[Federal Register Volume 63, Number 107 (Thursday, June 4, 1998)]
[Proposed Rules]
[Pages 30419-30423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-14785]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 214
[INS 1769-96]
RIN 1115-AE-38
Petitioning Requirements for the H Nonimmigrant Classification
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend the Immigration and Naturalization
Service's (Service) regulations to accommodate the needs of certain
United States employers with respect to the filing of new and amended
petitions for H-1B nonimmigrant workers. This rule was written in
response to a number of complaints received from certain industries
which asserted that the current H regulations contain requirements with
which some U.S. employers cannot comply. In addition, the current
regulations contain certain procedures which are burdensome to both the
Service and to the public. Specifically, this rule proposes to amend
the Service's regulation with regard to the submission of itineraries
with certain H-1B petitions and to amend the Service's regulations
regarding the H-1B classification by allowing petitioners to obtain and
submit the required certified labor condition application after the
petition is initially filed with the Service, but before the petition
is adjudicated. Finally, this rule proposes to amend the Service's
regulation regarding the revocation of approved H petitions where the
beneficiary is no longer employed by the petitioner. This rule will
make the H-1B nonimmigrant classification easier for certain U.S.
employers to use and will make the requirements for the H-1B
nonimmigrant classification more consistent with the practices of the
business world.
DATES: Written comments must be submitted on or before August 3, 1998.
ADDRESSES: Please submit written comments, in triplicate, to the 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 number 1769-96 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, Adjudications Division,
Immigration and Naturalization Service, 425 I Street, NW., Room 3214,
Washington, DC 20536, telephone (202) 514-3240.
SUPPLEMENTARY INFORMATION: The current regulation at 8 CFR
214.2(h)(2)(i)(B) provides that an H petition which requires an alien
beneficiary to perform services in more than one location must include
an itinerary with dates and locations of the services or training to be
performed. This regulatory provision was promulgated primarily to
address certain practices in the entertainment industry, which, prior
to the passage of the Immigration Act of 1990, was one of the largest
users of the H-1B classification. (Entertainers now typically enter the
United States in the O and P nonimmigrant classifications.)
Specifically, this regulation was intended to preclude foreign
entertainers who were admitted in H classification for the purpose of
performing at a specific engagement from engaging in freelance work in
this country subsequent to their admission. The regulation was designed
to ensure that aliens seeking H nonimmigrant status have an actual job
offer and are not coming to the United States for the purpose of
seeking employment following arrival in this country.
Since promulgation of this regulation, however, many industries in
the United States, such as the health care and computer consulting
industries, have begun to rely more frequently on the use of contract
workers. It has been the experience of the Service that many bona fide
businesses which provide contract workers to certain industries under
the H-1B classification have experienced difficulty in providing
complete and detailed itineraries due to the unique employment
practices of such industries. For example, companies which are in the
business of contracting out physical therapists or computer
professionals often get requests from customers to fill a position with
as little as 1 day advance notice. Clearly an H-1B petitioner in this
situation could not know of all particular contract jobs at the time
that it first files the H-1B petition with the Service. As a result,
many such bona fide employment contractors do not know all of the
locations where a contract worker will be employed at the time the Form
I-129, Petition for a Nonimmigrant Worker, is initially filed.
Moreover, some employers who use the H-1B classification may have a
legitimate, but unforeseeable, need to transfer their employees on
short notice from one work site to another within the organization,
such as from the employer's Los Angeles office to its New York office.
Under the current regulation, however, such an employer is required to
submit with its petition a complete itinerary listing all of the
locations where the contract workers will be employed. The regulation
as now written, therefore, does not fully reflect current legitimate
business practices.
In response to these problems, the Service now proposes to amend
its regulations at 8 CFR 214.2(h)(2)(i)(B) and at 8 CFR
214.2(h)(2)(i)(F) to allow certain petitioners to submit a general
statement describing the locations where the alien is to be employed,
thereby eliminating the necessity of submitting a complete itinerary. A
complete itinerary must be submitted only in those instances where the
employer is aware of the actual itinerary or where the petitioner is an
agent that does not actually employ the beneficiary but merely
represents the alien and the alien's employer.
In those instances where the employer does not yet know the alien's
complete itinerary at the time the petition is filed, the employer must
submit, in lieu of a complete itinerary, a list of the places where it
knows the beneficiary will definitely be employed, together with a
description of the alien's job duties at those locations. In addition,
the employer must submit, to the extent possible, a list describing the
alien's possible places of employment and the duties which the alien
would perform at such locations. The employer may also be asked to
submit a letter with the petition describing its past hiring practices,
including a list of past places where it has employed similarly
situated persons. The letter must describe the employer's tentative
plans to use the beneficiary in an H-1B capacity in the future.
However, the absence of a past hiring practice is not a bar to the
approval of the petition. Petitions filed without any itinerary may not
be approved since this type of petition involves purely speculative
employment. Of course, the petitioner
[[Page 30420]]
must also submit all other documentary evidence required by the
regulation for H-1B classification.
It is important to note that this proposed rule affects only those
entities which are the actual employer of the alien, such as employment
contractors and direct employers. In this regard, an employment
contractor is one which employs the alien but assigns the alien to work
at a different location than the contractor's place of business, based
on the terms of a contract with a person or entity seeking the
employer's services. A direct employer is one which hires the alien and
assigns the alien to work at the employer's place of business. In both
instances, the petitioner is the employer of the alien and retains the
ability to hire and fire the alien.
An agent who represents both the alien and the alien's employer is
not the alien's employer and is required under this proposed rule to
submit a complete itinerary. A typical example of this type of agency
is the sports agent who has a contract with a sports star and who
solicits potential employers in order to obtain the best deal for the
alien. Recruitment agencies and entities which merely locate an alien
for employers are not the actual employer of the alien and do not fit
the Service's definition of an agent. As a result they may not file an
H-1B petition.
Historically, the Service has not granted H-1B classification on
the basis of speculative, or undetermined, prospective employment. The
H-1B classification is not intended as a vehicle for an alien to engage
in a job search within the United States, or for employers to bring in
temporary foreign workers to meet possible workforce needs arising from
potential business expansions or the expectation of potential new
customers or contracts. To determine whether an alien is properly
classifiable as an H-1B nonimmigrant under the statute, the Service
must first examine the duties of the position to be occupied to
ascertain whether the duties of the position require the attainment of
a specific bachelor's degree. See section 214(i) of the Immigration and
Nationality Act (the ``Act''). The Service must then determine whether
the alien has the appropriate degree for the occupation. In the case of
speculative employment, the Service is unable to perform either part of
this two-prong analysis and, therefore, is unable to adjudicate
properly a request for H-1B classification. Moreover, there is no
assurance that the alien will engage in a specialty occupation upon
arrival in this country.
To ensure that petitioners will not use the H-1B classification for
speculative employment, this proposed regulation would require
petitioners to establish that they, in fact, have employment in a
specialty occupation available for the alien at the time that the
petition is initially filed. Under this proposed rule, the petitioner
would be required to establish, both through the submission of evidence
relating to its past employment practices and through the submission of
evidence relating to its employment plans for the beneficiary, that the
alien will, in fact, commence work in a speciality occupation
immediately upon admission in H classification. The petitioner must be
able to demonstrate its need for the alien's services within the
specialty occupation described in the petition when the petition is
filed. It should be noted that this proposed regulation would not
relieve the petitioner of its responsibility to file an amended
petition when required, for example, when the beneficiary's transfer to
a new work site necessitates the filing of a new labor condition
application or when the beneficiary is required to obtain a new state
license in order to commence employment at the new location. In light
of the existing statutory requirements for H-1B classification and the
Department of Labor's regulations regarding labor condition
applications, the Service is confident that the proposed regulation
would ensure that U.S. workers continue to receive protection from
employers who might attempt to abuse the H-1B nonimmigrant
classification.
Finally, as previously indicated, the regulatory requirement
relating to the submission of a complete itinerary was geared primarily
for the entertainment industry, which, in light of changes under the
Immigration Act of 1990, generally no longer uses the H-1B nonimmigrant
classification. While it is preferable that all H-1B petitions be
accompanied by complete itineraries listing the dates and places of the
alien's employment, the Service recognizes such an across-the-board
requirement is no longer practical in today's business environment.
It should be noted that a petition filed by an agent who is not the
actual employer of the alien, as described in 8 CFR
214.2(h)(2)(i)(F)(1), must be accompanied by an itinerary. The Service
wishes to retain strict control over petitions filed under these
circumstances since, as noted above, this type of agent, unlike an
employment contractor, is not the actual employer of the alien. In such
a case, unless the agent submits a complete itinerary, the Service
cannot be assured that the alien will be employed continuously as a
specialty worker following admission to this country. Moreover, in such
a situation, the Service cannot approve the H classification since
there would not exist a valid labor condition application for each
location where the alien will be employed.
The Service recognizes that implementation of this rule would
remove some of the controls which it currently has over prospective H-
1B employers at the time they initially file their petitions. To ensure
that employers have complied with the terms of the initial petition and
supporting labor condition application, the Service proposes to amend
its regulations at 8 CFR 214.2(h)(15)(ii)(B)(1) relating to extensions
of H-1B petitions to include clear language providing Service directors
with the authority to require petitioners to submit evidence regarding
the alien beneficiary's employment activities under the initial or
prior approved petition or petitions.
The Service also proposes to revise 8 CFR 214.2(h)(2)(i)(E) to
provide concrete examples of certain common situations where an amended
H-1B petition need or need not be filed. While the examples are by no
means intended to be exhaustive, the Service believes that such
clarification is in the public interest. It should be noted that the
Service has previously provided guidance to the public on this issue
through a policy memorandum dated October 22, 1992, signed by James J.
Hogan, Executive Associate Commissioner, Operations. Hence, the
examples described in the proposed regulation merely codify
longstanding Service policy and practice.
The proposed rule addresses the following situations. First, where
an employer is required, under relevant Department of Labor
regulations, to file a new labor condition application, such as
following certain temporary or permanent transfers, the employer will
also be required to file an amended petition. On the other hand, when
an H-1B nonimmigrant is transferred by an employer to another work site
within the area covered by the supporting labor condition application,
and there are no other changes in the nature or terms of the H-1B
nonimmigrant's employment, the employer need not file an amended
petition. Second, an employer will be required to file an amended
petition where the alien's duties change from one specialty occupation
to another. An employer need not file an amended petition, however,
where there is a mere
[[Page 30421]]
change in the petitioner's name, without a change in the underlying
nature or terms of the H-1B employment. In such a situation, the
petitioner may simply notify the Service of its name change when and if
it files an application to extend the alien's nonimmigrant stay. The
Service is amenable to considering additional suggestions from the
public for streamlining the amended petition process.
The Service proposes to amend 8 CFR 214.2(h)(11) (i), (ii), and
(iii) to indicate that a petition for an H nonimmigrant alien will be
automatically revoked if the petitioner notifies the Service that the
beneficiary is no longer employed by the petitioning entity. Under the
current regulation, when the petitioner notifies the Service that the
beneficiary is no longer employed by it in the capacity specified in
the petition, the Service is required to send the petitioner a notice
of intent to revoke the petition. (See 8 CFR 214.2(h)(11)(iii)(A)(1).)
This process requires the petitioner to respond to the notice of
intent, and then for the Service to take action based on the
petitioner's subsequent response. Since the petitioner is the entity
which supplied the Service with the information concerning the alien's
employment, the current procedure creates unnecessary burdens on both
the petitioner and the Service and, therefore, appears to be
inappropriate. Moreover, this proposed change will bring the H
regulation into conformity with the O and P regulations in this regard.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, 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. This regulation eases certain requirements which some
businesses find burdensome by allowing various petitioners the option
of submitting a general statement describing the locations where the
beneficiary is to be employed, along with other supporting
documentation, in lieu of submitting a complete itinerary when filing
an H-1B petition.
In addition, the proposed rule also eases other filing requirements
associated with the submittal of an H-1B petition by allowing a
petitioner the option of submitting a required labor condition
application from the Department of Labor after the petition has been
filed with the Service. Finally, the regulation also eliminates the
requirement that a petitioner respond to a notice of intent to revoke a
petition in instances where the petitioner initiated the revocation
process by notifying the Service that the beneficiary is no longer
employed by the petitioner.
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 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.
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
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of E.O. 12988.
Paperwork Reduction Act
The information collection requirement contained in this rule has
been cleared by the Office of Management and Budget (OMB) under the
provisions of the Paperwork Reduction Act. The OMB clearance number for
this collection is 1115-0168.
List of Subjects in 8 CFR Part 214
Administrative practice and procedures, Aliens, Employment,
Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is proposed to be amended as follows:
PART 214--NONIMMIGRANT CLASSES
1. 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.
2. Section 214.2 is amended by:
a. Revising paragraph (h)(2)(i)(B);
b. Revising paragraph (h)(2)(i)(E);
c. Revising paragraph (h)(2)(i)(F);
d. Revising paragraph (h)(4)(i)(B)(1);
e. Revising paragraph (h)(4)(iii)(B)(1);
f. Revising paragraph (h)(11) (i), (ii), and (iii); and by
h. Revising paragraph (h)(15)(ii)(B)(1) to read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(2) * * *
(i) * * *
(B) Services or training in more than one location.--(1) H-1B
petitions. An H-1B petition which require services to be performed or
training to be received in more than one location must include, to the
extent possible, a complete itinerary with the dates and locations of
the services or training to be performed. The petition must be filed
with the Service Center having jurisdiction over the place where the
petitioner is located. The address which the petitioner specifies as
its location on the petition shall be where the petitioner is located
for purposes of this paragraph. If the petitioner has not yet
determined all of the locations where the beneficiary might be employed
at the time of filing, the petitioner must provide an itinerary of all
definite employment and provide a description of any proposed or
possible employment for the period of time covered by the petition.
Petitions filed by an agent must also comport with 8 CFR
214.2(h)(2)(i)(F).
(2) Other H petitions. A petition for an H-2A, H-2B, or H-3
nonimmigrant alien which requires services to be performed or training
to be received in
[[Page 30422]]
more than one location must include a complete itinerary with the dates
and locations of the services or training to be performed. The petition
must be filed with the Service Center having jurisdiction over the area
where the petitioner is located. The address which the petitioner
specifies on the petition as its location shall be where the petitioner
is located for purposes of this paragraph.
* * * * *
(E) Amended petition--(1) General. A nonimmigrant H petitioner
which continues to employ the beneficiary shall file an amended
petition on Form I-129, with fee, with the Service Center where the
original petition was filed to reflect any material changes in the
terms and conditions of the H nonimmigrant's employment or training, as
specified in the original approved petition. An amended H-1B petition
must be accompanied by a current or new labor condition application
certified by the Department of Labor. In the case of amended H-2A or H-
2B petitions, the amended petition must be accompanied by the
appropriate Department of Labor determination.
(2) H-1B petitions. An amended H-1B petition shall be filed by the
petitioner in all cases where the petitioner is required, under 20 CFR
part 655, to obtain a new certification of filing of a labor condition
application. An amended H-1B petition must also be filed where there is
a change in the beneficiary's duties from one specialty occupation to
another specialty occupation. A change in the name of the petitioning
entity, standing alone, is not a material change and does not require
the filing of an amended petition. As these examples are not all-
inclusive, it is the responsibility of the petitioner to determine
whether, in a particular case, these exists a material change in the
terms and conditions of the H nonimmigrant alien's employment or
training necessitating the filing of an amended petition.
(F) Agents as petitioners. A United States agent may file a
petition in cases involving workers who are traditionally self-employed
or workers who use agents to arrange short-term employment on their
behalf with numerous employers, and in cases where a foreign employer
authorizes the agent to act on its behalf. A United States agent may
be: the actual employer of the beneficiary, the representative of both
the employer and the beneficiary, or, a person or entity authorized by
the employer to act for, or in place of, the employer as its agent. A
petition filed by a United States agent must also comply with the
provisions of 8 CFR 214.2(h)(2)(i)(B) and is subject to the following
conditions:
(1) An agent performing the function of an employer, such as where
the agent acts as an employment contractor, should provide an itinerary
of all definite employment and provide a description of any proposed or
possible employment for the period of time covered by the petition.
Such an agent need not submit a complete itinerary. A petition filed by
such an agent/employer must guarantee the wages and other terms and
conditions of employment by contractual agreement with the beneficiary
or beneficiaries of the petition.
(2) A person or company in business as an agent may file the H
petition involving multiple employers as the representative of both the
employers and the beneficiary or beneficiaries if the supporting
documentation includes a complete itinerary of services or engagements,
the agent has fully informed both the employers and the beneficiaries
of his or her dual representation, and the agent fully complies with
the requirements of 8 CFR part 292. The itinerary shall specify the
dates of each service or engagement, the names and addresses of the
actual employers, and the names and addresses of the establishments,
venues, or locations where the services will be performed. In
questionable cases, a contract between the employers and the
beneficiary or beneficiaries may be required. The burden is on the
agent to explain the terms and conditions of the employment and to
provide any required documentation.
(3) A foreign employer who, through a United States agent, files a
petition for an H nonimmigrant alien is responsible for complying with
all of the employer sanctions provisions of section 274A of the Act and
8 CFR part 274a.
* * * * *
(4) * * *
(i) * * *
(B) General requirements for petitions involving a specialty
occupation. (1) Before filing a petition for H-1B classification in a
specialty occupation, the petitioner should obtain a certification from
the Department of Labor that it has filed a labor condition application
in the occupational specialty in which the alien(s) will be employed.
If the labor condition application is not initially submitted with the
petition, the petitioner shall be given an opportunity to obtain a
certified labor condition application from the Secretary of Labor and
to submit the certified labor condition application to the Service.
Under no circumstances, however, may the Service approve the petition
prior to submission of a certified labor condition application. The
fact that the certification date on the labor condition application may
be later than the initial filing date of the petition is not a basis on
which to deny the petition.
* * * * *
(iii) * * *
(B) * * *
(1) A certification from the Department of Labor that the
petitioner has filed a labor condition application with the Secretary
of Labor as required under 20 CFR part 655. If the labor condition
application is not initially submitted with the petition, the
petitioner shall be given an opportunity to obtain a certified labor
condition application from the Secretary of Labor and to submit the
certified labor condition application to the Service. In all cases, a
certified labor condition application must be submitted to the Service
before the petition may be adjudicated. The fact that the certification
date on the labor condition application may be later than the initial
filing date of the petition does not warrant the denial of the
petition.
* * * * *
(11) Revocation of approval of petition (i) General. The director
may revoke a petition at any time, even after the expiration of the
petition.
(ii) Automatic revocation. The approval of any petition is
automatically revoked if the petitioner goes out of business, files a
written withdrawal of the petition, or notifies the Service pursuant to
8 CFR part 214 that the beneficiary is no longer employed by the
petitioner.
(iii) Revocation on notice. (A) Grounds for revocation. The
director shall send to the petitioner a notice of intent to revoke the
petition in relevant part if he or she finds that:
(1) Other than through notification in paragraph (h)(11)(ii) of
this section, the beneficiary is no longer employed by the petitioner
in the capacity specified in the petition, or if the beneficiary is no
longer receiving training as specified in the petition;
(2) The statement of facts contained in the petition was not true
and correct;
(3) The petitioner violated terms and conditions of the approved
petition;
(4) The petitioner violated requirements of section 101(a)(15)(H)
of the Act or paragraph (h) of this section; or
(5) The approval of the petition violated paragraph (h) of this
section or involved gross error.
[[Page 30423]]
(B) Notice and decision. The notice of intent to revoke shall
contain a detailed statement of the grounds for the revocation and the
time period allowed for the petitioner's rebuttal. The petitioner may
submit evidence in rebuttal within 30 days of receipt of the notice.
The director shall consider all relevant evidence presented in deciding
whether to revoke the petition in whole or in part. If the petition is
revoked in part, the remainder of the petition shall remain approved
and a revised approval notice shall be sent to the petitioner with the
revocation notice.
* * * * *
(15) * * *
(ii) * * *
(A) * * *
(B) H-1B extension of stay--(1) Alien in a specialty occupation or
an alien of distinguished merit and ability in the field of fashion
modeling. An extension of stay may be authorized for a period of up to
3 years for a beneficiary of an H-1B petition in a specialty occupation
or an alien of distinguished merit and ability. The alien's total
period of stay may not exceed 6 years. The request for an extension
must be accompanied by either a new certification from the Department
of Labor valid for the extension period requested, or a photocopy of
the prior certification from the Department of Labor indicating that
the petitioner has on file a labor condition application valid for the
period of time requested by the petitioner for the particular
occupation. The director may require the petitioner to submit any
evidence which in the director's discretion may be necessary to
establish that the petitioner has employed the alien pursuant to the
terms of the prior petition(s) and labor condition application(s).
* * * * *
Dated: May 29, 1998.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 98-14785 Filed 6-3-98; 8:45 am]
BILLING CODE 4410-10-M
