Comment Submitted by Naomi E. Perman, Perman Law Firm

This purpose of this comment is to oppose the proposed rule change in Section D, Number of DHS Docket No. USCIS- 2007-0058, which would preclude employers from filing H-2B petitions with the USCIS, unless the Secretary of Labor or the Governor of Guam has granted a temporary labor certification. It is understandable that the USCIS has determined that the USDOL should have the authority to determine whether an employer’s ETA 750A, and supporting documentation establishes that H-2B non- agricultural temporary worker will not displace U.S. workers and the H- 2B employment will not adversely affect the wages and the working conditions of U.S. workers, criteria which must be met to merit a certification. However, it is also important to remember that the USDOL will also deny ETA 750A Application on the grounds that the job offered is less than full-time, even of the employer can document that the ETA 750A meets all of the other requirements for certification. Under these circumstances, the USCIS has approved H-2B petitions filed with Non-Determination Notices, after certification by the AAO, if the only apparent ground for the decision not to certify is that the job offered is less than full-time. Promulgation of the proposed rule, which would preclude employers from obtaining H-2B workers who are offered less than full-time seasonal and temporary employment, would inflict significant and irreparable hardship to small, not for profit organizations, such as figure skating clubs, that offer seasonal recreational programs to children and youth. Such programs have become institutions in small towns in remote areas of the United States, where there are limited recreational activities for children and youth. These organizations typically do not have the need or the budget for full-time seasonal and temporary employees, but are committed to complying with the other requirements of the H-2B program. Under these circumstances, employers should be permitted to submit “countervailing evidence” to the USCIS that establishes qualified workers for the position offered are not available, that job offer is bona fide, that the terms and conditions of employment are consistent with the nature of the occupation, activity, and industry in the US, that the salary offer meets or exceeds the prevailing wage, and that the position offered is seasonal and temporary. The H-2B program is critical to the continued success of small, non-profit community organizations that rely of seasonal and temporary workers to staff recreational programs, when skilled US workers are not available for the seasonal and temporary positions offered. Therefore, it is requested that the proposed rule be revised to permit the USCIS to adjudicate and approval H-2B petitions that received Non-Determination Notices from the USDOL for the sole reason that the job offered is part-time.