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43545Federal Register / Vol. 65, No. 135 / Thursday, July 13, 2000 / Proposed Rules

DEPARTMENT OF LABOR

Employment and TrainingAdministration

20 CFR Part 655

RIN 1205–AB24

Labor Certification and PetitionProcess for the TemporaryEmployment of Nonimmigrant Aliensin Agriculture in the United States;Modification of Fee Structure

AGENCY: Employment and TrainingAdministration, Labor.ACTION: Proposed rule; request forcomments.

SUMMARY: The Employment andTraining Administration (ETA) of theDepartment of Labor (Department orDOL) proposes to amend its regulationsrelating to the temporary employment ofnonimmigrant agricultural workers (H–2A workers) in the United States. Theproposed amendments would requireemployers to submit the fees for laborcertification and the associated H–2Apetition with a consolidated applicationform at the time of filing. The proposalalso would modify the fee structure forH–2A labor certification applications.

Concurrently with the publication ofthis proposed rule, the Department ispublishing a final rule setting forth theprocedures and requirements forsubmission and processing of aconsolidated Application for TemporaryAgricultural Labor Certification and H–2A Petition (Form ETA 9079). FormETA 9079 is attached as Appendix A tothe proposed rule and comments arerequested thereon.DATES: Interested persons are invited tosubmit written comments on theproposed rule, on or before August 14,2000.ADDRESSES: Submit written commentsto the Assistant Secretary forEmployment and Training, U.S.Department of Labor, 200 ConstitutionAvenue, NW., Room N–4456,Washington, DC 20210, Attention: JamesH. Norris, Chief, Division of ForeignLabor Certifications.FOR FURTHER INFORMATION: ContactDenis M. Gruskin, Senior Specialist,Division of Foreign Labor Certifications,Employment and TrainingAdministration, 200 ConstitutionAvenue, NW., Room N–4456,Washington, DC 20210. Telephone:(202) 219–5263 (this is not a toll-freenumber.)

SUPPLEMENTARY INFORMATION:

I. Introduction

On October 2, 1998, ETA published inthe Federal Register a Notice ofProposed Rulemaking (NPRM)proposing amendments to ETA’sregulations at 20 CFR part 655, subpartB, relating to the temporary employmentof nonimmigrant agricultural H–2Aworkers in the United States. One ofthose proposed amendments was toimplement a proposed delegation fromthe Commissioner, Immigration andNaturalization Service (INS), to theSecretary of Labor (Secretary) ofauthority to adjudicate petitionscurrently processed by INS under 8 CFR214.2(h)(5), ‘‘Petition for alien toperform agricultural labor or services ofa temporary or seasonal nature (H–2A).’’63 FR at 53244 and 53248 (Oct. 2, 1998).The INS published an NPRM onDecember 7, 1998, proposing to amendits regulations by delegating to theDepartment of Labor such adjudicationof H–2A petitions. 63 FR 67431 (Dec. 7,1998). The Department published a finalrule on June 29, 1999, relating to mostof the amendments it had proposed onOctober 2, 1998. 64 FR 34958 (June 29,1999). However, amendments toimplement the delegation of H–2Apetition authority were not included inthat final rule. At that time, INS had notcompleted the rulemaking necessary todelegate the processing of H–2Apetitions to the Department. Further, anumber of technical issues had to beresolved by INS and the Department toimplement a delegation of H–2Apetition authority to DOL. TheDepartment noted in the preamble to theJune 29 final rule, however, that it wascommitted to completing the necessaryrulemaking and associated proceduralchanges as soon as possible, if INSdelegated to DOL the authority toadjudicate H–2A petitions. Commentsreceived on that issue during the courseof the earlier rulemaking have beenconsidered in the development of thisproposed rule and the concurrentlypublished final rule.

II. Statutory Standard andImplementing Regulation

The decision whether to grant or denyan employer’s petition to importnonimmigrant agricultural workers tothe United States for the purpose oftemporary employment is theresponsibility of the Attorney General orher designee. The Immigration andNationality Act (INA) (8 U.S.C. 1101 etseq.) provides that the Attorney Generalmay not approve a petition from anemployer for employment ofnonimmigrant agricultural workers (H–2A visa holders) for temporary or

seasonal services or labor in agricultureunless the petitioner has applied to theSecretary for a labor certificationshowing that:

(A) There are not sufficient U.S.workers who are able, willing, andqualified, and who will be available atthe time and place needed to performthe labor or services involved in thepetition; and

(B) The employment of the alien insuch labor or services will not adverselyaffect the wages and working conditionsof workers in the United States similarlyemployed.(8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),and 1188.)

The Department of Labor haspublished regulations at 20 CFR part655, subpart B, and 29 CFR part 501 toimplement its responsibilities under theH–2A program. Regulations affectingemployer-provided agricultural workerhousing are in 20 CFR part 654, subpartE, and 29 CFR 1910.42.

III. Change in H–2A Fee StructureThe change in the H–2A fee structure

which this NPRM addresses enhancesthe administrative efficiency andconvenience to employers of filing acombined Application for TemporaryAgricultural Labor Certification and H–2A Petition. This efficiency can best beachieved if employers submit a singlecheck to cover the fees for both theissuance of the labor certification andthe processing of the H–2A petition atthe time the consolidated application issubmitted to the Department.

The proposed proceduralmodification in the method of feepayment would depart from the currentprocess in which the employer pays forthe labor certification after it is issuedand subsequently submits the H–2Apetition to INS together with the INSfiling fee. It is important to note that theproposed rule provides that both thecertification fee and the moneycollected for the H–2A petition wouldbe refunded if the labor certificationwere denied. The Department interpretsthe H–2A statute as permitting thecollection of a fee only if a certificationis issued. In the course of the 1987rulemaking under the H–2A programSenator Simpson, the primary sponsorof the 1986 amendments to the INA,pointed out in response to theDepartment’s proposal to requireemployers to submit a fee with theapplication, that the statute used thelanguage as a ‘‘condition of issuing thecertification’’ and not as a condition ofprocessing the application. See 8 U.S.C.1188(a)(2) (‘‘The Secretary of Labor mayrequire by regulation, as a condition ofissuing the certification, the payment of

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43546 Federal Register / Vol. 65, No. 135 / Thursday, July 13, 2000 / Proposed Rules

a fee to recover the reasonable costs ofprocessing applications forcertification.’’). Since the fee for laborcertification would be returned if theapplication is denied, the moneycollected for the labor certificationwould remain a certification fee, as it ischaracterized in the statute and currentregulations, as opposed to a processingfee. Few fees paid with requests forlabor certification will require a refundas the denial rate has historically beenlow. Moreover, as stated above, theproposed rule provides that the H–2Apetition fee would be returned to theemployer if the certification is denied.Currently, the petition fee is collected asan up-front processing fee by INS and isnot returned to the employer if thepetition is denied. See 8 CFR 103.7. Inthe rare instances when certification isgranted but the petition is denied, thefees would not be returned.

IV. Fee Structure

The proposed rule provides that theconsolidated labor certification and H–2A petition application must beaccompanied by a check or money ordersufficient to cover the fee for the laborcertification and the fee for the H–2Apetition as specified by INS regulationsat 8 CFR 103.7. The Department isproposing a three-tiered laborcertification fee. Employers that fileapplications for 10 or fewer H–2Atemporary workers would be charged$150.00 per certification issued,employers that file applications formore than 10 H–2A workers up to andincluding 99 workers would be charged$250.00 per certification issued, andemployers that apply for 100 workers ormore would be charged $1,000.00 percertification issued. The petition feewould be set at whatever fee is specifiedin INS regulation at 8 CFR 103.7. Thepetition fee is reviewed by INS every 2years and currently is set at $110.00. 63FR 43604 (Aug. 14, 1998). Consistentwith current INS requirements, a jointemployer association would pay onepetition fee and, consistent with currentDOL requirements, pay the appropriatelabor certification fee for each of itsmembers listed in the association’sapplication.

The Department estimates that theproposed three-tiered fee structure forissuance of a labor certification wouldlikely yield about the same revenue fora given number of employers as thecurrent DOL fee structure, whichrequires employers to pay a fee of$100.00 for the issued certification plus$10.00 per H–2A job opportunitycertified. In Fiscal Year 1998, ETAcollected $775,380.00 in fees.

The Department is authorized by theINA, as amended by the ImmigrationReform and Control Act of 1986, torequire as a condition of certification afee to recover the reasonable costs ofprocessing applications for certification.8 U.S.C. 1188(a)(2). The moniescollected under the proposedcertification fee structure will continue,like the current fee structure, to fallsubstantially short of the moniesexpended by ETA to administer the H–2A labor certification program.

ETA has not conducted a study toestablish fees since the 1987 studyreferred to in the preamble to the 1987rule. That study did not include allcosts that could be attributed to the H–2A labor certification program.Specifically, the study did not includethe cost of activities of Stateemployment service agencies, post-certification activities and post-denialactivities at all levels, ETA nationaloffice activities, DOL Office of theSolicitor activities, and DOL Office ofAdministrative Law Judges activities. 52FR at 20499 (June 1, 1987). ETA plansto conduct a study to determine what itexpends to administer the H–2A laborcertification program at the same timeINS will review its petition fee early incalendar year 2002.

As indicated above, fees for H–2Apetitions are established by INS throughnotice and comment rulemaking. See 63FR 1775 (Jan. 12, 1998) and 63 FR 43604(Aug. 14, 1998). INS reviews thepetition fee every two years, and,accordingly, the proposed rule wouldrequire that the fee collected for the H–2A petition be the amount specified inthe INS regulations that are current atthe time the Application for TemporaryAgricultural Labor Certification and H–2A Petition is filed with the Department.It is contemplated that under theadministrative procedures arrived at byINS and ETA to implement thedelegation of H–2A petition authorityfrom INS to the Department, DOL willcollect the petition fee on behalf of INSand will be reimbursed by INS for thecosts involved in processing the H–2Apetition.

Consistent with INS’ proposed rule,the Department’s proposed rule wouldalso provide that if the H–2A petition isapproved, DOL will forward to INS foraction any requests for change of statusor extension of stay pertaining to H–2Apetitions for named aliens made onForm ETA 9079W, Named AlienAddendum.

INS has also delegated to theDepartment the authority to processapplications to change the Consulate orport of entry on an approved petitionswhen DOL has previously processed a

request for temporary agriculturalworkers on INS’ behalf, and to respondto requests for duplicate approvalnotices issued by DOL. Suchapplications shall be made on the ETA9079M, Visa Issuance ChangeAddendum, and accompanied by acheck or money order made payable tothe ‘‘U.S. Department of Labor’’ in theamount specified by INS regulations at8 CFR 103.7 for the I–824, Applicationfor Action on an Approved Applicationor Petition—currently $120.00. The ETA9079M is functionally equivalent to theI–824.

INS has also proposed to authorizeDOL to accept on INS’ behalf any FormsI–102, Application for Replacement/Initial Nonimmigrant Arrival-DepartureDocument, and Forms I–539,Application to Extend/ChangeNonimmigrant status, that are filedconcurrently with DOL’s form ETA–9079. The I–102 is used to obtain areplacement for a lost or mutilatedarrival-departure document and the I–539 is used to extend or change thenonimmigrant status of dependents (H–4’s) of the H–2A nonimmigrant. Thesubmission of any Forms I–102 or I–539must be accompanied by a check madepayable to the ‘‘U.S. Department ofLabor’’ in the amount specified by INSregulations at 8 CFR 103.7. The formsand fees will be forwarded to INS foradjudication after the ETA–9079decision is made.

V. Short-term Extensions ofEmployment

INS is proposing to add automaticallyto every H–2A employer’s petition a 14-day extension grace ‘‘period,’’ and todiscontinue charging a separate fee forsuch short-term extensions. Thus, anemployer’s H–2A petition for anyrequested/certified period ofemployment, if approved, would begranted for the requested/certifiedperiod plus an additional 14 days (orthe length of the labor certification ifissued for less than 14 days). Shouldthis proposal be included in INS’ finalrule, DOL would add correspondingimplementing regulations to Part 655.Comments are requested on such achange. Should this proposal not beincluded in the INS final rule, thecurrent procedures (as described below)would continue, although a rule ofagency procedure would bepromulgated to delegate from INS toDOL the INS functions under theexisting process.

Under the existing regulations andprocedures, an employer seeking toextend the authorized period ofemployment by two weeks or lessapplies to INS for the short-term



extension. 8 CFR 214.2(h)(5)(x) (1999);and 20 CFR 655.106(c)(3)(i) (1999); seealso 214.2(h)(15)(ii)(C) (1999). INScharges a fee of $120.00 for this service.In such circumstances, the employer isnot required to apply for extension ofthe labor certification granted by DOLand is granted a 14 day grace period. Itis the agency’s experience that a smallminority of employers seek short-termextensions and that INS rarelydisapproves such requests. Thus, theproposed change would furtherstreamline the H–2A process for thoseemployers that seek short-termextensions.

An automatic 14-day ‘‘grace period’’extension, as proposed, may encouragesome H–2A employers to understate theoffered period of employment disclosedon their labor certification application(s)and H–2A petition(s), thereby affectingrecruitment of U.S. workers and suchexisting rights under the H–2A programas the ‘‘50 percent rule,’’ the ‘‘three-quarter guarantee,’’ and reimbursementof in-bound and return transportation.U.S. workers must be offeredemployment during the first half (50percent) of the work contract, which isordinarily the work period specified bythe employer on the job offer (see 20CFR 655.103(e) (1999); 29 CFR501.10(d)); covered workers areguaranteed pay for three-quarters of theworkdays offered by the employer underthe work contract (see 20 CFR655.102(b)(6)(i) (1999)), andreimbursement for in-boundtransportation costs on completion andpayment for return transportation oncompletion of the offered employmentunder the work contract (see 20 CFR655.102(b)(5)(i) and (ii) (1999)). Ifadopted DOL would evaluate whetherthe proposed automatic 14-day ‘‘graceperiod’’ extension is treated as offeredemployment for these various purposesand the consequences which occur if aworker declines to continueemployment during the 14-day ‘‘graceperiod’’ extension.

The agency requests comments on theextent, if any, to which the addition ofthe 14-day ‘‘grace period’’ automaticextension, as proposed, impacts U.S.and foreign workers’ rights, includingtheir rights under the underlying workcontract, as well as employers’responsibilities and obligations.

Executive Order 12866The Department has determined that

this proposed rule should be treated asa ‘‘significant regulatory action,’’ withinthe meaning of Executive Order 12866,because of the inter-agency coordinationwith INS. However, this rule is not an‘‘economically significant regulatory

action.’’ because it would not have aneconomic effect on the economy of $100million or more or adversely affect in amaterial way the economy, a sector ofthe economy, productivity, competition,jobs, the environment, public health orsafety, or State, local, or tribalgovernments or communities.

Regulatory Flexibility Act

The Department of Labor has notifiedthe Chief Counsel for Advocacy, SmallBusiness Administration, and made thecertification pursuant to the RegulatoryFlexibility Act at 5 U.S.C. 605(b), thatthe proposed rule would not have asignificant economic impact on asubstantial number of small entities.The proposed amendments wouldenhance the administrative efficiencyand convenience to employers byhaving them file a combinedApplication for Temporary AgriculturalLabor Certification and H–2A Petitionwith one agency, as opposed to twoforms filed with two agencies as atpresent. The total number of employersutilizing H–2A workers is onlyapproximately 4,400.

Therefore, the proposed amendmentswould not have a significant economicimpact on a substantial number of smallentities.

Unfunded Mandates Reform Act of 1995

This proposed rule would not resultin the expenditure by State, local andtribal governments, in the aggregate, orby the private sector, of $100 million ormore in any 1 year, and it will notsignificantly or uniquely affect smallgovernments. Therefore, no actions arenecessary under the provisions of theUnfunded Mandates Reform Act of1995.

Small Business Regulatory EnforcementFairness Act of 1996

This proposed rule is not a major ruleas defined by section 804 of the SmallBusiness Regulatory Enforcement Act of1996. It would not result in an annualeffect on the economy of $100 millionor more; a major increase in costs orprices; or significant adverse effects oncompetition, employment, investment,productivity, innovation, or on theability of United States-basedcompanies to compete with foreign-based companies in domestic andexport markets.

Paperwork Reduction Act

Title: Form ETA 9079 Application forTemporary Agricultural LaborCertification and H–2A Petition.

Summary: Section 218 of theImmigration and Nationality Act (Act)provides that an H–2A petition to

import an H–2A worker may not beapproved by the Attorney Generalunless the petitioner has applied to theSecretary of Labor for a certificationthat: (1) There are not sufficient workerswho are able, willing and qualified, andwho will not be available at the timeand place needed to perform the laboror services involved in the petition; and(2) the employment of the alien in suchlabor or services will not adverselyaffect the wages and working conditionsof workers in the United States similarlyemployed.

Section 214(c) of the Act provides theAttorney General with the authority todetermine the admission of an alien forsuch and under such conditions as theattorney general may prescribe byregulation. The Attorney general hasdelegated her responsibilities undersection 214(c) of the Act to theCommissioner, Immigration andNaturalization Service.

Currently, employers file an ETAForm 750 with the Department to obtaina labor certification and they file thelabor certification in support of the I–129 to obtain a petition from INS.

Need: The current process has beencriticized by some employers ascomplicated hard to understand, andtoo time consuming. In some instancesthe result has been that foreign workershave not arrived by the first date of theemployer’s need. In an effort to reducethe number of steps, paperwork andtime necessary to obtain foreign workersnecessary to perform critical agriculturalfunctions the Department of Labor andINS issued final rules simultaneouslywith this proposed rule transferring thefunction of adjudicating H–2A petitionsto the Department of Labor.

To streamline the process of obtainingcertifications and petitions, the INS andDOL have developed the form ETA 9079which includes all the informationnecessary to INS and DOL to administerand monitor the certification andpetition process. The new form ETA9079, and addendums thereto, willreplace Form ETA 750 and INS Form I–129 for all H–2A filings. It is envisagedthat the process will enable employersto obtain foreign agricultural workers byimplementation of a one stop filingwhereby all forms and supportingdocumentation are submitted to DOL.Currently employers have to complete atwo step process to obtain a laborcertification and petition whichnecessitates the filing of different formswith the Department and theImmigration and Naturalization Service.The final rule when it becomes effectiveand the Form ETA 9079 when it isapproved will result in employers beingable to obtain both the labor



certification and petition for aliensoutside the United States from theDepartment. The Department of Justiceestimates that transferring the authorityto adjudicate petitions to DOL willresult in a combined reduction of 18 to27 days in the time now taken frominitial filing with DOL to completion ofthe petition processing by INS.

In cases involving named aliens,employers would file with theDepartment an ETA 9079W, NamedAlien Addendum. The proposed ruleissued by INS would require the aliento sign the form if an extension of stayor change of status is requested. If thepetition is approved, this form will besent to INS for a determination on anyextension of stay or change of statusrequested for the alien.

INS has also in the interests of furthersimplifying the petition processdelegated to DOL the responsibility ofprocessing the small number of requestsinvolving changes in the Consulate orport of entry designated on the petitionwhen it was approved, and issueduplicate approval notices it has issued.To make such requests the employerwill be required to file form ETA9079M, Visa Issuance ChangeAddendum, with the fee specified byINS regulations at 8 CFR 103.7 for theI–824, Application for Action on anApproved Application or Petition. The9079M is functionally equivalent to theI–824.

Respondents and proposed frequencyof response: ETA estimates that 2,270sole employers and joint-employerassociations filing on behalf of memberemployers will submit about 1.3 FormsETA 9079 each year, for a total of 2,950forms filed annually. The actual numberfiled will depend upon the needs of theemployers, which are dependent in partupon agricultural conditions, such ascrop maturation.

Estimated total annual burden forfiling: ETA estimates that approximately2,950 Forms ETA 9079 will besubmitted each year. The reportingburden is estimated to average 11⁄2hours. This estimate includes the timefor reviewing instructions, searchingexisting information/data sources,gathering and maintaining informationand completing and reviewing theapplication.

The preparation of the applicationform may be done by a companyemployee, official, proprietor, or chiefexecutive officer. Therefore, the salariescould range from about $5.15 an hourfor an employee to $300.00 for aproprietor or chief executive officer of alarge farming enterprise. The averagehourly remuneration is estimated to be

$25.00. This results in the estimatedannual cost to respondents (employers)for filing the ETA 9079, ‘‘Applicationfor Temporary Agricultural LaborCertification and H–2A Petition’’ of$110,625 (2,950 × 11⁄2 × $25.00).

The public is invited to providecomments on this informationcollection requirement so that theDepartment of Labor may:

(1) Evaluate whether the proposedcollections of information are necessaryfor the proper performance of thefunctions of the agency, includingwhether the information will havepractical utility;

(2) Evaluate the accuracy of theagency’s estimates of the burdens of thecollections of information, including thevalidity of the methodology andassumptions used;

(3) Enhance the quality, utility andclarity of the information to becollected; and

(4) Minimize the burden of thecollections of information on those whoare to respond, including through theuse of appropriate automated,electronic, mechanical, or othertechnological collection techniques orother forms of information technology,e.g., permitting electronic submission ofresponses. Written comments should besent to the Office of Information andRegulatory Affairs, Office ofManagement and Budget, Attention:Desk Officer for Employment andTraining Administration, U.S.Department of Labor, Washington, D.C.20503.

Catalogue of Federal DomesticAssistance Number

This program is listed in the Catalogue ofFederal Domestic Assistance as Number17.202, ‘‘Certification of Foreign Workers forAgricultural and Logging Employment.’’

List of Subjects:

Administrative practice andprocedure, Agriculture, Aliens,Crewmembers, Employment,Enforcement, Forest and forest products,Guam, Health professions, Immigration,Labor, Longshore work, Migrant labor,Nurse, Penalties, Registered nurse,Reporting and record keepingrequirements, Specialty occupation,Students, Wages.

Proposed Rule

Accordingly, part 655 of Chapter V oftitle 20, code of Federal Regulations isamended as follows:

PART 655—[AMENDED]

1. The authority citation for part 655continues to read as follows:

Authority: Section 655.0 issued under 8U.S.C. 1101(a)(15)(H)(i) and (ii), 1182(m) and(n), 1184, 1188, and 1288(c) and (d); 29U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101–238, 103 Stat. 2099, 2103 (8 U.S.C. 1182note); sec. 221(a), Pub. L. 101–649, 104 Stat.4978, 5027 (8 U.S.C. 1184 note); P.L. 103–206, 107 Stat 2419; and 8 CFR 214.2(h)(4)(i).

Section 655.00 issued under 8 U.S.C.1101(a)(15)(H)(ii), 1184, and 1188; 29 U.S.C.49 et seq.; and 8 CFR 214.2(h)(4)(i).

Subparts A and C issued under 8 U.S.C.1101(a)(15)(H)(ii)(b) and 1184; 29 U.S.C. 49 etseq.; and 8 CFR 214.2(h)(4)(i).

Subpart B issued under 8 U.S.C.1101(a)(15)(H)(ii)(a), 1184, and 1188; and 29U.S.C. 49 et seq. , and 8 CFR 103.1(f)(iii)(J),(W), 214.2(h)(5), (11) and (12).

Subparts D and E issued under 8 U.S.C.1101(a)(15) (H)(i)(a), 1182(m), and 1184; 29U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L.101–238, 103 Stat. 2099, 2103 (8 U.S.C. 1182note).

Subparts F and G issued under 8 U.S.C.1184 and 1288(c) and (d); and 29 U.S.C. 49et seq.; and P.L. 103–206, 107 Stat 2419.

Subparts H and I issued under 8 U.S.C.1101(a)(15)(H)(i)(b), 1182(n), and 1184; 29U.S.C. 49 et seq.; and sec. 303(a)(8), Pub. L.102–232, 105 Stat. 1733, 1748 (8 U.S.C. 1182note).

Subparts J and K issued under 29 U.S.C. 49et seq.; and sec. 221(a), Pub. L. 101–649, 104Stat. 4978, 5027 (8 U.S.C. 1184 note).

§ 655.100 [Amended]

2. Section 655.100 is amended byrevising paragraph (a)(4)(iii) to read asfollows:

§ 655.100 Overview of this subpart anddefinition of terms.

(a) * * *

(4) * * *

(iii) Fees—(A) General. Fees must besubmitted with the Form ETA 9079Application for Temporary AgriculturalLabor Certification and H–2A Petition.The fees which must accompany theform must include the fee for theissuance of the labor certification, andthe fee required for the H–2A petition asspecified by INS regulations at 8 CFR103.7. The amount of the laborcertification fee is dependent upon thenumber of job openings for which theemployer requests certification. Thelabor certification fee for applicationsfor 10 job openings or fewer is $150.00,the certification fee for applications formore than 10 job openings up to andincluding 99 job openings is $250.00,and the certification fee is $1,000 whenthe application is for 100 job openingsor more. The INS fee was set at $110.00as of October 13, 1998 and is subject torevision by INS every two years.Requests for changes in the Consulate or



port of entry designated on the petitionwhen it was approved or to request aduplicate of a lost approval notice shallbe made by filing an ETA 9079M, whichis functionally equivalent to INS FormI–824 (Application for Action on anApproved Application or Petition), andthe fee specified in INS regulations at 8CFR 103.7 with DOL. As of October 13,1998, the INS fee for the Form I–824was set at $120.00. INS has authorizedDOL to accept on behalf of INS anyForms I–102, Application forReplacement/Initial NonimmigrantArrival-Departure Document, and FormsI–539, Application to Extend/ChangeNonimmigrant Status, which are filedconcurrently with the DOL’s new formETA 9079. The submission of any FormsI–102 or I–539 must be accompanied bya check made payable to the ‘‘U.S.Department of Labor’’ in the amountspecified by INS regulations at 8 CFR103.7. Fees will be deposited in aspecial account while the application isbeing processed and adjudicated. If thelabor certification is denied, all fees willbe refunded. If certification is granted,but the petition is denied, the fees willnot be refunded.

(B) Payment. Payment must be madeby check or money drawn on a financialinstitution in the United States andpayable to the ‘‘U.S. Department ofLabor’’ in United States currency. Acharge of $30.00 will be imposed if acheck in payment of a fee is not honoredby the financial institution on which itis drawn and, if a certification has notbeen issued, processing of theapplication will be suspended until acertified check or money order madepayable to the U.S. Department of Laboris received by the Department.

(C) Application and Petition. Feesmust be paid at the time the applicationis filed as follows:

(1) Sole employers filing a Form ETA9079—Application for TemporaryAgricultural Labor Certification and H–2A Petition shall submit with theirapplication a single check or moneyorder made payable to the ‘‘U.S.Department of Labor’’ for the totalamount of the required fees to include:

(i) A certification fee of $150.00 whenthe application is for 10 job openings orfewer, $250.00 when the application isfor more than 10 openings up to andincluding 99 job openings, or $1,000when the application is for 100 jobopenings or more;

(ii) The fee required to pay for theprocessing of the H–2A petition asspecified in INS regulations at 8 CFR103.7.

(2) In the case of a joint employerassociation filing a single Form ETA9079—Application for Temporary

Agricultural Labor Certification and H–2A Petition on behalf of its members,the application shall be accompanied bya single check or money order madepayable to the ‘‘U.S. Department ofLabor’’ for the total amount of requiredfees. The amount of the check or moneyorder must include:

(i) A certification fee of $150.00 foreach member applying for 10 jobopenings or fewer, $250.00 for eachmember applying for more than 10 jobopenings up to and including 99 jobopenings, and $1000.00 for eachmember applying for 100 or more jobopenings. The joint employerassociation shall not be charged aseparate fee; and

(ii) The fee required for the H–2Apetition filed by the joint employerassociation as specified by the INSregulations at 8 CFR 103.7.

(3) In the case of an employerassociation acting as an agent for itsemployer-members in filing ofindividual applications by its members,each Form ETA 9079—Application forTemporary Agricultural LaborCertification and H–2A Petition shall beaccompanied by a single check ormoney order made payable to the ‘‘U.S.Department of Labor’’ for an amountsufficient to include:

(i) A certification fee of $150.00 fromeach member applying for 10 jobopenings or fewer, $250.00 from eachmember applying for more than 10 jobopenings up to and including 99 jobopenings, and $1,000.00 from eachmember applying for 100 or more jobopenings;

(ii) The fee required for the processingof the H–2A petition from each memberas specified by INS regulations at 8 CFR103.7.

(D) INS Forms I–102 and I–539. FormsI–102, Application for Replacement/Initial Nonimmigrant Arrival-DepartureDocument, and Forms I–539,Application to Extend/ChangeNonimmigrant Status, which are filedconcurrently with the DOL’s form ETA9079 must be accompanied by a checkmade payable to the ‘‘U.S. Departmentof Labor’’ in the amount specified byINS regulations at 8 CFR 103.7.

(E) Refunds. (1) If a labor certificationis denied, all fees will be refunded tothe employer or association asappropriate. If a labor certification ispartially denied a refund shall be made,if appropriate, in accordance with thefee schedule in paragraph (a)(4)(iii)(C) ofthis section. If the certification isgranted whole or in part, but thepetition is denied, no refund will bemade of the petition fee.

(2) If an amendment to decrease thenumber workers is made prior to an RA

certification, a refund shall be made, ifappropriate, in accordance with the feeschedule in paragraph (a)(4)(iii)(C) ofthis section.

(F) Increase in Number of Workers.Amendments to applications to increasethe number of workers requested madeprior to an RA certificationdetermination shall be accompanied byan increase in fees that are inaccordance with the fee schedule inparagraph (a)(4)(iii)(B) of this section.Amendments to increase the number ofworkers requested shall not beprocessed if they are not accompaniedby a check made out to the ‘‘U.S.Department of Labor’’ sufficient to coverany increase in fees required due to theincrease in workers requested.

(G) Applications for Change inConsulate or to Obtain DuplicateApproval Notice. Applicationsrequesting changes in the notification tothe Consulate or port of entrydesignated on an approved petition, orto request a duplicate approval notice,shall be filed on ETA Form 9079M, VisaIssuance Change Addendum, with theRA who originally processed the case,and must be accompanied by a check ormoney order made payable to the ‘‘U.S.Department of Labor’’ in the amountspecified by INS regulations at 8 CFR103.7.* * * * *

3. Section 655.101 is amended byremoving the period at the end ofparagraph (b)(3) and adding in lieuthereof the phrase ‘‘; and’’, and byadding new paragraphs (b)(4) and (i) toread as follows:

§ 655.101 Temporary alien laborcertification applications and petitions.

* * * * *(b) * * *(4) A check or money order for the fee

in accordance with § 655.100(a)(4)(iii).* * * * *

(i) Changes of status and extensionsof stay. If the H–2A petition is granted,any requests to change nonimmigrantstatus or for extension of stay for namedbeneficiaries made on the Form ETA9079W will be sent by ETA to INS,which will make determinations aboutthe named beneficiaries’ eligibility tochange nonimmigrant status oreligibility for extension of stay.

§ 655.103 [Amended]

4. Section 655.103 is amended byremoving paragraph (h).

§ 655.106 [Amended]

5. Section 655.106 is amended byremoving paragraph (b)(2).



Signed at Washington, DC, this 7th day ofJuly, 2000.Raymond L. Bramucci,Assistant Secretary of Labor for Employmentand Training.

Appendix 1 (Not to be codified in theCFR): Form ETA 9079

Printed below is a copy of Form ETA9079.BILLING CODE 4510–30–P



































































[FR Doc. 00–17642 Filed 7–12–00; 8:45 am]BILLING CODE 4510–30–C


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Federal Register /Vol. 65, No. 135/Thursday, July 13, 2000 ... · PDF fileFederal Register/Vol. 65, No. 135/Thursday, ... Modification of Fee Structure ... No. 135/Thursday, July 13,