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Proposed Rule

Labor Certification and Petition Process for Temporary Agricultural Employment of Nonimmigrant Workers in the United States (H-2A Workers); Modification of Fee Structure; Reopening and Extension of Comment Period

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Employment and Training Administration, Labor.


Proposed rule; reopening and extension of comment period.


This document reopens and extends the period for filing comments on the proposed rule that would require employers to submit fees for labor certification and the associated H-2A petition with a consolidated application form at the time of filing. The proposed rule also would modify the fee structure for H-2A labor certification applications. This action is once again being taken to permit additional comment from interested persons.


Interested persons are invited to submit written comments on or before October 29, 2001.


Submit written comments to the Assistant Secretary for Employment and Training, U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4318, Washington, DC 20210, Attention: Dale Ziegler, Chief, Division of Foreign Labor Certifications.

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Charlene Giles; telephone 202-693-2950 (this is not a toll-free number).

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In the Federal Register of July 13, 2000, (65 FR 43545) we published a notice requesting comments on a proposed rule to require employers to submit the fees for temporary alien agricultural (H-2A) labor certification and the associated non-immigrant H-2A petition with a consolidated application form at the time of filing. The proposal also would modify the fee structure for H-2A labor certification applications. On August 17, 2000, the comment period was reopened and extended. 65 FR 50170. Because of comments received during the comment period and continuing interest in the proposal, it is desirable to reopen the comment period for all interested persons. Therefore, the comment period for the proposed rule amending 20 CFR part 655, subpart B (Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A Workers) is reopened and extended until October 29, 2001.

What Comments Did the Department Receive on the Proposed Rule?

During the reopened comment period, the Department of Labor (Department or DOL) received fourteen additional written comments to the proposed rule. The comments were from agricultural growers and associations, farmworker advocacy groups, and other interested parties. The comments generally were divided among four categories, Immigration and Naturalization Service (INS) Issues, DOL Issues, Fee Structure, and the proposed ETA-9079 Form. The following is a discussion of the comments and the Department's responses:

1. Overnight Delivery

Some commenters believe the overnight delivery requirement is not practical. This is a requirement the Department has placed upon itself and is not intended to be mandated for employers filing labor certifications. In order to allow Department staff to review and process certification requests on a timely basis, it is necessary to forward application packets to the Employment and Training Administration (ETA) Regional Offices from the ETA Service Centers on an overnight basis.

2. Fourteen-Day Grace Period

Some commenters objected to the fourteen-day grace period, (i.e., the addition of 14 days of certified employment to the period requested), stating it may have an effect on the employer's duty to guarantee three-fourth's of the offered work (3/4 guarantee) and the employer's duty to accept U.S. workers who seek employment through 50 percent of the work contract period (50-percent rule).

In view of the issues raised by commenters concerning the possible effects of the 14-day grace period on the employer's 3/4 guarantee and the administration of the 50-percent rule, the Department is seeking additional comments on short-term extensions of 14 days or less. One possible approach would be not to make 14-day extensions automatic, but to provide that ETA would grant such extensions if an employer applies for an extension of 14 days or less directly to the appropriate Regional Administrator.

3. Fee Structure

Some commenters recommended that the fees should be higher to generate Start Printed Page 49329additional monies to sustain the program. The Department lacks the statutory authority to retain H-2A labor certification fees ( 20 CFR 656.32).

4. ETA Form 9079

A number of the comments addressed the proposed consolidated certification and petition form.

(a) Style and Layout. Some commenters objected to the form for a variety of reasons, including comments stating that Form 9079 is too burdensome, time-consuming, and confusing. As a result of these comments, the Department is developing a more “user-friendly” version of Form 9079, which will be published for public comment. As part of this revision, as requested by commenters, space will be provided on the form indicating that the employer is represented by counsel.

(b) Data Collection. Some commenters objected to the amount of information requested on the new form, comparing it to the existing Form ETA-750. This is not an accurate comparison, since DOL now is performing some of the functions previously performed by INS. Thus, in addition to the ETA-750, the proposed ETA 9079 replaces INS petition Form I-129, resulting in an overall paperwork reduction for employers.

(c) Circles and Boxes. Some commenters stated that the use of circles and boxes on the ETA 9079 is inconsistent. This will be addressed on the newly revised Form 9079.

(d) Redundant Information. Some commenters stated that ETA is requesting the same information of employers on both the ETA 9079 and the ETA 790 job order with respect to crop and wage information. The new Form 9079 will address this concern by not capturing crop and wage activity on both forms.

(e) Multiple Languages. Some commenters asked that the ETA 9079 be translated into other languages in addition to English. Since the application form is prepared by agricultural employers, DOL does not anticipate that the target population will require language assistance. To the extent feasible, local ES offices, particularly those with bilingual (English-Spanish) staff, will do their best to assist those employers in need of such assistance. Foreign language assistance is provided to U.S. workers recruited through the Employment Service System.

(f) Addendum C. Confusion about filing of the ETA From 9079 Addendum C as to whether it should be filed up front or after acceptance. Instructions on page 43553 which include a chart indicates Addendum C may be submitted any time after acceptance letter and 5 days prior to certification. Addendum C refers to Consulate locations from where the foreign workers will be processed and issued visas to enter the United States. If workers cannot be located in one consulate office, the employer needs the option of requesting worker from another consulate.

(g) Number of Workers. Some commenters were confused about where on the ETA 9079 the total number of workers is specified. Worker requested information is found on page 1, number II and number III, of the ETA 9079.

(h) Shared Housing. Some commenters asked where on the ETA 9079 a sole employer can indicate that it is sharing housing. This information is not collected using Form ETA 9079. This information is collected on form ETA 790.

(i) Web-Based Form. Some commenters suggested that the forms for the program should be accessible on the World Wide Web. A website is currently under development. which will have a web-accessible on-line application form, allowing applicants to register demographic and static information that can be used to pre-fill application forms, thus reducing applicant's data entry requirements. For those forms that will require signatures, the applicant will be able to print the completed form at their local printer. Applicants would be required to sign the form and then send it in to DOL along with any associated fees.

(j) Worksite Transfers. Some commenters stated that the new form requires transfers to more than one worksite to be specified before the actual places are known to employers. This transfer information has never been tracked by DOL and under the new system the information will no longer be gathered by Form 9079.

(k) General Comments. The Department is seeking specific comments regarding Form 9079. Commenters are requested to specifically indicate what they like or dislike about Form 9079. Specific comments will be addressed by the Department when Form 9079 is redeveloped. As stated above, it will be published for public comment.

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Signed at Washington, DC, this 24th day of September, 2001.

Emily Stover DeRocco,

Assistant Secretary for Employment and Training.

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[FR Doc. 01-24207 Filed 9-26-01; 8:45 am]