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Delegation of the Adjudication of Certain Temporary Agricultural Worker (H-2A) Petitions, Appellate and Revocation Authority for Those Petitions to the Secretary of Labor

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Immigration and Naturalization Service, Justice.


Final rule; delay of effective date.


The Immigration and Naturalization Service (Service) is delaying, for the second time, the effective date of a final rule previously published in the Federal Register on July 13, 2000, at 65 FR 43528-43534, which delegated the adjudication of certain petitions for agricultural workers (H-2A) to the United States Department of Labor (DOL). This action is necessary to allow additional time for the DOL to effectively implement the delegation of authority, develop new systems and procedures, and to train and brief members of the effected public and the employment and training community in the new systems and procedures.


The effective date for the regulation published on July 13, 2000, at 65 FR 43528-43534, amending 8 CFR Parts 103 and 214, which was delayed from November 13, 2000, until October 1, 2001, by regulation published in the Federal Register on November 13, 2000, at 65 FR 67616-67617, is further delayed until October 1, 2002.

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John W. Brown, Adjudications Officer, Business and Trade Services Branch, Adjudications Division, Immigration and Naturalization Service, 425 I Street NW., Room 3214, Washington, DC 20536, telephone (202) 353-8177.

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Rulemaking Delegating H-2A Authority to DOL and First Extension

On July 13, 2000, the Service published in the Federal Register at 65 FR 43528-43534 a final rule (INS No. 1946-98) delegating to the DOL the authority to adjudicate certain H-2A petitions for the temporary employment of nonimmigrant aliens in agriculture in the United States. The final rule, which amended 8 CFR parts 103 and 214, was to take effect on November 13, 2000.

Also on July 13, 2000, the DOL published a final rule at 65 FR 43538 with an effective date of November 13, 2000, implementing the above-mentioned delegation of authority from the Service to the DOL.

On November 13, 2000, the Service at 65 FR 67616 published a final rule; and DOL at 65 FR 67628 published an interim final rule delaying the effective date of their respective July 13, 2000, H-2A rules until October 1, 2001.

Rulemaking Regarding Procedures for Processing H-2A Petitions

On July 13, 2000, and concurrently with the H-2A delegation of authority rule (INS No. 1946-98), the Service published a proposed rule for comment (INS No. 2059-00) proposing among other things, that all petition requests, extensions of stay, and change of status petitions must be filed with DOL and that the current Service petition fee would be collected by DOL as part of the combined fee.

Concurrently with publication of INS No. 2059-00, the DOL published at 65 FR 43545 a companion notice of proposed rulemaking (NPRM) setting forth implementation measures necessary for the successful implementation of the delegation of authority to adjudicate petitions.[1]

On August 17, 2000, at 65 FR 50166 the Service reopened and extended the comment period for INS No. 2059-00. Also on August 17, 2000, at 65 FR 50170 the DOL reopened and extended the comment period on its NPRM that is a companion to INS No. 2059-00.

Additional Information Needed Before H-2A Delegation Rules Can Be Finalized

Commenters raised a number of issues about the proposed rules. The comments received by the DOL as a result of the August 17, 2000, reopening and extension of the proposed rule did not provide sufficient information to permit the DOL to draft a final rule. As a result, the DOL has decided to reopen and extend the comment period on its proposed rule published at 65 FR 43545 (July 13, 2000). In addition, DOL intends to hold informal briefings to obtain additional information necessary to address the concerns of commenters and resolve a number of issues raised during the initial comment period on its proposed rule.

Finalizing both the Service and DOL proposed rules is essential to the effective implementation of the Service delegation of authority to the DOL to adjudicate petitions for temporary employment of nonimmigrant aliens in the United States. Allowing the Service's final rule to become effective without finalizing the action on the proposed rule published by the DOL would lead to administrative uncertainty and result in confusion on the part of employers, agricultural workers, and other interested parties. In response to DOL's intended actions to reopen and extend the comment period on the July 13, 2000, proposed rule and their additional plans to hold informal briefings, the Service has concluded that it is necessary to delay the effective date of the final rule until the rulemaking on the DOL companion proposal is completed. Therefore, the Service is delaying the effective date of the July 13, 2000, final rule until October 1, 2002.

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Dated: September 25, 2001.

James W. Ziglar,

Commissioner, Immigration and Naturalization Service.

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1.  Among the DOL implementation measures was a new form, Form ETA 9079, Application for Alien Employment Certification and H-2A Petition, which consolidated two current forms, Form ETA 750, Application for Alien Employment Certification, and Service Form I-129, Petition for Nonimmigrant Workers. The NPRM also set forth the implementation of a new fee schedule to collect a combined fee for processing the petition and labor certification application. It is contemplated that under the administrative procedures developed by the Service and the Employment and Training Administration to implement the delegation of the petition authority from the Service to the DOL, the DOL will collect the petition fee on behalf of the Service and will be reimbursed by the Service for the costs involved in processing the H-2A petition.

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[FR Doc. 01-24331 Filed 9-25-01; 2:04 pm]