poor representation, much less constitute significant encouragement of, Blum, 457 U.S. at 1004, or willful participa[tion] in, Lugar, 457 U.S. at 941 (internal quotation marks omitted), incompetent performance. These basic and well-established principles, which the Board did not consider in either Lozada or Assaad, have moved several courts to hold that private lawyers in Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 722 immigration proceedings are not state actors for due process purposes. See Rafiyev, 536 F.3d at 861; Afanwi, 526 F.3d at 798-99; Magala, 434 F.3d at 525. In arguing that a private lawyers representation of an alien in a removal proceeding may nonetheless constitute state action, respondents and their amici rely heavily on the Supreme Courts decision in Cuyler v. Sullivan, 446 U.S. 335 (1980). See, e.g., Brief for American Immigration Law Foundation as Amicus Curiae at 11-12, 15, 17; Brief for Joseph Afanwi as Amicus Curiae at 3, 6, 10, 12. But that reliance is misplaced. In Cuyler, the Court held that a criminal defendant may challenge the effectiveness of his trial lawyer even if that lawyer was privately retained. See 446 U.S. at 342-45. A reading of the Courts decision, however, makes plain that its holding was merely an application of the underlying Sixth Amendment right to counsel in criminal cases (and the equal justice principles that make that right applicable to the actions of both Government-appointed and privately retained lawyers). As the Court explained: Our decisions make clear that inadequate assistance does not satisfy the Sixth Amendment right to counsel . . . . [T]he Sixth Amendment does more than require the States to appoint counsel for indigent defendants. The [Sixth Amendment] right to counsel prevents the States from conducting trials at which persons who face incarceration must defend themselves without adequate legal assistance. A proper respect for the Sixth Amendment disarms [the] contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel. . . . The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendants entitlement to constitutional protection. Id. at 344 (emphasis added). As the repeated references in this passage to the Sixth Amendment make clear, the Courts ruling was grounded in the Sixth Amendment and its explicit guarantee of a right to counsel, including Government-appointed counsel, which are inapplicable here. That is, the Court recognized a constitutional right to effective assistance of counsel by privately retained lawyers in criminal proceedings because: (1) the Constitution itself, through the Sixth Amendment, guarantees a right to counsel in such proceedings (whether the defendant is indigent or able to hire lawyers); (2) to be meaningful, this right must refer to adequate (or effective) assistance of counsel; and (3) in light of principles of equal justice, the right must apply to all criminal defendants, whether they hire private lawyers with their own funds or have a Government-appointed lawyer. Thus, where, as here, there is no constitutional right to counsel that includes the right to Government-appointed counsel, the holding in Cuyler does not apply. See, e.g., Stroe, 256 F.3d at 501 (In criminal cases . . . the Sixth Amendment is Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 723 interpreted to impute even a retained lawyers goof-ups to the state, Cuyler v. Sullivan, 446 U.S. 335, 342-45 (1980)but then the Sixth Amendment creates a right to counsel, whereas all that the due process clause requires, so far as procedure is concerned, is notice and an opportunity for a hearing.). Were there any doubt on this score, it is resolved by the Supreme Courts decisions in Wainright v. Torna, 455 U.S. 586 (1982) (per curiam), and Coleman v. Thompson, 501 U.S. 722 (1991). In Wainwright, the Court considered whether the respondent, a criminal defendant, could challenge his lawyers failure to file timely a discretionary appeal to the State supreme court. Noting that a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals, 455 U.S. at 587 (citing Ross v. Moffitt, 417 U.S. 600 (1974)), the Court quickly disposed of the respondents claim. Since respondent had no constitutional right to counsel, the Court explained, he could not be deprived of the effective assistance of counsel by his retained counsels failure to file the application timely. Id. at 587-88. In reaching this conclusion, the Court explicitly addressed the due process and state action issues relevant here, explaining that the respondent was not denied due process of law by the fact that counsel deprived him of his right to petition the State supreme court for review because [s]uch deprivation . . . was caused by his counsel, and not by the State. Id. at 588 n.4. The Court applied the same analysis in Coleman. In that case, the petitioner, a criminal defendant, had been convicted and sentenced to death. On State habeas review, he raised various Federal constitutional claims, but the State supreme court refused to address them because his lawyer had filed an untimely notice of appeal. Normally, such procedural default would bar review of the claims on Federal habeas review, but the petitioner argued that his lawyers error should excuse the default. As in Wainwright, the Court rejected this argument swiftly: There is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings. See Wainwright v. Torna, 455 U.S. 586 (1982) (where there is no constitutional right to counsel there can be no deprivation of effective assistance). Coleman, 501 U.S. at 752 (some citations omitted). The Court further explained that because the petitioners lawyer was the petitioners agent when acting, or failing to act, in furtherance of the litigation, . . . the petitioner must bear the risk of attorney error. Id. at 753 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986); and citing Link, 370 U.S. at 634, and Irwin, 498 U.S. at 92). The Court acknowledged that a different rule applied where, as in Cuyler, a lawyers conduct had deprived his client of the Sixth Amendments right to counsel. The Court explained, however, that [t]his is not because . . . the Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 724 error is so bad that the lawyer ceases to be an agent of the petitioner. Coleman, 501 U.S. at 754 (quoting petitioners brief). Rather, if the procedural default is the result of [constitutional] ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State. Id. (internal quotation marks omitted) (emphasis added). In other words, wrote the Court, it is not the gravity of the attorneys error that matters, but that it constitutes a violation of petitioners right to counsel, so that the error must be seen as an external factor, i.e., imputed to the State. Id. Where a criminal defendant has been deprived of his Sixth Amendment right to effective assistance of counsel, the Court continued, the State, which is responsible for the denial as a constitutional matter, must bear the cost. . . . A different allocation of costs is appropriate in those circumstances where the State has no responsibility to ensure that the petitioner was represented by competent counsel. Id.; cf. Lawrence, 549 U.S. at 337 (holding that a lawyers filing errors do not entitle a party to equitable tolling in a context where [the party] ha[s] no constitutional right to counsel). Respondents and their amici attempt to distinguish Wainwright and Coleman on the grounds that those cases implicated federalism concerns that are not present here and involved discretionary state appeals rather than first appeals as of right. See, e.g., Brief for American Immigration Law Foundation as Amicus Curiae at 16-18; Brief for Joseph Afanwi as Amicus Curiae at 11-12. But to the extent relevant here, nothing in the Courts decisions turned on these considerations. (Indeed, Wainwright did not even discuss federalism.) See Assaad, 23 I&N Dec. at 565-66 (Scialabba, Chairman, and Filppu, Board Member, concurring). Respondents and their amici also contend that Wainwright and Coleman should not guide the constitutional inquiry here because they concerned criminal, rather than immigration, matters. See, e.g., Brief for Respondent J-E-C- at 9-11; Brief for American Immigration Law Foundation as Amicus Curiae at 19-20; Brief for Joseph Afanwi as Amicus Curiae at 11-12; see also Assaad, 23 I&N Dec. at 560 (majority opinion) (stating, in adhering to Lozada, that Wainwright and Coleman arose in the context of criminal, rather than immigration, proceedings and thus did not control over circuit precedent issued in the immigration context). But Coleman involved State habeas review, whichlike a removal proceedingis civil in nature. Moreover, if anything, that Wainwright and Coleman related to criminal cases actually cuts against the arguments presented by respondents and their amici because criminal defendants enjoy an express constitutional right to assistance of counsel, including Government-appointed counsel, while aliens in removal proceedings do not. In the final analysis, respondents and their amicis arguments boil down to an assertion that, notwithstanding all of the foregoing Supreme Court Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 725 precedent and settled constitutional law, an aliens general due process right to a full and fair hearing on the merits of his immigration claims must include a specific right to effective assistance of counsel because without such a specific right removal proceedings would be fundamentally unfair. In particular, respondents and their amici contend that because the stakes in removal proceedings are so high, the immigration laws are so complex, and aliens are so often ill equippeddue to cultural, educational, financial, or language barrierssuccessfully to handle them alone, due process requires the guiding hand of competent counsel. See, e.g., Brief for the Immigration Law Clinic at the University of Detroit Mercy School of Law as Amicus Curiae at 2-4; Brief for Respondent Bangaly at 9-10 (arguing for a fundamentally fair proceeding); Brief for Respondent J-E-C- at 12 (same); see also, e.g., Hernandez v. Mukasey, 524 F.3d 1014, 1017-18 (9th Cir. 2008); Hernandez-Gil v. Gonzales, 476 F.3d 803, 806-07 (9th Cir. 2007). This argument is insufficient to override the relevant constitutional holdings of Wainwright and Coleman, which had nothing to do with the complexity of the issues involved or the wealth and sophistication of the litigants. Nor can the arguments convert otherwise private actors into state actors, which, as discussed, is the prerequisite for a Due Process Clause claim. Moreover, respondents and their amicis argument regarding the special nature of removal proceedings ignores key implications of the constitutional right they assert. If respondents and their amici are correct that a Fifth Amendment right to effective assistance of counsel flows from a litigants relative disadvantage in certain civil proceedings, the Constitution would arguably require not just effective assistance by privately retained lawyers in removal proceedings, but also assistance of counselincluding Government-appointed counselin removal proceedings. Yet no court has ever held that such a right exists in removal proceedings. Nor has any court ever suggested that where an alien represents himself in his removal proceedings (as often happens), he has a constitutional right to seek or obtain reopening of the proceedings on the ground that his own performance was incompetent. This fact is revealing, because as the Supreme Court has explained in the Sixth Amendment context, there are serious equal protection concerns with construing the Constitution to confer greater rights on an alien who chose to avail himself of the privilege to retain counsel than on an alien who did not do so or who could not do so because he was indigent. See Cuyler, 446 U.S. at 344. In addition, if correct, respondents and their amicis Fifth Amendment argument would apply with equal, if not greater, force to many other forms of civil proceedings. Yet courts have repeatedly and expressly held that there is no constitutional right to effective assistance of counsel in other civil contexts where the stakes are as high (or higher) than in removal proceedings and where Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 726 litigants suffer from the same alleged disadvantages as aliens. As Judge Easterbrook explained in a recent Seventh Circuit opinion, The Constitution entitles aliens to due process of law, but this does not imply a right to good lawyering. Every litigant in every suit and every administrative proceeding is entitled to due process, but it has long been understood that lawyers mistakes are imputed to their clients. Magala, 434 F.3d at 525 (citing cases); see also Stroe, 256 F.3d at 500. In sum, and as a number of courts have now recognized, there is no valid basis for finding a constitutional right to counsel in removal proceedings, and thus no valid basis for recognizing a constitutional right to effective assistance of privately retained lawyers in such proceedings. The Sixth Amendment right to effective assistance of counsel in criminal cases does not apply because removal proceedings are civil. And the Fifth Amendment does not confer an equivalent right because the Due Process Clause applies only against the Government, aliens have no constitutional right to Government-appointed lawyers in removal proceedings, and there is no other ground for treating private lawyers as state actors. Accordingly, the Government is not responsible for the denial of effective representation in removal proceedings as a constitutional matter. Coleman, 501 U.S. at 754; see also, e.g., Rafiyev, 536 F.3d at 860-61 (concluding that because [c]onstitutional rights are rights against the government and it is difficult to see how an individual, such as an aliens attorney, who is not a state actor, can deprive anyone of due process rights, there is no constitutional right under the Fifth Amendment to effective assistance of counsel in a removal proceeding). The fact that aliens in removal proceedings have a statutory privilege to retain counsel of their choosing at no expense to the Government, see sections 240(b)(4) and 292 of the Act, 8 U.S.C. 1229a(b)(4) & 1362, does not change the constitutional analysis, because a statutory privilege is not the same as a right to assistance of counsel, including Government-appointed counsel, under the Constitution. See Finley, 481 U.S. at 556 ([T]he fact that the defendant has been afforded assistance of counsel [under state law] does not end the inquiry for Federal constitutional purposes. Rather, it is the source of that right to a lawyers assistance, combined with the nature of the proceedings, that controls the constitutional question. In this case, respondents access to a lawyer is the result of the States decision, not the command of the United States Constitution.). Under Finley, Wainwright and Coleman, it is the presence or absence of a constitutional (as opposed to statutory or other) right to counsel, including Government-appointed counsel, that controls whether there is a constitutional right to effective assistance of counsel. See Rafiyev, 536 F.3d at 861 (Removal proceedings are civil; there is no constitutional right to an attorney, so an alien cannot claim constitutionally ineffective assistance of counsel.) (citing Wainwright, Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 727 Coleman and other cases). Because the Constitution does not confer a right to counsel (including Government-appointed counsel) in removal proceedings, I conclude, as have a growing number of Federal courts of appeals, that there is no constitutional right to effective assistance of counsel in such proceedings. To the extent they are inconsistent with this conclusion, Lozada and Assaad (and any other Board precedent decisions on point) are overruled. III. Having concluded that there is no constitutional right to effective assistance of counsel in removal proceedings, I consider whether a non-constitutional source of laweither the immigration statutes or departmental regulationsentitle an alien to reopen his removal proceedings based on his lawyers deficient performance. They do not. The Act and its implementing regulations merely permit an alien to hire such counsel as he shall choose, section 292 of the Act; accord section 240(b)(4)(A) of the Act; 8 C.F.R. 1003.16(b) (2008); they give an alien no right to complain, much less reopen his proceedings, if the lawyer he hires is ineffective. Stroe, 256 F.3d at 500; see also Jezierski v. Mukasey, 543 F.3d 886, 888 (7th Cir. 2008) (No statute entitles the alien to effective assistance of counsel.); cf. Father & Sons Lumber and Bldg. Supplies, Inc. v. NLRB, 931 F.2d 1093, 1097 (6th Cir. 1991) (holding that the Administrative Procedure Act, 5 U.S.C. 555(b) (1988), which provides that a person compelled to appear in person before an agency . . . is entitled to be accompanied, represented, and advised by counsel, does not confer a statutory right to effective assistance of counsel). Accordingly, neither the Constitution nor any statutory or regulatory provision entitles an alien to a do-over if his initial removal proceeding is prejudiced by the mistakes of a privately retained lawyer. That said, the Department of Justice is not limited to the very least that the Constitutionor the Actdemands. Magala, 434 F.3d at 526. Although the law does not require the Department to provide an alien with the right to reopen his removal proceedings based on lawyer error, the law allows the Department to do so as a matter of sound discretion. Id. The source for this authority is the Departments broad authority to reopen removal proceedings. See section 240(c)(7) of the Act (permitting a motion to reopen within 90 days of the date on which a final administrative order of removal is entered); section 240(b)(5)(C) of the Act (granting an alien 180 days to seek reopening in order to rescind a removal order entered in absentia; and providing no time limit where the alien did not receive notice of the immigration hearing or was in custody); 8 C.F.R. 1003.2 (2008). The Act and its implementing regulations place a few limits on the Boards discretion in determining whether reopening is warranted, see, e.g., section 240(c)(7)(B) of the Act (providing that a motion Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 6 Although this opinion discusses the Boards power to reopen, immigration judges also have the power to reopen removal proceedings based on a lawyers deficient performance, see 8 C.F.R. 1003.23 (2008), and shall be guided by the same standards and procedures set forth herein when adjudicating such a motion. Likewise, the framework in this opinion applies to claims of deficient performance raised before the Board on direct review. 728 to reopen must state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material); 8 C.F.R. 1003.2(c) (2008) (A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing . . . .), but the Board generally enjoys broad discretion in ruling on motions to reopen, and may deny reopening even where an alien has made a prima facie showing of eligibility for relief. INS v. Doherty, 502 U.S. 314, 323 (1992); accord INS v. Abudu, 485 U.S. 94, 105-06 (1988); INS v. Rios-Pineda, 471 U.S. 444, 449 (1985); Matter of Coelho, 20 I&N Dec. 464, 471-72 (1992); cf. Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997) (stating that the authority to reopen proceedings sua sponte is limited to exceptional circumstances and is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship).6 Reopening removal proceedings on the basis of a lawyers deficient performance is a permissible exercise of this broad discretion. It is also a proper exercise of that discretion in appropriate circumstancesnamely, if certain prerequisites, explained below, are metbecause the stakes in removal proceedings are sometimes high, the immigration laws can be complex, and many aliens would be better equipped to navigate them with counsel. See, e.g., Aris, 517 F.3d at 600; Hernandez-Gil, 476 F.3d at 806-07. Moreover, and regrettably, [t]he deficiencies of the immigration bar are well known. Stroe, 256 F.3d at 504; see also, e.g., Aris, 517 F.3d at 596, 600-01 (With disturbing frequency, this Court encounters evidence of ineffective representation by attorneys retained by immigrants seeking legal status in this country.). There is a strong public interest in ensuring that these deficiencies do not affirmatively undermine the fairness and accuracy of removal proceedings. Cf. Final Rule: Professional Conduct for PractitionersRules and Procedures, 65 Fed. Reg. 39,513, 39,514-15 (June 27, 2000) (recognizing that an effective disciplinary system protects the public, preserves the integrity of the immigration courts, and helps maintain high professional standards); Final Rule: Professional Conduct for PractitionersRules and Procedures, and Representation and Appearances, 73 Fed. Reg. 76,914, 76,915 (Dec. 18, 2008) (defining additional categories of behavior that constitute misconduct by attorneys and accredited representatives in order to preserve the fairness and Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 7 The interest in ensuring that a lawyers deficient performance does not undermine the fairness and accuracy of removal proceedings does not warrant, however, allowing a motion to reopen based on the conduct of non-lawyers (except where an alien is represented by an accredited representative pursuant to 8 C.F.R. 1292.1(a)(4) or in the extraordinary case where an alien reasonably but erroneously believed that someone was a lawyer). The reason is that lawyers and accredited representatives are governed by rules of professional conduct and have skills, including but not limited to knowledge of immigration laws and procedures, that are directly related to furthering the interest that aliens and the Government have in fair and accurate immigration proceedings. See, e.g., Hernandez, 524 F.3d at 1018-19. The same cannot be said of non-lawyers, so-called notarios and other unaccredited immigration consultants. See, e.g., Mendoza-Mazariegos v. Mukasey, 509 F.3d 1074, 1077 n.4 (9th Cir. 2007) ([T]he immigration system in this country is plagued with notarios who prey on uneducated immigrants.); see also Executive Office for Immigration Review Press Release, Notarios, Visa Consultants, and Immigration Consultants Are Not Attorneys (Nov. 20, 2 0 0 8 ) , a v a i l a b l e a t < h t t p : / / w w w . u s d o j . g o v / e o i r / p r e s s / 0 8 / NotariosNoticeProtectionsCAFINAL112008.pdf>. Accordingly, the deficient performance claim established in this opinion extends only to the conduct of a lawyer, an accredited representative, or a non-lawyer the alien reasonably but erroneously believed to be a lawyer and who was retained to represent the alien in the proceedings; it does not extend any further or to the conduct of an alien representing himself. Cf. Hernandez, 524 F.3d at 1018-19 (holding that an alien may not pursue an ineffective-assistance-of-counsel claim with respect to the conduct of a non-lawyer). 729 integrity of immigration proceedings, and increase the level of protection afforded to aliens in those proceedings). That interest justifies allowing the Board to mitigate the consequences of a lawyers deficient performance by allowing an alien to relitigate his removal in the extraordinary case where his lawyers deficient performance likely changed the outcome of his initial removal proceedings.7 At the same time, it is important to recognize that there is a strong public interest in the expeditiousness and finality of removal proceedings, an interest that Congress has repeatedly emphasized through legislation imposing time limits and curbing discretionary relief. See, e.g., Liadov v. Mukasey, 518 F.3d 1003, 1009-10 (8th Cir. 2008) (Congress in recent years has taken repeated action to expedite removal proceedings and curb perceived abuses.). As the Supreme Court has observed, granting motions to reopen too freely would undermine this interest by permit[ting] endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. Abudu, 485 U.S. at 108 (internal quotation marks omitted); see also Doherty, 502 U.S. at 323 (stating that motions to reopen are especially disfavored in a deportation proceeding, where, as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States); Betouche v. Ashcroft, 357 F.3d 147, 150 (1st Cir. 2004) (Since a delay in deportation Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 8 In the interest of national uniformity, the Board and immigration judges should apply the framework set forth below in toto, even in circuits that have previously held that there is a constitutional right to effective assistance of counsel. That will allow those circuits to reconsider the question (en banc if necessary) more efficiently and easily, without the weight of the Boards 1988 Lozada precedent, which predated the majority of the relevant judicial decisions. If, notwithstanding my decision today, a court of appeals subsequently reaffirms (continued...) 730 may itself constitute a substantial boon to an alien already subject to a final deportation order, there exists a significant prospect that entirely meritless and/or collusive ineffective assistance claims may be filed for purely dilatory purposes.). This concern is especially strong when an alien seeks reopening on the basis of a lawyers alleged deficient performance, because even a meritless motion can succeed in tying up the system and postponing an aliens removal for months or even years based on the difficulties inherent in assessing and adjudicating a lawyers performance after the fact. Federal courts have observed that they are increasingly burdened by claims of lawyer error and have condemned the numerous groundless and dilatory claims of this sort that are routinely submitted to immigration judges and the Board. Betouche, 357 F.3d at 150. The balancing of these competing considerations in addressing motions to reopen under the Act is committed to the discretion of the Attorney General. See Abudu, 485 U.S. at 108, 110. I exercise that discretion in this opinion by identifying the general criteria to be used by the Board and immigration judges in addressing motions to reopen based on claims of deficient performance by counsel. At the same time, the Board and immigration judges retain considerable discretion in addressing such motions. Whether an alien has made a sufficient showing to warrant relief based on counsels allegedly deficient performance is, in each case, committed to the discretion of the Board or the immigration judge. And the Board and immigration judges retain discretion to deny relief in appropriate circumstances even if the prerequisites described below are satisfied, especially where the ultimate relief sought is discretionary. IV. With these competing interests in mind, I turn to the general framework that the Board and immigration judges should apply henceforth when aliens seek to reopen removal proceedings based on a lawyers deficient performance. To avoid confusion with what has heretofore been treated as a constitutional claim of ineffective assistance of counsel, I will refer to the claim recognized in this opinion as a deficient performance of counsel claim.8 Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 (...continued) (or decides in the first instance) that there is a constitutional right to effective assistance of counsel in removal proceedings, and that courts decision has become final and unreviewable, the Board and immigration judges will need to determine what elements of the framework may be implemented in that circuit consistent with the courts decision. 731 In establishing a framework for consideration of deficient performance claims, I do not write on a blank slate. As noted, 20 years ago, in Lozada, 19 I&N Dec. 637, the Board held (albeit based on erroneous constitutional underpinnings) that an alien may qualify for reopening of his removal proceedings based on lawyer error. To qualify for relief, the Board explained, an alien must establish that his lawyers failings had been egregious, and that he had been prejudiced by his lawyers performance. Id. at 638-39. In addition, the Board established three requirements, the so-called Lozada factors, for reopening removal proceedings on grounds of lawyer error. First, the alien must submit an affidavit attesting to the relevant facts, including a statement that sets forth in detail the agreement that was entered into with former counsel with respect to the actions to be taken [in the litigation] and what counsel did or did not represent to the [alien] in this regard. Id. at 639. Second, former counsel must be informed of the allegations and allowed the opportunity to respond, and that response, if any, must accompany the motion. Id. And third, the motion should reflect whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not. Id. The Lozada standards and requirements have largely stood the test of time, but 20 years of experience has also revealed ways in which they can and should be improved. The administrative framework established today supersedes that set forth in Lozada, but draws on its approach. Significantly, it is designed, as the framework in Lozada was, to enable the Board to resolve most deficient performance claims on the basis of the written record presented by the parties in connection with the motion without having to remand to an immigration judge for fact-finding. See Patel v. Gonzales, 496 F.3d 829, 831-32 (7th Cir. 2007) (noting that the Lozada factors were designed to reduce the potential for abuse by providing information from which the [Board] can assess whether an ineffective assistance claim has enough substance to warrant the time and resources necessary to resolve the claim on its merits). Evidentiary hearings before an immigration judge cannot always be avoided, but such hearings are an added burden on both the parties and the Immigration Court, and they rarely assist in resolving the merits of the substantive immigration law issues presented by a particular case. Matter of Rivera, 21 I&N Dec. 599, 604 (BIA 1996). Consequently, the framework Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 732 established today is intended, as Lozada was, to permit the Board to resolve the great majority of claims expeditiously on the basis of an aliens motion to reopen and accompanying documents alone. See id. (noting that the Board prefer[s] to make final determinations of ineffective assistance of counsel claims on the documentary submissions alone, where possible); see also Betouche, 357 F.3d at 150 (The immigration courts, which reasonably cannot be expected to conduct a full-fledged evidentiary hearing for all such claims, must be able to impose fair and efficacious techniques for screening out, ab initio, the numerous groundless and dilatory claims routinely submitted in these cases.). A. To prevail on a deficient performance of counsel claim, an alien bears the burden of establishing three elements. 1. First, the alien must show that his lawyers failings were egregious, a requirement the Board recognized in Lozada. See 19 I&N Dec. at 639. In light of the strong public interest in finality and the rule that litigants are generally bound by the conduct of their attorneys, id., it is not enough merely to demonstrate that ones lawyer made an ordinary mistake or could have presented a more compelling case. Moreover, given the danger of second guessing a lawyers performance with the distorting effects of hindsight, it is appropriate in making this assessment to apply a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. Requiring that the error be egregious, and viewing the matter from counsels perspective at the time, will help ensure that reopening is reserved for those extraordinary cases that truly warrant relief, and that relief is not granted simply because an alien shows after the fact that he received less than flawless representation. 2. Second, in cases where the alien moves to reopen beyond the applicable time limittypically 90 days from the date the removal order was enteredthe Board may exercise its discretion to allow tolling of the 90-day period, but only if the alien affirmatively shows that he exercised due diligence in discovering and seeking to cure his lawyers alleged deficient performance. Cf., e.g., Barry v. Mukasey, 524 F.3d 721, 724-25 (6th Cir. 2008) (holding that the reopening deadline may be equitably tolled in cases involving a lawyers Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 733 deficient performance, provided that the alien shows due diligence); Zhao v. INS, 452 F.3d 154, 157-58 (2d Cir. 2006) (same). Due diligence requires an alien to prove that the delay in filing the motion to reopen was due to an exceptional circumstance beyond his control. Tapia-Martinez v. Gonzales, 482 F.3d 417, 423 (6th Cir. 2007) (quotation marks omitted). In deficient performance cases, this will typically require that the alien prove he made timely inquiries about his immigration status and the progress of his case. It will also typically require that the alien promptly file a motion to reopen within a reasonable period after discovering his lawyers deficient performance. There is no bright line for determining when a particular delay is too long. Instead, the Board should evaluate due diligence on a case-by-case basis, taking into account the circumstances of the case and the reasons offered for any delay. The Board should perform this evaluation by determining objectively when a reasonable person should have discovered the possibility that he had been victimized by the lawyers deficient performance, and when a reasonable person would have taken steps to cure it following discovery. See Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000) (stating that the test is whether the lawyers error was, or should have been, discovered by a reasonable person in the situation); Patel v. Gonzales, 442 F.3d 1011, 1016 (7th Cir. 2006) (asking whether a reasonable person in the plaintiffs position would have been aware of the possibility that he had suffered an injury) (internal quotation marks omitted). The determination of whether the facts and circumstances warrant tolling of the filing period islike the decision on a motion to reopen based on counsels allegedly deficient performance itselfcommitted in all instances to the discretion of the Board. 3. Third, as the Board and courts of appeals uniformly have held, an alien must establish prejudice arising from the lawyers errors. See Lozada, 19 I&N Dec. at 638; cf. Strickland, 466 U.S. at 691 (An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.). The proper standard of prejudice to apply, however, is a crucial question on which even the courts of appeals that have recognized a constitutionally based claim of ineffective assistance have not spoken consistently. Some courts apply a strict standard. See, e.g., Sako v. Gonzales, 434 F.3d 857, 864 (6th Cir. 2006) (holding that an alien must establish that, but for the ineffective assistance of counsel, he would have been entitled to continue residing in the United States). Other courts apply a standard similar to the one the Supreme Court established in Strickland for Sixth Amendment ineffective-assistance-of-counsel claims, namely a reasonable probability Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 734 that, but for counsels professional errors, the result of the proceeding would have been different. See, e.g., Fadiga, 488 F.3d at 159. And one courtthe Ninth Circuitdeems the prejudice requirement satisfied as long as the alien can show plausible grounds for relief on the underlying claim. Mohammed v. Gonzales, 400 F.3d 785, 794 (9th Cir. 2005). I conclude that to establish prejudice arising from a lawyers deficient performance sufficient to permit reopening, an alien must show that but for the deficient performance, it is more likely than not that the alien would have been entitled to the ultimate relief he was seeking. In doing so, I borrow from the standard commonly applied by the Federal courts, in both civil and criminal proceedings, to motions for a new trial based on newly discovered evidence. See, e.g., Environmental Barrier Co., LLC v. Slurry Sys., Inc., 540 F.3d 598, 608 (7th Cir. 2008); United States v. Johnson, 519 F.3d 478, 487 (D.C. Cir. 2008). The Supreme Court itself has described such motions as the appropriate analogy to motions to reopen removal proceedings. Abudu, 485 U.S. at 110; accord Doherty, 502 U.S. at 323. And as the Court explained, [t]he reasons why motions to reopen are disfavored in deportation proceedings are comparable to those that apply to . . . motions for new trials on the basis of newly discovered evidence. There is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases. Abudu, 485 U.S. at 107 (footnote omitted). In my judgment, the more likely than not standard is more appropriate than Stricklands reasonable probability standard. See Kyles v. Whitley, 514 U.S. 419, 434 (1995) (recognizing that a more likely than not standard is more demanding than a reasonable probability standard). The Strickland standard, after all, was intended to vindicate a criminal defendants constitutional right to effective assistance of counsel. Here, as discussed, there is no constitutional right to effective assistance of counsel, so the aliens interests relative to the public interest in finality are correspondingly weaker. It follows that the more likely than not standard is also more appropriate than the Ninth Circuits plausible grounds for relief standard. Indeed, even Strickland rejected a comparable standard, explaining that [v]irtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. 466 U.S. at 693. In short, the more likely than not standard best reflects and protects the strong public interest in ensuring the finality of removal proceedings while still providing a safety valve for those cases in which an alien was demonstrably harmed by his lawyers egregious performance. As noted, this standard of prejudice requires the alien to establish the probability that, but for his lawyers error, he would have been entitled to the Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 9 It bears mentioning that many of the Federal courts that have recognized constitutional claims to ineffective assistance of counsel in removal proceedings have not even permitted such claims where the relief sought is discretionary. See supra n. 4. 735 ultimate relief he was seeking. In most cases, this will require a showing that, but for the lawyers error, the alien likely would have been entitled to continue residing in the United States. Hence, an alien cannot prevail on a claim that, for example, his lawyer was wrong in failing to request a continuance simply by showing that he likely would have been granted a continuance. Instead, he must show that, but for the lawyers failing, he likely would have succeeded on the merits of his underlying claim to remain in the United States. And in cases where discretionary relief is at issue, an alien must present evidence that not only establishes he was eligible for relief, but also that he believes would have led to a favorable exercise of discretion. This is a common-sense requirement: If the alien would have been denied discretionary relief had the merits been adjudicated, there can have been no prejudice arising from an error that led to the agencys failure to reach the merits. Moreover, because an alien who seeks only discretionary relief is removable, and because the request to reopen is itself discretionary, the Board may properly insist upon a clear showing that discretionary relief would have been granted if the merits had been adjudicated. This also will enable the Board to address some claims of lawyer error more efficiently, because it may leap ahead, as it were, over the . . . threshold concerns . . . and simply determine that even if they were met, the movant would not be entitled to the discretionary grant of relief. Abudu, 485 U.S. at 105.9 B. To enable the Board to determine if these standards have been met, an alien who seeks reopening of removal proceedings based on his lawyers deficient performance also must submit certain documents in support of his motion. In particular, he must submit a detailed affidavit setting forth the facts that form the basis of the deficient performance of counsel claim. The affidavit must explain with specificity what his lawyer did or did not do, and why he, the alien, was harmed as a result. As the First Circuit has explained, the requirement of a sworn affidavit, presaging and memorializing the testimony which the alien petitioner would present were he to be accorded a hearing, produces the primary evidentiary basis upon which the [agency] evaluates the bona fides of the petitioners claim in determining whether a hearing is even warranted. Betouche, 357 F.3d at 150. Moreover, by exposing an alien to the potential pains of perjury, the affidavit requirement foster[s] an atmosphere of solemnity commensurate with the gravity of the . . . claim, and serves as a Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 736 screening device whereby deportable aliens are discouraged from filing dilatory ineffective assistance claims. Id. (internal quotation marks omitted). In addition to the aliens affidavit, the alien must attach five documents or sets of documents to his motion. If any of these documents is unavailable, the alien must explain why. If any of these documents is missing rather than nonexistent, the alien must summarize the documents contents in his affidavit. 1. First, the alien must attach a copy of his agreement, if any, with the lawyer whose performance he alleges was deficient. Where there was no written agreement, the alien must specify in his affidavit what the lawyer had agreed to do, including whether it included the particular step in the proceedings in which the deficient performance is alleged to have occurred. This requirement will enable the Board to determine whether the alleged error was actually within the scope of the lawyers representation. After all, the mere fact that a lawyer failed to do somethingfor example, file a petition for reviewdoes not, by itself, establish that the lawyers conduct was deficient, because the alien may not have retained the lawyer for that purpose. See Lozada, 19 I&N Dec. at 639 (noting that the alien has not alleged, let alone established, that former counsel ever agreed to prepare a brief on appeal or was engaged to undertake the task); see also, e.g., Beltre-Veloz v. Mukasey, 533 F.3d 7, 10 (1st Cir. 2008) (holding that the petitioners motion to reopen had a fatal flaw in that it makes no mention of the nature, scope, or substance of the petitioners arrangement with [his lawyer], nor does it indicate what communications the petitioner had with the attorney over the years). 2. Second, the alien must attach both a copy of a letter to his former lawyer setting forth the lawyers deficient performance and a copy of the lawyers response, if any. (If the alien never received a response from his former lawyer, his affidavit must note the date on which he mailed his letter and state whether he made any other efforts to notify the lawyer.) The letter from the alien must suffice to put the lawyer on notice that the alien intends to file a deficient performance claim and to inform the lawyer of the facts that the alien alleges in support of the claim. This requirement gives the former lawyerwhose professional competence is being questionedan opportunity to present his side of the story, and helps to ensure that the Board has the facts necessary to render an informed judgment. As the Board recognized in Lozada, this requirement also has the effect of discouraging baseless accusations because the potential for abuse is apparent where no mechanism Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 10 Where a deficient performance claim is based on the conduct of an accredited representative, see 8 C.F.R. 1292.1(a)(4) (permitting aliens appearing before the Board to be represented by an accredited representative); cf. Matter of Zmijewska, 24 I&N Dec. 87, 94 (BIA 2007) (holding that the Lozada framework applies to accredited representatives), the alien must instead attach a complaint addressed to the Executive Office for Immigration Review disciplinary counsel, because such accredited representatives are subject to disciplinary action under the Executive Office for Immigration Reviews professional conduct regulations. 737 exists for allowing former counsel, whose integrity or competence is being impugned, to present his version of events if he so chooses. 19 I&N Dec. at 639. 3. Third, the alien must attach a completed and signed complaint addressed to the appropriate State bar or disciplinary authorities.10 This requirement, like the preceding one, discourages baseless accusations and collusion, because it is one thing to file a motion that, even if denied, has the effect of delaying removal and another thing altogether to back that motion with the weight of a disciplinary complaint. See Assaad, 23 I&N Dec. at 556 (noting that the bar complaint requirement acts as a protection against collusion between counsel and client to achieve delay in proceedings). As the Board has explained, the requirement increases our confidence in the validity of the particular claim, reduces the likelihood that an evidentiary hearing will be needed, and serves our long-term interests in monitoring the representation of aliens by the immigration bar. Id.; cf. 65 Fed. Reg. at 39,514-15; 73 Fed. Reg. at 76,915. It should be noted that, under this requirement, the alien need not actually file the complaint with the appropriate State bar or disciplinary authorities, as Lozada had required. By making the actual filing of a bar complaint a prerequisite for obtaining (or even seeking) relief, it appears that Lozada may inadvertently have contributed to the filing of many unfounded or even frivolous complaints. See, e.g., Comment filed by the Committee on Immigration & Nationality Law, Association of the Bar of the City of New York (Sept. 29, 2008), in response to the Proposed Rule for Professional Conduct for PractitionersRules and Procedures, and Representation and Appearances, 73 Fed. Reg. 44,178 (July 30, 2008) (Under the Lozada Rule, an ineffective assistance of counsel charge is often required in order to reopen a case or reverse or remand an unfavorable decision. The practice of filing such claims is rampant, and places well-intentioned and competent attorneys at risk of discipline.). Such unfounded complaints impose costs on well-intentioned and competent attorneys, and make it harder for State bars to Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 11 Of course, nothing prevents an alien, should he choose to do so, from filing his complaint with the State bar and with the Board. Prior filing of a complaint with the State bar simply is not a requirement for the motion to reopen. 738 identify meritorious complaints in order to impose sanctions on lawyers whose performance is truly deficient. The new approach is intended to avoid these problems by requiring only that the alien submit to the Board a completed and signed but unfiled complaint, and leaving it to the Board whether to refer the complaint to the State bar or to the Executive Office for Immigration Review disciplinary counsel for further action.11 4. Fourth, if the aliens claim is that his former lawyer failed to submit something to the immigration judge or to the Board, he must attach the allegedly omitted item to his motion. For example, if the aliens claim is that his former lawyer failed to submit a brief to the Board, he must submit, in substance and detail if not in form, a copy of the brief that he alleges should have been filed. If the aliens claim is that his former lawyer failed to introduce certain evidence or testimony, he must submit that evidence (directly in the case of physical or documentary evidence and through a witnesss affidavit in the case of testimony) to the Board. Moreover, the alien must explain in his affidavit whether he told his former lawyer about the evidence or testimony in question, and if not, why not. Requiring aliens to submit such material to the Board will reduce delays and promote finality by ensuring that the Board can resolve most deficient performance claims without remanding for evidentiary hearings. In addition, requiring proof that an alien told his lawyer about evidence or testimonyor had a good reason for failing to do sois common sense. After all, if an alien never shared the existence of certain evidence or testimony with his lawyer, it is difficult to fault the lawyer for failing to submit that evidence or testimony to the immigration judge. 5. Fifth and finally, where an alien is represented by counsel in seeking reopening, the motion for reopening shall contain the following signed statement of the new attorney: Having reviewed the record, I express a belief, based on a reasoned and studied professional judgment, that the performance of my clients former counsel fell below minimal standards of professional Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 12 A lawyer may not bypass this requirement by preparing a motion to reopen for the alien and then having the alien file the motion pro se. Cf. 8 C.F.R. 1001.1(i) (2008) (defining the term practice to mean the act or acts of any person appearing in any case, either in person or through the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client) (emphasis added); id. 1001.1(k) (defining the term preparation, constituting practice, to mean the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers) (emphasis added). I also note that this requirement to acknowledge the deficient performance of counsel in the prior proceedings is applicable even where the same attorney continues to represent the alien in seeking to reopen the proceedings based on his own prior deficient performance. 739 competence.12 This requirementwhich is analogous to court of appeals rules requiring lawyers to attest to the existence of circuit splits or to questions of exceptional importance in petitions for rehearing en banc, see, e.g., Third Circuit Rule 35.1 (2008); Federal Circuit Rule 35(b) (2008)will further discourage meritless claims by serving as a reminder that challenges to the performance of another lawyer should not be made lightly. C. The legal standards set forth in Part IV.A and the evidentiary requirements set forth in Part IV.B are mandatory. That is, to be eligible for a favorable exercise of discretion based on a deficient performance claim, an alien must comply with all requirements that apply. Excusing an alien from compliance with a particular requirement, or deeming substantial compliance adequate (as several courts of appeals have done with respect to the Lozada factors, see, e.g., Reyes v. Ashcroft, 358 F.3d 592, 597-99 (9th Cir. 2004)), would hinder the development of a complete record, making it more difficult for the Government to respond and more difficult for the Board to adjudicate the case. It also would undermine the Boards (and the bars) efforts to monitor the quality of representation before the immigration courts. Finally, excusing compliance in some cases would create uncertainty as to when a requirement will be enforced and when it will be waived. Of course, even if an alien complies with all applicable requirements, the Board is not compelled to reopen proceedings, as reopening ultimately is discretionary. See, e.g., Doherty, 502 U.S. at 323. D. Finally, it bears noting that the Boards discretion to reopen on the basis of a lawyers deficient performance is not limited to conduct that occurred during Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 13 In cases involving claims of this sort, it is not uncommon for the alien to allege that his lawyer never notified him of the Boards decision in his case. To ensure that aliens receive notice of decisions in their cases and to forestall unfounded allegations that they did not, I have directed the Executive Office for Immigration Review to begin sending courtesy copies of final Board decisions to the aliens themselves in addition to sending them to the aliens lawyers. The Executive Office for Immigration Review intends to do so beginning March 1, 2009. See Executive Office for Immigration Review Press Release, Board To Begin Providing Copy of Decision to Aliens Who Are Represented by Counsel (Dec. 19, 2008), available at . After that date, aliens will be presumed to have received personal notice of the Boards decision (in addition to notice through counsel) if it was sent to the most recent address the alien provided to the Executive Office for Immigration Review, as required by 8 C.F.R. 1003.15(d) (2008). 740 the agency proceedings. The Board may reopen on the basis of deficient performance that occurred subsequent to the entry of a final order of removal.13 In reaching this conclusion, I recognize that, in reviewing claims under the Lozada framework, the Board has not spoken consistently on the question of when deficient performance must occur to permit reopening. See Afanwi, 526 F.3d at 795-96 (noting that the Board has issued contradictory opinions on the subject and citing cases). I recognize also that the courts of appeals have taken conflicting views. Compare Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1044 n.4 (9th Cir. 2000) (A claim of ineffective assistance of counsel occurring after the [Board] has ruled may be raised with the [Board] by filing a motion to reopen.), and Gjondrekaj v. Mukasey, 269 Fed. Appx. 106, 108 (2d Cir. 2008) (remanding where the aliens lawyer missed the petition for review filing deadline, and holding that to the extent the [Board] here concluded that it could not grant reopening or reissuance absent some error by the agency or ineffective assistance before the agency, it failed to apply the correct law), with Afanwi, 526 F.3d at 795-96 (holding that the Board does not have jurisdiction over an ineffective assistance claim arising out of an aliens counsels failure to file a timely petition for review with the court of appeals). In my judgment, the better view, and the one I adopt today, is that the Board has jurisdiction to consider deficient performance claims even where they are predicated on lawyer conduct that occurred after a final order of removal has been entered. The Board has broad discretion to reopen removal proceedings, and nothing in the statute or the regulations limits the grounds for reopening to events that occurred before the agency or prior to the entry of the final administrative order of removal. See Firmansjah v. Ashcroft, 347 F.3d 625, 627 (7th Cir. 2003) (explaining, in a case where the aliens lawyer had missed the petition-for-review filing deadline, that [t]he Board of Immigration Appeals . . . has authority to reopen and revise its decisions on account of new Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 741 developments and nothing prevents the Board from entering a new removal order, which is subject to a fresh petition for review). In holding otherwise, the Fourth Circuit in Afanwi relied on 8 C.F.R. 1003.1(d)(3)(ii) to conclude that the Boards jurisdiction is limited to questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges. 526 F.3d at 795-96. But that regulation addresses only the scope and standard of review by the Board. It does not purport to restrict the Boards jurisdiction or to limit the Boards broad authority to reopen removal proceedings. Deficient performance claims based on conduct that occurred after entry of a final order of removal shall be evaluated under the standards set forth in this opinion for all deficient performance claims. Thus, an alien must comply with the filing requirements set forth in Part IV.B, and must establish, among other things, that, but for the deficient performance, it is more likely than not that he would have been entitled to the ultimate relief he was seeking, as provided in Part IV.A. It is beyond the scope of this opinion to identify all the situations in which reopening after entry of a final order of removal may be warranted. There are, however, some situations in which it clearly would be unwarranted, such as when the deficient performance claim involved the quality of a lawyers briefs or arguments before a court of appeals that is, when the claim involved conduct in proceedings conducted well after the administrative order of removal became final, in a separate tribunal in a separate branch of government. V. Before evaluating the Boards orders in the instant cases, it is necessary to address one final matter: how, if at all, the framework announced in this opinion should be applied to motions to reopen (including the three at issue here) that were filed prior to this opinion. The general rule is that an agency or court should apply the law in effect at the time that it renders its decision. See Bradley v. Richmond Sch. Bd., 416 U.S. 696, 716 (1974); see also Meghani v. INS, 236 F.3d 843, 846 (7th Cir. 2001). In light of that rule, the Board and immigration judges should apply the substantive standards set forth in Part IV.A above to motions to reopen based on a lawyers deficient performance, regardless of when such motions were filed. It would be unfair, however, to apply the new filing requirements set forth in Part IV.B to such motions, since aliens may have filed them in good faith reliance on Lozada. See Bradley, 416 U.S. at 720 (stating that changes in the law should not be applied to pending cases where those changes would result in the imposition of new and unanticipated obligations without adequate notice). Accordingly, I hold that the Board and immigration judges should apply the Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 14 Given the potential delay between signing this opinion and its publication, it may be unreasonable to expect aliens to comply with the new filing requirements immediately. Accordingly, the Board and immigration judges may allow amendment of motions filed in the next few weeks to comply with the new filing requirements. 742 new filing requirements only with respect to motions filed after today; with respect to motions filed prior to this opinion, they should continue to apply the Lozada factors.14 With respect to the instant cases, then, the substantive standards set forth in Part IV.A above apply, but the new filing requirements set forth in Part IV.B do not. Applying those rules, I affirm the Boards decisions denying respondents motions to reopen. In Matter of Compean, respondents motion was without merit for three reasons. First, applying the substantive standards set forth in this opinion, respondent has failed to establish either that his former lawyer committed an egregious error or that he was prejudiced by any deficiencies in the lawyers conduct. As noted, respondents self-described most important claim was that his former lawyer had failed to submit his Form I-130 visa petition to the Immigration Judge, but that form was in fact part of the record. Thus, he has shown neither that his lawyers actions were egregious nor that, but for his lawyers performance, it is more likely than not that he would have established the exceptional and extremely unusual hardship required for cancellation of removal. Section 240A(b)(1)(D) of the Act, 8 U.S.C. 1229b(b)(1)(D). The Board therefore properly denied respondents motion to reopen on the ground that he had failed to establish prejudice. Finally, as the Board noted, respondent failed to comply with Lozadas requirement of filing a disciplinary complaint. Under Lozada, that alone warranted denial of his motion. In Matter of Bangaly, respondents motion was properly denied on either of two grounds. First, under Lozada (as under the new requirements set forth in this opinion), respondent was required to give his former lawyer notice of his alleged deficiencies and a chance to respond. As discussed above, such notice is important because it discourages baseless claims and because it makes it more likely that the Board can address the motion without the need to remand for a hearing. Yet, as the Board found, respondent failed to show that he complied with this requirement. Second, respondent has failed to show prejudice under the standard announced in this opinion. His motion to reopen was premised on his former lawyers failure to file a brief with the Board appealing the Immigration Judges denial of an additional continuance. But neither here nor before the Board has respondent made any effort to show that, had his lawyer filed a brief, he likely would have obtained the continuance, let alone that he likely would have been permitted to remain in the United States. Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632 743 In Matter of J-E-C-, unlike the other two cases, respondents appear to have complied with the Lozada factors. Nevertheless, respondents motion was properly denied for failure to establish prejudice. Among other things, the Board addressed the merits of each of the four points of error identified in respondents notice of appeal before it affirmed the Immigration Judges thorough and well-reasoned decision. (BIA Apr. 8, 2008). The Board also considered the brief submitted by respondents new lawyer and found it unpersuasive, thus affirming . . . that the respondent[] did not suffer prejudice from the failure of his former lawyer to file an appellate brief. Id. Under the standard of prejudice adopted in this opinion, the Boards decision was correct. CONCLUSION In sum, for the reasons stated above, I overrule Lozada and Assaad to the extent they are inconsistent with the constitutional conclusions in this opinion, and I affirm the Boards decisions denying reopening in each of the matters before me. http://www.Dr-Immigration.com/news/shownews.asp?newsID=89 Sun, 8 Mar 2009 16:31:38 EST Non-Immigrant Visas procedures at the Ciudad Juarez U.S. Consulate by US Immigration Lawyer By Ciudad Juarez U.S. Consulate: General Information Non-immigrant visas are issued to foreign nationals seeking to enter the United States on a temporary basis for tourism, business, study, and certain types of temporary work. The type of non-immigrant visa needed is defined by immigration law, and related to the purpose of the travel. Changes to the non-immigrant visa application Visa applicants must use the online DS-160 electronic application form, available at https://ceac.state.gov/genniv. Scroll over text on the page for Spanish translation. This form takes the place of the DS-156, DS-157, and DS-158 paper and electronic application forms. All non-immigrant visa applicants, regardless of what class of visa they are applying for, will be required to fill out this form online prior to their appointment at the Consulate. Applicants must print the Confirmation Page that appears after the form is complete and bring it with them to the Consulate for their appointment. Bring only the Confirmation Page, not the entire application. Click here for a sample of the Confirmation Page (Note: Do not print and bring this sample page, your Confirmation Page will have your specific information). Please note that all questions on the DS-160 form must be completely and accurately filled out or the applicant will be refused and required to return for a new interview with a properly completed form. To apply for a non-immigrant visa, you must bring the required forms and documentation for your visa class and make an appointment for an interview at the Consulate. Click here for a list of forms and documentation you will need to bring to your appointment. Click here for instructions on how to make an appointment at the Consulate. Click here to view approximate wait times for appointments and processing times for visas. Who may come to the Consulate It is necessary that all applicants be present the day of their appointment, with the exception of minors under seven years old. Applicants with a handicap, disability or infirmity may be accompanied by a family member or an attendant who can assist them. Photo ID will be required for those accompanying persons with disabilities. No family members, attorneys or other friends or representatives will be allowed to accompany applicants into the Consulate, with the exception of parents accompanying financially dependent or minor children. If your visa is approved If your visa is approved, you will be directed to the DHL courier service counter where you will make arrangements to pick-up or have your visa delivered to you. Processing times for BCC (laser) visas is typically 4-5 weeks. All other types of visas will be printed in your passport and typically take 2-3 days to process. If your visa is denied If youre visa is denied the officer will provide you with a written explanation of the section of law that describes your ineligibility. Should you be eligible to apply for a waiver, the officer will advise you of the process. Applicants who are denied because they lack sufficient evidence of intent to return to Mexico after their visit are not eligible to apply for a waiver. Some cases require additional administrative processing which could delay consideration of your visa application. If your case requires such additional processing, the officer will notify you at the time of your interview. You will be notified when the additional processing is complete and given instructions on when to return to the Consulate. Please do not call or email in the meantime, the Consualte will not be able to continue with your case until the additional processing is complete. NOTE: The Consulate DOES NOT certify or recommend any provider of visa services or documents. Do not believe any representative or business telling you that they either represent the Consulate or can provide you with documents or services that guarantee that you will receive a visa. We take fraud seriously. If it is discovered that you have provided false information or documents, it can prevent you from obtaining a visa. http://www.Dr-Immigration.com/news/shownews.asp?newsID=88 Sat, 7 Mar 2009 21:12:44 EST [Federal Register: December 23, 2008 (Volume 73, Number 247)] [Notices] [Page 78818-78820] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr23de08-104] ======================================= ---------------------------------------------- USCIS Revision to Direct Mail Program for Submitting Form N-400, Application for Naturalization by US Immigration Lawyer BY USCIS: DEPARTMENT OF HOMELAND SECURITY U.S. Citizenship and Immigration Services [CIS No. 2457-08; DHS Docket No. USCIS-2008-0036] RIN 1615-ZA74 USCIS Revision to Direct Mail Program for Submitting Form N-400, Application for Naturalization, Implementation of Program AGENCY: U.S. Citizenship and Immigration Services, DHS. ACTION: Notice. ----------------------------------------- SUMMARY: U.S. Citizenship and Immigration Services (USCIS) is revising its Direct Mail Program so that certain filings of Form N-400, Application for Naturalization, will now be filed at a designated lockbox facility instead of a USCIS Service Center. Furthermore, if you are the spouse of a current member of the Armed Forces, this notice instructs you to now file your Form N-400 at the Nebraska Service Center (NSC), whether you are filing from within the U.S. or abroad. This notice does not change the filing location for Forms N-400 filed by members or certain veterans of the Armed Forces who are eligible to apply for naturalization under sections 328 or 329 of the Immigration and Nationality Act (the Act). All naturalization applicants filing under the military provisions, sections 328 or 329 of the Act, should file their application at the NSC regardless of geographic location. DATES: This notice becomes effective January 22, 2009. FOR FURTHER INFORMATION CONTACT: Kathleen Stanley, Chief, Lockbox Operations Division, Office of the Chief Financial Officer, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., 4th Floor, Washington, DC 20529-2130, Telephone (202) 233-2385. SUPPLEMENTARY INFORMATION: Background What Is the Direct Mail Program? The Direct Mail Program allows applicants for certain immigration benefits to send their application or petition directly to a USCIS service center or lockbox facility instead of submitting it to their local USCIS office. The Direct Mail Program allows USCIS to: Standardize and more efficiently process applications by eliminating duplicative work; [[Page 78819]] Increase staff productivity; and Introduce better information management tools. The purpose and strategy of the Direct Mail Program has been discussed in detail in previous rulemaking and notices. (See 59 FR 33903, 59 FR 33985, 60 FR 22408, 61 FR 2266, 61 FR 56060, 62 FR 16607, 63 FR 891, 63 FR 892, 63 FR 13434, 63 FR 13878, 63 FR 16828, 63 FR 50584, 63 FR 8688, 63 FR 8689, 64 FR 67323, 69 FR 3380, 69 FR 4210, 70 FR 30768, 72 FR 3402, 73 FR 50336 and 73 FR 53034.) Explanation of Changes Will this notice change my eligibility for naturalization? No. This notice will not affect your eligibility for naturalization. This notice only affects the filing instructions where certain Form N-400s must be mailed. Some Form N-400s that were previously filed at USCIS Service Centers must now be sent to a designated lockbox facility. Please note that applicants filing under the military provision, sections 328 or 329 of the Act, as well as spouses of current members of the Armed Forces, have separate filing instructions. Filing changes will be discussed in detail in the following charts. Where should I send my Form N-400 and all supporting documentation? Please refer to the following charts for the filing location to send your completed Form N-400 and supporting documentation. Armed Forces Applicants and Spouses of Current Members of the Armed Forces --------------------------------------------------- see pdf for table --------------------------------------------------- --------------------------------------------------- Non-Armed Forces Applicants --------------------------------------------------- see pdf for table -------------------------------------------------- [[Page 78820]] --------------------------------------------------- What happens if I file a Form N-400 covered by this notice at the wrong location? During the first 30 days after this notice takes affect, USCIS will forward incorrectly addressed Form N-400s to the proper address, rather than reject it. USCIS will forward any improperly addressed Form N-400s covered by this notice as follows: Any Form N-400 from non-Armed Forces applicants will be forwarded to either the Dallas or Phoenix lockbox facilities. Any Form N-400 from Armed Forces applicants and the spouses of current members of the Armed Forces will be forwarded to the Nebraska Service Center. Any applications forwarded within this time period will be considered properly filed when received at either the Dallas or Phoenix lockbox facilities, or the Nebraska Service Center. After this 30-day transition period, any Form N-400 covered by this notice, which is received at a location other than the appropriate location as defined in the updated Form N-400 filing instructions provided in this notice, will be returned with an explanation directing the applicant to mail it to the appropriate processing facility. Is USCIS amending the Form N-400 Instructions? Yes. USCIS is currently amending the instructions to the Form N- 400. The revisions will include the new filing addresses, the requirement for passport style photos and the revision will provide clarification of the grounds for rejection of an application. When available, the new form will be posted on the USCIS Web site (http:// www.uscis.gov). Where may I find information related to eligibility requirements for naturalization? You may find general eligibility requirements for naturalization at our Web site (http://www.uscis.gov). You may also download ``A Guide to Naturalization (Form M-476),'' which provides information on the benefits and responsibilities of citizenship, an overview of the naturalization process, and eligibility requirements. Paperwork Reduction Act We will be amending the instructions to the Form N-400 to reflect the new filing instructions. Accordingly, we will provide the Office of Management and Budget with a copy of the amended form through the automated Regulatory Office Combined Information System (ROCIS). Changing the filing instructions will not have any effect on the reporting burden hours. The OMB control number for this collection is 1615-0052. Dated: December 17, 2008. Michael Aytes, Acting Deputy Director, U.S. Citizenship and Immigration Services. [FR Doc. E8-30531 Filed 12-22-08; 8:45 am] BILLING CODE 9111-97-P http://www.Dr-Immigration.com/news/shownews.asp?newsID=87 Sat, 7 Mar 2009 21:06:10 EST This fact sheet provides basic information on unaccompanied alien children in immigration proceedings. It is intended for general informational purposes only and is not a substitute for legal advice, nor does it constitute any legal opinion by the Department of Justice. This fact sheet is not fully inclusive; does not address all applicable laws including case interpretation; and may be subject to change as new laws and regulations are enacted. Unaccompanied alien children are children, under the age of 18, who have no lawful immigration status in the United States and have no parent or legal guardian in the United States to care for them. There are many reasons why unaccompanied alien children are found in the United States: they may be orphans; their relatives may have sent them here to work; they may be fleeing poverty or war; they may be running away from abuse; or they may be victims of trafficking. The Department of Homeland Security (DHS) is responsible for the apprehension and repatriation of unaccompanied alien children, while the Department of Health and Human Services, Office of Refugee Resettlement (ORR), is responsible for their care and custody. The Executive Office for Immigration Review (EOIR), an agency within the Department of Justice, conducts the immigration proceedings that determine whether a child may remain in the United States or must be returned to his or her homeland. Challenges in Adjudicating Unaccompanied Alien Childrens Cases When a child is the subject of immigration proceedings, the immigration judge faces fundamental and profound questions in adjudicating the case. Does the child understand the nature of the proceeding? Can the child effectively present evidence about his or her case? Is there anyone who can properly advocate for the childs legal interests? In addition, there are often legal issues that arise during the proceedings that make the proceedings even more complicated, such as determining the childs age in the absence of birth documents or parents, and determining whether a child legally qualifies to remain in the United States. (more) Office of Legislative and Public Affairs Unaccompanied Alien Children in Immigration Proceedings Page 2 All immigration cases are adjudicated on a case-by-case basis. Some result in relief from removal and legal permission to remain in the United States, while others result in an order of removal. EOIR is committed to ensuring fairness in all cases and understands the importance of being sensitive to this especially vulnerable population. Legal Representation Immigration law is extremely complex, and the capacity of children to understand their legal proceedings varies greatly. For this reason, immigration judges strongly encourage and facilitate pro bono representation whenever a child is not represented. Immigration judges regularly participate in pro bono attorney training programs sponsored by the private bar, law schools, and legal service providers to help increase the available pool of legal representatives. EOIR also works closely with ORR, both on the national level and the local level, and a number of non-governmental organizations to identify children in need of legal assistance. Thanks to these partnership efforts, the large majority of unaccompanied alien children in government custody have access to basic legal programs. Guidelines for Immigration Judges Immigration judges follow guidelines to foster a child-friendly environment in the immigration courtroom. Under these guidelines, the immigration judge will: Establish special dockets for unaccompanied alien children to keep them separate from the general population; Allow child-friendly courtroom modifications; Provide courtroom orientations to familiarize the children with the court; Explain the proceedings at the outset; Prepare the child to testify; and Employ child-sensitive questioning. These guidelines also encourage immigration judges to use appropriate pro bono resources whenever a child is not represented. The current guidelines are found in Immigration Court Operating Policies and Procedures Memorandum 07-01: Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children. Juvenile Dockets EOIR has established juvenile dockets throughout the country to facilitate consistency, encourage child-friendly courtroom practices, and promote pro bono representation for unaccompanied alien children. (more) Office of Legislative and Public Affairs Unaccompanied Alien Children in Immigration Proceedings Page 3 Currently, there are at least 10 courts that have juvenile dockets Phoenix, Ariz.; Los Angeles, San Diego, and San Francisco, Calif.; Miami, Fla.; Chicago, Ill.; New York, N.Y.; and Harlingen, Houston, and San Antonio, Texas. The immigration judges and court administrators at these locations diligently work to ensure the well-being of the children. They meet with representatives of the private bar, DHS, and ORR on an ongoing basis. Training for Immigration Judges EOIR has been training judges on childrens issues with the help of experts from federal agencies such as ORR and non-governmental organizations such as the American Bar Association, the Womens Commission for Refugee Women and Children, Lutheran Immigrant and Refugee Services, and Northwestern University School of Law. Training is supplemented with written materials on relevant topics and recent developments. Legal Orientation Program EOIRs Legal Orientation Program assists detained individuals in immigration court proceedings by explaining their legal rights and options and facilitating pro bono legal services. In 2006, EOIR funded a 1-year pilot program to provide legal orientation programs specifically for children at ORR shelters. Four ORR childrens shelters were chosen for the pilot program in the following cities: Corpus Christi, Texas; Vincennes, Ind.; Chicago, Ill.; and Seattle, Wash. Children at these sites received individual orientations to help them understand and feel more at ease with the court process. The Legal Orientation Programs goal is to increase each childs comfort level so that he or she will be able to cooperate, as much as possible, with the court and pro bono counsel. EOIR EOIR, an agency within the Department of Justice, is responsible for adjudicating immigration cases. Specifically, under delegated authority from the Attorney General, EOIR interprets and administers federal immigration laws by conducting immigration court proceedings, appellate reviews, and administrative hearings. EOIR consists of three components: the Office of the Chief Immigration Judge, which is responsible for managing the numerous immigration courts located throughout the United States where immigration judges adjudicate individual cases; the Board of Immigration Appeals, which primarily conducts appellate reviews of immigration judge decisions; and the Office of the Chief Administrative Hearing Officer, which adjudicates immigration-related employment cases. EOIR is committed to providing the fair, expeditious, and uniform interpretation and application of immigration law in all cases. Office of Legislative and Public Affairs http://www.Dr-Immigration.com/news/shownews.asp?newsID=86 Sat, 7 Mar 2009 20:34:38 EST [Federal Register: April 29, 2008 (Volume 73, Number 83)] [Rules and Regulations] [Page 23067-23069] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr29ap08-3] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF STATE 22 CFR Parts 40 and 41 [Public Notice: 6202] Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended AGENCY: Department of State. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This final rule amends the Department of State's regulations related to application for a nonimmigrant visa, to offer a completely electronic application procedure as an alternative to submission of the Form DS-156. DATES: This rule is effective on April 29, 2008. FOR FURTHER INFORMATION CONTACT: Charles Robertson, Legislation and Regulations Division, Visa Services, Department of State, Washington, DC 20520-0106, (202) 663-1202, e-mail (robertsonce3@state.gov). SUPPLEMENTARY INFORMATION: Why is the Department promulgating this rule? The Government Paperwork Elimination Act (GPEA 1998) requires that, when possible, Federal agencies use electronic forms, electronic filing, and electronic signatures to conduct agency business with the public. For this reason, the Department of State developed and introduced an electronic application process for nonimmigrant visas to eventually replace the current application process, which depends on a paper form (Form DS-156, and other forms when required, such as the Form DS-157 and Form DS-158). The first step was to offer an electronic visa application form (EVAF) as a voluntary alternative way of obtaining and preparing the Form DS-156. While the nonimmigrant visa applicant could obtain and prepare the Form DS-156 electronically, he or she was required to sign the Form DS-156 manually. On October 1, 2006, the EVAF was made mandatory worldwide wherever possible. Now, while the Department will continue to accept the EVAF (electronic Form DS-156) where necessary, it proposes to eventually eliminate the Form DS-156 entirely and replace it with the Form DS-160, an electronic form designed to be completed and signed electronically. What effect does the electronic application process have on the nonimmigrant visa applicant? The procedure is the same for the nonimmigrant visa applicant except that he or she will not be required to print and sign a form to take to the visa interview. All information entered into the Form DS- 160 will be available to the consular officer at the time of the interview, thus simplifying the process from the point of the view of the applicant. The applicant is required to sign the Form DS-160 electronically. How does the applicant sign the Form DS-160 electronically? The applicant will be required to click on the box designated ``Sign Application'' found within the certification section of the application. How does the consular officer identify the applicant who has submitted an electronic application (Form DS-160)? Photos, passports and fingerscans collected as part of the application process will identify the applicant. How does the applicant certify that the information in the Form DS-160 is correct? By signing the Form DS-160 electronically (i.e., clicking on the ``Sign Application'' box), the applicant certifies that the information provided is correct. Is an electronic signature binding on a nonimmigrant visa applicant? Yes. The electronic signature (i.e., the click on the ``Sign Application'' box) indicates that the applicant is familiar with and intends to be bound by the statements contained in the application and has answered all questions truthfully, under penalty of perjury. Can a third party prepare the Form DS-160? While a third party may assist the applicant in preparing the Form DS-160, the applicant must electronically sign the application himself or herself. The applicant must identify in the application any third party who has assisted in the preparation of the Form DS-160. Regulatory Findings Administrative Procedure Act This regulation involves a foreign affairs function of the United States and, therefore, in accordance with 5 U.S.C. 553(a)(1), is not subject to the rule making procedures set forth at 5 U.S.C. 553. Regulatory Flexibility Act/Executive Order 13272: Small Business Because this final rule is exempt from notice and comment rulemaking under 5 U.S.C. 553, it is exempt from the regulatory flexibility analysis requirements set forth at sections 603 and 604 of the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, consistent with section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities. This regulates individual aliens who seek consideration for nonimmigrant visas and does not affect any small entities, as defined in 5 U.S.C. 601(6). The Unfunded Mandates Reform Act of 1995 Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by [[Page 23068]] State, local, or tribal governments, or by the private sector. This rule will not result in any such expenditure, nor will it significantly or uniquely affect small governments. The Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104- 121. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and import markets. Executive Order 12866: Regulatory Review The Department of State has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866 and has determined that the benefits of the proposed regulation justify its costs. The Department does not consider the rule to be an economically significant action within the scope of section 3(f)(1) of the Executive Order since it is not likely to have an annual effect on the economy of $100 million or more or to adversely affect in a material way the economy, a sector of the economy, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities. Executive Orders 12372 and 13132: Federalism This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor will the rule have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132. Executive Order 12988: Civil Justice Reform The Department has reviewed the proposed regulations in light of sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden. Paperwork Reduction Act This rule does not impose information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35. List of Subjects in 22 CFR Parts 40 and 41 Aliens, Foreign officials, Immigration, Nonimmigrants, Passports and Visas. 0 For the reasons stated in the preamble, the Department of State amends 22 CFR part 40 and 41 as follows: PART 40--[AMENDED] 0 1. The authority citation for part 40 continues to read: Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795 through 2681-801, Pub. L. 104-208, 110 Stat. 3546. 0 2. Section 40.1 is amended by revising paragraph (l)(1) to read as follows: Sec. 40.1 Definitions. * * * * * (l) * * * (1) For a nonimmigrant visa applicant, submitting for formal adjudication by a consular officer of an electronic application, Form DS-160, signed electronically by clicking the box designated ``Sign Application'' in the certification section of the application or, as directed by a consular officer, a completed Form DS-156, with any required supporting documents and biometric data, as well as the requisite processing fee or evidence of the prior payment of the processing fee when such documents are received and accepted for adjudication by the consular officer. * * * * * PART 41--[AMENDED] 0 3. The authority citation for part 41 continues to read: Authority: 8 U.S.C. 1104; Public Law 105-277, 112 Stat. 2681-795 through 2681-801, Pub. L. 104-208, 110 Stat. 3546.3. 0 4. Section 41.32 is amended by revising paragraph (a)(2) to read as follows: Sec. 41.32 Nonresident alien Mexican border crossing identification cards; combined border crossing identification cards and B-1/B-2 visitor visas. (a) * * * (2) Procedure for application. Mexican applicants shall apply for a B-1/B-2 Visa/BCC at any U.S. consular office in Mexico designated by the Deputy Assistant Secretary of State for Visa Services pursuant to paragraph (a) of this section to accept such applications. The application shall be submitted electronically on Form DS-160 or, as directed by a consular officer, on Form DS-156. If submitted electronically, it must be signed electronically by clicking the box designated ``Sign Application'' in the certification section of the application. * * * * * 0 5. Section 41.103 is revised to read as follows: Sec. 41.103 Filing an application. (a) Filing an application--(1) Filing of application required. Every alien seeking a nonimmigrant visa must make an electronic application on Form DS-160 or, as directed by a consular officer, an application on Form DS-156. The Form DS-160 must be signed electronically by clicking the box designated ``Sign Application'' in the certification section of the application. (2) Filing of an electronic application (Form DS-160) or Form DS- 156 by alien under 16 or physically incapable. The application for an alien under 16 years of age or one physically incapable of completing an application may be completed and executed by the alien's parent or guardian, or if the alien has no parent or guardian, by any person having legal custody of, or a legitimate interest in, the alien. (3) Waiver of filing of application when personal appearance is waived. Even if personal appearance of a visa applicant is waived pursuant to 22 CFR 41.102, the requirement for filing an application is not waived. (b) Application--(1) Preparation of Electronic Nonimmigrant Visa Application (Form DS-160) or, alternatively, Form DS-156. The consular officer shall ensure that the application is fully and properly completed in accordance with the applicable regulations and instructions. (2) Additional requirements and information as part of application. Applicants who are required to appear for a personal interview must provide a biometric, which will serve to authenticate identity and additionally verify the accuracy and truthfulness of the statements in the application at the time of interview. The consular officer may require the submission of additional necessary information or question an alien on any relevant matter whenever the consular officer believes that the information provided in the application is inadequate to permit a determination of the alien's eligibility to receive a nonimmigrant visa. Additional statements made by the alien become a part of the visa application. All documents required by the consular [[Page 23069]] officer under the authority of Sec. 41.105(a) are considered papers submitted with the alien's application within the meaning of INA 221(g)(1). (3) Signature. The Form DS-160 shall be signed electronically by clicking the box designated ``Sign Application'' in the certification section of the application. This electronic signature attests to the applicant's familiarity with and intent to be bound by all statements in the NIV application under penalty of perjury. Alternatively, except as provided in paragraph (a)(2) of this section, the Form DS-156 shall be signed by the applicant, with intent to be bound by all statement in the NIV application under penalty of perjury. (4) Registration. The Form DS-160 or the Form DS-156, when duly executed, constitutes the alien's registration for the purposes of INA 221(b). 0 6. Section 41.106 is revised to read as follows: Sec. 41.106 Processing. Consular officers must ensure that the Form DS-160 or, alternatively, Form DS-156 is properly and promptly processed in accordance with the applicable regulations and instructions. 0 7. Section 41.113 is amended by revising paragraphs (g) and (h) to read as follows: Sec. 41.113 Procedures in issuing visas. * * * * * (g) Delivery of visa. In issuing a nonimmigrant visa, the consular officer should deliver the visaed passport, or the prescribed Form DS- 232, which bears the visa, to the alien or to the alien's authorized representative. Any evidence furnished by the alien in accordance with 41.103(b) should be retained in the consular files, along with Form DS- 156, if received. (h) Disposition of supporting documents. Original supporting documents furnished by the alien should be returned for presentation, if necessary, to the immigration authorities at the port of entry. Duplicate copies may be retained in the consular files or scanned into the consular system. * * * * * Dated: April 22, 2008. Janice L. Jacobs, Assistant Secretary for Consular Affairs, Acting, Department of State. [FR Doc. E8-9336 Filed 4-28-08; 8:45 am] BILLING CODE 4710-06-P http://www.Dr-Immigration.com/news/shownews.asp?newsID=85 Sat, 7 Mar 2009 20:34:31 EST Office of Communications www.uscis.gov USCIS Update April 24, 2008 USCIS MODIFIES APPLICATION FOR EMPLOYMENT AUTHORIZATION Previous Versions of Form I-765 Accepted until July 8, 2008 WASHINGTONU.S. Citizenship and Immigration Services (USCIS) announced today that it has revised Form I-765, Application for Employment Authorization. The form now includes additional eligibility codes. These changes have been made in accordance with the Department of Homeland Security's recent interim final rule regarding Optional Practical Training (OPT), published on April 8, 2008 in the Federal Register. The rule modifies the conditions and duration of OPT for qualified F-1 non-immigrant students. USCIS will accept the July 30, 2007 edition of the form through July 8, 2008. As of July 9, 2008, USCIS will only accept the revised Form I-765, dated April 8, 2008, and will reject all requests using previous editions of the form. The main purpose of Form I-765 is to allow certain aliens in the United States to request employment authorization and an Employment Authorization Document (EAD). - USCIS - http://www.Dr-Immigration.com/news/shownews.asp?newsID=84 Sat, 7 Mar 2009 20:34:19 EST Screening Enhancements Release Date: April 28, 2008 For Immediate Release Office of the Press Secretary Contact: 202-282-8010 April 28, 2008 (Baltimore, Md.) The U.S. Department of Homeland Security (DHS) announced today improvements aimed at strengthening aviation security while decreasing the hassle factor for travelers. Among the key improvements, DHS is providing airlines more flexibility to allow passengers to check in remotely who have been unable to do so because they have a name similar to someone on a watch list. The department also unveiled the Checkpoint Evolution prototype, which begins full operation at Baltimore-Washington International Airport (BWI) today. Each airline will now be able to create a system to verify and securely store a passengers date of birth to clear up watch list misidentifications. By voluntarily providing this limited biographical data to an airline and verifying that information once at the ticket counter, travelers that were previously inconvenienced on every trip will now be able to check-in online or at remote kiosks. Hassles due to misidentification and the resulting necessity to stand in line to check in at the ticket counter is consistently among the deepest and most valid complaints of the traveling public, said Homeland Security Secretary Michael Chertoff. Thousands of passengers are inconvenienced each day, and this change should provide a way to eliminate the vast majority of these situations. This is good for travelers and for security, because as we make the checkpoint environment calmer, it becomes easier to spot individuals with hostile intent. Additionally, DHS is providing greater clarity on the types of identification that will be accepted at checkpoints in the U.S. Beginning May 26, 2008, federal or state-issued photo ID will be accepted if it contains: name, date of birth, gender, expiration date and a tamper-resistant feature. Standardizing the list of accepted documents better aligns TSA with other DHS components and REAL ID benchmarks. More information on acceptable documents is available at www.tsa.gov. These innovations, along with the new Checkpoint Evolution prototype, are part of a broader effort to calm the checkpoint. The BWI prototype includes Millimeter Wave technology used in random continuous use, multiview X-ray and liquid bottle scanners. These technologies, in conjunction with changes to the checkpoint environment and processes, will be evaluated for operational efficiency over the coming months. Transportation Security Officers and managers at BWI are the first in the country to complete a 16-hour training module designed to incorporate the latest intelligence analysis, more advanced explosives detection skills, and ways to engage with passengers to promote a calmer environment for better security. The training was developed by the Transportation Security Administration (TSA) Office of Intelligence, Bomb Appraisal Officers, and TSA Checkpoint Evolution team. Checkpoint Evolution is located at B Checkpoint, Southwest Terminal at BWI. The layered security elements are both modular and flexible and designed to work individually, as well as part of an integrated package. ### This page was last reviewed/modified on April 28, 2008. Page 1 of 1 DHS: DHS Announces New Aviation Security and Traveler Screening Enhancements 4/29/2008 http://www.dhs.gov/xnews/releases/pr_1209396910434.shtm Remarks by Homeland Security Secretary Michael Chertoff on Aviation Security and Traveler Screening Enhancements Release Date: April 28, 2008 For Immediate Release Office of the Press Secretary Contact 202-282-8010 Baltimore, Md. Secretary Chertoff: Good morning, everybody. I'm joined here by Kip Hawley and by a number of our Transportation Security officers at Checkpoint Evolution, and I think we've got the opportunity today to announce some very significant changes, what I would call the next generation of how we're going to be dealing with airport security. Obviously, we've done an awful lot since September 11th in the area of airport security. All of us remember that day and the shock and horror of what 19 hijackers were able to accomplish by taking control of aircraft. That of course was the culmination of a long history of hijackings, bombs on aircraft, that have made the aviation sector a prime target for terrorism for as long as most of us can remember. Nowadays we have dozens of layers of security that protect the traveling public, including 100 percent screening of passengers and bags, new explosives detection technology, substantial numbers of federal air marshals, armed pilots, behavioral detection, officers working as part of TSA, and a host of other measures seen and unseen. And impressively, we've implemented these measures while managing the flow of approximately 2 million domestic air travelers every single day. That reflects our philosophy, which is to balance tough, strong security with making sure that we have efficient and free travel. Now some people may wonder if we still have the kind of threat to aviation that we had on September 11th. If you doubt it, I suggest you follow what's being reported in the news in a trial underway in London where several individuals are being tried for their role in a plot in August 2006 to blow up multiple transatlantic aircraft bound for the United States. I think you'll remember when that plot was disrupted about 18 months ago. We were not able to explain in great detail why we were taking the steps to reconfigure our requirement by reducing the size of liquids to be brought on airplanes and taking other measures to beef up airport security. But now we are finally able to talk about the details of that plot, and those details are chilling. The terrorists intended to take sealed sports drink bottles, insert syringes in, drain out the liquids in the bottles and then put in the place of those liquids, liquid explosives, whereupon they would then glue the bottom of the bottle. By all appearances, these bottles would look as if they were untouched, unopened, straight-off-the-shelf sports drinks. Instead, they would have had a lethal cocktail inside. The terrorists planned to detonate these bottles by assembling them with detonators when the aircraft were midway over the Atlantic. A diabolical element of the scheme was that they were going to wait until it was too far away for the aircraft to begin to turn home to try to find safety. So that as each aircraft blew up over the Atlantic, the crews and perhaps even the passengers in the remaining aircraft would be left to wonder whether they would be next. I want you to reflect for a moment on how truly chilling and inhumane it is to visit this kind of terror on people. As you will recall, to the great credit of the men and women of TSA, starting with Kip Hawley himself, and because of the great cooperation of the traveling public, we were able to quickly implement new screening protocols and restrictions to make sure that the threat that was disrupted on August 2008 -- I'm sorry, August Page 1 of 6 DHS: Remarks by Homeland Security Secretary Michael Chertoff on Aviation Security a... 4/29/2008 http://www.dhs.gov/xnews/releases/pr_1209473895546.shtm 2006 -- could not be carried out anyplace else. We learned a lot from the experience in August of 2006, as well as what we've learned over the past five years plus of TSA operations. And so about five or six months ago, I said to Assistant Secretary Hawley, let's step back, let's take a look at everything we've done over the past several years in the area of aviation security, and let's see if we can reconfigure the system to take security to a new level but also to take convenience to a new level, to eliminate some of the persistent irritations that are a constant source of complaint and a constant source of hassle for the traveling public. And so what we're going to announce today and what you're going to see here at this terminal in BWI and hopefully in other airports in the next few weeks, is the product of the study that we've undertaken over this past six months, a process that I think is going to be a dramatic improvement in the experience for travelers, and perhaps more important, a significant continued improvement in the security for those passengers as we continue to make sure that our aviation experience remains secure and as low-hassle as possible. Let me begin by describing this process as you would experience it from the time you begin your journey going forward. Everybody knows the first step of the journey is you've got to get your boarding pass. And here we're going to take aim at what has been a major source of frustration for travelers over the last several years. Those travelers who happen to share a name with somebody who is on a watch list, and who have for that reason been unable to get their boarding pass over the Internet or their boarding pass at kiosk, but have been forced instead to wait online in order to get clearance from the airport official and get their boarding pass so they can go to the gate. The problem here has been that we've had a misidentification or a false positive issue when people share a name with somebody who is rightfully on a watch list as a selectee. And so by studying the problem and asking whether there would be a way to avoid the problem going forward, we have reconfigured our system for dealing with watch listed so that effective today, we're giving airlines the flexibility to verify and store some additional biographic data, namely, a person's date of birth, so that a traveler will then be able to get his or her boarding pass at the kiosk or at home even if their name matches the name of a selectee, just the same way that everybody else is. Let me be very clear about this. The way this process is going to work is this. If you are a traveler who has had problems in the past because your name appears on a watch list or is identical to the name of somebody who is rightfully on a watch list, if you're a traveler like that, you have had the experience every time you go to the airport of being told you cannot get your boarding pass like everybody else. You've got to go to the counter. You've got to work with the airline in order to get permission to get the boarding pass. What will happen now is, the next time you go to the airport for a particular airline and you go to the ticket counter, if the airline chooses, they will be able to offer you the opportunity to supply your date of birth. And if you supply that date of birth, they will be able to enter it into their own data fields, and from that time forth, any time you use that airline, you will be able to go straight to the kiosk or go to a home computer and get your boarding pass printed without having to go back to that counter ever again. Now it's going to require you to do this one airline at a time. But what it will do is it will remove virtually 100 percent of the false positives that people have experienced in the past, a major hassle which I think has been frankly a major source of complaint. To give you some idea, by the way, of the dimensions of this problem, one major air carrier has reported roughly 9,000 false positives every day. If this change is put into effect by that airline, the number of false positives will be reduced to about zero. Moreover, I want to emphasize that because of the passenger working directly with the airline and supplying the information to the airline, the government will not be acquiring the information, will not be part of the process. This is going to be a totally private arrangement which will allow people to reduce a major hassle with traveling. All right. Now you've got your boarding pass. The next thing is you've got to go into the airport, you've got to go through the security screening process, and you've got to get to the checkpoint. And so the second change we're enacting today has to do with the kinds of documents we're going to accept at the checkpoint. Today we're announcing identification standards for airports to give travelers greater clarity about what documents are going to be accepted at the checkpoint. Now, look. As we've said over and over again, we need to know who's getting on airplanes. That's the whole purpose of having a watch list, so that a known Page 2 of 6 DHS: Remarks by Homeland Security Secretary Michael Chertoff on Aviation Security a... 4/29/2008 http://www.dhs.gov/xnews/releases/pr_1209473895546.shtm terrorist can't get on an airplane. And that means we have to have a high degree of confidence that the document being presented as identification accurately reflects the identity of the person who is presenting the document. That's a matter of common sense. If you're going to ask for ID, it ought to be accurate ID. Now, the good news is, because we've had every state do what needs to be done under the Real ID act, the kinds of identification that people commonly use will be acceptable for purposes of document checking at the airport. That means a U.S. federal or state-issued federal ID like a driver's license, passport, pass card, single type of government identification, so long as it includes a name, a date of birth, gender, expiration date and certain kinds of tamper-resistant features. Much like our efforts to narrow the list of acceptable documents at our land, sea and airports of entry, by setting these identification standards, we're going to give our document checkers a smaller number of documents to work with, more clarity with respect to what they have to be prepared to inspect and evaluate, and it will also allow the traveling public to have a better sense of what will work efficiently at the airport. This is ultimately going to lead to aligning all of their document requirements across all of what DHS does in a way that will make it clear, manageable and efficient for the traveler as well as for those people who have the responsibility of security. We're going to have documentation out there, is something on the website now that's going to explain exactly what kinds of documents will be required. They are documents that the very, very great majority of people ordinarily carry with them and present at the airport like a driver's license or, for example, a passport. For those people who, you know, forget their identification or wind up with the wrong identification as we roll this out, that doesn't mean you're not going to be able get on your airplane. We'll work with you to make sure that we can identify you and make sure that we can counsel you so you understand what you need to have next time. We're going to make this as painless an experience as possible, and as we work our way through it, I think in the end it's going to be more efficient for everybody. Finally, we come to the checkpoint itself, and here I'm going to invite you when we're done with this, if you'll leave your cameras behind, to actually experience the checkpoint yourselves as you would as a passenger. I think what you'll see is it's a dramatic improvement in the experience. What you probably won't see, but is even more important is, it's a dramatic benefit to the screening officers by allowing them better visibility into what you're carrying with you, what you've got on your person, and a better way to determine whether any of those items are a potential threat. Under the old system, in fact currently at most airports, everybody who has been through the checkpoint knows it is not a relaxing experience. In fact, during peak travel periods, the checkpoint can be noisy, it can be congested, it can involve travelers with different levels of experience, some of whom are very efficient and know what they're doing, and some of whom frankly are a little bit confused and may be alarmed about the experience that they're undertaking. There's background noise. There's a natural stress level. All of these things not only make it uncomfortable for travelers, but they make it harder for our screening officers to detect those people who are behaving in a suspicious way, not because they're just upset or nervous or anxious, but because they've got some particular bad purpose in mind that they're trying to conceal. Additionally, our current checkpoints tend to be rigid and inflexible, which makes it difficult to upgrade and include new technology. It makes it difficult to build randomness into the process, and it also makes it hard to adjust for changes in traffic flow. For all of these reasons, in order to calm down the area, make it easier for people to move around while maintaining a comparative degree of lower anxiety, to make it easier for all behavioral detection officers to identify those people who really are anxious and stressed because of some nefarious purpose, and to make it easier to adapt and employ new technology, we're unveiling what we call Checkpoint Evolution. As you walk through the checkpoint, you're going to see a number of things. First, we've invested in some new cutting-edge technology that will noticeably improve our ability to identify dangerous items, specifically explosives. Our new checkpoint features multi-view X-ray, which will give our Transportation Security officers a clear, more detailed look at what's in carry-on baggage, and therefore make it quicker to go through because Page 3 of 6 DHS: Remarks by Homeland Security Secretary Michael Chertoff on Aviation Security a... 4/29/2008 http://www.dhs.gov/xnews/releases/pr_1209473895546.shtm fewer actually manual baggage checks will be required. And those of you who choose to go through the process, we'll take you around the back. Again, no photographs. We will show you the image on the X-ray screen, and you will see it is much better than what you will have recalled seeing under the old system, which was a little bit blurry and grainy. So that's a big step forward. Another thing the checkpoint uses is whole body imaging, known as WBI, which includes Millimeter Wave technology. This technology allows us to detect any item concealed on a person's body, including made with plastic, hidden under clothing, and detect it quickly with minimal intrusion. To protect privacy, our officers will view the images from a remote location, and the facial features will be blurred and the images deleted from the system once they have been reviewed. Passengers will also be offered the opportunity to opt out of this screening and go through a traditional pat down if they want, but our experience shows that a majority, a vast majority of people actually want the new technology. When we tested in Phoenix, about 90 percent chose the machine over the pat down. I went through it myself, and then I got to look at myself on the image in the back room. My face was obscured. I didn't feel my privacy was invaded. It happened to be quite accurate. So I think it works pretty well. The second thing you notice as you go through the checkpoint is just the general ambiance of the environment. We have an automated system for scan and return, so there's a continuous flow of baggage through the X-ray instead of the current system where the line always seem to start and stop in fits. You'll see that we've provided our officers with wireless radio headsets so they can communicate without yelling over the checkpoint. We've added lighting, music and signage, and open space that's ergonomically designed to allow people to unpack their bags or unpack their jackets at their own rate. Those who are very efficient and more experienced don't have to wait behind those who are slow, and those who are slow don't have to feel somebody breathing down their neck as they are working to comply with the requirements. These improvements aren't merely cosmetic. They have a real security benefit, because by calming things down, we allow officers to interact with passengers in a way that lowers the general stress level. And that allows, again, those with reason to be anxious, to become more obvious to the behavioral detection officers, who are constantly monitoring to see whether there are people out there at whom we ought to take a closer look. And that brings us to the third major area of improvement, which I've already alluded to, which is the human element of behavior detection. Transportation Security Officers here at BWI are the first in the nation to have completed a new 16-hour training module in the latest intelligence with more improvised explosive device detection skills and passenger interaction techniques. Supplementing their efforts, we have deployed behavior detection officers who have been specially trained to look for passengers who exhibit unusual signs of stress, fear or deception, including involuntary signs. And that's why common -- the majority of travelers allows the people with something to hide to stand out a little bit more, and that makes the job for our behavior detection officers somewhat easier than it otherwise would be. If you wonder whether this behavior detection works, let me tell you what happened on April 1st where an individual was arrested in Orlando when they attempted to check a bag filled with bomb parts. The behavior detection officer spotted this person at the ticket counter, and they were arrested before they reached the checkpoint and before their bag actually had to go through the ordinary luggage in-line screening process. So, all these improvements, not only individually but taken together, create an integrated system that reinforces our layered security approach. I think what it's going to do is reduce a lot of the hassle. It's going to address a lot of the complaints that we've heard. It's going to do so not only without a cost to security, but actually adding a real benefit to security. It's a kind of a down payment on a principle that I think we've used in the department over the last several years, which is to be willing to always stand back, look at what we do, not assume that what we're doing is necessarily the best way to do it, but then really to revisit it, break the mold, think outside the box, and when we're persuaded there's a better way to do things, go and do things in that better way. One of the great contributors to this process, let me say by way of conclusion, are the passengers themselves and the travelers themselves. When I heard from people about the experiences they've had at the airport, when Kip has heard from them, when the new TSA website and blog site has received this kind of input, we don't just ignore it. We don't brush it off. What we do is we take it on board and we use it as part of the process Page 4 of 6 DHS: Remarks by Homeland Security Secretary Michael Chertoff on Aviation Security a... 4/29/2008 http://www.dhs.gov/xnews/releases/pr_1209473895546.shtm of challenging our thinking and see whether there are better ways to do things. So I want to continue to encourage the traveling public to give us their support and cooperation, and also give us their constructive criticism. If there are things you think we can you do better, we're always ready to go back and do further retooling. If there are things you like, that's good. It's important for us to know that. In the end, we're all in it together. We all want the same thing. We want travelers to get on that plane as quickly as possible, and, you know, we don't control the whole airline experience, and there's a lot of it that's out of our hands. But the part of it that we do control, we would like to make it as pleasant as possible, and we're committed to doing it. But most important, we're committed to making sure that as far as it's in our control, you get where you're going safe and sound at the end of your trip. With that, I'd be pleased to take some questions. Yes? Question: When do you expect to see this kind of a setup in every airport? What's your rollout? Secretary Chertoff: Well, Kip, I don't know, every airport, when do you think? Question: Or talk or describe what the rollout procedure is. Administrator Hawley: Sure. The rollout is going to be with the different pieces, like the employee training, the 16 hours the Secretary mentioned, that will be rolled out across the country this year. The AT X-Ray will also be rolled out. We'll have 600 of the units deployed by the end of the year. And then some of the other things which are shared costs with the airport will be done on a case-by-case basis. But the principles the Secretary mentioned will be across the country this year. Secretary Chertoff: Yes? Question: Which airlines are currently participating in the watch list revisions? Secretary Chertoff: We have just really in the last day opened this opportunity, so I think every -- all the airlines are going to obviously want to understand exactly how it works. They're going to have to evaluate their internal data management system. Some of them may use their Frequent Flyer systems as the platform. So I believe we're going to have to wait for a few weeks to be able to let you know. Question: What kind of response have you gotten from the airlines? Administrator Hawley: Well, very supportive, because the airlines, they're their passengers as well, and this is a major pain point. So working together with them, we expect this to work well and quickly. Secretary Chertoff: Yeah? Question: The total cost and how much does each cost? Administrator Hawley: The equipment breaks down for the AT X-ray and the Millimeter Wave are costs that the government takes. The stuff you see in terms of the lights and the cue arrangements are typically footed by the airport itself. So, roughly for this one I'd say in the $300,000 range. Question: For everything -- it's the total? Administrator Hawley: For the total. Secretary Chertoff: Yeah? Question: Why did you choose this airport? Secretary Chertoff: It's close. It was easy to be involved in the process and have kind of hands-on monitoring to make sure it worked very well. It's a nice terminal. Administrator Hawley: They've been a great partner. Secretary Chertoff: And they've been a great partner. I mean, they've really stepped up. I mean, as Kip said, they -- obviously, it's not something we alone do. We have to do it in partnership with the airport, and the airport authority here was very, very helpful. Page 5 of 6 DHS: Remarks by Homeland Security Secretary Michael Chertoff on Aviation Security a... 4/29/2008 http://www.dhs.gov/xnews/releases/pr_1209473895546.shtm Question: This is not something that obviously travelers will see -- this will take years for checkpoints like this, to see this lighting and all that stuff. And the Millimeter and all that, that'll take years. Administrator Hawley: You'll have to wait for the mood lighting. You won't have to wait for the security that comes with the officers' training and the technology that will be deployed across the country. Moderator: Any other questions? Question: You had the automatic explosive detection scanner tested here in October with much fanfare, and I understand that's not being rolled out now. It had -- tested here. How are we to know that this isn't just another, you know, dog and pony show and then later on we find out in a few months it's not going to pan out? Secretary Chertoff: Well, first of all, you know, let me say, I really take issue with dog and pony show. Question: Sorry. Secretary Chertoff: You know, we do test various things, and sometimes they work and sometimes they don't work. We have tested this in Phoenix and it worked very well. As far as the other system, I'll let Kip answer. Administrator Hawley: Sure. The auto EDS is a great system and we're using it in some places. It is considerably more expensive, so in order to hit 600 lanes across the country by the end of the year, the AT technology has a very high performance level and is significantly cheaper. But we are still interested in EDS going forward. Question: Okay. What's the cost difference with the AT technology versus EDS? Administrator Hawley: We'll have to get back to you, but it's I would say in the range of three to one. Moderator: Any final questions? Question: Yes. The body imaging. Will we be able to see that? Will we be able to see what the officer sees? Secretary Chertoff: Yeah. No cameras. You can't film it, but you'll be able to see yourself. It will be really thrilling, I'm sure. You'll be able to see yourself as the officer behind would see you. Moderator: Take a final question here, please. Question: When you tested it -- or was it 100 percent? Administrator Hawley: For the Millimeter Wave, we have our own team that goes through and tests the tolerances of it. So we're very, very satisfied that it is highly effective, which is why we've deployed it here. Question: (Inaudible.) Administrator Hawley: We don't get into the exact statistics, but it is highly effective, and we've tested it every way you can imagine. Moderator: Thanks very much, everyone. ### This page was last reviewed/modified on April 28, 2008. Page 6 of 6 DHS: Remarks by Homeland Security Secretary Michael Chertoff on Aviation Security a... 4/29/2008 http://www.dhs.gov/xnews/releases/pr_1209473895546.shtm http://www.Dr-Immigration.com/news/shownews.asp?newsID=83 Sat, 7 Mar 2009 20:34:09 EST U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Washington, DC 20529 HQ DOMO 70/6.1 AFM Update AD07-04 Memorandum TO: Field Leadership FROM: Donald Neufeld /s/ Acting Associate Director, Domestic Operations SUBJECT: Revised Guidance for the Child Status Protection Act (CSPA) AFM Update: Chapter 21.2(e) The Child Status Protection Act of 2002 (CSPA) (AD07-04) 1. Purpose This guidance significantly modifies a prior interpretation of certain provisions of the CSPA. In particular, it changes how the agency interprets the statute to apply to aliens who aged out prior to the enactment date of the CSPA. It also permits those individuals who were ineligible under the prior policy to file a new application for permanent residence. Under certain circumstances, this guidance also permits those individuals who were previously denied for CSPA to file motions to reopen or reconsider without filing fee. It also explains what steps certain aliens who do not automatically benefit from the CSPA can take to protect their status as a child. This guidance contained in the AFM update below replaces the following two memoranda: The Child Status Protection Act, issued September 20, 2002; and The Child Status Protection Act Memorandum Number 2, issued February 14, 2003 Memorandum for Field Leadership, et al. Subject: AFM Update: Chapter 21.2(e) The Child Status Protection Act of 2002 (CSPA) (AD07-04) Page 2 www.uscis.gov This guidance does NOT affect: Form I-539 adjudications for V status; or The memorandum, Clarification of Aging Out Provisions as They Affect Preference Relatives and Immediate Family Members Under the Child Status Protection Act Section 6 and Form I-539 Adjudications for V Status, issued June 14, 2006 2. Field Guidance and AFM Update Accordingly, AFM chapter 21.2(e) is revised in its entirety to read as follows: (e) The Child Status Protection Act of 2002 (CSPA) The CSPA amended the Immigration and Nationality Act (Act) to permit an applicant for certain immigration benefits to retain classification as a child under the Act, even if he or she has reached the age of 21. The CSPA added section 201(f) for applicants seeking to qualify as Immediate Relatives and section 203(h) for applicants seeking to benefit under a preference category, including derivative beneficiaries. (1) CSPA Coverage (i) Adjustment as an Immediate Relative (IR). The CSPA amended section 201(f) of the Act to fix the age of an alien beneficiary on the occurrence of a specific event (e.g. filing a petition). If the alien beneficiary is under the age of 21 on the date of that event, the alien will not age out and continue to be eligible for permanent residence as an IR. It does not matter whether the alien reaches the age of 21 before or after the enactment date of the CSPA, when the petition was filed, or how long the alien took after petition approval to apply for permanent residence provided the alien did not have a final decision prior to August 6, 2002 on an application for permanent residence based on the immigrant visa petition upon which the alien claims to be a child. (A) Petition Initially Filed as Immediate Relative (IR) Child. If an alien is seeking to adjust status on the basis of being the beneficiary of an approved petition for classification as an IR (or IR self-petitioner under VAWA) and the petition was initially filed for classification as an IR, then the aliens age for CSPA purposes is the age of the alien on the date on which the petition for classification as an IR (or IR self-petitioner under VAWA) was filed. If the alien was under the age of 21 at the time a petition was filed on his or her behalf for classification as an IR (or IR self-petitioner under VAWA), the alien will not age out. Memorandum for Field Leadership, et al. Subject: AFM Update: Chapter 21.2(e) The Child Status Protection Act of 2002 (CSPA) (AD07-04) Page 3 www.uscis.gov For an IR self-petitioner under VAWA, officers are to follow the guidance (except footnote 1 and 2 relating to the retroactivity of the CSPA) issued August 17, 2004 entitled Age-Out Protections Afforded Battered Children Pursuant to the Child Status Protection Act and the Victims of Trafficking and Violence Protection Act. (B) Petition Initially Filed as Child of a Lawful Permanent Resident (LPR). If an alien is seeking to adjust status on the basis of being an immediate relative child, and the petition serving as the basis for the adjustment was first filed for classification as a family-sponsored immigrant based on the parent being a lawful permanent resident and the petition was later converted, due to the naturalization of the parent, to a petition to classify the alien as an IR, then the age of the alien on the date of the parents naturalization is the aliens age for CSPA purposes. If the alien was under the age of 21 on the date of the petitioning parents naturalization, the alien will not age out. (C) Petition Initially Filed as Married Son or Daughter of a U.S. Citizen (USC). If an alien is seeking to adjust as an immediate relative child, and the petition serving as the basis for such adjustment was first filed for classification as a married son or daughter of a U.S. citizen, but the petition was later converted, due to the legal termination of the aliens marriage, to a petition to classify the alien as an immediate relative, then the age of the alien on the date of the termination of the marriage is the aliens age for CSPA purposes. If the alien was under the age of 21 on the date of the termination of the marriage, the alien will not age out. (ii) Adjustment Under a Preference Category. The beneficiarys CSPA age is determined using the formula below. If the petition is approved and the priority date becomes current before the aliens CSPA age reaches 21, then a one-year period begins during which the alien must apply for permanent residence in order for CSPA coverage to continue. It does not matter if the alien aged out before or after the enactment date of the CSPA, so long as the petition is filed before the child reaches the age of 21 provided the alien did not have a final decision prior to August 6, 2002 on an application for permanent residence based on the immigrant visa petition upon which the alien claims to be a child. (A) CSPA Age Formula. Determine the age of the alien on the date that a visa number becomes available. The date that a visa becomes available is the later of (a) the first day of the month of the Department of State (DOS) Visa Bulletin, which indicates availability of a visa for that preference category or (b) the petition approval date if a visa Memorandum for Field Leadership, et al. Subject: AFM Update: Chapter 21.2(e) The Child Status Protection Act of 2002 (CSPA) (AD07-04) Page 4 www.uscis.gov number is already available on the approval date. Subtract the number of days the petition was pending as described in paragraphs (B), (C) and (D) below. This is the alien beneficiarys CSPA age. If the alien beneficiarys CSPA age is under 21, he or she remains a child for purposes of the application for permanent residence provided the beneficiary properly applies for permanent residence, based on the subject petition, within one year of visa availability and notwithstanding the aliens CSPA age on the date of adjudication of such application. (B) Direct Beneficiaries. The number of days that a petition is pending is the number of days between the date that it is properly filed (receipt date) and the date an approval is issued on the petition, including any period of administrative review. In the case of a petition where adjustment is sought as the child of an LPR (F2A) and it is determined that the age of the beneficiary is over the age of 21 for CSPA purposes, if the petitioner naturalizes then the petition is to be automatically converted to the appropriate first or third family preference category for that petitioner and beneficiary (so long as marriage occurred after the naturalization of the petitioner). The beneficiary will retain the priority date in this case. (C) Derivative Beneficiaries Family and Employment-Based. The number of days that a petition is pending is the number of days between the date that the petition is properly filed (Form I-140 is considered properly filed on the receipt date and not priority date) and the date an approval is issued on the petition, including any period of administrative review. If the petition was approved and the priority date becomes current before the childs CSPA age reaches 21, the alien must, within one year of the visa availability date, apply for adjustment of status, an immigrant visa, or be the beneficiary of an I-824 in order for the CSPA coverage to continue. Note: An alien may benefit from the CSPA if the alien sought to acquire the status of an LPR within one year of visa number availability. USCIS has determined that an alien has sought to acquire permanent residence if he or she files an application for adjustment of status or an immigrant visa, or is the beneficiary of an I-824 within one year of the immigration petition approval date (or visa becoming available subsequent to petition approval date, whichever is later). Adjudicators are reminded that an I-824 can be concurrently filed with Form I-485 Application To Register Permanent Residence or Adjust Status. A previously filed I-824 that was denied because the principal alien's adjustment of status application had not yet been approved can serve as evidence of having sought to acquire LPR Memorandum for Field Leadership, et al. Subject: AFM Update: Chapter 21.2(e) The Child Status Protection Act of 2002 (CSPA) (AD07-04) Page 5 www.uscis.gov status. USCIS has made this determination because the CSPA language requires the alien to have sought to acquire LPR status subsequent to visa availability, which is a product of visa petition approval. Consequently, neither a labor certification nor a visa petition will satisfy the sought to acquire LPR status requirement because these actions are an integral part of the visa petition approval process and will necessarily precede visa availability. (D) Derivative Diversity Visa (DV) Applicants. For the purpose of determining the period during which the petition is pending, officers should use the period between the first day of the DV mail-in application period for the program year in which the principal alien has qualified and the date on the letter notifying the principal alien that his/her application has been selected (the congratulatory letter). That period should then be subtracted from the derivative aliens age on the date the visa became available to the principal alien. (2) CSPA Coverage for Specific Aliens Not Covered Under Previous Guidance (i) Limited CSPA Coverage for K4 Aliens. The CSPA does not apply to aliens obtaining K2 or K4 nonimmigrant visas or extensions. An alien in K4 status may utilize the CSPA upon seeking adjustment of status because a K4 alien seeks to adjust as an IR on the basis of an approved Form I-130, which is filed under section 204 of the Act. This is because the USC petitioner who filed the nonimmigrant visa petition on behalf of the K3 parent must file a Form I-130 on behalf of the K4 alien before the K4 seeks to adjust status pursuant to 8 CFR 245.1(i). This necessarily requires the existence of a parent-child relationship between the USC and the K4 alien. Accordingly, the CSPA should be applied to K4 applicants as described in paragraph 21.2(e)(1)(i). (ii) Limited CSPA Coverage Option for K2 Aliens. An alien in K2 status does not have a visa petition filed on his or her behalf under section 204. Consequently, a K2 alien cannot utilize the CSPA when seeking to adjust status. Although not required, USCIS may accept a Form I-130 filed by the USC petitioner based on a parent-child relationship between the USC petitioner and the K2 alien (e.g. where the USC petitioner has married the K1 and K2 is not yet 18 years old). This will allow an alien who once was a K2 to adjust on the basis of a petition filed under section 204 of the Act and will allow him/her to utilize the CSPA when seeking to adjust status in some cases. Exercising this option requires: (1) an existing parent-child relationship between the USC petitioner and the K2 alien, and (2) paying the requisite Memorandum for Field Leadership, et al. Subject: AFM Update: Chapter 21.2(e) The Child Status Protection Act of 2002 (CSPA) (AD07-04) Page 6 www.uscis.gov fees associated with Forms I-130 and I-485, Application To Register Permanent Residence or Adjust Status. This guidance does not create a petitionable relationship for K2s or K4s where none exists. (iii) CSPA coverage for preference aliens who did not have an application for permanent residence pending on August 6, 2002 and who subsequently filed an application for permanent residence that was denied solely because he or she aged out. An alien on behalf of whom a visa petition had been approved prior to August 6, 2002 and who filed an application for adjustment of status after August 6, 2002 may file a motion to reopen or reconsider without filing fee if: (a) the alien would have been considered under the age of 21 under applicable CSPA rules; (b) the alien applied for permanent residence within one year of visa availability; and (c) the alien received a denial solely because he or she aged out. (iv) CSPA coverage for preference aliens who did not have an application for permanent residence pending on August 6, 2002 and did not subsequently apply for permanent residence. An alien whose visa became available (as defined in paragraph 21.2(e)(1)(ii)(A)) on or after August 7, 2001 who did not apply for permanent residence within one year of the petition approval and visa availability, but would have qualified for CSPA coverage had he or she applied but for prior policy guidance concerning the CSPA effective date, may apply for permanent residence. (3) CSPA Section 6 Opting-Out Provisions. Beneficiaries of 2nd preference I-130 petitions that were automatically converted to family first preference upon the petitioning parents naturalization may exercise the opt-out provision of section 6 even if the petition in question was originally filed in the F2A category but has now converted to F2B. Aliens seeking to utilize this opt-out provision should file a request in writing with the District Office having jurisdiction over the beneficiarys residence. Adjudicators do not need to determine the age of the alien when a section 6 opt-out request is received. (4) Visa Availability Date Regression. If a visa availability date regresses, and an alien has already filed a Form I-485 based on an approved Form I-130 or Form I-140, the officer should retain the Form I-485 and note the date a visa number first became available. Once the visa number again becomes available for that preference category, determine whether the beneficiary is a child under paragraph 21.2(e)(1)(ii) using the visa availability date marked on the Form I-485, as long as the I-485 was filed within one year of that visa availability date. If, however, an alien did not file a Form I-485 prior to the visa availability date regressing, and then files a Form I-485 within one year of when the visa Memorandum for Field Leadership, et al. Subject: AFM Update: Chapter 21.2(e) The Child Status Protection Act of 2002 (CSPA) (AD07-04) Page 7 www.uscis.gov availability date again becomes current, the aliens CSPA age is determined using the subsequent visa availability date. (5) Inapplicability of the CSPA. The CSPA applies only to those immigrant visas expressly specified in the statute. Nothing in the CSPA provides protection for nonimmigrant visas (e.g. K or V), NACARA, HRIFA, Family Unity, Cuban Adjustment Act, and Special Immigrant Juvenile applicants and/or derivatives not specifically provided in the CSPA. This list is not exhaustive. 3. Contact Information Questions regarding the guidance contained in this memorandum should be directed to Fred Ongcapin, Domestic Operations Directorate and Andrew Perry, Office of Policy and Strategy through the appropriate supervisory channels. 4. Use This memorandum is intended solely for the guidance of USCIS personnel in performing their duties relative to adjudications of applications. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. Memorandum for Field Leadership, et al. Subject: AFM Update: Chapter 21.2(e) The Child Status Protection Act of 2002 (CSPA) (AD07-04) Page 8 www.uscis.gov Appendix The following examples reflect how the guidance would be applied to some specific scenarios. a. Form I-129F was approved and the K1 entered the country with a K2 who was then 17. The marriage between the K1 and USC petitioner occurred within 90 days and before the childs 18th birthday. The USC petitioner then files an I-130 on behalf of the K2 when the K2 is 20 years old. Consequently the K2 would be treated as if he or she is an immediate relative for CSPA purposes and his or her eligibility for permanent residence would be 20, the beneficiarys age on the date the form I-130 was filed on his or her behalf. See Chapter 21.2(e)(1)(i). b. An immigrant visa petition was filed when the beneficiary was under the age of 21 and approved before August 6, 2002. After August 6, 2002, the beneficiary filed Form I-485 within one year of visa availability. USCIS determined that the CSPA did not apply because no petition or application was pending on the August 6, 2002, and the alien received a denial solely because he or she aged out. Based on this new CSPA guidance, the applicant may be eligible for CSPA benefits. The alien may file a new application for adjustment of status today. USCIS will adjudicate the current Form I-485 as if it had been filed within one year of visa availability. See Chapter 21.2(e)(2)(iii). c. An immigrant visa petition was filed when the beneficiary was under the age of 21 and subsequently approved. The beneficiary did not file Form I-485 within one year of visa availability because previous USCIS guidance indicated that they would not benefit from the CSPA. Based on this new CSPA guidance, the applicant may be eligible for CSPA benefits. The alien may file a Form I-485, and USCIS will adjudicate the Form I-485 as if it had been filed within one year of visa availability. See Chapter 21.2(e)(2)(iii), and (iv). d. An immigrant visa petition (either a Form I-130 or a Form I-140) was filed in 2000 when the derivative beneficiary was 20. When the petition was filed, the priority date for the principals classification was current. The visa petition was not approved until 2007, and a Form I-485 was filed one month after approval. The derivative beneficiarys age for CSPA purposes would be 20 (the beneficiary was 27 when the I-485 was filed, but the visa petition was pending for 7 years). This derivative beneficiary can benefit from the CSPA since he or she applied for permanent residence within one year of visa number availability. The visa availability date in this example is the immigration petition approval date. Thus, this derivative beneficiary would be able to retain classification as a child. See Chapter 21.2(e)(1)(ii)(A) and (C). Memorandum for Field Leadership, et al. Subject: AFM Update: Chapter 21.2(e) The Child Status Protection Act of 2002 (CSPA) (AD07-04) Page 9 www.uscis.gov e. An immigrant visa petition (either a Form I-130 or a Form I-140) was filed in 2000 when the derivative beneficiary was 20. The visa petition is approved exactly one year later in 2001. A visa becomes available exactly 5 years later in 2005 and the principal files an I-485 immediately. The application is approved in 2007 and the beneficiary applies for adjustment of status one month after approval of the principals application. The derivative beneficiarys age for CSPA purposes would be 24 (the beneficiary is 25 in 2005 when the visa became available, but the visa petition was pending for 1 year). Not only would this derivative beneficiary be considered over the age of 21, this beneficiary could not benefit from the provisions of the CSPA because he or she did not file a Form I-485 within one year of the principals visa becoming available. Thus, this derivative beneficiary would be unable to retain classification as a child. See Chapter 21.2(e)(1)(ii)(A) and (C). f. An immigrant visa petition (either Form I-130 or Form I-140) was filed and denied in 2000 when the derivative beneficiary was 20. The petitioner filed a timely appeal with the AAO/BIA which, in 2006, sustained the appeal, remanded the matter, and directed the petition approved (on grounds other than the new availability of the CSPA). On the date of approval, visas are available for the principals classification. The principal and derivative beneficiaries each file a Form I-485 six months later. The derivative beneficiarys age for CSPA purposes would be 20 (the beneficiary is 27 in 2007, but the Form I-140 was pending for 7 years). Thus this beneficiary would be eligible to retain classification as a child. See Chapter 21.2(e)(1)(ii)(A) and (C). g. An immigrant visa petition (either Form I-130 or a Form I-140) was filed and denied in 2000 when the beneficiary was 20. The petitioner filed a timely motion to reopen, and, in 2007, the motion to reopen is granted (on grounds other than the new availability of the CSPA). The petition is then approved and a visa is available to the beneficiary on the date of approval, and the alien files a Form I-485 nine months later. The beneficiarys age for CSPA purposes would be 20 (the beneficiary is 27 today, but the Form I-130 was pending for 7 years). Thus, this beneficiary would be eligible to retain classification as a child. See Chapter 21.2(e)(1)(ii)(A) and (B). Distribution List: Regional Directors District Directors Field Office Directors Service Center Directors National Benefits Center Director http://www.Dr-Immigration.com/news/shownews.asp?newsID=82 Sat, 7 Mar 2009 20:34:00 EST The Child Status Protection Act (CSPA) amended the Immigration Nationality Act by changing how an alien is determined to be a child for purposes of immigrant classification. The Act permits an applicant for certain benefits to retain classification as a child, even if he or she has reached the age of 21. Since its enactment on Aug. 6, 2002, USCIS provided several field guidance memoranda regarding the adjudication of immigration benefits in accordance with the CSPA. Today, USCIS has revised its guidance that modifies a prior interpretation of certain provisions of the CSPA. Questions & Answers Q: What is the Child Status Protection Act (CSPA)? A: CSPA changes who can be considered to be a "child" for the purpose of the issuance of visas by the Department of State and for purposes of adjustment of status of aliens by USCIS. The Act provides that if you are a U.S. citizen and you file a Petition for Alien Relative (Form I-130) on behalf of your child before he or she turns 21, your child will continue to be considered a child for immigration purposes even if USCIS does not act on the petition before your child turns 21. Children of lawful permanent residents also benefit if a Form I-130 is filed on behalf of their children (see below). Q: Who benefits under the new CSPA guidance? A: The new guidance allows aliens who had an approved immigrant visa petition prior to the enactment of the CSPA, but had not yet applied for permanent residence (either an application for adjustment of status or an immigrant visa) on the date of enactment to benefit from the CSPA. Under prior guidance, the CSPA did not apply to such applicants. The new guidance includes many aliens who, subsequent to the enactment of the CSPA, never filed an application for permanent residence and aliens who filed an application for permanent residence but such application was denied solely based on the applicants age. Q: Are there other considerations impacting eligibility requirements? A: Yes. The new guidance does not include aliens who, prior to Aug. 6, 2002 (date CSPA was enacted), had a final decision on an application for permanent residence based on the immigrant visa petition upon which the applicant claimed to be a child. If an alien filed an application for permanent residence after the enactment of the CSPA, and the application was denied, that denial must be solely based on a finding that the applicant was not a child because the CSPA did not apply. An I-485 can be denied for various reasons; if your I-485 denial was based for a reason other than for CSPA, then this revised CSPA guidance does not apply to you. Finally, if you had an approved immigrant visa petition before August 6, 2002, and did not file an I-485 after the enactment of the CSPA, you could still benefit if (1) you are filing as an immediate relative or (2) your visa became available on or after Aug. 7, 2001, you did not apply for permanent residence within one year of petition approval and your visa becoming available. Q: How do I know if I was denied solely based on CSPA? A: The written denial decision you received from USCIS will state the basis for the denial. Q: Will it matter whether the child reaches the age of 21 before or after the enactment date of the CSPA to benefit from this revised policy? A: No, provided the applicant did not have a final decision prior to Aug. 6, 2002 on an application for permanent residence based on an immigrant visa petition upon which the applicant claimed to be a child. Q: Please explain the differences of benefit for an immigrant petition filed by a U.S. citizen and a Lawful Permanent Resident. A: Immigrant Petition as a child filed by a U.S. citizen: If the child is under the age of 21 on the date of the filed immigrant petition, he/she will not age out. He or she will be eligible for permanent residence as an immediate relative, provided that no final decision was reached prior to Aug. 6, 2002 on an application for permanent residence based on the immigrant visa petition upon which the applicant claimed to be a child. Immigrant Petition as a child filed by a Lawful Permanent Resident: If the immigrant petition was approved and the priority date becomes current before the applicants CSPA age reaches 21, the child will not age out, provided that no final decision was reached prior to Aug. 6, 2002 on an application for permanent residence based on the immigrant visa petition upon which the applicant claimed to be a child. In order for CSPA coverage to continue, the child must apply for permanent residence within a one-year of the date the priority date became current. Q: How do I calculate my CSPA age? A: For preference category and derivative petitions, your CSPA age is determined on the date that your visa, or in the case of derivative beneficiaries, the principal aliens visa, becomes available. Your CSPA age is the result of subtracting the number of days that your immigrant visa petition was pending from your actual age on the date that your visa becomes available. If your CSPA age is under 21 after that calculation, you will remain a child for purposes of the permanent residence application. Q: If my child is a derivative of a petition filed on my behalf, can my child benefit under CSPA? A: Yes, so long as the child also meets CSPA eligibility requirements previously discussed and applies for permanent residence within one year of the priority date being current. Q: If I was previously denied because of aging out, can I file a motion to reopen or have my I-485 reconsidered? If so, is there a filing fee incurred? A: Under the new policy, USCIS will accept, without a filing fee, a motion to reopen or reconsider a denied I-485 application if the following criteria are met: A visa petition was approved prior to Aug. 6, 2002 and the I-485 was filed after Aug. 6, 2002; The applicant would have been considered under the age of 21 under applicable CSPA rules; The applicant applied for permanent residence within one year of visa availability; and The applicant received a denial solely because he or she aged out. Q: Is there a deadline for filing a motion to reconsider my I-485 if the original was denied solely for aging out? Where should I file the motion? A: No deadline. Applicants should apply at their local USCIS field office. Q: I did not have an application for permanent residence pending on Aug. 6, 2002 and did not subsequently apply for permanent residence? Am I still eligible for CSPA coverage? A: Yes, provided the applicant meets the following criteria: The applicant is applying for permanent residence as an immediate relative; or The applicants visa became available on or after Aug. 7, 2001; and The applicant did not apply for permanent residence within one year of the petition approval and visa availability, but would have qualified for CSPA coverage. http://www.Dr-Immigration.com/news/shownews.asp?newsID=81 Sat, 7 Mar 2009 20:33:52 EST Office of Communications USCIS Update May 30, 2008 USCIS MOVES LOCKBOX TO NEW SITE IN CHICAGO Private Courier Deliveries Automatically Forwarded For 90 Days - Does Not Affect U.S. Mail WASHINGTON U.S. Citizenship and Immigration Services (USCIS) moved the agency Lockbox to a new location in Chicago on May 28. While the Post Office Box address is the same, the move changes the address for deliveries by private couriers (non-USPS). The new address for deliveries by private courier is: USCIS: Attn: Please check Form Instructions for the proper Attn: information 131 South Dearborn, 3rd Floor Chicago, IL 60603-5517 Express courier services have agreed to forward packages to the new site for 90 days (until Aug. 24, 2008). During this transition period, USCIS will accept and process without delay all cases otherwise properly filed. Forms processed at the USCIS Chicago Lockbox include those associated with family-based adjustment of status, all Petitions for Alien Relative (Form I-130), and Temporary Protective Status. Filing instructions for each form are available on the USCIS web site at http://www.uscis.gov, click on immigration forms and select the form for specific instructions. USCIS http://www.Dr-Immigration.com/news/shownews.asp?newsID=80 Sat, 7 Mar 2009 20:33:43 EST U.S. Citizenship and Immigration Services (USCIS) announced today that on June 16, 2008, it will begin accepting Premium Processing Service requests for Forms I-140 (Immigrant Petition for Alien Worker) filed on behalf of certain alien workers who are nearing the end of their sixth year in H-1B nonimmigrant status. Premium Processing Service offers 15 calendar-day processing for designated employment-based petitions and applications upon request. There is a nonrefundable fee of $1000 for this service. During the 15-day period, USCIS will issue either an approval or denial notice, a notice of intent to deny, a request for evidence, or open an investigation for fraud or misrepresentation. USCIS previously designated certain classifications under Form I-140 for Premium Processing Service in the May 23, 2006 issue of the Federal Register. See 71 FR 29662. USCIS is limiting Premium Processing Service for Form I-140 petitions that are filed on behalf of aliens: Who are currently in an H-1B nonimmigrant status; Whose sixth year will end within 60 days; Who are only eligible for a further extension of H-1B nonimmigrant status under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and Who are ineligible to extend their H-1B status under section 106(a) of AC21. Section 104(c) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to three years, provided they are the beneficiary of an approved Form I-140 and an immigrant visa is not immediately available. Section 106(a) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days. For more details on Premium Processing Service for the Form I-140 petitions described in this announcement, visit the USCIS web site at http://www.uscis.gov/files/article/premiumproc_factsheet_i140_061108.pdf. More information on Premium Processing Service in general can be found on the USCIS web site at www.uscis.gov, or by calling the USCIS National Customer Service Center at (800) 375-5283. USCIS Fact Sheet June 11, 2008 USCIS OFFERS PREMIUM PROCESSING SERVICE FOR CERTAIN FORM I-140 PETITIONS STARTING JUNE 16, 2008 U.S. Citizenship and Immigration Services (USCIS) will make available Premium Processing Service for designated Form I-140 petitions1 (Immigrant Petition for Alien Worker) filed for alien workers in H-1B nonimmigrant status who are reaching the end of their sixth year in H-1B nonimmigrant status. Starting on June 16, 2008, USCIS will begin accepting Form I-907, Request for Premium Processing Service, for Forms I-140 filed for alien beneficiaries who, as of the date of filing the Form I-907: Are currently in H-1B nonimmigrant status; Will reach the 6th year of their H-1B nonimmigrant stay in 60 days; Are only eligible for a further H-1B extension under AC21 104(c)2 upon approval of their Form I-140 petition; and Are ineligible to extend their H-1B status under AC21 106(a)3. Under the Premium Processing Program, USCIS may place such conditions of availability for the service. See 8 CFR 103.2(f)(2). The petitioner must establish that the Form I-140 filed with Form I-907 satisfies these conditions. Filings that do not clearly meet the conditions may not receive Premium Processing Service and will be rejected as described below. 1 USCIS previously designated Premium Processing Service for I-140 petitions involving: EB-1 Aliens with Extraordinary Ability and EB-1, Outstanding Professors and Researchers; EB-2, Members of Professions with Advanced degrees or Exceptional ability (not seeking a National Interest Waiver), and; EB-3 Professionals, EB-3 Skilled Workers and EB-3, Other workers. See 71 FR 29662 (May 23, 2006). 2 The Public Law known as the American Competitiveness in the Twenty-first Century Act of 2000 (AC 21) permits up to a three-year extension of stay for an H-1B nonimmigrant alien, provided he or she is the beneficiary of an approved Form I-140 petition and otherwise eligible for lawful permanent resident status except that the employment-based preference visa is unavailable. 3 USCIS grants an H-1B extension of stay pursuant to 106(a) of AC21, in one-year increments, until such time as a final decision has been made to: A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification; B. Deny the EB immigrant petition, or C. Grant or deny the aliens application for an immigrant visa or for adjustment of status. To facilitate USCISs determination of whether a particular filing meets the conditions, petitioners can submit: 1. A copy of the alien beneficiarys Form I-94, Arrival/Departure Record, reflecting current H-1B nonimmigrant status; 2. Copies of all Forms I-94, Arrival/Departure Record and I-797 H-1B or L approval notices that have been issued on his or her behalf; 3. A copy of the relating Form I-140 petition receipt notice, if the Form I-140 was previously filed; and, 4. A copy of the labor certification approval letter issued by the Department of Labor, if filing under EB-2 or EB-3 classifications. Form I-907 Premium Processing Service requests will be rejected and returned with the I-907 fee, and the Form I-140 petition will be processed according to standard procedures if the Form I-907 is: Submitted without documentation establishing the conditions for availability noted above; or Incorrectly submitted concurrently with a Form I-140 petition at a USCIS office without geographic jurisdiction over the Form I-140 petition; or Submitted to request Premium Processing Service for a Form I-140 petition filed for an alien beneficiary who is eligible to extend his or her H-1B nonimmigrant status under AC21 106(a) as of the date that the Form I-907 is received by USCIS. USCIS will accept Form I-907 either together with the Form I-140 petition or after the filing of the Form I-140 petition through the mail or delivery service only. E-filing for Form I-907 will not be available. USCIS expects that adding other classifications to Premium Processing Service at this time would exceed USCIS capacity to provide timely Premium Process Service. USCIS will continue to evaluate whether it is able to process other groups of cases beyond this limited classification of petitions and will provide notification of any further availability of Premium Processing Service for Form I-140 at www.uscis.gov. The Premium Processing Service guarantees petitioners that, within 15 calendar days of receipt of a petition, USCIS will either issue an approval or denial notice, a notice of intent to deny, a request for evidence, or a notice of investigation for fraud or misrepresentation. Information about Premium Processing Service is available on the USCIS website at www.uscis.gov or by calling the USCIS National Customer Service Center toll free at 1-800-375-5283. USCIS http://www.Dr-Immigration.com/news/shownews.asp?newsID=79 Sat, 7 Mar 2009 20:33:23 EST News Releases May 20, 2008 operation in Iowa WATERLOO, Iowa - U.S. Attorney Matt M. Dummermuth announced today that 85 defendants pleaded guilty and were sentenced Monday on federal felony charges. They were among the 389 illegal aliens arrested by U.S. Immigration and Customs Enforcement (ICE) May 12 at Agriprocessors Inc. in Postville, Iowa. Criminal proceedings began at 8 a.m. Monday and concluded about 8:30 p.m. "This is the greatest number of defendants ever to plead guilty and be sentenced in one day in the Northern District of Iowa," said Dummermuth. "Because of a special early disposition program approved by the Department of Justice, we have been able to handle this large volume of cases in a relatively short period of time." "Close collaboration with the U.S. Attorney's office and our partner law enforcement agencies resulted in a highly successful operation," said Claude Arnold, special agent in charge of the ICE Office of Investigations in Bloomington, Minn. "To maintain the integrity of our legal immigration system, ICE is committed to enforcing the nation's immigration laws in the workplace." Seventy-seven defendants were sentenced to prison after pleading guilty to using a false identification document to obtain employment and admitted they fraudulently used the identity of an actual person. The other eight defendants were sentenced to probation after pleading guilty to using a false identification document to obtain employment but the identity did not belong to an actual person. All 85 admitted they were in the United States illegally. Those sentenced to prison received five months in prison, three years of supervised release, and face deportation following their release from prison. The other eight were sentence to five years probation and face deportation. According to a U.S. District Court website, additional hearings are scheduled through Thursday (http://www.iand.uscourts.gov/cvjschdule.nsf/by+date). Those sentenced to prison terms are being held in the custody of the U.S. Marshals Service. Those sentenced to probation will be turned over to ICE's Office of Detention and Removal Operations and placed in removal Page 1 of 2 85 sentenced for criminal offenses in one day following ICE operation in Iowa 5/21/2008 http://www.ice.gov/pi/news/newsreleases/articles/080520waterloo.htm proceedings. This was an ICE-led investigation. Other agencies assisting include: the U.S. Postal Inspection Service, the Iowa Department of Public Safety, the Iowa Department of Transportation, the FBI, the Internal Revenue Service's Criminal Investigations, and the U.S. Department of Labor. -- ICE -- Last Modified: Tuesday, May 20, 2008 U.S. Immigration and Customs Enforcement (ICE) was established in March 2003 as the largest investigative arm of the Department of Homeland Security. ICE is comprised of five integrated divisions that form a 21st century law enforcement agency with broad responsibilities for a number of key homeland security priorities. Page 2 of 2 85 sentenced for criminal offenses in one day following ICE operation in Iowa 5/21/2008 http://www.Dr-Immigration.com/news/shownews.asp?newsID=78 Sat, 7 Mar 2009 20:33:05 EST Office of Public Affairs U.S. Department of Homeland Security Page 1 of 2 www.ice.gov Ver. 10.04 May 15, 2008 Contact: ICE Public Affairs 202-514-2648 News Release 306 are criminally charged following the ICE enforcement operation in Iowa Investigation results in largest criminal worksite enforcement operation in U.S. WATERLOO, Iowa A total of 306 people who were originally arrested on administrative immigration charges on Monday at Agriprocessors Inc., in Postville, Iowa, were charged criminally on Thursday. U.S. Attorney Matt M. Dummermuth, Northern District of Iowa, announced the criminal arrest total; U.S. Immigration and Customs Enforcement (ICE) conducted the investigation and made the arrests. Based on the number of criminal arrests, this is the largest criminal worksite enforcement operation ever in the United States, said Dummermuth. Charges in complaints vary by individual and include allegations of aggravated identity theft, falsely using a Social Security number, illegally reentering the United States after being deported, and fraudulently using an alien registration card. This has been an unprecedented undertaking in nearly all respects, Dummermuth said. Since May 12, ICE agents, other law enforcement partners, and attorneys and support staff from my office have worked literally around the clock to process those administratively arrested in Postville and determine who would face criminal arrest. To have this completed within three days is phenomenal. This operation ran very smoothly thanks to the hard work and coordination of all agencies involved, said Claude Arnold, special agent in charge of the ICE Office of Investigations in Bloomington, Minn. At the same time, we worked closely with the U.S. Attorneys Office and with attorneys representing the detainees to ensure detainees rights were fully protected. Those criminally charged have received court-appointed defense attorneys and have had initial appearances in federal court. Those detained on criminal charges are being held by the U.S. Marshals Service in local jails. Status hearings in the cases have been set for next week at temporary court facilities in Waterloo, Iowa. Page 2 of 2 Arnold reiterated that Wednesday night was the last night detainees would be housed overnight in Estel Hall in Waterloo. All detainees not arrested on criminal charges will now be held in ICE custody at other locations. ICE administratively arrested 389 people on immigration charges on May 12. Of those 389, 62 were released on humanitarian grounds and 21 are being held on administrative charges. Eighteen of these 83 are juveniles (aged 13 to 17) who were released to an adult, or were turned over to the Health and Human Services Office of Refugee Resettlement. Those who do not face criminal charges will be placed into administrative immigration removal proceedings to be conducted at other locations. As with any criminal case, a charge is merely an accusation and a defendant is presumed innocent until and unless proven guilty. In addition to ICE and the U.S. Attorneys Office, Northern District of Iowa, other agencies that worked in the enforcement operation include: the U.S. Marshals Service, the U.S. Postal Inspection Service, the Iowa Department of Public Safety, the Iowa Department of Transportation, the FBI, Internal Revenue Services Criminal Investigations, the U.S. Department of Labor, the Public Health Service, the U.S. Department of Agriculture, the U.S. Environmental Protection Agency, the Waterloo Police Department, and the Postville Police Department. # ICE # U.S. Immigration and Customs Enforcement (ICE) was established in March 2003 as the largest investigative arm of the Department of Homeland Security. ICE is comprised of five integrated divisions that form a 21st century law enforcement agency with broad responsibilities for a number of key homeland security priorities. http://www.Dr-Immigration.com/news/shownews.asp?newsID=77 Sat, 7 Mar 2009 20:32:56 EST S E A R C H About CBP Newsroom Border Security Trade Travel Careers Newsroom Alerts CBP News Releases Fact Sheets Publications Commissioner Messages, Speeches and Statements Congressional Testimony Photo Gallery CBP Videos Press Officers News Highlights in Newsroom Home / Newsroom / CBP News Releases / Patience, Planning and Paperwork will Enhance Border Crossing on Memorial Day Weekend (Monday, May 19, 2008) contacts for this news release Detroit - Planning ahead for getting across the border this weekend -- the traditional start of heavy summer cross-border travel -- may spare motorists the unwanted angst of a traffic jam. That's the advice from U.S. Customs & Border Protection officials who are gearing up for the upcoming Memorial Day weekend. "Travelers are reminded that as of Jan. 31, 2008, CBP stopped accepting an oral declaration of citizenship and now all individuals entering the country have to present documentary proof of citizenship," said CBP Chief Ron Smith in Detroit. Documents that can be used to gain entry into the U.S. include official passports, passport cards, copies of birth certificates along with government-issued photo identification, enhanced driver's licenses, NEXUS or FAST cards. Those U.S. or Canadian citizens who travel without the correct paperwork will have the requirements explained to them, receive a tearsheet explaining how to become compliant with the rules and then be able to proceed into the U.S. CBP officers are still exercising discretion with those who fail to comply with the enhanced requirements in order to ensure that everyone knows what is required. Since the standards for entry were increased earlier this year, the compliance rate among travelers crossing the border has been in the 90 percent range, according to U.S. Department of Homeland Security officials. "CBP will staff inspection booths commensurate with traffic flow throughout the holiday weekend at all of our ports of entry. CBP reviews historic crossing data, monitors real-time traffic conditions and makes necessary changes in staffing based on that information, said Chief Smith. "Our goal is to facilitate the crossing process for all of our legitimate travelers while still maintaining the security of our borders." In addition to having the proper documents, planning ahead can expedite your crossing. �� Travelers should check border traffic conditions to help facilitate their crossings. �� Have travel documents ready before stopping at the inspection booth. �� Be prepared to declare merchandise purchased or acquired in Canada. �� Declare "duty-free goods", even if purchased at "duty-free" stores. �� Do not attempt to bring unauthorized fruits, meats, and dairy products into the country. �� Do not attempt to bring Cuban cigars in as they are a prohibited item. �� Even before leaving for the trip, obtain a Know Before You Go brochure available on the CBP Web page. ( Know Before You Go ) �� Dont rely on friends and shopkeepers for advice on what items "will clear inspection"; instead, obtain this information directly from U.S. Customs and Border Protection. �� Understand that, CBP officers have the authority to conduct enforcement examinations ranging from a single luggage examination up to and possibly including a personal search. see also: in CBP News Releases: U.S. Customs and Border Protection Officers Arrest Imposter in N.Y. CBP, Netherlands to Expedite International Travel Between Two Nations CBP Tracks Aircraft, Seizes $3.5 Million Worth of Cocaine with DEA, Dominican Authorities CBP Enforcement Activity Continues at Texas Ports of Entry Beagle Brigade Shows Off at First Ever Miami International Agriculture & Cattle Show Cuban Migrants Repatriated After CBP Air and Marine Has a Busy Week of Interdiction in South Florida ...more on cbp.gov: CBP News Releases Press Officers Know Before You Go on the web: Canadian Border Services Agency Page 1 of 2 Patience, Planning and Paperwork will Enhance Border Crossing on Memorial Day Week... 5/20/2008 http://www.cbp.gov/xp/cgov/newsroom/news_releases/05192008_2.xml For individuals who plan to make the trip back and forth over the bridges frequently this summer, CBP suggests that they enroll in the NEXUS program which allows prescreened, low-risk travelers to proceed with little or no delay. Applications are available on the Canadian Border Services Agency Web site at and the Customs and Border Protection web site, or by calling (866) NEXUS 26 [866-639-8726]. ( Canadian Border Services Agency ) ( Know Before You Go ) A traveler who knows how to cross the border not only facilitates their own crossing but also that of the other travelers as well as helping CBP be efficient and effective in securing our border. U.S. Customs and Border Protection is the unified border agency within the Department of Homeland Security charged with the management, control and protection of our nation's borders at and between the official ports of entry. CBP is charged with keeping terrorists and terrorist weapons out of the country while enforcing hundreds of U.S. laws. Contacts For This News Release 613 Abbott Street Detroit, MI 48216 Ronald Smith OFO Office of Public Affairs Liaison Phone: (313) 496-2191 Fax: (313) 226-3118 CBP Headquarters Office of Public Affairs 1300 Pennsylvania Ave., N.W. Room 3.4A Washington, DC 20229 Phone: (202) 344-1770 or (800) 826-1471 Fax: (202) 344-1393 prev | next (2 of 57) back to CBP News Releases How to Use the Website Featured RSS Links What's New Contacts Ports Questions Forms Sitemap EEO | FOIA | Privacy Statement | Get Plugins | En Espaol Department of Homeland Security USA.gov Inquiries (877) CBP-5511 | International Callers (703) 526-4200 | TTD (866) 880-6582 | Media Only (202) 344-1780 Page 2 of 2 Patience, Planning and Paperwork will Enhance Border Crossing on Memorial Day Week... 5/20/2008 http://www.cbp.gov/xp/cgov/newsroom/news_releases/05192008_2.xml http://www.Dr-Immigration.com/news/shownews.asp?newsID=76 Sat, 7 Mar 2009 20:32:50 EST CBP Publication No. 0000-0806 The Global Entry pilot was developed to implement a single integrated passenger processing system that will expedite the movement of frequent international air travelers. Global Entry provides an alternative Passport Control process for pre-approved, pre-screened eligible travelers. What are the benefits? Global Entry allows members to enter the United States more quickly by using automated kiosks located in the U.S.Arrivals area of select airports. The Global Entry program uses fingerprint biometric technology to verify a registered member and confirm their status. Who qualifies? Participation in the Global Entrypilot is voluntary. Only U.S. citizens and Lawful Permanent Residents of the U.S are eligible to apply for membership. No person will be eligible for this pilot if they have been convicted of a criminal offense in any country; if they have ever been found in violation of the customs or immigration laws of the U.S. or any serious criminal offense; or provide false or incomplete information on their application. Additionally, no person will be eligible if they are determined to present a potential risk for terrorism, criminality, smuggling, or unlawful immigration. Children under the age of fourteen are not eligible to participate in the test. Children fourteen years of age and older, but under the age of eighteen,will require written consent of a parent or legal guardian. If an individual does not meet the requirements of Global Entry, their application will be denied. How do I apply? Global Entryutilizes the Global Enrollment System (GES), Global On-line Enrollment System (GOES) application.You will need to sign on to GOES, set up a user account, fill out the application and submit it electronically through the system. The link for GOES can be found on the CBP web site at www.cbp.gov. Once CBP has received and reviewed an application, applicants will receive a message in their GOES account with a link to schedule their interview at one of the Global Entry Enrollment Centers at participating airports. What does it cost? An application processing fee of $100 per applicant will be charged at the time of enrollment through GOES. Membership for participants will be valid for the duration of the pilot not to exceed 5 years. What documents must I provide with my application? At a minimum, you must provide a valid machine-readable U.S. passport and one other form of identification at the time of interview. If you are a permanent resident of the U.S. you must provide your machine-readable permanent resident card and one other form of identification that supports your residency claim. Penalties for Providing False Information If you do not provide true, accurate, and complete information in your Global Entry application, we may deny your membership in the pilot program.There are severe penalties for knowingly and willfully falsifying or concealing a material fact, or using any false document when you submit the application. Making a false representation may also result in the denial of any other application you may make for any benefit under U.S. immigration laws. Only approved members can use the Global Entry kiosks. Non-members must use the regular inspection lines when they travel.As a Global Entry member, you may be subject to compliance checks at any time during the CBP clearance process. Completing the Application Each person who wants to participate in Global Entry must complete and submit a separate application. Parents or guardians must complete the application on behalf of children under the age of 18. Here are details that explain certain parts of the application: Personal Information All fields must be completed. Please specify your citizenship and country of residence where prompted. Address history for the last five years The GOES application process requires that you provide all the addresses at which you have resided within the last five years. Employment history for the last five years The GOES application process requires that you provide all the employers you have had for the last five years. Lack of employment will not disqualify you from being a member if you are otherwise admissible to the U.S. and meet all other requirements. If you were unemployed or a student during the past five years, please provide details in the spaces designated for your employers name. Additional information (eligibility questions) Indicate any convictions for offenses in any country. Indicate any waivers of inadmissibility to the U.S. that you may have received from CBP or the Immigration and Naturalization Service (INS). Indicate if you have ever been found in violation of any customs or immigration laws. For background checks, you may be questioned about your full criminal history, including arrests and pardons that may exclude you from the Global Entry pilot program. Certification You should carefully read the privacy act statement and the certification statement on the on-line application. Enrollment Process CBP will review the information you have provided on your application to make sure you meet the eligibility requirements. Criminal information databases will also be verified.After initial review by CBP, you will receive a follow-up message in your GOES account inviting you to schedule an interview at an Enrollment Center or a message stating that you have been denied membership. The Enrollment Center When you report to the Enrollment Center, a review of your Global Entry application information and a full interview will occur.The principal functions of the interview at a Global EntryEnrollment Center include: 1. Interview for admissibility; 2. Verification and validation of identity, proof of citizenship, permanent resident card, and travel documents; 3. Finalize eligibility requirements for membership; 4. Take a digital photograph of your face; and 5. Obtain fingerprint biometric information.Your fingerprints will be used at the kiosk to verify your membership in Global Entry. If you are accepted into the pilot program, CBP will: Explain the terms and conditions of the Global Entry Program; and Demonstrate how to use the automated airport kiosk. What Else do I Need to Know? When you use the Global Entry kiosk, you will be prompted to insert your machine-readable passport in the passport reader.You will also be prompted to place your fingers on the kiosk for fingerprint verification and to look into the camera, which will then verify your Global Entry membership against the biometrics stored in the database. The personal information you provide, including the fingerprint biometric, may be shared with other government and law enforcement agencies in the operation of the pilot program. All travelers, including Global Entry members, are subject to random examinations by CBP officers. How do I declare goods? As a Global Entry member, you must declare all goods you are importing into the United States. If you are entering the U.S. and are importing goods, you may either use the kiosk to declare goods or you may go to a regular processing lane to declare goods to a CBP officer. For more information see the CBP brochure Know BeforeYou Go. You will be required to complete the Customs Declaration questions presented on the kiosk; however you will not need to complete the Customs Declaration Form (CBP 6059B) before arrival. Are there import restrictions? You must report any controlled, restricted, or prohibited firearms or weapons, including mace, pepper spray, and stun guns. You must report any controlled, restricted, or prohibited goods, animals, or plants.This includes controlled, restricted, or prohibited substances, endangered animals or species, and fruits and vegetables. For more information, see the pamphlet Know BeforeYou Go. If you are carrying over $10,000 USD or foreign equivalent, in currency or monetary instruments into or out of the U.S., you must declare the currency using the regular inspection line. Penalties for Program Violations CBP Officers will strictly enforce the law.Any time you enter the United States you may be subject to a full inspection. If you violate any condition of this pilot program, or any law or regulation of the U.S., officers may: Revoke your Global Entry privileges; Seize any undeclared goods; Issue penalties; and/or Start criminal prosecution; and Initiate any other legal proceedings as appropriate. Need More Information? You can also get information about Global Entry on the CBP web site, www.cbp.gov and on the DHS web site, www.dhs.gov. 1300 Pennsylvania Avenue, NW Washington, DC 20229 Please visit the U.S. Customs and Border Protection Web site at www.cbp.gov http://www.Dr-Immigration.com/news/shownews.asp?newsID=75 Sat, 7 Mar 2009 20:32:42 EST Office of Communications Questions & Answers #2 May 23, 2008 EXTENSION OF OPTIONAL TRAINING PROGRAM FOR QUALIFIED STUDENTS Rule Expands Cap-Gap Relief for Students with Pending H-1B Petitions The U.S. Department of Homeland Security released an interim final rule on April 4, 2008, extending the period of Optional Practical Training (OPT) from 12 to 29 months for qualified F-1 non-immigrant students. The extension is available to F-1 students with a degree in science, technology, engineering, or mathematics (STEM) who are employed by businesses enrolled in the E-Verify program. The rule also addresses situations in which an F-1 students status and work authorization expires before he or she can begin employment under the H-1B visa program. The interim final rule addresses this by automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions. The rule will also implement certain programmatic changes, including allowing students to apply for OPT within 60 days of graduation. U.S. Citizenship and Immigration Services published an initial set of questions and answers related to the rule on April 4; below are a supplemental group of questions and answers that will provide essential guidance and more specific details on the program. Supplemental Qs and As Cap Gap Provision On April 18, 2008, USCIS announced an e-mail notification process allowing a petitioner whose pending H-1B petition on behalf of an F-1 student was randomly selected to receive an H-1B visa number for FY 09 to request change of status in lieu of consular processing, as originally indicated on the petition. Since some FY09 H-1B petitions for these students may have already been approved for consular processing when USCIS published this e-mail notification process, can the petitioner still request change of status?  Yes. The petitioner should send an e-mail to the USCIS service center that issued the approval, using the designated e-mail address. Such requests must include the H-1B receipt number, as well as the petitioners and the beneficiarys name.  If the H-1B petition and change of status application are pending, the change of status request should be submitted to the center within 30 days of the receipt notice. In addition to including the receipt number and the name of the petitioner and beneficiary, the request should also include the beneficiarys date of birth, I-94 (Arrival/Departure Record) number, and Student and Exchange Visitor Information System (SEVIS) number.  Please note that separate e-mail addresses have been established for Premium and Non-Premium Processing Cases. These e-mail addresses are as follows: Vermont Service Center Premium Processing cases: VSCPPCAPGAP.Vscppcapgap@dhs.gov Non-Premium cases: VSCNONPPCAPGAP.Vscnonppcapgap@dhs.gov California Service Center Premium Processing cases: CSC.ppcapgap@dhs.gov Non-Premium cases: CSC.nonppcapgap@dhs.gov What does timely filed mean? Does this include a petition submitted to USCIS on April 1, but not yet selected under the random selection process for an H-1B visa number?  Timely filed means that the H-1B petition was filed during the H-1B acceptance period, while the student's authorized duration of status (D/S) admission was still in effect. The interim final rule states that the D/S admission includes the academic course of study, any authorized periods of postcompletion OPT, and the 60-day departure preparation period, commonly known as the grace period.  The interim final rule further states that once a timely filing has been made, the automatic cap gap extension will continue until September 30, if the petition is selected and approved, unless it is subsequently rejected, denied, or revoked. Students are strongly encouraged to stay in close communication with their employer during the cap gap extension. A Form I-797, Notice of Action, with a valid receipt number, is evidence that the petition was filed and accepted. What if the post-completion OPT expired before April 1? It appears that F-1 status would be extended, but would OPT also be extended?  A student who completed his or her post-completion OPT and who subsequently was in a valid grace period on April 1, would benefit from an automatic extension of his or her D/S admission, if the H-1B petition was filed during the H-1B acceptance period, which began on April 1. The employment authorization, however, would not be extended automatically, because it already expired and the cap gap does not serve to reinstate or retroactively grant employment authorization. Is a student who becomes eligible for an automatic extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?  The applicability of the 60-day grace period following rejection, denial or revocation of an H-1B petition is discussed in the Supplemental Section of the interim final rule. If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap gap extension, the student will have the standard 60-day grace period (from notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States. 73 FR 18944, 18949 (April 8, 2008).  For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to discovery of a status violation. Such a student in any event is not eligible for the automatic cap gap extension. Similarly, the 60-day grace period would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval. In both of these instances, the student would be required to leave the United States immediately. Page 2 May students travel outside the United States during a cap gap extension period and return in F-1 status?  The regulations at 8 CFR 214.2(f)(13) state that a student who has an unexpired EAD issued for postcompletion OPT and who is otherwise admissible may return to the United States to resume employment after a temporary absence. By definition, however, the EAD of an F-1 student covered under a cap gap extension is necessarily expired. As a result, if the student elects to travel outside the United States during a cap gap extension, he/she should be prepared to apply for an H-1B visa at a consular post abroad prior to returning. Because the H-1B petition is for an October 1 start date, the student should be prepared to adjust his/her travel plans, accordingly. Do the limits on unemployment time apply to students with a cap gap extension?  Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap gap extension. If a student was not in an authorized period of OPT on the eligibility date, can the student work during the cap gap extension?  No. In order for a student to have employment authorization during the cap gap extension, the student must be in an approved period of post-completion OPT on the eligibility date. May a student eligible for a cap-gap extension of status and employment authorization apply for a STEM OPT extension while he or she is in the cap-gap extension period?  Yes. However, such application may not be made once the cap-gap extension period is terminated (e.g., rejection, denial, or revocation of the H-1B petition), and the student enters the 60-day departure preparation period. STEM Degrees Would a student with an undergraduate STEM degree but a masters degree in a non-STEM field be eligible for an extension of OPT based on the masters degree?  The interim final rule states that the [t]he degree that was the basis for the students current period of OPT is a bachelors, masters or doctoral degree in one of the degree programs on the current STEM Designated Degree Program List, published on the SEVP website at http://www.ice.gov/sevis." This provision is found at 8 CFR 214.2(f)(10)(ii)(C)(2).  Under the interim final rule at 8 CFR 214.2(f)(10)(ii)(C)(2), a student who received an undergraduate STEM degree, but whose graduate degree is in a non-STEM field and whose current post-completion OPT is based on that graduate degree, would not be eligible for the 17-month STEM extension. Would a student in post-completion OPT based on a non-STEM masters degree be eligible for an OPT extension if the job offered to the student directly relates to the student's undergraduate STEM degree and the non-STEM master's degree?  The student would not be eligible for an extension of OPT in such circumstances. The degree that was the basis of the current period of OPT must be a STEM degree. Page 3 Will ICE be adding new degrees to the STEM Designated Degree Program List during the comment period?  New degrees will not be added to the list during the comment period. DHS, however, will consider all comments received regarding the possible inclusion of additional degrees and will be consulting with other interested government agencies regarding such possible additions. As stated in the interim final rule, however, the Department must also continue to ensure that the OPT extension remains limited to students with degrees in major areas of study falling within a technical field where there is a shortage of qualified, highly-skilled U.S. workers and that is essential to this countrys technological innovative competitiveness. Can a student with a dual major qualify for the STEM OPT extension based on one of the degree programs?  If a student has a dual major, and one of the degrees is on the STEM Designated Degree Program List, and the job is directly related to the students STEM degree, the student would be eligible to apply for the STEM OPT extension. Can a student qualify for the STEM OPT extension based on the students minor?  No. Timing and Reporting By what means must a student report a change in the students circumstances to the DSO?  Students pursuing STEM extension OPT must report to their DSO, within 10 days, loss of employment or change to any of the following: o The students legal name o The students residential or mailing address o The students email address o Employer name o Employer address  Additionally, these students must send a validation report to their DSO every six months starting from the date the STEM extension OPT starts and ending when the students F-1 status ends or the STEM extension OPT ends, whichever is first. The validation report must include the students: o Full legal name o SEVIS identification number (if requested by the school) o Current mailing and residential address o Name and address of the current employer Page 4 o Employment start date for the current employer  Students should consult with their DSO as to the preferred method of reporting changes. SEVP recommends using e-mail as it provides both evidence of reporting and the date reported. Some schools may provide other electronic means (such as a web page) to accept reports from students.  Students should keep a record of all reports made to the DSO and the method by which the report is made. By what means must an employer report a students termination of employment to the students school? Must an employers report be received by the school within 48 hours of a students termination?  The school may provide the student with instructions on how to report the end of the students employment. The student must provide this information to the employer. If the school does not provide such instructions, the employer may send the report to the school address listed on the students Form I-20.  The employer should provide the students name, SEVIS ID number (if available), and the date the students employment ended.  The employer has complied with the reporting requirement on the day the report is timely sent (i.e., sent within 48 hours of a students termination). The school does not have to receive the employers report within 48 hours of the students termination for the employer to be in compliance with the requirement. I-9 Employer Verification Compliance What document can an F-1 student applying for a 17-month STEM extension show his or her employer when completing the Form I-9?  According to the employment authorization regulations at 8 CFR 274a.12(b)(6)(iv), which were part of the April 8 interim final rule, an F-1 student who has timely filed an application on Form I-765 for a 17-month STEM extension of his or her post completion OPT, and whose employment authorization document (Form I-766) has expired, is authorized to continue working while that application is pending, for a period not to exceed 180 days.  The expired Form I-766 EAD (issued under category (c)(3)(i)(B)), the USCIS receipt notice showing a timely filing of the STEM extension application (Form I-797, Notice of Action), combined with an I-20 updated to show that the DSO recommended the STEM extension for a work authorization period beginning on the date after the expiration of the EAD is the equivalent of an unexpired Employment Authorization Document under List A, #4 of the Form I-9. This combination of documents satisfies the Form I-9 requirements for 180 days (or less if the application is denied beforehand). If the 17-month STEM extension is approved, the student should receive a new Form I- 766 EAD reflecting the 17-month STEM extension within the 180-day period. What documents can an F-1 student with automatic employment authorization under the cap-gap provision show his or her employer when completing the Form I-9? Page 5  The DSO will issue a cap gap I-20 which will show on page 3 that the students employment authorization has been extended and the effective dates. The student may need to provide the DSO with evidence of a timely filed H-1B petition during the H-1B acceptance period if the students record has not been updated via an interface with USCIS.  The expired Form I-766 EAD (issued under category (c)(3)(i)(B) or (c)(3)(i)(C)) combined with a cap gap Form I-20, endorsed to show that the students employment authorization is still valid, and the USCIS receipt notice (Form I-797, Notice of Action), showing receipt of the H-1B petition are the equivalent of an unexpired Employment Authorization Document under List A, #4 of the Form I-9. This combination of documents satisfies the Form I-9 document presentation requirements until September 30, or on the date of rejection, denial, or revocation of the petition. If the receipt notice has not yet been issued, the expired EAD and cap gap Form I-20 are sufficient. This combination of documents satisfies the Form I-9 until the expiration date noted on the cap gap Form I-20, but not later than September 30. If the student presents a cap gap Form I-20 without a receipt notice, the employer must re-verify upon the expiration date noted on the Form I-20. The student may present another cap gap Form I-20 indicating continued employment authorization to satisfy the reverification requirement. How is the cap gap Form I-20 endorsed to indicate employment authorization?  SEVIS will generate a cap gap Form I-20 that takes into account the different stages of the H-1B filing, selection, and adjudication process. The cap gap Form I-20 will contain the following endorsement: F-1 status and employment authorization for this student have been automatically extended to [the applicable date will be inserted, as noted below]. The student is authorized to remain in the United States and continue employment with an expired employment authorization document. This is pursuant to 8 CFR 214.2(f)(5)(iv) and 8 CFR 274a.12(b)(6)(iv), as updated April 8, 2008 in a rule published in the Federal Register (73 FR 18944). Additional information about the automatic extension can be found on the Student and Exchange Visitor Program Web site at www.ice.gov/sevis.  The DSO will note an expiration date on the cap gap Form I-20 as follows: o If the students post-completion OPT EAD expires before June 2 and the student can only show the DSO evidence of a properly filed H-1B petition that also includes a change of status request, then the DSO will note an expiration date of June 2 and August 2, respectively. o If the students post-completion OPT EAD expires before July 28 and the student can show the DSO evidence of being on the wait list for an H-1B slot, the DSO will note an expiration date of July 28 and September 27, respectively. o If the student can show the DSO a filing receipt (Form I-797, Notice of Action), or approved the H-1B petition and change of status request, the DSO will note an expiration date of October 1. Page 6 Limits on Periods of Unemployment What are the limits on periods of unemployment?  Students on post-completion OPT may have up to 90 days of unemployment.  Students who have OPT extended due to the cap gap provisions continue to be subject to the 90-day limitation on unemployment.  Students who receive a 17-month STEM OPT extension are given an additional 30 days of unemployment for a total of 120 days over their entire post-completion OPT period. Do the limits on unemployment apply to any periods of unemployment prior to April 8, 2008?  No, the limits on unemployment do not apply retroactively. Do the limits apply to students who had post-completion OPT approved before April 8, 2008?  For students who started post-completion OPT prior to April 8, 2008, unemployment time will accrue only for time spent unemployed after April 8, 2008. Time unemployed prior to April 8, 2008, will not be counted. Is a student who splits OPT between two degrees at the same level limited to a total of 90 days of unemployment?  No, the student is not limited to a total of 90 days of unemployment in this case. For each new period of post-completion OPT, the student will have the full 90-day period of unemployment. What counts as time unemployed?  Each day during the period when OPT authorization begins and ends that the student does not have qualifying employment counts as a day of unemployment. The only exception is that periods of up to 10 days between the end of one job and the beginning of the next job will not be included in the calculation for time spent unemployed. How does travel outside the United States impact the period of unemployment?  If the student whose approved period of OPT has started travels outside of the United States while unemployed, the time spent outside the United States will count as unemployment against the 90/120- day limits.  If a student travels while employed (either during a period of leave authorized by an employer or as part of their employment), the time spent outside the United States will not count as unemployment. What types of employment are allowed for students during an OPT STEM extension?  Students granted an OPT STEM extension must work at least 20 hours per week for an E-Verifyenrolled employer in a position directly related to the students STEM degree.  STEM students may work multiple jobs related to their STEM degree, but all the employers must be enrolled in E-Verify. Page 7  Students on an OPT STEM extension are allowed to volunteer, incidental to their status. This means that volunteer work is allowed but does not count as employment for the purpose of maintaining F-1 status. How do students show employment is directly related to their degree program?  SEVP recommends that students maintain evidence that they held a particular position, proof of the duration of that position, the job title, contact information for the students supervisor or manager, and a description of the work.  If it is not clear from the job description that the work is related to the students degree, SEVP highly recommends that the student obtain a signed letter from the employers hiring official, supervisor, or manager stating how the students degree is related to the work performed. E-Verify What E-Verify information is required for an F-1 STEM student to extend his or her OPT?  The student must provide his or her employers name and its E-Verify company ID, or Client Company ID if it uses a third party designated agent to perform its verification queries, in item #17 of the Form I-765 (revised 04/08/08). Where does an employer find its E-Verify company ID #?  The employers Company Identification Number is located on the upper left-hand corner of the Memorandum of Understanding (MOU) which was printed or saved upon registration with E-Verify. Employers who are unable to locate their company identification number on the MOU can find their identification number in the system by logging into their E-Verify account and running a report. To do this, select View Reports from the Reports Menu and then select one of the three reports available. Enter the report parameters and then select Excel as the format. The company ID will be located in the upper left hand corner of the report. If an employer has concerns about providing an employee with their E-Verify Company ID, are they still required to provide it?  The E-Verify Company ID number may be disclosed to an employee or a prospective employee for this purpose. An employer is not required to disclose the number, but if it does not, the Form I-765 cannot be completed and the application for extension of OPT cannot be approved. If a company enrolls in E-Verify in order to retain or hire an F-1 OPT STEM student for a 17-month extension, does that company only have to verify the employment eligibility for that F-1 OPT STEM student and/or future F-1 OPT STEM students, or for all new hires?  Once an employer has enrolled in E-Verify, the employer is responsible for verifying employment eligibility for all new hires, including newly hired F-1 OPT STEM students with 17-month extensions. The verification of all new hires must be done at all the hiring sites identified in the MOU. The E-Verify system is designed only for verifying the employment eligibility of new hires. If an employer enrolls in E-Verify to retain the employment of an F-1 OPT STEM student, the Page 8 employer may not verify the employment eligibility of that F-1 OPT STEM student employee as he or she is already an existing employee and not a new one. However, the students I-9 will need to be updated when the STEM extension is approved in order to document the continuity of the work authorization. Does the Designated School Official (DSO) need to confirm that the F-1 STEM students prospective employer is enrolled in E-Verify?  No. DSOs are not required to check the employers E-Verify enrollment; however, they are strongly encouraged to advise the student that the STEM extension will be denied if their employer is not enrolled. If an F-1 OPT STEM student currently works for two employers and wishes to apply for the 17-month extension, would both employers have to be enrolled in E-Verify?  Yes, if a student wishes to continue with both employers, each employer would need to be enrolled in E-Verify. Additionally, each job must be directly related to the students STEM degree. What if my company is enrolled in E-Verify at some locations, but the hiring site where the student will be employed is not enrolled is this sufficient?  If the hiring site where the student will be employed has not been identified in the MOU that the company signed during enrollment, that hiring site is not considered to be enrolled in E-Verify and therefore cannot employ an F-1 OPT STEM student under a 17-month extension.  Employers seeking to employ an F-1 OPT student under a 17-month extension may enroll in E-Verify in one of two ways: register the hiring site individually by signing its own MOU or registering the intended job location as an additional hiring site under the employers existing MOU. This interim final rule allows an F-1 OPT STEM student to extend his or her employment authorization provided that the student has accepted employment with an employer who is a participant in good standing in the E-Verify program, as determined by USCIS. How is in good standing defined?  To be considered in good standing, an employer must be enrolled in E-Verify either individually by signing its own MOU or as a hiring site under another MOU for another location. Once enrolled, the employer must adhere to the terms and conditions set forth in the MOU. This requires that the employer verify the employment eligibility of all new hires, not just the F-1 OPT students.  The regulatory reference to good standing is intended to emphasize and clarify that E-Verify participation for purposes of this rule means more than simply the one-time execution of the MOU; rather, it means continuing use of the system as provided under the MOU and in compliance with program requirements. Failure to be a participant in good standing could include (but is not necessarily limited to) these circumstances: The employer terminates the MOU; USCIS terminates the MOU, or suspends the employers system access, because of an employers substantial failure to follow its terms and conditions; the employer uses the system for a discriminatory or otherwise illegal or unauthorized purpose; or the employer has executed the MOU but substantially fails to use the Page 9 system to verify newly hired employees at participating hiring sites. A copy of the MOU and more information on E-Verify can be found at www.dhs.gov/E-Verify. Page 10 http://www.Dr-Immigration.com/news/shownews.asp?newsID=74 Sat, 7 Mar 2009 20:32:37 EST U.S. Department of Labor Employment & Training Administration www.doleta.gov Search: Advanced Search U.S. Department of Labor proposes rules to modernize and increase protections under H-2B program WASHINGTON The U.S. Department of Labor today proposed rules to modernize the application process and enhance worker protections under the H-2B temporary labor certification program. The changes respond to the administrations Aug. 10, 2007, promise to review and update foreign worker program regulations. These proposed improvements will give the department additional tools to protect workers and remove duplicative bureaucracy, said Secretary of Labor Elaine L. Chao. When a shortage of U.S. workers is demonstrated, the H-2B program makes it possible for employers to apply for temporary, non-agricultural foreign workers to fill their temporary or seasonal needs. The proposed rule would reform the application process so that employers would attest, under threat of fines and other penalties, that they have complied with all the programs requirements. These proposals would alter the current certification process, following a model similar to that adopted in the successful re-engineering of the permanent labor certification program in 2005. The proposed rule also would eliminate duplication of effort by state workforce agencies (SWAs) and the Department of Labors Employment and Training Administration (ETA). Instead of applying first with their SWAs, employers would file their H-2B applications directly with ETA under the proposed process. Furthermore, employers would obtain from the Labor Department instead of SWAs the applicable prevailing wage determinations for their specific job opportunities. In addition, the department seeks to enhance protections for U.S. and foreign workers. For instance, employers would be prohibited from passing along application and other costs to foreign workers participating in the H-2B program. The Department of Labor also proposes to debar for up to three years employers, attorneys and agents found to have committed fraud or willful misrepresentation concerning the H-2B employment-based immigration program, or failed to cooperate in Labor Department audits or investigations. Finally, the proposal contains a new Department of Labor enforcement program for H- 2B in the event the Department of Homeland Security delegates its statutory authority for enforcing the H-2B program to the Department of Labor. Congress vested the Department of Homeland Security with H-2B enforcement authority in 2005. The proposed rule appears in todays edition of the Federal Register and can be found at http://edocket.access.gpo.gov/2008/pdf/E8-11214.pdf. The period for public comment will close July 7. ### ETA News Release: [May 22, 2008] Contact Name: Phone Number: Jennifer Kaplan 202-693-5052 Terry Shawn 202-693-4676 Find it in DOL Compliance Assistance Resources Find it in ETA Compliance Assistance Other Topics About ETA Learn About ETA Your ETA Contacts Meet ETA Offices Waivers Advancing Your Career Building Your Career Starting Your Career Your Rights as a Worker Business & Industry Business Relations Group Government Incentives & Assistance for Employers Connecting You to Qualified Employees Hiring Guest Workers Access the Resource Library Workforce Professionals Understanding Your Local Business Understanding Your Local Workforce Closing the Gap Page 1 of 2 ETA New Releases, Employment & Training Administration (ETA) - U.S. Department of... 5/23/2008 http://www.doleta.gov/whatsnew/new_releases/2008-05-22.cfm U.S. Labor Department (DOL) releases are accessible on the Internet at www.dol.gov. The information in this news release will be made available in alternate format upon request (large print, Braille, audio tape or disc) from the COAST office. Please specify which news release when placing your request. Call (202) 693-7765 or TTY (202) 693- 7755. DOL is committed to providing America's employers and employees with easy access to understandable information on how to comply with its laws and regulations. For more information, please visit www.dol.gov/compliance. More ... Grants & Contracts Understanding Grantmaking Find a Contract Apply for ETA Grant ETA Library Research ETA Programs Laws and Regulations Performance & Results Guidance For Planning Performance Performance Goals Guidance & Data Evaluation Regions & States Regional Offices State Contacts State & Local Resources Other Topics Frequently Asked Questions | Freedom of Information Act | Customer Survey Web Site Policies | Privacy & Security Statement | Disclaimers | Email this page Created: May 22, 2008 Back to Top Employment and Training Administration U.S. Department of Labor, Frances Perkins Building, 200 Constitution Ave., NW, Washington, DC 20210 www.doleta.gov | Telephone: 1-877-US-2JOBS | TTY: 1-877-889-5627 | Fax: 1-202-693-7888 | Contact Us Page 2 of 2 ETA New Releases, Employment & Training Administration (ETA) - U.S. Department of... 5/23/2008 http://www.doleta.gov/whatsnew/new_releases/2008-05-22.cfm http://www.Dr-Immigration.com/news/shownews.asp?newsID=73 Sat, 7 Mar 2009 20:32:27 EST Office of Communications USCIS Update May 23, 2008 USCIS to Revise Filing Instructions for Petition to Remove Conditions on Residence Form I-751 to be filed with the California or Vermont Service Centers WASHINGTONU.S. Citizenship and Immigration Services (USCIS) will soon be revising the filing instructions for the Petition to Remove Conditions on Residence (Form I-751) to require filing at the California or Vermont Service Centers, where all Forms I-751 are currently adjudicated. The adjudication functions for these petitions have already been assigned to these locations in anticipation of this change. Therefore, all petitioners filing a Form I-751 are requested to file the petition with the California or Vermont Service Centers, depending on the state in which they reside. Form I-751 is used by individuals who were granted conditional residential status through marriage to a U.S. citizen or a lawful permanent resident and who desire to petition USCIS to remove the conditions on their residence. Petitioners who live in the following states or territories should file their Form I-751 with the California Service Center (CSC): Alaska, American Samoa, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, and Wyoming. The mailing address for CSC is: USCIS California Service Center P.O. Box 10751 Laguna Niguel, California 92607-0751 Petitioners who live in the following states or territories should file their form I-751 with the Vermont Service Center (VSC): Alabama, Arkansas, Connecticut, Delaware, Washington, D.C., Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, and West Virginia. The mailing address for VSC is: USCIS Vermont Service Center 75 Lower Welden St. St. Albans, Vermont 05479-0001 Petitions filed with the Nebraska or Texas Service Centers after this announcement but prior to a change in the form instructions will be forwarded to the California or Vermont Service Centers, respectively, without any need for action by the petitioner. However, there could be a slight delay in the adjudication of the petition as a result of the transfer; so, petitioners are encouraged to file directly with the appropriate service center as outlined above. If a petitioner receives a receipt notice from the Nebraska or Texas Service Center, his or her case will be transferred to the California or Vermont Service Center for adjudication. The petitioner should receive a notice advising him or her that the case has been transferred. USCIS will publish a revised form and related filing instructions at www.uscis.gov as soon as they become available. Please contact the National Customer Service Center at (800) 375-5283 for more information. USCIS http://www.Dr-Immigration.com/news/shownews.asp?newsID=72 Sat, 7 Mar 2009 20:32:19 EST News Release Printer-Friendly Version ETA News Release: [06/02/2008] Contact Name: Terry Shawn or Jennifer Kaplan Phone Number: (202) 693-4676 or x5052 Release Number: 08-0752-NAT U.S. Department of Labor auditing all permanent labor certification applications filed by major immigration law firm Department acts to protect employment opportunities for American workers WASHINGTON The U.S. Department of Labor today announced that it has begun auditing all permanent labor certification applications filed by attorneys at Fragomen, Del Rey, Bernsen & Loewy LLP. The department has information indicating that in at least some cases the firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified U.S. workers. The audits will determine which, if any, applications should be denied or placed into department-supervised recruitment because of improper attorney involvement in the consideration of U.S. worker applicants. The departments decision to further investigate these applications will help ensure the integrity of the permanent labor certification process and ultimately protect job opportunities for American workers, said Gregory F. Jacob, solicitor of labor. The department takes seriously its responsibility to ensure that American workers have access to jobs they are qualified and willing to do and that their wages and working conditions are not adversely affected by the hiring of foreign workers. The permanent labor certification process, established by the Immigration and Nationality Act, allows employers to sponsor aliens for permanent residence (secure a green card) to fill positions for which no qualified, willing and available U.S. workers can be found. The departments regulations set forth detailed procedures by which an employer seeking certification must demonstrate that no qualified U.S. workers can be located. The departments regulations specifically prohibit an employers immigration attorney or agent from participating in considering the qualifications of U.S. workers who apply for positions for which certification is sought, unless the attorney is normally involved in the employers routine hiring process. Where an employer does not normally involve immigration attorneys in its hiring process, there is no legitimate reason to consult with immigration attorneys before hiring apparently qualified U.S. workers who have responded to recruitment required by the permanent labor certification program. In 2004, the department adopted reforms streamlining the permanent labor certification process by moving to an attestation-based system. Audits of applications are one of the major deterrents used by the department to ensure program integrity. U.S. Department of Labor U.S. Department of Labor Frances Perkins Building 200 Constitution Avenue, NW Washington, DC 20210 1-866-4-USA-DOL TTY: 1-877-889-5627 Contact Us Page 1 of 1 - Printer Version 6/2/2008 http://www.dol.gov/PrinterFriendly/PrinterVersion.aspx?url=http://www.dol.gov/opa/media... http://www.Dr-Immigration.com/news/shownews.asp?newsID=71 Sat, 7 Mar 2009 20:32:09 EST Information Paper U.S. Department of Labor For Immediate Release Office of Public Affairs June 4, 2008 Washington, D.C. Contact: Terry Shawn Jennifer Kaplan Release Number: 08-775-NAT Phone: 202-693-4676 202-693-5052 U.S. Department of Labor releases are accessible on the Internet at www.dol.gov. The information in this news release will be made available in alternate format (large print, Braille, audio tape or disc) from the COAST office upon request. Please specify which news release when placing your request at 202-693-7828 or TTY 202-693-7755. The Labor Department is committed to providing Americas employers and employees with easy access to understandable information on how to comply with its laws and regulations. For more information, please visit www.dol.gov/compliance. Frequently asked questions on audit of permanent labor certification applications filed by attorneys at Fragomen, Del Rey, Bernsen & Loewy LLP (1) Why are we doing this? The U.S. Department of Labor has a statutory responsibility to ensure that foreign workers are not hired to fill jobs where qualified, able and willing U.S. workers are available. To fulfill this responsibility, the Department requires employers to recruit for U.S. workers before foreign workers can be hired for permanent positions, and to attest to the Department in their applications that the job opportunity has been and is clearly open to U.S. workers and that any U.S. workers who applied for the job opportunity were rejected for lawful job-related reasons. Audits of applications are one of the major tools the Department uses to ensure program integrity. The Department's regulations specifically prohibit an employer's immigration attorney or agent from participating in considering the qualifications of U.S. workers who apply for positions for which certification is sought, unless the attorney is normally involved in the employer's routine hiring process. Where an employer does not normally involve immigration attorneys in its hiring process, there is no legitimate reason to consult with immigration attorneys before hiring apparently qualified U.S. workers who have responded to recruitment required by the permanent labor certification program. The Departments rule safeguards against the use of attorneys to find reasons not to hire U.S. workers that the employer would, but for the attorneys involvement, deem qualified. The rule applies only to consideration of particular applicants, and does not bar employers from seeking general advice on the meaning of qualified in the context of a labor certification application. The Department is auditing all employer applications filed by attorneys at Fragomen, Del Rey, Bernsen & Loewy LLP because it has information indicating that in at least some cases the firm may have improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified U.S. workers. (2) What incident/incidents prompted this audit? The Department identified information indicating that in at least some cases the firm may have improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified U.S. workers. Specifically, several recruitment forms drafted by some Fragomen attorneys instructed their clients that After interview, should any of the applicants appear to be qualified for the position, please contact a Fragomen attorney immediately to further discuss the candidates background as it relates to the requirements stated for said position, or some variation thereof. (3) How unusual is this type of audit? Audits of applications are one of the major tools the Department uses to ensure program integrity. Audits are conducted regularly. Where the Department identifies an employer or attorney that appears to have a practice that violates the programs rules, the Department has authority to audit all applications submitted by that employer or attorney/agent to determine which, if any, were affected by the unlawful practice. (4) Are the audits a form of punishment? Audits are not a punishment. Audits are used by the Department to thoroughly examine applications to ensure that all program requirements have been properly followed. They are routine and regularly undertaken to ensure program integrity. http://www.Dr-Immigration.com/news/shownews.asp?newsID=70 Sat, 7 Mar 2009 20:31:59 EST Office of Communications USCIS Update June 5, 2008 USCIS Clarifies Language in Form I-751 Transfer Notices Sent to Petitioners Current Notice May Be Interpreted as USCIS Granting Approval for Petition to Remove Conditions on Residence WASHINGTONU.S. Citizenship and Immigration Services (USCIS) announced today it will revise language in transfer notices received by petitioners who filed a Petition to Remove Conditions on Residence (Form I-751). The current notice includes language that may cause petitioners to believe their cases have been approved. USCIS announced last month that it is revising filing instructions for Form I-751 to require filing at the California or Vermont Service Centers. Until the form instructions are revised, any petitions filed with the Nebraska and Texas Service Centers will be transferred to California and Vermont, respectively. When USCIS enters data at one service center and later transfers the case to another, a Transfer Notice is sent to the petitioner advising him or her that the case has been transferred for adjudication and that they will be notified of the final decision. The current transfer notice currently contains the following phrase: CRI89 approved removal of conditions (I89). That statement means that the biometric portion of the case has been successfully transferred; it does not, however, mean that the petition itself was approved. While USCIS is in the process of changing the language in the transfer notice, a substantial number of notices have already been mailed containing the potentially confusing statement. Any petitioner who may have received such a notice should be aware of the following: At the time the I-751 was transferred, USCIS had not yet adjudicated (approved or denied) the case; USCIS transferred the case to the Service Center listed on the notice for adjudication; and If the petitioner has not received additional information from the California or Vermont Service Centers, USCIS has not yet adjudicated the case. Petitioners who have a specific question related to their I-751 petition should contact the National Customer Service Center at (800) 375-5283 for more information. USCIS http://www.Dr-Immigration.com/news/shownews.asp?newsID=69 Sat, 7 Mar 2009 20:31:52 EST Office of Communications www.uscis.gov Questions & Answers EXPEDITED PROCESSING AVAILABLE FOR CERTAIN SUPPLEMENTAL SECURITY INCOME (SSI) BENEFICIARIES SSI Beneficiaries can request expedited processing of Forms I-485 and N-400 Q: Why is expedited processing available for SSI beneficiaries? A: U.S. Citizenship and Immigration Services (USCIS) recently entered into a settlement agreement in a national class action, Kaplan, et al. v. Chertoff, et al., CV 06-5304. The suit was brought by non-U.S. citizens who had lost or who were about to lose their eligibility for Supplemental Security Income (SSI) based on a statutory seven-year limit, and who were unable to become naturalized U.S. citizens before the loss of SSI benefits. Under the settlement agreement USCIS will expedite I-485 (Application to Register Permanent Residence or Adjust Status) commonly referred to as green card applications and N-400 (Application for Naturalization) of current or former Supplemental Security Income (SSI) beneficiaries if the application has been pending with USCIS for more than six months. Q: What is expedited processing under the Kaplan Settlement? A: Expedited processing includes USCIS requesting an accelerated FBI Name Check and prioritizing any USCIS internal actions, such as scheduling an interview. USCIS will work with the Social Security Administration (SSA) to identify people who have lost or who will lose their SSI benefits within the next year and who already have an I-485 or N-400 pending with USCIS. USCIS will then expedite those cases even if the applicant has not yet requested expedited processing and if the application has not been pending for six months. Information on the Kaplan Settlement is available at www.uscis.gov/kaplan. Q: What if I am a non-citizen who has lost my SSI benefits and am waiting for my N-400 or I-485 to be processed? A: If you are a non-citizen who has lost eligibility for SSI benefits based on a statutory seven-year limit, and you have filed an I-485 or N-400 with USCIS, you may request expedited processing of your pending application at any time, regardless of when you lost SSI benefits. USCIS is working with SSA to identify people who have lost or who will lose their SSI benefits within the next year and who already have an I-485 or N-400 pending with USCIS. USCIS will then expedite those cases even if the applicant has not yet requested expedited processing and the application has not been pending for six months. Q: How will USCIS contact non-citizen SSI beneficiaries with pending applications who have lost their SSI benefits? A: USCIS and SSA will mail a blue letter to people who have lost their SSI benefits due to the seven-year statutory limit. The letter will explain that they need to do the following: File an I-485 or N-400, if eligible. Be aware of the fee waiver application process 􀂃 For those who already have a pending application, how to request expedited processing June 5, 2008. - USCIS - Q: What should I include with my I-485 or N-400 form? A: If you receive a blue letter from USCIS about your eligibility for expedited processing, you should include that letter when you mail your form to USCIS. If you do not receive a blue letter from USCIS about the Kaplan settlement, you should include any other documents showing proof that that you are receiving or have received SSI benefits. Q: How do I contact USCIS to request expedited processing based on my eligibility as a non-citizen beneficiary of SSI? A: There are several ways you can contact USCIS to request expedited processing: Call the USCIS National Customer Service Center at 1-800-375-5283. Make an InfoPass appointment at www.infopass.uscis.gov and come to your local USCIS Field Office in person. Our website, www.uscis.gov, has a list of all field office locations. Mail a request for expedited processing to the office where your I-485 or N-400 is pending once you receive a USCIS receipt notice for your application. To find out where your application is pending, please call 1-800-375-5283. Include a written request for expedited processing when you submit your application, however be aware that this method may take longer to process. Whichever option you choose, please let USCIS know that you are requesting expedited processing based on your SSI status. Q: If I am a non-citizen receiving SSI benefits and I just submitted an N-400 or I-485, can I apply for expediting processing now or must I wait until my application has been pending for over six months? A: Customers may request expediting processing at any time, but USCIS will not start the expedite process until the application has been pending for over six months. Q: If an applicant is eligible for SSI, will USCIS automatically waive fees? A: No, however, USCIS is aware that applicants in the Kaplan class receive or have received SSI. SSI is a federal means-tested benefit and generally means that household incomes are at or below the poverty level, and that individuals are age 65 or over, or disabled. Therefore, applicants are likely to establish eligibility for a fee waiver. USCIS asks that class members write a large notation, KAPLAN on the outside of mailing envelopes containing either the I-485 or N-400 and the fee waiver request. Q: What happens if I have changed addresses and never receive the blue letter? A: It is vital that customers keep USCIS informed of their current address. It is critically important to ensure that correspondence with USCIS can be maintained. Customers who move must submit a free AR-11 Change of Address Form with USCIS within 10 days of their move. USCIS will check for an updated address for any blue letters that have been returned to USCIS within 90 days of mailing. Q: When did the Kaplan Settlement take effect, and how long will it last? A: The settlement took effect March 5, 2008 and will remain in effect until February 5, 2011. Q: Does this mean that if I am a non-citizen receiving SSI benefits, I will become a citizen? A: Expedited processing will ensure that USCIS prioritizes processing these forms. However, it is not a guarantee that the benefit will be granted. USCIS still needs to make sure that applicants meet eligibility requirements before the benefit can be granted. Q: Can I visit a Service Center or the National Benefit Center to ask questions about this settlement? A: No. If you believe you may be eligible for expedited processing under the Kaplan Settlement Agreement, then please call the USCIS National Customer Service Center at 1-800-375-5283, or you may make an InfoPass appointment to visit your local public field office. http://www.Dr-Immigration.com/news/shownews.asp?newsID=68 Sat, 7 Mar 2009 20:31:46 EST The USCIS Graden City Office announced that it will not accept public inquiries on Tuesday, July 15, 2008. People with scheduled appointments WILL be admitted. http://www.Dr-Immigration.com/news/shownews.asp?newsID=67 Sat, 7 Mar 2009 20:31:38 EST U.S. Department of Justice Executive Office for Immigration Review Office of the Director 5107 Leesburg Pike, Suite 2600 Falls Church, Virginia 22041 NEWS RELEASE Contact: Office of Legislative and Public Affairs (703) 305-0289 Fax: (703) 605-0365 Internet: http://www.usdoj.gov/eoir/ June 16, 2008 REMINDER: Immigration Court Practice Manual Is Effective July 1 FALLS CHURCH, Va. The Executive Office for Immigration Review (EOIR) reminds parties appearing in immigration court that beginning on July 1, 2008, the Immigration Court Practice Manual will be effective nationwide, and the local operating procedures for immigration courts will no longer be used. The Practice Manual is available on EOIRs website at http://www.usdoj.gov/eoir/. The Immigration Court Practice Manual provides uniform procedures, requirements, and recommendations for parties who present cases before the immigration courts. Specifically, the Immigration Court Practice Manual addresses: How attorneys and representatives enter appearances before the immigration court, How parties file documents and forms with the immigration court, How parties file and respond to motions before the immigration court, How parties appeal immigration judge decisions, Removal hearings and other proceedings before immigration judges, Detention and bond issues, Stays of removal orders, Freedom of Information Act (FOIA) requests, and Discipline of immigration attorneys and representatives. The Practice Manual also includes useful resources: Samples of commonly submitted documents, Guidelines on formatting legal citations when filing papers in immigration court, A glossary of terms and abbreviations commonly used in immigration court. Contact information for immigration courts and EOIR offices, and A word index for Practice Manual topics, and a citation index for statutes, cases, and regulations. EOIRs Operating Policies and Procedures Memorandum 08-03 explains how the Immigration Court Practice Manual applies to cases that are pending on July 1, 2008. This OPPM is available on EOIRs website http://www.usdoj.gov/eoir/efoia/ocij/oppm08/08-03.pdf. (more) Office of Legislative and Public Affairs The Immigration Court Practice Manual is a living document. EOIR will continue to update the manual online to reflect legal and policy changes, as well as input provided by the parties who use it. Information on how to submit comments and suggested changes is included in Chapter 13 of the Practice Manual. REMINDER: Immigration Court Practice Manual Is Effective July 1 Page 2 Office of Legislative and Public Affairs The Immigration Court Practice Manual complements the existing Board of Immigration Appeals Practice Manual in providing important how to information to the people EOIR serves. The Board of Immigration Appeals Practice Manual is available on EOIRs website at http://www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm. EOIR EOIR, an agency within the Department of Justice, is responsible for adjudicating immigration cases. Specifically, under delegated authority from the Attorney General, EOIR interprets and administers federal immigration laws by conducting immigration court proceedings, appellate reviews, and administrative hearings. EOIR consists of three components: the Office of the Chief Immigration Judge, which is responsible for managing the numerous immigration courts located throughout the United States where immigration judges adjudicate individual cases; the Board of Immigration Appeals, which primarily conducts appellate reviews of immigration judge decisions; and the Office of the Chief Administrative Hearing Officer, which adjudicates immigration-related employment cases. EOIR is committed to providing the fair, expeditious, and uniform interpretation and application of immigration law in all cases. http://www.Dr-Immigration.com/news/shownews.asp?newsID=66 Sat, 7 Mar 2009 20:31:30 EST Published by the U.S. Department of State Website at http://www.state.gov maintained by the Bureau of Public Affairs. Media Note Office of the Spokesman Washington, DC June 17, 2008 Prisoners of Conscience Statement The United States is pleased to join the 27 members of the European Union and 36 other countries in co-sponsoring a declaration at the United Nations on the plight of prisoners of conscience. The Prisoners of Conscience Declaration, which was entered into the United Nations record and circulated to all member states on June 17, calls on all nations to work for the freedom of prisoners of conscience throughout the world in accordance with the principles set forth sixty years ago in the Universal Declaration on Human Rights. The declaration commits co-sponsor nations to work for the freedom of all individuals who have been imprisoned for peacefully exercising fundamental rights to gather in public and to speak and publish opinions, including opinions that are critical of governments. Co-sponsors of the declaration also commit themselves to making the release of such prisoners a key priority in their relations with other states. We stand in solidarity with the courageous individuals around the globe who are imprisoned, often times in deplorable conditions, for exercising these inalienable rights, and we urge all United Nations Member States to work for the freedom of these individuals. The full text of the Prisoner of Conscience Declaration will soon be available at http://www.un.org under document number A/62/858 2008/499 Released on June 17, 2008 http://www.Dr-Immigration.com/news/shownews.asp?newsID=65 Sat, 7 Mar 2009 20:31:23 EST DOS Publishes Final Rule On Au Pairs [Federal Register: June 8, 2006 (Volume 71, Number 110)] [Rules and Regulations] [Page 33237-33239] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr08jn06-13] --------------------------------------- DEPARTMENT OF STATE 22 CFR Part 62 [Public Notice 5437] RIN 1400-AC16 Au Pair Exchange Programs AGENCY: State Department. ACTION: Final rule. --------------------------------------- SUMMARY: The Department of State (Department) adopts as final certain proposed amendments to existing au pair regulations. These changes will permit au pair sponsors to request a one-time extension of six, nine, or 12 months beyond an au pair participant's original 12-month period of program participation). DATES: Effective Date: This rule is effective July 10, 2006. FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Director, Office of Exchange Coordination and Designation, U.S. Department of State, SA-44, 301 4th Street, SW., Room 734, Washington, DC 20547; or email at jexchanges@state.gov. SUPPLEMENTARY INFORMATION: In February 2004, the Department of State announced a pilot program whereby Department designated au pair sponsors could request the extension of program participation beyond the original 12-month maximum period afforded au pair participants. The Department has completed its review of the Au Pair Pilot Extension Program and has determined that au pair extensions enhance the overall success of this program. Both host families and au pair participants have enthusiastically embraced the extension concept. Accordingly, the Department is adopting the amendment of program regulations to permit designated sponsors of the au pair program to submit requests to the Department for consideration of program extensions for six, nine, or 12 month durations for first-year au pair participants beyond the maximum duration of participation allowed under Section 62.31(c)(1). Analysis of Comments The Department received a total of 1 comment on the proposed rule for Au Pair extension requests. However, the [[Page 33238]] comment requested substantive changes to the existing au pair regulations and did not address the specific changes stated in the proposed rule. Regulatory Analysis and Notices Administrative Procedure Act The Department is publishing this rule as a final rule, after it was published as a proposed rule on February 2, 2006. Regulatory Flexibility Act/Executive Order 13272: Small Business These proposed changes to the regulations are hereby certified as not expected to have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act, 5 U.S.C. 601-612, and Executive Order 13272, section 3(b). Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by 5 U.S.C. 804 for the purposes of Congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801- 808). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. Executive Order 12866 The Department of State does not consider this rule to be a ``significant regulatory action'' under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order. Executive Order 12988 The Department has reviewed this regulation in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden. Executive Orders 12372 and 13132 This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this regulation. Paperwork Reduction Act This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35. List of Subjects in 22 CFR Part 62 Cultural Exchange Programs. Accordingly, 22 CFR part 62 is to be amended as follows: PART 62--EXCHANGE VISITOR PROGRAM 1. The Authority citation for part 62 continues to read as follows: Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C. 1431-1442, 2451-2460; Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. 105-277, 112 Stat. 2681 et seq.; Reorganization Plan No. 2 of 1977, 3 CFR, 1977 Comp. p. 200; E.O. 12048 of March 27, 1978; 3 CFR, 1978 Comp. p. 168. 2. Section 62.31 is amended by revising paragraph (k) and adding paragraphs (o) and (p) to read as follows: Sec. 62.31 Au pairs. * * * * * (k) Educational component. Sponsors must: (1) Require that during their initial period of program participation, all EduCare au pair participants complete not less than 12 semester hours (or their equivalent) of academic credit in formal educational settings at accredited U.S. post-secondary institutions and that all other au pair participants complete not less than six semester hours (or their equivalent) of academic credit in formal educational settings at accredited U.S. post-secondary institutions. As a condition of program participation, host family participants must agree to facilitate the enrollment and attendance of au pairs in accredited U.S. post secondary institutions and to pay the cost of such academic course work in an amount not to exceed $1,000 for EduCare au pair participants and in an amount not to exceed $500 for all other au pair participants. (2) Require that during any extension of program participation, all participants (i.e., Au Pair or EduCare) satisfy an additional educational requirement, as follows: (i) For a nine or 12-month extension, all au pair participants and host families shall have the same obligation for coursework and payment therefore as is required during the initial period of program participation. (ii) For a six-month extension, EduCare au pair participants must complete not less than six semester hours (or their equivalent) of academic credit in formal educational settings at accredited U.S. post- secondary institutions. As a condition of participation, host family participants must agree to facilitate the enrollment and attendance of au pairs at accredited U.S. post secondary institutions and to pay the cost of such academic coursework in an amount not to exceed $500. All other au pair participants must complete not less than three semester hours (or their equivalent) of academic credit in formal educational settings at accredited U.S. post-secondary institutions. As a condition of program participation, host family participants must agree to facilitate the enrollment and attendance of au pairs at accredited U.S. post secondary institutions and to pay the cost of such academic coursework in an amount not to exceed $250. * * * * * (o) Extension of Program. The Department, in its sole discretion, may approve extensions for au pair participants beyond the initial 12- month program. Applications to the Department for extensions of six, nine, or 12 months, must be received by the Department not less than 30 calendar days prior to the expiration of the exchange visitor's initial authorized stay in either the Au Pair or EduCare program (i.e., 30- calendar days prior to the program end date listed on the exchange visitor's Form DS-2019). The [[Page 33239]] request for an extension beyond the maximum duration of the initial 12- month program must be submitted electronically in the Department of Homeland Security's Student and Exchange Visitor Information System (SEVIS). Supporting documentation must be submitted to the Department on the sponsor's organizational letterhead and contain the following information: (1) Au pair's name, SEVIS identification number, date of birth, the length of the extension period being requested; (2) Verification that the au pair completed the educational requirements of the initial program; and (3) Payment of the required non-refundable fee (see 22 CFR 62.90) via Pay.gov. (p) Repeat Participation. Exchange visitors who have participated in the Au Pair Program are not eligible for repeat participation. Dated: June 2, 2006. Stanley S. Colvin, Director, Office of Exchange Coordination and Designation, Bureau of Educational and Cultural Affairs, Department of State. [FR Doc. E6-8958 Filed 6-7-06; 8:45 am] BILLING CODE 4710-05-P http://www.Dr-Immigration.com/news/shownews.asp?newsID=64 Sat, 7 Mar 2009 20:31:18 EST [Federal Register: June 17, 2008 (Volume 73, Number 117)] [Notices] [Page 34356] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr17jn08-113] --------------------------------------- DEPARTMENT OF STATE [Public Notice 6262] In the Matter of the Review of the Designation of Lashkar i Jhangvi as a Foreign Terrorist Organization Pursuant to Section 219 of the Immigration and Nationality Act, as Amended Based upon a review of the Administrative Record assembled in this matter, and in consultation with the Attorney General and the Secretary of the Treasury, I conclude that there is a sufficient factual basis to find that the circumstances that were the basis for the 2003 designation of Lashkar i Jhangvi as a foreign terrorist organization have not changed in such a manner as to warrant revocation of the designation and that the national security of the United States does not warrant a revocation. Therefore, I hereby determine that the designation of Lashkar i Jhangvi as a foreign terrorist organization, pursuant to Section 219 of the Immigration and Nationality Act, as amended (8 U.S.C. 1189), shall be maintained. This determination shall be published in the Federal Register. Dated: June 9, 2008. John D. Negroponte, Deputy Secretary of State, Department of State. [FR Doc. E8-13620 Filed 6-16-08; 8:45 am] BILLING CODE 4710-10-P http://www.Dr-Immigration.com/news/shownews.asp?newsID=63 Sat, 7 Mar 2009 20:31:09 EST Office of Communications USCIS Update June 30, 2008 USCIS Launches Online Service to Check Status of FOIA Requests WASHINGTONU.S. Citizenship and Immigration Services (USCIS) recently launched the online FOIA Request Status Check service providing customers a quick and secure way to check the status of requests they have made under the Freedom of Information Act (FOIA). Customers can use the online service anytime by entering their assigned control number to receive an immediate response on the status of their FOIA request. The customer will then receive either a pending or processed response. A pending response indicates to the customer the position of their request relative to all other requests in the same processing track. A processed request indicates that the request was processed and the customer will be provided that processing date. USCIS will make daily updates to the status information. Customers without Internet access can still obtain information on their FOIA requests by calling the USCIS FOIA Requester Service Center at (816) 350-5785 from 7 a.m. to 2:15 p.m. (Central Time). As USCIS receives more than 110,000 requests annually for access to immigration records, the agency continues to improve its FOIA procedures and enhance processing times. For example, last year USCIS launched a new Notice to Appear track that provides accelerated access of a large portion of FOIA requests from individuals, or their representatives, who have been notified to appear before an immigration court. That new track provides those customers quicker access to their Alien-File (A-File) when it is requested through the FOIA process. For more information on USCIS FOIA program, visit www.uscis.gov or contact the National Customer Service Center at (800) 375-5283 (TTY 800-767-1833). USCIS http://www.Dr-Immigration.com/news/shownews.asp?newsID=62 Sat, 7 Mar 2009 20:30:59 EST BY Office of Communications www.uscis.gov Questions and Answers July 8, 2008 USCIS BIOMETRIC CHANGES FOR RE-ENTRY PERMITS AND REFUGEE TRAVEL DOCUMENTS U.S. Citizenship and Immigration Services (USCIS) has issued revised instructions for USCIS Form I-131, Application for Travel Document. The instructions include changes effective March 5, 2008 that require applicants for re-entry permits and refugee travel documents to provide biometrics (e.g., fingerprints and photographs) at a USCIS Application Support Center (ASC) for background and security checks and to meet requirements for secure travel and entry documents containing biometric identifiers. Q. What are the new biometric changes for re-entry permits and refugee travel documents? A. The new instructions for Form I-131 require that applicants for re-entry permits and refugee travel documents that are ages 14 through 79 provide biometrics before departing from the United States. Applicants also are strongly encouraged to apply, whenever possible, well in advance of their anticipated travel dates to allow time to attend their ASC appointments and to receive their travel documents. Shortly after filing a Form I-131 for a refugee travel document or a re-entry permit, USCIS will mail the applicant his or her receipt and an ASC scheduling notice. Certain overseas USICS offices may, in their discretion, accept and adjudicate Form I-131 filed for a refugee travel document (but not re-entry permits), where the applicant has failed to apply while in the U.S. (see 8 C.F.R. 223.2(b)(2)(ii)). However, applicants for refugee travel documents should not count on the overseas offices necessarily agreeing to accept and adjudicate an I-131 in all cases, particularly where it is evident that the individual could have applied while in the U.S. and attended his or her biometrics appointment. Q. Is there a fee for the new biometrics requirement for applicants applying for re-entry permits and refugee travel documents? A. The instructions discuss the requirement for applicants for re-entry permits and refugee travel documents who are in the United States to pay the $80 biometrics services fee, or to submit a biometrics fee waiver request with sufficient documentation to support their inability to pay the fee. As in the past, the application fee for Form I-131 cannot be waived. Q. What are the procedures for requesting an expedited adjudication of Form I-131? A. If applicants require expedited processing, the instructions provide specific information for submitting pre-paid express mailers with the Form I-131 for USCIS to send the applicant his or her receipt and ASC appointment notice, as well as the completed re-entry permit or refugee travel document, if approved. A request for expedited processing should contain the applicants reasons for such processing so that USCIS may determine whether the applicant qualifies for expedited processing. Q. Will Forms I-131 already in the pipeline that remain unadjudicated as of 3/5/08 at the Nebraska Service Center be subject to the new biometrics requirement? A. No, not unless USCIS determines, in a particular case, that there is a need for additional biometrics (other than the photographs that all applicants were required to submit with their I-131) for a specific reason related to the adjudication of that case, such as a question regarding the applicants true identity. As always, USCIS reserves its authority in such a case to request additional information, which may include biometrics. The general requirement for applicants for refugee travel permits and re-entry permits to appear for a biometrics appointment at an ASC is for applications filed on or after the effective date 03/05/08, not for the applications that are pending as of that date. Applications that were filed prior to 03/05/08 will need to contain valid photographs for document production and verification of identity. Applicants that filed prior to 03/05/08 will not be required to pay the $80 biometrics fee. Q. How and when will applicants be notified that they must pay the additional biometrics fee? A. The I-131 form instructions, revised on 02/26/2008, as well as the USCIS Update released on 03/05/2008 notify all applicants for refugee travel documents or re-entry permits that a $80 biometrics fee (or a properly supported fee waiver request) is necessary for processing if the person is in the age range (14 79) that is required to attend an ASC appointment for biometrics. Q. Will Forms I-131 submitted/mailed before 3/5/08 but received at the NSC on 3/5/08 be subject to the new requirement? A. No, if the applicant does not submit the biometrics fee and mailed his or her Form I-131 before 03/05/08, USCIS will process the application according the procedures in place before the Form I-131 biometrics requirement. However, as mentioned above, USCIS continues to reserve its authority to request biometrics as additional information, if needed, for the adjudication of a specific case even if the person submitted his or her application prior to 3/5/08. Q. Do the revised Form I-131 instructions require advance parole applicants to complete biometrics? A. Applicants for advance parole are not required to submit biometrics at this time. An applicant for advance parole must continue to submit two identical color photographs of the applicant taken within 30 days of the filing of the Form I-131 application. Q. Is e-filing available for aliens applying for a re-entry permit or a refugee travel document on the USCIS website? A. Currently, only those who are seeking to e-file Form I-131 for advance parole would be able to use the e-filing option. The system is currently unable to accept the additional biometrics fees that are required for refugee travel documents and re-entry permits. Therefore, customers are encouraged to file via paper until the system is changed. Once the system is in place, e-filing of Form I-131 will be available for all categories. Q. Are applicants for Form I-131 re-entry permits or refugee travel documents required to be physically present in the U.S. at the time of filing of the I-131 application? A. While USCIS urges all applicants for refugee travel documents to anticipate their need for the document before leaving the United States and to allow sufficient time for processing and adjudication, certain USCIS overseas offices do have discretionary authority to adjudicate an application for a RTD. See 8 C.F.R. 223.2 (b)(2)(ii). This option is not available for applications for re-entry permits. Applicants filing for re-entry permits must be physically present in the United States when they file the re-entry permit application. See 8 C.F.R. 223.2(b)(1). USCIS or a U.S. Department of State Embassy or Consulate can deliver re-entry permits, as well as refugee travel documents to the applicant at an overseas office if the applicant requests so at the time of filing Form I-131. See 8 C.F.R. 223.2(f). To reiterate, filing of Form I-131 for a re-entry permit must be done while the person is physically present in the United States. Q. May an I-131 applicant for a re-entry permit or refugee travel document complete biometrics outside of the United States? A. Form I-131 instructions provide guidance for certain persons who are abroad at the time of filing to visit a U.S. Embassy or consulate for fingerprinting, although all applicants are urged to file before leaving the United States. Since certain overseas offices have the discretion to accept and adjudicate applications for refugee travel documents, although it is not mandatory that they do so, an applicant for a refugee travel document may complete biometrics outside of the United States, but is encouraged to wait to travel until his or her biometrics have been collected and the document delivered. As discussed earlier, certain overseas USCIS offices may, in their discretion, adjudicate Form I-131 filed for a refugee travel document (but not re-entry permits), where the applicant has failed to apply while in the U.S. (see 8 C.F.R. 223.2(b)(2)(ii)). However, applicants for refugee travel documents should not count on the overseas offices necessarily agreeing to adjudicate Form I-131 in all cases, particularly where it is evident that the individual could have applied while in the U.S. and attended his or her biometrics appointment. Applicants for reentry permits should attend their biometric appointment at the designated ASC. If the applicant departs the United States before the biometrics are collected, the application may be denied. Q. Will Form I-131 re-entry permit or refugee travel document be denied if the applicant leaves the U.S. after the application has been filed and receipted but before biometrics are completed? A. Form I-131 form instructions state, Departure from the United States before a decision is made on an application for a Re-entry Permit usually does not affect the application. However, where biometric collection is required and the applicant departs the United States before the biometrics are collected, the application may be denied. Travel is not advisable. If an applicant leaves and comes back, his or her application may be denied while abroad, and he or she may not be able to get back into the country. Even though an overseas USCIS office may, in its discretion, take the biometrics of an applicant for a refugee travel document, there is no guarantee that the office will necessarily exercise its discretion to do so. Therefore, USCIS again urges all I-131 applicants for whom biometrics will be required to file their applications well in advance of their scheduled departure dates. USCIS suggests applicants apply for a travel document at least 60 days prior to the date of travel. Q. I am a Lawful Permanent Resident (LPR) who will be out of the US for more than 1 year? What documents will I need to return to the US? A. To reenter the U.S. an LPR normally needs to present his or her green card (Permanent Resident Card, Form I-551). A reentry permit is needed for reentry from absences outside the U.S. that are greater than one year but less than two years in duration. Thus, if an LPR anticipates remaining outside the U.S. for longer than one year, he/she will need to apply for a reentry permit while he or she is in the U.S. See 8 C.F.R. 223.2(b)(1)(Re-entry permit may be approved IF filed by a person who is in the U.S. at the time of application)(emphasis added). An application is not complete until an individual has provided his or her fingerprints and photograph (i.e., biometrics). The newly revised I-131 instructions also provide procedures for requesting an expedited ASC appointment for biometrics collection and for requesting expedited delivery of a travel document, where needed. USCIS believes that the majority of LPRs who live abroad will be able to re-enter the U.S. using their Permanent Resident Cards. Those LPRs who currently live abroad, but who know that when they return to the U.S. they will need to apply for a Re-entry Permit because they plan to leave the U.S. again for more than a year and will need the permit to re-enter the next time they come to the U.S., USCIS encourages these LPRs to anticipate their need for the Re-entry Permit sufficiently in advance of their travel and, if necessary, to follow the procedures for obtaining an expedited ASC appointment where absolutely necessary. If the LPR departs from the U.S while the I-131 is pending, but before biometrics are taken, then the adjudication of the I-131 re-entry permit application will not be affected as long as the applicant returns to the U.S. to attend the biometrics appointment before the first year of foreign travel has ended. In such case, the LPR could apply for reentry to the U.S. using only his or her I-551 Permanent Resident Card if he has been absent for less than one year. We further note that if it is necessary, the LPR may make arrangements to have his Re-entry Permit delivered to him through a U.S. consulate or a USCIS office abroad. 8 C.F.R. 223.2(f). Q. Is there a place for me to call with further questions? A. Please contact the USCIS National Customer Service Center by calling (800) 375-5283 or (800) 767-1833 (TTY). http://www.Dr-Immigration.com/news/shownews.asp?newsID=61 Sat, 7 Mar 2009 20:30:53 EST BY Office of Communications www.uscis.gov USCIS Update July 9, 2008 USCIS Continues Suspension of Premium Processing Service for Religious Workers (R-1) Nonimmigrant Visa Classification WASHINGTONU.S. Citizenship and Immigration Services (USCIS) announced today that the suspension of premium processing service for religious worker (R-1) nonimmigrant visa petitions will continue at least until January 7, 2009. A previous six-month suspension was announced on January 4, 2008. The Premium Processing Service provides faster processing of certain employment-based petitions and guarantees a 15-calendar day processing time. Due to the complexities with adjudicating R-1 nonimmigrant visa petitions, USCIS cannot reasonably ensure a level of processing service within 15 calendar days. On April 25, 2007, USCIS proposed significant revisions to its regulations related to the special immigrant and nonimmigrant (R-1) religious worker visa classifications. The proposed rule suggested steps to eliminate fraud in the religious worker program and discusses potential vulnerabilities addressed in an August 2005 Benefit Fraud Assessment conducted by USCIS Office of Fraud Detection and National Security. USCIS is currently considering comments on the proposed rule and promulgating the final rule. USCIS will continue processing R-1 nonimmigrant visa petitions which include established procedures designed to ensure the legitimacy of the petitioner and statements made in the petition. The procedures may include inspections, evaluations, verifications and compliance reviews for religious organizations procedures that exceed the 15-day guarantee for premium processing. In the future, if USCIS is able to properly process these cases within 15 calendar days of receipt, the Petition for a Nonimmigrant Worker (Form I-129) requesting R-1 nonimmigrant visa classification may once again be available for premium processing services. Additionally, USCIS may prescribe additional conditions of availability on the Premium Processing Service for religious worker petitions. -USCIS http://www.Dr-Immigration.com/news/shownews.asp?newsID=60 Sat, 7 Mar 2009 20:30:43 EST By USCIS: Director U.S. Citizenship and Immigration Services Washington, DC 20529 www.uscis.gov Memorandum DATE: May 23, 2008 TO: Michael T. Dougherty Citizenship and Immigration Services Ombudsman FROM: Jonathan R. Scharfen /S/ Acting Director SUBJECT: Response to Recommendation #33, Recommendation on the Processing of Petitions that are Returned by the U.S. Department of State for Revocation/Revalidation Ombudsman Recommendation Your office has recommended several changes in the way USCIS currently handles petitions that are returned by the U.S. Department of State (DOS) for revocation/revalidation. The specific recommendations are that USCIS should: 1. Issue receipt notices to customers when the petition file is returned and received by USCIS Service Centers. 2. Establish a nationwide standard for the re-adjudication of petitions returned by consular offices for revocation or revalidation and amend the Operating Instructions/Adjudicators Field Manual accordingly; include a REVOCATION entry in the processing time reports. 3. Provide additional information about revocation or revalidation processes on the USCIS website. USCIS Response USCIS appreciates your interest in the issue of processing petitions that are returned by DOS. Each recommendation listed above is addressed separately below: 1. Issue receipt notices to customers when the petition file is returned and received by USCIS Service Centers. Page 2 Response to Recommendation #33, Recommendation on the Processing of Petitions that are Returned by the U.S. Department of State for Revocation/Revalidation This has been accomplished. Once a petition/application is returned by DOS and received by USCIS, it is updated in the USCIS database (CLAIMS-3). Since at least February 2006, a Form I-797C, Notice of Action, is generated and forwarded to the petitioner informing him/her that DOS has returned their petition for review. 2. Establish a nationwide standard for the re-adjudication of petitions returned by consular offices for revocation or revalidation and amend the Operating Instructions/Adjudicators Field Manual accordingly; include a REVOCATION entry in the processing time reports. USCIS does not believe that it is practical to establish nationwide standards for re-adjudication for returned petitions from DOS because the processing of the revocation depends on the information received from the Consulate. For example, cases returned for fraud or suspected fraud are routed to dedicated fraud units for further investigation. The length of the fraud investigation depends on the nature of the alleged fraud and whether or not the case is part of a larger fraud scheme. Additionally, it is not always feasible to disclose information on a pending revocation involving fraud, as USCIS would not want to compromise an ongoing investigation. There are several situations where USCIS may not act on a specific returned petition. For instance, K-1 petitions are temporally limited and may expire due to the passage of time. According to 8CFR 214.2(k)(5), an approved K-1 petition is only valid for four months. Consequently, in a number of cases, the K-1 petition will have already expired by the time DOS returns it to USCIS. Once a petition has expired, it may not be reviewed by USCIS. Furthermore, Petitions for Alien Fiance(e) (Form I-129 F) returned from a Consulate, Embassy, or NVC after approval may not be revoked, as there are no provisions in the law or regulation for revoking the approval of an I-129F. In addition, USCIS does not believe that the Adjudicators Field Manual (AFM) must be amended. Presently, the AFM includes general standard operating procedures for revocations that apply when an adjudicator has found derogatory information or after a petition/application has been returned by DOS for review (AFM chapter 20.3& 30.10). USCIS will issue a Notice of Intent to Revoke (NOIR) granting the petitioner a reasonable period of time (usually 30 days) to submit evidence in opposition to the revocation. If the petitioner overcomes the reasons for revocation, the adjudicator updates CLAIMS-3. A reaffirmation notice is then generated and forwarded to the petitioner. If the petition was returned from DOS, the petition is sent back to DOS with copies of the letter of intent to revoke, the petitioner's response, and a reaffirmation memo stating the reason for the return. If the petitioner does not overcome the basis for the revocation, or fails to respond timely, a decision of revocation is prepared on Form I-292. A petitioner may file an appeal on a decision to revoke a petition. USCIS does not agree with the Ombudsmans recommendation to include REVOCATION entry in the processing time reports. Although REVOCATION does not appear in the processing time reports, it is treated as a Request for Evidence or a Notice of Intent to Deny. 3. Provide additional information about revocation or revalidation processes on the USCIS website. Page 3 Response to Recommendation #33, Recommendation on the Processing of Petitions that are Returned by the U.S. Department of State for Revocation/Revalidation USCIS agrees with this part of the recommendation and will add a revocation fact sheet to its website. http://www.Dr-Immigration.com/news/shownews.asp?newsID=59 Sat, 7 Mar 2009 20:30:36 EST By USCIS: Director U.S. Citizenship and Immigration Services Washington, DC 20529 www.uscis.gov Memorandum DATE: May 23, 2008 TO: Michael T. Dougherty Citizenship and Immigration Services Ombudsman FROM: Jonathan R. Scharfen /S/ Acting Director SUBJECT: Response to Recommendation #33, Recommendation on the Processing of Petitions that are Returned by the U.S. Department of State for Revocation/Revalidation Ombudsman Recommendation Your office has recommended several changes in the way USCIS currently handles petitions that are returned by the U.S. Department of State (DOS) for revocation/revalidation. The specific recommendations are that USCIS should: 1. Issue receipt notices to customers when the petition file is returned and received by USCIS Service Centers. 2. Establish a nationwide standard for the re-adjudication of petitions returned by consular offices for revocation or revalidation and amend the Operating Instructions/Adjudicators Field Manual accordingly; include a REVOCATION entry in the processing time reports. 3. Provide additional information about revocation or revalidation processes on the USCIS website. USCIS Response USCIS appreciates your interest in the issue of processing petitions that are returned by DOS. Each recommendation listed above is addressed separately below: 1. Issue receipt notices to customers when the petition file is returned and received by USCIS Service Centers. Page 2 Response to Recommendation #33, Recommendation on the Processing of Petitions that are Returned by the U.S. Department of State for Revocation/Revalidation This has been accomplished. Once a petition/application is returned by DOS and received by USCIS, it is updated in the USCIS database (CLAIMS-3). Since at least February 2006, a Form I-797C, Notice of Action, is generated and forwarded to the petitioner informing him/her that DOS has returned their petition for review. 2. Establish a nationwide standard for the re-adjudication of petitions returned by consular offices for revocation or revalidation and amend the Operating Instructions/Adjudicators Field Manual accordingly; include a REVOCATION entry in the processing time reports. USCIS does not believe that it is practical to establish nationwide standards for re-adjudication for returned petitions from DOS because the processing of the revocation depends on the information received from the Consulate. For example, cases returned for fraud or suspected fraud are routed to dedicated fraud units for further investigation. The length of the fraud investigation depends on the nature of the alleged fraud and whether or not the case is part of a larger fraud scheme. Additionally, it is not always feasible to disclose information on a pending revocation involving fraud, as USCIS would not want to compromise an ongoing investigation. There are several situations where USCIS may not act on a specific returned petition. For instance, K-1 petitions are temporally limited and may expire due to the passage of time. According to 8CFR 214.2(k)(5), an approved K-1 petition is only valid for four months. Consequently, in a number of cases, the K-1 petition will have already expired by the time DOS returns it to USCIS. Once a petition has expired, it may not be reviewed by USCIS. Furthermore, Petitions for Alien Fiance(e) (Form I-129 F) returned from a Consulate, Embassy, or NVC after approval may not be revoked, as there are no provisions in the law or regulation for revoking the approval of an I-129F. In addition, USCIS does not believe that the Adjudicators Field Manual (AFM) must be amended. Presently, the AFM includes general standard operating procedures for revocations that apply when an adjudicator has found derogatory information or after a petition/application has been returned by DOS for review (AFM chapter 20.3& 30.10). USCIS will issue a Notice of Intent to Revoke (NOIR) granting the petitioner a reasonable period of time (usually 30 days) to submit evidence in opposition to the revocation. If the petitioner overcomes the reasons for revocation, the adjudicator updates CLAIMS-3. A reaffirmation notice is then generated and forwarded to the petitioner. If the petition was returned from DOS, the petition is sent back to DOS with copies of the letter of intent to revoke, the petitioner's response, and a reaffirmation memo stating the reason for the return. If the petitioner does not overcome the basis for the revocation, or fails to respond timely, a decision of revocation is prepared on Form I-292. A petitioner may file an appeal on a decision to revoke a petition. USCIS does not agree with the Ombudsmans recommendation to include REVOCATION entry in the processing time reports. Although REVOCATION does not appear in the processing time reports, it is treated as a Request for Evidence or a Notice of Intent to Deny. 3. Provide additional information about revocation or revalidation processes on the USCIS website. Page 3 Response to Recommendation #33, Recommendation on the Processing of Petitions that are Returned by the U.S. Department of State for Revocation/Revalidation USCIS agrees with this part of the recommendation and will add a revocation fact sheet to its website. http://www.Dr-Immigration.com/news/shownews.asp?newsID=58 Sat, 7 Mar 2009 20:30:27 EST BY US Immigration and Customs Enforcements: News Releases July 2, 2008 5 employers of Action Rags USA charged with hiring, employing illegal aliens HOUSTON A criminal complaint was unsealed today charging the owner and managers of Action Rags USA, an exporter and grader of used clothing, with conspiracy to harbor illegal aliens, inducing illegal aliens to come to the U.S. and engaging in a pattern or practice of hiring illegal aliens. These arrests were announced today by U.S. Attorney Don DeGabrielle, Southern District of Texas, and Robert Rutt, special agent in charge of the ICE Office of Investigations in Houston. Those charged include the owner, Mabarik Kahlon (aka Barco), 45; his partner and uncle, Rasheed Ahmed (aka Rachin), 58; manager Cirila Barron, 38; resource manager Valerie Rodriguez, 34; and warehouse supervisor Mayra Herrera-Gutierrez, 32. Barron and Herrera- Gutierrez are illegal aliens who reside in Houston from Mexico; Kahlon, Ahmed and Rodriguez all reside in Houston. All five are scheduled to make appearances in court July 3 before U.S. Magistrate Judge Calvin Botley at 10 a.m. The federal criminal complaint alleges the defendants were involved in a pattern and practice of hiring a number of illegal aliens to work at the plant and knowingly accepting false documents as proof of citizenship for those workers. Like most of ICEs worksite enforcement cases, todays criminal charges against the owners and managers of Action Rags are the result of a lengthy and complex investigative process, said Robert Rutt. However, building any criminal prosecution with the U.S. Attorneys Office can take many months of investigation. ICE will do whatever it takes in these cases to ensure that justice is served. U.S. Immigration and Customs Enforcement (ICE) began its investigation into Action Rags following complaints in May 2007, leading investigators to locate and interview a number of former and current employees of the plant. According to the criminal complaint, the yearlong investigation revealed the following alleged criminal activity: the company did not complete I-9 forms to verify eligibility for employment; and the company hired undocumented aliens and paid them in cash until they were able to purchase fraudulent identity and social security cards from local flea markets. Page 1 of 2 5 employers of Action Rags USA charged with hiring, employing illegal aliens 7/8/2008 http://www.ice.gov/pi/nr/0807/080702houston.htm ICE agents conducted an undercover operation in July 2007, according to allegations in the criminal complaint, during which a person posing as a fraudulently documented alien told the defendants she purchased her identification documents at a local flea market. The defendants accepted the documents and did not prepare an I-9 form or a W-4 form for tax withholding. The investigation resulted in discovering about 300 persons employed at the plant who worked a single shift from 7 a.m. to 3:30 p.m. daily, and to the subsequent execution of a search warrant on June 25, 2008 at the east Houston plant located at 1225 Port Houston, near the Houston Ship Channel. The enforcement action resulted in the administrative detention of more than 150 illegal aliens, most from Mexico, discovered working at the plant. According to the complaint, employees had to supply their own water in the plant, which was not air-conditioned and poorly ventilated. A criminal complaint is a formal accusation of alleged criminal conduct, not evidence. Each defendant is presumed innocent unless convicted through due process of law. Assistant U.S. Attorneys Doug Davis and Ryan D. McConnell, Southern District of Texas, are prosecuting this case. -- ICE -- Last Modified: Monday, July 7, 2008 U.S. Immigration and Customs Enforcement (ICE) was established in March 2003 as the largest investigative arm of the Department of Homeland Security. ICE is comprised of five integrated divisions that form a 21st century law enforcement agency with broad responsibilities for a number of key homeland security priorities. Page 2 of 2 5 employers of Action Rags USA charged with hiring, employing illegal aliens 7/8/2008 http://www.ice.gov/pi/nr/0807/080702houston.htm http://www.Dr-Immigration.com/news/shownews.asp?newsID=57 Sat, 7 Mar 2009 20:30:21 EST BY Immigration and Customs Enforcements, ICE: News Releases July 3, 2008 Two alleged supervisors arrested at Agriprocessors in Postville Public's assistance sought in locating third defendant CEDAR RAPIDS, Iowa - Two alleged supervisors at the Agriprocessors Inc. plant in Postville,Iowa, were arrested today on various criminal immigration and fraudulent identity charges. U.S. Attorney Matt M. Dummermuth, Northern District of Iowa, made the announcement; U.S. Immigration and Customs Enforcement (ICE) is conducting the investigation. Juan Carlos Guerrero-Espinoza, 35, and Martin De La Rosa-Loera, 43, were arrested this morning at the Agriprocessors Inc. plant. Both Guerrero-Espinoza and De La Rosa-Loera were charged with aiding and abetting the possession and use of fraudulent identity documents, and encouraging aliens to illegally reside in the United States. Guerrero-Espinoza was also charged with aiding and abetting aggravated identity theft. The charges are contained in Complaints filed today in U.S. District Court in Cedar Rapids. Guerrero-Espinoza 's Complaint alleges he is a supervisor of four departments at Agriprocessors in Postville, including the Beef Kill department. The Complaint alleges that, a few days before the May 12, 2008, execution of a search warrant at Agriprocessors, Guerrero-Espinoza told a group of employees they needed new IDs and Social Security numbers to continue working at the company, and they would need to provide Guerrero-Espinoza with a photograph and $200 or $220. Fraudulent resident alien cards were allegedly supplied to Agriprocessors workers. The Complaint also alleges that the May 12 search resulted in seizing dozens of fraudulent permanent alien resident cards from offices within the human resources department at Agriprocessors. De La Rosa-Loera's Complaint alleges he is a supervisor of four departments at Agriprocessors in Postville, including the Poultry Kill department. The Complaint alleges that, about 15 days before the May 12, 2008, execution of a search warrant at Agriprocessors, De La Rosa-Loera told some undocumented alien employees they could no longer work at Agriprocessors because their social security numbers were bad, and they needed new documents. De La Rosa-Loera later allegedly told those employees they could return to work using the same names previously used for employment. Guerrero-Espinoza and De La Rosa-Loera are scheduled for initial appearances at 4 p.m. July 3 in federal court in Cedar Rapids. The public's assistance is being sought in apprehending Hosam Amara, 43, last known to live in Postville. A federal warrant has been issued for his arrest based on a sealed Complaint. Anyone Page 1 of 2 Two alleged supervisors arrested at Agriprocessors in Postville 7/7/2008 http://www.ice.gov/pi/nr/0807/080703cedarrapids.htm with information as to Amara's whereabouts should call ICE at (866) DHS-2-ICE (347-2423). As with any criminal case, a charge is merely an accusation; a defendant is presumed innocent until and unless proven guilty. Assistant U.S. Attorneys Peter Deegan, CJ Williams and Matt Cole, Northern District of Iowa, are prosecuting this case. -- ICE -- Last Modified: Thursday, July 3, 2008 U.S. Immigration and Customs Enforcement (ICE) was established in March 2003 as the largest investigative arm of the Department of Homeland Security. ICE is comprised of five integrated divisions that form a 21st century law enforcement agency with broad responsibilities for a number of key homeland security priorities. Page 2 of 2 Two alleged supervisors arrested at Agriprocessors in Postville 7/7/2008 http://www.ice.gov/pi/nr/0807/080703cedarrapids.htm http://www.Dr-Immigration.com/news/shownews.asp?newsID=56 Sat, 7 Mar 2009 20:30:10 EST By USCIS: Office of Communications USCIS Update July 9, 2008 USCIS ANNOUNCES NEW SPECIAL IMMIGRANT VISA FOR CERTAIN IRAQI NATIONALS WHO WORKED FOR THE U.S. GOVERNMENT WASHINGTON U.S. Citizenship and Immigration Services (USCIS) today announced guidelines for a new special immigrant visa for certain Iraqi nationals who worked for, or were contractors of the United States government in Iraq for at least one year after March 20, 2003. Section 1244 of the Defense Authorization Act for Fiscal Year 2008 authorizes 5,000 special immigrant visas for Iraqi employees and contractors each year for fiscal years (FY) 2008 through 2012, as well as their spouses and children. There are no filing or biometric fees associated with this petition. If the numerical limitation is not reached during a given fiscal year, the unused numbers will roll-over into the 5,000 authorized for the following fiscal year. If the numerical limitation for FY 2012 is not reached, any unused numbers from that year may be used in FY 2013. Numbers will not carry forward into FY 2014. This new program is not the same as the Section 1059 special immigrant visa program for Afghan and Iraqi translators. However, eligible translators who file or who have filed under that program before Oct. 1, 2008, and who are unable to adjust status or receive an immigrant visa because we have reached the current years cap of 500, will automatically become eligible to receive a visa number under the new Section 1244 program. Those translators do not need to provide any additional documents or meet any other eligibility requirements under the new program as long as they meet the requirements under the Section 1059 translator program. However, individuals who file under Section 1059 after Sept. 30, 2008 will be subject to an annual cap of 50 for FY 2009. A complete description of the new special immigrant visa program to include eligibility and filing requirements is available on the USCIS web site at: www.uscis.gov/files/nativedocuments/AD08-17.pdf. Form I-360 and instructions are available for download from the USCIS website. All petitions and supporting documents must be filed, by either regular mail or overnight delivery, with the Nebraska Service Center at: Regular Mail: USCIS/ Nebraska Service Center (NSC) P.O. Box 87360 Lincoln, NE 68501-2521 Overnight Deliveries: USCIS/ Nebraska Service Center (NSC) 850 S Street Lincoln, NE 68508 If you have an approved I-360 petition, and have questions regarding your status, please see the Department of States Frequently Asked Questions on the Special Immigrant Visa Process at, http://travel.state.gov/visa/immigrants/info/info_4172.html or contact the National Visa Center at NVCSIV@state.gov. All inquiries on refugee resettlement benefits should be made directly with the State Departments Refugee Processing Center at, SIV@wrapsnet.org. Frequently asked questions about Resettlement Benefits for Iraqi nationals with U.S. Government affiliations are also available at http://www.wrapsnet.org/LinkClick.aspx?fileticket=vlrVLvgQIRA%3d&tabid=75&mid=790&language=en-US. Additional benefits may also be available through The Department of Health and Human Services Office of Refugee Resettlement, http://www.acf.hhs.gov/programs/orr/policy/sl08-04.htm. USCIS http://www.Dr-Immigration.com/news/shownews.asp?newsID=55 Sat, 7 Mar 2009 20:30:00 EST By USCIS: U.S. Citizenship and Immigration Services Office of Domestic Operations Washington, DC 20529 HQ DOMO 70/6.1.7 AFM Update AD08-17 Interoffice Memorandum TO: Field Leadership FROM: Donald Neufeld /s/ Acting Associate Director, Domestic Operations DATE: July 7, 2008 SUBJECT: Special Immigrant Visas for Certain Iraqis under Section 1244 of Public Law 110-181, the National Defense Authorization Act for Fiscal Year 2008, as amended. Revisions to Adjudicators Field Manual (AFM) Chapter 22.3 (AFM Update AD08-17) This memorandum revises the Adjudicators Field Manual (AFM) by adding new guidance on adjudicating Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, for persons claiming special immigrant status under Section 1244 of Public Law 110-181, the National Defense Authorization Act for Fiscal Year 2008, as amended by Public Law 110-242. An alien is classifiable under INA 203(b)(4) as a special immigrant described in section 1244 of Public Law 110-181, as amended, if a petition to accord such status has been approved by the Secretary of Homeland Security. This guidance is effective immediately. Questions regarding this memorandum may be directed by email through the appropriate supervisory channels to David Tu, Office of Service Center Operations. Accordingly, the AFM is revised as follows: 1. Chapter 22.3 of the AFM is amended by adding the following to Section (a): (a) General . A limit of 5,000 per year for 5 successive fiscal years beginning with Fiscal Year 2008 on the Special Immigrant Visas for Certain Iraqis under Section 1244 of P.L. 110-181, National Defense Authorization Act for FY 2008 AFM Update AD08-17 HQ DOMO 70/6.1.7 Page 2 number of Iraqi nationals who worked for on or on behalf of the U.S. Government in Iraq. If the numerical limitation is not reached during a given fiscal year, the numerical limit for the following fiscal year shall be increased by the amount of numbers that were unused; unused numbers from Fiscal Year 2012 may be used in Fiscal Year 2013. 2. Chapter 22.3 of the AFM is amended to add section (t) as follows: (t) Iraqi Nationals Who Worked for or on Behalf of the U.S. Government in Iraq. (1) General. Section 1244 of Public Law 110-181, National Defense Authorization Act for Fiscal Year 2008, as amended by Public Law 110-242, creates a new special immigrant category under section 101(a)(27) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)) for Iraqi nationals who worked for or on behalf of the U.S. government in Iraq. (2) Background. The Defense Authorization Act for Fiscal Year 2008, Public Law 110-181 was signed into law on January 28, 2008. Section 1244 of this legislation, as amended by section 1 of Public Law 110-242, entitled Special Immigrant Status for Certain Iraqis authorizes 5,000 special immigrant visas for Iraqi employees and contractors each year for fiscal years 2008 through 2012. This provision creates a new category of special immigrant visas for Iraqi nationals, who have provided faithful and valuable service to the U.S. Government, while employed by or on behalf of the U.S. Government in Iraq, for not less than one year beginning on or after March 20, 2003, and who have experienced or are experiencing an ongoing serious threat as a consequence of that employment. (3) Eligibility. To obtain approval of a petition for special immigrant status under section 1244 of Public Law 110-181, a self-petitioning alien must establish that he or she: (1) is a national of Iraq; (2) has been employed by, or on behalf of, the U. S. Government in Iraq, on or after March 20, 2003, for a period of not less than one year; (3) provided faithful and valuable service to the U.S. Government, which is documented in a recommendation from the U.S. citizen or national who is the aliens senior supervisor, or the U.S. citizen or national currently occupying that position, or a more senior U.S. citizen or national, if the aliens senior supervisor has left the employer or left Iraq. If it is not possible to obtain a recommendation from a supervisor who is a U.S. citizen or national, from the aliens senior supervisor, provided the U.S. citizen or national responsible for the contract co-signs the letter. The recommendation must be accompanied by the approval of the Chief of Mission (COM) or designee of the COM based upon an independent review of records maintained by the USG or hiring organization or entity to confirm employment and faithful and valuable service; (4) has experienced or is experiencing an ongoing serious threat as a consequence of the aliens employment by the U.S. Government, as documented by a risk assessment conducted by the COM or the designee of the COM; (5) has cleared a background check and appropriate screening as determined by the Secretary of Homeland Security; and Special Immigrant Visas for Certain Iraqis under Section 1244 of P.L. 110-181, National Defense Authorization Act for FY 2008 AFM Update AD08-17 HQ DOMO 70/6.1.7 Page 3 (6) is otherwise eligible to receive an immigrant visa and is otherwise admissible to the United States for permanent residence. In the determination of such admissibility, the grounds for inadmissibility specified in INA 212(a)(4) (8 U.S.C. 1182(a)(4)) relating to "public charge" shall not apply. (4) Spouses and Children. The spouse or child accompanying or following to join a principal immigrant may be accorded the same special immigrant classification as the principal alien. If the petition of the principal alien was revoked or terminated after its approval due to the death of the petitioning alien, the spouse or child is still eligible for a special immigrant visa. This provision is applicable to a petition under either section 1244 of P.L. 110-181 or section 1059 of the National Defense Authorization Act for FY 2006, as amended (P.L. 109-163; 8 U.S.C. 1101 note), which included the alien as an accompanying spouse or child, and which, due to the death of the principal alien, was revoked or terminated; but would have been a basis for visa issuance1 if the principal alien had survived. Visas issued to derivative spouses and children do not count toward the cap of 5,000 special immigrant visas per year. (5) Filing Requirements. (A) General. An Iraqi national who has worked for or on behalf of the U.S. Government may file this petition on his/her own behalf. The petitioner must file Form I-360 with the Nebraska Service Center. (B) Supporting Documentation. Form I-360 must be filed with: (i) A copy of the applicants passport, birth certificate or national identification card showing that the applicant is a national of Iraq, along with a certified English translation, if the document is in a foreign language. (ii) A positive recommendation from the U.S. citizen or national who is the applicants senior supervisor or the U.S. citizen or national occupying the supervisors position, or a more senior U.S. citizen or national if the senior supervisor has left the employer or has left Iraq, or if it is not possible to obtain a recommendation for a supervisor who is a U.S. citizen or national, from the aliens senior supervisor, provided the U.S. citizen or national responsible for the contract co-signs the letter, confirming employment of not less than one year beginning on or after March 20, 2003. (iii) Proof of risk assessment conducted by the Chief of Mission, Embassy Baghdad, or his or her designee, establishing that the alien has experienced or is experiencing an ongoing serious threat as a consequence of his or her employment by the U. S. Government; 1 There is an inconsistency in the statutory language between the specific reference to a petition for classification approved [that] was revoked or terminated or otherwise rendered null (i.e., was previously approved) and the phrasing would have been approved (i.e., has not been previously approved). We interpret this to mean that the petition must have been approved prior to the principal aliens death, and that it may remain a basis for visa issuance despite the principal aliens death subsequent to petition approval, if the derivative family member is otherwise eligible. Special Immigrant Visas for Certain Iraqis under Section 1244 of P.L. 110-181, National Defense Authorization Act for FY 2008 AFM Update AD08-17 HQ DOMO 70/6.1.7 Page 4 (iv) Proof of an independent review of (ii) above conducted by the Chief of Mission, Embassy Baghdad, or his or her designee, of records maintained by the U.S. Government or hiring organization or entity, to confirm employment and faithful and valuable service to the U.S. Government. (v) If the petition is filed by an applicant in the United States, a copy of the front and back of the applicants Form I-94, Arrival-Departure Record. (C) Classification Requested. Petitioners under the section 1244 category should check box l, Special Immigrant Iraq National who was employed by or on behalf of the United States Government, in Part 2 of Form I-360. If an earlier form is used, petitioners should check box k, Other, explain, and write Iraqi Worker in the space provided. (D) Fees. There are no filing or biometric fees associated with this petition. (6) Number of Visas that may be Issued. The total number of principal aliens who may be provided special immigrant status under this section may not exceed 5,000 per year for Fiscal Years 2008-2012. If the numerical limitation is not reached during a given fiscal year, the numerical limit for the following fiscal year shall be increased by the amount of numbers that were unused. If the numerical limitation for Fiscal Year 2012 is not reached, any unused numbers from that year may be used in Fiscal Year 2013. Numbers will not carry forward into Fiscal Year 2014. (7) Automatic Conversion for Approved Translators and Interpreters. A person with an approved petition for special immigrant status under section 1059 of the National Defense Authorization Act for Fiscal Year 2006 (8 U.S. C. 1101 note), for whom a visa under such section is not immediately available, is eligible for special immigrant status under section 1244 of Public Law 110-181, with respect to petitions that are filed on or before September 30, 2008. In such cases, the approval will be counted against available section 1244 visa numbers, but in all substantive respects eligibility is determined under section 1059 rather than under the different eligibility requirements of section 1244. (8) Eligibility to Adjust Status in the United States. Petitioners under this category may not file for adjustment of status concurrently. Section 245(c)(7) of the Immigration and Nationality Act (INA) provides that employment-based immigrants (including special immigrants) are ineligible to adjust status unless they are in a lawful nonimmigrant status. Petitioners who were/are paroled into the United States are not considered to be in lawful nonimmigrant status. Thus, an alien must have been lawfully admitted as a nonimmigrant, and must still be in lawful nonimmigrant status, in order to meet the requirement of section 245(c)(7) of the Act. The beneficiary of an approved Form I-360 filed under section 1244, as amended, who is not currently in lawful nonimmigrant status may apply for adjustment of status only if some other provision of the Act or of DHS regulations permits the alien to do so. For example, if the alien was the beneficiary of a different immigrant visa petition that was filed on or before April 30, 2001, the Form I-360 under section 1244, as amended, may qualify as a Special Immigrant Visas for Certain Iraqis under Section 1244 of P.L. 110-181, National Defense Authorization Act for FY 2008 AFM Update AD08-17 HQ DOMO 70/6.1.7 Page 5 grandfathered petition for purposes of section 245(i). See March 9, 2005, Memorandum from William R. Yates, Clarification of Certain Eligibility Requirements Pertaining to an Application to Adjust Status under Section 245(i) of the Immigration and Nationality Act. All approved petitioners and dependents must have successfully completed any appropriate Department of Homeland Security and Department of State background and security checks prior to final issuance of an immigrant visa number. Thus, those petitioners and dependents who are eligible to apply for adjustment of status must undergo the same background and security checks as those who will be seeking immigrant visas. (9) Immigrant Visa Classifications for Translators. SQ-1 Special Immigrant Iraqi Employee (Principal) SQ-2 Spouse of SQ-1 SQ-3 Child of SQ-1 SQ-6 Special Immigrant Iraqi Employee (Principal Adjusting Status in the United States) SQ-7 Spouse of SQ-6 SQ-8 Child of SQ-6 (end of AFM insert) This memorandum is intended solely for the guidance of USCIS personnel in performing their duties relative to adjudications of applications. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. Distribution: Regional Directors District Directors Field Office Directors National Benefits Center Director Service Center Directors Associate Director, Refugee, Asylum and International Operations Associate Director, National Security and Records Verification http://www.Dr-Immigration.com/news/shownews.asp?newsID=54 Sat, 7 Mar 2009 20:29:51 EST By USCIS: Office of Communications USCIS Update July 30, 2008 USCIS REACHES H-2B CAP FOR FIRST HALF OF FISCAL YEAR 2009 WASHINGTON U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the first half of Fiscal Year 2009 (FY2009). USCIS is hereby notifying the public that July 29, 2008 is the final receipt date for new H-2B worker petitions requesting employment start dates prior to April 1, 2009. The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the first half of FY2009. USCIS will reject petitions for new H-2B workers seeking employment start dates prior to April 1, 2009 that arrive after July 29, 2008. USCIS will apply a computer-generated random selection process to all petitions which are subject to the cap and were received on July 29, 2008. USCIS will use this process to select the number of petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected. Petitions for workers who are currently in H-2B status do not count towards the congressionally mandated bi-annual H-2B cap. USCIS will continue to process petitions filed to: Extend the stay of a current H-2B worker in the United States; Change the terms of employment for current H-2B workers and extend their stay; or Allow current H-2B workers to change or add employers and extend their stay. More information about the H-2B work program is available at www.uscis.gov or by calling the National Customer Service Center at 1-800-375-5283. - USCIS - http://www.Dr-Immigration.com/news/shownews.asp?newsID=53 Sat, 7 Mar 2009 20:29:39 EST By USCIS: Office of Communications Fact Sheet Revised: July 15, 2008 IRAQI REFUGEE PROCESSING U.S. Refugee Admissions Program The U.S. Refugee Admissions Program (USRAP) is an inter-agency partnership of many governmental and non-governmental organizations (NGO), both overseas and domestically, whose mission is to resettle refugees in the United States. The U.S. Department of States (DOS) Bureau of Population, Refugees and Migration (PRM) has overall management responsibility for the USRAP and has the lead in proposing admissions numbers and processing priorities. U.S. Citizenship and Immigration Services (USCIS) within the U.S. Department of Homeland Security (DHS), is responsible for interviewing refugee applicants and adjudicating applications for refugee status. Through its cooperative agreements with overseas processing entities, PRM handles the intake of refugee referrals from the United Nations High Commissioner for Refugees (UNHCR) and U.S. embassies, certain NGOs, the prescreening of cases and the out-processing of individuals for travel to the United States. Iraqi Refugee Processing Part of the refugee programs important humanitarian mission is to offer resettlement opportunities to especially vulnerable Iraqi refugees. Since large-scale Iraqi refugee processing was announced in February 2007, DHS and DOS have worked cooperatively to increase the number of Iraqi refugees admitted as part of the worldwide commitment. DHS and DOS have been committed to streamlining the process for admitting Iraqi refugees to the United States while ensuring the highest level of security. DHS and DOS share responsibility for initiating security checks for Iraqi refugee applicants. In the last year, the USRAP dramatically expanded its capacity to consider Iraqi refugees for resettlement. Since the program began in fiscal year 2007, as of July 2, 2008, 30,184 Iraqi individuals have been referred for resettlement to the USRAP. USCIS has interviewed 22,536 Iraqi refugee applicants, approved 15,533 for resettlement and 8,217 Iraqi refugees have arrived in the United States. FY 2007 FY 2008 thru July 2 Totals thru July 2 Referrals to USRAP 11,787 18,397 30,184 USCIS Interviews 4,550 17,986 22,536 Approved by USCIS 3,164 12,369 15,533 Admitted to the United States 1,608 6,609 8,217 Process for Resettlement In identifying Iraqi cases for referral to the USRAP, UNHCR and DOS have prioritized 11 categories of especially vulnerable refugees, including individuals who are affiliated with the U.S. government and religious minorities, among others. Iraqi refugees may gain access to this program through referrals from UNHCR, a U.S. embassy, or certain NGOs. Iraqi applicants who worked for the U.S. government, a U.S. contractor, or a U.S.-based media organization or NGO, and their family members, can apply directly without a UNHCR referral in Jordan, Egypt and Iraq. In addition, Iraqi applicants will be considered for resettlement if an eligible family member applies on their behalf in the United States. The vast majority of cases processed so far by the USRAP have been referrals from UNHCR. USCIS officers are interviewing Iraqi refugee applicants primarily in Jordan, Syria, Egypt, Turkey, and Lebanon. DOS and DHS have also begun refugee processing in Iraq for certain Iraqis who are associated with the United States and their family members. Determining Eligibility for Refugees Eligibility for refugee status is decided on a case-by-case basis. A USCIS officer conducts a personal interview of the applicant designed to elicit information about the applicant's admissibility and claim for refugee status. During the interview, the officer confirms the basic biographical data of the applicant; verifies that the applicant was properly given access to the USRAP; determines whether the applicant has suffered past persecution or has a well-founded fear of future persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion in his or her home country. The officer also determines whether the applicant is admissible to the United States and whether he or she has been firmly resettled in another country; and assesses the credibility of the applicant. Ensuring Security We are committed to conducting the most rigorous screening in order to ensure that those being admitted through the refugee program are not seeking to harm the United States. On May 29, 2007, DHS announced and implemented an administration-coordinated, enhanced background and security check process for Iraqi refugees applying for resettlement in the United States. No case is finally approved until results from all security checks have been received and analyzed. The enhanced security checks do not impede the flow of genuine refugees to the United States, since this process runs concurrently with other out-processing steps. On average, the total processing time for Iraqi cases is significantly less than for any other refugee group worldwide. Procedures for Iraqi Citizens Currently in the U.S. Iraqis currently in the United States who are not able to return to Iraq because they have been persecuted or fear that they will be persecuted on account of their race, religion, nationality, membership in a particular social group, or political opinion may apply for asylum with USCIS. Information on the process of applying for asylum in the United States is on the USCIS website: www.USCIS.gov. To view the asylum information, click on the Services and Benefits link, then Humanitarian Benefits and then Asylum. Procedures for Iraqi Citizens Living Outside of Iraq Refugees and asylum seekers should seek to comply with all legal requirements of the country in which they are located, including registration with host governments if required. In addition, all Iraqi asylum seekers located in third countries should register with the nearest UNHCR office. UNHCR has the international mandate to provide protection and assistance to refugees and may be able to provide a protection document and possibly other assistance if needed. For a small number of extremely vulnerable individuals, this could include referral to the USRAP or another country's resettlement program. UNHCR will identify individuals for resettlement referral based on an assessment of their vulnerability at the time of registration. In Jordan and Egypt, direct access to the USRAP is available to direct-hire employees of the U.S. Mission in Iraq and other Iraqis who worked for the U.S. government or U.S. government contractors, or for U.S.-based media organizations or NGOs and their family members. Any Iraqi who has fled to Jordan or Egypt because of his or her association with the United States is encouraged to contact the International Organization for Migration (IOM) to receive guidance. E-mail IOM in Jordan at AmmanInfoCenter@iom.int and in Egypt at CairoInfoCenter@iom.int. Procedures for Iraqi Citizens Currently in Iraq In Iraq, direct access to the USRAP is available to direct-hire employees of the U.S. Mission in Iraq and other Iraqis who worked for the U.S. government or U.S. government contractors, or for United States-based media organizations or NGOs, and their family members. Any Iraqi who believes he or she is at risk or has experienced serious harm as a result of association with the United States is encouraged to contact the IOM to receive guidance. E-mail IOM in Iraq at BaghdadInfoCenter@iom.int. Please visit the DOS/PRM website: www.state.gov/g/prm for additional information. Special Immigrant Visas for Iraqis Iraqi nationals who supported the U.S. armed forces or Chief of Mission authority as translators or interpreters, or Iraqi nationals who were or are employed by or on behalf of the U.S. government in Iraq on or after March 20, 2003, for a period of at least one year may be eligible for Special Immigrant Visa (SIV) processing. The SIV program is separate and distinct from the USRAP. However, certain Iraqi SIV recipients are eligible for the same resettlement assistance, entitlement programs, and other benefits as refugees admitted under the refugee program. Additional information regarding the SIV program may be found on the following websites: USCIS Announces New Special Immigrant Visa for Certain Iraqi Nationals Who Worked for the U.S. Government: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=91b661ccdc20b110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD USCIS Fact Sheet, Expanded Special Immigrant Status for Afghan and Iraqi Translators and Interpreters: http://www.uscis.gov/files/pressrelease/TranslatorExpansionFS02Jul07.pdf Special Immigrant Visas for Iraqi and Afghan Translators/Interpreters, FAQs for Applicants Living Overseas: http://travel.state.gov/visa/immigrants/info/info_3738.html Special Immigrant Visas for Iraqis Employed by or on Behalf of the U.S. Government: http://travel.state.gov/visa/immigrants/info/info_4172.html Department of State Worldwide Refugee Admissions Processing System, FAQ regarding the SIV Program: www.wrapsnet.org/RPCWRAPS/FAQ/tabid/75/language/en-US/Default.aspx USCIS http://www.Dr-Immigration.com/news/shownews.asp?newsID=52 Sat, 7 Mar 2009 20:29:31 EST Office of Communications USCIS Update June 11, 2008 USCIS to Offer Premium Processing For Certain Form I-140 Petitions Service Begins June 16, 2008 WASHINGTONU.S. Citizenship and Immigration Services (USCIS) announced today that on June 16, 2008, it will begin accepting Premium Processing Service requests for Forms I-140 (Immigrant Petition for Alien Worker) filed on behalf of certain alien workers who are nearing the end of their sixth year in H-1B nonimmigrant status. Premium Processing Service offers 15 calendar-day processing for designated employment-based petitions and applications upon request. There is a nonrefundable fee of $1000 for this service. During the 15-day period, USCIS will issue either an approval or denial notice, a notice of intent to deny, a request for evidence, or open an investigation for fraud or misrepresentation. USCIS previously designated certain classifications under Form I-140 for Premium Processing Service in the May 23, 2006 issue of the Federal Register. See 71 FR 29662. USCIS is limiting Premium Processing Service for Form I-140 petitions that are filed on behalf of aliens: Who are currently in an H-1B nonimmigrant status; Whose sixth year will end within 60 days; Who are only eligible for a further extension of H-1B nonimmigrant status under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and Who are ineligible to extend their H-1B status under section 106(a) of AC21. Section 104(c) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to three years, provided they are the beneficiary of an approved Form I-140 and an immigrant visa is not immediately available. Section 106(a) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days. For more details on Premium Processing Service for the Form I-140 petitions described in this announcement, visit the USCIS web site at http://www.uscis.gov/files/article/premiumproc_factsheet_i140_061108.pdf. More information on Premium Processing Service in general can be found on the USCIS web site at www.uscis.gov, or by calling the USCIS National Customer Service Center at (800) 375-5283. USCIS Fact Sheet June 11, 2008 USCIS OFFERS PREMIUM PROCESSING SERVICE FOR CERTAIN FORM I-140 PETITIONS STARTING JUNE 16, 2008 U.S. Citizenship and Immigration Services (USCIS) will make available Premium Processing Service for designated Form I-140 petitions1 (Immigrant Petition for Alien Worker) filed for alien workers in H-1B nonimmigrant status who are reaching the end of their sixth year in H-1B nonimmigrant status. Starting on June 16, 2008, USCIS will begin accepting Form I-907, Request for Premium Processing Service, for Forms I-140 filed for alien beneficiaries who, as of the date of filing the Form I-907: Are currently in H-1B nonimmigrant status; Will reach the 6th year of their H-1B nonimmigrant stay in 60 days; Are only eligible for a further H-1B extension under AC21 104(c)2 upon approval of their Form I-140 petition; and Are ineligible to extend their H-1B status under AC21 106(a)3. Under the Premium Processing Program, USCIS may place such conditions of availability for the service. See 8 CFR 103.2(f)(2). The petitioner must establish that the Form I-140 filed with Form I-907 satisfies these conditions. Filings that do not clearly meet the conditions may not receive Premium Processing Service and will be rejected as described below. 1 USCIS previously designated Premium Processing Service for I-140 petitions involving: EB-1 Aliens with Extraordinary Ability and EB-1, Outstanding Professors and Researchers; EB-2, Members of Professions with Advanced degrees or Exceptional ability (not seeking a National Interest Waiver), and; EB-3 Professionals, EB-3 Skilled Workers and EB-3, Other workers. See 71 FR 29662 (May 23, 2006). 2 The Public Law known as the American Competitiveness in the Twenty-first Century Act of 2000 (AC 21) permits up to a three-year extension of stay for an H-1B nonimmigrant alien, provided he or she is the beneficiary of an approved Form I-140 petition and otherwise eligible for lawful permanent resident status except that the employment-based preference visa is unavailable. 3 USCIS grants an H-1B extension of stay pursuant to 106(a) of AC21, in one-year increments, until such time as a final decision has been made to: A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification; B. Deny the EB immigrant petition, or C. Grant or deny the aliens application for an immigrant visa or for adjustment of status. To facilitate USCISs determination of whether a particular filing meets the conditions, petitioners can submit: 1. A copy of the alien beneficiarys Form I-94, Arrival/Departure Record, reflecting current H-1B nonimmigrant status; 2. Copies of all Forms I-94, Arrival/Departure Record and I-797 H-1B or L approval notices that have been issued on his or her behalf; 3. A copy of the relating Form I-140 petition receipt notice, if the Form I-140 was previously filed; and, 4. A copy of the labor certification approval letter issued by the Department of Labor, if filing under EB-2 or EB-3 classifications. Form I-907 Premium Processing Service requests will be rejected and returned with the I-907 fee, and the Form I-140 petition will be processed according to standard procedures if the Form I-907 is: Submitted without documentation establishing the conditions for availability noted above; or Incorrectly submitted concurrently with a Form I-140 petition at a USCIS office without geographic jurisdiction over the Form I-140 petition; or Submitted to request Premium Processing Service for a Form I-140 petition filed for an alien beneficiary who is eligible to extend his or her H-1B nonimmigrant status under AC21 106(a) as of the date that the Form I-907 is received by USCIS. USCIS will accept Form I-907 either together with the Form I-140 petition or after the filing of the Form I-140 petition through the mail or delivery service only. E-filing for Form I-907 will not be available. USCIS expects that adding other classifications to Premium Processing Service at this time would exceed USCIS capacity to provide timely Premium Process Service. USCIS will continue to evaluate whether it is able to process other groups of cases beyond this limited classification of petitions and will provide notification of any further availability of Premium Processing Service for Form I-140 at www.uscis.gov. The Premium Processing Service guarantees petitioners that, within 15 calendar days of receipt of a petition, USCIS will either issue an approval or denial notice, a notice of intent to deny, a request for evidence, or a notice of investigation for fraud or misrepresentation. Information about Premium Processing Service is available on the USCIS website at www.uscis.gov or by calling the USCIS National Customer Service Center toll free at 1-800-375-5283. USCIS http://www.Dr-Immigration.com/news/shownews.asp?newsID=51 Sat, 7 Mar 2009 20:29:21 EST By DHS: Joint Announcement From The U.S. Departments Of State And Homeland Security On Passport Card Production Release Date: July 22, 2008 For Immediate Release Office of the Press Secretary Contact: 202-282-8010 The U.S. Department of State and the U.S. Department of Homeland Security (DHS) announced today that the new U.S. Passport Card is in full production and is now being distributed. The Passport Card is a convenient, wallet-sized document for land and sea travel between the United States and Mexico, Canada, the Caribbean, and Bermuda. It is not valid for international travel by air. Beginning in June 2009, travelers will be required to present a single Western Hemisphere Travel Initiative compliant document denoting both citizenship and identity when entering the United States through a land or sea border. More than 350,000 Americans pre-ordered the U.S. Passport Cards since the State Department began taking orders on February 1. Over 7,600 cards have already been mailed to advance customers, and all pre-orders are expected to be filled by September 30, 2008. After that initial distribution, the processing time for passport cards should be the same as for passport books less than four weeks. Customers will be able to track the progress of their passport card application online beginning in mid-August. The passport card will facilitate the frequent travel of Americans living in border communities by utilizing a vicinity-read radio frequency identification (RFID) chip. With this technology, DHS' U.S. Customs and Border Protection officers will be able to access photographs and other biographical information stored in secure government databases before the traveler reaches the inspection booth so that inspection can be facilitated. For privacy protection, no personal information is stored on the electronic chip itself. The chip will have only a unique number pointing to a stored record contained in secure government databases. "We are pleased to offer Americans a choice of documents, the traditional passport book, and now the passport card, to meet their personal needs for international travel," said Assistant Secretary of State for Consular Affairs Janice L. Jacobs. "The passport card is the newest addition to the Department's long history of providing secure, reliable services to the American traveling public." "We have been working closely with the U.S. Department of State to be able to provide another type of secure identification that is vital to protecting our nation's borders" said Homeland Security Assistant Secretary for Policy Stewart Baker. "The new passport cards will help facilitate legitimate travel while allowing our frontline personnel to focus more on those who may pose a threat." The Passport Card is available for $45 for first-time adult applicants and $35 for children under 16. Adults who currently have valid passports can apply for the passport card by mail for $20. Information on how to apply for a U.S. Passport Card or the traditional passport book is at travel.state.gov. ### This page was last reviewed/modified on July 22, 2008. Page 1 of 1 DHS: Joint Announcement From The U.S. Departments Of State And Homeland Security... 7/22/2008 http://www.dhs.gov/xnews/releases/pr_1216743005370.shtm http://www.Dr-Immigration.com/news/shownews.asp?newsID=50 Sat, 7 Mar 2009 20:29:13 EST By USCIS: Office of Communications USCIS Update June 12, 2008 USCIS to Issue Two-Year Employment Authorization Documents New EADs Limited to Certain Individuals Who Have Applied for LPR Status WASHINGTON U.S. Citizenship and Immigration Services (USCIS) announced today that beginning on June 30, 2008 it will issue Employment Authorization Documents (EAD) valid for two years. The new two-year EAD is only available to individuals who have filed to become a lawful permanent resident (LPR) using a Form I-485, Application to Register Permanent Residence or Adjust Status, and filed for employment authorization under Section 274.a.12(c)(9) of Title 8, Code of Federal Regulations (8 C.F.R.) but are unable to become an LPR because an immigrant visa number is not currently available. USCIS will decide whether to renew an EAD for either a one or two year validity period based on the most recent Department of State Visa Bulletin available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. For applicants who have an available immigrant visa number and who are filing for employment authorization under 8 C.F.R. Section 274.a.12(c)(9), USCIS will continue to grant EADs that are valid for one-year. USCIS may issue a two-year renewal EAD if the applicants immigrant visa availability date retrogresses (when actual demand for visa numbers exceeds forecasted supply) after the Form I-485 is filed. If an individual requests to replace an EAD that has not expired, USCIS will issue a replacement EAD that is valid through the same date as the previously issued EAD. However, if the previous EAD has expired, USCIS will process the request for a renewal EAD and determine the appropriate validity period based on the applicants priority date and the Department of State Visa Bulletin. For more information on Employment Authorization Documents, please contact the USCIS National Customer Service Center at (800) 375-5283 or review the USCIS Employment Authorization Documents web page at: http://www.uscis.gov. USCIS Office of Communications Frequently Asked Questions June 12, 2008 USCIS to Issue Two-Year Employment Authorization Documents (EADs) New EADs Limited to Certain Individuals Who Have Applied for LPR Status What is an EAD? Certain aliens who are temporarily in the United States may file a Form I-765, Application for Employment Authorization, to request an Employment Authorization Document (EAD), which authorizes them to work legally in the U.S. during the time the EAD is valid. Who is eligible for an EAD that is valid for two years? The two-year EAD is available to pending adjustment applicants (i.e., those who have filed a Form I-485, Application to Register Permanent Residence or Adjust Status) who have filed for an EAD under Section 274.a.12(c)(9) of Title 8, Code of Federal Regulations (8 C.F.R.) and who are currently unable to adjust status because an immigrant visa number is not currently available. USCIS will continue to grant EADs that are valid for one-year for adjustment applicants who have an available immigrant visa number and are filing for employment authorization under 8 C.F.R. Section 274a.12(c)(9). When will applicants expect to receive the new two-year EAD? USCIS expects to implement this initiative for cases pending on June 30, 2008. Applicants filing Form I-765 under 8 C.F.R., Section 274.a.12(c)(9) should begin to receive their two-year EAD a couple of weeks after the anticipated June 30, 2008 implementation date. Where can someone get more information on the new EADs? For further information, please review the USCIS Update on the new two-year EAD posted online at: http:/www.uscis.gov. Will applicants get a two-year EAD when they file an I-765 with their I-485 adjustment of status application? Generally no. Initial EAD filings will generally receive an EAD that is valid for one- year because they are usually submitted with the Form I-485 that can only be filed when there is an immigrant visa number immediately available to the individual. Applicants are only eligible for a two-year EAD if their immigrant visa availability date retrogresses (i.e., when actual demand for visa numbers exceeds forecasted supply) after the Form I-485 is filed. If an immigrant visa number is available, USCIS will grant the one-year EAD. How will USCIS decide whether to issue an EAD valid for one or two years? USCIS will decide whether to renew an EAD for either a one or two-year validity period based on the most recent Department of State Visa Bulletin available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. If an applicants visa number has retrogressed and is unavailable, USCIS may issue a renewal EAD valid for two years. USCIS will continue to issue the EAD in one-year increments when the Department of State Visa Bulletin shows an employment-based preference category is current as a whole or the applicants priority date is current. If I am filing for a replacement EAD under 8 C.F.R., Section 274.a.12(c)(9), how long is the EAD valid? If an individual requests to replace an EAD that has not expired, USCIS will issue a replacement EAD that is valid through the same date as the previously issued EAD. However, if the previous EAD has expired, USCIS will process the request for a renewal EAD and determine the appropriate validity period based on the Department of State Visa Bulletin and the applicants priority date. If USCIS determines that an applicant has filed multiple Forms I-765, the agency may deny the applications for the replacement or renewal EAD. Why is USCIS changing the validity period for some EADs? USCIS views this change as a way to better serve its customer base, and in particular, persons who are waiting to become lawful permanent residents and are impacted by the lack of immigrant visa numbers. On July 30, 2004, USCIS published an interim rule, Employment Authorization Documents," at 69 Federal Reg. 45555. This interim rule authorized USCIS, in its discretion, to issue EADs with validity periods other than one year based on certain criteria deemed appropriate by the Department of Homeland Security. I filed my Form I-765 more than 90 days ago and I have not received a decision, who should I contact? If you have not received a decision within 90 days of the USCIS receipt date and you have properly filed your EAD application, you may apply to obtain an interim EAD by appearing in person at your local USCIS District Office. You must bring proof of identity and any notices that you have received from USCIS in connection with your application for employment authorization. If I believe I have received an EAD with the wrong validity period or other incorrect information who should I contact? If you believe that you have received the wrong validity period, you should contact the USCIS National Customer Service Center at 1-800-375-5283 or 1-800-767-1833 (TTY). For additional information, or if your application has been approved and you have not received your EAD, please contact the USCIS National Customer Service Center at 1-800-375-5283 or 1-800-767-1833 (TTY) http://www.Dr-Immigration.com/news/shownews.asp?newsID=49 Sat, 7 Mar 2009 20:29:05 EST By USCIS: Office of Communications USCIS Update July 21, 2008 USCIS Clarifies Fee Exemption Eligibility for the Application for Waiver of Grounds of Inadmissibility (Form I-601) WASHINGTONU.S. Citizenship and Immigration Services (USCIS) reminds its customers that the fee for an Application for Waiver of Grounds of Inadmissibility (Form I-601) is always required. USCIS has received numerous applications filed without the appropriate fee due to an incorrect interpretation of the regulations. The authority to waive or exempt payment of the $545 fee as discussed in the Code of Federal Regulations 8 CFR 245.1(f) cites an October 1977 law that applied only to applications from certain Vietnamese, Laotian and Cambodian parolees filed by October 28, 1983. USCIS routinely reviews its fee waiver and exemption policy to ensure that it is not only fair to all applicants, but also reasonable to administer. Detailed guidance on the agencys policy, including for which forms a fee waiver may be considered, is available on the USCIS Web site at www.uscis.gov/feewaiver. Applicants who have a specific question about fee waivers or exemption on the Application for Waiver of Grounds of Inadmissibility (Form I-601) should call the National Customer Service Center at (800) 375-5283 (TTY 1-800-767-1833). USCIS http://www.Dr-Immigration.com/news/shownews.asp?newsID=48 Sat, 7 Mar 2009 20:28:56 EST By USCIS: U.S. Department of Homeland Security 20 Massachusetts Ave. NW Washington, DC 20529 HQDOMO 70/23.1-P AD06-07 Memorandum TO: Field Leadership FROM: Donald Neufeld /s/ Acting Associate Director, Domestic Operations DATE: July 14, 2008 SUBJECT: Applicability of Section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a) of the Immigration and Nationality Act Revisions to Adjudicators Field Manual (AFM) Chapter 23.5(d) (AFM Update AD06-47) 1. Purpose This memorandum clarifies how section 245(k) of the Immigration and Nationality Act (the Act) renders certain section 245(c) bars to adjustment of status under section 245(a) inapplicable to certain employment-based adjustment of status applicants. 2. Background In general, Section 245(a) allows an admissible alien who was inspected and admitted or paroled into the United States to apply for permanent resident status from within the United States if the alien is the beneficiary of an approved immigrant visa petition and has an immigrant visa number immediately available. Section 245(c) establishes eight (8) bars to adjustment under Section 245(a). For certain employment-based adjustment applicants, section 245(k) grants relief from three (3) of those bars: sections 245(c)(2), (c)(7) and (c)(8). Section 245(k), however, does not provide an exemption from any other basis of ineligibility, such as entry without inspection or any ground of inadmissibility. Applicability of Section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a) of the Immigration and Nationality Act HQDOMO 70/23.1-P Page 2 3. Field Guidance and AFM Update The adjudicator is directed to comply with the following guidance. The Adjudicators Field Manual (AFM) is revised to add a new section (d) to subchapter 23.5, Adjustment of Status under Section 245 of the INA. Current sections (d) through (k) proceed thereafter and should be renumbered accordingly. (d) Section 245(k) of the Act: Exemptions to the 245(c)(2), (c)(7) and (c)(8) Bars to Adjustment for Certain Employment-Based Adjustment of Status Applicants. (1) General Provisions. Section 245(k) can render the normal bars to adjustment of status found in section 245(c)(2), (c)(7), and (c)(8) inapplicable to certain employment-based adjustment of status applicants who, since their last lawful admission to the United States have not, for an aggregate period of more than 180 days: (A) failed to maintain, continuously, a lawful status; (B) engaged in unauthorized employment; or (C) otherwise violated the terms and conditions of his or her admission. (2) Applicability. The following classes of employment-based adjustment of status applicants under section 245(a) are eligible for relief under 245(k): (A) An alien who is present in the United States pursuant to a lawful admission and whose adjustment of status application is based on an approved immigrant petition for them as the beneficiary in one of the following classifications: EB-1: aliens of extraordinary ability, outstanding professors and researchers, and certain multinational managers and executives; EB-2: aliens who are members of the professions holding advanced degrees or aliens of exceptional ability; EB-3: skilled workers, professionals, and other workers; or EB-4: religious workers described in section 101(a)(27)(C) of the Act only. Other employment-based immigrant classifications and other immigrant classifications are not a basis for consideration under section 245(k). (B) An eligible derivative of an alien described in (A) may benefit from section 245(k) in his or her own right if he or she has failed to maintain continuously a lawful status, worked without authorization, or otherwise violated the terms and conditions of his or her admission for an aggregate of 180 days or less pursuant to a lawful admission. (3) Application Process. An alien must properly file an adjustment of status application under section 245(a) in accordance with 8 CFR 245.2 and 103.2. An applicant invoking 245(k) is not required to submit additional application forms or payment of a penalty surcharge. Thus, it is the responsibility of USCIS to determine section 245(k) applicability based on the evidence submitted in support of the adjustment of status application. To the extent evidence is deficient or absent, USCIS 1 Applicability of Section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a) of the Immigration and Nationality Act HQDOMO 70/23.1-P Page 3 may issue a request(s) for evidence or notice of intent to deny asking for specific evidence in support of eligibility for relief under section 245(k). (4) Counting against the 180 days timeframe in (d)(1). (A) General Guidelines. If the adjudicator determines that an employment-based adjustment of status applicant described in (d)(2) above is subject to any of the bars to adjustment of status set forth in Sections 245(c)(2), (c)(7), or (c)(8), then the adjudicator must determine whether the aggregate period in which the alien failed to continuously maintain lawful status, worked without authorization, or otherwise violated the terms and conditions of the aliens admission since the date of aliens last lawful admission to the United States is 180 days or less. The guidance below describes the periods of time to be examined for purposes of calculating time against the 180-day period. The adjudicator must only examine the period from the date of the aliens last lawful admission to the United States and must not count violations that occurred before the aliens last lawful admission. An alien, however, who entered the United States pursuant to an advance parole document is not lawfully admitted, because the parole is not a final act with respect to admission. Thus, reentry based on a parole or advance parole does not start the clock over for the purpose of section 245(k). An alien may be subject to more than one bar or violation described in section 245(k)(2) at the same time. For example, an alien in B-2 status who worked without authorization will also have violated a lawful status and failed to maintain continuously a lawful status. USCIS reads the phrase aggregate period exceeding 180 days in section 245(k)(2) to refer to the total of all three types of violations rather than permit up to 180 days of each type of violation. Accordingly, the aggregate 180 day period must be calculated by adding together any and all days in which there is one or more of the violations, and each day in which one or more of these violations existed must be counted as one day. If USCIS reads section 245(k) to permit up to 180 days of each type of violation an alien could potentially accrue more than 180 total days of violations and remain eligible for adjustment of status. USCIS holds that the statute was not intended to permit such egregious violations. (B) Engaged in Unauthorized Employment (1) General. Unauthorized employment means any service or labor performed by an alien for an employer within the United States that is not authorized under 8 CFR 274a.12(a), (b), or (c) or exceeds the authorized period of employment. The filing of an adjustment of status application does not, in itself, authorize employment or excuse unauthorized employment, and accordingly the filing of an adjustment of status application will not stop the counting period of unauthorized 1 Applicability of Section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a) of the Immigration and Nationality Act HQDOMO 70/23.1-P Page 4 employment. Therefore, all periods of unauthorized employment since the date of the aliens last lawful admission, including any periods after the filing of an application for adjustment of status, must be counted until the date of the adjudication of the pending adjustment of status application. With respect to engaging in unlawful employment, the count commences on the first date of the unauthorized employment and continues until the date the unauthorized employment ended, the date an employment authorization document (EAD) is approved, or the date the pending adjustment of status application is adjudicated. It is completely within the control of the alien as to whether he or she engages in employment without authorization and, as stated above, the filing of an application for adjustment of status does not automatically authorize employment in the United States. Therefore, it is possible for an alien to accrue days of unauthorized employment against the 180 day period after the filing of the application for adjustment of status. To hold otherwise would not only reward an alien for engaging in unauthorized employment but it would also effectively eliminate the incentive and the need for an alien to maintain a valid employment authorization document in connection with the pending application for adjustment of status. Unlike an alien who has failed to maintain lawful nonimmigrant status, an alien who has worked without authorization may unilaterally avoid the accrual of additional days counted against such violation by simply terminating the unauthorized employment. An aliens engagement in unauthorized employment is dependent upon the existence of the aliens employment or employer-employee relationship rather than simply the number of days the alien actually works or claims to have worked. Each day an alien engaged in unauthorized employment must be counted against the 180-day period regardless of whether or not the alien unlawfully worked a few hours on a given day, a part-time schedule, or a full-time schedule with leave benefits and weekend and holidays off. Absent evidence of interruptions in unauthorized employment, the adjudicator must consider each day since the date the unauthorized employment began as a day of unauthorized work regardless of the work schedule agreed to or maintained by the alien for the particular employer. For example, if an alien worked without authorization for four hours a day Monday through Friday throughout the month of April, all 30 days for that month must be counted as unauthorized employment. For periods in which it appears that the alien has engaged in unauthorized employment, the alien bears the burden of establishing that any such periods were authorized or that he or she did not in fact engage in 1 Applicability of Section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a) of the Immigration and Nationality Act HQDOMO 70/23.1-P Page 5 unauthorized employment. In addition, an alien who works without authorization after filing for adjustment of status will not stop the clock by departing the United States and re-entering pursuant to a valid advance parole document. (2) Special Considerations. For purposes of section 245(c)(8) of the Act, an alien is not considered to be engaged in unauthorized employment while his or her properly filed adjustment of status application is pending final adjudication, if: The alien has obtained permission from USCIS to engage in employment based on his or her pending adjustment of status application and such authorization remains valid; or The alien had been granted employment authorization prior to the filing of the adjustment of status application and such authorization does not expire while the adjustment of status application is pending. (C) Failed to Maintain a Lawful Status and/or Violated the Terms of a Nonimmigrant Visa. (1) General. Expiration, revocation, or violation of status puts a nonimmigrant out of status, and the alien remains out of status until some adjudication restores status or the alien departs the United States. In most cases, the 180-day counting period commences on the date the aliens status expires, is revoked, or is violated following the aliens most recent admission. In addition, with the exception of a dual intent nonimmigrant, a nonimmigrant is only required to maintain his or her nonimmigrant status until the time he or she properly files an adjustment of status application with USCIS, because most nonimmigrants who apply for adjustment of status are presumed to be intending immigrants and are no longer eligible to maintain a nonimmigrant status. Therefore, for purposes of the 180-day counting period, calculation of the number of days for failing to maintain status or violating a nonimmigrant visa will stop as of the date USCIS receives a properly filed adjustment of status application. Notwithstanding, a properly filed adjustment of status application, in and of itself, does not accord lawful status or cure any violation of a nonimmigrant visa. For example, if an alien applied for adjustment of status three days prior to the expiration of his or her nonimmigrant status and the adjustment of status application was eventually denied, the alien will not be considered to be in lawful status after the expiration of the nonimmigrant status. Consequently, if the same alien files a second application for adjustment of status, the period after which the nonimmigrant status expired and during which the first adjustment of status application was pending counts against the 180-day period when considering 1 Applicability of Section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a) of the Immigration and Nationality Act HQDOMO 70/23.1-P Page 6 eligibility for relief under 245(k) in the adjudication of the second adjustment of status application. (2) Special Considerations. The adjudicator must consider the following when calculating the number of days an alien has failed to maintain a lawful status or violated the terms of a nonimmigrant visa. The regulations define lawful immigration status at 8 CFR 245.1(d)(1). In examining any period where an application for extension of stay (EOS) or change of status (COS) was ultimately approved, the period during which the EOS or COS had been pending would be considered, in retrospect, a period in which the alien was in a lawful nonimmigrant status regardless of whether the EOS or COS application was timely or untimely filed. The period would not be disqualifying for section 245(c) purposes, and the period would not count against any 180-day period under section 245(k). The period during which an alien has a pending EOS, COS, or adjustment of status application does not constitute, in and of itself, a period in which the alien is in a lawful status. A period of unlawful status found to result only from a technical violation or through no fault of the applicant, as described in 8 CFR 245.1(d)(2), does not invoke the 245(c)(2) bar. Thus, such period does not count against the 180-day period. An alien who complies with all the terms and conditions of his or her nonimmigrant status does not violate the terms of such status merely by properly filing an adjustment of status application, provided the filing occurred before the aliens nonimmigrant status expired. An F (student) or J (exchange visitor) nonimmigrant is considered in status for such authorized period of time before and after completion of his or her educational objective or program in accordance with 8 CFR 214.2(f) and 8 CFR 214.2(j), respectively, provided that the F or J nonimmigrant has not violated the terms and conditions of his or her status. A reinstatement of F status under 8 CFR 214.2(f) or J status under 22 CFR 62.45 cures time out of or in violation of status only for the particular period of time covered by the reinstatement, so that such period does not count against the 180-day period. (5) Effect of 245(k) Exemption. A determination of eligibility under section 245(k) renders inapplicable the normal bars to adjustment found in section 245(c)(2), (c)(7), 1 Applicability of Section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a) of the Immigration and Nationality Act HQDOMO 70/23.1-P Page 7 1 and (c)(8). Section 245(k), however, does not provide an exemption from any other basis of ineligibility, such as entry without inspection or any ground of inadmissibility. 4. Use This memorandum is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications for adjustment of status. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. 5. Contact Information Questions regarding this memorandum and USCIS policy regarding section 245(k) of the Act may be directed to Carol Vernon, Office of Policy and Strategy, Rishiram Rishi Lekhram, Service Center Operations, and Vinay Singla, Field Operations, through appropriate supervisory channels. Distribution List: Regional Directors District Directors Field Office Directors Service Center Directors National Benefits Center Director http://www.Dr-Immigration.com/news/shownews.asp?newsID=47 Sat, 7 Mar 2009 20:28:48 EST By USCIS: Office of Communications USCIS Update July 24, 2008 USCIS CHANGES VACCINATION REQUIREMENTS TO ADJUST STATUS TO LEGAL PERMANENT RESIDENT WASHINGTON U.S. Citizenship and Immigration Services (USCIS) announced today a revised list of vaccines required for applicants seeking to adjust status to become legal permanent residents. This revision follows guidance from the Department of Health and Human Services, Centers for Disease Control and Prevention (CDC). CDCs revised Technical Instructions to Civil Surgeons for Vaccination Requirements require the following age-appropriate additional vaccinations to adjust status to legal permanent resident: 􀂃 Rota virus 􀂃 Hepatitis A 􀂃 Meningococcal 􀂃 Human papillomavirus 􀂃 Zoster The requirements for these new vaccines went into effect on July 1, 2008, however CDC approved a 30-day grace period for any medical exam conducted before August 1, 2008. At that time the new vaccinations, if appropriate, must be administered in order for USCIS to approve the applicant for adjustment of status. USCIS has revised the Report of Medical Examination and Vaccination Record (Form I-693) to include these new vaccination requirements. The June 5, 2008 edition of Form I-693 must be used for any medical examination completed on or after August 1, 2008. CDCs revised Technical Instructions to Civil Surgeons for Vaccination Requirements are posted on-line at http://www.cdc.gov/ncidod/dq/civil.htm. USCIS has posted a list of Frequently Asked Questions about the revised vaccination requirements at: http://www.uscis.gov. For additional help with the Form I-693, call USCIS Customer Service Center at (800) 375-5283. USCIS www.uscis.gov http://www.Dr-Immigration.com/news/shownews.asp?newsID=46 Sat, 7 Mar 2009 20:28:39 EST By: USCIS BILLING CODE: 9111-97 DEPARTMENT OF HOMELAND SECURITY 8 CFR Part 274a [CIS No. 2441-08; Docket No. USCIS-2008-0001] RIN 1615-AB69 Documents Acceptable for Employment Eligibility Verification AGENCY: U.S. Citizenship and Immigration Services, DHS. ACTION: Interim rule; delay of effective date. SUMMARY: U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS), is extending the effective date of its interim final rule Documents Acceptable for Employment Eligibility Verification, for 60 days, from February 2, 2009 to April 3, 2009. This temporary extension will provide DHS with an opportunity for further consideration of this rule. USCIS also is extending the comment period for this rule for 30 days. DATES: This document is effective January 30, 2009. The effective date of the interim rule amending 8 CFR Part 274a, published on December 17, 2008, at 73 FR 76505, is delayed until April 3, 2009. Written comments must be submitted on or before March 4, 2009. ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS- 2008-0001 by one of the following methods: Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments. 2 Mail: Chief, Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210. To ensure proper handling, please reference DHS Docket No. USCIS-2008-0001 on your correspondence. This mailing address may be used for paper, disk, or CD-ROM submissions. Hand Delivery/Courier: U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210. Contact Telephone Number is (202) 272-8377. FOR FURTHER INFORMATION CONTACT: Stephen McHale, Verification Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 470 L'Enfant Plaza East, SW., Suite 8001, Washington, DC 20529-2610, telephone (888) 464-4218 or e-mail at Everify@dhs.gov. SUPPLEMENTARY INFORMATION: USCIS published an interim final rule, Documents Acceptable for Employment Verification, on December 17, 2008, amending its regulations governing the types of acceptable identity and employment authorization documents and receipts that employees may present to their employers for completion of the Form I-9, Employment Eligibility Verification. Under this interim rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9. This rule also adds a new document to the list of acceptable documents that evidence both identity and employment authorization and makes several technical corrections and updates. The rule is scheduled to become effective on February 2, 2009. 3 During the public comment period for this rulemaking action, which currently concludes on February 2, 2009, USCIS received a number of comments requesting an extension of the effective date. USCIS is extending the comment period for this rule to allow additional public comment on the substantive legal and policy issues under this interim final rule. The 60-day extension of the effective date of this interim final rule also provides DHS officials the opportunity for further review and consideration of the interim final rule. January 30, 2009 Dated Michael Aytes, Acting Deputy Director U.S. Citizenship and Immigration Services [FR Doc. 2009-2360 Filed 01/30/2009 at 4:15 pm; Publication Date: 02/03/2009] http://www.Dr-Immigration.com/news/shownews.asp?newsID=45 Sat, 7 Mar 2009 20:28:31 EST Extension of Medicaid and SCHIP benefits to legal immigrant children and pregnant women: The five-year waiting period for most legal aliens to receive federal welfare benefits was established as part of the welfare reform law (P.L. 104-196) signed by President Clinton in 1996. The legislation restricted or banned legal immigrants from aid programs including cash welfare, disability, food stamps and Medicaid. These provisions also apply to SCHIP, which was enacted in 1997. The five-year ban was enacted out of concern that legal aliens had an incentive to benefit from public programs rather than finding employment and contributing to the economy. The ban does not apply to legal, or illegal, immigrants given emergency care, which they can still receive under the Emergency Medical Treatment and Active Labor Act (EMTALA). Additionally, children born to legal (or illegal) immigrants are citizens and would remain eligible for SCHIP and Medicaid. S. 275 contains a provision allowing states the option to elect, through a state plan amendment, to provide medical benefits to children (under age 19) and pregnant women who are lawfully residing in the country and otherwise eligible for assistance. Supporters say about 400,000 to 600,000 children would be added to the SCHIP and Medicaid programs if all states opted to cover children of legal immigrants and pregnant legal immigrants. CBO estimates that covering these populations would cost $1.7 billion from FYs 2009-2014, and $3.9 billion over the FY 2009-2019 period. Census Bureau data shows that almost half of low-income legal immigrant children are now uninsured. Even though the federal government ended funding for these populations, 21 states plus the District of Columbia continue to use state-only funds to cover legal immigrants in Medicaid and/or SCHIP. The Center for Budget and Policy Priorities notes that, Most of the states that traditionally have high concentrations of immigrants, such as California, New York, New Jersey, Massachusetts, Texas and Illinois, are among the states that chose to continue substantial coverage for legal immigrant children and pregnant women who otherwise would be disqualified by the five-year bar. For these 21 states that already have chosen this option, the new law would substitute new federal funds for state funds. Current law requires sponsors of immigrants to provide an affidavit of support which is used to show that the sponsor has adequate means of financial support and that they [the immigrant] are not likely to become a public charge. The form represents a contract between the sponsor and the U.S. government showing that the sponsor will support the immigrant if it becomes necessary. Thus, the sponsor is legally responsible to reimburse the government if the immigrant accepts prohibited federal benefits during this period. Eliminating the five-year bar would largely nullify the value of the affidavit of support in states that choose to cover legal immigrants. http://www.Dr-Immigration.com/news/shownews.asp?newsID=44 Sat, 7 Mar 2009 20:28:20 EST A. STATUTORY NUMBERS 1. This bulletin summarizes the availability of immigrant numbers during March. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received by February 6th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date. 2. Section 201 of the Immigration and Nationality Act (INA) sets an annualminimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320 3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows: FAMILY-SPONSORED PREFERENCES First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference. Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers: A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit; B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation. Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences. Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences. EMPLOYMENT-BASED PREFERENCES First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference. Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers". Fourth: Certain Special Immigrants: 7.1% of the worldwide level. Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395. 4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES. 5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) Fam-ily All Charge- ability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPP-INES *NOTE: For March, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 15OCT01. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15OCT01 and earlier than 01JUL04. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.) All Charge-ability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIP-PINES Employ-ment -Based The Department of State has available a recorded message with visa availability information which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month. Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002. B. DIVERSITY IMMIGRANT (DV) CATEGORY Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This reduction has resulted in the DV-2009 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year. For March, immigrant numbers in the DV category are available to qualified DV-2009 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number: Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2009 program ends as of September 30, 2009. DV visas may not be issued to DV-2009 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2009 principals are only entitled to derivative DV status until September 30, 2009. DV visa availability through the very end of FY-2009 cannot be taken for granted. Numbers could be exhausted prior to September 30. C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN APRIL For April, immigrant numbers in the DV category are available to qualified DV-2009 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number: Region All DV Chargeability Areas Except Those Listed Separately AFRICA 26,900 Except: Egypt 17,400 Ethiopia 15,700 Nigeria 9,900 ASIA 17,400 Except: Bangladesh 11,000 EUROPE 20,800 NORTH AMERICA (BAHAMAS) 7 OCEANIA 715 SOUTH AMERICA, and the CARIBBEAN 900 D. EXPIRATION OF TWO EMPLOYMENT VISA CATEGORIES Employment Fourth Preference Certain Religious Workers: Pursuant to Section 2(a) of the Special Immigrant Nonminister Religious Worker Program Act (Pub. L. No. 110-391), the nonminister special immigrant program expires on March 6, 2009. No SR-1, SR-2, or SR-3 visas may be issued overseas on or after March 6, 2009. Visas issued prior to this date may only be issued with a validity date of March 5, 2009, and all individuals seeking admission as a nonminister special immigrant must be admitted (repeat, admitted) into the U.S. no later than midnight March 5, 2009. Employment Fifth Preference Pilot Categories(I5, R5): Pursuant to Section 144 of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 (Public Law 110-329), the immigrant investor pilot program will expire on March 6, 2009. No I5-1, I5-2, I5-3, R5-1, R5-2 or R5-3 visas may be issued after March 6, 2009. The initial cut-off dates for the categories mentioned above have been listed as current for March. If these categories have not been extended based on legislative action those cut-off dates will become unavailable effective March 7, 2009. E. ACTIVE IMMIGRANT VISA APPLICANTS REGISTERED FOR PROCESSING AT CONSULAR OFFICES ABROAD AS OF JANUARY 2009 Most prospective immigrant visa applicants qualify for status under the law on the basis of family relationships or employer sponsorship. Entitlement to visa processing in these classes is established ordinarily through approval by Citizenship and Immigration Services (CIS) of a petition filed on the applicant's behalf. When such petitions are forwarded by CIS to the Department of State, applicants in categories subject to numerical limit are registered on the visa waiting list. Each case is assigned a priority (i.e., registration) date based on the filing date accorded to the petition. Visa issuance within each numerically limited category is possible only if the applicant's place on the waiting list has been reached, i.e., the case priority date is within the visa availability cut-off dates published each month by the Department of State. Family and employment preference applicants wait for their visa numbers to become current within their respective categories on a worldwide basis according to priority date; a per-country limit on such preference immigrants set by INA 202 places a maximum on the amount of visas which may be issued in a single year to applicants from any one country, however. The Department of State requested that the National Visa Center at Portsmouth, New Hampshire provide the totals of applicants on the waiting list in the various numerically-limited family immigrant categories. Those totals are listed below, and reflect persons registered under each respective numerical limitation, i.e., the totals represent not only principal applicants or petition beneficiaries, but their spouses and children entitled to derivative status under INA 203(d) as well. It should be noted that applications for adjustment of status under INA 245 which are pending at Citizenship and Immigration Services offices are not included in the totals which are being presented at this time. Family-Sponsored Preference Categories F1: 228,787 F2A: 322,212 F2B: 481,726 F3: 484,230 F4: 1,206,397 Total: 2,723,352 Top Ten Countries The ten countries with the highest number of waiting list registrants are listed below; together these represent 75.4% of the Department of State total. This list includes all countries with at least 45,000 persons on the waiting list. INA 202 sets an annual limit on the amount of family-sponsored preference visas which may be issued to applicants from any one country; the 2009 per-country limit is 15,820. Mexico 961,744 Philippines 401,849 Dominican Republic 136,070 China 132,325 India 115,394 Vietnam 109,910 Bangladesh 50,275 Haiti 50,029 El Salvador 48,776 Pakistan 45,905 All Others 671,075 Worldwide Total: 2,723,352 F. OBTAINING THE MONTHLY VISA BULLETIN The Department of State's Bureau of Consular Affairs offers the monthly "Visa Bulletin" on the INTERNET'S WORLDWIDE WEB. The INTERNET Web address to access the Bulletin is: http://travel.state.gov/ From the home page, select the VISA section which contains the Visa Bulletin. To be placed on the Department of States E-mail subscription list for the Visa Bulletin, please send an E-mail to the following E-mail address: listserv@calist.state.gov and in the message body type: Subscribe Visa-Bulletin First name/Last name (example: Subscribe Visa-Bulletin Sally Doe) To be removed from the Department of States E-mail subscription list for the Visa Bulletin, send an e-mail message to the following E-mail address: listserv@calist.state.gov and in the message body type: Signoff Visa-Bulletin The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (area code 202) 663-1541. The recording is normally updated by the middle of each month with information on cut-off dates for the following month. http://www.Dr-Immigration.com/news/shownews.asp?newsID=43 Sat, 7 Mar 2009 20:27:55 EST DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 214, 215 and 274a [Docket No. USCIS-2007-0055; CIS No. 2428-07] RIN 1615-AB65 Changes to Requirements Affecting H-2A Nonimmigrants AGENCY: U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, DHS. ACTION: Final rule. ----------------------------------------- SUMMARY: This final rule amends Department of Homeland Security regulations regarding temporary and seasonal agricultural workers, and their U.S. employers, within the H-2A nonimmigrant classification. The final rule removes certain limitations on H-2A employers and adopts streamlining measures in order to encourage and facilitate the lawful employment of foreign temporary and seasonal agricultural workers. The final rule also addresses concerns regarding the integrity of the H-2A program and sets forth several conditions to prevent fraud and to protect laborers' rights. The purpose of the final rule is to provide agricultural employers with an orderly and timely flow of legal workers, thereby decreasing their reliance on unauthorized workers, while protecting the rights of laborers. The rule revises the current limitations on agricultural workers' length of stay including lengthening the amount of time an agricultural worker may remain in the United States after his or her employment has ended and shortening the time period that an agricultural worker whose H-2A nonimmigrant status has expired must wait before he or she is eligible to obtain H-2A nonimmigrant status again. This rule also provides for temporary employment authorization to agricultural workers seeking an extension of their H-2A nonimmigrant status through a different U.S. employer, provided that the employer is a registered user in good standing with the E-Verify employment eligibility verification program. In addition, DHS modifies the current notification and [[Page 76892]] payment requirements for employers when an alien fails to show up at the start of the employment period, an H-2A employee's employment is terminated, or an H-2A employee absconds from the worksite. To better ensure the integrity of the H-2A program, this rule also requires certain employer attestations and precludes the imposition of fees by employers or recruiters on prospective beneficiaries. Under this final rule, DHS also will revoke an H-2A petition if the Department of Labor revokes the petitioner's underlying labor certification. Also, this rule provides that DHS will publish in a notice in the Federal Register a list of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible for its nationals to participate in the H-2A program. These changes are necessary to encourage and facilitate the lawful employment of foreign temporary and seasonal agricultural workers. Finally, this rule establishes criteria for a pilot program under which aliens admitted on certain temporary worker visas at a port of entry participating in the program must also depart through a port of entry participating in the program and present designated biographical information upon departure. U.S. Customs and Border Protection (CBP) will publish a Notice in the Federal Register designating which temporary workers must participate in the program, which ports of entry are participating in the program, and the types of information that CBP will collect from the departing workers. DATES: This rule is effective January 17, 2009. FOR FURTHER INFORMATION CONTACT: Hiroko Witherow, Service Center Operations, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529, telephone (202) 272-8410. SUPPLEMENTARY INFORMATION: This supplementary information section is organized as follows: Table of Contents I. Background A. Proposed Rule B. Discussion of the Final Rule II. Public Comments on the Proposed Rule A. Summary of Comments B. General Comments B. Specific Comments III. Regulatory Requirements A. Small Business Regulatory Enforcement Fairness Act of 1996 B. Executive Order 12866 C. Executive Order 13132 D. Executive Order 12988 E. Regulatory Flexibility Act F. Unfunded Mandates Reform Act of 1995 G. Paperwork Reduction Act I. Background A. Proposed Rule The H-2A nonimmigrant classification applies to aliens seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States. Immigration and Nationality Act (Act or INA) section 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a); see 8 CFR 214.1(a)(2) (designation for H-2A classification). Despite the availability of the H-2A nonimmigrant classification, a high percentage of the agricultural workforce is comprised of aliens who have no immigration status and are unauthorized to work. In response to members of the public citing what they consider to be unnecessarily burdensome regulatory restrictions placed on the H-2A nonimmigrant classification and resulting limits on the utility of this nonimmigrant category to U.S. agricultural employers, the Department of Homeland Security (DHS) published a notice of proposed rulemaking on February 13, 2008, proposing to amend its regulations regarding the H-2A nonimmigrant classification. 73 FR 8230. On the same date, the Department of Labor (DOL) published a notice of proposed rulemaking to amend its regulations regarding the certification of H-2A employment and the enforcement of the contractual obligations applicable to H-2A employers. 73 FR 8538. DHS, among other changes, proposed to: Relax the limitations on naming beneficiaries on the H-2A petition who are outside of the United States. Permit H-2A employers to file only one petition when petitioning for multiple H-2A beneficiaries from multiple countries. Deny or revoke any H-2A petition if the alien-beneficiary paid or agreed to pay any prohibited fee or other form of compensation to the petitioner, or, with the petitioner's knowledge, to a facilitator, recruiter, or similar employment service, in connection with the H-2A employment. Require H-2A petitioners: (a) To attest that they will not materially change the information provided on the Form I-129 and the temporary labor certification; (b) to attest that they have not received and do not intend to receive, any fee, compensation, or other form of remuneration from prospective H-2A workers; and (c) to identify any facilitator, recruiter, or similar employment service that they used to locate foreign workers. Require H-2A petitioners to provide written notification to DHS, or be subject to an imposition of $500 in liquidated damages, within forty-eight hours if: (a) An H-2A worker fails to report to work within five days of the date of the employment start date; (b) the employment terminates more than five days early; or (c) the H-2A worker has not reported for work for a period of five days without the consent of the employer. Clarify that DHS will not accord H-2A status to any alien who has violated any condition of H-2A nonimmigrant status within the previous five years. Immediately and automatically revoke an H-2A petition upon the revocation of the underlying labor certification by DOL. Refuse to approve H-2A petitions filed on behalf of beneficiaries from or to grant admission to aliens from countries determined by DHS to consistently deny or unreasonably delay the prompt return of their citizens, subjects, nationals, or residents who are subject to a final order of removal. Extend the H-2A admission period following the expiration of the H-2A petition from not more than 10 days to 30 days. Reduce from 3 months to 45 days the minimum period spent outside the United States that would interrupt the accrual of time toward the 3-year maximum period of stay where the accumulated stay is 18 months or less, and to reduce such minimum period from 1/6 of the period of accumulated stay to 2 months if the accumulated stay is longer than 18 months. Reduce from 6 months to 3 months the period that an individual who has held H-2A status for a total of 3 years must remain outside of the United States before he or she may be granted H-2A nonimmigrant status again. Extend H-2A workers' employment authorization for up to 120 days while they are awaiting an extension of H-2A status based on a petition filed by a new employer, provided that the new employer is a registered user in good standing in DHS's E-Verify program. Impose on sheepherders the departure requirement applicable to all H-2A workers. Establish a temporary worker exit program on a pilot basis that would require certain H-2A workers to register at the time of departure from the United States. DHS initially provided a 45-day comment period in the proposed rule, which ended on March 31, 2008. DHS provided an additional 15-day comment [[Page 76893]] period from April 1, 2008 through April 14, 2008. During this 60-day comment period, DHS received 163 comments. DHS received comments from a broad spectrum of individuals and organizations, including various agricultural producers, agricultural trade associations, farm workers' labor unions, civil and human rights advocacy organizations, agricultural producers' financial cooperatives, farm management services companies, voluntary public policy organizations, private attorneys, state government agencies, a Member of Congress, and other interested organizations and individuals. During the public comment period, DHS officials, together with those from DOL, also met with stakeholders to discuss the proposed rule. Meeting participants were encouraged to submit written comments on the rule. DHS considered the comments received and all other materials contained in the docket in preparing this final rule. The final rule does not address comments seeking changes in United States statutes, changes in regulations or petitions outside the scope of the proposed rule, or changes to the procedures of other DHS components or agencies. All comments and other docket materials may be viewed at the Federal Docket Management System (FDMS) at http://www.regulations.gov, docket number USCIS-2007-0055. B. Discussion of the Final Rule The final rule adopts many of the regulatory amendments set forth in the proposed rule. The rationale for the proposed rule and the reasoning provided in the preamble to the proposed rule remain valid with respect to these regulatory amendments, and DHS adopts such reasoning in support of the promulgation of this final rule. Based on the public comments received in response to the proposed rule, however, DHS has modified some of the proposed changes for the final rule as follows. 1. Notification and Liquidated Damages Requirements The final rule requires petitioners to notify DHS, within two workdays, beginning on a date and in a manner specified in a notice published in the Federal Register, of the following circumstances: (a) An H-2A worker's failure to report to work within five workdays of the employment start date on the H-2A petition or within five workdays of the start date established by his or her employer, whichever is later; (b) an H-2A worker's completion of agricultural labor or services 30 days or more before the date specified by the petitioner in its H-2A petition; or (c) an H-2A worker's absconding from the worksite or termination prior to the completion of the agricultural labor or services for which he or she was hired. New 8 CFR 214.2(h)(5)(vi)(B)(1). By ``workday,'' DHS means the period between the time on any particular day when such employee commences his or her principal activity and the time on that day at which he or she ceases such principal activity or activities. a. Liquidated Damages DHS has revisited the proposed increase in liquidated damages from $10 to $500 for an employer's failure to comply with the notification requirement. For the time being, DHS will retain the liquidated damages provision under 8 CFR 214.2(h)(5)(vi)(B)(3), and require an employer who fails to comply with the notification requirements, as revised under this final rule, to pay liquidated damages in the amount of $10. b. Timeframes Triggering Notification Requirement To minimize the impacts on petitioners, the final rule relaxes the notification requirement in response to commenters' concerns that the proposed timeframes were not workable within current business realities. The final rule allows an employer, in certain circumstances, to use a start date newly established by the employer as the notification trigger date. The final rule also clarifies that the H-2A worker must report to work within five ``workdays'' of the employment start date, rather than the proposed five days. If the H-2A worker does not timely report to the worksite, the H-2A employer must report this violation to DHS within two workdays, rather than the proposed 48 hours. The final rule adopts the term ``workdays'' to ensure that H-2A employers are clear on the reporting deadlines. The final rule also requires DHS notification where the work is completed 30 days early rather than the proposed five days. The rule relieves the employer of its obligation to notify DHS when the worker's employment terminates upon completion of the work (unless the work is completed more than 30 days early). The final rule also provides that, if the petitioner demonstrates in the notification itself that good cause exists for an untimely notification to DHS, then DHS, in its discretion, may waive the liquidated damages amount. c. Remedy for Petitioners While the notification provision furthers DHS's enforcement goals of locating aliens who have not met the terms of their nonimmigrant status, DHS recognizes that the current regulations do not provide a sufficient remedy to petitioners that ``lose'' H-2A workers before the completion of work in the instances covered in the notification provision. Under the current regulations, petitioners may replace H-2A workers whose employment was terminated before the work has been completed. 8 CFR 214.2(h)(5)(ix). Such petitioners must file a new H-2A petition using a copy of the previously approved temporary labor certification to request replacement workers. However, the current regulations do not cover situations where H-2A workers fail to show up at the worksite or abscond. To minimize the adverse impact on petitioners who lose workers for these reasons, DHS has determined that petitioners should be permitted to seek substitute H-2A workers in these instances, as well, provided that petitioners comply with the notification requirements in 8 CFR 214.2(h)(5)(vi). Thus, the final rule allows a petitioner to file an H- 2A petition using a copy of the previously-approved temporary labor certification to replace an H-2A worker where: (a) An H-2A worker's employment was terminated early (i.e., before the completion of work); (b) a prospective H-2A worker fails to report to work within five workdays of the employment start date on the previous H-2A petition or within five workdays of the date established by his or her employer, whichever is later; or (c) an H-2A worker absconds from the worksite. New 8 CFR 214.2(h)(5)(ix). These three instances parallel the instances that trigger the notification requirement in new 8 CFR 214.2(h)(5)(vi)(B)(1) (except where the work for which the petitioner needed H-2A workers has been completed). d. Retention of Evidence of a Change in Employment Start Date The final rule also adds to the provision requiring the petitioner to retain evidence of its notification to DHS a requirement that the petitioner also retain evidence of a different employment start date for one year if the start date has changed from that stated on the H-2A petition. New 8 CFR 214.2(h)(5)(vi)(B)(2). Since the notification provision allows for the petitioner to use a new start date that the petitioner has established rather than the start date stated in the H- 2A [[Page 76894]] petition, DHS believes that it must require the employer to retain evidence of the change in the start date to protect against misrepresentations by the petitioner regarding the employment start date. e. Response Period Upon Receipt of a Notice of Noncompliance With the Notification Requirement The final rule extends from 10 days to 30 days the time period within which a petitioner must reply to a DHS notice of noncompliance with the notification requirement. New 8 CFR 214.2(h)(5)(vi)(C). Based upon comments received, DHS recognizes that small businesses may have difficulty in responding to a DHS notice within 10 days. Many do not have a human resources department to handle administrative tasks and may find it difficult to respond to a notice within 10 days, especially if the notice arrives during the petitioner's busiest season. DHS believes that a 30-day time period for responding to a notice is reasonable. 2. Payment of Fees by Aliens To Obtain H-2A Employment To address some commenters' concerns about the proposed provisions addressing job placement-related fees paid by beneficiaries to obtain H-2A employment, the final rule makes several clarifications and changes. First, the final rule specifies that the fees prohibited by the rule do not include the lower of the fair market value or the actual costs of transportation to the United States and any payment of government-specified fees required of persons seeking to travel to the United States (e.g., fees required by a foreign government for issuance of passports, fees imposed by the U.S. Department of State for issuance of visas, inspection fees), except where the passing of such costs to the worker is prohibited by statute or the Department of Labor's regulations. See 20 CFR 655.104(h). Prospective H-2A workers may be required to pay such costs, unless the prospective employer has agreed with the alien to pay such fees and/or transportation costs. New 8 CFR 214.2(h)(5)(xi)(A). DHS determined that payment of these costs by the H-2A worker should not be prohibited since they are personal costs related to the alien's travel to the United States, rather than fees charged by a recruiter or employer for finding employment. Second, to clarify the standard for the petitioner's knowledge of fees being paid by the alien, the final rule modifies the standard to include both knowledge by the petitioner and circumstances in which the petitioner should reasonably know that that worker has paid or has entered an agreement to pay the prohibited fees. Third, the final rule offers petitioners a means by which to avoid denial or revocation (following notice to the petitioner) of the H-2A petition in cases where USCIS determines that the petitioner knows or reasonably should know that the worker has agreed to pay the prohibited fees as a condition of obtaining H-2A employment. In cases where prohibited fees were collected prior to petition filing, and in cases where prohibited fees were collected by the labor recruiter or agent after petition filing, USCIS will not deny or revoke the petition if the petitioner demonstrates that the beneficiary has been reimbursed in full for fees paid or, if the fees have not yet been paid, that the agreement to pay such fees has been terminated. Additionally, as an alternative to reimbursement in the case where the prohibition is violated by the recruiter or agent after the filing of the petition, the petitioner may avoid denial or revocation of the petition by notifying DHS of the improper payments, or agreement to make such payments, within two workdays of finding out about such payments or agreements. If the H-2A petition is denied or revoked on these grounds, then, as a condition of approval of future H-2A petitions filed within one year of the denial or revocation, the petitioner must demonstrate that the beneficiary has been reimbursed or that the beneficiary cannot be located despite the petitioner's reasonable efforts. New 8 CFR 214.2(h)(5)(xi)(C). Fourth, the final rule does not include the requirement that the petitioner submit a separate document attesting to: The scope of the H- 2A employment and the use of recruiters to locate H-2A workers, and the absence of any payment of prohibited recruitment fees by the beneficiary. Although petitioners will be required to attest to these factors, DHS is instead amending the Form I-129 to include those attestation provisions rather than requiring petitioners to submit a separate attestation document. DHS has determined that a separate attestation would increase petitioners' administrative burdens as well as duplicate much of the same information that petitioner must provide on the H-2A petition to establish eligibility. 3. Revocation of Labor Certification The final rule addresses the effect of the revocation of temporary labor certifications by DOL on H-2A petitioners and their beneficiaries. This rule provides for the immediate and automatic revocation of the H-2A petition if the underlying temporary labor certification is revoked by DOL. New 8 CFR 214.2(h)(5)(xii). DHS believes that immediate and automatic revocation of the petition is a necessary consequence of a revocation of the temporary labor certification. The temporary labor certification is the basis for the petition, and DHS does not have the expertise to second-guess DOL's decision to revoke the temporary labor certification. Because the denial or revocation of a petition based on the revocation of temporary labor certification will have a direct effect on an H-2A worker's status, DHS will authorize the alien beneficiary's period of stay for an additional 30-day period for the purpose of departure or extension of stay based upon a new offer of employment. Id. During this 30-day period, such alien will not be deemed to be unlawfully present in the United States. Id.; see also INA section 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B) (description of unlawful presence). Although DHS also proposed to require a petitioner to pay for the alien's reasonable transportation costs of return to his or her last place of foreign residence abroad after DHS revokes a petition for improper payment of fees, DHS has removed that requirement from this final rule. 4. Violations of H-2A Status The final rule clarifies that DHS will deny H-2A nonimmigrant status based on a finding that the alien violated any condition of H-2A status within the past 5 years, unless the violation occurred through no fault of the alien. DHS has added this clarification to ensure that this provision will not adversely affect the aliens whose previous violations of status were caused by illegal or inappropriate conduct by their employers. New 8 CFR 214.2(h)(5)(viii)(A). 5. Permitting H-2A Petitions for Nationals of Participating Countries The final rule modifies the proposal that would have precluded DHS from approving an H-2A petition filed on behalf of aliens from countries that consistently deny or unreasonable delay the prompt return of their citizens, subjects, nationals or residents who are subject to a final order of removal from the United States. DHS will now publish in a notice in the Federal Register a list of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible for its nationals to participate in the H-2A program. In designating countries to [[Page 76895]] allow the participation of their nationals in the H-2A program, DHS, with the concurrence of the Department of State, will take into account factors including, but not limited to, the following: (1) The country's cooperation with respect to the issuance of travel documents for citizens, subjects, nationals and residents of that country who are subject to a final order of removal; (2) the number of final and unexecuted orders of removal against citizens, subjects, nationals, and residents of that country; (3) the number of orders of removal executed against citizens, subjects, nationals, and residents of that country; and (4) such other factors as may serve the U.S. interest. Initially, the list will be composed of countries that are important for the operation of the H-2A program and are cooperative in the repatriation of their nationals. The countries included on the list are the countries whose nationals contributed the vast majority of the total beneficiaries of the H-2A program during the last three fiscal years. Additional details on how this list will be administered are included in the discussion in response to comments received on this proposed provision below. 6. Conforming Amendments and Non-Substantive Changes The final rule makes conforming amendments to 8 CFR 214.2(h)(2)(B) and (C) by providing that the form instructions will contain information regarding appropriate filing locations for the H-1B, H-2A, H-2B, and H-3 classifications. The final rule also makes conforming amendments to 8 CFR 214.2(h)(5)(v)(B) and 8 CFR 214.2(h)(5)(v)(C) to clarify job qualification documentation requirements and the timing for such documents to be filed for named and unnamed beneficiaries. Finally, the final rule includes non-substantive structure or wording changes from the proposed rule for purposes of clarity and readability. II. Public Comments on the Proposed Rule A. Summary of Comments Out of the 163 comments USCIS received on the proposed rule, several comments supported the proposals in the rule as a whole and welcomed DHS's recognition of the need for H-2A workers and for modifications to the current H-2A regulations. Agricultural employers submitted 115 of the total comments received. Most commenters generally supported the streamlining measures in the proposed rule, such as: Removing the requirement to name the sole beneficiary and beneficiaries who are outside of the United States if the beneficiaries are named in the labor certification; permitting an employer to file only one petition for multiple beneficiaries from multiple countries; extending the admission period to 30 days after the conclusion of the H-2A employment; and reducing the required time abroad once an H-2A worker has reached the maximum period of stay before being able to seek H-2A nonimmigrant status again. However, many commenters were opposed to several changes that they believe will impose additional burdens and costs on farm businesses. They suggested that some of the proposed changes could lead to a decrease in usage of the H-2A program, such as the following proposals: Precluding the current practice of approving H-2A petitions that are filed with denied temporary labor certifications; authorizing USCIS to deny or revoke upon notice any H-2A petition if it determines that the beneficiary paid a fee in connection with or as a condition of obtaining the H-2A employment; modifying the current notification and liquidated damages requirements; providing for the immediate and automatic revocation of the petition upon the revocation of the labor certification; and imposing on sheepherders the same departure requirement applicable to all H-2A workers. Many commenters also were concerned about the proposals to authorize employment of H-2A workers while they are changing employers (if the new employer is a participant in good standing in E-Verify) and to institute a land-border exit system for certain H-2A workers on a pilot basis. The concerns of the commenters summarized above and additional, more specific comments are organized by subject area and addressed below. B. General Comments 1. Comments From the Dairy Industry Comment: Several commenters expressed disappointment about what was described as the continued exclusion of the dairy industry from the H- 2A program. Response: DHS notes that most dairy farmer's needs are year-round and, therefore, may not be able to meet the requirements of the H-2A program. Dairy farmers that can demonstrate a temporary need for H-2A workers, however, are able to utilize the program. The applicable statute precludes DHS from extending the program to work that is considered permanent. See INA section 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a). 2. U.S. and Foreign Worker Protections Comment: DHS received some comments that urged the withdrawal of the proposed rule entirely on the basis that the rule fails to reflect the critical balance between the nonimmigrant labor force and the U.S. workforce and undermines critical labor protections that serve as the foundation of the H-2A program. Some commenters also opined that the proposed rule would result in the exploitation of temporary foreign workers and the undermining of wages and working conditions of U.S. workers. Response: DHS is aware of its responsibility to help maintain the careful balance between preserving jobs for U.S. workers and administering nonimmigrant programs designed to invite foreign workers to the United States. The final rule contains two major revisions to the regulations designed to protect U.S. workers: (1) Removal of DHS's authority to approve H-2A petitions filed with temporary labor certifications that have been denied by DOL (revised 8 CFR 214.2(h)(5)(i)(A)); and (2) the addition of a provision to provide for the immediate and automatic revocation of an H-2A petition upon the revocation of the temporary labor certification by DOL (new 8 CFR 214.2(h)(5)(xii)). DHS believes that a temporary labor certification process is required to protect U.S. workers. In order to protect foreign workers from exploitation, the final rule requires petitioners to return any recruiter or finders' fees paid by alien beneficiaries as a condition of the H-2A employment if paid with the knowledge of the petitioner (or if the petitioner reasonably should have known about the payment). See new 8 CFR 214.2(h)(5)(xi)(A). Failure to return the prohibited fees to the beneficiaries will result in the denial or revocation of the H-2A petition. 3. Lack of Enforcement Against the Employment of Unauthorized Aliens Comment: A few commenters criticized the lack of a sound method for strong enforcement against employers that obtain and maintain a workforce of unauthorized aliens while the rule proposed to impose stiffer fines, revocations, and increase in costs to those employers who are trying to obtain and maintain a legal workforce through the H- 2A program. Response: U.S. Immigration and Customs Enforcement (ICE) is charged with enforcing the laws against the [[Page 76896]] employment of unauthorized aliens, including the applicable provisions at section 274A of the INA, 8 U.S.C. 1324a. Enforcement of these provisions is outside the scope of this rulemaking. The purpose of this rule is to strengthen the integrity of the H-2A program so that employers will be encouraged to obtain workers through the H-2A program rather than through unlawful means. The added authority to deny or revoke petitions, and any increase in costs to employers included in this rule reflect necessary anti-fraud and worker protection measures. Employers that follow the rules of the program will not be unreasonably affected by these measures. C. Specific Comments 1. Consideration of Denied Temporary Agricultural Labor Certifications Comment: Seventeen out of 24 commenters who discussed this issue objected to the removal of regulatory language permitting, in limited circumstances, the approval of H-2A petitions filed with temporary labor certifications that have been denied by DOL. Response: After considering the commenters' objections, DHS nevertheless retains this proposal in this final rule as discussed in the comments and responses below. See new 8 CFR 214.2(h)(5)(i)(A). Comment: Some commenters among those who objected to this proposal suggested that the INA vests the authority for making decisions on the H-2A workers' admission solely with DHS, not DOL. Response: DHS's statutory authority is to determine whether or not to approve a petition for H-2A workers after consultation with DOL. INA section 214(c)(1), 8 U.S.C. 1184(c)(1). By no longer permitting the approval of H-2A petitions in instances where DOL has denied the temporary labor certification, DHS does not believe that it is abrogating its statutory responsibility in adjudicating H-2A petitions. Rather, DHS is recognizing that it does not have the expertise in evaluating the current U.S. labor market to make a determination independent from DOL's determination on the temporary labor certification. It is therefore in the best interests of U.S. workers and the public in general that DHS relinquish its ability to approve H- 2A petitions in the absence of the grant of such labor certification by DOL. Comment: A few commenters pointed out that the language of the INA requires an employer only to apply for, not obtain, a temporary labor certification from the Secretary of Labor. See INA section 218(a)(1), 8 U.S.C. 1188(a)(1). Response: DHS disagrees with the commenters' interpretation of the statute. While the statutory language only refers to a petitioner's application for a temporary labor certification, DHS believes that its interpretation of this language requiring petitioners also to obtain a temporary labor certification as a condition of H-2A employment is reasonable. A temporary labor certification certifies that there are insufficient 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 that the employment of the alien in such labor or services will not adversely affect the wages and working conditions of U.S. workers who are similarly employed. INA section 218(a)(1), 8 U.S.C. 1188(a)(1). The statute includes the temporary labor certification requirement as a means to protect U.S. workers from losing jobs to foreign laborers. INA section 218(c)(3)(A), 8 U.S.C. 1188(c)(3)(A). Without requiring that the temporary labor certification actually be obtained by the petitioner, the temporary labor certification requirement would fail to offer such protection. Moreover, it is clear that the determinations as to the availability of U.S. workers and the effect on their wages and working conditions are within the expertise of DOL, not DHS. Without certification by the Secretary of Labor, DHS would not be well equipped to make a determination on the petition for an employer to import foreign workers. Additionally, section 214(a)(1) of the INA grants the Secretary of Homeland Security authority to establish by regulation the conditions for nonimmigrant admissions. 8 U.S.C. 1184(a)(1). This rule is establishing a requirement that employers obtain a temporary labor certification as a condition for an alien to be admitted as an H-2A nonimmigrant. Comment: Many commenters who objected to this proposal suggested that this proposal and the lack of an expeditious process to make a new determination on the denied temporary labor certification will leave employers without recourse if U.S. workers do not report to work on the date of their need. They asserted that filing a petition without a temporary labor certification should be allowed in any circumstance where DOL denies certification or fails to act in a timely manner. Response: In its final H-2A rule, DOL establishes a process for an employer to request re-determination of need if U.S. workers fail to report on the date of need. DHS believes that this DOL provision addresses these commenters' concerns. Therefore, under this final rule, DHS abrogates the process for approving H-2A petitions, in limited circumstances, that are filed with denied temporary labor certifications. 2. Unnamed Beneficiaries in the Petition Comment: Ten commenters addressed and supported the proposal to allow H-2A petitions to include unnamed beneficiaries for those who are outside the United States regardless of the number of beneficiaries on the petition or whether the temporary labor certification named beneficiaries. They agreed that it would provide agricultural employers with more flexibility to recruit foreign workers months ahead of the actual date of stated need. Response: Based on the support from the commenters, the final rule adopts this proposal with minor changes. The changes discussed below concern beneficiaries from countries that have not been designated as participating countries under the H-2A program as well as minor, nonsubstantive changes to improve the clarity of the text. The final rule revises 8 CFR 214.2(h)(2)(iii) and removes 8 CFR 214.2(h)(5)(i)(C). Also, as noted earlier, the final rule makes conforming amendments to 8 CFR 214.2(h)(5)(v)(B) and 8 CFR 214.2(h)(5)(v)(C) to clarify job qualification documentation requirements and the timing for such documents for named and unnamed beneficiaries. The final rule also maintains the requirement that the petition include the names of those beneficiaries who are present in the United States. It should be noted that, in the case of an alien who is already in the United States, an H-2A petition encompasses both an employer's request to classify its worker as H-2A nonimmigrant and the alien worker's request to change from a different nonimmigrant status to H-2A or to extend his or her H-2A status. If eligible, the approval of the H-2A petition and the related request for extension of stay or change of status will serve either to confer a new immigration status or to extend the status of a particular alien immediately upon approval. Since such an approval, unlike a nonimmigrant admission from outside the country, does not afford the U.S. Government the opportunity to first inspect and/or interview the H-2A beneficiary at a consular office abroad or at a U.S. port of entry, it is essential that DHS have the names of beneficiaries in the country. [[Page 76897]] 3. Multiple Beneficiaries Comment: Eleven out of 12 commenters supported the proposal to permit petitioners to file only one petition with DHS when petitioning for multiple H-2A beneficiaries from multiple countries. They stated that this change to the regulations would benefit the employer not only in terms of convenience but also financially. Response: Based on the positive responses from commenters, the final rule retains the proposal. New 8 CFR 214.2(h)(5)(i)(B). Comment: One commenter suggested that this change would unnecessarily complicate the visa issuance process. Response: DHS disagrees with this commenter's concern. DHS proposed the change as a result of the implementation of the Petition Information Management System (PIMS) by the Department of State in 2007. PIMS effectively tracks visa issuance for specific petitions approved for multiple beneficiaries in real time regardless of the consulate location where a beneficiary may apply for a visa. Therefore, DHS does not believe that this proposed change would complicate the visa issuance process. A consular officer would have full and timely access to information regarding the exact number of beneficiaries who have been issued visas based on the approved H-2A petition at the time an alien applies for his or her H-2A visa based on that petition. The Department of State website provides more information about PIMS at http://travel.state.gov/visa/laws/telegrams/telegrams_4201.html. Comment: The same commenter also stated that the proposal would result in an employer recruiting and hiring workers from different geographical regions of a country and/or from different nations. The commenter further suggested that such hiring process would increase the likelihood of problems for workers who feel isolated, decreasing the workers' ability to unite and communicate among themselves. Response: DHS does not intend to change employers' recruiting processes as a result of this proposal. Under the current regulations, an employer may bring in H-2A workers from many different countries rather than from a single country or from one region within a country. The change made by this final rule merely would permit petitioners to file only one petition with DHS when petitioning for multiple H-2A beneficiaries from multiple countries instead of requiring multiple petitions. 4. Payment of Fees by Beneficiaries To Obtain H-2A Employment a. Grounds for Denial or Revocation on Notice. Comment: Eleven out of 83 commenters supported the proposal to authorize the denial or revocation of an H-2A petition if DHS determines that the alien beneficiary has paid or has agreed to pay any fee or other form of compensation, whether directly or indirectly, to the petitioner or that the petitioner is aware or reasonably should be aware that such payment was made to the petitioner's agent, or to any facilitator, recruiter, or similar employment service, in connection with or as a condition of obtaining the H-2A employment. Seventy-one commenters responded negatively to this proposal and one comment was neutral. Response: After carefully considering the commenters' support and objections, for the reasons stated in the paragraphs below, the final rule provides DHS with the authority to deny or to revoke (following notice and an opportunity to respond) an H-2A petition if DHS determines that the petitioner has collected, or entered into an agreement to collect a fee or compensation as a condition of obtaining the H-2A employment, or that the petitioner knows or reasonably should know that the beneficiary has paid or agreed to pay any facilitator, recruiter, or similar employment service as a condition of H-2A employment. See new 8 CFR 214(h)(5)(xi)(A). DHS has determined that a prohibition on any payment made by a foreign worker in connection with the H-2A employment is more restrictive than necessary to address the problem of worker exploitation by unscrupulous employers, recruiters, or facilitators imposing costs on workers as a condition of selection for H-2A employment. Accordingly, DHS has not included in the final rule the prohibition on payments made in connection with the H-2A employment, but retains the prohibition on payments made to an employer, recruiter, facilitator, or other employment service by the foreign worker that are a condition of obtaining the H-2A employment. DHS will not deny or revoke the petition if the petitioner demonstrates that (1) prior to the filing of the petition, the alien beneficiary has been reimbursed for the prohibited fees paid; (2) where the prohibited fees have not yet been paid, that the agreement to pay has been terminated; or (3) where the prohibition on collecting or agreeing to collect a fee is violated by a recruiter or agent after the filing of the petition, the petitioner notifies DHS about the prohibited payments, or agreement to make such payments, within 2 workdays of finding out about such payments or agreements. Comment: The commenters who supported this proposal welcomed this addition to the regulations as a positive change to recognize worker abuses, such as human trafficking and effective indenture. They suggested that DHS should take further measures to deter future violations by implementing procedures to debar a violator from the program. Response: DHS does not have the statutory authority to implement procedures to debar petitioners from the H-2A program. The statute provides DHS with the authority to deny petitions filed with respect to an offending employer under section 204 or 214(c)(1) of the INA (8 U.S.C. 1154 or 1184(c)(1)) for 1 to 5 years if it finds a significant failure to meet any of the conditions of an H-2B petition or a willful misrepresentation of a material fact in an H-2B petition. INA section 214(c)(14)(A)(ii), 8 U.S.C. 1184(c)(14)(A)(ii). However, there is no similar provision applicable to the H-2A nonimmigrant classification that provides such authority. Comment: Most of the commenters supporting worker protections also suggested that DHS should take further measures to provide appropriate remedies to help the foreign workers receive the funds to which they were entitled. Response: DHS agrees that the proposed rule, while offering some safeguards against the indenture of H-2A workers by providing a direct disincentive to employers and/or their recruiters to collect recruiting and similar fees from prospective and current H-2A workers, does not address fully the basic problem such workers face: They remain ``indentured'' until such time as they are relieved of this debt burden. While the proposed rule addresses this concern by providing an alien worker who has incurred such debt in connection with obtaining H- 2A employment with the opportunity to change employers or return to his or her home country, it does not relieve the alien of his or her improperly imposed H-2A placement-related debt burden. DHS agrees with the commenters' concern in this regard and believes that it is in the interests of both the alien and legitimate H-2A employers to ensure the fair and even-handed administration of the H-2A program by providing a means to make such alien workers whole. Consistent with the expressed intent of the proposed rule to afford [[Page 76898]] adequate protections for alien agricultural workers seeking H-2A nonimmigrant classification and to remove unnecessary administrative burdens on legitimate employers seeking to hire such workers, the final rule, therefore, provides that an H-2A petitioner can avoid denial or revocation of the H-2A petition if the petitioner demonstrates that the petitioner or the employment service reimbursed the alien worker in full for the prohibited fees paid or that any agreement for future payment is terminated. New 8 CFR 214.2(h)(5)(xi)(A)(1), (2), and (4). However, the remedy of reimbursement would not apply if the petitioner collected the fees after the filing of the petition. New 8 CFR 214.2(h)(5)(xi)(A)(3). For a petitioner who discovers after the filing of the petition that the alien worker paid or agreed to pay an employment service the prohibited fees, the petitioner can avoid denial or revocation by notifying DHS within 2 workdays of obtaining this knowledge instead of reimbursing the worker or effecting termination of the agreement. New 8 CFR 214.2(h)(5)(xi)(A)(4). DHS will publish a notice in the Federal Register to describe the manner in which the notification must be provided. DHS does not believe it appropriate to impose on petitioners who discover a post-filing violation by a labor recruiter the same adverse consequence--denial or revocation of the petition--that is imposed on more culpable petitioners who themselves violate the prohibition on collection of fees from H-2A workers after petition filing, nor should petitioners discovering such post-filing violations by a labor recruiter be put in a situation where the only way to avert denial or revocation of the petition might be for the petitioner to pay for the recruiter's violation by reimbursing the alien itself. Petitioners should be encouraged to come forward with information about post-filing wrongdoing by labor recruiters, even if reimbursement is not possible. In this way, DHS can help provide further protections to H-2A workers against unscrupulous recruiter practices. Further, where the petitioner does not reimburse the beneficiary and USCIS denies or revokes the H-2A petition, the final rule provides that a condition of approval of subsequent H-2A petitions filed within one year of the denial or revocation is reimbursement of the beneficiary of the denied or revoked petition or a demonstration that the petitioner could not locate the beneficiary. New 8 CFR 214.2(h)(5)(xi)(C)(1). This requirement is intended to balance the commenters' concerns that an H-2A alien worker not be required to pay fees as a condition of obtaining his or her H-2A employment with the legitimate concern that petitioners who run afoul of 8 CFR 214.2(h)(5)(xi)(A) but who have reimbursed the alien worker in full or who, despite their reasonable efforts, are unable to locate such workers, continue to have access to participation in the H-2A program. Whether the petitioner will be able to demonstrate to the satisfaction of DHS that it has exercised reasonable efforts to locate the alien worker will depend on the specific facts and circumstances presented. In this regard, DHS would take into consideration the amount of time and effort the petitioner expended in attempting to locate the beneficiary, and would require, at a minimum, that the petitioner has attempted to locate the worker at every known address(es). The final rule also clarifies that the 1-year condition on petition approval will apply anew each time an H-2A petition is denied or revoked on the basis of new 8 CFR 214.2(h)(5)(xi)(A)(1)-(4). New 8 CFR 214.2(h)(5)(xi)(C)(2). Comment: Many commenters further suggested that employers should be obligated to pay for aliens' subsistence costs while the workers are not permitted to work. Response: DHS agrees that the revocation of a petition based on the payment of prohibited fees should not penalize H-2A workers. Accordingly, to minimize the adverse impact on workers, DHS will authorize the alien beneficiary's period of stay for an additional 30- day period for the purpose of departure or extension of stay based upon a new offer of employment. Id. During this 30-day period, such alien will not be deemed to be unlawfully present in the United States. Id.; see also INA section 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B) (description of unlawful presence). DHS, however, will not be requiring employers to provide financial assistance to aliens adversely affected by the revocation of a petition. While we understand that certain H-2A workers will be adversely affected when DHS revoked H-2A petitions due to actions by the employer, we do not believe that DHS can require employers to cover expenses for workers without further notice and comment. This determination, however, does not impact any other legal remedy or claim that an affected worker may have against his or her employer. Further, although DHS proposed to also require a petitioner to pay for the alien's reasonable transportation costs of return to his or her last place of foreign residence abroad after DHS revokes a petition for improper payment of fees, DHS has removed that requirement from this final rule. While section 214(c)(5)(A) of the INA (8 U.S.C. 1184(c)(5)(A)), requires petitioners to pay the workers' reasonable transportation expenses to return to their last place of foreign residence following revocation of a petition, that provision pertains solely to H-1B and H-2B nonimmigrant workers. 8 U.S.C. 1184(c)(5)(A). As there is no similar statutory requirement for employers of H-2A temporary workers to cover expenses for beneficiaries even when the petitioner's actions result in the revocation of the petition and thus require the alien to leave the United States, DHS does not believe that it may impose such costs onto the H-2A employer. Comment: Several commenters suggested that employers should be required to ensure that workers' passports are not confiscated. Response: Existing laws satisfactorily meet these commenters' concerns and they are not addressed by this final rule. For example, it is unlawful to conceal, remove or confiscate an immigration document in furtherance of peonage or involuntary servitude. See 18 U.S.C. 1592. Comment: Some commenters suggested that the U.S. government should require H-2A employers to comply with Article 28 of Mexico's Federal Labor Law, which requires that employers recruiting Mexican citizens in Mexico for employment abroad comply with such requirements as registering with the applicable Board of Conciliation and Arbitration, submitting the employment contract to the Board, and posting a bond to ensure a fund to compensate workers for illegal employment practices. They further stated that the North American Agreement on Labor Cooperation (NAALC), which requires each signatory nation to cooperate to ensure compliance with all labor laws and improve conditions for workers, is a treaty that binds the United States. Response: DHS does not enforce the labor law of a foreign country. As it is DOL's function to administer the U.S. government's responsibilities under the NAALC and to enforce federal labor laws, DHS is not in a position to reply to these comments and no changes were made to the final rule to respond to them. Comment: One commenter suggested that the proposed rule contains no plan for dealing with unscrupulous, fraudulent recruiters in foreign [[Page 76899]] countries and that this change may result in DHS penalizing the victims rather than the perpetrators as workers lose jobs and employers lose workers. Some commenters made a variety of recommendations to enforce the methods to protect H-2A workers from abuses, such as requiring an H-2A employer to reach written agreements with labor contractors, recruiters, or facilitators to prohibit the imposition of job placement-related fees on prospective workers or limiting the use of recruiters and facilitators for H-2A purposes to those that maintain an office in the United States and are duly licensed to do business in the United States according to Federal and State laws. Response: While DHS agrees that these precautions would further protect H-2A workers from abuses, including such precautions in this final rule would be outside DHS' authority. DHS cannot specifically regulate the business practices of recruiters in foreign countries or the agreements between private entities under existing authorities. Comment: Some commenters who objected to this proposal suggested that this proposal would lead to a decrease in the usage of the H-2A program as it will make the program more costly. Response: While DHS understands that this rule has the effect of requiring employers rather than H-2A workers to bear these costs, the H-2A program was never intended to encourage the importation of indebted workers. The intention of the final rule is to ensure that the actual wages paid to H-2A workers reflect those set forth in the labor certification; passing recruitment-related costs on to the alien worker would have the effect of reducing the alien worker's actual wages. Further, DHS does not believe that this rule would have a chilling effect on the recruitment of H-2A workers; demand for such workers is based on a prospective employer's need for workers. So too, the choice whether to use recruiters and/or facilitators is that of the employer and is presumably based on a determination that it makes economic sense to use such persons to assist in finding alien workers. Assuming that making the employer bear such recruitment costs would make the program more cost prohibitive, the solution is not to pass those costs on to economically disadvantaged alien workers but to leave to the free market the amount an employer is willing to agree to pay the recruiter, facilitator, or employment service. Comment: A number of commenters who objected to this proposal asserted that there is no statutory authority in the INA for DHS to prohibit prospective workers from paying a recruiter or a facilitator for the services they receive in order to secure employment in the United States. They stated that it is a longstanding practice that foreign agents collect fees from those who wish to find work in the United States and need assistance with their visa applications and/or the admission process and, in fact, such services have become essential with constant changes in the visa application procedure at U.S. consulates abroad. Response: DHS believes that these comments misinterpret the proposed change. The proposal would neither prohibit the use of such recruiters or facilitators during the recruitment or visa application process nor the collection of fees itself. Instead, the proposal would prohibit imposition of fees on prospective workers as a condition of selection for such employment. It would not preclude the payment of any finder's or similar fee by the prospective employer to a recruiter or similar service, provided that such payment is not assessed directly or indirectly against the alien worker. Under section 214(a) of the INA, 8 U.S.C. 1184(a), DHS has plenary authority to determine the conditions of admission of all nonimmigrants to the United States, including H-2A workers. It is within the authority of DHS to bar the payment by prospective workers of recruitment-related fees as a condition of an alien worker's admission to this country in H-2A classification. DHS notes that this final rule is consistent with the Department of Labor's bar on the employer passing to prospective alien agricultural workers fees the employer incurs in recruiting U.S. workers in conjunction with obtaining a temporary agricultural worker labor certification. See new 20 CFR 655.105(o). Comment: Many commenters asked DHS to specify what types of fees are prohibited by the rule. Several commenters argued that obtaining a passport and a visa for arriving H-2A workers should not be the employer's responsibility. Response: DHS agrees that passport and visa fees should not be included in the types of fees prohibited by the rule, except where the passing of such costs to the worker is prohibited by statute or the Department of Labor's regulations. Generally, the types of fees that would be prohibited include recruitment fees, attorneys' fees, and fees for preparation of visa applications. So that the prohibition against impermissible fees remains general, covering any money paid by the beneficiary to a third party as a condition of the H-2A employment, the final rule does not provide a list of prohibited fees. However, as discussed earlier, the final rule provides that prohibited fees do not include the lesser of the fair market value or actual costs of transportation to the United States, or payment of any government- specified fees required of persons seeking to travel to the United States, such as, fees required by a foreign government for issuance of passports and by the U.S. Department of State for issuance of visas. As these costs would have to be assumed by any alien intending to travel to the United States, DHS believes that each alien should be responsible for them. New 8 CFR 214.2(h)(5)(i)(C)(5) and (h)(5)(xi)(A) and (C). Comment: Many commenters expressed concerns about petition revocation based on an employer's knowledge of the payment of job placement-related fees by prospective workers. Many commenters requested that DHS clarify the standard by which an employer will be deemed to lack knowledge of the prohibited payment by the prospective worker. Response: The final rule clarifies that an H-2A petition will be subject to denial or revocation only if DHS determines that the H-2A petitioner knew, or reasonably should have known, that the H-2A worker paid or agreed to pay a prohibited fee. New 8 CFR 214.2(h)(5)(xi)(A). For example, if a recruiter advertises to prospective H-2A petitioners that it can place temporary alien workers with such employers at no or minimal cost to the employers, it is reasonable for prospective petitioners to view these claims as suspect and question whether the recruiter has passed its recruitment costs to the prospective H-2A workers. A determination by DHS that the petitioner failed to make reasonable inquiries to ensure that prospective H-2A workers did not pay the recruiter any fees will subject the petition to denial or revocation. Similarly, if an H-2A petitioner learns, directly or indirectly, that a prospective H-2A worker has been asked to pay a fee or other thing of value as a condition of his or her employment with the U.S. employer, the H-2A petitioner will be deemed to be on notice that the prospective worker has paid a prohibited fee and reasonably can be expected to ascertain whether this is in fact true before petitioning for the worker. Comment: Another comment stated that this proposal would make petitioners subject to liability by opening additional avenues for lawsuits [[Page 76900]] against the petitioners who may be held responsible for a third party's action. Response: This provision is not intended to provide any party with the authority to engage in legal proceedings based on this decision by DHS. Comment: Some commenters suggested that DHS should recognize that some assistance in recruiting and/or in the visa application and admission process could be conducted informally by friends or family members, not as a for-profit activity, and requested DHS to specify facilitators and recruiters that fall under these provisions. Response: Since assistance in recruiting and in the visa application or admission process that is provided without charge is not precluded by this rule, DHS determined that it is not necessary for the final rule to reference such assistance. Comment: There were additional suggestions to prevent fraud and to protect laborers' rights, as well as administrative recommendations. Response: Because these comments exceeded the scope of the proposed rule, they are not addressed in this final rule. b. Employer Attestation Comment: One out of 8 commenters supported the proposed addition to require H-2A petitioners to attest that they will not materially change the information provided on the Form I-129 and the temporary labor certification; that they have not received, nor intend to receive, any fee, compensation, or other form of remuneration from prospective H-2A workers; and whether they used a facilitator, recruiter, or any other similar employment service, to locate foreign workers, and if so, to name such facilitators, recruiters, or placement services. Seven commenters wrote that the employer attestation would not reduce the amount of paperwork required by an employer nor streamline the process. Response: DHS has carefully considered the attestation requirement, and has determined that a separate attestation requirement would be a duplicative addition to the regulations. However, an attestation relates to eligibility requirements that the petitioner must demonstrate on the H-2A petition which the petitioner must sign as being true and correct. DHS is instead amending the Form I-129 to include the attestation requirements. Comment: Many commenters pointed out that there are some minor activities in the overall scope of work on an agricultural operation and the workers' secondary duties change from season to season. They suggested that the narrow and restrictive view of unchanging duties in the proposed rule could result in good-faith employers violating this portion of the rule. Response: While the final rule does not contain a separate attestation requirement, these comments relate to the requirement that the petitioner notify DHS of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility. 8 CFR 214.2(h)(11)(i)(A). DHS does not agree with these commenters' interpretations and understands that farm laborers generally perform several duties and their secondary duties may vary from season to season. For example, while a worker's main duty may be to harvest the crop, there may be a time when he or she is required to drive a tractor, to transport the crop to a processor, or to repair farm equipment. Incidental duties that are associated with the worker's main duty and are part of routine farm maintenance are not considered material changes and do not require the filing of a new petition. See 8 CFR 214.2(h)(2)(i)(E). DOL also provides a clarification in its final rule to reflect that work activity of the type typically performed on a farm and incident to the agricultural labor or services for which an H-2A labor certification was approved may be performed by an H-2A worker. DHS is in agreement with DOL's clarification, which will ensure that H-2A workers can engage in minor amounts of other incidental farm work activity during periods when they are not performing the agricultural labor of services that is the subject of their application. Comment: Commenters suggested that the listing of facilitators, recruiters, or placement services should only be required where workers were actually recruited, and not in the instances where workers were assisted with the visa application process. Response: While the final rule does not include a separate attestation requirement where the listing of facilitators, recruiters, or placement services would be required, the revised H-2A petition will request the petitioner to include this information. DHS agrees with the commenters' concerns. DHS recognizes that listing all services used potentially may be overly burdensome and of limited utility to DHS. The revised H-2A petition instead will request the petitioner to provide the names of the facilitators, recruiters, or placement services that actually located the H-2A beneficiaries on the petition. Comment: One commenter suggested that the attestation provision include an agreement by the employer agreeing to unhindered and unannounced inspections by U.S. Immigration and Customs Enforcement (ICE) and DOL. Response: The final rule does not include the suggested addition. DHS has determined that it is not necessary to include such a provision because such inspections are separately authorized by law. See 8 CFR 214.2(h)(5)(vi)(A). Additionally, DOL authorities are within the jurisdiction of DOL, rather than DHS. As such, it is not necessary that an employer agree to inspections. 5. Petition Notification Requirements and Liquidated Damages Comment: Seventy-three out of 74 commenters objected to the modified notification and liquidated damages provisions in the proposed rule. Response: After careful consideration, and in response to the commenters' objections, DHS has modified the proposed notification requirements. DHS also has removed the increase in liquidated damages and, instead, will return to the current liquidated damages provision under 8 CFR 214.2(h)(5)(vi)(A). Comment: Many commenters objected to the proposed requirements to notify DHS if an H-2A worker fails to report for work within 5 days after the employment start date stated on the petition or the worker's employment is terminated more than 5 days before the employment end date stated on the petition. For example, the commenters stated that the majority of late arrivals of H-2A workers to the worksite are caused by slow processing at U.S. government agencies or emergencies beyond the employer's control. In some cases, employers stagger workers' arrival at the consulate and at the worksite to accommodate logistical arrangements, such as transportation. Further, many commenters suggested that, given that work in agriculture is dependent upon weather, it is rare that an employer can accurately predict months in advance of the actual date when the growing season will end, and many agricultural employers use the latest likely ending date on a temporary labor certification. Response: DHS believes that the notification requirements should be retained, but agrees with the commenters' concerns regarding the practical application of the proposal. Therefore, the final rule modifies the notification requirements to address the commenters' concerns. The final rule requires petitioners to provide notification to DHS in the following instances: Where an H-2A worker fails to report to work within five workdays of the employment start date on the H-2A petition or within five workdays of [[Page 76901]] the start date established by the employer, whichever is later; where the agricultural labor or services for which H-2A workers were hired is completed more than 30 days earlier than the end date stated on the H- 2A petition; or where the H-2A worker absconds from the worksite or is terminated prior to the completion of agricultural labor or services for which he or she was hired. New 8 CFR 214.2(h)(5)(vi)(B)(1). DHS believes that the modified notification requirements are more workable for employers and are responsive to the commenters' concerns. Recognizing that there could be various reasons beyond the employer's control causing prospective employees' late arrival at the worksite, the final rule allows the petitioner to use a different employment start date than the start date stated in the H-2A petition to accommodate the employees' late arrival. It also changes the notification timeframes for employment that is terminated earlier than the end date stated on the petition, depending on whether the termination occurs before the work is completed or due to early completion of the work. In addition, the final rule amends 8 CFR 214.2(h)(11)(i)(A) to cross-reference the notification provision. Where an employer establishes a different start date from that on the H-2A petition, the final rule adds the requirement that the employer retain evidence of the changed employment start date for a 1- year period. A retention period of 1 year was chosen to parallel the 1- year retention period for notifications. Such documentation must also be made available for inspection on request by DHS officers. New 8 CFR 214.2(h)(5)(vi)(B)(2). DHS is adding this requirement to ensure that providing a more flexible timeframe for the notification requirement will not result in misrepresentations regarding the employment start date. Comment: Many commenters who objected to the modified notification requirements also stated that a notification within 48 hours would be difficult, if not impossible, because, in many circumstances, it may be impossible for the employer to know with certainty that the H-2A worker absconded from the worksite. Response: DHS disagrees with the commenters concerns that the notification period would be too difficult to meet based on the speed with which an employer will gain knowledge of the worker's abscondment. An absconder is defined as a worker who has not reported to work for 5 workdays without the consent of the employer. The final rule clarifies that the time period is 5 consecutive workdays. New 8 CFR 214.2(h)(5)(vi)(E). The employer's obligation to notify DHS of an abscondment would thus not be triggered by the employer's subjective determination that the worker has indeed absconded, but rather by an objectively measured event: The passage of five consecutive workdays during which the alien has failed to report to work without the consent of the employer. While DHS does not believe that the proposed notification period would be too onerous on employers, DHS recognizes that imposing a 48- hour time period for filing notifications may be difficult for those employers that do not conduct business 7 days of the week, such as those employers that are closed on weekends and holidays. Therefore, the final rule clarifies that the notification period is 2 workdays rather than the proposed 48 hours. New 8 CFR 214.2(h)(5)(vi)(B)(1). Comment: Many comments suggested that the requirement to pay $500 in liquidated damages for failing to meet the notification requirement is excessive and will be a potential disincentive to use the H-2A program because the failure to comply with the notification requirement, an event triggering liquidated damages, could be merely a failure to notify within the required timeframe as opposed to failure to notify at all. Most of these comments suggested that DHS not increase the liquidated damages amount from the amount set forth in the current regulations ($10) or, at most, increase them only by a much smaller amount, to a level not exceeding $50 per instance. Response: In response to public comments, DHS has decided to remove the proposed increase in liquidated damages to $500 and instead will retain the liquidated damages requirement under 8 CFR 214.2(h)(5)(vi)(B)(3). Under the current provision, an employer who fails to comply with the notification requirements, as revised under this final rule, must pay liquidated damages in the amount of $10. Comment: With respect to the process following the failure to meet the notification requirements, some commenters suggested that the 10- day timeframe within which an employer is required to reply to a notice prior to being assessed liquidated damages would impose an unreasonable hardship on small employers who could be in their busy season when such a notice arrives. They recommended that employers be afforded 30 days to respond. Response: The final rule adopts this suggestion and provides that the petitioner will be given written notice and 30 days to reply to such notice if DHS has determined that the petitioner has violated the notification requirements and it has not received the notification. New 8 CFR 214.2(h)(5)(vi)(C). Comment: One comment suggested that the imposition of liquidated damages must include a provision for due process with such ``hefty'' amounts at stake. Response: By including a notice requirement, as stated above, and an opportunity to reply within 30 days, DHS believes that new 8 CFR 214.2(h)(5)(vi)(C) provides sufficient due process. Comment: Several commenters were concerned about the cost that employers will have to incur to send the notification to DHS by certified mail or similar means in order to comply with the notification requirements within 48 hours. Response: In reply to these comments, DHS is not including in the final rule the requirement that the notification be in writing. See new 8 CFR 214.2(h)(5)(vi)(B)(1), (h)(5)(vi)(C), and (h)(11)(i)(A). A notice outlining the manner in which the notification may be made will be published in the Federal Register. DHS will provide a designated e-mail address for employers to send notifications. DHS believes that designating a dedicated e-mail address for employers' notification purpose will reduce the burden on employers. DHS will also provide a designated mailing address for employers without ready access to email. Comment: A question was raised during a stakeholder meeting held during the comment period of the proposed rule as to what an H-2A employer needs to do in order to replace an H-2A worker whose employment is terminated or who has left the country. Response: Upon further consideration, DHS agrees that an accommodation should be made for employers who lose H-2A workers before the work is completed. Under the current provision at 8 CFR 214.2(h)(5)(ix), an employer may file an H-2A petition to replace an H- 2A worker whose employment was terminated early. However, the provision does not address the two additional situations covered by the notification provisions: When workers fail to show up at the worksite or abscond and leave the employer without a sufficient workforce to complete the work. Therefore, the final rule amends 8 CFR 214.2(h)(5)(ix) to allow an employer to file an H-2A petition to replace H-2A workers in the following [[Page 76902]] three instances: (a) Where an H-2A worker's employment was terminated prior to the completion of work and earlier than the date stated in the H-2A petition; (b) where a prospective H-2A worker has failed to report to work within five workdays of the employment start date on the temporary labor certification or within five workdays of the date established by their employer, whichever is later; or (c) where an H-2A worker absconds from the worksite. Under this revised provision, a petitioner would be able to file an H-2A petition using a copy of the previously approved temporary labor certification to replace the absent H-2A worker. Comment: Some commenters suggested that the employer, who did not know of job placement-related fee payments made by prospective workers, should not be penalized and therefore should be able to quickly replace the worker with another H-2A worker. Response: As discussed above, an H-2A petition will be denied or revoked if DHS determines that the employer knew or has reason to know that the H-2A worker paid or agreed to pay a job placement-related fee. If the employer did not know or have reason to know of such payment, the provision will not apply and the petition cannot be denied or revoked on this basis. Therefore, it is not necessary for the final rule to cover this possibility. 6. Violations of H-2A Status Comment: Ten commenters objected to the proposal to revise 8 CFR 214.2(h)(5)(viii)(A) to provide that any violation of a condition of H- 2A status within the 5 years prior to adjudication of a new H-2A petition would result in a denial of H-2A status. DHS did not receive any other comments on this proposal. Response: Based on the objections of the commenters, DHS will modify the proposed rule as discussed below. Comment: Most of the ten commenters suggested that some aliens may have unwittingly violated their previous H-2A status by absconding from their jobs as a result of their employer's illegal or inappropriate conduct, thereby causing them to engage in a protest leading to their termination or being forced to quit. Response: DHS agrees that this situation should not trigger the consequences of 8 CFR 214.2(h)(5)(viii)(A). The final rule clarifies that an alien will be precluded from being granted H-2A status where he or she violated the conditions of H-2A status within the 5 years prior to adjudication of a new H-2A petition by DHS, except where the violation occurred through no fault of his or her own, such as where the alien absconded from the worksite as a result of the employer's illegal or inappropriate conduct. The prospective employer would have the opportunity to explain the circumstances surrounding the alien's previous status violation in its petition, as would the alien in conjunction with his or her application for H-2A status and/or an H-2A visa. Comment: One comment arguing against the revision stated that DHS lacks the authority to impose additional or more restrictive grounds of inadmissibility than those provided in the INA. Response: DHS does not find that this revision is an imposition of an additional ground of inadmissibility. This revision simplifies the current provision to apply to all violations of the H-2A status rather than to the two currently identified in the regulations, namely, remaining beyond the specific period of authorized stay and engaging in unauthorized employment. Further, section 214(a)(1) of the INA (8 U.S.C. 1184(a)(1)) provides authority for this requirement as a condition for H-2A admission. Under that section, the Secretary of Homeland Security is granted the authority to establish the conditions of nonimmigrant admission by regulation. 7. Revocation of Labor Certification Comment: Twenty out of 21 commenters objected to the proposed revision to 8 CFR 214.2(h)(5)(11)(ii) providing for the immediate and automatic revocation of an H-2A petition upon the revocation of the temporary labor certification by DOL. Response: After carefully considering the commenters' objections and discussing with DOL, the final rule adopts the proposal for the following reasons. Comment: Many of these commenters objected to this change because a petition revocation will terminate the employment authorization of the workers and make it impossible for the employer to legally continue in business. They were concerned that DOL would make revocation of a labor certification immediate during the pendency of an employer's appeal of the revocation. Response: In its final H-2A rule, DOL provides for a stay of revocation until the conclusion of any DOL administrative appeal. DHS believes that this DOL provision addresses these commenters' concerns. Therefore, under this final rule, DHS will revoke an H-2A petition as soon as DOL has adjudicated any administrative appeal that may have been filed and informs DHS of their decision to revoke the temporary labor certification. Comment: A few commenters wrote that this proposed change will provide no relief for affected workers who stand to lose their jobs and their ability to earn sufficient wages that they had expected by taking H-2A employment. These commenters suggested that the former employer (whose petition was revoked) should be obligated to pay for subsistence costs for the aliens during the 30-day period. Response: In response to these comments, the final rule provides a 30-day grace period for H-2A workers who are in the United States based on an approved petition that is later revoked because of DOL's revocation of the temporary labor certification. New 8 CFR 214.2(h)(5)(xii). During this 30-day period, such workers will be in an authorized period of stay. They may choose to find new employment and apply for an extension of stay or depart the United States. As discussed above, however, at this time, DHS does not believe that it may require employers to pay wages for workers who remain in the United States nor transportation expenses for those who chose to return to their country of origin. 8. Permitting H-2A Petitions for Nationals of Participating Countries Comment: Five comments addressed the proposed rule to include a new provision at 8 CFR 214.2(h)(5)(i)(F) (and complementary provision at 8 CFR 214.2(h)(5)(viii)(D)) precluding DHS from approving an H-2A petition filed on behalf of one or more aliens from countries determined by the Secretary of Homeland Security to consistently deny or unreasonably delay the prompt return of their citizens, subjects, nationals, or residents who are subject to a final order of removal from the United States. One commenter supported this proposed change. Two commenters sought modification to the provision, while another sought additional time to comment on the provision. A final commenter disagreed that the proposal would improve the H-2A process generally. Response: After reviewing all comments, DHS has modified this proposal in the final rule for the reasons and in the manner as discussed below. Instead of publishing a list of countries that consistently deny or unreasonably delay the prompt return of their citizens, subjects, nationals or residents who are subject to a final removal order, DHS at this time will be publishing in a notice in the Federal [[Page 76903]] Register a list of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible for its nationals to participate in the H-2A temporary worker program. DHS is making this modification to the rule in consideration of public comments received recommending DHS rework the proposal in order to make the process more positive and to encourage countries to improve cooperation in the repatriation of their nationals. In designating countries to allow the participation of their nationals in the H-2A program, DHS, with the concurrence of the Department of State, will take into account factors including, but not limited to, the following: (1) The country's cooperation with respect to the issuance of travel documents for citizens, subjects, nationals, and residents of that country who are subject to a final order of removal; (2) the number of final and unexecuted orders of removal against citizens, subjects, nationals, and residents of that country; (3) the number of orders of removal executed against citizens, subjects, nationals, and residents of that country; and (4) such other factors as may serve the U.S. interest. Designation of countries on the list of eligible countries will be valid for one year from publication. The designation shall be without effect at the end of that one-year period. The Secretary, with the concurrence of the Secretary of State, expects to publish a new list prior to the expiration of the previous designation by publication of a notice in the Federal Register, considering a variety of factors including, but not limited to the four factors for the designation of a participating country described above. Initially, the list will be composed of countries that are important for the operation of the H-2A program and are cooperative in the repatriation of their nationals. The countries included on the list are the countries whose nationals contributed the vast majority of the total beneficiaries of the H-2A and H-2B programs during the last three fiscal years. The Secretary of Homeland Security may allow a national from a country not on the list to be named as a beneficiary on an H-2A petition and to participate in the H-2A program based on a determination that such participation is in the U.S. interest. The Secretary's determination of such a U.S. interest will take into account a variety of factors, including but not limited to consideration of: (1) Evidence from the petitioner demonstrating that a worker with the required skills is not available from among workers from a country currently on the list of eligible countries for participation in the program; (2) evidence that the beneficiary has been admitted to the United States previously in H-2A status and has complied with the terms of that status; (3) the potential for abuse, fraud, or other harm to the integrity of the H-2A visa program through the potential admission of a beneficiary from a country not currently on the list of eligible countries for participation in the program; and (4) such other factors as may serve the U.S. interest. Therefore, DHS is requiring petitioners for beneficiaries who are nationals of countries not designated as participating countries to name each beneficiary. Additionally, petitions for beneficiaries from designated countries and undesignated countries are to be filed separately. These changes will permit DHS to more easily adjudicate H-2A petitions involving nationals of countries not named on the list by permitting DHS to properly evaluate the factors used to make a determination of U.S. interest, discussed above, without slowing the adjudication of petitions for nationals of designated countries. As discussed in the proposed rule, DHS expects that the provisions in this rule intended to increase the flexibility of the H-2A visa program, complemented by the streamlining proposals the Department of Labor is making in its H-2A rule, will increase the appeal of the H-2A program to U.S. agricultural employers. See 73 FR 8230, 8234-5 (Feb. 13, 2008). While a more efficient H-2A program is anticipated to reduce the number of aliens entering the country illegally to seek work, it also could lead to an increase in the number of H-2A workers that abscond from their workplace or overstay their immigration status. Therefore, the success of the program will depend significantly upon countries accepting the return of their nationals. Petitions may only be filed and approved on behalf of beneficiaries who are citizens, subjects, nationals or residents of a country that is included in the list of participating countries published by notice in the Federal Register or, in the case of an individual beneficiary, an alien whose participation in the H-2A program has been determined by the Secretary of Homeland Security to be in the U.S. interest. See new 8 CFR 214.2(h)(5)(i)(F). Likewise, in order to be admitted as an H-2A, aliens must be nationals of countries included on the list of participating countries or, in the case of an individual beneficiary, an alien whose participation in the H-2A program has been determined by the Secretary of Homeland Security to be in the U.S. interest. See new 8 CFR 214.2(h)(5)(viii)(D). To ensure program integrity, such petitioners must state the nationality of all beneficiaries on the petition, even if there are beneficiaries from more than one country. See new 8 CFR 214.2(h)(2)(iii). 9. Period of Admission Comment: Sixteen out of 18 commenters supported the proposal to revise 8 CFR 214.2(h)(5)(viii)(B) by extending the H-2A admission period following the expiration of the H-2A petition from 10 to 30 days. These commenters believed that it would make the H-2A program a more cost efficient program. Response: Based on the support of these commenters, the final rule adopts this proposal. New 8 CFR 214.2(h)(5)(viii)(B). Comment: Several commenters who supported this proposed change also suggested that employers should be obligated to pay for their former employees' subsistence costs during the 30-day period, as the aliens would not be permitted to work during that time. Response: Because H-2A workers are not required to remain in the United States during the additional 30-day period, DHS does not think that employers should be responsible for subsistence costs during that period. In addition, as discussed above, DHS does not think that it may impose such costs at this time. Comment: Two commenters opposed the proposal. One commenter did not provide a reason for the opposition. The other commenter stated that this change would create a period of too much downtime where the worker is not accounted for and does not seem to have any significant benefits. Response: DHS disagrees with these concerns. DHS believes that the benefit of extending the H-2A admission period following the expiration of the H-2A petition to 30 days would be to provide the H-2A worker enough time to prepare for departure or apply for an extension of stay based on a subsequent offer of employment if the worker chooses to do so. Having a 30-day extension would facilitate the new benefit that the final rule provides for a worker to continue to be employment authorized while awaiting for an extension of H-2A status based on a petition filed by a new employer who is a registered user in good standing of USCIS' E-Verify program. 10. Interruptions in Accrual Towards 3-Year Maximum Period of Stay Comment: Nine out of 12 commenters supported the proposed rule reducing [[Page 76904]] the length of time that interrupts an H-2A worker's accrual of time in H-2A status for purposes of calculating when the worker has reached the 3-year maximum period of stay. They supported this change because it would allow a worker to engage in a longer employment period, which would benefit both employers and employees. Response: DHS agrees that this proposal would benefit both employers and H-2A workers. Accordingly, the final rule adopts the proposed revision, reducing the minimum period spent outside the United States that would be considered interruptive of accrual of time towards the 3-year limit, where the accumulated stay is 18 months or less, to 45 days. If the accumulated stay is longer than 18 months, the required interruptive period will be 2 months. See new 8 CFR 214.2(h)(5)(viii)(C). Comment: One comment suggested that the existing exception for the H-1B, H-2B, and H-3 commuters under 8 CFR 214.2(h)(13)(v) be extended to the H-2A classification. Response: The current regulation at 8 CFR 214.2(h)(13)(v) provides that the limitations on admission in H-1B, H-2B, and H-3 status do not apply to H-1B, H-2B, and H-3 individuals (1) who did not reside continually in the United States and whose employment was seasonal, intermittent, or for less than 6 months per year, and (2) who reside abroad and regularly commute to the United States. DHS does not believe that it is appropriate to extend this provision to H-2A commuters; therefore, the final rule does not include the suggested revision to 8 CFR 214.2(h)(13)(v). The H-2A classification is unique in that H-2A employment sites change from season to season. While some employment sites may be within reasonable commuting distance from the border, it cannot be anticipated that all of the alien's worksites will also be, particularly given the variabilities of growing seasons and work hours inherent in the agricultural industry. What may be reasonable commuting distance based on an 8-hour day may not be if the alien worker is required to work longer hours during the height of the growing season. It is reasonable to assume that most aliens do not have ready access to transportation to and from their home country and the particular worksite where they are employed. As such, few H-2A workers will actually be able to commute from their homes abroad to the United States on a regular basis. Further, by statute, employers must guarantee many employee benefits such as housing, meals, tools, workers' compensation insurance, and return transportation. Section 218(c)(4) of the INA requires employers to provide housing to all H-2A workers in accordance with specific regulations. 8 U.S.C. 1188(c)(4). Employer-provided housing must meet the standards set forth under 29 CFR 1910.142 or 20 CFR 654.404-654.417. Since the statute does not contain any provision to release employers from their responsibility to provide housing to their employees, DHS does not think it appropriate to apply the commuter exception to the H-2A classification given the special nature and variabilities of H-2A agricultural work. Comment: One commenter objected to this proposal stating that it would encourage more illegal aliens to come into the country and lead to illegal aliens who are already in the country to stay longer. Response: DHS does not believe that reducing the time spent outside the United States to be interruptive of accrual of time towards the 3- year limit in H-2A status would encourage more illegal aliens to come to the U.S. or stay in the U.S. longer. This provision is meant to cause less disruptive breaks in the H-2A employment, benefiting both H- 2A workers and their employers, and does not apply to those who attempt to enter the U.S. illegally or to those who are already here illegally. Comment: One commenter stated that it would like to employ H-2A workers for 3 consecutive years. Response: The current regulations provide that an alien worker's total period of stay in H-2A nonimmigrant status may last up to 3 years. A temporary need by a single employer for H-2A workers in excess of one year is possible where an H-2A employer satisfies DHS and DOL that such longer-term need is generated by ``extraordinary circumstances.'' See 8 CFR 214.2(h)(5)(iv)(A). DHS believes that the reduction of the time to be spent outside the United States to be considered interruptive of accrual of time towards the 3-year limit in H-2A status provided in this final rule would benefit employers by reducing the amount of time that they are required to be without the services of needed workers. At the same time, this will not violate the temporary and seasonal nature of employment requirements under the H-2A program. 11. Post-H-2A Waiting Period Comment: Twelve out of 15 commenters supported the proposed rule suggesting the reduction of the waiting period from 6 months to 3 months for an H-2A worker who has reached the 3-year ceiling on H-2A nonimmigrant status prior to seeking H-2A nonimmigrant status again (or any other nonimmigrant status based on agricultural activities). These commenters supported this proposal, stating that it will enhance the workability of the H-2A program for employers while not offending the fundamental temporary nature of employment under the H-2A program. Response: DHS agrees with the comments in support of this proposal. Accordingly, the final rule adopts the proposed reduction in waiting time without change. New 8 CFR 214.2(h)(5)(viii)(C). Comment: One commenter argued that this provision may lead to the displacement of U.S. workers and make some desirable year-round agricultural work unavailable to the domestic workforce. The commenter suggested that employers, including farm labor contractors, may string together several short-term job opportunities to offer job stability for a longer term, which would be desirable for many U.S. farm workers. Response: DHS disagrees that a reduction in the waiting period will result in the displacement of U.S. farm workers. In order to protect U.S. workers, the law requires H-2A employers to obtain a temporary labor certification certifying that there are insufficient U.S. workers who are able, willing, qualified, and available to perform agricultural temporary labor or services, and that the H-2A employment will not adversely affect the wages and working conditions of similarly employed U.S. workers. If an employer is able to find U.S. workers by offering job stability for a longer period, it will not be allowed to or have no need to utilize the H-2A program. DHS believes that this streamlining measure will encourage employers who are unable to secure their workforce among U.S. workers to use the H-2A program instead of hiring individuals who have no legal immigration status and are unauthorized to work. Comment: One commenter objected to this proposal, stating that it would encourage more illegal aliens to come into the country and lead illegal aliens who are already in the country to stay longer. Another commenter objected to the proposal but did not provide a reason. Response: DHS adopts this proposal because it believes that a shorter waiting period would better meet the needs of employers in the time-sensitive agricultural industry. The H-2A program is for agricultural employers, who experience labor shortage among U.S. workers, to rely on alien workers to [[Page 76905]] perform agricultural labor or services of a temporary or seasonal nature. DHS does not agree that this provision would increase the presence of illegal aliens in the United States. 12. Extending Status With a New Employer and Participation in E-Verify Comment: Two commenters supported the proposal to provide for employment authorization to H-2A workers awaiting an extension of H-2A status based on a petition filed by a new employer. Twelve out of 15 comments opposed conditioning employment authorization on the new employer's participation in the E-Verify program, but supported the proposal to provide for employment authorization to H-2A workers awaiting an extension of H-2A status based on a petition filed by a new employer. Response: After considering the commenters' objections and concerns, the final rule adopts this proposal at new 8 CFR 274a.12(b)(21), as discussed below. Note that new 8 CFR 274a.12(b)(21) does not include a cross reference to 8 CFR 214.6. This cross reference relates to TN nonimmigrants and was erroneously included in the proposed rule. Comment: Many commenters questioned the reliability of the E-Verify program. Some commenters suggested that E-Verify has high error rates that disproportionately affect foreign-born U.S. workers. Response: DHS believes that these concerns are misplaced and factually inaccurate. The ``Findings of the Web Basic Pilot Evaluation'' reported that currently 99.5 percent of all work- authorized employees queried through E-Verify were verified without receiving a Tentative Non-Confirmation (TNC) or having to take any type of corrective action.\1\ Over the past year, E-Verify has automated its registration process, instituted a system change to reduce the incidence of typographical errors, incorporated a photo screening tool to combat identity fraud, added Monitoring and Compliance staff to maintain system integrity, added new databases that are automatically checked by the system, and established a new process for employees to call DHS' toll-free number to address citizenship mismatches as an alternative to visiting the Social Security Administration (SSA). These changes have been implemented in an effort to establish efficient and effective verification. A series of enhancements that E-Verify has implemented reduces mismatch rates among newly naturalized citizens and newly arriving workers. Under DHS management and in partnership with SSA, the program is continuously improving its processes to decrease mismatch rates and ensure that E-Verify is fast, easy to use, and protects employees' rights. ----------------------------------------- \1\ http://www.uscis.gov/files/article/ WebBasicPilotRprtSept2007.pdf. ----------------------------------------- Comment: Some commenters stated that some employers have little or no occasion to use the E-Verify program and probably little facility with it and argued that the provision is not fair to such employers. Response: E-Verify is a free and voluntary program. This provision is not a requirement for employers to obtain H-2 employees, but rather is a condition for the alien obtaining an extension of status and employment authorization pending adjudication of a new H-2A petition filed by another employer. DHS continues to believe that the provision will provide a valuable incentive for employers to participate in the E-Verify program, thereby reducing opportunities for aliens without employment authorization to work in the agricultural sector. Comment: One comment suggested that, assuming DHS has the authority to provide for portability without statutory authorization, DHS should fully use the H-1B portability provisions as the model to allow portability for the period the petition is pending. Response: DHS has general authority to grant employment authorization. See INA section 274A(h), 8 U.S.C. 1324a(h). In an industry in which an estimated half of the 1.1 million workers in the United States are illegal aliens, DHS has determined that it is appropriate to restrict the benefit of portability during petition pendency to only those employers that have demonstrated good business/ corporate citizenship through enrollment in E-Verify. Comment: One commenter who objected to the proposal suggested that the provision to extend employment authorization would act as an inducement for a worker to breach his work contract and to change employers prior to fulfillment of the contractual obligations, which would be a violation of INA section 218(c)(3)(B), 8 U.S.C. 1188(c)(3)(B). Response: DHS disagrees that this provision would act as such an inducement. While it is true that this provision would enable an alien to work for a new employer prior to approval of the new H-2A petition, the purpose of this provision is to enable agricultural workers to change worksites and employers as soon as they complete one agricultural job. Even if this provision acted as an inducement for some aliens to change employers before completion of the first job (e.g., to get a higher paying job), DHS believes that the overall benefit to the agricultural industry, the alien worker, and the U.S. public in allowing the alien worker to change job locations at the end of each job assignment without having to wait for the successor employer's petition to be approved outweighs the possibility of abuse of this privilege by the alien worker or the new petitioning employer. Comment: This same commenter also suggested that the proposed change to 8 CFR 214.2(h)(2)(i)(D) would create the possibility that an extension for an H-2A employee within the three-year period of stay may not be granted for employment with the same employer. Response: DHS disagrees with the commenter's interpretation of the proposed provision. The cited provision is specifically for change of employers. The provision for extensions of stay is governed by 8 CFR 214.2(h)(15); the rule does not amend this provision. Comment: One commenter stated that this proposal conditioning employment authorization on the new employer's participation in the E- Verify program seems to be a waste of time because the state workforce agency (SWA) is required to verify workers' eligibility under the DOL's rule. Response: The E-Verify program supplements the employer's obligation under section 274A(a) of the INA, 8 U.S.C. 1324a(a), to complete Forms I-9 (Employment Eligibility Verification) at the time of each new hire. The SWA's responsibility is to verify the employment authorization of applicants seeking referral under a job order. SWAs are encouraged, but not required, to enroll in E-Verify. Additionally, under INA Section 274A(a)(5), employers can rely on the SWA's verification of employment authorization only where the documentation complies with all statutory and regulatory requirements, including 8 CFR 274a.6. Incentivizing E-Verify enrollment by agricultural employers will thus reduce opportunities for unauthorized agricultural workers, not just in the situations where employers are not able to rely on a SWA's verification, but in other situations outside the SWA referral process where workers apply for employment. 13. Miscellaneous Changes to H-2A Program a. Extensions of Stay Without New Temporary Labor Certifications Comment: Two comments suggested changes to the proposal that would allow, in emergent circumstances, an [[Page 76906]] application for an extension of stay for an H-2A nonimmigrant worker to not contain an approved temporary labor certification, under certain conditions. Response: The final rule retains the provision as stated in the proposed rule. New 8 CFR 214.2(h)(5)(x). Comment: One comment recommended that this provision continue to be automatically available upon request and that petitioners not be required to make a case for emergent circumstances. Response: The proposed rule revised the provision at 8 CFR 214.2(h)(5)(x) to improve its readability, making no substantive changes to the provision. This provision originally was meant to allow H-2A employers to obtain a necessary workforce in case of emergencies over which employers have no control (e.g., changed weather conditions), for up to two weeks. DHS does not believe that the provision should be extended beyond situations involving emergent circumstances. Many agricultural employers stated in their comments to other proposals that, due to the uncertainty as to when the growing season would end, they normally use the latest likely ending date when they apply for a temporary labor certification. Many employers further indicated that most work is completed before the date on the temporary labor certification. DHS believes that it is reasonable to provide an opportunity for an employer to file an H-2A petition without obtaining a new temporary labor certification only in emergent circumstances. Comment: The other comment asked DHS to have the parameters of emergent circumstances include any instance that the employer could not have reasonably foreseen at the time that the petition was filed. Response: DHS has determined that it will not include additional parameters to the provision. To do so would unnecessarily reduce the flexibility that the provision currently provides. b. Filing Locations Comment: Commenters were supportive of the proposed modifications to the general filing provision at 8 CFR 214.2(h)(2)(i)(A) applicable to H-1B, H-2A, H-2B, and H-3 classifications by removing specific reference to filing locations announced in the Federal Register and providing that the form instructions will contain information regarding appropriate filing locations for these nonimmigrant visa petitions. Response: In the absence of negative comments on these revisions, and to maintain flexibility in the regulations to accommodate changing case management needs, the final rule adopts these modifications without change. New 8 CFR 214.2(h)(2)(i)(A). The final rule also makes conforming amendments to 8 CFR 214.2(h)(2)(i)(B) and 214.2(h)(2)(i)(C), replacing references to filing locations based on where the petitioner is located, will perform services, or receive training, or based on an established agent, with reference to the form instructions. In addition, revised 8 CFR 214.2(h)(2)(i)(B) replaces the reference to ``Service office,'' referring to the Immigration and Naturalization Service, with ``USCIS.'' Comment: DHS received one comment with respect to filing locations specific to logging employers who will need to begin using the H-2A classification once DOL's final rule making changes to the H-2A classification takes effect. Currently, such employers use the H-2B classification. 20 CFR part 655, subpart C. Under the DOL final rule, they instead would need to use the H-2A classification. The comment concerned the current filing location for H-2A petitions at USCIS' California Service Center, as announced in a notice published in the Federal Register on November 9, 2007. See 72 FR 63621. The comment requested that logging employers be allowed to continue to file their petitions at USCIS' Portland, Maine field office, the current filing location for H-2B petitions for loggers, because the Portland office is familiar with the unique characteristics and needs of the industry. Response: At present, DHS has no plan to change its central filing location for H-2A petitions at the California Service Center. This central filing location ensures timely processing and consistent adjudication of H-2A petitions. Once DOL's final rule takes effect and requires logging employers to use the H-2A classification, and beginning on the effective date of this rule, logging employers will be required to file petitions on behalf of their prospective workers in accordance with the H-2A regulations and form instructions for H-2A petitions. As DHS monitors the processing of these petitions, if DHS determines that it is more prudent to change the filing location for logging employers to the Portland, Maine field office or any other DHS office, DHS may change the filing location via the form instructions for the H-2A petition. Note that within 30 days from the effective date of this rule (and the DOL rule), logging employers will be required to file change of status petitions for their workers who are present in the United States in H-2B status to ensure that logging workers will be classified as H-2A workers. 14. DHS Policy Applicable to H-2A Sheepherders Comment: Ten out of 12 commenters objected to the proposal to impose on H-2A sheepherders the same departure requirement applicable to all H-2A workers. Response: After carefully considering the commenters' objections, DHS has determined that it will change its policy regarding H-2A sheepherders as proposed for the reasons discussed below. Comment: Many commenters who objected to this proposal suggested that the existing policy was developed based on the understanding that tending and caring for sheep over extensive expanses of open range for long periods of time is a skilled and exacting occupation that requires considerable training and experience. Response: Although DHS recognizes the special nature of this unique type of agricultural work, it does not change the nonimmigrant nature of the H-2A classification. See INA section 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a). The statute provides that an H-2A worker is a nonimmigrant who has a residence in a foreign country that he has no intention of abandoning and who is coming temporarily to the United States to perform agricultural labor or services. Without a departure from the United States after reaching the 3-year maximum period of stay, an H-2A worker cannot be considered a nonimmigrant, and his or her stay cannot be considered temporary. All other H-2A workers must depart the United States after reaching the 3-year maximum period of stay, regardless of the employer's need or the degree of skill or experience required of those workers; the same rule should apply to H- 2A sheepherders. Comment: A few commenters also argued that the history of the sheep industry shows that its existing practice is in keeping with Congressional intent. Response: DHS is aware that foreign workers skilled in sheepherding were admitted during the early 1950s for permanent employment under special laws enacted by Congress. However, Congress permitted the special laws to expire after the issuance of ``Spanish Sheepherders, Report of Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives,'' a report by the House Judiciary Committee on February 14, 1957, which undertook an investigation during 1955 and 1956 to examine allegations that a number of [[Page 76907]] foreign sheepherders admitted under the special laws were leaving sheepherding shortly after arrival in the U.S. and were employed in other industries.\2\ The report by the House Judiciary Committee substantiated many of these allegations. In the report, the Committee recommended ``that the practice of admitting alien sheepherders under special legislation should be discontinued and that the problem of supplying legitimate needs of the American sheep-raising and wool- growing industry, should be met administratively under existing general law, specifically under section 101(a)(15)(H)(ii), of the Immigration and Nationality Act.'' The report also states the following: ----------------------------------------- \2\ http://www.foreignlaborcert.doleta.gov/fm/fm_24-01.htm. [I]t is further believed that the employment in the sheep- raising and woolgrowing industry is not different in nature from the employment of foreign skilled workers in other branches of agriculture and industry. It is not believed that the sheepherders should benefit from a special preferential and privileged treatment and that they should be admitted as immigrants entering this country for permanent residence. Inquiries and studies have conclusively shown that the legitimate interest of American employers will be better served if workers for the sheep-raising and woolgrowing industry were admitted temporarily for appropriate periods of time, and that at the conclusion of such periods they were required to return to their country of origin and to their families, while other workers--from domestic labor sources, if available--or other foreign workers similarly skilled be given opportunity to accept temporary ----------------------------------------- employment. It was the Committee's opinion that no additional special legislation should be enacted to admit foreign sheepherders and the importation of foreign sheepherders should be governed by the H-2 temporary worker provision. DHS acknowledges that the aforementioned legislative history predates the policy established by the Immigration and Naturalization Service (INS) and now DHS to refrain from applying the three-year maximum period of stay to H-2A aliens who work as sheepherders. However, DHS has concluded that this policy is inconsistent with the temporary nature required by the statutory provisions governing H-2A program. Comment: One commenter asked why such special procedures are available only for sheepherders. Another commenter suggested that DHS should adapt the special procedures for sheepherders to all occupations engaged in the range production of other livestock such as cattle and horses. Response: It is believed that the policy regarding sheepherders was grandfathered from a series of bills enacted by Congress in the early 1950s to provide relief for the sheep-raising industry by making available special nonquota immigrant visas to skilled alien sheepherders. DHS disagrees that the special procedures should be extended to all occupations engaged in the range production of other livestock. DHS has determined that all H-2A occupations should be subject to the same statutory standard and that the special procedures should be curtailed rather than extended to other H-2A occupations. With the effective date of this final rule, DHS will begin to enforce on H-2A sheepherders the same departure requirement applicable to all other H-2A workers. However, DHS will not revoke any currently valid H- 2A petitions that have been approved for sheepherders. Comment: One commenter recommended that the time period required outside the country between periods of stay be reduced to two weeks for sheepherders. Response: For the reasons stated above, DHS believes that the same statutory and regulatory standards for all other H-2A occupations should be applied to sheepherders. 15. Temporary Worker Visa Exit Program On August 10, 2007, the Administration announced that it would establish a new land-border exit system for guest workers, starting on a pilot basis. The proposed rule included an exit system pilot program applicable to H-2A nonimmigrants. Under the proposed program, an alien admitted on an H-2A visa at a port of entry participating in the program must also depart through a port of entry participating in the program and present designated biographic and/or biometric information upon departure. Details of the program, such as designated ports of entry, would be announced in a notice published in the Federal Register. Comments: A few comments generally supported the proposal or encouraged more strict measures to ensure foreign workers' departure within their authorized periods of stay. However, many commenters criticized this proposal for singling out the H-2A population and unfairly seeking to punish them by imposing an undue burden on them. They suggested that workers should be permitted to use all ports to enter the United States and should not be required to depart through the same ports of entry through which they entered because the original port of entry through which they entered may not be the most convenient if workers transfer to another employer. Some commenters pointed out that it would be difficult to effectively educate H-2A workers about the required method for exit, which will likely cause them to violate the requirement inadvertently. Many commenters expressed concerns about the unknown factors of the program such as the number and location of ports through which a worker can enter and return, timeliness of the process, and overall convenience or inconvenience for a worker. Others suggested that DHS should provide sufficient time and opportunities to answer stakeholders' concerns or questions. Response: DHS has determined that it will adopt, with due consideration of commenters' concerns, the Temporary Worker Visa Exit Program Pilot for H-2A workers in this final rule. See new 8 CFR 215.9. DHS will inform H-2A workers of their obligations through an educational effort among the workers, foreign governments, agricultural industry, association leaders, and U.S. employers. Before implementation of the program, DHS will implement a comprehensive communications program that engages stakeholders and reaches travelers. This communications program may include giving walk-away materials to H-2A workers when they enter the country and utilizing outreach methods such as creating customer-focused products and proactive/reactive media relations program. Under the H-2A land exit pilot program, DHS will explore ways that participating workers can register their final departure from the United States at select ports of entry. Only those workers who enter through these designated ports will be required to register their final departure for purposes of this pilot. III. Rulemaking Requirements A. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign- based companies in domestic and export markets. [[Page 76908]] B. Executive Order 12866 This rule has been designated as significant under Executive Order 12866. Thus, under section 6(a)(3)(C) of the Executive Order, DHS is required to prepare an assessment of the benefits and costs anticipated to occur as a result of this regulatory action and provide the assessment to the Executive Office of the President, Office of Management and Budget, Office of Information and Regulatory Affairs. 1. Public Comments on the Estimated Costs and Benefits of the Proposed Rule DHS invited the public to comment on the extent of any potential economic impact of this rule on small entities, the scope of these costs, or more accurate means for defining these costs. As a result, DHS received one comment directly related to the regulatory cost benefit analysis performed for the proposed rule which indicated that woolgrowers would have to hire double the number of employees as they currently do and that expenses would increase by at least 25 to 50 percent for each sheepherder employer. The comment provided no supporting data or calculations to explain exactly how this result would occur, and USCIS was unable to determine how the outcome of a requirement for an employee to go home for 3 months every 3 years would result in a doubling of the number of annual employees. Therefore, no changes were made as a result of the comment. 2. Summary of Final Rule Impacts In summary, this rule makes several changes to the H-2A visa program that DHS believes are necessary to encourage and facilitate the lawful employment of foreign temporary and seasonal agricultural workers. A complete analysis has been performed in accordance with the Executive Order and is available for review in the rulemaking docket for this rule at http://www.regulations.gov. The results of the cost benefit analysis are summarized as follows: i. Government Costs The exit pilot program provided for in this rule will cost the Federal Government at least $2 million in labor costs per year to implement. ii. Transferred Costs A total cost of between $16.5 million and $55 million will be imposed on all H-2A petitioning firms for all H-2A workers each year as a result of this rule banning placement fee payments by employees. Those costs may range from an average of around $1,700 to almost $6,000 per employer, based on the average number of H-2A workers requested per employer petition. The total annual costs of the time for H-2A employees to comply with the exit requirements of this rule are estimated to be around $184,332, based on the opportunity cost of the time lost to the employer while registering. The annual information collection costs imposed by the employer notification requirements in this rule are estimated to be $13,713. The volume of applications is expected to increase from an average of 6,300 per year to around 9,900 per year. The burden of compliance both in time and fees per application will not increase above that currently imposed as a result of this rule. iii. Benefits This rule will benefit applicants by: Reducing delays caused by Interagency Border Inspection System (IBIS) checks holding up the petition application process. Reducing disruption of the life and affairs of H-2A workers in the United States. Protecting laborers' rights by precluding payment of some fees by the alien. Prevent the filing of requests for more workers than needed, visa selling, coercion of alien workers and their family members, or other practices that exploit workers and stigmatize the H- 2A program. Encouraging employers who currently hire seasonal agricultural workers who are not properly authorized to work in the United States to replace those workers with legal workers. Minimizing immigration fraud and human trafficking. C. Executive Order 13132 This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. D. Executive Order 12988 With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, ``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DHS has completed the required review and determined that, to the extent permitted by law, this final rule meets the relevant standards of Executive Order 12988. E. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), requires Federal agencies to conduct a regulatory flexibility analysis which describes the impact of a rule on small entities whenever an agency is publishing a notice of proposed rulemaking. In accordance with the RFA, DHS certifies that this rule will not have a significant economic impact on a substantial number of small entities. 1. Number of Regulated Entities The H-2A program is used mainly by farms engaged in the production of livestock, livestock products, field crops, row crops, tree crops, and various other enterprises. The affected industries do not include support activities for agriculture. Therefore, in accordance with the RFA, USCIS has identified the industry affected by this rule as described in the North American Industry Classification System (NAICS) as encompassing NAICS subsectors 111, [[Page 76909]] Crop Production, and 112, Animal Production.\3\ ----------------------------------------- \3\ U.S. Small Business Administration, Table of Small Business Size Standards, http://www.sba.gov/idc/groups/public/documents/sba_ homepage/serv_sstd_tablepdf.pdf. ----------------------------------------- In fiscal year 2007, USCIS received 6,212 Form I-129 petitions for H-2A employees, approved petitions for 78,089 H-2A workers, and 71,000 new workers were hired. In fiscal year 2006, USCIS received 5,667 Form I-129 petitions and approved 5,448 of them for 56,183 workers. Also, in fiscal year 2006, 6,717 employers requested certification from the Department of Labor (DOL) for 64,146 H-2A workers, and for those workers, the Department of State (DOS) issued 37,149 H-2A visas. In fiscal year 2005, USCIS approved Form I-129 petitions for 49,229 workers, 6,725 employers requested certification from DOL for 50,721 employees, and 31,892 visas were issued by DOS. Thus, in recent years, USCIS has received approximately 6,300 petitions per year for an average of 70,000 total H-2A workers per year. This rule is projected to result in an approximately 40,000 additional H-2A workers and 3,600 new Form I-129 petitions per year, for a total of 9,900 petitions for a total of 110,000 workers. In 2006, there were 2,089,790 farms in the United States and about 752,000 workers employed in agricultural jobs. Thus, approximately 0.47 percent of all farmers are expected to use the H-2A program and 14.6 percent of all farm workers will be aliens employed under the H-2A program. 2. Size Categories of Affected Entities The U.S. Small Business Administration (SBA) Small Business Size Regulations at 13 CFR part 121 provide that farms with average annual receipts of less than $750,000 qualify as a small business for Federal Government programs. According to the United States Department of Agriculture National Agricultural Statistics Service (NASS), 44,348, or 2.1 percent, of the 2,128,982 farms in 2002 in the U.S. had gross cash receipts of more than $500,000 and 97.9 percent of farms have sales of less than $500,000.\4\ Based on these numbers, USCIS concludes that the majority of entities affected by this rule are categorized as small entities according to the SBA size standards. ----------------------------------------- \4\ Economic Class of Farms by Market Value of Agricultural Products Sold and Government Payments: 2002 http:// www.nass.usda.gov/census/census02/volume1/us/st99_1_003_003.pdf. ----------------------------------------- The average of 11 foreign workers per year would require an expenditure of about $141,000 in annual labor expenses just for the farm's foreign workers, not including benefits. In the 2002 Census of Agriculture, 50,311 farms, or only 2.4 percent of all ``farms'' reported having any hired employees at all, and only 31,210 farms, or 1.5 percent of all farms, reported hired labor expenses in excess of $100,000 per year. Also, the 9,900 annual petitions that DHS projects it will receive after this rule takes effect represent only one-half of one percent of the 2,128,982 farms in 2002, and the 110,000 annual H-2A nonimmigrant workers account for only 14.6 percent of the 824,030 total hired farm workers reported in the 2002 Agricultural Census. Further, the 2002 Census reported that 53.3 percent of all farms reported a net loss, and only 329,490 farms reported annual net income of more than $25,000.\5\ Taken together, these data indicate that for the farms that use the H-2A program to be viable, they are likely to be on the upper bounds of the small business size standard of $750,000 in gross cash receipts. ----------------------------------------- \5\ Economic Class of Farms by Market Value of Agricultural Products Sold and Government Payments: 2002 http:// www.nass.usda.gov/census/census02/volume1/us/st99_1_003_003.pdf. ----------------------------------------- 3. Other Firms That May Be Affected by This Change A number of firms with headquarters or a significant presence in the United States recruit employees in the employees' home countries to come to the United States for temporary employment. Also, many farms hire an agent in the U.S. to help them locate workers and complete applications and petitions. Some agents collect an initial retainer from an employer and then charge additional fees based on the number of workers, the application fees, the advertising costs required, and other expenses. The total charges an employer pays the agent per H-2A employee ranges from around $500 to $4,000, including travel expenses and all application and petition fees. The actual cost depends on the home country, the skills needed for the position, and the general complexity of the worker's and employer's respective situations. This rule will not affect the ability of the recruiter or agent to collect a fee from the employer. This rule does not affect the fee agents may charge per employee to process the employer's DOL, DOS, and DHS certification, application, and petition. This rule would only affect recruiting firms to the extent that it would render the employee ineligible for H-2A employment by collecting a fee, as soon as the potential employer becomes aware that the recruiter or agent has charged the employee a fee. 4. Significance of Impact DHS has determined that this rule will require affected employers to pay between $150 and $500 per employee because recruiter fees that are now being paid by employees will be shifted by recruiters from employees to employers. This rule will also add $13,713 in information collection costs for absconder reporting for an average cost per employee of $0.13. Based on an average of 11 employees hired by each H- 2A petitioner, average costs added by this rule will be between $1,651 and $5,501 per affected entity. For the purpose of determining the significance of the impacts of this rule, this analysis uses the costs at the high end of the range of possible impacts, or $5,501 per employer, in order that any errors in determining the impacts on small entities be on the side of an over-estimation. Again, most of the affected entities are classified as small. Guidelines suggested by the SBA Office of Advocacy provide that, to illustrate the impact could be significant, the cost of the proposed regulation may exceed 1 percent of the gross revenues of the entities in a particular sector or 5 percent of the labor costs of the entities in the sector. The average duration of H-2A employment based on the difference between employment start and end dates for workers granted H-2A status in fiscal years 2007 and 2008 was 236 days. Thus, a new H-2A employee in 2008 worked an average of 33.7 weeks. Assuming that the typical employee worked an 8 hour workday and took two days per week off from work, the employee would have worked 169 days and accrued 1,352 hours. Using the U.S. Department of Labor hourly wage rate for the H-2A worker of $9.49, plus a multiplier of 1.4 to account for fringe benefits, DHS calculated the average hourly wage at approximately $13.29.\6\ Multiplying the hourly compensation costs by the hours worked provides an average compensation cost for an H-2A employee for the period he or she is in the United States of about $17,968. If the employer is required to pay a recruiter or reimburse the employee $500 for a recruiting fee, and if that employee absconds requiring the employer to file a report, the added cost of $501 is only 2.78 percent of the $17,968 annual salary for only one H-2A worker. Since the cost increase per H-2A employee is less than 5 percent of [[Page 76910]] the costs associated with hiring only an H-2A worker, it would not be possible for the average cost increase imposed by this rule to exceed 5 percent of the average labor costs of the sector, because, among other reasons, H-2A workers are not expected to make up the entire workforce of all petitioners. ----------------------------------------- \6\ Available at: http://www.dol.gov/compliance/topics/wages- foreign-workers.htm. ----------------------------------------- Also, as stated above, guidelines provided by the SBA Office of Advocacy suggest that an added cost of more than one percent of the gross revenues of the affected entities in a particular sector may be a significant impact. USCIS believes that it is unlikely that an employer will incur costs of $5,501 due to this rulemaking, as it is the high end of the range of possible costs. Again, if each firm affected by this rule hires the average of 11 workers and all 11 are recruited by a firm that charges or causes the employer to reimburse all 11 employees $500, the additional cost of this rule could reach as high as $5,500 per employer. The actual revenue of the typical H-2A employer is unknown. However, according to the SBA table of size standards in the Small Business Size Regulations (13 CFR part 121), the annual gross revenue threshold for farms is $750,000. USCIS believes that the farms that use the H-2A program are likely to be on the upper bounds of the small business size standard of $750,000 in gross cash receipts. If an employer hires 11 employees and incurs recruiting costs of $500 for every one of them, the $5,500 added cost represents only 0.73 percent of $750,000. To further illustrate, for $5,500 to exceed one percent of annual revenues, sales would have to be $550,000 per year or less. While 97.9 percent of all farms have annual sales of less than $500,000, only 36 percent of all farms hire any employees. USCIS believes that farms below annual sales of $500,000 would be very unlikely to hire 11 temporary seasonal employees and incur the $5,500 in added costs. Therefore, USCIS believes that the costs of this rulemaking to small entities will not exceed one percent of annual revenues. Therefore, using both average annual labor costs and the percentage of the affected entities' annual revenue stream as guidelines, USCIS concludes that this rule will not have a significant economic impact on a substantial number of small entities. 5. Impact on U.S.-Based Recruiting Firms As outlined above, recruiting firms' activities may be affected tangentially by this rule's provisions. Nonetheless, the effect of the fee prohibition on recruiting companies, staffing firms, or employment agents is not a new compliance requirement on regulated entities. Establishment of a non-immigrant temporary worker program was intended to alleviate seasonal labor shortages. The formation of firms that recruit workers in foreign countries is an unintended consequence of these programs since those firms are not the intended recipients of the benefits that are supposed to inure to participants in those programs. In any event, DHS does not believe the prohibition on charging aliens for H-2A job referrals will cause a significant economic impact on the affected placement, recruiting, or staffing firms because they may, and are expected to, transfer those costs to the employers, as analyzed above. 6. Certification For these reasons, DHS certifies that this rule will not have a significant economic impact on a substantial number of small entities. F. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. G. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163 (1995) (PRA), all Departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any reporting or record-keeping requirements inherent in a rule. It is estimated that this rule will require employers to file 3,600 more petitions using Form I-129 (OMB Control No. 1615-0009) for H-2A workers. In addition, this rule will require revisions to the Form I- 129 (H Classification Supplement to the Form I-129). This is a final rule and the revision to this information collection was not previously submitted and approved by OMB. USCIS is now requesting comments under the emergency review and clearance procedures of the PRA on this revision no later than February 17, 2009. When submitting comments on the information collection, your comments should address one or more of the following four points: 1. Evaluate whether the collection of information is necessary for the proper performance of the agency, including whether the information will have practical utility; 2. Evaluate the accuracy of the agency's estimate of the burden of the collection 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 collection of the information on those who are to respond, including through the use of any and all appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. Overview of Information Collection for Form I-129. a. Type of information collection: Revision of currently approved collection. b. Title of Form/Collection: Petition for Nonimmigrant Worker. c. Agency form number, if any, and the applicable component of the Department of Homeland Security sponsoring the collection: Form I-129 (H Classification Supplement to the Form I-129), and U.S. Citizenship and Immigration Services. d. Affected public who will be asked or required to respond, as well as a brief abstract: Individuals or Households. This form is used by an employer to petition for aliens to come to the U.S. temporarily to perform services, labor, and training or to request extensions of stay or changes in nonimmigrant status for nonimmigrant workers. e. An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: 368,548 respondents at 2.75 hours per response. f. An estimate of the total of public burden (in hours) associated with the collection: Approximately 1,013,507 burden hours. All comments and suggestions or questions regarding additional information should be directed to the Department of Homeland Security, U.S. Citizenship and Immigration Services, Regulatory Management Division, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529, Attention: Chief, 202-272-8377. In addition, this rule will allow employers of H-2A employees to employ H-2A workers for up to 120 days while they are awaiting an extension of status based on a new employer if the employer registers for E-Verify. It is estimated that 9,801 more firms will have to enroll in E-Verify so they may hire an employee under the [[Page 76911]] 120-day extended authorization. Accordingly, USCIS will submit an OMB correction worksheet (OMB 83-C) to OMB increasing the number of respondents, burden hours and annual costs. 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, Victims. 8 CFR Part 215 Administrative practice and procedure, Aliens. 8 CFR Part 274a Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements. Accordingly, 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 is revised to read as follows: Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185, 1186a, 1187, 1221, 1253, 1281, 1282, 1301-1305 and 1372; section 643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 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; 8 CFR part 2. 2. Section 214.2 is amended by: a. Revising paragraphs (h)(2)(i)(A) through (D); b. Revising paragraph (h)(2)(iii); c. Revising paragraphs (h)(5)(i)(A) through (C); d. Adding a new paragraph (h)(5)(i)(F); e. Removing last sentence from (h)(5)(ii); f. Revising paragraph (h)(5)(v)(B); g. Revising paragraph (h)(5)(v)(C); h. Revising paragraph (h)(5)(vi); i. Revising paragraphs (h)(5)(viii)(A) through (C); j. Revising paragraph (h)(5)(ix); k. Revising paragraph (h)(5)(x); l. Adding new paragraphs (h)(5)(xi) and (xii); m. Adding a new sentence to the end of paragraph (h)(11)(i)(A); and by n. Revising paragraph (h)(11)(ii). The revisions and additions read as follows: Sec. 214.2 Special requirements for admission, extension, and maintenance of status. * * * * * (h) * * * (2) * * * (i) * * * (A) General. A United States employer seeking to classify an alien as an H-1B, H-2A, H-2B, or H-3 temporary employee must file a petition on Form I-129, Petition for Nonimmigrant Worker, as provided in the form instructions. (B) Service or training in more than one location. A petition that requires services to be performed or training to be received in more than one location must include an itinerary with the dates and locations of the services or training and must be filed with USCIS as provided in the form instructions. The address that the petitioner specifies as its location on the Form I-129 shall be where the petitioner is located for purposes of this paragraph. (C) Services or training for more than one employer. If the beneficiary will perform nonagricultural services for, or receive training from, more than one employer, each employer must file a separate petition with USCIS as provided in the form instructions. (D) Change of employers. If the alien is in the United States and seeks to change employers, the prospective new employer must file a petition on Form I-129 requesting classification and an extension of the alien's stay in the United States. If the new petition is approved, the extension of stay may be granted for the validity of the approved petition. The validity of the petition and the alien's extension of stay must conform to the limits on the alien's temporary stay that are prescribed in paragraph (h)(13) of this section. Except as provided by 8 CFR 274a.12(b)(21) or section 214(n) of the Act, 8 U.S.C. 1184(n), the alien is not authorized to begin the employment with the new petitioner until the petition is approved. An H-1C nonimmigrant alien may not change employers. * * * * * (iii) Naming beneficiaries. H-1B, H-1C, and H-3 petitions must include the name of each beneficiary. All H-2A and H-2B petitions must include the name of each beneficiary who is currently in the United States, but not the name of those beneficiaries who are not currently in the United States. However, a petitioner filing an H-2B petition on behalf of workers who are not present in the United States that is supported by a temporary labor certification requiring education, training, experience, or special requirements of the beneficiary, must name all the requested workers in the petition. Unnamed beneficiaries must be shown on the petition by total number. If all of the beneficiaries covered by an H-2A or H-2B temporary labor certification have not been identified at the time a petition is filed, multiple petitions for subsequent beneficiaries may be filed at different times but must include a copy of the same temporary labor certification. Each petition must reference all previously filed petitions for that temporary labor certification. All H-2A petitions on behalf of workers who are not from a country that has been designated as a participating country in accordance with paragraph (h)(5)(i)(F)(1) of this section must individually name all the workers in the petition who fall within this category. All H-2A petitions must state the nationality of all beneficiaries, whether or not named, even if there are beneficiaries from more than one country. H-2A petitions for workers from designated participating countries and non-designated countries should be filed separately. * * * * * (5) * * * (i) * * * (A) General. An H-2A petition must be filed on Form I-129 with a single valid temporary agricultural labor certification. The petition may be filed by either the employer listed on the temporary labor certification, the employer's agent, or the association of United States agricultural producers named as a joint employer on the temporary labor certification. (B) Multiple beneficiaries. The total number of beneficiaries of a petition or series of petitions based on the same temporary labor certification may not exceed the number of workers indicated on that document. A single petition can include more than one beneficiary if the total number does not exceed the number of positions indicated on the relating temporary labor certification. (C) [Reserved] * * * * * (F) Eligible Countries. (1)(i) H-2A petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated as participating countries, with the concurrence of the Secretary of State, in a notice published in the Federal Register, taking into account factors, including but not limited to: (A) The country's cooperation with respect to issuance of travel documents for citizens, subjects, nationals and residents of that country who are subject to a final order of removal; (B) The number of final and unexecuted orders of removal against [[Page 76912]] citizens, subjects, nationals and residents of that country; (C) The number of orders of removal executed against citizens, subjects, nationals and residents of that country; and (D) Such other factors as may serve the U.S. interest. (ii) A national from a country not on the list described in paragraph (h)(5)(i)(F)(1)(i) of this section may be a beneficiary of an approved H-2A petition upon the request of a petitioner or potential H- 2A petitioner, if the Secretary of Homeland Security, in his sole and unreviewable discretion, determines that it is in the U.S. interest for that alien to be a beneficiary of such petition. Determination of such a U.S. interest will take into account factors, including but not limited to: (A) Evidence from the petitioner demonstrating that a worker with the required skills is not available either from among U.S. workers or from among foreign workers from a country currently on the list described in paragraph (h)(5)(i)(F)(1)(i) of this section; (B) Evidence that the beneficiary has been admitted to the United States previously in H-2A status; (C) The potential for abuse, fraud, or other harm to the integrity of the H-2A visa program through the potential admission of a beneficiary from a country not currently on the list; and (D) Such other factors as may serve the U.S. interest. (2) Once published, any designation of participating countries pursuant to paragraph (h)(5)(i)(F)(1)(i) of this section shall be effective for one year after the date of publication in the Federal Register and shall be without effect at the end of that one-year period. * * * * * (v) * * * (B) Evidence of employment/job training. For petitions with named beneficiaries, a petition must be filed with evidence that the beneficiary met the certification's minimum employment and job training requirements, if any are prescribed, as of the date of the filing of the labor certification application. For petitions with unnamed beneficiaries, such evidence must be submitted at the time of a visa application or, if a visa is not required, at the time the applicant seeks admission to the United States. Evidence must be in the form of the past employer or employers' detailed statement(s) or actual employment documents, such as company payroll or tax records. Alternately, a petitioner must show that such evidence cannot be obtained, and submit affidavits from persons who worked with the beneficiary that demonstrate the claimed employment or job training. (C) Evidence of education and other training. For petitions with named beneficiaries, a petition must be filed with evidence that the beneficiary met all of the certification's post-secondary education and other formal training requirements, if any are prescribed in the labor certification application as of date of the filing of the labor certification application. For petitions with unnamed beneficiaries, such evidence must be submitted at the time of a visa application or, if a visa is not required, at the time the applicant seeks admission to the United States. Evidence must be in the form of documents, issued by the relevant institution(s) or organization(s), that show periods of attendance, majors and degrees or certificates accorded. (vi) Petitioner consent and notification requirements--(A) Consent. In filing an H-2A petition, a petitioner and each employer consents to allow access to the site by DHS officers where the labor is being performed for the purpose of determining compliance with H-2A requirements. (B) Agreements. The petitioner agrees to the following requirements: (1) To notify DHS, within 2 workdays, and beginning on a date and in a manner specified in a notice published in the Federal Register if: (i) An H-2A worker fails to report to work within 5 workdays of the employment start date on the H-2A petition or within 5 workdays of the start date established by his or her employer, whichever is later; (ii) The agricultural labor or services for which H-2A workers were hired is completed more than 30 days earlier than the employment end date stated on the H-2A petition; or (iii) The H-2A worker absconds from the worksite or is terminated prior to the completion of agricultural labor or services for which he or she was hired. (2) To retain evidence of such notification and make it available for inspection by DHS officers for a 1-year period beginning on the date of the notification. To retain evidence of a different employment start date if it is changed from that on the petition by the employer and make it available for inspection by DHS officers for the 1-year period beginning on the newly-established employment start date. (3) To pay $10 in liquidated damages for each instance where the employer cannot demonstrate that it has complied with the notification requirements, unless, in the case of an untimely notification, the employer demonstrates with such notification that good cause existed for the untimely notification, and DHS, in its discretion, waives the liquidated damages amount. (C) Process. If DHS has determined that the petitioner has violated the notification requirements in paragraph (h)(5)(vi)(B)(1) of this section and has not received the required notification, the petitioner will be given written notice and 30 days to reply before being given written notice of the assessment of liquidated damages. (D) Failure to pay liquidated damages. If liquidated damages are not paid within 10 days of assessment, an H-2A petition may not be processed for that petitioner or any joint employer shown on the petition until such damages are paid. (E) Abscondment. An H-2A worker has absconded if he or she has not reported for work for a period of 5 consecutive workdays without the consent of the employer. * * * * * (viii) * * * (A) Effect of violations of status. An alien may not be accorded H- 2A status who, at any time during the past 5 years, USCIS finds to have violated, other than through no fault of his or her own (e.g., due to an employer's illegal or inappropriate conduct), any of the terms or conditions of admission into the United States as an H-2A nonimmigrant, including remaining beyond the specific period of authorized stay or engaging in unauthorized employment. (B) Period of admission. An alien admissible as an H-2A nonimmigrant shall be admitted for the period of the approved petition. Such alien will be admitted for an additional period of up to one week before the beginning of the approved period for the purpose of travel to the worksite, and a 30-day period following the expiration of the H- 2A petition for the purpose of departure or to seek an extension based on a subsequent offer of employment. Unless authorized under 8 CFR 274a.12 or section 214(n) of the Act, the beneficiary may not work except during the validity period of the petition. (C) Limits on an individual's stay. Except as provided in paragraph (h)(5)(viii)(B) of this section, an alien's stay as an H-2A nonimmigrant is limited by the term of an approved petition. An alien may remain longer to engage in other qualifying temporary agricultural employment by obtaining an extension of stay. However, an individual who has held H-2A status for a total of 3 years may not again be [[Page 76913]] granted H-2A status until such time as he or she remains outside the United States for an uninterrupted period of 3 months. An absence from the United States can interrupt the accrual of time spent as an H-2A nonimmigrant against the 3-year limit. If the accumulated stay is 18 months or less, an absence is interruptive if it lasts for at least 45 days. If the accumulated stay is greater than 18 months, an absence is interruptive if it lasts for at least 2 months. Eligibility under paragraph (h)(5)(viii)(C) of this section will be determined in admission, change of status or extension proceedings. An alien found eligible for a shorter period of H-2A status than that indicated by the petition due to the application of this paragraph (h)(5)(viii)(C) of this section shall only be admitted for that abbreviated period. (ix) Substitution of beneficiaries after admission. An H-2A petition may be filed to replace H-2A workers whose employment was terminated earlier than the end date stated on the H-2A petition and before the completion of work; who fail to report to work within five days of the employment start date on the H-2A petition or within five days of the start date established by his or her employer, whichever is later; or who abscond from the worksite. The petition must be filed with a copy of the certification document, a copy of the approval notice covering the workers for which replacements are sought, and other evidence required by paragraph (h)(5)(i)(D) of this section. It must also be filed with a statement giving each terminated or absconded worker's name, date and country of birth, termination date, and the reason for termination, and the date that USCIS was notified that the alien was terminated or absconded, if applicable. A petition for a replacement will not be approved where the requirements of paragraph (h)(5)(vi) of this section have not been met. A petition for replacements does not constitute the notification required by paragraph (h)(5)(vi)(B)(1) of this section. (x) Extensions in emergent circumstances. In emergent circumstances, as determined by USCIS, a single H-2A petition may be extended for a period not to exceed 2 weeks without an additional approved labor certification if filed on behalf of one or more beneficiaries who will continue to be employed by the same employer that previously obtained an approved petition on the beneficiary's behalf, so long as the employee continues to perform the same duties and will be employed for no longer than 2 weeks after the expiration of previously-approved H-2A petition. The previously approved H-2A petition must have been based on an approved temporary labor certification, which shall be considered to be extended upon the approval of the extension of H-2A status. (xi) Treatment of petitions and alien beneficiaries upon a determination that fees were collected from alien beneficiaries. (A) Denial or revocation of petition. As a condition to approval of an H-2A petition, no job placement fee or other compensation (either direct or indirect) may be collected at any time, including before or after the filing or approval of the petition, from a beneficiary of an H-2A petition by a petitioner, agent, facilitator, recruiter, or similar employment service as a condition of H-2A employment (other than the lesser of the fair market value or actual costs of transportation and any government-mandated passport, visa, or inspection fees, to the extent that the payment of such costs and fees by the beneficiary is not prohibited by statute or Department of Labor regulations, unless the employer agent, facilitator, recruiter, or employment service has agreed with the alien to pay such costs and fees). (1) If USCIS determines that the petitioner has collected, or entered into an agreement to collect, such prohibited fee or compensation, the H-2A petition will be denied or revoked on notice unless the petitioner demonstrates that, prior to the filing of the petition, the petitioner has reimbursed the alien in full for such fees or compensation, or, where such fee or compensation has not yet been paid by the alien worker, that the agreement has been terminated. (2) If USCIS determines that the petitioner knew or should have known at the time of filing the petition that the beneficiary has paid or agreed to pay any facilitator, recruiter, or similar employment service such fees or compensation as a condition of obtaining the H-2A employment, the H-2A petition will be denied or revoked on notice unless the petitioner demonstrates that, prior to the filing of the petition, the petitioner or the facilitator, recruiter, or similar employment service has reimbursed the alien in full for such fees or compensation or, where such fee or compensation has not yet been paid by the alien worker, that the agreement has been terminated. (3) If USCIS determines that the beneficiary paid the petitioner such fees or compensation as a condition of obtaining the H-2A employment after the filing of the H-2A petition, the petition will be denied or revoked on notice. (4) If USCIS determines that the beneficiary paid or agreed to pay the agent, facilitator, recruiter, or similar employment service such fees or compensation as a condition of obtaining the H-2A employment after the filing of the H-2A petition and with the knowledge of the petitioner, the petition will be denied or revoked unless the petitioner demonstrates that the petitioner or facilitator, recruiter, or similar employment service has reimbursed the beneficiary in full or where such fee or compensation has not yet been paid by the alien worker, that the agreement has been terminated, or notifies DHS within 2 workdays of obtaining knowledge in a manner specified in a notice published in the Federal Register. (B) Effect of petition revocation. Upon revocation of an employer's H-2A petition based upon paragraph (h)(5)(xi)(A) of this section, the alien beneficiary's stay will be authorized and the alien will not accrue any period of unlawful presence under section 212(a)(9) of the Act (8 U.S.C. 1182(a)(9)) for a 30-day period following the date of the revocation for the purpose of departure or extension of stay based upon a subsequent offer of employment. (C) Reimbursement as condition to approval of future H-2A petitions. (1) Filing subsequent H-2A petitions within 1 year of denial or revocation of previous H-2A petition. A petitioner filing an H-2A petition within 1 year after the decision denying or revoking on notice an H-2A petition filed by the same petitioner on the basis of paragraph (h)(5)(xi)(A) of this section must demonstrate to the satisfaction of USCIS, as a condition of approval of such petition, that the petitioner or agent, facilitator, recruiter, or similar employment service has reimbursed the beneficiary in full or that the petitioner has failed to locate the beneficiary. If the petitioner demonstrates to the satisfaction of USCIS that the beneficiary was reimbursed in full, such condition of approval shall be satisfied with respect to any subsequently filed H-2A petitions, except as provided in paragraph (h)(5)(xi)(C)(2). If the petitioner demonstrates to the satisfaction of USCIS that it has made reasonable efforts to locate the beneficiary with respect to each H-2A petition filed within 1 year after the decision denying or revoking the previous H-2A petition on the basis of paragraph (h)(5)(xi)(A) of this section but has failed to do so, such condition of approval shall be deemed satisfied with respect to any H- 2A petition filed 1 year or more after the denial or revocation. Such reasonable efforts shall [[Page 76914]] include contacting any of the beneficiary's known addresses. (2) Effect of subsequent denied or revoked petitions. An H-2A petition filed by the same petitioner subsequent to a denial under paragraph (h)(5)(xi)(A) of this section shall be subject to the condition of approval described in paragraph (h)(5)(xi)(C)(1) of this section, regardless of prior satisfaction of such condition of approval with respect to a previously denied or revoked petition. (xii) Treatment of alien beneficiaries upon revocation of labor certification. The approval of an employer's H-2A petition is immediately and automatically revoked if the Department of Labor revokes the labor certification upon which the petition is based. Upon revocation of an H-2A petition based upon revocation of labor certification, the alien beneficiary's stay will be authorized and the alien will not accrue any period of unlawful presence under section 212(a)(9) of the Act for a 30-day period following the date of the revocation for the purpose of departure or extension of stay based upon a subsequent offer of employment. * * * * * (11) * * * (i) * * * (A) * * * However, H-2A petitioners must send notification to DHS pursuant to paragraph (h)(5)(vi) of this section. * * * * * (ii) Immediate and automatic revocation. The approval of any petition is immediately and automatically revoked if the petitioner goes out of business, files a written withdrawal of the petition, or the Department of Labor revokes the labor certification upon which the petition is based. * * * * * PART 215--CONTROLS OF ALIENS DEPARTING FROM THE UNITED STATES 3. The authority citation for part 215 continues to read as follows: Authority: 8 U.S.C. 1104; 1184; 1185 (pursuant to Executive Order 13323, published January 2, 2004), 1365a note, 1379, 1731-32. 4. Section 215.9 is added to read as follows: Sec. 215.9 Temporary Worker Visa Exit Program. An alien admitted on an H-2A visa at a port of entry participating in the Temporary Worker Visa Exit Program must also depart at the end of his or her authorized period of stay through a port of entry participating in the program and present designated biographic and/or biometric information upon departure. U.S. Customs and Border Protection will establish a pilot program by publishing a Notice in the Federal Register designating which H-2A workers must participate in the Temporary Worker Visa Exit Program, which ports of entry are participating in the program, which biographical and/or biometric information would be required, and the format for submission of that information by the departing designated temporary workers. PART 274a--CONTROL OF EMPLOYMENT OF ALIENS 5. The authority citation for part 274a continues to read as follows: Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2. 6. Section 274a.12 is amended by: a. Removing the word ``or'' at the end of paragraph (b)(19); b. Removing the period at the end of paragraph (b)(20), and adding ``; or'' in its place; and by c. Adding a new paragraph (b)(21). The addition reads as follows: Sec. 274a.12 Classes of aliens authorized to accept employment. * * * * * (b) * * * (21) A nonimmigrant alien within the class of aliens described in 8 CFR 214.2(h)(1)(ii)(C) who filed an application for an extension of stay pursuant to 8 CFR 214.2 during his or her period of admission. Such alien is authorized to be employed by a new employer that has filed an H-2A petition naming the alien as a beneficiary and requesting an extension of stay for the alien for a period not to exceed 120 days beginning from the ``Received Date'' on Form I-797 (Notice of Action) acknowledging receipt of the petition requesting an extension of stay, provided that the employer has enrolled in and is a participant in good standing in the E-Verify program, as determined by USCIS in its discretion. Such authorization will be subject to any conditions and limitations noted on the initial authorization, except as to the employer and place of employment. However, if the District Director or Service Center director adjudicates the application prior to the expiration of this 120-day period and denies the application for extension of stay, the employment authorization under this paragraph (b)(21) shall automatically terminate upon 15 days after the date of the denial decision. The employment authorization shall also terminate automatically if the employer fails to remain a participant in good standing in the E-Verify program, as determined by USCIS in its discretion. * * * * * Paul A. Schneider, Deputy Secretary. [FR Doc. E8-29888 Filed 12-12-08; 8:45 am] http://www.Dr-Immigration.com/news/shownews.asp?newsID=42 Sat, 7 Mar 2009 20:27:46 EST By USCIS: Office of Communications USCIS Update Dec. 11, 2008 USCIS FINALIZES STREAMLINING PROCEDURES FOR H-2A PROGRAM WASHINGTON U.S. Citizenship and Immigration Services (USCIS) announced today changes to the H-2A regulations that will streamline the hiring process of temporary and seasonal agricultural workers. This final rule will facilitate the H-2A process for employers by removing certain limitations and will further encourage lawful employment. These changes stem from the commitment made by President Bushs Administration in August 2007, after Congress failed to pass comprehensive immigration reform. This final rule supplements the extensive reforms of the H-2A program that are included in the Department of Labors final rule, also being published today. U.S. employers may file an H-2A petition with USCIS if they have a shortage of available U.S. workers to fill temporary or seasonal agricultural jobs. Once the petition is approved, the employers can hire foreign workers to fill those jobs for a limited period of time. The final rule includes mechanisms to enhance the integrity of the program, increase protection of U.S. workers, and protect H-2A workers from unscrupulous employers and recruiters. Key areas of reform addressed in the final rule include: Relaxing the current limitations on H-2A employers to petition for multiple, unnamed agricultural workers; Extending from 10 days to 30 days the time a temporary or seasonal agricultural worker may remain in the country following the expiration of his or her temporary H-2A stay; Reducing from six months to three months the time an H-2A worker who has spent three years in the United States must reside and be physically present outside the United States before he or she is eligible to re-obtain H-2A status; Allowing H-2A workers, who are changing from one H-2A employer to another H-2A employer, to begin work with the new petitioning employer upon the filing of a new H-2A petition, provided the new employer is participating in USCIS E-Verify program; Prohibiting H-2A employers and recruiters from imposing certain fees on prospective H-2A workers as a condition of employment; Requiring an approved temporary labor certification in connection with all H-2A petitions; Requiring employers to notify USCIS when H-2A workers fail to show up for work, complete the work more than 30 days early, are terminated, or abscond from the worksite; and Permitting the approval of H-2A petitions only for nationals of certain countries designated as important to the operation of the program and appearing on a list to be published annually in the Federal Register. The initial list of participating countries to be published simultaneously with this Final Rule includes Mexico, Jamaica, and 26 others. DHS may allow on a case-by-case basis a worker from a country not on the list to be eligible for the H-2A program if such participation is in the U.S. interest. This rule will also establish a land-border exit system pilot program requiring H-2A workers admitted through a port of entry participating in the pilot program to also depart through a participating port and to present designated biographic and/or biometric information upon departure. These changes are being made in further fulfillment of the commitment made by President George W. Bushs Administration in August 2007, after Congress failure to pass comprehensive immigration reform, to address immigration challenges using existing authorities. This final rule supplements the extensive reforms of the H-2A program that are included in the Department of Labors final rule, also being published today. The final rule has been transmitted to the Federal Register and will become effective 30 days after it is posted. USCIS Office of Communications www.uscis.gov Questions & Answers Dec. 11, 2008 USCIS FINALIZES CHANGES TO IMPROVE THE H-2A TEMPORARY AGRICULTURAL WORKER PROGRAM Changes Will Assist Employers of Temporary Agricultural Workers U.S. Citizenship and Immigration Services (USCIS) announced today changes to the H-2A regulations that will streamline the hiring process of temporary and seasonal agricultural workers. This final rule will facilitate the H-2A process for employers by removing certain limitations and will further encourage lawful employment. These changes stem from the commitment made by President Bushs Administration in August 2007, after Congress failed to pass comprehensive immigration reform. This final rule supplements the extensive reforms of the H-2A program that are included in the Department of Labors final rule, also being published today. When U.S. employers have a shortage of available U.S. workers to fill temporary or seasonal agricultural jobs, they may file an H-2A petition with U.S. Citizenship and Immigration Services (USCIS) for permission to employ foreign workers to perform that work in the United States. Once the petition is approved, these workers, if they are eligible for admission, may enter the United States in H-2A nonimmigrant status. Questions & Answers Q: What is the H-2A classification? A: The H-2A program allows U.S. employers to bring foreign nationals to the United States to fill temporary agricultural jobs for which U.S. workers are not available. The H-2A nonimmigrant classification applies to aliens seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States on a temporary basis. Employment of a seasonal nature is employment that is tied to a certain time of year by an event or pattern, such as a growing season, and requires labor levels far above those necessary for ongoing operations. Under the regulations being modified by this rule, employment is of a temporary nature if the employers need for the worker will, except in extraordinary circumstances, last no longer than a year. Q: What is the process for obtaining H-2A status? A: Prospective employers of H-2A workers must first obtain certification from the U.S. Department of Labor (DOL) that (1) there are not sufficient U.S. workers who are able, willing, qualified, and available to do the work; and (2) the employment of H-2A aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers. H-2A workers can remain with an employer only for the period certified by DOL. Once the employer has obtained an approved temporary labor certification application from DOL, the employer may file a Form I-129, Petition for a Nonimmigrant Worker, with USCIS. Once the petition is approved, a worker may apply for an H-2A visa at a U.S. embassy or consulate abroad or, if the worker is already in lawful nonimmigrant status in the United States, apply for a change of nonimmigrant status to H-2A or an extension of H-2A nonimmigrant stay. Such workers may extend their H-2A stay through DOL-certified work with another employer, but in no event may an H-2A worker reside in the U.S. for an uninterrupted period of more than three years in H- 2A status. Q: What modifications are included in the final rule? A: The final rule will: Require petitioners to provide notification to USCIS in the following instances: (a) where an H- 2A worker fails to report to work within five work days of the employment start date on the H-2A petition or within five work days of the start date established by the employer, whichever is later; (b) where the agricultural labor or services for which H-2A workers were hired is completed more than 30 days earlier than the end date stated on the H-2A petition; or (c) where the H-2A worker absconds from the worksite or is terminated prior to the completion of the agricultural labor or services for which he or she was hired; Retain the current liquidated damages provision and require petitioners who fail to comply with the notification requirements to pay liquidated damages in the amount of $10; Extend the time period for petitioners to respond to a notice of noncompliance regarding the notification requirement. Allow petitioners to file a petition, using a copy of the previously approved temporary labor certification, to replace an H-2A worker who fails to report to work or who absconds; Remove the separate attestation requirement regarding the employers knowledge of job recruitment services and fees contained in the proposed rule and amend the Form I-129, Petition for Nonimmigrant Worker, to include the attestation provisions; Authorize the denial or revocation of H-2A petitions where the petitioner knows or should reasonably know that the H-2A worker has paid or agreed to pay certain prohibited fees as a condition of obtaining H-2A employment; Offer H-2A petitioners means to avoid denial or revocation of the H-2A petition based on a determination regarding certain prohibited fees; Require H-2A employers whose petitions have been denied or revoked based on the payment of certain prohibited fees to demonstrate, as a condition of approval of H-2A petitions filed within one year of the denial or revocation, that the H-2A workers have been reimbursed or the H-2A workers cannot be located despite the petitioners reasonable efforts; Allow H-2A workers to legally remain in the United States for an additional 30-day period if a petition is revoked based on the revocation of temporary labor certification; Clarify that USCIS will deny H-2A nonimmigrant status based on a finding that the worker violated any condition of H-2A status within the past 5 years unless the violation occurred through no fault of the worker. The no fault clause relating to the workers status violation was not included in the proposed rule; Relax the current limitations on the ability of U.S. employers to petition for multiple, unnamed H- 2A agricultural workers. This provision is to allow H-2A petitions to include unnamed beneficiaries for those aliens who are outside the United States, regardless of the number of beneficiaries on the petition or whether the temporary labor certification named beneficiaries. Note: Beneficiaries of an H-2A petition who are in the United States (and who are applying for a change of nonimmigrant status to H-2A or an extension of their H-2A stay) must be named in the petition; Eliminate the requirement that aliens petitioned for by a U.S. employer all be processed by the same embassy or consulate or, where a visa is not required, apply for admission at the same port of entry; Extend from 10 days to 30 days the amount of time an H-2A worker may remain in the United States after the end of employment; Reduce from 6 months to 3 months the amount of time an H-2A worker who has spent three years in the United States must reside and be physically present outside the United States before he or she is eligible to re-obtain H-2A status; Allow H-2A workers who are changing employers to begin work with the new H-2A petitioning employer upon the filing of a new H-2A petition, provided that the new employer is a registered user of USCIS E-Verify program; Eliminate the ability of employers to file an H-2A petition without an approved temporary labor certification; Permit the approval of H-2A petitions only for nationals of certain countries designated as important to the operation of the program and appearing on a list to be published annually in the Federal Register. The initial list of participating countries to be published simultaneously with this Final Rule includes Mexico, Jamaica, and 26 others. DHS may allow on a case-by-case basis a worker from a country not on the list to be eligible for the H-2A program if such participation is in the U.S. interest; and Establish a land-border exit system pilot program under which H-2A workers admitted through a port of entry participating in the program must also depart through a port of entry participating in the program and present, upon departure, designated biographical information, possibly including biometric identifiers. Q: How will the final rule increase protection of the rights of U.S. and alien workers? A: The rule will no longer allow U.S. employers to file an H-2A petition without an approved temporary labor certification from the Department of Labor. As noted above, if an H-2A worker was charged a fee by the petitioner in connection with the employment, or if a labor recruiter, with the knowledge of the petitioner, demanded a payment from a worker as a condition of selection for the petitioners H-2A workforce, the rule will provide USCIS the authority to deny or revoke the petition. As a precondition to approval of any subsequent H-2A petitions filed within one year of the denial or revocation, the employer would have to show that it reimbursed the alien for such fees or that the H-2A worker cannot be located despite the petitioners reasonable efforts to do so. Q: How will the final rule strengthen enforcement and ensure the integrity of the H-2A program? A: The rule will allow H-2A workers who are changing employers to begin work with the new petitioning employer before the change of employer petition is approved by USCIS, but only if the new employer is a registered user of USCIS E-Verify program. This provision will create an incentive for agricultural employers to enroll in the E-Verify program, thereby reducing opportunities for aliens without employment authorization to work in the agricultural sector and helping protect the integrity of the H-2A program. The Final Rule will permit the approval of H-2A petitions only for nationals of certain countries designated as important to the operation of the program and appearing on a list to be published annually in the Federal Register. In adding new countries to the list in order to allow the participation of their nationals in the program, DHS will consider a variety of factors, including a countrys cooperation with respect to the issuance of travel documents for individuals subject to a final order of removal. The rule updates and strengthens the existing requirement that employers notify USCIS when an H-2A worker fails to show up for work on time, completes the work early, is terminated, or absconds from the worksite. The rule will establish a land-border exit system pilot program under which H-2A workers admitted through a port of entry participating in the program must also depart through a port of entry participating in the program and present, upon departure, designated biographical information, possibly including biometric identifiers. Q: When will the final rule become effective? A: The rule will go into effect 30 days after it has been published in the Federal Register. Existing H-2A regulations and policies will remain in effect until the effective date of the final rule. Q: Where can I locate information regarding the current proposed rule addressing the H-2A program? A: The rule is available for viewing on the Federal Register and at www.uscis.gov. http://www.Dr-Immigration.com/news/shownews.asp?newsID=41 Sat, 7 Mar 2009 20:27:30 EST [Federal Register: December 18, 2008 (Volume 73, Number 244)] [Notices] [Page 77043] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr18de08-74] --------------------------------------- DEPARTMENT OF HOMELAND SECURITY Identification of Foreign Countries Whose Nationals Are Eligible To Participate in the H-2A Visa Program AGENCY: Office of the Secretary, DHS. ACTION: Notice. --------------------------------------- SUMMARY: On December 18, 2008, DHS published in the Federal Register a final rule ``Changes to Requirements Affecting H-2A Nonimmigrants,'' which provides that the Secretary of Homeland Security will publish a list of designated countries whose nationals can be the beneficiaries of an approved H-2A petition and are eligible for H-2A visas. This initial list will be composed of countries that are important for the operation of the H-2A program and are cooperative in the repatriation of their citizens, subjects, nationals or residents who are subject to a final order of removal from the United States. Publication of such notice is made by the Secretary of Homeland Security, with the concurrence of the Secretary of State. Under the final rule, the Department of Homeland Security (DHS) will only approve petitions for H-2A nonimmigrant status for nationals of countries designated by means of this list or by means of the special procedure allowing petitioners to request approval for particular beneficiaries if the Secretary of Homeland Security determines that it is in the U.S. interest. Pursuant to the final rule, this notice designates those countries the Secretary of Homeland Security, with the concurrence of the Secretary of State, has found to be eligible to participate in the H-2A program. DATES: This notice is effective January 17, 2009, and shall be without effect at the end of one year after January 17, 2009. SUPPLEMENTARY INFORMATION: Designation of Countries Whose Nationals Are Eligible To Participate in the H-2A Visa Program Pursuant to the authority provided to the Secretary of Homeland Security under sections 241, 214(a)(1), and 215(a)(1) of the Immigration and Nationality Act (INA) (8 U.S.C. 1231, 1184(a)(1), and 1185(a)(1)), I have designated, with the concurrence of the Secretary of State, that nationals from the following countries are eligible to participate in the H-2A visa program: Argentina; Australia; Belize; Brazil; Bulgaria; Canada; Chile; Costa Rica; Dominican Republic; El Salvador; Guatemala; Honduras; Indonesia; Israel; Jamaica; Japan; Mexico; Moldova; New Zealand; Peru; Philippines; Poland; Romania; South Africa; South Korea; Turkey; Ukraine; United Kingdom. This notice does not affect the status of aliens who currently hold H-2A nonimmigrant status. Nothing in this notice limits the authority of the Secretary of Homeland Security or his or her designee or any other federal agency to invoke against any foreign country or its nationals any other remedy, penalty or enforcement action available by law. Paul A. Schneider, Deputy Secretary. [FR Doc. E8-29785 Filed 12-17-08; 8:45 am] BILLING CODE 4410-10-P http://www.Dr-Immigration.com/news/shownews.asp?newsID=40 Sat, 7 Mar 2009 20:27:21 EST Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement; Final Rule [Federal Register: December 18, 2008 (Volume 73, Number 244)] [Rules and Regulations] [Page 77109-77262] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr18de08-20] --------------------------------------- Part II Department of Labor --------------------------------------- Employment and Training Administration 20 CFR Part 655 Wage and Hour Division 29 CFR Parts 501, 780, and 788 --------------------------------------- [[Page 77110]] --------------------------------------- DEPARTMENT OF LABOR Employment and Training Administration 20 CFR Part 655 Wage and Hour Division 29 CFR Parts 501, 780, and 788 RIN 1205-AB55 Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement AGENCY: Employment and Training Administration, and Wage and Hour Division, Employment Standards Administration, Labor. ACTION: Final rule. --------------------------------------- SUMMARY: The Department of Labor (DOL or Department) is amending its regulations regarding the certification for the temporary employment of nonimmigrant workers in agricultural occupations on a temporary or seasonal basis, and the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. This final rule re-engineers the process by which employers obtain a temporary labor certification from the Department for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A (agricultural temporary worker) status. The final rule utilizes an attestation-based application process based on pre-filing recruitment and eliminates duplicative H-2A activities currently performed by State Workforce Agencies (SWAs) and the Department. The rule also provides enhanced enforcement, including more rigorous penalties, to complement the modernized certification process and to appropriately protect workers. DATES: This final rule is effective January 17, 2009. FOR FURTHER INFORMATION CONTACT: For further information about 20 CFR part 655, subpart B, contact William L. Carlson, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210. Telephone: (202) 693-3010 (this is not a toll- free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339. For further information regarding 29 CFR part 501, contact James Kessler, Farm Labor Team Leader, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S-3510, Washington, DC 20210; Telephone (202) 693- 0070 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877- 8339. SUPPLEMENTARY INFORMATION: Table of Contents I. Background Leading to the NPRM A. Statutory Standard and Current Department of Labor Regulations B. Overview of the Proposed Redesign of the System C. Severability II. Discussion of Comments on Proposed Rule A. Revisions to 20 CFR Part 655 Subpart B Section 655.93 Special Procedures Section 655.100 Overview and Definitions Section 655.101 Applications for Temporary Employment Certification Section 655.102 Required pre-filing activity Section 655.103 Advertising requirements Section 655.104 Contents of job offers Section 655.105 Assurances and obligations of H-2A employers Section 655.106 Assurances and obligations of H-2A labor contractors Section 655.107 Processing of applications Section 655.108 Offered wage rate Section 655.109 Labor certification determinations Section 655.110 Validity and scope of temporary labor certifications Section 655.111 Required departure Section 655.112 Audits Section 655.113 H-2A Applications Involving Fraud or Willful Misrepresentation Section 655.114 Setting Meal Charges; Petition for Higher Meal Charges Section 655.115 Administrative Review and De Novo Hearing before an Administrative Law Judge Section 655.116 Job Service Complaint System; enforcement of work contracts Section 655.117 Revocation of H-2A certification approval Section 655.118 Debarment Timeline for Anticipated Training and Education Outreach Initiative Transition B. Revisions to 29 CFR Part 501 Section 501.0 Introduction Section 501.1 Purpose and scope Section 501.2 Coordination of intake between DOL agencies Section 501.3 Discrimination Section 501.4 Waiver of rights prohibited Section 501.5 Investigation authority of Secretary Section 501.6 Cooperation with DOL officials Section 501.8 Surety bond Section 501.10 Definitions Section 501.15 Enforcement Section 501.16 Sanctions and remedies Section 501.19 Civil money penalty assessment Section 501.20 Debarment and revocation Section 501.21 Failure to cooperate with investigations Section 501.30 Applicability of procedures and rules Section 501.31 Written notice of determination required Section 501.32 Contents of notice Section 501.33 Requests for hearing Section 501.42 Exhaustion of administrative remedies C. Revisions to 29 CFR Parts 780 and 788 Section 780.115 Forest products Section 780.201 Meaning of forestry or lumbering operations Section 780.205 Nursery activities generally and Christmas tree production Section 780.208 Forestry activities Section 788.10 Preparing other forestry products III. Administrative Information A. Executive Order 12866--Regulatory Planning and Review B. Regulatory Flexibility Analysis C. Unfunded Mandates Reform Act of 1995 D. Executive Order 13132--Federalism E. Executive Order 13175--Indian Tribal Governments F. Assessment of Federal Regulations and Policies on Families G. Executive Order 12630--Protected Property Rights H. Executive Order 12988--Civil Justice Reform I. Plain Language J. Executive Order 13211--Energy Supply K. Paperwork Reduction Act I. Background Leading to the NPRM A. Statutory Standard and Current Department of Labor Regulations The H-2A visa program provides a means for U.S. agricultural employers to employ foreign workers on a temporary basis to perform agricultural labor or services when U.S. labor is in short supply. Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (INA or the Act) (8 U.S.C. 1101(a)(15)(H)(ii)(a)) defines an H-2A worker as a nonimmigrant admitted to the U.S. on a temporary or seasonal basis to perform agricultural labor or services. Section 214(c)(1) of the INA (8 U.S.C. 1184(c)(1)) mandates that the Secretary of DHS consult with the Secretary of the Department of Labor (the Secretary) with respect to adjudication H-2A petitions, and, by cross- referencing Section 218 of the INA (8 U.S.C. 1188), with determining the availability of U.S. workers and the effect on wages and working conditions. Section 218 also sets forth further details of the H-2A application process and the requirements to be met by the agricultural employer. Although foreign agricultural labor has contributed to the growth and success of America's agricultural sector since the 19th century, the modern-day agricultural worker visa program originated with the creation, in the INA (Pub. L. 82-144), of the ``H-2 program''--a reference to the INA subparagraph that established the program. Today, the H-2A nonimmigrant visa program authorizes the Secretary of DHS to permit employers to hire foreign workers to come temporarily to the U.S. and perform agricultural services or labor of a seasonal or temporary nature, if the need for foreign labor is first certified by the Secretary. Section 218(a)(1) of the INA (8 U.S.C. 1188(a)(1)) states that a petition to import H-2A workers may not be approved by the Secretary of Homeland Security unless the petitioner has applied to the Secretary for a certification 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. The INA specifies conditions under which the Secretary must deny certification, and establishes specific timeframes within which employers must file--and the Department must process and either reject or certify--applications for H-2A labor certification. In addition, the statute contains certain worker protections, including the provision of workers' compensation insurance and housing as well as minimum recruitment standards to which H-2A employers must adhere. See 8 U.S.C. 1188(b) and (c). The INA does not limit the number of foreign workers who may be accorded H-2A status each year or the number of labor certification applications the Department may process. The Department has regulations at 20 CFR part 655, subpart B-- ``Labor Certification Process for Temporary Agricultural Employment Occupations in the United States (H-2A Workers),'' governing the H-2A labor certification process, and at 29 CFR part 501 implementing its enforcement responsibilities under the H-2A program. Regulations relating to employer-provided housing for agricultural workers appear at 20 CFR part 654, subpart E (Housing for Agricultural Workers), and 29 CFR 1910.142 (standards set by the Occupational Safety and Health Administration); see also 20 CFR 651.10, and part 653, subparts B and F. The Department was charged with reviewing the efficiency and effectiveness of its H-2A procedures in light of the increasing presence of undocumented workers in agricultural occupations and because of growing concern about the stability of the agricultural industry given its difficulty in gaining access to a legal workforce.\1\ The Department reviewed its administration of the program and, in light of its extensive experience in both the processing of applications and the enforcement of worker protections, proposed measures to re-engineer the H-2A program in a Notice of Proposed Rulemaking on February 13, 2008 (73 FR 8538) (NPRM or Proposed Rule). --------------------------------------- \1\ Fact Sheet: Improving Border Security and Immigration Within Existing Law, Office of the Press Secretary, The White House (August 10, 2007); see also Statement on Improving Border Security and Immigration Within Existing Law, 43 Weekly Comp. Pres. Doc. (August 13, 2007). --------------------------------------- B. Overview of the Proposed Redesign of the System The NPRM described a pre-filing recruitment and attestation process as part of a re-engineered H-2A program. The Department proposed a process by which employers, as part of their application, would attest under threat of penalties, including debarment from the program, that they have complied with and will continue to comply with all applicable program requirements. In addition, employers would not be required to file extensive documentation with their applications but would be required to maintain all supporting documentation for their application for a period of 5 years in order to facilitate the Department's enforcement of program requirements. The Department's proposal also contained new and enhanced penalties and procedures for invoking those penalties against employers as well as their attorneys or agents who fail to perform obligations imposed under the H-2A program. The program also eliminates duplicative administration and processing by the State Workforce Agencies (SWAs) and the Department by requiring filing of the application only with the Department's National Processing Center (NPC) in Chicago, Illinois. This program would also enable the SWAs to better perform their mandated functions in processing H-2A agricultural clearance orders, by enhancing their ability to conduct housing inspections well in advance of the employer's application date. The SWAs would also continue to clear and post intrastate job orders, circulate them through the Employment Service interstate clearance system and refer potential U.S. workers to employers. Finally, the Department proposed additional processes for penalizing employers or their attorneys or agents who fail to perform obligations required under the H-2A program, including provisions for debarring employers, agents, and attorneys and revoking approved labor certifications. C. Severability The Department declares that, to the extent that any portion of this Final Rule is declared to be invalid by a court, it intends for all other parts of the Final Rule that are capable of operating in the absence of the specific portion that has been invalidated to remain in effect. Thus, even if a court decision invalidating a portion of this Final Rule resulted in a partial reversion to the current regulations or to the statutory language itself, the Department intends that the rest of the Final Rule would continue to operate, if at all possible, in tandem with the reverted provisions. II. Discussion of Comments on Proposed Rule The Department received over 11,000 comments in response to the proposed rule, the vast majority of them form letters or e-mails repeating the same contentions. Commenters included individual farmers and associations of farmers, agricultural associations, law firms, farmworker advocates, community-based organizations, and individual members of the public. The Department has reviewed these comments and taken them into consideration in drafting this Final Rule. We do not discuss here those provisions of the NPRM on which we received no comments. Those provisions were adopted as proposed. We have also made some editorial changes to the text of the proposed regulations, for clarity and to improve readability. Those changes are not intended to alter the meaning or intent of the regulations. A. Revisions to 20 CFR Part 655 Subpart B Section 655.93 Special Procedures The Department proposed to revise the current regulation on special procedures to clarify its authority to establish procedures that vary from those procedures outlined in the regulations. We received numerous comments about this revised language on special procedures. [[Page 77112]] Several commenters questioned the effect the proposed language would have on special procedures currently in use. Section 655.93(b) of the current regulations provides for special procedures, stating that: ``the Director has the authority to establish special procedures for processing H-2A applications when employers can demonstrate upon written application to and consultation with the Director that special procedures are necessary.'' The proposed rule provides that ``the OFLC Administrator has the authority to establish or to revise special procedures in the form of variances for processing certain H-2A applications when employers can demonstrate upon written application to and consultation with the OFLC Administrator that special procedures are necessary.'' Four associations of growers/producers specifically requested clarification of the phrase ``in the form of variances.'' These associations asked the Department to confirm that the proposed language does not pose a threat to the continued use of the special procedures for sheepherders currently in place. One association expressed concern that this revised language would require hundreds of employers engaged in the range production of livestock to annually document their need for special procedures. The addition of the phrase ``in the form of variances'' is intended to clarify that special procedures differ from those processes set out in the regulation, which otherwise apply to employers seeking to hire H-2A workers. The special procedures for sheepherders, for example, arise from decades of past practices and draw upon the unique nature of the activity that cannot be completely addressed in the generally applicable regulations. The establishment of special procedures recognizes the peculiarities of an industry or activity, and provides a means to comply with the underlying program requirements through an altered process that adequately addresses the unique nature of the industry or activity while meeting the statutory and regulatory requirements of the program. The special procedures do not enable industries and employers to evade their statutory or regulatory responsibilities but rather establish a feasible and tailored means of meeting them while recognizing the unique circumstances of that industry. The language in Sec. 655.93(b) affirms the Department's authority to develop and/or revise special procedures. The Department does not intend to require any industry currently using special procedures to seek ratification of their current practice, nor does the Department intend to require annual or periodic justifications of an industry's need for special procedures. The Department does reserve the right to make appropriate changes to those procedures after consultation with the industry involved. Section 655.93(b) in the NPRM enables the Administrator/OFLC ``to establish or revise special procedures in the form of variances for processing certain H-2A applications when employers can demonstrate upon written application to and consultation with the OFLC Administrator that special procedures are necessary.'' In contrast, the current rule states that the subpart permits the Administrator/OFLC to ``continue and * * * revise the special procedures previously in effect for the handling of applications for sheepherders in the Western States (and to adapt such procedures to occupations in the range production of other livestock) and for custom combine crews.'' The Department received several comments about the proposed language, universally expressing concern that the new language provides the Department with broader authority for changing or revoking existing special procedures without providing due process with respect to altering the procedures. An association of growers/producers stated that the proposed rule uses ``more ominous terms'' and gives the impression that the Administrator/OFLC has unilateral authority to make changes without safeguards, review, or democratic procedures. One association of growers and producers expressed the view that the revocation language gives the Department authority to revoke the procedures without advance notice and opportunity for comment and is, therefore, a violation of the Administrative Procedure Act. A law firm that provides counsel to agricultural employers stated that the new language does not adequately solidify the Department's commitment to existing special procedures and recommended that the Department amend the regulation to affirm its commitment to continuing such long-standing special procedures by providing that any proposed changes to the existing special procedures and policies can be made only after publication in the Federal Register with at least a 120-day period for public comment. The firm also commented that the proposal to empower the Administrator/OFLC to revoke special procedures would violate Section 218(c)(4) of the INA, which requires the Secretary of Labor to issue regulations addressing the specific requirements of housing for employees principally engaged in the range production of livestock. The Department has decided, following consideration of these concerns, to retain the NPRM language in the final regulation, but has added language similar to that in the current regulation, to enumerate those special procedures currently in effect as examples of the use of special procedures. It is our belief that this provision, as it now reads, provides both the Department and employers using the H-2A program essential flexibility regarding special procedures, thus permitting the Department to be far more responsive to employers' changing needs, crop mechanization, and similar concerns. In addition, the language on special procedures in the Final Rule reaffirms the Department's continuing commitment to use special procedures where appropriate. The Department has no present intent to revoke any of the special procedures that are already in place, nor does the language of the final regulation give the Department any new power to do so. While it is possible that at some time in the future the Department may need to revoke or revise existing special procedures, that step would be taken with the same level of deliberation and consultation that was employed in the creation of those procedures. To strengthen our commitment to continue the current consultative process, we have changed the word ``may'' in the last sentence of paragraph (b) to ``will.'' The provision also provides the Department with the authority to develop new procedures to meet employer needs and, additionally, provides employers with the opportunity to request that the Department consider additional procedures or revisions to existing special procedures. Proposed paragraph (c) has been deleted as unnecessarily duplicative of the language in paragraph (b). Two associations of growers and producers requested that the Department formulate special procedures for dairy workers, stating that these requested special procedures should not be different from those already established for sheepherders. The associations stated the provisions for sheepherders have ``special relevance to the current dairy situation'' and also stated the ``special procedures relieve the sheepherding industry from having to make a showing of temporary or seasonal employment.'' The longstanding special procedures that allow sheepherders to participate in the H-2A program have their origins in prior statutory provisions dating back to the 1950s. The Department is unaware of any comparable statutory history pertaining to the dairy industry. The Department would, of course, consider a specific request from dairy producers or their representatives for the development of special procedures that would be applicable to eligible H-2A occupations (see further discussion on this point in the discussion of the definition of ``agricultural labor or services'' below). The Department does not believe, however, that it would be appropriate to speculatively address the merits of a specific special procedures request in this regulation, particularly before a request making a detailed case for the appropriateness of such special procedures has been received. An individual employer commented that those involved in discussing and considering changes to the H-2A program should preserve the special procedures for sheepherders and extend them to all occupations engaged in the range production of other livestock (cattle and horses). A private citizen provided suggestions for improving the handling of certification for sheep shearers. The Department has previously established special procedures for open range production of livestock and sheep shearers and does not have any plans to change those procedures at this time and does not believe that it would be appropriate to address in this regulation the merits of the commenters' general suggestions for revising these special procedures. The Department would, of course, be willing to consider a specific request from livestock producers or their representatives for the revision or expansion of special procedures consistent with its authority and this regulation. Section 655.100--Overview and definitions (a) Overview The Department included a provision in the NPRM, similar to a provision in the current regulation, which provides an overview of the H-2A program. This overview provides the reader, especially readers unfamiliar with the program, a general description of program obligations, requirements, and processes. Only two commenters identified concerns with the overview as written. Both expressed concern with the proposed earlier time period for the recruitment of U.S. workers. They questioned whether U.S. workers who agreed to work on a date far in advance would then be available to work for the entire contract period. The overview, however, simply describes in broad-brush fashion the regulatory provisions that are discussed in detail later in the NPRM, and in and of itself has no legal effect. The concerns and observations expressed by commenters will be addressed in the context of the relevant regulatory provision to which they apply rather than in the overview. The overview has also been edited for general clarity and to reflect changes made throughout the regulatory text. (b) Transition The Department, due to past program experience, has decided to add a transition period in order to provide an orderly and seamless transition to the new system created by these regulatory revisions. This will allow the Department to make necessary changes to program operations, provide training to the NPC, SWAs and stakeholder groups, and allow employers and their agents/representatives to become familiar with the new system. Employers with a date of need for workers on or after July 1, 2009 will be obligated to follow all of the new procedures established by these regulations. Prior to that time, the Department has created a hybrid system involving elements of the old and the new regulations as delineated in the new Sec. 655.100(b). Even though the NPRM put current and future users of H-2A workers on some notice regarding what this Final Rule will require, the rule as a whole implements several significant changes to the administration of the program. Several commenters requested that the Department allow employers some period of time to prepare and adjust their requests for temporary agricultural workers. These regulations implement new application forms, new processes, and new time periods for conducting recruitment for domestic workers to which current and new users of the program will need to become accustomed. The Department is accordingly adopting a transition period after the effective date of this Final Rule. The transition period establishes procedures that will apply to any application for which the first date of need for H-2A workers is no earlier than the effective date of this rule and no later than June 30, 2009. During this transition period, the Department will accept applications in the following manner: An employer will complete and submit Form ETA-9142, Application for Temporary Employment Certification, in accordance with Sec. 655.107, no less than 45 days prior to their date of need. The employer will simultaneously submit Form ETA-790 Agricultural and Food Processing Clearance Order (job order), with the Application for Temporary Employment Certification (application) directly to the Chicago NPC. Activities that are required to be conducted prior to filing an application under the Final Rule will be conducted post-filing during this transition period, much as they are under the current rule. The employer will also be expected to make attestations in its application applicable to its future recruitment activities, payment of the offered wage rate, etc. Employers will not be required to complete an initial recruitment report for submission with the application, but will be required to complete a recruitment report for submission to the NPC prior to certification, and will also be required to complete a final recruitment report covering the entire recruitment period. The employer will not separately request a wage determination from the Chicago NPC. Upon receipt of Forms ETA-9142 and ETA-790, the Chicago NPC will provide the employer with the minimum applicable wage rate to be offered by the employer, and will process the application and job order in a manner consistent with Sec. 655.107, issuing a modification for any curable deficiencies within 7 calendar days. Once the application and job order have been accepted, the Chicago NPC will transmit a copy of the job order to the SWA(s) serving the area of intended employment to initiate intrastate and interstate clearance, request the SWA(s) schedule an inspection of the housing, and provide instructions to the employer to commence positive recruitment in a manner consistent with Sec. 655.102. The NPC will designate labor supply States during this transition period on a case-by-case basis, applying the basic information standard for such designations that is set forth in Sec. 655.102(i). This transition period process will apply only to applications filed on or after the effective date of this regulation with dates of need no earlier than the effective date and no later than June 30, 2009. Employers with a date of need on or after July 1, 2009 will be expected to fully comply with all of the requirements of the Final Rule. Moreover, after the Final Rule's effective date, the requirements of the Final Rule will fully apply except for those modifications that are expressly mentioned as transition period procedures in Sec. 655.100(b); all other provisions of the Final Rule will apply on the effective date of the Final Rule. These transition period procedures are designed to ensure that employers seeking to utilize the program immediately after its effective date, especially those with needs early in the planting season, will not be prejudiced by the new pre-filing requirements regarding wage determinations and recruitment, which might otherwise substantially impact employers' application timing. Because the Department's seasonal H-2A workload begins to peak in January of each year, however, the Department deems it essential to the smooth and continuous operation of the H-2A program throughout calendar year 2009 to make the rule effective as early in the year as possible. (c) Definitions 655.10Definition of ``agent,'' ``attorney,'' and ``representative'' The Department did not propose any changes to the definition of ``agent'' from existing regulations but added definitions for ``attorney'' and ``representative'' in the proposed rule. A major trade association commented that the definitions of, and references to, the terms ``agent,'' ``attorney'' and ``representative'' are confusing. The association found the definitions of agent and representative to be duplicative and the distinctions between these two terms, both of which encompass the authority to act on behalf of an employer, unclear. The association also commented that the definition of ``attorney'' is self- evident and appears to be a vehicle for permitting attorneys to act as ``agents'' or ``representatives.'' Further, according to the commenter, the term ``representative'' is also problematic and the Department should consider revising it or eliminating it entirely. The association believes the main purpose of the definition is to deem the person who makes the attestations on behalf of the employer a ``representative,'' but the association believes it is not clear whether the intent of the definition of ``representative'' is to also make the representative liable for any misrepresentations made in an attestation on behalf of an employer. The association recommended the proposed rule should clarify the intent of the definition of ``representative'' and also under what circumstances an agent will be liable for activities undertaken on behalf of an employer. The association recommended a clear set of standards for liability and suggested such standards should not deviate from the current standards where agents, attorneys, and representatives (under the proposed rule) are not liable if they perform the administrative tasks necessary to file labor certification applications and petitions for visas and do not make attestations that are factually based. In addition, the association recommended that the agents, attorneys, or representatives should not be liable for program violations by the employer. The Department understands the need for clarity in determining who qualifies as a representative before the Department and what responsibilities and liabilities attach to that role and has accordingly simplified the definition of a representative. Although the Department does distinguish between the different roles of attorneys and agents, both groups are held to the same standards of ethics and honesty under the Department's rules. Under the rules, attorneys can function as agents, and either attorneys or agents can function as a representative of the employer. The Department has, in addition, replaced the word ``official'' with ``person or entity'' to parallel the definition of agent. However, the Department disagrees with the commenter's interpretation of the extent to which an agent or attorney can be held accountable by the Department for their own and their clients' conduct in filing an application for an employer. While agents and attorneys are of course not strictly liable for all misconduct engaged in by their clients, they do undertake a significant duty in attestations to the Department regarding their employer-clients' obligations. They are, therefore, responsible for exercising reasonable due diligence in ensuring that employers understand their responsibilities under the program and are prepared to execute those obligations. Agents and attorneys do not themselves make the factual attestations and are not required to have personal knowledge that the attestations they submit are accurate. They are, however, required to inform the employers they represent of the employers' obligations under the program, including the employers' liability for making false attestations, and the prohibition on submitting applications containing attestations they know or should know are false. The debarment provisions at Sec. 655.118 of the final regulations have accordingly been clarified to state that agents and attorneys can be held liable for their employer- clients' misconduct when they ``participated in, had knowledge of, or had reason to know of, the employer's substantial violation.'' The same association also questioned why the Department is ``singling out attorneys'' in the definition of ``representative'' by requiring an attorney who acts as an employer's representative and interviews and/or considers U.S. workers for the job offered to the foreign worker(s) to also be the person who normally considers applicants for job opportunities not involving labor certifications. The association found no apparent rationale justifying why the Department should dictate who and under what circumstances an attorney or any other person should interview U.S. job applicants. It further recommended that the rule eliminate the reference to attorneys or, at a minimum, clarify that the rule does not reach attorneys who merely advise and guide employers through the H-2A program. The Department has accordingly clarified the definition of representative by deleting the sentence limiting the role attorneys can play in interviewing and considering workers, primarily because, unlike other labor certification programs administered by the Department, the relatively simple job qualifications that apply to most agricultural job opportunities render it unlikely that U.S. workers would be discouraged from applying for those jobs by the prospect of being interviewed by an attorney. A specialty bar association urged that the definition of ``agent'' be changed in order to prevent abuses related to foreign nationals paying recruiters' fees. The association suggested that the Department limit representation of employers to that recognized by DHS: attorneys duly licensed and in good standing; law students and law graduates not yet licensed who are working under the direct supervision of an attorney licensed in the United States or a certified representative; a reputable individual of good moral character who is assisting without direct or indirect remuneration and who has a pre-existing relationship with the person or entity being represented; and accredited representatives, who are persons representing a nonprofit organization which has been accredited by the Board of Immigration Appeals. The Department acknowledges that its allowance of agents who are not attorneys and who do not fit into the categories recognized by DHS creates a difference of practices between the two agencies. However, the Department has for decades permitted agents who do not meet DHS's criteria to appear before it. Agents who are not attorneys have adequately represented claimants before the Department in a wide variety of [[Page 77115]] activities since long before the development of the H-2A program. To change such a long-standing practice in the context of this rulemaking would represent a major change in policy that the Department is not prepared to make at this time. The Department has, however, added language to the definition of both ``agent'' and ``attorney'' to clarify that individuals who have been debarred by the Department under Sec. 655.118 cannot function as attorneys or agents during the period of their debarment. Definition of ``adverse effect wage rate'' The Department proposed a revised definition of ``adverse effect wage rate,'' limiting its application to only H-2A workers. A law firm commented that the proposed definition of ``adverse effect wage rate'' appears to apply only to H-2A workers and not to U.S. workers who are employed in ``corresponding employment.'' The Department has clarified the definition to make clear that those hired into corresponding employment during the recruitment period will also receive the highest of the AEWR, prevailing wage, or minimum wage, as applicable. The firm also requested the same revision to 29 CFR Part 501 regulations. The Department believes that this requirement is adequately explained in the text of the regulations at Sec. 655.104(l) and Sec. 655.105(g). Definition of ``agricultural association'' The Department added a definition for ``agricultural association'' in the proposed regulation. A major trade association commented that the proposed definition does not acknowledge that associations may be joint employers and suggests that the definition could cause confusion because other sections of the proposed regulation acknowledge that associations may have joint employer status. The association recommended the definition clarify that agricultural associations may serve as agents or joint employers and define the circumstances under which joint employer arrangements may be utilized. A professional association further commented that associations should not be exempt from Farm Labor Contractor provisions if the associations are performing the same activities as Farm Labor Contractors. The Department agrees that agricultural associations play a vital role in the H-2A program and seeks to minimize potential confusion about their role and responsibilities. The regulation has been revised to clarify that agricultural associations may indeed serve as sole employers, joint employers, or as agents. The definition of ``H-2A Labor Contractors'' has also been revised to clearly differentiate labor contractors from agricultural associations and that an agricultural association that meets the definition in this part is not subject to the requirements attaching to H-2A Labor Contractors. Finally, the regulation has been clarified by specifying that ``processing establishments, canneries, gins, packing sheds, nurseries, or other fixed-site agricultural employers'' can all be encompassed by agricultural associations. Definition of Application for Temporary Employment Certification The Department has added to the Final Rule a definition of Application for Temporary Labor Certification. An Application for Temporary Labor Certification is an Office of Management and Budget (OMB)-approved form that an employer submits to DOL to secure a temporary agricultural labor certification. A complete submission is required to include an initial recruitment report. Definition of ``date of need'' The Department slightly modified the definition of ``date of need'' to clarify that the applicable date is the one that is specified in the employer's Application for Temporary Employment Certification. Definition of ``employ'' and ``employer'' In the NPRM, the Department added a definition for ``employ'' and made revisions to the existing definition of ``employer.'' A trade association suggested that the Department eliminate the definition of ``employ'' but retain the definition of ``employer,'' stating that the definition of ``employ'' adds nothing to clarify status or legal obligations under the H-2A program. The association believes the status of an employer under the H-2A program is defined by the labor certification and visa petition processes and that the incorporation of the broad FLSA and MSPA definitions of ``employ'' insinuate broad legal concepts that add unnecessary confusion. The association further recommended that the Department eliminate the fourth criterion related to joint employment status in its proposed definition of ``employer'' and, instead, provide a separate definition of joint employer associations and the respective liabilities of the association and its joint employer members. The Department agrees with these comments and has, accordingly, removed the definition of ``employ'' as superfluous and created a separate definition of ``joint employment'' (using that portion of the definition of employer which discussed joint employers) to eliminate any confusion between the two terms. The definition of ``employer'' has also been revised. First, the Final Rule clarifies the proposal's statement that an employer must have a ``location'' within the U.S. to more specifically state that it must have a ``place of business (physical location) within the U.S.'' Second, out of recognition that some H-2A program users, such as H-2ALCs, are itinerant by nature, and that SWA referrals may thus occasionally need to be made to non-fixed locations, the Final Rule states that an employer must have ``a means by which it may be contacted for employment'' rather than a specific location ``to which U.S. workers may be referred.'' Finally, the Final Rule clarifies that an employer must have an employment relationship ``with respect to H-2A employees or related U.S. workers under this subpart'' rather than less specifically referring to ``employees under this subpart,'' and deletes the references to specific indicia of an employment relationship because the applicable criteria are spelled out in greater detail in the definition of ``employee.'' The definition of ``joint employer'' is modified slightly from the concept that appeared in the NPRM to clarify that the two or more employers must each have sufficient indicia of employment to be considered the employer of the employee in order to meet the test for joint employment. Definition of ``farm labor contracting activity'' and ``Farm Labor Contractor (FLC)'' The Department proposed adding definitions for ``farm labor contracting activity'' and ``Farm Labor Contractor (FLC)'' to this section. In the Final Rule, the Department has eliminated the definition for ``farm labor contracting activity'' and revised the definition for ``Farm Labor Contractor.'' The revised definition is now contained under the heading ``H-2A Labor Contractor.'' A law firm commented that neither agents nor attorneys should be required to register as H-2A Labor Contractors. The commenter did not specifically address why it believed agents and attorneys would be required to register under the proposed definitions, so the Department is unable to respond to this point. As a general matter, however, an agent or attorney, if performing labor contracting activities as they appear in the revised definition of an H-2A Labor Contractor, would be required to register [[Page 77116]] as, and would be held to the standards of, an H-2A Labor Contractor. A group of farmworker advocacy organizations commented that the definition proposed for Farm Labor Contractor (H-2A Labor Contractor) would exclude recruiters of foreign temporary workers from the scope of the rule, making enforcement impossible. This organization pointed out that under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), H-2A workers are not migrant or seasonal agricultural workers and, therefore, a contractor recruiting workers to become H-2A visa holders would not fit within the proposed regulatory definition. The organization also commented that the reference to ``fixed-site'' employers in the ``farm labor contracting activity'' definition could present problems in some employment situations, such as employment for a custom harvester, where the employer would not have a fixed site. An association of growers/producers suggested the MSPA definitions for ``farm labor contracting activity'' and ``Farm Labor Contractor'' should be used. In response to the comments, the Department has deleted the definition of ``agricultural employer'' and included a separate definition for ``fixed-site employer.'' The Department also deleted the definition of ``Farm Labor Contractor'' in the final regulation and replaced it with a new definition for ``H-2A Labor Contractor.'' This will differentiate the two terms since the definition of an ``H-2A Labor Contractor'' does not match the definition of a ``Farm Labor Contractor'' as used in MSPA, and the operational differences between the H-2A program and MSPA do not allow perfect parallels to be drawn between the two statutory schemes. The definition of ``farm labor contracting activity'' has been deleted as redundant since the activities have been made part of the definitions of ``fixed-site employer'' and ``H-2A Labor Contractor.'' Definition of ``joint employment'' The Department included in its definition of ``employment'' a reference to what would constitute ``joint employment'' for purposes of the H-2A program. The Department received one comment suggesting the inclusion of the definition of ``joint employment'' within the definition of ``employment'' was confusing. The Department has accordingly removed the last phrase from the proposed definition of ``employer'' and provided a separate definition for ``joint employment.'' Definition of ``prevailing'' The Department proposed a revision to the definition of ``prevailing'' to include, ``with respect to certain benefits other than wages provided by employers and certain practices engaged in by employers, that practice or benefit which is most commonly provided by employers (including H-2A and non-H-2A employers) for the occupation in the area of intended employment.'' This represented a change from the current rule, which does not refer to ``commonly provided'' practices or benefits but instead uses a percentage test (50 percent or more of employers in an area and for an occupation must engage in the practice or offer the benefit for it to be considered ``prevailing,'' and the 50 percent or more of employers must also employ in aggregate 50 percent or more of U.S. workers in the occupation and area''). The Department received comments on the change, specifically inquiring whether the SWAs would continue to conduct prevailing wage and practice surveys, and requesting that if the Department intends to no longer require SWAs to conduct prevailing wage and practice surveys, the change should be discussed in the preamble. The Department has determined that, to provide greater clarity and for ease of administration, the definition of ``prevailing'' will revert to the definition in the current regulation that requires that 50 percent or more of employers in an area and for an occupation engage in the practice or offer the benefit and that the 50 percent or more of the employers in an area must also employ in aggregate 50 percent or more of U.S. workers in the occupation and area. The Department notes it does not intend to change the provision on prevailing wage surveys currently undertaken by SWAs. The Department has included specific definitions for the terms ``prevailing piece rate'' and ``prevailing hourly rate,'' the two kinds of wage surveys that have traditionally been undertaken by SWAs, and has included express references to both types of surveys throughout the rule. Definition of ``strike'' The Department has been added to the Final Rule a definition for the term strike. The definition conforms to the changes explained in the discussion of Sec. 655.105(c), and clarifies that the Department will evaluate whether job opportunities are vacant because of a strike, lockout, or work stoppage on an individualized, position-by-position basis. Definition of ``successor in interest'' The Department's proposal included a debarment provision allowing for debarment of a successor in interest to ensure that violators are not able to re-incorporate to circumvent the effect of the debarment provisions. A national agricultural association commented that this provision as drafted could result in an innocent third party buying the farm of a debarred farmer and being subject to debarment, even though the successor is free of any wrongdoing, and thus the rule would place roadblocks on the sale of assets to innocent parties. The Department agrees with this commenter. We have addressed this issue by including a definition of ``successor in interest'' to make clear that the Department will consider the facts of each case to determine whether the successor and its agents were personally involved in the violations that led to debarment in determining whether the successor constitutes a ``successor in interest'' for purposes of the rule. Definition of ``United States'' The Consolidated Natural Resources Act of 2008, Public Law 110-229, Title VII (CNRA), applies the INA to the Commonwealth of the Northern Mariana Islands (CNMI) at the completion of the transition period as provided in the CNRA, which at the earliest, would be December 31, 2014. Accordingly, the H-2A program will not apply to the CNMI until such time. However, the CNRA amends the definition of ``United States'' in the INA to include the CNMI. It should be noted that the amendment to the INA of the definition of ``United States'' does not take effect until the beginning of the transition period which could be as early as June 1, 2009, but may be delayed up to 180 days. Accordingly, the Department has included CNMI in the definition of ``United States'' with the following qualification: ``as of the transition program effective date, as defined in the Consolidated Natural Resources Act of 2008, Public Law 110-229, Title VII.'' The Department will publish a notice in the Federal Register at such time that its regulations regarding the foreign labor programs described in the INA, including the H-2A program, will apply to the Commonwealth. Definition of ``Within [number and type] days'' The Department has added to the Final Rule a definition of the term within [number and type] days. The definition clarifies how the Department will calculate timing for meeting filing [[Page 77117]] deadlines under the rule where that term, in some formulation, appears. The definition specifies that a period of time described by the term ``within [number and type] days'' will begin to run on the first business day after the Department sends a notice to the employer by means normally assuring next-day delivery, and will end on the day that the employer sends whatever communication is required by the rules back to the Department, as evidenced by a postal mark or other similar receipt. Definition of ``Work contract'' The Department has added to the Final Rule a definition of the term work contract. The definition was borrowed from the definition section of 29 CFR part 501 of the NPRM, with minor modifications made for purposes of clarification. d. Definition of ``agricultural labor or services'' The Department proposed changes to the definition of ``agricultural labor or services'' to clarify, as in the current regulation, that an activity that meets either the Internal Revenue Code (IRC) or the Fair Labor Standards Act (FLSA) definition of agriculture is considered agricultural labor or services for H-2A program purposes and, more significantly, to remove limitations on the performance of certain traditional agricultural activities which, when performed for more than one farmer, are not considered agricultural labor or services under the IRC or the FLSA, including packing and processing. The Department received several comments supporting these changes, with some specific suggestions for additional changes. A major trade association complimented the Department on providing ``bright line'' definitional guidance regarding the activities that constitute agricultural work to be covered by the H-2A program as distinct from the H-2B program. A number of these commenters mentioned that the Department's inclusion of packing and processing activities in work considered as agricultural provides an option for obtaining legal workers, especially in light of the numerical limitations on H-2B visas. One association of growers/producers supported the expansion of the current definition to include packing and processing but suggested that agricultural employers who have previously used the H-2B program for packing or processing operations be allowed to continue using the H-2B program. Another association of growers/producers suggested that the definition be changed to allow product that is moving from on-farm production directly to the end consumer be included as permissible work for H-2A workers, and suggested that the definition provide that it is a permissible activity for H-2A workers to work on production of a purchased crop when the crop is purchased by a farm because of weather damage to that farm's crops in a particular year. The Department appreciates the general support for the proposed changes and has retained them in the final regulation. Regarding packing and processing activities, the proposed definition includes as agricultural activities ``handling, planting, drying, packing, packaging, processing, freezing, grading, storing or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity while in the employ of the operator of a farm.'' In response to the request to allow employers who have used the H-2B program for packing or processing operations to continue using the H-2B program, the Department has revised the definition to clarify that while the Department cannot permit H-2A workers and H-2B workers to simultaneously perform the same work at the same establishment, the distinctions between establishments at which operations of this nature should be performed by H-2A workers and those at which the operations should be performed by H-2B workers are too fine for the Department to reasonably distinguish between them with sufficient precision to establish a bright line test. The Department will therefore defer to operators as to whether the ``handling, planting, drying, packing, packaging, processing, freezing, grading, storing or delivering'' operations at their particular establishment are more properly governed by the H-2A or the H-2B program, but will not accept applications for both kinds of workers to simultaneously perform the same work at the same establishment. The Department agrees with the comment that H-2A workers should be permitted to work in the production of a purchased crop, as well as work in processing or packing a farm product that is moving from on- farm production directly to the end consumer. Moreover, the Department believes such activities are permitted by the definition in the proposed rule and therefore the provision requires no additional language in the Final Rule. The Department has clarified the Final Rule to reflect existing law, which provides that work performed by H-2A workers, or workers in corresponding employment, which is not defined as agriculture under Section 3(f) of the Fair Labor Standards Act, 29 U.S.C. 203(f), is subject to the provisions of the FLSA as provided therein, including the overtime provisions in Section 7(a)(29 U.S.C. 207(a)). Incidental Activities The Department also proposed clarifications to reflect that work activity of the type typically performed on a farm and incident to the agricultural labor or services for which an H-2A labor certification was approved may be performed by an H-2A worker. A number of commenters, including a professional association, a major trade association, and several associations of growers/producers supported this change, stating that it was positive and would provide more flexibility for employers. A major trade association commented this change would allow employers to include duties in H-2A certified job opportunities that reflect the actual duties performed by farm workers and further commented that, ``[p]resumably the provision will cover a farm worker who engages in incidental employment in the farm's roadside retail stand, a farm worker who assists in managing `pick your own' activities, and a farm worker who occasionally drives a tractor pulling a hay wagon for a hay ride, to cite a few examples of incidental activities customarily performed by farm workers that have been disallowed in the past.'' This commenter's understanding of the Department's interpretation is correct. One association of growers/producers commented that allowing H-2A workers to perform duties typically performed on a farm benefits the employee as well as the employer. A trade association commented that being able to use workers in other jobs not listed on the contract is needed, particularly when weather prevents field work. The Department has revised the wording in the definition of ``agricultural labor or services'' provided in Sec. 655.100(d)(1)(vi) to provide additional clarity for employers. The definition now reads: ``Other work typically performed on a farm that is not specifically listed on the Application for Temporary Employment Certification and is minor (i.e., less than 20 percent of the total time worked on the job duties that are listed on the Application for Temporary Employment Certification) and incidental to the agricultural labor or services for which the H-2A worker was sought.'' The Department recognizes that, due to the unpredictable nature of weather [[Page 77118]] conditions and agricultural work itself, employers need some flexibility in assigning tasks, and that it would be difficult if not impossible to list all potential minor and incidental job responsibilities of H-2A workers on the Application for Temporary Employment Certification. The proposed amendment of the definition is intended to recognize the reality of working conditions at agricultural establishments and ensure that an H-2A worker's performance of minor and incidental activity does not violate the terms and conditions of the worker's H-2A visa status. The further revision to the definition will assist employers in determining whether activities or work not included on the Application for Temporary Employment Certification can reasonably be considered as minor and incidental. Inclusion of Other Occupations The Department proposed to include logging employment in its definition of ``agricultural labor or services'' for purposes of the H- 2A program. Two commenters voiced their support for this inclusion; we received no comments in opposition. The Department also sought comments as to whether there are other occupations that should be included within the definition of agriculture used in the H-2A program. The Department received several suggestions of other industries that should be considered, including livestock and dairy producers, fisheries, nurseries, greenhouses, landscapers, poultry producers, wine businesses, equine businesses, turf grass growers, mushroom producers, maple syrup producers, and employers engaging in seasonal food processing as well as growers who operate processing and packing plants. Of those requesting expansion of the definition to include other occupations, representatives of the dairy industry submitted the most comments. A major trade association and a number of associations of growers/producers commented that the dairy industry is unable to use the H-2A agricultural worker visa program and that this exclusion is unfair. They stated dairy farmers need and deserve the same access to legal foreign workers as other sectors of the agricultural industry. The association suggested that H-2A visas for dairy workers should last at least three years rather than one. Two trade association commenters stated they understood the importance under the statutory definition of H-2A workers needing to be temporary or seasonal, but not why the jobs themselves needed to be temporary or seasonal. A farm bureau provided comments suggesting dairy and livestock operations should be allowed to designate seasonal jobs within their operations for which H-2A workers could be employed. This association commented that current worker patterns suggest typical milkers stay in their positions for 9 to 10 months and then voluntarily leave, but return to seek a job after 2 to 3 months. The Department also received comments from an association of growers/producers and from two individual employers requesting that reforestation work be considered as agricultural labor. These commenters assert that there are reforestation activities including planting, weed control, herbicide application and other unskilled tasks related to preparing the site and cultivating the soil and that workers who perform these tasks deserve consideration for eligibility for H-2A visas, as do workers who perform the same or similar tasks in cultivating other agricultural and horticultural commodities on many of the same farms. These commenters also pointed out that workers performing reforestation tasks for farmers or on farms are clearly agricultural employees under the FLSA and, additionally, believed the Internal Revenue Code supports their position for considering reforestation work performed on a farm or for a farmer as agricultural labor or services. Following review of the comments discussed above, the Department has decided the definition of agriculture should not be further expanded at this time and no additional activities have been selected for inclusion as agricultural activities beyond those included in the NPRM. In most cases where there was the suggestion for the inclusion of a particular industry or activity in the definition of agriculture there was not strong support for the inclusion by representatives of that industry, as indicated by the number and source of the comments received. For example, one commenter supported adding maple syrup harvesting and ancillary activities to the definition of agricultural labor. The suggestion did not come from someone actually involved in the maple syrup industry, however, but rather from a State Workforce Agency. While the Department appreciates the input of such commenters, it would be inappropriate to impose on those industries (most of which currently qualify for the H-2B program rather than the H-2A program) changes that the industry itself did not seek. The two exceptions to this pattern in the comments were the dairy industry and the reforestation industry, both of which, as discussed above, submitted comments evidencing industry-based support. The Department's analysis of the comments from the dairy industry, however, indicates it is not the program's definition of agriculture, which already includes dairy activities, that presents a potential barrier to the industry's use of the H-2A program, but rather the statutory requirement for the work to be temporary or seasonal in nature. The H-2A program, by statute, provides a means for agricultural employers to employ foreign workers on a temporary basis. Many dairy- related job needs, however, appear to be year-round and permanent in nature. While the H-2A program is specially designed for agricultural employers, they are not limited to using only the H-2A program. The employment-based permanent visa program is also open to agricultural employers with a permanent need for which they are unable to secure U.S. workers. At the same time, year-round operations are permitted to seek certification to utilize H-2A workers for seasonal or temporary jobs within their industries when they can substantiate the temporary or seasonal nature of the jobs. The Department recognizes that an employer may have both permanent and temporary jobs in the same occupation. However, employers should be aware that the Department does not typically approve subsequent applications requesting foreign workers for the same position when, taken together, those applications would cover a continuous period of time in excess of 10 months, unless exceptional circumstances are present. The comments from the reforestation industry, while thoughtful, represented the input of only two individual employers and a single employer association who do not necessarily provide a representative sample of the entire reforestation industry. The Department is reluctant to overturn the regulatory practices of several decades and impose the significant obligations of an H-2A employer on an entire industry without significant input from that industry. While the Department is willing to further explore whether to include the reforestation industry in the definition of agriculture, it does not believe a decision to do so is warranted at this time. ``On a seasonal or other temporary basis'' The Department proposed a definition of the key terms ``on a seasonal or other temporary basis'' in the definition of agricultural labor or services in the NPRM that continued the interpretation of the current regulation. We received several comments related to the phrase ``on a seasonal or other temporary basis.'' A trade association suggested the rule borrow the temporary and seasonal concepts from the Migrant and Seasonal Agricultural Workers Protection Act (MSPA) definitions that are appropriate in an H-2A context without incorporating the MSPA regulations and related judicial precedent. It was the association's belief that this approach would allow an H-2A worker to be admitted for longer than a 10-month period. An association of growers/producers suggested the definition of temporary or seasonal should apply to the worker rather than the job and also that year-round farming operations/nurseries should be allowed to access a workforce to provide year-round services by rotating ``shifts'' of workers with different contract/visa periods. Another trade association also suggested the definition and interpretation of temporary and seasonal could be expanded. The Department does not agree that the definition of temporary or seasonal should focus on the worker rather than the job. The INA is clear that the employer must have a need for foreign labor to undertake work of a temporary or seasonal nature for which it cannot locate U.S. workers. The Department's position has traditionally been that job opportunities that are permanent in nature do not qualify for the H-2A program. The controlling factor is the employer's temporary need, generally less than 1 year, and not the nature of the job duties. See Matter of Artee Corp., 18 I&N Dec. 366 (Comm. 1982); see also Global Horizons, Inc. v. DOL, 2007-TLC-1 (November 30, 2006) (upholding the Department's position that a failure to prove a specific temporary need precludes acceptance of temporary H-2A application); see also 11 U.S. Op. Off. Legal Counsel 39 (1987). An H-2A worker could, however, be employed continuously by successive H-2A employers having a temporary need for the worker's services and thus be employed and remain in the U.S. for a period beyond one year. In addition, the Department has made several edits to the Definitions section of the NPRM to provide consistency with other changes to the regulatory text and to clarify the Final Rule. For example, the definition of ``Application for Temporary Employment Certification'' has been amended to help ensure the public has a clear understanding of what this regulation requires. Other definitions, such as ``temporary agricultural labor certification determination'' and ``unauthorized alien,'' have been eliminated because they are not used in this regulation. We have also made non-substantive changes to provide clarity and to comport with plain English language requirements. Section 655.101 Applications for Temporary Employment Certification in Agriculture (a) Instituting an Attestation-based Process The Department proposed instituting an application requiring employers to attest to their adherence to the obligations of the H-2A program. The Department received several comments in favor of the new process, several opposed, and others generally in favor but suggesting changes to the process as outlined in the Department's proposal. Some commenters believed that attestations to future events should not be required, and that attestations should be made under the ``applicant's best knowledge and belief'' standard and not the ``under penalty of perjury'' standard because applicants cannot know what will happen in the future. The Department believes that the attestations the Final Rule requires employers to make do not require employers to predict future events, but rather represent straightforward commitments to comply with program requirements. Such compliance is fully in the control of the employer. It is, therefore, not necessary to delete or modify the manner in which attestations are made. (1) Support for an Attestation-based Process Those commenters who favored the shift to an attestation-based process generally believed the new process would make the H-2A application more efficient and less burdensome for employers. One State government agency commented that the process would enable the SWAs to focus on job orders, referrals, and housing inspections while relieving them of the burden to review the applications themselves. Another commenter supported the shift but encouraged the Department to ensure the ``Administrator * * * acquires the agricultural expertise necessary to provide training and guidance to those who are reviewing and overseeing the operating of a program that is critical to future U.S. agricultural production.'' The Department appreciates support for its proposed process. As of June 1, 2008, the Department has centralized the Federal processing of all applications for H-2A temporary foreign workers in the Chicago National Processing Center. This centralization will enhance the Department's ability to handle the expected increases in the usage of the H-2A program and ensure consistency in application of program requirements. The Department recognizes the unique needs and timeframes associated with this program and anticipates that centralization will lead to the development of greater expertise to meet those needs and timeframes. It also believes that centralized processing of applications will facilitate the identification of areas where program training should be enhanced and that the centralized environment will maximize the effectiveness of such training. An association of growers/producers supported the attestation-based process but found the process, as described in the proposed regulation, confusing and duplicative. This commenter requested that all of the attestation requirements be consolidated into one rule clearly stating which facts are to be verified. The Department appreciates the commenter's suggestion about consolidation of the attestation requirements and, as provided in the proposal, has retained the comprehensive listing of the requirements in Sec. 655.105, ``Assurances and Obligations of H-2A Employers'' and Sec. 655.106, ``Assurances and Obligations of H-2A Labor Contractors.'' It was not clear if this commenter was requesting a consolidated listing of the attestations required by both the Departments of Labor and Homeland Security. The Department of Labor is including in the comprehensive lists only those attestations that DOL requires. The commenter did not include specific examples of duplication or confusing information and the Department, therefore, is unable to provide any further response. (2) Legality of the Attestation-based Process Several of the commenters who opposed the change asserted an attestation-based process conflicts with the statutory mandate in Section 218 of the INA (8 U.S.C. 1188). These commenters interpreted the INA to require the Department to make a determination based upon an active verification of the H-2A application. One group commented that the attestation process violates the statute's Congressional mandate. Two organizations expressed the belief that the certification process has always been understood to require active oversight by the Department of the employer's recruitment and hiring of U.S. workers as well as the details of the job offer. One commenter, an advocacy organization, voiced the opinion that the statutory standard is not whether the employer has made adequate assurances that it has or will meet the obligations of the H-2A program but is whether the employer has actually met them. Another commenter opined that labor certifications were not meant to be attestation-based and that this approach will dramatically reduce government oversight of this program. These commenters believe that the Secretary will not be able to certify that wages and working conditions have not been adversely affected and that this regulation is contrary to the statute. The attestation-based process implemented by the Final Rule is not inconsistent with any statutory requirements, but rather is a reasonable means selected by the Department to fulfill its statutory responsibilities. The Department does not interpret Section 218 of the INA to specify a particular methodology that the Department must employ to determine that all of the statutory criteria have been met, and indeed, various aspects of the Department's methodology have changed through the years. The attestation-based system, backed by audits, that is implemented by the Final Rule is an acceptable means, within the reasonable discretion of the Secretary, for the Department to ensure that the statutory criteria for certification are met and that program requirements are satisfied. Similar approaches have been used by the Department in other contexts (such as approval of permanent labor certifications) to fulfill its statutory responsibilities. Indeed, as discussed in greater detail in various sections below, under the statutory time limits for filing applications and issuing certifications the Department typically makes certification determinations on applications prior to the completion of many of the recruitment requirements and without any direct observation or inspection by the Department or its SWA agents that rental housing secured by employers complies with all of the applicable legal standards. No system for review and approval of applications, of course, is foolproof, and the statute prescribes appropriate penalties for situations in which the terms of approved labor certifications are later violated. See 8 U.S.C. 1188(b)(2)(A). There will always be bad actors who attempt to circumvent program requirements. Employers sometimes violate program requirements under the current H-2A application process, and the Department has also detected violations in other foreign worker programs it administers. Under the final rule, the Department will have more enforcement tools at its disposal than ever before to deal with such violations. The Department believes that the attestation-based process fully complies with all statutory requirements and, when utilized in concert with a strong audit and review process, represents the best means for the Department to deploy its limited resources in a manner that ensures that statutory timelines are met and that the program's integrity is maintained. (3) Protections for U.S. Workers in an Attestation-based Process Several commenters believed the proposed attestation-based process would not provide adequate protections for U.S. and H-2A workers because it would reduce the oversight responsibilities of the Department. Some of these commenters also said the current system should be maintained to ensure that the Department oversees worker protection, especially in the areas of housing and wages. An organization commented that while this change may ease the application process for employers it ignores the damage that could be caused by false attestations and a lack of active oversight of the job terms, recruitment, and hiring of U.S. workers. A farmworker advocacy organization questioned the change to an attestation-based process claiming there is a long history of labor abuse in agriculture and saying they believed that when ``self-inspection procedures'' are implemented they are generally based upon a prior record of compliance and an accompanying determination that resources would be better utilized in another pursuit. Another farmworker advocacy organization commented that the attestation-based process, as proposed, would further remove and diminish the Department's role in assuring all reasonable efforts to locate U.S. workers had been exhausted before foreign guest workers could be certified. Another commenter voiced concern that the proposed process would eliminate the current process of follow-up correspondence that has been instrumental in ensuring that employers have actually undertaken the required recruitment steps. A worker advocacy organization commented the proposed process, with its emphasis on meeting paper requirements, would be ``ill suited to deal with the inherent disparities in bargaining power between U.S. agricultural employers and impoverished workers from the developing world.'' The Department believes these commenters' concerns, while not invalid, are substantially resolved by the safeguards that have been built into the new process. The new program model emphasizes compliance through enforcement mechanisms such as audits, revocation of approved certifications, and debarment from the program. In light of these enforcement tools, employers will have a substantial incentive to be truthful in their representations that they cannot find U.S. workers willing to engage in agricultural work at the appropriate wage, because good-faith compliance with program obligations is necessary to maintain continued access to a legal nonimmigrant workforce. Because the rule requires pre-filing recruitment, the Department will also have an opportunity to review recruitment reports and (through its SWA partners) to conduct housing inspections before applications are approved. Job orders must also be reviewed, approved, and circulated by the SWAs before labor certifications can be granted, making it impossible for even bad actor employers to entirely circumvent the program's core recruitment requirements. Finally, it is worth noting that the bulk of the program's requirements, including requirements to pay workers at prescribed rates, maintain housing conditions, and provide transportation that complies with applicable safety requirements, have always been, and must necessarily be, enforced by the Department after the labor certification has been granted. Although not a factor in our evaluation of the comments here, the Department also notes that many commenters who opposed the attestation- based system in this rulemaking, claiming that it will adversely affect U.S. workers, have enthusiastically endorsed proposed legislation before the U.S. Congress that would in fact mandate that the Department adopt an attestation-based application system in the H-2A program. Those organizations in their comments on this rulemaking made no attempt to explain their contradictory public positions regarding the merits of an attestation-based application system. (4) Improvements for Employers in an Attestation-based Process Several commenters questioned whether the proposed process would yield a simplified process for employer applicants. These commenters believed the new process requires the same amount of paperwork and only relieves employers of submitting documentation while at the same time imposes [[Page 77121]] additional requirements including post-filing audits, increased penalties, and a five-year records retention requirement. Several commenters were concerned that the attestation-based process would lead to increased liabilities for employers. The Department does not believe that employers, attorneys, and agents wishing to comply with program obligations will be adversely affected by the institution of an attestation-based process. The process is designed to give employers specific notice of the assurances they are making to the Department and what their obligations are. Once the employer is on notice of those assurances, it is better able to understand what it must do to comply with H-2A requirements and to conform its conduct to those requirements. A trade association of agricultural employers agreed with the shift to an attestation-based process but believed the process as outlined in the proposed regulations was not a true attestation-based process and recommended the process used in the H-1B program serve as a model. Other commenters also recommended use of a process similar to the one used in the H-1B program. Several commenters also suggested that the Department combine the Application for Temporary Employment Certification with the I-129 petition for simultaneous submission to the Departments of Labor and Homeland Security. In response to the proposals to convert the proposed attestation- based process into a process modeled after the H-1B labor condition application, the statutory differences between the two programs are sufficiently substantial to make such an idea impractical. In the H-1B program, the Department is statutorily limited to reviewing the attestations made by an employer for ``completeness and obvious inaccuracies.'' 8 U.S.C. 1182(n)(1)(G)(ii). The Department believes the different H-2A statutory language suggests that a different application and review process is appropriate for the H-2A program. The Department appreciates the suggestion that simultaneous submissions to the Department and DHS could lead to further application efficiencies for employers. However, the Department believes that the complexity of the current statutory requirements for the H-2A program would make it unworkable to combine the Department's application with the petition submitted to DHS. A proposal presented by the Department several years ago to employ such a process in the H-2B program for temporary nonagricultural workers was met with significant opposition. To attempt to undertake a similar process with the significantly more complex H-2A program does not appear feasible at this time. Some commenters appeared not to understand the proposed attestation process. The Department received comments stating that it is not clear what should be included with the attestation. The Department has accordingly clarified in the Final Rule that the application must be accompanied by the prevailing wage determinations obtained in anticipation of the recruitment for the application as well as the initial recruitment report. The employer will be required to keep all other supporting documentation in case of an audit, which means the employer should keep all records relating to compliance with the H-2A program, including advertising, job orders, recruitment logs/reports, and housing inspection requests. To eliminate any lingering confusion over document retention requirements, the Department has spelled these out in a new regulatory section (Sec. 655.119) in this Final Rule. (b) SWA Involvement/Application Submission The NPRM revised the application submission requirements by proposing to have employers submit applications only to the NPC rather than to both the NPC and SWA as currently required. Most of the comments received about this proposal were in favor of it, but a few commenters expressed concerns about the reduced role for SWAs. One person commented that eliminating the SWA involvement would leave employers who seek assistance and guidance from the government in completing applications more disposed to making errors and would increase their potential liability. A farmworker advocacy organization commented that SWA knowledge has proven useful to workers in the past and that the advantage of SWA involvement is the detailed knowledge their experienced staff can bring to bear about local agricultural practices and the use of agricultural labor in their area. The commenter also believed that the proposed process, which requires the employer to place a job order with the SWA, means that the SWA must take on faith that the employer's job offer is consistent with the terms of the H-2A application because the SWA will no longer receive a copy of the application. This organization recommended that applications should be filed with the SWA as well as the NPC so the SWA could advise the NPC if the application did not appear legitimate. A growers and producers association believed retaining responsibility for the substantive review by the NPC staff could remain a problem because of their lack of expertise related to agriculture. A State governor suggested the process could be improved by eliminating the Department from the process. The governor believes the States know their agricultural industry better, can resolve issues more quickly, and are in the best position to identify and enforce sanctions against fraud. Conversely, a professional association of immigration attorneys recommended the SWA be eliminated from the recruitment process and, alternatively, the employer handle all recruitment for the positions, including accepting applications received as a result of a job order placed by the SWA in the interstate and intrastate system. The Department remains committed to modernizing the application process and continues to believe the submission of applications directly to the NPC is the most effective way of accomplishing this goal. Eliminating the SWAs' participation in the application review process will provide more efficient review of applications, as well as greater consistency of review. The Department disagrees that NPC staff have insufficient knowledge of the agricultural industry; to the contrary, NPC reviewers who have handled H-2A applications have, in some cases, more experience with such applications than many SWA staff. The SWAs will, moreover, continue to play an important role in the H-2A application process. SWAs will be responsible for posting job orders, both intrastate and interstate, under Sec. 655.102(e) and (f) and 20 CFR Part 653, thus reducing the risk for employers to make mistakes with respect to job descriptions, minimum requirements, and other application particulars. SWAs will review the job offer, its terms and conditions, any special requirements, and the justifications therefor. As part of their duties to post job orders pursuant to 20 CFR Part 653, SWAs will also refer eligible workers to employers as well as conduct housing inspections and follow up on deficiencies in the job order. Finally, SWAs will continue an active role in conducting prevailing hourly wage, prevailing piece rate, and prevailing practice surveys. Two commenters noted potential coordination or communication issues could result when the SWA did not also receive the application. One commenter was concerned there would be no assurance that the job order posted by [[Page 77122]] the SWA would be the same as that on the application. The other commenter pointed out the proposed regulations provided that the SWA receive a copy of the notice of deficiency when one was issued, but the SWA would not have a copy of the submitted application and thus could have inadequate information to be of assistance to the involved employer. An association of growers/producers recommended the Department provide training to H-2A employers about the need to send a formal request to the SWA to request a housing inspection and also recommended the Department notify the SWA when an application was received for processing so the SWA could, in turn, contact the employer. The Department appreciates the concerns about the need for communication between the NPC and the SWA and reiterates that there was never any intent to eliminate the SWA from all H-2A activity. As discussed above, SWAs remain an integral partner in key respects: The placing of the intrastate/interstate job orders, conducting prevailing hourly wage, prevailing piece rate, and prevailing practice surveys, referring eligible workers, and conducting housing inspections, all activities for which SWAs will continue to receive grants from the Department. Moreover, nothing in the regulations precludes the Department from contacting SWAs, where there is reason to believe that it is necessary, to verify that the terms in the employer's Application for Temporary Employment Certification are consistent with the terms of the job offer.\2\ However, SWAs will no longer process H-2A applications. Accordingly, to minimize confusion about roles and responsibilities, the Department has removed from Sec. 655.107(a)(3) (Sec. 655.107(b) of the Final Rule) the provision requiring that SWAs be sent deficiency notices. --------------------------------------- \2\ There is also no prohibition preventing a SWA from contacting the Department to ensure that the employer's job order and Application for Temporary Employment Certification are consistent. As a practical matter, a SWA will rarely be able to do so before posting a job order, because Applications for Temporary Employment Certification generally are not filed with the Department under the Final Rule until at least 15 days after the job order has been submitted to the SWA. Communication between SWAs and the Department has always been essential to identifying and putting a stop to deceitful employer behavior, however, and the Department expects that such communication will continue under the Final Rule. --------------------------------------- (c) Electronic Filing The Department invited comments on the concept of a future electronic filing process for the H-2A program and received comments supporting the concept, although some also included suggestions for on- line training, the establishment of a toll-free help line, and an outreach and education component. A trade association recommended that a paper-based option should also remain available. One commenter noted that the Department did not provide an effective date for the electronic filing process. The Department appreciates the support for electronic filing and is in the process of developing a system that will include the ability to complete and submit an application form online with sufficient security (PIN numbers, features to deter fraud and maintain system integrity, electronic notifications, etc.). The Department is aware of the need to provide outreach and training prior to the implementation of electronic filing and will involve user groups in these efforts. Additionally, the Department will ensure an adequate notice process and timeframe for transitioning to a new or revised electronic application system. (d) H-2A Labor Contractor Applications The Final Rule has been clarified slightly to more clearly state the obligations of H-2A Labor Contractors in filing applications. The proposed rule stated that H-2ALCs must have a place of business in the United States ``to which U.S. workers may be referred.'' Because H- 2ALCs may be mobile, however, and because referrals during the season may need to be made to whatever location an H-2ALC is working at rather than to the physical location of the H-2ALC's place of business, the final rule has been modified to state that H-2ALCs must have a place of business in the United States ``and a means by which it may be contacted for employment.'' This slightly modified requirement will ensure that referrals can be made to H-2ALCs during the course of a season (where such referrals are provided for by the Final Rule), and that U.S. workers will have a means of contacting the H-2ALC to secure employment. All other changes made to the paragraph on filing requirements for H-2ALCs were purely stylistic and made for purposes of clarity. (e) Master Applications Both the current and proposed regulations require an association of agricultural producers filing an application to identify whether the association is the sole employer, a joint employer with its employer- members, or the agent of its employer-members. Although the current regulations do not specifically describe a ``master application'' that can be filed by associations, they are clearly contemplated by 8 U.S.C. 1188(d), and the Department has permitted them to be filed as a matter of practice. See 52 FR 20496, 20498 (Jun. 1, 1987) (cited in ETA Handbook No. 398). The Department received several comments objecting to the omission of a provision in the NPRM for the filing of master applications. An association of growers/producers commented that the Department should encourage agricultural employers in small commodity groups or large associations of employers to jointly participate in the H-2A program, as this will make processing more efficient for both the Department and farmers. Another association of growers/producers stated that using an association application is the only possible solution for the H-2A program to accommodate growers who need harvest workers for a short period of time (one month or less). A major trade association also commented that the master application significantly reduces the paperwork and bureaucratic burden for the associations and its members, as well as for the Department. A major trade association and other associations of growers/ producers recommended that the Department retain and improve the master application process and fully incorporate it into the H-2A regulatory structure. The association recommended the master application also be simplified as part of the new H-2A application process. It recommended the regulations include the essential components of the master application process that has been followed in practice, including the filing of one application on behalf of multiple employers seeking workers in virtually the same occupation, permitting the association to place the required advertisements and conduct the required positive recruitment on behalf of all participants but without the listing of every individual employer in the advertisement as currently required, permitting referral of workers to the association, and allowing the association to place workers in the job opportunities. The association further recommended the master application process also apply to applications filed by associations acting as agents. The statute governing the H-2A program requires that agricultural associations be permitted to file H-2A applications, see 8 U.S.C. 1188(d), and that they be permitted to do so either as agents or as employers, see 8 U.S.C. 1188(c)(3)(B)(iv) and (d)(2). Consequently, the Department has, as a matter of longstanding practice, accepted master applications from agricultural associations. In response to the comments received on this subject, the Department has decided to include specific language concerning such applications in the regulation text at Sec. 655.101(a)(3). The basic theory behind master applications is that agricultural associations should be able to file a single H-2A application on behalf of all their employer members in essentially the same manner that a single employer controlling all the work sites and all the job opportunities included in the application would. Two important limitations apply to such applications. First, all the workers requested by the application must be requested for the same date of need. If an agricultural association needs workers at different times, it must file a separate Application for Temporary Employment Certification for each date of need, just as a single employer would. Second, the combination of job duties and opportunities that are listed in the application must be supported by a legitimate business reason, which must be provided as part of the application. The purpose of this limitation is to prevent agricultural associations from creating undesirable combinations of job duties and opportunities for the sole purpose of discouraging U.S. workers from applying for the jobs. So long as a legitimate business reason exists supporting the combination presented, however, the Department will deem it acceptable. An acceptable business reason for a combination of job duties and opportunities could include, for example, the efficiencies that closely proximate employers expect to gain from having access to a flexible, readily available pool of workers, even though the employers in question do not grow the same crops, which may be necessary for agricultural employers to deal with uncertain and weather-dependent planting and harvesting times. The Department is aware that this may mean that at times a U.S. worker wishing to perform only one type of job duty, such as picking asparagus, may be required to perform an additional job duty, such as harvesting tobacco, in order to secure an agricultural job with that association. It is not at all uncommon, however, for jobs in the United States to include multiple job duties, some of which workers may view as more desirable than others. Indeed, many job opportunities offered under the current H-2A regulations include multiple job duties, some of which may be more desirable than others. There is nothing in the statute governing the H-2A program indicating that Congress intended to require agricultural employers to allow prospective workers to selectively choose which job duties they want to perform and which job duties they do not, with regard to a particular job opportunity. The Department is requiring that combinations of job duties be supported by a legitimate business reason to prevent the deliberate and unnecessary discouragement of U.S. workers from applying for job opportunities, but the Department does not believe that further restrictions on job duty combinations are warranted or necessary to fulfill the statutory criteria for certification. (f) Timeliness of Filing Application As required by statute, the provision stating a completed application is not required to be filed more than 45 calendar days before the date of need was retained in the proposed rule. The Department has continued that requirement in Sec. 655.101(c). The Department received some suggestions for changes to the proposed timeframes for submitting applications. Two commenters suggested the Department should at least provide the employer with the option of applying not more than 45 days before the date of need, undertaking the recruitment after the application has been accepted, and continuing to accept referrals under the 50 percent rule. The Department may not require an application to be filed more than 45 calendar days before the date of need under 8 U.S.C. 1188(c). The Department does not agree with the suggestion for offering employers the option of applying not more than 45 days prior to the date of need, doing post-acceptance recruitment, and continuing to accept referrals under the 50 percent rule. Given the need to maintain consistency in the program's requirements, the Department cannot offer varying options for recruitment timeframes. (g) Emergency Situations The NPRM did not contain the current regulatory provision (currently found at Sec. 655.101(f)(2)) allowing the Administrator/ OFLC to waive the required timeframe for application submission for employers who did not use the H-2A program during the prior agricultural season or for any employer for good and substantial cause. The Department received a number of comments objecting to its elimination. A major trade association stated the elimination would preclude many employers from legalizing their workforce simply because their decision to join the program was made too late to meet the required timeframes. Another major trade association commented that a provision allowing filing after the deadline is even more essential because the de facto deadline for meeting requirements under the final regulation is further in advance of the date of need than the current requirement. One association of growers/producers cited the situation following Hurricane Katrina when many employers needed to secure additional H-2A workers as an example of the need for an emergency application process. Most of those requesting that the provision for an emergency application be reinstated also commented that if an emergency application is filed in an area of intended employment and for a job opportunity for which other employers have previously been certified for the same time frame, the emergency application should be certified immediately. These commenters also suggested that post-application recruitment could be extended for emergency applications to ensure that their availability would not create an incentive to avoid the pre- filing recruitment efforts. The Department agrees that a provision allowing the Certifying Officer (CO) to waive the required timeframe for submission of applications in emergency situations is necessary and has included such a provision in the Final Rule at Sec. 655.101(d). The provision, which substantially replicates the current regulatory provision governing emergency situations, requires submission of a completed application, except for the initial recruitment report that would otherwise be required, and a statement of the emergency situation giving rise to the waiver request. The emergency situation giving rise to a request for a waiver may include a lack of experience with the H-2A program obligations (including housing and transportation requirements) or for other good and substantial cause. The Department anticipates that employers who were non-users of the program during the previous year may fail to meet the filing deadline due to miscalculation of the time needed to complete the application. The Department will entertain waiver requests from employers in this situation but will consider them only after first verifying that the employer did not use the program during the prior year. The Department is not providing an explicit definition of good and substantial cause in order to preserve flexibility when faced with unanticipated situations or conditions. We have provided some examples in the regulatory text to assist employers in determining what might constitute sufficient cause warranting a waiver. One example provided is a dramatic change in the weather conditions resulting in a substantial change to the anticipated date of need for H-2A workers with significant attendant crop loss unless the waiver is granted. However, the employer must be able to demonstrate that the situation or condition leading to the request for a waiver was genuinely outside of the control of the employer. The Department is requiring, in the Final Rule, that the employer who requests a waiver must conduct some recruitment as a condition for obtaining that waiver. The employer will be required to submit a job order to the relevant SWA(s) and conduct positive recruitment from the time of filing the application until the date that is 30 days after the employer's date of need. The SWA must transmit the job offer for interstate clearance as in a normal application process. We have also added a provision that requires the CO to specify a date upon which the employer must submit a recruitment report consistent with the requirements of this part. The Department recognizes that the suggestions that waivers be approved if other applications for similar occupations and dates of need in the same geographic locations have been previously certified are intended to expedite the process. However, each application is unique and the Department must consider each request on its own merits, and therefore does not believe it should commit to approving requests solely because there have been prior approvals for employers with similar job opportunities and dates of need in the same area. Finally, the Department made changes in Sec. 655.101 to conform to other changes made to the rule. Such changes include, but are not limited to, changes to clarify a potential electronic filing of future applications. In addition, the Department has made non-substantive changes to enhance readability. Section 655.102 Required Pre-Filing Activity The Department has changed the title of this section from ``Required Pre-filing Recruitment'' to ``Required Pre-filing Activity'' to include the activities other than recruitment that are discussed in this section. (a) Section 655.102(a) Time of Filing of Application The NPRM proposed requiring that applications be filed at least 45 days before the employer's date of need (as required by statute) with a pre-filing recruitment period commencing no more than 120 days prior to the date of need and not less than 60 days prior to the date of need. The Department received a number of comments on the change to a pre- filing recruitment framework and the related timing for that recruitment. The Department received multiple comments opposing this proposed timeframe; several commenters were generally opposed to the expanded timeframe and others raised more specific concerns. Several commenters questioned the Department's legal authority for a shift to pre-filing recruitment. The Department also received comments arguing that the proposed pre-filing recruitment requirement has the effect of moving the deadline for filing an application. Several commenters argued that the proposed requirement that employers begin recruitment earlier than they are required to file applications would be inconsistent with the Congressionally set timeframes and thus beyond the Department's statutory authority. The Department disagrees strongly with the premise that its revised recruitment steps are a violation of the statute. The INA is clear that the Department may not require an application for labor certification to be filed more than 45 days prior to the date of need. See 8 U.S.C. 1188(c)(1). The statute is silent on how the Department implements the certification process: It does not specify when the recruitment of U.S. workers should take place, whether prior to or subsequent to filing. The INA clearly contemplates at 8 U.S.C. 1188 that recruiting U.S. workers is a separate activity from filing and considering applications, and the statute does not provide any express timeframes during which recruitment must be conducted. There is thus nothing in the statute that prevents the Department from requiring employers to recruit before filing an application, much as it requires that recruitment be conducted prior to the filing of an application in other immigration programs. The Department has determined that program integrity would be improved by being able to review a preliminary recruitment report at the time the application is filed, a requirement that is consistent with both the intent and the language of the statute. Several commenters opined that it was not feasible for employers to make accurate assessments of timeframes and the number of workers needed so far in advance and many questioned how effective an early recruitment period would be in helping employers to locate U.S. workers who would still be available at the time the work actually began. Additionally, many commenters believed the earlier recruitment would not benefit U.S. agricultural workers seeking employment because it is inconsistent with the traditional job-seeking patterns of these workers. Some commenters expressed concern that extending the recruitment time would either not increase the number of U.S. worker applicants for a position, or would increase the number of U.S. workers who applied for a position but would not translate into more actual workers taking the jobs, as many would not report to work. A trade association also commented that the employer is put at risk because, by the time the jobs begin, U.S. applicants may have long since changed their minds or accepted other employment. A State government agency commented that most agricultural workers would not make a commitment to a job so far in advance of the start date. One individual employer believed the proposed pre-filing recruitment would actually have the opposite effect the Department anticipates because U.S. workers would be reluctant to make commitments so far in advance of the start date. An employer association recommended that the final regulation specifically permit employers to ask workers identified during the recruitment process to attest to or affirm their intentions to actually report to work to perform the jobs. An association of growers/producers shared its data from the 2006- 2007 season which shows only 9 percent of U.S. applicants applied during the first 15 days of the current 45-day recruitment period and questioned whether a longer timeframe would yield additional applicants. The association also reported 83 percent of the applicants who applied during the initial 15-days of the recruitment period failed to report for work on the date of need, as compared to a 60 percent failure-to-report rate for applicants who applied during the last 30 days of recruitment leading up to the date of need. Some commenters stated that the current recruitment timeframes are adequate for identifying and hiring U.S. workers and others advocated alternate timeframes. Commenters presented a number of options for the recruitment timeframe, including the current timeframe, and options ranging between 90 to 75 days prior to the date of need for beginning recruitment and 60 to 45 days prior to the date of need for filing the application. In the words of one trade association, which was representative of the comments received on this point: ``For the sector for which H-2A is predominantly applicable-- fruits and vegetables--the ability to predict months in advance when labor will be required is simply impossible.'' The Department takes seriously its twin obligations, consistent with all H-2A statutory requirements, to ensure both that an adequate workforce is available to U.S. agricultural producers and that U.S. workers have a meaningful opportunity to apply for all open agricultural job opportunities. The Department believes it can best fulfill its statutory responsibilities by requiring employers to recruit in advance of filing, which will enable employers to submit preliminary recruitment reports with their applications, giving the Department better information than it has ever had before about the availability of U.S. workers before the Department is required by the tight statutory timeframes to make a determination on an application. The current pattern of forcing positive recruitment combined with the Department's near simultaneous evaluation of the application into a substantially narrow window of only 15 days is simply inadequate to address these workforce and program integrity needs. Based on the comments received, however, the Department has come to believe that requiring employers to seek and secure a workforce 120 days in advance of need may not be practicable, given the substantial likelihood that over such an extended period variables such as weather conditions, competition from other industries for available workers, and competition among farms and crops could intervene and result in increased labor uncertainty for employers. The Final Rule accordingly shortens the pre-filing recruitment period described in the NPRM. Employers will be required to initiate recruitment no more than 75 days prior and no less than 60 days prior to the anticipated date of need. Reducing the pre-filing recruitment time period in this manner from the time period that was proposed, while simultaneously adjusting the Department's proposal by extending the referral period beyond the date of need (discussed further below), will ensure U.S. workers have access to these job opportunities, and enable employers to recruit effectively for U.S. workers without adversely affecting planting and harvesting schedules. This revised recruitment schedule, which is closer in time to the employer's actual date of need, also addresses the commenters' concerns about the job search patterns of likely U.S. workers. The Department declines, at this time, to implement any requirement that U.S. workers affirm in writing their intent to show up for work when needed, as that is a contractual matter between the worker and the employer. The Department notes that it has afforded employers some flexibility in the Final Rule in Sec. 655.110(e), ``Requests for determinations based on nonavailability of able, willing, and qualified U.S. workers,'' to address situations where U.S. workers have failed to appear as promised. (b) Section 655.102(b) General Attestation Obligation (1) General Comments Regarding the Attestations A group of farmworker advocacy organizations commented on the language in the proposed regulation that states ``the employer shall attest that it will continue to cooperate with the SWA by accepting referrals of all eligible U.S. workers who apply.'' The organization stated it is the employer's duty to hire all qualified U.S. workers who apply and believed the proposed language did not make this clear. An association of growers requested that the language describing the time period for acceptance of referrals be modified by adding the word ``first'' before ``begin to depart'' because not all foreign workers depart on the same date. A professional association requested the regulation be changed to permit employers to stop local recruitment efforts no more than five days prior to the date of need rather than three days as proposed. This change was requested to accommodate the actual transit time required for workers to arrive from abroad. As discussed in more detail below, the points made by these commenters have been rendered moot by changes made to this provision. (2) The ``50 Percent Rule'' and the Cessation of Recruitment The Department sought comments on program users' experience with the ``50 percent rule,'' which requires employers of H-2A workers to hire any qualified U.S. worker who applies to the employer during the first 50 percent of the period of the H-2A work contract. We received numerous comments and several commenters offered alternative approaches. Several commenters questioned the Department's authority to make changes to the 50 percent rule, citing the 1986 IRCA amendments which added the 50 percent rule to the INA as a temporary 3-year statutory requirement, pending the findings of a study that the Department was required to conduct regarding its continuation. In 1990, pursuant to what is now INA Sec. 218(c)(3)(B)(iii), ETA published an Interim Final Rule to continue the 50 percent requirement. See 55 FR 29356, July 19, 1990. That rule was never finalized. As the Department stated in the NPRM, since the 1990 publication of the Interim Final Rule continuing the 50 percent rule, it has gained substantial experience and additional perspective calling into question whether the Department's 1990 decision was in fact supported by the data contained in the 1990 study, and whether the rule is in fact a necessary, efficient and effective means of protecting U.S. workers from potential adverse impact resulting from the employment of foreign workers. The Department received several comments in support of retaining the 50 percent rule as it is currently administered. Commenters asserted that the rule is an important method for granting U.S. workers job preference over foreign temporary workers and creates an incentive for pre-season recruitment of U.S. workers. Some commenters stated their belief that many U.S. workers gain jobs under the 50 percent rule and that its elimination would deprive many U.S. workers of jobs unfairly, although these commenters did not provide any data to support their assertion. Several commenters believed that few employers have had to lay off H-2A workers under the 50 percent rule, and that the rule has enabled many U.S. workers to secure jobs, and that elimination of the rule would unfairly deprive them of those jobs. The commenters believed that by eliminating this rule, the Department may keep U.S. farmworkers from applying for jobs they would otherwise be able to take. Other commenters believed that for those U.S. workers who learn of an H-2A job, the proposal would eliminate the protections that safeguard against employers rejecting qualified U.S. workers. One commenter argued that the 50 percent rule provides an incentive that should be maintained to create an attractive working environment, and that it is critical to the integrity of the H-2A program. The commenter asserted that it prevents growers from engaging in practices that are tolerated by H-2A workers only because of their greater economic vulnerability and in turn [[Page 77126]] ensures that labor standards are not driven down for U.S. workers unable to compete with H-2A workers who have no choice but to endure such conditions. While one commenter admitted that they could not provide data regarding the cost and benefits of the 50 percent rule, they expressed the belief that employers will hire fewer domestic workers without it, thereby adversely affecting an already vulnerable population. A number of commenters noted that the elimination of the 50 percent rule would make it more difficult for traditional farm workers who move with crops along the traditional migrant streams to secure jobs. The commenter believed that U.S. workers will be ``absolutely foreclosed'' from much if not most H-2A related employment if they cannot be hired just before, at, and past the date of need. An obligation to continue to hire U.S. workers after the departure of any foreign workers to the U.S. for employment was viewed by the commenter as critical to maintaining and developing a U.S. agricultural workforce. Finally, another commenter observed that the 50 percent rule has served as an important tool for ensuring that the H-2A program does not adversely affect U.S. workers, and that at a time of increasing unemployment, the Department should not choose this particular moment to abandon these long-standing labor protections for U.S. workers. Several other commenters argued the 50 percent rule should be abolished. These commenters argued that H-2A users have long considered the 50 percent rule to be unfair and unreasonable. They observed that no other temporary or permanent worker program has an even remotely corresponding requirement. Commenters also observed that the 50 percent rule was purportedly designed to enable domestic workers to accept agricultural employment opportunities, but that its costs outweigh its benefits. Commenters shared experiences that many of the domestic workers who apply under the 50 percent rule do so to maintain government benefits under the Unemployment Insurance program (the UI program requires unemployed workers to show that they have actively sought employment each week in order to continue benefits). They also found that while the rule does not actually provide substantial additional employment to domestic workers, it creates needless insecurity and uncertainty for H-2A workers who are employed under H-2A contracts. A commenter from a state agency asserted that the elimination of the rule would relieve the SWA from having to track these H-2A job orders and would remove unnecessary burdens on employers. The commenter believed that there is no tangible evidence that the rule produces the desired results of increasing employment of domestic workers: My experience is that it is rare for [U.S.] workers to search our Internet postings for agricultural positions in the middle of a growing season. Employers find this requirement confusing and worrisome. Smaller employers have expressed concern that they could lose their fully trained and settled foreign worker(s), suddenly disrupting their operation. Unfortunately, their experience is that U.S. workers who drop in during a season have a tendency to not stay till the end of the contract period. If this practice had historically produced significant results, the government-mandated grower investment of time and money might be justifiable, but it has not. One commenter stated that there is no need for the 50 percent rule where recruiting indicates that there are no or few local workers. The commenter also found no need for the rule in situations where the employers typically hire a large number of local workers. The commenter went on to argue that if the Department wants to retain the rule, it should do so only as a condition of approval of an application where there is evidence indicating that there are a relatively large number of local workers but the employer has indicated that it intends to hire few if any local workers. A number of commenters observed that all available data support the view that relatively few U.S. workers desire employment in agriculture. They argued that it necessarily follows from this fact that the 50 percent rule provides almost no benefit to U.S. workers, yet its presence dissuades employers from participating in the program because of the uncertainty it creates. These commenters concluded that the rule should be abandoned. One commenter believed that if the Department wished to retain the rule, it should reserve the right to do so on a case by case basis, as a condition of approval for an application where the CO and SWA believed that insufficient local recruiting has been accomplished. The Department believes that this idea may have some merit, but has not devised a means to implement it at this time. A number of agricultural employers commented that the rule requiring H-2A employers to hire any qualified U.S. worker during the first 50 percent of the H-2A work contract makes it very difficult for a producer to manage labor supply and costs over the life of the contract. Commenters from state agencies found that the features of the rule are seldom completely understood by the growers who need the H-2A program, adding to their impression that the entire process is complicated and rife with red tape. Another State commenter found the rule to be antiquated and ineffective. Another commenter observed that the rule has been disruptive and non-productive for both workers and employers and that its elimination will provide much-needed stability in the workforce obtained by the employer. A commenter found that a cost-benefit analysis of the situation indicates that continuing to recruit U.S. workers beyond the date of need results in no corresponding benefit. One farmer observed, It's just not right that after I have made the best attempt to hire domestic workers that once halfway through the season I be forced to replace a trained H-2A worker. I really would prefer to hire local workers and keep that wage money at home, if I could find them. Commenters from various farm bureaus around the country argued that under current conditions, the 50 percent rule is without foundation. They argued that anecdotal evidence shows that few, if any, employees referred for employment after the employer's date of need apply for or maintain their work status. They believed that agricultural employers, especially those with perishable crops, must be able to operate with greater certainty. Once an operation begins, the success of the work effort is the product of coordinated teamwork. Employers are willing to make strong recruitment efforts before the date of need, but they seek certainty and continuity once the work period has begun. A commenter from a farming association found that the actual benefits of the 50 percent rule for domestic workers are, to all practical intent, illusory. The commenter strongly supported eliminating the rule entirely, arguing that such an approach would result in a substantial improvement in program operations. The commenter argued that while the Department has a statutory obligation to protect the rights of U.S. workers when implementing the program, it is necessary to strike a balance between the priority given to U.S. workers and the rights of employers, who have met all of the legal obligations that attach to employing H-2A workers. It went on to argue: The current 50 percent rule, while seemingly a provision to protect U.S. workers, is more disruptive to farm operations and a disincentive to program participation than it is a true protection for workers. There is no reason to mandate that a grower's obligations to find and recruit eligible U.S. workers should extend past the recruitment period; imposing such an obligation serves only to disrupt operations of the producer and does little to protect U.S. workers * * *. The fact is, and all available data support this view, relatively few U.S. workers desire employment in agriculture * * *. The work is arduous, episodic, taxing, requires relatively little skill and virtually no education. Within the U.S. economy the pay-- while increasing--is relatively low. These jobs provide tremendous economic opportunity for migrant workers but are not perceived as offering the same benefit to U.S. workers. In fact, approximately 10 million individuals in the U.S. economy today choose to work in jobs which pay them less than they could earn in agriculture. The 50 percent rule provides virtually no benefit to U.S. workers yet its presence has clearly been a disincentive to program participation. It should be abandoned. Other commenters offered alternatives to the 50 percent rule including a 25 percent rule, recognizing that referrals after the date of need may serve a useful purpose but extending through 50 percent of the contract completion might be too long. One farming association suggested that the obligation to accept domestic referrals should terminate not later than three days before the date of need. A number of state agencies suggested that SWAs should leave job orders open for 30 days after the date of need and employers should be required to offer employment to any qualified and eligible U.S. workers who are referred during that time, also recognizing that the current 50 percent of the contract period is too long and perhaps too uncertain to manage. Another commenter similarly recommended that employers be required to begin recruitment no more than 60 days prior to the date of need and continue until between one and 30 days after the date of need, with adjustments made according to the expected duration of the job opportunity. Under this commenter's proposal, the determination of the end date for recruitment should be no earlier than the date of need, but the 50 percent rule should be revisited and adjusted to lessen its potential negative impact on the agricultural employer's workforce. Finally, another commenter suggested a continued obligation of 50 percent of the work period or 30 days, whichever is longer. It is clear to the Department from these comments that many view the current 50 percent rule as a substantially burdensome requirement that does not provide a corresponding benefit to U.S. workers.\3\ Others see the rule as benefiting U.S. workers by providing them expanded job opportunities. Based on the comments it has received and its substantial experience in operating the H-2A program, the Department believes that the 50 percent rule clearly does provide some benefits to U.S. workers, but that the rule creates substantial uncertainty for employers in managing their labor supply and labor costs during the life of an H-2A contract and serves as a substantial disincentive to participate in the program. --------------------------------------- \3\ In December 2007, the Department commissioned a survey of stakeholder representatives to evaluate the effectiveness of the 50 percent rule as a mechanism to minimize adverse impacts of the H-2A program on U.S. farm workers. The Department had conducted a similar study of the impact of the 50 percent rule in 1990, but upon reviewing that study as part of the H-2A review which led to this recent NPRM the Department concluded that it was of limited utility because it covered only two states--Virginia and Idaho--and because, given the significant changes that have occurred in the field of agricultural employment over the last two decades, it was substantially out of date. The surveyors for the new study conducted interviews with a number of stakeholders to gather information on the impact of the 50 percent rule and how it is currently working. The surveyors queried a far more representative sample of entities affected by the 50 percent rule than the 1990 study had, including employers, state workforce agencies, and farm worker advocacy organizations. While the new study identified a diversity of opinion about the value and effectiveness of the current 50 percent rule, the researchers found that the rule ``plays an insignificant role in the program overall, hiring-wise, and has not contributed in a meaningful way to protecting employment for domestic agricultural workers.'' See ``Findings from Survey of Key Stakeholders on the H- 2A `50 Percent Rule','' HeiTech Services, Inc. Contract Number: DOLJ069A20380, April 11, 2008. The researchers estimated that the number of agricultural hires resulting from referrals to employers during the 50 percent rule period was exceedingly small, with H-2A employers hiring less than 1 percent of the legal U.S. agricultural workforce through the 50 percent rule. All of the categories of surveyed stakeholders, including employers, state workforce agencies, and even farm worker assistance and advocacy organizations, reported that U.S. workers hired under the 50 percent rule typically do not stay on the job for any length of time when hired, frequently losing interest in the work when they learn about the job requirements. Many of the survey respondents, including representatives from each of the three groups, suggested that the rule should be either eliminated or modified. The Department did not specifically rely on either of the two surveys in crafting the Final Rule. It does, however, believe that the information provided adds some additional depth to the discussion contained in this preamble. Accordingly, it has posted the studies on the Department's Web site. --------------------------------------- Based on the comments it received, the Department has decided to modify the rule. The requirements of 8 U.S.C. 1188(c)(3)(B)(iii) were fully satisfied when the Department promulgated interim final regulations on July 19, 1990. Nevertheless, the language of that provision suggests that when issuing regulations dictating whether agricultural employers should be required to hire U.S. workers after H- 2A workers have already departed for the place of employment, the Department should weigh the ``benefits to United States workers and costs to employers.'' After considering its own experience and the experience of its SWA agents, the Department agrees, on balance, with those commenters who argued that the costs of the 50 percent rule outweigh any associated benefits the rule may provide to U.S. workers. It is beyond dispute that the obligation to hire additional workers mid-way through a season is disruptive to agricultural operations and makes it difficult for agricultural employers to be certain that they will have a steady, stable, properly trained, and fully coordinated work force. It is also apparent from the comments received that the current rule is poorly understood by employers, difficult for the SWAs to administer, and a disincentive for employers to use the H-2A program. Finally, the rule requires agricultural employers to incur additional unpredictable and unnecessary expenses, forcing them to choose between either hiring a greater number of workers than they actually need to complete their work part-way through a season, or discharging some or all of their H-2A workers, in which case the employer will lose its entire investment in those workers and will be required to incur the immediate additional expense to transport the workers back to their home countries. It is for all of these reasons that no other permanent or temporary worker program administered by the Department contains such a burdensome requirement, even though most of these programs are subject to similar statutory or regulatory requirements that the Secretary certify (1) that there are not sufficient workers in the United States who are able, willing, and qualified to perform the labor or services needed and (2) that the employment of the aliens in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed. It is clear to the Department that the current 50-percent rule does provide some benefits to U.S. workers, since at least some U.S. workers secure jobs through referrals made pursuant to the rule. The number of such hires, however, appears to be quite small. Moreover, the comments indicate that many workers hired pursuant to the 50- percent rule do not complete the entire work period, adding costs to employers and further diminishing the total economic benefits derived from the rule by U.S. workers. It is also relevant that under the Final Rule, the period of time that a job order is posted by a SWA prior to an employer's dates of need has been substantially expanded from the current rule, which will provide U.S. workers with more up-front information about agricultural job opportunities, rendering mandatory post-date-of-need hiring less necessary. In sum, after considering the best information currently available, the Department has concluded that the benefits of the 50-percent rule to U.S. workers are not, on balance, sufficient to outweigh its costs. The Department has also determined that modifying or eliminating the 50-percent rule would not compromise the Department's ability to ensure that U.S. workers are not adversely affected by the hiring of H-2A workers, just as the absence of a 50-percent rule from the other permanent. http://www.Dr-Immigration.com/news/shownews.asp?newsID=39 Sat, 7 Mar 2009 20:27:13 EST By USCIS: Office of Communications www.uscis.gov USCIS Update Jan. 30, 2009 USCIS DELAYS RULE CHANGING LIST OF DOCUMENTS ACCEPTABLE TO VERIFY EMPLOYMENT ELIGIBILITY Reopens Public Comment Period for 30 days WASHINGTONU.S. Citizenship and Immigration Services (USCIS) announced today it has delayed by 60 days, until April 3, 2009, the implementation of an interim final rule entitled Documents Acceptable for Employment Eligibility Verification published in the Federal Register on Dec. 17, 2008. The rule streamlines the Employment Eligibility Verification (Form I-9) process. The delay will provide DHS with an opportunity for further consideration of the rule and also allows the public additional time to submit comments. A notice announcing the delay was transmitted today to the Federal Register. In addition, USCIS has reopened the public comment period for 30 days, until March 4, 2009. Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The interim final rule will amend regulations governing the types of acceptable identity and employment authorization documents employees may present to their employers for completion of the Form I-9. Under the interim rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9. The interim final rule and an informational copy of the revised Form I-9 will continue to be available for public comment at www.regulations.gov. USCIS http://www.Dr-Immigration.com/news/shownews.asp?newsID=38 Sat, 7 Mar 2009 20:26:59 EST BY DHS: Fact Sheet: Expansion of US-VISIT Procedures to Additional Travelers On December 19, 2008, the U.S. Department of Homeland Security published a Final Rule in the Federal Register that expands the categories of non-U.S. citizens required to provide biometricsdigital fingerprints and a photographupon entry or re-entry to the United States through the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) Program. Currently, certain non-U.S. citizens arriving at U.S. air, land and sea ports of entry with nonimmigrant visas or those traveling without a visa as part of the Visa Waiver Program (VWP) are subject to US-VISIT procedures. Under this final rule, all non-U.S. citizens, except Canadians applying for admission to the United States as B-1/B-2 visitors for business or pleasure and those specifically exempted, will experience US-VISIT procedures when entering the country. Effective January 18, 2009, the following additional non-U.S. citizens will be required to provide biometrics when entering or re-entering the United States: * Lawful permanent residents of the United States (LPRs); * Persons entering the United States who seek admission on immigrant visas; * Persons entering the United States who seek admission as refugees and asylees; * Canadian citizens who are currently required to obtain a Form I-94 (Arrival-Departure Record) upon entry or who require a waiver of inadmissibility to enter the United States (this excludes most Canadian citizens entering the United States for purposes of shopping, visiting friends and family, vacation or short business trips); * Persons paroled into the United States; and * Persons applying for admission under the Guam VWP. Including these additional non-U.S. citizens in US-VISIT processing is not expected to impact processing or wait times at U.S. ports of entry. U.S. Customs and Border Protection (CBP) officers will retain the discretion to refer travelers for secondary inspection. The following is additional information regarding US-VISIT procedures and processing, as of January 18, 2009: * Canadians applying for admission to the United States under a B-1 or B-2 nonimmigrant classification for business or pleasure, which represents most Canadian travelers to the United States, are not required to enroll in US-VISIT at this time. * Canadian citizens who must now enroll in US-VISIT are those issued a Form I-94 (Arrival Departure Record), including: o Canadians applying for admission in the following nonimmigrant classifications: C, D, F, H, I, J, L, M, O, P, Q 1, Q 3, R, S, T, TN; and o Canadians who are granted a waiver of inadmissibility to enter the United States. o Canadians requiring issuance of Form I-94 are already referred to secondary inspection. Therefore, no additional wait time will be added. * H-1B visa holders will follow existing protocols and will be screened through US-VISIT when applying for a new multiple entry Form I-94 or when referred to secondary inspection for other reasons. * At seaports, LPRs returning from a closed loop cruise (cruises that begin and end at the same port in the United States) will be exempt from US-VISIT processing. LPRs returning to the United States from an open cruise will be subject to US-VISIT processing. * Non-U.S. citizens entering or re-entering the United States at a land border port of entry will be processed somewhat differently, as follows, at the inspecting officers discretion: o LPRs will provide biometrics only if they are referred to secondary inspection. o All other non-U.S. citizens included in this final ruleunless specifically exemptwill experience US-VISIT procedures during secondary inspection, just as most non-U.S. citizens already subject to US-VISIT procedures currently do (e.g., those who require a Form I-94). * Non-U.S. citizens who seek admission with Border Crossing Cards and who do not have a Form I-94 will still go through US-VISIT procedures, at the discretion of CBP officers. This page was last reviewed/modified on January 14, 2009. http://www.Dr-Immigration.com/news/shownews.asp?newsID=37 Sat, 7 Mar 2009 20:26:44 EST BY DHS: [Federal Register: December 19, 2008 (Volume 73, Number 245)] [Rules and Regulations] [Page 78103-78130] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr19de08-21] [[Page 78103]] ---------------------------------------------------- Part VII Department of Homeland Security -------------------------------------------------- 8 CFR Parts 204, 214 and 215 Changes to Requirements Affecting H-2B Nonimmigrants and Their Employers; Final Rule [[Page 78104]] ---------------------------------------------------- DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 204, 214 and 215 [CIS No. 2432-07; Docket No. USCIS-2007-0058] RIN 1615-AB67 Changes to Requirements Affecting H-2B Nonimmigrants and Their Employers AGENCY: U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, DHS. ACTION: Final rule. -------------------------------------------------- SUMMARY: This final rule amends Department of Homeland Security (DHS) regulations regarding temporary nonagricultural workers, and their U.S. employers, within the H-2B nonimmigrant classification. The final rule removes certain limitations on H-2B employers and adopts streamlining measures in order to facilitate the lawful employment of foreign temporary nonagricultural workers. The final rule also addresses concerns regarding the integrity of the H-2B program and sets forth several conditions to prevent fraud and protect laborers' rights. The final rule will benefit U.S. businesses by facilitating a time ly flow of legal workers while ensuring the integrity of the program. The rule generally removes the requirement for H-2B petitioners to state on petitions the names of prospective H-2B workers who are outside the United States and reduces the existing obligatory waiting period from 6 months to 3 months for an H-2B worker who has reached his or her maximum three-year period of stay in H-2B nonimmigrant status before such person may seek an extension of nonimmigrant stay, change of status, or readmission to the United States in any H or L nonimmigrant status. The rule provides a more flexible definition of ``temporary services or labor,'' which is generally defined as a period of one year but could be for a specific one-time need of up to 3 years. To better ensure the integrity of the H-2B program, this rule eliminates DHS's current practice of adjudicating H-2B petitions where the Secretary of Labor or the Governor of Guam has not granted a temporary labor certification. The rule also prohibits H-2B petitioners from requesting an employment start date on the Form I-129, Petition for a Nonimmigrant Worker, that is different than the date of need listed on the approved temporary labor certification. The final rule requires H-2B petitioners to notify DHS when the H-2B worker fails to report for work, is terminated prior to the completion of the work for which he was hired, or absconds from the worksite. This rule also precludes employers from passing the cost of recruiter fees charged by a petitioner, agent, facilitator, recruiter, or similar employment service to prospective H-2B workers as a condition of an offer of H-2B employment. Under this rule, employers and H-2B workers may agree that certain transportation costs and government-imposed fees be borne by H- 2B workers, if the passing of such costs to these workers is not prohibited under the Fair Labor Standards Act or any other statute. Moreover, the rule enforces the existing penalties at section 214(c)(14) of the Immigration and Nationality Act (INA) in the case of an employer who fails to meet any of the conditions of the H-2B petition, or who willfully misrepresented a material fact in the H-2B petition. Employers who fail to meet the H-2B conditions or who willfully make material misrepresentations on an H-2B petition may, under the statute, be precluded from approval for a period of up to 5 years of any H (except H-1B1), L, O, or P-1 nonimmigrant visa petition, or any immigrant visa petition described in section 204 of the INA, they may file with DHS. This rule also provides that DHS will publish in a notice in the Federal Register a list of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible for its nationals to participate in the H-2B program. Finally, this rule establishes a pilot exit control program for certain H-2B workers, by requiring them to report their departure at designated ports of entry. U.S. Customs and Border Protection (CBP) will publish a notice in the Federal Register describing the procedures and requirements for participation in this pilot program. DATES: This rule is effective January 18, 2009. FOR FURTHER INFORMATION CONTACT: Hiroko Witherow, Service Center Operations, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529- 2060, telephone (202) 272-8410. SUPPLEMENTARY INFORMATION: This supplementary information section is organized as follows: Table of Contents I. Background A. Proposed Rule B. Discussion of the Final Rule II. Public Comments on the Proposed Rule A. Summary of Comments B. General Comments C. Specific Comments III. Regulatory Requirements A. Unfunded Mandates Reform Act of 1995 B. Small Business Regulatory Enforcement Fairness Act of 1996 C. Executive Order 12866 D. Regulatory Flexibility Act E. Executive Order 13132 F. Executive Order 12988 G. Paperwork Reduction Act I. Background A. Proposed Rule The H-2B nonimmigrant classification applies to aliens seeking to perform nonagricultural labor or services of a temporary nature in the United States. Immigration and Nationality Act (the Act or INA) sec. 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b); see 8 CFR 214.1(a)(2) (designation for H-2B classification). The H-2B program is most frequently used by businesses in seasonal industries that have a difficult time locating temporary workers. DHS is aware, however, that the current H-2B program regulations do not effectively accommodate the needs of U.S. employers and alien workers who use, or want to use, the H-2B program. Therefore, on August 20, 2008, DHS published a notice of proposed rulemaking seeking to amend its H-2B regulations. 73 FR 49109. On May 20, 2008, the Department of Labor (DOL) also published a notice of proposed rulemaking to amend its regulations regarding the temporary labor certification process and enforcement for temporary employment in occupations other than agriculture or registered nursing in the United States. 73 FR 29942. Some of the changes that DHS proposed in its rule included provisions that: Relax the limitations on naming beneficiaries on the H-2B petition, if such beneficiaries are outside of the United States; Require DHS to deny or revoke any H-2B petition if DHS determines that the petitioner knows, or reasonably should know, that the alien beneficiary paid, or agreed to pay, any fee or other form of compensation to the petitioner, the petitioner's agent, or to any facilitator, recruiter, or similar employment service, in connection with the H-2B employment; Require H-2B petitioners: (a) To attest that they will not materially change the facts as represented on the Form I-129 and the approved temporary labor certification; (b) to attest that they have not received and do not intend to [[Page 78105]] receive any fee, compensation, or any other form of remuneration from prospective H-2B workers; and (c) to identify any facilitator, recruiter, or other similar employment service that the petitioner used to locate foreign workers; Require H-2B petitioners to provide written notification to DHS within 48 hours if: (a) An H-2B worker fails to report to work within 5 days of the date of the employment start date on the H-2B petition or within 5 days of the start date established by his or her employer, whichever is later; (b) the nonagricultural labor or services for which H-2B workers were hired is completed more than 30 days early; or (c) an H-2B worker absconds from the worksite or is terminated prior to the completion of the nonagricultural labor or services for which he or she was hired; Clarify that any violation of a condition of H-2B nonimmigrant status, within the previous 5 years, will preclude an alien from being accorded H-2B nonimmigrant status, unless the alien can establish that such violation occurred through no fault of the alien; Discontinue DHS's current practice of accepting and adjudicating an H-2B petition that lacks an approved temporary labor certification from DOL; Preclude the employer from using a different employment start date on the H-2B petition than the date of need stated on the temporary labor certification approved by DOL; Preclude DHS from approving H-2B petitions filed on behalf of beneficiaries from countries determined by DHS to consistently deny or unreasonably delay the prompt return of their citizens, subjects, nationals, or residents; Set forth the minimum period spent outside of the United States that will stop the H-2B worker from accruing time towards the 3- year overall limit on H-2B status; Reduce the period that an individual who has held H-2B status for a total of 3 years must remain outside of the United States before he or she may be granted H-2B nonimmigrant status again from 6 to 3 months; Amend the current definition of ``temporary services or labor'' by defining them to be services or labor that will be needed by the employer for a limited period of time, i.e., where the job will end in the near, definable future; and Authorize the establishment of a temporary worker exit program on a pilot basis that would require certain H-2B workers to register with DHS at the time of departure from the United States. DHS provided a 30-day comment period in the proposed rule, which ended on September 19, 2008. During this comment period, DHS received 119 comments. DHS received comments from a broad spectrum of individuals and organizations, including: Business owners in the hospitality industry; landscape companies; agents that work with H-2B employers; job placement companies; trade associations; labor organizations; an H-2B worker; Chambers of Commerce; a political group; private attorneys; state government agencies; an independent office to a federal government agency; members of Congress; and other interested organizations and individuals. DHS considered the comments received and all other materials contained in the docket in preparing this final rule. The final rule does not address comments seeking changes in regulations unrelated to, or not addressed by, the proposed rule; changes in procedures of other components within DHS or other agencies; or the resolution of any other issues not within the scope of the rulemaking or the authority of DHS. All comments and other docket materials may be viewed at the Federal Docket Management System (FDMS) at http://www.regulations.gov, docket number USCIS-2007-0058. B. Discussion of the Final Rule The final rule adopts many of the changes set forth in the proposed rule. The rationale for the proposed rule and the reasoning provided in the preamble remain valid, and DHS adopts such reasoning in support of the promulgation of this final rule. Based on the public comments received in response to the proposed rule, however, DHS has modified some of the proposed changes for the final rule. 1. Payment of Fees by Aliens To Obtain H-2B Employment To address some commenters' concerns about the proposed provisions related to the payment of fees by beneficiaries to obtain H-2B employment, the final rule makes several changes. First, the final rule offers petitioners a means by which to avoid denial or revocation (following notice to the petitioner) of the H-2B petition in cases where DHS determines that the petitioner knows or should reasonably know that the worker has paid or agreed to pay prohibited fees as a condition of an offer of H-2B employment. In cases where prohibited fees were collected prior to the petition filing date and in cases where prohibited fees were collected by the labor recruiter or agent after petition filing, DHS will not deny or revoke the petition if the petitioner demonstrates that: The beneficiary has been reimbursed in full for fees paid or, The agreement for the beneficiary to pay such fees has been terminated, if the fees have not yet been paid. New 8 CFR 214.2(h)(6)(i)(B)(1) and (2). Additionally, as an alternative to reimbursement where the prohibition is violated by the recruiter or agent after the petition is filed, the petitioner may avoid denial or revocation of the petition by notifying DHS of the improper payments, or agreement to make such payments, within two work days of learning of them. New 8 CFR 214.2(h)(6)(i)(B)(4). Where the beneficiary has paid the petitioner the prohibited fees after the filing of the H-2B petition, the petition will be denied or revoked. New 8 CFR 214.2(h)(6)(i)(B)(3). If DHS revokes or denies an H-2B petition as a result of the collection of prohibited fees, then, as a condition of approval of future H-2B petitions filed within one year of the denial or revocation, the petitioner must demonstrate that the beneficiary of the denied or revoked petition from whom prohibited fees were collected has been reimbursed or that the beneficiary cannot be located despite the petitioner's reasonable efforts. New 8 CFR 214.2(h)(6)(i)(D). Further, the final rule does not include the proposed requirement that the petitioner make a separate attestation regarding the reliance upon employment services to locate H-2B workers and the acceptance or knowledge of the beneficiary's payment of prohibited recruitment fees. DHS is not including a separate attestation requirement in the final rule, because it has determined that would increase petitioners' administrative burdens and be duplicative. DHS will instead amend the Form I-129 to include the attestation requirement. 2. H-2B No-Show, Termination, or Abscondment Notification Requirements The final rule requires petitioners to provide notification to DHS, within two work days, beginning on a date and in a manner specified in a notice published in the Federal Register, in the following instances: (a) When an H-2B worker fails to report to work within 5 work days of the employment start date on the H-2B petition; (b) when the temporary labor or services for which H-2B workers were hired is completed more than 30 days earlier than the date [[Page 78106]] specified by the petitioner in its H-2B petition; or (c) when the H-2B worker absconds from the worksite or is terminated prior to the completion of the temporary nonagricultural labor or services for which he or she was hired. 8 CFR 214.2(h)(6)(i)(E). The final rule clarifies that the H-2B worker must report to work within 5 ``work days'' of the employment start date, rather than the proposed 5 days. The H-2B petitioner must report a violation to DHS within two work days, rather than the proposed 48 hours. The final rule adopts the term ``work days'' to ensure that the reporting deadlines are clear to H-2B petitioners. ``Work day,'' in general, means the period between the time on any particular day when such employee commences his or her principal activity or activities and the time on that day at which he or she ceases such principal activity or activities. Also, for purposes of clarity, the final rule amends 8 CFR 214.2(h)(11)(i)(A) to cross- reference the notification provision. In addition, the final rule does not include the proposal that the employer may establish an employment start date that is different from the start date stated on the H-2B petition for purposes of determining when the notification requirement is triggered where the H-2B worker fails to report for work. See new 8 CFR 214.2(h)(6)(i)(F)(1). This ability to change the employment start date is inconsistent with the requirement from the proposed rule, adopted by this final rule, that the employment start date must be the same as the date of need stated on the temporary labor certification approved by the Secretary of Labor, and therefore, cannot be changed thereafter by the petitioner. The final rule corrects this inconsistency. 3. Petition Filing Period This final rule modifies the current regulations governing the filing period for H petitions to provide for a separate filing period for H-2B petitions. See 8 CFR 214.2(h)(9)(i)(B). This procedural change is necessary to ensure parity between DHS and related DOL regulations. Under the new DOL regulations, an employer cannot start recruiting (initiate advertising) for the nonagricultural positions any earlier than 120 days ahead of the date of stated employment need. However, under current DHS regulations, an employer must file an H-2B petition along with a DOL-approved temporary labor certification, yet may file the petition up to 6 months ahead of the date of actual employment need. 8 CFR 214.2(h)(9)(i)(B). This final rule adopts the proposed requirement that an H-2B petition identify an employment start date that is the same as the date of employment need stated on the approved temporary labor certification. New 8 CFR 214.2(h)(6)(iv)(D). Considering this requirement, it would be procedurally impossible for a petitioner to file an H-2B petition any sooner than the earliest date upon which it is able to start recruiting for a nonagricultural position. Therefore, this final rule modifies 8 CFR 214.2(h)(9)(i)(B) to provide that an employer may not file, and USCIS may not approve, an H-2B petition more than 120 days before the date of the employer's actual need for the beneficiary's temporary nonagricultural worker services, as identified on the temporary labor certification. 4. Naming Beneficiaries Exempt From the Numerical Limits The final rule retains the proposal to allow certain H-2B petitioners to specify only the number of positions sought, without naming individual H-2B workers, unless they are already in the United States. A few commenters were concerned about how the provision allowing petitioners to include unnamed beneficiaries in the H-2B petition would be impacted by a possible reauthorization of the ``returning worker'' provisions. New 8 CFR 214.2(h)(2)(iii) and 8 CFR 214.2(h)(6)(vi)(C). The returning worker provisions expired September 30, 2007. INA sec. 214(g)(9), 8 U.S.C. 1184(g)(9) (2007). Under these provisions, H-2B aliens who were already counted towards the H-2B numerical limit during one of the 3 fiscal years preceding the fiscal year of the requested employment start date were not counted again against the numerical limit. While the returning worker provisions have expired, their future reauthorization is possible. To ensure that DHS is able to implement any future reauthorization of these provisions, this final rule provides DHS the flexibility to collect information needed about the alien beneficiary to establish eligibility as a returning worker. 5. Numerical Limits and Petition Extensions or Extension of an Alien's Stay The final rule adopts the proposed modifications to 8 CFR 214.2(h)(8)(ii)(A), which provide for the application of the annual numerical limitations on H nonimmigrant classifications. However, the proposed rule inadvertently omitted a sentence that is in the current regulations. This sentence provides that requests for petition extension or extension of an alien's stay may not be counted towards the annual numerical limits on H nonimmigrant classifications. DHS acknowledges this error made in the proposed rule and retains the sentence in the provision. See new 8 CFR 214.2(h)(8)(ii)(A). 6. Effect of Violations of H-2B Status The final rule does not adopt the proposed addition of a new provision that would have precluded an alien from being accorded H-2B status if USCIS finds that the alien has, at any time during the past 5 years, violated any of the terms or conditions of the current or previously accorded H-2B status, other than through no fault of the alien. Several commenters opposed the addition of the proposed provision. DHS has determined that it is not necessary to add the proposed provision to the regulations at this time given the remaining improvements that this rule makes to the H-2B program. DHS may revisit this issue in a future rulemaking if necessary to further enhance the integrity of the H-2B program. DHS notes, however, that the fact that the proposed provision is not adopted in the final rule does not change existing requirements for change of status, extension of stay, or any other immigration benefit requiring proper maintenance of status, nor would it preclude a consular officer from exercising his or her authority with respect to the issuance or validity of visas under the immigration laws. 7. Permitting H-2B Petitions for Nationals of Participating Countries The final rule modifies the proposal to preclude DHS from approving an H-2B petition filed on behalf of aliens from countries that consistently deny or unreasonable delay the prompt return of their citizens, subjects, nationals, or residents who are subject to a final order of removal from the United States. Instead of publishing a list of countries that refuse repatriation, DHS will publish in a notice in the Federal Register a list of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible for its nationals to participate in the H-2B program. In designating countries to allow the participation of their nationals in the H-2B program, DHS, with the concurrence of the Department of State, will take into account factors including, but not limited to, the following: (1) The country's cooperation with respect to the issuance of travel documents for citizens, subjects, nationals, and [[Page 78107]] residents of that country who are subject to a final order of removal; (2) the number of final and unexecuted orders of removal against citizens, subjects, nationals, and residents of that country; (3) the number of orders of removal executed against citizens, subjects, nationals, and residents of that country; and (4) such other factors as may serve the U.S. interest. Initially, the list will be composed of countries that are important for the operation of the H-2B program and are cooperative in the repatriation of their nationals. The countries included on the list are the countries whose nationals contributed the vast majority of the total beneficiaries of the H-2B program during the last three fiscal years. Additional details on how this list will be administered are included in the discussion in response to comments received on this proposed provision below. 8. Employment Start Date The final rule retains the provision in the proposed rule prohibiting the employer from requesting an employment start date on Form I-129 that is different from the date of need listed on the accompanying approved temporary labor certification. See new 8 CFR 214.2(h)(6)(iv)(D). As noted below, to ease the initial difficulties in administering this provision, it will take effect starting with the filing period for the first half of fiscal year (FY) 2010. 9. Conforming Amendments and Non-Substantive Changes The final rule includes non-substantive structural or wording changes from the proposed rule for purposes of clarity and readability. II. Public Comments on the Proposed Rule A. Summary of Comments DHS received 119 comments on the proposed rule. Most commenters generally supported the streamlining measures in the proposed rule, such as: Removing the requirement to name the beneficiaries who are outside of the United States; reducing the required time abroad once an H-2B worker has reached the maximum period of stay before filing for an extension, change of status, or readmission to the United States in the H or L nonimmigrant status; and clarification of the process for substituting beneficiaries. Many commenters, however, were opposed to several changes that they believe will create additional burdens on and costs to U.S. businesses. They suggested that some of the proposed changes would prevent certain U.S. businesses from utilizing the H-2B program, such as: Prohibiting the current practice of approving H-2B petitions that are filed with denied temporary labor certifications; prohibiting a change of the employment start date on the Form I-129 from what is stated on the approved temporary labor certification; providing DHS with the authority to deny or revoke on notice any H-2B petition if it determines that the petitioner knows or reasonably should know that the alien beneficiary has paid or has agreed to pay any fee to the petitioner or the petitioner's agent, or to any facilitator, recruiter, or similar employment service, in connection with obtaining the H-2B employment; and requiring petitioners to notify DHS of H-2B workers' no-show, early completion of work, termination, or abscondment. Many commenters also were concerned about the proposal to preclude DHS from approving a petition filed on behalf of one or more aliens from countries that the Secretary of Homeland Security has found to have consistently refused to accept or unreasonably delayed the prompt return of their citizens, subjects, nationals, or residents who are subject to a final order of removal from the United States. Commenters also objected to the proposed amendment to the definition of ``temporary services or labor.'' The concerns of the commenters are addressed below organized by subject area. B. General Comments 1. Comments About the Congressionally Mandated Numerical Limit for the H-2B Program Comment: The majority of commenters stated that the biggest problem with the H-2B program is the lack of Congressional action to increase the numerical limit or to reauthorize the returning worker provisions. They believed that all the proposals that DHS suggested would not be necessary if the numerical limit were lifted. Many U.S. businesses also expressed their frustration with the fact that they are not able to use the program because the program is oversubscribed. Response: DHS is fully aware that the H-2B program is oversubscribed. However, as many commenters pointed out, the numerical limit and the authorization of the returning worker provisions are a matter entirely within the discretion of Congress and cannot be altered by DHS. DHS has thus made no change to the final rule to reflect these comments. Additionally, the value of and necessity for the streamlining and other improvements to the H-2B program included in this final rule would not be vitiated by any change in the number of H-2B workers Congress allows to be admitted each year. 2. Protections for U.S. Workers Comment: DHS received some comments that urged the withdrawal of the proposed rule, questioning the need for the H-2B program and the need to streamline the program at a time when the nation is experiencing such a high unemployment rate. Response: DHS disagrees that the proposed rule should be withdrawn. DHS is aware of its responsibility to help maintain the careful balance between protecting U.S. workers from adverse affect and administering nonimmigrant programs designed to invite foreign workers to the United States. The Department of Labor's temporary labor certification process, which requires employers to perform a labor market test, is the principal means by which U.S. workers are protected from adverse affect due to foreign competition for temporary jobs with U.S. employers. Only if the labor market test establishes the unavailability of U.S. workers and that there is no adverse affect will DOL approve the H-2B employer's application for temporary labor certification. The final rule contains two major revisions to the regulations designed to further protect U.S. workers while at the same time provide a streamlined petitioning process: (1) Precluding DHS from approving H-2B petitions filed without an approved temporary labor certification issued by DOL, thus avoiding the current need for DHS in certain cases to delve into the merits of the sufficiency of the employer's market test; and (2) prohibiting employers from changing the employment start date identified on the Form I-129 from that identified on the DOL- approved temporary labor certification. Both of these changes help strengthen the integrity of the DOL temporary labor certification process Furthermore, the streamlining measures provided in the proposed rule (which allows employers to file for unnamed beneficiaries outside of the United States and more easily substitute workers who are already in the United States) occur toward the end of the H-2B process, only after the DOL has certified that U.S. workers are not available and will not be harmed by the employment of workers using the H-2B program. [[Page 78108]] 3. Lack of Enforcement Against the Employment of Unauthorized Aliens Comment: A few commenters criticized this proposed rule for imposing stiffer requirements and increased costs on employers who are trying to hire a legal workforce through the H-2B program, while at the same time failing to provide a sound method for strong enforcement against employers that hire unauthorized aliens. Response: DHS recognizes these concerns; however, compliance measures included in this rulemaking are necessary to ensure the integrity of the H-2B program and to protect workers' rights. The purpose of this rule is to strengthen the integrity and efficiency of the H-2B program so that employers will be encouraged to obtain temporary workers through the program, rather than resort to unlawful means. C. Specific Comments 1. Allowing Unnamed Beneficiaries Comment: Twenty-seven out of 36 commenters supported the proposal to allow H-2B petitioners to specify only the number of positions sought and not name the individual alien(s), except where the alien is already present in the United States. They agreed that the proposal would give employers far greater flexibility to recruit workers who are interested and available to start on the date needed but were unsure of how this proposal would be affected by a possible re-authorization of the returning worker provisions. Response: Based on the support from the commenters, the final rule adopts the proposal to allow certain unnamed beneficiaries on the H-2B petition. New 8 CFR 214.2(h)(2)(iii). As discussed below, there is also a change concerning the naming of beneficiaries from countries that have not been designated as participating countries. In response to comments, however, the final rule provides the flexibility to require H-2B petitioners to name beneficiaries, if located outside the United States, in the event that Congress re-authorizes the returning worker provisions or enacts similar legislation exempting certain H nonimmigrants from the numerical limits. The adjudication of an H-2B petition for such workers would require DHS to identify eligible aliens and verify their previous status. Inclusion in this rule of the requirement to name affected workers in H-2B petitions, even though not currently applicable, would facilitate implementation of the returning worker provisions or similar amendments should they be enacted. The final rule retains the requirement that the petition include the names of those beneficiaries who are present in the United States. The granting of an H-2B petition on behalf of beneficiaries in the United States will serve to either confer a new immigration status or extend the status of a particular alien immediately upon approval. Since such an approval, unlike a nonimmigrant admission from outside the country, does not afford, as in the case of alien beneficiaries abroad, the United States Government the opportunity to first inspect and/or interview the H-2B beneficiary (either by the State Department at a consular office abroad or by CBP at a U.S. port of entry) before the granting of H-2B nonimmigrant status to the alien, it is essential that DHS have the names of the beneficiaries already present in the United States. Comment: Some commenters suggested that DHS will need to establish a mechanism for calculating the number of new workers, as opposed to the number of returning workers when the returning worker provisions are reauthorized. Another commenter stated that this provision should be extended further to capture returning workers. Response: As stated above, the final rule gives DHS the flexibility to require the names of ``returning worker'' as that term is currently defined in section 214(g)(9)(A) of the INA, 8 U.S.C. 1184(g)(9)(A), whether or not such workers would be in the United States, should Congress choose to enact special provisions once again exempting such H-2B returning workers from the numerical limits. Although Congress has not, to date, extended section 214(g)(9) to cover H-2B returning workers beyond fiscal year 2007, or enacted similar legislation to cover such persons beyond that date, the final rule would ensure an accurate count of workers exempt from the cap if Congress were to enact such legislation. Comment: Several commenters opposed this provision allowing unnamed beneficiaries, because it will make it easier for some employers to inflate the number of workers they need, and that as a result, employers requesting the legitimate number of workers would be unable to secure a legal workforce through the H-2B program. Response: DHS disagrees with these commenters' concerns. Prior to filing an H-2B petition with DHS, a prospective employer must obtain a temporary labor certification from DOL. When it deems necessary, DOL will verify the employer's need for the number of temporary workers requested at the time it adjudicates the temporary labor certification application or thereafter on a post audit basis. Once an employer obtains an approved temporary labor certification and files an H-2B petition with DHS, DHS evaluates whether there is an actual need for the work itself and whether there is a genuine job offer. This evaluation would include verifying, based on the petition and accompanying documentation, whether the employer, as a matter of fact, has a need for the number of temporary workers described on the approved temporary labor certification. In short, both DHS and DOL must ensure compliance with the statutory requirements for the H-2B classification, including shared responsibility for assessing the temporary nature of the services or labor to be performed. INA sec. 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b); INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 103.2(b)(1); 20 CFR 655.6. DHS may request additional evidence from the petitioner in those cases where questions arise regarding the legitimate number of H-2B workers requested on the H-2B petition. Comment: One commenter further asked how the unnamed beneficiaries will be tracked to ensure that they will not exceed the 3-year limit on H-2B status. Response: The final rule removes the requirement to name beneficiaries, but only if they are outside of the United States or H- 2B returning workers. Upon approval of the H-2B petition, these prospective beneficiaries must generally undergo a visa interview at a U.S. consulate, unless they are visa exempt (e.g., Canadians). All individuals seeking admission to the United States must undergo inspection by a U.S. Customs and Border Protection officer upon arrival at a U.S. port of entry. During this visa application and/or admission process, the necessary screening will be conducted to ensure that the H-2B worker will not be granted any benefit exceeding the 3-year ceiling. Comment: One commenter further asked how the unnamed beneficiaries will be tracked in case the petitioner must request substitutions of beneficiaries. Response: DHS tracks the number of H-2B workers approved for the H- 2B employer. As a result, DHS will know how many substitutions the petitioner has requested. 2. Post H-2B Waiting Period Comment: Sixteen out of 22 commenters supported the proposed rule suggesting the reduction of the waiting period from 6 months to 3 [[Page 78109]] months for an H-2B worker who has reached the 3-year maximum period of stay on H-2B nonimmigrant status prior to seeking an application for extension of nonimmigrant stay, change of status, or readmission to the United States in H-2B status or other nonimmigrant status under section 101(a)(15)(H) or (L) of the INA, 8 U.S.C. 1101(a)(15)(H) or (L). These commenters supported this proposal stating that it will make the H-2B process more efficient for the users. Response: DHS finds that the adoption of this proposal will reduce the amount of time employers would be required to be without the services of needed workers while not offending the fundamentally temporary nature of employment under the H-2B program. Accordingly, the final rule adopts the proposed reduction in waiting time without change. New 8 CFR 214.2(h)(13)(iv). Comment: Several commenters argued that the post-H-2B waiting period provisions contained in the proposed rule may harm domestic workers in seasonal industries that may slow down or come to a stop during the winter months. A commenter suggested that this change gives an advantage to employers in the construction markets, as it gives them the ability to address their hiring needs with H-2B workers throughout the seasons, which in turn, reduces the incentives to train and recruit domestic workers. Another commenter stated that this proposed rule offends the fundamentally temporary nature of employment under the H-2B program. Response: DHS disagrees that a reduction in the waiting period will result in the displacement of domestic workers. The law requires H-2B employers to obtain a temporary labor certification certifying that there are insufficient U.S. workers who are able, willing, qualified, and available to perform the nonagricultural temporary labor or services required by the employer, and that the H-2B employment will not adversely affect the wages and working conditions of similarly employed U.S. workers. Whether the prospective worker is a first-time H-2B worker or an H-2B worker who has previously worked in the United States but is eligible to receive H-2B status anew, the requirement that the unavailability of U.S. workers be established, as determined by DOL, remains unchanged by this rule. When filing the application for temporary labor certification with DOL, H-2B employers are required to establish that the temporary job for which the H-2B workers are sought is not permanent and ongoing. Comment: Those who opposed this provision expressed concern that it will allow employers to create a long-term workforce comprising H-2B workers who reside in the U.S. for 3 years and then take a relatively short trip to their home country before re-entering to resume employment. Response: USCIS disagrees that this provision will undermine the U.S. workforce. The H-2B program requires employers to obtain temporary labor certification from DOL to cover the period of employment need. This process requires a labor market test, which certifies that no U.S. workers are available for employment or will be harmed by the employment of nonimmigrant workers. 3. Prohibiting H-2B Petitions or Admissions for Nationals of Countries That Consistently Refuse or Delay Repatriation Comment: Five out of 14 commenters supported the proposal to include a new provision at 8 CFR 214.2(h)(6)(i)(E) precluding DHS from approving an H-2B petition filed on behalf of one or more aliens from a country that the Secretary of Homeland Security has found to have consistently refused to accept or unreasonably delayed the prompt return of its citizens, subjects, nationals, or residents. They thought that this would be a fair and logical provision. One commenter supported this provision, stating that it will help limit the problem of H-2B workers who overstay their visas. Response: After reviewing all comments, DHS has modified this proposal in the final rule for the reasons and in the manner discussed below. Instead of publishing a list of countries that consistently deny or unreasonably delay the prompt return of their citizens, subjects, nationals, or residents who are subject to a final removal order, DHS is publishing in a notice in the Federal Register a list of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible for its nationals to participate in the H-2B temporary nonagricultural worker program. DHS is making this modification to the rule in consideration of public comments received recommending DHS rework the proposal in order to make the process more positive and to encourage countries to improve cooperation in the repatriation of their nationals. In designating countries to allow the participation of their nationals in the H-2B program, DHS, with the concurrence of the Department of State, will take into account factors including, but not limited to, the following: (1) The country's cooperation with respect to the issuance of travel documents for citizens, subjects, nationals, and residents of that country who are subject to a final order of removal; (2) the number of final and unexecuted orders of removal against citizens, subjects, nationals, and residents of that country; (3) the number of orders of removal executed against citizens, subjects, nationals, and residents of that country; and (4) such other factors as may serve the U.S. interest. Designation of countries on the list of eligible countries will be valid for one year from publication. The designation shall be without effect at the end of that one-year period. The Secretary, with the concurrence of the Secretary of State, expects to publish a new list prior to the expiration of the previous designation by publication of a notice in the Federal Register, considering a variety of factors including, but not limited to the four described above. Initially, the list will be composed of countries that are important for the operation of the H-2A and H-2B programs and are cooperative in the repatriation of their nationals. The countries included on the list are the countries whose nationals contributed the vast majority of the total beneficiaries of the H-2B program during the last three fiscal years. The Secretary of Homeland Security may allow a national from a country not on the list to be named as a beneficiary on an H-2B petition and to participate in the H-2B program based on a determination that such participation is in the U.S. interest. The Secretary's determination of such a U.S. interest will take into account a variety of factors, including but not limited to consideration of: (1) Evidence from the petitioner demonstrating that a worker with the required skills is not available either from among U.S. workers or from among workers from a country currently on the list of eligible countries for participation in the program; (2) evidence that the beneficiary has been admitted to the United States previously in H- 2B status; (3) the potential for abuse, fraud, or other harm to the integrity of the H-2B visa program through the potential admission of a beneficiary from a country not currently on the list of eligible countries for participation in the program; and (4) such other factors as may serve the U.S. interest. Therefore, DHS is requiring petitioners for beneficiaries who are nationals of countries not designated as participating countries to name each beneficiary. New 8 CFR 214.2(h)(2)(iii). In addition, petitions for beneficiaries [[Page 78110]] from designated countries and undesignated countries are to be filed separately. 8 CFR 214.2(h)(2)(ii). These changes will permit DHS to more easily adjudicate H-2B petitions involving nationals of countries not named on the list by permitting DHS to properly evaluate the factors used to make a determination of U.S. interest, discussed above, without slowing the adjudication of petitions on behalf of nationals of designated countries. As discussed in the proposed rule, DHS expects that the provisions in this rule intended to increase the flexibility of the H-2B program, complemented by the streamlining proposals the Department of Labor is making in its H-2B rule, will increase the appeal of the H-2B program with U.S. employers. While the statutory maximum number of H-2B workers will remain 66,000, the program is enhanced by countries accepting the return of their nationals. This rule provides that petitions may only be filed and approved on behalf of beneficiaries who are nationals of a country that is included in the list of participating countries published by notice in the Federal Register or, in the case of an individual beneficiary, an alien whose participation in the H-2B program has been determined by the Secretary of Homeland Security to be in the U.S. interest. See new 8 CFR 214.2(h)(6)(i)(E). Likewise, in order to be admitted as an H-2B, aliens must be nationals of countries included on the list of participating countries or, in the case of an individual beneficiary, an alien whose participation in the H-2B program has been determined by the Secretary of Homeland Security to be in the U.S. interest. To ensure program integrity, such petitioners must state the nationality of all beneficiaries on the petition, even if there are beneficiaries from more than one country. See new 8 CFR 214.2(h)(2)(iii). Comment: Several commenters argued that this provision would unnecessarily penalize potential H-2B workers who are seeking to improve their standard of living, due to the actions of their government. These commenters also stated that it is not fair to U.S. employers who will be denied willing and able workers. Response: Though it appreciates these concerns, DHS notes that all nonimmigrants, including H-2B temporary workers, must abide by the terms and conditions of their nonimmigrant admission. This final rule will encourage countries to work collaboratively with the United States to ensure the timely return of their nationals who have been subject to a final order of removal, in order to ensure that the H-2B program will be available to other nationals of their countries in the future. Comment: A few commenters also stated that they would not support any provisions that restrict eligibility to nationals of countries that provide the most cooperation to the United States in administering the program. They stated that such preference could harm the effectiveness of the H-2B program and adversely impact industries that rely heavily on workers from particular countries. Response: DHS strongly believes the success of the program is enhanced by countries accepting the return of their nationals. However, as discussed in response to the comment above, this rule provides an alternative approach to address the repatriation problem. DHS will publish a list of participating countries based on factors which include, but are not limited to, the country's cooperation in the repatriation of its nationals, citizens, subjects, or residents who are subject to a final removal order. Therefore, the commenters' suggestion is not adopted. Comment: One commenter objected to this proposal, stating that this provision may cause H-2B aliens from such countries who are already present in the United States (knowing that they would not be able to obtain an H-2B visa again) to overstay their visas if/when their requests for an extension are denied, with the full knowledge that they would not be eligible for any subsequent H-2B visa issuance, and therefore, if they overstayed, DHS would not have the means to remove them. Response: Each alien is required to depart the United States once his or her authorized period of stay has expired. Additionally, this proposal, as modified in this final rule, will create an incentive for countries to better cooperate with the United States regarding the timely repatriation of aliens who are subject to a final order of removal. Comments: Two commenters stated that this regulatory provision is unnecessary because the authority to deny visa issuance to nationals of these countries already exists in the statute. Response: DHS finds that this change as modified in this final rule is needed in order to preclude DHS from approving a petition filed on behalf of one or more aliens from such countries at the start of the process. Adopting this change will save DHS from the unnecessary allotment of the limited number of H-2B visas to aliens who will be found by the Department of State to be ineligible for H-2B visas pursuant to INA section 243(d), 8 U.S.C. 1253(d). Comment: A few commenters requested that a list of such countries should be provided to the public as it may impact some employers' ability to use the program. Response: DHS will publish a notice in the Federal Register listing eligible countries and expects to publish a new list prior to the expiration of the previous designation. 4. Temporary Labor Certifications a. Consideration of Petitions Lacking an Approved Temporary Labor Certification Comment: Fifty-two out of 57 commenters objected to the elimination of DHS's current authority to adjudicate H-2B petitions where the Secretary of Labor or the Governor of Guam has not granted a temporary labor certification. Response: After considering the commenters' objections, DHS nevertheless retains this proposal in this final rule, as discussed in the comments and responses below. 8 CFR 214.2(h)(6)(iv)(D), (E), (h)(6)(v)(C), and (D). Comment: Some commenters suggested that the INA does not support this provision because the INA vests the authority for the admission of H-2B workers with DHS, not DOL, and only requires consultation with appropriate agencies of the Government. Response: DHS is vested with the statutory authority to approve a petition for H-2B workers after consultation with DOL. INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1). DHS, however, does not have the expertise needed to make any labor market determinations, independent of those already made by DOL. For this reason, DHS finds that it is in the best interests of U.S. workers and the public that DHS not approve H-2B petitions when DOL has denied an employer's application for temporary labor certification. Comment: Many commenters were concerned that this provision has the potential do serious harm to employers by barring recourse for them when human errors occur in the temporary labor certification process. They suggested that DHS should not eliminate the fundamental right to appeal. Response: In its final H-2B rule, DOL establishes an appeal process for an employer whose temporary labor certification is denied. DHS believes that this DOL provision addresses these commenters' concerns. Therefore, under this final rule, DHS removes the provisions allowing the approval of H- [[Page 78111]] 2B petitions that are filed with denied temporary labor certifications. Comment: A few commenters suggested that DHS should accept and process petitions for H-2B workers based upon an appealed temporary labor certification with the U.S. Department of Labor, whether the current statutory limitation on H-2B visas has been met or not. Response: The final rule does not adopt this suggestion because DHS cannot accept H-2B petitions once the statutory limitation on H-2B visas has been reached. INA sec. 214(g)(1)(B) and 214(g)(10), 8 U.S.C. 1184(g)(1)(B) and 8 U.S.C. 1184(g)(10). Petitioners would derive no advantage by filing an H-2B petition with a pending DOL appeal, as there are no provisions authorizing DHS to set aside an H-2B visa number. Moreover, all applicants and petitioners must establish eligibility at the time of filing. 8 CFR 103.2(b)(1). USCIS has also determined that it would be an inappropriate intrusion into the DOL appeal process if DHS were to accept petitions before that process is complete. b. Employment Start Date Comment: Sixty-four out of 69 commenters opposed the proposal to prohibit H-2B petitioners from requesting an employment start date on the Form I-129 that is different from the date of need listed on the approved temporary labor certification. Many commenters stated that start dates have become problematic due to an unrealistic numeric cap imposed by Congress. Of those, the majority of commenters stated that this change would allow only employers who have a need for temporary H- 2B workers beginning on October 1 or April 1 to obtain H-2B visas due to the fact that, in recent years, allocation of the 66,000 annual H-2B visas has become increasingly competitive, causing the numeric cap of 33,000 visas in each half of the fiscal year to be reached within a few weeks of each filing period. Employers, particularly small business owners, with seasonal needs beginning in later months expressed concern that this change will effectively leave them ``shut out'' of the H-2B visa program. Furthermore, a number of commenters stated that the only way the proposed regulation can be fair to all employers is if the 66,000 H-2B visas are allocated evenly each month. Four commenters expressed support for this proposed change. One commenter who supported this change expressed concern that the practice of altering the employment start date for H-2B workers would result in depriving recently unemployed domestic workers of job opportunities. Response: The final rule retains the provision prohibiting the employer from requesting an employment start date on Form I-129 that is different from the date of need listed on the accompanying approved temporary labor certification. See new 8 CFR 214.2(h)(6)(iv)(D). However, H-2B employers who have already started the labor certification process as of the date of publication of this rule and wish to change their stated employment start dates would be required to apply for new temporary labor certifications using a new employment start date to comply with this change. Further, DHS believes it would be confusing to employers if DHS implemented this new process to reject petitions that do not comply with this provision during the anticipated surge in the number of petitions for the second half of FY 2009. Therefore, DHS has determined that this provision will take effect for the FY 2010 filing and will not apply to H-2B petitions that are being filed for the second half of the FY 2009 cap. DHS recognizes the concerns of the commenters that requiring the petition start date to reflect that of the temporary labor certification may have the effect of disadvantaging certain filers whose employment start date begins more than four months after the beginning of the first or second half of the fiscal year. Congress's intent in requiring the biannual allocation of the H-2B annual numerical limitation (see section 214(g)(10) of the INA, 8 U.S.C. 1184(g)(10)) was to provide relief to seasonal employers who might not otherwise be able to use the H-2B program. With respect to the comments urging that DHS change its method of allocating H-2B numbers to address this concern, we note, preliminarily that it is unclear whether Congress, in enacting section 214(g)(10) of the INA, 8 U.S.C. 1184(g)(10), contemplated further divisions of allocations during specific periods of the year (such as on a monthly or quarterly basis), or that such allocations would adequately address the problem identified by the commenters. However, DHS did not provide for any such allocation in its proposed rule. The public, therefore, has not had an adequate opportunity to express its views as to the desirability of changing to a monthly or other type of H-2B number allocation system, as suggested by these commenters. DHS recognizes, however, that even if certain seasonal employers might derive benefit from a change in the current allocation methodology, there nevertheless exists the possibility that, given the lack of sufficient numbers in previous years based on high demand for H-2B numbers, other seasonal employers would still face being cut. In any event, there are strong arguments in favor of adopting the same employment start date requirement in this final rule. As noted in the Supplementary Information section of the proposed rule, the purpose of this requirement is to preclude certain petitioners from competing unfairly with other prospective employers for the limited number of H- 2B visa numbers available by using a fictitious employment start date in order to be considered in the semi-annual allocation process. Additionally, the proposed rule is intended to ensure compliance with section 101(a)(15)(H)(ii)(b) of the INA, 8 U.S.C. 1101(a)(15)(H)(ii)(b), regarding unavailability of U.S. workers. Requiring that an employer adhere to the start date stated in the approved temporary labor certification will ensure that U.S. workers are able to make an informed decision as to their availability to fill the position in question on the actual employment start date. For these reasons, the final rule retains the same employment start date requirement. See new 8 CFR 214.2(h)(6)(iv)(D). Comment: Many commenters expressed concern that the provision to prohibit the employer from changing the employment start date will have a severe negative effect on employers who have made every effort to comply with H-2B visa requirements. Under this provision, employers unable to obtain H-2B workers for the first half of the fiscal year (due to the numeric cap), will need to begin an entirely new recruitment process by filing a new temporary labor certification with DOL 120 days prior to the filing period for the second half of the fiscal year. Response: The final rule retains the provision prohibiting the employer from requesting an employment start date on Form I-129 that is different from the date of need listed on the accompanying approved temporary labor certification. See new 8 CFR 214.2(h)(6)(iv)(D). DHS recognizes the efforts employers make to file H-2B petitions in a timely manner and the frustration experienced by the lack of available visa numbers. The commenters should be aware, however, that such unavailability of visa numbers is a result of the statutorily-imposed numerical limitations on the H-2B category and the heavy demand for such numbers by prospective employers rather than any action on the part of DHS. Moreover, in administering the H-2B program, DHS is under a mandate to ensure compliance with section [[Page 78112]] 101(a)(15)(H)(ii)(b) of the INA, 8 U.S.C. 1101(a)(15)(ii)(b), which requires that willing U.S. workers be unavailable to fill the position in question. As discussed above, the only way DHS can satisfy itself that there has been a fair and accurate labor market test and that there is in fact a shortage of U.S. workers is by receiving a temporary labor certification from DOL covering the employment period set forth in the petition, including the same employment start date. Accordingly, if an employer is not able to obtain the needed number of H-2B workers in the first half of the fiscal year, and remains eligible to file a petition in the second half of the year, then that employer must submit a new approved temporary labor certification from DOL covering the new employment period. Comment: Some commenters asked for clarification regarding the one exception to the prohibition on the change of the employment start date. Response: The exception is described in new 8 CFR 214.2(h)(6)(viii)(B). The sole exception is designed to be used by employers when they need to substitute beneficiaries who were previously approved for consular processing but not admitted with aliens who are currently in the United States. As new 8 CFR 214.2(h)(6)(viii)(B) provides, such an amended petition must retain a period of employment within the same half of the fiscal year as the original petition. Comment: Several commenters stated that employers need the flexibility to write a different start date in the petition when unforeseen circumstances occur. Although employers prefer that their petitions reflect the full period of need, since the allocation of the 66,000 annual H-2B visas has become increasingly competitive, the fact that employers can salvage at least part of the period of H-2B employment authorized on the temporary labor certification is important for companies. For example, if an H-2B employer is unable to receive the H-2B workers authorized by the Secretary of Labor at the start date specified on its temporary labor certification and there are no more H- 2B visas available, the employer would need the flexibility to apply again for H-2B workers for the second half of the year. If denied an H- 2B visa during the first filing period, the employer will unfairly have to restart the entire filing process from the beginning. Another commenter similarly responded that the ability of the program to cover graduated increases in workload is important and that it is imperative that employers be able to manage the start date of their H-2B employees. Response: As the ability to change the date of employment on the Form I-129 from that of the temporary labor certification has been exploited, DHS finds that this change is needed to curtail abuses and ensure the integrity of the H-2B temporary worker program. While there may be rare instances when an employer would need flexibility to change the date of employment due to an unforeseen circumstance, DHS finds that, in practice, an increasingly disproportionate number of H-2B employers have changed the date of H-2B employment on the Form I-129 in order to gain an unfair advantage in obtaining H-2B visas from the limited pool of 66,000 available H-2B visas. 5. Payment of Fees by Beneficiaries To Obtain H-2B Employment a. Grounds for Denial or Revocation on Notice Comment: Forty-seven out of 57 commenters opposed the proposal to authorize the denial or revocation of an H-2B petition if DHS determines that the petitioner knows or should know that the alien beneficiary has paid or has agreed to pay any fee or other form of compensation, whether directly or indirectly, to the petitioner, to the petitioner's agent, or to any facilitator, recruiter, or similar employment service in connection with obtaining H-2B employment. Response: After carefully considering these comments, for the reasons stated in the paragraphs below, the final rule retains the proposal. DHS has the authority to deny or revoke an H-2B petition (following notice and an opportunity to respond) if DHS determines that the petitioner has collected, or entered into an agreement to collect, a fee or compensation as a condition of obtaining the offer of H-2B employment, or that the petitioner knows or should know that the beneficiary has paid or agreed to pay any facilitator, recruiter, or similar employment service to obtain H-2B employment. See new 8 CFR 214.2(h)(6)(i)(B). However, the final rule includes provisions to allow H-2B employers to avoid denial or revocation if one of 3 exceptions applies: (1) Prior to the filing of the petition, the alien beneficiary has been reimbursed for any prohibited fees the alien paid; (2) before the filing of the petition and payment of any prohibited fees, the agreement for the alien to pay such fees has been terminated; or (3) where an agent or recruiter violates the prohibition on collecting or agreeing to collect a fee without the petitioner's knowledge or reason to know, the petitioner notifies DHS of the prohibited payments or agreement within two work days of learning of such payments or agreement. A petitioner will not be able to avoid denial or revocation of the petition if DHS determines that the beneficiary paid the petitioner the prohibited fees after the petition was filed. It is contemplated that a petitioner who avoids denial or revocation of a petition based on timely notification of a recruiter or agent violation will be on notice to take precautions to ensure that its workers will not be required to make such prohibited payments in the future. DHS has determined that a prohibition on any payment made by a foreign worker in connection with the offer of H-2B employment is more restrictive than necessary to address the problem of worker exploitation by unscrupulous employers, recruiters, or facilitators imposing costs on workers as a condition of selection for the offer of H-2B employment. Accordingly, DHS has not included in the final rule the prohibition on payments made in connection with the offer of H-2B employment, but retains the prohibition on payments made to an employer, recruiter, facilitator, or other employment service by the foreign worker that are a condition of obtaining the offer of H-B employment. Comment: Some commenters who supported this proposal recognized this provision as an important step to deter petition padding, visa selling, and human trafficking schemes that lead to the effective indenture of H-2B workers. Another commenter stated that, rather than attestation from employers, DHS should instead propose meaningful enforcement measures that will empower guest workers. This commenter further suggested that the violation of this provision should result in debarment from the H-2B and other visa programs. Response: DHS has reached agreement with DOL regarding the delegation by DHS of statutory authority to DOL to establish an enforcement process to investigate compliance with the H-2B requirements and to remedy violations uncovered as a result by imposing fines or debarment. INA sec. 214(c)(14), 8 U.S.C. 1184(c)(14)(A). DHS and DOL have reached a mutually agreeable delegation of such enforcement authority. Appropriate debarment procedures will be instituted to implement new 8 CFR 204.5(o) and 214.1(k). Specifically, upon a debarment determination by DOL under 20 CFR 655.31, and exhaustion of an employer's administrative remedies provided under [[Page 78113]] DOL's H-2B regulations challenging such a DOL debarment determination, DHS may, under the authority provided DHS in section 214(a)(14)(A)(ii) of the INA, 8 U.S.C. 1184(a)(14)(A)(ii), deny both immigrant and nonimmigrant visa petitions for a period of one to five years, depending on the severity of the employer's violation leading to such DOL-debarment action. With regard to the H-2B program on Guam, it should be noted that, although the Governor of Guam, as opposed to DOL, continues to have the authority under 8 CFR 214.2(h)(6)(iii)(D) to establish procedures for administering the H-2B temporary labor certification program in the Territory of Guam, DHS retains its ultimate authority to invalidate a temporary labor certification issued by the Governor of Guam. 8 CFR 214.2(h)(6)(v)(H). Further, the authority of the Governor of Guam to issue temporary labor certifications in that territory does not in any way limit the authority of DHS to take any action it deems necessary under section 214(a)(14)(A)(i) or (ii) of the INA, 8 U.S.C. 1184(a)(14)(A)(i) or (ii). Comment: One commenter, stating that small businesses can do little to curb malicious behavior/practice in foreign countries, requested that DHS change the legal standard so that an employer would only be liable for actually ``knowing'' that a worker paid a recruiter or labor contractor, which may decrease employer confusion and liability. Response: DHS does not believe that including ``should know'' in addition to the ``knowing'' standard that was contained in the proposed rule imposes excessive risks of a violation or liability on the employer. The employer is responsible for initiating the recruitment process and chooses whom it will use to obtain foreign labor. The U.S. employer has control over whether to use recruiters and the terms and conditions of any recruitment arrangement, including the costs of such services. The employer can comply with this requirement by making reasonable arrangements and inquiries as to whether its employees have paid or will be required to pay a fee. Comment: Many commenters argued that this proposal is unreasonable and that it does not afford any protections to the employer. They stated that overseas recruiters are engaged in actions beyond the employer's control and that the employer is not involved in, and has no knowledge of, any agreements made between an overseas recruiter and the temporary worker. Some commenters also raised concerns about workers who may abandon their employment after making a false claim about the payment of prohibited fees, resulting in reimbursement by the employer. Response: DHS recognizes this concern and notes that it will serve notice of intent to revoke on a petitioner before revoking an H-2B petition. The employer will be provided with an opportunity to respond and submit documentation responding to the notice. To protect a petitioner who discovers, after the filing of the petition, that the alien worker paid or agreed to pay an employment service the prohibited fees, the final rule provides that the petitioner can avoid denial or revocation by notifying DHS within two work days of obtaining this knowledge as an alternative to reimbursing the alien or terminating the agreement. New 8 CFR 214.2(h)(6)(i)(B)(4). DHS will publish a notice in the Federal Register to describe the manner in which the notification must be provided. DHS does not believe that it is appropriate to impose the same adverse consequence on petitioners who discover a post-filing violation by a labor recruiter that is imposed on more culpable petitioners who themselves violate the prohibition on collection of fees from H-2B workers, nor should petitioners have to pay for the recruiter's violation by reimbursing the alien. Petitioners should be encouraged to report information about post-filing wrongdoing by labor recruiters, even if reimbursement is not possible. In this way, DHS can help provide further protections to H-2B workers against unscrupulous recruiter practices. Further, where the petitioner does not reimburse the beneficiary and DHS denies or revokes the H-2B petition, the final rule provides that a condition of approval of subsequent H-2B petitions filed within one year of the denial or revocation is reimbursement to the beneficiary of the denied or revoked petition or a demonstration that the petitioner could not locate the beneficiary despite reasonable efforts to do so. New 8 CFR 214.2(h)(6)(i)(D)(1). This requirement is intended to balance the commenters' concerns that an H-2B alien worker should not be required to pay fees as a condition of the offer of obtaining H-2B employment with the legitimate concern that petitioners who run afoul of new 8 CFR 214.2(h)(6)(i)(B) but have attempted in good faith to remedy their noncompliance continue to have access to the H-2B program. The question of whether a petitioner will be able to demonstrate to DHS that it has exercised reasonable efforts to locate the alien worker will depend on the specific facts and circumstances presented. In this regard, DHS will take into consideration the amount of time and effort the petitioner expended in attempting to locate the beneficiary and will require, at a minimum, that the petitioner have attempted to locate the worker at all of the alien's known addresses. The final rule also clarifies that the one-year condition on petition approval will apply anew each time an H-2B petition is denied or revoked on the basis of new 8 CFR 214.2(h)(6)(i)(D)(2). Comment: A few commenters suggested that DHS should target its foreign worker abuse provisions toward foreign labor contractors and recruiters that are responsible for the abuses of the H-2B program. Another commenter suggested that DHS work with the Department of State to develop a list of good and bad foreign recruiters and foreign labor contractors so that those that have been found to engage in undesirable practices with regard to H-2B workers would not be allowed to continue recruiting workers from abroad. Response: DHS has no authority to enforce the labor laws of any foreign country nor can it specifically regulate the business practices of recruiters in any foreign country. Since no program for foreign recruiter accreditation was proposed, the establishment of such a program exceeds what can be provided for in this final rule. Also, DHS cannot limit the use of recruiters and facilitators for H-2B purposes to those that maintain an office in the United States and have a license to do business in the United States according to Federal and State laws. However, DHS finds merit in the suggestion and will discuss this matter with the Department of State in the future to determine the feasibility of monitoring foreign recruiters so as to be able to provide information on recruiters and their practices to the affected public. Comment: Many commenters who objected to this proposal suggested that it increases the burden on U.S. employers and makes the cost of the program, which is already expensive, more prohibitive. Response: While DHS understands that this rule requires employers to bear these costs, this provision is necessary to ensure that the actual wages specified on the temporary labor certification will, in fact, be paid to the H-2B worker, thereby ensuring the validity of the labor market test and compliance with section 101(a)(15)(H)(ii)(B) of the INA, 8 U.S.C. 1101(a)(15)(H)(ii)(B). The choice whether to use recruiters or facilitators and the terms and costs for such services is left entirely to the employer. [[Page 78114]] Comment: A number of commenters stated that they could not effectively run their businesses if they did not use their international agents and recruiters. Similarly, a few commenters objected, stating that there is no statutory authority in the INA for DHS to prohibit prospective workers from paying a recruiter or facilitator. They stated that it is a longstanding practice that foreign agents collect fees from those who wish to find work in the United States and who need assistance with their visa applications and/ or the admission process, and in fact, such services have become essential with constant changes in the visa application procedures at U.S. consulates abroad. A few commenters expressed concerns that this provision will disadvantage workers who need help with the process (e.g., who are illiterate, unable to use computers, etc.). Response: DHS believes that these comments misinterpret the proposed change. The proposal would neither prohibit the use of such recruiters or facilitators during the recruitment or visa application process nor the collection of fees that have been paid by the petitioner. Instead, the proposal would prohibit the imposition of fees on prospective workers. It would not preclude the payment of any finder's or similar fee by the prospective employer to a recruiter or similar service, provided that such payment is not assessed directly or indirectly against the alien worker. Under section 214(a) of the INA, 8 U.S.C. 1184(a), DHS has plenary authority to determine the conditions of all nonimmigrants' admission to the United States, including H-2B workers. It is thus within the authority of DHS to bar the payment by prospective workers of recruitment-related fees as a condition of an alien worker's admission to this country in H-2B classification. This provision does not prevent disadvantaged workers from seeking assistance from accredited representatives duly recognized by DHS. Comment: Several commenters asked DHS to distinguish between fees for recruitment, and DOL and DHS processes with fees, imposed by the employer or a third party, associated with helping prospective workers to complete visa application forms. They further stated that a fee of $60 should be allowed to be paid by the potential worker to gain assistance. A commenter suggested that DHS should initiate a reasonable cap on what fees can be charged to the prospective workers. Another commenter stated that the term ``indirect fees'' is of particular concern, as it is overly broad and will likely increase litigation. Response: The types of fees that petitioners and recruiters will be prohibited from passing onto H-2B workers include recruitment fees, attorneys' fees, and fees for preparation of visa applications. The final rule does not provide a list of prohibited fees, so that the prohibition against impermissible fees remains general, covering any money paid by the beneficiary to a third party as a condition of the offer of H-2B employment. However, the final rule provides that prohibited fees do not include the lower of the fair market value of or actual costs for transportation to the United States, or payment of any government-specified fees required of persons seeking to travel to the United States, such as fees required by a foreign government for issuance of passports and by the U.S. Department of State for the issuance of visas, to the extent that the passing of such costs to the worker is not prohibited by statute. As such costs would have to be assumed by any alien intending to travel to the United States, DHS believes that each alien should be responsible for them, (except where the passing of such costs to the worker is prohibited by statute). New 8 CFR 214.2(h)(6)(i)(B)(3). Comment: Some commenters found that this provision is unclear as to how, in practice, employers will be able to demonstrate reimbursement of any fees, compensation, or other remuneration not related to transportation costs or government-specific fees, particularly for H-2B workers who are only present in the United States for short periods of time and may work at remote worksites. Response: DHS finds that there can be many ways that proof of payment can be established, regardless of the location of a worksite or the length of an employment, with evidence such as copies of receipts, signed contracts, etc. Where a worker is only present for a short period of time, the petitioner may be able to reach the alien by using the alien's known address abroad, etc. As such, DHS finds that any further clarification is unnecessary in the final rule. Comment: One commenter stated that foreign workers should not be given more labor protections than U.S. workers. Since employers are not currently required to pay for U.S. employees' relocation costs or job search costs, they should not be expected to cover such costs for H-2B workers. Another commenter stated that it is not the place of DHS or DOL to dictate the terms and conditions of foreign worker recruitment. Response: DHS has a responsibility not only to protect U.S. workers, but also the foreign workers who are admitted into the H-2B program. As discussed above, DHS will retain in this final rule a provision eliminating the current practice of approving, in certain circumstances, H-2B petitions that are filed with denied or non- determination temporary labor certifications. This significant change will ensure that no H-2B petition is ever approved without a certification from the Department of Labor that an employer has performed adequate recruitment for U.S. workers to fill the temporary positions. The H-2B temporary nonimmigrant program often is a place of last resort for U.S. employers who cannot find sufficient U.S. workers. As such, use of this program may incur additional burdens on the employer. As the agency granted the authority to oversee the H-2B visa program, it is the duty and responsibility of DHS to prevent and protect H-2B workers from improper labor practices and abuse. DHS finds that this provision is necessary in order to ensure that H-2B workers are not charged excessive fees. Comment: One commenter suggested that the definition of the term ``agent'' be modified to exclude attorneys and other representatives as defined in 8 CFR 292.2, arguing that DHS should more directly target abusive recruiters, facilitators, or similar employment facilitators without unintentionally impacting the attorney-client relationship or inhibiting an employer's and H-2B worker's rights to seek counsel. Response: DHS disagrees with the commenter's concern that, with respect to the collection of fees from H-2B workers, the current definition of ``agent'' should exclude attorneys and other representatives. This rule is intended to prohibit the collection of fees or other compensation from a prospective or actual H-2B worker by anyone or any entity as a condition of an offer or condition of H-2B employment. The rule is not intended to limit the employer's or H-2B worker's right to seek counsel, but would prohibit imposition of petitioner's agent/attorney fees on an alien. Furthermore, it is not intended to have any impact on the attorney-client relationship or on an alien's ability to secure his or her own counsel at his or her own volition and not as an express or implicit condition to securing the H- 2B employment. DHS believes that it is appropriate to consider an attorney to be an agent, as it does in other [[Page 78115]] circumstances. 8 CFR 214.2(h)(2)(i)(F). When an attorney or other representative files a petition, it stands in the shoes of the employer and appropriately is charged with ensuring compliance with that the statements made in the petition, and the responsibilities assigned to petitioners and employers, including regarding the alien worker reimbursement provisions of the regulations. b. Employer Attestation Comment: Eight out of 13 commenters opposed the attestation requirement for H-2B petitioners. One commenter suggested that the employer's attestation should be added as part of the Form I-129. A few commenters were concerned about the undue burdens being placed on the H-2B employer by this additional requirement. Response: DHS has carefully considered the attestation requirement and has determined that a separate attestation requirement is not necessary. A proposed separate attestation requirement in the regulations would be duplicative. However, an attestation relates to eligibility requirements that the petitioner must demonstrate on the H- 2B petition that the petitioner must sign as being true and correct. DHS will amend the Form I-129 to include the attestation requirements to minimize the burdens on the H-2B petitioner. Comment: Six commenters responded negatively to this proposal, questioning the effectiveness of the employer's attestation. A few commenters also stated that the employer's attestation would have only a marginal impact if DHS enters into an agreement to delegate auditing and enforcement of petitions to DOL. Another commenter suggested that a certain degree of employer attestation in the current regulations is seldom verified by DHS. Response: DHS has reached agreement with DOL concerning the delegation of authority under section 214(c)(14) of the INA, 8 U.S.C. 1184(c)(14), to establish an enforcement process to investigate compliance with H-2B petition requirements, including violations of the requirements of the temporary labor certification process, and to impose certain administrative sanctions for violations disclosed by any resulting investigations. DHS notes that the attestations made by petitioners, under penalty of perjury, would not be rendered superfluous by the delegation of authority under section 214(c)(14) of the INA, 8 U.S.C. 1184(c), as the information would be of use to DHS in its own investigations of petition violations. 6. Denial of Petition and Revocation of Approval of Petition Comment: DHS received seven comments on the proposal to amend 8 CFR 214.2(h)(10)(ii) and (h)(11)(iii)(A)(2) to provide for the denial or revocation of petitions on notice where statements on the petition (or temporary labor certification in the case of revocation) are untrue, inaccurate, fraudulent or misrepresented a material fact. Five out of seven comments opposed the provision. A couple of commenters recommended that the rule allow for an appeals process within DHS. Response: After considering the comments, the final rule adopts the proposal. DHS already has in place procedures which provide petitioners with the opportunity to appeal the denial or revocation of a petition for this nonimmigrant classification. See 8 CFR 103.3(a)(1)(ii). Comment: Commenters questioned DHS's authority to make determinations on whether the facts were inaccurate, fraudulent, or misrepresented on a previously approved temporary labor certification. Response: In reviewing whether a petition is approvable, DHS reviews all of the necessary documentation that is required to be submitted with the petition, including the underlying temporary labor certification and any accompanying documentation. In so doing, DHS may examine elements that are presented not only on the petition, but on the temporary labor certification as well for consistency such as stated wages, the nature of the job offered, the location, and other factors common to both petition and temporary labor certification. It is not new to DHS to make determinations, often upon further inquiry, as to misrepresentations, material omissions, discrepancies and the like. While DHS will not go into the merits of the determination previously made by DOL, DHS is responsible for ensuring the integrity of the H-2B program, that the facts presented in the entire petition package are true and verifiable. Where it is established on notice and with opportunity to respond, that the statement of facts contained in the petition or on the application for a temporary labor certification was inaccurate, fraudulent, or misrepresented, DHS acts completely within its authority to deny or revoke a petition. In other words, DHS disagrees with the commenters that it must simply ignore misrepresentation or fraud solely because such appears more prevalently on the temporary labor certification document. It is inevitable that any material misrepresentations or fraud at any stage of the H-2B process will taint the entire process. 7. Employer Notifications to DHS of H-2B No-Shows, Terminations, or Abscondments Comment: Eight out of 20 commenters objected to the requirement of notifying DHS in three instances within 48 hours for a variety of reasons as explained fully below. Response: After careful consideration of the comments, the final rule adopts this provision with minor modifications. The final rule requires H-2B petitioners to notify DHS within two work days in the following instances: Where an H-2B worker fails to report to work within 5 work days of the date of the employment start date on the H-2B petition; where the nonagricultural labor or services for which H-2B workers were hired were completed more than 30 days early; or where an H-2B worker absconds from the worksite or is terminated prior to the completion of nonagricultural labor or services for which he or she was hired. New 8 CFR 214.2(h)(6)(i)(F)(1). The final rule clarifies that the H-2B worker must report to work within 5 ``work days'' of the employment start date, rather than the proposed 5 days. The H-2B employer must report a violation to DHS within two work days, rather than the proposed 48 hours. The final rule adopts the term ``work days'' to clarify the reporting deadlines for H-2B employers. As discussed previously, the final rule does not include the proposal that the employer may establish an employment start date that is different than the start date stated on the H-2B petition for purposes of determining when the notification requirement is triggered where the H- 2B worker fails to report for work. This change from the proposed rule is necessary to be consistent with the requirement in this rule that petitioners retain the same employment start date on the H-2B petition as the date of employment need stated on the temporary labor certification approved by the Secretary of Labor. Comment: Several commenters suggested that this provision represents a significant administrative burden on employers. They stated that a notification within 48 hours would be burdensome because it may be impossible for the employer to know with certainty that the H-2B worker absconded from the worksite. Response: DHS disagrees with the commenters' concerns on these points, because the proposed rule defined the circumstances causing an H-2B worker [[Page 78116]] to be an absconder. An absconder is defined as a worker who has not reported to work for 5 consecutive work days without the consent of the employer. New 8 CFR 214.2(h)(6)(i)(F)(2). Therefore, the employer will know whether the H-2B worker has absconded, and whether the regulatory requirement to report this incident to DHS has been triggered. Once the H-2B worker is deemed to be an absconder in accordance with the regulatory definition of absconder, the employer has two additional work days to report this event to DHS. Comment: Some commenters requested that DHS create a simple reporting method via the Internet and/or over the phone to comply with the notification requirements. Response: A notice outlining the notification requirements will be published in the Federal Register. In that notice, DHS will provide a designated e-mail address and alternate mail address for employers to send notifications. DHS believes that establishing a dedicated e-mail address for notification purposes will reduce the burden on employers. As H-2B petitioners are required to retain evidence of notifications and make such evidence available for inspection by DHS officers for a one-year period, the final rule does not adopt the suggestion that notification be available by telephone, because that suggestion would interfere with the retention requirement. Comment: One commenter asked how the employer is expected to handle the situation where an H-2B worker is hospitalized due to an accidental injury and is unable to communicate, then at a later date contacts the employer and returns to work upon completion of the treatment for the injury. Response: In the event that an H-2B employer encounters a situation where it chooses to reinstate an absconded employee who has been reported, DHS strongly suggests that the employer notify DHS in the same manner as the original notification. The information will be updated accordingly; however, the employer should document such an incident to support a claim during any future inspection. Comment: A few commenters were concerned that, together with the new provision to preclude a new grant of H-2B status where the alien worker violated the conditions of H-2B status within the 5 years prior to adjudication of the new H-2B petition, this notification is not fair to a worker who absconds but returns home promptly and to a worker who is reported as having absconded but really has left to pursue other H- 2B employment. Response: Once an employee absconds, there is no truly effective way for the employer or DHS to verify such employee's whereabouts. The employee could have left the country or could have been working for another employer. If the employee left the United States, he or she should have evidence to establish he or she departed the United States. If an employee is approved and does work for another U.S. employer, he or she should be able to present such documentation to DHS in case of an inspection. This provision is intended to ensure that all H-2B workers maintain legal immigration status. DHS has no intention of imposing adverse consequences on workers who leave the United States or start working for another employer as long as they do so legally. Comment: A few commenters stated that it is a complex legal issue to determine an alien's status and the reporting requirements will force H-2B employers to make such a determination and thus potentially expose them to legal liability from the employees. Response: DHS disagrees with the commenter because DHS does not expect an H-2B employer to make any determination on any alien worker's legal status outside of the requirements to verify employment eligibility pursuant to section 274A of the INA, 8 U.S.C. 1324a. Once DHS receives a notification from the employer that an alien has not shown up, has been terminated, or has absconded, DHS will review the notification, make a determination regarding the alien worker's status, and decide on any further action, as appropriate. DHS, not the employer, will make any determination regarding the alien worker's status. Comment: One commenter suggested that DHS should allow standard arbitration language as part of the foreign worker placement process and the employee should be allowed to agree to mediation or arbitration of any issues. The employer should be relieved of further responsibility to the worker if he or she disappears without attempting arbitration. Response: DHS does not specifically regulate the business practices between private parties under existing authorities. Thus, the final rule does not adopt this suggestion, as it is beyond the scope of this rulemaking. Comment: One commenter recommended that DHS reconcile its requirements for employers to notify DHS of an H-2B worker no-show, termination, or abscondment with those proposed by DOL for their H-2B regulations. Response: DHS shares the commenter's concerns that employers should not be confused by inconsistencies between the two agencies' reporting requirements. Therefore, in developing the final rule DHS has worked with DOL to ensure that the agencies' requirements for reporting H-2B employee no-shows, early terminations, and abscondments are consistent with each other. Comment: There were several comments that pointed out the lack of resources at DHS and therefore the lack of enforcement. They suggested that, given the fact that DHS is unlikely to use its limited resources to pursue these reported alien workers, the notification requirements will accomplish little while imposing burdens on employers. Response: DHS disagrees with the commenters' concerns. All notifications will be reviewed and enforcement actions will be taken, as appropriate. Comment: One commenter opposed this provision, stating that H-2B employers will likely abuse the reporting process to threaten workers, such as workers who leave their jobs because of unlawful conditions, because promised work is not available to them, or because they have been injured on the job. Response: The purpose of the reporting requirement is to enable DHS to keep track of H-2B workers while they are in the United States and take appropriate enforcement action where DHS determines that the H-2B workers have violated the terms and conditions of their nonimmigrant stay. The reporting requirement is not, however, intended to be used by employers as a threat against their alien workers to keep them in an abusive work situation. Allegations of improper reporting, abuse and/or intimidation are subject to investigation and enforcement action by DHS and other government agencies. If DHS determines that an employer is engaging in worker intimidation or other abuses, such employer will be, at a minimum, in violation of the terms and conditions of its H-2B petition and therefore subject to having its petition revoked on notice under 8 CFR 214.2(h)(11)(iii)(A)(3). For this reason, DHS disagrees with the commenter's concerns and will adopt the proposed provision. 8. Violations of H-2B Status Comment: Four out of seven commenters opposed the proposal to add a new provision to the regulations (proposed 8 CFR 214.2(h)(6)(ix)) that would preclude a new grant of H-2B [[Page 78117]] status within five years of an alien worker's having violated the conditions of H-2B status, other than through no fault of his or her own. One commenter argued that DHS lacks the authority to impose additional or more restrictive grounds of inadmissibility on applicants. Another commenter stated that although DHS justifies the proposed 5-year bar for H-2B workers by comparing it to the existing bar in the H-2A agricultural temporary worker program, there are multiple disparities between the H-2A and H-2B programs. The commenter noted that the H-2B program does not require the H-2A program's Adverse Effect Wage Rate, worker's compensation insurance, free housing, free transportation, free tools, 75 percent work guarantee, 50 percent U.S.- worker hiring rule, and other benefits and protections, all of which could be promulgated by regulation in the H-2B program. Moreover, H-2A workers qualify for Legal Services Corporation (LSC)-funded legal representation whereas H-2B workers do not. Response: DHS carefully considered the comments and has decided not to adopt the proposed provision to preclude a new grant of H-2B status where the alien worker violated the conditions of H-2B status, other than through no fault of his or her own, within the 5 years prior to adjudication of the new H-2B petition by DHS. In light of the comments opposing the proposal, DHS finds that the provisions it has adopted in this final rule that are intended to enforce the terms and conditions of an alien's admission and compliance with H-2B program requirements are sufficient at this time. However, DHS may consider the proposal in the future. Note that DHS's decision not to impose the 5-year bar does not alter existing requirements regarding maintenance of status. Comment: A few commenters suggested that there should be a process whereby a worker can request a review and reinstatement based on previous experience where the workers were improperly detained and deported by U.S. Immigration and Customs Enforcement (ICE) while they were actually in status. Response: ICE is charged with enforcing the laws against the employment of unauthorized aliens and with detaining and removing aliens. ICE's policies and authorities are outside of the scope of this rulemaking. 9. Temporary Worker Visa Exit Program Pilot Comment: Five out of thirteen commenters expressed support for the proposal to add a new provision at 8 CFR 215.9 that establishes the Temporary Worker Visa Exit Program Pilot. The commenters are in favor of the Temporary Worker Visa Exit Program Pilot because it will improve the exit control system at the U.S. border and will also provide data that accurately reflects the number of H-2B workers that remain in the U.S. illegally. Response: DHS carefully considered all of the comments and appreciates those that are in favor of the Temporary Worker Visa Exit Program Pilot and adopts the proposed provision at 8 CFR 215.9. Those comments that are not favorable or express concerns about the program are discussed more fully below. Comment: Several commenters requested additional information regarding the Temporary Worker Visa Exit Program Pilot and the ports of entry that will participate in the program. Response: CBP will publish a notice in the Federal Register to provide further details about the program pilot including the ports of entry that will participate in the pilot. The notice will also provide the biographic and biometric information that will need to be provided by those H-2B workers and the means by which they can provide the information upon departure. Comment: Some commenters expressed concern that it is currently very difficult for H-2B workers to submit the Form I-94, Arrival- Departure Record, to CBP and have the CBP agent note they are leaving the United States. These commenters note that this is especially true if the H-2B workers leave the United States at a land port via bus. The commenters suggest that CBP make it a rule that all buses need to stop and allow the passengers to cancel their I-94 when they leave the United States. Response: The Temporary Worker Visa Exit Program Pilot will facilitate the exit process by providing kiosks that allow for easy scanning of H-2B workers' travel documents and the deposit of their I- 94. While the commenters' suggestion that CBP should require all buses that travel across the border to stop for immigration purposes is appreciated, the comment is beyond the scope of this rule. Comment: Some commenters expressed concerns regarding the re- admission of H-2B workers who depart the United States during their term of admission in the United States. Response: The implementation of the Temporary Worker Visa Exit Program Pilot does not change the documentary requirements or the terms of admission or re-admission to the United States after a brief departure for H-2B workers admitted under H-2B classifications. Additionally, the requirement that an H-2B worker depart through one of the participating ports of entry and present designated biographic and biometric information applies only to the alien's final departure, at the end of his or her authorized period of stay. Comment: Several commenters expressed concern that, if there are insufficient ports of entry participating in the program (e.g., there are no participating ports in the geographical vicinity of the H-2B employer), it will impose an undue burden on those H-2B workers that must depart through a port participating in the program. Response: The Temporary Worker Visa Exit Program Pilot is being initiated at two ports of entry. Only those H-2B workers that enter the United States at one of the two ports participating in the program pilot will be required to depart from one of the participating ports. Moreover, most H-2B workers generally are admitted at the port of entry that is most convenient to their residence. Therefore, it would generally be expected that H-2B workers would depart from the port of entry that is most convenient to their residence in their home country. By initially conducting the program pilot at two ports, CBP is minimizing the impact of the program pilot while at the same time collecting the data and information necessary to make determinations regarding expansion of the program in the future. Comment: One commenter suggested that when H-2B workers leave their employers early, DHS should be informed so that DHS can stay in contact with the H-2B workers and the Temporary Worker Visa Exit Program can know which H-2B workers have left the country. Response: Pursuant to 8 CFR 214.2(h)(6)(i)(F), employers are required to notify DHS if an H-2B worker fails to report for work within 5 work days of the employment start date stated on the petition, absconds from the worksite, or is terminated prior to the completion of the services for which he or she was hired. Comment: Some commenters questioned whether H-2B workers would be allowed to depart only through ports of entry participating in the program. Response: Only those H-2B workers who enter the United States at one of the two ports participating in the program pilot will be required to depart at the end of their authorized period of stay from either one of the participating ports. [[Page 78118]] Comment: One commenter requested the opportunity to have stakeholder input through notice and comment on the implementation process for the Temporary Worker Visa Exit Program Pilot. Response: DHS believes that stakeholders have been given the opportunity to provide input on the program pilot through this rulemaking. Comment: One commenter expressed concern that H-2B workers will not receive sufficient notice of their responsibilities under the Temporary Worker Visa Exit Program Pilot. Response: DHS agrees that H-2B workers must be given sufficient notice of their responsibilities under the program. Accordingly, CBP will publish a Federal Register notice that will provide further details about the program pilot including the ports of entry that will participate in the pilot. The notice will also provide the biographic and biometric information that will need to be provided by those H-2B workers and the means by which they can provide the information upon departure. Additionally, upon admission into the United States, CBP will explain their obligations under this program, which is to register their final departure from the United States before or upon expiration of their work authorization. This explanation will include both verbal instructions and written walk-away materials (in both English and Spanish) to fully explain the pilot program to the participants. Comment: One commenter expressed concern that the Temporary Worker Visa Exit Program Pilot will facilitate illegal immigration. Specifically, the commenter expresses concern that unless biographic and biometric information are collected at arrival, departure procedures will not be effective. Response: The Temporary Worker Visa Exit Program Pilot will increase the ability of CBP to monitor the departure of workers admitted on H-2B visas. Currently, as part of the arrival process for most aliens, H-2B workers must submit both biographical (passport/visa) and biometric (fingerprints) information. The pilot program is designed to positively record the departure of H-2B workers by utilizing the biographic and biometric information submitted at the time of entry and departure. Thus, the pilot program is designed to reduce, not facilitate, illegal immigration. Comment: One commenter expressed concern that the proposed rule does not state the consequences for H-2B workers who fail to comply with the exit requirements. The commenter further states that if non- compliance with the pilot program requirements results in H-2B workers being denied H-2B status in the future, then the sanction would be unduly severe and would have a negative impact on employers who would be prevented from utilizing the services of H-2B workers in future years. Response: DHS recognizes these concerns. As discussed above, the final rule does not include the proposed provision to preclude aliens from being granted H-2B status based on a prior violation of the conditions of H-2B status, other than through no fault of their own, within the 5 years prior to adjudication of the new H-2B petition by DHS. 10. Temporary Need Comment: Seven out of 26 commenters supported the proposed rule amending the current definition of ``temporary services or labor.'' Under the proposed rule, a job would be defined as temporary where the employer needs a worker to fill a specific need that will end in the near definable future. The proposed rule would eliminate the ``extraordinary circumstances'' restriction for validity periods of more than one year and explicitly provided that such a validity period could last up to 3 years. A few commenters indicated that they supported these provisions without any additional changes. Response: DHS appreciates the comments received from the public in favor of the modified and more flexible definition of ``temporary,'' which is generally defined as a period of duration of one year, but could be for a specific one-time need of up to 3 years. This more flexible definition of ``temporary'' will allow U.S. employers and eligible foreign workers the maximum flexibility allowed under this program to complete projects with a definable end that require H-2B workers when U.S. workers are otherwise unavailable. For this and the other reasons stated in the proposed rule, DHS is retaining the proposed rule's amendment to the current definition of ``temporary services or labor.'' While a petitioner need no longer demonstrate ``extraordinary circumstances'' to justify an H-2B petition validity period of longer than one year, the 3-year maximum validity period is not intended to be a default, but would be available only where the petitioner can demonstrate a specific and typically one-time need for the worker's services for that period of time. Under the final rule, the validity period of an H-2B petition will therefore be tied to the nature and period of the employer's temporary need and not to any specific period of time. Comment: Several commenters stated that the amended definition of ``temporary services or labor,'' which could be for as long as 3 years based on a one-time need, will have a disproportionately adverse impact on domestic workers in the construction industry, which DHS singled out as the illustrative example justifying the changes. These commenters further stated that the requirement that employers must re-test the labor market each year does not represent a meaningful safeguard for current and future domestic construction workers, if DOL adopts the attestation-based system it proposed in their corresponding proposed rule. These commenters also proposed that DHS keep the H-2B program congruent with the H-2A program, which defines temporary to be a duration of generally one year or less. Response: DHS recognizes these concerns regarding the amended definition of ``temporary services or labor,'' but notes the following. First, while a ``temporary period of time'' is defined in the proposed rule as a period of up to 3 years, H-2B status will not necessarily be granted for the maximum 3-year period in every case. Three years is the maximum period of time permissible, but not necessarily the actual period of time needed for the specific job described on the temporary labor certification and in the H-2B petition. Therefore, each application for temporary labor certification will be evaluated on a case-by-case basis, considering the nature and specific needs of the job to be performed to determine if it is temporary. In cases where the H-2B employer requires the services of H-2B workers for more than one year, the H-2B employer is required to each year apply for and receive an approved temporary labor certification from DOL that re-tests the labor market and contains an accurate and current prevailing wage determination. DOL only grants another temporary labor certification to enable an extension of stay for the H-2B workers if that labor market test has been satisfied, and there are no able and qualified U.S. workers available to fill the positions in question and the employment of the foreign workers will not adversely affect the wage and working conditions of similarly employed U.S. workers. Lastly, in response to the comment that DHS keep the H-2B program congruent with the H-2A program, there are many similarities between the H-2A and H-2B programs; however, the H-2A program is specifically geared towards [[Page 78119]] the agricultural industry. Typically, an agricultural growing season is, by its very nature, a duration of less than one year. By contrast, the H-2B program covers a broad spectrum of industries, each representing divergent circumstances. An H-2B petitioner might be able to provide verifiable evidence of a one-time need for workers to complete a particular project within a specific period of time not to exceed 3 years. Therefore, DHS will retain without change the definition of ``temporary,'' as stated in the proposed H-2B rule. Comment: Several commenters stated that the period of time described in the proposed rule, longer than one year but shorter than the maximum 3-year period, would allow employers to bypass the former requirement that employers show extraordinary circumstances justifying a one-time need, and that it appears to coincide with the length of time required to complete most domestic construction projects. Response: DHS appreciates the concerns raised; however, the amended definition of ``temporary,'' which is generally one year but could last as long as 3 years based on a one-time need, is not geared to any one industry, nor is it intended to change the basic requirement that an employer's need in fact be temporary--rather than permanent--in nature. While it is true, therefore, that a petitioner need not establish the existence of extraordinary circumstances justifying a one-time need of duration longer than one year, this amended definition of the term temporary is still tied to an employer's specific needs, and is not intended to create as a default a validity period of greater than one year in duration. Instead, this amended definition of ``temporary'' accounts for circumstances that may necessitate the need for H-2B temporary workers for a period of more than one year. As a further protection for U.S. workers, this regulation also requires that, in cases where the employer's need exceeds one year, the employer submit to DHS a petition extension request, together with a newly approved labor certification issued by DOL covering the requested extension period. Comment: A few commenters inquired about how this rule could justify H-2B visas lasting up to a period of 3 years, noting that a job of 3 years is not temporary. Response: This rule defines the term ``temporary service or labor'' to be employment for which there is a need lasting a finite, specific period, generally defined as one year, but possibly as long as 3 years if there is a specific one-time need. The employer must establish that the need for the employee will end in the near, definable future. H-2B petitions will be granted for the period authorized on the temporary labor certification. As noted, each petition must be evaluated on its own merits, on a case-by-case basis. In this regard, the regulation contemplates a double-check system to ensure that the job in question is in fact temporary in nature. First, when seeking a temporary labor certification with DOL, the employer must not only describe to DOL the nature, scope, and duration of the temporary job, but also justify the need for temporary workers to fill those jobs for which U.S. workers are not available. USCIS will approve the H-2B petition for the validity period endorsed by the DOL on the approved temporary labor certification. If the temporary labor certification is not endorsed for the full validity period requested by the employer on the H-2B petition, USCIS will require an extension petition to be filed with a current temporary labor certification covering the extended validity period. Second, DHS retains the authority, even after DOL approves the temporary labor certification, to determine, at the time it adjudicates the H-2B petition, whether the petitioner's need is in fact temporary, that is, of a limited, finite nature. Similarly, DHS has the authority to revoke such a petition if it determines that the job is in fact not temporary in nature. Finally, it is important to understand that the changes in this rule to the definition of ``temporary labor or services'' do not alter what have always been the outer limits of permissible H-2B employment; even under current regulations it would be possible to demonstrate a temporary need of more than one year and possibly up to 3 years in duration, provided extraordinary circumstances were demonstrated. Comment: Two commenters opposed this provision, concerned that the change would allow employers in industries that in the past have relied heavily on the H-1B specialty occupation worker program (including the high-tech and construction industries) to now be eligible for the H-2B program (for types of employment for which the H-2B program was never intended) and overrun the limited supply of H-2B visas. One such commenter was concerned that H-1B employers and lawyers will seize upon this change and instantly ruin this program for employers in industries that have traditionally relied upon the H-2B visa program. Response: While DHS appreciates the concerns regarding numerical limitations on the H-1B and H-2B nonimmigrant programs, DHS believes that the requirement that H-2B employers establish that both the nature of the employment and the job itself are temporary sufficiently reduces the likelihood that foreign workers who would otherwise apply for H-1B visas will consume all the H-2B visas. Many types of H-1B employment do not satisfy the first requirement that the job itself be temporary. DHS disagrees with the commenters that admission of greater numbers of higher skilled qualified workers in the H-2B classification would ``instantly ruin'' the program for traditional H-2B petitioners. First, other than providing that the H-2B category be available to temporary nonagricultural workers, Congress generally did not specify or limit the types of jobs which an alien might fill in H-2B classification. The H-2B category is available to both professional and nonprofessional workers, provided that such persons meet the other requirements for H- 2B classification. That said, unlike the H-2B category, which requires that the employer's need be temporary in nature, the H-1B category allows petitioners to fill, on a temporary basis, specialty occupation positions that themselves are permanent in nature, that is, jobs for which the H-1B employer has a permanent need. For this reason, many persons who might qualify for H-1B classification would not be able to obtain H-2B status. Second, as an additional safeguard, Congress established numerical limitations on the total numbers of persons who may be granted H-2B status each year; those limitations do not favor any one industry over another. In short, in situations where the H-2B petitioner could in fact establish that its need for a worker is temporary in nature in a profession common to the H-1B classification (e.g., programmer analyst), that the alien would in fact be coming to the United States as an H-2B temporarily, and that all other requirements for H-2B classification have been satisfied, there is nothing in existing law that would preclude DHS from approving an H-2B petition on such a person's behalf. Comment: A few commenters expressed concern with requiring employers to retest the labor market for prevailing wage rates. These commenters indicated that this process was not only burdensome, but also time-consuming and expensive for employers, costing anywhere between [[Page 78120]] $500 and $1850. They also mentioned the concern that an H-2B worker employed on a multi-year visa might have to be fired if the labor test results in the employer being prevented from employing some or all of the previously approved H-2B workers (even if the U.S. Government approved such workers for H-2B classification erroneously). Finally, one commenter mentioned that re-testing the labor market for prevailing wage rates did not represent a meaningful safeguard for current and future construction workers if DOL were to adopt the attestation based system described in its proposed rule. Response: The requirement for employers to retest the labor market provides the safeguards needed to ensure that the amended definition of temporary work, which is generally one year, but potentially up to 3 years if there is a specific one-time need, and does not adversely impact the U.S. job market. Notwithstanding the costs of retesting the labor market each year, this system is geared towards ensuring that the employer is offering the prevailing wage rate, which is an inherent requirement mandated by section 101(a)(15)(H)(ii)(b) of the INA, 8 U.S.C. 1101(a)(15)(H)(ii)(b), and therefore, a legitimate cost of participating in the H-2B program. Comment: One commenter suggested that a new visa classification be created for skilled workers and workers who are coming to jobs that will last longer than one year to facilitate more specific and far reaching tests of the U.S. labor market, thereby ensuring that temporary foreign workers filling these longer term jobs are not displacing U.S. workers. Response: DHS appreciates this suggestion for a new and more flexible visa classification, but only Congress has the authority to create new or to modify existing visa classifications. Absent a statutory amendment, DHS lacks the authority to create a classification for the types of workers referred to by the commenter. We note, however, that some of these workers might be eligible for H-2B classification under this rule, while others might be eligible for classification in other nonimmigrant visa categories. Comment: One commenter asked whether DHS will count a 3-year visa against the cap for 3 consecutive years. Response: This provision provides no change to the way that H-2B aliens are currently counted against the H-2B visa cap. An alien is counted against the cap when an initial H-2B petition for consular notification or change of status is filed on his or her behalf. H-2B aliens requesting an extension of stay, for up to their total period of stay of 3 years, are exempt from the numerical limitations. 11. Interruptions in Accrual Towards 3-Year Maximum Period of Stay Comment: Two out of four commenters supported the proposed rule exempt certain periods of time spent outside the United States from being counted toward the 3-year maximum period of stay in H-2B nonimmigrant status. Response: The final rule adopts the proposed revision, reducing the minimum period spent outside the United States that would be considered interruptive of accrual of time toward the 3-year limit, where the accumulated stay is 18 months or less, to 45 days. If the accumulated stay is longer than 18 months, the required interruptive period will be 2 months. See new 8 CFR 214.2(h)(13)(v). Comment: Two commenters requested clarification of this proposal. Response: An alien worker's total period of stay in H-2B nonimmigrant status may not exceed three years. 8 CFR 214.2(h)(15)(ii)(C). In order to clarify what constitutes continuous presence in H-2B status, DHS determined to apply the same standard to the H-2B status as is used for H-2A ``temporary agricultural worker'' nonimmigrant classification. In the H-2A nonimmigrant visa classification, certain periods of time spent outside the United States are deemed to ``stop the clock'' toward the accrual of the 3-year limit on the total period of stay in that status. 8 CFR 214.2(h)(5)(viii)(C). In other words, if an alien who has been in the United States in H-2A status for a certain period of time that counts towards his or her 3- year maximum period of stay, then leaves the United States for one of the ``interruptive'' periods proposed in this rule, that time spent outside of the United States will not count towards the exhaustion of that alien's 3-year maximum period of stay in the United States. DHS recently revised these periods for the H-2A classification to streamline the program. Similarly, for H-2B nonimmigrants, the minimum period spent outside the United States that would be considered interruptive of accrual of time toward the 3-year limit, where the accumulated period of time the worker has physically been present in the United States H-2B status is 18 months or less, is 45 days. If the accumulated period of time the worker has been physically present in the United States in H-2B status is longer than 18 months, the required interruptive period is two months. 12. Substitution of Beneficiaries Comment: Seven out of 11 commenters supported the provisions allowing the substitution of beneficiaries who were previously approved with aliens either inside or outside of the United States. Some commenters indicated that they felt as though the provision would be very helpful and would provide employers greater flexibility to meet their staffing needs. Response: DHS appreciates these comments and agrees that this would make the H-2B program more user-friendly. Accordingly, the final rule adopts this provision. To ensure the integrity of the congressionally- mandated H-2B semi-annual numerical limitations, the final rule contains the caveat that the amended petition filed on the substituted beneficiaries' behalf must retain a period of employment within the same half of the same fiscal year as the original petition. Otherwise, a new petition, together with a new temporary labor certification, must be filed in order to effect the substitution. Comment: One commenter indicated that the fees should not be required for second or amended petitions. Response: DHS understands the concern but does not adopt the commenters' suggestion, because there will be additional labor and material costs incurred by USCIS in processing and adjudicating petitions for substituted beneficiaries. Section 286(m) of the INA, 8 U.S.C. 1356(m), allows USCIS to recover the costs incurred in providing these services. Comment: One commenter indicated that when seeking to substitute beneficiaries, the petitioner should be able to file on behalf of beneficiaries outside the United States and inside the United States on the same petition. Response: It is not operationally feasible for DHS to adopt this suggestion, as petition approvals on behalf of aliens who will be seeking consular processing abroad and petition approvals on behalf of aliens who will be applying within the United States for a change of status or extension of stay are generated and documented differently, as separate and distinct actions. This suggestion would require USCIS to take two separate actions (consular notification for aliens abroad and adjudication of the alien's application for change of status/ extension of stay for aliens in the United States) on one petition. DHS will not adopt the suggestion. Comment: With respect to the issue of substitution, one commenter inquired whether once the first half cap is [[Page 78121]] reached, substituted workers would be counted against the cap, and whether an amended petition could be filed to allow substituted workers to be used during the second half of the fiscal year. Response: The proposed rule specified that the amended petition to substitute workers must retain a period of employment within the same half of the fiscal year as the original petition. The purpose of this restriction is to ensure that employers who are substituting workers do not gain an unfair advantage with respect to obtaining cap numbers over others seeking H-2B numbers by gaining access to new workers during the second cap period, which is from April 1 through September 30 of each fiscal year. For example, if the employer, whose original petition was approved for an employment that starts on October 1, could not find all of the workers abroad, he or she is allowed to file an amended petition to substitute vacant positions with aliens who are already in the United States as long as the employment of the substituted worker starts prior to April 1 of the following year. Comment: One commenter opposed the proposed rule, stating that its adoption would severely harm prospective H-2B workers who frequently spend tremendous resources and leave employment in their home countries in order to enter the H-2B program. Response: DHS disagrees that adoption of the proposed rule will harm prospective H-2B workers abroad. The annual cap of 66,000 H-2B visas is reached earlier every year. The changes in this final rule will allow employers to maximize the number of approved H-2B workers available for employment regardless of their location. It will also allow H-2B workers to maximize their 3 years of H-2B visa eligibility, since employers can more easily apply for them. Further, DOL has provided protections, including the payment of return transportation, for aliens who are terminated. 13. Employer Sanctions Comment: Ten out of 20 commenters expressed support concerning the employer sanctions provisions. Some commenters found this provision to be misguided because it would specifically target employers who hire workers legally through the H-2B program instead of employers who hire falsely documented workers and/or undocumented workers. One commenter suggested that, along with this provision, an appeals process should be established for employers found to be in violation. Of those opposed to this provision, most found that these regulations do not go far enough to protect H-2B workers against exploitation and abuse or to prevent employers and recruiters from violating immigration and labor laws. One commenter stated, in particular, that the rule does not provide protection for workers from retaliation by employers and recruiters who violate the law. Response: After carefully considering the comments received on this provision, the final rule adopts the employer sanctions provisions. New 8 CFR 204.5(o) and 214.1(k). As such, DHS has delegated to the Department of Labor the authority to impose the administrative penalties described in section 214(c)(14)(A) of the INA, 8 U.S.C. 1184(c)(14)(A). 14. Miscellaneous Changes DHS proposed to amend 8 CFR 214.2(h)(6)(iii)(B), 214.2(h)(6)(v)(E)(2)(iii), and 214.2(h)(6)(vii) to correct typographical errors. DHS also proposed to amend 8 CFR 214.2(h)(8)(ii)(A) to codify the current numerical counting procedures for the H-2B classification. No comments were received on these proposals, and they will be adopted as final without change. IV. Rulemaking Requirements A. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. B. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign- based companies in domestic and export markets. C. Executive Order 12866 This rule has been designated as significant under Executive Order 12866. Thus, under section 6(a)(3)(C) of the Executive Order, USCIS is required to prepare an assessment of the benefits and costs anticipated to occur as a result of this regulatory action. A complete analysis of the costs and benefits of this rule is available in the docket for this rule at http://www.regulations.gov in rulemaking Docket No. USCIS-2007- 0058. 1. Comments From the U.S. Small Business Administration (SBA), Office of Advocacy In addition to the public comments received on the proposed rule, DHS received a comment from SBA, Office of Advocacy (Advocacy). The comment letter from Advocacy summarized the concerns that they heard from small business owners and representatives of the small business community. Advocacy's comments on the substance of the rule are addressed in the rule's preamble along with other comments received on the proposed rule, and their comments on the rule's estimated costs and benefits are summarized and addressed as follows: (i). DHS must disclose how it estimated the cost of $500 per employee for job placement fees, because the State Department has reported that applicants have paid foreign recruiters from $2000 to $20,000. The regulatory impact analysis for the final rule indicates that recruiting practices vary widely among employers and industries, and provides an explanation for how the estimate of $500 was determined. Also, as stated in the cost benefit analysis for the proposed rule, a detailed breakdown of what services were being provided in return for the $500 payment was not obtained, and none was provided in a comment on the rule. DHS included the entire $500 in its calculation of the costs of this change on employers so that the estimated costs would be at the highest point in the range of costs that would actually be imposed. Even using those liberal cost estimates, as shown below, the costs imposed by this rule do not result in a significant economic impact on the affected entities. (ii). DHS should quantify the costs to employers for the payment of the worker's indirect fees, such as attorney's fees, travel agent fees, and fees for assistance to prepare visa application forms. Advocacy indicated that the proposed rule stated that the prospective employer would be responsible for the payment of indirect fees, attorneys fees, travel agent fees, and fees for assistance to prepare visa application forms. The $500 estimated cost per employee that will result from this ban on fees is [[Page 78122]] intended to include incidental attorney's fees, travel agent fees, and fees for assistance to prepare visa application forms. Therefore they have been quantified. This provision will require an employer to ask the employee about any fees the employee may have paid. The fee allowable is dependent on: (a) What is paid after the employee establishes meaningful contact with the agent or recruiter and (b) whether the alien has an independent choice with respect to such payment. For example, if a Mexican national hears that a recruiter will be in Pueblo on Tuesday looking for landscapers he or she may, for example, pay bus fare to Pueblo, and the associated lodging and meals. However, once the Mexican national establishes meaningful contact with the recruiter, any fee that the recruiter makes the person pay (except for the limited exceptions specified) must be borne by the employer, otherwise that person is not eligible for H-2B status. Some of those fees, may, in fact be indirect fees that the recruiter is requiring as a condition for the recruitment. If the worker decides on his or her own to hire an attorney, for personal legal assistance unrelated to obtaining their H-2B job, or a travel agent for arrangement of personal travel, and the amounts paid are reasonable and not an obvious effort to get around this prohibition, or are not otherwise incurred at the behest or urging of the recruiter (such as an implied promise or other commitment to engage the alien if the alien presents himself or herself at a specific location or perform certain preliminary actions), then the employer need not reimburse the alien for such fees. Likewise, amounts for purely personal items or actions paid by the alien at the suggestion of the recruiter, such as, grooming or wearing freshly washed clothing, that might increase the worker's chances of getting the job, would not be required to be reimbursed. Ultimately, the determination of what may or may not be reimbursed to the employer is necessarily dependent on the specific facts surrounding the alien's engagement in or recruitment for the H-2B position. (iii). DHS should quantify the costs to employers to pay for transportation expenses for workers to return to their last place of foreign residence. DOL regulations make employers liable for return transportation if the employee is dismissed early by the employer. As stated above, this rule simply reinforces the DOL requirement. Even so, very few employers are expected to take the actions necessary to be subject to this sanction. (iv). DHS should attribute recordkeeping costs for employers that have to complete reasonable inquiries pursuant to the prohibition on fees. The final rule removes the separate attestation requirement that was proposed regarding use of employment services to locate H-2B workers, and knowledge of the beneficiary's payment of prohibited recruitment fees. DHS has determined that the attestation increased a petitioner's burdens, and duplicated information that petitioners must provide on the H-2B petition to establish benefit eligibility. In conjunction with the final rule, DHS has amended the H Supplement to Form I-129 to explicitly ask the employer if they used a recruiting firm, how much they paid the recruiting firm, the name of the recruiting firm, and if the beneficiary employee has paid a fee to anyone. This replaces the need to attest to any knowledge and provides space for employers to expressly indicate such knowledge. These questions will apply to petitions for both H-2A and H-2B workers. This method for obtaining this information is superior to asking the petitioner to attest to whether it knows or does not know about a fee. By asking the question, the employer may answer yes, no, or do not know, rather than attesting to that knowledge, and USCIS will have the name of the recruiter they used for future reference. As stated in the Paperwork Reduction Act section of this rule, USCIS estimates that the public reporting burden for each Form I-129 at 2 hours and 45 minutes per response is sufficient to encompass the questions added to the forms to address this requirement. Thus, the current OMB approved inventory of the costs imposed by this information collection includes sufficient leeway to account for these additional questions. As for the burden for a firm to complete reasonable inquiries pursuant to the prohibition on fees, there are no additional costs. DHS agrees that this rule may require reasonable inquiries as part of the ``due diligence'' requirement imposed on prospective recruiters. However, after this rule takes effect, employers should notify recruiters upfront that no fees may be collected from a prospective recruit. Interviews and inquiries will provide opportunities for the employer to quite easily and quickly ask the employee, ``Did you pay anyone a fee to get this job (or interview).'' If the answer is yes, they may ask, ``Who and how much did you pay, what services were provided for the fee, and were you provided with an itemized bill?'' The answers may have significant ramifications for the employee by rendering him ineligible unless any fee he or she identifies is only for allowable transportation costs and/or government fees. The employer that is informed by its potential employee that a particular recruiter has charged fees should keep a record of such firms or agents and either continue to deal with those firms in the future or not. However, asking the straightforward question does not impose a substantial record keeping or information collection burden. If an employer determines that its workers have been charged or will be charged a fee, they may incur costs in reimbursing such persons. If a fee payment is discovered prior to the commencement of the work, the employer may replace that worker with a worker who did not pay fees or reimburse those it intends to hire. In any event, it cannot be predicted in advance the amount a prospective employer might have to pay to go forward with planned work, as this will depend on how much the alien has paid or if the employer would seek other workers in lieu of those it originally intended to hire. In the end, though, it is the employer's responsibility to set the terms and conditions of any recruitment contract, and the employer will be in a position to require, as a condition of any such contract, that the domestic recruiter and agent working in the worker's home country do not charge any fee of prospective alien workers. (v). DHS should quantify the costs to employers for the opportunity costs of losing potential employees and scheduled contracts. This comment relates to workers lost by the employer as a result of the prohibition on employee-paid placement fees. The comment does not explain how such employees would be lost, could not be readily replaced, or how a contract may be lost by application of the no-fee requirement of this rule. As a result of this rule, an employer must consider the availability of an alternative employee and the costs of any delays if the employer determines the employee paid a fee that is larger than the employer wants to reimburse. The discovery that an employee paid a fee may be large enough to result in the employer choosing not to hire that employee and finding a replacement employee who paid no fee that must be reimbursed, if there is an adequate supply of replacement workers readily available. That is a business decision that is up to the employer. As stated above, the cost that an employer would expend per employee as a result of this ban on fees has been quantified as about $500. [[Page 78123]] Delays caused by an employer's discovery of such a fee payment by a prospective employee may result from the employer's decision to not incur that expense, but they do not result directly from this rule. (vi). DHS should quantify the costs and fees to notify DHS within 48 hours if: (1) An H-2B worker fails to report for work within 5 days after the employment start date, (2) the services for which H-2B workers were hired is completed more than 30 days early, (3) an H-2B worker leaves the worksite (for a period of 5 consecutive work days without the consent of the employer), or (4) an H-2B worker is terminated prior to the completion of the services for which he or she was hired. These costs have been quantified in the regulatory impact analysis of the final rule in the discussion of the paperwork reduction act impacts of this rule. DHS has estimated the costs of this new report to amount to $8,123 per year. This cost will be incurred only by a few employers that have employees abscond, so the cost per petition and per H-2B worker are not appropriate for comparison, because affected firms will not bear these costs equally. (vii). There are opportunity costs to employers that are debarred from the H-2B program for a notification failure. This rule does not provide that an employer that fails to report abscondment will be debarred. The costs of the absconder reporting requirement have been discussed above. The costs imposed as a result of violations of H-2B regulations petitions and to impose administrative penalties, fines, and debarment are enforcement provisions and not regulatory compliance costs. Should DOL determine that a petitioner substantially failed to meet any of the conditions of the H-2B petition or willfully misrepresented a material fact in such petition, then DHS may debar the petitioner. However, DHS and DOL have authority notwithstanding this rule to investigate violations of H-2B petitions and to impose administrative penalties including debarment An employer will want to consider that possibility before it decides to not report an abscondment or to not meet any other requirement of the H-2B program. An employer who was unable to hire an H-2B employee as a result of being debarred from participation in the program may be harmed, but only because of their failure to report the abscondment of an employee as required by this rule, not as a direct result of this rule. If the employer chooses to comply with the rule they would not incur any additional cost. (viii). DHS should quantify the additional costs to small business to pay a premium processing fee of $1000 for their application to be considered in time. USCIS' Premium Processing Program is a program by which certain petitioners and applicants may request USCIS to expedite handling of those petitions and applications and approve or deny them within 15 days. The comment assumes that, in order to be assured that they will receive one of the 66,000 limited slots for an H-2B employee, the petitioner must request premium processing for their petition because normal processing times are too lengthy to ensure they will obtain approval for the number of employees needed. This assumption is incorrect. It is true that most petitioners request premium processing for their petitions because they think that normal processing times are too long to ensure they will obtain approval for the number of employees needed. In fiscal year 2007, 10,481 of the 13,561 H-2B petitions filed, or 77 percent, were accompanied by Form I-907, Request for Premium Processing Service, and the required $1,000 fee. While processing times may improve as a result of this rule, the proportion of petitioners requesting premium processing is not expected to increase or decrease. USCIS average processing time for an H-2B petition is less than 60 days and most petitions are filed with USCIS more than 60 days, and often up to 120 days, before start of the employment. Premium processing is not required except for the time pressure that employers feel to have their petitions approved before other employers and before the number of annual H-2B workers approved reaches the 66,000 limitation imposed by law. That limitation is not imposed or addressed by this rule; thus, this rule does not require petitioners to request premium processing. 2. Comments From the Public on the Regulatory Cost Benefit Analysis (i) The add-on of incidental recruiting costs to employers is counterproductive and the estimates used to justify this move are not accurately documented. As commenters on the rule acknowledged, the documented abuses of H- 2B workers are serious and must be addressed. In fact, DHS has now learned that some aliens have paid as much as $80,000 to recruiters and others in order to obtain H-2B employment in this country. Further, the practice of passing fees to the alien has resulted in a number of serious abuses, including, but not limited to, visa sales, petition padding, and extortionate practices directed at aliens and their family members. While it is true that DHS lacks jurisdiction to regulate the activities of recruiters and other facilitators abroad, DHS has, under section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), the authority to determine, by regulation, the terms and conditions of H-2B nonimmigrant status and petition approval within the United States. It is inequitable to extract fees from economically disadvantaged foreign workers by passing on costs to an alien by reducing the alien's net wages. Recruiting costs may be factored into the initial wage offer and reflected in the temporary labor certification. Thus, these new requirements are not ``counterproductive.'' The estimates used in calculating the costs were the best available in light of the lack of detailed records on the practice. (ii) This rule imposes significant, unspecified and uncapped financial liability on employers making them liable for related indirect and other fees associated with H-2B employees' travel. DHS is unclear as to what uncertain and unspecified costs the comment is referring. This rule provides that an alien will not bear the cost to use a job placement service or prepare the H-2B petition. Any costs incurred by the employee because the recruiter requires it as a condition of employment will have to be borne by the employer. However, this rule will not require an employer to bear the cost if the alien chooses to hire a lawyer on his or her own volition. The employer will not have to pay what the employee paid for transportation or government fees, unless required to do so by statute. (iii) DHS does not calculate the cost of an employer having to do research on foreign labor recruiters so that employers are able to feel they met the standard of ``having reasonably known'' that their employees did not pay a recruiter. The prospective employer has a number of means of ascertaining whether the alien has paid or may be under an obligation to pay fees. It is the employer who chooses to contract with a recruiter or job placement service. That provides them with the ability to negotiate the terms and conditions of the contract, including a prohibition on workers paying fees. This may require switching from one foreign labor recruiter to another until one is found that does not charge alien's fees. There is no way to calculate the cost, if any, of that potentiality. (iv) The DHS analysis does not take into account the increased costs from having to file multiple temporary labor [[Page 78124]] certifications if an employer needs to change their employee's start date. This rule requires that the employment start date on the H-2B petition be the same as the dates on the temporary labor certification. An exception is made for the time needed to replace an unavailable worker. Some businesses stated that they list the actual date of need in their temporary labor certifications to DOL, but need to write a different start date in their DHS H-2B petitions when, for example, the H-2B cap is filled for the winter season and they need to re-apply for the summer season, or when employees arrive late due to delays at a foreign consulate or an illness. The commenters suggest that, by not allowing those employers to use a different start date, this rule adds the cost of obtaining a new DOL temporary labor certification when re- applying for a petition. DHS recognizes that requiring the petition start date to be the same as that on the temporary labor certification may disadvantage filers whose employment start date begins more than four months after the beginning of the first or second half of the fiscal year. The fact that an employer may have to obtain a new temporary labor certification may be an indirect effect of this change, but it is not directly related. That result is, unfortunately, another by-product of the over subscription of the H-2B program. Nevertheless, this change ensures compliance with the law which requires the unavailability of U.S. workers. Requiring that an employer adhere to the start date stated in the temporary labor certification will ensure that U.S. workers were able to make an informed decision as to their availability to fill the position in question. 2. Summary of Final Rule Impacts The impacts of the changes in this rule are summarized as follows: The number of petitions filed by H-2B employers is expected to increase, but the annual volume of petitions processed will not change. More petitions will be returned without depositing their fee payment and reviewing the petition. The average USCIS processing time for an H-2B petition of around 60 days will decrease as a result of petitioners not being required to name the individual alien on initial H-2B petitions. USCIS will not have to perform an Interagency Border Inspection System (IBIS) name check, removing the largest source of delays in the processing of H-2B petitions. By eliminating the ``extraordinary circumstances'' restriction on periods longer than a year and providing that such a period could last up to 3 years, this proposed rule would benefit employers who need workers for a specific project that will take longer than one year to complete. Because of the statutory maximum on the annual number of H-2B visas available, this rule will result in no increase in the availability of temporary seasonal workers. There may be some slight benefit from helping employers fill jobs and find workers in a more timely manner, but businesses will still be constrained by a limited labor supply. The administrative improvements proposed in this rule are intended to make employers more likely to participate in the program. This is expected to cause some employers who currently hire seasonal workers who are not properly authorized to replace those workers with lawful workers. By requiring an employer to notify USCIS quickly after the employer terminates an alien's employment, immigration authorities will be made more aware of the fact that an alien without legal immigration status may be in the United States, and determine his or her whereabouts for appropriate enforcement measures. The fee impacts of this rule are neutral. Only those petitions received before the maximum annual number is reached are adjudicated and the fee check deposited. Petitions not received before the maximum annual number is reached are rejected. Because the total number of H-2B visas available per year will not increase under this final rule and the total number of workers requested already greatly exceeds the number of H-2B visas available, fees will not increase because there will be no increase in Form I-129 filings that are processed. Most H-2B petitions filed, or about 77 percent, are accompanied by Form I-907, Request for Premium Processing Service, and the required $1,000 fee. While processing times may improve as a result of this rule, the proportion of petitioners requesting premium processing is not expected to increase or decrease. Paperwork Burden. The administrative improvements proposed by this rule are expected to result in more petitions for H-2B workers being submitted to USCIS. Therefore, the aggregate burden imposed on the public may increase in relation to the additional respondents who will file a Form I-129 as a result of this rule's proposed changes. However, since the total number of workers requested already greatly exceeds the number of H-2B visas available, more petitions will not be processed and or approved. Effect of repatriation provision. This rule will prohibit approval of an H-2B petition for a worker from a country that has not been designated, with the concurrence of the Secretary of State, as eligible for its nationals to participate in the H-2B program, unless DHS determines that participation of that worker in the H-2B program is in the U.S. interest. The actual impact of this proposed change is expected to be negligible, since very few H-2B workers are from countries DHS believes may see an impact from this provision. In addition, since the total number of workers requested exceeds the number of H-2B visas available, such small impacts as may occur would represent transfers from one country's workers to another. Costs of exit registration requirement. U.S. Customs and Border Protection (CBP) will establish a new land-border exit system for H-2 temporary workers in San Luis, Arizona, or Douglas, Arizona. Aliens who entered through these ports must depart from either one of those ports and provide biometric information at one of the kiosks established for this purpose. CBP will collect biometrics under this pilot from all returning workers. This rule change will require an H-2B worker to incur opportunity costs of between thirty minutes and one hour as a result of having to go through the registration process. In its regulatory impact analysis prepared for this rule, DHS estimated that the total annual costs for the time required for aliens to comply what this exit registration process is around $2,424. Effects of proposed requirement for petitioners to reimburse workers for any fee or risk denial of their petition. By requiring a petitioner to demonstrate that the alien has paid no fees or show they have reimbursed the alien for such fees, this rule would effectively ban the payment of such fees by the alien beneficiary with limited exceptions for certain transportation costs and government-imposed fees, if the passing of such transportation costs and government- imposed fees to the alien is not precluded by statute. Since the majority of H-2B employees are estimated to pay such fees, and such practices are expected to continue, this will result in a transfer of those costs to employers. DHS prepared an analysis of the costs of this rule in order to comply with the Regulatory Flexibility Act (RFA) and Executive Order 12866. In that analysis DHS estimated that the cost of this requirement could be as high as about $4,500 per employer, based on [[Page 78125]] the average number of employees sponsored by each employer, if all of their H-2B workers were found to have paid a fee, or $33 million total, in the unlikely event that all 66,000 H-2B employees per year, every year, pay such a fee. Absconder reporting. This rule requires an employer to notify DHS within two work days if: (1) An H-2B worker fails to report for work within 5 days after the employment start date, (2) the services for which H-2B workers were hired is completed more than 30 days early, (3) an H-2B worker leaves the worksite (for a period of 5 consecutive work days without the consent of the employer), or (4) an H-2B worker is terminated prior to the completion of the services for which he or she was hired. Following publication of this rule, USCIS will publish a Federal Register Notice outlining the employer's requirements under this provision. DHS has estimated the total costs per year that will be imposed on the public for the absconder notification requirement are about $8,123. This rule is expected to reduce costs for the government by terminating mandatory H-2B review. Employees handling these appeals will then be able to focus on eliminating application and petition backlogs for other benefits. The exit pilot program being implemented in San Luis, Arizona, and Douglas, Arizona is expected to cost the Federal Government at least $27,201 for the DHS employees' time to carry out the registration process. These costs do not include the costs of setting up the biometrics collection kiosks and otherwise equipping these offices with the required staffing and technology, which may be additional. D. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), requires Federal agencies to conduct a regulatory flexibility analysis which describes the impact of a rule on small entities whenever an agency is publishing a notice of rulemaking. In accordance with the RFA, DHS certifies that this rule will not have a significant economic impact on a substantial number of small entities. The factual basis for that determination is as follows: 1. Number of Regulated Entities In FY06, an estimated 15,000 Form I-129 petitions were received by USCIS for H-2B workers; approximately 14,000 of those petitions were approved. In fiscal year 2007, USCIS received 13,561 petitions and approved 14,355. For fiscal year 2008, USCIS received 7,739 H-2B petitions and approved 7,755. In fiscal year 2008, the mean and median number of H-2B worker beneficiaries requested per petition were 19 and 9 workers, respectively. Since the current volume of petitions already meets the statutory annual maximum of 66,000, the number of petitions processed will not change and USCIS will have to reject a higher number of petitions without depositing their fee payment or reviewing the petition. USCIS expects processing volume to continue along these lines in the near future, barring a major change to underlying legislation. Thus, an estimated 7,700 H-2B petitions are expected to be accepted per year.\1\ --------------------------------------------------------------------------- \1\ For this analysis it is assumed that a firm will request all of the foreign workers they need in a given year on one petition. As a result of this assumption, the number of firms affected in this case is assumed to equal the number of petitions filed in a year, although some firms may file multiple petitions. --------------------------------------------------------------------------- 2. Size Categories of Affected Entities Typical petitioner. The actual average or median revenue of the typical H-2B employer is unknown. However, DHS considered what was considered small for the typical firm in the industries that use most H-2B workers according to the U.S. Small Business Administration (SBA) Small Business Size Regulations at 13 CFR part 121. The SBA regulations provide that the annual gross revenue threshold for firms in the Landscape Architectural Services (NAICS code 541320 \2\) or a hotel industry (NAICS 721110) is $7.0 million. For Nursery and Tree Production (NAICS 111421) it is $750,000. For Construction, it is $33.5 million. Based on these definitions, the U.S. Census Bureau's 2002 Economic Census reported that approximately 99.9 percent of employers in the construction industry, 95 percent in the forestry and landscaping industry, and 90.8 percent of those in the accommodation and food services industry were small businesses.\3\ Assuming that the proportion of small employers participating in the H-2B program is similar to the overall market, more than 90 percent of H-2B petitions are filed by firms which are classified as small businesses. Thus, this rule will have an impact on about 7,000 small entities. --------------------------------------------------------------------------- \2\ The North American Industry Classification System (NAICS) is the standard used by Federal statistical agencies in classifying business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. business economy. See, http://www.census.gov/eos/www/naics/. \3\ U.S. Department of Commerce, Economics and Statistics Administration, U.S. CENSUS BUREAU, at http://www.census.gov/prod/ ec02/ec0223sg1t.pdf. Page 9. --------------------------------------------------------------------------- 3. Other Firms That May Be Affected by This Change a. Employee Recruiters. DHS has no reliable data on the number of firms that recruit H-2B employees, but DHS research in this area indicates that the majority of new, and many returning, H-2B employees have utilized such a service in their home countries. This rule does not prohibit firms from charging nonimmigrant workers for some services, such as: preparation of the worker's income tax return; certain transportation costs (except where the passing of such costs to the worker is prohibited by statute); lodging; food; clothing; translation services; or other services for which the value is generally known based on an existing market or can be readily quantified, and which are not charged as a condition of the employee being referred to a petitioner.\4\ --------------------------------------------------------------------------- \4\ Notwithstanding that DOL may or may not prohibit such fees in some instances. --------------------------------------------------------------------------- b. Employer Agents. The agent hired by the seasonal employer assists in completing applications and locating and processing worker applicants abroad. Agents usually charge a flat fee per employee to process the employer's DOL, the Department of State, and DHS certification, application, and petition. Some agents collect an initial retainer and then charge additional fees based on the number of workers, the application fees, the advertising costs required, and other expenses. The total charges an employer pays the agent per H-2B employee ranges from approximately $500 to $4,000, including travel expenses and all application and petition fees. The actual cost depends on the home country, the skills needed for the position, and the general complexity of the worker and employer's respective situations. DHS does not have any estimate of the number of employer agents who are active in the recruiting of H-2B employees. However, the relationship between employers and agents is not affected by this rule, except to the extent the agent may also be collecting a fee from the foreign worker. 4. Significance of Impact DHS has determined that this rule will require affected employers to pay between $150 and $500 per employee because recruiter fees that are now being paid by employees will be shifted by recruiters from employees to employers. [[Page 78126]] Also, the absconder notification requirements of this rule are estimated to cost $8,123 per year, for an average of $.12 per employee. Guidelines suggested by the SBA Office of Advocacy provide that, to illustrate the impact could be significant, the cost of the proposed regulation may exceed 1 percent of the gross revenues of the entities in a particular sector or 5 percent of the labor costs of the entities in the sector. In fiscal year 2008, the mean and median authorized duration of H- 2B employment were 219 and 231 days, respectively. Thus, a new H-2B employee in 2008 worked an average of 31.3 weeks. Assuming that the typical employee worked an 8 hour work day and took two days per week off from work, the employee would have worked 156 days and accrued 1,251 hours. Using the U.S. Department of Labor hourly wage rate for an H-2B worker of $9.32 per hour,\5\ plus a multiplier of 1.4 to account for fringe benefits and incidental expenses, the average hourly wage compensation costs equal $13.05. Multiplying the hourly compensation costs by the hours worked provides an average compensation cost for an H-2B employee for the period he or she is in the United States of about $16,326. If the employer is required to pay a recruiter or reimburse the employee $500 for fees paid, and if that employee absconds, requiring the employer to file a report, the added cost of $501 is only 3.1 percent of the $16,326 annual salary for only one H-2B worker. Since the cost increase per H-2B employee is less than 5 percent of the costs associated with hiring only one H-2B worker, the average cost increase imposed by this rule will not exceed 5 percent of the average labor costs of the entire sector. --------------------------------------------------------------------------- \5\ Average of the DOL required Level 1 salaries for a Landscaper in Memphis, a Food Server in DC, a Bellhop in Miami, a Tree Trimmer in Denver, and a Pesticide Applicator in Seattle. Available at: http://www.dol.gov/compliance/topics/wages-foreign- workers.htm. --------------------------------------------------------------------------- Also, as stated above, guidelines provided by the SBA Office of Advocacy suggest that an added cost of more than one percent of the gross revenues of the affected entities in a particular sector may be a significant impact. USCIS believes that it is unlikely that an employer will incur costs of $4,501 due to this rulemaking, as it is the high end of the range of possible costs. Again, if each firm affected by this rule hires the average of 9 workers and all 9 are recruited by a firm that charges or causes the employer to reimburse all 9 employees $500, the additional cost of this rule could reach as high as $4,501 per employer. While the actual revenue of the typical H-2B employer is unknown, DHS believes that the companies that use the H-2B program are likely to be on the upper bounds of the small business size standards for annual gross cash receipts. If an employer hires 9 employees and incurs recruiting costs of $500 for every one of them, the $4,500 added cost represents only 0.6 percent of $750,000 (the standard for Nursery and Tree Production). To further illustrate, for $4,500 to exceed one percent of annual revenues, sales would have to be $450,000 per year or less. While most H-2B petitioners are small entities, DHS believes that a firm with annual sales below $450,000 would be very unlikely to hire 9 temporary seasonal employees and incur the $4,500 in added costs. Therefore, DHS believes that the costs of this rulemaking to small entities will not exceed one percent of annual revenues. Therefore, using both average annual labor costs and the percentage of the affected entities' annual revenue stream as guidelines, USCIS concludes that this rule will not have a significant economic impact on a substantial number of small entities. 5. Impact on U.S.-Based Recruiting Firms As outlined above, this rule affects recruiting firms' activities tangentially. Nonetheless, the effect of the fee prohibition on recruiting companies, staffing firms, or employment agents is not a new compliance requirement on regulated entities. Establishment of a non- immigrant temporary worker program was intended to alleviate seasonal labor shortages. Demand from employers for foreign workers makes the 66,000 H-2B slots significantly insufficient to meet the demand. This has created a market where the ``price'' for the scarce good, the nonimmigrant temporary worker visa, has increased. That employer demand and the demand from foreign workers to come to the U.S. have combined to result in a portion of the ``price'' being passed on to the workers. DHS views that trend and practice as undesirable and is attempting to take action in this rule to limit those costs. The formation of firms that recruit workers in foreign countries is an unintended consequence of nonimmigrant temporary worker programs since those firms are not the intended recipients of the benefits that are supposed to inure to participants in those programs. In any event, DHS does not believe the prohibition on charging aliens will cause a significant economic impact on the affected placement, recruiting, or staffing firms because they may, and are expected to, transfer those costs to the employers, as analyzed above. 6. Certification For these reasons, DHS certifies that this rule will not have a significant economic impact on a substantial number of small entities. E. Executive Order 13132 This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. F. Executive Order 12988 This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. G. Paperwork Reduction Act This rule requires that a petitioner submit Form I-129, seeking to classify an alien as an H-2B nonimmigrant. This form has been previously approved for use by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). The OMB control number for this collection is 1615-0009. This rule requires under 8 CFR 214.2(h)(6)(i)(F) that the petitioner notify DHS if: An H-2B worker fails to report for work; The services for which an H-2B worker is hired is completed 30 days early; An H-2B worker absconds from the worksite; or An H-2B worker is terminated prior to completion of services for which he or she is hired. This notification requirement is considered an information collection covered under the PRA. Accordingly, this information collection has been submitted and approved by OMB under the PRA. However, this rule requires that certain H-2B workers departing the United States participate in a temporary worker visa exit pilot program. This requirement will add to the number of respondents approved by OMB for the information collections in OMB control number 1600-0006, U.S. Visitor Immigrant Status and Indicator Technology (US- VISIT). DHS has submitted a request for a non- [[Page 78127]] substantive change to OMB to account for this requirement's added burden. List of Subjects 8 CFR Part 204 Administrative practice and procedure, Immigration, Reporting and recordkeeping requirements. 8 CFR Part 214 Administrative practice and procedure, Aliens, Cultural exchange programs, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements. 8 CFR Part 215 Administrative practice and procedure, Aliens, Travel restrictions. Accordingly, chapter I of title 8 of the Code of Federal Regulations is amended as follows: PART 204--IMMIGRANT PETITIONS 1. The authority citation for part 204 is revised to read as follows: Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1184, 1186a, 1255, 1641; 8 CFR part 2. 2. Section 204.5 is amended by adding paragraph (o) to read as follows: Sec. 204.5 Petitions for employment-based immigrants. * * * * * (o) Denial of petitions under section 204 of the Act based on a finding by the Department of Labor. Upon debarment by the Department of Labor pursuant to 20 CFR 655.31, USCIS may deny any employment-based immigrant petition filed by that petitioner for a period of at least 1 year but not more than 5 years. The time period of such bar to petition approval shall be based on the severity of the violation or violations. The decision to deny petitions, the time period for the bar to petitions, and the reasons for the time period will be explained in a written notice to the petitioner. PART 214--NONIMMIGRANT CLASSES 3. The authority citation for part 214 continues to read as follows: Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant to Executive Order 13323, published January 2, 2004), 1186a, 1187, 1221, 1281, 1282, 1301-1305; 1372; 1379; 1731-32; sec. 14006, Public Law 108-287; sec. 643, Public Law 104-208; 110 Stat. 3009-708; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901, note, and 1931, note, respectively. 4. Section 214.1 is amended by adding paragraph (k) to read as follows: Sec. 214.1 Requirements for admission, extension, and maintenance of status. * * * * * (k) Denial of petitions under section 214(c) of the Act based on a finding by the Department of Labor. Upon debarment by the Department of Labor pursuant to 20 CFR 655.31, USCIS may deny any petition filed by that petitioner for nonimmigrant status under section 101(a)(15)(H) (except for status under sections 101(a)(15)(H)(i)(b1)), (L), (O), and (P)(i) of the Act) for a period of at least 1 year but not more than 5 years. The length of the period shall be based on the severity of the violation or violations. The decision to deny petitions, the time period for the bar to petitions, and the reasons for the time period will be explained in a written notice to the petitioner. 5. Section 214.2 is amended by: a. Revising paragraph (h)(1)(ii)(D); b. Adding a new sentence to the end of paragraph (h)(2)(ii); c. Revising paragraph (h)(2)(iii); d. Redesignating paragraph (h)(2)(iv) as paragraph (h)(6)(viii), and by reserving paragraph (h)(2)(iv); e. Revising paragraph (h)(6)(i); f. Revising paragraph (h)(6)(ii)(B) introductory text; g. Revising the word ``amendable'' to read ``amenable'' in the second sentence in paragraph (h)(6)(iii)(B); h. Adding the word ``favorable'' immediately after the phrase ``has obtained a'' in paragraph (h)(6)(iii)(C); i. Adding the word ``favorable'' immediately after the phrase ``After obtaining a'' in paragraph (h)(6)(iii)(E); j. Revising paragraph (h)(6)(iv)(A); k. Revising paragraph (h)(6)(iv)(D); l. Removing paragraph (h)(6)(iv)(E); m. Revising paragraph (h)(6)(v)(A); n. Removing and reserving paragraphs (h)(6)(v)(C) and (D); o. Adding the word ``States'' immediately before ``and'' in the first sentence in paragraph (h)(6)(v)(E)(2)(iii); p. Revising paragraph (h)(6)(vi)(A); q. Removing and reserving paragraph (h)(6)(vi)(B); r. Revising paragraph (h)(6)(vi)(C); s. Removing the period at the end of paragraph (h)(6)(vi)(D), and adding a ``; or'' in its place; t. Revising the word ``or'' to read ``to'' in the first sentence in paragraph (h)(6)(vii); u. Revising newly designated paragraph (h)(6)(viii); v. Adding new paragraph (h)(6)(ix); w. Revising paragraph (h)(8)(ii)(A); x. Revising paragraph (h)(9)(i)(B); y. Revising paragraph (h)(9)(iii)(B)(1); z. Revising paragraph (h)(10)(ii); aa. Adding a new sentence to the end of paragraph (h)(11)(i)(A); bb. Revising paragraph (h)(11)(iii)(A)(2); cc. Revising paragraph (h)(13)(i)(B); dd. Revising paragraph (h)(13)(iv); and by ee. Revising paragraph (h)(13)(v). The revisions read as follows: Sec. 214.2 Special requirements for admission, extension, and maintenance of status. * * * * * (h) * * * (1) * * * (ii) * * * (D) An H-2B classification applies to an alien who is coming temporarily to the United States to perform nonagricultural work of a temporary or seasonal nature, if there are not sufficient workers who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such services or labor. This classification does not apply to graduates of medical schools coming to the United States to perform services as members of the medical profession. The temporary or permanent nature of the services or labor described on the approved temporary labor certification are subject to review by USCIS. This classification requires a temporary labor certification issued by the Secretary of Labor or the Governor of Guam prior to the filing of a petition with USCIS. * * * * * (2) * * * (ii) * * * H-2A and H-2B petitions for workers from countries not designated in accordance with paragraph (h)(6)(i)(E) of this section should be filed separately. (iii) Naming beneficiaries. H-1B, H-1C, and H-3 petitions must include the name of each beneficiary. Except as provided in this paragraph (h), all H-2A and H-2B petitions must include the name of each beneficiary who is currently in the United States, but need not name any beneficiary who is not currently in the United States. Unnamed beneficiaries must be shown on the petition by total number. USCIS may require the petitioner to name H-2B beneficiaries where the name is needed to establish eligibility for H-2B nonimmigrant status. If all of the beneficiaries covered by an H-2A or H-2B temporary labor certification have not been identified at the time a petition is filed, multiple petitions for subsequent beneficiaries may be filed at different times but must include a copy [[Page 78128]] of the same temporary labor certification. Each petition must reference all previously filed petitions associated with that temporary labor certification. All H-2A and H-2B petitions on behalf of workers who are not from a country that has been designated as a participating country in accordance with paragraphs (h)(5)(i)(F)(1) or (h)(6)(i)(E)(1) of this section must name all the workers in the petition who fall within these categories. All H-2A and H-2B petitions must state the nationality of all beneficiaries, whether or not named, even if there are beneficiaries from more than one country. (iv) [Reserved] * * * * * (6) * * * (i) Petition. (A) H-2B nonagricultural temporary worker. An H-2B nonagricultural temporary worker is an alien who is coming temporarily to the United States to perform temporary services or labor without displacing qualified United States workers available to perform such services or labor and whose employment is not adversely affecting the wages and working conditions of United States workers. (B) Denial or revocation of petition upon a determination that fees were collected from alien beneficiaries. As a condition of approval of an H-2B petition, no job placement fee or other compensation (either direct or indirect) may be collected at any time, including before or after the filing or approval of the petition, from a beneficiary of an H-2B petition by a petitioner, agent, facilitator, recruiter, or similar employment service as a condition of an offer or condition of H-2B employment (other than the lower of the actual cost or fair market value of transportation to such employment and any government-mandated passport, visa, or inspection fees, to the extent that the passing of such costs to the beneficiary is not prohibited by statute, unless the employer, agent, facilitator, recruiter, or similar employment service has agreed with the beneficiary that it will pay such costs and fees). (1) If USCIS determines that the petitioner has collected or entered into an agreement to collect such fee or compensation, the H-2B petition will be denied or revoked on notice, unless the petitioner demonstrates that, prior to the filing of the petition, either the petitioner reimbursed the beneficiary in full for such fees or compensation or the agreement to collect such fee or compensation was terminated before the fee or compensation was paid by the beneficiary. (2) If USCIS determines that the petitioner knew or should have known at the time of filing the petition that the beneficiary has paid or agreed to pay any agent, facilitator, recruiter, or similar employment service as a condition of an offer of the H-2B employment, the H-2B petition will be denied or revoked on notice unless the petitioner demonstrates that, prior to filing the petition, either the petitioner or the agent, facilitator, recruiter, or similar employment service reimbursed the beneficiary in full for such fees or compensation or the agreement to collect such fee or compensation was terminated before the fee or compensation was paid by the beneficiary. (3) If USCIS determines that the beneficiary paid the petitioner such fees or compensation as a condition of an offer of H-2B employment after the filing of the H-2B petition, the petition will be denied or revoked on notice. (4) If USCIS determines that the beneficiary paid or agreed to pay the agent, facilitator, recruiter, or similar employment service such fees or compensation after the filing of the H-2B petition and that the petitioner knew or had reason to know of the payment or agreement to pay, the petition will be denied or revoked unless the petitioner demonstrates that the petitioner or agent, facilitator, recruiter, or similar employment service reimbursed the beneficiary in full, that the parties terminated any agreement to pay before the beneficiary paid the fees or compensation, or that the petitioner has notified DHS within 2 work days of obtaining knowledge, in a manner specified in a notice published in the Federal Register. (C) Effect of petition revocation Upon revocation of an employer's H-2B petition based upon paragraph (h)(6)(i)(B) of this section, the alien beneficiary's stay will be authorized and the beneficiary will not accrue any period of unlawful presence under section 212(a)(9) of the Act (8 U.S.C. 1182(a)(9)) for a 30-day period following the date of the revocation for the purpose of departure or extension of stay based upon a subsequent offer of employment. The employer shall be liable for the alien beneficiary's reasonable costs of return transportation to his or her last place of foreign residence abroad, unless such alien obtains an extension of stay based on an approved H-2B petition filed by a different employer. (D) Reimbursement as condition to approval of future H-2B petitions. (1) Filing subsequent H-2B petitions within 1 year of denial or revocation of previous H-2B petition. A petitioner filing an H-2B petition within 1 year after a decision denying or revoking on notice an H-2B petition filed by the same petitioner on the basis of paragraph (h)(6)(i)(B) of this section must demonstrate to the satisfaction of USCIS, as a condition of the approval of the later petition, that the petitioner or agent, facilitator, recruiter, or similar employment service reimbursed in full each beneficiary of the denied or revoked petition from whom a prohibited fee was collected or that the petitioner has failed to locate each such beneficiary despite the petitioner's reasonable efforts to locate them. If the petitioner demonstrates to the satisfaction of USCIS that each such beneficiary was reimbursed in full, such condition of approval shall be satisfied with respect to any subsequently filed H-2B petitions, except as provided in paragraph (h)(6)(i)(D)(2) of this section. If the petitioner demonstrates to the satisfaction of USCIS that it has made reasonable efforts to locate but has failed to locate each such beneficiary within 1 year after the decision denying or revoking the previous H-2B petition on the basis of paragraph (h)(6)(i)(B) of this section, such condition of approval shall be deemed satisfied with respect to any H-2B petition filed 1 year or more after the denial or revocation. Such reasonable efforts shall include contacting all of each such beneficiary's known addresses. (2) Effect of subsequent denied or revoked petitions. An H-2B petition filed by the same petitioner subsequent to a denial under paragraph (h)(6)(i)(B) of this section shall be subject to the condition of approval described in paragraph (h)(6)(i)(D)(1) of this section, regardless of prior satisfaction of such condition of approval with respect to a previously denied or revoked petition. (E) Eligible countries. (1) H-2B petitions may be approved for nationals of countries that the Secretary of Homeland Security has designated as participating countries, with the concurrence of the Secretary of State, in a notice published in the Federal Register, taking into account factors, including but not limited to: (i) The country's cooperation with respect to issuance of travel documents for citizens, subjects, nationals and residents of that country who are subject to a final order of removal; ( ii) The number of final and unexecuted orders of removal against citizens, subjects, nationals, and residents of that country; (iii) The number of orders of removal executed against citizens, subjects, [[Page 78129]] nationals and residents of that country; and (iv) Such other factors as may serve the U.S. interest. (2) A national from a country not on the list described in paragraph (h)(6)(i)(E)(1) of this section may be a beneficiary of an approved H-2B petition upon the request of a petitioner or potential H- 2B petitioner, if the Secretary of Homeland Security, in his sole and unreviewable discretion, determines that it is in the U.S. interest for that alien to be a beneficiary of such petition. Determination of such a U.S. interest will take into account factors, including but not limited to: (i) Evidence from the petitioner demonstrating that a worker with the required skills is not available from among foreign workers from a country currently on the list described in paragraph (h)(6)(i)(E)(1) of this section; (ii) Evidence that the beneficiary has been admitted to the United States previously in H-2B status; (iii) The potential for abuse, fraud, or other harm to the integrity of the H-2B visa program through the potential admission of a beneficiary from a country not currently on the list; and (iv) Such other factors as may serve the U.S. interest. (3) Once published, any designation of participating countries pursuant to paragraph (h)(6)(i)(E)(1) of this section shall be effective for one year after the date of publication in the Federal Register and shall be without effect at the end of that one-year period. (F) Petitioner agreements and notification requirements. (1) Agreements. The petitioner agrees to notify DHS, within 2 work days, and beginning on a date and in a manner specified in a notice published in the Federal Register if: An H-2B worker fails to report for work within 5 work days after the employment start date stated on the petition; the nonagricultural labor or services for which H-2B workers were hired were completed more than 30 days early; or an H-2B worker absconds from the worksite or is terminated prior to the completion of the nonagricultural labor or services for which he or she was hired. The petitioner also agrees to retain evidence of such notification and make it available for inspection by DHS officers for a one-year period beginning on the date of the notification. (2) Abscondment. An H-2B worker has absconded if he or she has not reported for work for a period of 5 consecutive work days without the consent of the employer. (ii) * * * (B) Nature of petitioner's need. Employment is of a temporary nature when the employer needs a worker for a limited period of time. The employer must establish that the need for the employee will end in the near, definable future. Generally, that period of time will be limited to one year or less, but in the case of a one-time event could last up to 3 years. The petitioner's need for the services or labor shall be a one-time occurrence, a seasonal need, a peak load need, or an intermittent need. * * * * * (iv) * * * (A) Secretary of Labor's determination. An H-2B petition for temporary employment in the United States, except for temporary employment on Guam, shall be accompanied by an approved temporary labor certification from the Secretary of Labor stating that qualified workers in the United States are not available and that the alien's employment will not adversely affect wages and working conditions of similarly employed United States workers. * * * * * (D) Employment start date. Beginning with petitions filed for workers for fiscal year 2010, an H-2B petition must state an employment start date that is the same as the date of need stated on the approved temporary labor certification. A petitioner filing an amended H-2B petition due to the unavailability of originally requested workers may state an employment start date later than the date of need stated on the previously approved temporary labor certification accompanying the amended H-2B petition. (v) * * * (A) Governor of Guam's determination. An H-2B petition for temporary employment on Guam shall be accompanied by an approved temporary labor certification issued by the Governor of Guam stating that qualified workers in the United States are not available to perform the required services, and that the alien's employment will not adversely affect the wages and working conditions of United States resident workers who are similarly employed on Guam. (C) [Reserved] (D) [Reserved] * * * * * (vi) * * * (A) Labor certification. An approved temporary labor certification issued by the Secretary of Labor or the Governor of Guam, as appropriate; (B) [Reserved] (C) Alien's qualifications. In petitions where the temporary labor certification application requires certain education, training, experience, or special requirements of the beneficiary who is present in the United States, documentation that the alien qualifies for the job offer as specified in the application for such temporary labor certification. This requirement also applies to the named beneficiary who is abroad on the basis of special provisions stated in paragraph (h)(2)(iii) of this section; * * * * * (viii) Substitution of beneficiaries. Beneficiaries of H-2B petitions that are approved for named or unnamed beneficiaries who have not been admitted may be substituted only if the employer can demonstrate that the total number of beneficiaries will not exceed the number of beneficiaries certified in the original temporary labor certification. Beneficiaries who were admitted to the United States may not be substituted without a new petition accompanied by a newly approved temporary labor certification. (A) To substitute beneficiaries who were previously approved for consular processing but have not been admitted with aliens who are outside of the United States, the petitioner shall, by letter and a copy of the petition approval notice, notify the consular office at which the alien will apply for a visa or the port of entry where the alien will apply for admission. The petitioner shall also submit evidence of the qualifications of beneficiaries to the consular office or port of entry prior to issuance of a visa or admission, if applicable. (B) To substitute beneficiaries who were previously approved for consular processing but have not been admitted with aliens who are currently in the United States, the petitioner shall file an amended petition with fees at the USCIS Service Center where the original petition was filed, with a copy of the original petition approval notice, a statement explaining why the substitution is necessary, evidence of the qualifications of beneficiaries, if applicable, evidence of the beneficiaries' current status in the United States, and evidence that the number of beneficiaries will not exceed the number allocated on the approved temporary labor certification, such as employment records or other documentary evidence to establish that the number of visas sought in the amended petition were not already issued. The amended petition must retain a period of employment within the same half of the same fiscal year as the original petition. Otherwise, a new [[Page 78130]] temporary labor certification issued by DOL or the Governor of Guam and subsequent H-2B petition are required. (ix) Enforcement. The Secretary of Labor may investigate employers to enforce compliance with the conditions of a petition and Department of Labor-approved temporary labor certification to admit or otherwise provide status to an H-2B worker. * * * * * (8) * * * (ii) * * * (A) Each alien issued a visa or otherwise provided nonimmigrant status under sections 101(a)(15)(H)(i)(b), 101(a)(15)(H)(i)(c), or 101(a)(15)(H)(ii) of the Act shall be counted for purposes of any applicable numerical limit, unless otherwise exempt from such numerical limit. Requests for petition extension or extension of an alien's stay shall not be counted for the purpose of the numerical limit. The spouse and children of principal H aliens are classified as H-4 nonimmigrants and shall not be counted against numerical limits applicable to principals.. * * * * * (9) * * * (i) * * * (B) The petition may not be filed or approved earlier than 6 months before the date of actual need for the beneficiary's services or training, except that an H-2B petition for a temporary nonagricultural worker may not be filed or approved more than 120 days before the date of the actual need for the beneficiary's temporary nonagricultural services that is identified on the temporary labor certification. (iii) * * * (B) H-2B petition. (1) The approval of the petition to accord an alien a classification under section 101(a)(15)(H)(ii)(b) of the Act shall be valid for the period of the approved temporary labor certification. * * * * * (10) * * * (ii) Notice of denial. The petitioner shall be notified of the reasons for the denial and of the right to appeal the denial of the petition under 8 CFR part 103. The petition will be denied if it is determined that the statements on the petition were inaccurate, fraudulent, or misrepresented a material fact. There is no appeal from a decision to deny an extension of stay to the alien. (11) * * * (i) * * * (A) * * * However, H-2A and H-2B petitioners must send notification to DHS pursuant to paragraphs (h)(5)(vi) and (h)(6)(i)(F) of this section respectively. * * * * * (iii) * * * (A) * * * (2) The statement of facts contained in the petition or on the application for a temporary labor certification was not true and correct, inaccurate, fraudulent, or misrepresented a material fact: or * * * * * (13) * * * (i) * * * (B) When an alien in an H classification has spent the maximum allowable period of stay in the United States, a new petition under sections 101(a)(15)(H) or (L) of the Act may not be approved unless that alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the time limit imposed on the particular H classification. Brief trips to the United States for business or pleasure during the required time abroad are not interruptive, but do not count towards fulfillment of the required time abroad. A certain period of absence from the United States of H-2A and H-2B aliens can interrupt the accrual of time spent in such status against the 3-year limit set forth in 8 CFR 214.2(h)(13)(iv). The petitioner shall provide information about the alien's employment, place of residence, and the dates and purposes of any trips to the United States during the period that the alien was required to reside abroad. * * * * * (iv) H-2B and H-3 limitation on admission. An H-2B alien who has spent 3 years in the United States under section 101(a)(15)(H) and/or (L) of the Act may not seek extension, change status, or be readmitted to the United States under sections 101(a)(15)(H) and/or (L) of the Act unless the alien has resided and been physically present outside the United States for the immediately preceding 3 months. An H-3 alien participant in a special education program who has spent 18 months in the United States under sections 101(a)(15)(H) and/or (L) of the Act; and an H-3 alien trainee who has spent 24 months in the United States under sections 101(a)(15)(H) and/or (L) of the Act may not seek extension, change status, or be readmitted to the United States under sections 101(a)(15)(H) and/or (L) of the Act unless the alien has resided and been physically present outside the United States for the immediate prior 6 months. (v) Exceptions. The limitations in paragraphs (h)(13)(iii) through (h)(13)(iv) of this section shall not apply to H-1B, H-2B, and H-3 aliens who did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of 6 months or less per year. In addition, the limitations shall not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment. An absence from the United States can interrupt the accrual of time spent as an H-2B nonimmigrant against the 3-year limit. If the accumulated stay is 18 months or less, an absence is interruptive if it lasts for at least 45 days. If the accumulated stay is greater than 18 months, an absence is interruptive if it lasts for at least two months. To qualify for this exception, the petitioner and the alien must provide clear and convincing proof that the alien qualifies for such an exception. Such proof shall consist of evidence such as arrival and departure records, copies of tax returns, and records of employment abroad. * * * * * PART 215--CONTROLS OF ALIENS DEPARTING FROM THE UNITED STATES 6. The authority citation for part 215 continues to read as follows: Authority: 8 U.S.C. 1104; 1184; 1185 (pursuant to Executive Order 13323, published January 2, 2004), 1365a note, 1379, 1731-32. 7. Section 215.9 is revised to read as follows: Sec. 215.9 Temporary Worker Visa Exit Program. An alien admitted on certain temporary worker visas at a port of entry participating in the Temporary Worker Visa Exit Program must also depart at the end of his or her authorized period of stay through a port of entry participating in the program and must present designated biographic and/or biometric information upon departure. U.S. Customs and Border Protection will publish a Notice in the Federal Register designating which temporary workers must participate in the Temporary Worker Visa Exit Program, which ports of entry are participating in the program, which biographical and/or biometric information would be required, and the format for submission of that information by the departing designated temporary workers. Paul A. Schneider, Deputy Secretary. [FR Doc. E8-30094 Filed 12-18-08; 8:45 am] BILLING CODE 4410-10-P http://www.Dr-Immigration.com/news/shownews.asp?newsID=36 Sat, 7 Mar 2009 20:26:36 EST BY US DOL: DOL Publishes Final Rule on Labor Certification for H-2Bs [Federal Register: December 19, 2008 (Volume 73, Number 245)] [Rules and Regulations] [Page 78019-78069] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr19de08-19] [[Page 78019]] --------------------------------------- Part V Department of Labor --------------------------------------- Employment and Training Administration --------------------------------------- 20 CFR Parts 655 and 656 Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes; Final Rule [[Page 78020]] --------------------------------------- DEPARTMENT OF LABOR Employment and Training Administration 20 CFR Parts 655 and 656 RIN 1205-AB54 Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes AGENCY: Employment and Training Administration, Department of Labor, in concurrence with the Wage and Hour Division, Employment Standards Administration, Department of Labor. ACTION: Final rule. --------------------------------------- SUMMARY: The Employment and Training Administration (ETA) of the Department of Labor (DOL or the Department) is amending its regulations to modernize the procedures for the issuance of labor certifications to employers sponsoring H-2B nonimmigrants for admission to perform temporary nonagricultural labor or services and the procedures for enforcing compliance with attestations made by those employers. Specifically, this Final Rule re-engineers the application filing and review process by centralizing processing and by enabling employers to conduct pre-filing recruitment of United States (U.S.) workers. In addition, the rule enhances the integrity of the H-2B program through the introduction of post-adjudication audits and procedures for penalizing employers who fail to comply with program requirements. This rule also makes technical changes to the regulations relating to both the H-1B program and the permanent labor certification program to reflect operational changes stemming from this regulation. Although Congress has conferred the statutory authority to enforce H-2B program requirements on the Department of Homeland Security (DHS), recent discussions between DHS and the Department have yielded an agreement for the delegation of H-2B enforcement authority from DHS to the Department. This Final Rule contains the Wage and Hour Division (WHD) regulations establishing the H-2B enforcement procedures that the Department will institute pursuant to that agreement. Separately, this Final Rule institutes conditions and procedures for the debarment of employers, attorneys, and agents participating in the H-2B foreign labor certification process. As discussed further below, the Department intends to exercise its inherent authority under case law and general principles of program administration to determine what entities practice before it. DATES: This Final Rule is effective January 18, 2009. FOR FURTHER INFORMATION CONTACT: For information on the H-2B labor certification process governed by 20 CFR 655.1 to 655.35, contact William L. Carlson, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210. Telephone: (202) 693-3010 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339. For information on the H-2B enforcement process governed by 20 CFR 655.50 to 655.80, contact Michael Ginley, Office of Enforcement Policy, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S-3502, Washington, DC 20210. Telephone (202) 693-0745 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339. SUPPLEMENTARY INFORMATION: I. Background Leading to the NPRM A. Statutory Standard and Current Department of Labor Regulations Section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (INA or the Act) defines an H-2B worker as a nonimmigrant admitted to the U.S. on a temporary basis to perform temporary nonagricultural labor or services. 8 U.S.C. 1101(a)(15)(H)(ii)(b). Section 214(c)(1) of the INA requires DHS to consult with ``appropriate agencies of the Government'' before granting any H-2B visa petition submitted by an employer. 8 U.S.C. 1184(c)(1). The regulations for the U.S. Citizenship and Immigration Services (USCIS), the agency within DHS charged with the adjudication of nonimmigrant benefits such as H-2B status, currently require, at 8 CFR 214.2(h)(6), that the intending employer (other than in the Territory of Guam) first apply for a temporary labor certification from the Secretary of Labor (the Secretary) advising USCIS whether U.S. workers capable of performing the services or labor are available, and whether the employment of the foreign worker(s) will adversely affect the wages and working conditions of similarly employed U.S. workers. The Department's role in the H-2B visa program stems from its obligation, outlined in DHS regulations, to certify, upon application by a U.S. employer intending to petition DHS to admit H-2B workers, that there are not enough able and qualified U.S. workers available for the position sought to be filled and that the employment of the foreign worker(s) will not adversely affect the wages and working conditions of similarly employed U.S. workers. 8 U.S.C. 1101(a)(15)(H)(ii)(b); 8 U.S.C. 1184(c)(1); see also 8 CFR 214.2(h)(6). The Department's role in the H-2B process is currently advisory to DHS. 8 CFR 214.2(h)(6)(iii)(A). DHS regulations provide that an employer may not file a petition with DHS for an H-2B temporary worker unless it has received a labor certification from the Department (or the Governor of Guam, as appropriate), or received a notice from either that a certification cannot be issued. 8 CFR 214.2(h)(6)(iii)(C), (iv)(A), (vi)(A). Currently, the Department's regulations at 20 CFR part 655, Subpart A, ``Labor Certification Process for Temporary Employment in Occupations other than Agriculture, Logging or Registered Nursing in the United States (H-2B Workers),'' govern the H-2B labor certification process. Applications for labor certification are processed by the Office of Foreign Labor Certification (OFLC) in ETA, the agency to which the Secretary of Labor has delegated her advisory responsibilities described in the DHS H-2B regulations, after they are processed by the State Workforce Agency (SWA) having jurisdiction over the area of intended employment.\1\ The SWA reviews the employer's application and job offer (comparing the employer's offered wage against the prevailing wage for the position); supervises U.S. worker recruitment; and forwards completed applications to OFLC for further review and final determination. --------------------------------------- \1\ The SWAs are agencies of State Government that receive Federal Workforce Investment Act (WIA), Wagner-Peyser Act, and other funds to administer our nation's state-based employment services system and perform certain activities on behalf of the Federal Government. --------------------------------------- Under current procedures, the employer must demonstrate that its need for the services or labor is temporary as defined by one of four regulatory standards: (1) A one-time occurrence; (2) a seasonal need; (3) a [[Page 78021]] peakload need; or (4) an intermittent need. 8 CFR 214.2(h)(6)(ii)(B). The employer or its authorized representative must currently submit to the SWA a detailed statement of temporary need and supporting documentation with the application for H-2B labor certification. Such documentation must provide a description of the employer's business activities and schedule of operations throughout the year, explain why the job opportunity and the number of workers requested reflects its temporary need, and demonstrate how the employer's need meets one of these four regulatory standards. Based on longstanding practice and DOL program guidance, the employer must also establish that the temporary position is full-time and that the period of need is generally one year or less, consistent with the standard under DHS regulations at 8 CFR 214.2h(6). This Final Rule clarifies that full-time employment, for purposes of temporary labor certification employment, means at least 30 hours per week, except that where a State or an established practice in an industry has developed a definition of full-time employment for any occupation that is less than 30 hours per week, that definition governs. Additionally, the employer must recruit from the U.S. labor market to determine if a qualified U.S. worker is available for the position. In addition, in order to ensure an adequate test of the labor market for the position sought to be filled, the employer must comply with other program requirements. For example, it must offer and subsequently pay throughout the period of employment a wage that is equal to or higher than the prevailing wage for the occupation at the skill level and in the area of intended employment; provide terms and conditions of employment that are not less favorable than those offered to the foreign worker(s); and not otherwise inhibit the effective recruitment and consideration of U.S. workers for the job. Historically, the Department's review and adjudication of permanent and temporary labor certification applications (including H-2B) took place through ETA's Regional Offices. However, in December 2004, the Department opened two new National Processing Centers (NPCs), one each located in Atlanta, Georgia, and Chicago, Illinois, to centralize processing of permanent and temporary foreign labor certification cases at the Federal level. The Department published a notice in the Federal Register, at 70 FR 41430, Jul. 19, 2005, clarifying that employers seeking H-2B labor certifications must file two originals of Form ETA 750, Part A, directly with the SWA serving the area of intended employment. Once the application is reviewed by the SWA and after the employer conducts its required recruitment, the SWA sends the complete application to the appropriate NPC. The NPC Certifying Officer (CO) issues a labor certification for temporary employment under the H-2B program, denies the certification, or issues a notice including the reasons why such certification cannot be made. Prior to June 1, 2008, the NPCs shared responsibility for processing of temporary labor certification applications; each NPC had jurisdiction over and processed applications from a different subset of states and territories. Effective June 1, 2008, the NPCs specialized, each assuming responsibility for different types of applications. Now, H-2B temporary labor certification applications approved by the SWAs are processed exclusively by the Chicago NPC. 73 FR 11944, Mar. 5, 2008. Currently, the Department has no enforcement authority or process to ensure H-2B workers who are admitted to the U.S. are employed in compliance with H-2B labor certification requirements. Congress vested DHS with that enforcement authority in 2005. See 8 U.S.C. 1184, as amended by the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief of 2005, Public Law 109- 13, 119 Stat. 231. As described more fully below, the Department in this Final Rule establishes the H-2B regulatory enforcement regime proposed in the NPRM, consistent with the agreement for a delegation of enforcement authority reached by the Department and DHS pursuant to 8 U.S.C. 1184(c)(14)(B). This enforcement regime also includes debarment procedures for ETA and the Employment Standards Administration, Wage and Hour Division (WHD), under the Department's inherent debarment authority, which is explained in greater detail below. B. Earlier Efforts To Reform the H-2B Regulatory Process On January 27, 2005, DHS and the Department issued companion NPRMs to significantly revise each agency's H-2B processing procedures. 70 FR 3984, Jan. 27, 2005; 70 FR 3993, Jan. 27, 2005. As proposed, those changes to both agencies' regulations would have eliminated in whole the Department's adjudicatory role, ending the current labor certification process for most H-2B occupations and requiring employers to submit labor-related attestations directly to USCIS as part of a revised supplement accompanying the H-2B petition. The two agencies received numerous comments on the joint NPRMs in 2005. Most commenters opposed the proposals to move the program adjudication to USCIS and to eliminate the Department's role in reviewing the need of employers and the recruitment of U.S. workers except in post-adjudication audits. Commenter concerns focused in part on the loss of the Department's experience in adjudicating issues of temporary need and the potential adverse impact on U.S. workers. Based on the significant concerns posed in those comments, and after further deliberation within each agency, the Department and DHS have not pursued their 2005 proposals. Consequently, the NPRM published by the Department on January 27, 2005 (RIN 1205-AB36) was withdrawn in the Department of Labor's Fall 2007 Regulatory Agenda. See http:// www.reginfo.gov/public/do/eAgendaViewRule?ruleID=221117. As stated in the May 22, 2008, NPRM preceding this Final Rule, the Department continued, however, to closely review the H-2B program procedures in order to determine appropriate revisions to the H-2B labor certification process. This ongoing systematic review was accelerated in light of considerable workload increases for both the Department and the SWAs (an approximate 30 percent increase in applications in Fiscal Year (FY) 2007 over those received in FY 2006, and a similar increase during the first half of FY 2008) as well as limited appropriations funding program-related operations. On April 4, 2007, ETA issued Training and Employment Guidance Letter (TEGL) No. 21-06, 72 FR 19961, Apr. 20, 2007, to replace its previous guidance for the processing of H-2B applications (General Administration Letter No. 1-95, 60 FR 7216, Feb. 7, 1995) and update procedures for SWAs and NPCs to use in the processing of temporary labor certification applications. The Department then held national briefing sessions in Chicago and Atlanta on May 1 and May 4, 2007, respectively, to inform employers and other stakeholders of the updated processing guidance contained in TEGL 21-06. Attendees at those briefing sessions raised important questions and concerns with regard to the effective implementation of TEGL 21-06 by the SWAs and ETA's National Processing Centers (NPCs). In response to the [[Page 78022]] substantive concerns that were raised, the Department further refined the process of reviewing applications in TEGL 27-06 (June 12, 2007), providing special procedures for dealing with forestry related occupations, and TEGL No. 21-06, Change 1 (June 25, 2007), and updating procedures by allowing the NPC Certifying Officer (CO) to request additional information from employers to facilitate the processing of H-2B applications. 72 FR 36501, Jul. 3, 2007; 72 FR 38621, Jul. 13, 2007. Several issues were not addressed by those refinements, particularly concerns relating to increasing workload and processing delays, which required regulatory changes. This Final Rule addresses a number of those unresolved issues. C. Current Process Involving Temporary Labor Certifications and the Need for a Redesigned System As described in the May 22, 2008, NPRM, the process for obtaining a temporary labor certification has been described to the Department as complicated, time-consuming, inefficient, and dependent upon the expenditure of considerable resources by employers. The current, duplicative process requires the employer to first file a temporary labor certification with the SWA, which reviews the application, compares the wage offer to the prevailing wage for the occupation, oversees the recruitment of U.S. workers, and then transfers the application to the applicable ETA NPC, which conducts a final review of the application. This process has been criticized for its length, overlap of effort, and resulting delays. Application processing delays, regardless of origin, can lead to adverse results with serious repercussions for a business, especially given the numerical limitation or ``cap'' on visas under this program, as a result of which any processing delay may prevent an employer from securing visas for H-2B workers during any given half year period for which numbers are available. This occurs because employer demand for the limited number of visas greatly exceeds their supply, and all visas are typically allocated in the early weeks of availability. See 8 U.S.C. 1184(g)(1)(B) (setting H-2B annual visa cap at 66,000) and 8 U.S.C. 1184(g)(10) (setting a cap of 33,000 as the number of H-2B visas that may be allocated during each 6-month period of a fiscal year). The increasing workload of the Department and SWAs poses a growing challenge to the efficient and timely processing of applications. As stated in the NPRM, the H-2B foreign labor certification program continues to increase in popularity among employers. While the annual number of visas available is limited by statute, the number of labor certifications is not. The number of H-2B labor certification applications has increased 129 percent since FY 2000. In FY 2007, the Department experienced a nearly 30 percent increase in H-2B temporary labor certification application filings over the previous fiscal year. This increasing workload is exacerbated because the INA does not authorize the Department to charge a fee to employers for processing H- 2B applications.\2\ At the same time, appropriated funds have not kept pace with the increased workload at the State or Federal level. This has resulted in significant disparities in processing times among the SWAs. Some observers have noted these disparities among States unfairly advantage one set of employers (those in which the SWAs are able to timely process applications) over others (those in which SWAs experience delays due to backlogs resulting from inadequate staffing or funding, or other causes).\3\ --------------------------------------- \2\ On June 17, 2008, the Department transmitted draft legislation to the Congress that would amend the INA to provide the Department with authority to charge and retain a fee to recoup the costs of administering the H-2B labor certification program. \3\ The growth in the number of applications is explained in part by the increasing desire of employers for a legal temporary workforce and by legislation that permitted greater numbers of H-2B workers into the U.S. by exempting from the 66,000 annual cap any H- 2B worker who had been counted against the numerical cap in previous years. See Save Our Small and Seasonal Businesses Act of 2005, Public Law 109-13, Div. B, Title IV, 119 Stat. 318 (effective May 11, 2005) (exempting from numerical cap for FY 2005 and FY 2006 returning H-2B workers who had counted against the cap in one of the three fiscal years preceding the fiscal year in which the visa petition was filed), and Save Our Small and Seasonal Businesses Act of 2006, included in the Defense Authorization Act for FY 2007, Sec. 1074, Public Law 109-364 (making amendment retroactive to October 1, 2006, and extending the exemption through FY 2007). These returning worker provisions expired September 30, 2007. 8 U.S.C. 1184(g)(9) (2007); INA sec. 214(g)(9); see also Sec. 14006, Public Law 108-287, 118 Stat. 951, 1014 (August 6, 2004) (exempting some fish roe occupations from the cap). --------------------------------------- In light of these recurring experiences, this Final Rule institutes several significant measures to reengineer the Department's administration of the program. These changes improve the process by which employers obtain labor certification and where our program experience has demonstrated additional measures would assist the Department in protecting the job opportunities and wages of U.S. workers. The Final Rule also provides greater accountability for employers through penalties, up to and including debarment, as an additional safeguard against abuse of the program. D. Overview of Redesigned H-2B Foreign Labor Certification Process As proposed in the NPRM and finalized in this rule, the redesigned application process will require employers to complete recruitment steps similar to those now required, but will require them to do so prior to filing the application for labor certification. Once recruitment is complete, this Final Rule maintains the requirement proposed in the NPRM that the completed application be submitted directly to DOL instead of being filed with a SWA. This Final Rule eliminates the SWA duplicative review of the H-2B application. In association with this Final Rule, the Department has redesigned the application form currently used for the H-2A and H-2B temporary labor certification programs and proposed a new ETA Form 9142. Additional information about the new application form appears in the Administrative Information section of this preamble. This rule does not eliminate or federalize SWA activities (e.g., the job order and interstate clearance process) that may ultimately support an employer's H-2B application but are funded and governed independently under the Wagner-Peyser Act. This rule does federalize prevailing wage determinations, previously performed by the SWAs under this program. To test the U.S. labor market appropriately, employers will be required to first obtain from the Chicago NPC a prevailing wage rate to be used in the recruitment of U.S. workers. To make this request, employers in the non-agricultural labor certification programs will use a new ETA Form 9141, which was designed and will be implemented in conjunction with this Final Rule. As with the Form 9142, additional information about the Form 9141 appears in the Administrative Information section of the preamble. The employer will then follow recruitment steps similar to those required under the current program. The NPRM proposed increasing the number of required advertisements to three. However, in response to comments, the Final Rule returns to the current requirement of two advertisements, although it retains the proposed requirement that one of those advertisements be placed on a Sunday. Consistent with the NPRM, this Final Rule requires the employer to attest to and enumerate its recruitment efforts as part of the application but does not require the employer to submit [[Page 78023]] supporting documentation with its application. To ensure the integrity of the process, the Final Rule requires the employer to retain documentation of its recruitment, as well as other documentation specified in the regulations, for 3 years from the date of certification. The employer will be required to provide this documentation in response to a request for additional information by the Certifying Officer (CO) before certification or by ETA pursuant to an audit or in the course of an investigation by the Wage and Hour Division (WHD) after a determination on the application has been issued. The Department has set the document retention requirement at 3 years rather than the proposed 5 years in response to comments received expressing concerns that five years would impose an unnecessary burden on small employers, especially those that are mobile or have a mobile component. Employers or their authorized representatives (attorneys or agents) will be required to submit applications using a new form designed to demonstrate the employer's compliance with the obligations of the H-2B program. As described in the NPRM and the Final Rule, the application form will collect, in the form of attestations, information that is largely required already by the current H-2B labor certification process. These attestations are required from the employer to ensure adherence to program requirements and to establish accountability. As with recruitment, employers are required to retain records documenting their compliance with all program requirements. An application that is complete will be accepted by the NPC for processing and will undergo final review by the Department. Based on the Department's experience, and in response to concerns voiced in public comments about the need for H-2B stakeholder guidance and ETA staff training, we have added a transition period to the Final Rule at new Sec. 655.5. Although the Final Rule takes effect 30 days from publication, it phases in implementation based on employment start dates listed in the application. Employers with a date of need on or after October 1, 2009, will be governed by these new regulations. Employers with a date of need on or after the rule's effective date but prior to October 1, 2009, will follow the transitional process described in Sec. 655.5. Additional information about the transition process appears below. In order to further protect the integrity of the program, specific verification steps, such as verifying the employer's Federal Employer Identification Number (FEIN) to ensure the employer is a bona fide business entity, will occur during processing to ensure the accuracy of the information supplied by the employer. If an application does not appear to be complete or merit approval on its face but requires additional information in order to be adjudicated, the CO will issue a Request for Further Information (RFI), a process the program already employs. After Departmental review, an application will be certified or denied. As proposed in the NPRM and adopted in the Final Rule, the introduction of new post-adjudication audits will serve, along with WHD investigations, as both a quality control measure and a means of ensuring program compliance. Audits will be conducted on adjudicated applications meeting certain criteria, as well as on randomly-selected applications. In the event of an audit or WHD investigation, employers will be required to provide information supporting the attestations made in the application. Failure to meet the required standards or to provide information in response to an audit or investigation may result in an adverse finding on the application in question, initiate Departmental supervised recruitment in future applications, and penalties.\4\ --------------------------------------- \4\ Further sanctions may be imposed by DHS. See 8 U.S.C. 1184(c)(14). --------------------------------------- As stated in the NPRM, the Department expects the modernized processing of applications will yield a reduction in the overall average time needed to process H-2B labor certification applications. This process is expected to lead to greater certainty and predictability for employers by reducing processing times which have exceeded our historical 60-day combined State and Federal processing timeframe. II. Discussion of Comments on the Proposed Rule In response to the proposed rule, the Department received 134 comments, of which 88 were unique and another 46 were duplicate form comments. Commenters represented a broad range of constituencies for the H-2B program, including individual employers, agents, industry coalitions and trade groups, advocacy and legal aid organizations, labor unions, a bar association, congressional oversight and authorizing committees, and individual members of the public. The Department received comments both in support and opposition to the proposed regulation. Comments supported, for example, the anticipated efficiencies of the proposed streamlined process and the potential conversion to electronic filing. Broadly, other commenters opposed the rule because they felt it would undermine program integrity or weaken worker protections and U.S. worker access to job opportunities. Still others believed the rulemaking untimely, given the general weakening of the economy, or that the proposed rule failed to address what they believed to be key problems underlying the program. Several of those problems, such as the annual cap of 66,000 H-2B visas per year, are statutory and cannot be changed through regulation. In addition, as described in greater detail below, the Department received comments raising a variety of concerns with specific proposals and provisions within the rule. After reviewing those comments thoughtfully and systematically, the Department has modified several provisions and retained others as originally proposed in the NPRM. Provisions of the NPRM that received comments are discussed below; provisions that were not commented on or revised for technical reasons have been adopted as proposed. The Department has made some technical changes to the regulatory text for clarity and to improve readability, but those changes were not designed to alter the meaning or intent of the regulation. A. Section 655.2--Territory of Guam In the Final Rule, the Department has revised the discussion on the authority of the Governor of Guam to clarify that the enforcement of the provisions of the H-2B visa program in Guam resides with the Governor, pursuant to DHS regulations. B. Section 655.4--Definitions Of the definitions proposed in the NPRM, comments were received on the definitions for ``agent,'' ``attorney,'' ``employ,'' ``employer,'' ``full time,'' ``representative,'' and ``United States worker.'' The proposed rule defined an agent as ``a legal entity or person which is authorized to act on behalf of the employer for temporary agricultural labor certification purposes, and is not itself an employer as defined in this subpart. The term `agent' specifically excludes associations or other organizations of employers.'' In response to comments, the Department has corrected the typographical error and replaced ``agricultural'' with ``nonagricultural.'' Some commenters supported the proposed definition of agent with regard to its barring of associations or organizations of employers. One bar [[Page 78024]] association commented there had been many abuses by agents in the past, including the unauthorized practice of law, and recommended the Department adopt the definition under DHS regulations at 8 CFR 292.1. We have reviewed the guidelines under that section and concluded it is inappropriate for the labor certification process. The standard set by 8 CFR 292.1 is not tailored to the Department's needs. For example, it includes, among others, law students and ``reputable individuals.'' We have determined such persons may not be appropriate to practice before the Department, in particular for purposes of foreign labor certification activities. That definition was designed to fit the needs of another Federal agency and would eliminate many current individuals who act on behalf of employers in the labor certification process with the Department. The Department acknowledges that allowing agents who are not attorneys does not fit into the categories recognized by DHS and creates a difference between the two agencies. The Department has permitted agents who do not meet these criteria to appear before it for decades. Agents who are not attorneys have represented claimants before the Department in a wide variety of activities since long before the development of H-2A program, and DOL's programs, where they intersect with those of DHS, permit a broader range of representation. To change such a long-standing practice in the context of this rulemaking would represent a major change in policy that the Department is not prepared to make at this time and was suggested in the NPRM seeking comments. Consequently, the Department has not adopted this recommendation. The Department will maintain its long-standing practice and policy with respect to who may represent employers. For greater clarity, a definition for ``Administrator, Wage and Hour Division (WHD)'' has been added to the definition section of the regulation to distinguish this official from the ``Administrator, Office of Foreign Labor Certification (OFLC).'' Regulatory text has been added where needed to distinguish between these officials. The proposed rule defined an attorney as: Any person who is a member in good standing of the bar of the highest court of any State, possession, territory, or commonwealth of the U.S., or the District of Columbia, and who is not under suspension or disbarment from practice before any court or before DHS or the U.S. Department of Justice's Executive Office for Immigration Review. Such a person is permitted to act as an attorney or representative for an employer under this part; however, an attorney who acts as a representative must do so only in accordance with the definition of ``representative'' in this section. In the Final Rule, the Department has reworded the definition to provide more clarity regarding the bodies or courts that could suspend or disbar an attorney. The Department has also revised the final sentence in the definition to read: ``Such a person is permitted to act as an agent or attorney for an employer and/or foreign worker under this subpart.'' In the NPRM, the Department added a definition for ``employ'' and made revisions to the definition of ``employer.'' A trade association suggested that the Department eliminate the definition of ``employ'' but retain the definition of ``employer,'' stating that the definition of ``employ'' adds nothing to clarify status or legal obligations under the H-2B program and insinuates broad legal concepts that add unnecessary confusion. As suggested by commenters, the Department has deleted the definition of ``employ.'' We agree this definition did not provide any additional clarification regarding status or legal obligations related to the H-2B program and may generate some confusion with other statutes. The Department received comments that the requirement for a Federal Employer Identification Number (FEIN) as incorporated in the definition of ``employer'' could be problematic for some employers. One commenter recommended the use of the DUNS number as a complement to the FEIN. The ``data universal numbering system'' (DUNS), which is operated by Dunn & Bradstreet, issues nine-digit numbers that serve as unique identifiers and are used, in cases, by the Federal Government or individual businesses to track business entities. The Department has decided to retain the definition as proposed, and notes that it is easy for employers to obtain FEINs, which have the advantage of being assigned by the Internal Revenue Service, although in paragraph (1)(iii) of the definition we have added the phrase ``for purposes of the filing of an application,'' to clarify the FEIN is information gathered specifically at the point of application for H-2B labor certification. In paragraph (1)(i) of the definition, the Department has replaced ``may'' with ``must'' to clarify U.S. workers must be referred to a U.S. location for employment. Commenters supported the inclusion of a definition for ``full time.'' The Department agrees with one commenter's assertion that, consistent with program practice, the definition should not be construed to establish an actual obligation of the number of hours that must be guaranteed each week. The parameters set forth in the definition of ``full time'' refer to the number of hours that are generally perceived to constitute that type of employment, as distinguished from ``part time,'' and are not a requirement that an employer offer a certain number of hours or any other terms or conditions of employment. The Department has also made changes to the definition of a job contractor for purposes of clarity. The changes make clear that the job contractor, rather than the contractor's client, must control the work of the individual employee. One trade association commented that to the extent the intent of the rule is to define the respective liability of agents and representatives, it should articulate a clear set of standards for liability. The association found the definition of ``representative'' to be problematic and suggested deleting or revising it. The commenter questioned whether the intent of the regulation was to make the representative liable for any misrepresentations in an attestation made on behalf of an employer. Because of potential overlaps with the definition and role of agent, the commenter also requested the rule clarify if, and under what circumstances, an agent is liable for activities undertaken on behalf of an employer. The commenter recommended the Department delete the provision on the representative's role in the consideration of U.S. workers, questioning what rationale the Department had for dictating under what circumstances an attorney or other person can interview U.S. applicants for the job, and why the Department is ``singling out'' attorneys within the definition. The Department disagrees with the commenter's interpretation of the liability of an agent or attorney for the acts of the employer. The duties of an agent or attorney may vary widely and not all duties that an agent or attorney undertakes may lead to liability. The Department recognizes, however, that some of an agent's or attorney's duties in representing an employer may put the agent or attorney in the role of the employer and be a basis for assigning liability for the employer's acts or omissions. For example, in undertaking to represent an employer in the H-2A program, an agent or attorney not only performs administrative tasks but also [[Page 78025]] submits attestations regarding the employer's obligations under the program. Attorneys and agents undertake a significant duty in making such representations. They are, therefore, responsible for reasonable due diligence in ensuring that employers understand their responsibilities under the program and are prepared to execute those obligations. Agents and attorneys do not themselves make the factual attestations and are not required to have personal knowledge that the attestations they submit are accurate. They are, however, required to inform the employers they represent of the employers' obligations under the program, including the employers' liability for making false attestations, and the prohibition on submitting applications containing attestations they know or should know are false. Failure to perform these responsibilities may render the agent or attorney personally liable for false attestations. The Department has decided to retain the definition as proposed. One commenter believed that the definition of ``United States worker'' presented in the NPRM was too narrow and that there are other persons in the United States legally entitled to work in addition to those in the categories listed. The Department disagrees and has retained the proposed definition, as it is inclusive and consistent with other provisions of immigration law and regulations that define U.S. workers and persons authorized to work in the U.S. The Department also added definitions for the terms ``Administrative Law Judge,'' ``Chief Administrative Law Judge,'' ``Department of Homeland Security,'' and ``United States Citizenship and Immigration Services,'' mirroring the definitions in the Department's H-2A Final Rule. These terms and definitions were inadvertently omitted from the proposed rule. The Department has added a definition of the term ``strike'' to the Final Rule. The definition clarifies that the Department will evaluate whether job opportunities are vacant because of a strike, lockout, or work stoppage on an individualized, position-by-position basis. The Department also has added a definition of ``successor in interest'' to make clear that the Department will consider the facts of each case to determine whether the successor and its agents were personally involved in the violations that led to debarment in determining whether the successor constitutes a ``successor in interest'' for purposes of the rule. C. Section 655.5--Transition The Department recognizes that implementing the provisions of the Final Rule may be somewhat difficult for employers who have already filed their applications with the SWA to begin recruiting U.S. workers. Even though the NPRM put current and future users of H-2B workers on notice regarding the Department's intention to publish a Final Rule, the rule represents a departure from the current administration of the program. H-2B employers, including those who expressed concern regarding the time frame for a Final Rule, will require some period of time to prepare and adjust their requests for nonimmigrant workers to perform temporary or seasonal nonagricultural services or labor, particularly in tandem with changes to DHS processing of cases, and understand how to complete the Department's new forms for requesting a prevailing wage and applying for temporary employment certification. In response to comments, the Department is accordingly adopting a transition period, outlined in new Sec. 655.5 (previously reserved). Employers filing applications for H-2B workers on or after the effective date of these regulations where the date of need for the services or labor to be performed is before October 1, 2009, will be required to obtain a prevailing wage determination from the SWA serving the area of intended employment, rather than the NPC, but must meet all of the other pre-filing recruitment requirements outlined in this regulation before an Application for Temporary Employment Certification can be filed with the NPC. However, employers filing applications on or after the effective date of these regulations where the date of need for H-2B workers is on or after October 1, 2009, must obtain a prevailing wage determination from the NPC and comply with all of the obligations and assurances detailed in this subpart. The SWAs will no longer accept for processing applications filed by employers for H-2B workers on or after the effective date of these regulations. Rather, the SWAs will assist the Department's transition efforts by issuing prevailing wage determinations where the employer's need for H-2B workers is prior to October 1, 2009. This will allow the rest of the pre-filing recruitment requirements, obligations and assurances to become effective immediately. During this transition period, the Department expects that SWAs will continue to allow employers to file prevailing wage requests on forms they currently use in other visa programs in order to minimize any confusion and expedite the prevailing wage review process. In order to complete the processing of applications filed with the SWAs prior to the effective date of these regulations, the transition procedures require the SWAs to continue to process all active applications under the former regulations and transmit all completed applications to the NPC for review and issuance of a final determination. In circumstances where the SWA has already transmitted the completed application to the NPC, the NPC will complete its review in accord with the former regulations and issue a final determination. OFLC intends to conduct several national stakeholder briefings to familiarize program users with these requirements. D. Section 655.6--Temporary Need Congress mandated the H-2B program be used to fill only the temporary needs of employers where no unemployed U.S. workers capable of performing the work can be found. 8 U.S.C. 1101(a)(15)(H)(ii)(b). Therefore, as explained in the NPRM, the Department will continue to determine whether the employer has demonstrated that it has a need for foreign labor that cannot be met by U.S. workers and that the need is temporary in nature. The controlling factor continues to be the employer's temporary need and not the nature of the job duties. Matter of Artee Corp., 18 I&N Dec. 366 (Comm. 1982); cf. Global Horizons, Inc. v. DOL, 2007-TLC-1 (Nov. 30, 2006) (upholding the Department's position that a failure to prove a specific temporary need precludes acceptance of temporary H-2A application). DHS regulations at 8 CFR 214.2(h)(6)(ii)(B) provide that a petitioner's need be one of the following: (1) A one-time occurrence, in which an employer demonstrates it has not had a need in the past for the labor or service and will not need it in the future, but needs it at the present time; (2) a seasonal need, in which the employer establishes that the service or labor is recurring and is traditionally tied to a season of the year; (3) a peakload need, in which the employer needs to supplement its permanent staff on a temporary basis due to a short-term demand; or (4) an intermittent need, in which the employer demonstrates it occasionally or intermittently needs temporary workers to perform services or labor for short periods. As proposed in the NPRM, for purposes of a one-time occurrence, under this Final Rule the Department will consider a position to be temporary [[Page 78026]] as long as the employer's need for the duties to be performed is temporary or finite, regardless of whether the underlying job is temporary or permanent in nature, and as long as that temporary need-- as demonstrated by the employer's attestations, temporary need narrative, and other relevant information--is less than 3 consecutive years. This interpretation is consistent with the rule proposed by USCIS on August 20, 2008, 73 FR 49109, which is being finalized in conjunction with this regulation. Consistent with the final USCIS regulations, the Department proposed--and the Final Rule permits--a one-time occurrence to include one-time temporary events that have created the need for temporary workers for up to 3 years. The Final Rule requires those employers to request annual labor certifications based on new tests of the U.S. labor market. As stated in the NPRM, we believe this is the best method by which to ensure U.S. worker access to these job opportunities, but recognize that an employer's need for workers to fill positions could, in some cases, last more than one year. The Department received a number of comments in response to the proposed expansion of the one-time occurrence definition. A job contractor commented that it did not believe the Department needed to specifically authorize the possibility of a 3-year, one-time need, since it could be inferred as already having the authority to certify such situations as long as the employer's situation as described in the application was compelling. However, the commenter believed that establishing a maximum 3-year stay may be limiting under certain circumstances such as rebuilding after natural disasters. It also creates confusion and complexity for the employer applicants who may not understand the distinction between a 3-year labor need broadly speaking and a one-time occurrence. Under the NPRM and this Final Rule, the extension of the temporary need definition from 1 year or less to potentially up to 3 years does not apply to all categories of need. The Department believes employers should understand that an H-2B visa will only be granted for longer than 1 year in the case of a one-time occurrence. Neither the Department nor DHS is changing the long-established definition of one-time occurrence which encompasses both unique non- recurring situations but also any ``temporary event of a short duration [that] has created the need for a temporary worker.'' For example, an employer could utilize the H-2B program to secure a worker to replace a permanent employee who was injured. Further, if that permanent employee, upon returning to work, subsequently suffered another injury, the same employer could utilize the H-2B program again to replace the injured employee on the basis of a one-time occurrence. A one-time occurrence might also arise when a specific project creates a need for additional workers over and above an employer's normal workforce. For example, if a shipbuilder got a contract to build a ship that was over and above its normal workload, that might be a one-time occurrence. However, the Department would not consider it a one-time occurrence if the same employer filed serial requests for H-2B workers for each ship it built. The NPRM required that employers request recertification annually where their one-time occurrence extends beyond 1 year. The Department agrees with public comments that, where the need is one-time only, the added burden and expense of an additional labor market test does not make sense where the total period of need is less than 18 months. Therefore, an employer with a one-time need that has been approved for more than 1 year but less than 18 months will receive a labor certification covering the entire period of need, and will not be required to conduct another labor market test for the portion of time beyond 12 months. An employer requesting certification based on a one- time occurrence it expects to last 18 months or longer, however, will be required to conduct one or more additional labor market tests. A number of individual small business commenters were concerned that the proposed changes went beyond the original intent of the program and would leave the seasonal and peakload businesses for which it was intended without adequate numbers of visas. They raised longstanding concerns with what many believe is an arbitrarily low visa cap and the strong competition among industries for the limited visas. These commenters posited that expanding the term to 3 years would open up the program to a wider number of industries, further increasing competition for visas and effectively crowding out those employers for which these commenters believe the visa was intended. One small employer thought it would allow high tech businesses to participate in the H-2B program to use up all the visas and leave other employers with real peakload needs wanting. This employer also thought it would create a security threat by letting visas be sold on the black market. SWAs commenting also questioned the change in definition as being what they described as a significant program change. While most employers of highly skilled workers currently avail themselves of the H-1B visa program, they are not precluded from seeking, as an alternative, H-2B nonimmigrant status, if they otherwise meet the requirements of the H- 2B program. None of the changes proposed by the Department would make the H-2B visa program any more or less available to highly skilled workers or provide employers who might wish to use such persons as H-2B workers with any greater advantage than other H-2B employers. In addition, with respect to visas issued by the State Department based on an approved DHS petition, the Department is unaware of any contemplated change in this or the DHS rulemaking that would create an automatic 3- year H-2B visa. Depending on reciprocity schedules, under current State Department regulations, an initial H-2B visa is generally issued for a year or less, or for the validity period of the approved H-2B petition, but can be extended for additional periods of time to correspond to any period of time DHS might extend such H-2B petition. Nothing in this rule would change that. Several Members of Congress submitted separate comments on behalf of congressional committees. One U.S. Senator opposed the expansion of the definition of a one-time occurrence as contrary to the 1987 legal opinion of the Department of Justice, Office of the Legal Counsel. The comment stated that the Department of Justice considered various views of the proposed construction of ``temporarily'' in the context of the H-2A visa program and declined to define temporary as up to 3 years. According to the comment, the Justice opinion concluded that the statutory text, Congressional intent, and sound policy compelled a definition of temporary to be 1 year or less for all H-2 classifications. The comment also pointed to the Department's and DHS's proposed rules on the H-2A program that retained the one year or less definition of temporary (absent extraordinary circumstances) as evidence that the current construction should be retained. The commenter was concerned that the regulation would lead to abuse of the H-2B program by encouraging some employers who want to take advantage of the program to characterize long-term or permanent jobs as temporary. The commenter believed that these longer-term jobs should be filled by U.S. workers and, if none are available, only then through the employment-based immigration visa process. Several labor unions also commented on this provision, largely in opposition. [[Page 78027]] One believed the proposal to be at odds with years of precedent and immigration and workforce policy, as well as current law. The commenter asserted that expanding the definition conflicts with DHS regulations, runs counter to the purpose of the H-2B program, and undermines the Congressional mandate to protect U.S. workers. Another labor organization contended that if an employer's need is longer than a short duration it is not a temporary need, and a period longer than a year is not of short duration. This commenter opposed the inclusion of this provision and urged the Department to withdraw this proposed change. Another union proposed temporary employment be limited to six months and ``certainly no longer than [1] year.'' Another labor organization opposing the proposed provision did not believe that the requirement that employers retest the labor market each year represented a meaningful safeguard for domestic workers, particularly if the Department were to adopt an attestation-based system where recruitment of U.S. workers is not actively supervised by the SWAs. It recommended the H-2B program be made consistent with the H-2A program concerning the definition of temporary. Several worker advocacy organizations also opposed this provision, indicating their belief it was not in keeping with the objectives of the program and would open most construction jobs in the country to be potentially part of the program. An individual employer commented that seasonal should mean 8 months or less so as to not compete with local permanent jobs. A law firm commented that the proposed changes went beyond what it believed Congress intended and claimed anecdotally it would directly and proportionally adversely affect the industries for which it felt the program was designed. It believed that the problems with the program are more associated with the delays and uncertainties related to the inadequate number of visas as well as inadequate budget and staffing at all levels of the application process. The commenter recommended these problems would be best addressed by Congress and by increased fees at each step. It also believed that this expansion of the definition would encourage additional industries, most notably the information technology industry, to participate and to put undue pressure on an already pressured program. Conversely, several employer and trade associations supported the expanded provision. One employer association welcomed the change as long in coming. Another supported it as a means to provide greater flexibility across industries and regions. Still another recommended that the 3-year provision be expanded beyond ``one-time need'' to the other three categories of temporary need. A legal association supported the proposal to expand temporary need but suggested the Department rethink the requirement that employers retest the market each year. According to the comment, requiring employers to get a new prevailing wage and perform additional recruitment and filing each year would increase workload for the Department, increase costs to employers, and fails to recognize the advantages of the employer having the availability of trained, experienced workers. It recommended that a reasonable alternative would be for employers to check the prevailing wage determination annually to ensure that the workers are being paid the appropriate wage but not to have to undertake further recruitment efforts. Many SWAs commented on the proposed rule. On the issue of temporariness, one SWA stated its support for retesting the labor market each year. An employer association supported retesting the labor market each year only in situations where there was a significant time period beyond the ordinary 10-month period left on the labor certification. It believed that this requirement would be too onerous on employers if applied to jobs lasting only 18 months, for example. Finally, a worker advocacy group recommended the addition of a process either through the Department or the SWAs under which workers could challenge the determination that the jobs are temporary. The Department defers to the Department of Homeland Security and will use their definition of temporary need as published in their Final Rule on H-2B. Currently, that definition, including the four categories of need, appears at 8 CFR 214.2(h)(6)(ii), and requires the employer show extraordinary circumstances in order to establish a need for longer than 1 year. DHS's Final Rule amends 8 CFR 214.2(h)(6)(ii)(B) to eliminate the requirement for extraordinary circumstances and clarify that a temporary need is one that ends in the near, definable future, which in the case of a one-time occurrence could last longer than 1 year and up to 3 years. Accordingly, we have deleted the definitions we had in our regulatory text in the NPRM and instead provided a reference to the DHS regulations. E. Section 655.10--Determination of Prevailing Wage for Labor Certification Purposes 1. Federalizing Prevailing Wage Determinations The Department proposed a new reengineered system to federalize the issuance of prevailing wages, under which employers would obtain the prevailing wage for the job opportunity directly from the NPC. As proposed, the new federalized process would allow employers to file prevailing wage requests with the appropriate NPC--designated as the Chicago NPC for prevailing wage requests--no more than 90 days before the start of recruitment. The proposed rule also clarified the validity period for wage determinations. Based on annual updates to the Occupational Employment Survey (OES) database, and depending on the time of year that the prevailing wage determination (PWD) was obtained from the Department, relative to the date of the most recent update, the wage determination provided could be valid from several months up to 1 year. The NPRM sought comments from employers who had utilized the program in the past on the efficacy of this proposed action. The Department received numerous comments on this new process. After consideration of all comments, we have decided to implement the PWD process as proposed in the NPRM. However, to reflect the transition from the current system to the new, the Final Rule now clarifies that employers with a date of need on or after October 1, 2009, must seek a PWD from the Chicago NPC prior to beginning recruitment, while employers with prior dates of need will continue to seek PWDs from the SWAs. However, consistent with the Department's intent to immediately implement the Final Rule, and as set forth in Sec. 655.5 of this Final Rule, SWAs will be required to follow the procedures instituted under Sec. 655.10 for any prevailing wage determination requests submitted on or after the date this Final Rule takes effect. Overwhelmingly, commenters were concerned about the capability of the NPC to provide timely and accurate prevailing wage determinations. Commenters supporting the new centralized process included trade associations, employer-based organizations, businesses, and individual professionals with significant experience in the foreign labor certification field. Of those, some requested reassurance that the Department would allocate sufficient resources and training to the PWD [[Page 78028]] activity at the NPCs to prevent processing delays. They urged the Department to institute mechanisms to ensure consistency between NPCs and across job titles, descriptions, and requirements; and to offer comprehensive training to employers, attorneys, and agents prior to implementation. Many commenters, including labor unions, advocacy organizations, academic institutions, and SWAs expressed concern that the NPC staff would not possess the same level of expertise, particularly locally- oriented expertise, required to provide accurate, context-appropriate prevailing wage determinations as the SWA staff. They believed this could lead to reduced scrutiny, inaccuracy, backlogs, and delays, and adversely affect U.S. worker wages and job opportunities. The SWAs that commented on this issue were concerned that transferring the determination to the NPCs would also degrade customer service, and some questioned whether OES really keeps pace with changes in local standards. One state has had success with its own system and recommended the Department replicate that system on a national scale. One advocacy organization expressed the view that centralization would be particularly harmful to amusement park industry workers, which currently use a weekly rate rather than an hourly rate. One employer was concerned that NPC-issued PWDs would be inaccurate and biased in favor of higher wages, raising program costs. Several commenters opposed PWD federalization in its entirety and proposed full funding of SWAs for these activities. In the alternative, they recommended that, if the Department were to move forward, it hire staff with strong PWD backgrounds and create a separate PWD unit within the NPC. To guard against potential delays, some commenters requested that a timeframe for the process be established, or recommended adjustments to the process as proposed. A small business coalition recommended the Department permit employers to recruit without first getting the PWD from the NPC, so long as the employer accompanied its H-2B application with a printout of a current and appropriate wage from O*NET, which is the Internet wage survey the Department updates on an annual basis. A large trade association made a similar recommendation, with a proviso that if the employer has not used the correct wage from the database, it would be required to restart the application process after obtaining a PWD from the NPC. The Department also received a suggestion that employers be allowed to get the OES rate themselves unless they want a safe harbor which would be provided by getting the wage rate from the NPC or SWA. Another commenter was concerned that employer surveys do not provide the same safe harbor as SWA determinations and another commenter was concerned that eliminating the SWA from the process meant that the safe harbor would also be eliminated. This Final Rule establishes rules under which employers may provide their own information. Apart from those instances, the Department believes there is greater value and potential for greater consistency and efficiency in having the NPC provide the wage. The Department believes that continued oversight at the Federal level is essential to ensuring that the job opportunities are advertised and paid at the required wage and therefore does not adversely affect U.S. worker wages. A number of commenters urged that within this new process, the Department provide a vehicle for communication between program users and NPC staff to resolve disagreements on the job opportunity or wage level and educate program users on the Department's methodology. One trade association recommended the Department disclose its methodology for a PWD upon request from an employer with sufficient time to avoid delaying the application. Other organizations conditioned their support of the new process specifically on the creation of a mechanism for communicating or interacting with the public. Some commenters observed that the appeal process for wage determinations can be quite lengthy, and not a viable option in the context of H-2B or H-1B, where timing is critical; those commenters were particularly concerned that without such communication the timeframe for resolving any prevailing wage determination issues would be lengthened. The Department recognizes its responsibility to provide an efficient process for prevailing wage determinations. Now that the backlog in the permanent labor program has been eliminated, resources are being redirected to other OFLC priorities, including offsetting some costs associated with the re-engineering of the temporary labor certification programs. As the new program design is implemented, we will allocate available appropriated resources to key activities, including the PWD function. As part of this process, the Department will focus on identifying areas where improvements could be made, including developing and providing needed training. The Department will also look to its stakeholder community for input and suggestions for improvements. The Department will provide stakeholder briefings on H-2B Final Rule, is updating its Prevailing Wage Guidance for agricultural and nonagricultural programs, and will provide additional training and educational material as appropriate. The Department will, to the extent feasible and within available resources, seek to hire qualified staff, will train staff already on board, and if appropriate, will consider establishing a separate PWD unit at the Chicago NPC. In addition, the Department will strive to provide timely, appropriate guidance to program users and SWAs to ensure a successful transition and implementation. We remain confident that federalizing the prevailing wage application component will instill a high level of efficiency and consistency in the process which has been a past problem. This increased efficiency and consistency will help ensure more accurate wage determinations, which result in improved protections for U.S. workers. As stated in the NPRM, the Department strongly believes that shifting wage determination activities to NPC staff will reduce the risk of job misclassification because of centralized staff experience, thereby not only strengthening program integrity, but also ensuring consistency in classification across States, resulting in improved protections for U.S. workers. As discussed in the NPRM, the Department has received numerous reports that in cases where job descriptions are complex and contain more than one different and definable job opportunity, some SWAs have made inconsistent classifications that resulted in inconsistent PWDs. Furthermore, where H-2B workers are required to work in several different geographic areas that may be in the jurisdiction of several SWAs (examples include the New York, New Jersey, Connecticut ``Tri- state Region'' or the Washington, DC-Maryland-Virginia metropolitan area), questions have arisen about where to file a prevailing wage request and how that wage should be determined. Utilizing a federalized system will alleviate such confusion. Moreover, the Department's current prevailing wage guidance requires SWAs refer--with certain exceptions--to federally provided OES data to determine the appropriate prevailing wage for jobs. Therefore, the NPC can provide the data [[Page 78029]] and there is no requirement for any local input or expertise. The Department understands the desire for a fixed timeframe within which an employer will receive a prevailing wage determination. The timeframe depends on a number of factors, including the volume and timing of requests received, the method by which the requests are received (whether paper or electronic), the complexity of the request, and the resources available. Nevertheless, the Department has committed as part of the Final Rule to processing employer requests for prevailing wage determinations within 30 days of receipt. However, the Department acknowledges that this process of obtaining a prevailing wage may endure a period of processing time fluctuation as a result of the transition. We therefore recommend that, as an initial matter, employers filing H-2B applications should file a Prevailing Wage Determination Request, Form 9141, with the NPC at least 60 days in advance of their initial recruitment efforts. The Department will make every effort to process these requests within the 60 days. The Department will analyze its experience with application patterns and workload, as the NPCs take on the prevailing wage determinations in the other programs handled by OFLC. During that time, the Department will review not only the level of requests it receives, but the information contained in the requests and whether the information received is typically sufficient to be able to generate accurate prevailing wages, or whether employers are providing deficient information. The Department's intent is to substantially reduce the response time for prevailing wage determinations and to design procedures, based upon the results of its analyses to provide employers with greater certainty in their expectation of response time from the NPC. One commenter thought the prevailing wages would be based on a national average as a result of the centralization in the NPC. That commenter misunderstood the proposal; the wages will continue to be based on applicable data for the area of intended employment. The Department did not propose any change to the methodology used to determine the wage rates under the H-2B program and continues to support the use of OES data as the basis for the prevailing wage determinations. The OES program produces occupational estimates by geographic area and by industry. Estimates based on geographic areas are available at the national, State, and metropolitan area levels. Industry estimates are available for over 450 industry classifications at the national level. The industry classifications correspond to the sector, 3, 4, and 5-digit North American Industry Classification System industrial groups. The OES program also provides data at the substate level in addition to the State level. Data is compiled for each metropolitan statistical area and for additional areas that completely cover the balance of each state. It also offers the ability to establish four wage-level benchmarks commonly associated with the concepts of experience, skill, responsibility and difficulty variations within each occupation. In the Final Rule, the Department has revised Sec. 655.10(d) to clarify that where the duration of a job opportunity is less than one year or less, the prevailing wage determination will be valid for the duration of the job opportunity. 2. Automating the PWD Process Initially the PWD process will be a manual process. It is the Department's goal to allow the PWD activity eventually to be conducted electronically between the NPC and the employer. The Department sought comment from potential program users on all aspects of its PWD proposal, but in particular regarding the required use of an online prevailing wage system and corresponding form for interaction with the NPC. The Department received several comments in support of an electronic process. One commenter suggested the centralization of prevailing wage determinations be delayed until the electronic process was available. Another commenter suggested the electronic process should not be mandatory for all employers, since not all employers have access to the Internet. One commenter expressed concern that employers would use an electronic system to ``shop'' for occupations with the lowest wages to use in describing their job opportunities. The Department disagrees with the suggestion we delay implementation of the prevailing wage function until an electronic version is available. If and when the Department implements an electronic application system, it customarily makes special provisions for those who cannot access the electronic system, and advises the public accordingly. The Department appreciates the input on an electronic system and will take the comments into consideration should a new system be proposed. 3. Extending the PWD Model to PERM, H-1B/H-1B1, E-3, and H-1C Programs The Department received comments on its proposal to extend the federalized wage determination process to other permanent and temporary worker programs. Some believed that the Department should not include other programs in an H-2B rulemaking. One commenter suggested that the process should not be extended until the new system has proven to be workable. Another commenter was concerned that extending the process to these other programs would result in the total elimination of the States when enforcement capacity is best kept at the State level. One commenter who supported the federalization mentioned that the assignment of occupational codes from the Standard Occupational Classification (SOC) system is also key and should be reviewed. The SOC system is used by many Federal agencies to classify workers into occupational categories. a. H-1B and PERM Programs As proposed in the NPRM, for consistency and greater efficiency across non-agricultural programs, this Final Rule extends the new prevailing wage request processing model to the permanent labor certification program, as well as to the H-1B, H-1B1, H-1C and E-3 specialty occupation nonimmigrant programs. As stated in the NPRM, the new process will not alter the substantive requirements of foreign labor certification programs, and we anticipate that, at least in the foreseeable future, the methodology for determining appropriate wage rates will remain much the same as it stands today. Our intent is to modernize, centralize, and make the mechanics and analysis behind wage determination more consistent. Much as the SWAs do now, the NPCs will evaluate the particulars of the employer's job offer, such as the job duties and requirements for the position and the geographic area in which the job is located, to arrive at the correct PWD based on OES data, CBA rates, employer-provided surveys, or other appropriate information. The Department's current prevailing wage guidance for non- agricultural foreign labor certification programs has been in effect since 2005 and is posted in the form of a memorandum on the OFLC Web site. In the near term, the Department will update and formalize its guidance for making prevailing wage determinations to maintain some existing procedures and revise others such as to conform to these regulations. As program experience administering [[Page 78030]] the PWD process grows, the Department may revise its guidance to explain and assist employers in navigating the process. To implement and standardize the new process, ETA has developed a new standard Prevailing Wage Determination Request (PWDR) form for employers to use in requesting the applicable wage regardless of program or job classification. As stated in the NPRM, the Department is considering means by which eventually such requests could be submitted, and a prevailing wage provided, electronically. For purposes of the permanent labor certification (PERM) program, this rule amends the regulations at 20 CFR part 656 to reflect the transfer of prevailing wage determination functions from the SWAs to the NPCs and makes final the technical changes described in the proposed rule. For purposes of the H-1B program, this rule amends the regulations at 20 CFR part 655 to reflect the transfer of PWD functions from the SWAs to the NPCs and makes final the technical changes described in the proposed rule. Department regulations covering the H-1B program also govern the H-1B1 and E-3 programs, which both require the filing and approval of a ``Labor Condition Application,'' or LCA, rather than a ``labor certification application.'' The Final Rule also amends Sec. 655.1112 governing the H-1C program, to provide for the federalization of prevailing wage determinations. As described in the NPRM and included in the Final Rule, under the new process, for purposes of H-2B job classifications, NPC staff will follow the requirements outlined under new Sec. Sec. 655.10 and 655.11 when reviewing each position and determining the appropriate wage rate. These new regulatory sections are consistent with existing provisions at 20 CFR 656.40 and the Department's May 2005 Prevailing Wage Determination Policy Guidance, Nonagricultural Immigration Programs, but would supersede current regulations and guidance for the H-2B program to the extent there are any perceived inconsistencies. These new regulatory sections supersede current regulations and guidelines for all prevailing wage requests in the H-1B, H-1B1, E-3 and PERM programs made on or after January 1, 2010, and for H-1C prevailing wage requests made on or after the effective date of this Final Rule. The Department appreciates that employers will require some time to become accustomed to the new method of securing a prevailing wage determination. The SWAs will also need a time of transition to complete pending prevailing wage determination requests, just as the NPC will require a corresponding time to fully implement the new form and process. The Department believes keeping PWD activities with the SWAs for PERM, H-1B and related programs until January 2010 will facilitate the transition of Federal staff and program users to complete federalization of prevailing wage determinations. Therefore, the Chicago NPC will begin to provide prevailing wage determinations in programs other than H-2B and H-1C on January 1, 2010. Given the limited size of the H-1C program, and the possibility it may sunset in 2009, the Department believes it can begin processing prevailing wage determination requests shortly after this Final Rule takes effect. Prevailing wage requests under the H-1C program made prior to the effective date of this Final Rule will be governed by the Department's current procedures and its 2005 guidance. Any prevailing wage requests for other non-H-2B programs governed by this regulation made prior to January 1, 2010, must be submitted to the SWA having jurisdiction over the area of intended employment and will be valid for the period listed on the determination issued by the SWA. Prevailing wage determinations issued prior to January 1, 2010, by a SWA will be valid after October 1, 2010, if so determined by the SWA issuing them, and fully enforceable as determined by the applicable regulation (H-1B, H-1B1, E- 3, H-1C or PERM). b. H-1C Program In the same way that the Department is in this Final Rule establishing national processing for the obtaining of prevailing wages through its National Processing Center for both H-1B (and by extension H-1B1 and E-3) and PERM, it will also amend its H-1C regulations to incorporate the same changes. This program, whose prevailing wage processing amendments were inadvertently removed from the NPRM, previously lapsed, but was reauthorized in December 2006, and is scheduled to sunset again in December 2009.\5\ The Department has determined that it is administratively prudent to move the prevailing wage determination function to the Chicago NPC in the H-1C program as in the other programs. This affects a very small number of employers (only 14 hospitals are eligible to participate) and is consistent with the reasoning for federalizing prevailing wage determinations that applies to the other programs. As stated in the preamble to the NPRM, the conversion to a federalized prevailing wage system has no effect on the substantive requirements of foreign labor certification programs or on the methodology by which the NPC will determine the prevailing wage for workers to be admitted under any of the applicable visas. This applies equally to H-1C. In fact, the majority of prevailing wage determinations in the H-1C program are based on the wages contained in collective bargaining agreements, making the need to obtain a wage determination by the NPC frequently unnecessary. Facilities may begin submitting H-1C prevailing wage requests to the Chicago NPC on the date this Final Rule takes effect. --------------------------------------- \5\ The Nursing Relief for Disadvantaged Areas Reauthorization Act of 2005, Public Law 109-423, took effect December 20, 2006. The Act reauthorized the H-1C nonimmigrant nurses program, a program originally created by the Nursing Relief for Disadvantaged Areas Act of 1999. --------------------------------------- 4. Section 655.10(b)(3)--Paying the Highest Prevailing Wage Across MSAs As proposed in the NPRM, this Final Rule requires that, where a job opportunity involves multiple worksites in areas of intended employment and cross multiple Metropolitan Statistical Areas (MSAs) in multiple counties or States with different prevailing wage rates, an employer must pay the highest applicable wage rate of the applicable MSAs throughout the term of employment. The U.S. worker responding to recruitment and the foreign H-2B worker are entitled to know and rely on the wage to be paid for the entire period of temporary employment. The Department received comments on this requirement, both in support and in opposition. One trade association supported the proposal, concluding it would strengthen protections for U.S. workers while not adding burden to its members, whom it said already paid the highest prevailing wage rate in every MSA. A number of other employer associations opposed the proposal, stating it was arbitrary, unfair, would artificially increase costs for H-2B labor, and would undermine the basic decision-making of many employers, who locate in areas with low labor costs in order to save money. The Department has decided to retain the requirement that employers advertise and pay the highest of the applicable prevailing wages when the job opportunity involves multiple worksites across multiple MSAs with varying prevailing wage rates for that occupation and at those worksites. This provision is retained because it provides greater consistency and predictability [[Page 78031]] for both employers and the workers and ensures that U.S. workers who are interested in the job opportunity would not be deterred due to varying wage rates. It also ensures greater protection for workers against possible wage manipulation by unscrupulous employers. 5. General Process or Data Integrity Concerns Some commenters raised concerns about the integrity of the data currently being used for prevailing wage determinations and recommended changes to the OES survey itself. Others commented on different aspects of the methodology and procedures. One commenter suggested that the Department set the minimum wage rate for H-2B workers at or above the wage (presumably the adverse effect wage rate) for H-2A workers in that State. Another commenter suggested the Department require employers in the construction industry to use, first, the Davis-Bacon Act (DBA) survey wage rate; second, if no DBA wage existed, the collective bargaining agreement rate; and as a last resort, the OES rate, if neither of the other rates was available. Another commenter suggested that the provision regarding when an employer may utilize a wage determination under the Davis-Bacon Act also cover when an employer can choose not to utilize that wage rate. One commenter believed that the proposal did not correct what they claimed was a problem with the Department's Bureau of Labor Statistics (BLS) wage rates being 2 years out of date and also expressed concerns that piece rate policies have led to depressed wages and suggested that the Department should require advance written disclosure of piece rates on the job orders. The Department appreciates these suggestions and concerns. However, the Department did not propose changes to the sources of data to be used for prevailing wage determinations and, therefore, these comments are beyond the scope of the current rulemaking. The Department notes that the proposed procedures that were retained in the Final Rule already cover the use of wages specified in a collective bargaining agreement. Similarly, these procedures provide that an employer may use the Davis-Bacon wage and that such use is at the employer's option unless the employer is a Federal construction contractor. There is a similar provision that applies to Service Contract Act wage rates. Some commenters suggested that employers should not be allowed to submit their own wage surveys. The Department, however, believes that employers should continue to have the flexibility to submit pertinent wage information and therefore, the Final Rule continues the Department's policy of permitting employers to provide an independent wage survey under certain guidelines. It also continues to provide for an appeal process in the event of a dispute over the applicable prevailing wage. F. Section 655.15--Employer Conducted Pre-Filing Recruitment Under the Final Rule, employers will continue to be required to test the labor market for qualified U.S. workers at prevailing wages no more than 120 days before the date the work must begin (``date of need''). This will ensure the jobs are made available to U.S. workers most likely to qualify for the positions in question. As described in the NPRM and finalized under this rule, U.S. worker recruitment will continue to consist of prescribed steps designed to reflect what the Department has determined, based on program experience, are most appropriate to test the labor market. These steps are similar to those required under the current H-2B program. However, application processing and consistency will be improved by having employers conduct the recruitment before forwarding the recruitment report and application to the Department for review. Additionally, we will continue the Department's current requirement that recruitment take place no more than 120 days before the date of need to ensure jobs are advertised to U.S. workers with adequate notice. This Final Rule retains the requirement in the proposal that employer recruitment efforts be documented and retained for production to the Department or other Federal agencies. As stated in the NPRM, the recruitment documentation requirements will be satisfied by copies of the pages containing the advertisement from the newspapers in which the job opportunity appeared and, if appropriate, correspondence signed by the employer demonstrating that labor or trade organizations were contacted. Documentation of a SWA job order will be satisfied by copies of the job order downloaded from the Internet showing the beginning and the ending date of the posting or a copy of the job order provided by the SWA with the dates of posting listed, or other proof of publication from the SWA containing the text of the job order. However, in response to public comments, the Final Rule requires record retention for 3 years, which is 2 years less than the Department originally propose d. As proposed, the Final Rule permits employers to place their own newspaper advertisements. The Department has revised the proposed requirement of three advertisements and will in this Final Rule revert to the current requirement of two advertisements. The Department, however, has maintained in this Final Rule the proposed requirement that one of the two advertisements must be placed in a Sunday edition of a newspaper closest to the area of intended employment. The Department has also added a clarification that the newspaper chosen needs to have a reasonable distribution. The Department received several comments that supported the shift to a pre-filing recruitment model. One of these commenters recommended that the job order process should also be centralized or that timelines for posting job orders should be established and SWAs should have staff dedicated to working with H-2B job orders. The centralization of the job order process was not envisioned by this regulation, and would require separate rulemaking. Moreover, posting job orders and referring individuals to those jobs is a core function of the SWAs and one that remains at the local level in this rule. Additionally, the Department believes the SWAs must have the flexibility to assign their limited resources based on needs and priorities and declines to establish a timeline for SWAs to post job orders. The Department received a number of comments about the proposed timeframe for pre-filing recruitment; some opposing recruitment so far in advance of the date of need and others suggesting the timeframe be lengthened. The commenters who were opposed to the proposal generally believed that U.S. workers would not be able or willing to commit to temporary jobs so far ahead of the actual start date or would indicate they would accept the jobs but then fail to report on the actual start date. These commenters believed this would result in delays, additional costs to employers and the Department, and the late arrival of H-2B workers because new applications would have to be filed. One commenter opposed the early pre-filing recruitment and believed the result would be a false indication that no U.S. workers were available. Another commenter opined that employer compliance would be reduced due to the pre-filing recruitment. One SWA recommended that the period for recruitment be shortened because 120 days in advance is not suitable when serious job seekers are looking for [[Page 78032]] temporary employment and stating their view that those U.S. workers who apply are rarely offered employment because the employer knows foreign workers are available. The commenter was further concerned that the U.S. workers who are hired that far in advance of the date of need are not reliable and will not report for work. In contrast, two commenters suggested a longer recruitment period--one recommended 180 days in advance of the date of need--to provide employers with greater flexibility. The Department declines to extend the period of recruitment to 180 days prior to the date of need because we do not believe recruitment that far in advance would be effective given the concerns expressed by some of the commenters and our own extensive program experience. One commenter was concerned that the proposed pre-filing recruitment period, when combined with a prevailing wage determination request submission 90 days prior to the recruitment start date, advanced the timeframe for beginning the application to more than 6 months prior to the date of need. This commenter stated this was not characteristic of a user-friendly program. The Department understands that there are trade-offs when designing a new system. In this case, in order to provide the employer more flexibility and eliminate an extra layer of government bureaucracy, the process must begin earlier. One commenter was concerned about the validity of the pre-filing recruitment when, after completing the recruitment and submitting the application, the employer's needs change and it requires a modification to a term or condition on the application. This commenter questioned whether the recruitment would be considered a valid test of the labor market since, unlike the current process, the underlying application and job order will not have been approved prior to the recruitment effort. The commenter recommended that the Department provide in the regulation that as long as the recruitment was conducted based on the job description and offered wage as determined by the CO and the job order was accepted by the SWA, the recruitment would be considered valid irrespective of any required modifications. It is unclear what kind of modifications would be warranted and, therefore, the Department cannot respond directly to this comment. For example, if a timely-filed application requires a technical modification, but the modification cures the defect and allows the application to resume processing, then the recruitment will continue to be valid for as long as the petition is pending at the NPC and valid for purposes of a final determination. However, if an employer's needs change in a way that requires a substantive correction in one or more key terms and conditions of employment--for example, wages or occupation--the NPC will require that the position be readvertised. Changes in terms of employment contained in the underlying job offer will trigger a requirement for a new labor market test. The Department's requirement that the employer submit an acceptable job order to the appropriate SWA for posting mandates that the employer complete and submit information regarding all of the job duties and terms and conditions of the job offer: The job duties, the minimum qualifications required for the position (if any), any special requirements, and the rate of pay. This information is normally submitted to the SWA for acceptance prior to the employer's recruitment; as long as the employer's advertisements do not depart from the descriptions contained in the accepted job order, they will be deemed acceptable by the Department. At the same time, the SWA will be the arbiter of the job's acceptability for the job order, and as the job order must be accepted prior to the commencing of recruitment in this Final Rule, all recruitment must reflect the job as accepted by the SWA as well. The Department has decided to eliminate the document retention requirement in its entirety with respect to applications not certified; therefore, any employer whose application has been denied can discard the records relevant to the denied application immediately upon receiving the denial notice or whenever the decision becomes final if the employer appeals the decision. If the denial is overturned, the application becomes subject to the document retention requirements for approved cases. The Department determined that a document retention requirement in such cases serves no governmental purpose and is unnecessarily burdensome on employers. The Department would, in virtually all such cases, already have copies of the employer's supporting documentation rendering such a retention requirement unnecessary. 1. Section 655.15(g)--Unions as a Source of Labor As proposed, the rule would have required that if the job opportunity were in an industry, region and occupation in which union recruitment is customary, the appropriate union organization must be contacted. A number of commenters were concerned that the proposed provision placed too great a reliance on the employer's ability to determine what the Department will later decide is ``appropriate for the occupation and customary to the industry and area of intended employment.'' One of these commenters suggested that even if contacting a union may be appropriate in some industries, it would be entirely inappropriate in the construction industry and, at a minimum, the construction industry should be expressly excluded from this requirement under a Final Rule. Another commenter suggested that the requirement was unnecessary, as the required newspaper advertising would reach the same pool of applicants. Another commenter believed the requirement was not authorized by statute and the Department has no basis to impose it. Additionally, the commenter expressed concern that the requirement also has the potential to subject non-unionized employers to ``salting'' campaigns, during which union organizers retain employment in union shops for the sole purpose of organizing the workforce. According to this commenter, the requirement could unfairly and unnecessarily inject the Department into an area in which it should not be involved. One specialty bar association opined that the requirement to use unions as a recruitment source would be unworkable in practice, stating that in their experience, unions will not refer workers to non-union shops. The commenter recommended the regulation instead use the approach of the permanent labor certification program, which requires union contact for unionized employers only. The Department has considered these comments and agrees with the many concerns raised about the proposed requirement, in particular concerns about vagueness and ambiguity, and the dilemma employers would face in trying to interpret and implement the requirement. Accordingly, we have revised the provision to require an employer to contact a labor organization only in cases where the employer is already a party to a collective bargaining agreement that covers the occupation at the worksite that is the subject of the H-2B application. The employer's obligation is only to contact the local affiliate of labor organization that is party to the existing collective bargaining agreement that covers the occupation at the worksite that is the subject of the H-2B application. [[Page 78033]] 2. Section 655.15(i)--Referral of U.S. Workers and SWA Employment Verification To strengthen the integrity of the Secretary's determination of the availability of U.S. workers, and to help bolster employers' confidence in their local SWAs and the H-2B program, the Department proposed that SWAs verify the employment eligibility of U.S. workers they refer for nonagricultural employment services with the SWA. The Department received a significant number of comments on the practicality of this provision. Comments on this subject were received from national associations, numerous SWAs, several labor advocacy organizations, and members of Congress. Commenters generally opposed the proposal for a variety of legal, programmatic, resource-related, and policy-based reasons. Most of the commenters were SWAs that noted the burden this new provision would create. Many saw it as an unfunded Federal mandate in violation of the Unfunded Mandates Reform Act. More than one referred to the Department's recent inclusion of the requirement as a condition for receiving further labor certification grant funding. As stated in the preamble to the NPRM, the Department is not insensitive to the resource constraints facing state agencies in their administration of the H-2B program. However, as we stated in the NPRM, we do not believe that the requirement will result in a significant increase in workload or administrative burden not covered by Department-provided resources. In addition, notwithstanding funding limitations, there is a strong, longstanding need for a consistent verification requirement at the State government level. The Department is not leaving States to their own devices. Precisely to ensure that available Federal funding supports verification activities, the Department has added the verification requirement as an allowable cost under the foreign labor certification grant agreement. The Department also funds State employment services under the Wagner-Peyser Act, and for many years States have made Wagner-Peyser grant funding a part of their annual financial plan. To the extent that State functions related to foreign labor certification depend extensively on activities that are already part and parcel of the employment service system, State labor agencies can continue to rely on Wagner-Peyser to support that portion of activity. Ultimately, while cognizant of the challenges posed by funding limitations, we expect States to comply as they do with other regulatory requirements and other terms and conditions of their foreign labor certification grant. SWAs also expressed concern about possible discrimination suits. The requirement to verify employment eligibility does not violate constitutional prohibitions against disparate impact. The eligibility requirement is similar to verification requirements to gain access to other similar public benefits. One SWA said it would be impossible to implement verification of work eligibility because they have a virtual one-stop system that is self-service for both employers and job seekers and the SWA would be unable to certify that applicants referred to those job orders are employment-eligible. While we do not disagree that an in-person verification requirement may impact the decisions of a limited number of otherwise eligible workers, such impact does not outweigh the significant value of verification. Moreover, SWAs can respond to any possible inconvenience to workers by designating or creating additional in-person locations where eligibility can be verified. This is not a problem unique to SWAs--workers may be required to travel great distances to reach a prospective employer, who then (absent a SWA certification) would be required to verify work eligibility. In the end, although employment eligibility verification does require some amount of extra time and effort, the Department has determined that simple convenience must cede to the overarching goal of a legal workforce and has drafted its regulations accordingly. Several SWAs also pointed out that under the new regulations it will be impossible to identify H-2B job orders, especially now that the SWA will no longer receive a copy of the application or determine prevailing wages and be only responsible for placing the job order. The Final Rule now requires the job order carry a notation identifying it as a job order to be placed in connection with a future application for H-2B workers. Several other commenters supported the contention made by the SWAs that this requirement will drain SWA resources. A few commenters seem to have interpreted this requirement as mandating the use of the ``E- Verify'' electronic system. However, although both the NPRM and the Final Rule require the use of the DHS process, which requires the completion of I-9 forms and process, the use of the electronic E-verify system is optional. The Department's expectation is that SWAs will not expend public resources to refer undocumented workers to H-2B job opportunities. The employment verification provisions included in this regulation are part of a concerted effort--one that includes regulation, written guidance, and ongoing outreach and education--to address longstanding weaknesses and to strengthen the integrity of the program. 3. Section 655.15(h)--Layoff Provisions Under the NPRM, an employer seeking to employ H-2B workers would have been required to attest that it is not displacing any similarly employed permanent U.S. worker in the occupation in the area of intended employment within the period beginning 120 days before the date of need and throughout the entire employment of the H-2B worker(s). The Department received a number of comments from various groups on this provision. We have addressed those below, in conjunction with comments on the layoff provisions at Sec. 655.22(k). G. Section 655.17--Advertising Requirements As proposed in the NPRM, the Final Rule requires employers to advertise for available U.S. workers. The advertisement must: (1) Identify the employer with sufficient clarity to notify the potential pool of U.S. workers (by legal and trade name, for example); (2) provide a specific job location or geographic area of employment with enough specificity to apprise applicants of travel or commuting requirements, if any, and where applicants will likely have to reside to perform the services or labor; (3) provide a description of the job with sufficient particularity to apprise U.S. workers of the duties or services to be performed and whether any overtime will be available; (4) list minimum education and experience requirements for the position, if any, or state that no experience is required; (5) list the benefits, if any, and the wage for the position, which must equal or exceed the applicable prevailing wage as provided by the NPC; (6) contain the word ``temporary'' to clearly identify the temporary nature of the position; (7) list the total number of job openings that are available, which must be no less than the number of openings the employer lists on the application (ETA Form 9141); and (8) provide clear contact information to enable U.S. workers to apply for the job opportunity. The advertisement cannot contain a job description or duties which are in addition to or exceed the duties listed on the Prevailing Wage Determination Request or on the application, and must not contain terms and conditions of [[Page 78034]] employment which are less favorable than those that would be offered to an H-2B worker. The Department received multiple comments on the newspaper advertising requirements. Several commenters believed that the requirements, especially the requirement for three ads that was proposed in the NPRM (rather than the two required under the current program), would increase employer costs and time devoted to the application process but not yield additional U.S. workers. The requirement for advertising in a Sunday edition of a newspaper was seen as particularly objectionable due to the higher costs for Sunday ads and the belief that many nonprofessional workers do not read Sunday newspaper editions. Some commenters suggested employers should have the flexibility to use other recruitment methods, such as Web sites that have proved successful in locating seasonal workers. Others were concerned that without SWA guidance, employers would have to guess as to the correctness of their ads, risking that if the CO subsequently determined there were errors in the advertisements, it would be too late to get the workers needed. One commenter was concerned that no process was provided for requiring an employer to revise its ad if the content was determined to be unduly restrictive. As previously discussed, this Final Rule requires two newspaper advertisements which must include one Sunday edition. Sunday editions have traditionally provided the most comprehensive job advertisements and many U.S. workers potentially seeking employment would normally choose the Sunday paper to review. Employers can, however, always conduct more recruitment than is required, such as posting the opportunity on job search Web sites. One commenter inquired about the process for employers to follow in selecting an alternate publication in lieu of one of the newspaper ads. Other commenters were concerned about the choice of the specific newspaper in which to advertise and believed that the NPC would not be able to determine the most appropriate newspaper in all cases. One commenter suggested that the SWA should be involved in the process and provide guidance regarding newspaper choices. Another commenter asked whether there would be specific guidance regarding advertisements for live-in jobs, such as those for housekeepers, child monitors, and similar positions. The Department believes that staff at the NPC will be able to handle such issues. The Department declines in the Final Rule to specify the requirements to a high level of detail, as appropriate publication may vary, for example by industry or industry practice, and as the Department normally issues such guidance in the form of Standard Operating Procedures or other policy guidance. H. Section 655.20--Direct Filing With the NPC and Elimination of SWA Role Consistent with the proposed rule, the Final Rule eliminates the role of the SWAs in accepting and reviewing H-2B labor certification applications. Once the Final Rule is effective, employers will file H- 2B applications directly with the NPC, consistent with the transition provisions of the regulation and with the Department's specialization of its two processing centers effective June 1, 2008. Employers with dates of need prior to October 1, 2009, will submit prevailing wage determination requests SWA, which will process them under the PWD procedures established under Sec. 655.10 of this Final Rule. In the long term, under these regulations, each employer will continue to be required to place a job order with the appropriate SWA as part of pre- filing recruitment, and SWAs will continue to place H-2B-associated job orders in their respective Employment Service systems. This proposal received comments from a broad range of constituencies, including employers, employer associations, advocacy organizations, labor unions, State agencies, and elected officials. Most of the commenters opposed this provision. Many commenters remarked that the elimination of the SWA portion of the process only shifted activities previously performed by the SWAs to the NPCs without actually improving the process. These commenters believed that eliminating the duplicate SWA review and increasing the Federal role in reviewing applications would result in increased delays, particularly when the Department has acknowledged that its funding has not kept pace with increased workloads in the H-2B program. Others also mentioned possible processing delays and were especially concerned that those industries with later dates of need could be locked out of the program. Other commenters were concerned the new process would result in the loss of local labor market and prevailing practice expertise in the review process, including checks and balances now in the system, and would increase the potential for fraud. These commenters asserted that the knowledge and expertise of local staff in reviewing and processing applications was essential to the integrity of the H-2B certification process. Some commenters also criticized the NPCs for what they view as ``ignoring their own regulations'' and ``misconstruing the certification process.'' Several commenters also believed elimination of the duplicate SWA review would result in decreased assistance for employers. One SWA stated that employers would be left without a source for guidance which would drive up the demand for agents, thereby increasing the costs to employers. An employer expressed the opinion that the new process would replace longstanding relationships with SWA employees and reliable determinations with unpredictable determinations and potentially overly stringent penalties. The Department remains committed to modernizing the application process and continues to believe that the submission of applications directly to the NPC is the most effective way of accomplishing this goal. Processing of H-2B applications by NPC staff will allow for greater consistency for employers, regardless of their industry or location, in both the time required and quality of the application review. The Department believes that by specializing in H-2B application processing, NPC staff will have greater program expertise than SWA staff who are often required to implement a number of diverse programs during the course of their workday, and will generate additional efficiencies in application processing. Therefore, this federalized review of applications will lead to more efficient processing, greater consistency of review, and more effective administration. It will also enable the Department to better identify and implement program improvements. Eliminating the SWAs' participation in the application review process will provide more efficient review of applications, as well as greater consistency of review. The Department disagrees that NPC staff have insufficient knowledge to undertake this role given that they already perform it. In fact, NPC reviewers who currently review H-2B applications have, in some cases, more experience with such applications than many SWA staff. Moreover, the SWAs have not been removed from the process--they will continue their traditional role in the recruitment process and working with employers on the specifics of the job order. SWAs will be responsible for clearing and posting job orders, both intrastate and interstate, thus reducing the risk for employers to make mistakes with respect to job descriptions, [[Page 78035]] minimum requirements, and other application particulars. SWAs will, as part of these duties, review the job offer, its terms and conditions, any special requirements, and the justifications as part of the SWAs' duties to clear and post such orders. I. Section 655.20--Form Submission and Electronic Filing The Final Rule requires employers to submit applications on paper, through an information collection (form) modified significantly from the current form to reflect an attestation-based filing process. As stated in the NPRM, the Department will consider in the future an electronic submission system similar to that employed in other programs administered by OFLC, should resources be made available. The Department received a number of comments from SWAs, a specialty bar association, a large trade association, a small-business coalition, and several industry groups largely supportive of the potential conversion to electronic applications. One commenter encouraged prompt migration to electronic filing, as the commenter felt this would make program data easier to gather, more accurate, and more shareable across federal agencies. A few comments expressed concern that electronic filing would be mandatory for everyone, and recommended that, in the event the Department converted to electronic submission, it maintain paper filing as an option. Two commenters were concerned making electronic submission mandatory could cause undue hardship to employers that do not have Internet access, are not computer literate, or do not have access to a computer. One bar association recommended the Department not require electronic filing until the system was error- free, that any electronic filing system not include system-generated denials as the PERM system does, and that any defects receive an RFI. The Department takes seriously these recommendations. We will determine appropriate timing for the development and implementation of an electronic system based on program need and available resources. We have learned--as have programs users--from our experience with the electronic filing process used in the permanent program, and will apply those lessons to any system we institute for the H-2B program. J. Section 655.21--Supporting Evidence of Temporary Need As proposed, this Final Rule provides the employer a variety of options for documenting the basis of its temporary need, to be retained by the employer and submitted in the event of a Request for Further Information (RFI), a post-adjudication audit, a WHD investigation, or another agency investigation. As explained in the NPRM, for most employers participating in the H-2B program, demonstrating a seasonal or peakload temporary need can best be evidenced by summarized monthly payroll records for a minimum of one previous calendar year that identify, for each month and separately for full-time permanent and temporary employment in the requested occupation, the total number of workers employed, the total hours worked. Such records, however, are not the only means by which employers can choose to document their temporary need. The proposed regulation accordingly leaves it to the employer to retain other types of documentation, including but not limited to work contracts, invoices, client letters of intent, and other evidence that demonstrates that the job opportunity that is the subject of the application exists and is temporary in nature. Contracts and other documents used to demonstrate temporary need would be required to plainly show the finite nature of that need by clearly indicating an end date to the activity requested. The Department's new H-2B temporary labor certification application form is designed to require both a short narrative on the nature of the temporary need and responses to questions to determine the time of need and the basis for the need. The narrative will enable the employer to demonstrate in its own words the scope and basis of the need in a way that will enable the Department to confirm the need meets the regulatory standard, with additional questions on the form providing context and clarification. If further clarification is required, the RFI process will be employed. The form also contains an attestation to be signed under penalty of perjury to confirm the employer's temporary H-2B need. As explained in the NPRM and consistent with current program practice, employers should be wary of using documents demonstrating a ``season'' in general terms (hotel occupancy rates, weather charts, newspaper accounts); in the Department's experience, such generalized statements fail to link a season to a specific position sought to be filled by the employer, which is required under the program. The Department also recognizes that conventional evidence such as payroll information may not be sufficient to demonstrate a one-time or intermittent need, or seasonal or peakload need in cases in which the employer's need has changed significantly from the previous year. In such cases, the employer should retain other kinds of documentation with the application that demonstrates the temporary need. K. Section 655.22--Obligations of H-2B Employers and Attestation-Based Application The Department proposed, and this Final Rule institutes, the shift to an attestation-based filing system. The new application form contains a series of attestations to confirm employers' adherence to its obligations under the H-2B program. The information and attestations on the form will provide the necessary assurances for the Department to initially verify program compliance. As described in the NPRM, the Department anticipates the shift to an attestation-based application will have a number of benefits, including a reduction in processing times while maintaining program integrity. The Department received numerous comments, many of them negative, on the move to an attestation-based application. Some commenters believed that an attestation-based application would reduce the role of the SWA and thus eliminate local expertise; decrease employer compliance; increase erroneous approvals; and increase the likelihood that the Department will simply ``rubber stamp'' the certifications and weaken U.S. worker protections. The Department disagrees with these assumptions and conclusions. The Department believes that an attestation-based application, backed by audits, is within the Secretary's statutory discretion to implement and is an effective means to ensure that all statutory and regulatory criteria are met and all program requirements are satisfied. Similar approaches have been used successfully by the Department in other contexts, such as in the current permanent labor certification process. One commenter suggested the Department require that the employer always be the applicant, even if an agent is used, because neither an agent nor the employer would be able to attest to all of the required obligations. This commenter also feared that an employer could shield itself from responsibility by using an agent for such prohibited acts as requiring recruitment fees to be paid by the foreign worker. The Department disagrees with this commenter. In the H-2B program, the agent simply represents the employer in the labor certification process. The employer is ultimately responsible for its obligations under the program and it [[Page 78036]] is the employer who signs the application form, and attests to the veracity of the information provided and that it will meet all of its obligations. One commenter appeared to confuse the H-2B and H-2A programs. This commenter referred to the 50 percent rule, an H-2A program feature, and requested that the Department include a grace period for a foreign worker to find another employer if dismissed under the 50 percent rule. In the current H-2A temporary agricultural program, employers must hire a qualified U.S. worker who applies for a position certified under a temporary labor certification, if that worker applies during the first half of the certified period of employment. The H-2B program has no such provision and the Department declines to impose one, especially as this was not proposed in the NPRM. The Department received a number of comments on the specific obligations of H-2B employers outlined in the proposed rule. One commenter pointed out a semantic error in proposed Sec. 655.22(a), which stated the employer must attest that ``no U.S. workers'' are available. The commenter correctly pointed out that an employer cannot possibly have such broad knowledge and that the statute does not require such knowledge. The Department has deleted that provision. There were other comments about word choice and semantics and, where appropriate, the Department has changed the wording to make the attestations easier to understand. The Department has also added language to the provision, in Sec. 655.22(a), that requires that H-2B job opportunities offer terms and working conditions that are ``normal to U.S. workers similarly employed'' to clarify that normal is synonymous with not unusual. This is within the range of generally accepted meanings of the term. See, e.g., Black's Law Dictionary 1086 (8th ed. 2004) (``The term describes not just forces that are constantly and habitually operating but also forces that operate periodically or with some degree of frequency. In this sense, its common antonyms are unusual and extraordinary.''); Webster's Unabridged Dictionary 1321 (2d ed. 2001) (supplying ``not abnormal'' as one of several definitions). Thus, ``normal'' does not require that a majority of employers in the area use the same terms or working conditions. If there are no other workers in the area of intended employment who are performing the same work activity, the Department will look to workers outside the area of intended employment to assess the normality of an employer's proposed productivity standard. Unless otherwise noted, no substantive change is intended. Below, we respond to comments on specific obligations and describe substantive changes made to those subsections. In cases where the Final Rule deletes or adds provisions, the numbering has changed accordingly from that published in the NPRM. 1. Section 655.22(a)--U.S. Worker Unavailability The Department proposed that employers seeking to hire H-2B workers attest there were no U.S. workers in the area of intended employment capable of performing the temporary services or labor in the job opportunity. Comments on this provision reflected strong concern that employers cannot attest to the actual unavailability of U.S. workers, but simply that the employer has tested the labor market appropriately and in good faith to demonstrate that capable U.S. workers did not respond to its recruitment efforts or ultimately were not available (either due to lawful rejection by the employer, failure on the worker's part to follow through or remain on the job, etc.) to perform the labor or services. The Department agrees and has deleted this provision from the Final Rule. 2. Section 655.22(f)--Worker Abandonment and Employer Notification to the Department and DHS The Department's NPRM would have required employers to notify the Department and DHS within 48 hours if an H-2B worker separated from employment prior to the end date of employment in the labor certification. This notification requirement would have also applied if the H-2B worker absconded from or abandoned employment prior to the end date of employment. This requirement was included to ensure that if the basis for the worker's status ended before the end date on the application, both DHS and the Department could take appropriate action to monitor the program. The Department received a number of comments in opposition to this requirement, primarily from employers and employer and trade associations. Several employer associations shared the concern that, in their view, the requirement represented a new and unfair liability for employers, opening them up to potential legal action from H-2B employees if the employee left to pursue other legal employment before the end of the contract period. One association found it problematic, given the perception that this worker population is more transient than the workforce at large. It also was concerned about the administrative burden on employers to comply with the requirement. It asserted that employers were unlikely to know the real circumstances of the worker's departure, if it was a legal extension or change of status or something else. Consistent with a number of other comments either seeking or recommending clarification to the notice requirement, this association stated that such status determinations are complex legal issues and employers should not be required to make them. It also believed that the reporting requirement was unlikely to accomplish anything without imposing additional significant burdens on employers and that it was unlikely that DHS would pursue individuals who are the subject of these reports. A small business association agreed about the unreasonableness of the potential burden on employers and was concerned that the requirement would ask small businesses to become unpaid Immigration Service agents responsible for enforcing immigration laws. A trade association found the required 48 hours for notification to be an extremely limited period of time for notification, and a burden on employers. It recommended that, if the requirement were continued, it should be extended to 30 days. Further, this trade association recommended that DHS create a simple reporting method to allow employers to provide the information directly through the Internet or by telephone. The requirement was described as too vague and not providing enough specifics as to when the employer would be required to do such notification. An individual employer found insufficient safeguards in the proposal, as there was no indication of actions that the bureaucracy at the Department or DHS would take based on the information. The employer wanted the two departments to be more specific as to how the information was to be used. An employer agent believed the requirement was inappropriate in these regulations, as it was tangential to the Department's role regarding the availability of U.S. workers or preventing adverse affect on U.S. workers, and believed that it created additional confusion and potential liability for employers. Similarly, an employer association thought the requirement inappropriate and did not clearly outline the process by which employers would make such notifications. Additionally, the employer association asked for [[Page 78037]] additional guidance as to what information would be required for employers to document separation or job abandonment and was concerned that violations of this provision could lead to debarment from future participation in the program. The Department reviewed the comments received on this specific reporting requirement and the concerns raised by the employers and associations on its implementation. The Department acknowledges that many of these concerns have merit, and has therefore sought to provide clarifications and limitations in the Final Rule to address these concerns. The Department did not, however, discern sufficient justification from these comments to eliminate the requirement in its entirety. The notification is necessary in all circumstances because the early separation of a worker impacts not only the rights and responsibilities of the employer and worker but also implicates DOL's and DHS's enforcement responsibilities. Although any abscondment is a loss to the employer, the Government requires notification to be able to better track workers who are in the country on a temporary basis with limited work authorization. The Department acknowledges the need for clarification in the provision to ensure that the 48-hour requirement begins to run only when the abandonment is actually discovered. The Department has therefore added language to the provision clarifying that the employer must notify DOL no later than 2 work days after such abandonment or termination is discovered by the employer. The Department has added further clarification to ensure that employers must meet the identical standards for notification to DOL as to DHS, so that an abscondment occurs when the worker has not reported for work for a period of 5 consecutive work days without the consent of the employer to that non- reporting. This is intended to clarify for the employer that the same standard of reporting applies across both agencies, making it easier on the employer to make the report. There is no requirement that the notification be made by certified mail, however. A file copy of a letter sent by normal U.S. mail, with notation of the posting date, will suffice. However, in addition, the Department revised the notification requirement to reflect a time period of no later than 2 work days after the employer discovers the employee has absconded, which, consistent with DHS, has been defined as 5 consecutive work days of not reporting for work. To make the standard further consistent across agencies, for purposes of this provision the Department will defer to DHS on the definition of the term ``working day.'' 3. Section 655.22(g)--Deductions and Prohibition on Transfer of Costs The NPRM prohibited deductions by the employer or any third party, including a recruiter, for any expenses including recruitment fees and any other deductions not expressly permitted by law. Both worker advocacy organizations and an employer of H-2B workers commented that the provision was confusing and ambiguous. Worker advocates objected that it was unclear whether employees could be required to pay recruiting costs directly, while an employer objected to the payment of recruiting costs that were not clearly defined in the proposal. We agree that the rule as proposed was confusing. The confusion resulted in part from the fact that employer cost shifting is addressed elsewhere in the regulations, in Sec. 655.22(j). Further, cost shifting by third parties presents an identical problem under the H-2A program but was dealt with in a different manner in the NPRM. Accordingly we are revising the language concerning cost shifting by third parties to mirror Sec. 655.105(p) of the H-2A Final Rule to read as follows: ``The employer has contractually forbidden any foreign labor contractor or recruiter whom the employer engages in international recruitment of H-2A workers to seek or receive payments from prospective employees, except as provided for in DHS regulations at 8 CFR 214.2(h)(5)(xi)(A).'' The Final Rule makes clear that recruiters may not pass on expenses to H-2B workers. Examples of exploitation of foreign workers, who in some instances have been required to give recruiters thousands of dollars to secure a job, have been widely reported. The Department is concerned that workers who heavily indebt themselves to secure a place in the H-2B program may be subject to exploitation in ways that would adversely affect the wages and working conditions of U.S. workers by creating conditions akin to indentured servitude, driving down wages and working conditions for all workers, foreign and domestic. We believe that requiring employers to incur the costs of recruitment is reasonable, even when taking place in a foreign country. Employers may easily band together for purposes of recruitment to defray costs. The fact that a recruiter is essential to the securing of such worker does not dissuade the Department from requiring the employer to bear the expense; rather, it underscores the classification of that payment as a cost allocable to the employer. The Department recognizes that its power to enforce regulations across international borders is constrained. However, it can and should do as much as possible in the U.S. to protect workers from unscrupulous recruiters. Consequently, the Department is requiring that the employer make, as a condition of applying for labor certification, the commitment that the employer is contractually forbidding any foreign labor contractor or recruiter whom the employer engages in international recruitment of H-2B workers to seek or receive payments from prospective employees. The Department has also revised this section in the Final Rule to omit restrictions on deductions that are already covered in Sec. 655.22(j), and we are incorporating the following language which is identical to the language in 20 CFR 655.104(p) of the H-2A Final Rule: ``The employer must make all deductions from the worker's paychecks that are required by law. The job offer must specify all deductions not required by law that the employer will make from the worker's paycheck. All deductions must be reasonable. However, an employer subject to the FLSA may not make deductions that would violate the FLSA.'' 4. Section 655.22(h) [(g) in Final Rule]--Basis for Offered Wage This provision requires that the offered wage not be based on commission, bonuses, or other incentives unless the employer guarantees that the wage paid will equal or exceed the prevailing wage. The second sentence of the proposed provision further stated that ``the offered wage shall be held to exclude any deductions for reimbursement of the employer or any third party by the employee for expenses in connection with obtaining or maintaining the H-2B employment including but not limited to international recruitment, legal fees not otherwise prohibited by this section, visa fees, items such as tools of the trade, and other items not expressly permitted by law.'' This sentence received several comments. A worker's rights advocacy group claimed the Department will not achieve its objective of protecting foreign workers from paying fees that should be paid by the employer. This commenter provided an example of a practice by one employer who required workers to pay for tests to determine their welding and fitting skills in preparation for employment in the United States. This [[Page 78038]] commenter further recommended that this section should clarify that costs paid directly by workers are de facto deductions for the purpose of calculating compliance with the offered wage, even if employers do not directly deduct them and also that DOL should clarify its position on which costs are considered to benefit employers and thus require reimbursement and include specific examples of such costs. This commenter also believed that similar language in the FLSA was confusing. The Department appreciates the detailed analysis provided by this commenter, but we believe the statutory requirements, which are based on decades of administration of the Federal wage and hour laws, are clear and that it is not necessary to make the recommended changes. 5. Section 655.22(i) [(h) in Final Rule]--Position Is Temporary and Full-Time The Department proposed that an employer seeking to employ H-2B workers be required to attest that the job opportunity is for a full- time, temporary position. One commenter suggested the proposed regulation could harm U.S. workers by guaranteeing full-time work for the period to foreign workers, while there is no such guarantee provided to U.S. workers in any seasonal position. The commenter also stated that while employers can state their intention to hire temporary workers full-time, if the weather does not cooperate, the employer may have no choice but to reduce hours in a particular week and that under this provision, the employer would not be able to do this, causing significant harm to the business and the U.S. workers whose hours would need to be reduced even further in order to ensure that foreign workers were paid a full-time wage. The commenter recommended a revised attestation stating: ``The job opportunity is a bona fide, temporary position and hours worked will be comparable to the full time hours worked by associates in the same position at the employment site.'' As stated in the preamble to the NPRM, the H-2B program has always required that the positions being offered be temporary and full-time in nature, and the Department recognizes that some industries, occupations and States have differing definitions of what constitutes full-time employment. For example, certain landscaping positions are often classified as full-time for a 35-hour work week. To provide additional clarity, the Department, in Sec. 655.4 has provided a definition of full-time employment that reflects our experience in the administration of this program. We will continue to make determinations of whether work is full-time for foreign labor certification purposes based on the facts, program experience, customary practice in the industry, and any investigation of the attestation. The Department has therefore decided to retain the proposed language. 6. Section 655.22(k) [(i) in Final Rule]--Layoff Provisions Under the NPRM, an employer seeking to employ H-2B workers would have been required to attest that it is not displacing any similarly employed U.S. worker(s) in the occupation in the area of intended employment within the period beginning 120 days before the date of need and throughout the entire employment of the H-2B worker. The Department received a number of comments from various groups on this provision. A number of commenters favored the requirement, noting that it assisted efforts to ensure that employers cannot lay off U.S. workers after seeking to hire H-2B workers to perform the same services. Other commenters, however, had concerns regarding the implementation of the prohibition and the potential liability. Several commenters were concerned that the requirement to contact former employees who had been laid off would be onerous, given the difficulties in reaching what is purportedly a transient population, making such contact unduly burdensome. The Department finds this argument unpersuasive. The commenter did not support the summary statements that all temporary or seasonal help is transient and rootless in the communities in which the work is performed. Even assuming that such workers do not have lasting ties to the employer, employers generally maintain continuing contact with former employees for many purposes--including, but not limited to, the provision of payroll tax information the following year and the transfer or disposition of benefits (including unemployment benefits). Moreover, by limiting the requirement for such contact to the 120 days or less before the employer's date of need for the H-2B workers, the employer's last contact information would likely be current, making such contact, generally speaking, relatively simple. One commenter asserted that the layoff provision conflicts with the definition of seasonality, noting that by definition a seasonal employee will always be laid off within the period set forth in an annual cycle. An employer association also objected to the provision on the ground that requiring the consideration of U.S. workers would force employers who laid off U.S. workers at the end of one season to hire them again at the commencement of the next season because the timing would put the next season within the 120-day window. In response to these comments, the Department has limited the applicability of the layoff provision to 120 days on either side of the date of need. This broad period of time, covering two thirds of the year, will protect U.S. workers near the time of recruiting for and hiring H-2B workers, which is when U.S. workers are most vulnerable, but avoids the complications of overlapping seasons noted by some commenters. The Department notes that much of the concern of those commenters regarding the re-hiring of U.S. workers stems from a belief that such workers will not show up or be interested in being re-hired. But, by limiting the applicability of the provision to within 120 days of the date of need (as well as the actual occupation and the area of intended employment of the sought-after H-2B certification), this provision affords laid off workers a reasonable opportunity to apply for vacancies for which they qualify, striking an appropriate balance between worker protection and employer needs. Some commenters noted the need for a strengthening of the layoff provision, calling for additional safeguards against massive layoffs of U.S. workers by strengthening requirements for how employers will demonstrate they have made efforts to contact former employees. The Department declines to do so at this time. Employers will be allowed to document their contact of former employees using any objective means at their disposal in a manner guaranteed to ensure a good faith contact effort has been made. The Department does not have evidence at this time that employers will engage in fraudulent behavior with respect to this requirement. The Department will monitor this attestation, and all other employer attestations, through post-certification audits and will note the need for program modifications through that process. 7. Section 655.22(l) [(j) in Final Rule]--Prohibition Against Payments As in the proposal, the Final Rule requires that an employer attest that it has not and will not shift the costs of preparing or filing the H-2B temporary labor certification application to the temporary worker, including the costs of domestic recruitment or attorneys' and agent fees. The domestic recruitment, legal, and other costs associated with [[Page 78039]] obtaining the labor certification are business expenses necessary for or, in the case of legal fees, desired by, the employer to complete the labor certification application and labor market test. The employer's responsibility to pay these costs exists separate and apart from any benefit that may accrue to the foreign worker. Prohibiting the employer from passing these costs on to foreign workers allows the Department to protect the integrity of the process and protect the wages of the foreign worker from deterioration by unwarranted deduction. The Department will continue to permit employers, consistent with the Fair Labor Standards Act (FLSA), to make deductions from a worker's pay for the reasonable cost of furnishing housing and transportation, as well as worker expenses such as passport and visa fees (see fuller discussion below concerning transportation costs under the FLSA). This section, pertaining to the receipt of payments by the employer from the employee or a third party, received many comments. Some of the commenters opposed the provision in its entirety, arguing it will make the program prohibitively expensive for employers. Other commenters were concerned the requirement would eliminate the current practice of having the employee pay for part of the recruiting and visa costs as an incentive for the workers not to leave the employer. Others supported this provision in its entirety, while still others agreed with the intent of the provision but found the language ambiguous. One specialty bar association not only supported the prohibition on cost-shifting for recruitment, but asked the Department to strengthen the prohibition language. However, this commenter was adamantly opposed to the prohibition against foreign workers paying the attorney's fees. The Department disagrees with the comments opposing this provision. We believe that these expenses are the costs of doing business and should be borne by the employer. The Department took all comments into consideration and modified the provision to clarify and strengthen the prohibition. The Final Rule applies the prohibition to attorneys and agents, not simply to employers. As rewritten, the provision eliminates reference to payments from ``any other party;'' it applies only to payments from the employees. This section in the NPRM also would have prohibited the employer from receiving payments ``of any kind for any activity related to the labor certification'' process. The Department received a comment arguing that the phrase ``received payment * * * as an incentive or inducement to file'' is ambiguous. The Department took this comment into consideration and removed reference to incentive or inducement. In addition, and based upon the comments received, the Department has revised the provision on cost-shifting for greater clarity. As mentioned above, the Department has eliminated the qualifying language regarding the incentive and inducement to filing, again to simplify for all employers engaging in recruitment activities what is prohibited. By simplifying the provision to prohibit employers who submit applications from seeking or receiving payment for any activity related to the recruitment of H-2B workers, the Department hopes to achieve consistent and enforceable compliance. With regard to the application of the FLSA to H-2B workers' inbound subsistence and transportation costs, we note that a number of district courts have issued decisions on this question. See De Leon-Granados v. Eller & Sons Trees Inc., 2008 WL 4531813 (N.D. Ga., Oct. 7, 2008); Rosales v. Hispanic Employee Leasing Program, 2008 WL 363479 (W.D. Mich. Feb. 11, 2008); Rivera v. Brickman Group, 2008 WL 81570 (E.D. Pa. Jan. 7, 2008); Castellanos-Contreras v. Decatur Hotels, LLC, 488 F. Supp. 2d 565 (E.D. La. 2007); Recinos-Recinos v. Express Forestry Inc., 2006 WL 197030 (E.D. La. Jan. 24, 2006). These district courts have referenced the appellate court's decision in Arriaga v. Florida Pacific Farms, L.L.C., 305 F.3d 1228 (11th Cir. 2002), which held that growers violated the minimum wage provisions of the FLSA by failing to reimburse farmworkers during their first workweek for travel expenses (and visa and immigration fees) paid by the workers employed by the growers under the H-2A program. Under the FLSA, pre-employment expenses incurred by workers that are properly business expenses of the employer and primarily for the benefit of the employer are considered ``kick- backs'' of wages to the employer and are treated as deductions from the employees' wages during the first workweek. 29 CFR 531.35. Such deductions must be reimbursed by the employer during the first workweek to the extent that they effectively result in workers' weekly wages being below the minimum wage. 29 CFR 531.36. Although the employer in the Arriaga case did not itself make direct deductions from the workers' wages, the Court held that the costs incurred by the workers amounted to ``de facto deductions'' that the workers absorbed, thereby driving the workers' wages below the statutory minimum. The Eleventh Circuit reasoned that the transportation and visa costs incurred by the workers were primarily for the benefit of the employer and necessary and incidental to the employment of the workers and stated that ``[t]ransportation charges are an inevitable and inescapable consequence of having H-2A foreign workers employed in the United States; these are costs which arise out of the employment of H-2A workers.'' Finally, the court held that the growers' practices violated the FLSA minimum wage provisions, even though the H-2A regulations provide that the transportation costs need not be repaid until the workers complete 50 percent of the contract work period. The Eleventh Circuit noted that the H-2A regulations require employers to comply with applicable federal laws, and in accepting the contract orders in this case, the ETA Regional Administrator informed the growers in writing that their obligation to pay the full FLSA minimum wage is not overridden by the H-2A regulations. The Department believes that the better reading of the FLSA and the Department's own regulations is that relocation costs under the H-2A program are not primarily for the benefit of the employer, that relocation costs paid for by H-2A workers do not constitute kickbacks within the meaning of 29 CFR 531.35, and that reimbursement of workers for such costs in the first paycheck is not required by the FLSA. The FLSA requires employers to pay their employees set minimum hourly wages. 29 U.S.C. 206(a). The FLSA allows employers to count as wages (and thus count toward the satisfaction of the minimum wage obligation) the reasonable cost of ``furnishing [an] employee with board, lodging, or other facilities, if such board, lodging, or other facilities are customarily furnished by such employer to his employees.'' 29 U.S.C. 203(m). The FLSA regulations provide that ``[t]he cost of furnishing `facilities' found by the Administrator to be primarily for the benefit or convenience of the employer will not be recognized as reasonable [costs within the meaning of the statute] and may not therefore be included in computing wages.'' 29 CFR 531.3(d)(1). The FLSA regulations further provide examples of various items that the Department has deemed generally to be qualifying facilities within the meaning of 29 U.S.C. 203(m) (see also 29 CFR 531.32(a)), as well as examples of [[Page 78040]] various items that the Department has deemed generally not to be qualifying facilities (see 29 CFR 531.3(d)(2), 29 CFR 531.32(c)). Separate from the question whether items or expenses furnished or paid for by the employer can be counted as wages paid to the employee, the FLSA regulations contain provisions governing the treatment under the FLSA of costs and expenses incurred by employees. The regulations specify that wages, whether paid in cash or in facilities, cannot be considered to have been paid by the employer and received by the employee unless they are paid finally and unconditionally, or ``free and clear.'' 29 CFR 531.35. Thus, ``[t]he wage requirements of the Act will not be met where the employee `kicks-back' directly or indirectly to the employer or to another person for the employer's benefit the whole or part of the wage delivered to the employee. This is true whether the `kick-back' is made in cash or in other than cash. For example, if the employer requires that the employee must provide tools of the trade that will be used in or are specifically required for the performance of the employer's particular work, there would be a violation of the Act in any workweek when the cost of such tools purchased by the employee cuts into the minimum or overtime wages required to be paid him under the Act.'' Id. The regulations treat employer deductions from an employee's wages for costs incurred by the employer as though the deductions were a payment from the employee to the employer for the items furnished or services rendered by the employer, and applies the standards set forth in the ``kick-back'' provisions at 29 CFR 531.35 to those payments. Thus, ``[d]eductions for articles such as tools, miners' lamps, dynamite caps, and other items which do not constitute `board, lodging, or other facilities' '' are illegal ``to the extent that they reduce the wages of the employee in any such workweek below the minimum required by the Act.'' 29 CFR 531.36(b). In sum, where an employer has paid for a particular item or service, under certain circumstances it may, pursuant to 29 U.S.C. 203(m), count that payment as wages paid to the employee. On the other hand, when an employee has paid for such an item or service, an analysis under 29 CFR 531.35 is required to determine whether the payment constitutes a ``kick-back'' of wages to the employer that should be treated as a deduction from the employee's wages. The Arriaga court seems to have assumed that all expenses necessarily fall into one of these two categories--that either they qualify as wages under 29 U.S.C. 203(m) or they constitute a ``kick- back'' under 29 CFR 531.35. See Arriaga, 305 F.3d at 1241-42 (stating that if a payment ``may not be counted as wages'' under 29 U.S.C. 203(m), then ``the employer therefore would be required to reimburse the expense up to the point the FLSA minimum wage provisions have been met'' under 29 CFR 531.35 and 29 CFR 531.36). That is incorrect. For example, if an employer were to give an employee a valuable item that was not ``customarily furnished'' to his or her employees, the employer would not be able to count the value of that item as wages under 29 U.S.C. 203(m) unless the employer ``customarily furnished'' the item to his or her employees. Nevertheless, since the employee paid nothing for that item, it clearly would not constitute a ``kick-back'' of wages to the employer that would have to be deducted from the employee's wages for purposes of determining whether the employer met its minimum wage obligations under 29 U.S.C. 206(a). Similarly, if a grocery employee bought a loaf of bread off the shelf at the grocery store where he or she worked as part of an arms-length commercial transaction, the payment made by the employee to the employer would not constitute a ``kick-back'' of wages to the employer, nor would the loaf of bread sold by the employer to the employee be able to be counted toward the employee's wages under 29 U.S.C. 203(m). Both parties would presumably benefit equally from such a transaction--it would neither be primarily for the benefit of the employer, nor would it be primarily for the benefit of the employee. Expenses paid by an employer that are primarily for the employer's benefit cannot be counted toward wages under 29 U.S.C. 203(m). See 29 CFR 531.3(d). Similarly, expenses paid by an employee cannot constitute a ``kick-back'' unless they are for the employer's benefit. See 29 CFR 531.35. An analysis conducted under 29 U.S.C. 203(m) determining that a particular kind of expense is primarily for the benefit of the employer will thus generally carry through to establish that the same kind of expense is primarily for the benefit of the employer under 29 CFR 531.35. Each expense, however, must be analyzed separately in its proper context. The question at issue here is whether payments made by H-2B employees for the cost of relocating to the United States, whether paid to a third party transportation provider or paid directly to the employer, constitutes a ``kick-back'' of wages within the meaning of 29 CFR 531.35. If the payment does constitute a ``kick-back,'' then the payment must, as the Arriaga court decided, be counted as a deduction from the employee's first week of wages under the FLSA for purposes of determining whether the employer's minimum wage obligations have been met. The Department does not believe that an H-2B worker's payment of his or her own relocation expenses constitutes a ``kick-back'' to the H-2B employer within the meaning of 29 CFR 531.35. It is a necessary condition to be considered a ``kick-back'' that an employee-paid expense be primarily for the benefit of the employer. The Department need not decide for present purposes whether an employee-paid expense's status as primarily for the benefit of the employer is a sufficient condition for it to qualify as a ``kick-back,'' because the Department does not consider an H-2B employee's payment of his or her own relocation expenses to be primarily for the benefit of the H-2B employer. Both as a general matter and in the specific context of guest worker programs, employee relocation costs are not typically considered to be ``primarily for the benefit'' of the employer. Rather, in the Department's view, an H-2B worker's inbound transportation costs either primarily benefit the employee, or equally benefit the employee and the employer. In either case, the FLSA and its implementing regulations do not require H-2B employers to pay the relocation costs of H-2B employees. Arriaga and the district courts that followed its reasoning in the H-2B context misconstrued the Department's regulations and are wrongly decided. As an initial matter, any weighing of the relative balance of benefits derived by H-2B employers and employees from inbound transportation costs must take into account the fact that H-2B workers derive very substantial benefits from their relocation. Foreign workers seeking employment under the H-2B nonimmigrant visa program often travel great distances, far from family, friends, and home, to accept the offer of employment. Their travel not only allows them to earn money--typically far more money than they could have in their home country over a similar period of time--but also allows them to live and engage in non-work activities in the U.S. These twin benefits are so valuable to foreign workers that these workers have proven willing in many instances to pay recruiters thousands of dollars (a practice that the Department is now taking measures to curtail) just to gain access to the job opportunities, at times [[Page 78041]] going to great lengths to raise the necessary funds. The fact that H-2B workers travel such great distances and make such substantial sacrifices to obtain work in the United States indicates that the travel greatly benefits those employees. Most significantly, however, the Department's regulations explicitly state that ``transportation furnished employees between their homes and work where the travel time does not constitute hours worked compensable under the Act and the transportation is not an incident of and necessary to the employment'' are qualifying ``facilities'' under 29 U.S.C. 203(m). 29 CFR 531.32(a). As qualifying facilities, such expenses cannot by definition be primarily for the benefit of the employer. 29 CFR 531.32(c). The wording of the regulation does not distinguish between commuting and relocation costs, and in the context of the H-2B program, inbound relocation costs fit well within the definition as they are between the employee's home country and the place of work. The Arriaga court ruled that H-2A relocation expenses are primarily for the benefit of the employer in part because it believed that under 29 CFR 531.32, ``a consistent line'' is drawn ``between those costs arising from the employment itself and those that would arise in the ordinary course of life.'' 305 F.3d at 1242. The court held that relocation costs do not arise in the ordinary course of life, but rather arise from employment. Id. Commuting costs and relocation costs cannot be distinguished on those grounds, however. Both kinds of expenses are incurred by employees for the purpose of getting to a work site to work. Moreover, an employee would not rationally incur either kind of expense but for the existence of the job. Both the employer and the employee derive benefits from the employment relationship, and, absent unusual circumstances, an employee's relocation costs to start a new job cannot be said to be primarily for the benefit of the employer. That is not to say that travel and relocation costs are never properly considered to be primarily for the benefit of an employer. The regulations state that travel costs will be considered to be primarily for the benefit of the employer when they are ``an incident of and necessary to the employment.'' 29 CFR 531.32(c). This might include, for example, a business trip, or an employer-imposed requirement that an employee relocate in order to retain his or her job. Relocation costs to start a new job will rarely satisfy this test, however. In a literal sense it may be necessary to travel to a new job opportunity in order to perform the work, but that fact, without more, does not render the travel an ``incident'' of the employment. Inbound relocation costs are not, absent unusual circumstances, any more an ``incident of * * * employment'' than is commuting to a job each day. Indeed, inbound relocation costs are quite similar to commuting costs in many respects, which generally are not considered compensable. Cf. DOL Opinion Letter WH-538 (Aug. 5, 1994) (stating that travel time from home to work is ``ordinary home-to-work travel and is not compensable'' under the FLSA); Vega ex rel. Trevino v. Gasper, 36 F.3d 417 (5th Cir. 1994) (finding travel to and from work and home not compensable activity under Portal-to-Portal Act). In fact, there is no reason to believe that the drafters of 29 U.S.C. 203(m) and 206(a) ever intended for those provisions to indirectly require employers to pay for their employees' relocation and commuting expenses. To qualify as an ``incident of * * * employment'' under the Department's regulations, transportation costs must have a more direct and palpable connection to the job in question than merely serving to bring the employee to the work site. Taking the Arriaga court's logic to its ultimate conclusion would potentially subject employers across the U.S. to a requirement to pay relocation expenses for all newly hired employees--or at least to pay relocation expenses for all newly hired foreign employees, since international relocation is perhaps less ``ordinary'' than intranational relocation. That simply cannot be correct. The language of 29 U.S.C. 203(m) and 206(a) and their implementing regulations provide a very thin reed on which to hang such a seismic shift in hiring practices, particularly so many years after those provisions have gone into effect. Nor does the fact that H-2B workers are temporary guest workers change the equation. Even assuming that H-2B workers derive somewhat less benefit from their jobs because they are only temporary, that fact alone would not render the worker's relocation expenses an ``incident'' of the temporary job. If it did, ski resorts, camp grounds, shore businesses, and hotels would all be legally required to pay relocation costs for their employees at the beginning of each season--again, a result that is very difficult to square with the language and purpose of 29 U.S.C. 203(m) and 29 CFR 531.35. A stronger argument could be made, perhaps, that employers derive a greater-than-usual benefit from relocation costs when they hire foreign guest workers such as H-2B workers, because employers generally are not allowed to hire guest workers unless they have first attempted but failed to recruit U.S. workers. Thus, such employers have specifically stated a need to hire non-local workers. Given the substantially greater benefit that foreign guest workers generally derive from work opportunities in the United States than they do from employment opportunities in their home countries, however, the Department believes that this at most brings the balance of benefits between the employer and the worker into equipoise. Moreover, the employer's need for non- local workers does nothing to transform the relocation costs into an ``incident'' of the job opportunity in a way that would render the employee's payment of the relocation expenses a ``kick-back'' to the employer. If it did, courts would soon be called upon every time an employer hired an out-of-state worker to assess just how great the employer's need for the out-of-state employee was in light of local labor market conditions. Conversely, the courts would also have to inquire into the employee's circumstances, and whether the employee had reasonably comparable job prospects in the area from which the employee relocated. Again, the Department does not believe such a result is consistent with the text or the intent of the FLSA or the Department's implementing regulations. It is true, of course, that H-2B employers derive some benefit from an H-2B worker's inbound travel. To be compensable under the FLSA, however, the question is not whether an employer receives some benefit from an item or paid-for cost, but rather whether they receive the primary benefit. Significantly, despite the fact that employers nearly always derive some benefit from the hiring of state-side workers as well, such workers' relocation costs generally have not been considered to be ``primarily for the benefit of the employer.'' That is so because the worker benefits from the travel either more than or just as much as the employer. In sum, the Department believes that the costs of relocation to the site of the job opportunity generally is not an ``incident'' of an H-2B worker's employment within the meaning of 29 CFR 531.32, and is not primarily for the benefit of the H-2B employer. The Department states this as a definitive interpretation of its own regulations and expects that courts will defer to that interpretation. [[Page 78042]] 8. Section 655.22(m) [(k) in Final Rule]--Bona Fide Inquiry As proposed in the NPRM, the Final Rule at Sec. 655.22(k) requires an employer that is a job contractor to attest that if it places its employees at the job sites of other employers, it has made a written bona fide inquiry into whether the other employer has displaced or intends to displace a similarly employed U.S. worker within the area of intended employment within the 120 days of the date of need. To comply with this attestation, the Department is requiring the employer to inquire in writing to and receive a written response from the employer where the relevant H-2B worker will be placed. This can be done by exchange of correspondence or attested to by the secondary employer in the contract for labor services with the employer petitioning to bring in H-2B workers. This proposed attestation at Sec. 655.22(k) also requires the employer to attest that all worksites where the H-2B employee will work are listed on the Application for Temporary Employment Certification. The Department received several comments on this secondary placement attestation provision. While some were in favor of the requirement, some employer associations expressed concern that making such an inquiry of their clients was unfair and unduly burdensome. The Department acknowledges that this attestation imposes an additional level of inquiry between job contractors and their clients where the contractor will be providing H-2B workers at a client site. The INA's mandate of the unavailability of persons capable of performing the job duties for which the H-2B workers are sought is at the heart of this requirement. It is the H-2B worker's job activity, rather than the identity of the H-2B worker's employer, which is required to be measured against the availability of U.S. workers; the H-2B worker can be admitted only upon assurances of the unavailability of unemployed persons able to take the H-2B job opportunity. As a result, an H-2B worker performing duties at company X, for which company Y has hired him and pays him, may have an adverse effect not only on employees at the petitioning job contractor company employing him but also the company benefiting from his or her services. The limitations imposed by the Department--area of intended employment, occupation, and timing--provide parameters to reassure employers while at the same time enabling them to ensure full compliance with the mandates of the H-2B program. One commenter agreed with this provision but did not believe a labor contractor should be held liable for the statements provided by those entities. The Department believes this commenter misinterpreted this section. The job contractor should make a bona fide inquiry and document the inquiry and response. If it later turns out that the employer who received the H-2B worker from the job contractor displaced a U.S. worker during the stated timeframe, proof of the employer's negative response to the job contractor's bona fide inquiry will relieve the job contractor of liability for that violation. Another commenter requested that we strike this provision in its entirety because it does not allow for change in circumstances that would warrant displacing U.S. workers. The Department sees no reason why the U.S. worker would have to be displaced over the foreign worker and therefore, declines to eliminate this provision. Finally, an industry association commented that H-2B workers employed by carnivals and circuses are constantly being placed on job sites of other employers as they travel the circuit and that this requirement is too difficult to comply with. It is difficult for the Department to discern, from the manner in which this comment was written, whether the H-2B workers are being paid by one petitioning employer throughout the itinerary or whether these H-2B workers are placed on the payroll of the fixed-site employer at each location. The Department has not made any changes to this section, as no compliance challenge was clearly communicated. 9. Section 655.22(o) [(m) in Final Rule]--Notice to Worker of Required Departure Under the Final Rule, employers have a responsibility to inform foreign workers of their duty to leave the United States at the end of the authorized period of stay, and to pay for the return transportation of the H-2B worker if that worker is dismissed early. As stated in the NPRM, DHS will establish a new land-border exit pilot program for certain H-2B and other foreign workers to help ensure that departure follows the end of work authorization, regardless of whether it flows from a premature end or from the end of the authorized labor certification. The Department received one comment on the duty to inform the worker of the obligation to depart from the country. This commenter opined that it is not the responsibility of employers to become unpaid immigration officers. The Department is not suggesting that it is placing any burden on employers to act as immigration officers. The Department has retained the requirement, while clarifying it to be consistent with DHS's regulations on this issue. 10. Section 655.22(p) [(n) in Final Rule]--Representation of Need The Final Rule requires the employer to attest that it truly and accurately stated the number of workers needed, the dates of need, and the reasons underlying the temporary need in its labor certification request. The Department received two comments on this provision. One requested that we change the words ``truly and accurately'' to ``reasonable and good faith'' based on estimates from information available at the time of filing the certification. The Department has considered this change but declines to amend the regulatory language. The concern of the commenter of the need for flexibility is found in the provision in both the NPRM and this Final Rule regarding amendments (Sec. 655.34(c)(2)) of the start date of the certification. Any need for additional flexibility on the part of the Department must be balanced against the Department's need to ensure integrity in an attestation-based program; giving freedom to change its dates of need allows unscrupulous employers to submit applications not based on an actual need, thus circumventing the entire process in an attempt to obtain limited visas. The second commenter expressed concern with the date of need requirement and requested the Department change several sections on which this attestation is predicated. One of the major concerns of this commenter was the potential need to amend start dates after certification if an employer must wait for visa numbers to become available. The Department has, however, retained the underlying provision for this attestation. While the Department permits amendment of the start date of the certification by the employer both prior to certification (Sec. 655.34(c)(2)) and after certification to certify a late adjudication (Sec. 655.34(c)(4)), the reconciliation of the start date becomes an issue for DHS adjudication. The Department notes that a regulatory provision allowing movement of the date of need after certification would be inconsistent with the DHS proposed rule, which would not permit the filing of a petition whose start date was inconsistent with the start date of the labor certification. This commenter also proposed, in the alternative, that employers be allowed [[Page 78043]] to submit their I-129 labor certification applications to DHS with a note that they have submitted their request for an amendment to the Department and that the Department be required to adjudicate the request for amendment within five days. The Department considered the comment and has decided not to establish a deadline for the processing of amendment requests. We defer to DHS to determine what is appropriate for its adjudication of I-129 petitions which falls exclusively under its jurisdiction. L. Retention of Supporting Documentation The Final Rule contains a modified requirement that employers retain specified documentation outlined in the proposed regulations to demonstrate compliance with program requirements. The proposed retention period was for 5 years. This documentation must be provided in the event of an RFI, post-adjudication audit, WHD investigation or other similar activity. The Department received a few comments in response to this proposed requirement. One small business coalition expressed its support, while another organization expressed concern that a 5-year document retention requirement was too long, especially for small employers, or employers like circuses and carnivals that are mobile or have a mobile component. Another commenter requested the Department prepare and provide a list to H-2B employers in one place, in plain language--perhaps as part of broad stakeholder compliance assistance--the documentation that should be retained. In response to concerns about the length of time for records retention, the Department has reduced the requirement from 5 years to 3 years. The documentation required will support specific attestations by the employer under the program. We will provide additional guidance in the course of individual and broad-based technical assistance and educational outreach to the employer community, including on the OFLC Web site. We will consider the issuance of additional written guidance, as appropriate. M. Section 655.23(c)--Request for Further Information The Department proposed to issue a Request for Further Information (RFI) within 14 days of receiving the application, if needed, for the purpose of adjudicating the application for labor certification. All of those who commented on this provision requested that the timeframes be changed, but most also recommended an additional provision that would obligate the Department to process and respond to the information received through the RFI within a certain period of time. The Department agrees and shortened both the issuance and response time to 7 days. The Department also has added a provision that obligates the CO to issue a Final Determination within 7 business days of receiving the employer's response, or by 60 days before the date of need, whichever is greater. N. Section 655.24--Post-Adjudication Audits The Department proposed to use various selection criteria for identifying applications for audit review after the application has been adjudicated in an effort to maintain and enhance program integrity. The audits are meant to permit the Department to ensure compliance with the terms and conditions by an employer and to fulfill the Secretary's statutory mandate to certify applications only where unemployed U.S. workers capable of performing such services cannot be found. Failure by an employer to respond to the audit could lead to debarment from the program as could a finding by the Department that the employer has not been complying with the terms and conditions attested to in the application. The Department received many comments on this provision. They were equally divided between those that opposed post-adjudication audits and those that believed audits are an effective tool to enhance integrity. Those who opposed the post- adjudication audits did not make any alternative suggestions on how the Department could determine compliance with the program. Therefore, with no other alternatives available, the Department believes its initial analysis is correct and, therefore, has not made any substantive changes to this section, save for including the option for the CO to refer any findings that an employer violated the terms and conditions of the program with respect to eligible U.S. workers to the Department of Justice, Civil Rights Division, Office of Special Counsel for Unfair Immigration Related Employment Practices, as suggested by one commenter. O. Section 655.30--Supervised Recruitment The Department proposed to require certain employers to engage in supervised pre-filing recruitment to ensure compliance with recruitment requirements. One comment was received on this provision. The commenter believes that the NPC will be unable to handle such a responsibility as effectively and as efficiently as did the local SWAs and that it will affect the integrity of the program. The Department respectfully disagrees with this commenter and has retained the provision as proposed. We believe that centralizing the process will provide uniformity and expertise that will enhance program integrity. Further, in the permanent labor certification program, supervised recruitment is conducted under Federal guidance and not SWA supervision. P. Section 655.31--Debarment The Department's NPRM proposed a mechanism allowing the Department to debar an employer/attorney/agent from the H-2B program for a period of up to 3 calendar years. Debarment from the program is a necessary and reasonable mechanism to enforce H-2B labor certification requirements and ensure compliance with the program's statutory requirements. Further, debarment and other enforcement mechanisms, e.g., audits, are necessary and reasonable program compliance checks to balance the transition to an attestation-based filing system. The proposed rule would permit the Department to debar an employer, attorney, and/or agent for a period of up to 3 calendar years for misrepresenting a material fact or for making a fraudulent statement on an H-2B application, for a material or substantial failure to comply with the terms of the attestations, for failure to cooperate with the audit process or ordered supervised recruitment, or if the employer/ attorney/agent has been found by a court of law, WHD, DHS, or the DOS to have committed fraud or willful misrepresentation involving any OFLC employment-based immigration program. Upon further consideration, based in part upon the Department's recent efforts to modernize its H-2A labor certification regulations, the Department has decided to modify the debarment provision so that it more closely parallels the debarment provision for the H-2A regulation at 20 CFR 655.118, given the similarity of the H-2A and H-2B labor certification programs. While many of the grounds for debarment are substantially similar in the Final Rule as in the NPRM, the Final Rule contains additional safeguards for both workers and employers, which are explained in greater detail below. 1. Debarment Authority An advocacy organization questioned the Department's authority to debar attorneys, agents, or employers from the H-2B program and asserted that a determination of a violation should only be made after notice of violation and an [[Page 78044]] opportunity for a hearing. The debarment of entities from participating in a government program is an inherent part of an agency's responsibility to maintain the integrity of that program. As the Second Circuit found in Janik Paving & Construction, Inc. v. Brock, 828 F.2d 84 (2d Cir. 1987), the Department possesses an inherent authority to refuse to provide a benefit or lift a restriction for an employer that has acted contrary to the welfare of U.S. workers. In assessing the Department's authority to debar violators, the court found that ``[t]he Secretary may * * * make such rules and regulations allowing reasonable variations, tolerances, and exemptions to and from any or all provisions * * * as [s]he may find necessary and proper in the public interest to prevent injustice of undue hardship or to avoid serious impairment of the conduct of Government business.'' Id. at 89. In addition, although the Administrative Procedure Act provides that parties are entitled to appear before the agency with legal counsel, see 5 U.S.C. 555(b), this provision ``leaves intact the agencies' control over both lawyers and non-lawyers who practice before them,'' Attorney General's Manual on the APA (1947) at 65. The Department's debarment of attorneys and agents under the H-2B program is also consistent with the Department's longstanding practice of regulating attorneys and representatives who appear before the agency. See, e.g., In re judicial inquiry re Miroslaw Kusmirek, 2000-INA-116 (Sept. 18, 2002) (sanctioning a representative for providing forged documents to the Department of Labor). In order to encourage compliance, the regulatory scheme for the H- 2B program relies on attestations, audits, investigations and the remedial measure of debarment. Use of debarment as a mechanism to encourage compliance has been endorsed in the INA for a number of foreign labor certification and attestation programs. Ensuring the integrity of a statutory program enacted to protect U.S. workers is an important part of the Department's mission. As part of the Department's inherent debarment authority, the Department may determine the particular procedures that may apply to the process. Accordingly, it is within the Department's authority to require the OFLC Administrator to issue a Notice of Intent to Debar no later than 2 years after the occurrence of the violation; offer the employer an opportunity to submit evidence in rebuttal; and if the rebuttal evidence is not timely filed or if the Administrator determines that the employer, attorney, or agent more likely than not meets one or more of the bases for debarment, issue a Notice of Debarment which may be subject to administrative appeal through the Department's Board of Alien Labor Certification Appeals (BALCA). Like the NPRM, the Final Rule provides that the Notice of Debarment shall be in writing, state the reason for the debarment finding and duration of debarment, and identify the appeal rights. Additionally, the Final Rule provides that the debarment will take effect on the start date identified in the Notice of Debarment unless the administrative appeal is properly filed within 30 days of the date of the Notice, thereby, staying the debarment pending the outcome of the appeal. 2. Grounds for Debarment While a union and a state agency expressed their support for the debarment provisions, a law firm asserted that the debarment was an unduly strict sanction for minor violations of new procedures, the details of which are still not clear. We disagree with the commenter's characterization of violations warranting debarment as ``minor.'' The Department will not debar for ``minor'' violations. Rather most of the violations that will be the basis of potential debarment actions require a pattern or practice of acts that: (1) Are significantly injurious to the wages or benefits offered under the H-2B program or working conditions of a significant number of the employer's U.S. or H- 2B workers; (2) reflect a significant failure to offer employment to each qualified domestic worker who applied for the job opportunity for which certification was being sought, except for lawful job-related reasons; (3) reflect a significant failure to comply with the employer's obligations to recruit U.S. workers; (4) reflect a significant failure to comply with the RFI or audit process; (5) reflect the employment of an H-2B worker outside the area of intended employment, or in an activity/activities not listed in the job order (other than an activity minor and incidental to the activity/activities listed in the job order), or after the period of employment specified in the job order and any approved extension; or (6) reflect a significant failure to comply with supervised recruitment. However, the Department recognizes that there are some acts which the Department would have no other available remedy to enforce would warrant debarment even without a pattern or practice. These acts are set forth separately under Sec. 655.31(d)(2) through (5). These acts are: Fraud; the failure to cooperate with a DOL investigation or with a DOL official performing an investigation, inspection or law enforcement function; the failure to comply with one or more sanctions or remedies imposed by the ESA, or with one or more decisions of the Secretary or court; and a single heinous act showing such flagrant disregard for the law that future compliance with program requirements cannot reasonably be expected. As to the details of the violation not being clear, we believe that the regulations are quite clear in setting forth the various grounds under which an employer, attorney or agent may be debarred. The Department understands the seriousness of debarment as a penalty and, in considering the comments received in response to the NPRM, believes that the resulting debarment provision upholds the integrity of the H- 2B labor certification program and puts employers on notice of what violations are sufficiently serious that could result in potential debarment. Additionally, the law firm requested a provision for training prior to being subject to sanctions such as debarment. While we do not think that it is necessary to address such training directly in the regulation, OFLC will issue further guidance, as appropriate, to orient stakeholders and staff to these new provisions. 3. Debarment of Attorneys and Agents An international recruiting company requested that the Department apply a different standard for the debarment of attorneys and agents from the debarment of employers. In particular, the commenter asserted that the evidence to debar the agent or attorney would need to be legally significant since they do not share in the task of employment and stated that many agents accept information from the employer at face value and accept information as true. While attorneys and agents are not strictly liable for all actions of the employers they represent they do have responsibilities attendant to their participation in the program. Employers, agents, and attorneys each must remain aware of their particular responsibilities under the labor certification process and of the consequences of submitting false or misleading information to a Federal agency. Accordingly, the regulation provides that the Administrator may debar agents and attorneys not only for participating in, but also having knowledge of, or having reason to know of, the employer's substantial violation. An advocacy organization objected to the omission of appeal rights for [[Page 78045]] attorneys and agents with respect to a Notice of Debarment. The commenter stressed that since attorneys and agents may themselves be subject to a Notice of Debarment, they ought to have recourse to correct a conceivably incurred or unfair decision. The commenter also noted that there may be certain instances where the interests of an employer and attorney or agent may diverge with respect to pursuing an appeal and the latter would be harmed due to the lack of appeal rights. The commenter also noted that the Department's permanent labor certification regulations provide not only the employer but any debarred person or entity the right to appeal the debarment decision. We agree with commenter's concern and have included references to attorneys' and agents' rebuttal and appeal rights, in additional to that of employers. 4. Use of Labor Contractors An advocacy organization expressed a concern that employers would manipulate their legal identities resulting in abuses that would not be cured by debarment. In particular, the commenter set forth a scenario in which a company would retain a labor contractor or temporary agency to serve as the ``employer'' for a group of foreign workers at the company's work site. The commenter was concerned that the company would take advantage of a labor contractor's false claim that no domestic workers could be found, yet only the labor contractor would be debarred as the ``employer,'' thus allowing the company to hire another labor contractor to repeat the same abuses. The commenter seems to presume all labor contractors would commit violations of the program, which is a generalization that unfairly portrays law abiding labor contractors in a negative light. Nonetheless, this is a situation that would be of concern to the Department and, if appropriate, we would pursue administrative means to ascertain the veracity of applications and information submitted to the Department. 5. Review of Debarment Determinations The Department did not receive comments about the procedures for the review of the Administrator, OFLC's debarment determinations. However, to ensure consistency across programs, the Department has included in the Final Rule procedures, identical to those set forth in the Department's H-2A Final Rule, for hearings before an administrative law judge and review of the administrative law judge's decision by the Administrative Review Board. Under the Final Rule, a debarred party may request a hearing which would be governed by the procedures in 29 CFR part 18, and administrative law judge decisions would not be required to be issued within a set period of time. We believe that this process provides a period of time that is both sufficient for thorough consideration of the grounds for debarment and expedient enough so as to allow the Department to debar bad actors before they can cause any additional harm while also minimizing the period of uncertainty for employers in the case of a successful appeal. Q. Section 655.32--Labor Certification Determinations The proposed language delineated the criteria by which the Administrator of OFLC will certify or deny applications. The commenters, though citing this particular section of the NPRM, actually commented on the attestation-based process in general. Their comments were incorporated into that discussion above. R. Section 655.33--Appeals to the BALCA The Department's and DHS's NPRMs proposed a new model for the adjudication of H-2B applications. Under current procedures, the Department does not provide for any administrative review of decisions either denying H-2B labor certification applications or rendering a non-determination. Currently, the Department's decisions are advisory to DHS and employers whose applications are denied or issued a non- determination by the Department may submit countervailing evidence to DHS and have access to administrative review under DHS procedures. Under the DHS NPRM, the countervailing evidence process is eliminated and employers seeking to file H-2B visa petitions will be required to present an approved labor certification from DOL. Since DOL decisions denying H-2B labor certification will no longer be subject to additional review outside of the Department, we concluded that it would be appropriate to provide an employer whose labor certification application is denied an opportunity to seek review in the Department. The Department's NPRM included such a procedure providing for administrative review before the BALCA. The Department received a number of comments on this portion of the NPRM, the majority of which expressed dissatisfaction with the proposal. We have carefully reviewed these comments and made several changes in response. Several commenters expressed satisfaction with the current appeal process and requested that it not be changed. To the extent these comments related to concerns about the length of that process, that question is discussed below. To the extent the commenters expressed a preference for the retention of the current practice in which countervailing evidence can be submitted to DHS when an H-2B labor certification application is denied, similar comments were submitted to DHS in response to its NPRM and DHS made no change in its Final Rule. We defer to and adopt DHS's response on this issue. Likewise, the concern expressed by one commenter that the time spent utilizing the Department's appeals procedures will delay employers getting into the queue at DHS for the limited number of available H-2B visas, is a matter that is addressed by DHS in their Final Rule. With regard to matters directly related to the Department's proposal, a number of commenters objected to the provision that precluded the submission of new evidence to the BALCA. We believe these commenters do not recognize the totality of the proposal. The NPRM provides that before a CO can deny an H-2B application, the CO must issue an RFI that apprises the employer of the grounds for the proposed denial and provides an opportunity to submit additional information. The Department does not see any reason to provide another opportunity to submit necessary information. In addition, providing such an opportunity would inevitably delay issuance of final decisions from the BALCA. Concerns about delays at the BALCA were expressed by a number of commenters even in the absence of any authorization for the submission of new evidence. Several commenters expressed concern that the appeal process before the BALCA would take too long. One noted specifically that no time limit was contained for the BALCA to issue its docketing statement and a briefing schedule. It was also pointed out that the NPRM provided merely that the BALCA ``should'' notify the employer of its decision within 20 days of the filing of the CO's brief. In response to comments reflecting concerns about the timeliness of the appeal process, the Final Rule reflects significantly shorter time frames, with the BALCA decision due no later than 15 business days after the request for review is filed. One commenter suggested the possibility of allowing worker representatives to participate in the administrative appeal process. We have rejected that suggestion. Generally, the [[Page 78046]] Department's labor certification procedures do not involve participation by third parties and we do not believe that their involvement would enhance the process given the nature of the labor certification determination. S. Section 655.34(c)--Amendments The Department received several comments on the provision requiring the amendment of labor certifications if the start dates change and/or the number of workers change. All commenters opposed this change. One commenter admitted that employers set their start date based on the availability of visa numbers. Other commenters claimed that this provision makes it impracticable to adjust to market fluctuations during the season. The Department appreciates the candid comments about the difficulties this new requirement will create. However, the Department's experience is that many times dates of need or number of workers needed are changed to such a degree that the recruitment previously done is stale by the time USCIS receives the application. Changes to start dates, especially as the practice has become more common, also raise a concern that U.S. workers who might indeed be available for work on the new start date were not given the chance to apply originally. Therefore, this requirement represents a reasonable and logical solution. The only changes made to the section were for clarification purposes. T. Section 655.35--Required Departure In consultation with DHS, the Department proposed to include, as part of the employer's obligations, the requirement that employers provide notice to the H-2B workers of their required departure at the end of their authorized stay or separation from employment, whichever occurs first. This section was designed in anticipation of DHS establishing a registration of departure program. The provision requires employers to inform their H-2B workers of their obligation to register their departure at the port of exit. The Department received one comment suggesting that we eliminate this provision because it is unworkable due to the requirement for specific entry and exit points, which is inevitably a guarantee for violations occurring. This commenter also suggested we work with DHS instead. The Department respectfully declines to eliminate this language. The entry-exit ports and requirements continue to be matters of immigration under DHS's jurisdiction; this language simply makes it an employer's obligation to inform foreign workers of the workers' responsibility. The Department did consult with DHS on this language to establish this employer obligation and lay the appropriate groundwork as DHS continues to build their next-generation entry-exit system. U. Delegation of Enforcement Authority As previously discussed, the INA provides the Department no direct authority to enforce any conditions concerning the employment of H-2B workers, including the prevailing wage attestation. DHS possesses that authority pursuant to secs. 103 and 214(a) and (c) of the INA. 8 U.S.C. 1103 and 8 U.S.C. 1184(c)(14)(A). DHS may also delegate its authority to the Department under secs. 103(a)(6) and 214(c)(14)(B) of the INA. 8 U.S.C. 1103(a)(6) and 8 U.S.C. 1184(c)(14)(B). DHS has chosen to delegate its enforcement authority to DOL, which provides the basis for the new enforcement provisions of this subpart. The delegation will not take effect until this rule becomes effective. V. Section 655.50(c)--Availability of Records in the Enforcement Process Language has been added to Sec. 655.50(c) to describe the employer's responsibility to make records available when those records are maintained in a central office. W. Section 655.60--Compliance With Application Attestations The NPRM proposed a WHD enforcement program addressing H-2B employers' compliance with attestations made as a condition of securing authorization to employ H-2B workers. The proposed enforcement program also covered statements made to DHS as part of the petition for an H-2B worker on the DHS Form I-129, Petition for a Nonimmigrant Worker. Compliance with attestations and the DHS petition are designed to protect U.S. workers and would be reviewed in WHD enforcement actions. This Final Rule adopts this proposal. A trade union and U.S. Senator commented that the proposal did not include a mechanism for accepting complaints of potential violations. The Department intends to accept complaints, as it does under other statutes it administers such as the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq., which does not have a specific regulatory mechanism for the acceptance of complaints. Thus, the Department has not added a specific regulatory procedure here. Another trade union commented that the Department should adopt the definition of ``employ'' found in the FLSA, which defines the term to include ``suffer or permit to work.'' In fact, the proposed regulations included such a definition. However, the terms ``employer'' and ``employee'' were defined in terms of the common law test of employment which does not include ``suffer or permit to work.'' Since the two concepts are different and the use of the ``suffer or permit'' test is precluded by the U.S. Supreme Court opinion in Nationwide Mutual Ins. v. Darden, 503 U.S. 318, 322-323 (1992), the reference to ``suffer or permit to work'' has been removed. X. Section 655.65--Remedies for Violations of H-2B Attestations 1. Section 655.65(a) and (b)--Assessment of Civil Money Penalties Under the proposed rule, the WHD would assess civil monetary penalties in an amount not to exceed $10,000 per violation for a substantial failure to meet conditions of the H-2B labor condition application or of the DHS Form I-129, Petition for a Nonimmigrant Worker for an H-2B worker; or for a willful misrepresentation of a material fact on the DOL application or DHS petition; or a failure to cooperate with a Department of Labor audit or investigation. No comment addressed this provision and it is adopted in the Final Rule, with one change--in accordance with the statutory provisions, the Final Rule clearly reflects that the WHD Administrator may access civil money penalties when appropriate. 2. Section 655.65(i)--Reinstatement of Illegally Displaced U.S. Workers Under the NPRM the WHD would seek reinstatement of similarly employed U.S. workers who were illegally laid off by the employer in the area of intended employment. Such unlawful terminations are prohibited if they occur less than 120 days before the date of requested need for the H-2B workers or during the entire period of employment of the H-2B workers. No comments addressed this proposal and it is adopted in the Final Rule. 3. Section 655.65(i)--Other Appropriate Remedies WHD may seek remedies under other laws that may be applicable to the work situation including, but not limited to, remedies available under the FLSA (29 U.S.C. 201 et seq.), the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801 et seq.), and the McNamara-O'Hara Service Contract Act (41 U.S.C. 351 et seq.). WHD also may seek other administrative remedies for violations as it determines to be appropriate. [[Page 78047]] The Department sought public comments on whether back wages can be assessed under the H-2B program when an employer fails to pay the prevailing wage rate. The most extensive comments received were from a U.S. Senator asserting that the lack of back pay as a remedy is a ``weakness of the Department's enforcement proposal'' and that back pay is ``an essential make-whole remedy for both H-2B program participants and American workers * * * [and] would provide a key incentive for otherwise vulnerable workers to come forward and protect their rights.'' The Senator also stated that ``[t]here is ample authority establishing that similarly broad grants of remedial authority are sufficient to authorize an award of back [pay], even when this remedy is not specifically enumerated.'' The Department has carefully considered whether Congress has provided authority to assess back wages under the H-2B provisions. The Department concludes that the H-2B statutory provisions provide the Secretary with the authority to seek back wages for failure to pay the required wage even though the statute does not specifically list this remedy. The INA broadly authorizes DHS to, ``in addition to any other remedy authorized by law, impose such administrative remedies (including civil monetary penalties * * *) as the Secretary of Homeland Security determines to be appropriate[.]'' 8 U.S.C. 1184(c)(14)(i). As noted above, that authority has been delegated to the Department of Labor. Awarding back pay is unquestionably the most appropriate remedy for failure to pay the required wage. It is also consistent with the statutory grant of authority and will further the purposes of the H-2B program because it will reduce employers' incentives to bypass U.S. workers in order to hire and exploit H-2B foreign workers, and guard against depressing U.S. workers' wage rates. A number of courts have concluded that, under similarly broad grants of remedial authority, the Secretary may establish back pay as an appropriate sanction even in the absence of explicit statutory authority. See, e.g., Commonwealth of Kentucky Dept. of Human Resources v. Donovan, 704 F.2d 288, 294-96 (6th Cir. 1983) (ruling that the Secretary of Labor had authority to award back pay under Comprehensive Employment and Training Act (CETA) both prior to the 1978 statutory and regulatory amendments and pursuant to the 1978 amendments); City of Philadelphia v. U.S. Dept. of Labor, 723 F.2d 330, 332 (3d Cir. 1983); United States v. Duquesne Light Co., 423 F. Supp. 507, 509 (W.D. Pa. 1976) (in government contracting case, back pay appropriate under E.O. 11246). The preamble to the NPRM, 73 FR 29946, noted that the H-1B provisions of the INA, unlike the H-2B provisions, contain a separate provision requiring that the Secretary assess back wages in cases where an employer has failed to pay the LCA-specified wages. 8 U.S.C. 1182(n)(2)(D) (``If the Secretary finds, after notice and opportunity for a hearing, that an employer has not paid wages at the wage level specified under the [LCA] * * * the Secretary shall order the employer to provide for payment of such amounts of back pay as may be required to comply with the [H-1B] requirements * * * whether or not [other penalties have] been imposed.''). The H-1B back pay provision is, however, different from either programs' general, broad grant of remedial authority by being mandatory and by imposing no standard for the severity of wage violations (e.g., willfulness or ``substantial violation'') for the collection of back wages. Therefore, the failure to include the mandate in H-2B simply means that the Secretary is not required to seek back pay in cases where the employer has failed to pay the LCA-specified wages; it does not bear on the Secretary's discretion to seek back pay in such cases. The Department concludes that the statutory language of the H-2B program provides the Secretary with the discretionary authority to seek back pay, provided there is a finding of a ``substantial violation'' or willfulness, in cases where the employer has failed to pay the LCA-specified wages. See 8 U.S.C. 1184(c)(14)(A)(i). The Department has modified the Final Rule accordingly. Y. Comments Beyond the Scope In addition to those discussed above, the Department received numerous comments that were beyond the scope of or not directly relevant to the proposed regulation. We did not respond to these comments, but find it appropriate to note them. They included: Calls for the Department to work with Congress to extend the Save Our Small and Seasonal Business Act returning workers provision; calls for the Congress to raise the H-2B 66,000 annual visa cap, or to allocate visa numbers more equitably across States; calls for the government to ``recapture'' H-2B visa numbers that expire the same year they are issued so they can be used for different workers; calls for the Congress to increase funding for all Federal agencies administering the H-2B visa program, and the SWAs, either through appropriations, or applications or fraud preventions fees; requests that DHS establish a special fraud investigative unit for certain visa related crimes and offenses; concerns about the requirement that workers use DHS's designated entry-exit system, and about the burdens and policies behind such a system; a request that foreign workers be given a two-month grace period between employers when the worker needs an extension but the workers' visas terminate before the beginning of their next employment; a request that employers have the authority to activate or deactivate the H-2B visa like a credit card to allow immediate action and loss of status if the worker fails to comply with the terms of the H-2B contract; calls for the government to require that H-2B workers (over whom the Department has no jurisdiction save for the areas covered in this Final Rule) purchase travel insurance or prohibit H-2B workers from identifying themselves as ``self-employed'' on their federal tax forms, or to eliminate the requirement that H-2B workers pay Social Security or Medicare; opinions that the United States has sufficient foreign workers to meet the needs of U.S. employers, especially at a time when the economy is slowing down and many U.S. workers are unemployed; calls for U.S. employers to provide higher wages and better working conditions; and a call for H-2B workers to be permitted representation by Federally-funded legal services corporations, and that resources for such counsel be increased. III. Administrative Information A. Executive Order 12866--Regulatory Planning and Review Under Executive Order (E.O.) 12866, the Department must determine whether a regulatory action is ``significant'' and therefore, subject to the requirements of the E.O. and subject to review by the Office of Management and Budget (OMB). Section 3(f) of the E.O. defines a ``significant regulatory action'' as an action that is likely to result in a rule that: (1) Has an annual effect on the economy of $100 million or more or adversely and materially affects a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as ``economically significant''); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues [[Page 78048]] arising out of legal mandates, the President's priorities, or the principles set forth in the E.O. The Department determined that this regulation is a ``significant regulatory action'' under sec. 3(f)(4). This Final Rule implements a significant policy related to the President's policies on immigration. However, the Department determined that this rule is not an ``economically significant'' rule under E.O. 12866 because it will not have an annual effect on the economy of $100 million or more. Analysis Considerations The direct incremental costs employers will incur because of this Final Rule, above and beyond the current costs required by the program as it is currently implemented, are not economically significant. The total annual cost associated with this Final Rule is approximately $1,872,769 per year or $166 per employer. The only additional costs on employers resulting from this Final Rule are those involved in (1) the placement of a Sunday advertisement, which replaces one of the former daily advertisement and the additional paperwork costs; (2) the new paperwork and retention requirements; and (3) contacting laid-off workers to notify them of a job opportunity.\6\ --------------------------------------- \6\ The Department notes that this cost is not new to the H-2B program because it has been required in program guidance. However, because it is new to the regulation, we have included it in this analysis. --------------------------------------- Cost of the Sunday Advertisement The cost range for advertising and recruitment is taken from a recent (October 2008) sample of newspapers in various urban and rural U.S. cities, and reflects approximate costs for placing one 10-line advertisement in those newspapers. The cost of advertising in a Sunday paper instead of during the week is approximately $234, which represents an increase of approximately $31.16 over the weekday advertisement.\7\ The additional total cost for the 11,267 employers utilizing the H-2B program of one Sunday ad would average approximately $351,080 assuming that such ads would not have been placed by the business as part of its normal practices to recruit U.S. workers.\8\ --------------------------------------- \7\ The Department based this average on 10 locations with the highest number of H-2B applications, including the following: Houston, Texas; Orlando, Florida; Vail, Colorado; Orange County, California; Cape Cod, Massachusetts; Detroit, Michigan; Baton Rouge, Louisiana; Houma, Louisiana; Columbus, Ohio; and Washington, DC. \8\ The Department notes that this cost is based on the highest costs in each location. Fees are likely to be lower given that many newspapers offer lower rates for consecutive ads, for placing two ads in the same week, or for purchasing a Sunday and weekday ad. --------------------------------------- Cost of Paperwork and Record Retention Requirements The paperwork and record retention costs are minimal, as records will require a burden of approximately 1.35 hours per year per application. Based on the median hourly wage rate for a Human Resources Manager ($40.47), as published by the Department's Occupational Information Network, O*Net OnLine, and increased by a factor of 1.42 to account for employee benefits and other compensation, a total cumulative burden of 15,210 hours will result in a total cost of $874,118, or $77.58 per employer. Cost To Notify Laid-Off Workers of Job Opportunity A final cost to employers for implementing the requirements of this Final Rule is the cost associated with notifying laid-off workers of a job opportunity. The Department estimates that the total cost to meet this requirement is $647,571 or $57.48 per employer. To make this cost determination, the Department estimated it would take an employer's Human Resources Manager approximately 3 minutes to notify each laid-off worker. The Department does not have data to determine how many laid- off workers an employer would be required to notify. Therefore, the Department projected this number based on the total number of employees requested on the applications. Based on PY 2006 data, employers requested visas for 247,287 foreign workers, for an average of 22 employees per employer. We then multiplied this number by 3 minutes (the time estimate to notify each laid-off worker) to determine that it will take each employer approximately one hour to meet this requirement. Thus, the cost per employer is the hourly salary for the Human Resource Manager to make the calls or $57.47. Benefits We also project that employers will experience significant time- savings as a result of the reengineered process. The Department estimates the average time-savings to employers will be at least 28 days from the current process, based on the current average H-2B application processing time of 73 days in the fiscal year (FY) 2007 (October 1, 2006-September 30, 2007). Although the Department cannot estimate the cost savings as a result of this time saved, it believes that employers will experience a variety of economic benefits, including benefits from predictability of workforce size and availability regardless of geographic area, as a result of reengineering the application process. The Department received seven comments related to the cost of this rulemaking. One comment was directed at the cost to small businesses and has been addressed in Section B of this section of the preamble below. The remaining six comments were related to the costs to the SWAs, which is not a cost calculated in the total cost of this Final Rule because they are considered transfer costs under OMB Circular A-4. Therefore, the Department has addressed those comments in Section C of this section of the preamble. The Department notes, however, that based on the comments, it reduced the number of required advertisements from three in the preamble to two in this Final Rule, which is reflected in the cost analysis above. B. Regulatory Flexibility Analysis/SBREFA The Regulatory Flexibility Act (RFA) at 5 U.S.C. 603 requires agencies to prepare a regulatory flexibility analysis to determine whether a regulation will have a significant economic impact on a substantial number of small entities. Section 605 of the RFA allows an agency to certify a rule in lieu of preparing an analysis if the regulation is not expected to have a significant economic impact on a substantial number of small entities. A significant economic impact is defined as eliminating more than 10 percent of the businesses' profits; exceeding 1 percent of the gross revenue of the entities in a particular sector; or exceeding 5 percent of the labor costs of the entities in the sector. Further under the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801 (SBREFA), an agency is required to produce compliance guidance for small entities if the rule has a significant economic impact. Although the RFA and the SBREFA analyses were included as separate preamble sections in the proposed rule, the Department has included them in one preamble section in this Final Rule to avoid unnecessary duplication. The Department has certified that this Final Rule does not have a significant economic impact on a substantial number of small entities. 1. Definition of a Small Entity A small entity is one that is ``independently owned and operated and which is not dominant in its field of operation.'' The definition of small business varies from industry to [[Page 78049]] industry to the extent necessary to properly reflect industry size differences. An agency must either use the SBA definition for a small entity, or, establish an alternative definition. Given that this rulemaking crosses industry sectors, the Department has adopted the SBA size standards defined in 13 CFR 121.201. The SBA utilizes annual revenue in some industries, while utilizing number of employees in others to determine whether or not a business is considered a small business. Historically however, the Department has not collected information about an employer's industry classification, annual revenues, or number of employees currently on payroll in the H-2B program. Therefore, the Department cannot accurately and comprehensively categorize each applicant-employer for the purpose of conducting the RFA analysis by industry and size standard. In lieu of the industry and size standard analysis, the Department based the estimated costs of the reformed H-2B process assuming all employers- applicants were small entities. 2. Factual Basis for Certification The factual basis for such a certification is that this Final Rule does not affect a substantial number of small entities and there will not be a significant economic impact on them. The Department receives more than 10,000 applications a year under this program. In FY 2006 (October 1, 2005-September 30, 2006), ETA received from SWAs 11,267 applications from employers seeking temporary labor certification under the H-2B program. As mentioned earlier, the Department does not collect information regarding the numbers of small entities participating in the H-2B program. The Department believes that this rule may potentially affect as many as 11,267 employers participating in this program, assuming that each employer only has one application. Although there may be a substantial number of small entities impacted by this Final Rule, the Department has determined that this rule will not have a significant economic impact on those small businesses that utilize the program. The RFA and the SBREFA, which amended the RFA, require that an agency promulgating regulations segment and analyze industrial sectors into several appropriate size categories for the industry being regulated. Even though the foreign labor certification programs are open to all industries, the Department does not have sufficient data to analyze the universe of H-2B applicants by industry sector. However, the Department was able to analyze the PY 2006 data to determine that landscape occupations \9\ accounted for approximately 31 percent of all the applications filed. According to SBA guidelines for the landscape industry, all employers with annual receipts at or below $6.5 million are considered small businesses. The cost of this rule for those employers at this threshold would be approximately .003 percent of their annual revenues; even for employers with annual receipts of only $500,000, the cost would represent only .036 percent of revenues.\10\ The Department also recognizes that there are potentially very small business that might be affected. Therefore, for purposes of comparing costs, this rule would cost small entities that had gross annual receipts of $120,000 and profits of $12,000 approximately .15 percent of their revenues, which would not be significant. --------------------------------------- \9\ The Department notes that this was the only occupation that could be paralleled with the industry classifications required by the SBA and described in 13 CFR 121.201. The landscape industry includes grounds keeping, lawn services, landscaping, tree planting, tree trimming, and tree surgeons. However, the Department does not require employers to list a North American Industry Classification System (NAICS) code for each employment position under the H-2B program, and therefore, the data calculated for this example is not as accurate as it would be with NAICS coding. For instance, some landscaping duties require bricklaying, which we note has been used as a separate employment category on some of the applications. Without the coding it is not possible to categorize occupations accurately. Therefore, the Department notes that we used this industry merely to provide an example of how this rule could affect a category of employers. \10\ The cost of the rule ($166) divided by the projected annual receipts of the business. --------------------------------------- The Department believes that the costs incurred by employers under this Final Rule will not be substantially different from those incurred under the current application filing process. Employers seeking to hire foreign workers on a temporary basis under the H-2B program must continue to establish to the Secretary's satisfaction that their recruitment attempts have not yielded enough qualified and available U.S. workers. Similar to the current process, employers under this H-2B process will file a standardized application but will retain recruitment documentation, a recruitment report, and any supporting evidence or documentation justifying the temporary need for the services or labor to be performed. To estimate the cost of this reformed H-2B process on employers, the Department calculated each employer will pay an additional $31.16 to meet the advertising requirements for a job opportunity, and will spend an additional 1.35 hours staff time preparing the standardized application, narrative statement of temporary need, final recruitment report, and retaining all other required documentation (e.g., newspaper ads, business necessity) for audit purposes or $81.57 per employer. The Department also estimated that it will take an employer approximately one hour to notify laid-off workers of a job opportunity, or $66.46. Using the RFA standard to determine whether a rule will have a substantial impact on a significant number of small businesses, the Department determined that this Final Rule will not eliminate more than 10 percent of the businesses' profits; exceed 1 percent of the gross revenue of the entities in a particular sector; or exceed 5 percent of the labor costs of the entities in the sector. The total cost per employer is approximately $179, which represents .15 percent of the gross receipts and profits of a small entity with $120,000 in revenues and $12,000 profits. Therefore, this rule will not have a significant impact on a substantial number of small businesses. The Department received one comment on this section, which generally stated that the rule would increase the cost to employers, especially given the changes to advertising. Although this statement is partly true given that the cost of the rule increased by approximately $179, in light of the other non-quantifiable benefits, the Final Rule will likely represent a cost-savings to the employer. Therefore, for the reasons stated, the Department believes that total costs for any small entities affected by this program will be reduced or stay the same as the costs for participating in the current program. Even assuming that all entities who file H-2B labor certification applications qualify as small businesses, there will be no net negative economic effect. C. Unfunded Mandates Reform Act of 1995 Section 202 of the Unfunded Mandates Reform Act (UMRA) of 1995 (2 U.S.C. 1501 et seq.) directs agencies to assess the effects of a Federal regulatory action on State, local, and tribal governments, and the private sector to determine whether the regulatory action imposes a Federal mandate. A Federal mandate is defined in the Act at 2 U.S.C. 658(5)-(7) to include any provision in a regulation that imposes an enforceable duty upon State, local, or tribal governments, or imposes a duty upon the private sector which is not voluntary. A decision by a private entity to obtain an H-2B worker is purely voluntary and is, therefore, [[Page 78050]] excluded from any reporting requirement under the Act. The Department received six comments on this section from SWAs related to the increase in cost and workload and/or the lack of funding to support the new H-2B processing requirements. One commenter generally noted that its jurisdiction was neither financially nor functionally prepared to take on this added workload. Three States specifically stated that the funds provided under the Wagner-Peyser Act were insufficient to carry out their H-2B responsibilities prior to the changes in this rule, and the new eligibility verification requirements increased their funding challenges. Three States specifically related the lack of resources to the additional cost of storing and processing the I-9 documents related to the eligibility verification requirements. The Department disagrees that this Final Rule imposes an unfunded mandate. As noted in the proposed rule, the Department is not insensitive to the resource and time constraints facing SWAs in their administration of H-2B activities and the difficulties inherent in making informed referrals on a population of workers that may be itinerant and difficult to contact. 73 FR 29950, May 28, 2008. However, we do not believe that this requirement will result in a significant workload increase or administrative burden. The Department points out that although there may be some new requirements for SWAs, there are also many requirements for SWAs that have been eliminated in this Final Rule given the reengineered approach. The Department believes reduced burden from the old requirements more than offsets any additional burden finalized here. The SWAs will experience a direct impact on their foreign labor certification activities in the elimination of certain H-2B activities under this Final Rule. These eliminated activities are currently funded by the Department under grants provided under the Wagner-Peyser Act, 29 U.S.C. 49 et seq. In addition, other tools will be available to the SWAs to make this requirement relatively easy to implement, such as the E-Verify system. As a result, the net effect of this Final Rule will likely be to ensure the amounts of such grants available to each State correspond or even increase relative to its workload under the H-2B program in the receipt, processing and monitoring of each application. One State commented that the new eligibility verification requirements could lead to discriminatory practices subject to legal challenge, which in this commenter's opinion, the legal costs associated with any defense also represented an unfunded mandate. The Department believes it is premature to presume that the States will have to bear a significant cost to defend against any potential litigation associated with the implementation of this Final Rule, and which is typically considered part of a grantee's programmatic responsibility, should it occur. Therefore, for the reasons stated above, the Department finds that this Final Rule does not impose an unfunded mandate. D. Executive Order 13132--Federalism Executive Order 13132 addresses the Federalism impact of an agency's regulations on the States' authority. Under E.O. 13132, Federal agencies are required to consult with States prior to and during the implementation of national policies that have a direct effect on the States, the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Further, an agency is permitted to limit a State's discretion when it has statutory authority and the regulation is a national activity that addresses a problem of national significance. The Department received one comment on this section. This commenter stated that the Department's reversal of a long-standing position on U.S. worker self-attestation creates a Federalism impact. According to this commenter, TEGL 11-07, Change 1, mandates that SWAs perform pre- employment eligibility verifications on every U.S. worker that requests a referral to an H-2A job order. This commenter requests that the Department prepare a summary impact statement and acknowledge that many States currently have attestation-based systems for U.S. worker access to public labor exchange services. The Department disagrees with this commenter's assessment of a Federalism impact and therefore, the need for a summary impact statement. In this case there is no direct effect on the States because the States are not in the best position to address the needs to re- engineer a Federal program to relieve the backlog that has occurred due to inadequate staffing, funding, or other issues of concern. The issues addressed by the regulations are of national concern to ensure an effective program that regulates temporary alien workers and protects U.S. workers. As noted elsewhere in this preamble, the Department attempted to reform this program in 2005. To meet the demands of the considerable workload increases for both the Department and the SWAs and limited appropriations, the Department determined that regulatory changes were still necessary. These changes are consistent with the Department's review, program experience, and years of stakeholder feedback on longstanding concerns about the integrity of the prior program. Therefore, as a program of national scope, the Department is implementing requirements that apply uniformly to all States. Even if there were an argument that the Department should defer to the States on the eligibility verification requirements, the Department is authorized by the INA to implement Federal regulations to ensure consistency across States on immigration matters. Therefore, rather than having separate eligibility verification processes that vary from State to State, the Department is exercising its right under the INA to impose consistent requirements for all participants across the H-2B program. In addition, given that the H-2B program is an immigration- related program, it also is a program of national security and therefore, of national significance with Federal oversight and uniformity. The verification requirement is designed to strengthen the integrity of the temporary labor certification process, afford employers a legal pool of applicants, protect U.S. workers, and improve confidence in and use of the H-2B program. Further, the relationship the States have with this program and the Federal Government is through grants from the Department to the States for the sole purpose of maintaining consistency across States. As a voluntary Federal program, the Department may change the direction from time to time as dictated by the changes to immigration-related concerns, but at the same time are consistent with the underlying legislation. Therefore, for the reasons stated, the Department has determined that this rule does not have sufficient Federalism implications to warrant the preparation of a summary impact statement. E. Executive Order 13175--Indian Tribal Governments Executive Order 13175 requires Federal agencies to develop policies in consultation with tribal officials when those policies have tribal implications. This Final Rule regulates the H-2B visa program and does not have tribal implications. Therefore, the Department has determined that this E.O. does not apply to this rulemaking. The Department did not receive any comments related to this section. [[Page 78051]] F. Assessment of Federal Regulations and Policies on Families Section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact of Federal regulations and policies on families. The assessment must address whether the regulation strengthens or erodes the stability, integrity, autonomy, or safety of the family. The Final Rule does not have an impact on the autonomy or integrity of the family as an institution, as it is described under this provision. The Department did not receive any comments related to this section. G. Executive Order 12630--Protected Property Rights Executive Order 12630, Governmental Actions and the Interference with Constitutionality Protected Property Rights, prevents the Federal government from taking private property for public use without compensation. It further institutes an affirmative obligation that agencies evaluate all policies and regulations to ensure there is no impact on constitutionally protected property rights. Such policies include rules and regulations that propose or implement licensing, permitting, or other condition requirements or limitations on private property use, or that require dedications or exactions from owners of private property. The Department did not receive any comments on this section. The Department certifies that this Final Rule does not infringe on protected property rights. H. Executive Order 12988--Civil Justice Reform Section 3 of E.O. 12988, Civil Justice Reform, requires Federal agencies to draft regulations in a manner that will reduce needless litigation and will not unduly burden the Federal court system. Therefore, agencies are required to review regulations for drafting errors and ambiguity; to minimize litigation; ensure that it provides a clear legal standard for affected conduct rather than a general standard; and promote simplification and burden reduction. The rule has been drafted in clear language and with detailed provisions that aim to minimize litigation. The purpose of this Final Rule is to reengineer the H-2B program and simplify the application process. Therefore, the Department has determined that the regulation meets the applicable standards set forth in sec. 3 of E.O. 12988. The Department received no comments regarding this section. I. Plain Language Every Federal agency is required to draft regulations that are written in plain language to better inform the public about policies. The Department has assessed this Final Rule under the plain language requirements and determined that it follows the Government's standards requiring documents to be accessible and understandable to the public. The Department did not receive any comments related to this section. J. Executive Order 13211--Energy Supply This Final Rule is not subject to E.O. 13211, which assesses whether a regulation is likely to have a significant adverse effect on the supply, distribution, or use of energy. Accordingly, the Department has determined that this rule does not represent a significant energy action and does not warrant a Statement of Energy Effects. The Department did not receive any comments related to this section. K. Paperwork Reduction Act 1. Summary As part of its continuing effort to reduce paperwork and respondent burden, the Department of Labor conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). This helps to 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. In accordance with the Paperwork Reduction Act (44 U.S.C. 3501), information collection requirements, which must be implemented as a result of this regulation, a clearance package containing proposed forms was submitted to OMB on February 14, 2008, along with its proposed rule to reform the H-2A agricultural foreign labor certification program, and then again on May 22, 2008, in conjunction with the H-2B proposed rulemaking preceding this Final Rule. Therefore, the public was given 60 days to comment on this information collection with both submissions, for a total of 120 days. All comments received were taken into consideration and a final package was submitted to OMB. The collection of information for the current H-2B program under the regulations in effect prior to the effective date of this rule were approved under OMB control number 1205-0015 (Form ETA 750). This Final Rule implements the use of the new information collection, which OMB approved on November 21, 2008 under OMB control number 1205-0466. The Expiration Date is November 30, 2011. The new forms, ETA 9141 and ETA 9142, have a public reporting burden estimated to average 55 minutes for Form ETA 9141 and 2.75 hours for Form ETA 9142 per response or application filed. This paperwork package applies--as does this Final Rule--to the H- 2B, H-1B, H-1B1, H-1C, E-3, and PERM programs. The burden hours associated with the additional programs are a result of the wage determination and retention of document requirements. Under this Final Rule, and the implementation schedule it establishes, employers applying to any of these programs must use the ETA Form 9141, a single, Federal form that replaces the State-specific forms previously used to obtain prevailing wage determinations. There are no additional costs to the employer associated with the implementation of this new form, as costs are defined by the Paperwork Reduction Act. As the Department notes elsewhere in this preamble, the H-1C program was inadvertently removed. Consistent with the proposed rule at 73 FR 29947, May 28, 2008, it was the Department's intention to standardize all forms for better program effectiveness and efficiency in its non-agricultural programs, which necessarily extends also to the H-1C program. For an additional explanation of how the Department calculated the burden hours and related costs, the Paperwork Reduction Act package for this information collection may be obtained from the RegInfo.gov Web site at http://www.reginfo.gov/public/do/PRAMain or by contacting the Department at: Office of Policy Development and Research, Department of Labor, 200 Constitution Ave., NW., Washington, DC 20210 or by phone request to 202-693-3700 (this is not a toll-free number) or by e-mail at DOL_PRA_PUBLIC@dol.gov. The Department received six comments on this section, all related to the H-2B program. One commenter stated that the form ETA 9141 was unnecessarily long and complex and should be simplified. The Department has attempted to shorten the form and make it easier to use. It has been reduced from seven pages to four pages. [[Page 78052]] Three of the comments related to the burden associated with the paperwork requirements. Two final commenters stated that they did not have the funding or staff time to manage the record retention requirements or to process and store the paperwork. None of the commenters specifically addressed the issue of our methodology or assumptions, or the other programs to which the ETA 9141 now applies. The paperwork burden estimate for the form used for the H-2B program under the regulations in effect prior to the effective date of this Final Rule, (form ETA 750--OMB control number 1205-0015) was approximately 1.4 hours. Under this new collection of information, the Department estimates that the burden will be approximately 2.75 hours for Form ETA 9142. We based this calculation on a burden estimate of 1.4 hours for those program requirements that remained the same and allocated approximately 1.35 hours for the additional information requirements. Although the Department did not receive any comments related to the remaining programs (H-1B, H-1B1, E-3, H-1C, and PERM), it notes that only the Form ETA 9141 applies to these programs. This Form will be used in lieu of the State form for submitting a prevailing wage request. Although the burden hours for each State application vary, the Department estimates the burden hours to complete the State forms to be approximately 1.0 hour. As a result, and for the reasons discussed elsewhere in this preamble, the Department does not expect the paperwork burden hours to increase for these programs. In sum, without more persuasive analysis rebutting the analysis used by the Department, we assume our calculations are representative of the actual hourly burden for the new collection, which represents no increase for most programs and a minimal increase for the H-2B program. L. Catalog of Federal Domestic Assistance Number This program is listed in the Catalog of Federal Domestic Assistance at Number 17-273, ``Temporary Labor Certification for Foreign Workers.'' List of Subjects 20 CFR Part 655 Administrative practice and procedure, Foreign workers, Employment, Employment and training, enforcement, Forest and forest products, Fraud, Health professions, Immigration, Labor, Longshore and harbor work, Migrant labor, Passports and visas, Penalties, Reporting and recordkeeping requirements, Unemployment, Wages, Working conditions. 20 CFR Part 656 Administrative practice and procedure, Agriculture, Aliens, Employment, Employment and training, Enforcement, Forest and forest products, Fraud, Guam, Health professions, Immigration, Labor, Passports and visas, Penalties, Reporting and recordkeeping requirements, Students, Unemployment, Wages, Working conditions. For the reasons stated in the preamble, the Department of Labor amends 20 CFR parts 655 and 656 as follows: PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES 1. The authority citation for part 655 is revised 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), 1182(m), (n) and (t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1), Public Law 101-238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), Public Law 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Public Law 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Public Law 103-206, 107 Stat. 2428; sec. 412(e), Public Law 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note); 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). Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184(c), and 1188; and 8 CFR 214.2(h). Subpart A issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b), 1103(a), and 1184(a) and (c); and 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). Subpart C issued under 8 CFR 214.2(h). Subparts D and E authority repealed. Subparts F and G issued under 8 U.S.C. 1288(c) and (d); and sec. 323(c), Public Law 103-206, 107 Stat. 2428. 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; and 8 CFR 214.2(h). Subparts J and K authority repealed. 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). 2. Revise the heading of Part 655 to read as set forth above. 3. Revise subpart A to read as follows: Subpart A--Labor Certification Process and Enforcement of Attestations for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers) Sec. 655.1 Purpose and scope of subpart A. 655.2 Territory of Guam. 655.3 Special procedures. 655.4 Definitions of terms used in this subpart. 655.5 Application Filing Transition. 655.6 Temporary need. 655.7 [Reserved] 655.8 [Reserved] 655.9 [Reserved] 655.10 Determination of prevailing wage for temporary labor certification purposes. 655.11 Certifying officer review of prevailing wage determinations. 655.12 [Reserved] 655.13 [Reserved] 655.14 [Reserved] 655.15 Required pre-filing recruitment. 655.17 Advertising requirements. 655.18 [Reserved] 655.19 [Reserved] 655.20 Applications for temporary employment certification. 655.21 Supporting evidence for temporary need. 655.22 Obligations of H-2B employers. 655.23 Receipt and processing of applications. 655.24 Audits. 655.25 [Reserved] 655.26 [Reserved] 655.27 [Reserved] 655.28 [Reserved] 655.29 [Reserved] 655.30 Supervised recruitment. 655.31 Debarment. 655.32 Labor certification determinations. 655.33 Administrative review. 655.34 Validity of temporary labor certifications. 655.35 Required departure. 655.50 Enforcement process. 655.55 Complaints. 655.60 Violations. 655.65 Remedies for violations. 655.70 WHD Administrator's determination. 655.71 Request for hearing. 655.72 Hearing rules of practice. 655.73 Service of pleadings. 655.74 Conduct of proceedings. 655.75 Decision and order of administrative law judge. 655.76 Appeal of administrative law judge decision. 655.80 Notice to OFLC and DHS. Subpart A--Labor Certification Process and Enforcement of Attestations for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers) Sec. 655.1 Purpose and scope of subpart A. (a) Before granting the petition of an employer to admit nonimmigrant workers on H-2B visas for temporary [[Page 78053]] nonagricultural employment in the United States (U.S.), the Secretary of Homeland Security is required to consult with appropriate agencies regarding the availability of U.S. workers. Immigration and Nationality Act of 1952 (INA), as amended, secs. 101(a)(15)(H)(ii)(b) and 214(c)(1), 8 U.S.C. 1101(a)(15)(H)(ii)(b) and 1184(c)(1). (b) Regulations of the Department of Homeland Security (DHS) for the U.S. Citizenship and Immigration Services (USCIS) at 8 CFR 214.2(h)(6)(iv) require that, except for Guam, the petitioning H-2B employer attach to its petition a determination from the Secretary of Labor (Secretary) that: (1) There are not sufficient U.S. workers available who are capable of performing the temporary services or labor at the time of filing of the petition for H-2B classification and at the place where the foreign worker is to perform the work; and (2) The employment of the foreign worker will not adversely affect the wages and working conditions of U.S. workers similarly employed. (c) This subpart sets forth the procedures governing the labor certification process for the temporary employment of nonimmigrant foreign workers in the U.S. in occupations other than agriculture and registered nursing. (1) This subpart sets forth the procedures through which employers may apply for H-2B labor certifications, as well as the procedures by which such applications are considered and how they are granted or denied. (2) This subpart sets forth the procedures governing the Department's investigatory, inspection, and law enforcement functions to assure compliance with the terms and conditions of employment under the H-2B program. The authority for such functions has been delegated by the Secretary of Homeland Security to the Secretary of Labor and re- delegated within the Department to the Employment Standards Administration (ESA) Wage and Hour Division (WHD). This subpart sets forth the WHD's investigation and enforcement actions. Sec. 655.2 Territory of Guam. Subpart A of this part does not apply to temporary employment in the Territory of Guam, and the Department of Labor (Department or DOL) does not certify to the USCIS of DHS the temporary employment of nonimmigrant foreign workers under H-2B visas, or enforce compliance with the provisions of the H-2B visa program provisions in the Territory of Guam. Pursuant to DHS regulations, 8 CFR 214.2(h)(6)(v) administration of the H-2B temporary labor certification program is performed by the Governor of Guam, or the Governor's designated representative. Sec. 655.3 Special procedures. (a) Systematic process. This subpart provides procedures for the processing of H-2B applications from employers for the certification of employment of nonimmigrant positions in nonagricultural employment. (b) Establishment of special procedures. The Office of Foreign Labor Certification (OFLC) Administrator has the authority to establish or to devise, continue, revise, or revoke special procedures in the form of variances for the processing of certain H-2B applications when employers can demonstrate, upon written application to the OFLC Administrator, that special procedures are necessary. These include special procedures currently in effect for the handling of applications for tree planters and related reforestation workers, professional athletes, boilermakers coming to the U.S. on an emergency basis, and professional entertainers. Prior to making determinations under this paragraph (b), the OFLC Administrator may consult with employer and worker representatives. Sec. 655.4 Definitions of terms used in this subpart. For the purposes of this subpart: Act means the Immigration and Nationality Act or INA, as amended, 8 U.S.C. 1101 et seq. Administrative Law Judge means a person within the Department's Office of Administrative Law Judges appointed pursuant to 5 U.S.C. 3105, or a panel of such persons designated by the Chief Administrative Law Judge from the Board of Alien Labor Certification Appeals established by part 656 of this chapter, which will hear and decide appeals as set forth in Sec. 655.115. Administrator, Office of Foreign Labor Certification (OFLC) means the primary official of the Office of Foreign Labor Certification, ETA, or the Administrator's designee. Administrator, Wage and Hour Division (WHD), Employment Standards Administration means the primary official of the WHD, or the Administrator's designee. Agent means a legal entity or person authorized to act on behalf of the employer for temporary non-agricultural labor certification purposes that is not itself an employer as defined in this subpart. The term ``agent''' specifically excludes associations or other organizations of employers. Applicant means a lawful U.S. worker who is applying for a job opportunity for which an employer has filed an Application for Temporary Employment Certification (Form ETA 9142). Application for Temporary Employment Certification means the Office of Management and Budget (OMB)-approved form submitted by an employer to secure a temporary nonagricultural labor certification determination from DOL. A complete submission of the Application for Temporary Employment Certification includes the form, all valid wage determinations as required by Sec. 655.101(a)(1) and the U.S. worker recruitment report. Area of Intended Employment means the geographic area within normal commuting distance of the place (worksite address) of intended employment of the job opportunity for which the certification is sought. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., average commuting times, barriers to reaching the worksite, quality of regional transportation network, etc.). If the place of intended employment is within a Metropolitan Statistical Area (MSA), including a multistate MSA, any place within the MSA is deemed to be within normal commuting distance of the place of intended employment. The borders of MSAs are not controlling in the identification of the normal commuting area; a location outside of an MSA may be within normal commuting distance of a location that is inside (e.g., near the border of) the MSA. Attorney means any person who is currently a member in good standing of the bar of the highest court of any State, possession, territory, or commonwealth of the United States, or the District of Columbia, and who is not under suspension, debarment or disbarment from practice before any court or the Department, the Board of Immigration Appeals, the immigration judges, or DHS under 8 CFR 292.3, 1003.101. Such a person is permitted to act as an agent or attorney for an employer under this subpart. Board of Alien Labor Certification Appeals (BALCA or Board) means the permanent Board established by part 656 of this chapter, chaired by the Chief Administrative Law Judge, and consisting of Administrative Law Judges assigned to the Department and designated by the Chief Administrative Law Judge to be members of BALCA. [[Page 78054]] The Board is located in Washington, DC, and reviews and decides appeals in Washington, DC. Center Director means the OFLC official to whom the OFLC Administrator has delegated his authority for purposes of National Processing Center (NPC) operations and functions. Certifying Officer (CO) means the OFLC official designated by the Administrator, OFLC with making programmatic determinations on employer-filed applications under the H-2B program. Chief Administrative Law Judge means the chief official of the Department's Office of Administrative Law Judges or the Chief Administrative Law Judge's designee. Date of need means the first date the employer requires services of the H-2B workers as listed on the application. Department of Homeland Security (DHS) means the Federal agency having jurisdiction over certain immigration-related functions, acting through its agencies, including the U.S. Citizenship and Immigration Services. Eligible worker means an individual who is not an unauthorized alien (as defined in sec. 274A(h)(3) of the INA, 8 U.S.C. 1324a(h)(3), or in this paragraph (c)) with respect to the employment in which the worker is engaging. Employee means employee as defined under the general common law of agency. Some of the factors relevant to the determination of employee status include: The hiring party's right to control the manner and means by which the work is accomplished; the skill required to perform the work; the source of the instrumentalities and tools for accomplishing the work; the location of the work; the hiring party's discretion over when and how long to work; and whether the work is part of the regular business of the hiring party. Other applicable factors should be considered and no one factor is dispositive. Employer means: (1) A person, firm, corporation or other association or organization: (i) Has a place of business (physical location) in the U.S. and a means by which it may be contacted; (ii) Has an employer relationship with respect to H-2B employees or related U.S. workers under this part; and (iii) Possesses, for purposes of the filing of an application, a valid Federal Employer Identification Number (FEIN). (2) Where two or more employers each have the definitional indicia of employment with respect to an employee, those employers may be considered to jointly employ that employee. Employment and Training Administration or ETA means the agency within the Department, which includes the OFLC and has been delegated authority by the Secretary to fulfill the Secretary's mandate under the Act. ETA National Processing Center (NPC) means a National Processing Center established by the OFLC for the processing of applications submitted in connection with the Department's mandate pursuant to the INA. Full-time, for purposes of temporary labor certification employment, means 30 or more hours per week, except that where a State or an established practice in an industry has developed a definition of full-time employment for any occupation that is less than 30 hours per week, that definition shall have precedence. H-2B Petition means the form and accompanying documentation required by DHS for employers seeking to employ foreign persons as H-2B nonimmigrant workers. INA means the Immigration and Nationality Act, as amended, 8 U.S.C. 1101 et seq. Job contractor means a person, association, firm, or a corporation that meets the definition of an employer and who contracts services or labor on a temporary basis to one or more employers, which is not an affiliate, branch or subsidiary of the job contractor, and where the job contractor will not exercise any supervision or control in the performance of the services or labor to be performed other than hiring, paying, and firing the workers. Job opportunity means one or more job openings with the petitioning employer for temporary employment at a place in the U.S. to which U.S. workers can be referred. Job opportunities consisting solely of job duties that will be performed totally outside the United States, its territories, possessions, or commonwealths cannot be the subject of an Application for Temporary Employment Certification. Joint employment means that where two or more employers each have sufficient definitional indicia of employment to be considered the employer of an employee, those employers may be considered to jointly employ that employee. An employer in a joint employment relationship to an employee may be considered a ``joint employer'' of that employee. Layoff means any involuntary separation of one or more U.S. employees without cause or prejudice. Metropolitan Statistical Area (MSA) means those geographic entities defined by the U.S. Office of Management and Budget (OMB) for use by Federal statistical agencies in collecting, tabulating, and publishing Federal statistics. A metro area contains a core urban area of 50,000 or more population, and a micro area contains an urban core of at least 10,000 (but less than 50,000) population. Each metro or micro area consists of one or more counties and includes the counties containing the core urban area, as well as any adjacent counties that have a high degree of social and economic integration (as measured by commuting to work) with the urban core. Offered Wage means the highest of the prevailing wage, Federal minimum wage, the State minimum wage, or local minimum wage. Office of Foreign Labor Certification (OFLC) means the organizational component within ETA that provides national leadership and policy guidance and develops regulations and procedures by which it carries out the responsibilities of the Secretary under the INA, as amended, concerning foreign workers seeking admission to the U.S. in order to work under sec. 101(a)(15)(H)(ii)(b) of the INA, as amended. Occupational Employment Statistics Survey (OES) means that program under the jurisdiction of the Bureau of Labor Statistics (BLS) that provides annual wage estimates for occupations at the State and MSA levels. Prevailing Wage Determination (PWD) means the prevailing wage for the position, as described in Sec. 655.10(b), that is the subject of the Application for Temporary Employment Certification. Professional Athlete shall have the meaning ascribed to it in INA sec. 212(a)(5)(A)(iii)(II), which defines ``professional athlete'' as an individual who is employed as an athlete by: (1) A team that is a member of an association of six or more professional sports teams whose total combined revenues exceed $10,000,000 per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage; or (2) Any minor league team that is affiliated with such an association. Representative means an individual employed by or authorized to act on behalf of the employer with respect to the recruitment activities entered into for and attestations made with respect to the Application for Temporary Employment Certification. A representative who interviews and/or considers U.S. workers for the job that is subject of the Application must be the person who normally interviews or [[Page 78055]] considers, on behalf of the employer, applicants for job opportunities such as that offered in the application, but which do not involve labor certifications. Secretary means the Secretary of Labor, the chief official of the U.S. Department of Labor, or the Secretary's designee. Secretary of Homeland Security means the chief official of the Department of Homeland Security or the Secretary of Homeland Security's designee. Secretary of State means the chief official of the U.S. Department of State or the Secretary of State's designee. State Workforce Agency (SWA), formerly known as State Employment Security Agency, means the State government agency that receives funds pursuant to the Wagner-Peyser Act to administer public labor exchange delivered through the State's one-stop delivery system in accordance with the Wagner-Peyser Act. (29 U.S.C. 49 et seq.). Strike means a labor dispute wherein employees engage in a concerted stoppage of work (including stoppage by reason of the expiration of a collective-bargaining agreement) or engage in any concerted slowdown or other concerted interruption of operations. Whether a job opportunity is vacant by reason of a strike or lock out will be determined by evaluating for each position identified as vacant in the Application for Temporary Employment Certification whether the specific vacancy has been caused by the strike or lock out. Successor in Interest means that, in determining whether an employer is a successor in interest, the factors used under Title VII of the Civil Rights Act and the Vietnam Era Veterans' Readjustment Assistance Act will be considered. When considering whether an employer is a successor, the primary consideration will be the personal involvement of the firm's ownership, management, supervisors, and others associated with the firm in the violations resulting in debarment. Normally, wholly new management or ownership of the same business operation, one in which the former management or owner does not retain a direct or indirect interest, will not be deemed to be a successor in interest for purposes of debarment. A determination of whether or not a successor in interest exists is based on the entire circumstances viewed in their totality. The factors to be considered include: (1) Substantial continuity of the same business operations; (2) Use of the same facilities; (3) Continuity of the work force; (4) Similarity of jobs and working conditions; 4 (6) Similarity in machinery, equipment, and production methods; (7) Similarity of products and services; and (8) The ability of the predecessor to provide relief. United States (U.S.), when used in a geographic sense, means the continental United States, Alaska, Hawaii, the Commonwealth of Puerto Rico, and the territories of Guam, the Virgin Islands, and, as of the transition program effective date, as defined in the Consolidated Natural Resources Act of 2008, Public Law 110-229, Title VII, the Commonwealth of the Northern Mariana Islands. United States Citizenship and Immigration Services (USCIS) means the Federal agency within DHS making the determination under the INA whether to grant petitions filed by employers seeking H-2B workers to perform temporary nonagricultural work in the U.S. United States Worker (U.S. Worker) means a worker who is either (1) A citizen or national of the U.S.; or (2) An alien who is lawfully admitted for permanent residence in the U.S., is admitted as a refugee under sec. 207 of the INA, is granted asylum under sec. 208 of the INA, or is an immigrant otherwise authorized (by the INA or by DHS) to be employed in the U.S. Within [number and type] days will, for purposes of determining an employer's compliance with timing requirements with respect to appeals and requests for review, begin to run on the first business day after the Department sends a notice to the employer by means normally assuring next-day delivery, and will end on the day that the employer sends whatever communication is required by these rules back to the Department, as evidenced by a postal mark or other similar receipt. Sec. 655.5 Application Filing Transition. (a) Compliance with these regulations. Except as provided in paragraphs (b) and (c) of this section, employers filing applications for H-2B workers on or after the effective date of these regulations where the date of need for the services or labor to be performed is on or after October 1, 2009, must comply with all of the obligations and assurances in this subpart. SWAs will no longer accept for processing applications filed by employers for H-2B workers for temporary or seasonal nonagricultural services on or after January 18, 2009. (b) Applications filed under former regulations. (1) For applications filed with the SWAs serving the area of intended employment prior to the effective date of these regulations, the SWAs shall continue to process all active applications under the former regulations and transmit all completed applications to the appropriate NPC for review and issuance of a labor certification determination. (2) For applications filed with the SWAs serving the area of intended employment prior to the effective date of these regulations that were completed and transmitted to the NPC, the NPC shall continue to process all active applications under the former regulations and issue a labor certification determination. (c) Applications filed with the NPC under these regulations. Employers filing applications on or after the effective date of these regulations where their date of need for H-2B workers is prior to October 1, 2009, must receive a prevailing wage determination from the SWA serving the area of intended employment. The SWA shall process such requests in accordance with the provisions of Sec. 655.10. Once the employer receives its prevailing wage determination from the SWA, it must conduct all of the pre-filing recruitment steps set forth under this subpart prior to filing an Application for Temporary Employment Certification with the NPC. Sec. 655.6 Temporary need. (a) To use the H-2B program, the employer must establish that its need for nonagricultural services or labor is temporary, regardless of whether the underlying job is permanent or temporary. 8 CFR 214.2(h)(6)(ii). (b) The employer's need is considered temporary if justified to the Secretary as either a one-time occurrence, a seasonal need, a peakload need, or an intermittent need, as defined by the Department of Homeland Security. 8 CFR 214.2(h)(6)(ii)(B). (c) Except where the employer's need is based on a one-time occurrence, the Secretary will, absent unusual circumstances, deny an Application for Temporary Employment Certification where the employer has a recurring, seasonal or peakload need lasting more than 10 months. (d) The temporary nature of the work or services to be performed in applications filed by job contractors will be determined by examining the job contractor's own need for the services or labor to be performed in addition to the needs of each individual employer with [[Page 78056]] whom the job contractor has agreed to provide workers as part of a signed work contract or labor services agreement. (e) The employer filing the application must maintain documentation evidencing the temporary need and be prepared to submit this documentation in response to a Request for Further Information (RFI) from the CO prior to rendering a Final Determination or in the event of an audit examination. The documentation required in this section must be retained by the employer for a period of no less than 3 years from the date of the labor certification. Sec. Sec. 655.7-655.9 [Reserved] Sec. 655.10 Determination of prevailing wage for temporary labor certification purposes. (a) Application process. (1) The employer must request a prevailing wage determination from the NPC in accordance with the procedures established by this regulation. (2) The employer must obtain a prevailing wage determination that is valid either on the date recruitment begins or the date of filing a complete Application for Temporary Employment Certification with the Department. (3) The employer must offer and advertise the position to all potential workers at a wage at least equal to the prevailing wage obtained from the NPC. (b) Determinations. Prevailing wages shall be determined as follows: (1) Except as provided in paragraph (e) of this section, if the job opportunity is covered by a collective bargaining agreement (CBA) that was negotiated at arms' length between the union and the employer, the wage rate set forth in the CBA is considered as not adversely affecting the wages of U.S. workers, that is, it is considered the ``prevailing wage'' for labor certification purposes. (2) If the job opportunity is not covered by a CBA, the prevailing wage for labor certification purposes shall be the arithmetic mean, except as provided in paragraph (b)(4) of this section, of the wages of workers similarly employed at the skill level in the area of intended employment. The wage component of the BLS Occupational Employment Statistics Survey (OES) shall be used to determine the arithmetic mean, unless the employer provides a survey acceptable to OFLC under paragraph (f) of this section. (3) If the job opportunity involves multiple worksites within an area of intended employment and different prevailing wage rates exist for the same opportunity and staff level within the area of intended employment, the prevailing wage shall be based on the highest applicable wage among all relevant worksites. (4) If the employer provides a survey acceptable under paragraph (f) of this section that provides a median but does not provide an arithmetic mean, the prevailing wage applicable to the employer's job opportunity shall be the median of the wages of U.S. workers similarly employed in the area of intended employment. (5) The employer may use a current wage determination in the area determined under the Davis-Bacon Act, 40 U.S.C. 276a et seq., 29 CFR part 1, or the McNamara-O'Hara Service Contract Act, 41 U.S.C. 351 et seq. (6) The NPC will enter its wage determination on the form it uses for these purposes, indicate the source, and return the form with its endorsement to the employer within 30 days of receipt of the request for a prevailing wage determination. The employer must offer this wage (or higher) to both its H-2B workers and any similarly employed U.S. worker hired in response to the recruitment required as part of the application. (c) Similarly Employed. For purposes of this section, ``similarly employed'' means having substantially comparable jobs in the occupational category in the area of intended employment, except that, if a representative sample of workers in the occupational category cannot be obtained in the area of intended employment, similarly employed means: (1) Having jobs requiring a substantially similar level of comparable skills within the area of intended employment; or (2) If there are no substantially comparable jobs in the area of intended employment, having substantially comparable jobs with employers outside of the area of intended employment. (d) Validity period. The NPC must specify the validity period of the prevailing wage, which in no event may be more than 1 year or less than 3 months from the determination date. For employment that is less than one year in duration, the prevailing wage determination shall apply and shall be paid the prevailing wage by the employer, at a minimum, for the duration of the employment. (e) Professional athletes. In computing the prevailing wage for a professional athlete when the job opportunity is covered by professional sports league rules or regulations, the wage set forth in those rules or regulations is considered the prevailing wage (see sec. 212(p)(2) of the INA). (f) Employer-provided wage information. (1) If the job opportunity is not covered by a CBA, or by a professional sports league's rules or regulations, the NPC will consider wage information provided by the employer in making a Prevailing Wage Determination. An employer survey can be submitted either initially or after NPC issuance of a PWD derived from the OES survey. (2) In each case where the employer submits a survey or other wage data for which it seeks acceptance, the employer must provide specific information about the survey methodology, including such items as sample size and source, sample selection procedures, and survey job descriptions, to allow a determination of the adequacy of the data provided and validity of the statistical methodology used in conducting the survey in accordance with guidance issued by the OFLC national office. (3) The survey must be based upon recently collected data: (i) Any published survey must have been published within 24 months of the date of submission, must be the most current edition of the survey, and must be based on data collected not more than 24 months before the publication date. (ii) A survey conducted by the employer must be based on data collected within 24 months of the date it is submitted for consideration. (4) If the employer-provided survey is found not to be acceptable, the NPC shall inform the employer in writing of the reasons the survey was not accepted. (5) The employer, after receiving notification that the survey it provided for consideration is not acceptable, may file supplemental information as provided in paragraph (g) of this section, file a new request for a PWD, appeal under Sec. 655.11, or, if the initial PWD was requested prior to submission of the employer survey, acquiesce to the initial PWD. (g) Submission of supplemental information by employer. (1) If the employer disagrees with the wage level assigned to its job opportunity, or if the NPC informs the employer its survey is not acceptable, or if there is another legitimate basis for such a review, the employer may submit supplemental information to the NPC. (2) The NPC must consider one supplemental submission relating to the employer's survey, the skill level assigned to the job opportunity, or any other legitimate basis for the employer to request such a review. If the NPC does not accept the employer's survey after considering the supplemental information, or affirms its determination concerning the skill level, the NPC must [[Page 78057]] inform the employer, in writing, of the reasons for its decision. (3) The employer may then apply for a new wage determination, appeal under Sec. 655.11, or acquiesce to the initial PWD. (h) The prevailing wage cannot be lower than required by any other law. No PWD for labor certification purposes made under this section permits an employer to pay a wage lower than the highest wage required by any applicable Federal, State, or local law. (i) Retention of Documentation. The employer must retain the PWD for 3 years and submitted to a CO in the event it is requested in an RFI or an audit or to a Wage and Hour representative in the event of a Wage and Hour investigation. Sec. 655.11 Certifying officer review of prevailing wage determinations. (a) Request for review of prevailing wage determinations. Any employer desiring review of a PWD must make a written request for such review within 10 days of the date from when the final PWD was issued. The request for review must be sent to the NPC postmarked no later than 10 days after the determination; clearly identify the PWD for which review is sought; set forth the particular grounds for the request; and include all materials submitted to the NPC for purposes of securing the PWD. (b) NPC Review. Upon the receipt of a written request for review, the NPC shall review the employer's request and accompanying documentation, including any supplementary material submitted by the employer. (c) Designations. The Director of the NPC will determine which CO will review the employer's request for review. (d) Review on the record. The CO shall review the PWD solely on the basis upon which the PWD was made and after review may: (1) Affirm the PWD issued by the NPC; or (2) Modify the PWD. (e) Request for review by BALCA. Any employer desiring review of a CO's decision on a PWD must make a written request for review of the determination by BALCA within 30 calendar days of the date of the decision of the CO. The CO must receive the written request for BALCA review no later than the 30th day after the date of its final determination including the date of the final determination. (1) The request for review, statements, briefs, and other submissions of the parties and amicus curiae must contain only legal arguments and only such evidence that was within the record upon which the decision on the PWD by the NPC was based. (2) The request for review must be in writing and addressed to the CO who made the determination. Upon receipt of a request for a review, the CO must immediately assemble an indexed appeal file in reverse chronological order, with the index on top followed by the most recent document. (3) The CO must send the Appeal File to the Office of Administrative Law Judges, Board of Alien Labor Certification Appeals, 800 K Street, NW., Suite 400-N, Washington, DC 20001-8002. (4) The BALCA shall handle appeals in accordance with Sec. 655.33. Sec. Sec. 655.12-655.14 [Reserved] Sec. 655.15 Required pre-filing recruitment. (a) Time of Filing of Application. An employer may not file an Application for Temporary Employment Certification before all of the pre-filing recruitment steps set forth in this section have been fully satisfied, except where specifically exempted from some or all of those requirements by these regulations or special procedures. Applications submitted not meeting this requirement shall not be accepted for processing. (b) General Attestation Obligation. An employer must attest on the Application for Temporary Employment Certification to having performed all required steps of the recruitment process as specified in this section. (c) Retention of documentation. The employer filing the Application for Temporary Employment Certification must maintain documentation of its advertising and recruitment efforts, including prevailing wage determinations, as required in this subpart and be prepared, upon written request, to submit this documentation in response to an RFI from the CO prior to the CO rendering a Final Determination or in the event of a CO-directed audit examination. The documentation required in this section must be retained by the employer for a period of no less than 3 years from the date of the certification. (d) Recruitment Steps. An employer filing an application must: (1) Obtain a prevailing wage determination from the NPC in accordance with procedures in Sec. 655.10; (2) Submit a job order to the SWA serving the area of intended employment; (3) Publish two print advertisements (one of which must be on a Sunday, except as provided in paragraph (f)(4) of this section); and (4) Where the employer is a party to a collective bargaining agreement governing the job classification that is the subject of the H-2B labor certification application, the employer must formally contact the local union that is party to the collective bargaining agreement as a recruitment source for able, willing, qualified, and available U.S. workers. (e) Job Order. (1) The employer must place an active job order with the SWA serving the area of intended employment no more than 120 calendar days before the employer's date of need for H-2B workers, identifying it as a job order to be placed in connection with a future application for H-2B workers. Unless otherwise directed by the CO, the SWA must keep the job order open for a period of not less than 10 calendar days. Documentation of this step shall be satisfied by maintaining a copy of the SWA job order downloaded from the SWA Internet job listing site, a copy of the job order provided by the SWA, or other proof of publication from the SWA containing the text of the job order and the start and end dates of posting. If the job opportunity contains multiple work locations within the same area of intended employment and the area of intended employment is found in more than one State, the employer shall place a job order with the SWA having jurisdiction over the place where the work has been identified to begin. Upon placing a job order, the SWA receiving the job order under this paragraph shall promptly transmit, on behalf of the employer, a copy of the active job order to all States listed in the application as anticipated worksites. (2) The job order submitted by the employer to the SWA must satisfy all the requirements for newspaper advertisements contained in Sec. 655.17. (f) Newspaper Advertisements. (1) During the period of time that the job order is being circulated for intrastate clearance by the SWA under paragraph (e) of this section, the employer must publish an advertisement on 2 separate days, which may be consecutive, one of which must be a Sunday advertisement (except as provided in paragraph (f)(2) of this section), in a newspaper of general circulation serving the area of intended employment that has a reasonable distribution and is appropriate to the occupation and the workers likely to apply for the job opportunity. Both newspaper advertisements must be published only after the job order is placed for active recruitment by the SWA. (2) If the job opportunity is located in a rural area that does not have a newspaper with a Sunday edition, the [[Page 78058]] employer must, in place of a Sunday edition advertisement, advertise in the regularly published daily edition with the widest circulation in the area of intended employment. (3) The newspaper advertisements must satisfy the requirements contained in Sec. 655.17. The employer must maintain copies of newspaper pages (with date of publication and full copy of advertisement), or tear sheets of the pages of the publication in which the advertisements appeared, or other proof of publication containing the text of the printed advertisements and the dates of publication furnished by the newspaper. (4) If a professional, trade or ethnic publication is more appropriate for the occupation and the workers likely to apply for the job opportunity than a general circulation newspaper, and is the most likely source to bring responses from able, willing, qualified, and available U.S. workers, then the employer may use a professional, trade or ethnic publication in place of one of the newspaper advertisements, but may not replace the Sunday advertisement (or the substitute permitted by paragraph (f)(2) of this section). (g) Labor Organizations. During the period of time that the job order is being circulated for intrastate clearance by the SWA under paragraph (e) of this section, an employer that is already a party to a collective bargaining agreement governing the job classification that is the subject of the H-2B labor certification application must formally contact by U.S. Mail or other effective means the local union that is party to the collective bargaining agreement. An employer governed by this paragraph must maintain dated logs demonstrating that such organizations were contacted and notified of the position openings and whether they referred qualified U.S. worker(s), including number of referrals, or were non-responsive to the employer's request. (h) Layoff. If there has been a layoff of U.S. workers by the applicant employer in the occupation in the area of intended employment within 120 days of the first date on which an H-2B worker is needed as indicated on the submitted Application for Temporary Employment Certification, the employer must document it has notified or will notify each laid-off worker of the job opportunity involved in the application and has considered or will consider each laid-off worker who expresses interest in the opportunity, and the result of the notification and consideration. (i) Referral of U.S. workers. SWAs may only refer for employment individuals for whom they have verified identity and employment authorization through the process for employment verification of all workers that is established by INA sec. 274A(b). SWAs must provide documentation certifying the employment verification that satisfies the standards of INA sec. 274A(a)(5) and its implementing regulations at 8 CFR 274a.6. (j) Recruitment Report. (1) No fewer than 2 calendar days after the last date on which the job order was posted and no fewer than 5 calendar days after the date on which the last newspaper or journal advertisement appeared, the employer must prepare, sign, and date a written recruitment report. The employer may not submit the H-2B application until the recruitment report is completed. The recruitment report must be submitted to the NPC with the application. The employer must retain a copy of the recruitment report for a period of 3 years. (2) The recruitment report must: (i) Identify each recruitment source by name; (ii) State the name and contact information of each U.S. worker who applied or was referred to the job opportunity up to the date of the preparation of the recruitment report, and the disposition of each worker, including any applicable laid-off workers; (iii) If applicable, explain the lawful job-related reason(s) for not hiring any U.S. workers who applied or were referred to the position. (3) The employer must retain r[eacute]sum[eacute]s (if available) of, and evidence of contact with (which may be in the form of an attestation), each U.S. worker who applied or was referred to the job opportunity. Such r[eacute]sum[eacute]s and evidence of contact must be retained along with the recruitment report for a period of no less than 3 years, and must be provided in response to an RFI or in the event of an audit or an investigation. Sec. 655.17 Advertising requirements. All advertising conducted to satisfy the required recruitment steps under Sec. 655.15 before filing the Application for Temporary Employment Certification must meet the requirements set forth in this section and must contain terms and conditions of employment which are not less favorable than those to be offered to the H-2B workers. All advertising must contain the following information: (a) The employer's name and appropriate contact information for applicants to send r[eacute]sum[eacute]s directly to the employer; (b) The geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the services or labor; (c) If transportation to the worksite(s) will be provided by the employer, the advertising must say so; (d) A description of the job opportunity (including the job duties) for which labor certification is sought with sufficient detail to apprise applicants of services or labor to be performed and the duration of the job opportunity; (e) The job opportunity's minimum education and experience requirements and whether or not on-the-job training will be available; (f) The work hours and days, expected start and end dates of employment, and whether or not overtime will be available; (g) The wage offer, or in the event that there are multiple wage offers, the range of applicable wage offers, each of which must not be less than the highest of the prevailing wage, the Federal minimum wage, State minimum wage, or local minimum wage applicable throughout the duration of the certified H-2B employment; and (h) That the position is temporary and the total number of job openings the employer intends to fill. Sec. Sec. 655.18-655.19 [Reserved] Sec. 655.20 Applications for temporary employment certification. (a) Application Filing Requirements. An employer who desires to apply for labor certification of temporary employment for one or more nonimmigrant foreign positions must file a completed Application for Temporary Employment Certification form, and a copy of the recruitment report completed in accordance with Sec. 655.15(j). (b) Filing. An employer must complete the Application for Temporary Employment Certification and send it by U.S. Mail or private mail courier to the NPC. Employers are strongly encouraged to keep receipts of any mailings. The Department will publish a Notice in the Federal Register identifying the address or addresses to which applications must be mailed, and will also post these addresses on the Department's Internet Web site at http://www.foreignlaborcert.doleta.gov/. The form must bear the original signature of the employer (and that of the employer's authorized attorney or agent if the employer is represented by an attorney or agent). The Department [[Page 78059]] may, at a future date, require applications to be filed electronically in addition to or instead of by U.S. Mail or private mail courier. (c) Except where otherwise permitted under Sec. 655.3, an association or other organization of employers is not permitted to file master applications on behalf of its employer-members under the H-2B program. (d) Certification of more than one position may be requested on the application as long as all H-2B workers will perform the same services or labor on the same terms and conditions, in the same occupation, in the same area of intended employment, and during the same period of employment. (e) Except where otherwise permitted under Sec. 655.3, only one Application for Temporary Employment Certification may be filed for worksite(s) within one area of intended employment for each job opportunity with an employer. (f) Where a one-time occurrence lasts longer than one year, but less than 18 months, the employer will be issued a labor certification for the entire period of need. Where a one-time occurrence lasts 18 months or longer, the employer will be required to conduct another labor market for the portion of time beyond 12 months. Sec. 655.21 Supporting evidence for temporary need. (a) Statement of Temporary Need. Each Application for Temporary Employment Certification must include attestations regarding temporary need in the appropriate sections. The employer must include a detailed statement of temporary need containing the following: (1) A description of the employer's business history and activities (i.e., primary products or services) and schedule of operations throughout the year; (2) An explanation regarding why the nature of the employer's job opportunity and number of foreign workers being requested for certification reflect a temporary need; (3) An explanation regarding how the request for temporary labor certification meets one of the regulatory standards of a one-time occurrence, seasonal, peakload, or intermittent need under Sec. 655.6(b) as defined by DHS under 8 CFR 214.2(h)(6)(ii)(B); and (4) If applicable, a statement justifying any increase or decrease in the number of H-2B positions being requested for certification from the previous year. (b) Request for Supporting Evidence. In circumstances where the CO requests evidence or documentation substantiating the employer's temporary need through a RFI under Sec. 655.23(c) to support a Final Determination, or notifies the employer that its application is being audited under Sec. 655.24, the employer must timely furnish the requested supplemental information or evidence or documentation. Failure to provide the information requested or late submissions may be grounds for the denial of the application. All such documentation or evidence becomes part of the record of the application. (c) Retention of documentation. The documentation required in this section and any other supporting evidence justifying the temporary need by the employer filing the Application for Temporary Employment Certification must be retained for a period of no less than 3 years from the date of the certification. Sec. 655.22 Obligations of H-2B employers. An employer seeking H-2B labor certification must attest as part of the Application for Temporary Employment Certification that it will abide by the following conditions of this subpart: (a) The employer is offering terms and working conditions normal to U.S. workers similarly employed in the area of intended employment, meaning that they may not be unusual for workers performing the same activity in the area of intended employment, and which are not less favorable than those offered to the H-2B worker(s) and are not less than the minimum terms and conditions required by this subpart. (b) The specific job opportunity for which the employer is requesting H-2B certification is not vacant because the former occupant(s) is (are) on strike or locked out in the course of a labor dispute involving a work stoppage. (c) The job opportunity is open to any qualified U.S. worker regardless of race, color, national origin, age, sex, religion, handicap, or citizenship, and the employer has conducted the required recruitment, in accordance with the regulations, and has been unsuccessful in locating sufficient numbers of qualified U.S. applicants for the job opportunity for which labor certification is sought. Any U.S. worker applicants were rejected only for lawful, job- related reasons, and the employer must retain records of all rejections. (d) During the period of employment that is the subject of the labor certification application, the employer will comply with applicable Federal, State and local employment-related laws and regulations, including employment-related health and safety laws; (e) The offered wage equals or exceeds the highest of the prevailing wage, the applicable Federal minimum wage, the State minimum wage, and local minimum wage, and the employer will pay the offered wage during the entire period of the approved H-2B labor certification. (f) Upon the separation from employment of H-2B worker(s) employed under the labor certification application, if such separation occurs prior to the end date of the employment specified in the application, the employer will notify the Department and DHS in writing (or any other method specified by the Department or DHS in the Federal Register or the Code of Federal Regulations) of the separation from employment not later than 2 work days after such separation is discovered by the employer. An abandonment or abscondment shall be deemed to begin after a worker fails to report for work at the regularly scheduled time for 5 consecutive working days without the consent of the employer. Employees may be terminated for cause. (g)(1) The offered wage is not based on commissions, bonuses, or other incentives, unless the employer guarantees a wage paid on a weekly, bi-weekly, or monthly basis that equals or exceeds the prevailing wage, or the legal Federal, State, or local minimum wage, whichever is highest. The employer must make all deductions from the worker's paychecks that are required by law. The job offer must specify all deductions not required by law that the employer will make from the worker's paycheck. All deductions must be reasonable. However, an employer subject to the FLSA may not make deductions that would violate the FLSA. (2) The employer has contractually forbidden any foreign labor contractor or recruiter whom the employer engages in international recruitment of H-2B workers to seek or receive payments from prospective employees, except as provided for in DHS regulations at 8 CFR 214.2(h)(5)(xi)(A). This provision does not prohibit employers or their agents from receiving reimbursement for costs that are the responsibility of the worker, such as government required passport or visa fees. (h) The job opportunity is a bona fide, full-time temporary position, the qualifications for which are consistent with the normal and accepted qualifications required by non-H-2B employers in the same or comparable occupations. (i) The employer has not laid off and will not lay off any similarly employed U.S. worker in the occupation that is the subject of the Application for [[Page 78060]] Temporary Employment Certification in the area of intended employment within the period beginning 120 calendar days before the date of need through 120 calendar days after the date of need, except where the employer also attests that it offered the job opportunity that is the subject of the application to those laid off U.S. worker(s) and the U.S. worker(s) either refused the job opportunity or was rejected for the job opportunity only for lawful, job-related reasons. (j) The employer and its attorney or agents have not sought or received payment of any kind from the employee for any activity related to obtaining the labor certification, including payment of the employer's attorneys' or agent fees, Application for Temporary Employment Certification, or recruitment costs. For purposes of this paragraph, payment includes, but is not limited to, monetary payments, wage concessions (including deductions from wages, salary, or benefits), kickbacks, bribes, tributes, in kind payments, and free labor. (k) If the employer is a job contractor, it will not place any H-2B workers employed pursuant to the labor certification application with any other employer or at another employer's worksite unless: (1) The employer applicant first makes a written bona fide inquiry as to whether the other employer has displaced or intends to displace any similarly employed U.S. workers within the area of intended employment within the period beginning 120 days before through 120 calendar days after the date of need, and the other employer provides written confirmation that it has not so displaced and does not intend to displace such U.S. workers, and (2) All worksites are listed on the certified Application for Temporary Employment Certification, including amendments or modifications. (l) The employer will not place any H-2B workers employed pursuant to this application outside the area of intended employment listed on the Application for Temporary Employment Certification unless the employer has obtained a new temporary labor certification from the Department. (m) Unless the H-2B worker will be sponsored by another subsequent employer, the employer will inform H-2B workers of the requirement that they leave the U.S. at the end of the authorized period of stay provided by DHS or separation from the employer, whichever is earlier, as required in Sec. 655.35 of this part (absent any extension or change of such worker's status or grace period pursuant to DHS regulations), and that if dismissed by the employer prior to the end of the period, the employer is liable for return transportation. (n) The dates of temporary need, reason for temporary need, and number of positions being requested for labor certification have been truly and accurately stated on the application. Sec. 655.23 Receipt and processing of applications. (a) Filing Date. Applications received by U.S. Mail or private courier shall be considered filed when determined by the NPC to be complete. Incomplete applications shall not be accepted for processing or assigned a receipt date, but shall be returned by U.S. Mail to the employer or the employer's representative as incomplete. (b) Processing. The CO will review complete applications for an absence of errors that would prevent certification and for compliance with the criteria for certification. The CO will make a determination to certify, deny, or issue a Request for Further Information prior to making a Final Determination on the application. Criteria for certification, as used in this subpart, are whether the employer has: established the need for the nonagricultural services or labor to be performed is temporary in nature; established that the number of worker positions being requested for certification is justified and represent bona fide job opportunities; made all the assurances and met all the obligations required by Sec. 655.22; and complied with all requirements of the program. (c) Request for Further Information. (1) If the CO determines that the employer has made all necessary attestations and assurances, but the application fails to comply with one or more of the criteria for certification in paragraph (b) of this section, the CO must issue a RFI to the employer. The CO will issue the written RFI within 7 calendar days of the receipt of the application, and send it by means normally assuring next-day delivery. (2) The RFI must: (i) Specify the reason(s) why the application is not sufficient to grant temporary labor certification, citing the relevant regulatory standard(s) and/or special procedure(s); (ii) Specify a date, no later than 7 calendar days from the date of the written RFI, by which the supplemental information and documentation must be received by the CO to be considered; and (iii) State that, upon receipt of a response to the written RFI, or expiration of the stated deadline for receipt of the response, the CO will review the existing application as well as any supplemental materials submitted by the employer and issue a Final Determination. If unusual circumstances warrant, the CO may issue one or more additional RFIs prior to issuing a Final Determination. (3) The CO will issue the Final Determination or the additional RFI within 7 business days of receipt of the employer's response, or within 60 days of the employer's date of need, whichever is later. (4) Compliance with an RFI does not guarantee that the employer's application will be certified after submitting the information. The employer's documentation must justify its chosen standard of temporary need or otherwise overcome the stated deficiency in the application. (d) Failure to comply with an RFI, including not providing all documentation within the specified time period, may result in a denial of the application. Such failure to comply with an RFI may also result in a finding by the CO requiring supervised recruitment under Sec. 655.30 in future filings of H-2B temporary labor certification applications. Sec. 655.24 Audits. (a) Discretion. OFLC will conduct audits of H-2B temporary labor certification applications. The applications selected for audit will be chosen within the sole discretion of OFLC. (b) Audit Letter. When an application is selected for audit, the CO shall issue an audit letter to the employer. The audit letter will: (1) State the application has been selected for audit and note documentation that must be submitted by the employer; (2) Specify a date, no fewer than 14 days and no more than 30 days from the date of the audit letter's issuance, by which the required documentation must be received by the CO; and (3) Advise that failure to comply with the audit process may result in a finding by the CO to: (i) Require the employer to conduct supervised recruitment under Sec. 655.30 in future filings of H-2B temporary labor certification applications for a period of up to 2 years, or (ii) Debar the employer from future filings of H-2B temporary labor certification applications as provided in Sec. 655.31. (c) Supplemental information. During the course of the audit examination, the CO may request supplemental information and/or documentation from the employer to complete the audit. [[Page 78061]] (d) Audit violations. If, as a result of the audit, the CO determines the employer failed to produce all required documentation, or determines that the employer made a material misrepresentation with respect to the application, the employer may be required to conduct supervised recruitment under Sec. 655.30 in future filings of H-2B temporary labor certification applications for up to 2 years, or may be subject to debarment pursuant to Sec. 655.31 or other sanctions. The CO may provide the audit findings and underlying documentation to DHS, WHD, or another appropriate enforcement agency. The CO may refer any findings that an employer discouraged an eligible U.S. worker from applying, or failed to hire, discharged, or otherwise discriminated against an eligible U.S. worker, to the Department of Justice, Civil Rights Division, Office of Special Counsel for Unfair Immigration Related Employment Practices. Sec. Sec. 655.25-655.29 [Reserved] Sec. 655.30 Supervised recruitment. (a) Supervised recruitment. Where an employer is found to have violated program requirements, to have made a material misrepresentation to the Department, or to have failed to adequately conduct recruitment activities or failed in any obligation of this part, the CO may require pre-filing supervised recruitment. (b) Requirements. Supervised recruitment shall consist of advertising for the job opportunity or opportunities in accordance with the required recruitment steps outlined under Sec. 655.15, except as otherwise provided below. (1) The CO will direct where the advertisements are to be placed. (2) The employer must supply a draft advertisement and job order to the CO for review and approval no fewer than 150 days before the date on which the foreign worker(s) will commence work unless notified by the CO of the need for Supervised Recruitment less than 150 days before the date of need, in which case the employer must supply the drafts within 30 days of receipt of such notification. (3) Each advertisement must comply with the requirements of Sec. 655.17(a). (4) The advertisement shall be placed in accordance with guidance provided by the CO. (5) The employer will notify the CO when the advertisements are placed. (c) Recruitment report. No fewer than 2 days after the last day of the posting of the job order and no fewer than 5 calendar days after the date on which the last newspaper or journal advertisement appeared, the employer must prepare a detailed written report of the employer's supervised recruitment, signed by the employer as outlined in Sec. 655.15(i). The employer must submit the recruitment report to the CO within 30 days of the date of the first advertisement and must retain a copy for a period of no less than 3 years. The recruitment report must contain a copy of all advertisements and a copy of the SWA job order, including the dates so placed. (d) The CO may refer any findings that an employer or its representative discouraged an eligible U.S. worker from applying, or failed to hire, discharged, or otherwise discriminated against an eligible U.S. worker, to the Department of Justice, Civil Rights Division, Office of Special Counsel for Unfair Immigration Related Employment Practices. Sec. 655.31 Debarment. (a) The Administrator, OFLC may not issue future labor certifications under this subpart to an employer and any successor in interest to the debarred employer, subject to the time limits set forth in paragraph (c) of this section, if: (1) The Administrator, OFLC finds that the employer substantially violated a material term or condition of its temporary labor certification with respect to the employment of domestic or nonimmigrant workers; and (2) The Administrator, OFLC issues a Notice of Intent to Debar no later than 2 years after the occurrence of the violation. (b) The Administrator, OFLC may not issue future labor certifications under this subpart to an employer represented by an agent or attorney, subject to the time limits set forth in paragraph (c) of this section, if: (1) The agent or attorney participated in, had knowledge of, or had reason to know of, the employer's substantial violation; and (2) The Administrator issues the agent or attorney a Notice of Intent to Debar no later than 2 years after the occurrence of the violation. (c) No employer, attorney, or agent may be debarred under this subpart for more than 3 years. (d) For the purposes of this section, a substantial violation includes: (1) A pattern or practice of acts of commission or omission on the part of the employer or the employer's agent that: (i) Are significantly injurious to the wages or benefits offered under the H-2B program or working conditions of a significant number of the employer's U.S. or H-2B workers; (ii) Reflect a significant failure to offer employment to each qualified domestic worker who applied for the job opportunity for which certification was being sought, except for lawful job-related reasons; (iii) Reflect a significant failure to comply with the employer's obligations to recruit U.S. workers as set forth in this subpart; (iv) Reflect a significant failure to comply with the RFI or audit process pursuant to Sec. Sec. 655.23 or 655.24; (v) Reflect the employment of an H-2B worker outside the area of intended employment, or in an activity/activities, not listed in the job order (other than an activity minor and incidental to the activity/ activities listed in the job order), or after the period of employment specified in the job order and any approved extension; or (vi) Reflect a significant failure to comply with the supervised recruitment process pursuant to Sec. 655.30. (2) Fraud involving the Application for Temporary Employment Certification or a response to an audit; (3) A significant failure to cooperate with a DOL investigation or with a DOL official performing an investigation, inspection, or law enforcement function under this subpart; (4) A significant failure to comply with one or more sanctions or remedies imposed by the ESA for violation(s) of obligations under this subpart found by that agency (if applicable), or with one or more decisions or orders of the Secretary or a court order secured by the Secretary; or (5) A single heinous act showing such flagrant disregard for the law that future compliance with program requirements cannot reasonably be expected. (e) DOL procedures for debarment under this section will be as follows: (1) The Administrator, OFLC will send to the employer, attorney, or agent a Notice of Intent to Debar by means normally ensuring next-day delivery, which will contain a detailed statement of the grounds for the proposed debarment. The employer, attorney, or agent may submit evidence in rebuttal within 14 calendar days of the date the notice is issued. The Administrator, OFLC must consider all relevant evidence presented in deciding whether to debar the employer, attorney, or agent. (2) If rebuttal evidence is not timely filed by the employer, attorney, or agent, the Notice of Intent to Debar will become the final decision of the Secretary and take effect immediately at the end of the 14-day period. [[Page 78062]] (3) If, after reviewing the employer's timely filed rebuttal evidence, the Administrator, OFLC determines that the employer, attorney, or agent more likely than not meets one or more of the bases for debarment under Sec. 655.31(d), the Administrator, OFLC will notify the employer, by means normally ensuring next-day delivery, within 14 calendar days after receiving such timely filed rebuttal evidence, of his/her final determination of debarment and of the employer, attorney, or agent's right to appeal. (4) The Notice of Debarment must be in writing, must state the reason for the debarment finding, including a detailed explanation of the grounds for and the duration of the debarment, and must offer the employer, attorney, or agent an opportunity to request a hearing. The notice must state that to obtain such a review or hearing, the debarred party must, within 30 calendar days of the date of the notice file a written request to the Chief Administrative Law Judge, United States Department of Labor, 800 K Street, NW., Suite 400-N, Washington, DC 20001-8002, and simultaneously serve a copy to the Administrator, OFLC. The debarment will take effect 30 days from the date the Notice of Debarment is issued, unless a request for a hearing is properly filed within 30 days from the date the Notice of Debarment is issued. The timely filing of a request for a hearing stays the debarment pending the outcome of the appeal. (5)(i) Hearing. Within 10 days of receipt of the request for a hearing, the Administrator, OFLC will send a certified copy of the ETA case file to the Chief Administrative Law Judge by means normally assuring next-day delivery. The Chief Administrative Law Judge will immediately assign an ALJ to conduct the hearing. The procedures in 29 CFR part 18 apply to such hearings, except that the request for a hearing will not be considered to be a complaint to which an answer is required. (ii) Decision. After the hearing, the ALJ must affirm, reverse, or modify the Administrator, OFLC 's determination. The ALJ's decision must be provided immediately to the employer, Administrator, OFLC, DHS, and DOS by means normally assuring next-day delivery. The ALJ's decision is the final decision of the Secretary, unless either party, within 30 calendar days of the ALJ's decision, seeks review of the decision with the Administrative Review Board (ARB). (iii) Review by the ARB. (A) Any party wishing review of the decision of an ALJ must, within 30 days of the decision of the ALJ, petition the ARB to review the decision. Copies of the petition must be served on all parties and on the ALJ. The ARB must decide whether to accept the petition within 30 days of receipt. If the ARB declines to accept the petition or if the ARB does not issue a notice accepting a petition within 30 days after the receipt of a timely filing of the petition, the decision of the ALJ shall be deemed the final agency action. If a petition for review is accepted, the decision of the ALJ shall be stayed unless and until the ARB issues an order affirming the decision. The ARB must serve notice of its decision to accept or not to accept the petition upon the ALJ and upon all parties to the proceeding in person or by certified mail. (B) Upon receipt of the ARB's notice to accept the petition, the Office of Administrative Law Judges shall promptly forward a copy of the complete hearing record to the ARB. (C) Where the ARB has determined to review such decision and order, the ARB shall notify each party of: (1) The issue or issues raised; (2) The form in which submissions shall be made (i.e., briefs, oral argument, etc.); and (3) The time within which such presentation shall be submitted. (D) The ARB's final decision must be issued within 90 days from the notice granting the petition and served upon all parties and the ALJ, in person or by certified mail. If the ARB fails to provide a decision within 90 days from the notice granting the petition, the ALJ's decision will be the final decision of the Secretary. (f) Inter-Agency Reporting. After completion of the appeal process, DOL will inform DHS and other appropriate enforcement agencies of the findings and provide a copy of the Notice of Debarment. Sec. 655.32 Labor certification determinations. (a) COs. The Administrator, OFLC, is the Department's National CO. The Administrator, and the CO(s) in the NPC (by virtue of delegation from the Administrator), have the authority to certify or deny applications for temporary employment certification under the H-2B nonimmigrant classification. If the Administrator directs that certain types of temporary labor certification applications or specific applications under the H-2B nonimmigrant classification be handled by the National OFLC, the Director of the Chicago NPC will refer such applications to the Administrator. (b) Determination. The CO will make a determination either to grant or deny the Application for Temporary Employment Certification. The CO will grant the application if and only if the employer has met all the requirements of this subpart, including the criteria for certification defined in Sec. 655.23(b), thus demonstrating that an insufficient number of qualified U.S. workers are available for the job opportunity for which certification is sought and the employment of the H-2B workers will not adversely affect the benefits, wages, and working conditions of similarly employed U.S. workers. (c) Notice. The CO will notify the employer in writing (either electronically or by U.S. Mail) of the labor certification determination. (d) Approved certification. If temporary labor certification is granted, the CO must send the certified Application for Temporary Employment Certification and a Final Determination letter to the employer, or, if appropriate, to the employer's agent or attorney with a copy to the employer. The Final Determination letter will notify the employer to file the certified application and any other documentation required by USCIS with the appropriate USCIS office. (e) Denied certification. If temporary labor certification is denied, the Final Determination letter will: (1) State the reason(s) certification is denied, citing the relevant regulatory standards and/or special procedures; (2) If applicable, address the availability of U.S. workers in the occupation as well as the prevailing benefits, wages, and working conditions of similarly employed U.S. workers in the occupation and/or any applicable special procedures; (3) Offer the employer an opportunity to request administrative review of the denial available under Sec. 655.33, or to file a new application in accordance with specific instructions provided by the CO; and (4) State that if the employer does not request administrative review in accordance with Sec. 655.33, the denial is final and the Department will not further consider that application for temporary alien nonagricultural labor certification. (f) Partial Certification. The CO may, in his/her discretion, and to ensure compliance with all statutory and regulatory requirements, issue a partial certification, reducing either the period of need, the number of H-2B positions being requested, or both, based upon information the CO receives in the course of processing the temporary labor certification application, an RFI, or otherwise. If a partial labor certification [[Page 78063]] is issued, the Final Determination letter will: (1) State the reason(s) for which either the period of need and/or the number of H-2B positions requested has been reduced, citing the relevant regulatory standards and/or special procedures; (2) If applicable, address the availability of U.S. workers in the occupation; (3) Offer the employer an opportunity to request administrative review of the partial labor certification available under Sec. 655.33; and (4) State that if the employer does not request administrative review in accordance with Sec. 655.33, the partial labor certification is final and the Department will not further consider that application for temporary nonagricultural labor certification. Sec. 655.33 Administrative review. (a) Request for review. If a temporary labor certification is denied, in whole or in part, under Sec. 655.32, the employer may request review of the denial by the BALCA. The request for review: (1) Must be sent to the BALCA, with a copy simultaneously sent to the CO who denied the application, within 10 calendar days of the date of determination; (2) Must clearly identify the particular temporary labor certification determination for which review is sought; (3) Must set forth the particular grounds for the request; (4) Must include a copy of the Final Determination; and (5) May contain only legal argument and such evidence as was actually submitted to the CO in support of the application. (b) Upon the receipt of a request for review, the CO shall, within 5 business days assemble and submit the Appeal File using means to ensure same day or overnight delivery, to the BALCA, the employer, and the Associate Solicitor for Employment and Training Legal Services, Office of the Solicitor, U.S. Department of Labor. (c) Within 5 business days of receipt of the Appeal File, the counsel for the CO may submit, using means to ensure same day or overnight delivery, a brief in support of the CO's decision. (d) The Chief Administrative Law Judge may designate a single member or a three member panel of the BALCA to consider a particular case. (e) The BALCA must review a denial of temporary labor certification only on the basis of the Appeal File, the request for review, and any legal briefs submitted and must: (1) Affirm the denial of the temporary labor certification; or (2) Direct the CO to grant the certification; or (3) Remand to the CO for further action. (f) The BALCA should notify the employer, the CO, and counsel for the CO of its decision within 5 business days of the submission of the CO's brief or 10 days after receipt of the Appeal File, whichever is earlier, using means to ensure same day or overnight delivery. Sec. 655.34 Validity of temporary labor certifications. (a) Validity Period. A temporary labor certification is valid only for the period of time between the beginning and ending dates of employment, as certified by the OFLC Administrator on the Application for Temporary Employment Certification. The certification expires on the last day of authorized employment. (b) Scope of Validity. A temporary labor certification is valid only for the number of H-2B positions, the area of intended employment, the specific services or labor to be performed, and the employer specified on the certified Application for Temporary Employment Certification and may not be transferred from one employer to another. (c) Amendments to Applications. (1) Applications may be amended at any time, before the CO's certification determination, to increase the number of positions requested in the initial application by not more than 20 percent (50 percent for employers requesting less than 10 positions) without requiring an additional recruitment period for U.S. workers. Requests for increases above the percent prescribed, without additional recruitment, may be approved by the CO only when the request is submitted in writing, the need for additional workers could not have been reasonably foreseen, and the employer's services or products will be in jeopardy prior to the time that new H-2B workers could be secured. (2) Applications may be amended to make minor changes in the period of employment, only when a written request is submitted to the CO and written approval obtained in advance. In considering whether to approve the request, the CO will review the reason(s) for the request, determine whether the reason(s) are on the whole justified, and take into account the effect(s) of a decision to approve on the adequacy of the underlying test of the domestic labor market for the job opportunity. (3) Other amendments to the application, including elements of the job offer and the place of work, may be requested, in writing, and will be granted if the CO determines the proposed amendment(s) are justified and will have no significant effect upon the CO's ability to make the labor certification determination required under Sec. 655.32. (4) The CO may change the date of need to reflect an amended date when delays occur in the adjudication of the Application for Temporary Employment Certification, through no fault of the employer, and the certification would otherwise become valid after the initial date of need. Sec. 655.35 Required departure. (a) Limit to worker's stay. As defined further in DHS regulations, a temporary labor certification shall limit the authorized period of stay for any H-2B worker whose admission is based upon it. 8 CFR 214.2(h)(13). A foreign worker may not remain in the U.S. beyond the validity period of admission by DHS in H-2B status nor beyond separation from employment, whichever occurs first, absent any extension or change of such worker's status or grace period pursuant to DHS regulations. (b) Notice to worker. Upon establishment of a pilot program by DHS for registration of departure, the employer must notify any H-2B worker starting work at a job opportunity for which the employer has obtained labor certification that the H-2B worker, when departing the U.S. by land at the conclusion of employment as described in paragraph (a) of this section, must register such departure at the place and in the manner prescribed by DHS. This requirement will apply only to H-2B foreign workers entering from ports of entry participating in the DHS pilot program. Sec. 655.50 Enforcement process. (a) Authority of the WHD Administrator. The WHD Administrator shall perform all the Secretary's investigative and enforcement functions under secs. 1101(a)(15)(H)(ii)(b), 103(a)(6), and 214(c) of the INA, pursuant to the delegation of authority from the Secretary of Homeland Security to the Secretary of Labor. (b) Conduct of investigations. The Administrator, WHD, shall, either pursuant to a complaint or otherwise, conduct such investigations as may, in the judgment of the Administrator, be appropriate, and in connection therewith, may enter and inspect such places and such records (and make transcriptions or copies thereof), question such persons, and gather such information as deemed necessary by the Administrator to determine compliance [[Page 78064]] regarding the matters which are the subject of investigation. (c) Employer cooperation/availability of records. An employer shall at all times cooperate in administrative and enforcement proceedings. An employer being investigated shall make available to the WHD Administrator such records, information, persons, and places as the Administrator deems appropriate to copy, transcribe, question, or inspect. Where the records are maintained at a central recordkeeping office, other than in the place or places of employment, such records must be made available for inspection and copying within 72 hours following notice from the Secretary, or a duly authorized and designated representative. No employer or representative or agent of an employer subject to the provisions of secs. 1101(a)(15)(H)(ii)(b) and 214(c) of the INA and/or of this subpart shall interfere with any official of the Department who is performing an investigation, inspection, or law enforcement function pursuant to 8 U.S.C. 1101(a)(15)(H)(ii)(b) or 1184(c). Any such interference shall be a violation of the labor certification application and of this subpart, and the Administrator may take such further actions as the Administrator considers appropriate. (Federal criminal statutes prohibit certain interference with a Federal officer in the performance of official duties. 18 U.S.C. 111 and 18 U.S.C. 1114.) (d) Confidentiality. The WHD Administrator shall, to the extent possible under existing law, protect the confidentiality of any person who provides information to the Department in confidence in the course of an investigation or otherwise under this subpart. Sec. 655.60 Violations. The WHD Administrator, through investigation, shall determine whether an employer has-- (a) Filed a petition with ETA that willfully misrepresents a material fact. (b) Substantially failed to meet any of the conditions of the labor certification application attested to, as listed in Sec. 655.22, or any of the conditions of the DHS Form I-129, Petition for a Nonimmigrant Worker for an H-2B worker in 8 CFR 214.2(h). (c) Misrepresented a material fact to the State Department during the visa application process. Sec. 655.65 Remedies for violations. (a) Upon determining that an employer has willfully failed to pay wages, in violation of the attestation required by Sec. 655.22(e) or willfully required employees to pay for fees or expenses prohibited by Sec. 655.22(j), or willfully made impermissible deductions from pay as provided in Sec. 655.22(g), the WHD Administrator may assess civil money penalties that are equal to the difference between the amount that should have been paid and the amount that actually was paid to such nonimmigrant(s), not to exceed $10,000. (b) Upon determining that an employer has terminated by layoff or otherwise any employee described in Sec. 622.55(k) of this part, within the period described in that section, the Administrator may assess civil money penalties that are equal to the wages that would have been earned but for the layoff at the H-2B rate for that period, not to exceed $10,000. No civil money penalty shall be assessed, however, if the employee refused the job opportunity, or was terminated for lawful, job-related reasons. (c) The Administrator may assess civil money penalties in an amount not to exceed $10,000 per violation for any substantial failure to meet the conditions provided in the H-2B Application for Temporary Employment Certification or the DHS Form I-129, Petition for a Nonimmigrant Worker for an H-2B worker or successor form, or any willful misrepresentation in the application or petition, or a failure to cooperate with a Department audit or investigation. (d) Substantial failure in paragraph (b) of this section shall mean a willful failure that constitutes a significant deviation from the terms and conditions of the labor condition application or the DHS Form I-129, Petition for a Nonimmigrant Worker for an H-2B worker or successor form. (e) For purposes of this subpart, ``willful failure'' means a knowing failure or a reckless disregard with respect to whether the conduct was contrary to sec. 214(c) of the INA, or this subpart. See McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988); see also Trans World Airlines v. Thurston, 469 U.S. 111 (1985). (f) The provisions of this subpart become applicable upon the date that the employer's labor condition application is certified and/or upon the date employment commences, whichever is earlier. The employer's submission and signature on the labor certification application and DHS Form I-129, Petition for a Nonimmigrant Worker for an H-2B worker or successor form constitutes the employer's representation that the statements on the application are accurate and its acknowledgment and acceptance of the obligations of the program. The employer's acceptance of these obligations is re-affirmed by the employer's submission of the petition (Form I-129), supported by the labor certification. (g) In determining the amount of the civil money penalty to be assessed pursuant to paragraphs (b) and (c) of this section, the WHD Administrator shall consider the type of violation committed and other relevant factors. In determining the level of penalties to be assessed, the highest penalties shall be reserved for willful failures to meet any of the conditions of the application that involve harm to U.S. workers. Other factors which may be considered include, but are not limited to, the following: (1) Previous history of violation, or violations, by the employer under the INA and this subpart, and 8 CFR 214.2; (2) The number of U.S. or H-2B workers employed by the employer and affected by the violation or violations; (3) The gravity of the violation or violations; (4) Efforts made by the employer in good faith to comply with the INA and regulatory provisions of this subpart and at 8 CFR 214.2(h); (5) The employer's explanation of the violation or violati ons; (6) The employer's commitment to future compliance; and (7) The extent to which the employer achieved a financial gain due to the violation, or the potential financial loss to the employer's workers. (h) Disqualification from approval of petitions. Where the WHD Administrator finds a substantial failure to meet any conditions of the application or in a DHS Form I-129, or a willful misrepresentation of a material fact in an application or in a DHS Form I-129, as those terms are defined in Sec. 655.31, the Administrator may recommend that ETA debar the employer for a period of no less than 1 year, and no more than 3 years. (i) If the WHD Administrator finds a violation of the provisions specified in this subpart, the Administrator may impose such other administrative remedies as the Administrator determines to be appropriate, including reinstatement of displaced U.S. workers, or other appropriate legal or equitable remedies. If the WHD Administrator finds that an employer has not paid wages at the wage level specified under the application and required by Sec. 655.22(e), the Administrator may require the employer to provide for payment of such amounts of back pay as may be required to comply with the requirements of Sec. 655.22(e). [[Page 78065]] (j) The civil money penalties determined by the WHD Administrator to be appropriate are due for payment within 30 days of the assessment by the Administrator, or upon the decision by an administrative law judge where a hearing is timely requested, or upon the decision by the Secretary where review is granted. The employer shall remit the amount of the civil money penalty by certified check or money order made payable to the order of ``Wage and Hour Division, Labor.'' The remittance shall be delivered or mailed to the Wage and Hour Division office in the manner directed in the Administrator's notice of determination. The payment or performance of any other remedy prescribed by the Administrator shall follow procedures established by the Administrator. (k) The Federal Civil Penalties Inflation Adjustment Act of 1990, as amended (28 U.S.C. 2461 note), requires that inflationary adjustments to civil money penalties in accordance with a specified cost-of-living formula be made, by regulation, at least every 4 years. The adjustments are to be based on changes in the Consumer Price Index for all Urban Consumers (CPI-U) for the U.S. City Average for All Items. The adjusted amounts will be published in the Federal Register. The amount of the penalty in a particular case will be based on the amount of the penalty in effect at the time the violation occurs. Sec. 655.70 WHD Administrator's determination. (a) The WHD Administrator's determination shall be served on the employer by personal service or by certified mail at the employer's last known address. Where service by certified mail is not accepted by the employer, the Administrator may exercise discretion to serve the determination by regular mail. (b) The WHD Administrator shall file with the Chief Administrative Law Judge, U.S. Department of Labor, a copy of the Administrator's determination. (c) The WHD Administrator's written determination shall: (1) Set forth the determination of the Administrator and the reason or reasons therefore, and in the case of a finding of violation(s) by an employer, prescribe the amount of any back wages and civil money penalties assessed and the reason therefor. (2) Inform the employer that a hearing may be requested pursuant to Sec. 655.71. (3) Inform the employer that in the absence of a timely request for a hearing, received by the Chief Administrative Law Judge within 15 calendar days of the date of the determination, the determination of the Administrator shall become final and not appealable. (4) Set forth the procedure for requesting a hearing, give the addresses of the Chief Administrative Law Judge (with whom the request must be filed) and the representative(s) of the Solicitor of Labor (upon whom copies of the request must be served). (5) Where appropriate, inform the employer that the Administrator will notify ETA and DHS of the occurrence of a violation by the employer. Sec. 655.71 Request for hearing. (a) An employer desiring review of a determination issued under Sec. 655.70, including judicial review, shall make a request for such an administrative hearing in writing to the Chief Administrative Law Judge at the address stated in the notice of determination. In such a proceeding, the Administrator shall be the prosecuting party, and the employer shall be the respondent. If such a request for an administrative hearing is timely filed, the WHD Administrator's determination shall be inoperative unless and until the case is dismissed or the Administrative Law Judge issues an order affirming the decision. (b) No particular form is prescribed for any request for hearing permitted by this section. However, any such request shall: (1) Be dated; (2) Be typewritten or legibly written; (3) Specify the issue or issues stated in the notice of determination giving rise to such request; (4) State the specific reason or reasons why the employer believes such determination is in error; (5) Be signed by the employer making the request or by an authorized representative of such employer; and (6) Include the address at which such employer or authorized representative desires to receive further communications relating thereto. (c) The request for such hearing must be received by the Chief Administrative Law Judge, at the address stated in the WHD Administrator's notice of determination, no later than 15 calendar days after the date of the determination. An employer which fails to meet this 15-day deadline for requesting a hearing may thereafter participate in the proceedings only by consent of the administrative law judge. (d) The request may be filed in person, by facsimile transmission, by certified or regular mail, or by courier service. For the requesting employer's protection, if the request is by mail, it should be by certified mail. If the request is by facsimile transmission, the original of the request, signed by the employer or authorized representative, shall be filed within 10 days. (e) Copies of the request for a hearing shall be sent by the employer or authorized representative to the WHD official who issued the WHD Administrator's notice of determination, and to the representative(s) of the Solicitor of Labor identified in the notice of determination. Sec. 655.72 Hearing rules of practice. (a) Except as specifically provided in this subpart, and to the extent they do not conflict with the provisions of this subpart, the ``Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges'' established by the Secretary at 29 CFR part 18 shall apply to administrative proceedings under this subpart. (b) As provided in the Administrative Procedure Act, 5 U.S.C. 556, any oral or documentary evidence may be received in proceedings under this part. The Federal Rules of Evidence and subpart B of the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges (29 CFR part 18, subpart B) shall not apply, but principles designed to ensure production of relevant and probative evidence shall guide the admission of evidence. The administrative law judge may exclude evidence which is immaterial, irrelevant, or unduly repetitive. Sec. 655.73 Service of pleadings. (a) Under this subpart, a party may serve any pleading or document by regular mail. Service on a party is complete upon mailing to the last known address. No additional time for filing or response is authorized where service is by mail. In the interest of expeditious proceedings, the administrative law judge may direct the parties to serve pleadings or documents by a method other than regular mail. (b) Two copies of all pleadings and other documents in any administrative law judge proceeding shall be served on the attorneys for the WHD Administrator. One copy shall be served on the Associate Solicitor, Division of Fair Labor Standards, Office of the Solicitor, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-2716, Washington, DC 20210, and one copy shall be served on the attorney representing the Administrator in the proceeding. (c) Time will be computed beginning with the day following service and includes the last day of the period [[Page 78066]] unless it is a Saturday, Sunday, or Federally-observed holiday, in which case the time period includes the next business day. Sec. 655.74 Conduct of proceedings. (a) Upon receipt of a timely request for a hearing filed pursuant to and in accordance with Sec. 655.71, the Chief Administrative Law Judge shall promptly appoint an administrative law judge to hear the case. (b) The administrative law judge shall notify all parties of the date, time and place of the hearing. All parties shall be given at least 14 calendar days notice of such hearing. (c) The administrative law judge may prescribe a schedule by which the parties are permitted to file a prehearing brief or other written statement of fact or law. Any such brief or statement shall be served upon each other party. Post-hearing briefs will not be permitted except at the request of the administrative law judge. When permitted, any such brief shall be limited to the issue or issues specified by the administrative law judge, shall be due within the time prescribed by the administrative law judge, and shall be served on each other party. Sec. 655.75 Decision and order of administrative law judge. (a) The administrative law judge shall issue a decision. If any party desires review of the decision, including judicial review, a petition for Administrative Review Board (Board) review thereof shall be filed as provided in Sec. 655.76. If a petition for review is filed, the decision of the administrative law judge shall be inoperative unless and until the Board issues an order affirming the decision, or unless and until 30 calendar days have passed after the Board's receipt of the petition for review and the Board has not issued notice to the parties that the Board will review the administrative law judge's decision. (b) The decision of the administrative law judge shall include a statement of findings and conclusions, with reasons and basis therefore, upon each material issue presented on the record. The decision shall also include an appropriate order which may affirm, deny, reverse, or modify, in whole or in part, the determination of the Administrator, WHD; the reason or reasons for such order shall be stated in the decision. (c) In the event that the WHD Administrator assesses back wages for wage violation(s) of Sec. 655.22(e), (g), or (j) based upon a PWD obtained by the Administrator from OFLC during the investigation and the administrative law judge determines that the Administrator's request was not warranted, the administrative law judge shall remand the matter to the Administrator for further proceedings on the Administrator's determination. If there is no such determination and remand by the administrative law judge, the administrative law judge shall accept as final and accurate the wage determination obtained from OFLC or, in the event the employer filed a timely appeal under Sec. 655.11, the final wage determination resulting from that process. Under no circumstances shall the administrative law judge determine the validity of the wage determination or require submission into evidence or disclosure of source data or the names of establishments contacted in developing the survey which is the basis for the PWD. (d) The administrative law judge shall not render determinations as to the legality of a regulatory provision or the constitutionality of a statutory provision. (e) The decision shall be served on all parties in person or by certified or regular mail. Sec. 655.76 Appeal of administrative law judge decision. (a) The WHD Administrator or an employer desiring review of the decision and order of an administrative law judge, including judicial review, shall petition the Department's Administrative Review Board (Board) to review the decision and order. To be effective, such petition shall be received by the Board within 30 calendar days of the date of the decision and order. Copies of the petition shall be served on all parties and on the administrative law judge. (b) No particular form is prescribed for any petition for the Board's review permitted by this subpart. However, any such petition shall: (1) Be dated; (2) Be typewritten or legibly written; (3) Specify the issue or issues stated in the administrative law judge decision and order giving rise to such petition; (4) State the specific reason or reasons why the party petitioning for review believes such decision and order are in error; (5) Be signed by the party filing the petition or by an authorized representative of such party; (6) Include the address at which such party or authorized representative desires to receive further communications relating thereto; and (7) Attach copies of the administrative law judge's decision and order, and any other record documents which would assist the Board in determining whether review is warranted. (c) Whenever the Board determines to review the decision and order of an administrative law judge, a notice of the Board's determination shall be served upon the administrative law judge, upon the Office of Administrative Law Judges, and upon all parties to the proceeding within 30 calendar days after the Board's receipt of the petition for review. If the Board determines that it will review the decision and order, the order shall be inoperative unless and until the Board issues an order affirming the decision and order. (d) Upon receipt of the Board's notice, the Office of Administrative Law Judges shall within 15 calendar days forward the complete hearing record to the Board. (e) The Board's notice shall specify: (1) The issue or issues to be reviewed; (2) The form in which submissions shall be made by the parties (e.g., briefs); and (3) The time within which such submissions shall be made. (f) All documents submitted to the Board shall be filed with the Administrative Review Board, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S-5220, Washington, DC 20210. An original and two copies of all documents shall be filed. Documents are not deemed filed with the Board until actually received by the Board. All documents, including documents filed by mail, shall be received by the Board either on or before the due date. (g) Copies of all documents filed with the Board shall be served upon all other parties involved in the proceeding. (h) The Board's final decision shall be served upon all parties and the administrative law judge. Sec. 655.80 Notice to OFLC and DHS. (a) The WHD Administrator shall, as appropriate, notify DHS and OFLC of the final determination of a violation and recommend that DHS not approve petitions filed by an employer. The Administrator's notification will address the type of violation committed by the employer and the appropriate statutory period for disqualification of the employer from approval of petitions. (b) The Administrator shall notify DHS and OFLC upon the earliest of the following events: (1) Where the Administrator determines that there is a basis for a finding of violation by an employer, and no timely request for hearing is made; or (2) Where, after a hearing, the administrative law judge issues a [[Page 78067]] decision and order finding a violation by an employer, and no timely petition for review is filed with the Department's Administrative Review Board (Board); or (3) Where a timely petition for review is filed from an administrative law judge's decision finding a violation and the Board either declines within 30 days to entertain the appeal, or reviews and affirms the administrative law judge's determination; or (4) Where the administrative law judge finds that there was no violation by an employer, and the Board, upon review, issues a decision holding that a violation was committed by an employer. 4. Amend Sec. 655.715 by adding a definition for the ``Center Director'' to read as follows: Sec. 655.715 Definitions. * * * * * Center Director means the Department official to whom the Administrator has delegated his authority for purposes of NPC operations and functions. * * * * * 5. Amend Sec. 655.731 by revising paragraphs (a)(2) introductory text, (a)(2)(ii), (b)(3)(iii)(A), and (d)(2) and (3) to read as follows: Sec. 655.731 What is the first LCA requirement regarding wages? * * * * * (a) * * * (2) The prevailing wage for the occupational classification in the area of intended employment must be determined as of the time of filing the application. The employer shall base the prevailing wage on the best information available as of the time of filing the application. Except as provided in this section, the employer is not required to use any specific methodology to determine the prevailing wage and may utilize a wage obtained from an OFLC NPC (OES), an independent authoritative source, or other legitimate sources of wage data. One of the following sources shall be used to establish the prevailing wage: * * * * * (ii) If the job opportunity is in an occupation which is not covered by paragraph (a)(2)(i) of this section, the prevailing wage shall be the arithmetic mean of the wages of workers similarly employed, except that the prevailing wage shall be the median when provided by paragraphs (a)(2)(ii)(A), (b)(3)(iii)(B)(2), and (b)(3)(iii)(C)(2) of this section. The prevailing wage rate shall be based on the best information available. The following prevailing wage sources may be used: (A) OFLC National Processing Center (NPC) determination. Prior to January 1, 2010, the SWA having jurisdiction over the area of intended employment shall continue to receive and process prevailing wage determination requests, but shall do so in accordance with these regulatory provisions and Department guidance. On or after January 1, 2010, the NPC shall receive and process prevailing wage determination requests in accordance with these regulations and with Department guidance. Upon receipt of a written request for a PWD on or after January 1, 2010, the NPC will determine whether the occupation is covered by a collective bargaining agreement which was negotiated at arms length, and, if not, determine the arithmetic mean of wages of workers similarly employed in the area of intended employment. The wage component of the Bureau of Labor Statistics Occupational Employment Statistics survey shall be used to determine the arithmetic mean, unless the employer provides an acceptable survey. The NPC shall determine the wage in accordance with secs. 212(n) and 212(t) of the INA. If an acceptable employer-provided wage survey provides a median and does not provide an arithmetic mean, the median shall be the prevailing wage applicable to the employer's job opportunity. In making a PWD, the Chicago NPC will follow 20 CFR 656.40 and other administrative guidelines or regulations issued by ETA. The Chicago NPC shall specify the validity period of the PWD, which in no event shall be for less than 90 days or more than 1 year from the date of the determination. (1) An employer who chooses to utilize an NPC PWD shall file the labor condition application within the validity period of the prevailing wage as specified in the PWD. Any employer desiring review of an NPC PWD, including judicial review, shall follow the appeal procedures at 20 CFR 656.41. Employers which challenge an NPC PWD under 20 CFR 656.41 must obtain a ruling prior to filing an LCA. In any challenge, the Department and the NPC shall not divulge any employer wage data collected under the promise of confidentiality. Once an employer obtains a PWD from the NPC and files an LCA supported by that PWD, the employer is deemed to have accepted the PWD (as to the amount of the wage) and thereafter may not contest the legitimacy of the PWD by filing an appeal with the CO (see 20 CFR 656.41) or in an investigation or enforcement action. (2) If the employer is unable to wait for the NPC to produce the requested prevailing wage for the occupation in question, or for the CO and/or the BALCA to issue a decision, the employer may rely on other legitimate sources of available wage information as set forth in paragraphs (a)(2)(ii)(B) and (C) of this section. If the employer later discovers, upon receipt of the PWD from the NPC, that the information relied upon produced a wage below the final PWD and the employer was paying the NPC-determined wage, no wage violation will be found if the employer retroactively compensates the H-2B nonimmigrant(s) for the difference between wage paid and the prevailing wage, within 30 days of the employer's receipt of the PWD. (3) In all situations where the employer obtains the PWD from the NPC, the Department will deem that PWD as correct as to the amount of the wage. Nevertheless, the employer must maintain a copy of the NPC PWD. A complaint alleging inaccuracy of an NPC PWD, in such cases, will not be investigated. (B) An independent authoritative source. The employer may use an independent authoritative wage source in lieu of an NPC PWD. The independent authoritative source survey must meet all the criteria set forth in paragraph (b)(3)(iii)(B) of this section. * * * * * (b) * * * (3) * * * (iii) * * * (A) A copy of the prevailing wage finding from the NPC for the occupation within the area of intended employment. * * * * * * * * * * (d) * * * (2) In the event the Administrator obtains a prevailing wage from ETA pursuant to paragraph (d)(1) of this section, and the employer desires review, including judicial review, the employer shall challenge the ETA prevailing wage only by filing a request for review under Sec. 656.41 of this chapter within 30 days of the employer's receipt of the PWD from the Administrator. If the request is timely filed, the decision of OFLC is suspended until the Center Director issues a determination on the employer's appeal. If the employer desires review, including judicial review, of the decision of the NPC Center Director, the employer shall make a request for review of the determination by the Board of Alien Labor Certification Appeals (BALCA) under Sec. 656.41(e) of this chapter within 30 days of the receipt of the decision of [[Page 78068]] the Center Director. If a request for review is timely filed with the BALCA, the determination by the Center Director is suspended until the BALCA issues a determination on the employer's appeal. In any challenge to the wage determination, neither ETA nor the NPC shall divulge any employer wage data collected under the promise of confidentiality. (i) Where an employer timely challenges an OFLC PWD obtained by the Administrator, the 30-day investigative period shall be suspended until the employer obtains a final ruling. Upon such a final ruling, the investigation and any subsequent enforcement proceeding shall continue, with the PWD as determined by the BALCA serving as the conclusive determination for all purposes. (ii) [Reserved] (3) For purposes of this paragraph (d), OFLC may consult with the NPC to ascertain the prevailing wage applicable under the circumstances of the particular complaint. 6. Amend Sec. 655.1102 to add the definition of ``Office of Foreign Labor Certification (OFLC)'' to read as follows: Sec. 655.1102 What are the definitions of terms that are used in these regulations? * * * * * Office of Foreign Labor Certification (OFLC) means the organizational component within the ETA that provides national leadership and policy guidance and develops regulations and procedures to carry out the responsibilities of the Secretary of Labor under the INA concerning foreign workers seeking admission to the United States. * * * * * 7. Amend Sec. 655.1112 by revising paragraph (c)(2) to read as follows: Sec. 655.1112 Element II--What does ``no adverse effect on wages and working conditions'' mean? * * * * * (c) * * * (2) Determination of prevailing wage for H-1C purposes. In the absence of collectively bargained wage rates, the National Processing Center (NPC) having jurisdiction as determined by OFLC shall determine the prevailing wage for similarly employed nurses in the geographic area in accordance with administrative guidelines issued by ETA for prevailing wage determination requests submitted on or after the effective date of these regulations. (i) Prior to the effective date of these regulations, the SWA having jurisdiction over the area of intended employment shall continue to receive and process prevailing wage determination requests in accordance with the regulatory provisions and Department guidance in effect prior to January 1, 2009. On or after the effective date of these regulations, the NPC shall receive and process prevailing wage determination requests in accordance with these regulations and with Department guidance. A facility seeking to determine the prevailing wage must request a prevailing wage determination from the NPC having jurisdiction for providing the prevailing wage over the proposed area of intended employment not more than 90 days prior to the date the attestation is submitted to the Department. The NPC must enter its wage determination on the form it uses and return the form with its endorsement to the employer. Once a facility obtains a prevailing wage determination from the NPC and files an attestation supported by that prevailing wage determination, the facility shall be deemed to have accepted the prevailing wage determination as accurate and appropriate (as to both the occupational classification and the wage rate) and thereafter shall not contest the legitimacy of that prevailing wage determination in an investigation or enforcement action pursuant to subpart M of this part. (ii) A facility may challenge the prevailing wage determination with the NPC having provided such determination according to administrative guidelines issued by ETA, but must obtain a final ruling prior to filing an attestation. * * * * * PART 656--LABOR CERTIFICATION PROCESS FOR PERMANENT EMPLOYMENT OF ALIENS IN THE UNITED STATES 8. The authority citation for part 656 is revised to read as follows: Authority: 8 U.S.C. 1182(a)(5)(A), 1182(p)(1); sec.122, Public Law 101-649, 109 Stat. 4978; and Title IV, Public Law 105-277, 112 Stat. 2681. 9. Amend Sec. 656.3 by revising the definitions of ``Prevailing wage determination (PWD)'' and ``State Workforce Agency (SWA)'' to read as follows: Sec. 656.3 Definitions, for purposes of this part, of terms used in this part. * * * * * Prevailing wage determination (PWD) means the prevailing wage provided or approved by an OFLC National Processing Center (NPC), in accordance with OFLC guidance governing foreign labor certification programs. This includes PWD requests processed for purposes of employer petitions filed with DHS under Schedule A or for sheepherders. * * * * * State Workforce Agency (SWA), formerly known as State Employment Security Agency (SESA), means the state agency that receives funds under the Wagner-Peyser Act to provide employment-related services to U.S. workers and employers and/or administers the public labor exchange delivered through the state's one-stop delivery system in accordance with the Wagner-Peyser Act. * * * * * Sec. 656.15 [Amended] 10. Amend Sec. 656.15: a. By removing the words ``in duplicate;'' from paragraph (a); and b. By removing paragraph (f) and redesignating paragraph (g) as paragraph (f). 11. Amend Sec. 656.40 by revising paragraphs (a), (b) introductory text, (c), (g), (h) and (i) to read as follows: Sec. 656.40 Determination of prevailing wage for labor certification purposes. (a) Application process. The employer must request a PWD from the NPC, on a form or in a manner prescribed by OFLC. Prior to January 1, 2010, the SWA having jurisdiction over the area of intended employment shall continue to receive and process prevailing wage determination requests in accordance with the regulatory provisions and Department guidance in effect prior to January 1, 2009. On or after January 1, 2010, the NPC shall receive and process prevailing wage determination requests in accordance with these regulations and with Department guidance. The NPC will provide the employer with an appropriate prevailing wage rate. The NPC shall determine the wage in accordance with sec. 212(t) of the INA. Unless the employer chooses to appeal the center's PWD under Sec. 656.41(a) of this part, it files the Application for Permanent Employment Certification either electronically or by mail with the processing center of jurisdiction and maintains the PWD in its files. The determination shall be submitted to the CO, if requested. (b) Determinations. The National Processing Center will determine the appropriate prevailing wage as follows: * * * (c) Validity Period. The National Processing Center must specify the validity period of the prevailing wage, which in no event may be less than 90 days or more than 1 year from the [[Page 78069]] determination date. To use a prevailing wage rate provided by the NPC, employers must file their applications or begin the recruitment period required by Sec. Sec. 656.17(e) or 656.21 of this part within the validity period specified by the NPC. * * * * * (g) Employer-provided wage information. (1) If the job opportunity is not covered by a CBA, or by a professional sports league's rules or regulations, the NPC will consider wage information provided by the employer in making a PWD. An employer survey can be submitted either initially or after NPC issuance of a PWD derived from the OES survey. In the latter situation, the new employer survey submission will be deemed a new PWD request. (2) In each case where the employer submits a survey or other wage data for which it seeks acceptance, the employer must provide the NPC with enough information about the survey methodology, including such items as sample size and source, sample selection procedures, and survey job descriptions, to allow the NPC to make a determination about the adequacy of the data provided and validity of the statistical methodology used in conducting the survey in accordance with guidance issued by the OFLC national office. (3) The survey submitted to the NPC must be based upon recently collected data. (i) A published survey must have been published within 24 months of the date of submission to the NPC, must be the most current edition of the survey, and the data upon which the survey is based must have been collected within 24 months of the publication date of the survey. (ii) A survey conducted by the employer must be based on data collected within 24 months of the date it is submitted to the NPC. (4) If the employer-provided survey is found not to be acceptable, the NPC will inform the employer in writing of the reasons the survey was not accepted. (5) The employer, after receiving notification that the survey it provided for NPC consideration is not acceptable, may file supplemental information as provided by paragraph (h) of this section, file a new request for a PWD, or appeal under Sec. 656.41. (h) Submittal of supplemental information by employer. (1) If the employer disagrees with the skill level assigned to its job opportunity, or if the NPC informs the employer its survey is not acceptable, or if there are other legitimate bases for such a review, the employer may submit supplemental information to the NPC. (2) The NPC will consider one supplemental submission about the employer's survey or the skill level the NPC assigned to the job opportunity or any other legitimate basis for the employer to request such a review. If the NPC does not accept the employer's survey after considering the supplemental information, or affirms its determination concerning the skill level, it will inform the employer of the reasons for its decision. (3) The employer may then apply for a new wage determination or appeal under Sec. 656.41 of this part. (i) Frequent users. The Secretary will issue guidance regarding the process by which employers may obtain a wage determination to apply to a subsequent application, when the wage is for the same occupation, skill level, and area of intended employment. In no case may the wage rate the employer provides the NPC be lower than the highest wage required by any applicable Federal, State, or local law. (ii) [Reserved] * * * * * 12. Revise Sec. 656.41 to read as follows: Sec. 656.41 Review of prevailing wage determinations. (a) Review of NPC PWD. Any employer desiring review of a PWD made by a CO must make a request for such review within 30 days of the date from when the PWD was issued. The request for review must be sent to the director of the NPC that issued the PWD within 30 days of the date of the PWD; clearly identify the PWD from which review is sought; set forth the particular grounds for the request; and include all the materials pertaining to the PWD submitted to the NPC up to the date of the PWD received from the NPC. (b) Processing of request by NPC. Upon the receipt of a request for review, the NPC will review the employer's request and accompanying documentation, and add any material that may have been omitted by the employer, including any material the NPC sent the employer up to the date of the PWD. (c) Review on the record. The director will review the PWD solely on the basis upon which the PWD was made and, upon the request for review, may either affirm or modify the PWD. (d) Request for review by BALCA. Any employer desiring review of the director's determination must make a request for review by the BALCA within 30 days of the date of the Director's decision. (1) The request for review, statements, briefs, and other submissions of the parties and amicus curiae must contain only legal arguments and only such evidence that was within the record upon which the director made his/her affirmation of the PWD. (2) The request for review must be in writing and addressed to the director of the NPC making the determination. Upon receipt of a request for a review, the director will assemble an indexed appeal file in reverse chronological order, with the index on top followed by the most recent document. (3) The director will send the Appeal File to the Office of Administrative Law Judges, BALCA. The BALCA handles the appeals in accordance with Sec. Sec. 656.26 and 656.27. Signed in Washington, DC, this 12th day of December, 2008. Brent R. Orrell, Deputy Assistant Secretary, Employment and Training Administration. Alexander J. Passantino, Acting Administrator, Wage and Hour Division, Employment Standards Administration. [FR Doc. E8-29995 Filed 12-18-08; 8:45 am] BILLING CODE 4510-FP-P http://www.Dr-Immigration.com/news/shownews.asp?newsID=35 Sat, 7 Mar 2009 20:26:17 EST BY US DHS: Interim Final Rule on Adjustment for T Nonimmigrants Visa and U Nonimmigrants Visa by Immigration lawyer in NYC USCIS Publishes Interim Final Rule on Adjustment for T & U Nonimmigrants [Federal Register: December 12, 2008 (Volume 73, Number 240)] [Rules and Regulations] [Page 75540-75564] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr12de08-3] --------------------------------------- DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 103, 212, 214, 245 and 299 [CIS No. 2134-01; DHS Docket No. USCIS-2006-0067] RIN 1615-AA60 Adjustment of Status to Lawful Permanent Resident for Aliens in T or U Nonimmigrant Status AGENCY: U.S. Citizenship and Immigration Services, DHS. ACTION: Interim final rule with request for comments. --------------------------------------- SUMMARY: The Department of Homeland Security is amending its regulations to permit aliens in lawful T or U nonimmigrant status to apply for adjustment of status to lawful permanent resident. T nonimmigrant status is available to aliens who are victims of a severe form of trafficking in persons and who are assisting law enforcement in the investigation or prosecution of the acts of trafficking. U nonimmigrant status is available to aliens who are victims of certain crimes and are being helpful to the investigation or prosecution of those crimes. This rule provides that family members of a principal T or U nonimmigrant granted or seeking adjustment of status may also apply for adjustment of status to lawful permanent resident. This rule also provides for adjustment of status or approval of an immigrant petition for certain family members of U applicants who were never admitted to the United States in U nonimmigrant status. DATES: Effective date: This interim rule is effective January 12, 2009. Comment date: Written comments must be submitted on or before February 10, 2009 in order to be assured of consideration. ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS- 2006-0067, by any of the following methods: Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Mail: Chief, Regulatory Management Division, U.S. Citizenship and Immigration Services, Department [[Page 75541]] of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To ensure proper handling, please reference DHS Docket No. USCIS-2006-0067 on your correspondence. This mailing address may also be used for paper, disk, or CD-ROM submissions. Hand Delivery/Courier: U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. Contact Telephone Number (202) 272-8377. FOR FURTHER INFORMATION CONTACT: Laura Dawkins, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Second Floor, Washington, DC 20529, telephone (202) 272-8350. SUPPLEMENTARY INFORMATION: I. Public Participation Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule. Comments that will provide the most assistance to U.S. Citizenship and Immigration Services in developing these procedures will refer to a specific portion of the rule, suggest changes to the regulation text, discuss the reason for the recommended change, and include data, information, or authority that support the recommended change. Instructions: All submissions received should include the agency name and Docket No. USCIS-2006-0067 for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including e-mail addresses and any other personal information provided. Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov. Submitted comments may also be inspected at the Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529 during normal business hours by contacting the information contact listed above. II. Background and Legislative Authority This rule implements the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Public Law No. 106-386, 114 Stat. 1464 (Oct. 28, 2000), as amended, to permit aliens in lawful T or U nonimmigrant status to apply for adjustment of status to lawful permanent resident. Aliens who are victims of a severe form of trafficking in persons and who have complied with any reasonable requests for assistance in the Federal, State, or local investigation or prosecution of acts of trafficking, or the investigation of a crime where acts of trafficking are at least one central reason for the commission of that crime, may be admitted to the United States under a ``T'' nonimmigrant classification or ``T visa.'' See Immigration and Nationality Act of 1952, as amended (INA or Act), sections 101(a)(15)(T) and 214(o), 8 U.S.C. 1101(a)(15)(T) and 1184(o). The Department of Justice (DOJ), through the former Immigration and Naturalization Service (INS), published regulations implementing the ``T'' nonimmigrant provisions in 2002. 67 FR 4784 (Jan. 31, 2002). Those regulations became effective on March 4, 2002. Aliens who are victims of specified criminal activity, including trafficking, who assist government officials in investigating or prosecuting those crimes may be admitted to the United States under a ``U'' nonimmigrant classification or ``U visa.'' See INA sections 101(a)(15)(U) and 214(p); 8 U.S.C. 1101(a)(15)(U) and 1184(p). DHS published regulations implementing the provisions creating the U nonimmigrant classification on September 17, 2007. 72 FR 53014. The ``U'' regulations became effective October 17, 2007. This interim final rule implements the provisions of the Act permitting T and U nonimmigrant aliens to apply for an adjustment status to that of lawful permanent resident. See INA sections 245(l), (m); 8 U.S.C. 1255(l), (m). This rule implements the eligibility and application requirements for such aliens to seek adjustment of status to lawful permanent resident. III. Aliens in T Nonimmigrant Status Seeking Adjustment of Status Under Section 245(l) of the Act A. Eligibility Requirements for T Nonimmigrants Seeking Adjustment of Status This rule promulgates a new 8 CFR 245.23 to list the eligibility requirements for adjustment of status for T-1 nonimmigrants and their family members in lawful T-2, T-3, T-4, and T-5 status under section 245(l) of the Act, 8 U.S.C. 1255(l). 1. Admitted as a T Nonimmigrant All applicants for adjustment of status under section 245(l) of the Act must have been lawfully admitted to the United States as a T nonimmigrant and must continue to hold such status at the time of application. New 8 CFR 245.23(a)(2); 245.23(b)(2). 2. Physical Presence for Requisite Period T-1 nonimmigrant applicants for adjustment of status under section 245(l) of the Act must have been physically present in the United States for either: (1) A continuous period of at least 3 years since the date of admission as a T-1 nonimmigrant; or (2) a continuous period during the investigation or prosecution of the acts of trafficking, provided that the Attorney General has determined the investigation or prosecution is complete, whichever period is less. New 8 CFR 245.23(a)(3); see INA sec. 245(l)(1)(A); 8 U.S.C. 1255(l)(1)(A). With respect to the requisite continuous physical presence period, this rule provides that an applicant's date of admission as a T-1 nonimmigrant is the date that the applicant was first admitted as a T-1 nonimmigrant. New 8 CFR 245.23(a)(3). For example, if the applicant traveled outside the United States after being admitted as a T-1 nonimmigrant and reentered using an advance parole document issued under 8 CFR 245.2(a)(4)(ii)(B), the date that the applicant was first admitted as a T-1 nonimmigrant will be the date of admission used by USCIS for determining whether the applicant has satisfied the physical presence requirement, regardless of how the applicant's Form I-94 ``Arrival- Departure Record'' is annotated upon his or her reentry (e.g., as ``T nonimmigrant'' or ``parolee''). New 8 CFR 245.23(a)(3); 245.23(e)(2)(i). However, this rule also provides that an applicant who travels outside of the United States for a single period in excess of 90 days or 180 days in the aggregate will not maintain the continuous physical presence required to establish eligibility for adjustment. New 8 CFR 245.23(a)(3); see INA sec. 245(l)(3), 8 U.S.C. 1255(l)(3). Unlike for U-1 nonimmigrants, the Act does not permit T-1 nonimmigrants to exceed the 90-day or 180-day limitation to assist in an investigation or prosecution or pursuant to an official certification justifying the excessive absence. Compare INA sec. 245(l)(3), 8 U.S.C. 1255(l)(3), with INA sec. 245(m)(2), 8 U.S.C. 1255(m)(2). 3. Admissible at Time of Adjustment All applicants for adjustment of status under section 245(l) of the Act must be admissible to the United States under the Act, or otherwise have been granted a waiver by USCIS of any applicable ground of inadmissibility, at the time of [[Page 75542]] examination for adjustment. New 8 CFR 245.23(a)(4), 245.23(b)(4), 245.23(c)(2) and (3); see INA sec. 245(l)(2), 8 U.S.C. 1255(l)(2); INA sec. 212(a), 8 U.S.C. 1182(a) (listing grounds of inadmissibility and available waivers). 4. Good Moral Character T-1 nonimmigrant applicants for adjustment of status under section 245(l) of the Act must establish that they have been persons of good moral character since first being lawfully admitted as a T-1 nonimmigrant and until USCIS completes the adjudication of their applications for adjustment of status. New 8 CFR 245.23(a)(5); see INA sec. 245(l)(1)(B), 8 U.S.C. 1255(l)(1)(B). However, section 101(f) of the Act, 8 U.S.C. 1101(f), precludes establishment of good moral character if, ``during the period for which good moral character is required to be established,'' an applicant falls into certain enumerated categories. The list of enumerated categories, however, is not exclusive. Section 101(f) of the Act also provides that persons who do not fall within any of the enumerated categories may also be found to lack good moral character. Section 101(f)(3) of the Act specifically bars aliens who have engaged in prostitution or commercialized vice (described in section 212(a)(2)(D) of the Act, 8 U.S.C. 1182(a)(2)(D)), from establishing good moral character ``during the period for which good moral character is required to be established.'' Id. The period for which good moral character must be established under section 212(a)(2)(D) of the Act is 10 years from the date of application, but the period for which good moral character must be established under section 245(l) of the Act is a continuous period of at least 3 years since the date of admission or during the period of investigation or prosecution of the acts of trafficking, whichever period of time is less. The interplay of these provisions creates ambiguity and requires interpretation. After considering the necessary interplay between section 101(f)(3) of the Act, the 10-year temporal scope of section 212(a)(2)(D) of the Act, and the more limited period during which good moral character must be shown for purposes of adjustment of status under section 245(l) of the Act, USCIS believes, based on the purpose and history of the statute, that the more limited period is applicable. For example, if an applicant engaged in prostitution or commercialized vice after he or she was first lawfully admitted as a T-1 nonimmigrant, USCIS will consider the applicant to be statutorily precluded under section 101(f)(3) of the Act from establishing that he or she is a person of good moral character. If, on the other hand, the applicant engaged in prostitution or commercialized vice before he or she was first lawfully admitted as a T-1 nonimmigrant (which in many cases will be related to the trafficking of that individual), USCIS will not consider the applicant to be statutorily precluded under section 101(f)(3) of the Act from establishing that he or she is a person of good moral character because the applicant's activities did not occur during the period for which good moral character is required to be established for purposes of section 245(l) of the Act. This interpretation is consistent with the primary goal of the statute, which is to provide humanitarian assistance to victims who are assisting law enforcement in the investigation or prosecution of their traffickers. In construing the interplay between the relevant statutory provisions, the proper course is to adopt that sense of words which best harmonizes with the context, and then promotes in the fullest manner the policy and objects of Congress. United States v. Hartwell, 73 U.S. (6 Wall.) 385, 396 (1868); see generally 2A C. Sands, Sutherland on Statutory Construction sec. 46.05 (rev. 7th ed. 2008). For example, in cases in which an applicant was forced into sexual slavery or prostitution prior to being granted T-1 nonimmigrant status, it would be contrary to the purpose of the statute to prevent the applicant from showing good moral character for purposes of adjusting status to lawful permanent resident because he or she had engaged in prostitution within 10 years of the date of the application for adjustment of status, but before he or she was granted T-1 nonimmigrant status. An applicant who is under 14 years of age is generally presumed to be a person of good moral character and is not required to submit evidence of good moral character. However, if there is reason to believe that an applicant who is under 14 years of age may lack good moral character, USCIS may require evidence of good moral character. New 8 CFR 245.23(g)(4). 5 . Assistance in the Investigation or Prosecution T-1 nonimmigrant applicants for adjustment of status under section 245(l) of the Act must establish either (i) that during the requisite period of continuous physical presence they have complied with any reasonable request for assistance in an ongoing Federal, State, or local investigation or prosecution of the acts of trafficking, as defined in 8 CFR 214.11(a), by submitting a document issued by the Attorney General or his designee certifying that he or she has complied with any reasonable requests for assistance (new 8 CFR 245.23(d), 245.23(f)(1)), or (ii) that they would suffer extreme hardship involving unusual and severe harm upon removal from the United States (new 8 CFR 245.23(d), 245.23(f)(2)).\1\ See INA sec. 245(l)(1)(C), 8 U.S.C. 1255(l)(1)(C). --------------------------------------- \1\ Section 245(l)(1)(C)(i) of the Act requires the Attorney General to determine whether T-1 nonimmigrant applicants have complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking. This rule does not address the Attorney General's authority to adjust status under section 245(l)(1)(C)(i) of the Act. --------------------------------------- Although the T nonimmigrant provisions at section 101(a)(15)(T) of the Act, 8 U.S.C. 1101(a)(15)(T), exempt children under the age of 18 from the requirement to comply with reasonable requests for assistance, no similar age-related exemption is included in the adjustment provisions contained in section 245(l) of the Act, 8 U.S.C. 1255(l). Accordingly, this rule provides that to establish eligibility for adjustment of status, T-1 principal applicants under the age of 18 must either show that they have, since being lawfully admitted as a T nonimmigrant, complied with any reasonable request for assistance in the investigation or prosecution of the acts of trafficking, or meet the alternative ``extreme hardship'' requirement of section 245(l)(1)(C)(ii) of the Act. New 8 CFR 245.23(a)(6)(ii). When evaluating the reasonableness of a request for assistance made to a minor since admission as a T nonimmigrant, USCIS will consider the previous application of the exemption at section 101(a)(15)(T)(i)(III)(bb) of the Act. 6. Extreme Hardship Involving Unusual and Severe Harm As noted above, section 245(l)(1)(C) of the Act, 8 U.S.C. 1255(l)(1)(C), permits T-1 applicants for adjustment of status the alternative of establishing they would suffer extreme hardship involving unusual and severe harm upon removal, in lieu of establishing assistance in the investigation or prosecution. This rule utilizes existing extreme hardship standards set forth at 8 CFR 214.11(i), which were established in the January 31, 2002, interim T nonimmigrant status rule. New 8 CFR 245.23(a)(6)(ii), 245.23(f)(2). These standards provide that extreme hardship involving unusual and severe harm may not be based upon current or future economic detriment, or the lack of or disruption to social or economic [[Page 75543]] opportunities. Both traditional extreme hardship factors and factors associated with having been a victim of a severe form of trafficking in persons may be considered. Factors such as serious physical or mental illness of the applicant that necessitates medical or psychological attention not reasonably available in the foreign country, the nature and extent of the physical and psychological consequences of severe forms of trafficking in persons, and the likelihood that the trafficker or another acting on behalf of the trafficker in the foreign country would severely harm the applicant may be relevant to such a determination. B. Application Procedures for T Nonimmigrants Seeking Adjustment of Status This rule clarifies that the generally applicable adjustment of status provisions in 8 CFR 245.1 and 245.2 do not apply to applications for adjustment of status under the new 8 CFR 245.23. The adjustment provisions contained in section 245(l) of the Act, 8 U.S.C. 1255(l), are stand-alone provisions and not simply a variation on the general adjustment rules contained in section 245(a) of the Act, 8 U.S.C. 1255(a). New 8 CFR 245.23(k). 1. Filing the Application To Request Adjustment of Status This rule requires that each applicant for adjustment of status under section 245(l) of the Act, 8 U.S.C. 1255(l), submit a complete application to USCIS: Form I-485, Application to Register Permanent Residence or Adjust Status, filed in accordance with the form instructions; applicable fees or application for a fee waiver; and any additional evidence to fully support the application. New 8 CFR 245.23(a)(1), 245.23(b)(3), 245.23(e). Derivative T nonimmigrants may not submit an application for adjustment of status before the principal T-1 alien files an application for adjustment of status. New 8 CFR 245.23(b)(1). 2. Timely Filing Aliens who properly apply for adjustment of status in accordance with 8 CFR 245.23 shall remain eligible for adjustment of status. New 8 CFR 214.11(p)(2). T nonimmigrants who fail to apply for adjustment of status during the prescribed period will lose T nonimmigrant status at the end of the 4-year period unless that status is extended beyond 4 years because a Federal, State, or local law enforcement official, prosecutor, judge, or other authority investigating or prosecuting activity relating to human trafficking certifies that the presence of the alien in the United States is necessary to assist in the investigation or prosecution of such activity. New 8 CFR 214.11(p)(1); see INA sec. 214(o)(7)(B), 8 U.S.C. 1184(o)(7)(B). In 2006, Congress altered several key aspects of the T nonimmigrant provisions and the related adjustment of status requirements, necessitating changes to 8 CFR 214.11(p). Congress extended the duration of status for a T nonimmigrant from 3 to 4 years and made T nonimmigrant status renewable beyond the 4-year maximum duration based on a certification of law enforcement necessity. Public Law No. 109- 162, sec. 821(a), 119 Stat. 2960 (Jan. 5, 2006) (amending INA sec. 214(o)(7), 8 U.S.C. 1184(o)(7)). Without such renewal, however, the statute is clear that T nonimmigrant status may not extend beyond 4 years even if the individual has properly applied for adjustment of status. This rule provides a transition rule for those T nonimmigrants who accrued 4 years in status prior to promulgation of this rule. Section 214(o)(7) of the Act, 8 U.S.C. 1184(o)(7), prescribes a maximum duration in T nonimmigrant status of 4 years, unless the T nonimmigrant receives a law enforcement certification stating that the T nonimmigrant's presence is necessary to assist in the investigation or prosecution. Therefore, T nonimmigrants who already accrued 4 years in status might not continue to hold such status at the time of application for adjustment of status and would otherwise be ineligible for adjustment of status. USCIS is therefore creating a transition rule to allow these aliens, if otherwise eligible, to adjust status if they file a complete application within 90 days of promulgation of this rule. New 8 CFR 245.23(a)(2)(ii). Congress also allowed certain applicants to apply for adjustment of status before having accrued 3 years of continuous physical presence in valid T nonimmigrant status. Public Law No. 109-162, sec. 803(a)(1)(B) (amending INA sec. 245(l)(1)(A), 8 U.S.C. 1255(l)(1)(A)). This rule revises 8 CFR 214.11(p)(2) to implement the statutory changes. Applicants for adjustment of status under section 245(l) of the Act may submit an application for employment authorization (Form I-765, Application for Employment Authorization, in accordance with the form instructions) on the basis of 8 CFR 274a.12(c)(9). 3. Initial Evidence All applicants for adjustment of status under section 245(l) of the Act must submit all required ``initial evidence'' or supporting documentation with the Form I-485. 8 CFR 103.2(b)(1). Otherwise, USCIS will deem the application to be incomplete. If all required initial evidence is not submitted with the application or the evidence does not demonstrate statutory eligibility, USCIS may deny the application for lack of initial evidence, for ineligibility, or for both reasons. In the alternative, USCIS may request that the missing initial evidence be submitted within a specified period of time. 8 CFR 103.2(b)(8). a. Evidence That Applicant Was Admitted in T Nonimmigrant Status All applicants must submit a copy of the Form I-797, Notice of Action, granting T nonimmigrant status, with the attached Form I-94 Arrival/Departure Record, or a copy of the applicant's passport with a T nonimmigrant visa along with a copy of the Form I-94 Arrival/ Departure Record evidencing that the principal alien was admitted into the United States in T nonimmigrant status. New 8 CFR 245.23(e)(2)(i). b. Evidence of Continuous Physical Presence T-1 nonimmigrant applicants may present as evidence of continuity of physical presence in the United States one or more documents issued by any governmental or nongovernmental authority, provided such evidence bears the name of the applicant, was dated at the time it was issued, and bears the signature, seal, or other authenticating instrument of the authorized representative of the issuing authority if the document would normally contain such indicia. New 8 CFR 245.23(e)(2)(i). An applicant may use college transcripts or employment records, including certification of the filing of Federal or state income tax returns, to show that an applicant attended school or worked in the United States throughout the requisite continuous physical presence period. The applicant may also present documents showing installment periods, such as a series of monthly rent receipts or utility bills that cover the same period, to establish continuous physical presence during that period. See generally 8 CFR 245.22. An applicant need not submit documentation to show presence on every single day of the requisite continuous physical presence period, but there should be no significant chronological gaps in documentation. Any absence from the United States, even for one day, is significant for purposes of eligibility because of the [[Page 75544]] aggregate 180-day restriction on absences from the United States. Furthermore, if an applicant is aware of documents already contained in his or her DHS file that establish physical presence, he or she may merely list those documents, giving the type and date of the document. Examples of such documents include a written copy of a sworn statement given to a DHS officer, a document from the law enforcement agency attesting to the fact that the T-1 nonimmigrant status holder has continued to comply with requests for assistance, the transcript of a formal hearing, or a Record of Deportable/Inadmissible Alien, Form I- 213. To facilitate USCIS' evaluation of an applicant's physical presence in the United States, this rule provides that an applicant must submit a copy of his or her passport (or equivalent travel document) and documentation regarding any departure from the United States and re- entry, including the dates of departure; time, manner, and place of return. New 8 CFR 245.23(e)(2)(i). A signed statement from the T-1 applicant attesting to continuous physical presence alone will not be sufficient to establish this eligibility requirement. New 8 CFR 245.23(e)(2)(i). If documentation to establish continuous physical presence is not available, the applicant must explain why in an affidavit and provide additional affidavits from others with first-hand knowledge who can attest to the applicant's continuous physical presence by specific facts. Id. This rule further provides that applicants seeking to meet the alternative continuous physical presence requirement at section 245(l)(1)(A) of the Act (less than 3 years of continuous physical presence while in T-1 nonimmigrant status if the investigation or prosecution is complete) must submit a document signed by the Attorney General, or his designee, as an attachment to the Form I-485, Supplement E, stating that the investigation or prosecution is complete. New 8 CFR 245.23(e)(2)(i)(B). c. Evidence of Admissibility Applicants who are inadmissible by reason of a ground not waived in connection with the prior application for T nonimmigrant status must file an application for a waiver of inadmissibility under section 245(l)(2) of the Act (Form I-601, Application for Waiver of Grounds of Excludability) with the application to adjust status. New 8 CFR 212.18(a). A separate fee for Form I-601 or a fee waiver request must be remitted with the form. This rule clarifies that Form I-601 is used for this purpose and that a fee is charged for waiver of any ground of inadmissibility. 8 CFR 103.7(b)(1). Applicants who are inadmissible on security related grounds (INA sec. 212(a)(3), 8 U.S.C. 1182(a)(3)), as international child abductors (INA sec. 212(a)(10)(C), 8 U.S.C. 1182(a)(10)(C)), or as former citizens who renounced citizenship to avoid taxation (INA sec. 212(a)(10)(E), 8 U.S.C. 1182(a)(10)(E)), are not eligible for waivers of inadmissibility under section 245(l)(2) of the Act. New 8 CFR 245.23(c)(1); see INA sec. 245(l)(2)(B), 8 U.S.C. 1255(l)(2)(B). USCIS may waive the health-related (INA sec. 212(a)(1), 8 U.S.C. 1182(a)(1)) and public charge (INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4)) grounds of inadmissibility if USCIS determines that a waiver is in the national interest as a matter of discretion. See INA sec. 245(l)(2)(A). USCIS understands the waiver of the public charge ground in light of two other provisions of law, Pub. L. 106-386, sections 107(b)(1)(A) and (E), 114 Stat. 1464 (Oct. 28, 2000), which provide that victims of a severe form of trafficking in persons who are over 18 years of age may be certified by the Secretary of Health and Human Services (HHS) to receive certain benefits and services ``to the same extent as an alien who is admitted to the United States as a refugee.'' Victims of a severe form of trafficking in persons who are under 18 are also eligible for services, including cash assistance, to the same extent as refugees, but they do not need to be certified by HHS. Refugees are provided with special humanitarian benefits because of their vulnerable circumstances, and are exempt from virtually every aspect of the public charge determination. Congress has recognized that victims of a severe form of trafficking in persons are in much the same position as refugees, and therefore provided specific authority for DHS to exempt them from the public charge ground of inadmissibility when applying for T nonimmigrant status. See INA sec. 212(d)(13)(A); 8 U.S.C. 1182(d)(13)(A). However, this statutory exemption does not apply to adjustment of status. Consequently, at that stage, applicants must either demonstrate that they are not likely to become public charges under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), or must apply for a waiver of that ground of inadmissibility under section 245(l)(2)(A) of the Act, 8 U.S.C. 1255(l)(2)(A). In evaluating waiver requests, if an applicant is receiving or has received public benefits as a trafficking victim, USCIS will not consider that fact as conclusive evidence of the likelihood the applicant will become a public charge. USCIS also may waive any other ground of inadmissibility, but only if USCIS determines that a waiver is in the national interest and that the activities rendering the applicant inadmissible were caused by or were incident to the principal alien's trafficking victimization. See INA sec. 245(l)(2)(B). Applicants seeking such a waiver must establish that the activities rendering the applicants inadmissible were caused by or incident to their trafficking victimization, that it is in the national interest to waive the ground(s) of inadmissibility, and that the waiver is warranted as a matter of discretion. New 8 CFR 212.18(b)(3). Under section 212(a)(9)(B)(iii) of the Act, 8 U.S.C. 1182(a)(9), applicants may be exempted from the unlawful presence ground of inadmissibility if they can establish that their victimization was ``at least one central reason'' for their unlawful presence in the United States. See INA sec. 212(a)(9)(B)(iii)(V), 8 U.S.C. 1182(a)(9)(B)(iii)(V). This rule clarifies that to be a ``central reason,'' the victimization need not be the sole reason for the unlawful presence, but the nexus between the victimization and the unlawful presence must be more than tangential, incidental, or superficial. New 8 CFR 245.23(c)(3); cf. Matter of J-B-N- & S-M-, 24 I&N 208, 214 (BIA 2007) (interpreting the ``one central reason'' standard in the asylum context). An applicant requesting only an exemption from section 212(a)(9)(B)(B)(iii)(V) of the Act need not file a Form I-601. New 8 CFR 245.23(c)(3). The applicant, however, must submit with his or her Form I-485 evidence sufficient to demonstrate that the victimization suffered was a central reason for the unlawful presence in the United States. Id. As discussed below, applicants whose adjustment of status applications are denied, including the denial of a request for exemption from the application of section 212(a)(9)(B) of the Act, and the denial of an application for a waiver of inadmissibility (Form I- 601) may appeal to the USCIS Administrative Appeals Office (AAO). New 8 CFR 245.23(i). This rule also clarifies that USCIS may revoke its approval of a waiver of inadmissibility. New 8 CFR 212.18(d); see also 8 CFR 103.5. d. Evidence of Good Moral Character Initial evidence of a T-1 nonimmigrant applicant's good moral character is the applicant's affidavit attesting to his or her good moral [[Page 75545]] character, accompanied by a local police clearance or a state-issued criminal background check from each locality or state in the United States in which the applicant has resided for six or more months during the requisite period in T-1 nonimmigrant status. New 8 CFR 245.23(g). If police clearances, criminal background checks, or similar reports are not available for some or all locations, the applicant may include an explanation and submit other evidence with his or her affidavit. Id. A T-1 nonimmigrant applicant who is under 14 years of age is generally presumed to be a person of good moral character and is not required to submit evidence of good moral character. However, if USCIS has reason to believe that an applicant who is under 14 years of age may lack good moral character, USCIS may require evidence of good moral character. Id. e. Evidence of Assistance in the Investigation or Prosecution To meet the ``assistance'' requirement, T-1 applicants must submit a document signed by the Attorney General or his designee certifying that he or she has complied with any reasonable requests for assistance. New 8 CFR 245.23(d), 245(f)(1). f. Evidence of Extreme Hardship Involving Unusual and Severe Harm In lieu of showing continued compliance with requests for assistance, T-1 applicants may establish that they would suffer extreme hardship involving unusual and severe harm upon removal from the United States. Such hardship determinations will be evaluated on a case-by- case basis, in accordance with the factors described in 8 CFR 214.11(i). No particular piece of evidence will guarantee a finding that extreme hardship involving unusual and severe harm would result if the applicant is removed from the United States. To minimize the burden of submitting voluminous documentary evidence and to streamline the adjudication of the adjustment application, this rule provides that where the basis for the hardship claim represents a continuation of the hardship claimed in the previously approved application for T nonimmigrant status, the applicant need not re-document the entire hardship claim, but instead may submit evidence demonstrating that the previously-established hardship is ongoing. New 8 CFR 245.23(f)(2). However, in reaching its decision regarding hardship under this section, USCIS is not bound by its previous hardship determination made under 8 CFR 214.11(i). Id. 4. Additional Requirements for Derivative Family Members Derivative family members may apply for adjustment of status under section 245(l)(1) provided the T-1 principal applicant meets the eligibility requirements for adjustment of status and the T-1 principal applicant's adjustment application has been approved, is currently pending, or is concurrently filed. New 8 CFR 245.23(b). As with T-1 principal applicants, to be eligible for adjustment of status under section 245(l) of the Act, derivative family members must be admissible to the United States under the Act, or otherwise have been granted a waiver by USCIS of any applicable ground of inadmissibility, at the time of examination for adjustment. New 8 CFR 245.23(a)(4), 245.23(b)(4), 245.23(c)(2) and (3); see INA sec. 245(l)(2), 8 U.S.C. 1255(l)(2); INA sec. 212(a), 8 U.S.C. 1182(a). Section 245(l)(2)(B) of the Act also permits USCIS to waive any ground of inadmissibility that may be applicable to a derivative family member, except for the grounds related to national security, international child abduction, and former citizens who renounced citizenship to avoid taxation. Such a waiver may be granted if USCIS determines that it is in the national interest to do so and that the activities rendering the derivative family member inadmissible were caused by or were incident to the T-1 principal alien's victimization. See INA sec. 245(l)(2), 8 U.S.C. 1255(l)(2). A waiver application for a derivative family member will be adjudicated in accordance with new 8 CFR 212.18. 5. Evidence Relating to Discretion Consistent with all of the other adjustment of status provisions, section 245(l) of the Act makes adjustment of status to that of a lawful permanent resident a discretionary benefit. To enable USCIS to determine whether to exercise discretion favorably, this rule provides that all T adjustment applicants have the burden of showing that discretion should be exercised in their favor. New 8 CFR 245.23(e)(3). Generally, favorable factors such as family ties, hardship, and length of residence in the United States may be sufficient to merit a favorable exercise of administrative discretion. However, where adverse factors are present, the applicant will need to offset these factors by showing sufficient mitigating equities. This rule permits applicants to submit information regarding any mitigating factors they wish to be considered. Id. Depending on the nature of an applicant's adverse factors, the applicant may be required to clearly demonstrate that the denial of adjustment of status would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien's adverse factors, such a showing might still be insufficient. Id. See Matter of Jean, 23 I&N Dec. 373, 383-384 (A.G. 2002), aff'd Jean v. Gonzales, 452 F.3d 392 (5th Cir. 2006). See also Pinentel v. Mukasey, 530 F.3d 321 (5th Cir. 2008); Meija v. Gonzales, 499 F.3d 991 (9th Cir. 2007). For example, only the most compelling positive factors would justify a favorable exercise of discretion in cases where the applicant has committed or been convicted of a serious violent crime, a crime involving sexual abuse committed upon a child, or multiple drug- related crimes, or where there are security- or terrorism-related concerns. Id. 6. Application and Biometric Services Fees The fee for filing an Application to Register Permanent Residence or Adjust Status (Form I-485) is listed at 8 CFR 103.7(b). USCIS recognizes that some applicants for adjustment of status under section 245(l) of the Act may be unable to pay the full application fee. Applicants who are able to show that they are financially unable to pay the application fee may submit an application for a fee waiver as outlined in 8 CFR 103.7(c). This rule also permits a fee waiver for the Form I-601 fee. The decision whether to grant a fee waiver lies within the sole discretion of USCIS. Further guidance on fee waivers can be found on the USCIS Web site currently at http://www.uscis.gov/ feewaiver. In addition to the filing fee for the Form I-485 and Form I-601, if applicable, applicants will have to submit the established fee for biometric services, or fee waiver request, for each person ages 14 through 79 inclusive with each application. This fee can also be found at 8 CFR 103.7(b). C. Traveling While Application for Adjustment of Status Is Pending T nonimmigrants applying for adjustment of status, and who are not in removal, exclusion, or deportation proceedings, must follow the generally applicable rule that an applicant with a pending adjustment of status application must obtain advance parole from USCIS. New 8 CFR 245.23(j); 8 CFR 245.2(a)(4)(ii)(B). Advance parole can be requested by completing and filing Form I-131, Application for Travel Document, in accordance with the instructions on the form, or any other appropriate form, before departing [[Page 75546]] the United States. Id. If an applicant fails to acquire advance parole prior to departure, USCIS will deem the application for adjustment of status abandoned as of the moment of departure from the United States. If the adjustment of status application of such an individual is subsequently denied, he or she will be treated as an applicant for admission subject to sections 212 and 235 of the Act. Id. If a T nonimmigrant applying for adjustment of status is in removal, exclusion, or deportation proceedings, USCIS will deem the application for adjustment of status abandoned as of the moment of the applicant's departure from the United States if the applicant failed to acquire advance parole prior to departure. New 8 CFR 245.23(i); 8 CFR 245.2(a)(4)(ii)(A). D. Decisions on Applications Under Section 245(l) of the Act 1. Annual Limitation on the Number of Adjustments of T-1 Nonimmigrants USCIS may adjust the status of no more than 5,000 T-1 principal aliens in a given fiscal year. See INA sec. 245(l)(4)(A), 8 U.S.C. 1255(l)(4)(A). This numerical limitation does not apply to spouses, children, parents, and unmarried siblings in T-2, T-3, T-4, and T-5 status who seek adjustment of status as derivatives. See INA sec. 245(l)(4)(B), 8 U.S.C. 1255(l)(4)(B). USCIS will adjudicate applications in the order in which they are received. Once the numerical limit has been reached in a particular fiscal year, all pending and subsequently received applications will continue to be reviewed in the normal process to determine eligibility. However, USCIS will not approve adjustment of status prior to the beginning of the next fiscal year and not until a number under the cap becomes available. New 8 CFR 245.23(l)(2). USCIS will place eligible applicants who are not granted adjustment of status due solely to the numerical limit on a waiting list and notify the applicants of that placement. Id. Applicants on the waiting list will be given priority in the following fiscal year based on the date the application was properly filed. Id. 2. Decisions on Applications USCIS will notify an applicant in writing of its decision on the adjustment of status and any applicable waiver application. New 8 CFR 245.23(h). If the application is approved, USCIS will issue a notice of approval, instructing the applicant to go to a local USCIS office or an Application Support Center to complete Form I-89, which collects the necessary information to produce the Form I-551 (Alien Registration Receipt Card or ``green card''). The notice of approval will also inform the applicant how to obtain temporary evidence of lawful permanent resident status. Upon approval of an application for adjustment of status, USCIS will record the alien's admission as a lawful permanent resident as of the date of such approval. See INA sec. 245(l)(5), 8 U.S.C. 1255(l)(5). If the application for adjustment of status is denied, the applicant will be notified in writing of the reasons for the denial and of the right to appeal the decision to the USCIS Administrative Appeals Office. New 8 CFR 245.23(i). Because derivative family members' applications are dependent upon approval of the principal applicant's adjustment application, this rule also provides that denial of the T-1 principal applicant's application will result in the automatic denial of a derivative family member's application. Id. IV. Aliens in U Nonimmigrant Status Adjusting Status Under Section 245(m) of the Act A. Eligibility Requirements for U Nonimmigrants Seeking Adjustment of Status This rule promulgates new 8 CFR 245.24 to list the eligibility requirements for adjustment of status for U-1 nonimmigrants and their family members in lawful U-2, U-3, U-4, and U-5 nonimmigrant status under section 245(m) of the Act, 8 U.S.C. 1255(m). 1. Admitted as a U Nonimmigrant All applicants for adjustment of status under section 245(m) of the Act must have been lawfully admitted to the United States in U nonimmigrant status and must continue to hold such status at the time of the application. New 8 CFR 245.24(b)(2). This rule provides a transition rule for those aliens who accrued 4 years or more in U interim relief status prior to promulgation of this rule. Section 214(p)(6) of the Act, 8 U.S.C. 1184(p)(6), prescribes a maximum duration in U nonimmigrant status of 4 years, unless the U nonimmigrant receives a law enforcement certification stating that the U nonimmigrant's presence is necessary to assist in the investigation or prosecution. Title 8 CFR 214.14(c)(6) provides that aliens with U interim relief status whose Form I-918, Petition for U Nonimmigrant Status, is approved will be accorded U nonimmigrant status as of the date that a request for U interim relief was initially approved. Therefore, aliens who already accrued 4 years in U interim relief status might not continue to hold such status at the time of application for adjustment of status and would otherwise be ineligible for adjustment of status. USCIS is therefore creating a transition rule to allow these aliens, if otherwise eligible, to apply to adjust status within 120 days of approval of the Form I-918. New 8 CFR 245.24(b)(2)(ii). Recipients of U interim relief may apply for adjustment of status after 4 years in U interim relief status if they have previously filed a complete Form I-918. Id. If the Form I-918 is subsequently approved, USCIS will then adjudicate the pending adjustment application. USCIS believes that this transition rule will allow applicants to remain eligible to adjust status and will not penalize those applicants with more than 4 years in U interim relief status. 2. Physical Presence for Requisite Period All applicants for adjustment of status under section 245(m) of the Act must have maintained continuous physical presence in the United States for at least 3 years since the date of admission as a U nonimmigrant. New 8 CFR 245.24(b)(3); see INA sec. 245(m)(1)(A), 8 U.S.C. 1255(m)(1)(A). Applicants who have departed from the United States for any period in excess of 90 days or for any periods exceeding 180 days in the aggregate shall not be considered to have maintained continuous physical presence. New 8 CFR 245.24(a)(1); see INA sec. 245(m)(2), 8 U.S.C. 1255(m)(2). An absence for any period in excess of 90 days or for any periods exceeding 180 days is permissible only if the excessive absence is necessary to assist in the investigation or prosecution of persons in connection with the qualifying criminal activity or if an official involved in the investigation or prosecution certifies that the absence is otherwise justified. Id. Absences for less than 90 days at one time or 180 days in the aggregate will not be deducted from the requisite continuous physical presence period required to establish eligibility for adjustment of status and will not be deemed an interruption of the period. Id. 3. Unreasonable Refusal To Assist in the Investigation or Prosecution Section 245(m)(1) of the Act, 8 U.S.C. 1255(m)(1), prohibits USCIS from adjusting the status of an otherwise eligible U nonimmigrant if the Attorney General determines, based on affirmative evidence, that the U nonimmigrant unreasonably refused to provide assistance to a Federal, State, or local criminal investigation or prosecution. USCIS interprets this [[Page 75547]] statutory provision as imposing an ongoing requirement for U-1 nonimmigrants not to refuse unreasonably to provide assistance in an investigation or prosecution. For a derivative family member of a U-1 nonimmigrant (a U-2, U-3, U-4, or U-5 nonimmigrant) who was not required to provide such assistance as a prerequisite for obtaining U nonimmigrant status, USCIS interprets this provision to mean that if the derivative U-2, U-3, U-4, or U-5 nonimmigrant possessed information about the qualifying criminal activity on which the U-1 nonimmigrant petition was based and was asked to assist in the investigation or prosecution, the derivative U nonimmigrant has a responsibility not to unreasonably refuse to provide that assistance. Thus, this rule defines ``refusal to provide assistance in a criminal investigation or prosecution'' as the refusal by the alien to provide assistance to an official or law enforcement agency that had responsibility for the investigation or prosecution of persons in connection with the qualifying criminal activity after the alien was granted U nonimmigrant status. New 8 CFR 245.24(a)(5). The rule provides that the determination of whether an alien's refusal to provide assistance was unreasonable will be based on all available affirmative evidence and take into account the totality of the circumstances and such factors as general law enforcement, prosecutorial, and judicial practices; the kinds of assistance asked of other victims of crimes involving an element of force, coercion, or fraud; the nature of the request to the alien for assistance; the nature of the victimization; the applicable guidelines for victim and witness assistance; and the specific circumstances of the applicant, including fear, severe trauma (either mental or physical), and the age and maturity of the applicant. New 8 CFR 245.24(a)(5). In order to facilitate implementation of this statutory requirement, the rule provides that applicants must submit evidence that demonstrates whether or not they received requests for assistance from an official or law enforcement agency that had responsibility for the investigation or prosecution of persons in connection with the qualifying criminal activity after the applicants were granted U nonimmigrant status and the applicants' response to such requests. New 8 CFR 245.24(d)(8); 245.24(e). The applicant is not required to establish the reasonableness of any refusals to comply with such requests for assistance, as it is a matter for the Attorney General to determine whether any refusal was unreasonable. However, it is appropriate and consistent with the statutory scheme to require the applicants to describe any requests they received for law enforcement assistance, to identify the persons or agencies who made the requests, and to state how they responded to such requests. As a general matter, the alien is in a proper position to identify such basic facts relating to whether any such requests for assistance were made to the alien and how the alien responded to the requests. This information is necessary for the Attorney General to be able to evaluate whether an alien's refusal to provide assistance was unreasonable under the circumstances. Given the range of qualifying offenses for the U visa, USCIS anticipates that the substantial majority of such crimes will be the subject of state or local criminal investigations and prosecutions, rather than cases arising under federal criminal laws, and, in addition, that many of the investigations and prosecutions may already have been closed (perhaps for several years) by the time the alien is applying for adjustment of status, given the requirement that the alien must be in U nonimmigrant status for 3 years before applying for adjustment. In order to facilitate the adjudication of U adjustment applications, this rule provides an option for applicants to obtain a document signed by an official or law enforcement agency that had responsibility for persons in connection with the investigation or prosecution of the qualifying criminal activity. New 8 CFR 245.24(e)(1). The document should affirm that the applicant complied with (or did not refuse to comply with) reasonable requests for assistance in the investigation or prosecution during the requisite period. Id. Applicants, if they so choose, may satisfy this evidentiary requirement by submitting a newly executed Form I-918, Supplement B, ``U Nonimmigrant Status Certification.'' New 8 CFR 245.24(e)(2). If the alien does choose to submit such a document in support of his or her application, USCIS (with the agreement of DOJ) has concluded that there would be no need to refer the application to DOJ absent extraordinary circumstances. This option will thus simplify the evidence aliens are expected to submit in support of their adjustment applications and will avoid delays in the adjudicatory process attributable to the requirement to refer U adjustment applications to DOJ. USCIS is aware that, in some cases, it may be difficult, if not impossible, for an applicant to obtain such a document. Therefore, if an applicant does not submit such a document, the applicant may submit an affidavit describing the applicant's efforts, if any, to obtain a newly executed Form I-918, Supplement B, or other evidence describing whether or not the alien received any request to provide assistance in a criminal investigation or prosecution and the alien's response to any such request. New 8 CFR 245.24(e)(2). The applicant should include a description of all instances of which the applicant is aware in which the applicant was requested to provide assistance in the criminal investigation or prosecution of persons in connection with the qualifying criminal activity after the applicant was granted U nonimmigrant status and how the alien responded to such requests. Id. Applicants should also include, when possible, identifying information about the law enforcement personnel involved in the case and any information of which the applicant is aware about the status of the criminal investigation or prosecution, including any charges filed and the outcome of any criminal proceedings, or whether the investigation or prosecution was dropped and the reasons. Id. Depending on the circumstances, evidence might include such documentation as court documents, police reports, news articles, copies of reimbursement forms for travel to and from court, and affidavits of other witnesses or officials. If applicable, an applicant also may choose to provide a more detailed description of situations where the applicant declined to comply with requests for assistance because the applicant believed that the failure to comply with such requests for assistance was reasonable under the circumstances. Id. The instructions to the Form I-918, Supplement B, U Nonimmigrant Status Certification, require that officials who sign a Supplement B in support of an alien's application for U nonimmigrant status have an obligation to notify USCIS if the alien has refused to assist in the investigation or prosecution of persons in connection with the qualifying criminal activity. At any time, USCIS or DOJ may at its discretion contact the agency that certified the Form I-918, Supplement B, or any other law enforcement authority, for information concerning an applicant's continuing assistance in an investigation or prosecution. New 8 CFR 245.24(e)(3). Additionally, in accordance with procedures determined by DOJ and DHS, USCIS will refer certain applications for adjustment of status, [[Page 75548]] including any affirmative evidence of applicants' refusal to provide assistance in a criminal investigation or prosecution, to DOJ for a determination of whether the applicant has unreasonably refused to comply with a request for assistance in an investigation or prosecution. New 8 CFR 245.24(e)(4). USCIS anticipates referring an application to DOJ only if a certifying official or agency has provided evidence that the alien has refused to provide such assistance, or if there is other affirmative evidence in the record suggesting that the applicant may have unreasonably refused to provide assistance to the investigation or prosecution of persons in connection with the qualifying criminal activity. In these instances, USCIS will request that DOJ determine, based on all available affirmative evidence, whether the applicant has unreasonably refused to comply with a request for assistance. DOJ will have 90 days to provide a written determination to USCIS, or where appropriate, request an extension of time to provide such a determination. Id. After such time, USCIS may adjudicate the application whether or not DOJ has provided a response. Id. B. Application Procedures for U Nonimmigrants Seeking Adjustment of Status This rule clarifies that the generally applicable adjustment of status provisions in 8 CFR 245.1 and 8 CFR 245.2 do not apply to applications for adjustment of status under the new 8 CFR 245.24. The adjustment provisions contained in section 245(m) of the Act, 8 U.S.C. 1255(m), are stand-alone provisions and not simply a variation of the general adjustment rules contained in section 245(a) of the Act, 8 U.S.C. 1255(a). New 8 CFR 245.24(l). This rule also provides that USCIS will maintain sole jurisdiction over the adjudication of applications to adjust status under section 245(m) of the Act because the statutory language vests this authority in the Secretary of Homeland Security. New 8 CFR 245.24(f). This rule designates Form I-485, Application to Register Permanent Residence or Adjust Status, as the form that a U nonimmigrant status holder must use to request adjustment of status. New 8 CFR 245.24(d). The instructions to Form I-485 specify where applicants must file their application packages. The rule requires applicants to follow the instructions on the form for proper completion and to include the proper fees or a fee waiver request. New 8 CFR 245.24(d). The rule also instructs applicants to submit supporting evidence to establish continuous physical presence, as well as any information the applicant would like USCIS to consider when determining whether adjustment of status is warranted as a matter of discretion on humanitarian grounds or to ensure family unity, or is otherwise in the public interest. Id. 1. Evidence That Applicant Was Admitted in U Nonimmigrant Status All applicants must submit a copy of the Form I-797, Notice of Action, granting U nonimmigrant status, with the attached Form I-94 Arrival/Departure Record, or a copy of the applicant's passport with a U nonimmigrant visa along with a copy of the Form I-94 Arrival/ Departure Record evidencing the applicant's admission into the United States in U nonimmigrant status. New 8 CFR 245.24(d). 2. Evidence Relating to Requests for Assistance in an Investigation or Prosecution An application for adjustment of status under section 245(m) of the Act, 8 U.S.C. 1255(m), may not be approved where the Attorney General or his designee determines based on affirmative evidence that the applicant unreasonably refused to provide assistance to an official or law enforcement agency that had responsibility for the investigation or prosecution of persons in connection with the qualifying criminal activity after the applicant was granted U nonimmigrant status. New 8 CFR 245.24(d)(8); 245.24(e). As discussed above, an applicant can facilitate the adjudication of the adjustment application by obtaining a document signed by an official or law enforcement agency that had responsibility for the investigation or prosecution of persons in connection with the qualifying criminal activity, affirming that the applicant complied with (or did not unreasonably refuse to comply with) requests for assistance in the investigation or prosecution during the requisite period. New 8 CFR 245.24(e)(1). Applicants may satisfy this option by submitting a newly executed Form I-918, Supplement B, ``U Nonimmigrant Status Certification.'' Id. However, if an applicant does not submit such a document, the applicant may submit an affidavit describing the applicant's efforts, if any, to obtain a newly executed Form I-918, Supplement B, or other evidence describing whether the alien received any request to provide assistance in a criminal investigation or prosecution and the alien's response to any such request. New 8 CFR 245.24(e)(2). 3. Evidence of Continuous Physical Presence All applicants must submit evidence, including an affidavit, attesting that they have accrued 3 years of continuous physical presence in the United States since admission in U nonimmigrant status. New 8 CFR 245.24(d)(9). Such evidence may include one or more documents issued by any governmental or nongovernmental authority, provided such evidence bears the name of the applicant, was dated at the time it was issued, and bears the signature, seal, or other authenticating instrument of the authorized representative of the issuing authority if the document would normally contain such indicia. An applicant also may submit college transcripts or employment records, including certification of the filing of Federal or state income tax returns, to show that he or she attended school or worked in the United States throughout the entire 3-year U nonimmigrant status period. The applicant also may submit documents showing installment payments, such as a series of monthly rent receipts or utility bills that cover the same 3-year period, to establish continuous physical presence. See generally 8 CFR 245.22. An applicant need not submit documentation to show presence on every single day of the 3-year U nonimmigrant status period, but there should be no significant chronological gaps in documentation. Any absence from the United States, even for one day, is significant for purposes of eligibility because of the aggregate 180-day restriction on absences from the United States. If the applicant is aware of documents already contained in his or her DHS file that establish physical presence, he or she need only list those documents, giving the type and date of the document. Examples of such documents might include a written copy of a sworn statement given to a DHS officer, a document from a law enforcement agency attesting to the fact that the U nonimmigrant has continued to comply with requests for assistance, the transcript of a formal hearing, or a Record of Deportable/Inadmissible Alien, Form I-213. To facilitate USCIS' evaluation of physical presence in the United States, applicants must submit documentation regarding any departure and re-entry, including a copy of their passport (or equivalent travel document) with dates of departure and corresponding time, manner, and place of return. New 8 CFR [[Page 75549]] 245.24(d)(5) and (6). Applicants who were absent from the United States for any period in excess of 90 days or for any periods in the aggregate of 180 days or more must submit a statement from the investigating or prosecuting agency certifying that the absences were necessary to assist in the investigation or prosecution, or were otherwise justified. Id. The omission of such certification will result in denial of the application. A signed statement from the applicant attesting to continuous physical presence alone will not be sufficient to establish this eligibility requirement. Id. If documentation to establish continuous physical presence is not available, the applicant must explain why in an affidavit and provide additional affidavits from other individuals with first-hand knowledge who can attest to the applicant's continuous physical presence by specific facts. Id. 4. Evidence Relating to Admissibility and Discretion The only ground of inadmissibility applicable to U nonimmigrants applying for adjustment of status under section 245(m) of the Act is section 212(a)(3)(E) of the Act, 8 U.S.C. 1182(a)(3)(E), which relates to participants in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing. This ground of inadmissibility is not waivable for purposes of adjustment of status of U nonimmigrants. See INA sec. 245(m)(1), 8 U.S.C. 1255(m)(1). Otherwise, U adjustment applicants are not required to establish that they are admissible on any of the grounds set forth in section 212(a) of the Act. Nevertheless, as with all of the other adjustment of status provisions, section 245(m) of the Act makes adjustment of status under that section a discretionary benefit. To enable USCIS to determine whether to exercise discretion favorably, applicants have the burden of showing that discretion should be exercised in their favor. New 8 CFR 245.24(d)(11). Although U adjustment applicants are not required to establish that they are admissible, USCIS may take into account all adverse factors, including acts that would otherwise render the applicant inadmissible, in making its discretionary decision on the application. Generally, favorable factors such as family ties, hardship, and length of residence in the United States may be sufficient to merit a favorable exercise of administrative discretion. However, where adverse factors are present, it will be necessary for the applicant to offset these factors by showing sufficient mitigating factors. This rule permits applicants to submit information regarding any mitigating factors they would like USCIS to consider when determining whether a favorable exercise of discretion is appropriate. Id. Depending on the nature of an applicant's adverse factors, the applicant may be required to demonstrate clearly that the denial of adjustment of status would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien's adverse factors, such a showing might still be insufficient. Id. See Matter of Jean, 23 I&N Dec. 373, 383-384 (A.G. 2002), aff'd Jean v. Gonzales, 452 F.3d 392 (5th Cir. 2006). See also Pinentel v. Mukasey, 530 F.3d 321 (5th Cir. 2008); Meija v. Gonzales, 499 F.3d 991 (9th Cir. 2007). For example, only the most compelling positive factors would justify a favorable exercise of discretion in cases where the applicant has committed or been convicted of a serious violent crime, a crime involving sexual abuse committed upon a child, or multiple drug-related crimes, or where there are security- or terrorism-related concerns. 8 CFR 245.24(d)(11). C. Decisions on Adjustment of Status Applications From U Nonimmigrants USCIS will give written notice of its decision on the adjustment of status application to the applicant. New 8 CFR 245.24(f). If the application is approved, USCIS will issue a notice of approval instructing the applicant to go to a local USCIS office or Application Support Center to complete Form I-89, which collects the necessary information to produce the Form I-551 (Alien Registration Receipt Card or ``green card''). The notice of approval will also inform the applicant how to obtain temporary evidence of lawful permanent resident status. Upon approval of an application for adjustment of status, USCIS will record the alien's admission as a lawful permanent resident as of the date of such approval. New 8 CFR 245.24(f)(1); see INA sec. 245(m)(4), 8 U.S.C. 1255(m)(4). If the application for adjustment of status is denied, the applicant will be notified in writing of the reasons for the denial and of the opportunity to appeal the decision to the Administrative Appeals Office (AAO). New 8 CFR 245.24(f)(2). Because section 245(m) of the Act gives the Secretary of Homeland Security exclusive authority over applications for adjustment of status of U nonimmigrants, such applications may not be renewed or otherwise filed before an immigration judge in removal proceedings. New 8 CFR 245.24(k). The Attorney General will publish companion rules amending 8 CFR parts 1240 and 1245. D. Qualifying Family Members Who Have Never Held U Nonimmigrant Status Section 245(m) of the Act, 8 U.S.C. 1255(m), allows two categories of qualifying family members of principal U-1 nonimmigrants to apply for adjustment of status or an immigrant visa: (1) Family members in lawful U-2, U-3, U-4, or U-5 nonimmigrant status; and (2) certain qualifying family members who have never held U nonimmigrant status. Because the procedures for family members in lawful U status are the same as those for principal applicants and have already been discussed above, this section will only discuss those qualified family members who have never held U nonimmigrant status. 1. Eligibility Requirements After granting adjustment of status to a U-1 principal applicant, USCIS may grant lawful permanent resident status to certain spouses, children, and parents based upon their relationship to the principal applicant. See INA sec. 245(m)(3), 8 U.S.C. 1255(m)(3). The statute allows USCIS to extend these derivative benefits only if: (1) The qualifying family member was never admitted to the United States in U nonimmigrant status, and (2) it is established that either the family member or the U-1 principal applicant would suffer extreme hardship if the qualifying family member is not allowed to remain in or be admitted to the United States. Id. Because qualifying family members' applications are dependent upon approval of the principal applicant's adjustment of status application, this rule provides that denial of the U-1 principal applicant's application would result in the automatic denial of a derivative family member's application. New 8 CFR 245.24(h)(2)(ii). This rule establishes a two-stage application process (described in detail below) for qualifying family members to obtain lawful permanent residence. First, the principal applicant must file an immigrant petition on behalf of the qualifying family member. New 8 CFR 245.24(h). Second, if the immigrant petition is approved, qualifying family members who are present in the United States may adjust their status to that of lawful permanent residents, and qualifying family members outside the United States may go to a U.S. embassy [[Page 75550]] or consulate to obtain their immigrant visas. Id. 2. Immigrant Petition Process This rule establishes a new form for U-1 principal applicants to file on behalf of qualifying family members: USCIS Form I-929, ``Petition for Qualifying Family Member of a U-1 Nonimmigrant'' (I- 929). New 8 CFR 245.24(h)(1). U-1 principals may file Form I-929 concurrently with, or at any time after they have filed, their Form I- 485 under section 245(m) of the Act. This rule provides, however, that a Form I-929 may not be approved until the U-1 principal's application to adjust status is approved. New 8 CFR 245.24(h)(2). Form I-929 must be filed with the applicable fee, or fee waiver request, and in accordance with the form instructions. New 8 CFR 245.24(h)(1)(ii). It must be submitted with evidence establishing the relationship, such as a birth or marriage certificate. New 8 CFR 245.24(h)(1)(iii). If primary evidence is not available, secondary evidence or affidavits may be submitted in accordance with 8 CFR 103.2(b)(2). Section 245(m)(3) of the Act, 8 U.S.C. 1255(m)(3), requires the Secretary to determine whether the U-1 principal or a qualifying family member would suffer extreme hardship if the family member is not allowed to remain in or join the U-1 principal in the United States. This rule, therefore, requires Form I-929 to be submitted with evidence establishing that the qualifying family member, or the principal U-1 alien, would suffer extreme hardship as described in new 8 CFR 245.24(h)(1)(iv) (to the extent the factors listed are applicable). USCIS will consider all credible relevant evidence of extreme hardship and will evaluate each application on a case-by-case basis in accordance with the factors outlined in new 8 CFR 245.24(h)(1)(iv). The decision that an applicant has met his or her burden of demonstrating extreme hardship is a matter of discretion. No particular piece of evidence will guarantee a finding that extreme hardship would result if the applicant's family members were not allowed to enter or remain in the United States. As discussed above, U adjustment applicants are not required to establish that they are admissible on any of the grounds set forth in section 212(a) of the Act, 8 U.S.C. 1182(a), other than on section 212(a)(3)(E) of the Act (relating to participants in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing), and the companion restrictions set forth in sections 245(a) and (c) of the Act, 8 U.S.C. 1255(a) and (c), do not apply to applicants for lawful permanent residence under section 245(m). Nevertheless, approval of adjustment of status under that section is a discretionary determination of the Secretary. Consequently, this rule provides that the qualifying family member has the burden of showing that discretion should be exercised in his or her favor. Although U adjustment applicants are not required to establish that they are admissible on any of the grounds set forth in section 212(a) of the Act except under section 212(a)(3)(E) of the Act, USCIS may take into account all adverse factors, including acts that would otherwise render the applicant inadmissible, in making its discretionary decision on the application. Generally, favorable factors such as family ties, hardship, and length of residence in the United States may be sufficient to merit a favorable exercise of administrative discretion. However, where adverse factors are present, the applicant must offset these factors by showing sufficient mitigating equities. This rule permits applicants to submit information regarding any mitigating factors they would like USCIS to consider when determining whether a favorable exercise of discretion is appropriate. New 8 CFR 245.24(h). Depending on the nature of an applicant's adverse factors, the applicant may be required to clearly demonstrate that the denial of adjustment of status would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien's adverse factors, such a showing might still be insufficient. Id. See Matter of Jean, 23 I&N Dec. 373, 383-384 (A.G. 2002), aff'd Jean v. Gonzales, 452 F.3d 392 (5th Cir. 2006). See also Pinentel v. Mukasey, 530 F.3d 321 (5th Cir. 2008); Meija v. Gonzales, 499 F.3d 991 (9th Cir. 2007). For example, only the most compelling positive factors would justify a favorable exercise of discretion in cases where the applicant has committed or been convicted of a serious violent crime, a crime involving sexual abuse committed upon a child, or multiple drug-related crimes, or where there are security- or terrorism-related concerns. Id. This rule provides that USCIS will provide written notice of its decision on the Form I-929 to the applicant. New 8 CFR 245.24(h)(2). If USCIS denies the Form I-929, the applicant will be notified in writing of the reasons for the denial and of the opportunity to appeal the decision to the USCIS Administrative Appeals Office. New 8 CFR 245.24(h)(2)(ii). Upon approval of a Form I-929 for a qualifying family member who is outside of the United States, USCIS will forward the notice of approval either to the Department of State's National Visa Center so the applicant can apply to the consular post for an immigrant visa, or to the appropriate port of entry for a visa exempt alien. New 8 CFR 245.24(h)(2)(i)(A). Those family members issued immigrant visas under section 245(m)(3) of the Act, 8 U.S.C. 1255(m)(3), must still establish admissibility before a U.S. Customs and Border Protection (CBP) officer when applying for admission to the United States at a port of entry. Once a Form I-929 is approved for a qualifying family member who is in the United States, the family member becomes eligible to apply for adjustment of status. 3. Adjustment of Status for Qualifying Family Members Who Never Held U Nonimmigrant Status This rule allows a U-1 principal to file the Form I-929 for qualifying family members either concurrently with or at a later date than their Form I-485 application for adjustment of status. Form I-485 must be filed with the appropriate fee or fee waiver request and in accordance with the form instructions. Upon approval of a Form I-485, USCIS will issue a notice of approval, instructing the applicant to go to a local USCIS office or Application Support Center to complete Form I-89, which collects the necessary information to produce the Form I- 551. The notice of approval also will inform the applicant how to obtain temporary evidence of lawful permanent resident status. USCIS will record the alien's admission for lawful permanent residence as of the date of such approval. New 8 CFR 245.24(i)(2)(i). If either the Form I-929 or the Form I-485 is denied, USCIS will notify the applicant in writing of the reasons for the denial and of the opportunity to appeal the decision to the USCIS Administrative Appeals Office. New 8 CFR 245.24(i)(2)(ii). Because qualifying family members' applications depend on approval of the principal applicant's adjustment application, this rule also provides that denial of the U-1 principal applicant's application will result in the automatic denial of a qualifying family member's application. Id. 4. Fee To Be Charged for Form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant USCIS is proposing to charge a fee to recover the costs incurred to adjudicate [[Page 75551]] the petitions for qualifying family members of U-1 nonimmigrants. USCIS is authorized by law to recover the full cost of processing every Form I-929. However, the resources required to deliver this benefit are difficult to estimate due to the small number of potential applicants and the differing level of complexity involved in the determination of each application. To determine a reasonable fee, USCIS reviewed the requirements of other programs that provide special benefits to the same or similar user populations as the new Form I-929. Information on other forms, such as the quantity of information that must be researched, collected, completed, submitted, and analyzed were used as an indication of the resources expended by USCIS to deliver the benefit. Those indicators were compared with that of the Form I-929 to arrive at a fee for the Form I-929. The reasonable fee for USCIS to charge a petitioner for adjudication of a Form I-929 was calculated using several methods. For ease of administration, USCIS has decided to charge the same fee for each Form I-929. The one fee policy will be revisited if inequities to certain groups are noted. The analysis indicated that USCIS should collect a fee of $215 for each Form I-929 adjudication. A copy of the detailed fee determination is available from USCIS upon request. USCIS recognizes that some applicants for adjustment of status may be unable to pay the full application fee. Applicants who are financially unable to pay the application fee may submit an application for a fee waiver, as outlined in 8 CFR 103.7(c). The granting of a fee waiver will be at the sole discretion of USCIS. Further guidance on USCIS fee waivers can be found on the USCIS Web site currently at http://www.uscis.gov/ feewaiver. E. Traveling While Application for Adjustment of Status Is Pending U nonimmigrants who are applying for adjustment of status, and who are not under exclusion, deportation, or removal proceedings, must follow the generally applicable rule that an applicant with a pending adjustment of status application must obtain advance parole from USCIS. 8 CFR 245.2(a)(4)(ii)(B). Advance parole can be requested by completing and filing Form I-131, Application for Travel Document, in accordance with the instructions on the form, or any other appropriate form, before departing the United States. New 8 CFR 245.24(j), 245.2(a)(4)(ii)(B). If such an applicant fails to acquire advance parole prior to departure, USCIS will deem the application for adjustment of status abandoned as of the moment of departure from the United States. If the adjustment of status application of such an individual is subsequently denied, he or she will be treated as an applicant for admission subject to sections 212 and 235 of the Act, 8 U.S.C. 1182, 1225. Id. If a U nonimmigrant applying for adjustment of status is under exclusion, deportation, or removal proceedings, USCIS will deem the application for adjustment of status abandoned as of the moment of the applicant's departure from the United States if the applicant failed to acquire advance parole prior to departure. New 8 CFR 245.24(j), 245.2(a)(4)(ii)(A). F. Employment Authorization While Adjustment of Status Application Is Pending Applicants for adjustment of status under section 245(m) of the Act may apply for employment authorization on the basis of 8 CFR 274a.12(c)(9). Applicants must submit a Form I-765, Application for Employment Authorization, in accordance with the form instructions. G. Application and Biometric Services As stated above, section 286(m) of the Act, 8 U.S.C. 1356(m), requires that USCIS collect fees to recover the cost of providing certain immigration and naturalization benefits. The required fee for filing an Application to Register Permanent Residence or Adjust Status (Form I-485) is listed at 8 CFR 103.7(b). USCIS recognizes that some applicants for adjustment of status may be unable to pay the full application fee. Applicants who are financially unable to pay the application fee may submit an application for a fee waiver as outlined in 8 CFR 103.7(c). The decision whether to grant a fee waiver lies within the sole discretion of USCIS. Further guidance on fee waivers can be found on the USCIS Web site currently at http:// www.uscis.gov/graphics/formsfee/forms/index.htm. In addition to the filing fee for the Form I-485, applicants must submit the established fee for biometric services, or a fee waiver request, for each person age 14 through 79 inclusive. New 8 CFR 245.24(d)(3). This fee can also be found at 8 CFR 103.7(b). V. Regulatory Requirements A. Administrative Procedure Act USCIS has determined that delaying the effect of this rule during the period of public comment would be impracticable and contrary to the public interest. This rule is being published as an interim final rule and is effective 30 days after publication. USCIS invites comments and will address those comments in the final rule. If the implementation of the provisions of this rule were delayed pending public comments, many aliens could be required to depart the United States because of the automatic termination of their nonimmigrant status even though they would become eligible for adjustment of status upon promulgation of this rule. An interim rule, New Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for ``T'' Nonimmigrant Status, provided for T nonimmigrant status. 67 FR 4784 (Jan. 31, 2002). As stated above, a T nonimmigrant's failure to timely apply for adjustment of status will result in termination of that T status at the end of that 4-year period unless the T status is extended because law enforcement certifies that the presence of the alien in the United States is necessary to assist in an investigation or prosecution. See INA sec. 214(o)(7)(B), 8 U.S.C. 1184 (o)(7)(B). Currently, approximately 330 principal T-1 nonimmigrants have been in T nonimmigrant status for more than 3 years and therefore are eligible to apply for adjustment of status under this rule immediately upon its effective date. There is a risk that the 4-year limitation for T nonimmigrant status will run out for these aliens, resulting in termination of T nonimmigrant status. Therefore, USCIS has determined that this rule needs to become effective as soon as possible to ensure that these aliens can apply for adjustment of status and avoid falling out of lawful immigration status. Likewise, U nonimmigrants may apply for adjustment of status after they have been in lawful U nonimmigrant status for at least 3 years. See INA sections 101(a)(15)(U), 214(p), and 245(m); 8 U.S.C. 1101(a)(15)(U), 1184(p), and 1255(m). The interim final rule implementing U nonimmigrant classification was recently published. 72 FR 53014 (Sept. 17, 2007). A U nonimmigrant is eligible to apply for adjustment of status if the alien was admitted in either U-1, U-2, U-3, U-4, or U-5 nonimmigrant status and has continuous physical presence for at least 3 years. New 8 CFR 245.24. Currently, there are approximately 5,000 aliens who were granted interim benefits before they could apply for U nonimmigrant status. These aliens were deemed prima facie eligible for U nonimmigrant status prior to publication of the regulations for U nonimmigrant status. The U-visa rule provides that the time spent in interim [[Page 75552]] relief will count toward the 3 years of physical presence required for adjustment of status purposes, 8 CFR 214.14(a)(13), and U nonimmigrant status will be granted as of the date that a request for U interim relief was initially approved, 8 CFR 214.14(c)(6). USCIS estimates that 2,100 of the 5,412 aliens currently granted interim benefits pending publication of the U nonimmigrant regulations will have been in the United States for 3 years when this rule is published. Therefore, a similar problem exists for those granted U nonimmigrant status as with T nonimmigrants if the effective date of this rule is delayed pending public notice and comment. B. Regulatory Flexibility Act DHS has reviewed this rule in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities because of the following factors. The rule applies to individuals, not small entities, and allows certain aliens who are victims of severe forms of trafficking in persons or victims of crimes listed in section 101(a)(15)(U) of the Act to adjust their status to lawful permanent residents; it has no effect on small entities as that term is defined in 5 U.S.C. 601(6). C. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. D. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of U.S.-based companies to compete with foreign-based companies in domestic and export markets. E. Executive Order 12866 (Regulatory Planning and Review) This rulemaking is a ``significant'' regulatory action under Executive Order 12866. As required by section 6(a)(3)(C) of the Executive Order, USCIS prepared an assessment of the benefits and costs anticipated to occur as a result of this rule for the Office of Management and Budget. The VTVPA was intended to combat trafficking in persons with preventative measures, prosecution of traffickers, and protection of victims. USCIS adjudicates applications for immigration benefits filed by victims of a severe form of trafficking in persons and other specified crimes. According to findings from the National Crime Victimization Survey, in 2005, U.S. residents age 12 or older experienced approximately 23 million crimes; 22% (5.2 million) were crimes of violence. For every 1,000 persons age 12 or older, there occurred: 1 rape or sexual assault, 1 assault with injury, and 3 robberies. However, only 49.9 percent of all violent crimes are reported to police.\2\ Aliens, especially those without legal immigration status, are often reluctant to help in the investigation or prosecution of those crimes. And, while there is no specific data on alien victims of crime, demographic statistics indicate that aliens may be victimized at even higher rates than citizens. For example, in 2005, persons in households with an annual income under $7,500 experienced higher rates of robbery and assault than persons in households with higher income levels. In addition, Hispanics were victims of overall violence at a rate higher than non-Hispanics, making up 15% of all violent crime victims, but only 13% of the population. U visas are intended, in part, to help overcome this reluctance to aid in law enforcement. --------------------------------------- \2\ U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Criminal Victimization, http:// www.ojp.gov/bjs/cvictgen.htm. --------------------------------------- As of May 2004, the U.S. Government estimated that 14,500 to 17,500 people are trafficked annually into the United States and 600,000 to 800,000 are trafficked globally. Also, 80 percent of trafficking victims are female, 70 percent of those are trafficked for commercial sex, and most victims trafficked to the U.S. come from East Asia and the Pacific. 1. Economic Impacts--Fees This rule and the VTVPA, as amended, are intended to enhance the ability of law enforcement and to advance humanitarian goals. The main benefits of a rule change imposed by Congress to address such concerns tend to be intangible. Nonetheless, DHS has assessed both the costs and benefits of this rule and they are as follows: USCIS uses fees to fund the cost of processing applications and associated support benefits, providing benefits to asylum and refugee applicants, and providing benefits to other immigrants at no charge. The fees to be collected as a result of this rule will be approximately $2,955,880 in the first year after this rule is published, $1,932,880 in the second year, and average about $32,472,880 per year in the third and subsequent years. To estimate the new fee collections to be generated by this rule, USCIS estimated the fees to be collected for new applications for adjustment of status from T and U nonimmigrants and their eligible family members. After that, we estimated fees from associated applications that are required such as biometrics, and others that are likely to occur in direct connection with applications for adjustment, such as employment authorization or travel authorization. T adjustment. Currently, there are 787 persons with T nonimmigrant status as principals (T-1) and 682 in the United States who are derivatives (relatives) of the principal (T-2, T-3, T-4, T-5), for a total of 1,469 persons with T visas. Primary T-1. Approximately 330 T-1 nonimmigrants have been in such status for 3 years and are therefore eligible to apply for adjustment of status to that of a lawful permanent resident under this rule. Thus, at least those 330 T-1 nonimmigrants are expected to apply for adjustment of status in the year after this rule takes effect. The fee for Form I-485 is $930.\3\ Thus, an estimated annual fee collection of $306,900 for adjustment for T status for primary T nonimmigrants will result directly from this rule. The numbers of applications and fees collected are expected to be similar in future years. --------------------------------------- \3\ Children under 14 applying with a parent must pay $600 and the fee is waivable for certain applicants, but for this analysis, no adjustments are made in this analysis for any fee waivers or reduced fees for children under 14. --------------------------------------- Derivatives. Of the 682 derivatives of the principal (T-2, T-3, T- 4, T-5 nonimmigrants), it is estimated that 286 have been in the country for 3 years or more, using the same ratio of T-1 nonimmigrants who have been in the U.S. for 3 years (330 of 787, or 42%). As a result, 286 primary T-1 derivatives are eligible and will apply for adjustment of status under this rule. This would result in fees collected from applications for adjustment of status for T-1 derivative nonimmigrants of $265,980 in the first [ [Page 75553]] year this interim rule is effective (286 x $930 Form I-485 fee). This figure is expected to be similar in future years. U-adjustment (U-1). In the supporting documents for the rule ``New Classification for Victims of Criminal Activity; Eligibility for `U' Nonimmigrant Status'' (``U-visa rule''), USCIS estimated that approximately 12,000 people will apply for U nonimmigrant status in the first year after that rule is effective. However, no more than 10,000 principal aliens may be granted U nonimmigrant status in a given fiscal year (October 1 through September 30). For the purposes of this rule and this accompanying analysis, USCIS estimates that the 10,000 cap will be reached each year. USCIS also estimates that every U nonimmigrant will apply for adjustment of status as soon as he or she can, if they can and if still in the country, following publication of this interim rule. Thus, USCIS expects that 10,000 aliens will be eligible to apply for adjustment of status after they have been in U status for 3 years. USCIS estimates that each such U-1 nonimmigrant will apply and submit Form I-485, and the prescribed fee, although most U adjustments will not occur until 3 years after the U-visa rule was effective. In year 3, therefore, additional fees expected to be collected by USCIS under this rule are $9,300,000 ($930 fee for form I- 485 x 10,000). Results are expected to be similar in subsequent years. Interim relief. Approximately 5,412 people were granted deferred action and work authorization benefits by USCIS based on a determination that they were prima facie eligible for U nonimmigrant status prior to publication of the regulations for U status. The U-visa rule provides that the time spent in interim relief will be counted toward the 3-year physical presence required for adjustment of status. Of those 5,412 people, USCIS estimates that 2,100 will have been continuously present for 3 years when this rule is published; 1,000 more will qualify in year 2 of this rule being effective. This will result in fee income from petitions for U adjustments of $1,953,000 (2,100 x $930) in year 1, and $930,000 in year 2. The additional 1,312 will qualify in future years. Derivatives (U-2). The 10,000 per fiscal year limitation does not apply to spouses, children, parents, and unmarried siblings who are accompanying or following to join the principal alien victim. Thus, it is estimated that relatives of U nonimmigrants will apply for adjustment of status approximately 3 years following the effective date of their approval for U nonimmigrant status. USCIS estimates that each U nonimmigrant will bring an average of about two family members to the United States and that those family members will want to adjust their status when they are eligible. The fee income generated by the resulting 20,000 applicants each remitting a fee of $930 results in fee income of $18,600,000 in year 3 after the rule becomes effective, and thereafter. Family members who are not U nonimmigrants--``Qualifying Family Members.'' New Form I-929, Petition for Qualifying Family Member of a U-1 nonimmigrant, will be used by U nonimmigrants to request derivative benefits for qualifying family members who never held U nonimmigrant status. U nonimmigrants may also petition for derivative status on behalf of resident family members by submitting a Form I-918, Supplement A, ``Petition for Qualifying Family Member of U-1 Recipient,'' for each qualifying family member either at the same time or after filing his or her own Form I-918. To apply for adjustment, U nonimmigrants must submit Form I-485. For those family members in the United States who have never had U nonimmigrant status, the U nonimmigrant may apply for adjustment for those family members by submitting Form I-929, after or concurrently with their own request for adjustment of status submitted on Form I-485 with both fees, plus the biometric services fee or fee waiver requests. Family members never admitted to the United States. Qualifying family members who are present in the United States may apply for immigrant visas on behalf of qualifying family members outside the United States. If the Form I-929 is approved for such family members, the family members may go to a U.S. embassy or consulate to obtain their immigrant visa. USCIS estimates that 20,000 people will apply for derivative U visas annually as nonresidents, because the principal can apply to bring a family member to the United States as soon as the principal applies for a U nonimmigrant visa. It is logical that many aliens will do that on their initial Forms I-918 rather than wait until they apply for a visa or seek to bring them to the United States after they apply for adjustment of status. Thus, it is estimated that only 2,000 of the 20,000 people who will apply for U visas will have family members who apply for this benefit, and that they will only apply for an average of one family member each. Consequently, the new Form I-929, ``Petition for Qualifying Family Member of a U-1 Nonimmigrant,'' will result in additional fee collections of about $430,000 per year, beginning in the first year that this rule is in effect, and continuing consistently thereafter. Employment authorization. USCIS charges no additional fee for an employment authorization request by an applicant who has paid the I-485 fee. Thus, no fee income is estimated from primary or secondary T or U nonimmigrants applying for adjustment of status under this rule for employment authorizations. Travel document. USCIS charges no fee for an I-131 filed by an applicant who has paid the Form I-485 application fee. Therefore, an I- 131 fee will only be charged to U derivatives who will be submitting the new Form I-929 without a concurrent Form I-485. However, very few applicants are expected to do so. Thus, no fee income is estimated from Form I-131 as a result of this rule. Biometric services fees. USCIS will collect a fee for biometrics services for adjustment applications from T and U nonimmigrants and their derivative family members. For the purposes of this analysis it is assumed that all of the 31,000 estimated applications submitted per year under this rule will have to submit biometrics. Also, all of the 2,000 estimated annual Forms I-929 are estimated to require the collection of biometrics and payment of the applicable fee. The USCIS biometrics services fee is $80. The resultant fee income will be $2,480,000. Waiver of grounds of inadmissibility. T nonimmigrants who apply for adjustment of status may need an inadmissibility waiver before they may be granted adjustment of status. As a result, such applicants must submit Form I-601, Application for Waiver of Grounds of Inadmissibility, and pay the applicable $545 fee or request a fee waiver as outlined in 8 CFR 103.7(c). USCIS estimates that this requirement will apply to about 2,000 nonimmigrants who apply for adjustment of status. Therefore, this will result in additional fee collections per year of $1,090,000. 2. Benefits The benefits of this rule stem mainly from an understanding of the problems that this rule and the underlying statutes are intended to address. Trafficking. The U.S. government has condemned human trafficking as an affront to human dignity and a heinous crime. By authorizing adjustment of status for T and U nonimmigrants and their eligible family members, this rule is another step in the U.S. government's efforts to combat human trafficking in the United States. Recent cases point [[Page 75554]] out the magnitude of human trafficking, efforts of law enforcement to combat the problem, the personal toll it can take on its victims, and the real need to address the problem: In January 2008, Jimmie Lee Jones was sentenced to serve 15 years on federal charges of conspiring to engage in sex trafficking and transporting young women across state lines for purposes of prostitution. Jones conspired to force six victims, including two juveniles, to engage in commercial sex acts through force, fraud and coercion. He lured and recruited the minor and adult victims into prostitution with promises of legitimate modeling or exotic dancing work and used physical violence, threats of violence, deception, and other forms of coercion to compel the victims to work as prostitutes. In 2005 in New Jersey, at least 30 girls and young women-- some as young as 14--were smuggled from Honduras to Hudson County, where they were forced into virtual slavery in bars and beaten if they tried to leave. On July 21, 2005, ten members of this smuggling ring were indicted. Subsequently, 3 traffickers were sentenced to the maximum sentence, 3 more traffickers have entered guilty pleas and are awaiting sentencing and four more are awaiting trial in Honduras. In January 2004, Juan Carlos Soto was sentenced to 23 years in prison for smuggling women from Honduras and El Salvador into the U.S., and forcing them to stay in his so-called ``safe houses'' until they had ``worked off'' their debt to him. During the day, these women were forced to perform domestic work, while at night they were repeatedly raped and forced to provide sexual services. In the largest trafficking case in U.S. history, Kil Soo Lee ran the Daewoosa garment factory in American Samoa. The government charged that Kil brought over 250 Vietnamese and Chinese nationals into American Samoa, mostly young women, to work as sewing machine operators. Victims were held for up to two years and forced to work through extreme food deprivation, beatings, and physical restraint. The victims were held in barracks on a guarded company compound, threatened with confiscation of their passports, deportation, economic bankruptcy, severe economic hardship to family members, false arrest, and other consequences. On February 21, 2003, Kil was convicted of numerous federal criminal violations, including involuntary servitude, and was later sentenced to 40 years in prison. In 1997, the New York City Police Department unearthed an immigrant smuggling scheme involving as many as 62 deaf-mute Mexican immigrants who had been persuaded to come to the United States with promises of jobs. These immigrants were forced to beg on the streets of New York City for eighteen hours a day, seven days a week and meet a $600 per week quota. They were subjected to beatings, electrocution, mental abuse, and sexual molestation. In 1995, El Monte, California police raided a garment factory and discovered 72 Thai nationals who had been lured to the United States with promises of employment, forced to work in a garment shop up to eighteen hours a day, seven days a week, and were paid less than sixty cents an hour. The owners restrained them by threats and physical violence. Moreover, human trafficking is often intertwined with other illicit activities such as fraud, extortion, racketeering, money laundering, bribery of public officials, drug trafficking, document forgery, and gambling. Authorizing adjustment of status for such victims uses USCIS benefits as part of a collaborative federal effort incorporating immigration status issues, which are often at the forefront of a victim's concern. The VTVPA, as amended, takes a victim-centered approach to addressing trafficking. Trafficking victims are often reluctant to testify due to fear of reprisals against themselves or their family members, or fear of removal from the United States to countries where they can face additional hardships, retribution, or alienation. Additionally, trafficking victims not familiar with their rights may be afraid to report their abusers for fear of their own detention, prosecution, or deportation. This effort is coupled with additional state and federal criminal laws, government benefits, services, and protections for victims. By passing the VTVPA, and subsequent amendments thereto, Congress recognized that victims of severe trafficking should be protected if they assist in prosecution of the traffickers, rather than be punished and deported for unlawful entry, or unauthorized employment. The protections provided by this law address the lack of legal rights, protection, and access to the legal system because of the illegal presence of trafficking victims. Violent crime. Congress created the U nonimmigrant status (``U visa'') to provide immigration protection to crime victims who assist in the investigation and prosecution of those crimes. Although there are no specific data on alien crime victims, statistics maintained by DOJ have shown that aliens, especially those aliens without legal status, are often reluctant to help in the investigation or prosecution of crimes. U visas are intended to help overcome this reluctance and aid law enforcement accordingly. 3. Costs Government costs. This rule requires no outlays of congressionally- appropriated funds. The requirements of this rule and the associated benefits are funded by fees collected from persons requesting these benefits. The fees are deposited into the Immigration Examinations Fee Account. These fees are used to fund the full cost of processing immigration and naturalization benefit applications and petitions, biometric services, and associated support services. Paperwork costs. The T nonimmigrant adjustment of status provisions of this rule will increase the information collection burden hours imposed on the public. First, as indicated above, USCIS estimates that 31,000 adjustment applications will be received per year. USCIS estimates that each applicant will need an average of 7.25 hours to complete and submit the information required under this rule. Thus, the public burden (in hours) will increase by approximately 224,750 burden hours as a result of the additional Forms I-485 that will be submitted as a result of this rule. By adding the new Form I-929, the U nonimmigrant adjustment of status provisions are estimated to add an estimated 2,000 applicants per year to the burden currently required for the U visa program. USCIS estimates that it will require an average of one hour per applicant to complete and submit the information required under this rule. Thus, the public burden (in hours) will increase by approximately 2,000 burden hours as a result of the additional Forms I-929 that will be submitted as a result of this rule. USCIS estimates that 13,000 U-2 nonimmigrants will apply for employment authorization by submitting Form I-765. The public reporting burden for this form is estimated to average 3 hours and 25 minutes per response. Thus, the public burden will increase by approximately 44,417 hours as a result of the additional Forms I-765 that will be submitted as a result of this rule. USCIS estimates that it also will receive about 2,970 requests per year for advance parole, on average, beginning in the third year following the effective date of this rule that would not be [[Page 75555]] received otherwise. The public reporting burden for Form I-131 is estimated to average 55 minutes per application. Thus, the public burden will increase by approximately 2,723 burden hours as a result of the additional Forms I-131 that will be submitted as a result of this rule. For the estimate of the per hour cost of time spent on the forms resulting from this rule, USCIS used the hourly wage from the Bureau of Labor Statistics, Employment Cost Trends, Private Industry, All Workers, Wages and Salaries, Cost of Compensation (Cost per hour worked), Third Quarter, 2006. That figure is $18.04 per hour. Thus, the paperwork burden that this rule adds on the public is estimated to cost respondents $4,940,976 in time spent on preparing and submitting the required information [$18.04 x 273,890 (224,750 + 2,000 + 44,417 + 2,723)]. 4. Analysis of Alternatives Some alternatives exist as cost-effective means for administering the T and U nonimmigrant adjustment provisions from the standpoint of government outlays and burden on applicants. However, many alternatives are not realistic if USCIS is to achieve its legislative mandate and when considered in the interest of consistency with how the current T and U nonimmigrant programs are administered. T nonimmigrant adjustment of status: No more than 5,000 T-1 principal aliens may have their status adjusted to that of a lawful permanent resident in a given fiscal year (October 1 through September 30). This numerical limitation does not apply to relatives in derivative status who seek adjustment of status. Therefore, the potential exists that the number of approvable petitions per fiscal year will exceed the numerical limit (i.e., cap). However, USCIS has not come close to reaching the cap in all of the fiscal years combined since the T nonimmigrant rule was promulgated 4.5 years ago. Since that time, only 787 aliens have been granted principal T-1 nonimmigrant status. Thus, it is unlikely that the numerical cap will be reached in any fiscal year in the near future. USCIS did not consider alternatives to handling applications for adjustment of status. Ease of administration dictates that adjustment of status applications from T nonimmigrants would be best handled on a first in, first out basis, because that is the way applications for T status are currently handled. If petitions are received after the limit is reached, they will be reviewed to determine whether they are approvable but for the numerical cap. Approvable petitions reviewed after the numerical cap has been reached will be placed on a waiting list, and written notice will be sent to the petitioners. Priority on the waiting list will be based upon the date on which the petition is filed. At the beginning of the next fiscal year, petitions on the waiting list will be granted first. Advantages to this approach include allowing the alien victim to remain in the United States to assist in the investigation or prosecution of criminal activity. If petitions for adjustment of status exceed the annual cap, USCIS must maintain a waiting list; however, that is not projected to occur. Thus, incremental implementation and additional alternatives were not considered or analyzed. U nonimmigrant adjustment of status: The number of grants of U nonimmigrant status that may be made in a fiscal year is limited by an annual cap of 10,000. In the U nonimmigrant rule, USCIS decided to adjudicate petitions on a first in, first out basis with additional procedures for petitions received after the numerical cap has been reached. There are no numerical caps on the applications for adjustment of status for U nonimmigrants. Therefore, adjustment of status applications from U nonimmigrants and their derivatives will be handled on a first in, first out basis, with no procedures for dealing with U adjustment retrogression.\4\ Additional alternatives that would have provided that applications for adjustment of status from U nonimmigrants would be handled differently than those of U nonimmigrants were not considered. --------------------------------------- \4\ When visas are limited by statute, a petitioner's priority is determined by the date the petition was filed and visas are often available only to applicants whose priority dates are before a certain cut-off date. This roll-back in priority dates is what is commonly referred to as ``visa number retrogression.'' --------------------------------------- 5. Summary The provisions of this rule are essential to the effective administration of the T and U nonimmigrant adjustment of status provisions. This rule will further humanitarian interests by protecting victims of human trafficking and victims of other serious crimes who have provided assistance to U.S. law enforcement in the investigation or prosecution of such crimes. Also, this rule will strengthen the ability of the law enforcement agencies to investigate and prosecute crimes by providing immigration benefits to victims. The estimated economic effects of this rule are summarized as follows: The estimated fees to be collected as a result of this rule will be approximately $2,955,880 in the first year after this rule is published, $1,932,880 in the second year, and an average about $32,472,880 per year in the third and subsequent years after taking effect. No more than 5,000 T-1 principal aliens may have their status adjusted to that of a lawful permanent resident in a given fiscal year, but this numerical limitation does not apply to adjustment of status of U nonimmigrants or qualifying relatives of T or U nonimmigrants. An estimated 330 T nonimmigrants are expected to apply for adjustment of status in the year following the effective date of this rule. An estimated 286 family members of T nonimmigrants are expected to apply for adjustment of status in the year following the effective date of this rule. After the U nonimmigrant rule has been in effect for 3 years, an estimated 10,000 principal U nonimmigrants are expected to apply for adjustment of status. An estimated 20,000 relatives of U nonimmigrants will apply for adjustment of status within approximately 3 years following receipt of derivative U nonimmigrant status. An estimated 2,000 aliens will apply for immigrant visas or adjustment of status under special provisions for certain family members of aliens who adjusted their status as U nonimmigrants where the qualifying family members are not physically present in the United States or are in the United States, but not currently in U nonimmigrant status. With respect to the paperwork burden on the public, this rule is estimated to cost respondents $4,940,976 in time spent on preparing and submitting the required information. This rule requires no outlay of congressionally-appropriated funds. All costs will be covered by fees collected by the agency. F. Executive Order 13132 (Federalism) This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation [[Page 75556]] 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 12988. H. Family Assessment I have reviewed this regulation and determined that it may affect family well-being as that term is defined in section 654 of the Treasury General Appropriations Act, 1999, Public Law No. 105-277, Div. A. Accordingly, I have assessed this action in accordance with the criteria specified by section 654(c)(1). This regulation will positively affect family well-being by encouraging vulnerable individuals who have been victims of a severe form of trafficking in persons or other specified criminal activity to report the trafficking and criminal activity and to aid law enforcement in the investigation and prosecution of cases and by providing critical assistance and benefits to victims. Additionally, this regulation provides the means for both victims and qualified family members to adjust their status to lawful permanent residence, thereby ensuring family unity and stability. I. Paperwork Reduction Act of 1995 Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163 (1995) (PRA), all Departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any reporting or record-keeping requirements inherent in a rule. The information collection requirements contained in this rule have been cleared by OMB under the provisions of the Paperwork Reduction Act. 44 U.S.C. Chapter 35; 5 CFR 1320. Clearance numbers for these collections are contained in 8 CFR 299.5, Display Control Numbers and are noted herein. Form I-131, Application for Travel Document, OMB Control Number 1615-0013; Form I-290B, Notice of Appeal to the Administrative Appeals Office, OMB Control Number 1615-0095; Form I-485, Application to Register Permanent Residence or Adjust Status, OMB Control Number 1615- 0023; Form I-601, Application for Waiver of Grounds of Excludability, OMB Control Number 1615-0029; Form I-765, Application for Employment Authorization, OMB Control Number 1615-0040. However, the current number of respondents listed for these information collections on the OMB's inventory of approved information collections will have to be increased to reflect the increase in the number of respondents and burden hours as a result of this rule. In addition, since this rule requires applicants submitting those forms to pay the corresponding fees, the annual costs for these information collections will also increase. Accordingly, USCIS has submitted an update for the annual cost burden and number of respondents using OMB's automated Office of Information and Regulatory Affairs Consolidated Information System (ROCIS). Additionally, USCIS will make non-substantive minor edits to Forms I-131, I-601, and I-765, to reflect the new usage by T and U nonimmigrants applying for adjustment of status. These forms, with the minor edits, have been submitted to OMB for review and approval. This interim rule permits certain T and U nonimmigrants to adjust their status to that of lawful permanent residents. In addition to the evidence required by Form I-485, this rule at 8 CFR 245.23(a) requires T adjustment applicants to demonstrate continuous physical presence in the United States for a requisite period, good moral character for a requisite period, and continued cooperation with law enforcement authorities or extreme hardship, by supplying the evidence outlined in 8 CFR 245.23(e)(2). For U adjustment applicants, in addition to the evidence required by Form I-485, the rule at 8 CFR 245.24(a) requires applicants to demonstrate continuous physical presence for at least 3 years and that they have not unreasonably refused to provide assistance in the criminal investigation or prosecution by supplying the evidence outlined in 8 CFR 245.24(d)(1) and 245.24(e)(2). These additional documentation requirements are considered an information collection and will be included on new Supplement E to Form I-485. This rule also requires that U-1 nonimmigrants who are applying for adjustment of status and wish to petition for immigrant visas or lawful permanent residence on behalf of family members who have never held U nonimmigrant status submit new Form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant, with fee in accordance with the instructions on the form. This requirement is considered a new information collection. Since this is an interim rule, these information collections have been submitted and approved by OMB under the emergency review and clearance procedures covered under the PRA. USCIS is requesting comments on these two information collections until February 10, 2009. When submitting comments on the information collection(s), your comments should address one or more of the following four points: (1) Evaluate whether the collection of information is necessary for the proper performance of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the collection 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 collection of the information on those who are to respond, including through the use of any and all appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. Overview of Information Collection for Form I-485, and Supplement A, and Supplement E: a. Type of information collection: Revision of currently approved collection. b. Title of Form/Collection: Application to Register Permanent Residence or Adjust Status. c. Agency form number, if any, and the applicable component of the Department of Homeland Security sponsoring the collection: Form I-485, and Supplement A and E; U.S. Citizenship and Immigration Services. d. Affected public who will be asked or required to respond, as well as a brief abstract: Individuals. Sections 245(l) and (m) of the Act allow certain T and U nonimmigrants to adjust status to that of lawful permanent residents. This interim rule designates Form I-485 as the form for use by applicants for such benefits. (Supplement A of Form I-485 is used by persons seeking to adjust their status under the provisions of section 245(i) of the Act and therefore will not be used by T and U nonimmigrants who are applying to adjust their status.) Supplement E of Form I-485 provides additional instructions to T and U nonimmigrants seeking to adjust their status and includes documentation requirements not found on Form I-485 itself. The information collection is necessary in order for USCIS to make a determination that the eligibility requirements and conditions are met regarding the applicant. [[Page 75557]] e. An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: Form I-485-- 617,033 respondents at 6.25 hours per response, Supplement A--3,888 respondents at 0.216 hours per response, Supplement E--33,112 at 0.75 hours per response. f. An estimate of the total of public burden (in hours) associated with the collection: Approximately 3,882,129 burden hours. Overview of Information Collection for Form I-929: a. Type of information collection: New information collection. b. Title of Form/Collection: Petition for Qualifying Family Member of a U-1 Nonimmigrant. c. Agency form number, if any, and the applicable component of the Department of Homeland Security sponsoring the collection: Form I-929; U.S. Citizenship and Immigration Services. d. Affected public who will be asked or required to respond, as well as a brief abstract: Individuals. Section 245(m) of the Act allows certain qualifying family members who have never held U nonimmigrant status to seek lawful permanent residence or apply for immigrant visas. Before such family members may apply for adjustment of status or seek immigrant visas, the U-1 nonimmigrant who has been granted adjustment of status must file an immigrant petition on behalf of the qualifying family member using Form I-929. The information collection is necessary in order for USCIS to make a determination that the eligibility requirements and conditions are met regarding the qualifying family member. e. An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: 2,000 respondents at 1 hour per response. f. An estimate of the total of public burden (in hours) associated with the collection: Approximately 2,000 burden hours. All comments and suggestions or questions regarding additional information should be directed to the Department of Homeland Security, U.S. Citizenship and Immigration Services, Regulatory Management Division, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529, Attention: Chief, 202-272-8377. List of Subjects 8 CFR Part 103 Administrative practice and procedure, Authority delegations (Government agencies), Freedom of information, Immigration, Privacy, Reporting and recordkeeping requirements, Surety bonds. 8 CFR Part 212 Administrative practice and procedure, Aliens, Immigration, Passports and visas, Reporting and recordkeeping requirements. 8 CFR Part 214 Administrative practice and procedure, Aliens, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students. 8 CFR Part 245 Aliens, Immigration, Reporting and recordkeeping requirements. 8 CFR Part 299 Immigration, Reporting and recordkeeping requirements. Accordingly, chapter I of title 8 of the Code of Federal Regulations is amended as follows: PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS 1. The authority citation for part 103 continues to read as follows: Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2. 2. Section 103.7 is amended by revising the entry for Form I-601 and adding the entry for ``Form I-929'' in proper alpha-numeric sequence in paragraph (b)(1), and revising paragraph (c)(5) to read as follows: Sec. 103.7 Fees. * * * * * (b) * * * (1) * * * Form I-601. For filing an application for waiver of ground of inadmissibility--$545. * * * * * Form I-929. For U-1 principal applicant to submit for each qualifying family member who plans to seek an immigrant visa or adjustment of U status--$215. * * * * * (c) * * * (5) No fee relating to any application, petition, appeal, motion, or request made to U.S. Citizenship and Immigration Services may be waived under paragraph (c)(1) of this section except for the following: (i) Biometrics; Form I-90; Form I-751; Form I-765; Form I-817; I- 929; Form N-300; Form N-336; Form N-400; Form N-470; Form N-565; Form N-600; Form N-600K; and Form I-290B and motions filed with U.S. Citizenship and Immigration Services relating to the specified forms in this paragraph (c); and (ii) Only in the case of an alien in lawful nonimmigrant status under sections 101(a)(15)(T) or (U) of the Act; an applicant under section 209(b) of the Act; an approved VAWA self-petitioner; or an alien to whom section 212(a)(4) of the Act does not apply with respect to adjustment of status: Form I-485 and Form I-601; and (iii) Form I-192 and Form I-193 (only in the case of an alien applying for lawful nonimmigrant status under sections 101(a)(15)(T) or (U)). * * * * * PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE 3. The authority citation for part 212 continues to read as follows: Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225, 1226, 1227; 8 CFR part 2. 4. Section 212.18 is added to read as follows: Sec. 212.18 Applications for waivers of inadmissibility in connection with an application for adjustment of status by T nonimmigrant status holders. (a) Filing the waiver application. An alien applying for a waiver of inadmissibility under section 245(l)(2) of the Act in connection with an application for adjustment of status under 8 CFR 245.23(a) or (b) must submit: (1) A completed Form I-485 application package; (2) The appropriate fee in accordance with 8 CFR 103.7(b)(1) or an application for a fee waiver; and, as applicable, (3) Form I-601, Application for Waiver of Grounds of Excludability. (b) Treatment of waiver application. (1) USCIS may not waive an applicant's inadmissibility under sections 212(a)(3), 212(a)(10)(C), or 212(a)(10)(E) of the Act. (2) If an applicant is inadmissible under sections 212(a)(1) or (4) of the Act, USCIS may waive such inadmissibility if it determines that granting a waiver is in the national interest. (3) If any other provision of section 212(a) renders the applicant inadmissible, USCIS may grant a waiver of inadmissibility if the activities rendering the alien inadmissible were caused by or were incident to the victimization and USCIS determines that it is in the national interest to waive [[Page 75558]] the applicable ground or grounds of inadmissibility. (c) Other waivers. Nothing in this section shall be construed as limiting an alien's ability to apply for any other waivers of inadmissibility for which he or she may be eligible. (d) Revocation. The Secretary of Homeland Security may, at any time, revoke a waiver previously granted through the procedures described in 8 CFR 103.5. PART 214--NONIMMIGRANT CLASSES 5. The authority citation for part 214 continues to read as follows: Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant to E.O. 13323, 69 FR 241), 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1372, 1379, 1731-32, section 643, Pub. L. 104-208, 110 Stat. 3009- 708; 48 U.S.C. 1901, note, and 1931 note; 8 CFR part 2. 6. Sections 214.11(p)(1) and (2) are revised to read as follows: Sec. 214.11 Alien victims of severe forms of trafficking in persons. * * * * * (p) Duration of T nonimmigrant status. (1) In general. An approved T nonimmigrant status shall expire after 4 years from the date of approval. The status may be extended if a Federal, State, or local law enforcement official, prosecutor, judge, or other authority investigating or prosecuting activity relating to human trafficking certifies that the presence of the alien in the United States is necessary to assist in the investigation or prosecution of such activity. At the time an alien is approved for T nonimmigrant status or receives an extension, USCIS shall notify the alien when his or her nonimmigrant status will expire. The applicant shall immediately notify USCIS of any changes in the applicant's circumstances that may affect eligibility under section 101(a)(15)(T)(i) of the Act and this section. (2) Information pertaining to adjustment of status. USCIS will notify an alien granted T nonimmigrant status of the requirement to timely apply for adjustment of status, and that the failure to apply for adjustment of status in accordance with 8 CFR 245.23 will result in termination of the alien's T nonimmigrant status at the end of the 4- year period unless that status is extended in accordance with paragraph (p)(1) of this section. Aliens who properly apply for adjustment of status to that of a person admitted to permanent residence in accordance with 8 CFR 245.23 shall remain eligible for adjustment of status. * * * * * PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE 7. The authority citation for part 245 continues to read as follows: Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L. 105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 2681; 8 CFR part 2. 8. Section 245.23 is added to read as follows: Sec. 245.23 Adjustment of aliens in T nonimmigrant classification. (a) Eligibility of principal T-1 applicants. Except as described in paragraph (c) of this section, an alien may be granted adjustment of status to that of an alien lawfully admitted for permanent residence, provided the alien: (1) Applies for such adjustment; (2)(i) Was lawfully admitted to the United States as a T-1 nonimmigrant, as defined in 8 CFR 214.11(a)(2); and (ii) Continues to hold such status at the time of application, or accrued 4 years in T-1 nonimmigrant status and files a complete application before April 13, 2009; (3) Has been physically present in the United States for a continuous period of at least 3 years since the first date of lawful admission as a T-1 nonimmigrant or has been physically present in the United States for a continuous period during the investigation or prosecution of acts of trafficking and the Attorney General has determined that the investigation or prosecution is complete, whichever period of time is less; provided that if the applicant has departed from the United States for any single period in excess of 90 days or for any periods in the aggregate exceeding 180 days, the applicant shall be considered to have failed to maintain continuous physical presence in the United States for purposes of section 245(l)(1)(A) of the Act; (4) Is admissible to the United States under the Act, or otherwise has been granted a waiver by USCIS of any applicable ground of inadmissibility, at the time of examination for adjustment; (5) Has been a person of good moral character since first being lawfully admitted as a T-1 nonimmigrant and until USCIS completes the adjudication of the application for adjustment of status; and (6)(i) Has, since first being lawfully admitted as a T-1 nonimmigrant and until the conclusion of adjudication of the application, complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking, as defined in 8 CFR 214.11(a), or (ii) Would suffer extreme hardship involving unusual and severe harm upon removal from the United States, as provided in 8 CFR 214.11(i). (b) Eligibility of derivative family members. A derivative family member of a T-1 nonimmigrant status holder may be granted adjustment of status to that of an alien lawfully admitted for permanent residence, provided: (1) The T-1 principal nonimmigrant has applied for adjustment of status under this section and meets the eligibility requirements described under subsection (a); (2) The derivative family member was lawfully admitted to the United States in T-2, T-3, T-4, or T-5 nonimmigrant status as the spouse, parent, sibling, or child of a T-1 nonimmigrant, and continues to hold such status at the time of application; (3) The derivative family member has applied for such adjustment; and (4) The derivative family member is admissible to the United States under the Act, or otherwise has been granted a waiver by USCIS of any applicable ground of inadmissibility, at the time of examination for adjustment. (c) Exceptions. An alien is not eligible for adjustment of status under paragraphs (a) or (b) of this section if: (1) The alien's T nonimmigrant status has been revoked pursuant to 8 CFR 214.11(s); (2) The alien is described in sections 212(a)(3), 212(a)(10)(C), or 212(a)(10)(E) of the Act; or (3) The alien is inadmissible under any other provisions of section 212(a) of the Act and has not obtained a waiver of inadmissibility in accordance with 8 CFR 212.18 or 214.11(j). Where the applicant establishes that the victimization was a central reason for the applicant's unlawful presence in the United States, section 212(a)(9)(B)(iii) of the Act is not applicable, and the applicant need not obtain a waiver of that ground of inadmissibility. The applicant, however, must submit with the Form I-485 evidence sufficient to demonstrate that the victimization suffered was a central reason for the unlawful presence in the United States. To qualify for this exception, the victimization need not be the sole reason for the unlawful presence but the nexus between the victimization and the unlawful presence must be more than tangential, incidental, or superficial. [[Page 75559]] (d) Jurisdiction. USCIS shall determine whether a T-1 applicant for adjustment of status under this section was lawfully admitted as a T-1 nonimmigrant and continues to hold such status, has been physically present in the United States during the requisite period, is admissible to the United States or has otherwise been granted a waiver of any applicable ground of inadmissibility, and has been a person of good moral character during the requisite period. The Attorney General shall determine whether the applicant received a reasonable request for assistance in the investigation or prosecution of acts of trafficking as defined in 8 CFR 214.11(a), and, if so, whether the applicant complied in such request. If the Attorney General determines that the applicant failed to comply with any reasonable request for assistance, USCIS shall deny the application for adjustment of status unless USCIS finds that the applicant would suffer extreme hardship involving unusual and severe harm upon removal from the United States. (e) Application. (1) General. Each T-1 principal applicant and each derivative family member who is applying for adjustment of status must file Form I-485, Application to Register Permanent Residence or Adjust Status, and (i) Accompanying documents, in accordance with the form instructions; (ii) The fee prescribed in 8 CFR 103.7(b)(1) or an application for a fee waiver; (iii) The biometric services fee prescribed by 8 CFR 103.7(b)(1) or an application for a fee waiver; (iv) A photocopy of the alien's Form I-797, Notice of Action, granting T nonimmigrant status; (v) A photocopy of all pages of the alien's most recent passport or an explanation of why the alien does not have a passport; (vi) A copy of the alien's Form I-94, Arrival-Departure Record; and (vii) Evidence that the applicant was lawfully admitted in T nonimmigrant status and continues to hold such status at the time of application. For T nonimmigrants who traveled outside the United States and re-entered using an advance parole document issued under 8 CFR 245.2(a)(4)(ii)(B), the date that the alien was first admitted in lawful T status will be the date of admission for purposes of this section, regardless of how the applicant's Form I-94 ``Arrival- Departure Record'' is annotated. (2) T-1 principal applicants. In addition to the items in paragraph (e)(1) of this section, T-1 principal applicants must submit: (i) Evidence, including an affidavit from the applicant and a photocopy of all pages of all of the applicant's passports valid during the required period (or equivalent travel document or a valid explanation of why the applicant does not have a passport), that he or she has been continuously physically present in the United States for the requisite period as described in paragraph (a)(2) of this section. Applicants should submit evidence described in 8 CFR 245.22. A signed statement from the applicant attesting to the applicant's continuous physical presence alone will not be sufficient to establish this eligibility requirement. If additional documentation is not available, the applicant must explain why in an affidavit and provide additional affidavits from others with first-hand knowledge who can attest to the applicant's continuous physical presence by specific facts. (A) If the applicant has departed from and returned to the United States while in T-1 nonimmigrant status, the applicant must submit supporting evidence showing the dates of each departure from the United States and the date, manner and place of each return to the United States. (B) Applicants applying for adjustment of status under this section who have less than 3 years of continuous physical presence while in T-1 nonimmigrant status must submit a document signed by the Attorney General or his designee, attesting that the investigation or prosecution is complete. (ii) Evidence of good moral character in accordance with paragraph (g) of this section; and (iii)(A) Evidence that the alien has complied with any reasonable request for assistance in the investigation or prosecution of the trafficking as described in paragraph (f)(1) of this section since having first been lawfully admitted in T-1 nonimmigrant status and until the adjudication of the application; or (B) Evidence that the alien would suffer extreme hardship involving unusual and severe harm if removed from the United States as described in paragraph (f)(2) of this section. (3) Evidence relating to discretion. Each T applicant bears the burden of showing that discretion should be exercised in his or her favor. Where adverse factors are present, an applicant may offset these by submitting supporting documentation establishing mitigating equities that the applicant wants USCIS to consider. Depending on the nature of adverse factors, the applicant may be required to clearly demonstrate that the denial of adjustment of status would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the adverse factors, such a showing might still be insufficient. For example, only the most compelling positive factors would justify a favorable exercise of discretion in cases where the applicant has committed or been convicted of a serious violent crime, a crime involving sexual abuse committed upon a child, or multiple drug-related crimes, or where there are security- or terrorism-related concerns. (f) Assistance in the investigation or prosecution or a showing of extreme hardship. Each T-1 principal applicant must establish, to the satisfaction of the Attorney General, that since having been lawfully admitted as a T-1 nonimmigrant and up until the adjudication of the application, he or she complied with any reasonable request for assistance in the investigation or prosecution of the acts of trafficking, as defined in 8 CFR 214.11(a), or establish, to the satisfaction of USCIS, that he or she would suffer extreme hardship involving unusual and severe harm upon removal from the United States. (1) Each T-1 applicant for adjustment of status under section 245(l) of the Act must submit a document issued by the Attorney General or his designee certifying that the applicant has complied with any reasonable requests for assistance in the investigation or prosecution of the human trafficking offenses during the requisite period; or (2) In lieu of showing continued compliance with requests for assistance, an applicant may establish, to the satisfaction of USCIS, that he or she would suffer extreme hardship involving unusual and severe harm upon removal from the United States. The hardship determination will be evaluated on a case-by-case basis, in accordance with the factors described in 8 CFR 214.11(i). Where the basis for the hardship claim represents a continuation of the hardship claimed in the application for T nonimmigrant status, the applicant need not re- document the entire claim, but rather may submit evidence to establish that the previously established hardship is ongoing. However, in reaching its decision regarding hardship under this section, USCIS is not bound by its previous hardship determination made under 8 CFR 214.11(i). (g) Good moral character. A T-1 nonimmigrant applicant for adjustment of status under this section must demonstrate that he or she has been a person of good moral character since [[Page 75560]] first being lawfully admitted as a T-1 nonimmigrant and until USCIS completes the adjudication of their applications for adjustment of status. Claims of good moral character will be evaluated on a case-by- case basis, taking into account section 101(f) of the Act and the standards of the community. The applicant must submit evidence of good moral character as follows: (1) An affidavit from the applicant attesting to his or her good moral character, accompanied by a local police clearance or a state- issued criminal background check from each locality or state in the United States in which the applicant has resided for 6 or more months during the requisite period in continued presence or T-1 nonimmigrant status. (2) If police clearances, criminal background checks, or similar reports are not available for some or all locations, the applicant may include an explanation and submit other evidence with his or her affidavit. (3) USCIS will consider other credible evidence of good moral character, such as affidavits from responsible persons who can knowledgeably attest to the applicant's good moral character. (4) An applicant who is under 14 years of age is generally presumed to be a person of good moral character and is not required to submit evidence of good moral character. However, if there is reason to believe that an applicant who is under 14 years of age may lack good moral character, USCIS may require evidence of good moral character. (h) Filing and decision. An application for adjustment of status from a T nonimmigrant under section 245(l) of the Act shall be filed with the USCIS office identified in the instructions to Form I-485. Upon approval of adjustment of status under this section, USCIS will record the alien's lawful admission for permanent residence as of the date of such approval and will notify the applicant in writing. Derivative family members' applications may not be approved before the principal applicant's application is approved. (i) Denial. If the application for adjustment of status or the application for a waiver of inadmissibility is denied, USCIS will notify the applicant in writing of the reasons for the denial and of the right to appeal the decision to the Administrative Appeals Office (AAO) pursuant to the AAO appeal procedures found at 8 CFR 103.3. Denial of the T-1 principal applicant's application will result in the automatic denial of a derivative family member's application. (j) Effect of Departure. If an applicant for adjustment of status under this section departs the United States, he or she shall be deemed to have abandoned the application, and it will be denied. If, however, the applicant is not under exclusion, deportation, or removal proceedings, and he or she filed a Form I-131, Application for Travel Document, in accordance with the instructions on the form, or any other appropriate form, and was granted advance parole by USCIS for such absences, and was inspected and paroled upon returning to the United States, he or she will not be deemed to have abandoned the application. If the adjustment of status application of such an individual is subsequently denied, he or she will be treated as an applicant for admission subject to sections 212 and 235 of the Act. If an applicant for adjustment of status under this section is under exclusion, deportation, or removal proceedings, USCIS will deem the application for adjustment of status abandoned as of the moment of the applicant's departure from the United States. (k) Inapplicability of 8 CFR 245.1 and 245.2. Sections 245.1 and 245.2 of this chapter do not apply to aliens seeking adjustment of status under this section. (l) Annual cap of T-1 principal applicant adjustments. (1) General. The total number of T-1 principal applicants whose status is adjusted to that of lawful permanent residents under this section may not exceed the statutory cap in any fiscal year. (2) Waiting list. All eligible applicants who, due solely to the limit imposed in section 245(l)(4) of the Act and paragraph (m)(1) of this section, are not granted adjustment of status will be placed on a waiting list. USCIS will send the applicant written notice of such placement. Priority on the waiting list will be determined by the date the application was properly filed, with the oldest applications receiving the highest priority. In the following fiscal year, USCIS will proceed with granting adjustment of status to applicants on the waiting list who remain admissible and eligible for adjustment of status in order of highest priority until the available numbers are exhausted for the given fiscal year. After the status of qualifying applicants on the waiting list has been adjusted, any remaining numbers for that fiscal year will be issued to new qualifying applicants in the order that the applications were properly filed. 9. Section 245.24 is added to read as follows: Sec. 245.24 Adjustment of aliens in U nonimmigrant status. (a) Definitions. As used in this section, the term: (1) Continuous Physical Presence means the period of time that the alien has been physically present in the United States and must be a continuous period of at least 3 years since the date of admission as a U nonimmigrant continuing through the date of the conclusion of adjudication of the application for adjustment of status. If the alien has departed from the United States for any single period in excess of 90 days or for any periods in the aggregate exceeding 180 days, the applicant must include a certification from the agency that signed the Form I-918, Supplement B, in support of the alien's U nonimmigrant status that the absences were necessary to assist in the criminal investigation or prosecution or were otherwise justified. (2) Qualifying Family Member means a U-1 principal applicant's spouse, child, or, in the case of an alien child, a parent who has never been admitted to the United States as a nonimmigrant under sections 101(a)(15)(U) and 214(p) of the Act. (3) U Interim Relief means deferred action and work authorization benefits provided by USCIS or the Immigration and Naturalization Service to applicants for U nonimmigrant status deemed prima facie eligible for U nonimmigrant status prior to publication of the U nonimmigrant status regulations. (4) U Nonimmigrant means an alien who is in lawful U-1, U-2, U-3, U-4, or U-5 status. (5) Refusal to Provide Assistance in a Criminal Investigation or Prosecution is the refusal by the alien to provide assistance to a law enforcement agency or official that had responsibility for the investigation or prosecution of persons in connection with the qualifying criminal activity after the alien was granted U nonimmigrant status. The Attorney General will determine whether the alien's refusal was unreasonable under the totality of the circumstances based on all available affirmative evidence. The Attorney General may take into account such factors as general law enforcement, prosecutorial, and judicial practices; the kinds of assistance asked of other victims of crimes involving an element of force, coercion, or fraud; the nature of the request to the alien for assistance; the nature of the victimization; the applicable guidelines for victim and witness assistance; and the specific circumstances of the applicant, including fear, severe traumatization (both mental and physical), and the age and maturity of the applicant. (b) Eligibility of U Nonimmigrants. Except as described in paragraph (c) of this section, an alien may be granted [[Page 75561]] adjustment of status to that of an alien lawfully admitted for permanent residence, provided the alien: (1) Applies for such adjustment; (2)(i) Was lawfully admitted to the United States as either a U-1, U-2, U-3, U-4 or U-5 nonimmigrant, as defined in 8 CFR 214.1(a)(2), and (ii) Continues to hold such status at the time of application; or accrued at least 4 years in U interim relief status and files a complete adjustment application within 120 days of the date of approval of the Form I-918, Petition for U Nonimmigrant Status; (3) Has continuous physical presence for 3 years as defined in paragraph (a)(1) of this section; (4) Is not inadmissible under section 212(a)(3)(E) of the Act; (5) Has not unreasonably refused to provide assistance to an official or law enforcement agency that had responsibility in an investigation or prosecution of persons in connection with the qualifying criminal activity after the alien was granted U nonimmigrant status, as determined by the Attorney General, based on affirmative evidence; and (6) Establishes to the satisfaction of the Secretary that the alien's presence in the United States is justified on humanitarian grounds, to ensure family unity, or is in the public interest. (c) Exception. An alien is not eligible for adjustment of status under paragraph (b) of this section if the alien's U nonimmigrant status has been revoked pursuant to 8 CFR 214.14(h). (d) Application Procedures for U nonimmigrants. Each U nonimmigrant who is requesting adjustment of status must submit: (1) Form I-485, Application to Register Permanent Residence or Adjust Status, in accordance with the form instructions; (2) The fee prescribed in 8 CFR 103.7(b)(1) or an application for a fee waiver; (3) The biometric services fee as prescribed in 8 CFR 103.7(b)(1) or an application for a fee waiver; (4) A photocopy of the alien's Form I-797, Notice of Action, granting U nonimmigrant status; (5) A photocopy of all pages of all of the applicant's passports valid during the required period (or equivalent travel document or a valid explanation of why the applicant does not have a passport) and documentation showing the following: (i) The date of any departure from the United States during the period that the applicant was in U nonimmigrant status; (ii) The date, manner, and place of each return to the United States during the period that the applicant was in U nonimmigrant status; and (iii) If the applicant has been absent from the United States for any period in excess of 90 days or for any periods in the aggregate of 180 days or more, a certification from the investigating or prosecuting agency that the absences were necessary to assist in the investigation or prosecution of the criminal activity or were otherwise justified; (6) A copy of the alien's Form I-94, Arrival-Departure Record; (7) Evidence that the applicant was lawfully admitted in U nonimmigrant status and continues to hold such status at the time of application; (8) Evidence pertaining to any request made to the alien by an official or law enforcement agency for assistance in an investigation or prosecution of persons in connection with the qualifying criminal activity, and the alien's response to such request; (9) Evidence, including an affidavit from the applicant, that he or she has continuous physical presence for at least 3 years as defined in paragraph (a)(1) of this section. Applicants should submit evidence described in 8 CFR 245.22. A signed statement from the applicant attesting to continuous physical presence alone will not be sufficient to establish this eligibility requirement. If additional documentation is not available, the applicant must explain why in an affidavit and provide additional affidavits from others with first-hand knowledge who can attest to the applicant's continuous physical presence by specific: (10) Evidence establishing that approval is warranted. Any other information required by the instructions to Form I-485, including whether adjustment of status is warranted as a matter of discretion on humanitarian grounds, to ensure family unity, or is otherwise in the public interest. (11) Evidence relating to discretion. An applicant has the burden of showing that discretion should be exercised in his or her favor. Although U adjustment applicants are not required to establish that they are admissible, USCIS may take into account all factors, including acts that would otherwise render the applicant inadmissible, in making its discretionary decision on the application. Where adverse factors are present, an applicant may offset these by submitting supporting documentation establishing mitigating equities that the applicant wants USCIS to consider when determining whether or not a favorable exercise of discretion is appropriate. Depending on the nature of the adverse factors, the applicant may be required to clearly demonstrate that the denial of adjustment of status would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the adverse factors, such a showing might still be insufficient. For example, USCIS will generally not exercise its discretion favorably in cases where the applicant has committed or been convicted of a serious violent crime, a crime involving sexual abuse committed upon a child, or multiple drug-related crimes, or where there are security- or terrorism-related concerns. (e) Continued assistance in the investigation or prosecution. Each applicant for adjustment of status under section 245(m) of the Act must provide evidence of whether or not any request was made to the alien to provide assistance, after having been lawfully admitted as a U nonimmigrant, in an investigation or prosecution of persons in connection with the qualifying criminal activity, and his or her response to any such requests. (1) An applicant for adjustment of status under section 245(m) of the Act may submit a document signed by an official or law enforcement agency that had responsibility for the investigation or prosecution of persons in connection with the qualifying criminal activity, affirming that the applicant complied with (or did not unreasonably refuse to comply with) reasonable requests for assistance in the investigation or prosecution during the requisite period. To meet this evidentiary requirement, applicants may submit a newly executed Form I-918, Supplement B, ``U Nonimmigrant Status Certification.'' (2) If the applicant does not submit a document described in paragraph (e)(1) of this section, the applicant may submit an affidavit describing the applicant's efforts, if any, to obtain a newly executed Form I-918, Supplement B, or other evidence describing whether or not the alien received any request to provide assistance in a criminal investigation or prosecution, and the alien's response to any such request. (i) The applicant should also include, when possible, identifying information about the law enforcement personnel involved in the case and any information, of which the applicant is aware, about the status of the criminal investigation or prosecution, including any charges filed and the outcome of any criminal proceedings, or whether the investigation or prosecution was dropped and the reasons. (ii) If applicable, an applicant may also provide a more detailed description [[Page 75562]] of situations where the applicant refused to comply with requests for assistance because the applicant believed that the requests for assistance were unreasonable. (3) In determining whether the applicant has satisfied the continued assistance requirement, USCIS or the Department of Justice may at its discretion contact the certifying agency that executed the applicant's original Form I-918, Supplement B, ``U Nonimmigrant Status Certification'' or any other law enforcement agency. (4) In accordance with procedures determined by the Department of Justice and the Department of Homeland Security, USCIS will refer certain applications for adjustment of status to the Department of Justice for determination of whether the applicant unreasonably refused to provide assistance in a criminal investigation or prosecution. If the applicant submits a document described in paragraph (e)(1) of this section, USCIS will not refer the application for consideration by the Department of Justice absent extraordinary circumstances. In other cases, USCIS will only refer an application to the Department of Justice if an official or law enforcement agency has provided evidence that the alien has refused to comply with requests to provide assistance in an investigation or prosecution of persons in connection with the qualifying criminal activity or if there are other affirmative evidence in the record suggesting that the applicant may have unreasonably refused to provide such assistance. In these instances, USCIS will request that the Department of Justice determine, based on all available affirmative evidence, whether the applicant unreasonably refused to provide assistance in a criminal investigation or prosecution. The Department of Justice will have 90 days to provide a written determination to USCIS, or where appropriate, request an extension of time to provide such a determination. After such time, USCIS may adjudicate the application whether or not the Department of Justice has provided a response. (f) Decision. The decision to approve or deny a Form I-485 filed under section 245(m) of the Act is a discretionary determination that lies solely within USCIS's jurisdiction. After completing its review of the application and evidence, USCIS will issue a written decision approving or denying Form I-485 and notify the applicant of this decision. (1) Approvals. If USCIS determines that the applicant has met the requirements for adjustment of status and merits a favorable exercise of discretion, USCIS will approve the Form I-485. Upon approval of adjustment of status under this section, USCIS will record the alien's lawful admission for permanent residence as of the date of such approval. (2) Denials. Upon the denial of an application for adjustment of status under section 245(m) of the Act, the applicant will be notified in writing of the decision and the reason for the denial in accordance with 8 CFR part 103. If an applicant chooses to appeal the denial to the Administrative Appeals Office pursuant to the provisions of 8 CFR 103.3, the denial will not become final until the appeal is adjudicated. (g) Filing petitions for qualifying family members. A principal U-1 applicant may file an immigrant petition under section 245(m)(3) of the Act on behalf of a qualifying family member as defined in paragraph (a)(2) of this section, provided that: (1) The qualifying family member has never held U nonimmigrant status; (2) The qualifying family relationship, as defined in paragraph (a)(2) of this section, exists at the time of the U-1 principal's adjustment and continues to exist through the adjudication of the adjustment or issuance of the immigrant visa for the qualifying family member; (3) The qualifying family member or the principal U-1 alien, would suffer extreme hardship as described in 8 CFR 245.24(g) (to the extent the factors listed are applicable) if the qualifying family member is not allowed to remain in or enter the United States; and (4) The principal U-1 alien has adjusted status to that of a lawful permanent resident, has a pending application for adjustment of status, or is concurrently filing an application for adjustment of status. (h) Procedures for filing petitions for qualifying family members. (1) Required documents. For each qualifying family member who plans to seek an immigrant visa or adjustment of status under section 245(m)(3) of the Act, the U-1 principal applicant must submit, either concurrently with, or after he or she has filed, his or her Form I-485: (i) Form I-929 in accordance with the form instructions; (ii) The fee prescribed in 8 CFR 103.7(b)(1) or an application for a fee waiver; (iii) Evidence of the relationship listed in paragraph (a)(2) of this section, such as a birth or marriage certificate. If primary evidence is unavailable, secondary evidence or affidavits may be submitted in accordance with 8 CFR 103.2(b)(2); (iv) Evidence establishing that either the qualifying family member or the U-1 principal alien would suffer extreme hardship if the qualifying family member is not allowed to remain in or join the principal in the United States. Extreme hardship is evaluated on a case-by-case basis, taking into account the particular facts and circumstances of each case. Applicants are encouraged to document all applicable factors in their applications, as the presence or absence of any one factor may not be determinative in evaluating extreme hardship. To establish extreme hardship to a qualifying family member who is physically present in the United States, an applicant must demonstrate that removal of the qualifying family member would result in a degree of hardship beyond that typically associated with removal. Factors that may be considered in evaluating whether removal would result in extreme hardship to the alien or to the alien's qualifying family member include, but are not limited to: (A) The nature and extent of the physical or mental abuse suffered as a result of having been a victim of criminal activity; (B) The impact of loss of access to the United States courts and criminal justice system, including but not limited to, participation in the criminal investigation or prosecution of the criminal activity of which the alien was a victim, and any civil proceedings related to family law, child custody, or other court proceeding stemming from the criminal activity; (C) The likelihood that the perpetrator's family, friends, or others acting on behalf of the perpetrator in the home country would harm the applicant or the applicant's children; (D) The applicant's needs for social, medical, mental health, or other supportive services for victims of crime that are unavailable or not reasonably accessible in the home country; (E) Where the criminal activity involved arose in a domestic violence context, the existence of laws and social practices in the home country that punish the applicant or the applicant's child(ren) because they have been victims of domestic violence or have taken steps to leave an abusive household; (F) The perpetrator's ability to travel to the home country and the ability and willingness of authorities in the home country to protect the applicant or the applicant's children; and (G) The age of the applicant, both at the time of entry to the United States and at the time of application for adjustment of status; and [[Page 75563]] (v) Evidence, including a signed statement from the qualifying family member and other supporting documentation, to establish that discretion should be exercised in his or her favor. Although qualifying family members are not required to establish that they are admissible on any of the grounds set forth in section 212(a) of the Act other than on section 212(a)(3)(E) of the Act, USCIS may take into account all factors, including acts that would otherwise render the applicant inadmissible, in making its discretionary decision on the application. Where adverse factors are present, an applicant may offset these by submitting supporting documentation establishing mitigating equities that the applicant wants USCIS to consider when determining whether or not a favorable exercise of discretion is appropriate. Depending on the nature of the adverse factors, the applicant may be required to clearly demonstrate that the denial of adjustment of status would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the adverse factors, such a showing might still be insufficient. For example, USCIS will generally not exercise its discretion favorably in cases where the applicant has committed or been convicted of a serious violent crime, a crime involving sexual abuse committed upon a child, or multiple drug-related crimes, or where there are security- or terrorism-related concerns. (2) Decision. The decision to approve or deny a Form I-929 is a discretionary determination that lies solely within USCIS's jurisdiction. The Form I-929 for a qualifying family member may not be approved, however, until such time as the principal U-1 applicant's application for adjustment of status has been approved. After completing its review of the application and evidence, USCIS will issue a written decision and notify the applicant of that decision in writing. (i) Approvals. (A) For qualifying family members who are outside of the United States, if the Form I-929 is approved, USCIS will forward notice of the approval either to the Department of State's National Visa Center so the applicant can apply to the consular post for an immigrant visa, or to the appropriate port of entry for a visa exempt alien. (B) For qualifying family members who are physically present in the United States, if the Form I-929 is approved, USCIS will forward notice of the approval to the U-1 principal applicant. (ii) Denials. If the Form I-929 is denied, the applicant will be notified in writing of the reason(s) for the denial in accordance with 8 CFR part 103. If an applicant chooses to appeal the denial to the Administrative Appeals Office pursuant to 8 CFR 103.3, the denial will not become final until the appeal is adjudicated. Denial of the U-1 principal applicant's application will result in the automatic denial of a qualifying family member's Form I-929. There shall be no appeal of such an automatic denial. (i) Application procedures for qualifying family members who are physically present in the United States to request adjustment of status. (1) Required documents. Qualifying family members in the United States may request adjustment of status by submitting: (i) Form I-485, Application to Register Permanent Residence or Adjust Status, in accordance with the form instructions; (ii) An approved Form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant; (iii) The fee prescribed in 8 CFR 103.7(b)(1) or an application for a fee waiver; and (iv) The biometric services fee as prescribed in 8 CFR 103.7(b)(1) or an application for a fee waiver. (2) Decision. The decision to approve or deny Form I-485 is a discretionary determination that lies solely within USCIS's jurisdiction. After completing its review of the application and evidence, USCIS will issue a written decision approving or denying Form I-485 and notify the applicant of this decision in writing. (i) Approvals. Upon approval of a Form I-485 under this section, USCIS shall record the alien's lawful admission for permanent residence as of the date of such approval. (ii) Denial. Upon the denial of any application for adjustment of status, the applicant will be notified in writing of the decision and the reason for the denial in accordance with 8 CFR part 103. If an applicant chooses to appeal the denial to the Administrative Appeals Office pursuant to the provisions of 8 CFR 103.3, the denial will not become final until the appeal is adjudicated. During the appeal period, the applicant may not obtain or renew employment authorization under 8 CFR 274a.12(c)(9). Denial of the U-1 principal applicant's application will result in the automatic denial of a qualifying family member's Form I-485; such an automatic denial is not appealable. (j) Effect of departure. If an applicant for adjustment of status under this section departs the United States, he or she shall be deemed to have abandoned the application, and it will be denied. If, however, the applicant is not under exclusion, deportation, or removal proceedings, and he or she filed a Form I-131, Application for Travel Document, in accordance with the instructions on the form, or any other appropriate form, and was granted advance parole by USCIS for such absences, and was inspected and paroled upon returning to the United States, he or she will not be deemed to have abandoned the application. If the adjustment of status application of such an individual is subsequently denied, he or she will be treated as an applicant for admission subject to sections 212 and 235 of the Act. If an applicant for adjustment of status under this section is under exclusion, deportation, or removal proceedings, USCIS will deem the application for adjustment of status abandoned as of the moment of the applicant's departure from the United States. (k) Exclusive jurisdiction. USCIS shall have exclusive jurisdiction over adjustment applications filed under section 245(m) of the Act. (l) Inapplicability of 8 CFR 245.1 and 245.2. The provisions of 8 CFR 245.1 and 245.2 do not apply to aliens seeking adjustment of status under section 245(m) of the Act. PART 299--PRESCRIBED FORMS 10. The authority citation in part 299 continues to read as follows: Authority: 8 U.S.C. 1101 and note, 1103; 8 CFR part 2. 11. Section 299.1 is amended in the table by adding the entries ``I- 485, Supplement E'' and ``I-929'', in proper alpha/numeric sequence to read as follows: Sec. 299.1 Prescribed forms. * * * * * [[Page 75564]] --------------------------------------- (SEE PDF VERSION FOR TABLE) --------------------------------------- 12. Section 299.5 is amended in the table by adding the entries ``I- 485, Supplement E'' and ``I-929'', in proper alpha/numeric sequence to read as follows: Sec. 299.5 Display of control numbers. * * * * * --------------------------------------- (SEE PDF VERSION FOR TABLE) --------------------------------------- Paul A. Schneider, Deputy Secretary. [FR Doc. E8-29277 Filed 12-11-08; http://www.Dr-Immigration.com/news/shownews.asp?newsID=34 Sat, 7 Mar 2009 20:25:59 EST US Department of Justice Final Rule on Professional Conduct for Practitioners by Immigration lawyer in NYC BY US DOJ: DOJ Publishes Final Rule on Professional Conduct for Practitioners [Federal Register: December 18, 2008 (Volume 73, Number 244)] [Rules and Regulations] [Page 76914-76927] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr18de08-7] ----------------------------------------- DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8 CFR Parts 1001, 1003, 1292 [Docket No. EOIR 160F; A.G. Order No. 3028-2008] RIN 1125-AA59 Professional Conduct for Practitioners--Rules and Procedures, and Representation and Appearances AGENCY: Executive Office for Immigration Review, Justice. ACTION: Final rule. ----------------------------------------- SUMMARY: This final rule adopts, in part, the proposed changes to the rules and procedures concerning the standards of representation and professional conduct for practitioners who appear before the Executive Office for Immigration Review (EOIR), which includes the immigration judges and the Board of Immigration Appeals (Board). It also clarifies who is authorized to represent and appear on behalf of individuals in proceedings before the Board and the immigration judges. Current regulations set forth who may represent individuals in proceedings before EOIR and also set forth the rules and procedures for imposing disciplinary sanctions against practitioners who engage in criminal, unethical, or unprofessional conduct, or in frivolous behavior before EOIR. The final rule increases the number of grounds for discipline, improves the clarity and uniformity of the existing rules, and incorporates miscellaneous technical and procedural changes. The changes herein are based upon the Attorney General's initiative for improving the adjudicatory processes for the immigration judges and the Board, as well as EOIR's operational experience in administering the disciplinary program since the current process was established in 2000. DATES: Effective date: This rule is effective January 20, 2009. FOR FURTHER INFORMATION CONTACT: John N. Blum, Acting General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, [[Page 76915]] Falls Church, Virginia 22041, telephone (703) 305-0470 (not a toll-free call). SUPPLEMENTARY INFORMATION: I. Public Participation On July 30, 2008, the Attorney General published a proposed rule in the Federal Register (73 FR 44178). The comment period ended September 29, 2008. Comments were received from four commenters, including a local bar association, a national immigration lawyer association, and two attorneys. Because some comments overlap, and three of the commenters covered multiple topics, the comments are addressed by topic, rather than by reference to each specific comment and commenter. The provisions of the proposed rule on which the public did not comment are adopted without change in this final rule. Additional technical changes and changes made in response to public comments are discussed below. II. Regulatory Background This rule amends 8 CFR parts 1001, 1003, and 1292 by changing the present definitions and procedures concerning professional conduct for practitioners, which term includes attorneys and representatives, who practice before the Executive Office for Immigration Review (EOIR). This rule implements measures in response to the Attorney General's assessment of EOIR with respect to EOIR's authority to discipline and deter professional misconduct. The rule also aims to improve EOIR's ability to effectively regulate practitioner conduct by implementing technical changes with respect to the definition of attorney and clarifying who is authorized to represent and appear on behalf of individuals in proceedings before the Board of Immigration Appeals (Board) and the immigration judges. The regulations concerning representation and appearances were last promulgated on May 1, 1997 (62 FR 23634) (final rule). The regulations for the rules and procedures concerning professional conduct were last promulgated as a final rule on June 27, 2000 (65 FR 39513). When it was part of the Department of Justice, the former Immigration and Naturalization Service (INS) incorporated by reference in its regulations EOIR's grounds for discipline and procedures for disciplinary proceedings. Since then, the functions of the former INS were transferred from the Department of Justice (Department) to the Department of Homeland Security (DHS). DHS's immigration regulations are contained in chapter I in 8 CFR, while 8 CFR chapter V now contains the regulations governing EOIR. The rules and procedures concerning professional conduct for representation and appearances before the immigration judges and the Board are now codified in 8 CFR part 1003, subpart G. The rules for representation and appearances before the immigration judges and the Board are codified in 8 CFR part 1292. The rules for representation and appearances and for professional conduct before DHS and its components remain codified in 8 CFR parts 103 and 292. Both sets of rules provide a unified process for disciplinary hearings as provided in 8 CFR 1003.106, regardless whether the hearing is instituted by EOIR or by DHS. See generally Matter of Shah, 24 I&N Dec. 282 (BIA 2007) (imposing discipline on attorney who knowingly and willfully misled USCIS by presenting an improperly obtained certified Labor Condition Application in support of a nonimmigrant worker petition). Finally, both sets of rules provide for cross-discipline, which allows EOIR to request that discipline imposed against a practitioner for misconduct before DHS also be imposed with respect to that practitioner's ability to represent clients before the immigration judges and the Board, and vice versa. See 8 CFR 292.3(e)(2) (DHS) and 1003.105(b) (EOIR). Additional background information regarding professional conduct rules for immigration proceedings can be found in the proposed rule, 73 FR at 44178-180. This rule amends only the EOIR regulations governing representation and appearances, and professional conduct under chapter V in 8 CFR. This rule does not make any changes to the DHS regulations governing representation and appearances or professional conduct. Currently, the disciplinary regulations allow EOIR to sanction practitioners, including attorneys and certain non-attorneys who are permitted to represent individuals in immigration proceedings (``representatives''), when discipline is in the public interest; namely, when a practitioner has engaged in criminal, unethical, or unprofessional conduct or frivolous behavior. Sanctions may include expulsion or suspension from practice before EOIR and DHS, and public or private censure. EOIR frequently suspends or expels practitioners who are subject to a final or interim order of disbarment or suspension by their state bar regulatory authorities--this is known as ``reciprocal'' discipline. The Attorney General completed a comprehensive review of EOIR's responsibilities and programs, and determined that, among other things, the immigration judges should have the tools necessary to control their courtrooms and protect the adjudicatory system from fraud and abuse. Accordingly, the Attorney General determined that the existing regulations, including those at 8 CFR 1003.101-109, should be amended to provide for additional sanction authority for false statements, frivolous behavior, and other gross misconduct. Additionally, the Attorney General found that the Board should have the ability to effectively sanction litigants and practitioners for defined categories of gross misconduct. As a result, this rule seeks to preserve the fairness and integrity of immigration proceedings, and increase the level of protection afforded to aliens in those proceedings by defining additional categories of behavior that constitute misconduct. In part, the rule responds to the Attorney General's findings and conclusions by adding substantive grounds of misconduct modeled on the American Bar Association Model Rules of Professional Conduct (2006) (ABA Model Rules) that will subject practitioners to sanctions if they violate such standards and fail to provide adequate professional representation for their clients. Specifically, the grounds for sanctionable misconduct have been revised to include language that is similar, and sometimes identical, to the language found in the ABA Model Rules, as such disciplinary standards are widely known and accepted within the legal profession. Although EOIR does not seek to supplant the disciplinary functions of the various state bars, this rule aims to strengthen the existing rules in light of the apparent gaps in the current regulation. See Matter of Rivera-Claros, 21 I&N Dec. 599, 604 (BIA 1996). In addition, these revisions will make the EOIR professional conduct requirements more consistent with the ethical standards applicable in most states. This rule will also enhance the existing regulation by amending the current procedures and definitions through technical modifications that are more consistent with EOIR's authority to regulate practitioner misconduct. See Koden v. U.S. Dep't of Justice, 564 F.2d 228, 233 (7th Cir. 1977); 8 U.S.C. 1103, 1362. For example, the rule amends the definition of ``attorney'' at 8 CFR 1001.1(f) by adding language stating that an attorney is one who is eligible to practice law in a U.S. state or territory. [[Page 76916]] Additionally, this rule amends the language at 8 CFR 1292.1(a)(2) to clarify that law students and law graduates must be students and graduates of accredited law schools in the United States. Accordingly, the rule will allow EOIR to investigate and prosecute instances of misconduct more effectively and efficiently while ensuring the due process rights of both the client and the practitioner. III. Responses to Comments A. General Comments Concerning the Practitioner Discipline Regulations Comment. One commenter raised concern about the ability of immigration judges to use these rules ``to commence retaliatory disciplinary proceedings against attorneys who complain of their * * * practices.'' Response. The comment misunderstands EOIR's disciplinary procedural structure. In 2000, the Department addressed the issue as to whether immigration judges had the authority to initiate disciplinary proceedings or impose disciplinary sanctions. See Professional Conduct for Practitioners--Rules and Procedures, 65 FR 39513, 39520-39521 (June 27, 2000). Under the current regulations, which have been in place since then, immigration judges have no authority to initiate disciplinary proceedings against a particular attorney. Immigration judges can file complaints about attorneys with EOIR's disciplinary counsel, just as aliens, attorneys, or others involved in an immigration proceeding may file such complaints. These complaints are independently reviewed by EOIR's disciplinary counsel, who then determines, after an independent investigation, whether to close the complaint, informally resolve it, or initiate formal disciplinary proceedings. If an attorney believes that an immigration judge improperly filed a complaint as a retaliatory action, the attorney may file a complaint against the immigration judge with the Office of the Chief Immigration Judge. See www.usdoj.gov/eoir/sibpages/IJConduct.htm. Comment. One organization commented that EOIR should adjust the practitioner disciplinary procedures because EOIR is greatly expanding the scope of its grounds for discipline. The commenter stated that up until the proposed rule, EOIR mainly imposed discipline due to criminal convictions or reciprocally based on discipline imposed by other jurisdictions. The commenter was concerned that the current disciplinary structure is not adequate for the new independent disciplinary scheme that the proposed rule contemplated establishing. Response. EOIR regularly cooperates with attorney disciplinary agencies at the state and federal levels to impose reciprocal discipline with regard to practitioners who have been suspended or disbarred in other jurisdictions. EOIR also takes prompt action to prohibit practitioners who have been convicted of serious crimes from practicing before EOIR. However, EOIR's practitioner disciplinary procedures were never intended to adjudicate matters involving only reciprocal discipline or criminal convictions. At its inception 50 years ago, the practitioner disciplinary regulations provided ten grounds for discipline that were original in nature. See 23 FR 2670, 2672-2673 (April 23, 1958). These regulations contemplated the possibility that practitioners would be charged with misconduct arising from practice before the Department, and that Department officials would need to adjudicate these charges without reference to another tribunal's findings as to misconduct, whether ethical or criminal in nature. As reflected in several published cases, these practitioner disciplinary procedures have been used to adjudicate original charges of professional misconduct. See Matter of Sparrow, 20 I&N Dec. 920 (BIA 1994) (case involving both reciprocal and original charges); Matter of De Anda, 17 I&N Dec. 54 (BIA, A.G. 1979); Matter of Solomon, 16 I&N Dec. 388 (BIA, A.G. 1977); Matter of Koden, 15 I&N Dec. 739 (BIA 1974, A.G. 1976). None of these cases reveals a deficiency in the procedures, and these procedures were upheld by a federal court of appeals. See Koden U.S. Dep't of Justice, 564 F.2d 228, 233-235 (7th Cir. 1977). In 2000, the Department completely reviewed, revised, and expanded the practitioner disciplinary procedures. 65 FR at 39523. These regulations expressly created summary disciplinary procedures for cases based on reciprocal discipline and criminal convictions, which are not used in proceedings involving original charges of misconduct. See 8 CFR 1003.103-106. When the Department published these new procedures, it also consolidated and added additional grounds for discipline. The Department's major renovations in 2000 to the hearings and appeals procedures for original charges of misconduct were intended to be sufficient to adjudicate the eleven original grounds for discipline in the current regulations. The addition of several more grounds for discipline established in this final rule does not change the sufficiency or adequacy of these existing procedures. Comment. One commenter stated that EOIR should define ``accredited representative'' and should issue identification cards to accredited representatives so that immigration judges will be able to verify that an individual appearing in court is accredited to practice before EOIR. Response. The regulations at 8 CFR 1292.1 presently state that a person entitled to representation before EOIR may be represented by, among others, an accredited representative. This section cross- references 8 CFR 1292.2, which provides detailed information concerning accredited representatives. Because accredited representatives must go through a special process to receive accreditation, the regulations already provide more information about accredited representatives than they do about attorneys or any other type of representative. Further, 8 CFR 1003.102(a)(2) specifies the compensation that accredited representatives may receive for their services. Therefore, it is unnecessary to further define the term ``accredited representative.'' The Department also declines, at this time, to issue identification cards to accredited representatives. The regulations at 8 CFR 1292.2(d) require EOIR to maintain a roster of accredited representatives. This roster is available online at http:// www.usdoj.gov/eoir/statspub/ accreditedreproster.pdf. Immigration judges may easily refer to the roster to determine if an individual is an accredited representative. Thus, contrary to the commenter's concern, immigration judges are not ``forced to accept assertions of accredited representatives that they are, in fact, accredited.'' Comment. All of the commenters proposed that the Department apply the professional conduct regulations to government attorneys involved in immigration proceedings. Three commenters asserted that the practitioner disciplinary regulations should apply to both private practitioners and DHS attorneys who practice before EOIR. Further, two commenters indicated that immigration judge misconduct is a problem and one of those commenters argued that rules governing the conduct of immigration judges should be published contemporaneously with these final rules. Response. As an initial matter, the Department would note for clarity that the ``rule'' of professional conduct for immigration judges referenced by the [[Page 76917]] commenter was not a proposed rule, but a notice published in the Federal Register seeking comment on draft ``Codes of Conduct for the Immigration Judges and Board Members.'' 72 FR 35510 (June 28, 2007). This notice did not include a process by which to discipline immigration judges or Board Members. Rather, this notice recognized certain ``canons'' of professional conduct. Id. at 35510-12. Attorneys concerned with an immigration judge's conduct may follow the procedures for filing a complaint regarding the conduct of an immigration judge. See http://www.usdoj.gov/eoir/sibpages/IJConduct.htm. In 2000, the Department addressed the reasons why government attorneys, including immigration judges, are not subject to the same process used for disciplining practitioners. See 65 FR at 39522. The reasons stated in 2000 with respect to the current practitioner disciplinary process remain valid, notwithstanding the fact that the government is now represented in removal proceedings by attorneys working for DHS rather than the former INS. Like the former INS attorneys who were subject to investigation by the Department's Inspector General and Office of Professional Responsibility, DHS's Office of the Inspector General and the Office of Professional Responsibility for Immigration and Customs Enforcement investigate DHS attorneys. Further, DHS attorneys are also required to comply with the Standards of Ethical Conduct for Employees of the Executive Branch, found at 5 CFR part 2635, and other standards applicable to government employees. In fact, DHS has adopted a formal disciplinary process for its employees that provides similar hearing and appeal rights as EOIR's practitioner disciplinary process, including removal or suspension from employment. See 5 CFR 9701.601- 710. Moreover, applying this rule to DHS attorneys was not included in the proposed rule, and cannot be adopted in this final rule in the absence of prior notice and comment. Accordingly, the Department declines to adopt the comments requesting contemporaneous publication of the Code of Conduct for Immigration Judges and Board Members and a rule addressing professional conduct of government attorneys. Comment. Two commenters indicated that there is a perception that an inherent conflict of interest exists when immigration judges adjudicate practitioner disciplinary cases. One of the commenters expressed the view that immigration judges do not have training in attorney discipline matters, private practice experience, or sufficient time to spare from their immigration case workload. The commenter argued that EOIR should constitute disciplinary hearing panels composed of private practice attorneys and members of the public to hear and decide practitioner discipline cases. Response. The use of immigration judges as adjudicators in practitioner disciplinary cases was codified over twenty years ago, in 1987. See Executive Office for Immigration Review; Representation and Appearances, 52 FR 24980 (July 2, 1987). In 2000, the Department amended the practitioner disciplinary regulations to provide that both immigration judges and administrative law judges could be assigned to adjudicate practitioner disciplinary cases. When that final rule was published, the Department gave a detailed explanation concerning the use of immigration judges as adjudicating officials in practitioner disciplinary cases. See 65 FR at 39515-16. That explanation remains valid. However, in recognition that these final rules significantly increase the regulation of practitioner conduct, EOIR has chosen to create a corps of adjudicating officials made up of immigration judges and administrative law judges who will receive specialized training in professional responsibility law, and who will hear and decide practitioner disciplinary cases as part of their normal caseload. Further, EOIR acknowledges the concern raised by the commenters and notes that the current regulations require that an immigration judge appointed to hear disciplinary cases is not the complainant and not one whom the practitioner regularly appears before. 8 CFR 1003.106(a)(1)(i). B. Section 1003.102--Grounds of Misconduct 1. Section 1003.102(e)--Reciprocal Discipline This rule sought to amend the existing rules that only allow the imposition of discipline where a practitioner resigns ``with an admission of misconduct'' to allow ``the imposition of discipline on an attorney who resigns while a disciplinary investigation or proceeding is pending.'' 73 FR at 44180. No comments were received regarding this part of the proposed rule. Accordingly, this rule will be adopted without change. 2. Section 1003.102(k)--Previous Finding of Ineffective Assistance of Counsel Comment. Two organizations commented on the proposed amendment to 8 CFR 1003.102(k), which would expand the existing rule to sanction practitioners based on a finding of ineffective assistance of counsel by a federal court. One commenter questioned whether it was appropriate for a finding of ineffective assistance of counsel to serve as a ground for discipline. The commenter asserted that ineffective assistance of counsel is normally raised by aliens when seeking reopening of unfavorable decisions in their cases, and that because of this, allegations of ineffective assistance of counsel are ``rampant.'' The commenter thought that the circumstances under which ineffective assistance of counsel is raised can put well-intentioned and competent attorneys at risk of discipline. The other commenter appreciated that the proposed rule would expand consideration of ineffective assistance of counsel findings ``outside the parameters of the immigration courtroom.'' This commenter also suggested that the rule be revised to make clear that the ground of discipline must be based on a ``final order'' finding ineffective assistance of counsel, either by an immigration judge, the Board, or a federal court. Response. The purpose of amending this rule is to permit EOIR to impose disciplinary sanctions on practitioners who have been found to have provided ineffective assistance of counsel in immigration proceedings before EOIR, regardless of whether that finding of ineffective assistance of counsel was made by an immigration judge, the Board, or a federal court. Although one of the commenters thought that practitioners would be placed at risk for discipline based on allegations of ineffective assistance of counsel that are made by aliens only seeking reopening of their immigration cases, EOIR has been administering this ground for discipline since 2000 without inappropriately disciplining a practitioner. As stated in the supplemental information for the rule that proposed ineffective assistance of counsel as a ground for discipline, an adjudicating official may determine not to impose disciplinary sanctions notwithstanding a finding of ineffective assistance of counsel in an immigration proceeding. See Executive Office for Immigration Review; Professional Conduct for Practitioners--Rules and Procedures, 63 FR 2901, 2902 (January [[Page 76918]] 20, 1998) (proposed rule). Moreover, the EOIR disciplinary counsel does not automatically initiate disciplinary proceedings based on a finding of ineffective assistance of counsel. Rather, proceedings are initiated based on EOIR disciplinary counsel's independent review of the matter. Finally, if proceedings are initiated, practitioners receive a full and fair opportunity to dispute the underlying finding of ineffective assistance of counsel before being disciplined. Another commenter agreed with the proposed amendment to this ground for discipline; however, the commenter misunderstood the scope of this amendment. The EOIR disciplinary process remains focused on disciplining practitioners based on a finding of ineffective assistance of counsel that occurred before EOIR in immigration proceedings (or before DHS in the case of charges brought by the DHS disciplinary counsel). One commenter also suggested that EOIR limit discipline to matters in which the finding of ineffective assistance of counsel was made in a final order. We will not adopt this recommendation because the finding of ineffective assistance of counsel is usually not located in a final order by an immigration judge or the Board. This is because aliens most commonly assert ineffective assistance of counsel as a basis for getting their cases reopened. If an alien prevails in the ineffective assistance of counsel claim, the adjudicator who issues this determination will do so in an order that reopens the proceeding, and such an order granting reopening is itself not a final order because further proceedings will be held after the case is reopened. Therefore, for all of the reasons stated above, the Department adopts the proposed amendment to this ground for discipline as originally proposed. 3. Section 1003.102(l)--Failure To Appear in a Timely Manner One commenter provided a comment agreeing with this change. No other comments were received. Accordingly, this rule is adopted without change. 4. Section 1003.102(m)--Assist in the Unauthorized Practice of Law Comment. Two comments were received regarding section 1003.102(m). One comment stated that this is ``one of the most valuable rules proposed.'' The other commenter did not take a position on the rule, but suggested revising the rule to include a ``knowingly'' mens rea requirement to this ground of discipline that prohibits practitioners from assisting in the unauthorized practice of law. Response. The Department did not propose a modification to this ground for discipline. This ground was only re-printed in the proposed rule to delete the period at the end of this provision and add a semi- colon. Accordingly, the Department declines to make any substantive amendments to this rule, such as including the word ``knowingly.'' Such a change is not necessary because practitioners should make certain that any other practitioner they work with is authorized to practice before EOIR. However, the Department believes that additional clarification of what constitutes the practice of law would be helpful to practitioners. Therefore, a clarifying statement will be added to this ground for discipline that will state that the practice of law before EOIR means engaging in practice or preparation as those terms are defined in 8 CFR 1001.1(i) and (k). 5. Section 1003.102(n)--Conduct Prejudicial to the Administration of Justice Comment. Two commenters were concerned with the language used in this proposed provision. One commenter believed it was too vague. The other commenter, while acknowledging that this proposed provision is based on ABA Model Rule 8.4(d), stated that this rule was extremely broad and suggested that the Department narrow this ground by adding text from the supplemental information in the proposed rule or from the ABA's comments to Rule 8.4(d). Response. This ground for discipline is based on ABA Model Rule 8.4(d). As such, it is a well-known ethical rule with which most attorneys must comply whenever representing parties before a tribunal. Therefore, we do not believe that additional language needs to be added to the proposed rule. The Attorney General expects that EOIR's disciplinary counsel, adjudicating officials, and the Board will consider the ABA's comments to ABA Model Rule 8.4(d), and how this rule has been applied in interpreting and applying this regulatory provision, so that this new ground for discipline would not be applied in a manner that is inconsistent with the prevailing interpretations with which attorneys are already familiar. Therefore, we are adopting the proposed rule without change. 6. Section 1003.102(o)--Competence Comment. One commenter commended the addition of this provision, which is based on ABA Model Rule 1.1. The commenter suggested that the Department add additional text to the provision from the ABA's comments 1, 3, and 5 to Rule 1.1. Response. As indicated in the proposed rule, this ground for discipline uses text that is nearly identical to ABA Model Rule 1.1. The proposed rule also included one sentence from the ABA's comment 5 to Rule 1.1. The Department has considered adding additional text to this ground for discipline from the ABA's comments 1, 3, and 5 to Rule 1.1. However, the Department believes that the proposed rule, as originally proposed, provides sufficient information for practitioners to be on notice of their duty to represent their clients competently. The Department's decision not to add additional text does not mean that the ABA's comments 1, 3, and 5 are not relevant to interpreting this provision. Because this ground for discipline is based on ABA Model Rule 1.1, relevant ABA comments concerning Rule 1.1, and relevant judicial interpretations, can be considered as an important aid in interpreting this ground for discipline. 7. Section 1003.102(p)--Scope of Representation Comment. One commenter was concerned by this provision because the commenter believed that the provision would interfere with retainer agreements between attorneys and their clients, which are traditionally governed by state law. The commenter agreed that immigration judges should have a role in determining whether a practitioner can withdraw from a case; however, the commenter thought that this provision would require practitioners to continue to represent a client even when there is a conflict of interest. The commenter urged the Department to adopt standards governing whether immigration judges should permit the withdrawal of practitioners from cases. Finally, the commenter suggested that the Department permit limited appearances and allow practitioners to withdraw from cases in which clients have failed to pay fees. Another commenter views this change as ``an excellent proposal'' but suggests that the rule require clear contracts between attorneys and clients. Response. Upon review, the Department has decided to remove the text from the proposed provision that is not based on ABA Model Rule 1.2(a) and add additional text from ABA Model Rule 1.2(a) concerning a practitioner's ability to ``take such action on behalf of the client as is impliedly authorized to carry out the representation.'' The Department is [[Page 76919]] making this change because this provision, which involves the scope of representation, should not include text discussing the withdrawal or the termination of employment of practitioners. The commenter's suggestion that the Department adopt standards governing whether immigration judges should permit the withdrawal of practitioners is outside the scope of this rule. This rule only involves practitioner disciplinary matters and does not include proposed amendments to procedures in immigration proceedings, such as 8 CFR 1003.17. Likewise, the suggestion that the Department permit limited appearances is an issue involving immigration proceedings that is not appropriately addressed in this final rule. 8. Section 1003.102(q)--Diligence Comment. One commenter noted appreciation for this proposal but suggested that the Department add a good cause exception to the requirement that practitioners act with diligence and promptness. The commenter stated that there may always be unforeseen emergencies that occur. The commenter also suggested that the Department permit nunc pro tunc filings in immigration cases for good cause shown. Response. The inclusion in this provision of a good cause exception is unnecessary. This provision requires ``reasonable'' diligence and promptness. Therefore, practitioners will not be expected to anticipate every possible contingency, such as a truly unforeseen emergency, in order to avoid discipline under this rule. However, practitioners should make an effort to prepare for foreseeable exigencies. As stated in response to a previous comment, this rule only involves practitioner disciplinary matters and does not include proposed amendments to procedures in immigration proceedings. Therefore, the Department will not adopt, as part of this final rule, a provision that permits late filings if there is good cause. 9. Section 1003.102(r)--Communication Comment. Two commenters stated that this provision's requirement that practitioners communicate with aliens in their native language would be unduly burdensome. One commenter believes that the rule would transfer the expense of translation services from aliens to practitioners. Another commenter believes that the requirements in this provision would make it difficult for aliens who speak unusual foreign languages to obtain representation. The commenter asserted that aliens often rely on friends and family to translate for them, and practitioners should not be required to ensure that those translations are accurate. One commenter suggested that this provision should only require practitioners to make a diligent and reasonable effort to communicate in the alien's language. Finally, one commenter was concerned that the provision would require practitioners to locate their clients to communicate with them; the commenter suggested that the rule only require communication using the contact information provided to the practitioner from the client. Response. The Department accepts the suggestions from the commenters and the final version of this provision has been modified to ensure that practitioners are not required to provide all translation services for their clients. However, practitioners must make reasonable efforts to communicate with clients in a language that the client understands. Further, the Department agrees that practitioners should not have to locate their clients and should be able to rely on the contact information provided by their clients. However, if a practitioner cannot locate his or her client, the practitioner is responsible for informing EOIR that the practitioner is unable to contact his or her client. 10. Section 1003.102(s)--Candor Toward the Tribunal Comment. One commenter took issue with the explanation for this rule in the supplemental information and requested that the rule make clear that ``the duty of the lawyer is only to make reasonable disclosure of contrary authority known to him,'' not to assist DHS in preparing its brief against the lawyer's client. Response. This provision is extremely narrow and will not require practitioners to seek out legal authority that is contrary to their client's cases just to disclose this information to EOIR. This provision only applies to controlling legal authority that is directly contrary to the client's position when this controlling legal authority is already known to the practitioner and the other party did not provide it to EOIR. In this regard, the commenter is correct that this rule does not view an alien's attorney as having a duty to also conduct research for the opposing party. 11. Section 1003.102(t)--Notice of Entry of Appearance Comment. One commenter thought that the proposed provision was too broad because it subjects practitioners who provide pro bono services to discipline if they do not sign pleadings or submit a Form EOIR-27 or EOIR-28. The commenter suggested that disciplinary sanctions only be imposed when filings demonstrate a lack of competence or preparation, or the practitioner has undertaken ``full client services.'' Another commenter approved of this change, but suggested that pro se aliens be provided notice of this requirement in their own language and that immigration judges inform all who appear before the court of the requirement. Response. The Department believes that all practitioners should submit Forms EOIR-27 and EOIR-28, and sign all filings made with EOIR, in cases where practitioners engage in ``practice'' or ``preparation'' as those words are defined in 8 CFR 1001.1(i) and (k). It is appropriate to require practitioners who engage in ``practice'' or ``preparation,'' whether it is for a fee or on a pro bono basis, to enter a notice of appearance and sign any filings submitted to EOIR. As stated in the supplemental information to the proposed rule, this provision is meant to advance the level of professional conduct in immigration matters and foster increased transparency in the client- practitioner relationship. Any practitioner who accepts responsibility for rendering immigration-related services to a client should be held accountable for his or her own actions, including the loss of the privilege of practice before EOIR, when such conduct fails to meet the minimum standards of professional conduct in 8 CFR 1003.102. It is difficult for EOIR to enforce those standards when practitioners fail to enter a notice of appearance or sign filings made with EOIR. However, in an effort to ensure clarity of this ground for discipline, a sentence will be added to this provision that makes it clear that a notice of appearance must be submitted and filings signed in all cases where practitioners engage in ``practice'' or ``preparation.'' If a practitioner provides pro bono services that do not meet these definitions, then a notice of appearance is not necessary. As for the suggestions made by the second commenter, the Department declines to codify in the regulations a rule that requires notice to pro se aliens or anyone appearing before an immigration judge of an attorney's obligation to enter a Notice of Appearance. The scope of this rule is to provide notice to attorneys of their responsibilities when engaging in practice and preparation before EOIR and to provide grounds for discipline when an attorney fails to carry through on his or her responsibilities. [[Page 76920]] 12. Section 1003.102(u)--Repeated Filings Indicating a Substantial Failure to Competently and Diligently Represent the Client Comment. One commenter stated that the proposed rule fails to acknowledge that boilerplate language is sometimes appropriate where used in briefs where cases present common issues of law, analysis, and argument. The commenter was concerned that the proposed rule would punish the repeated use of briefing materials regardless of the material's relevance to the case at hand. The commenter proposed limiting the proposed rule's effect to filings that reflect incorporation of incorrect or irrelevant material. Another commenter agrees with this change, but questions how the ``repeated filings'' will be tracked such that the rule will be enforceable. Response. The rule, as written, is sufficient to meet the concerns of the first commenter and is therefore adopted as the final rule. The rule makes it clear that conduct that will lead to sanctions only includes filings that use boilerplate language that reflect little or no attention to the specific factual or legal issues in a case and thereby show a lack of competence or diligence by the practitioner. As stated in the supplemental information to the proposed rule, EOIR seeks to deter practitioners from filing briefs that provide no recitation of the specific facts in the case and fail to explain how the cited law in the brief applies to the facts of the case. Therefore, this rule is sufficiently circumscribed to ensure that a practitioner's use of a legal argument in one case, which is copied from the practitioner's brief in another case, will not subject the practitioner to sanctions unless the argument fails to connect the legal issues raised in the brief with the specific facts in the case in a manner that shows a lack of competence and diligence. As for the enforceability of the rule, the proposed rule explained that the Board has already experienced these situations. 73 FR at 44183. In light of this experience, the Board has already developed the means to identify cases where the same attorney is filing boilerplate briefs. Immigration judges, on the other hand, may be able to identify instances of concern based on their ongoing interaction with the practitioners who appear before them. C. Section 1003.103--Immediate Suspension and Summary Disciplinary Proceedings Comment. One commenter stated that a petition to immediately suspend a practitioner should not be filed until a final order is issued suspending, disbarring, or criminally convicting the practitioner in another jurisdiction. Response. The regulations currently permit the imposition of an immediate suspension of a practitioner who has been suspended or disbarred on an interim basis. The proposed rule sought to clarify this authority; however, the proposed rule did not seek to broaden or change it. It is appropriate to immediately suspend a practitioner based on an interim suspension from a state licensing authority or a Federal court pending the issuance of a final order because any practitioner who is under a suspension from another jurisdiction does not meet the definition of an ``attorney'' under 8 CFR 1001.1(f). Such a practitioner is not qualified to practice before EOIR under 8 CFR 1292.1(a)(1). Further, it is beyond argument that it is appropriate to immediately suspend practitioners who have been convicted of serious crimes. The regulations protect practitioners because they require that all criminal appeals be completed before EOIR will issue a final order imposing a suspension or expulsion on a criminally convicted practitioner. See 8 CFR 1003.103(b). Comment. One commenter was concerned that EOIR did not have a provision that would permit it to vacate an immediate suspension order imposed on a practitioner who later has an underlying state bar suspension vacated. Response. The regulations expressly provide that upon a showing of good cause, the Board may set aside an immediate suspension if it is in the interests of justice to do so. 8 CFR 1003.103(a)(2). If an immediate suspension was solely predicated upon a state bar suspension that was vacated, it would be in the interests of justice for the Board to set aside its immediate suspension order. Comment. One organization disagreed with the proposed change in the standard of proof in practitioner disciplinary proceedings from ``clear, unequivocal, and convincing evidence'' to ``clear and convincing evidence.'' The commenter stated that removing ``unequivocal'' makes lawyers more vulnerable to discipline without providing a corresponding benefit to the justice system and indicated that the standard of proof in practitioner disciplinary cases should not mirror those in removal proceedings. Response. The proposed rule indicated the Department's intention to change the standard of proof in practitioner disciplinary cases to clear and convincing evidence because this is now the standard of proof used in removal proceedings adjudicated by the Board and immigration judges. This is appropriate given the reason why ``unequivocal'' was first adopted as part of the standard of proof in practitioner disciplinary proceedings. See Matter of Koden, 15 I&N Dec. 739, 748 (BIA 1974, A.G. 1976). In Koden, the Board decided that the standard of proof should be clear, convincing, and unequivocal evidence, rather than clear and convincing evidence as argued by the respondent, because many other jurisdictions used ``unequivocal'' as part of their disciplinary standard, and also because the Board and other immigration adjudicators were already familiar with applying the clear, convincing, and unequivocal evidence standard as that was the standard applicable in deportation proceedings. See id. It is appropriate for the standard of proof in practitioner disciplinary cases to be adjusted to the clear and convincing standard because that is now the standard that the ABA recommends for all jurisdictions to adopt in disciplinary cases, see Model Rules for Lawyer Disciplinary Enforcement R. 18 (2002), and also because that is the standard the Board and immigration judges now apply in removal proceedings. The latter reason is supported by both Koden and the regulations at 8 CFR 1003.106(a)(1)(v), which state: ``[d]isciplinary proceedings shall be conducted in the same manner as Immigration Court proceedings as is appropriate . * * *'' Further, while the concerns raised by the commenter were presumably directed at a reduction of the burden the government will bear in proving charges of misconduct, it is important to note that practitioners also receive a benefit to the change in the standard of proof. Practitioners have a reduced burden of proving affirmative defenses and proving that they are morally and professionally fit to be reinstated after being disciplined. See 8 CFR 1003.103(b)(2); 1003.105(a)(2); 1003.107(a)(1). Comment. One commenter suggested that the regulations concerning reciprocal discipline be revised so that reciprocal discipline imposed by the Board will run concurrently with the discipline imposed by the practitioner's state bar. The commenter believed that the proposed revisions to 8 CFR 1003.103 would cause practitioners to be suspended or disbarred for periods of time that are different than that imposed by the state bar without any basis or finding as to why that result is appropriate. Response. EOIR attempts to ensure in reciprocal disciplinary cases that a [[Page 76921]] suspension or expulsion before EOIR will be as contemporaneous as possible with discipline imposed by state bars. The regulations at 8 CFR 1003.103(a) permit the Board to impose an immediate suspension on a practitioner who has been suspended or disbarred, and the time served during the immediate suspension can be credited toward the term of suspension or expulsion in the final order. Id. However, the Board cannot issue an immediate suspension order against a practitioner contemporaneously with a state bar order of suspension or disbarment unless the practitioner complies with 8 CFR 1003.103(c) and informs EOIR of the suspension or disbarment in a timely fashion. In cases where practitioners fail to inform EOIR of state bar discipline, EOIR will have no alternative but to impose discipline at a later date after learning of the discipline. Even though Board precedent establishes that identical or comparable discipline is generally to be imposed in reciprocal disciplinary matters, see Matter of Truong, 24 I&N Dec. 52, 55 (BIA 2006); Matter of Ramos, 23 I&N Dec. 843, 848 (BIA 2005); Matter of Gadda, 23 I&N Dec. 645, 649 (BIA 2003), EOIR will not reward a practitioner's failure to comply with his or her duty to timely inform EOIR of state bar discipline by shortening the length of the reciprocal discipline imposed. Further, while the Board generally subscribes to the concept of identical or comparable reciprocal discipline, there have been circumstances where the Board has imposed non-identical reciprocal discipline or denied reinstatement to a practitioner who has since been reinstated to practice before his state bar. See Matter of Krivonos, 24 I&N Dec. 292, 293 (BIA 2007) (denying reinstatement to practitioner who had been convicted of immigration-related fraud even though practitioner was reinstated by the state bar); Matter of Jean-Joseph, 24 I&N Dec. 295 (BIA 2007) (suspending practitioner for double the length of state bar suspension because practitioner violated the Board's immediate suspension order). Therefore, while identical or comparable reciprocal discipline is generally employed by the Board, the Board must have the flexibility to respond to the facts and circumstances presented in each case. Comment. One commenter suggested that the rule allowing for public postings of immediate suspensions require that such postings be placed in the waiting rooms of the immigration courts. Response. The regulatory language specifically states that ``the Board may require that notice of such suspension be posted at the Board, the Immigration Courts, or the DHS.'' In all immediate suspension orders issued by the Board to date, the Board has included a requirement that the immediate suspension be posted in a public area. In addition, such information is accessible to the public online at http://www.usdoj.gov/eoir/profcond/chart.htm. D. Section 1003.105--Notice of Intent To Discipline and Section 1003.106--Hearing and Disposition Comment. One commenter suggested that a Notice of Intent to Discipline should only be issued when there is a preliminary finding that the charges of misconduct could be sustained on clear and convincing evidence. Response. This comment involves an existing regulation that was not subject to amendment in the proposed rule and, therefore, is outside the scope of the proposed rule. In 2000, the practitioner disciplinary regulations were amended to provide that a Notice of Intent to Discipline would only be issued when there is sufficient prima facie evidence to warrant charging a practitioner with misconduct. 8 CFR 1003.105(a). However, those charges would have to be proven by clear and convincing evidence. 8 CFR 1003.106(a)(1)(iv). Therefore, implicit in the filing of all charges is the belief by the EOIR disciplinary counsel that the charges can be proven by clear and convincing evidence. Comment. One commenter took issue with the proposal to limit the circumstances under which a preliminary inquiry report will be served with a Notice of Intent to Discipline. The commenter understood the proposal to mean that the practitioner will no longer be informed of the basis for the charge of disciplinary action. Response. The supplemental information and language of the proposed rule clearly state that this limitation applies only in summary proceedings because those proceedings will always be brought as a result of a disciplinary decision issued by a state licensing authority or a federal court, or a criminal conviction which will be set forth in the Notice of Intent to Discipline itself. Thus, a preliminary inquiry report would do nothing but repeat the basis of the charges already contained in the Notice. Accordingly, this final rule adopts this proposed rule without change. Comment. One commenter disagreed with the proposed language for limiting a practitioner's eligibility for a hearing where the practitioner is subject to summary disciplinary proceedings. Response. In light of the comment and upon further consideration of the proposed change to 8 CFR 1003.105 concerning the availability of in-person hearings in summary disciplinary proceedings, the Department has decided not to adopt the proposed language. Rather, the Department will codify in the regulations the prevailing standard in Board precedent concerning evidentiary hearings in summary discipline cases. In Matter of Ramos, 23 I&N Dec. 843, 848 (BIA 2005), the Board held that in summary disciplinary proceedings, a practitioner must show that there is a material issue of fact in dispute that necessitates an evidentiary hearing. Id. Therefore, the final regulations reflect this standard. The Department has also decided that this provision should appear in 8 CFR Sec. 1003.106 because it relates to a practitioner's right to a hearing. 8 CFR Sec. 1003.105 involves filing Notices of Intent to Discipline and answers to those notices. Therefore, it is more appropriate for this provision to be located in the section related to disciplinary hearings. IV. Technical Amendments to Regulations This final rule also includes technical changes to 8 CFR 1003.101- 108 that were not included in the proposed rule. In 8 CFR 1003.101, 1003.103, 1003.104-105, and 1003.107, the words ``Immigration and Naturalization Service,'' ``the Service'' and ``the Office of the General Counsel of the Service'' are being replaced with the term ``DHS,'' which is defined at 8 CFR 1001.1(w). As discussed above, since the promulgation of the final rule concerning the practitioner disciplinary process in June of 2000, the functions of the former Immigration and Naturalization Service (INS) were transferred from the Department to DHS. These changes reflect the creation of DHS and the transfer of the former INS's functions. The definition of the term ``practice'' in 8 CFR 1001.101(i) is being updated to reflect the fact that immigration judges, and not ``officers of the Service,'' are the adjudicators at the hearing level in immigration proceedings before EOIR. The definition has been unchanged since its adoption nearly forty years ago. See 34 FR 12213 (July 24, 1969). At that time, INS officers held hearings in immigration cases and the Board decided appeals from INS's decisions. However, those INS officers eventually became immigration judges employed by EOIR. Therefore, the Department is updating the definition to remove [[Page 76922]] reference to the ``Service'' and ``officer of the Service,'' and is replacing them with the terms ``DHS'' and ``immigration judge.'' In 8 CFR 1003.103-108, the term ``Office of the General Counsel of EOIR'' is being replaced with the term ``EOIR disciplinary counsel'' as it is used in 8 CFR 1003.0(e)(2)(iii). This change is made to more accurately reflect EOIR's practice of assigning an attorney within the Office of the General Counsel to serve as the chief prosecutor for practitioner disciplinary matters. The EOIR disciplinary counsel is responsible for the day-to-day management of the disciplinary program for attorneys and accredited representatives, and investigates allegations of misconduct against practitioners, including referrals from EOIR's anti-fraud officer concerning ``instances of fraud, misrepresentation, or abuse pertaining to an attorney or accredited representative.'' 8 CFR 1003.0(e)(1), (2)(iii). The EOIR disciplinary counsel determines when to dismiss complaints against practitioners, informally resolve those complaints, or initiate disciplinary proceedings. The Department has also made technical changes to 8 CFR 1003.105- 106 to replace the terms ``Office of the General Counsel for EOIR'' and ``Office of the General Counsel of the Service'' with ``counsel for the government.'' These changes are made to the provisions that relate directly to the litigation of practitioner disciplinary cases. Finally, 8 CFR 1003.106(a)(1)(iii) is being amended to clarify that both parties to a practitioner disciplinary case, and not just the practitioner, have the right to examine and object to evidence presented by the other party, to present evidence, and to cross-examine witnesses presented by the other party. Further, an additional sentence is being added to this provision to indicate that if a practitioner files an answer to the Notice of Intent to Discipline but does not request a hearing, the parties have the right to submit briefs and evidence to support or refute any of the charges or affirmative defenses. Regulatory Requirements Regulatory Flexibility Act The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule affects only those practitioners who practice immigration law before EOIR. This rule will not affect small entities, as that term is defined in 5 U.S.C. 601(6), because the rule is similar in substance to the existing regulatory process. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Act of 1996 (5 U.S.C. 804). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. Executive Order 12866--Regulatory Planning and Review The Attorney General has determined that this rule is a ``significant regulatory action'' under Executive Order 12866, section 3(f), Regulatory Planning and Review, and, accordingly, this rule has been submitted to the Office of Management and Budget for review. Executive Order 13132--Federalism This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. 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 12988. Paperwork Reduction Act The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this proposed rule because there are no new or revised recordkeeping or reporting requirements. List of Subjects 8 CFR Part 1001 Administrative practice and procedures, Immigration, Legal services. 8 CFR Part 1003 Administrative practice and procedures, Immigration, Legal services, Organization and functions (Government agencies), Reporting and recordkeeping requirements. 8 CFR Part 1292 Administrative practice and procedures, Immigration, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, parts 1001, 1003, and 1292 of title 8 of the Code of Federal Regulations are amended as follows: PART 1001--DEFINITIONS 1. The authority citation for part 1001 continues to read as follows: Authority: 8 U.S.C. 1101, 1103. 2. Amend Sec. 1001.1 to revise paragraphs (f) and (i) to read as follows: Sec. 1001.1 Definitions. * * * * * (f) The term attorney means any person who is eligible to practice law in and is a member in good standing of the bar of the highest court of any State, possession, territory, or Commonwealth of the United States, or of the District of Columbia, and is not under any order suspending, enjoining, restraining, disbarring, or otherwise restricting him in the practice of law. * * * * * (i) The term practice means the act or acts of any person appearing in any case, either in person or through the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client before or with DHS, or any immigration judge, or the Board. * * * * * PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW 3. The authority citation for part 1003 continues to read as follows: Authority: 5 U.S.C. 301; 8 U.S.C. 1103; 1252 note, 1252b, 1324b, 1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L. 105-100. [[Page 76923]] 4. Amend Sec. 1003.1 by removing from paragraph (d)(5) the citation ``Sec. 1.1(j) of this chapter'' and adding in its place the citation ``Sec. 1001.1(j) of this chapter''. Subpart G--Professional Conduct for Practitioners--Rules and Procedures Sec. 1003.101 [Amended] 5. Amend Sec. 1003.101 by: a. Removing from paragraph (a)(1) the words ``Immigration and Naturalization Service (the Service)'' and adding in its place ``DHS''; b. Removing from paragraph (a)(2) the words ``the Service'' and adding in its place ``DHS''; c. Removing from paragraph (b) the words ``the Service'' and adding in its place ``DHS''. 6. Amend Sec. 1003.102 by: a. Removing from paragraph (j)(2) the citation ``Sec. 1003.1(d)(1-a)'' and adding in its place the citation ``Sec. 1003.1(d)''; b. Revising paragraphs (e), (k), (l), and (m); and by c. Adding paragraphs (n) through (t), to read as follows: Sec. 1003.102 Grounds. * * * * * (e) Is subject to a final order of disbarment or suspension, or has resigned while a disciplinary investigation or proceeding is pending; * * * * * (k) Engages in conduct that constitutes ineffective assistance of counsel, as previously determined in a finding by the Board, an immigration judge in an immigration proceeding, or a Federal court judge or panel, and a disciplinary complaint is filed within one year of the finding; (l) Repeatedly fails to appear for pre-hearing conferences, scheduled hearings, or case-related meetings in a timely manner without good cause; (m) Assists any person, other than a practitioner as defined in Sec. 1003.101(b), in the performance of activity that constitutes the unauthorized practice of law. The practice of law before EOIR means engaging in practice or preparation as those terms are defined in Sec. Sec. 1001.1(i) and (k); (n) Engages in conduct that is prejudicial to the administration of justice or undermines the integrity of the adjudicative process. Conduct that will generally be subject to sanctions under this ground includes any action or inaction that seriously impairs or interferes with the adjudicative process when the practitioner should have reasonably known to avoid such conduct; (o) Fails to provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners; (p) Fails to abide by a client's decisions concerning the objectives of representation and fails to consult with the client as to the means by which they are to be pursued, in accordance with paragraph (r) of this section. A practitioner may take such action on behalf of the client as is impliedly authorized to carry out the representation; (q) Fails to act with reasonable diligence and promptness in representing a client. (1) A practitioner's workload must be controlled and managed so that each matter can be handled competently. (2) A practitioner has the duty to act with reasonable promptness. This duty includes, but shall not be limited to, complying with all time and filing limitations. This duty, however, does not preclude the practitioner from agreeing to a reasonable request for a postponement that will not prejudice the practitioner's client. (3) A practitioner should carry through to conclusion all matters undertaken for a client, consistent with the scope of representation as previously determined by the client and practitioner, unless the client terminates the relationship or the practitioner obtains permission to withdraw in compliance with applicable rules and regulations. If a practitioner has handled a proceeding that produced a result adverse to the client and the practitioner and the client have not agreed that the practitioner will handle the matter on appeal, the practitioner must consult with the client about the client's appeal rights and the terms and conditions of possible representation on appeal; (r) Fails to maintain communication with the client throughout the duration of the client-practitioner relationship. It is the obligation of the practitioner to take reasonable steps to communicate with the client in a language that the client understands. A practitioner is only under the obligation to attempt to communicate with his or her client using addresses or phone numbers known to the practitioner. In order to properly maintain communication, the practitioner should: (1) Promptly inform and consult with the client concerning any decision or circumstance with respect to which the client's informed consent is reasonably required; (2) Reasonably consult with the client about the means by which the client's objectives are to be accomplished. Reasonable consultation with the client includes the duty to meet with the client sufficiently in advance of a hearing or other matter to ensure adequate preparation of the client's case and compliance with applicable deadlines; (3) Keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation; and (4) Promptly comply with reasonable requests for information, except that when a prompt response is not feasible, the practitioner, or a member of the practitioner's staff, should acknowledge receipt of the request and advise the client when a response may be expected; (s) Fails to disclose to the adjudicator legal authority in the controlling jurisdiction known to the practitioner to be directly adverse to the position of the client and not disclosed by opposing counsel; (t) Fails to submit a signed and completed Notice of Entry of Appearance as Attorney or Representative in compliance with applicable rules and regulations when the practitioner: (1) Has engaged in practice or preparation as those terms are defined in Sec. Sec. 1001.1(i) and (k), and (2) Has been deemed to have engaged in a pattern or practice of failing to submit such forms, in compliance with applicable rules and regulations. Notwithstanding the foregoing, in each case where the respondent is represented, every pleading, application, motion, or other filing shall be signed by the practitioner of record in his or her individual name; or (u) Repeatedly files notices, motions, briefs, or claims that reflect little or no attention to the specific factual or legal issues applicable to a client's case, but rather rely on boilerplate language indicative of a substantial failure to competently and diligently represent the client. * * * * * 7. Amend Sec. 1003.103 by: a. Revising the first sentence in paragraph (a)(1); b. Revising the first and second sentences in paragraph (a)(2); c. Adding a new sentence after the second sentence in paragraph (a)(2); d. Revising the first and second sentences in paragraph (b) introductory text; [[Page 76924]] e. Revising paragraph (b)(2) introductory text; and by f. Revising the first sentence of paragraph (c). The revisions and addition read as follows: Sec. 1003.103 Immediate suspension and summary disciplinary proceedings; duty of practitioner to notify EOIR of conviction or discipline. (a) Immediate Suspension-- (1) Petition. The EOIR disciplinary counsel shall file a petition with the Board to suspend immediately from practice before the Board and the Immigration Courts any practitioner who has been found guilty of, or pleaded guilty or nolo contendere to, a serious crime, as defined in Sec. 1003.102(h), or any practitioner who has been suspended or disbarred by, or while a disciplinary investigation or proceeding is pending has resigned from, the highest court of any State, possession, territory, or Commonwealth of the United States, or the District of Columbia, or any Federal court, or who has been placed on an interim suspension pending a final resolution of the underlying disciplinary matter. A copy of the petition shall be forwarded to DHS, which may submit a written request to the Board that entry of any order immediately suspending a practitioner before the Board or the Immigration Courts also apply to the practitioner's authority to practice before DHS. Proof of service on the practitioner of DHS's request to broaden the scope of any immediate suspension must be filed with the Board. (2) Immediate suspension. Upon the filing of a petition for immediate suspension by the EOIR disciplinary counsel, together with a certified copy of a court record finding that a practitioner has been found guilty of, or pleaded guilty or nolo contendere to, a serious crime, or has been disciplined or has resigned, as described in paragraph (a)(1) of this section, the Board shall forthwith enter an order immediately suspending the practitioner from practice before the Board, the Immigration Courts, and/or DHS, notwithstanding the pendency of an appeal, if any, of the underlying disciplinary proceeding, pending final disposition of a summary disciplinary proceeding as provided in paragraph (b) of this section. Such immediate suspension will continue until imposition of a final administrative decision. If an immediate suspension is imposed upon a practitioner, the Board may require that notice of such suspension be posted at the Board, the Immigration Courts, or DHS. * * * * * * * * (b) Summary disciplinary proceedings. The EOIR disciplinary counsel shall promptly initiate summary disciplinary proceedings against any practitioner described in paragraph (a) of this section by the issuance of a Notice of Intent to Discipline, upon receipt of a certified copy of the order, judgment, and/or record evidencing the underlying criminal conviction, discipline, or resignation, and accompanied by a certified copy of such document. However, delays in initiation of summary disciplinary proceedings under this section will not impact an immediate suspension imposed pursuant to paragraph (a) of this section. * * * * * * * * (2) In the case of a summary proceeding based upon a final order of disbarment or suspension, or a resignation while a disciplinary investigation or proceeding is pending (i.e., reciprocal discipline), a certified copy of a judgment or order of discipline shall establish a rebuttable presumption of the professional misconduct. Disciplinary sanctions shall follow in such a proceeding unless the attorney can rebut the presumption by demonstrating clear and convincing evidence that: * * * * * (c) Duty of practitioner to notify EOIR of conviction or discipline. Any practitioner who has been found guilty of, or pleaded guilty or nolo contendere to, a serious crime, as defined in Sec. 1003.102(h), or who has been disbarred or suspended by, or while a disciplinary investigation or proceeding is pending has resigned from, the highest court of any State, possession, territory, or Commonwealth of the United States, or the District of Columbia, or any Federal court, must notify the EOIR disciplinary counsel of any such conviction or disciplinary action within 30 days of the issuance of the initial order, even if an appeal of the conviction or discipline is pending.* * * * * * * * 8. Amend Sec. 1003.104 by: a. Revising paragraph (a); c. Revising the first, third, and fourth sentences in paragraph (b); d. Revising paragraph (c); and by e. Revising paragraph (d), to read as follows: Sec. 1003.104 Referral of Complaints (a) Filing complaints--(1) Practitioners authorized to practice before the Board and the Immigration Courts. Complaints of criminal, unethical, or unprofessional conduct, or of frivolous behavior by a practitioner who is authorized to practice before the Board and the Immigration Courts shall be filed with the EOIR disciplinary counsel. Disciplinary complaints must be submitted in writing and must state in detail the information that supports the basis for the complaint, including, but not limited to, the names and addresses of the complainant and the practitioner, the date(s) of the conduct or behavior, the nature of the conduct or behavior, the individuals involved, the harm or damages sustained by the complainant, and any other relevant information. Any individual may file a complaint with the EOIR disciplinary counsel using the Form EOIR-44. The EOIR disciplinary counsel shall notify DHS of any disciplinary complaint that pertains, in whole or part, to a matter before DHS. (2) Practitioners authorized to practice before DHS. Complaints of criminal, unethical, or unprofessional conduct, or frivolous behavior by a practitioner who is authorized to practice before DHS shall be filed with DHS pursuant to the procedures set forth in Sec. 292.3(d) of this chapter. (b) Preliminary inquiry. Upon receipt of a disciplinary complaint or on its own initiative, the EOIR disciplinary counsel will initiate a preliminary inquiry. * * * If the EOIR disciplinary counsel determines that a complaint is without merit, no further action will be taken. The EOIR disciplinary counsel may, in its discretion, close a preliminary inquiry if the complainant fails to comply with reasonable requests for assistance, information, or documentation. * * * (c) Resolution reached prior to the issuance of a Notice of Intent to Discipline. The EOIR disciplinary counsel, in its discretion, may issue warning letters and admonitions, and may enter into agreements in lieu of discipline, prior to the issuance of a Notice of Intent to Discipline. (d) Referral of complaints of criminal conduct. If the EOIR disciplinary counsel receives credible information or allegations that a practitioner has engaged in criminal conduct, the EOIR disciplinary counsel shall refer the matter to DHS or the appropriate United States Attorney and, if appropriate, to the Inspector General, the Federal Bureau of Investigation, or other law enforcement agency. In such cases, in making the decision to pursue [[Page 76925]] disciplinary sanctions, the EOIR disciplinary counsel shall coordinate in advance with the appropriate investigative and prosecutorial authorities within the Department to ensure that neither the disciplinary process nor criminal prosecutions are jeopardized. * * * * * 9. Amend Sec. 1003.105 by: a. Revising paragraph (a); b. Revising the first and second sentences of paragraph (b); c. Revising the third sentence of paragraph (c)(1); and by d. Revising paragraph (d)(2) introductory text, to read as follows: Sec. 1003.105 Notice of Intent to Discipline. (a) Issuance of Notice to practitioner. (1) If, upon completion of the preliminary inquiry, the EOIR disciplinary counsel determines that sufficient prima facie evidence exists to warrant charging a practitioner with professional misconduct as set forth in Sec. 1003.102, he or she will file with the Board and issue to the practitioner who was the subject of the preliminary inquiry a Notice of Intent to Discipline. Service of this notice will be made upon the practitioner by either certified mail to his or her last known address, as defined in paragraph (a)(2) of this section, or by personal delivery. Such notice shall contain a statement of the charge(s), a copy of the preliminary inquiry report, the proposed disciplinary sanctions to be imposed, the procedure for filing an answer or requesting a hearing, and the mailing address and telephone number of the Board. In summary disciplinary proceedings brought pursuant to Sec. 1003.103(b), a preliminary inquiry report is not required to be filed with the Notice of Intent to Discipline. (2) For the purposes of this section, the last known address of a practitioner is the practitioner's address as it appears in EOIR's case management system if the practitioner is actively representing a party before EOIR on the date that the EOIR disciplinary counsel issues the Notice of Intent to Discipline. If the practitioner does not have a matter pending before EOIR on the date of the issuance of a Notice of Intent to Discipline, then the last known address for a practitioner will be as follows: (i) Attorneys in the United States: the attorney's address that is on record with a state jurisdiction that licensed the attorney to practice law. (ii) Accredited representatives: the address of a recognized organization with which the accredited representative is affiliated. (iii) Accredited officials: the address of the embassy of the foreign government that employs the accredited official. (iv) All other practitioners: the address for the practitioner that appears in EOIR's case management system for the most recent matter on which the practitioner represented a party. (b) Copy of Notice to DHS; reciprocity of disciplinary sanctions. A copy of the Notice of intent to Discipline shall be forwarded to DHS. DHS may submit a written request to the Board or the adjudicating official requesting that any discipline imposed upon a practitioner which restricts his or her authority to practice before the Board or the Immigration Courts also apply to the practitioner's authority to practice before DHS. * * * (c) * * * (1) * * * A copy of the answer and any such motion shall be served by the practitioner on the counsel for the government. * * * * * (d) * * * * * * * * (2) Upon such a default by the practitioner, the counsel for the government shall submit to the Board proof of service of the Notice of Intent to Discipline. The practitioner shall be precluded thereafter from requesting a hearing on the matter. The Board shall issue a final order adopting the proposed disciplinary sanctions in the Notice of Intent to Discipline unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted or not in the interests of justice. With the exception of cases in which the Board has already imposed an immediate suspension pursuant to Sec. 1003.103, any final order imposing discipline shall not become effective sooner than 15 days from the date of the order to provide the practitioner opportunity to comply with the terms of such order, including, but not limited to, withdrawing from any pending immigration matters and notifying immigration clients of the imposition of any sanction. A practitioner may file a motion to set aside a final order of discipline issued pursuant to this paragraph, with service of such motion on the EOIR disciplinary counsel, provided: * * * * * 10. Amend Sec. 1003.106 by: a. Revising the section heading to read as set forth below; b. Revising the heading of paragraph (a); c. Redesignating paragraphs (a)(1) and (a)(2) as paragraphs (a)(2) and (a)(3); d. Adding a new paragraph (a)(1); e. Revising the first and second sentences of newly redesignated paragraph (a)(2)(ii), f. Revising paragraphs (a)(2)(iii) and (a)(2)(iv); g. Revising the first sentence of paragraph (a)(2)(v) introductory text; h. Revising paragraph (a)(3) introductory text; i. Revising paragraph (a)(3)(ii); j. Revising paragraphs (b) and (c); and by k. Revising the first and third sentences of paragraph (d). The revisions read as follows: Sec. 1003.106 Right to be heard and disposition. (a) Right to be heard--(1) Summary disciplinary proceedings. If a practitioner who is subject to summary disciplinary proceedings pursuant to Sec. 1003.103(b) requests a hearing, he or she must make a prima facie showing to the Board in his or her answer that there is a material issue of fact in dispute with regard to the basis for summary disciplinary proceedings, or with one or more of the exceptions set forth in Sec. 1003.103(b)(2)(i)-(iii). If the Board determines that there is a material issue of fact in dispute with regard to the basis for summary disciplinary proceedings, or with one or more of the exceptions set forth in Sec. 1003.103(b)(2)(i)-(iii), then the Board shall refer the case to the Chief Immigration Judge for the appointment of an adjudicating official. Failure to make such a prima facie showing shall result in the denial of a request for a hearing. The Board shall retain jurisdiction over the case and issue a final order. (2) * * * (ii) Except as provided in Sec. 1003.105(c)(3), upon the practitioner's request for a hearing, the adjudicating official may designate the time and place of the hearing with due regard to the location of the practitioner's practice or residence, the convenience of witnesses, and any other relevant factors. When designating the time and place of a hearing, the adjudicating official shall provide for the service of a notice of hearing, as the term ``service'' is defined in 8 CFR 1003.13, on the practitioner and the counsel for the government. * * * (iii) The practitioner may be represented by counsel at no expense to the government. Counsel for the practitioner shall file a Notice of Entry of Appearance on Form EOIR-28 in accordance with the procedures set [[Page 76926]] forth in this part. Each party shall have a reasonable opportunity to examine and object to evidence presented by the other party, to present evidence on his or her own behalf, and to cross-examine witnesses presented by the other party. If a practitioner files an answer but does not request a hearing, then the adjudicating official shall provide the parties with the opportunity to submit briefs and evidence to support or refute any of the charges or affirmative defenses. (iv) In rendering a decision, the adjudicating official shall consider the following: The complaint, the preliminary inquiry report, the Notice of Intent to Discipline, the answer, any supporting documents, and any other evidence, including pleadings, briefs, and other materials. Counsel for the government shall bear the burden of proving the grounds for disciplinary sanctions enumerated in the Notice of Intent to Discipline by clear and convincing evidence. (v) The record of proceedings, regardless of whether an immigration judge or an administrative law judge is the adjudicating official, shall conform to the requirements of 8 CFR part 1003, subpart C and 8 CFR 1240.9. * * * * * * * * (3) Failure to appear in proceedings. If the practitioner requests a hearing as provided in section 1003.105(c)(3) but fails to appear, the adjudicating official shall then proceed and decide the case in the absence of the practitioner, in accordance with paragraph (b) of this section, based upon the available record, including any additional evidence or arguments presented by the counsel for the government at the hearing. In such a proceeding, the counsel for the government shall submit to the adjudicating official proof of service of the Notice of Intent to Discipline as well as the Notice of the Hearing. The practitioner shall be precluded thereafter from participating further in the proceedings. A final order of discipline issued pursuant to this paragraph shall not be subject to further review, except that the practitioner may file a motion to set aside the order, with service of such motion on the counsel for the government, provided: * * * * * (ii) His or her failure to appear was due to exceptional circumstances (such as serious illness of the practitioner or death of an immediate relative of the practitioner, but not including less compelling circumstances) beyond the control of the practitioner. (b) Decision. The adjudicating official shall consider the entire record and, as soon as practicable, render a decision. If the adjudicating official finds that one or more of the grounds for disciplinary sanctions enumerated in the Notice of Intent to Discipline have been established by clear and convincing evidence, he or she shall rule that the disciplinary sanctions set forth in the Notice of Intent to Discipline be adopted, modified, or otherwise amended. If the adjudicating official determines that the practitioner should be suspended, the time period for such suspension shall be specified. Any grounds for disciplinary sanctions enumerated in the Notice of Intent to Discipline that have not been established by clear and convincing evidence shall be dismissed. The adjudicating official shall provide for the service of a written decision or a memorandum summarizing an oral decision, as the term ``service'' is defined in 8 CFR 1003.13, on the practitioner and the counsel for the government. Except as provided in paragraph (a)(2) of this section, the adjudicating official's decision becomes final only upon waiver of appeal or expiration of the time for appeal to the Board, whichever comes first, nor does it take effect during the pendency of an appeal to the Board as provided in Sec. 1003.6. (c) Appeal. Upon the issuance of a decision by the adjudicating official, either party or both parties may appeal to the Board to conduct a review pursuant to Sec. 1003.1(d)(3). Parties must comply with all pertinent provisions for appeals to the Board, including provisions relating to forms and fees, as set forth in Part 1003, and must use the Form EOIR-45. The decision of the Board is a final administrative order as provided in Sec. 1003.1(d)(7), and shall be served upon the practitioner as provided in 8 CFR 1003.1(f). With the exception of cases in which the Board has already imposed an immediate suspension pursuant to Sec. 1003.103, any final order imposing discipline shall not become effective sooner than 15 days from the date of the order to provide the practitioner opportunity to comply with the terms of such order, including, but not limited to, withdrawing from any pending immigration matters and notifying immigration clients of the imposition of any sanction. A copy of the final administrative order of the Board shall be served upon the counsel for the government. If disciplinary sanctions are imposed against a practitioner (other than a private censure), the Board may require that notice of such sanctions be posted at the Board, the Immigration Courts, or DHS for the period of time during which the sanctions are in effect, or for any other period of time as determined by the Board. (d) Referral. In addition to, or in lieu of, initiating disciplinary proceedings against a practitioner, the EOIR disciplinary counsel may notify an appropriate Federal or state disciplinary or regulatory authority of any complaint filed against a practitioner. * * * In addition, the EOIR disciplinary counsel shall transmit notice of all public discipline imposed under this rule to the National Lawyer Regulatory Data Bank maintained by the American Bar Association. * * * * * 11. Amend Sec. 1003.107 by: a. Revising the second and third sentences of paragraph (b) introductory text; b. Revising paragraph (b)(1); and by c. Adding a new paragraph (c), to read as follows: Sec. 1003.107 Reinstatement after expulsion or suspension. * * * * * (b) Petition for reinstatement. * * * A copy of such a petition shall be served on the EOIR disciplinary counsel. In matters in which the practitioner was ordered expelled or suspended from practice before DHS, a copy of such petition shall be served on DHS. (1) The practitioner shall have the burden of demonstrating by clear and convincing evidence that he or she possess the moral and professional qualifications required to appear before the Board and the Immigration Courts or DHS, or before all three authorities, and that his or her reinstatement will not be detrimental to the administration of justice. The EOIR disciplinary counsel and, in matters in which the practitioner was ordered expelled or suspended from practice before DHS, DHS may reply within 30 days of service of the petition in the form of a written response to the Board, which may include documentation of any complaints filed against the expelled or suspended practitioner subsequent to his or her expulsion or suspension. * * * * * (c) Appearance after reinstatement. A practitioner who has been reinstated to practice by the Board must file a new Notice of Entry of Appearance of Attorney or Representative in each case on the form required by applicable rules and regulations, even if the reinstated practitioner previously filed such a form in a proceeding before the practitioner was disciplined. * * * * * [[Page 76927]] 12. Amend Sec. 1003.108 by: a. Revising the second sentence of paragraph (a) introductory text; b. Revising paragraph (a)(1) introductory text; c. Revising the second sentence of paragraph (a)(1)(i); d. Revising paragraph (a)(1)(iv); and by e. Revising paragraph (a)(2), to read as follows: Sec. 1003.108 Confidentiality. (a) Complaints and preliminary inquiries. * * * A practitioner whose conduct is the subject of a complaint or preliminary inquiry, however, may waive confidentiality, except that the EOIR disciplinary counsel may decline to permit a waiver of confidentiality if it is determined that an ongoing preliminary inquiry may be substantially prejudiced by public disclosure before the filing of a Notice of Intent to Discipline. (1) Disclosure of information for the purpose of protecting the public. The EOIR disciplinary counsel may disclose information concerning a complaint or preliminary inquiry for the protection of the public when the necessity for disclosing information outweighs the necessity for preserving confidentiality in circumstances including, but not limited to, the following: * * * * * (i) * * * If disclosure of information is made pursuant to this paragraph, the EOIR disciplinary counsel may define the scope of information disseminated and may limit the disclosure of information to specified individuals and entities; * * * * * (iv) A practitioner is the subject of multiple disciplinary complaints and the EOIR disciplinary counsel has determined not to pursue all of the complaints. The EOIR disciplinary counsel may inform complainants whose allegations have not been pursued of the status of any other preliminary inquiries or the manner in which any other complaint(s) against the practitioner have been resolved. (2) Disclosure of information for the purpose of conducting a preliminary inquiry. The EOIR disciplinary counsel, in the exercise of discretion, may disclose documents and information concerning complaints and preliminary inquiries to the following individuals and entities: * * * * * * * * PART 1292--REPRESENTATION AND APPEARANCES 13. The authority citation for Part 1292 continues to read as follows: Authority: 8 U.S.C. 1103, 1252b, 1362. 14. In Sec. 1292.1, remove paragraph (a)(6) and revise paragraph (a)(2) introductory text, to read as follows: Sec. 1292.1 Representation of others. (a) * * * * * * * * (2) Law students and law graduates not yet admitted to the bar. A law student who is enrolled in an accredited U.S. law school, or a graduate of an accredited U.S. law school who is not yet admitted to the bar, provided that: * * * * * Dated: December 12, 2008. Michael B. Mukasey, Attorney General. [FR Doc. E8-30027 Filed 12-17-08; 8:45 am] BILLING CODE 4410-30-P http://www.Dr-Immigration.com/news/shownews.asp?newsID=33 Sat, 7 Mar 2009 20:25:37 EST US Department of Justice, DOJ Final Rule on Voluntary Departure by Immigration lawyer in NYC BY US DOJ: [Federal Register: December 18, 2008 (Volume 73, Number 244)] [Rules and Regulations] [Page 76927-76938] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr18de08-8] ----------------------------------------- DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8 CFR Parts 1240 and 1241 [EOIR Docket No. 163; AG Order No. 3027-2008] RIN 1125-AA6 Voluntary Departure: Effect of a Motion To Reopen or Reconsider or a Petition for Review AGENCY: Executive Office for Immigration Review, Justice. ACTION: Final rule. ----------------------------------------- SUMMARY: The Department of Justice is publishing this final rule to amend the regulations regarding voluntary departure. This rule adopts, without substantial change, the proposed rule under which a grant of voluntary departure is automatically withdrawn upon the filing of a motion to reopen or reconsider with the immigration judge or the Board of Immigration Appeals (Board) or a petition for review in a federal court of appeals. This final rule adopts, with some modification, the proposed rule under which an immigration judge will set a presumptive civil monetary penalty of $3,000 if the alien fails to depart within the time allowed. However, this rule adopts only in part the proposals to amend the provisions relating to the voluntary departure bond. Finally, this rule adopts the notice advisals in the proposed rule and incorporates additional notice requirements in light of public comments. DATES: This rule is effective January 20, 2009. FOR FURTHER INFORMATION CONTACT: John Blum, Acting General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041; telephone (703) 305-0470 (not a toll-free call). SUPPLEMENTARY INFORMATION: I. Public Participation The Attorney General published a proposed rule in the Federal Register on November 30, 2007 (72 FR 67674). The comment period ended on January 29, 2008. Comments were received from nine commenters, including public interest law and advocacy groups, a law firm, three non-attorneys, and one immigration bond agency. Since some comments overlap, and other commenters covered multiple topics, the comments are addressed by topic in sections III-VIII of this preamble, rather than by reference to each specific comment and commenter. II. Introduction A. Background The Immigration and Nationality Act (INA or Act) provides that, as an alternative to formal removal proceedings and entry of a formal removal order, ``[t]he Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense.'' INA 240B(a)(1), (b)(1) (8 U.S.C. 1229c(a)(1), (b)(1)). Voluntary departure ``is a privilege granted to an alien in lieu of deportation.'' Iouri v. Aschroft, 487 F.3d 76, 85 (2d Cir. 2007), cert. denied, 128 S.Ct. 2986 (2008) (citing Ballenilla-Gonzalez v. INS, 546 F.2d 515, 521 (2d Cir. 1976)). It is ``an agreed upon exchange of benefits between the alien and the government.'' Banda-Ortiz v. Gonzales, 445 F.3d 387, 389 (5th Cir. 2006), cert. denied, 127 S.Ct. 1874 (2007). This quid pro quo offers an alien ``a specific benefit--exemption from the ordinary bars to relief--in return for a quick departure at no cost to the government.'' Id. at 390 (quoting Ngarurih v. Ashcroft, 371 F.3d 182, 194 (4th Cir. 2004)). When choosing to seek voluntary departure, the alien agrees to take the benefits and burdens of the statute together. Ngarurih, 371 F.3d at 194. In order to obtain voluntary departure at the conclusion of removal proceedings, an alien must establish to the immigration judge by clear and convincing evidence that he or she is both willing and able [[Page 76928]] to depart voluntarily. 72 FR at 67674-75. Section 240B of the Act provides that an alien who is granted voluntary departure at the conclusion of removal proceedings is allowed a period of no more than 60 days after the issuance of a final order in which the alien may voluntarily depart from the United States, and certain penalties apply to aliens who do not voluntarily depart within the time allowed. See INA 240B(b)(2), (d) (8 U.S.C. 1229c(b)(2), (d)). Another section of the Act provides that an alien has up to 90 days to file a motion to reopen or 30 days to file a motion to reconsider after entry of a final administrative order issued in removal proceedings. INA 240(c)(6), (7) (8 U.S.C. 1229a(c)(6), (7)). Under longstanding regulation, however, an alien's departure from the United States, including under a grant of voluntary departure, has the effect of withdrawing the motion. 8 CFR 1003.2(d), Matter of Armendarez, 24 I&N Dec. 646, 686 (BIA 2008) (noting that the current regulation bears a strong resemblance to the regulation first introduced in 1952). B. Summary of Regulatory Changes From the Proposed Rule The proposed rule explained that the amendments set forth therein were ``intended to allow an opportunity for aliens who have been granted voluntary departure to be able to pursue administrative motions and judicial review without risking the imposition of the voluntary departure penalties, to promote uniformity, and also to bring the voluntary departure process back to its statutory premises.'' 72 FR at 67679, 67682. The proposed rule provided an in-depth background discussion of voluntary departure and motions to reopen and reconsider. Id. at 67674-77. This final rule adopts, without change, the sections of the proposed rule providing that an alien's grant of voluntary departure will automatically terminate if the alien files a motion to reopen or reconsider with an immigration judge or the Board within the time period the alien was granted to depart voluntarily. The proposed rule also sought to address divergent motions practice among the courts of appeals concerning the impact on the voluntary departure period when filing a petition for review. See 72 FR at 67681. This final rule adopts, without change, the sections of the proposed rule providing that an alien's grant of voluntary departure automatically terminates upon the filing of a petition for review. The proposed rule provided for additional notice to aliens regarding the consequences of filing a motion to reopen or reconsider, or a petition for review after a grant of voluntary departure. This final rule adopts those amendments, without change, and includes additional notice requirements in light of public comments. The rule also specified that an immigration judge shall set a specific dollar amount of less than $3,000 as a civil monetary penalty in the event that the alien fails to depart voluntarily within the time allowed. This final rule adopts modified language providing that an immigration judge will set a presumptive civil monetary penalty of $3,000 unless the immigration judge sets a higher or lower amount at the time of granting voluntary departure. Further, the proposed rule revised the applicable bond provisions to clarify that an alien's failure to post a voluntary departure bond as required did not have the effect of exempting the alien from the penalties for failure to depart under the grant of voluntary departure. This was a reversal of the Board's decision in Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006). The final rule adopts without change the proposed rule regarding reversal of Matter of Diaz-Ruacho. Finally, the proposed rule provided that the alien remained liable for the amount of the voluntary departure bond if he or she did not depart as agreed, and that failure to post the bond could be considered as a negative discretionary factor in determining whether the alien is a flight risk and in determining whether to grant a discretionary application for relief. Under certain circumstances, however, the proposed rule provided that an alien could get a refund of the bond amount upon proof that he or she was physically outside the United States or if the final administrative order was later overturned, reopened, or remanded. This final rule does not include the language of the proposed rule that an alien forfeits his or her bond upon automatic termination of voluntary departure due to the filing of a motion to reopen or reconsider or petition for review. That issue raises a question about the scope of the authority of the immigration judges and the Board, on the one hand, and the authority of the Department of Homeland Security (DHS) with respect to bond issues. Accordingly, the final rule takes no position at this time with respect to the forfeiture of bond, and language providing for forfeiture of the voluntary departure bond upon the filing of a motion to reopen or reconsider or the filing of a petition for review has been deleted. Because this final rule is not adopting the changes regarding forfeiture of the bond, there is no need to adopt the provisions for a refund upon proof of being physically outside the country. However, this final rule adopts, in part, the proposed rule regarding the circumstances under which an alien can obtain a refund of the bond amount where the final administrative order is overturned or remanded, and the rule that failure to post the bond could be considered as a negative discretionary factor in determining whether the alien is a flight risk or whether to grant a discretionary application for relief. III. Relationship Between Voluntary Departure and Motions To Reopen or Reconsider A. The Proposed Rule While four courts of appeals had held that the alien's filing of a motion to reopen with the Executive Office for Immigration Review (EOIR) within the time allowed for voluntary departure automatically ``tolled'' the voluntary departure period, thereby allowing the alien to remain in the United States under the grant of voluntary departure until after the immigration judge or the Board had adjudicated the motion,\1\ three other courts of appeals have held that the filing of a motion to reopen did not toll the period allowed for voluntary departure.\2\ ----------------------------------------- \1\ See Ugokwe v. United States Att'y Gen., 453 F.3d 1325, 1331 (11th Cir. 2006); Kanivets v. Gonzales, 424 F.3d 330, 331 (3d Cir. 2005); Sidikhouya v. Gonzales, 407 F.3d 950, 952 (8th Cir. 2005); Barrios v. United States Att'y General, 399 F.3d 272 (3rd Cir. 2005); Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir. 2005). \2\ See Chedad v. Gonzales, 497 F.3d 57, 63-64 (1st Cir. 2007); Dekoladenu v. Gonzales, 459 F.3d 500, 507 (4th Cir. 2006); Banda- Ortiz, 445 F.3d at 389. ----------------------------------------- The proposed rule sought to address this circuit split by amending the voluntary departure regulations to provide that an alien's timely filing of a motion to reopen or reconsider prior to the expiration of the voluntary departure period automatically terminates the grant of voluntary departure. Because the grant of voluntary departure would be terminated upon the filing of such a motion, there would be no remaining voluntary departure period and thus no tolling of the period allowed for voluntary departure upon the filing of the motion. In the Department's view, this course of action would protect aliens who file administrative motions within the voluntary departure period from facing the consequences of failing to depart pursuant to a voluntary departure order, such as the loss of eligibility for certain forms of relief. [[Page 76929]] B. Dada v. Mukasey and Related Changes to the Proposed Rule On June 16, 2008, the Supreme Court decision in Dada v. Mukasey, -- -- U.S. ---- , 128 S.Ct. 2307 (2008), resolved the split among the courts of appeals concerning how the filing of a motion to reopen impacts a grant of voluntary departure. The alien in Dada had requested that an immigration judge continue his removal proceedings pending the adjudication of a second visa petition filed on his behalf by his United States citizen spouse. The immigration judge denied the request, and granted the alien a period of voluntary departure pursuant to section 240B(b) of the Act. The Board dismissed the alien's appeal and reinstated the grant of voluntary departure for a 30-day period. Two days before the end of the period allowed for voluntary departure, the alien filed a motion to reopen with the Board, asserting that he had new evidence to support the bona fides of his marriage, and requesting a continuance until his visa petition was adjudicated by DHS. The alien also sought to withdraw his request for voluntary departure. Several months later, the Board denied reopening and cited section 240B(d) of the Act, which bars an alien from adjustment of status and other relief when he or she fails to depart voluntarily within the permitted period. The Board did not address the respondent's request to withdraw his voluntary departure request. The respondent subsequently filed a petition for review with the United States Court of Appeals for the Fifth Circuit, which affirmed the Board's decision, concluding that there was no automatic tolling of the voluntary departure period. On certiorari, the Supreme Court considered the situation faced by an alien who abides by a voluntary departure grant and departs within the time allowed. If the alien had filed a timely motion before he or she departed under the grant of voluntary departure, the alien's departure, pursuant to regulation, would have the effect of withdrawing the motion to reopen. Alternatively, if the alien chose to remain in the United States to await a decision on the motion, he or she could then become ineligible for the relief sought in the motion because in most instances the motion would not be adjudicated until after the voluntary departure period had expired, exposing the alien to the bars under section 240B(d) of the Act. The Court framed the issue as ``whether Congress intended the statutory right to reopen to be qualified by the voluntary departure process.'' Dada, 128 S.Ct. at 2311. The Court concluded that, under the current regulations, an alien does not knowingly give up the right to file a motion to reopen once he or she accepts voluntary departure. The Court rejected the alien's contention that there should be ``automatic tolling'' of the period of voluntary departure upon the filing of a motion to reopen or a motion to reconsider removal proceedings before the immigration judge or the Board. The Court concluded that such an interpretation ``would reconfigure the voluntary departure scheme in a manner inconsistent with the statutory design,'' and it found no ``statutory authority for this result.'' Dada, 128 S.Ct. at 2311, 2319. In its decision, the Court held that ``[a]lthough a statute or regulation might be adopted to resolve the dilemma in a different manner, as matters now stand the appropriate way to reconcile the voluntary departure and motion to reopen provisions is to allow an alien to withdraw the request for voluntary departure before expiration of the departure period.'' Id. at 2311. The Department has considered whether to adopt the Court's approach in Dada in this final rule, rather than the automatic termination approach set forth in the proposed rule. The Department has also considered whether to incorporate the Court's suggestion that ``[a] more expeditious solution to the untenable conflict between the voluntary departure scheme and the motion to reopen might be to permit an alien who has departed the United States to pursue a motion to reopen postdeparture.'' Id. at 2320. For the reasons explained below, the Department is adopting the automatic termination approach set forth in the proposed rule, and thereby is ``resolv[ing] the dilemma in a different manner.'' Id. at 2311. C. Termination of Voluntary Departure Upon the Filing of a Motion To Reopen or Reconsider The proposed rule provided that the filing of a motion to reopen or reconsider would have the effect of automatically terminating the grant of voluntary departure. Because voluntary departure is ``an agreed upon exchange of benefits between the alien and the Government [that] offers an alien `a specific benefit--exemption from the ordinary bars to relief--in return for a quick departure at no cost to the government,' '' 72 FR at 67675 (internal citations omitted), the proposed rule took the position that an alien's decision to challenge a final administrative order through a post-decision motion or petition for review demonstrates that ``the alien is no longer willing to abide by the initial quid pro quo.'' Id. at 67679. Instead, an automatic termination of an alien's grant of voluntary departure upon the filing of a motion to reopen or reconsider would allow the alien to remain in the United States to pursue the motion or petition without becoming subject to the penalties for failure to voluntarily depart. Id. at 67680. Several commenters challenge the Department's characterization of the quid pro quo aspect of voluntary departure in the proposed regulation and the proposal to automatically terminate voluntary departure upon the filing of a post-decision motion to reopen or reconsider. In addition, several of these commenters suggest, as an alternative to the proposed automatic termination rule, that the regulations be amended to provide for the tolling or administrative stay of voluntary departure during the filing of a motion to reopen or reconsider, or that the immigration judges and the Board be given the discretion to waive the automatic termination procedure and stay or reinstate voluntary departure when appropriate.\3\ One commenter suggests that the voluntary departure time could be improved by changing the expiration date on the voluntary departure order to a suitable time, taking into account when the case can be reopened and when it will most likely be completed. ----------------------------------------- \3\ With regard to reinstatement, the ability to reinstate voluntary departure is already covered under the current regulations in the context of permitting reinstatement of voluntary departure in a proceeding which has been reopened for another purpose if reopening was granted prior to the expiration of the original period of voluntary departure. 8 CFR 1240.26(f), (h). ----------------------------------------- As the Supreme Court recognized in Dada, there is no statutory authority for tolling. Id. at 2311, 2319; see also section 240B(b)(2) of the Act (providing for no more than 60 days to voluntarily depart). To the extent the commenters were relying on previous appellate decisions to the contrary, those holdings have now been overruled. Further, as the proposed rule explained, tolling the period of voluntary departure deprives the government of an important element of the voluntary departure agreement--``a quick departure without the considerable expense of protracted litigation.'' 72 FR at 676814.\4\ Thus, after [[Page 76930]] the issuance of a final order, immigration judges and the Board cannot stay the voluntary departure period, or extend the expiration of the voluntary departure period, beyond the amount of time provided by statute. ----------------------------------------- \4\ It is the considerable expense of protracted litigation that negates any savings to the government of avoiding the costs of removal. The Department has not ignored avoiding the costs of removal as a potential benefit for savings through a voluntary departure grant, as suggested by several commenters. Rather, the Department is equally deprived of this benefit where an alien fails to quickly depart in accordance with a voluntary departure order. ----------------------------------------- The Court's decision also discusses the quid pro quo benefits to the government and the alien in much the same way as the proposed rule. Dada, 128 S.Ct. at 2314. The Court found that allowing an alien to elect to withdraw voluntary departure before the expiration of the voluntary departure period ``preserve[d] the alien's right to pursue reopening while respecting the government's interest in the quid pro quo of the voluntary departure arrangement.'' Dada at 2319. Accordingly, this final rule retains the quid pro quo analysis of the proposed rule as a basis for these regulatory amendments. See 72 FR at 67675-76, 67679-80. This final rule also retains the proposal that an alien's grant of voluntary departure will automatically terminate upon the filing of a motion to reopen or motion to reconsider. In Dada, the Court provided the alien with a different option: a unilateral right to withdraw from the voluntary departure agreement in connection with the filing of a motion to reopen or reconsider. Dada, 128 S.Ct. at 2319. The Department does not believe that this is the best approach to adopt by rule for the future, for several reasons. First, the Department finds it preferable to adopt the proposed rule that was subject to a comment period, rather than delay finalizing this new rule for further consideration of the Dada approach. Second, allowing the option of withdrawal would seem to require an immigration judge to provide additional advisals to an alien regarding another aspect of the bargain to which the alien is agreeing. The Department is concerned that the growing number of advisals surrounding voluntary departure creates the potential for confusion and unnecessary complexity; this would be especially true for the many pro se aliens who appear before immigration judges. The Department is considering the use of an application form to request voluntary departure, which can then set forth all of the necessary advisals for voluntary departure. However, we do not want to delay publication of this final rule for development and implementation of a form. Further, even with a form that includes advisals, the option to withdraw might continue to be difficult to navigate. Finally, allowing an alien the option to withdraw from voluntary departure carries the potential for confusion, inadvertent omissions of withdrawal requests, and collateral challenges over whether the alien actually intended, or should have sought, to withdraw voluntary departure in filing a motion. For instance, an alien filing a motion to reopen to seek adjustment of status might either intend to request withdrawal but fail to include the request, or not know to make the request. The alien might later argue that the motion should have been construed as a request for withdrawal since he or she would not otherwise be eligible for the relief sought if the voluntary departure bar applies. The automatic termination rule is more clear-cut and saves the Department from having to dedicate additional resources to a second round of collateral litigation. This rule will apply to motions filed before immigration judges and the Board. For instance, some aliens file motions to reopen with immigration judges before seeking appeal with the Board. In this case, the alien's voluntary departure would be terminated upon the filing of the motion with the immigration judge. If, while the alien's motion is pending with the immigration judge, the alien subsequently files a Notice of Appeal with the Board, the Board assumes jurisdiction over the case, and the motion becomes nugatory. In this instance, the Board may reinstate the alien's voluntary departure, if the alien demonstrates, as set forth in the rule, that he or she properly posted the voluntary departure bond within the required time period. See Section VI, infra, for further discussion regarding notice to the immigration judge or the Board that the bond was posted. Several commenters took issue with this automatic termination rule and asserted that if an alien is forced to give up voluntary departure to pursue a motion, the alien would be improperly discouraged from filing a motion to reopen. These comments note examples of applicants for asylum who benefit from voluntary departure by being able to choose the country to which they will depart, or by returning to their home countries without the ``high profile that accompanies deportation.'' The Department is cognizant of the various ways in which aliens benefit from voluntary departure. However, the Department must balance these considerations against the overriding responsibility to implement the voluntary departure process in accordance with its statutory premises. There is no statutory authority for tolling. See Dada, 128 S.Ct. at 2311, 2319; see also INA 240B(b)(2) (providing for no more than 60 days voluntary departure when granted at the conclusion of proceedings). Therefore, expiration of the voluntary departure period cannot be changed beyond the amount of time provided by statute. Even the approach taken by the Supreme Court in Dada requires the alien to make a choice: ``As a result, the alien has the option either to abide by the terms, and receive the agreed-upon benefits of voluntary departure, or, alternatively, to forgo those benefits and remain in the United States to pursue an administrative motion.'' Dada, 128 S.Ct. at 2319. As the proposed rule recognized, ``it is often the case that an immigration judge or the Board cannot reasonably be expected to adjudicate a motion to reopen or reconsider during the voluntary departure period.'' 72 FR at 67677. Thus, even if the filing of a motion did not result in automatic termination of voluntary departure, an alien who was granted voluntary departure and later files a motion to reopen to apply for asylum is going to be faced with a choice because it is unlikely that the alien's motion would be adjudicated in enough time to allow the alien to depart within the limited time period permitted for voluntary departure if the motion is denied. See Dada, 128 S.Ct. at 2317 (``It is foreseeable, and quite likely, that the time allowed for voluntary departure will expire long before the BIA issues a decision on a timely filed motion to reopen.'') (citing the proposed rule). In any event, an applicant for asylum is not an appropriate example to use to illustrate the choice faced by aliens granted voluntary departure but seeking discretionary relief through a post-order motion because the consequences for overstaying the period of voluntary departure do not preclude an alien from receiving asylum. Section 240B(d) bars an alien from obtaining future voluntary departure grants, adjustment of status under INA section 245, cancellation of removal, change of nonimmigrant status, and registry. Section 240B(d) does not make an alien ineligible for asylum, withholding of removal under section 241(b)(3), protection under Article 3 of the Convention Against Torture, or adjustment of status for asylees and refugees under INA section 209. The only other means by which aliens facing a choice between voluntary departure and filing a post-order motion might continue to benefit from voluntary departure and pursue a [[Page 76931]] motion to reopen would be the Supreme Court's suggestion that ``[a] more expeditious solution to the untenable conflict between the voluntary departure scheme and the motion to reopen might be to permit an alien who has departed the United States to pursue a motion to reopen postdeparture.'' Dada, 128 S.Ct. at 2320. The Board recently discussed many of these issues in Matter of Armendarez, supra. As the Board stated, ``the physical removal of an alien from the United States is a transformative event that fundamentally alters the alien's posture under the law.'' 24 I&N Dec. at 656. While aliens who voluntarily depart may not be considered ``physically removed'' through execution of a removal order, the controlling regulatory provisions and the force of the Board's statement apply equally in both situations. An alien's departure from the United States, even under a grant of voluntary departure, may trigger a new ground of inadmissibility under section 212(a)(9)(B) or (C) of the Act (8 U.S.C. 1182(a)(9)(B), (C)). Under section 212(a)(9)(B)(i)(II), an alien is inadmissible for ten years from the date of departure (whether voluntary or removed) if he or she was unlawfully present in the United States for one year or more after April 1, 1997. Though this provision is inapplicable to several categories of aliens including, for example, minors and aliens who have filed a bona fide asylum application, many aliens will be subject to this ground of inadmissibility because of the period of unlawful presence they have already accrued. On the other hand, in order to be eligible for voluntary departure at the conclusion of proceedings, aliens must demonstrate that they have been ``physically present in the United States for a period of at least one year immediately preceding the alien's application for voluntary departure.'' INA 240B(b)(1) (8 U.S.C. 1229c(b)(1)). While some aliens may be able to satisfy this physical presence requirement through the time within which an alien may have been lawfully in the United States, in many other cases the period of physical presence includes the amount of time an alien was not lawfully present. Many aliens who depart the United States due to being subject to a removal proceeding have accrued one year or more of unlawful presence and would be inadmissible under section 212(a)(9)(B)(i)(II) of the Act if they depart and then seek admission to the United States. Similarly, under section 212(a)(9)(C)(i)(I), an alien who was unlawfully present in the United States for an aggregate period of more than 1 year, departs, and thereafter enters or attempts to enter the United States without being admitted is inadmissible. Further, waivers of inadmissibility under section 212(a)(9)(B) of the Act are limited to ``an immigrant'' who is the spouse, son, or daughter of a United States citizen or legal permanent resident and can show that this qualifying relative would suffer ``extreme hardship'' if his or her admission were denied. For aliens inadmissible under section 212(a)(9)(C) of the Act, the alien must wait for ten years after the date of the alien's last departure before the alien may request that the Secretary of Homeland Security consent to an alien's reapplying for admission (with a narrow exception for aliens who have been battered or subjected to extreme cruelty). In addition, there are issues with respect to aliens who voluntarily departed, if the immigration judge or the Board thereafter grants the motion to reopen or reconsider after the alien has departed from the United States. One possibility is that the alien might seek to be paroled back into the United States to pursue the benefits of reopening, but the granting of parole is not within the authority of the immigration judges or the Board. Matter of Armendarez, supra at 656-57, FN8 (recognizing that ``the Immigration Judges and the Board have been given no authority to compel the DHS to admit or parole such aliens into the United States''); Matter of Conceiro, 14 I&N Dec. 278 (BIA 1973), aff'd, Conceiro v. Marks, 360 F.Supp 454 (S.D.N.Y. 1973). Instead, DHS determines whether to grant parole for ``urgent humanitarian reasons or significant public benefit'' pursuant to section 212(d)(5) of the Act, 8 U.S.C 1182(d)(5). With respect to aliens seeking adjustment of status, the same inadmissibility impediments discussed herein may exist since in general, in order to be eligible for adjustment, an alien must be ``admissible to the United States.'' INA 245(a) (8 U.S.C. 1255(a)). Moreover, allowing an alien to pursue a motion to reopen from outside the United States in order to obtain adjustment of status is in clear tension with the purpose of adjustment of status, which is to provide a means for aliens to obtain lawful permanent resident status from within the United States without the need to depart in order to obtain an immigrant visa from a consular officer abroad. For aliens outside the United States, Congress has designed the immigration system such that aliens seeking admission as immigrants are to obtain an immigrant visa from a consular officer abroad. Further complicating matters is the fact that the alien would have departed voluntarily. This is significantly different than the situation where an alien is ordered removed, the removal order is executed, and a federal court of appeals later vacates the removal order. In the latter circumstance, if the court finds that the alien's removal was improper, the government may be required to return the alien to the United States. In the context of voluntary departure, there would be no improper voluntary departure that the government must rectify, since the alien departed after the issuance of the grant of voluntary departure as he or she had promised to do. In addition, unlike a federal court of appeals, EOIR does not have the authority to order the return of an alien upon the granting of a motion. The foregoing demonstrates the complex issues raised by allowing an alien granted voluntary departure, or any alien, the ability to pursue an administrative motion after departing the United States. While the Department is not foreclosing the idea of adopting such an approach in the future, it has concluded that the present rulemaking does not provide an adequate basis for addressing and resolving these issues and concerns at this time, particularly in the absence of an opportunity for public comment on such a proposal and how it might be implemented. This final rule does not adopt the proposed rule regarding forfeiture of the voluntary departure bond where an alien's voluntary departure is terminated upon the filing of a motion to reopen or reconsider. See section VI, infra, for further discussion. Finally, no comments were received regarding the separate provision in the proposed rule providing ``that the granting of a motion to reopen or reconsider that was filed after the penalties under section 240B(d) of the Act had already taken effect does not have the effect of vitiating or vacating those penalties, except as provided in section 240B(d)(2) of the Act.'' 72 FR at 67680. This rule explicitly declines to follow an interpretation that may have been reflected in prior court decisions to the effect that the Board's grant of reopening would have the effect of vacating the underlying voluntary departure order and the penalties attributable to the alien's voluntary failure to depart during the time allowed. This rule will be adopted in this final rule, without change. [[Page 76932]] IV. Termination of Voluntary Departure Upon the Filing of a Petition for Review Several commenters criticize the proposal to terminate voluntary departure upon the filing of a petition for review in a federal court of appeals, arguing that it is overreaching, beyond the scope of the Attorney General's authority, and would restrict access to judicial review. One of the commenters states that ``there is no role for EOIR to play in maintaining the uniformity of the courts of appeals' own procedures and practices,'' and the proposed rule ``takes discretion away from federal judges.'' The proposed rule clearly sets forth the Attorney General's authority to ``implement the voluntary departure provisions of the Act and to limit eligibility for voluntary departure for specified classes or categories of aliens, as provided in section 240B(e) of the Act.'' 72 FR at 67678. In this context, the Attorney General is not ``maintaining the uniformity of the courts of appeals' procedures and practices,'' or taking discretion away from federal judges. Rather, pursuant to section 240B(e) of the Act, the Attorney General is exercising his authority to limit eligibility for voluntary departure to ensure uniform application of the immigration laws. The Supreme Court's decision did not resolve the separate issue of whether the courts of appeals have the authority to grant a motion to stay the period allowed for voluntary departure pending a petition for judicial review with the court of appeals. See Dada, 128 S.Ct. at 2314; compare Thapa v. Gonzales, 460 F.3d 323, 329-32 (2d Cir. 2006) (holding that the court may stay voluntary departure pending consideration of a petition for review on the merits), and Obale v. Attorney General of United States, 453 F.3d 151, 155-57 (3d Cir. 2006) (same), with Ngarurih v. Ashcroft, 371 F.3d 182, 194 (4th Cir. 2004) (holding that the court may not stay voluntary departure period pending consideration of a petition for review). The divergent practice among the federal courts of appeals undermines the sound public policy reasons to ``promote a greater measure of uniformity and expedition in the administration of the immigration laws.'' See 72 FR at 67678. As the Supreme Court stated in Dada, the voluntary departure statute ``contains no ambiguity: The period within which the alien may depart voluntarily `shall not be valid for a period exceeding 60 days.' '' Dada, 128 S.Ct. at 2316. Yet, an alien's ability to obtain a judicial stay in some circuits, but not others, provides certain aliens with a different rule than that recognized by the Supreme Court, that is, the ability to extend their voluntary departure periods well beyond 60 days. The grant of a stay of voluntary departure by a circuit court essentially tolls the voluntary departure period. Although not addressing voluntary departure in the circuit court context, the Supreme Court made clear that there is no statutory authority for tolling. Dada, at 2311, 2319; see also section 240B(b)(2) of the Act (providing for no more than 60 days to voluntarily depart). A stay deprives the government of the same principal considerations of the voluntary departure period--``a quick departure without the considerable expense of protracted litigation.'' 72 FR at 67681. The concern expressed by the Department in the proposed rule regarding the granting of judicial stays continues to be significant. 72 FR at 67681-82. In practice, we have seen that those who seek judicial review do not adhere to the terms of the agreement and depart, despite the clear statutory authority for such aliens to continue to pursue judicial review even after they have departed from the United States. See Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 n.8-13 (9th Cir. 2006) (holding that permanent rules under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208, Div. C, 110 Stat. 3009 (Sept. 30, 1996), effective April 1, 1997, ``do not include the old jurisdiction-stripping provision for excluded, deported, or removed aliens'' under former 8 U.S.C. 1105a(c); that the court retains jurisdiction over a petition for review after an alien has departed; and that a petitioner's removal does not render a case moot). Rather, aliens have sought to remain in the United States, which has resulted in this ``non-uniform, patchwork system of motions practice in the courts of appeals.'' 72 FR at 67681. Aliens granted stays are effectively allowed to remain in the United States for months and years after the statutorily required time to depart. While the Supreme Court did not consider the effect of judicial stays of voluntary departure in Dada because the issue was not presented for decision in that case, the Court's analysis regarding the time allowed to voluntarily depart supports the Department's position that the time for an alien to voluntarily depart should be limited to that allowed by statute. Dada, 128 S.Ct. at 2319 (recognizing that there is no statutory authority for tolling, and finding that ``the alien when selecting voluntary departure is [under] the obligation to arrange for departure, and actually depart, within the 60-day period''); 72 FR at 67682 (``This [automatic termination rule for petitions for review] is consistent with the congressional intent, as expressed in the 1996 changes to the Act, that aliens may no longer remain in a period of voluntary departure for years, but instead are strictly limited to a discrete period of time for voluntary departure.''). Because few aliens choose to use the authority granted by Congress to pursue judicial review after departing from the United States, and because the practice of granting stays has resulted in non-uniform application of the immigration laws, the Attorney General is exercising his statutory authority to limit eligibility for voluntary departure to those aliens who do not seek judicial review. Accordingly, this final rule adopts the automatic termination rule for an alien granted voluntary departure who files a petition for review in order to result in ``a uniform application of the effect of the voluntary departure period in all the circuit courts of appeals.'' 72 FR at 67682. However, in an effort to provide an incentive for aliens to depart during their voluntary departure periods and pursue judicial review from their home countries, the proposed rule sought comment on ``whether or not it might be advisable (and the possible means for accomplishing such a result) to consider adopting a rule that those aliens who do depart the United States during the period of time specified in the grant of voluntary departure, after filing a petition for review, would not be deemed to have departed under an order of removal for purposes of section 212(a)(9)(A) of the Act.'' 72 FR at 67682. One comment was submitted in response to this request. This comment suggests that the recommendation in the proposed rule regarding section 212(a)(9)(A) of the Act be adopted. Based on this favorable comment, and further consideration by the Department, this final rule adopts new 8 CFR 1240.26(i) to provide that if an alien who was granted voluntary departure files a petition for review any grant of voluntary departure shall terminate automatically upon the filing of the petition and the alternate order of removal shall immediately take effect, except that the alien will not be deemed to have departed under an order of removal if the alien (i) departs the United States no later than 30 days following the filing of a petition for review; (ii) provides to DHS such evidence of his or her departure as the ICE Field Office Director may require; [[Page 76933]] and (iii) provides evidence DHS deems sufficient that he or she remains outside of the United States. The voluntary departure statutory provision states that an order granting voluntary departure is entered ``in lieu of removal.'' INA 240B(b)(1). It is by regulation, however, that the Attorney General requires immigration judges and the Board to enter an alternate order of removal upon granting voluntary departure. 8 CFR 1240.26(d). It is also by regulation that the Attorney General dictates when this alternate order of removal becomes effective. See e.g., 8 CFR 1240.26(c)(3) (``If the bond is not posted within 5 business days, the voluntary departure order shall vacate automatically and the alternate order of removal will take effect on the following day''). In addition, immigration judge and Board orders state that ``if the respondent fails * * * to depart when and as required, the privilege of voluntary departure shall be withdrawn without further notice or proceedings and the following orders shall thereupon become immediately effective.'' In the proposed rule, the Attorney General further proposed that if an alien's voluntary departure terminates due to the filing of a post- order motion or petition for review, ``the alternate order of removal will take effect immediately.'' 72 FR at 67686. This final rule adopts an exception to the proposed rule. If an alien does depart and meets the conditions described above, the alien will not have departed under a removal order. In order for an alien to take advantage of this opportunity to avoid the stigma of departing under an order of removal, it will be necessary for the alien to establish a contemporaneous record documenting the alien's departure from the United States by notice to DHS documenting his or her departure and to establish that he or she remains outside of the United States. Evidence sufficient to meet these requirements may include proof of the alien's intended departure and itinerary, and prompt presentation by the alien along with such evidence necessary to prove his or her timely departure to a United States consulate. DHS may determine other acceptable proof documenting the alien's time of departure or define the timely period as meeting the definition of prompt presentation. A statement setting forth this rule will be added to the advisals regarding voluntary departure that are already included with Board decisions. Finally, this final rule does not adopt the provisions of the proposed rule regarding forfeiture of the voluntary departure bond where an alien's voluntary departure is automatically terminated upon the filing of a petition for review. See Section VI, infra for further discussion. V. Notice to the Alien Under the Rule Several commenters state that the notice provisions set forth in the proposed rule are insufficient because they only provide notice of the consequences of accepting voluntary departure after an alien actually does accept voluntary departure. One commenter posits that the large majority of aliens who are unrepresented in immigration proceedings base their limited knowledge of penalties and obligations on the explanations given by immigration judges. In addition, this commenter suggests that the Board notify aliens when dismissing their appeals of aliens' right to file a petition for review in a federal court of appeals within 30 days. Another commenter states that the rule fails to include a requirement that the immigration judge notify aliens of their obligation to submit proof to the Board that the bond has been posted in order for the Board to reinstate their voluntary departure. This same commenter argues that the timeframe to submit this proof to the Board--``in connection with the filing of an appeal with the Board''--is ``unnecessarily restrictive.'' The Department agrees that timely notice to aliens regarding their rights, responsibilities, and the consequences associated with voluntary departure is an important issue. This final rule retains the proposed changes to 8 CFR 1240.11 to provide that the immigration judge will advise an alien that voluntary departure will be automatically terminated if the alien files a motion to reopen or reconsider during the pendency of the period in which to depart; and for the Board to inform aliens that voluntary departure will be automatically terminated if the alien files a motion to reopen or petition for review during the pendency of the period in which to depart. In addition, this final rule also amends 8 CFR 1240.26 to require immigration judges to inform aliens of the bond amount that will be set before allowing the alien to accept voluntary departure, as well as any other conditions the immigration judge may set in granting voluntary departure. The alien will then have an opportunity to accept the grant of voluntary departure, upon the conditions set forth, or in the alternative the alien may decline the voluntary departure if he or she is unwilling to accept the amount of the bond or other conditions. Regarding the requirement to submit proof to the Board that the bond has been posted in order for the Board to reinstate voluntary departure, section 1240.26 is revised to require notice regarding the need to file proof of posting a bond with the Board in the immigration judge's decision, and the effect of failing to timely post the bond. Further, this rule revises the timeframe to submit this proof to the Board to ``within 30 days of filing of an appeal with the Board.'' After an immigration judge issues his or her decision, an alien has five business days to post the bond and thirty days to file an appeal with the Board. From the date the appeal is filed with the Board, the alien will have thirty days to submit proof to the Board that the bond was posted. Evidence that the bond was posted may include a copy of Form I-352, the Immigration Bond worksheet that will be provided to the obligor when the bond is posted with DHS Immigration and Customs Enforcement (ICE) Detention and Removal Office (DRO), or Form I-305, which is the fee receipt provided by DRO. The Department has also considered the suggestion that the Board notify aliens of their right to file a petition for review within 30 days of the Board's dismissal of the alien's appeal. This advisal is beyond the scope of this rule, as it would require the Board to include such an advisal in every decision, not just those involving voluntary departure. However, such an advisal can be implemented administratively without the need for a regulation. The Board historically has not given such a notice, but the Department will give further consideration to the matter administratively. VI. Issues Relating to the Voluntary Departure Bond Four commenters provided comments regarding the voluntary bond provisions included in the proposed rule. The proposed rule provided for the following unless the alien departs within the time permitted to depart, or is successful in reopening or overturning the final administrative order: (1) Aliens who are granted voluntary departure but fail to post the bond within the required five business days remain liable for the bond amount regardless of whether voluntary departure is later terminated due to the filing of a motion or petition for review; (2) aliens who are granted voluntary departure and post bond will forfeit the bond if voluntary departure is later terminated due to the filing of a motion or petition; (3) an alien's failure to post bond does not relieve the alien of the [[Page 76934]] obligation to depart and the alien will be subject to the consequences for failure to depart if the alien does not depart within the permitted period (reversing the Board's decision in Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006)); (4) an alien's failure to post bond within the required five business days may be considered in determining whether the alien is a flight risk and as a negative discretionary factor with respect to discretionary forms of relief; (5) aliens who waive their administrative appeal at the conclusion of proceedings and fail to post bond within the required five business days will become subject to the final order of removal after the fifth business day; and (6) in order to have voluntary departure reinstated by the Board on appeal, the alien must provide proof to the Board at the time of the appeal that the bond was posted. None of the comments took issue with the proposed rule that aliens who are granted voluntary departure and fail to post their bond remain liable for the bond. However, based on further discussion below, this final rule does not adopt the part of the proposed rule that imposed continuing liability for the bond ``regardless of whether voluntary departure is later terminated due to the filing of a motion or petition for review.'' Because issues relating to forfeiture of bond can be complex, and also implicate the authority of DHS as well as that of the immigration judge and the Board, the final rule does not include the provision that the alien will forfeit the bond if the alien's voluntary departure is later terminated upon the filing of a post-order motion or a petition for judicial review. Three of the commenters describe the proposed rules as unduly burdensome, unfair, and punitive. Two of them state that these rules should not be adopted because notice to the alien of these rules is insufficient. As discussed in section IV, part C, this final rule requires that notice of the consequences of failing to depart voluntarily, the consequences of filing a post-decision motion, the amount of bond and any other conditions the immigration judge intends to impose, all be provided to aliens at the time they request voluntary departure. One commenter posits that the rules appear to regulate enforcement related issues that are within the purview of DHS, not EOIR, because they involve bond and monetary penalties. This commenter, as well as one other, objects to the rules proposing forfeiture of the bond where voluntary departure is later terminated and the alien is no longer under an obligation to voluntarily depart. This commenter describes this rule as a due process violation precisely because the alien is no longer under an obligation to depart, and because in some cases the alien may be prevented from departing because he or she is detained pending execution of the removal order. Pursuant to section 103(g)(2) of the Act, the Attorney General has the authority to ``establish such regulations, prescribe such forms of bond * * * and perform such other acts as the Attorney General determines to be necessary for carrying out this section.'' Further, section 240B(b)(3) of the Act states that the bond amount will ``be surrendered upon proof that the alien has departed the United States within the time specified,'' and does not, by its terms, provide exceptions for the circumstances of an alien who later decides that he or she does not wish to depart within the time specified. As explained in the proposed rule, ``the purpose of the bond [is] to ensure that the alien does depart during the time allowed, as the alien had promised to do at the time of the immigration judge's order granting voluntary departure.'' 72 FR 67683. The Department considers the bond akin to earnest money provided by the alien at the time the voluntary departure contract is entered. By posting the bond, the alien is manifesting the intent to follow through with the bargain under which he or she intends to depart the United States within the specific time period allotted at no cost to the government. While the alien may later change his or her mind, this does not extinguish the initial promise and the government's reliance on that promise. On the other hand, the Department recognizes that issues relating to forfeiture of bond also implicate the authority of DHS. Public comments stated that aliens should not be penalized for filing a post- order motion or a petition for review. The Department has also considered the language of the Supreme Court's decision in Dada (``the alien who withdraws from a voluntary departure arrangement is in the same position as an alien who was not granted voluntary departure in the first instance''), Id. at 2320 (emphasis added), though it is worth noting that the Court's observation there was in the context of the option for withdrawal of a request for voluntary departure, an option that the Department has chosen not to follow in this final rule. In light of the foregoing considerations, this final rule does not include the bond forfeiture rule previously proposed. Because this final rule is not adopting the changes regarding forfeiture of the bond, there is no need to adopt the provisions for a refund of the bond upon proof of being physically outside the country. These are issues that DHS will be able to address in carrying out its responsibilities relating to the posting and surrender of bonds. However, this final rule adopts, in part, the proposed rule regarding the circumstances under which an alien can obtain a refund of the bond amount where the final administrative order is overturned or remanded. This rule allows for refund of the bond where an alien is granted voluntary departure by an immigration judge, posts the voluntary departure bond within the time required, appeals the immigration judge's decision to the Board, and obtains reversal or remand of the immigration judge's decision regarding the order of removal. If, pursuant to the Board's decision, the alien is no longer removable then the alien should obtain a refund of his or her bond. In that situation, the grant of voluntary departure did not take effect since the immigration judge's decision is stayed upon the filing of an appeal to the Board, and the Board's decision overturning or remanding the immigration judge's decision on the merits thereby renders issues relating to voluntary departure moot. Likewise, if, pursuant to a remand by the Board, the alien is not currently subject to an order of removal, the alien should obtain a refund of the bond amount. Lastly, this commenter states that DHS should provide the Board with information regarding whether the alien actually posted bond, and that 30 days to provide this information to the Board is a restrictive amount of time. The commenter provides the example of a detained alien whose family member may have posted the bond. In this case, the commenter argues, the 30 days may not be enough time for the alien to gather the information needed regarding bond and provide it to the Board. In light of the comments, the Department is revising this rule to allow an alien to provide proof to the Board of having posted the bond within 30 days of the filing of the Notice of Appeal. As for requiring DHS to provide the information, such a process would assume that every alien granted voluntary departure by the immigration judge would request reinstatement by the Board. Further, it is the alien's burden to demonstrate to the Board continuing eligibility for voluntary departure. See 8 CFR 1240.11(d); 72 FR 67685 (``the burden of proof is on the alien to establish eligibility for a discretionary form of relief'') (internal [[Page 76935]] citations omitted). Thus, it would be inappropriate to require DHS to be responsible for providing this information relating to the posting of the bond by the alien, as the alien had agreed to do. Another commenter opposes the flight risk and negative discretion factors. This commenter argues that this categorical approach ignores individual circumstances and creates penalties for the small fraction of aliens who only qualify for voluntary departure due to their strong equities and characteristics in the first place. This rule does not mandate that aliens who do not post their voluntary departure bonds are flight risks or that they should be denied relief in the exercise of discretion. Rather, this rule provides guidance to adjudicators regarding particular factors they may consider in exercising discretion. For instance, an alien's failure to post the bond ``may be considered'' a negative discretionary factor with regard to relief. 72 FR 67684, 67686. Specific inclusion of these potentially adverse factors in the voluntary departure regulations is appropriate to encourage aliens to adhere to the bond requirement within the required five business days, as they had specifically promised to do. If a rule carries no consequence for failure to comply, then the rule may be rendered effectively meaningless. The proposed rule that an alien's voluntary departure is terminated upon failure to post bond where the alien waived administrative appeal serves the same purpose. 72 FR 67684 (stating that ``this proposal ensures that aliens who waive appeal before the immigration judge still have an incentive to post bond as they agreed to do.''). Accordingly, the Department adopts without change the provisions of the proposed rule regarding the adverse factors for failure to post bond and termination of voluntary departure for failure to post bond by an alien who waives administrative appeal. One commenter objects to the proposed rule changing the result in Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006). As noted in the proposed rule, the result in Diaz-Ruacho is not a sound policy approach because the alien's default should not exempt the alien from the penalties for failure to depart. 72 FR 67684. Moreover, the commenter does not state how the practical concerns of retaining Diaz-Ruacho might be avoided if Diaz-Ruacho were retained. See Id. (``using the failure to post a bond as the trigger that vitiates the grant of voluntary departure does not make practical sense because it is not an open, discrete, affirmative step and there is no ready process for highlighting the absence of a bond''). The approach set forth in this final rule recognizes that aliens who request voluntary departure and enter into this agreement with the government may not simply back out of the agreement because they later realize that they actually have to depart or be subject to the consequences of failing to voluntarily depart. This rule is designed to address the conflict recognized in Dada for aliens whose circumstances have changed and want to pursue a motion to reopen, or who believe error exists in the administrative decision and want to pursue a motion to reconsider but cannot do so if they comply with the voluntary departure order. As for those aliens who file petitions for review, this rule is also designed to prevent the voluntary departure period from being extended beyond the statutorily permitted amount of time by the issuance of a judicial stay. Neither of these intended purposes of the rule allows for an alien unilaterally to change his or her mind after having been granted voluntary departure; which is what would occur if an alien's failure to post bond merely resulted in vitiating the original grant of voluntary departure. None of the comments specifically object to the rule that an alien who waives appeal at the conclusion of proceedings and fails to post bond within the required five business days will immediately become subject to the final order of removal. The proposed rule also stated, however, that ``if the alien thereafter does depart within the voluntary departure period, the alien will not be subject to the penalties under 240B(d) of the Act (8 U.S.C. 1229a(c)(4)(B)) or inadmissibility under 212(a)(9)(A) of the Act.'' 72 FR at 67684. This final rule adopts this provision. However, in order to maintain consistency between this provision and the similar provision being adopted for the filing of petitions for review, this final rule revises the regulatory language to read: ``if the alien had waived appeal of the immigration judge's decision, the alien's failure to post the required voluntary departure bond within the period allowed means that the alternate order of removal takes effect immediately pursuant to 8 CFR 1241.1(f), except that an alien granted the privilege of voluntary departure under 8 CFR 1240.26(c) will not be deemed to have departed under an order of removal if the alien: (i) Departs the United States no later than 25 days following the failure to post bond; (ii) provides to DHS such evidence of his or her departure as the ICE Field Office Director may require; and (iii) provides evidence DHS deems sufficient that he or she remains outside of the United States.'' As explained above in the context of petitions for review, in order for an alien to take advantage of this opportunity to avoid the stigma of departing under an order of removal, it will be necessary for the alien to establish a contemporaneous record documenting the alien's departure from the United States by notice to DHS documenting his or her departure and to establish that he or she remains outside of the United States. Evidence sufficient to meet these requirements may include proof of the alien's intended departure and itinerary, and prompt presentation by the alien to a United States consulate along with such evidence necessary to prove his or her timely departure. DHS may determine other acceptable proof documenting the alien's time of departure or define the timely period as meeting the definition of prompt presentation. Finally, one commenter asks whether the filing of a motion would terminate the voluntary departure bond. As explained earlier, issues relating to the cancellation of bond implicate the authority of DHS. Thus, the Department is not in a position to unilaterally respond to this comment in this rulemaking. However, the Department has consulted with DHS regarding this question and DHS is considering the appropriate way to respond and provide guidance for this and similar bond questions. In addition, this commenter states that the bond should be raised to $5,000 because $500 is not enough leverage to ensure departure. Under the regulations, the specific bond amount is within the discretion of the immigration judge, to be set ``in an amount necessary to ensure that the alien departs within the time specified,'' except that it can be no less than $500. 8 CFR 1240.26(c)(3). The Department did not include an increase in the minimum bond amount in the proposed rule, and declines at this time to impose such a change by regulation. However, as explained in the previous discussion, this rule uses other means to implement the requirement that the bond set by the immigration judge is posted. The proposed rule also sought comment on whether the rule should provide for additional sanctions for aliens who fail to post the required bond. 72 FR 67684. One commenter urged the Department to table consideration of such a provision because it would be punitive and hurt [[Page 76936]] individuals who would be least able to carry the additional financial burden. The Department is not adopting further changes in this final rule regarding posting of the bond. However, this issue may be revisited in the future, if necessary to address additional concerns. VII. Amount of the Monetary Penalty for Failure To Depart Voluntarily Two commenters object to the proposed rule to set a minimum $3,000 civil penalty for failure to depart pursuant to section 240B(d)(1)(A) of the Act. One of the commenters argues that if Congress had intended the minimum penalty to be $3,000, it would not have specifically set the minimum at $1,000. The commenter also states that immigration judges should have discretion to set the amount anywhere between the statutory range of $1,000 and $5,000. Finally, this commenter argues that it does not make sense to have the immigration judge set the penalty when factors relevant to overstaying the voluntary departure period in order to determine an appropriate fine would only arise during the voluntary departure period. Congress has provided that failure to depart is subject to a civil penalty. Through this regulation, the Department is using the consequences provided by Congress to further encourage aliens to adhere to their voluntary departure orders. As stated in the proposed rule, the Department does not have authority to enforce or collect the penalty, but this rule deals only with the authority to set the amount of the penalty. 72 FR at 67685. There is nothing in the statute that precludes having the immigration judge set the penalty in advance prior to the granting of voluntary departure. Moreover, nothing in this rule precludes DHS from adopting a process that allows for mitigation of the amount of a civil penalty that it seeks to collect based on the particular circumstances of an alien's case. Finally, there is much to be said for providing the additional clarity for the alien, up front, in deciding whether to accept voluntary departure and in choosing ultimately to comply with the obligation to depart voluntarily, rather than facing an uncertain and unknowable penalty amount to be selected in the future within a broad monetary range. The final rule does make one change to allow greater flexibility regarding the amount of the monetary penalty, within the allowable statutory range. Rather than setting a minimum amount of $3,000 as the civil penalty, the final rule will set a rebuttable presumption that the civil penalty amount should be $3,000. The immigration judge will have discretion to set a lower or higher amount based on an alien's individual circumstances, including a consideration of the likelihood that the alien will comply or fail to comply with the grant of voluntary departure. The final rule will adopt, without change, the proposed rule that failure to pay a required civil penalty may be a relevant discretionary factor in later applications for relief. VIII. Effective Date One commenter argues that the final rule regarding motions should apply retroactively to persons granted voluntary departure before the effective date of the rule. Because the Department did not present such retroactive application as an option in the proposed rule, and because aliens would not otherwise receive notice that the filing of their motions would automatically terminate their voluntary departure, the Department will not apply this rule retroactively. Since the provisions of this rule are prospective only, this rule does not provide transition rules with respect to aliens who were granted voluntary departure and had motions pending before an immigration judge or the Board or a petition for review pending with a federal court of appeals on or after the date of the Supreme Court's decision in Dada, and before the effective date of this final rule. It is worth noting that an alien who was within a period of voluntary departure on the day Dada was issued could have relied on that decision to withdraw from the request of voluntary departure in order to pursue a motion without being subject to the consequences for failing to voluntarily depart. There are no other reasons to apply this rule retroactively. Accordingly, the proposed rule to apply this final rule prospectively only will be adopted without change. This means that this rule will apply to all cases pending before EOIR, or adjudicated by EOIR, on the effective date of this rule and any cases that later come before it. For instance, an alien who receives a decision by an immigration judge granting voluntary departure on or after the effective date of this rule will be subject to the voluntary departure bond provisions of this rule as well as all other applicable provisions. An alien who receives a decision by the Board reinstating voluntary departure on or after the day of the effective date of this rule will be subject to the automatic termination rule if that alien decides to seek judicial review, as well as all other application provisions. Likewise, if an alien's case is pending before a circuit court, and the case is remanded to the Board on or after the day of the effective date of this rule, any subsequent grant of voluntary departure will be subject to this rule. IX. Regulatory Requirements A. Regulatory Flexibility Act The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule affects individual aliens and does not affect small entities as that term is defined in 5 U.S.C. 601(6). B. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year and also will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. C. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 804). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. D. Executive Order 12866 (Regulatory Planning and Review) The Attorney General has determined that this rule is a ``significant regulatory action'' under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and, accordingly, this rule has been submitted to the Office of Management and Budget for review. E. Executive Order 13132 (Federalism) This rule will not have substantial direct effects on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive [[Page 76937]] Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. F. 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 12988. G. Paperwork Reduction Act The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this rule because there are no new or revised recordkeeping or reporting requirements. List of Subjects 8 CFR Part 124 Administrative practice and procedure, Aliens. 8 CFR Part 1241 Administrative practice and procedure, Aliens, Immigration. Accordingly, for the reasons stated in the preamble, chapter V of title 8 of the Code of Federal Regulations is amended as follows: PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED STATES 1. The authority citation for part 1240 continues to read as follows: Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 1229(c)(e), 1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-100, (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277 (112 Stat. 2681); 8 CFR part 2. 2. Section 1240.11 is amended by adding a new sentence at the end of paragraph (b) to read as follows: Sec. 1240.11 Ancillary matters, applications. * * * * * (b) * * * The immigration judge shall advise the alien of the consequences of filing a post-decision motion to reopen or reconsider prior to the expiration of the time specified by the immigration judge for the alien to depart voluntarily. * * * * * 3. Section 1240.26 is amended by: a. Adding new paragraphs (b)(3)(iii) and (b)(3)(iv); b. Revising paragraph (c)(3); c. Adding new paragraphs (c)(4), (e)(1), and (e)(2); d. Adding a new sentence at the end of paragraph (f); and by e. Adding new paragraphs (i) and (j), to read as follows: Sec. 1240.26 Voluntary Departure--authority of the Executive Office for Immigration Review. * * * * * (b) * * * (3) * * * (iii) If the alien files a post-decision motion to reopen or reconsider during the period allowed for voluntary departure, the grant of voluntary departure shall be terminated automatically, and the alternate order of removal will take effect immediately. The penalties for failure to depart voluntarily under section 240B(d) of the Act shall not apply if the alien has filed a post-decision motion to reopen or reconsider during the period allowed for voluntary departure. Upon the granting of voluntary departure, the immigration judge shall advise the alien of the provisions of this paragraph (b)(3)(iii). (iv) The automatic termination of a grant of voluntary departure and the effectiveness of the alternative order of removal shall not affect, in any way, the date that the order of the immigration judge or the Board became administratively final, as determined under the provisions of the applicable regulations in this chapter. (c) * * * (3) Conditions. The immigration judge may impose such conditions as he or she deems necessary to ensure the alien's timely departure from the United States. The immigration judge shall advise the alien of the conditions set forth in this paragraph (c)(3)(i)-(iii). If the immigration judge imposes conditions beyond those specifically enumerated below, the immigration judge shall advise the alien of such conditions before granting voluntary departure. Upon the conditions being set forth, the alien shall be provided the opportunity to accept the grant of voluntary departure or decline voluntary departure if he or she is unwilling to accept the amount of the bond or other conditions. In all cases under section 240B(b) of the Act: (i) The alien shall be required to post a voluntary departure bond, in an amount necessary to ensure that the alien departs within the time specified, but in no case less than $500. Before granting voluntary departure, the immigration judge shall advise the alien of the specific amount of the bond to be set and the duty to post the bond with the ICE Field Office Director within 5 business days of the immigration judge's order granting voluntary departure. (ii) An alien who has been granted voluntary departure shall, within 30 days of filing of an appeal with the Board, submit sufficient proof of having posted the required voluntary departure bond. If the alien does not provide timely proof to the Board that the required voluntary departure bond has been posted with DHS, the Board will not reinstate the period of voluntary departure in its final order. (iii) Upon granting voluntary departure, the immigration judge shall advise the alien that if the alien files a post-order motion to reopen or reconsider during the period allowed for voluntary departure, the grant of voluntary departure shall terminate automatically and the alternate order of removal will take effect immediately. (iv) The automatic termination of an order of voluntary departure and the effectiveness of the alternative order of removal shall not impact, in any way, the date that the order of the immigration judge or the Board became administratively final, as determined under the provisions of the applicable regulations in this chapter. (v) If, after posting the voluntary departure bond the alien satisfies the condition of the bond by departing the United States prior to the expiration of the period granted for voluntary departure, the alien may apply to the ICE Field Office Director for the bond to be canceled, upon submission of proof of the alien's timely depar ture by such methods as the ICE Field Office Director may prescribe. (vi) The voluntary departure bond may be canceled by such methods as the ICE Field Office Director may prescribe if the alien is subsequently successful in overturning or remanding the immigration judge's decision regarding removability. (4) Provisions relating to bond. The voluntary departure bond shall be posted with the ICE Field Office Director within 5 business days of the immigration judge's order granting voluntary departure, and the ICE Field Office Director may, at his or her discretion, hold the alien in custody until the bond is posted. Because the purpose of the voluntary departure bond is to ensure that the alien does depart from the United States, as promised, the failure to post the bond, when required, within 5 business days may be considered in evaluating whether the alien should be detained based on risk of flight, and also may be considered as a negative discretionary factor with respect to any discretionary form of relief. The alien's failure to post the required voluntary departure bond within the time required does not terminate the alien's obligation to depart within the period allowed or exempt the [[Page 76938]] alien from the consequences for failure to depart voluntarily during the period allowed. However, if the alien had waived appeal of the immigration judge's decision, the alien's failure to post the required voluntary departure bond within the period allowed means that the alternate order of removal takes effect immediately pursuant to 8 CFR 1241.1(f), except that an alien granted the privilege of voluntary departure under 8 CFR 1240.26(c) will not be deemed to have departed under an order of removal if the alien: (i) Departs the United States no later than 25 days following the failure to post bond; (ii) Provides to DHS such evidence of his or her departure as the ICE Field Office Director may require; and (iii) Provides evidence DHS deems sufficient that he or she remains outside of the United States. * * * * * (e) * * * (1) Motion to reopen or reconsider filed during the voluntary departure period. The filing of a motion to reopen or reconsider prior to the expiration of the period allowed for voluntary departure has the effect of automatically terminating the grant of voluntary departure, and accordingly does not toll, stay, or extend the period allowed for voluntary departure under this section. See paragraphs (b)(3)(iii) and (c)(3)(ii) of this section. If the alien files a post-order motion to reopen or reconsider during the period allowed for voluntary departure, the penalties for failure to depart voluntarily under section 240B(d) of the Act shall not apply. The Board shall advise the alien of the condition provided in this paragraph in writing if it reinstates the immigration judge's grant of voluntary departure. (2) Motion to reopen or reconsider filed after the expiration of the period allowed for voluntary departure. The filing of a motion to reopen or a motion to reconsider after the time allowed for voluntary departure has already expired does not in any way impact the period of time allowed for voluntary departure under this section. The granting of a motion to reopen or reconsider that was filed after the penalties under section 240B(d) of the Act had already taken effect, as a consequence of the alien's prior failure voluntarily to depart within the time allowed, does not have the effect of vitiating or vacating those penalties, except as provided in section 240B(d)(2) of the Act. (f) * * * The filing of a motion to reopen or reconsider does not toll, stay, or extend the period allowed for voluntary departure. The filing of a petition for review has the effect of automatically terminating the grant of voluntary departure, and accordingly also does not toll, stay, or extend the period allowed for voluntary departure. * * * * * (i) Effect of filing a petition for review. If, prior to departing the United States, the alien files a petition for review pursuant to section 242 of the Act (8 U.S.C. 1252) or any other judicial challenge to the administratively final order, any grant of voluntary departure shall terminate automatically upon the filing of the petition or other judicial challenge and the alternate order of removal entered pursuant to paragraph (d) of this section shall immediately take effect, except that an alien granted the privilege of voluntary departure under 8 CFR 1240.26(c) will not be deemed to have departed under an order of removal if the alien departs the United States no later than 30 days following the filing of a petition for review, provides to DHS such evidence of his or her departure as the ICE Field Office Director may require, and provides evidence DHS deems sufficient that he or she remains outside of the United States. The Board shall advise the alien of the condition provided in this paragraph in writing if it reinstates the immigration judge's grant of voluntary departure. The automatic termination of a grant of voluntary departure and the effectiveness of the alternative order of removal shall not affect, in any way, the date that the order of the immigration judge or the Board became administratively final, as determined under the provisions of the applicable regulations in this chapter. Since the grant of voluntary departure is terminated by the filing of the petition for review, the alien will be subject to the alternate order of removal, but the penalties for failure to depart voluntarily under section 240B(d) of the Act shall not apply to an alien who files a petition for review, and who remains in the United States while the petition for review is pending. (j) Penalty for failure to depart. There shall be a rebuttable presumption that the civil penalty for failure to depart, pursuant to section 240B(d)(1)(A) of the Act, shall be set at $3,000 unless the immigration judge specifically orders a higher or lower amount at the time of granting voluntary departure within the permissible range allowed by law. The immigration judge shall advise the alien of the amount of this civil penalty at the time of granting voluntary departure. * * * * * PART 1241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED 4. The authority citation for part 1241 continues to read as follows: Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223, 1224, 1225, 1226, 227, 1231, 1251, 1253, 1255, 1330, 1362; 18 U.S.C. 4002, 4013(c)(4). 5. Section 1241.1 is amended by revising paragraph (f), to read as follows: Sec. 1241.1 Final order of removal. * * * * * (f) If an immigration judge issues an alternate order of removal in connection with a grant of voluntary departure, upon overstay of the voluntary departure period, or upon the failure to post a required voluntary departure bond within 5 business days. If the respondent has filed a timely appeal with the Board, the order shall become final upon an order of removal by the Board or the Attorney General, or upon overstay of the voluntary departure period granted or reinstated by the Board or the Attorney General. Dated: December 12, 2008. Michael B. Mukasey, Attorney General. [FR Doc. E8-30025 Filed 12-17-08; 8:45 am] BILLING CODE 4410-30-P http://www.Dr-Immigration.com/news/shownews.asp?newsID=32 Sat, 7 Mar 2009 20:25:28 EST EOIR (202) 514-2007 TDD (202) 514-1888 New Board of Immigration Appeals Members Sworn in by Attorney General Mukasey Five New Members Welcomed to Highest Administrative Tribunal for Immigration Law FALLS CHURCH, Va. The Executive Office for Immigration Review (EOIR) announced that Attorney General Michael B. Mukasey administered the oath of office to five new members of the Board of Immigration Appeals (BIA) at an investiture ceremony held today at EOIR Headquarters. EOIR Director Kevin A. Ohlson introduced the Attorney General who joined BIA Chairman Juan P. Osuna in officially welcoming the new BIA members on board. The new members, who were appointed by the Attorney General earlier this year, are: Charles K. Adkins-Blanch, Anne J. Greer, Garry D. Malphrus, Hugh G. Mullane, and Linda S. Wendtland. The BIA is the highest administrative tribunal for interpreting and applying U.S. immigration law. The BIAs interpretations of immigration law, as set forth in its precedent decisions, are binding on immigration judges and the parties in removal proceedings nationwide. The BIA, which is part of EOIR, primarily reviews and decides appeals of immigration judge decisions. EOIRs immigration judges determine whether an alien, who is charged with violating immigration law, should be ordered removed from the United States. Currently, the BIA has 13 members, including Chairman Osuna who was recently appointed as Chairman by the Attorney General. Biographical information for the new BIA members follows. Charles K. Adkins-Blanch Charles Adkins-Blanch was appointed as a member of the BIA in August 2008. He received a bachelor of arts degree in 1984 from Grinnell College and a juris doctorate in 1990 from George Washington Universitys National Law Center. From June 2004 to August 2008, Mr. Adkins-Blanch served as an immigration judge at the Headquarters Immigration Court. During this time, from May 2006 to May 2007, he served as a temporary BIA member. From 2000 to 2004, Mr. Adkins-Blanch served as general counsel for EOIR, after serving in the position in an acting capacity. From 1990 to 1995, Mr. Adkins-Blanch worked for the BIA as an attorney advisor entering on duty through the Attorney Generals Honor Program. From 1989 to 1990, he clerked in private practice with the firm of Maggio & Kattar specializing in immigration and nationality law. Mr. Adkins-Blanch is a member of both the Virginia and District of Columbia bars. Anne J. Greer Anne Greer was appointed as a member of the BIA in August 2008. She received a bachelor of arts degree in 1980 from Allegheny College and a juris doctorate in 1992 from George Mason University School of Law. From April 2003 to August 2008, Ms. Greer served as an Assistant Chief Immigration Judge. From 1992 to 2003, she worked as a senior panel attorney, supervisory attorney advisor, and attorney advisor for the BIA. From 1989 to 1992, Ms. Greer was a law clerk at the U.S. Department of Commerce, Office of the Chief Administrative Law Judge, in Washington, DC. She has been an adjunct professor of law, George Mason FOR IMMEDIATE RELEASE Monday, December 15, 2008 WWW.USDOJ.GOV Page 1 of 2 #08-1110: New Board of Immigration Appeals Members Sworn in by Attorney General ... 12/16/2008 http://www.usdoj.gov/opa/pr/2008/December/08-eoir-1110.html University School of Law, since 1996. Ms. Greer is a member of the Virginia and District of Columbia bars. Garry D. Malphrus Garry Malphrus was appointed as a member of the BIA in August 2008. He received a bachelor of arts degree in 1989 and a juris doctorate in 1993, both from the University of South Carolina. From March 2005 to August 2008, Mr. Malphrus served as an immigration judge at the Arlington Immigration Court. From 2001 to 2004, Mr. Malphrus served as associate director of the White House Domestic Policy Council. From 1997 to 2001, Mr. Malphrus worked on the U.S. Senate Judiciary Committee, which included serving as chief counsel and staff director of the Subcommittee on Criminal Justice Oversight and later, with the Subcommittee on the Constitution. Mr. Malphrus has also clerked for various judges in federal and state courts. Mr. Malphrus is a member of the South Carolina Bar. Hugh G. Mullane Hugh Mullane was appointed as a member of the BIA in August 2008. He received a juris doctorate in 1993from Georgetown University Law Center. From May 2005 to August 2008, Mr. Mullane served as special counsel, Office of Legal Policy, Department of Justice (DOJ). From June 2004 to April 2005, he worked as director of immigration security, Homeland Security Council, White House. From May 1995 to June 2004, Mr. Mullane served as a senior litigation counsel, Civil Division, DOJ. From August 1994 to May 1995, he was an attorney with the Federal Trade Commission. From September 1993 to August 1994, Mr. Mullane was a law clerk for a judge in the U.S. District Court, Western District of New York. He is a member of the New York and District of Columbia bars. Linda S. Wendtland Linda Wendtland was appointed as a member of the BIA in August 2008. She received a juris doctorate in 1985 from the University of Virginia. From May 1996 to August 2008, Ms. Wendtland served as Assistant Director and Senior Litigation Counsel at the Office of Immigration Litigation (OIL), Civil Division, DOJ. From October 1990 to May 1996, she was in private practice. From August 1985 to October 1990, Ms. Wendtland served as a trial attorney at OIL, entering on duty through the Attorney Generals Honor Program. She is a member of the Virginia and District of Columbia bars. The Executive Office for Immigration Review (EOIR) is an agency within the Department of Justice. Under delegated authority from the Attorney General, immigration judges and the Board of Immigration Appeals interpret and adjudicate immigration cases according to United States immigration laws. EOIRs immigration judges conduct administrative court proceedings in immigration courts located throughout the nation. They determine whether foreign-born individuals who are charged by the Department of Homeland Security with violating immigration law should be ordered removed from the United States or should be granted relief from removal and be permitted to remain in this country. The Board of Immigration Appeals primarily reviews appeals of decisions by immigration judges. EOIRs Office of the Chief Administrative Hearing Officer adjudicates immigration-related employment cases. EOIR is committed to ensuring fairness in all of the cases it adjudicates. ### 08-1110 Page 2 of 2 #08-1110: New Board of Immigration Appeals Members Sworn in by Attorney General ... 12/16/2008 http://www.usdoj.gov/opa/pr/2008/December/08-eoir-1110.html http://www.Dr-Immigration.com/news/shownews.asp?newsID=31 Sat, 7 Mar 2009 20:25:12 EST HOW TO FILE THE I-17 PETITION TO BE APPROVED TO ENROLL by Immigration Lawyer in NYC From US DHS: U.S. Department of Homeland Security Washington, DC 20536 October 6, 2005 page 1 HOW TO FILE THE I-17 PETITION TO BE APPROVED TO ENROLL NONIMMIGRANT STUDENTS (F OR M VISA) The Student and Exchange Visitor Program (SEVP) Office is providing the following guidance to educational institutions applying for SEVP certification, in order to assist with filling out the Form I-17, Petition for Approval of School Attendance by Non-Immigrant Students, as required by regulation 8 CFR 214.3(h)(2). IMPORTANT NOTICE Per federal regulation 8CFR103.2(a), fees are non-refundable and, except as otherwise provided in this chapter, must be paid when the application is filed. Accordingly, once a payment is made for an I-17 petition, this fee will not be refunded. REGULATIONS Regulations concerning school approval can be found at: http://www.ice.gov/sevis; click on Schools and Programs. CERTIFICATION CRITERIA If your institution does not meet the following basic requirements, it will be ineligible for SEVP certification. The school must be: 1. A bona fide school; 2. An established institution of learning; 3. Possess the necessary facilities, personnel, and finances to conduct instruction in recognized courses of study; 4. The institution must currently be engaged in instruction at the time of filing and NOT at some point prior to final adjudication; 5. Institutions applying for M classification (vocational AND technical training), must have programs which meet for a minimum of 18 hours per week if the program is primarily classroom instruction, or 22 hours per week if the program is primarily lab work; 6. English language schools must have programs that meet for a minimum of 18 hours per week. The following institutions are ineligible for certification: 1. Public K-8 schools 2. Pre-school and/or day care programs 3. Home schools 4. Schools primarily based on distance learning or online 5. Adult education centers which are publicly funded 6. Flight schools that are not Part 141 or Part 142 certified 7. Schools offering only part-time programs which do not meet the hour requirements as defined by 8 CFR 214.2(f) and/or 8 CFR 214.2(m) October 6, 2005 page 2 OVERVIEW OF THE I-17 PROCESS 1. A school submitting their first I-17 petition should obtain a temporary UserID to access SEVIS to submit the I-17 petition. Instructions on obtaining a UserID can be found at http://www.ice.gov/graphics/sevis/pdf/tempid.pdf. 2. Remit payment at https://www.pay.gov within 14 days of submitting the I-17 petition. To remit payment, click on Search Public Forms, and in the agency field, select Homeland Security (DHS) Immigration and Customs Enforcement I-17 fee). Once payment is made, send an email to the School Certification Branch with the Pay.Gov tracking number, date of payment, amount, school name, and the state in which the school is located. 3. E- mail is the primary form of communication. Please ensure your email accepts all email from *.gov and is not treated as SPAM. 4. After payment is recorded, the School Certification Branch (SCB) will schedule an on-site visit. The Principal Designated School Official (PDSO) will be contacted by an inspector to schedule a mutually agreed upon time for an on-site visit of all campus locations. Please note: The inspector has 10 business days to return all required documentation to our office. For further information on the site visit, please see the How to Prepare for a Site Visit on our website. If for some reason, the PDSO or any of the DSOs cannot meet the inspector and the inspector shows up, the school will be responsible for payment of a second site visit. 5. The school will submit all required documentation to the inspector, which will be forwarded to the School Certification Branch. If the school is missing any required documentation on the day of the visit, this can be forwarded separately to our office. Once the School Certification Branch receives a complete file, the time of adjudication is approximately three months. Field-by-Field Instructions The following instructions pertain to each field number on the I-17 petition in SEVIS (note that the field numbers on the electronic version in SEVIS are not the same numbers that appear on the printed I-17): 1. Academic or Vocational Certification: In general, the following types of institutions should seek certification for F (Academic and Language) students: a. K-12 institutions b. Language Schools c. Degree issuing institutions of higher learning (bachelors, masters, etc.) d. Ministry, seminary, divinity, or other training to be employed as a head of a religious organization that provides religious services. e. Fine Arts, which is defined as dance, music, theatre, or photography The following types of institutions generally fall within the M (Vocational/Technical) certification: a. Post-secondary vocational schools, which does not issue a recognized degree. The credentials issued are diploma or certificate. b. Technical training c. Colleges which offer non-degree programs Institutions may seek either F or M certification, or both, depending on the types of programs that the school is seeking approval. October 6, 2005 page 3 2. Name of School System: Institutions should file under the individual school name, unless filing as a school system. In this case, file under the school district name and list each school as a separate campus. Public school systems (or private K-12 systems with record keeping centralized at a main office or school) should simply file under the school name and need not list the high schools as separate campuses, but instead should just list the main location where the student records will be maintain and all SEVP-related documentation. For example, an archdiocese could file the petition under the name of the archdiocese and list central office as the location. The site visit will be conducted at this location and, if approved, the entire archdiocesan school system will be certified. 3. Mailing Address: This address is where all mailed all mailed correspondence will be sent. This may be a P.O., but should include the complete street address for overnight delivery purposes. If the school is applying with multiple locations, enter the address of the main location. 4. Location Address: The location of the school is where the site visit will be conducted. For schools applying as school systems, this should be the equivalent of the main location where records will be maintained. 5. School type: Public institutions are defined as those funded through state, local, or federal funds. If this institution is filing as private, an owner name will be required. If the owner is an individual, list his or her name in this field. If the institution is instead operated via a Board of Directors or Trustees, this may be indicated here. If the institution is incorporated, list the corporation name and the governing body. The owners address must be a street address and cannot be a P.O. Box. 6. Education engaged in: You may select multiple types of education in this field. Only select the fields which the school is seeking certification to enroll non-immigrant students. a. If the school is offers a full-time English as a Second Language program, indicate the school is engaged in English Language Training. If English is adjunct or will be taken in conjunction with other courses, do not indicate English language training. b. Do not include reference to any programs below the kindergarten level, as these are not approvable for non- immigrant students. 7. Sessions : Indicate in this field the type of sessions the school operates under. Other may be selected for annual and/or continuous enrollment. Alternatively, you may check other if the school operates on a type of session not given as a choice, for example, an annual session system. If you list quarters in Field 7, you should list four dates in Field 8. 8. Registration: Session start dates should match the type of session offered. For example, if the school checked quarters, four session start dates must be listed. Indicate the month and day in this field. 9. Date of establishment: To file a petition, the institution must currently conducting instruction in the course of study seeking approval. For example, if your institution operates multiple locations which are already SEVIS certified, and you are opening a new campus which holds only interim accreditation, it still may be eligible for certification. If you believe that your institution may fall into this category, contact the school certification branch. 10. Authorizations : Include all approvals obtained by the State. Do not abbreviate. October 6, 2005 page 4 11. Accreditations : Include any type of accreditation or approval held from a nationally recognized accrediting body. A list of the accrediting bodies recognized for post-secondary education by the U.S. Department of Education can be found at: http://www.ed.gov/admins/finaid/accred/index.html. 12. Areas of study: Check only those fields in which the school is seeking approval to enroll non- immigrant students. 13. Degrees available : Check the degrees that the school wishes to seek certification for nonimmigrant students. Credentials not listed (such as certificates or diplomas) should be listed in the other section. 14. Education engaged in: Leave all drop down boxes BLANK except those that apply to the type of school AND programs the school is seeking certification. Indicate English language training only if the school intends to issue Form I-20 specifically for English as a Second Language. 15. Sessions : Indicate when sessions for non- immigrant students will be held. 16. Admission requirements: Include all admission requirements for non-immigrant students. For public high schools, payment of the full, unsubsidized per-capita cost of education must be included as an admission requirement. 17. Courses of Study: List the programs that you intend to enroll non- immigrant students and the approximate duration of each program. For non-degree related programs or English language programs, you must list the hours per week of instruction, hours per week of lab work, number of weeks of the program, and total hours to complete the program. Public secondary schools should acknowledge F students may only attend one academic year in this field. 18. Graduation Requirements: This field should include graduation requirements. If the school is applying for multiple programs, a catalog or statement will be required to list the requirements for each program. 19. Causes for expulsion: Indicate the expulsion requirements that apply to non-immigrant students. 20. Institution information: Provide approximate figures in this field. 21. Cost: This figure should be the current years cost. For public high schools, this value should be the full, unsubsidized, per capita cost of education. This should include all sources of funding (local and state). Documentation Requirements Please see the FAQ which outlines documentation requirements. Questions/Concerns/Commendations/To Report Problems If you have any questions, concerns, or wish to recognize an individual from the SEVP office, send an email to schoolcert.sevis@dhs.gov. SEVP Address: 800 K Street, NW Suite 1000 Washington, DC 20536 Phone: 202-305-2346 Fax: 202-353-3723 http://www.Dr-Immigration.com/news/shownews.asp?newsID=30 Sat, 7 Mar 2009 20:25:04 EST US DHS Frequently Asked Questions on Certification of School to Enroll Foreign Student by Immigration Lawyer in NYC BY US DHS: SEVP I-17 Frequently Asked Questions Return to I-17 FAQ 4. Preparing the petition for SEVP certification 4.1 Are there instructions on using SEVIS and how to apply for SEVP certification? 4.2 Should the Form I-17 information on students reflect all students or just nonimmigrant students? 4.3 My school is not accredited. Can you direct me to the nationally recognized accrediting bodies? 4.4 What qualifies as language training on the Form I-17 petition? 4.5 Should a student enrolling in ESL before entering a vocational school be admitted in F or M status? 4.6 What does it mean that another institution will unconditionally take transfer students/credits? 4.7 Do all public high schools that want to enroll nonimmigrant students need to receive SEVP certification for F or M nonimmigrant students? 4.8 Why do public high schools need to charge F nonimmigrant students the unsubsidized per capita cost of education? 4.9 What is a DSO or PDSO? 4.10 What is the difference between a DSO and a PDSO? 4.11 What are the requirements for appointing DSOs? 4.12 What information about DSOs must be entered on the application for SEVP certification? 4.13 Who approves nominations for DSO? 4.14 What does it mean when someone who has been appointed a DSO signs a Form I-17A, Record of Designated School Officials? 4.1 Are there instructions on using SEVIS and how to apply for SEVP certification? The primary means for SEVP to communicate with all SEVIS users is through the SEVP website. It will be to your advantage to become familiar with this site as soon as possible and visit it frequently to receive latest program and system updates. Specific guidance on using SEVIS and completing your SEVP certification application will be found in the User Manual for Temporary Users of the Student and Exchange Visitor Information System How to Complete and Submit the Form I-17, Petition for Approval of School for Attendance by Nonimmigrant Students The SCB gives the following supplemental guidance to accompany the description of entries for each field on the petition in SEVIS. (Note: the field numbers on the electronic versionas entered in SEVISdo not correspond with the numbering that appears on the printed I-17): Field 1Academic or vocational certification. In general, the following types of institutions should seek certification for F (academic and language) students: o K-12 institutions o Language schools o Degree issuing institutions of higher learning o Ministry or religious training to conduct religious services o Fine Arts (dance, music, theatre, photography) The following types of institutions should seek certification for M (vocational/ technical) students: o Post secondary vocational schools, which do not issue associates, bachelors, masters or doctorate degrees o Technical training institutions o Colleges or community colleges which offer non-degree programs (certificate programs, associate-level and below) Institutions may seek either F or M certification, or certification to enroll both, depending on the types of programs for which the school is seeking approval. Field 2Name of school system. Institutions should file under the individual school name, unless they are filing as a school system. In this case, file under the school district name and list each school as a separate campus. Public school systems (or private K-12 systems with record keeping centralized at a main office or school) should simply file under the school system name and do not need to list the high schools as separate campuses, but instead should just list the district office. For example, an archdiocese could file the petition under the name of the archdiocese and list the central office as its location. The site visit will be conducted at this location and, if approved, the entire archdiocesan school system will be certified. Field 3Mailing address. This address is where all mailed correspondence will be sent. This may be a P.O. box, but should include the complete street address for overnight delivery purposes. If the school or school system is applying with multiple locations, enter the address of the main location. Field 4Location address. The primary location or main campus for the school. In the case of school systems, this is the location where the site visit will be conducted and should be the main location where records will be maintained. Field 5School type. Public institutions are defined as those funded through state, local, or federal funds. If this institution is filing as private, an owner name will be required. If the owner is an individual, list his or her name in this field. If the institution is instead operated via a board of directors or trustees, this may be indicated here. If the institution is incorporated, list the corporation name and the governing body. The owners address must be a street address and cannot be a P.O. box. Field 6Education engaged in. You may select multiple types of education in this field. Only select the fields in which the school is seeking certification to enroll nonimmigrant students. o If the school offers a full-time English as a Second Language program separate from other curricula, indicate that the school is engaged in English Language Training. If English is just an adjunct or will be taken in conjunction with other courses, do not indicate English language training. o Do not include reference to any programs below the kindergarten level, as these are not approvable for nonimmigrant students. Field 7Sessions. Indicate in this field the type of sessions the school operates under. Other may be selected for annual and/or continuous enrollment. If you list quarters in Field 7, you should list four dates in Field 8. Field 8Registration. Session start dates should match the type of session offered. For example, if the school checked quarters, four session start dates must be listed. Indicate the month and day in this field. Field 9Date of establishment. To file a petition, the institution must be currently conducting instruction in the course of study for which they are seeking approval. For example, if your institution operates multiple locations that are already SEVP-certified, and you are opening a new campus that holds only interim accreditation, it still may be eligible for certification. If you believe that your institution may fall into this category, contact the SCB. Field 10Authorizations. Include all approvals obtained by the state in which the schools campus is located. (If campuses are located in other states, approvals from them should be included, too.) Do not abbreviate. Field 11Accreditations. Include any type of accreditation or approval held from a regional or nationally recognized accrediting body (i.e., recognized by the U.S. Department of Education). Field 12Areas of study. Check only those fields in which the school is seeking approval to enroll nonimmigrant students. Field 13Degrees available. Indicate the degrees that the school wishes to have certified for nonimmigrant student enrollment. Credentials not listed (such as certificates or diplomas) should be listed in the other section. Field 14Education engaged in. Leave all drop down boxes BLANK except those that apply to the type of school AND programs in which the school is seeking certification. Indicate English language training only if the school intends to issue Forms I-20 specifically for English as a Second Language. Field 15Sessions. Indicate when sessions for nonimmigrant students will be held. Field 16Admission requirements. Include all admission requirements for nonimmigrant students. For public high schools, payment of the full, unsubsidized per-capita cost of education before issuing the Form I-20 must be included as an admission requirement. Field 17Courses of study. List the programs in which you intend to enroll nonimmigrant students and the approximate duration of each program. For non-degree related programs or English language programs, you must list the hours per week of instruction, hours per week of lab work, number of weeks of the program, and total hours to complete the program. Public secondary schools should acknowledge in this field that they understand that F students may only attend one academic year in a public high school. Field 18Graduation requirements. This field should include graduation requirements. If the school is applying for multiple programs, a catalog or statement will be required to list the requirements for each program. Field 19Causes for expulsion. Indicate the expulsion requirements that apply to nonimmigrant students. Field 20Institution information. Provide approximate annual figures in this field. Field 21Cost. This figure should be the current years cost. For public high schools, this value should be the full, unsubsidized, per capita cost of education. This should include all sources of school funding (local and state). 4.2 Should the Form I-17 information on students reflect all students or just nonimmigrant students? See the specific instructions for each field in the User Manual for Temporary Users of the Student and Exchange Visitor Information System How to Complete and Submit the Form I-17, Petition for Approval of School for Attendance by Nonimmigrant Students and as amended in section 4.1 (above) 4.3 My school is not accredited. Can you direct me to the nationally recognized accrediting bodies? A list of the accrediting bodies recognized for post-secondary education by the U.S. Department of Education can be found at: http://www.ed.gov/admins/finaid/accred/index.html. 4.4 What qualifies as language training on the Form I-17 petition? This term relates to any program designed solely to instruct a student in English as a Second Language (ESL). If the school intends to issue Forms I-20 for ESL training, this information should be listed on your petition. If the school does not intend to specifically issue Forms I-20 for ESL, then this information does not need to be reported. Public high schools and private K-12 schools do not need to list ESL instruction, unless it is a stand-alone program. 4.5 Should a student enrolling in ESL before entering a vocational school be admitted in F or M status? A student whose primary intent is to pursue vocational or technical training and who takes English language training at the same school solely for the purpose of being able to understand the vocational or technical course of study is classified as a nonimmigrant in M status. 4.6 What does it mean that another institution will unconditionally take transfer students/credits? Unconditional transfer is otherwise known as an articulation agreement. If not accredited by a recognized accrediting agency, a school applying for SEVP certification must have an articulation agreement with other schools of higher learning, attesting that the credits of the applicant school will be accepted unconditionally (without exception) by the other schools. Articulation agreements must be with institutions that are accredited by agencies that are nationally recognized by the Secretary of Education . In addition, schools may provide letters from schools with nationally recognized accreditation that they have accepted unconditionally the transfer of credits to their institution. 4.7 Do all public high schools that want to enroll nonimmigrant students need to receive SEVP certification for F or M nonimmigrant students? No. A public school can be approved to accept nonimmigrant foreign students as exchange visitors in J visa status. The public school would receive this approval through a third party (i.e., Rotary) that is validated by DOS as an exchange visitor program. If a school has such approval, it does not need to apply for additional SEVP certification to enroll F or M nonimmigrants. A school that does not have approval by an exchange visitor program has no alternative but to obtain SEVP certification if they wish to enroll nonimmigrant students. 4.8 Why do public high schools need to charge F nonimmigrant students the unsubsidized per capita cost of education? The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 made significant changes to F-1 nonimmigrant student regulations. Among these, F-1 nonimmigrant students are restricted to a maximum of one year of attendance in a public school, may only attend in grades 9-12, and must pay the unsubsidized per capita cost of education. 4.9 What is a DSO or PDSO? A Designated School Official (DSO) or Principal Designated School Official (PDSO) must be a regularly employed member of the school administration whose office is located at the school and whose compensation does not come from commissions for recruitment of foreign students. (If an individuals principal employment for the school is to recruit foreign students for compensation, he or she does not qualify to be a DSO. The president, owner, or head of a school or school system must name the PDSO and any other DSO, by signing the Form I-17A. The PDSO and DSO may not delegate this designation to any other person. 4.10 What is the difference between a DSO and a PDSO? The PDSO is also a DSO, having identical requirements and responsibilities. The PDSO has additional responsibilities and access privileges in SEVIS beyond those of someone who is solely a DSO. 4.11 What are the requirements for appointing DSOs? * All DSOs must be either citizens or lawful permanent residents of the United States. * Each campus must have one PDSO. The PDSO is responsible for updating SEVIS to reflect the addition or deletion of all DSOs on his or her associated campus. DHS will also use the PDSO as the point of contact on any issues that relate to the school's compliance with the regulations as well as any system alerts generated by SEVIS. In all other respects the PDSO and DSO share the same responsibilities. * Each campus must have a DSO located on-campus. * Each school may have up to 10 DSOs at any one time, including the PDSO. In a multi-campus school, each campus may have up to 10 designated officials at any one time including a required PDSO. * However, in a private elementary or public or private secondary school system, the entire school system is limited to 10 DSOs at any one time, including the PDSO. 4.12 What information about DSOs must be entered on the application for SEVP certification? The application for school approval must include the names, titles, and original (not copy) sample signatures of each DSO on the Form I-17A. 4.13 Who approves nominations for DSO? In the overwhelming number of cases, SEVP accepts the nomination of the appropriate school official. However, at its discretion, SEVP may reject the submission of any individual as a DSO or withdraw a previously accepted DSO. 4.14 What does it mean when someone who has been appointed a DSO signs a Form I-17A, Record of Designated School Officials? Signing the Form I-17A is a certification by the individual being appointed that he or she is familiar with SEVP regulations relating to the requirements for admission and maintenance of status of nonimmigrant students, change of nonimmigrant status under part 248 of 8 CFR, and school approval under 8 CFR 214.3 and 214.4. Further, it affirms the official's intent to comply with these regulations. At the time a new DSO is added, the DSO must make the same certificatio http://www.Dr-Immigration.com/news/shownews.asp?newsID=29 Sat, 7 Mar 2009 20:24:58 EST BY USCIS: Student Visas The Immigration and Nationality Act provides two nonimmigrant visa categories for persons wishing to study in the United States. The "F" visa is reserved for nonimmigrants wishing to pursue academic studies and/or language training programs, and the "M" visa is reserved for nonimmigrants wishing to pursue nonacademic or vocational studies. F-Academic Students and M-Vocational Students Requirements Foreign students seeking to study in the U.S. may enter in the F-1 or M-1 category provided they meet the following criteria: The student must be enrolled in an "academic" educational program, a language-training program, or a vocational program; The school must be approved by U.S. Citizenship and Immigration Services (USCIS); The student must be enrolled as a full-time student at the institution; The student must be proficient in English or be enrolled in courses leading to English proficiency; The student must have sufficient funds available for self-support during the entire proposed course of study; and The student must maintain a residence abroad which he/she has no intention of giving up. Click to find out more specific information about becoming an academic student in the United States. Click to find out more specific information about studying the English language in the United States. Click to find out more specific information about becoming a vocational student in the United States. Information on How to Apply for the Student Visa, Visa Ineligibility/Waiver, Student Employment can be obtained via Visa Services at Department of State Website. Also see Sec. 641 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 (Pub. L. 104-208). Section 641 of IIRIRA is one of the catalysts behind a new interagency initiative known as the Student Exchange and Visitors Program, or SEVP program. SEVP is designed to improve processes for foreign students and exchange visitors holding F, J, and M visas, and schools, colleges and other organizations sponsoring programs for these visa holders. SEVP will facilitate and automate several processes affecting foreign students, such as: Visa issuance admissions to the U.S.; benefit requests; and information reporting. Please visit the Student and Exchange Visitors Program, or SEVP website at U.S. Immigration and Customs Enforcement for more information. Useful information for Schools Obtaining Approval to Receive Nonimmigrant Students Petition for Approval, Form I-17, must be filed with the district office with jurisdiction for the the locality where the school is located. There are two types of foreign students, F-1 and M-1 nonimmigrants. A school may be approved for F and/or M students, as described below. However, an individual student's classification depends on his/her principal educational goals. F-1: Approval for attendance of academic students may be solicited by an accredited college or university that awards bachelors, masters, doctorate or professional degrees; an accredited community or junior college that provides instruction in the liberal arts or the professions and awards associate degrees; a seminary; a conservatory; an academic high school; a private elementary school; or an institution that provides language training, instruction in the liberal arts, the fine arts or the professions, or instruction in one or more of these disciplines. M-1: Approval for the attendance of non-academic students may be solicited by a community college or junior college that provides vocational or technical training and awards associate degrees; a vocational high school; a trade school or a school of nonacademic training other than language training. Current USCIS regulations recognize the following as approved schools: * A school operated as a public educational institution by federal, state, or local government; and * A school accredited by a nationally recognized accrediting agency. If an institution of higher education does not fall into one of these two categories, it must submit evidence that its course credits are accepted by at least three accredited schools. If a private elementary or public or private secondary school does not fallinto one of these two categories, it must submit evidence that it satisfies the compulsory attendance requirements of the state in which it is located and that it qualifies graduates for acceptance by approved schools at a higher educational level, and in the case of a private elementary or secondary school, that it is accredited by an accrediting organization, certified by the U.S. Department of Education's Office of Non-Public Education. Approval Process Petition for approval (Form I-17) is filed in duplicate with the district director in the school's locality. The following requirements must also be met: The Form I-17 must be signed by an officer of the institution who has authority to sign contracts. The petitioning school must submit certification indicating that it is licensed, approved, and/or accredited. Where to apply? All applications submitted by schools and institutions wishing to accept nonimmigrant students, should be mailed to the "Attention of the USCIS Schools Officer" at the USCIS District Office having jurisdiction over the geographic area in which the institution is located. http://www.Dr-Immigration.com/news/shownews.asp?newsID=28 Sat, 7 Mar 2009 20:24:47 EST US DHS on Petition for approval of school by Immigration lawyer in NYC (a) Contents of OI 214.3. (b) General (c) School systems. (d) Updates to a school's record. (e) Determinations regarding F or M classification. (f) Form M-242. (g) Liaison with designated school officials and students. (h) Outreach workshops (i) International educational exchange. (j) Record-keeping requirements. (k) Reporting requirements. (l) Guidelines for Service officer requesting information from designated school officials. (m) Review of school approvals. (n) Issuance of Forms I-20. (b) General. (1) Attachments and supporting evidence. Each Form I-17, Petition for Approval of School for Attendance by Nonimmigrant Students, must be accompanied by the forms and documents listed below: (i) Form(s) I-17A, Designated School Officials, listing up to five designated officials for each school or elementary or secondary school system or each school or campus within a school system (except an elementary or secondary school system). If the petitioner is a school system, each Form I-17A must list each school system, each Form I-17A must list each school or campus where the designated officials on the form are authorized to be designated officials. (ii) Form(s) I-17B, School System Attachment, if the petitioner is a school system. (iii) All supporting documents required by item #4 of the instructions to Form I-17. (2) Investigation of petitioner. If, following an interview of the authorized representative of the petitioner and an examination of the required documentary evidence, an outside inquiry is necessary to resolve any question concerning the bona fides of the school; its facilities, personnel finances, or recognition as an educational institution; or any other pertinent matter; an investigation should be requested. The officer requesting the investigation must draft an individual memorandum to the Investigations section articulating the reasons for requesting an investigation and specifically what he or she wants to be determined. (3) Alternative to listing in Department of Education publications. (i) Listing not published yet. If a school which is not listed in either of the most current revision of the Department of Education publications, "Accredited Postsecondary Institutions and Program" or "Education Directory,Colleges and Universities," submits evidence that it will be listed in one of these publications the next time it is published, the school will be considered to be listed in that publication. (ii) "Correspondent" or "candidate for accreditation". When a new institution of higher education indicates that it is having difficulty in meeting the requirement of establishing that its credits have been and are accepted unconditionally by at least three accredited institutions, a suggestion should be made that the institution used the following procedure for establishing eligibility for listing in the "Education Directory, Colleges and Universities". Under this procedure, the institution may correspond wit h the nationally recognized regional association which has jurisdiction over accreditation of institutions of higher education in the geographical area in which the institution is located in order to obtain recognition as a "correspondent" or "candidate for accreditation". These regional accrediting associations include: (A) the Middle States Association of Colleges and Schools. (B) the New England Association of Schools and Colleges (C) the North Central Association of Colleges and Schools. (D) the Northwest Association of Schools and Colleges (E) the Southern Association of Colleges and Schools, and (F) the Western Association of Schools and Colleges. The petitioner should be advised to submit, in support of Form I-17, any response received from the regional accrediting association indicating recognition of it. This response must be included among the papers furnished to the Department of Education when that agency is consulted. In that case, no investigation should be requested pending receipt of a reply from the Department of Education. If the Department of Education advises that the new institution of higher education has successfully established eligibility for listing in the "Education Directory, Colleges and Universities" through recognition by the regional accrediting association, the institution may be considered to be listed in that publication. (4) Evidence that a school's courses of study are accepted as fulfilling the requirements for the attainment of an educational, professional, or vocational objective and are not avocational or recreational character. (i) School which must submit evident that its courses of study must submit evidence that its courses of study fulfill the requirements for the attainment of an educational, professional, or vocational objective, 8 CFR 214.3(b) states. in part, that a vocational school, business school, language school, and American institution of research recognized by the Attorney General must submit evidence that its courses of study are accepted as fulfilling the requirements for the attainment of an educational , professional or vocational objective and are not avocational or recreational in character. If a school is not an elementary or secondary school or an institution of higher education, it must demonstrate that it meets this requirement. This applies to vocational schools, business schools language schools, and American institutions of research recognized by the Attorney General, as well as any other institutions which are not elementary or secondary schools or institutions of higher education. If such an institution is approved for attendance of nonimmigrant students, the students are to be class ified as F-1 or M-1 students depending on the nature of the studies as indicated in OI 214.3(e). (ii) Vocational or professional objective. According to Department of Education guidelines, as evidence that a petitioner meets a vocational or professional objective, it must submit letter from 3 employers of the petitioner's graduates, on the employer's letterhead, stating the name of the graduate, the school from which graduated, the position in which employed, and the period of employment. (iii) Educational objective. To prove that petitioner meets am educational objective it must submit letters from 3 accredited institutions of higher education, on the institution of higher education letterhead, stating the name of the graduate it has enrolled, the date or enrollment, and the fact that enrollment was on he basis of education or training received at the petitioning institution. (iv) Listing in Department of Education publication. According to the Department of Education, all institutions which are listed in the most current revisions of the Department of Education publications, "Accredited postsecondary institutions and programs" or "Education Directory, colleges and Universities," have demonstrated that they meet an educational, vocational or professional objective and are not avocational or recreational in character. (5) Consultation with the Department of Education. When requesting the advisory opinion of the Department of Education pursuant to 8 CFR 214.3(c) , the adjudicating officer shall sent to that department copies of Form I-17, all supporting documents, the report of the all interview and of any investigation conductee in the case, and Form I-17B, if applicable. The originals of Form I-17, all supporting documents, the report of the interview and of the investigation, if applicable, and Form I17-B, if applicable, are to be retained in the file. Requests for advisory opinions are to be sent, as appropriate, to the addresses of the Department of Educati on listed in the Appendix to this OI. (i) Reference Tools. INS field offices should consult Department of Education (DOE) only when the petitioning school is either unlicensed or unaccredited. Before forwarding any school petition to DOE, Student/school officers should first refer to the latest edition or Accredited Institutions of Postsecondary Education, and then to the current DOE publication, Accredited Postsecondary Institutions and programs or Education Directory, Colleges and Universities. Accredited Institutions of Post secondary Education, published by the American Council on Education for the Council on Postsecondary Accreditation, may be obtained from Macmillian Publishing Company, Inc., Front & Brown Streets, Riverside, New Jersey 08075. Accredited Postsecondary Institutions and Programs and Education Directory, Colleges and Universities, both published by the Department of Education, include schools participating in Education, include schools participating in federal programs only. Since these publications do not give a comprehensive listing of all the accredited postsecondary schools, they should not be used as primary reference tools. (ii) Consultation by Telephone. Consultation with DOE may be conducted by telephone if an unaccredited school indicates on the petition, Form I-17, that it has applied to DOE for federal funding under the alternative to accreditation arrangement [ see OI'$ 214.3(b) (3)]. In that case, instead of forwarding the petition to DOE, INS should request a status report from DOE. Telephone checks may also be made on any case that has been referred to DOE's average turnaround time is 20 to 25 days from date of receipt. However, DOE for certification. DOE's average turnaround time is 20 to 25 days from date of receipt. However, DOE will expedite its responsible request by INS. Inquires to DOE should be addressed to the Chief, Eligibility Branch, at (FTS) 732-4906. (iii) DOE Certification. DOE may certify a school as either degree granting or vocational, based on whether or not that school confers degrees. All schools that do not confer degrees, including English language schools and certain community colleges, are certified as vocational. However, by INS definition, an academic institution, and an educational institution certified by DOE as vocational may approved as an academic institution authorized to accept F-1 students by the INS. To avoid confusion caused by t hese terms, the DOE certification will simply state whether or not the institution is a bona fied postsecondary school. INS will then determine if the school is classifiable as either F-1 or M-1 pursuant to the provision of 8 CFR 214.3(a) . (iv) Congressional Inquires. All Congressional inquires regarding petitions for school approval should be handled by the INS at the district office level. It is the Service's responsibility to ascertain whether a petition is returned for additional information or is awaiting certification by DOE. (v) Supporting Documents. Service officers should examine petitions for completeness before referring them to DOE for certification . A complete petition should include a Form I-17, a copy of the INS interview statement with the petitioner is a flight school, in addition to the required documents, there should be evidence that the school is currently licensed or approved by the Federal Aviation Administration (FAA). (6) School or school system of long-standing and unquestioned reputation. In the case of a private school or school system listed in one of the Department of Education publications, "Accredited Postsecondary Institutions and Programs", or Education Directory, Colleges and Universities," of long-standing and unquestioned reputation, the district director may, in his or her discretion, waive the requirement for a certification by the appropriate licensing, approving or accrediting official that it is licensed, a pproved, or accredited. Similarly, in the case of private secondary school or school system of long-standing and unquestioned reputation which is operated by or as part of school or school system which is listed in one of the above publications, the district director may, in his or her discretion, waive the requirement for a certification that it meets the requirements of the state or local public educational system which has been signed by the appropriate public official. In making a determination as to whether to waive the above requirements, however, it must be kept in mind that the conditions at a school may have changed since the school was last listed in one of the above publications to the extent that the school is no longer eligible for listing in future editions of the publication. (7) Public school or school system. In the case of a public school or school system which is listed in one of the Department of Education Publications, "Accredited Postsecondary Institutions and Programs" or "Education Directory, Colleges and Universities," or which is a secondary school or school system listed in one of the above publications, the district director may, in his or her discretion, waive the requirement for a certification that it is owned or operated as a public educational institution by the United States or a state or political subdivision of the United States. (8) Schools where more than 12 months of alternate work/study is required part of the curriculum. A school approval petition may be approved in behalf of a school where more than 12 months of work/study courses is a required part of the curriculum. (9) Approval petition. (i) Initial approval. If an initial petition for school approval is approved, Form I-516 (with Forms M-50, M-201, M-258, M-259, I-94, I-20 enclosed) is used to notify the petitioner, A copy or copies of Form(s) I-17A must be attached to the Form I-516 sent to the petitioner. If the school is a school system, a copy or copies of Form(s) I-17B must also be attached to the Form I-516 sent to the petitioner. (ii) Reaffirmation of approval. If the approval of a previously approved school is reaffirmed as a result of the filing of Form I-17 for review of approval or request for change or update, Form I-516 is used to notify the petitioner, with copies of Form(s) I-17A and I-17(B), if applicable, attached. A Form I-17 filed in such a case should be statistically counted as though it were an initial petition. (10) Approvable school with unapprovable course(s) of study. An unapprovable program at an otherwise approvable school may not be approved, for example, an evening course, in English language where students do not engage in a full course of study. If a petition for a school or school system with unapprovable programs is approved, the approval notice must state that the approval does not extend to those specified programs not found to be in compliance with Service regulations. This applies equally when: (i) the unapprovable program exists at an otherwise approvable school which has only one school or campus, (ii) an entire school or campus listed on Form I-17B is unapprovable, or (iii) part of a school or campus listed on Form I-17B is unapprovable. When a program at an otherwise approvable school or school system is denied, the petitioner must be given a formal denial notice and the opportunity to appeal the decision. (c) School systems. (1) General. At the option of the petitioner, a School system (including an elementary or secondary school system) within the same Service jurisdiction may file one or more Forms I-17. If a separate Form I 17 is filed for each school system School, then Form I-17B is not necessary. Furthermore, the school code suffix referred to in 8 CFR 214.2(f)(13) and 8 CFR 214.2(m) (17) in such a case would be.000. The consecutively numbered school code suffixes are necessary only when one Form I-17 is used for more than one school or campus. (2) Colleges or universities with English language programs. At the option of the petitioner, an English language program operated by a college or university may distinguish itself from its parent school by listing it self as a separate school on Form I-17B if the school officials at the parent school and at the English program agree to do so. (3) School or campuses within a school system. The purpose of the school code suffix is to assign each school or campus within a school system a unique identifying number in STSC. Separate teaching institutions within a single campus (except at the elementary or secondary level)may, at the option of the petitioner, also qualify as schools within a school system, provided that their student enrollments and administrations are independent from those of the parent school. Each school or campus with a separate computer -generated student status form, Form I-721, for purposes of complying with the report requirements of 8 CFR 214.3(g) (2) and may list up to five designated officials on Form I-17A. (d) Updates to a school's record. (1) Change in designated school officials. Any changes in an approved school's designated officials must be reported by the school on Form I-17A to the District Director having jurisdiction over the school within 30 days of each change. A Form I-17A for a school system must list the name and school code suffix of each school or campus where the change is desired. After review, the original Form I-17A will be sent to the Service data processing center to update STSC. (2) Change in ownership. If an approved school or school system changes ownership, if its approval will be automatically withdrawn 60 days after the change in ownership unless, during that period, if files a new petition for school approval on Form(s) I-17 with the appropriate fee, Form(s) I-17A and, if applicable, I-17B. The school must be notified if the approval is reaffirmed. If a school or school system changes ownership while Form I-17 is pending, a new Form I-17 must be filed, with the appropriate fee, Form(s) I-17A and, if applicable, I-17B. (3) New determination regarding type of student for which approved.If a motion to reopen or reconsider a determination regarding the type of student for which a school is approved (F or M or both) is granted, the school must be notified of the decision on Form I-516. If the petition is for a school system, a copy of Form I-17B must be attached to Form I-516. (4) Change in schools or campuses. If an approved school system wishes approval for schools or campuses not listed on its initial Form I-17B, wishes to remove schools or campuses listed on its initial Form I-17B, or otherwise wishes to update or correct the information previously submitted on Form I-17B, it must submit a new Form I-17, without fee, accompanied by Form I-17B and, if applicable, Form(s) I-17A. If a previously approved school that was not a school system becomes a school system and wishes appro val for additional school(s) or campus(es),it must submit a new Form I-17, without fee, and, if applicable, Forms I-17A and I-17B. (5) Other updates. If an approved school wishes to advise the Service of change in address or school term or to change in address or school term or to change the type of student for which it is approved (F or M or both), it must submit a new Form I-17, without fee, and, if applicable, Forms I-17A and/or I-17B. (e) Determinations regarding F or M classification. 8 CFR 214.3(a)(2) provides for approval of a school for attendance of F-1 or M-1 students or both based , in large part, on the nature of the subject matter taught. If a student intends to pursue studies primarily in the liberal arts, fine arts language, religion, or the professions while pursuing a full course of study in the United States. the student is to be classified as an F-1 student. The term 'profession" in 8 CFR 214.3(a)(2) is defined in Section 101(a) (32) of the Act. (f) Form M-242. Form M-242, Immigration and Naturalization Service-Student and School seeking approval on Form I-17. It contains all sections of the regulations which designated officials must read prior to signing Forms I-17A. (g) Liaison with designated school officials and students. to establish and promote a meaningful relationship between the Service and designated officials and nonimmigrant students and to assure that the officials and students have maximum understanding of the law, regulations, and procedures relating to nonimmigrant students and approved schools, Service officers at field offices shall meet with designated officials and foreign students within their jurisdiction to the extent possible and as the worlkload pe rmits. These meetings should be held at least once a year were practicable, preferably at the beginning of the school year. The officials and students in a friendly cordial, and sociable atmosphere conductive to promoting a mutual attitude of cooperation an assistance, their privileges and obligations and impress upon them the willingness of this Service to assist them with immigration matters. (h) Outreach workshops. The Director, outreach, Central Office, will assist in setting up student and school workshops wherever necessary, to the extent possible and as the workload permits to discuss regulations, procedures, and problems. To ensure that all approved schools within the jurisdiction in question are invited to participate in these workshops, lists of approved schools on record in STSC may be used. For assistance in setting up workshops, call the Director at (202) 633-4123. (i) International educational exchange. The United States Government is firmly committed to the value of international student exchange activities. Foreign students at American institutions constitute the future leadership of other nations. Service officers are extremely influential in determining the attitudes of these students toward the United States Government through contact made with the students during their residence in the United States. Officers should therefore treat students appropriately. In particular, the Service is concerned that officers convey a positive impression of the freedom and openness of American society, and the Government's commitment to the rule of law and due process. In all cases, nonimmigrant students are to be treated with the courtesy and respect due future leaders of government and business during their period of study in the United States. Service employees should exhibit sensitivity and courtesy particularly when it its necessary to deny a request or benefit. (j) Record-keeeping requirements. 8 CFR 214.3(g)(1) requires that schools keep all records indicated in that section on all F-1 and M-1 students to whom it has issued forms I-20A-B or I-20M-N. If a student refuses to provide the school with the requested information a designated of the school should bring this to the attention of the Service. A Service officer may then request the necessary information pursuant to 8 CFR 214.1(f) . It should be noted that the address referred to in 8 CFR 214.3(g) (1) (iii) means the address of the student's actual residence, not a P.O. Box. It should also be noted that failure to comply with 8 CFR 214.3(g)(1) without a subpoena is a ground withdrawal of a school's approval. 8 CFR 214.3(g)(1) requires that a designated official make the information and documents required by this regulation available to and furnish them to any Service officer upon request. The request may be verbal or in writing. (k) Reporting a student's social security number. (1) General. 8 CFR 214.3(g)(2) requires that schools furnish reports on the student status form, Form I-721, on all F-1 and M-1 students attending the schools whether or not they issue Forms I-20 to them. See OI 214.2(f)(46), (47), and (48) regarding Form I-721. (2) Reporting a student's social security number. The Service's General Counsel has advised that a Service-approved school's approval is not subject to withdrawal under 8 CFR 214.4(a)(1)(i) for failure to reveal a student's social security number without a subpoena. Under 8 CFR 214.3(g)(1)(xii) , an approved school is required to maintain for each student "information specified by the Service as necessary to identify the student, such as date and place of birth, and to determine the student's immigration status". Since there is presently no specific requirement that social security numbers be maintained, there is no requirement under 8 CFR 214.3(g)(1)(xii) that they be furnished to an immigration officer upon request. (l) Guidelines for Service officers in requesting information from designated school officials. (1) Student consent. It should be noted that all F-1 and M-1 students must sign certifications on page 2 of Forms I-20A-B or I-20M-N containing the statement."I authorize the named school, and any school to which I transfer, to release any information from my records which is needed to determine if I am maintaining the lawful status in which I was admitted to the United States". Therefore , even if the school which the student is attending did not issue a Form I-20 to the student, if the student transferred to that school after having signed the above statement on a Form I-20 from another school, the school which the student is attending is authorized to release information necessary to determine the student's immigration status. (2) Family Educational Rights and privacy Act. (i) Legal requirements. Service officers should note that the Family Educational Rights and Privacy Act (20 USC 1232g, 1974), or Buckley Amendment, protects student records from unauthorized disclosures and constrains school officials from releasing information from student records in certain cases. Furthermore, a record of disclosure is required under the law. Educational institutions must comply with these statutes under threat of loss of funds from the Department of Education. (ii) General Counsel's advisory opinion. The Service's General Counsel has advised that the Consent which an F-1 or M-1 student executes on page 2 of form I-20 is an effective method of insulating a school from an allegation that it is violation of the Buckley Amendment. Once the consent is in existence, and it is assumed the consent exists for an F-1 or M-1 student or the Service would not have accepted Form I-20, neither the school officer needs physical possession of the consent when a request for information under the reporting requirements is made. (iii) Concerns of some designated school officials. In spite of the above, some regarding the release of information about students to whom they have not issued Forms I-20. Since promoting cooperative relationships between designated school officials and Service officers will enhance the effectiveness of the foreign student program, Service officers should be aware of these concerns. While it is expected that problems in this area will normally be resolved at the district office level, assistance may be reque sted from Central Office Adjudications through the regional office. (3) Voluminous requests for information. Officers should keep in mind that asking for information on large numbers of students at a school is quite burdensome to that school. Officers should therefore ask designated officials only for that information which they need and which they are unable to obtain from STSC screens and regular or ad hoc reports. (4) Making requests in writing. To the extent possible, officers should make requests for information from designated officials in writing and allow a reasonable amount of time for a response. It is suggested that the format and wording in the sample request which appears in the Appendix to this OI be used in making written request. (m) Review of school approvals. (1) Frequency. The review of school approvals required by 8 CFR 214.3(h) must be conducted in a regular basis. Each school file must be reviewed at least once every two years. (2) Brief review. In the case of a public school or school system or a private school or school system of long-standing and unquestioned reputation, where there is no derogatory information relating to the school in the school file or the school record in STSC and no useful purpose would be served by an extensive review, the reviewing officer shall simply review the school file and school records in STSC and update the school's records in STSC to indicate that a review has been done. (3) In-depth review. In any other case the reviewing officer shall send a Form I-157 to the school with Forms I-17, I-17A, and if applicable, I-17B. The school must then file a petition for continuation of its approval without fee. If the approval is reaffirmed, the school must be notified of the action taken. (Entire 214.3 revised TM 6/85 (n) Issuance of Forms I-20. (1) whether schools are required to issue Forms I-20. Service regulations do not require that schools accept nonimmigrant students and issue Forms I-20A and I-20M to them since this matter is not within the jurisdiction of this Service. Any school or school system seeking approval or attendance of nonimmigrant students must file a petition with this Service. If the petition is approved, a designated official of the school or school system may issue form I-20A and I-20M. (2) Issuance of Forms I-20 to individuals other than F-1 or M-1 students. Forms I-20 are to be issued only to aliens who are F-1 or M-1 students or who are seeking F-1 or M-1 status. (3) Charging fees for issuance of Forms I-20. Once the appropriate school authority has determined that the prospective F-1 or M-1 student's qualifications meet all standards for admission, and the official responsible for admission at the school has accepted the student for enrollment in a full course of study after compliance with the other conditions of 8 CFR 214.3(k) , a designated official of the school must issue a Form I-20. Since the regulation provides that the official must issue the form, requiring the payment of a fee for its issuance is a violation of Service regulations. Furthermore, the Criminal Division of the Department of Justice has advised that the possibility exists that a designated official who charges a fee for an accepted student to obtain Form I-20 may be in violation of 18 U.S.C. 291(c), which makes it a Federal claim for a public official to exact anything of value in the performance of an official to exact anything of value in the performance of an official act. (4) Issuance of provisional Forms I-20. The provisional issuance of Forms I-20 is a violation of 8 CFR 214.3(k) . According to that regulation. a designated school official may not issue a Form I-20 until the appropriate school authority has determined that the prospective student's qualifications meet all standards for admission at the school which has accepted the prospective student for enrollment in a full course of study. (5) Written application to school. 8 CFR 214.3(k) requires, in part, that a prospective student personally make a written application to a school prior to issuance of Form I-20A or I-20M. The only exceptions permitted are that: (i) An application may be made in behalf of a scholarship student by an official agency of the student's government such as the ministry of education and (ii) The application may be made in behalf of a student by the student's parent or legal guardian. (6) Centralized issuance of Forms I-20 by school system under than one jurisdiction. 8 CFR 214.3(a)(1) requires the same school system located within the jurisdiction of different district directors. The centralized issuance of Forms I-20A-B or I 20M-N to bona fide nonimmigrant students by a designated official of such a school system is permitted when the following conditions have been met: (i) The designated official(s) responsible for signing Forms I-20 is/are aware of, and can certify awareness of, all costs incurred by students at all approved schools within the school system. (ii) There is compliance with all requirements of 8 CFR 214.3(k) and (1). http://www.Dr-Immigration.com/news/shownews.asp?newsID=27 Wed, 25 Feb 2009 10:54:32 EST WASHINGTONU.S. Citizenship and Immigration Services (USCIS) announced today that it has revised Form I-693, Report of Medical Examination and Vaccination Record. The revision was necessitated by changes to the Tuberculosis (TB) Component of the Centers for Disease Control and Preventions Technical Instructions for Civil Surgeons. This revised form (edition date 04/02/08) must be used for any medical examination completed on or after May 1, 2008. Previous editions of the Form I-693 may not be used on or after that date. The medical examination Form I-693 provides USCIS results of a medical examination for applicants filing for adjustment of status to become permanent residents. The examination is required to ensure that an applicant is not inadmissible to the United States on public health grounds. The new form lists seven TB classifications at the bottom of its first page. Civil surgeons must record the results of all medical examinations conducted on or after May 1, 2008, on the new form. Additionally, the current vaccination supplement will not be accepted for any vaccination assessment completed on or after May 1, 2008. An updated vaccination supplement has been included in part 2 of the revised form. The revised TB Component of the Technical Instructions is available for review in the "Related Links" section of this page. For more information on the revised Form I-693, call the National Customer Service Center at (800) 375-5283. http://www.Dr-Immigration.com/news/shownews.asp?newsID=25 Mon, 2 Feb 2009 17:12:49 EST BY USCIS: Questions & Answers: Changes to the Tuberculosis and Vaccination Requirements Required for Adjustment of Status Tuberculosis Q: What are the new requirements for tuberculosis (TB) testing and treatment? Detailed information on the new requirements are available in the Department of Health and Human Services, Centers for Disease Control and Preventions (CDC) document, Tuberculosis Component of the Technical Instructions to Civil Surgeons for the Medical Examination of Aliens in the United States. A link to this document, along with a memo outlining the changes to the TB testing requirements and frequently asked questions, is available in the related links section of this page. Some of the major changes to the TB requirements include: Applicants with Class A tuberculosis must complete a full course of TB treatment before receiving medical clearance by USCIS for adjustment of status. A chest x-ray is required for all applicants with a tuberculin skin test (TST) reaction of less than 5 mm who have signs or symptoms of TB or immunosuppression. A chest x-ray is required for all applicants with a TST reaction of more than 5 mm, including pregnant women. Sputum cultures and drug susceptibility testing for positive cultures are required for applicants with chest x-ray findings suggestive of active TB disease. Q: Who is required to have a TB test? All applicants two years of age or older are required to have a tuberculin skin test (TST). Children younger than age two are required to have a TST if there is evidence of contact with a person known to have TB or if there is other reason to suspect TB. If evidence of TB infection is found, a chest x-ray is required. Any person with a positive skin test reaction of more than 5mm will also be required to undergo a chest x-ray. Q: When did the new TB requirements become effective? The new TB testing and treatment requirements became effective on May 1, 2008. However, CDC allowed a 30 day grace period. Therefore, any medical exam that takes place on or after June 1, 2008 must be performed in accordance with the new TB testing requirements. Q: Will USCIS accept Form I-693 if the civil surgeon performed a chest x-ray without the TST? No, the civil surgeon must administer the TST, unless one of the exceptions listed in the Technical Instructions applies. If the civil surgeon performs a chest x-ray without giving the applicant the TST, the reason for omitting the TST must be noted on Form I-693. Vaccinations Q: What are the new vaccination requirements? The CDC has revised its vaccination requirements. As of July 1, 2008, the following additional vaccinations are required in order to adjust status to legal permanent resident: Rotavirus Hepatitis A Meningococcal Human papillomavirus Zoster NOTE: Some of these vaccinations are required for certain age groups only. During the examination with the civil surgeon, he or she will review the vaccination history, and may determine that certain vaccinations are not necessary or not appropriate. Specific information on vaccines, including tables on age-appropriate vaccines and ACIP recommendations, are available at CDCs National Center for Immunization and Respiratory Diseases (NCIRD) website, accesible in the related links section of this page. Q: When will the new vaccination requirements become effective? The new vaccination requirements became effective on July 1, 2008. However, CDC approved a 30 day grace period until August 1, 2008. Therefore, for any medical exam conducted on or after August 1, 2008, the new vaccinations, if appropriate, must be administered in order for USCIS to approve the applicant for adjustment of status. Q: Is there a waiver available for applicants who cannot afford the new vaccinations? No. The qualifications for a waiver remain unchanged. Q: Where can I find additional information on the new vaccination requirements? The Technical Instructions to Civil Surgeons for Vaccination Requirements includes detailed information on the vaccination requirements, including a full list of required vaccinations. A link to the Technical Instructions and any updates to the medical exam requirements can be found in the related links section of this page. Q: Does USCIS require that all shots in each vaccine series be completed before applying for adjustment of status? No. The applicant must have received all the required age-appropriate vaccines that could be given at the time of the medical exam. If the applicant has started the vaccination series, but is not able to complete all the required shots because, at the time of the medical exam, the minimum time interval between shots has not passed, the applicant may still apply for adjustment of status. A waiver is available in cases where, due to required time intervals, it was impossible for the applicant to receive all shots in the series before submitting the application for adjustment of status. For example, the Hepatitis A vaccine requires that applicant receive two doses of vaccine, six months apart. If the applicant receives the first dose in January, he or she does not have to wait until July, when the second dose would be given, to submit the adjustment of status application. However, the applicant must have received at least the first dose of the vaccine, if appropriate, before applying for adjustment of status. Form I-693 Q: When did the new Form I-693 become effective? The revised Form I-693, Report of Medical Examination and Vaccination Record (edition date 04/02/08), became effective on May 1, 2008. USCIS allowed for a 30 day grace period in which it would accept the prior version of Form I-693. Therefore any medical exam conducted on or after June 1, 2008 must be recorded on a revised Form I-693. Q: Why was Form I-693 revised in April 2008? Form I-693 was revised to include the new requirements that CDC made to its TB Component of the Technical Instructions and was released at the same time as the new Technical Instructions. Other significant changes to the form included a new referral section with requirements that all necessary follow-up treatment and evaluations be completed prior to the applicant or civil surgeon signing and completing the form. Additionally, the prior vaccination supplement was assimilated as part 2, section 5 of the revised form. Q: Why does USCIS now have an even newer edition (06/05/08) of Form I-693 on the web? When CDC added new vaccination requirements to its Technical Instructions for Vaccination, effective July 1, 2008, there were concerns that civil surgeons may forget to add in the new vaccinations in the vaccination chart, resulting in incomplete forms. This revised edition includes the newly required vaccinations by name. Q: If an applicant is required to receive only the vaccinations, and not undergo the entire medical exam, does he/she have to submit the entire Form I-693? No. Applicants who are not required to have the entire medical examination need to submit only pages one, three and five of the new form. The required sections include Part 1, Information About You, the vaccination record portion of Part 2, and Part 5 (if the vaccinations are administered by a civil surgeon) or Part 6 (if the vaccinations are administered by a local health department). Pages two and four, that would have been left blank, do not need to be submitted. Q: Does a designated civil surgeon have to sign Part 6 of Form I-693, or can the health department immunization staff sign it? The signature in Part 6 must be the physician at the health department. It may be an original or stamped signature. The health department nurse or other health care professional may, but is not required to, co-sign the vaccination supplement. Part 6 will only be completed for those applicants who are filing based on refugee status. Q: Does the civil surgeon have to complete both the Vaccination Table and the Results section to properly complete the vaccination portion of Form I-693? Yes. USCIS requires the civil surgeon to completely fill out the vaccination table and the Results section. The civil surgeon must Q. I had my medical exam completed before the new TB or vaccination requirements went into effect, and have not yet submitted it to USCIS, or I have submitted it but it has not yet been reviewed. Am I now required to have a new medical exam that meets the new TB and/or vaccination requirements before I can adjust status? Generally, no. When reviewing a Form I-693, USCIS will note the date the exam was conducted and refer to the Technical Instructions, medical requirements, and form edition that were in effect at that particular time, remembering that for each revision of the Technical Instructions there was a 30-day grace period. If the civil surgeon conducted the medical exam properly and in keeping with the exam requirements and form edition in effect on that particular date, there is no need to return for a second exam or to have the results recorded on a newer edition of Form I-693, as long as you submit the Form I-693 before its one-year expiration. Guide to Revised Form I-693, TB Testing/Treatment and Vaccination Requirements Civil Surgeon Questions. Q: Form I-693 now states patients who require a chest X-ray must include the copy of the X-ray report with the I-693 packet. What type of X-ray report is acceptable? USCIS will only accept a full and formal radiologists chest X-ray report, whether a copy or an original, signed by the radiologist and on official hospital or medical office letterhead. USCIS cannot accept any preliminary or incomplete evaluation, whether handwritten or not, that does not describe the full evaluation or findings. In most cases, the civil surgeon will have to wait a day or two before this report has been sent by the reviewing medical office and can therefore not sign off on the Form I-693 until this report has been received. Q: Both the CDC and USCIS have revised their requirements for medical referrals, as notated on Form I-693. In what instances must the referral section in Part 3 be completed? Only complete Part 3, Referral to Health Department or Other Doctor / Facility, if the referral was required, such as when a Class A condition is suspected and needs further evaluation. Do not complete Part 3 if the referral was merely recommended by the CDC. Instead notate the (recommended but not required) referral in the Remarks box under that particular disease or disorder. This will help alleviate the possibility of USCIS rejecting the Form I-693 due to an erroneous assumption that a follow-up evaluation was needed before completion of the form. Q: How can I contact USCIS for more information? Applicants for adjustment of status may call the USCIS National Customer Service Center at 1-800-375-5283 (TTY 1-800-767- 1833). Civil surgeons should contact their civil surgeon coordinator at the USCIS field or district office where they obtained their civil surgeon designation. Related Files Questions & Answers: Changes to the Tuberculosis and Vaccination Requirements Required for Adjustment of Status (50KB PDF) Last updated: 07/24/2008 Date of Medical Exam Do I have to submit the revised Form I-693? Does the medical exam have to be done in accordance with the new TB requirements? Do I have to receive the new vaccines (if age appropriate?) Before June 1, 2008 No No No June 1 July 31, 2008 Yes Edition dates 4/2/08 and 6/5/08 are acceptable Yes No On or after Aug. 1, 2008 Yes - must submit http://www.Dr-Immigration.com/news/shownews.asp?newsID=24 Sun, 2 Nov 2008 22:09:44 EST By USCIS: U.S. Department of Homeland Security Director U.S. Citizenship and Immigration Services Washington, DC 20529 Citizenship and Immigration Services Memorandum DATE: May 23, 2008 TO: Michael T. Dougherty Citizenship and Immigration Services Ombudsman FROM: Jonathan R. Scharfen /S/ Acting Director SUBJECT: Response to Recommendation #34, Recommendation that USCIS clarify its refund of fees procedures and revise the Adjudicators Field Manual, Section 10.10 Refund of Fees accordingly Recommendation The CIS Ombudsman recommends that USCIS clarify its refund of fees procedures and revise the Adjudicators Field Manual, Section 10.10 Refund of Fees accordingly. The Ombudsman further recommends that USCIS provide customers with a way, such as refund request receipt information, to track the status of the refund. USCIS Response USCIS appreciates the Ombudsmans interest in the issue of fee refunds. The two parts of the recommendation are addressed separately below: 1. Clarify the refund of fees procedures and revise the Adjudicators Field Manual, Section 10.10 Refund of Fees accordingly. This has been accomplished. The Adjudicators Field Manual, Section 10.10 Refund of Fees, was updated in March of this year. The applicant or petitioner is now instructed to request a refund by contacting the customer service line or by submitting a written request to the office having jurisdiction over the application or petition. USCIS will make a determination to approve or deny the request based on the available information. If the request is approved, USCIS and not the applicant or petitioner will complete Form G-266, Request for Refund of Fee. www.uscis.gov Response to Recommendation #34, Recommendation that USCIS clarify its refund of fees procedures and revise the Adjudicators Field Manual, Section 10.10 Refund of Fees accordingly Page 2 2. Provide customers with a way to track the status of their requests for refunds. Requests for refunds currently are not receipted in like applications or petitions. Consequently, USCIS is not capable of tracking the status of a refund request in the same manner that USCIS is capable of tracking the status of an application or petition. As an interim solution, customers can contact the National Customer Service Center (NCSC) in order to obtain an update on the status of their refund requests. The NCSC will submit a Service Request to the local field office or service center asking for a status update. The appropriate office will respond to the customer within thirty days. USCIS is now in the process of enhancing the Service Request Management Tool (SRMT) within the Customer Relations Information System (CRIS). As such, customers should not begin making inquiries with the NCSC until after October 1, 2008. This interim solution eventually will be overcome by the transformation of the agencys information systems. In a transformed operating environment, customers through personal accounts will be able to keep track of their interactions with USCIS, including the amount and status of any refund requests. The electronic nature of the account management service will also allow USCIS to systematically track, manage, and resolve refund requests. USCIS will continue to keep the Ombudsmans Office apprised of the agencys progress with these efforts. http://www.Dr-Immigration.com/news/shownews.asp?newsID=23 Sun, 2 Nov 2008 21:55:21 EST EOIR issue Processing Defective Filings at the Immigration Courts Beginning on July 1, 2008 Table of Contents: u.s. Department of Justice Executive Office for Immigration Review Office of the ChiefImmigration Judge S107uuburg PiU. Suit.2S00 F,,118 ClIlI1'ClI. Yi~"ia 22041 June 17, 2008 MEMORANDUM TO: All Immigration Judges All Court Administrators All Attorney Advisors and Judicial Law Clerks All Immigration Court Staff FROM: Mark Pasierb Chief Clerk of the Immigration Court SUBJECT: Processing Defective Filings at the Immigration Courts Beginning on July 1, 2008 Table of Contents I. II. A.B. III.A.B.N.A.B.C.V.A.B.VI.VII.A. VIII. Introduction 2 ....t,., ...."IllI1t8tive, or DRS 2 ~ _.ipI 2 Oift-...,m iUdIe , " 4 Filings by a non-detained unrepresented respondent 5 Reject upon receipt 5 Give untimely filings to the judge 7 Filings by a detained unrepresented respondent 7 Reject upon receipt 7 No proofof service 8 Give untimely filings to the judge 8 Filings submitted directly by a third party or a represented respondent 8 Filing is submitted by a third party 8 Filing is submitted by a represented respondent 8. Respondent changes address but fails to file an EOIR-33/IC 9 ..., "" ...., terId an appearance 9 ......ilftttd Wi' mot&oato"__ 9 BOIR.-28 is fUed with a motion to substitute 10 Conclusion 10 MEMORANDUM: Processing Defective Filings at the Immigration Courts Beginning page 2 on July 1,2008 I. Introduction In August 2006, the Attorney General instructed the Executive Office for Immigration Review (EOIR) to publish a Practice Manual to provide guidance to the public on immigration court practice and to establish uniform procedures nationwide. On February 28, 2008, the Immigration Court Practice Manual was officially launched when it became publicly available on the EOIR internet homepage. 'AlePraetice MImIalps intoeffeet on July 1,2008. This~providoa pidauce to court staff on how to process defective filings bcsi-ial -July h 2008. This guidance covers: (1) filings by an attorney or representative, including Department of Homeland Security attorneys; (2) filings by a non-detained pro se respondent; (3) filings by a detainedpro se respondent; (4) submissions directly to the court by third parties or represented respondents; (5) failure to file an EOIR-33/IC when a respondent changes his or her address;. and (6) entry of an EOIR-28 when another attorney has already entered an appearance. Citations to the Practice Manual have been included for you to refer to as you review this memorandum. Please note that the public will need time to become familiar with the Practice Manual. While the parties who appearbefore the courts are becoming familiar with the Practice Manual,court .......kt;.; ii i i '.f'1 Ii 1. During this initial period, staff are also encouraged to be especially helpful to the public on how to comply with the Practice Manual. II. FlUngs by an attorney, representative, or DBS This section provides guidance on Itowto .,.... fitiftp. that do DOt comply with the proviIieaB Gf"~N'it'.ItiJlIW8I""""1ted by sa auomey or representative (including Department of Homeland Security attorneys). A. Reject upon receipt ."~f""""'''''''IlIDWclNject",,upon11llGOiptaadRtulDtbefiliDp to tho..,. "'~.fIIiiII'.'Ili._,..'III_,", DRS, pIeue..the DeW uniform rej ~P'iIIrIg: N~to"'"", (fI'Rtpw."tatiw. No/WOOfofurvict - the filing does not contain a proof of service. See Chapter 3.2. I~J*fHJf ofaerviee - the proof of service does not comply with the Practice Manual's provisions. See Chapter 3.2. No.r- reeeipt, otJrer proof of.fHI}IIItMt, or fH WGWer rt1fIJiIMt - the filing requires payment of a fee, but the filing does not include a fee receipt, fee waiver request, or mterimeYidtmeeoffeepa)'DMldt. See Chapters 3.4(b) and 3.4(h). MEMORANDUM: Processing Defective Filings at the Immigration Courts Beginning page 3 on July 1, 2008 o IMerim evi_eo of fee paym,eat~: (1) a ~'8 notice frOm the ~.ofH >SecNfityto appeer for abiemetrics appomtrn.t; (2) a ".....die of DHS. U.S. C.....p ami ImmipationSerYices, .........' '1~_'-ru_ei-VIIlI; (3)aphotocopyofthe __; (4).~ofthelllGROyordernteeipt; or (5)....vit from. thoperson wile submitted the paymeat. o Note: If...~offeepa)'l'llelDtilsuOmitted, thejudge maystill require the ............to.;ij.r&i"'atdle~.Accordingly, court staffmay advise the filing party to submit the fee receipt as soon as possible. FfJeiltlJfJnWJtly paid tu COtIf't - the respondent submitted a check or money order to the court, rather than the Department of Homeland Security. See Chapter 3.1 (b). No ...- the filing is missing the respondent's name. See Chapter 3.3(c)(vi). No,A,.,..".".- the filing is missing the respondent's A-number. See Chapter 3.3(c)(vi). M1N1JfiwfB"Jf~-_""."'.""'ve_~tyetea"an ., It.......iOHl.......~breiftllUbIlUttoddollOt iDelude aD EOIR-28. See Chapter 2.1 (b). Odter ct,IfUJNl ....- if an attorney or representative files an EOIR-28, but another attorney or representative has already submitted an EOIR-28, please carefully review Section vn for instructions on how to handle. 1JC(J,.".tJilillg IBtMIkIII (ctll.fI. COWl) - the respondent is in proceedings, but the filing was made at the wrong court. See Chapter 3.1 (a). ~;1IltftgloJtiorl (CtJMltllllJAj - jurisdiction is with the BIA. See Chapter 6.3 and Appendix K. Cue "ut~- a Notice lo Appear has not been filed. See Chapter 4.2(b). o Exceptions: - E01R-3311Cs 11'0 aceepmdovea ifno Notieeto Appear has been tiled. - .8eDd......,i....recp&e1t8 areaceepmdeven iino Notice to Appearhas been filed. See Chapter 9.3(b). MUMg or imp~ signature - the filing is not signed or the signature is improper, under the guidelines below. See Chapter 3.3(b). MEMORANDUM: Processing Defective Filings at the Immigration Courts Beginning page 4 on July 1, 2008 o All.sipat8res IBU8t be O1"igirtal si8ft8lUleS. Rubber-stamp signatures are not acceptable. Exception: do not reject Notices to Appear for signature defects. ~~Ii..... on Motic8lI to Appear are made by the .iudP. Signatures need not be legible, as long as the signature is accompanied by a printed name. Signatures need not be dated. Faxed signatures are only acceptable if the fax was authorized. Photocopied signatures are acceptable on supporting documents only. No ..~01'~~- foreign language documents are rejected as outlined below. This applies whether the document was submitted by itselfor as part of a larger package. If the document was submitted as part of a larger package, the entire package is rejected. See Chapter 3.3(a). o The document is untranslated. o Thed.ecumceti........, but submiUcHl without a cCtltifieate oftrmslatiOD. No CONTfIIJIBB - the filing does not include a cover page. See Chapter 3.3(c)(vi). Not two-holepllnchtld - the filing is not two hole-punched. See Chapter 3.3(c)(viii). No~OII- the filing does not contain page numbers. TheftliagisrejectedODly if it ...... 110 .... ....... Do not reject merely because page numbers are not consecutive. See Chapter 3.3(c)(iii). No fJI"O/JfJ'HdtJl'tkr- for motions, no proposed order is included. See Chapter 5.2(b). 0tIt.. - the filing is rejected for other unusual reasons not listed above. Please check with yow: supervisor before rejecting documents for any reasons not listed above. This space may also be used for any additional comments. B. Give untimely filings to the judge ~"""":be~_prae.....U8V8land.WIlto tile judie, whether or not thetlliaaW81~with.motiotlto ueept8tl~fiIitr8. See Chapter 3. 1(d)(ii). MEMORANDUM: Processing Defective Filings at the Immigration Courts Beginning page 5 on July 1, 2008 III. Filings by a non-detained unrepresented respondent This section provides guidance on how to process filings that do not comply with the provisions ofthe Practice Manual if the filing was submitted by a non-detained pro se respondent. Note that, for non-detained pro se respondents, there are fewer defects for which filings will be rejected than for represented respondents. A. Reject upon receipt In the following situations, court staffshould reject filings upon receipt and return the filings to the non-detainedpro se respondent. To return a filing to a non-detainedpro se respondent, please use the new uniform rejection notice entitled Rejected Filing: Notice to Non-Detained Unrepresented Respondent. No proofofservice or improperproofofservice - the filing does not contain a proofof service. See Chapter 3.2. o Exceptions: court staff should use their judgement to decide whether to accept a filing from a non-detained pro se respondent if: There is a proof of service, but it does not fully comply with the Practice Manual's provisions; or There is no proofof service, but circumstances warrant accepting the filing (for example, the filing is simple, such as a letter to the court, or the hearing date is near). However, if accepting a filing even though it does not have a proof of service, take the following steps: Stamp the filing using a stamp reading "Served on the Department of Homeland Security"; Copy the filing; Serve the filing on DHS; then Place the filing in the ROP. No name - the filing does not contain the respondent's name. See Chapter 3.3(c)(vi). No A-number - the filing does not contain the respondent's A-number. See Chapter 3.3(c)(vi). No fee receipt, fee waiver request, or interim evidence ofpayment - the filing requires payment of a fee, but the filing does not include a fee receipt, fee waiver request, or interim evidence offee payment. See Chapters 3.4(b) and 3.4(h). MEMORANDUM: Processing Defective Filings at the Immigration Courts Beginning page 6 on July 1,2008 o Interim evidence of fee payment includes: (I) a respondent's notice from the Department of Homeland Security to appear for a biometrics appointment; (2) a printout from the website of DHS, U.S. Citizenship and Immigration Services, showing that the respondent's application has been received; (3) a photoc http://www.Dr-Immigration.com/news/shownews.asp?newsID=22 Sun, 2 Nov 2008 21:27:30 EST By USCIS: U.S. Citizenship and Immigration Services Office of Domestic Operations Washington, DC 20529 35.2HQ 70/ Memorandum TO: Field Leadership FROM: Don Neufeld /s/ Acting Associate Director, Domestic Operations DATE: April 25, 2008 SUBJECT: Naturalization Interview Process Changes Introduction In response to the surge of applications received last summer, USCIS has developed a plan to address the increased naturalization workload by hiring and training several hundred adjudicators over the next several months. While we welcome this much needed infusion of new staff, it is important to recognize and plan for the challenges associated with such rapid growth. That is one reason why we have instructed managers to ensure greater oversight over new staff in general, and specifically with respect to NQP, quality decision review and decisions in general. How we utilize new and experienced staff as we grow is particularly crucial to maintaining quality. With respect to naturalization, while every aspect of the process is important, we also have the opportunity to use the steps of the process as a way to introduce new officers and staff to the process, initially using them in less complex decision-making. This also lets us focus experienced adjudicators on the final determination of eligibility. The purpose of this memorandum is to improve the alignment of essential naturalization activities with the skill sets of our workforce. The changes identified hereafter focus on assigning work to Trainee Adjudications Officers and other staff that is both grade appropriate and commensurate with their abilities. This work will assist more senior adjudicating officers in identifying issues that require further examination, and is consistent with our efforts to maintain quality levels as we grow significantly this year by adding a large number of newly trained staff. Further, this memorandum provides clarification and guidance on various procedural steps associated with conducting a naturalization interview. Naturalization Interview Process Re-Design and Improvement Page 2 of 8 Pre-examination check-in process As applicants arrive at the Field Office for their naturalization examination, consideration should be given to tasks that can be done prior to the applicants formal examination; (i.e., signing the photo and distribution of any related informational materials). In this regard, as applicants arrive, offices are encouraged to provide the applicants an opportunity to review the N-400 Interview Preparation Notice (included). This notice is provided as an advisory to help prepare the applicant to inform the interviewing officer of any events that may have occurred after submitting their N-400 and which may have bearing on the adjudication. Offices are also encouraged to verify certificate preparation information with the applicant prior to the interview. Offices can utilize the N-400 Interview Preparation Worksheet B (included) for this purpose. A USCIS representative should complete the shaded portion of Worksheet B with the applicant to verify the biographic information that will appear on the naturalization certificate.1 CLAIMS 4 should be updated at this point with the biographic information. Effective immediately, applicants are to sign their photos using their normal signature. Normal signature means signature in English unless exempt the English language requirement of 8 CFR 312. Signatures need not be legible and names may be shortened consistent with the applicants normal signature. Applicants who are seeking a change of name at the time of naturalization should not sign their photos until after the name change is granted. Naturalization Testing When required, USCIS will assess the applicants ability to read, write, and speak words in ordinary usage in the English language, and assess whether the applicant has a sufficient knowledge and understanding of the fundamentals of the history, principles, and form of government of the United States. USCIS will evaluate the history and civics portion through a naturalization test. USCIS also evaluates English language ability through administration of the naturalization test and the full oral interview. Once the pre-examination check-in process has been completed, offices are encouraged to consider testing the applicants knowledge of American government and history (civics), and their ability to read and write English, separately prior to the interview. This procedure has been successfully utilized in the past. It has provided a means of maintaining the quality of N-400 interviews because the interviewing officer is able to focus on the other eligibility issues. Interviewing officers will continue to determine the applicants ability to speak and understand English through the oral interview process. The only difference from current practice is the sequence that the English and civics tests can be administered before the interview following the pre-examination check-in process, as opposed to during the actual interview. The tests must be administered by designated 1 The name, sequence of the name and date of birth will continue to be verified by the interviewing officer. Naturalization Interview Process Re-Design and Improvement Page 3 of 8 and trained personnel.2 The test questions, test administration, reasonable accommodation requirements and standards for passing remain unchanged. If an applicant passes the civics test and is able to read and write words in ordinary usage in the English language, the record should be so noted (using the attached Worksheet B), which when executed becomes an addendum to the NQP worksheet. If the applicant passes only the English language portion or only the civics portion of the tests, the record should be so noted (using the attached Worksheet B). The completed Worksheet B should be maintained in the A-file under the N-400 application. This information should also be captured in CLAIMS 4. The Naturalization Quality Procedures (NQP) worksheet (Form N-650) should be initialed and dated by the interviewing officer as appropriate. The interviewing officer will note See Worksheet B in the Remarks section of the N-650. If the applicant fails either portion of this test administered prior to the interview, the interview should be conducted and the applicant should then be scheduled to be re-tested as required. Wherever possible, scheduling of a follow-up English literacy and civics test should be done at the time of the current examination so that applicants know when they will have their second and last opportunity to take the test. Applicants claiming exemption from the English literacy requirements may be tested on the civics portion in their native language under these new procedures provided they meet the age and residency requirements. The testing procedures above do not apply to applicants claiming exemption from the English and Civics requirements due to medical disability; for these applicants testing will remain a function of the interviewing officer. Interview As directed in Chapter 74 of the Adjudicators Field Manual, questioning of an applicant must cover all requirements for naturalization. Questions during the examination should build on the results of the preliminary analysis, such as background check results. If the results of the background checks or other preliminary analysis raise questions of eligibility, or the applicants response to questions on the N-400 brings eligibility into question, the officer should focus attention on those issues. Additionally, officers are required to ask each applicant the questions contained in Part 10 H of the N-400. Supervisors should regularly monitor and observe officers to ensure that officers are asking essential or pertinent questions relating to the benefit sought. Post-Examination process When an officer has concluded the interview, the case file may be returned to designated nonofficer personnel for post examination processing. Post examination processing may include any duties previously performed by the examining official following an interview and include: scheduling of a follow-up appointment for English literacy and/or civics testing; photo and/or certificate signing; CLAIMS 4 decisional updating; and oath ceremony scheduling. 2 See the Designations section of this memo for those officers who are designated to conduct naturalization examinations and can thus serve as examining officials. Naturalization Interview Process Re-Design and Improvement Page 4 of 8 Designations The actual examination of naturalization applicants and the approval of naturalization applications must be conducted by a designated examiner. Immigration regulations (See 8 CFR 332.1(a)) designate immigration examiners,3 and provide that other officers of the Service may be so designated provided that each officer so designated has received appropriate training.4 Through this memorandum we are designating the USCIS officer corps, including Adjudications Officers, Fraud Detection and National Security Officers, Asylum Officers, Application Support Center Managers, Application Adjudicators and Immigration Information Officers,5 for the purpose of administering the civics test and the English language reading and writing proficiency test. The grade level of these officer corps positions are all at or above the range of grades of what was an Immigration Examiner. For example, when an applicant appears for the naturalization interview, offices should consider having an Information Officer, Trainee Adjudications Officer, Applications Adjudicator or ASC Manager administer the reading and writing part of the English test and the civics test. Through this memorandum we are designating the positions of Adjudications Officers and Application Adjudicators for the purpose of the interview and adjudication of naturalization applications, and are further designating Asylum Officers for this purpose when acting in the role of an Adjudications Officer. In order for officers falling within the aforementioned designated positions to conduct N-400 interviews or adjudicate N-400 applications, they must have completed mandatory training for new officers. This would include BASIC, IOBTC, or OTPIOBTC. Conclusion We recognize that given office configurations and currently available personnel, not every office will be able to immediately implement every step described above in advance of the actual interview and examination. However, offices are encouraged to implement these where possible, and to work closely with district and regional management in that respect. As steps are implemented, they must conform to the stipulations of this memorandum. Implementation is designed to increase the quality of the process by focusing the interview on the determination of eligibility. Implementation will also allow for the introduction of newer staff into less complex elements of the process and focus more experienced officers on determining naturalization eligibility. While this memorandum authorizes specific process and sequence changes, the NQP requirements for quality control and process tracking must continue to be met. While key areas of the naturalization process have been identified for improvement, there are still other processes that may be improved. Field Offices are encouraged to propose process improvements and forward suggestions and/or ideas through their designated chains of command to the Regional Directors for approval prior to implementation. 3 The position of Immigration Examiner was a discrete type of position within the Immigration and Naturalization Service. Within INS the position existed at the GS-5 through GS-11 grades, with a subsequent change in the journeyman grade to GS-12. The position of Immigration Examiner was subsequently converted to the Adjudications Officer position of today, which similarly exists at the GS-5 through GS-12 grades. 4 Testing standards and procedures are contained in Chapter 74 of the Adjudicators Field Manual. Field Offices must provide instruction in test administration requirements prior to designating an employee for this purpose. 5 Asylum Officers and Fraud Detection and National Security Officers would perform these duties on overtime. Naturalization Interview Process Re-Design and Improvement Page 5 of 8 Questions regarding this memorandum should be directed through appropriate channels to Robert Fenwick, Acting Branch Chief, HQ Office of Field Operations. DISTRIBUTION LIST: Field Leadership ATTACHMENTS: N-400 Interview Preparation Notice N-400 Interview Preparation Worksheet B http://www.Dr-Immigration.com/news/shownews.asp?newsID=21 Sun, 2 Nov 2008 21:15:48 EST UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA - - - - - - - - - - - - - - - - - - - - -X SHMUL KAPLAN, et al., Plaintiffs, - against - MICHAEL CHERTOFF, et al., Defendants. - - - - - - - - - - - - - - - - - - - - -X Civil Action No. 06-5304 STIPULATION AND AGREEMENT OF SETTLEMENT AND RELEASE Plaintiffs in the above-captioned matter, on behalf of themselves, the Class and all Class Members (as defined below), and Defendants Michael Chertoff, Secretary of Homeland Security; Michael B. Mukasey, Attorney General; Emilio Gonzalez, Director of the United States Citizenship and Immigration Services (USCIS); Robert S. Mueller, III, Director of the Federal Bureau of Investigation (FBI); Michael J. Astrue, Commissioner of the Social Security Administration (SSA); and Donald Monica, District Director, USCIS Philadelphia District (together, Defendants), by and through their attorneys, hereby enter into this Stipulation and Agreement of Settlement and Release (the Stipulation), as of the date beneath Defendants Counsels signature, effective upon the approval of the Court pursuant to Rule 23 of the Federal Rules of Civil Procedure. WHEREAS: A. Plaintiffs filed suit on behalf of themselves and all others similarly situated against Defendants in the United States District Court for the Eastern District of Pennsylvania on December 6, 2006, seeking class certification, designation of Class Counsel and declaratory and injunctive relief; DMEAST #9842911 v1 B. By Order of March 29, 2007, the Court denied Defendants Motion to Dismiss in part and granted it in part; C. To date, the Court has not granted class certification, designation of Class Counsel, declaratory or injunctive relief; D. Defendants deny all liability with respect to the Action, deny that they have engaged in any wrongdoing, deny the allegations in the Complaint and Amended Complaint, deny that they committed any violation of law, deny that they acted improperly in any way, and deny liability of any kind to the Named Plaintiffs, the Class, or the Class Members, but have agreed to the settlement and dismissal of the Action with prejudice in order to: (i) avoid the substantial expense, inconvenience, and distraction of protracted litigation; and (ii) finally put to rest and terminate the Action and any and all Settled Claims as defined in paragraph 10. E. Class Counsel have conducted discussions and arms length negotiations with Defendants Counsel with respect to a compromise and settlement of the Action with a view to settling the issues in dispute and achieving the best relief possible consistent with the interests of the Named Plaintiffs, the Class, and all Class Members. F. After considering the benefits that the Named Plaintiffs, the Class, and the Class Members will receive from settlement of the Action and the risks of litigation, Class Counsel have concluded that the terms and conditions of this Stipulation are fair, reasonable, and in the best interests of the Named Plaintiffs, the Class, and the Class Members; have agreed that the Released Parties should be released from the Settled Claims pursuant to the terms and provisions of this Stipulation; and have agreed to the dismissal with prejudice of all Settled Claims as defined in paragraph 10. The relief contained in this Stipulation is meant to provide relief to 2 those Class Members actually or potentially adversely affected by 8 U.S.C. 1612(a) prior to or during the life of the agreement. NOW, THEREFORE, it is hereby STIPULATED AND AGREED, by and among the parties to this Stipulation, through their respective attorneys, subject to the approval of the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, in consideration of the benefits flowing to the parties hereto from the Settlement, that the Settled Claims as against the Released Parties shall be compromised, settled, forever released, barred, and dismissed with prejudice, upon and subject to the following terms and conditions: I. DEFINITIONS: Wherever used in this Stipulation, the following terms have the meanings set forth below: 1. Action means the above-captioned action pending in the United States District Court for the Eastern District of Pennsylvania (docket no. CV 06-5304). 2. Class means, for purposes of this settlement only, a plaintiff class certified pursuant to Rule 23 of the Federal Rules of Civil Procedure, comprising all non-United States citizens who are receiving or have received Supplemental Security Income (SSI) and are or may be subject to termination or suspension of SSI pursuant to 8 U.S.C. 1612(a)(2)(A), prior to a final decision on their current or future Application for Naturalization, Form N-400, and oath ceremony to become a United States citizen. The Class ceases to exist, and all membership in the Class ends, upon the termination of this Stipulation pursuant to paragraph 54. 3. Class Member means any person included in the Class. 4. Effective Date of Settlement or Effective Date means the date upon which the Settlement provided for in this Stipulation shall become effective, as set forth in paragraph 50 below. DMEAST #9842911 v1 3 5. Plaintiff(s) or Named Plaintiff(s) means Shmul Kaplan, Tasim Mandija, Feride Mandija, Rouzbeh Aliaghaei, Lidiya Burtseva, Nelli Olevskaya, Eshetu Meri, Sara Bachman, Moisey Bachman, Joe Beoplue, Sonyunor Beoplue, Glayon Bloue, Isaak Rozenblit, Semen Savaranskiy, Lyudmila Shirokaya, Igor Stepanov, and Yevheniya Strizhevskaya. 6. Plaintiffs Counsel or Class Counsel means Community Legal Services, Inc.; Ballard Spahr Andrews & Ingersoll, LLP; Hebrew Immigrant Aid Society and Council Migration Service of Philadelphia; and the Sargent Shriver National Center on Poverty Law. Should these entities change their names or merge with other entities, those new entities shall also qualify as Class Counsel. 7. Expedite or Expedited Processing refers to the process by which USCIS provides priority action on applications for adjustment of status to lawful permanent residence (I- 485) and on applications for naturalization (N-400), on processes within the control of USCIS. When implementing Expedited Processing hereunder, USCIS will (i) provide and/or request priority action on any pending or future security checks for the current application; (ii) provide priority action on any internal processing at USCIS; and (iii) provide the Class Member with priority for the earliest available appointment for applications requiring an appointment. Additionally, USCIS will administer or schedule the Oath of Allegiance for the Class Member at the next available opportunity. 8. An Expedite does not mean that background checks or the adjudication of an application will be completed by a date certain, nor does Expedited Processing guarantee approval of an application. 4 9. Released Parties means any and all of the Defendants, their predecessors and successors, their departments and agencies, and their past or present agents, employees, and contractors. 10. Settled Claims means any and all actions, in law or equity, that were asserted or that could have been asserted by Class Members or anyone acting on behalf of or in place of a Class Member, based upon the facts alleged or that could have been alleged in the Amended Complaint relating to the subject of this action, including but not limited to the Due Process, Equal Protection, and APA claims. Only individual actions against USCIS under 8 U.S.C. 1447(b) and individual actions against SSA under 42 U.S.C. 405(g) are excepted from the claims settled by this action. 11. Settlement means the settlement provided for in this Stipulation. II. RELEASE; SCOPE AND EFFECT OF RELEASE 12. On the Effective Date, the Named Plaintiffs, the Class, and the Class Members, on behalf of themselves, their heirs, executors, administrators, representatives, attorneys, successors, assigns, agents, affiliates, and partners, and any persons they represent (Releasing Parties), shall be deemed to have, and by operation of the Final Judgment shall have, fully, finally, and forever released, relinquished, and discharged the Released Parties of and from any and all of the Settled Claims, and the Releasing Parties shall forever be barred and enjoined from bringing or prosecuting any Settled Claim against any of the Released Parties. 13. This Stipulation is contingent on the preservation of the Order of the Court on Defendants Motion to Dismiss for Lack of Jurisdiction (published at 481 F. Supp. 2d 370 (E.D. Pa. 2007)). Neither Plaintiffs nor Defendants concurrence with the preservation of the Order DMEAST #9842911 v1 5 constitutes, and shall not be deemed to imply, their agreement with the findings or decisions contained in that Order. 14. Class Counsel, as fiduciaries to individual Class Members, agree to any and all sharing of information between USCIS and SSA required by paragraphs 22, 23, 25 and 26 of this Stipulation. 15. In consideration for the releases contained herein, and subject to this Stipulations conditions, USCIS will institute procedures for the Expedited Processing of all current and future Class Members applications for adjustment to lawful permanent resident status and applications for naturalization during the existence of this Stipulation. III. PROCESSING OF CLASS MEMBERS APPLICATIONS A. General Expedited Processing 16. Each Class Member may request Expedited Processing of his or her pending application for adjustment of status, Form I-485, or naturalization, Form N-400, at any time. USCIS will grant Expedited Processing where such applications of Class Members have been pending without a decision for six months, unless otherwise specified in this Settlement. Requests made prior to the passage of six months shall be considered by USCIS once the six month mark is reached without further action by the individual requesting Expedited Processing. 17. Expedited Processing may be requested (i) through the USCIS 1-800 telephone number, (ii) by appearing in person at the local USCIS District Office, (iii) by written request included with the filing of the application, or (iv) by mail to the office at which the application was filed. USCIS may verify that the individual is a Class Member by requesting the individual to produce a copy of SSA correspondence addressed to the individual. 18. Plaintiffs agree that nothing in this Stipulation limits Defendants authority under the law to promulgate regulations, issue policy directives and guidance, and to take other 6 action, as necessary, without notice to Plaintiffs, concerning the processing of such applications including, but not limited to, the substantive scope of background and security investigations conducted on aliens. However, regardless of how the processing of such applications may change, the obligation to provide Expedited Processing pursuant to this Stipulation shall be preserved so long as Expedited Processing pursuant to this Stipulation, including priority processing of FBI name checks, is consistent with the best interest of national security as determined by Defendants. 19. Where USCIS is implementing Expedited Processing for an application and the FBI has not completed its name check, USCIS will promptly notify the FBI of the need for priority processing of the pending FBI name check separately from other priority processing requests. The FBI shall thereafter promptly undertake priority processing of the name check for the specified individual. However, nothing in this Stipulation obligates the FBI to accept more than 100 requests for priority processing from USCIS per week. USCIS reserves the right to prioritize Class members within the group of individuals receiving FBI priority name check processing pursuant to USCISs operational needs. As USCIS is the FBIs customer agency, the FBI will prioritize requests for priority name check processing in accordance with USCISs requests, as communicated to the FBI by USCIS. Every other week, USCIS and the FBI will conduct status checks on all pending requests for priority processing of name checks submitted pursuant to this Stipulation. B. Class Members Whose SSI Benefits Were Terminated Or Suspended Pursuant To 8 U.S.C. 1612(a)(2)(A). 20. Within 60 days of the Effective Date, Defendants, acting through SSA, shall compile a mailing list of all those Class Members whose SSI benefits were terminated or suspended pursuant to 8 U.S.C. 1612(a)(2)(A) and whose benefits have not been restored, and DMEAST #9842911 v1 7 those whose SSI benefits may be terminated or suspended prior to the June following the Effective Date (Terminated Members). This mailing list of Terminated Members will promptly be made available to Class Counsel in paper and electronic format. 21. Within 75 days of the Effective Date, in conjunction with Plaintiffs Counsel pursuant to paragraph 36.a, Defendants USCIS and SSA will jointly prepare and USCIS will mail a distinctive letter to the Terminated Members. The letter shall include: a) a section encouraging all who have not yet filed applications for either naturalization or adjustment of status to do so as soon as they are statutorily eligible to file; b) notification of the availability of a fee waiver application process for naturalization (N-400) and adjustment of status (I-485) applications; c) information on the availability of Expedited Processing for those who have applications pending with USCIS; and d) a central telephone number for contacting Class Counsel. 22. Any letters sent pursuant to paragraph 21 that are returned to sender within 90 days of the mailing will be collected and provided to USCIS. USCIS will promptly attempt to identify updated addresses for those individuals through its current address change system. Where an updated address is available, USCIS will promptly resend the letters to the updated address. At the end of the 90-day period, USCIS will provide Class Counsel with the mailing list of the individuals with updated addresses in paper and electronic format. 23. Six months after the paragraph 21 letter has been sent, SSA will provide USCIS with identifying information for all Terminated Members who have not been restored to SSI benefits. Within three months thereafter, USCIS will attempt to match the SSA identifying information with information in USCIS systems, in order to identify Terminated Members with pending applications. USCIS will, on its own initiative and without the need for a request, 8 Expedite the processing of all Forms I-485 and N-400 of Terminated Members where USCIS has positively identified Terminated Members through this matching process, even if the application has not been pending for more than six months. C. Class Members Whose SSI Benefits Will Terminate Or Be Suspended Pursuant to 8 U.S.C. 1612(a)(2)(A) Within One Year. 24. In or about May or June of 2008, Defendant SSA will provide individual notices to those SSI beneficiaries who face potential termination or suspension of SSI pursuant to 8 U.S.C. 1612(a)(2)(A) in the twelve months starting July 1, 2008 (Pending Members). A mailing list of Pending Members will promptly be made available to Class Counsel in paper and electronic format. The notices, to be developed in conjunction with Plaintiffs Counsel pursuant to paragraph 36.b, shall include: a) a section encouraging all who have not yet filed applications for either naturalization or adjustment of status to do so as soon as they are statutorily eligible to file; b) notification of the availability of a fee waiver application process for naturalization (N- 400) and adjustment of status (I-485) applications; c) information on the availability of Expedited Processing for those who have applications pending with USCIS; and d) a central telephone number for contacting Class Counsel. 25. Any letters sent pursuant to paragraph 24 that are returned to SSA within 90 days of the mailing will be collected by SSA and provided to USCIS. USCIS will promptly attempt to identify updated addresses for those individuals through its current address change system. Where an updated address is available, USCIS will promptly resend the letters to the updated address. At the end of the 90-day period, USCIS will provide Class Counsel with the mailing list of the individuals with updated addresses in paper and electronic format. 26. Three months after the paragraph 24 letter has been sent by SSA, SSA will provide USCIS with identifying information for all Pending Members. Within three months DMEAST #9842911 v1 9 thereafter, USCIS will attempt to match the SSA identifying information with information in USCIS systems, in order to identify Pending Members with pending applications. USCIS will, on its own initiative and without the need for a request, Expedite the processing of all Forms I-485 and N-400 of Pending Members where USCIS has positively identified Pending Members through this matching process, even if the application has not been pending for more than six months. D. Dissemination of Information to Class 27. In addition to the notices mailed to individual Class Members pursuant to subsections B & C herein: a. Within 63 days of the Effective Date, USCIS will issue press releases regarding the availability of Expedited Processing for those non-U.S. citizens currently receiving SSI benefits and for those whose SSI benefits have been terminated or suspended pursuant to 8 U.S.C. 1612(a)(2)(A); b. Within 90 days of the Effective Date, USCIS, through its Community Relations Program, will communicate the availability of Expedited Processing through USCIS existing network of community-based and non-profit organizations who provide advice and assistance to immigrants, and to the private immigration bar, including AILA chapters through the AILA national office; c. Within 63 days of the Effective Date, SSA and USCIS will include information regarding Expedited Processing for Class Members on their respective websites; d. SSA will provide information regarding the availability of Expedited Processing, the importance of prompt filing and the availability of a fee waiver application process in all annual reminder Notices regarding the seven-year cut-off provision which SSA sends to current and future Class Members at least during the pendency of this Stipulation; and 10 e. Within 120 days of the Effective Date, USCIS will prominently display posters in all USCIS public areas to address the availability of Expedited Processing for all N- 400 and I-485 applications filed by immigrants subject to the limit on SSI benefits pursuant to 8 U.S.C. 1612(a). 28. All communications to Class Members shall be in English, subject to paragraph 31, and may be in other languages at the discretion of the government agency. A separate SSA fact sheet for non-citizen SSI recipients, with information about the importance of prompt filing, the availability of a fee waiver application process, the availability of Expedited Processing, and where to obtain additional information, will be available within 90 days of the Effective Date on the SSA Gateway website, which provides access to translations of documents in 15 different languages. In addition, on request by an individual applicant, SSA will endeavor to have interpreters and/or translators available to assist with inquiries. E. Miscellaneous Provisions 29. Within 63 days of the Effective Date, USCIS will inform all relevant staff at USCIS District Offices and Service Centers about their responsibilities regarding Expedited Processing under this Stipulation. This communication will also include a statement that a Class Member may be applying for a fee waiver; that any application for a fee waiver will be adjudicated under the applicable fee waiver guidance; and that a Class Member will likely establish eligibility for a fee waiver. USCIS will provide Plaintiffs counsel with a copy of the final signed guidance, solely for informational purposes, no less than three days before it is disseminated to USCIS staff. The review and comment provision of paragraph 36 will not be applicable to this guidance, but the dispute resolution provisions of paragraph 42 apply to any dispute. Plaintiffs counsel may not disseminate nor disclose the guidance outside of Plaintiffs DMEAST #9842911 v1 11 counsel unless USCIS later makes the guidance public. Defendants counsel shall immediately inform Plaintiffs counsel when and if the guidance is made public. 30. Within 63 days of the Effective Date, SSA will notify all relevant staff, including those at SSA District and Field Offices, about the availability of Expedited Processing and USCIS fee waivers, by issuing an Emergency Message that will address the issues raised by this Stipulation. In the Emergency Message, SSA will encourage SSA staff to provide information to Class Members regarding the availability of Expedited Processing and USCIS fee waivers, USCIS policies concerning expediting of naturalization (N-400) and adjustment of status (I-485) applications, and where to get more information from USCIS. Ultimately, SSA will issue a Program Operations Manual System (POMS) instruction to address the issues raised by this Stipulation. 31. All mailings to class members by Defendant agencies pursuant to paragraphs 20 and 24 will include the following paragraph translated into the Arabic, Cambodian, Chinese, Farsi, French, Haitian-Creole, Laotian, Russian, Spanish, and Vietnamese languages: This is a very important letter about continuing your Supplemental Security Income (SSI). Please read it carefully. If you cannot read English, please take this letter to someone who can read it to you right away. 32. Where the sharing of information among Defendants USCIS and SSA is required by this Stipulation, Defendants shall comply with all requirements of the Privacy Act. 33. When USCIS or SSA provide Class Counsel with personal identifying information of Class Members pursuant to paragraphs 20, 22, 24 and 25 of this Stipulation, Class Counsel shall use the information only to comply with the Stipulations terms. Class Counsel may not duplicate or disseminate the personal identifying information except where 12 dissemination is necessary to comply with the requirements of the Stipulation, and shall destroy or return the personal identifying information within 30 days of the termination of this Stipulation pursuant to paragraph 54, except for one copy which may be retained in Class Counsels archive of the Action until 30 days after the running of the Pennsylvania Statute of Limitations for an attorney malpractice claim accruing on or before the termination of the obligations of the parties under this Stipulation pursuant to paragraph 54 of this Stipulation. Class Counsel assume all obligations and responsibilities for the storage, retention, use and release of the data consistent with applicable law. 34. Released Parties and Plaintiffs Counsel will mutually approve (a) all Notices to the Class under Paragraph 47; and (b) the Notice of Final Settlement Agreement under Paragraph 49. 35. A flow chart picturing the various provisions and deadlines shall be attached to this Stipulation as Exhibit A. 36. Plaintiffs Counsel will have the opportunity to review and provide written comments to Defendants on the written materials listed below: a. the letter to Terminated Members under Paragraph 21; b. the letter to Pending Members under Paragraph 24; c. the press releases from USCIS under Paragraph 27(a); d. announcements posted on USCISs and SSAs websites under Paragraph 27(c); e. the revisions to the annual letter sent by SSA to Class Members under Paragraph 27(d); f. the USCIS posters under Paragraph 27(e); DMEAST #9842911 v1 13 g. the revisions to the SSA fact sheet for non-citizen SSI recipients under Paragraph 28; and h. the Emergency Message and POMS section from SSA under Paragraph 30. Released Parties will provide draft copies of these materials to Plaintiffs Counsel at least 30 days prior to their intended distribution in order to permit Plaintiffs Counsel adequate time to review and comment. Plaintiffs Counsel will make comments within 10 days of receipt. Released Parties will consider the comments of Plaintiffs Counsel and will provide Class Counsel with a final version prior to distribution. IV. DISPUTE RESOLUTION PROCEDURES; CONTINUING JURISDICTION 37. The parties agree that this Court will retain continuing jurisdiction for the duration of the Stipulation to supervise the implementation of this Stipulation and to enforce its terms, and the terms of this Stipulation shall be incorporated into the Order of the Court approving the Settlement. 38. The parties agree that this Court will not be asked to exercise jurisdiction to supervise the implementation of this Stipulation or to enforce its terms until exhaustion of the dispute resolution process in paragraphs 42-43 has occurred. 39. In or about January 2009, Defendants will provide Class Counsel with the following reports: a. The number of SSI beneficiaries who have lost SSI benefits due to the limitations in 8 U.S.C. 1612(a) since the Effective Date; b. The number of SSI beneficiaries who, after losing benefits due to the seven-year limitation, have been reinstated on SSI since the Effective Date; 14 c. The number of SSI beneficiaries who would be expected to lose their SSI benefits between January 1, 2009 and December 31, 2011; d. I-485 cycle times for asylees, refugees, and regular adjustment; e. N-400 cycle times; f. The number of SSI Expedites initiated by USCIS per month as the result of a call to the USCIS 1-800 telephone number; g. The total number of SSI priority name check requests made by USCIS to the FBI per month; h. The statistical results of the data matches required by paragraphs 23 and 26; i. The FBI Name Check Units Fiscal Year Significant Activity Report. 40. 120 days after USCIS has completed the data match described in paragraph 23, USCIS will randomly select a 100-name sample from the results of the data match on the "Terminated Members". USCIS will provide a status report to Class Counsel for each application reflecting whether each application has been expedited and the last of the following actions that has been completed for the application: I. A request has been sent to the FBI for priority processing of the name check; II. The FBI has completed its name check; III. The case has been assigned to a USCIS adjudicator for review; IV. A request for additional evidence has been sent to the applicant; V. An interview has been scheduled; VI. An oath has been scheduled; or DMEAST #9842911 v1 15 VII. There has been a decision made on the application. The name, address, and alien registration number for each of the 100 cases will be forwarded to Class Counsel, in paper and electronic format. 41. Class Counsel and counsel for Defendants shall attend a single meet and confer on April 13, 2009, or another day mutually agreeable to counsel, to discuss all issues that have arisen during the initial period of implementation of the Stipulation. 42. The following dispute resolution process will be followed: a. Should Class Counsel learn of an apparent failure of USCIS to institute Expedited Processing for an individual application, Class Counsel will promptly notify the contact for Defendants, in writing, of the fact or facts that form the basis of the contention. Such notice of apparent failure to institute Expedited Processing must be substantiated with specific detailed information sufficient to enable the contact to investigate and respond, and must include verification that the applicant has contacted the USCIS 1-800 telephone number no earlier than 64 days after the Effective Date, and that the time periods of subparagraphs (1) or (2) have been met. The content of every response from USCIS must be included. If 45 days have passed since the call was made to the USCIS 1-800 telephone number and no response has been received by the applicant, Class Counsel may proceed with notifying Defendants of the alleged failure to expedite. Within 45 days after receipt of the notice from Class Counsel, contact for Defendants shall notify Class Counsel of USCIS position and any action it has taken or intends to take in connection therewith. (1) If an applicant has lost his or her SSI benefits or will lose those benefits before June 30, 2009, the requisite call to the USCIS 1-800 telephone number can be 16 made no sooner than either a) 90 days after the date an applicant requested an expedite or b) 90 days after completion of the data match in paragraph 23. (2) If an applicant is a current SSI beneficiary and will not lose his or her benefits until after June 30, 2009, the requisite call to the USCIS 1-800 telephone number can be made after the latter of either a) 6 months after the relevant N-400 or I-485 was filed or b) 90 days after an expedite request was made. b. Starting from the Effective Date, upon learning of any fact or facts that constitute the basis for asserting that a party, without notice or good cause shown, has completely and materially failed to perform an affirmative act imposed by the Stipulation in paragraphs 20-31, the initiating party shall promptly notify the other party (the responding party) in writing of the fact or facts that support the contention and request a written response with respect thereto. Such allegations of violations of this Stipulation must be substantiated with specific, detailed, and timely information about the violation sufficient to enable the responding party to investigate and respond. Within 30 days after receipt of the notice, the responding party shall notify the initiating party in writing of the responding partys position and any action it has taken or intends to take in connection therewith. c. Starting from the Effective Date, upon learning of any fact or facts that constitute the basis for asserting that a party, without notice or good cause shown, has engaged in a pattern or practice constituting substantial noncompliance with the terms of this Stipulation, or that any party has expressly repudiated any of its terms, the initiating party shall promptly notify the other party (the responding party) in writing of the fact or facts that form the basis of the contention and request a written response with respect thereto. Such allegations of violations of this Stipulation must be substantiated with specific, detailed, and timely information about the DMEAST #9842911 v1 17 violation sufficient to enable the responding party to investigate and respond. Within 90 days after receipt of the notice, the responding party shall notify the initiating party in writing of the responding partys position and any action it has taken or intends to take in connection therewith. d. During the 90 days following the completion of the appropriate process outlined in subparagraphs a, b, or c, the parties shall negotiate in good faith in an effort to resolve any remaining disputes. The parties agree that this negotiation period will be considered exhausted if the negotiations have reached an impasse. 43. Should the parties be unable to resolve any issues raised between them, after exhausting all of the applicable procedures in paragraph 42, such issues must be raised before a Magistrate Judge of the Eastern District of Pennsylvania upon which all parties agree, who shall hear, mediate, and, to the fullest extent possible, obtain the agreement of both parties to resolve the issue(s) in dispute. 44. The parties agree that the provision in paragraph 43 shall not be used to resolve any disputes regarding timeliness or form of the reports listed in paragraphs 39 and 40. The parties further agree that no claim may be made under the provisions in paragraphs 42 and 43 regarding the pace or extent of security check processing by either USCIS or the FBI. Cognizable claims regarding security check processing shall be limited to a failure to initiate or undertake Expedited or priority processing as described in paragraphs 7 and 19. 45. The parties agree that failure to comply with the deadlines in paragraphs 27-36 of this Stipulation does not constitute a violation of this Stipulation in the case of unforeseeable circumstances. 46. The parties agree that the mediation process shall be conducted confidentially and no public disclosure shall be made relating to the dispute before or during the mediation 18 process. All documents and information disclosed by either party during the mediation process shall be governed by rule 408 of the Federal Rules of Evidence and shall not be admissible in any judicial proceeding. All statements or conclusions of the mediator shall not be admissible in any subsequent judicial proceeding. IV. TERMS OF ORDER FOR NOTICE, HEARING AND FINAL JUDGMENT 47. Concurrently with their filing of this Stipulation, Class Counsel and Defendants Counsel shall jointly apply to the Court for Preliminary Court Approval of the Settlement provided for in this Stipulation and entry of a Preliminary Approval Order, substantially in the form appended hereto as Exhibit B. Such Preliminary Approval Order will seek approval of a Notice to the Class, as well as a finding that the following satisfies the publication requirements of Fed. R. Civ. P. 23: within five business days of the date of the Preliminary Courts Approval, (i) posting the Notice to the Class and this Stipulation in appropriate places on the USCIS and SSA public websites, and (ii) providing the Notice to the Class and this Stipulation to USCIS Community Relations Program for distribution to the existing network of community-based and non-profit organizations who provide advice and assistance to immigrants, including AILA chapters through the AILA national office. 48. If the Settlement contemplated by this Stipulation is approved by the Court, counsel for the parties shall request that the Court enter Final Judgment substantially in the form appended hereto as Exhibit C. 49. Within 60 days following the Courts entry of the Final Judgment, Defendants will publish a Notice of Final Settlement Agreement employing the same methods set forth in paragraph 47. The language of the Notice of Final Settlement Agreement will be agreed upon by the parties and will constitute an updated Notice to the Class. DMEAST #9842911 v1 19 V. EFFECTIVE DATE OF SETTLEMENT, WAIVER OR TERMINATION 50. The Effective Date of this Stipulation shall be the date when all of the following shall have occurred: a) entry of the Preliminary Approval Order in all material respects in the form appended hereto as Exhibit B; b) approval by the Court of this Stipulation, following notice to the Class and a hearing, as prescribed by Rule 23 of the Federal Rules of Civil Procedure; and c) entry by the Court of Final Judgment, in all material respects in the form appended hereto as Exhibit C. 51. In the event that the District Courts approval of the Stipulation or the Final Judgment referenced is voided on appeal, vacated, or terminated, the parties good- faith adherence to the terms of this Stipulation prior to said voidance, vacation or termination shall not be considered unlawful. 52. Defendants Counsel or Class Counsel shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (Termination Notice) to all other parties hereto within thirty (30) days of (a) the District Courts declining to enter the Preliminary Approval Order or modifying that Preliminary Approval Order in any material respect; (b) the District Courts declining to approve the Settlement embodied in this Stipulation or any material part of it; (c) the District Courts declining to enter the Final Judgment or modifying the Final Judgment in any material respect; (d) the Court of Appeals or the United States Supreme Courts modifying, reversing, or vacating in any material respect the Final Judgment; or (e) the District Court, the Court of Appeals or by the United States Supreme Courts modifying, reversing, or vacating and entering an Alternative Judgment in any material respect. 20 53. Except as otherwise provided herein, in the event the Settlement is terminated or modified in any material respect or fails to become effective for any reason, then the Settlement shall be without prejudice and none of its terms shall be effective or enforceable; the parties to this Stipulation shall be deemed to have reverted to their respective status in the Action as of the date and time immediately prior to the execution of this Stipulation; and except as otherwise expressly provided, the parties shall proceed in all respects as if this Stipulation and any related orders had not been entered. In the event the Settlement is terminated or modified in any material respect, the Defendants shall be deemed not to have waived, modified, or be estopped from asserting any additional defenses available to them. VI. TERMINATION OF OBLIGATIONS 54. The obligations of this Stipulation shall terminate after two (2) years and eleven (11) months from the Effective Date without further action by the Court. VII. NO ADMISSION OF WRONGDOING 55. This Stipulation, whether or not executed, and any proceedings taken pursuant to it: a. shall not be construed to waive, reduce or otherwise diminish the authority of the Defendants to enforce the laws of the United States against Class Members, consistent with the Constitution, laws of the United States, and applicable regulations; b. shall not be offered or received against the Defendants as evidence of, or construed as or deemed to be evidence of, any presumption, concession, or admission by any of the Defendants of the truth of any fact alleged by the Plaintiffs or the validity of any claim that had been or could have been asserted in the Action or in any litigation, or the deficiency of any defense that has been or could have been asserted in the Action, or of any liability, negligence, DMEAST #9842911 v1 21 fault, or wrongdoing of the Defendants; or any admission by the Defendants of any violations of, or failure to comply with, the Constitution, laws or regulations; and c. shall not be offered or received against the Defendants as evidence of a presumption, concession, or admission of any liability, negligence, fault, or wrongdoing, or in any way referred to for any other reason as against any of the parties to this Stipulation, in any other civil, criminal, or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of this Stipulation; provided, however, that if this Stipulation is approved by the Court, Defendants may refer to it and rely upon it to effectuate the liability protection granted them hereunder. VIII. ATTORNEYS FEES 56. Within 120 days of entry of a final and nonappealable judgment in this case approving this Stipulation, Defendants will deliver to Class Counsel the sum of $275,000, in settlement of all claims for attorneys fees and costs that could have been or will be claimed in this litigation. Defendants shall bear any costs incurred in connection with notifying the class of the terms and conditions of this Stipulation as provided in paragraphs 47 and 49. IX. ADDITIONAL PROVISIONS 57. This Stipulation, and the obligations incurred herein, shall be in full and final disposition of the Action with prejudice, including any and all Settled Claims against Defendants. On the Effective Date, Plaintiffs shall be deemed to have fully, finally, and forever released, relinquished, and discharged the Defendants of and from any and all Settled Claims, subject to the provisions of paragraph 53. 58. All of the exhibits attached hereto are hereby incorporated by reference as though fully set forth herein. 22 59. This Stipulation may not be modified or amended, nor may any of its provisions be waived except by a writing signed by all parties hereto or their successors-ininterest. 60. The waiver by one party of any breach of this Stipulation by any other party shall not be deemed a waiver of any other prior or subsequent breach of this Stipulation. 61. This Stipulation and its exhibits constitute the entire agreement among the parties hereto concerning the Settlement of the Action, and no representations, warranties, or inducements have been made by any party hereto other than those contained and memorialized in such documents. 62. This Stipulation may be executed in one or more counterparts. All executed counterparts and each of them shall be deemed to be one and the same instrument provided that counsel for the parties to this Stipulation shall exchange among themselves original signed counterparts. 63. This Stipulation shall be binding upon, and inure to the benefit of, the successors and assigns of the parties hereto. 64. This Stipulation shall not be construed more strictly against one party than another merely by virtue of the fact that it, or any part of it, may have been prepared by counsel for one of the parties, it being recognized by the parties that this Stipulation is the result of arms length negotiations between the parties and that all parties have contributed substantially and materially to the preparation of this Stipulation. 65. All counsel and any other person executing this Stipulation and any of the exhibits hereto, or any related settlement documents, warrant and represent that they have the full DMEAST #9842911 v1 23 http://www.Dr-Immigration.com/news/shownews.asp?newsID=20 Tue, 21 Oct 2008 17:24:30 EST By U.S. Department of Labor: News Release U.S. Department of Labor For Immediate Release Office of Public Affairs July 8, 2008 Washington, D.C. Contact: Terry Shawn Jennifer Kaplan Release Number: 08-954-NAT Phone: 202-693-4676 202-693-5052 U.S. Department of Labor announces debarment of immigration software company WASHINGTON The U.S. Department of Labor today announced that it has formally debarred LawLogix Group Inc. from filing applications for permanent labor certification. The debarment will be in effect for three years. The department has determined that the San Francisco, Calif.-based company willfully has provided false or inaccurate information when applying for permanent labor certifications, and engaged in a pattern or practice of failing to comply with the terms of the application, ETA Form 9089. Debarring this company for filing false information demonstrates the departments ongoing commitment to safeguard the integrity of the permanent labor certification process, said Solicitor of Labor Gregory F. Jacob. The department takes seriously its responsibility to ensure program integrity, thereby protecting employment opportunities for American workers. LawLogix is a company that designs and sells software to businesses that utilize the permanent labor certification program. LawLogix submitted more than 100 applications using the permanent programs online filing system in the last year, apparently for the sole purpose of testing the parameters of the departments electronic processing system. LawLogixs willful misrepresentations are prohibited by the departments regulations, and are inconsistent with the companys attestation that it had met all the regulatory conditions for employing a foreign worker. The permanent labor certification process, established by the Immigration and Nationality Act, allows employers to sponsor aliens for permanent residence (file for a green card) to fill positions for which no qualified, willing and available U.S. workers can be found. The departments regulations set forth detailed procedures for employers to follow in filing applications seeking permanent labor certifications. In 2007, the department issued final regulations designed to enhance program integrity, and reduce incentives and opportunities for fraud and abuse. Debarment is one tool that the department uses to achieve these goals. # # # U.S. Department of Labor releases are accessible on the Internet at www.dol.gov. The information in this news release will be made available in alternate format (large print, Braille, audio tape or disc) from the COAST office upon request. Please specify which news release when placing your request at 202-693- 7828 or TTY 202-693-7755. The Labor Department is committed to providing Americas employers and employees with easy access to understandable information on how to comply with its laws and regulations. For more information, please visit www.dol.gov/compliance. http://www.Dr-Immigration.com/news/shownews.asp?newsID=19 Tue, 21 Oct 2008 17:22:18 EST BY US Departmnet of Labor New Release ETA News Release: [07/08/2008] Contact Name: Terry Shawn or Jennifer Kaplan Phone Number: (202) 693-4676 or x5052 Release Number: 08-955-NAT U.S. Department of Labor initiates supervised recruitment of permanent labor certification applications filed by immigration law firm Department acts to protect employment opportunities for American workers WASHINGTON The U.S. Department of Labor today announced that it has begun placing pending permanent labor certification applications filed by the Cohen & Grigsby law firm into department supervised recruitment. Supervised recruitment requires the employer to receive advance approval from the department for all recruitment efforts to ensure that U.S. workers are fully considered for available positions. The department may institute supervised recruitment when, among other reasons, it has concerns that an employer, attorney or agent may not have complied with department regulations or properly recruited or considered U.S. workers for available positions. "Supervised recruitment is one of many tools the department uses to safeguard the integrity of the permanent labor certification process and protect job opportunities for American workers," said Solicitor of Labor Gregory F. Jacob. "The department takes seriously its statutory responsibility to ensure that American workers have access to jobs they are qualified and willing to do." Last year, the department began auditing applications filed by Cohen & Grigsby as a result of information indicating the firm may have improperly advised its clients regarding the recruitment of U.S. workers. Because of concerns identified in the audits, the department is requiring supervised recruitment for certain applications filed by Cohen & Grigsby. Today's announcement reflects the department's ongoing enforcement of its statutory responsibility to ensure that U.S. workers are fairly considered for all permanent labor certification openings. The Immigration and Nationality Act requires the secretary of labor to certify that there are not sufficient U.S. workers who are able, willing, qualified and available for an open position prior to an alien being permanently admitted to the country to fill it. The department's regulations require employers to "test" the labor market for U.S. workers in a manner that is open, fair and not biased toward foreign workers, including temporary foreign workers already employed by the employer seeking the permanent labor certification. U.S. Department of Labor U.S. Department of Labor Frances Perkins Building 200 Constitution Avenue, NW Washington, DC 20210 1-866-4-USA-DOL TTY: 1-877-889-5627 http://www.Dr-Immigration.com/news/shownews.asp?newsID=18 Tue, 21 Oct 2008 17:14:22 EST June 13, 2008 U.S. Department of Labor Employment and Training Administration, Office of Foreign Labor Certification PERM Program Guidance Bulletin on the Clarification of Scope of Consideration Rule in 20 CFR 656.10(b)(2) The Department of Labor has a statutory responsibility to ensure that no foreign worker (or alien) is admitted for permanent residence based upon an offer of employment absent a finding that there are not sufficient U.S. workers who are able, willing, qualified and available for the work to be undertaken and that the admission of such worker will not adversely affect the wages and working conditions of U.S. workers similarly employed. 8 U.S.C. 1182(a)(5)(A)(i). The Department fulfills this responsibility by determining the availability of minimally qualified domestic workers before approving a permanent labor certification application and by ensuring that U.S. workers are fairly considered for all job opportunities that are the subject of a permanent labor certification application. Accordingly, the Department relies on employers who file labor certification applications to recruit and consider U.S. workers in good faith, even if the employer already has a temporarily-admitted foreign national occupying the position. The Department has long held the view that good faith recruitment requires that an employers process for considering U.S. workers who respond to certification-related recruitment closely resembles the employers normal consideration process. In most situations, that normal process does not involve a role for an attorney or agent (as defined in 20 C.F.R. 656.3) in assessing the ability of applicants to fill the employer's needs. It also does not involve any role for the foreign worker or foreign national in any aspect of the consideration process. However, given that the permanent labor certification program imposes recruitment standards on the employer that may deviate from the employers normal standards of evaluation, the Department understands and appreciates the legitimate role attorneys and agents play in the permanent labor certification process, and respects the right of employers to consult with their attorney or agent during that process to ensure they are complying with all applicable legal requirements. By prohibiting attorneys, agents, and foreign workers from interviewing and considering U.S. workers during the permanent labor certification process, as described in 20 C.F.R. 656.10 (b)(2)(i) and (ii), the Department does not thereby prohibit attorneys and agents from performing the analyses necessary to counsel their clients on legal questions that may arise with respect to this process. The employer, and not the attorney or agent, must determine whether a U.S. applicants credentials meet the minimum qualifications for the position, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. After an employer evaluates a U.S. worker and concludes that the worker is unqualified, the employer may seek the advice of its attorney or agent to ensure that its reasons for rejecting the U.S. worker are lawful, and the attorney or agent may review the qualifications of the U.S. worker to the extent necessary to provide that advice. By contrast, if an employer evaluates a U.S. worker and determines that the worker is minimally qualified, the attorney, agent, or foreign worker may not thereafter consider the applicants qualifications and attempt to substitute his or her own judgment for that of the employer. In the Departments view, an employers determination that a U.S. worker is minimally qualified for a position constitutes clear evidence that there are U.S. workers who are able, willing, qualified and available for the work to be undertaken. More specifically, the types of actions prohibited by 20 C.F.R. 656.10(b)(2)(i) and (ii) include: Attorneys and agents may receive resumes and applications from U.S. workers who respond to the employer's recruitment efforts; however, they may not conduct any preliminary screening of applications before the employer does so, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. The attorney or agent may not withhold from the employer any resumes or applications that it receives from U.S. workers. Attorneys and agents may not participate in the interviewing of U.S. worker applicants, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. Such involvement, because of its uniqueness, has resulted in an impermissible chilling effect on the interests of U.S. worker-applicants in the position. After the evaluation of applications by the employer has been completed, the employer may consult with its attorney or agent about the implications of its qualification determinations on the labor certification application. Those consultations can encompass the question of whether applicants who were found by the employer to be unqualified were rejected for lawful, job related reasons. Under no circumstances, however, should an attorney or agent seek to dissuade an employer from its initial determination that a particular applicant is minimally qualified, able, willing and available for the position in question. Where the Department finds evidence of potentially improper attorney, agent, or foreign worker involvement in considering U.S. worker applicants, the Department may audit applications to determine whether the employers recruitment and hiring processes were conducted in good faith and to ensure adherence to all statutory and regulatory requirements. 2 http://www.Dr-Immigration.com/news/shownews.asp?newsID=17 Thu, 3 Jul 2008 15:01:38 EST Office of Communications USCIS Update May 29, 2008 USCIS IMPLEMENTS REQUIRED DNA TESTING FOR VIETNAMESE ADOPTIONS Vietnamese law authorizing adoptions between U.S. and Vietnam to expire on September 1 WASHINGTON U.S. Citizenship and Immigration Services (USCIS) announced today that its office in Ho Chi Minh City, Vietnam is implementing a DNA testing requirement for Vietnamese adoption cases where the birth parent(s) of the adopted child has been identified. USCIS is also reminding prospective adoptive parents that the agreement required by Vietnamese law to authorize adoptions between the United States and Vietnam will expire later this summer. USCIS expects that DNA testing will not only help confirm a child's status as an orphan, but will also significantly streamline the processing of cases in which a birth parent has been identified, as opposed to the more lengthy investigative time required to process adoptions when the birth parent is unknown. A prospective adoptive parent(s) filing a petition to Classify an Orphan as an Immediate Relative (Form I-600) may be required to submit a DNA test in order to establish a relationship between the prospective adoptive child and his or her birth parent(s). The USCIS office in Ho Chi Minh City will advise the petitioner filing a Form I-600 of the procedures for the collection of the DNA sample. The petitioner must pay the costs associated with the DNA testing. USCIS is taking this step in response to concerns regarding the adoption process in Vietnam, and to ensure that all children identified for potential adoption meet the Immigration and Nationality Acts definition of orphan prior to a United States citizen adopting or obtaining legal custody of the child. In several cases, children have been returned to birth parents who did not intend for their child to be adopted internationally. The agreement required by Vietnamese law to authorize adoptions between the U.S. and Vietnam, expires on Sept. 1, 2008. Since the processing time to complete an adoption in Vietnam is at least five to six months, an adoption process begun today may not be completed before the end of the current agreement. However, a pending I-600 may be adjudicated to completion in cases where a child has been matched to the prospective adoptive parents by Sept. 1, 2008, without regard to the expiration of the agreement. On April 25, the government of Vietnam announced that it will allow an adoption to be completed in cases where prospective adoptive parents have been matched with a child and received an official referral before Sept. 1, 2008. The government of Vietnam also said that in accordance with Vietnamese law, their nations Department of International Adoptions will suspend the acceptance of new dossiers on July 1, 2008. The U.S. Department of State has warned potential adopting parents about the risks of initiating a new adoption at this time. USCIS strongly encourages prospective adoptive parents who intend to continue with a planned adoption in Vietnam to file the Form I-600 by mail, with USCIS in Ho Chi Minh City, and not travel to Vietnam until USCIS has provided a notification that the child qualifies as an orphan. This is important because in some cases irregularities that have affected the eligibility of the child for classification as an orphan have become apparent only after the adoption had taken place and while the parents and child were waiting in Vietnam for a visa. Traveling to Vietnam before receiving a notice from USCIS may result in a prolonged stay in Vietnam. Prospective adoptive parents who want to amend a Form I-600A to change to a country other than Vietnam are permitted one request for a change of country notification without charge. Up-to-date information on Vietnamese intercountry adoptions is available at www.uscis.gov. Additional information is available on the U.S. Department of State website, www.travel.state.gov or the U.S. Embassy, Hanoi website at http://vietnam.usembassy.gov/orphan_visas.html. USCIS Office of Communications www.uscis.gov Questions and Answers May 29, 2008 USCIS IMPLEMENTS REQUIRED DNA TESTING FOR VIETNAMESE ADOPTIONS Q. What is the purpose of requiring a DNA test? A. USCIS is taking this step in response to concerns regarding the adoption process in Vietnam and to ensure that all abandonment (as defined in 8 CFR 204.3(b)) adoption cases, where a birth parent can be identified, are valid. The DNA matching test will confirm that the prospective adoptive child is matched with the birth parent who has voluntarily consented to the adoption. USCIS expects that DNA testing will help confirm a childs status as an orphan, and will also significantly streamline the processing of cases in which a birth parent has been identified. A more lengthy investigative time may be required to process adoptions when the birth parent is unknown. USCIS estimates that DNA results will be received from the U.S. lab within five weeks after the child and parent have been seen by the physician for collection of the genetic material for testing. Q. What cases may require a DNA test? A. All Vietnamese orphan adoption cases where a birth parent can be identified may require a DNA test. This includes abandonment cases (as defined below) generally, and cases where the child has been relinquished by a sole or surviving parent. Abandonment means that the birth parent(s) has willfully forsaken all parental rights, obligations, and claims to the child, as well as all control over and possession of the child, without intending to transfer, or without transferring, these rights to any specific person(s). Abandonment must include not only the intention to surrender all parental rights, obligations, and claims to the child, and control over and possession of the child, but also the actual act of surrendering such rights, obligations, claims, control, and possession. A child who has been given unconditionally to an orphanage is considered to be abandoned under U.S. immigration laws. Relinquishment is essentially the release of the custody of a child by the birth parent(s) to a third party. A relinquishment can be a type of abandonment. Only certain types of relinquishments constitute abandonment under U.S. immigration laws. See 8 CFR 204.3(b). Q. Do all abandonment (as defined above) cases require a DNA test, even for a child who has been in an orphanage for a very long time, or who has unique circumstances? A. No. USCIS retains the discretion, on a case-by-case basis, to make a finding that the birth parent(s) cannot be identified due to the specific circumstances of an abandonment or relinquishment case. Q. Does this new procedure apply to cases where the child would be an orphan because of the death or disappearance of, or separation or loss from, both parents? A. No, it does not. In cases where the birth parent cannot be located a DNA test cannot be performed. Q. Which cases are affected? A. Cases affected by this are those orphan adoption cases where a birth parent or parents can be identified and located. The DNA requirement will affect new Form I-600 submissions and, in some cases, Forms I- 600 already submitted but not yet pre-approved. Pre-approved cases, in which the prospective adoptive parent(s) have been notified that the child qualifies as an orphan under U.S. immigration laws, will not require DNA testing. Q. If the child has two parents is it necessary for both to be DNA tested? A. If the birth parents are legally married and they have abandoned the child, both parents may require a DNA test. Q. How much will the DNA test cost? A. The laboratory performing the test and your adoption agency will determine the cost. More information regarding the testing process will be forwarded to you by the USCIS office in Ho Chi Minh City. Q. How much time will this new requirement add to the process? A. USCIS expects that DNA testing will significantly streamline the processing of cases where a birth parent has been identified. USCIS estimates that, barring unforeseen delays, the DNA results will be received from the U.S. lab within five weeks after the child and parent have been seen by the physician for collection of the genetic material for testing. Please keep in mind that this is not an additional five weeks but will likely replace any need to conduct the more lengthy investigative time required when the birth parent is unknown. Q. What happens if the DNA does not match? A. If the DNA test does not result in a match, USCIS will not be able to approve the Form I-600. Q. What are the problems in Vietnam that prompted USCIS to implement this policy? A. The U.S. Government has growing concerns about irregularities in the methods used to identify children for adoption in Vietnam. Additionally, recent investigations have demonstrated that Vietnamese civil documents are unreliable. Moreover, Vietnamese officials, in some provinces, have interfered with the ability of the U.S. Government to conduct independent field inquiries into the status of children identified in Form I-600 petitions. Q. What is a field inquiry and what purpose does it serve? A. 8 CFR 204.3(k) requires that an I-604 verification be completed in every orphan case. This requirement cannot be waived. I-604 verification may include document checks, telephonic checks, and interview(s) with the birth parent(s). However, if the facts of a case suggest irregularities or questionable circumstances surrounding the orphanage, province, or institution, USCIS may determine that due diligence requires a field inquiry. When a field inquiry is conducted, staff from the U.S. Embassy in Hanoi or the U.S. Consulate in Ho Chi Minh City interview witnesses, authenticate documents with government officials, and often travel to various locations to confirm the facts and evidence presented, concerning the childs status as an orphan, in accordance with U.S. law. Q. If the United States sees problems in the Vietnamese adoption process, why has it continued processing adoption cases? A. The situation in Vietnam can sometimes make it difficult to verify that a child qualifies as an orphan as defined in the U.S. immigration laws. If a childs status as an orphan can be verified, however, it is appropriate for the case to go forward. USCIS has sought to improve the ability to verify the childs status. For example, in 2007 USCIS initiated the Vietnam Initiative program for prospective adoptive parents adopting in Vietnam. Under the Vietnam Initiative program, prospective adoptive parents file Form I-600 directly with USCIS in Ho Chi Minh City before traveling to Vietnam. This enables USCIS or U.S. Department of State officers to determine whether a child identified in the petition qualifies as an orphan before the child is transferred to the care of the adopting parents. In addition, USCIS and the Department of State have also engaged in a series of formal discussions to address concerns regarding the integrity of Vietnamese intercountry adoptions. Finally, this new policy for DNA testing of Vietnamese birth parents will also improve the ability of USCIS to verify that a child is an orphan. Q. What is the Vietnam initiative? A. Under this initiative USICS will only accept I-600 filings by mail in Ho Chi Minh City (or if filed with another USCIS field office USCIS will forward the I-600 to Ho Chi Minh City). PLEASE NOTE: no walk-in filing will be accepted in Ho Chi Minh City; and the prospective adoptive parent(s) presence in Vietnam will not result in faster adjudication of their Form I-600. http://www.Dr-Immigration.com/news/shownews.asp?newsID=16 Mon, 30 Jun 2008 18:21:37 EST Newsroom Alerts CBP News Releases Fact Sheets Publications Commissioner Messages, Speeches and Statements Congressional Testimony Photo Gallery CBP Videos Press Officers News Highlights in Newsroom Home / Newsroom / CBP News Releases / CBP to Provide Wait Times at Major Pedestrian Entries (Wednesday, May 21, 2008) contacts for this news release Washington U.S. Customs and Border Protection has made enhancements to the CBP Web site to assist the public with crossborder travels during the busy summer travel season, officials announced today. CBP.gov now includes pedestrian wait times for 12 land border crossings in addition to vehicle wait times posted. The pedestrian wait time feature will be effective starting 9 a.m. today. Travelers may now plan their trip by monitoring pedestrian wait times at larger southwest border crossings at the CBP Border Wait Times website. ( CBP Border Wait Times ) This Web tool was commonly used by travelers to monitor commercial and passenger vehicle wait times and now has been expanded to include pedestrian waits and the number of open lanes. During fiscal year 2007, just fewer than 50 million pedestrians entered the U.S. at official ports of entry. Information will be updated hourly and will further the traveling publics ability in identifying periods of light use and shorter wait time. The 12 border crossings that will have pedestrian wait times published are: U.S. Customs and Border Protection is the unified border agency within the Department of Homeland Security charged with the management, control and protection of our nation's borders at and between the official ports of entry. CBP is charged with keeping terrorists and terrorist weapons out of the country while enforcing hundreds of U.S. laws. see also: in CBP News Releases: California Customs and Border Protection Officers Seize $22 Million in Counterfeit Imported Merchandise CBP Officers in N.Y. Arrest Smuggler and Seize 65 Pounds of Marijuana Pleasure Boat Reporting Requirements in Detroit CBP Reporting Requirements for Recreational Vessels Arriving in U.S. on the Great Lakes Weekend Seizures Net More Than $700,000 Worth of Marijuana CBP Officers Discover Two Undocumented Immigrants in Tractor Trailer ...more on cbp.gov: CBP News Releases Press Officers CBP Border Wait Times State Border Crossings Arizona Nogales- DeConcini Facility, Morley Gate Facility San Luis Texas Brownsville Gateway Bridge El Paso Paso Del Norte Bridge Hidalgo Reynosa International Bridge Laredo - Gateway Bridge 1 Progreso - Progreso International Bridge California Andrade Calexico Calexico West Otay Mesa San Ysidro Contacts For This News Release Page 1 of 2 CBP to Provide Wait Times at Major Pedestrian Entries - CBP.gov 5/22/2008 http://www.cbp.gov/xp/cgov/newsroom/news_releases/05212008.xml no address available at this time Public Affairs Phone: (202) 344-1780 CBP Headquarters Office of Public Affairs 1300 Pennsylvania Ave., N.W. Room 3.4A Washington, DC 20229 Phone: (202) 344-1770 or (800) 826-1471 Fax: (202) 344-1393 next (1 of 65) back to CBP News Releases How to Use the Website Featured RSS Links What's New Contacts Ports Questions Forms Sitemap EEO | FOIA | Privacy Statement | Get Plugins | En Espaol Department of Homeland Security USA.gov Inquiries (877) CBP-5511 | International Callers (703) 526-4200 | TTD (866) 880-6582 | Media Only (202) 344-1780 Page 2 of 2 CBP to Provide Wait Times at Major Pedestrian Entries - CBP.gov 5/22/2008 http://www.cbp.gov/xp/cgov/newsroom/news_releases/05212008.xml http://www.Dr-Immigration.com/news/shownews.asp?newsID=15 Wed, 25 Jun 2008 12:59:27 EST Improvements Will Focus on Decreasing Mismatch Rates for Naturalized Citizens WASHINGTONU.S. Citizenship and Immigration Services (USCIS) announced today improvements to the E-Verify employment authorization program that will reduce an already low mismatch rate, while also streamlining and increasing the effectiveness of the overall program. Todays announcement comprises the first two phases of an overall three-part enhancement for E-Verify aimed at decreasing the mismatch rate for naturalized citizens. Less than one percent of all work-authorized employees receive a tentative nonconfirmation through E-Verify, said USCIS Acting Director Jonathan Scharfen. While this is a very small percentage, we believe every employee who is authorized to work in the United States should be instantly authorized by the program. Were confident that the enhancements were launching today will help us achieve that goal. Starting today, the E-Verify system will include naturalization data, which will help instantly confirm the citizenship status of naturalized U.S. citizens hired by E-Verify employers. Naturalized citizens who have not yet updated their records with the Social Security Administration (SSA) are the largest category of work-authorized persons who initially face an SSA mismatch in E-Verify. Additionally, a naturalized citizen who receives a citizenship mismatch with SSA can call USCIS directly to resolve the issue (in addition to the option of resolving the mismatch in person at any SSA field office.) E-Verify also will now include real time arrival data from the Integrated Border Inspection System. This additional data source will reduce the number of immigration status related mismatches for newly arriving workers who have entered the country legally. USCIS also plans to initiate citizenship status records information sharing with SSA to further help prevent tentative nonconfirmations from occurring. This effort will improve the efficiency of E-Verify by providing to SSA with the most accurate and timely citizenship status information. E-Verify also plans to check against Department of State passport records in the near future to even further reduce mismatches. More than 64,000 employers participate in E-Verify with approximately 1,000 new enrollments weekly. The Web-based system allows participating employers to electronically verify the employment eligibility of newly-hired employees. E-Verify evolved from the Basic Pilot/Employment Eligibility Verification Program originally developed in 1997 and made available to employers as a Web-based system in 2004. USCIS operates the program in partnership with SSA. Additional details on the program are available on the E-Verify Web site at www.uscis.gov/e-verify. USCIS http://www.Dr-Immigration.com/news/shownews.asp?newsID=14 Wed, 4 Jun 2008 22:39:03 EST Report tracks inspections, improvements at 176 detention facilities WASHINGTON, D.C. - U.S. Immigration and Customs Enforcement (ICE) today released its first Semiannual Report on Compliance with ICE National Detention Standards January - June 2007, which tracks detention facilities' compliance with national detention standards. The ICE Detention Facility Inspection Program is fulfilling ICE's mission to provide safe, secure and compliant detention facilities for all those in ICE custody. Assistant Secretary of Homeland Security for ICE, Julie L. Myers, directed that the Office of Detention and Removal Operations (DRO) report semi-annually on agency-wide adherence with the ICE National Detention Standards (NDS). ICE, with the assistance of law enforcement professionals and non-governmental organizations, developed 38 National Detention Standards as a benchmark. The report is the first issued under this directive and covers the period of January through June 2007. "This report helps enhance transparency and general understanding of our detention system by detailing the results of more than 175 facility compliance inspections," said Assistant Secretary Myers. "These inspections are designed to ensure compliance with ICE's rigorous National Detention Standards, which surpass all other industry standards in their stringency and commitment to detainee health and comfort." ICE uses several different kinds of detention facilities to house people detained for immigrationrelated violations, including service processing centers (SPCs), which are owned and operated by ICE; contract detention facilities (CDFs), which are owned and operated by private-sector businesses on behalf of ICE; and facilities operated by government entities under intergovernmental service agreements (IGSAs). The ICE detention system consists of more than 350 local and state facilities under IGSAs, 7 CDFs, 8 SPCs, and facilities operated by the Federal Bureau of Prisons and Office of Refugee Resettlement. Each semiannual report will focus on half of the total number of facilities. This allows each facility to be rated once a year. Page 1 of 3 First semiannual report on compliance with ICE national detention standards released 5/8/2008 http://www.ice.gov/pi/news/newsreleases/articles/080509washington.htm The rating is determined by a careful evaluation of how well the detention functions identified in the guidelines are carried out. The rating is a measure of the program's performance and does not necessarily measure the effectiveness of the facility management team. The assignment of the rating is also intended to measure the performance of the program over time. The following criteria shall be used in determining the rating for a facility: 􀁺 Superior - Performing all of its functions in an exceptional manner, has excellent internal controls and exceeds expectations. The facility cannot receive a Superior rating if any standard is rated deficient or at-risk. 􀁺 Good - Performing all of its functions, and there are few deficient procedures within any function. Internal controls are such that there are limited procedural deficiencies. The facility cannot receive a good rating if any standard is rated at-risk or is a repeat deficiency. 􀁺 Acceptable - This is the "baseline" for the rating system. The detention functions are being adequately performed. Although deficiencies may exist, they do not detract from the acceptable accomplishment of the vital functions. 􀁺 Deficient - One or more detention functions are not being performed at an acceptable level. Internal controls are weak, thus allowing for serious deficiencies in one or more program areas. 􀁺 At-Risk - The detention operations are impaired to the point that it is not presently accomplishing its overall mission. Internal controls are not sufficient to reasonably assure acceptable performance can be expected in the future The overall final ratings for the 176 facilities reviewed in the semiannual report released today are: 􀁺 SPCs: 100% (7 of 7) received a Final Rating of Acceptable or above. 􀁺 CDFs: 100% (4 of 4) received a Final Rating of Acceptable or above. 􀁺 IGSAs: 87% (144 of 165) received a Final Rating of Acceptable or above. Any facility receiving a rating of Deficient as a final overall rating or for any individual standard must follow the DRO formal Plan of Action process, which requires the facilities to submit a remediation plan to DRO Headquarters within 30 days of notification. Follow up inspections are conducted after 90 days to ensure that the facility has remedied the deficiency and is in compliance with the standards. Any deficiency that poses a threat to the health or safety of the detained population must be corrected immediately. The upcoming semiannual report will cover the review and remediation activities for those facilities that were in the deficient or below category. ICE will release a new report twice a year covering the review and remediation activities, if any, for the respective time period. The semiannual report is posted on the ICE website at http://www.ice.gov. -- ICE -- Page 2 of 3 First semiannual report on compliance with ICE national detention standards released 5/8/2008 http://www.ice.gov/pi/news/newsreleases/articles/080509washington.htm Last Modified: Wednesday, May 7, 2008 U.S. Immigration and Customs Enforcement (ICE) was established in March 2003 as the largest investigative arm of the Department of Homeland Security. ICE is comprised of five integrated divisions that form a 21st century law enforcement agency with broad responsibilities for a number of key homeland security priorities. Page 3 of 3 First semiannual report on compliance with ICE national detention standards released 5/8/2008 http://www.ice.gov/pi/news/newsreleases/articles/080509washington.htm http://www.Dr-Immigration.com/news/shownews.asp?newsID=13 Wed, 4 Jun 2008 22:38:04 EST WASHINGTONU.S. Citizenship and Immigration Services (USCIS) announced today that it is publishing a Notice of Proposed Rulemaking (NPRM) to increase the maximum amount of time a Trade- NAFTA (TN) professional worker from Canada or Mexico can remain in the United States before seeking readmission or obtaining an extension of stay. The proposal will extend the maximum period of admission for TN workers from one year to three years, the same term that USCIS currently may grant to H-1B specialty occupation workers. The proposed rule will further allow eligible TN nonimmigrants to be granted an extension of stay in increments of up to three years, as opposed to the current maximum of one year. TN nonimmigrants are not subject to a maximum period of stay and thus may seek multiple readmissions or extensions, provided their intended professional activity continues and they remain otherwise eligible. Current regulations require that TN workers seek readmission or apply for an extension of stay each year. Canadian and Mexican citizens seeking temporary entry to the United States as professionals may come into the country as TN nonimmigrants under the North American Free Trade Agreement (NAFTA). TN status is available to Canadian and Mexican citizens with a minimum of a bachelors degree, or appropriate professional credentials, who work in professions listed in Appendix 1603.D.1 to Annex 1603 of the NAFTA and under DHS regulations at 8 CFR 214.6(c). Eligible TN professions include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers. The NPRM, once implemented as a final rule, will ease administrative burdens and costs on TN nonimmigrants and will benefit U.S. employers by increasing the period of time beneficiaries are allowed to remain in the United States under a TN visa. The proposed changes would also apply to spouses and unmarried, minor children of TN nonimmigrants in their corresponding nonimmigrant classifications as NAFTA dependents. This improvement to the TN nonimmigrant category was initially announced by Homeland Security Secretary Michael Chertoff and Department of Commerce Secretary Carlos Gutierrez on Aug. 10, 2007. This is part of the Administrations 26 initiatives to address current immigration challenges, including making existing temporary worker programs like the TN program more effective, using the tools and authorities available under existing law. The NPRM is available on USCIS Web site at www.uscis.gov and will soon publish in the Federal Register. Once published, persons wishing to comment on the TN professional worker NPRM may access the Federal e-Rulemaking Portal at www.regulations.gov and follow the instructions for submitting comments. USCIS will accept public comments until 30 days from the date the NPRM is published in the Federal Register. For more information on the TN nonimmigrant visa program, visit the USCIS Web site or call the National Customer Service Center at (800) 375-5283. USCIS http://www.Dr-Immigration.com/news/shownews.asp?newsID=12 Wed, 4 Jun 2008 22:20:40 EST