[Federal Register Volume 63, Number 229 (Monday, November 30, 1998)]
[Rules and Regulations]
[Pages 65657-65660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31953]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103, 214, and 299
[INS 1962-98]
RIN 1115-AF31
Petitioning Requirements for the H-1B Nonimmigrant Classification
Under Public Law 105-277
agency: Immigration and Naturalization Service, Justice.
action: Interim rule with request for comments.
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summary: This interim rule amends the Immigration and Naturalization
Service's (Service) fee schedule and regulations with respect to filing
requirements for Form I-129, Petition for H-1B Nonimmigrant Worker, for
alien workers coming to perform services in a specialty occupation.
Specifically, this rule amends the regulations to reflect an additional
$500 billing fee, added by the American Competitiveness and Workforce
Improvement Act (ACWIA), for H-1B petitions filed on or after December
1, 1998. This rule also describes the organizations that are exempt
from the new fee requirements. Finally, this rule amends the
regulations to reflect the new annual numerical limits on H-1B
classification.
dates: Effective date: This rule is effective December 1, 1998.
Comment date: Written comments must be submitted on or before
January 29, 1999.
addresses: Please submit the original and two copies of written
comments to the Director, Policy Directives and Instructions Branch,
Immigration and Naturalization Service, 425 I Street NW., Room 5307,
Washington, DC 20536. To ensure proper handling, please reference the
INS No. 1962-98 on your correspondence. Comments are available for
public inspection at the above address by calling (202) 514-3048 to
arrange for an appointment.
for further information contact: John W. Brown, Adjudications Officer,
Benefits Division, Immigration and Naturalization Service, 425 I Street
NW., Room 3214, Washington, DC 20536, telephone (202) 514-4754.
supplementary information:
Background
On October 21, 1998, Congress enacted the American Competitiveness
and Workforce Improvement Act of 1990 (ACWIA), as Title IV of Div. C of
Public Law 105-277. This new legislation amended and created several
statutory provisions relating to the H-1B nonimmigrant classification.
These amendments include, among others:
(1) revisions to the attestation requirements for labor condition
applications (LCA) under section 212(n) of the Immigration and
Nationality Act (INA);
(2) new penalties and definitions of violations of LCA conditions;
(3) amendments to prevailing wage computations for academic and
research organizations; and
(4) data collection and reporting requirements.
The Department of Labor is primarily responsible for administration
and enforcement of the labor condition application and associated
penalties. Therefore, as a number of these provisions require close
coordination between the Department of Labor and the Service, they will
be the subject of a separate rulemaking.
For this rulemaking, the Service is implementing only the
provisions of section 414(a) and 415(a) of ACWIA, addressing the new
fees for United States employers filing petitions for H-1B
nonimmigrants and the organizations that are exempt from the new fee
requirements. The Service is also revising the regulations at
Sec. 214.2(h)(8)(i)(A) to reflect the increase in the annual
limitations on the number of aliens who can be granted an H-1B visa or
otherwise accorded such status.
What Is the New Fee Required by H-1B Petitions?
ACWIA requires certain H-1B petitioners to pay an additional fee of
$500, in addition to the standard $110 filing fee for Form I-129
petitions. This $500 fee will be disbursed between the Department of
Labor and National Science Foundation for job training, low-income
scholarships, grants for mathematics, engineering, or science
enrichment courses, systematic reform activities, and administration
and enforcement of the H-1B program. The Service will receive 1.5
percent of the fee as reimbursement for the costs of collection and
processing of H-1B nonimmigrant petitions.
Who Is Required to Pay This Fee?
The new $500 filing fee must be paid by United States employers
when they file H-1B petitions on or after December 1, 1998, and before
October 1, 2001, for any of the following purposes:
(1) an initial grant of H-1B status under section
101(a)(15)(H)(i)(b) of the INA;
(2) an extension of stay for individuals currently in H-1B status;
or
(3) authorization for a change in employment for individuals
currently in H-1B status.
All United States employers seeking authorization for a change in
employment (e.g., a change from one specialty occupation to another
specialty occupation) for an H-1B nonimmigrant must pay the additional
$500 fee, regardless of whether the request for change in employment is
the first request for such a change or a subsequent request for the
same H-1B nonimmigrant. For employers seeking an extension of stay
under Sec. 214.2(h)(15)(i), the additional $500 fee only applies to the
first extension request. However, in instances where a new employer has
received approval for a change in employment for an H-1B nonimmigrant
and subsequently seeks an extension of stay for that H-1B worker, the
new employer must also pay the additional $500 filing fee for its first
request for extension of stay, regardless of whether the prior employer
had requested an extension of stay for the H-1B nonimmigrant. Finally,
the additional fee will not be required for employers filing amended
petitions under Sec. 214.2(h)(2)(i)(E), unless the
[[Page 65658]]
petition has the effect of extending the alien's status and is the
first petition that the employer has filed to extend that alien's
status.
Employers should note that the additional $500 filing fee is not
waivable under Sec. 103.7(c)(1).
What Are the Application Procedures for H-1B Petitions in Light of
the New Fee Requirements?
All H-1B petitions filed on or after December 1, 1998, for new H-1B
employment, concurrent employment, sequential employment, and the first
extension of stay filed by an employer for the alien, must be filed in
accordance with Sec. 103.2(a), at the Service Center having
jurisdiction over the area where the alien will perform the specialty
occupation services. The completed Form I-129 must be accompanied by
the required $110 filing fee and an additional $500 fee in a single
remittance (one check or money order) of $610, unless the United States
employer is an ``exempt organization'' as defined under
Sec. 214.2(h)(19)(iii).
Those United States employers claiming exemption from the
additional $500 filing fee should submit a completed Form I-129, the
$110 filing fee, the Form I-129W, Petition for Nonimmigrant Worker,
Filing Fee Exemption, and evidence that their organization is an
``exempt organization'' as defined in Sec. 214.2(h)(19)(iii).
Employers should note that under section 413(a) of ACWIA, which
amends section 212(n)(2)(C) of the INA, an employer may not require an
alien beneficiary to reimburse or otherwise compensate the employer for
all or part of an H-1B petition filing fee. Therefore, the Service will
reject remittances from an alien beneficiary or the alien's
representative that accompanies an H-1B petition.
Who Is Exempt From the $500 Filing Fee?
The only organizations exempt from paying the additional $500 fee
for filing H-1B petitions are:
(1) institutions of higher education, as defined in section 101(a)
of the Higher Education Act of 1965, or related or affiliated nonprofit
entities, and
(2) nonprofit or governmental research organizations.
The Service has created preliminary definitions for the terms
``nonprofit'' and ``research'' and the phrase ``related or
affiliated,'' drawing on generally accepted definitions of the terms.
In addition, the Service has drawn from definitions of the terms. In
addition, the Service has drawn from definitions contained in the
regulations of the Internal Revenue Service (IRS), 26 CFR 1.501(c)(3)-
1, (c)(4)-1, and (c)(6)-1, and Small Business Administration, 13 CFR
121.103. The Service also consulted with the Department of Labor and
nonprofit and academic organizations for assistance in developing the
definitions reflected in this rulemaking. In addition, these
definitions will be the subject of a separate rulemaking proceeding
with an opportunity for public comment when the Service and the
Department of Labor address section 415 and subtitle C of ACWIA. The
definitions are set forth in new Sec. 214.2(h)(19)(iii). We invite
public comment on this section.
Which H-1B Petitions Are Affected by ACWIA?
The new law only applies to petitions filed on or after December 1,
1998, and before October 1, 2001. For purposes of determining whether a
petition is filed on or after December 1, 1998, the Service will rely
on its existing regulation at Sec. 103.2(a)(7), under which ``filing''
occurs on the date of receipt. As Senator Abraham stated in the House
Conference Report 105-825, October 21, 1998, 2nd. Sess. 1998, ACWIA was
the product of combined efforts by Congress and the business industry
to implement changes in the H-1B nonimmigrant program. The Service
believes that United States employers filing for H-1B nonimmigrant
workers are well aware of the new fee requirements and the December 1,
1998, effective date for the new fee. In addition, since the Service
has existing regulations governing filing and receipt of benefit
applications, and employers of H-1B nonimmigrant workers are familiar
with these regulations, United States employers should not have
difficulty complying with the new fee requirement.
In the rulemaking, the Service also is requiring that a United
States employer claiming to be an ``exempt organization'' must provide
the Service with evidence of its section 501 (c)(3), (c)(4), or (c)(6)
tax exempt status. The Service understands from the IRS that certain
organizations (e.g., churches) qualify for nonprofit status even
without a notice from the IRS confirming such status. The Service,
however, believes that most employers of specialty occupation workers
claiming an exemption will be able to meet this evidentiary
requirement, either with a notice from the IRS or other documents
demonstrating the United States employer's nonprofit status. In
addition, the Service believes that information to be submitted with
the H-1B petition, as provided in this interim rule, should provide
sufficient evidence that the employer is an institution of higher
education or research institution. The Service is not imposing any
additional evidentiary requirements at this time; however, the Service
may invoke its existing authority under Sec. 103.2(b)(8) to request
additional evidence if there is a question of eligibility for exemption
from the filing fee. This is consistent with conference report language
at House Report 105-825, October 21, 1998, 2nd Sess. 1998.
Good Cause Exception
The Service's implementation of this rule as an interim rule, with
provision for post-promulgation public comment, is based upon the
``good cause'' exceptions found at 5 U.S.C. 553(b)(B). Sections 414(a)
and 415(a) of ACWIA became effective immediately upon enactment on
October 21, 1998. Publication of this rule as an interim rule will
expedite implementation of these sections. It also will inform the
public about the new $500 filing fee for H-1B petitions for
nonimmigrant workers and allow the Service to begin collecting this fee
for H-1B petitions filed on or after December 1, 1998.
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 the rule will not have a significant economic impact
on a substantial number of small entities. Sections 414(a) and 415(a)
of ACWIA established the new $500 filing fee and exemptions that are
effective December 1, 1998. This regulation implements procedures for
submission of the new $500 filing fee for Form I-129, H-1B Nonimmigrant
Petitions.
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 1 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 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
[[Page 65659]]
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. While the rule is not a major rule, the
Service recognizes that all businesses, regardless of size, whose
hiring practices involve H-1B aliens, are affected by this rule in that
they will be required to submit an additional $500 per petition, unless
exempt. It is anticipated that this rule will result in an estimated
annual effect on the economy of $75,050,000 for the first year. It is
anticipated that the effect on the economy for the second year will be
$88,550,000. Further, as previously stated in the supplement to this
rule, sections 414(a) and 415(a) of ACWIA establish the new $500 filing
fee and exemptions that are effective December 1, 1998. This regulation
merely implements procedures for the submission of the new $500 filing
fee for H-1B nonimmigrant petitions.
Executive Order 12866
This rule is considered by the Department of Justice, Immigration
and Naturalization Service, to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review. Accordingly, this regulation has been submitted to the Office
of Management and Budget for review.
Executive Order 12612
The regulation proposed herein 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 Executive Order 12612, it is determined that this rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
Executive Order 12988--Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of E.O. 12988.
Paperwork Reduction Act
Under ACWIA, on or after December 1, 1998, a United States employer
must file an additional $500 fee for all petitions to classify an alien
as an H-1B nonimmigrant worker. Institutions of higher education or
related or affiliated nonprofit entities, and nonprofit or governmental
research organizations, are exempt from this new fee requirement.
United States employers claiming to be an exempt organization must
complete Form I-129W, Petition for Nonimmigrant Worker, Filing Fee
Exemption, and submit it to the Service. This attachment is considered
an information collection covered under the Paperwork Reduction Act
(PRA). The estimated burden hours for the first year are 38,500 which
lead to a cost of $385,000. The additional costs of the collection
total $75,050,000 for the first year. The estimated burden hours for
the second year are 46,000 which lead to a cost of $460,000. The
additional costs of the collection for the second year total
$88,550,000.
Accordingly, the Service will be submitting an information
collection package to the Office of Management and Budget (OMB) for
review and approval in accordance with 8 CFR part 1320.13.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Fees, Forms, Freedom of information, Privacy,
Reporting and recordkeeping requirements, Surety bonds.
8 CFR Part 214
Administrative practice and procedures, Aliens, Employment,
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 OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
1. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,
15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.
2. Section 103.7 is amended as follows:
a. In paragraph (b)(1), remove the entries for ``Form I-129H'' and
``Form I-129L'' from the listing of fees;
b. Revise in paragraph (b)(1) the entry for ``Form I-129''; and
c. In paragraph (c)(1) add a new sentence at the end of the
paragraph, to read as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
* * * * *
Form I-129. For filing a petition for a nonimmigrant worker, a base
fee of $110 plus an additional $500 fee in a single remittance of
$610. Payment of this additional $500 fee is not required if an
organization is exempt under Sec. 214.2(h)(19)(iii) of this chapter.
Payment of this additional $500 fee is not waivable under
Sec. 103.7(c)(1).
* * * * *
(c) * * *
(1) * * * The payment of the additional $500 fee prescribed by
section 214(c)(9) of the Act when applying for petition for
nonimmigrant worker under section 101(a)(15)(H)(i)(b) of the Act may
not be waived.
* * * * *
PART 214--NONIMMIGRANT CLASSES
3. The authority citation for part 214 continues to read as
follows;
Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,
1281, 1282; 8 CFR part 2.
4. Section 214.2 is amended by:
a. Revising paragraph (h)(8)(i)(A); and by
b. Adding a new paragraph (h)(19); to read as follows:
Sec. 214.2. Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(8) * * *
(i) * * *
(A) Aliens classified as H-1B nonimmigrants, excluding those
involved in Department of Defense research and development projects or
coproduction projects, may not exceed:
(1) 115,000 in fiscal year 1999;
(2) 115,000 in fiscal year 2000;
(3) 107,500 in fiscal year 2001; and
(4) 65,000 in each succeeding fiscal year.
* * * * *
(19) Additional fee for filing certain H-1B petitions--(i) A United
States employer (other than an exempt employer as defined in paragraph
(h)(19)(iii) of this section) who files a Form I-129, on or after
December 1, 1998, and before October 1, 2001, must include the
additional fee required in Sec. 103.7(b)(1) of this chapter, if the
petition is filed for any of the following purposes:
(A) An initial grant of H-1B status under section
101(a)(15)(H)(i)(b) of the Act;
[[Page 65660]]
(B) An initial extension of stay, as provided in paragraph
(h)(15)(i) of this section; or
(C) Authorization for a change in employment, as provided in
paragraph (h)(2)(i)(D) of this section.
(ii) The service will accept remittances of the additional fee only
from the United States employer or its representative of record, as
defined under 8 CFR part 292 and 8 CFR 103.2(a)(3).
(iii) The following exempt organizations are not required to pay
the additional fee:
(A) An institution of higher education, as defined in section
101(a) of the Higher Education Act of 1965;
(B) An affiliated or related nonprofit entity. A nonprofit entity
(including but not limited to hospitals and medical or research
institutions) that is connected or associated with an institution of
higher education, through shared ownership or control by the same board
or federation operated by an institution of higher education, or
attached to an institution of higher education as a member, branch,
cooperative, or subsidiary;
(C) A nonprofit research organization or governmental research
organization. A research organization that is either a nonprofit
organization of entity that is primarily engaged in basic research and/
or applied research or a United States Government entity whose primary
mission is the performance or promotion of basic research and/or
applied research. Basic research is research to gain more comprehensive
knowledge or understanding of the subject under study, without specific
applications in mind. Basic research also is not research that advances
scientific knowledge, but does not have specific immediate commercial
objectives although it may be in fields of present or potential
commercial interest. Applied research is research to gain knowledge or
understanding to determine the means by which a specific, recognized
need may be met. Applied research includes investigations oriented to
discovering new scientific knowledge that has specific commercial
objectives with respect to products, processes, or services.
(iv) For purposes of paragraphs (h)(19)(iii)(B) and (C) of this
section, a nonprofit organization or entity is one that is qualified as
a tax exempt organization under section 501(c)(3), (c)(4), or (c)(6) of
the Internal Revenue Code of 1986 (26 U.S.C. 501(c)(3), (c)(4) or
(c)(6)) and has received approval as a tax exempt organization from the
Internal Revenue Service, as it relates to research or educational
purposes.
* * * * *
PART 299--IMMIGRATION FORMS
5. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
6. Section 299.1 is amended in the table by adding the Form ``I-
129W'' in numerical order to read as follows:
Sec. 299.1 Prescribed forms.
* * * * *
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Edition
Form No. date Title
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* * * * *
I-129W...................... 11-24-98 Petition for Nonimmigrant
Worker, Filing Fee Exemption.
* * * * *
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7. Section 299.5 is amended in the table by adding Form ``I-129W''
in numerical order to read as follows:
Sec. 299.5 Display of control numbers.
* * * * *
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Currently assigned OMB
INS form No. INS form title control No.
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* * * * *
I-129W.................... Petition for 1115-0225
Nonimmigrant
Worker, Filing
Fee Exemption
* * * * *
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Dated: November 25, 1998.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 98-31953 Filed 11-25-98; 3:36 pm]
BILLING CODE 4410-10-M
