\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (Legacy INS) - 1998 \ FEDERAL REGISTER INTERIM REGULATIONS - 1998 \ Petitioning Requirements for the H-1B Nonimmigrant Classification Under Public Law 105-277 [63 FR 65657] [FR 80-98] \ Small Business Regulatory Enforcement Fairness Act of 1996
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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 compete with foreign-based companies in domestic and export markets. While the rule is not a major rule, the Service recogn
izes 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 this rule will result in an estimated annual effect on the economy of $75,050,000 for the first year. It is anticipated that the effect on the economy for the second year will be $88,550,000. Further, as previously stated in the supplement to this rule, sections 414(a) and 415(a) o
f ACWIA establish the new $500 filing fee and exemptions that are 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 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 rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988.
Paperwork Reduction Act
Under ACWIA, on or after December 1, 1998, a United States employer must file an additional $500 fee for all petitions to classify an alien as an H-1B nonimmigrant worker. Institutions of higher education or related or affiliated nonprofit entities, and nonprofit or governmental research organizations, are exempt from this new fee requirement. United States employers claiming to be an exempt organization must complete Form I-129W, Petition for Nonimmigrant Worker, Filing Fee Exemption, and submit it to th
e Service. This attachment is considered an information collection covered under the Paperwork Reduction Act (PRA). The estimated burden hours for the first year are 38,500 which lead to a cost of $385,000. The additional costs of the collection total $75,050,000 for the first year. The estimated burden hours for the second year are 46,000 which lead to a cost of $460,000. The additional costs of the collection for the second year total $88,550,000.
Accordingly, the Service will be submitting an information collection package to the Office of Management and Budget (OMB) for review and approval in accordance with 8 CFR part 1320.13.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations (Government agencies), Fees, Forms, Freedom of information, Privacy, Reporting and recordkeeping requirements, Surety bonds.
8 CFR Part 214
Administrative practice and procedures, Aliens, Employment, Reporting and recordkeeping requirements.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal Regulations is amended as follows:
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF SERVICE RECORDS
1. The authority citation for part 103 continues to read as follows:
5 U.S.C. 552, 552a; 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. Section 103.7 is amended as follows:
a. In paragraph (b)(1), remove the entries for "Form I-129H" and "Form I-129L" from the listing of fees;
b. Revise in paragraph (b)(1) the entry for "Form I-129"; and
c. In paragraph (c)(1) add a new sentence at the end of the paragraph, to read as follows:
§ 103.7 Fees.
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(b) * * *
(1) * * *
* * * * *
Form I-129. For filing a petition for a nonimmigrant worker, a base fee of $110 plus an additional $500 fee in a single remittance of $610. Payment of this additional $500 fee is not required if an organization is exempt under § 214.2(h)(19)(iii) of this chapter. Payment of this additional $500 fee is not waivable under § 103.7(c)(1).
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(c) * * *
(1) * * * The payment of the additional $500 fee prescribed by section 214(c)(9) of the Act when applying for petition for nonimmigrant worker under section 101(a)(15)(H)(i)(b) of the Act may not be waived.
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PART 214--NONIMMIGRANT CLASSES
3. The authority citation for part 214 continues to read as follows;
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)(8)(i)(A); and by
b. Adding a new paragraph (h)(19); to read as follows:
§ 214.2. Special requirements for admission, extension, and maintenance of status.
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(h) * * *
(8) * * *
(i) * * *
(A) Aliens classified as H-1B nonimmigrants, excluding those involved in Department of Defense research and development projects or coproduction projects, may not exceed:
) 115,000 in fiscal year 1999;
) 115,000 in fiscal year 2000;
) 107,500 in fiscal year 2001; and
) 65,000 in each succeeding fiscal year.
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Additional fee for filing certain H-1B petitions
--(i) A United States employer (other than an exempt employer as defined in paragraph (h)(19)(iii) of this section) who files a Form I-129, on or after December 1, 1998, and before October 1, 2001, must include the additional fee required in § 103.7(b)(1) of this chapter, if the petition is filed for any of the following purposes:
(A) An initial grant of H-1B status under section 101(a)(15)(H)(i)(b) of the Act;
(B) An initial extension of stay, as provided in paragraph (h)(15)(i) of this section; or
(C) Authorization for a change in employment, as provided in paragraph (h)(2)(i)(D) of this section.
(ii) The service will accept remittances of the additional 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)(3).
(iii) The following exempt organizations are not required to pay the additional fee:
An institution of higher education
, as defined in section
101(a) of the Higher Education Act of 1965;
An affiliated or related nonprofit entity
. A nonprofit entity (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary;
A nonprofit research organization or governmental research organization
. A research organization that is either a nonprofit
organization of entity that is primarily engaged in basic research and/or applied research or a United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research. Basic research is research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research also is not research that advances scientific knowledge, but does not have specific immediate commercial objectives althou
gh it may be in fields of present or potential commercial interest. 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.
(iv) For purposes of paragraphs (h)(19)(iii)(B) and (C) of this section, a nonprofit organization or entity is one that is qualified as a tax exempt organization under section 501(c)(3), (c)(4), or (c)(6) of the Internal Revenue Code of 1986 (26 U.S.C. 501(c)(3), (c)(4) or (c)(6)) and has received approval as a tax exempt organization from the Internal Revenue Service, as it relates to research or educational purposes.
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