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[Federal Register: February 29, 2000 (Volume 65, Number 40)]
[Rules and Regulations]
[Page 10678-10685]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29fe00-4]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103, 214, and 299
[INS 1962-98]
RIN 1115-AF31
Petitioning Requirements for the H-1B Nonimmigrant Classification
Under Public Law 105-277
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This final rule adopts with amendments the interim rule that
was published by the Immigration and Naturalization Service (Service)
on November 30, 1998. The interim rule implemented certain provisions
of the American Competitiveness and Workforce Improvement Act of 1998
(ACWIA) by amending the Service's regulations to: Reflect an additional
$500 filing fee for certain H-1B petitions filed on or after December
1, 1998, describe the organizations that are exempt from the new fee
requirements, and reflect the new annual numerical limits on H-1B
classifications.
This final rule discusses the comments received in response to the
interim rule and adopts as final the regulatory amendments contained in
the interim rule. In addition, this final rule serves as public notice
that Form I-129W, ``H-1B Data Collection and Filing Fee Exemption,''
has been revised and approved for use following the Service's request
for emergency approval that was published in the Federal Register on
October 7, 1999 at 64 FR 54646.
DATES: This final rule is effective March 30, 2000. On March 30, 2000,
revised Form I-129W must be filed concurrently with all H-1B petitions.
FOR FURTHER INFORMATION CONTACT: John W. Brown, Adjudications Officer,
Adjudications Division, Immigration and Naturalization Service, 425 I
Street NW., Room 3214, Washington, DC 20536, telephone (202) 353-8177.
SUPPLEMENTARY INFORMATION:
Background
What Is an H-1B Nonimmigrant Alien?
An H-1B nonimmigrant is an alien employed in a specialty occupation
or as a fashion model of distinguished merit and ability. A specialty
occupation is an occupation that requires theoretical and practical
application of a body of specialized knowledge and attainment of a
bachelor's or higher degree in the specific specialty as a minimum for
admission into the United States.
How Does ACWIA Affect the H-1B Nonimmigrant Classification?
On October 21, 1998, President Clinton signed the ACWIA into law,
Public Law 105-277, Div. C, Title IV, 112 Stat. 2681-641. The
legislation amended and created several statutory provisions relating
to the H-1B nonimmigrant classification. These amendments include,
among others:
(1) Revisions to the attestation requirements for labor condition
applications (LCA) under section 212(n) of the Immigration and
Nationality Act (Act);
(2) Definitions of violations of LCA conditions and new penalties
for such violations;
[[Page 10679]]
(3) Amendments to prevailing wage computations for academic and
research organizations; and
(4) Data collection and reporting requirements.
Did the Service Publish a Rule Prior to Issuing This Final Rule?
On November 30, 1998, the Service published an interim rule in the
Federal Register (FR), at 63 FR 65657 that implemented only the
provisions of section 414(a) and 415(a) of the ACWIA. Specifically, the
regulation addressed the new fee for United States employers filing
petitions for H-1B nonimmigrant aliens and described the organizations
that are exempt from filing this new fee. The interim rule also revised
the Service's regulation at Sec. 214.2(h)(8)(i)(A) to reflect an
increase in the annual limitation on the number of aliens that can be
granted an H-1B visa or accorded H-1B status. Written comments were to
be received on or before January 29, 1999. The Service received eight
comments from individuals and organizations in response to the interim
rule.
What Specific Provisions of the ACWIA Were Contained in the Interim
Rule?
Section 414(a) of the ACWIA provides that United States employers
must pay the $500 filing fee when they file H-1B petitions on or after
December 1, 1999 and before October 1, 2001, for the following
purposes;
(1) An initial grant of H-1B status under section
101(a)(15)(H)(i)(b) of the Act;
(2) An extension of stay for individuals currently in H-1B status
(unless the employer previously has obtained an extension for such
alien); or
(3) Authorization for a change in employers for aliens currently in
H-1B status.
Section 415 of the ACWIA also creates a number of exemptions to the
filing of the $500 fee. The organizations exempt from paying the $500
fee are:
Institutions of higher education, as defined in section
101(a) of the Higher Education Act of 1965, or related or affiliated
nonprofit entities; and
Nonprofit research organizations or Governmental research
organizations.
The Service proposed definitions for the terms ``nonprofit'' and
``research'' and the phrase ``related or affiliated.'' In drafting
these definitions the Service drew on generally accepted definitions of
the terms as well as definitions contained in the regulations of the
Internal Revenue Service and the Small Business Administration.
In addition, the Service created Form I-129W, now called the ``H-1B
Data Collection and Filing Fee Exemption,'' to be filed along with the
petition in order for petitioners to be better able to determine if
they were exempt from the $500 filing fee. The form also allows the
Service to record information on employers that qualify for the
exemption, and to collect data for the quarterly congressional reports
required by section 416(c) of the ACWIA.
What Is the Purpose of This Final Rule?
This rule discusses the eight comments that were received and the
Service's responses to the comments. Many of the commenters addressed
more than one issue in their comment. As a result, the number of issues
discussed exceeds the actual number of comments received. This rule
also draws on the Service's experience in implementing these changes
since publication of the interim rule and incorporates a number of
streamlined practices based on that experience.
The comments that the Service received came from a variety of
sources. They ranged from a single individual to an organization
representing thousands of companies. The 8 comments were from the
following:
A non-profit social service agency;
A national laboratory;
An organization that represents a large number of
attorneys and law professors;
An organization representing a coalition of more than 90
organizations that advocate immigrant and refugee rights;
A private immigration attorney;
A group of organizations that represent a number of public
and private higher education institutions as well as a large number of
independent nonprofit scientific research organizations;
A trade organization that represents over 11,000 companies
in the information technology industry;
Two organizations representing approximately 30 corporate
and institutional members with an interest in the international
movement of personnel and a broad-based industrial trade association.
Discussion of Comments
What Comments Did the Service Receive Regarding the Definitions of
Exempt Organization Contained in the Interim Rule?
The Service received 11 specific comments regarding the definitions
of exempt organizations contained in the interim rule. In general,
eight of the comments suggested that the Service expand, in some way,
the definitions contained in the interim rule in order to exempt more
organizations from having to pay the additional $500 filing fee. The
other three comments suggested that the Service modify the language of
the interim rule in order to avoid confusion for prospective H-1B
petitioners.
Turning to the specific comments, one commenter suggested that the
Service include the complete language of section 101(a) of the Higher
Education Act (HEA) in the Service's regulation. The commenter noted
that the interim regulation makes reference to the HEA but does not
contain the entire statutory language.
The Service will not adopt this suggestion. This rule incorporates
by reference the statutory definition of institutions of higher
education from section 101(a) of the HEA of 1965. The Service believes
that this is sufficient for the public to understand this requirement.
It is, therefore, unnecessary for the rule to repeat the entire
statutory language of the HEA as part of the rule.
One commenter suggested that the Service allow organizations that
are tax exempt under state or local law to qualify as non-profit
organizations for the purposes of the ACWIA.
For reasons of legal precedent and the uniform implementation of
the H-1B fee exemption provisions, the Service will not adopt this
suggestion. In the absence of a plain congressional intent to
incorporate diverse state laws into a Federal statute, the meaning of a
Federal statute should be dependent on Federal rather than state law.
See Taylor v. United States, 495 U.S. 575, 591-2 (1990); See also
Federal Deposit Insurance Corporation v. Philadelphia Gear Corporation,
476 U.S. 426, 431 (1986). Finally, state laws vary from each other and
from the Internal Revenue Code in their definition of ``tax exempt''
entities. The use of each state's particular definition would result in
an inconsistent application of the H-1B fee exemption provisions.
One commenter suggested that the Service expand the definition of
the organizations considered to be non-profit to include all non-profit
organizations, not just non-profit research organizations.
The Service cannot adopt this suggestion because there is no
statutory support for the suggestion. Section 415(a) of the ACWIA
specifically limits this exemption to non-profit research
organizations.
One commenter suggested that the Service include those institutions
of higher education described in section 101(b) of the HEA in its
definition of
[[Page 10680]]
exempt organizations. The commenter asserts that Congress inadvertently
omitted the institutions described in section 101(b) of the HEA from
the list of institutions exempt from the payment of the $500 filing
fee.
The Service will not adopt this suggestion because the statutory
language does not support it. Section 415(a) of the ACWIA clearly
limits this particular exemption to those institutions described in
section 101(a) of the HEA, not section 101(b) of HEA.
One commenter suggested that Federally-Funded Research and
Development Centers (FFRDCs) sponsored by an exempt contractor, e.g.,
institutions of higher education as defined in section 101(a) of the
HEA, should be exempt from the $500 filing fee. The commenter suggested
that the status of the contractor should determine whether a petition
should be exempt from the $500 filing fee.
The Service cannot adopt this suggestion because the statute does
not support it. The FFRDCs are organizations that are not operated by a
Government agency but, instead, are merely sponsored by a Government
agency. It must be noted that only a United States employer as defined
in Sec. 214.2(h)(4)(ii) may file a petition for an H-1B nonimmigrant
alien. Section 414(a) of the ACWIA requires that the employer of an H-
1B alien pay the $500 filing fee and specifically prohibits the
employer from passing on the fee to the worker. In the case of FFRDCs,
as with all other filing situations, the Service must look to the
actual employer of the alien to determine if the employer is exempt
from paying the $500 filing fee regardless of whether it is sponsored
by a nonexempt government organization. If the FFRDC is an employer and
meets the definition of one of the exemptions described in section
415(a) of the ACWIA, then the FFRDC would not be required to pay the
additional $500 filing fee. The Service has no authority to create
exemptions to the $500 fee other than those specifically provided for
in the statute.
Two commenters suggested that the definition of Government research
institution should be expanded to include all Federal, state, and local
government laboratories conducting scientific and/or scholarly
research.
The Service will not adopt this suggestion. It is the Service's
opinion, based on a number of judicial determinations, that
``Government'' as used in the statute refers solely to the Federal
Government and not to state and local governments. See Farzad v.
Chandler, 670 F. Supp. 690, 692 (N.D. Tex. 1987) and Kalaw v. Ferro,
651 F. Supp. 1163 (W.D.N.Y. 1987). It is also the opinion of the
Service that Congress would have made reference to state and local
governments in the statute if it was intended for these types of
organizations to be exempt. Further, the Service interprets the statute
to limit the number of entities that are exempt from paying the
additional $500.
Two commenters provided suggestions regarding the Service's
definition of an ``affiliate or related non-profit entity.'' One
commenter suggested that the Service expand the definition of an
``affiliate or related non-profit entity'' to include cooperative or
joint arrangements that do not rise to the level of a ``cooperative.''
The commenter noted that certain non-profit hospitals or governmental
research institutions may have arrangements for the sharing of
information, training, or research with educational institutions but
are not exempt from paying the $500 filing fee.
The other commenter suggested that a non-profit entity that is
connected or associated with a higher education institution through a
documental understanding or affiliation should be included in the
Service's definition of affiliated or related nonprofit entity even if
it lacks shared ownership or control and is not a member of a branch,
cooperative, or subsidiary of the higher education institution.
The Service will not adopt either of these suggestions because such
expansive definitions of the term ``affiliate or related non-profit
entity'' would not reflect congressional intent. Again, the Service
interprets the statute to narrowly define those entities exempt from
paying the $500 filing fee. In addition, it would be beyond the scope
of the Service's delegated administrative authority and institutional
expertise to determine and/or investigate the requisite financial or
operational cooperation of such entities.
One commenter disagreed with the Service's description of basic
research found in the definition of a nonprofit research organization.
The definition stated that, ``Basic research also is not research that
advances scientific knowledge. * * *'' The commenter stated that the
academic community believes that basic research does advance scientific
knowledge.
The inclusion of the word ``not'' in the Service's definition in
the interim rule of basic research was a typographical error made by
the Federal Register. On December 24, 1998, the Federal Register
published a correction at 63 FR 71342, removing the word ``not.''
One commenter noted that the ACWIA exempts research organizations
that are nonprofit organizations engaged in research from the $500
filing fee. The commenter suggested that the Service clarify in the
final regulation that the nonprofit organization does not have to be
affiliated with an institution of higher learning to be exempt fron the
fee.
As the commenter noted, section 415(a) of ACWIA exempts nonprofit
research institutions from paying the $500 filing fee. Research
institutions do not have to be affiliated with an institution of higher
learning. In order to ensure that this point is clear, the Service has
added the word ``or'' after Sec. 214.2(h)(19)(iii)(B).
Although not specifically addressed in the written comments, the
Service has received a number of questions from the public and the
field regarding the limitations of the definition of the term
``research'' in the interim rule. The definition of ``research'' in the
interim rule did not specifically described to which academic areas the
term ``research'' applied. In order to provide additional guidance to
the field on this issue, this rule amends the definition of
``research'' found in Sec. 214.2(h)(19)(iii)(C) to advise that the term
``research'' means research conducted in the sciences, social sciences,
or humanities.
Why is the Service Modifying Form I-129W?
The Service has modified Form I-129W, ``H-1B Data Collection and
Filing Fee Exemption,'' to serve both a mechanism to request a fee
exemption and to collect additional data as mandated by the ACWIA. As a
result, all petitioners will now be required to submit the form.
In response to the interim rule, the Service received a number of
inquiries on when the $500 fee must be paid. The Service has added a
new Sec. 214.(h)(19)(vi) to explain the circumstances under which the
fee is paid and the requirements for establishing entitlement to the
fee exemption. All Form I-129 petitioners requesting a fee exemption or
who are not required to pay the $500 fee must complete Part B of Form
I-129W and provide information and evidence described on the form. All
Form I-129 petitions submitted without completing Part B of Form I-129W
must be accompanied by a single remittance of $610. (The remittance may
be in the form of two checks, $500 fee +$110.00 for petition.)
Part A of Form I-129W collects data required by the ACWIA. The
Service will collect the required data on a single form, Form I-129W,
to facilitate entry of
[[Page 10681]]
data into Service databases and to minimize the cost of data entry
which would otherwise be passed on to petitioners through higher filing
fees. If deemed appropriate, the Service will revise and redesign the
I-129 at a later time to minimize any burden on the public and to
further facilitate the process for qualifying for the H-1B visa
classification.
One commenter suggested that the Service modify the language in the
interim rule to explain the type of documentation that must be
submitted with the Form I-129W to establish that an employer is exempt
from the $500 filing fee. The commenter opined that the interim rule
does not provide clear guidance on this issue.
Since the publication of the interim rule, the Service has received
many questions asking if supporting documentation must be submitted
with the Form I-129W. The language on Form I-129W implies that
supporting documentation is required but the interim rule itself does
not address the issue.
In response to this comment, the Service has added a new
Sec. 214.2(h)(19)(vi) that describes the type of documentation that
must be submitted with a Form I-129W to establish that the employer is
exempt from the $500 filing fee.
The rule now requires that an employer claiming to be exempt from
the $500 filing fee must complete both Parts A and B of Form I-129W
along with Form I-129. The employer must also submit evidence as
described on Form I-129W establishing how it is exempt. A United States
employer claiming an exemption from the $500 filing fee on the basis
that it is a non-profit research organization is required to submit
evidence that it has tax exempt status under the Internal Revenue Code
of 1986, section 501(c)(3), (c)(4) or (c)6), 26 U.S.C. 501(c)(3), (c)4)
or (c)(6). All other employers claiming an exemption must submit a
statement describing why the organization or entity is exempt.
The Service's request for limited evidence to establish an
exemption from the $500 filing fee is consistent with the congressional
House Report 105-825, October 21, 1998, 2nd. Sess. 1998, that provides
that the Service should not impose excessive evidentiary burdens on
employers to comply with the statute.
One commenter also suggested that the Service change the language
in the interim rule at Sec. 214.2(h)(19)(i)(C) since it implied that
amended petitions required the additional $500 filing fee. The
commenter noted that the language in the interim regulation makes
reference to the term ``change in employment'' and suggested that the
term ``change in employers'' would be more appropriate.
The Service will adopt this suggestion since section 414 of the
ACWIA, which discusses the filing situations requiring the $500 filing
fee clearly uses the term ``change in employers.''
The term ``change in employment'' could be misinterpreted to apply
to the filing of amended petitions as described in
Sec. 214.2(h)(11)(i)(A). The $500 filing fee is not required when an
amended petition is filed unless the amended petition also requests
that the Service grant an extension to the alien's temporary stay.
What Comments Were Received Regarding the Payment of the $500 Filing
Fee?
The Service received 19 comments addressing the payment of the $500
filing fee and related issues. The majority of commenters stated that
the interim regulation did not provide sufficient information
describing who is required to pay the $500 filing fee. One commenter
actually provided suggested regulatory language to explain who is
required to pay the fee and who is not.
The Service will not include the suggested regulatory language
provided by the commenter in the final rule. However, as described in
the following paragraphs, the Service has revised the language of the
rule to clarify both the circumstances in which employers are not
required to pay a fee, as well as those employers who are exempt from
the fee requirement.
One commenter suggested that the regulation should indicate that a
corporate restructuring does not require the filing of an amended
petition and would not require the filing of the $500 fee. Another
commenter suggested that an amended petition seeking a change in
employment with the same employer should not require the filing of the
$500 fee if no extension is requested.
Since the publication of the interim rule, the Service has received
a number of comments and questions regarding whether the $500 filing
fee is required when an amended petition is filed. The interim rule
listed the filing situations that required the payment of the $500
filing fee. Amended petitions were not included on this list which
means that the fee was not required when an amended petition was filed
without a request for an extension of stay. Further, the Conference
Report and section 414(a) of the ACWIA clearly indicate that the $500
filing fee is not required in the case of an amended petition unless an
extension of the alien's stay is also requested.
In response to the comments and the volume of questions that the
Service has received on this issue since publication of the interim
rule, the Service has added a new Sec. 214.2(h)(19)(v) that
specifically discusses, among other things, the filing of amended
petitions. The final rule states that the $500 filing fee is not
required when an amended petition is filed unless the amended petition
includes a request for an extension of stay.
In addition, the Service has modified Form I-129W in response to a
number of comments regarding the filing of amended petitions. These
comments are discussed later in this regulation.
The Service will not adopt the comment that makes reference to
corporate restructuring in the final rule because a corporate
restructuring may require the filing of either a new or an amended
petition. The issue of when an amended petition must be filed is
discussed in Sec. 214.2(h)(11)(i)(A) and is outside the scope of this
regulation. The final rule states that the $500 filing fee is not
required when an amended petition is filed unless the amended petition
includes a request for an extension of stay.
Two commenters suggested that the $110 and the $500 filing fee
should not be required with a petition filed for the purpose of
correcting a Service error.
The Service agrees with this suggestion. On occasion, the Service
has erroneously admitted an H-1B alien for a period of time less than
requested or permitted by the supporting petition. While not
specifically discussed in the interim rule, the Service has, in
practice, adopted the procedure discussed by the commenter. The policy
has now been incorporated in the final rule at Sec. 214.2(h)(19)(v)(B)
One commenter suggested that the $500 filing fee be called a
`training fee'' to distinguish the $500 filing fee from the normal $110
filing fee.
The Service will not adopt this suggestion. Sections 414(a) and
414(b) of the ACWIA provide that the $500 filing fee is to be used for
a number of provisions that do not involve training. On the basis of
the statutory language, the Service will continue to call the
additional $500 fee a filing fee.
Two commenters suggested that the Service develop a procedure to
reimburse petitioners when the alien beneficiary does not appear for
work. The Service will not adopt this suggestion. Under existing
regulations, 8 CFR 103.2(a)(1), all filing fees and fingerprint fees
are nonrefundable. There is nothing unique about this
[[Page 10682]]
situation that would justify making an exception to this policy. As a
general matter, the Service relies upon monies deposited into the
Examinations Fee Account to defray the costs of processing applications
and petitions for immigration benefits, and does not receive
appropriated funds for these purposes. In particular, the Congress has
already specified the distribution of the additional $500 filing fees
for H-1B petitions. Since the Service will be incurring the costs of
processing the H-1B petitions, and Congress has already determined how
the $500 filing fee will be distributed, the Service could not refund
the filing fee for the processing of an application merely because an
employer ultimately was not able to hire an intended alien beneficiary.
One commenter also discussed whether the $110 filing fee can be
refunded in the case of a petition filed to correct a Service error.
Yes, the filing fee of $110.00 may be refunded in a case involving
Service error. A refund may be obtained by writing to the Immigration
and Naturalization Service Office where a petition was filed. A
detailed explanation of the circumstances justifying the refund should
be included. This information is now included on the instructions of
Form I-129W.
The Service received a number of comments regarding the issue of
who can write the checks for the filing fees.
Two commenters suggested that petitioners be permitted to submit
two checks to cover the two filing fees, one in the amount of $500 and
the other in the amount of $110. Another commenter suggested that the
final rule contain language indicating that an attorney who represents
both the employer and the beneficiary should be permitted to write the
check for the $500 filing fee. Similarly, another commenter suggested
that the Service should reject the $500 filing fee only when an
attorney who represents the beneficiary writes the check. One commenter
suggested that the final regulation indicate that the beneficiary may
pay the $110 filing fee.
In order to clarify this issue, the Service has amended
Sec. 214.2(h)(19)(ii) to indicate that a petitioner may submit two
checks to cover the filing fee as long as both checks are remitted at
the same time. In such a case, one check will be for the amount of $500
and the other for the amount of $110. This would constitute a ``single
remittance'' for the purpose of Sec. 214.2(h)(19)(ii).
However, since it is less expensive for the Service to process one
check instead of two, the Service would prefer that petitioners submit
one check in the amount of $610. The rule also states that the employer
or its representative must pay the $500 filing fee. Petitioners are
reminded that section 413(a) of the ACWIA prohibits an employer from
requiring an alien beneficiary to reimburse, or otherwise compensate
the employer for part or all of the cost of the $500 filing fee.
One commenter suggested that the final rule contain language
indicating that a petition filed for a change of employers that does
not contain a request for an extension of stay should not require the
filing of the $500 fee.
The Service cannot adopt this suggestion because it is contrary to
the statutory language. Section 414(a) of the ACWIA clearly requires
that a new employer of an H-1B nonimmigrant alien must pay the $500
filing fee regardless of whether or not an extension of stay is
requested.
Two commenters suggested that the final rule include language
reflecting that a petitioner may be reimbursed by a third party for the
$500 filing fee.
The Service will not adopt this suggestion because there is no
support in the statute for such a provision. Again, section 413(a) of
the ACWIA prohibits an employer from requiring an alien beneficiary to
reimburse, or otherwise compensate the employer for part or all of the
cost of the $500 filing fee. However, the ACWIA does not discuss the
issue of third party reimbursements. Therefore, the issue of third
party payments is outside the scope of this rule.
One commenter suggested that the final rule include language that
the $500 filing fee relates to the actions of the employer, not the
beneficiary. Another commenter suggested that the final rule contain
language indicating that a second extension of stay filed after
December 1, 1998, does not require the filing of the $500 fee
regardless of whether the employer paid the $500 filing fee for the
initial petition or fist extension of stay.
In response to these comments, the Service had added
Sec. 2142(h)(19)(v) in the final rule to describe a number of filing
situations where the $500 filing fee is not required. Section
214.2(h)(19)(v) reflects that the fee for the extension of stay relates
to the actions of the employer not the beneficiary. It also provides
pursuant to section 414(a) of the ACWIA, that a second extension of
stay filed by an alien's employer never requires the filing of a $500
fee. The fee is not required even if the employer did not pay the $500
filing fee on the initial petition or first extension of stay for the
alien that it filed for the beneficiary.
Another commenter suggested that a company which petitioned for an
alien who was previously accorded H-1B status based on a petition filed
by another company, should not be required to pay the $500 filing fee
when it applies for the alien's first extension of stay.
The Service will not adopt this comment. As previously discussed,
section 414(a) of the ACWIA provides that the $500 filing fee relates
to the employer, not the alien. As a result, on or after December 1,
1998, the first extension of stay filed by an employer for an alien
requires the filing of the $500 fee regardless of whether the
beneficiary was previously petitioned as an H-1B nonimmigrant alien by
another employer.
How Will the Service Petitions Where the Check for the Filing Fee Is
Returned as Non-Payable?
Since promulgation of the interim rule, a number of checks for the
$500 filing fee have been returned to the Service as non-payable. As a
result, it is important to remind the public of the provisions of 8 CFR
103.2(a)(7)(ii) that provides if a check for a filing fee is returned
to the Service as non-payable, a pending petition will be rejected as
improperly filed. If the petition has already been approved, the
petition shall be automatically revoked.
In addition, an H-1B alien who continues his or her employment with
the petitioner after the supporting petition is revoked may be subject
to removal proceedings. An employer who knowingly continues to employ
an alien who is not authorized to work may be liable for sanctions
including civil fines and criminal penalties pursuant to section 274A
of the Immigration and Nationality Act.
Finally the Service may take action under the Debt Collection ACt
of 1982 to collect the filing fee to include penalties and cost for
collection on returned checks.
What Comments Did the Service Receive Regarding Form I-129W?
In order to assist employers in determining whether they are
required to pay the $500 filing fee, the Service developed Form I-129W.
The Service received nine comments regarding the form.
One commenter suggested that the form should be revised to include
the name of the petitioner. Two commenters suggested that Part B of the
form, which provides information on the required documentation
necessary to establish tax exempt status, be modified to discuss the
evidence required to
[[Page 10683]]
establish eligibility for the other exemptions. One commenter stated
that the wording on the form implies that all employers claiming
exemption from paying the $500 filing fee must submit information
regarding whether they enjoy tax exempt status. Two commenters noted
that the form does not accommodate the filing of amended petitions and
suggested that the form be accordingly modified.
The Service will modify Form I-129W and has adopted the above
suggestions. The new version of Form I-129W will now have a block for
the petitioner's name. Form I-129W now contains additional information
regarding the evidence to be submitted to establish exemption from the
$500 filing fee. The form has also been modified to reflect that the
$500 filing fee is not required when an amended petition which does not
involve an extension of stay is filed.
One commenter suggested that the form be changed so that a petition
filed for a change of employers without an extension of stay will not
required the filing of the $500 filing fee.
As previously noted, section 414(a) of the ACWIA clearly requires
that a petitioner seeking a change of employers must submit the $500
filing fee. Therefore, the Service will not adopt this suggestion.
One commenter suggested that the Service allow employers to submit
copies of previously submitted Forms I-129W in support of a Form I-129
petition.
The Service requires current information from an employer an
original Form I-129W in support of an I-129 petition. The Service has
included the requirement that an employer submit an original Form I-
129W at Sec. 214.2(h)(19)(vii). It must be noted that the Service,
pursuant to section 416(c) of the ACWIA, is required to report to
Congress on a quarterly basis the number of employers claiming an
exemption. As a result, the Service requires the submission of a
current Form I-129W.
One commenter suggested that exempt employers should not be
required to submit supporting evidence with the Form I-129W.
The Service will not adopt this comment. In order to avoid
potential delays in the adjudication process, the Service requires that
employers submit supporting evidence establishing their eligibility for
the claimed exemption. The Service's evidentiary requirements regarding
this provision are minimal and are consistent with the discussion
contained in the conference report dealing with limiting the
evidentiary burden to employers.
What Additional Changes Did the Service Make in the Final Rule?
The Service has also amended 8 CFR 103.7(b)(1) to reflect that not
all Form I-129 petitions must be accompanied by a $500 filing fee. The
regulation now provides that only certain H-1B petitions must be
submitted with the $500 filing fee.
Regulatory Flexibility Act
The Commissioner, in accordance with 5 U.S.C. 605(b), has reviewed
this regulation and, by approving it, certifies that this rule will not
have a significant economic impact on a substantial number of small
entities. Although there is a $500 filing fee which may have an
economic impact on small entities, sections 414(a) and 415(a) of the
ACWIA established the new $500 filing fee and exemptions that are
effective December 1, 1998. This regulation merely implements
procedures for submission of the new $500 filing fee for Form I-129, H-
B nonimmigrant petitions.
Unfunded Mandates Reform Act of 1995
This 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 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 complete with foreign-
based companies in domestic and export markets. While this rule is not
a major rule, the Service recognizes that all businesses, regardless of
size, whose hiring practices involve H-1B aliens, are affected by this
rule in that they will be required to submit an additional $500 per
petition, unless exempt. It is anticipated that the effect on the
economy for fiscal year 2000 will be $88,550,000 and $82,775,000 for
fiscal year 2001. Further, as previously stated in the supplement to
this rule, sections 414(a) and 415(a) of the ACWIA established the new
$500 filing fee and exemptions that became effective December 1, 1998.
This regulation merely implements procedures for the submission of the
new $500 filing fee for H-1B nonimmigrant petitions.
Executive Order 12866
This 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 regulation has been submitted to the Office
of Management and Budget (OMBN) for review.
Executive Order 13132
The regulation 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 section 6
of Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of E.O. 12988.
Paperwork Reduction Act
This rule does not impose any new reporting or recordkeeping
requirements. The information collection requirements contained in this
rule were previously approved for use by the Office of Management and
Budget (OMB) under emergency procedures and will be submitted again
under normal procedures within 6 months. The OMB control number for
this collection will continue to be listed in 8 CFR 299.5, Display or
control numbers.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Fees, Forms, Freedom of Information, Privacy,
Reporting and record keeping requirements, Surety bonds.
8 CFR Part 214
Administrative practice and procedures, Aliens, Employment,
Reporting and record keeping requirements.
[[Page 10684]]
8 CFR Part 299
Immigration, Reporting and record keeping requirement.
Accordingly, the interim rule amending 8 CFR parts 103, 214, and
299 which was published at 63 FR 65657, on November 30, 1998, is
adopted as a final rule with the following changes:
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
1. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,
15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.
2. In Sec. 103.7, paragraph (b)(1) is amended by revising the entry
for ``Form I-129'', to read as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
* * * * *
Form I-129. For filing a petition for a nonimmigrant worker, a
base fee of $110. For filing an H-1B petition, a base fee of $110
plus an additional $500 fee in a single remittance of $610. The
remittance may be in the form of two checks (one in the amount of
$500 and the other in the amount of $110). Payment of this
additional $500 fee is not waivable under Sec. 103.7(c)(1). Payment
of this additional $500 fee is not required if an organization is
exempt under Sec. 214.2(h)(19)(iii) of this chapter. Payment of this
additional $500 fee is not required if an organization is exempt
under Sec. 214.2(h)(19)(iii) of this chapter, and this additional
$500 fee also does not apply to certain filings by any employer as
provided in Sec. 214.2(h)(19)(v) of this chapter.
* * * * *
PART 214--NONIMMIGRANT CLASSES
3. 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.
4. Section 214.2 is amended by:
a. Revising paragraph (h)(19)(i)(C);
b. Revising paragraph (h)(19)(ii);
c. Adding the word ``or'' at the end of paragraph (h)(19)(iii)(B);
d. Revising paragraph (h)(19)(iii)(C);
e. Revising paragraph (h)(19)(iv); and by
f. Adding new paragraphs (h)(19)(v), (vi), and (vii); to read as
follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(19) * * *
(i) * * *
(C) Authorization for a change in employers, as provided in
paragraph (h)(2)(i)(D) of this section.
(ii) A petitioner must submit the $110 filing fee and additional
$500 filing fee in a single remittance totaling $610. Payment of the
$610 sum ($110 filing fee and additional $500 filing fee) must be made
at the same time to constitute a single remittance. A petitioner may
submit two checks, one in the amount of $500 and the other in the
amount of $110. The Service will accept remittances of the $500 fee
only from the United States employer or its representative of record,
as defined under 8 CFR part 292 and 8 CFR 103.2(a).
(iii) * * *
(C) A nonprofit research organization or governmental research
organization. A nonprofit research organization is an organization that
is primarily engaged in basic research and/or applied research. A
governmental research organization is a United States Government entity
whose primary mission is the performance or promotion of basic research
and/or applied research. Basic research is general research to gain
more comprehensive knowledge or understanding of the subject under
study, without specific applications in mind. Basic research is also
research that advances scientific knowledge, but does not have specific
immediate commercial objectives although it may be in fields of present
or potential commercial interest. It may include research and
investigation in the sciences, social sciences, or humanities. Applied
research is research to gain knowledge or understanding to determine
the means by which a specific, recognized need may be met. Applied
research includes investigations oriented to discovering new scientific
knowledge that has specific commercial objectives with respect to
products, processes, or services. It may include research and
investigation in the sciences, social sciencies, or humanities.
(iv) Non-profit or tax exempt organizations. For purposes of
paragraphs (h)(19)(iii) (B) and (C) of this section, a nonprofit
organization or entity is:
(A) Defined as a tax exempt organization under the Internal Revenue
Code of 1986, section 501(c)(3), (c)(4) or (c)(6), 26 U.S.C. 501(c)(3),
(c)(4) or (c)(6), and
(B) Has been approved as a tax exempt organization for research or
educational purposes by the Internal Revenue Service.
(v) Filing situations where the $500 filing fee is not required.
The $500 filing fee is not required:
(A) If the petition is an amended H-1B petition that does not
contain any requests for an extension of stay;
(B) If the petition is an H-1B petition filed for the sole purpose
of correcting a Service error; or
(C) If the petition is the second or subsequent request for an
extension of stay filed by the employer regardless of when the first
extension of stay was filed or whether the $500 filing fee was paid on
the initial petition or the first extension of stay.
(vi) Petitioners required to file Form I-129W. All petitioners must
submit Form I-129W with the appropriate supporting documentation with
the petition for an H-1B nonimmigrant alien. Petitioners who do not
qualify for a fee exemption are required only to fill our Part A of
Form I-129W.
(vii) Evidence to be submitted in support of the Form I-129W. (A)
Employer claiming to be exempt. An employer claiming to be exempt from
the $500 filing fee must complete both Parts A and B of Form I-129W
along with Form I-129. The employer must also submit evidence as
described on Form I-129W establishing that it meets one of the
exemptions described at paragraph (h)(19)(iii) of this section. A
United States employer claiming an exemption from the $500 filing fee
on the basis that it is a non-profit research organization must submit
evidence that it has tax exempt status under the Internal Revenue Code
of 1986, section 501(c)(3), (c)(4) or (c)(6), 26 U.S.C. 501(c)(3),
(c)(4) or (c)(6). All other employers claiming an exemption must submit
a statement describing why the organization or entity is exempt.
(B) Exempt filing situations. Any non-exempt employer who claims
that the $500 filing fee does not apply with respect to a particular
filing for one of the reasons described in Sec. 214.2(h)(19)(v), must
submit a statement describing why the filing fee is not required.
* * * * *
PART 299--IMMIGRATION FORMS
5. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR
part 2.
6. Section 299.1 is amended in the table by revising the entry for
Form ``I-129W'' to read as follows:
[[Page 10685]]
Sec. 299.1 Prescribed forms.
* * * * *
------------------------------------------------------------------------
Edition
Form No. date Title
------------------------------------------------------------------------
* * * * *
I-129W 12-22-99 H-1B Data Collection and Filing Fee Exemption.
* * * * *
------------------------------------------------------------------------
7. Section 299.5 is amended in the table by revising the entry for
Form ``129W'' to read as follows:
Sec. 299.5 Display of control numbers.
* * * * *
------------------------------------------------------------------------
Currently
assigned
INS form INS form title OMB
No. Control
No.
------------------------------------------------------------------------
* * * * *
I-129W H-1B Data Collection and Filing Exemption....... 1115-0225
* * * * *
------------------------------------------------------------------------
Dated: February 24, 2000.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 00-4766 Filed 2-28-00; 8:45 am]
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