USCIS, DOL, & CBP Issue New H-2A Regulations
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 o