[Federal Register: June 15, 1999 (Volume 64, Number 114)]
[Proposed Rules]
[Page 32149-32150]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jn99-29]
[[Page 32149]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 214
[INS No. 2003-99]
RIN 1115-AF47
Treatment of Certain H Petitions Filed After the Numerical Cap Is
Reached
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rules.
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SUMMARY: This rule proposes to amend the Immigration and Naturalization
Service's (Service) regulations by allowing the Service to accept and
adjudicate certain petitions submitted after any of the annual
numerical caps for H nonimmigrants have been reached. Under this
proposed rule, petitions that are approved would be assigned a work
start date to begin no earlier than the beginning of the following
fiscal year. This rule is intended to benefit the great majority of
petitioners by relieving them from the burden of refiling a new or
amended petition once the H numerical cap is reached.
DATES: Written comments must be submitted on or August 16, 1999.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC
20536. To ensure proper handling please reference INS No. 2003-99 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: Sandra Schatz, Acting Branch Chief,
Management and Records Liaison, Immigration Services Division,
Immigration and Naturalization Service, 801 I Street, NW., Room 980,
Washington, DC 20536, telephone (202) 616-7991.
SUPPLEMENTARY INFORMATION:
Background
Section 214(g)(1)(A) of the Act sets a cap on the total number of
aliens who may be provided H-1B nonimmigrant classification during any
fiscal year. This section of the Act applies to ``new'' H-1B petitions,
as explained in a Service Notice which is being published elsewhere in
this issue of the Federal Register. In addition, section 214(g)(1)(A)
of the Act sets annual numerical limitations for certain other H
nomimmigrants. Under the Service's current regulations at 8 CFR
214.2(h)(8)(ii)(E), once the total numbers available to a particular H
nonimmigrant classification have been used in a fiscal year, the
Service must reject any new petition for that classification which
contains a request for a work start date prior to October 1 of the
following fiscal year, and refund to the petitioner the accompanying
fee. Under current regulations, such a petitioner may not employ the
alien as a new H nonimmigrant in the remaining portion of the fiscal
year. To employ the alien as a new H nonimmigrant, the petitioner is
required to file a new petition to request a work start date on or
after October 1 of the following fiscal year, when numbers once again
become available.
On December 30, 1997, the Service proposed to amend 8 CFR
214.2(h)(8)(ii)(E) to enable the Service, in its discretion, to adopt
mechanisms other than rejection of petitions filed after the cap had
been reached. See 62 FR 67764 (December 30, 1997). The purpose of the
proposed change was to prevent unnecessary hardship to petitions and to
avoid unnecessary work by the Service in situations where rejecting
petitions was deemed not to be prudent. Id. The December 30 proposal
did not discuss whether any petitioner may be adversely affected by the
proposal. The December 30 proposal was not published as a final rule.
The Service received three comments regarding this specific
proposal in the December 30 rule. All three commenters applauded the
Service's proposal to change the method used to process H petitions
filed after the numerical cap is reached in a fiscal year.
Why Is the Service Proposing This Change to Its Regulations?
In the case of H-1B petitioners, it has been the experience of the
Service that the great majority of petitioners whose petitions were in
the ``pipeline,'' (i.e., on file with the Service) at the time the
numerical cap had been reached, in fact, have opted for a start date on
or after October 1 of the following fiscal year rather than to withdraw
their petitions. For Fiscal year 2000 and beyond, therefore, the
Service is proposing to assign a work start date of no earlier than
October 1 of the following fiscal year for certain petitions which are
filed after the numerical cap is reached. Specifically, petitions
which
contain a request for a work start date prior to the beginning of the
following fiscal year will be assigned an October 1 or later start
date, regardless of the work start date requested in the petition. The
Service believes that this proposal will benefit the great majority of
petitioners by relieving them from the burden of refiling or submitting
a new petition once the cap is reached. This proposal would also ensure
that petitions filed after the cap is reached are treated similarly
to
those petitions that were not adjudicated when the numerical cap was
reached.
In light of the above, the Service believes that only a relatively
small number of petitioners might not wish to have an October 1 or
later work start date. Accordingly, the Service believes that the
current proposed rule is preferable to its earlier proposed regulation
which failed to take into account that the great majority of
petitioners actually have preferred that the Service assign an October
1 work start date in order to avoid additional handling.
Could Any Petitioners Be Adversely Affected by This Proposed
Regulation?
The Service recognizes that certain H-1B petitioners might not wish
to be assigned an October 1 or later work start date, and may therefore
be adversely affected by this proposed regulation. Under the current
regulation, the Service would reject such employers' petitions and
accompanying fees. The proposed regulation, however, would require the
Service to accept all petitions, together with filing fee, for
adjudication and processing, regardless of the petitioner's requested
work start date. Although certain petitioners may not wish to avail
themselves of a work start date later than they requested, they would,
under this proposal, forfeit their filing fee. the Service believes,
nevertheless, that this proposal will benefit the great majority of
petitioners by relieving them from the burden of refiling the petition
once the numerical cap is reached.
The Service notes that this proposed regulation would also apply to
certain other H petitioners, should the respective numerical caps ever
be reached. To date, however, none of the other visa classification
caps have ever even been approached. for this reason, the Service does
not anticipate that this proposal would have any immediate impact on
the other H programs. The Service welcomes comments concerning this
proposed regulation.
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 proposed regulation and, by approving it, certifies that
this rule will not have a significant economic
[[Page 32150]]
impact on a substantial number of small entities because of the
following factors: The proposed procedures are intended to minimize
burdens to the great majority of employers who use the H nonimmigrant
visa program by removing the requirement to refile a new or amend
petition once the numerical cap is reached. In addition, this proposed
rule would ensure consistent treatment of all petitioners whose
petitions have not been adjudicated by the time the numerical cap has
been reached in a fiscal year by assigning all of them an October 1 or
later work start date. This proposal may cause inconvenience, however,
to certain petitioners who might not wish to accept an October 1 or
later work start date.
Unfunded Mandates Reform Act of 1995
This proposed 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 1 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 proposed 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 proposed 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 rule has been
submitted to the Office of Management and Budget (OMB) 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 Civil Justice Reform
This proposed rule meets the applicable standards set forth in
sections 3(a) and (b)(2) of E.O. 12988.
List of Subjects in 8 CFR Part 214
Administrative practice and procedure, Aliens, Employment, Foreign
officials, Health professions, Reporting and recordkeeping
requirements, Students.
Accordingly, part 214 of chapter I of title 8 of the Code 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 revising paragraph (h)(8)(ii)(E) to
read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(8) * * *
(ii) * * *
(E) The Service shall continue to accept for adjudication any new
petition containing a request for a work start date prior to the
beginning for the following fiscal year, together with the accompanying
fee, even if the total numbers made available in a fiscal year have
been used. If the petition is approved, the Service will grant the
petition with a starting date no earlier than October 1 of the
following fiscal year, regardless of the work start date requested in
the petition.
* * * * *
Dated: June 4, 1999.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 99-15033 Filed
6-11-99; 8:45 am]