Comment Matrix-60-day and 30-day Federal Register Notice

Responses to 60 and 30-day FRN Public Comments
OMB-49 – Extension
OMB Control Number: 1615-0107
86 FR 52167 (Docket #: USCIS-2009-0015)
Comment Period: 09/20/2021 - 11/19/2021
86 FR 74098 (Docket #: USCIS-2009-0015
Comment Period: 12/29/2021-01/28/2022
USCIS Response
USCIS has created a consolidated comment response matrix for both the 60-Day and 30-Day comment periods.
Commenter TLRA submitted the same substantive comments on the 60-day and 30-day notices. Those comment summaries and responses are
being consolidated. TLRA’s comment regarding USCIS’ compliance with the Paperwork Reduction Act was only included in the comment on the
30-day notice and is being addressed first.
Commenter and
comment #
Texas RioGrande
Legal Aid, Inc.
(TLRA)

Comment

USCIS Response

This commenter urged OMB not to approve USCIS’
request for the extension of this information collection
because the commenter asserted USCIS did not comply
with the Paperwork Reduction Act (PRA) regulations
which require the agency submitting a request for
approval to OMB to provide a summary of public
comments on the 60-day notice as well as a list of
actions/response in reaction to such comments. The
commenter asserted that USCIS failed to do so but only
acknowledged receiving two comments in the 30-day
notice.

USCIS thanks the commenter for these comments. USCIS believes
that the commenter misunderstood how USCIS complies with the
Paperwork Reduction Act (PRA). With respect to information
collections contained in current rules USCIS complies with the PRA
requirement related to public comments by addressing comments
on the 60-day and 30-day notices in the Supporting Statement
and/or comment matrix that is submitted to Office of Information
and Regulatory Affairs (OIRA), and posted on reginfo.gov when
USCIS seeks approval of an information collection. Generally,
these documents are transmitted to OIRA along with the
information collection instrument for which approval is being
sought in compliance with the PRA and implementing regulations,
as applicable, after the publication of the 30-day notice. The same
substantive issues were raised in the two comments received by
TRLA on the 60- and 30-day notices, and USCIS is providing
consolidated responses in this matrix. USCIS agrees with the
commenter that it is required by 5 CFR 1320.5(a)(iii)(F) to provide
a summary of public comments received on the 60-day notice and
its response/actions in response, but as indicated above, this
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Responses to 60 and 30-day FRN Public Comments
OMB-49 – Extension
OMB Control Number: 1615-0107
Commenter and
comment #

Texas RioGrande
Legal Aid, Inc.
(TLRA)

Texas RioGrande
Legal Aid, Inc.
(TLRA)

Comment

This comment is addressed to what the comment
request refers to as “employment-related notifications,”
i.e., the requirements in 8 C.F.R. § 214.2(h)(5)(vi)(B)(1)
and (h)(6)(i)(F) that H-2 employers notify DHS if H-2
workers do not arrive for work or abscond from their
jobs, or if their work ends early. As is discussed further
below, the notification requirements fail to accomplish
USCIS’s goal of preventing H-2 workers from engaging in
unauthorized work, while creating significant potential
for abuse. At a minimum, the information collection
process should be revised to minimize the chances that
H-2 employment-related reports will be used to retaliate
against workers who have exercised their rights or to
coerce them into remaining in an abusive or exploitative
working environment.
One commenter noted that USCIS underestimates the
burden and overestimates the benefit of this
information collection. The commenter called into
question the necessity of the reporting requirement and
its utility noting that there are legitimate reasons why
workers may leave employment that would not have
negative consequences on H-2 workers’ immigration
status (such as when workers depart the United States
after their employment ends), or if workers leave
abusive work situations. The commenter also noted that
the reporting requirement is taxes DHS resources to
follow up on reports, and sort through over 1,500
(estimated) reports. The commenter noted that USCIS

USCIS Response
information is only made public after the information collection is
submitted to OIRA for approval. The summaries required are
contained in this matrix document.
Thank you for your comment. USCIS is revising the instructions for
this reporting to advise employers that the reporting process
should not be used to intimidate workers.

Thank you for your comment. USCIS’s request for comments on
the burden estimate are limited to the burden associated with the
collection of information on form OMB-49 pursuant to the PRA,
however the suggestions received also address potential broader
asserted burdens associated with the underlying regulatory
requirement that would require notice and comment rulemaking
to change.
That noted, USCIS appreciates your suggestions as to ways to
improve the employer reporting requirement. That said, USCIS is
always interested in exploring ways to improve the H-2 (and other)
immigration programs, and may consider these suggestions as part
of future regulatory reforms.
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Responses to 60 and 30-day FRN Public Comments
OMB-49 – Extension
OMB Control Number: 1615-0107
Commenter and
comment #

Texas RioGrande
Legal Aid, Inc.
(TLRA)

Comment

USCIS Response

has no way of verifying the veracity of the reports. The
commenter also noted that even if workers remain in
the United States and engage in unauthorized work for a
few months, they would represent enforcement
priorities for DHS. The commenter also noted that USCIS
statistics used to derive the burden estimate date back
to 2009 and have not been updated since but the
programs have expanded since that time, and actual
reports have been received.

With respect to the portion of the commenter’s comment
addressing the estimate for the number of reports received in the
H-2A and H-2B programs, USCIS has updated a portion of the data
regarding the number of respondents based on more recent data
regarding employment-related notices. Additionally, USCIS has
started the process of developing a new comprehensive estimate
based on information about the number of reports received
overall going forward. USCIS plans to update these estimates
during the next revision and/or extension of this information
collection.

The commenter stated that employment-related reports
received on Form OMB-49 are used as a tool to
threaten, retaliate against, and coerce workers, in
violation of the Trafficking Victims Protection
Reauthorization Act (TVPRA) and other labor laws, and
noted concerns that the information collection does not
acknowledge the possibility of misuse of employmentrelated notifications nor take steps to minimize that risk.
The commenter also provided examples of common
program violations, such as forced labor, substandard
wages and working conditions, work in physically
isolated areas. The commenter noted that employers
argue that when they inform workers of the reporting
requirements as a consequence for leaving, they are
merely restating the regulations. The commenter also
noted the consequences to workers if they are
determined to have absconded. The commenter
specifically suggested that USCIS (a) make clear to
employers that they may not use the notification
requirement to intimidate, chill, or harass workers and

USCIS acknowledges this concern and while USCIS will not create a
standardized form, it has added the following note to two sections
of the USCIS notification instructions webpage. “H-2B Temporary
Non-Agricultural Workers Employment-Related Notifications to
USCIS” found at https://www.uscis.gov/working-in-the-unitedstates/temporary-workers/h-2b-temporary-non-agriculturalworkers and “H-2A Temporary Agricultural Workers” found at
https://www.uscis.gov/working-in-the-united-states/temporaryworkers/h-2a-temporary-agricultural-workers:
“Employers are reminded of their responsibility to ensure
compliance with all laws and regulations, including those
prohibiting unfair labor practices and harassment. In this regard,
DHS regulations provide specific bases for reporting, and do not
constitute a per se basis for a finding of fault on the part of the
worker(s), and employers should not imply otherwise to their
workers.”
The above statement will not result in any data collection or other
burdens on petitioners, but is merely a clarification necessary to
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Responses to 60 and 30-day FRN Public Comments
OMB-49 – Extension
OMB Control Number: 1615-0107
Commenter and
comment #

Texas RioGrande
Legal Aid, Inc.
(TLRA)

Comment

USCIS Response

that, if they choose to inform workers of the notification
requirement, they must do so by explaining the only
three circumstances in which this requirement is
triggered (i.e., the worker does not arrive, the worker
disappears for five days, or work ends early); and/or (b)
develop a simple know-your-contract flyer for employers
to provide to workers upon arrival that explains the
scope of the notification requirement, the options to
depart the country promptly or obtain sponsorship from
another employer after leaving a job without incurring
immigration-related consequences, and the pathway for
workers to communicate their side of termination facts
to USCIS to avoid immigration bars.

address the commenter’s valid concern that certain H-2A
employers are using the reporting requirement to directly or
coerce their workers to endure workplace abuse by intentionally
misleading their workers into believing that such regulatorily
mandated reporting to DHS will per se result – contrary to DHS
regulations – in adverse immigration consequences for the abused
workers. This additional language is both necessary and consistent
with carrying out the Secretary of Homeland Security’s priority, as
set forth in his memorandum of October 12, 2021, to provide
protection to H-2 workers from abuse. See
https://www.dhs.gov/sites/default/files/publications/memo_from
_secretary_mayorkas_on_worksite_enforcement.pdf.

The commenter’s recommendation regarding developing a “knowyour-contract” flyer is beyond the scope of this information
collection extension but USCIS may consider this suggestion as
part of other program reforms,
as we move forward in implementing the Secretary of Homeland
Security’s priorities.
This commenter suggested that USCIS provide workers
USCIS appreciates your comment and believes your comment
reported as absconders or no-shows with an opportunity raises some valid concerns, however those concerns go beyond
to respond by creating a simple pathway akin to OMB-49 the limited scope of the current form extension. While DHS’s
used by employers to submit these reports. The
reporting regulation does not address the reasons for a no-show
commenter also suggested that the workers be able to
or abscondment nor does it assign fault on the part of either
provide an explanation in the workers’ preferred
employer or employee, we recognize that certain employers, in
language, and recommended the response be coupled
the course of reporting absconders or no-shows, might attempt to
with the report and maintained in DHS files.
assign blame to the workers in question. At present, USCIS does
not have a process for workers to respond to, or rebut the
information contained in the report; and since workers are no
longer at the H-2 worksite, they may not even be aware that their
former employer has filed a report, let alone alleged fault on their
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Responses to 60 and 30-day FRN Public Comments
OMB-49 – Extension
OMB Control Number: 1615-0107
Commenter and
comment #

Comment

USCIS Response
part for the no-show or abscondment. However, the receipt of an
abscondment report alone is not sufficient for USCIS to conclude
that a worker has or has not violated their nonimmigrant
status. Such a determination can only be made based on the
totality of the circumstances.
While DHS is not able to adopt your suggestions as part of this
form extension, since such reforms entail substantive changes to
DHS regulations, DHS may consider these recommendations as
part of future rulemaking efforts.

Texas RioGrande
Legal Aid, Inc.
(TLRA)

The commenter recommended that USCIS issue clear
and affirmative instructions to employers explaining the
scope of the duty to report and warning them against
using reports to force workers to remain in their employ
or to retaliate against them for exercising their rights.
Specifically the commenter requested that USCIS clarify
the following points:
• Employers should make every reasonable attempt to
ensure the employment-related reports that they
submit to USCIS are accurate. This includes updating
USCIS if submitted information is later learned to be
incorrect.
• The duty to report workers is not triggered if workers
are leaving their H-2 employment for lawful reasons or
with the consent of the employer. Lawful reasons
include, but aren’t limited to, (a) returning to their home
country, (b) lawfully transferring to other H-2
employment, or (c) obtaining lawful status on a different
visa.

Please see our comment in response above. As indicated in our
response above, USCIS has added a statement to the instructions
advising employers that the notification requirement should not
be used to threaten or harass workers. Some of the other
recommendations require regulatory changes such as an
additional obligation to submit corrections to previously submitted
reports. Similarly, DHS would need to amend its regulations to
exempt the reporting of workers leaving when the worker believes
it is leaving for lawful reasons. DHS regulations already exclude
from the definition of abscondment the worker leaving with the
consent of the employer. DHS is also not adopting the suggestion
that rests on DOL, rather than DHS regulations. With respect to
suggestions that do not require regulatory changes, USCIS will
consider providing additional guidance in the future.
As the notification requirements are codified in DHS regulations,
USCIS agrees that employers must make every reasonable attempt
to ensure accuracy. You may rest assured that USCIS, takes these,
as all other DHS regulations, seriously, and continuously works
together with other Federal agencies, within and outside of DHS,
to ensure compliance with existing regulations concerning the
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Responses to 60 and 30-day FRN Public Comments
OMB-49 – Extension
OMB Control Number: 1615-0107
Commenter and
comment #

Texas RioGrande
Legal Aid, Inc.
(TLRA)

Comment

USCIS Response

• Though employers may report workers who are
terminated for cause pursuant to 20 C.F.R. § 655.122(n),
employers may not report workers whom they fire, with
or without cause, as “absconders.”
• Employers may not use their duty to report as a threat
to workers who wish to leave their employment or to
retaliate against workers exercising their legal rights.

duty to report and whether it is triggered. USCIS agrees that the
duty to report is not triggered if workers leave their H-2
employment for lawful reasons. Lawful reasons include, but are
not limited to, (a) returning to their home country or country of
last residence, (b) lawfully porting to other H-2 employment, or (c)
the worker is otherwise granted lawful immigration status. DHS
also works closely with other Federal agencies as needed when
employers terminate H-2 workers.

The commenter recommended that USCIS create a form
for submitting employment-related notifications about
H-2 workers designed to capture information more
accurately. The commenter specifically recommended
that the form provide checkboxes for the different types
of reporting triggers, include instructions containing
regulatory definition for abscondment, and include a
free-text field where employers would be required to
explain the circumstances necessitating the reporting,
and steps taken by the employer to confirm the accuracy
of the report. The commenter also requested that USCIS
include an affirmative obligation to attest that the
employer is aware that it may not use the reporting
requirement to make immigration-related threats, and
requested that USCIS require that the report be
submitted under penalty of perjury.

USCIS appreciates your comment but notes that it goes beyond
the scope of this form extension. USCIS plans to consider this and
other suggestions made by you that pertain to the revision of this
information collection in connection with a future revision action,
with respect to additional requirements that are not contemplated
by the current regulations (such as a requirement to explain why
the reporting is necessary and describe steps taken to confirm
accuracy of the report), DHS may consider these suggestions in
future regulatory efforts. If DHS creates a form in the future for
this reporting requirement, such form would include standard
attestations applicable to USCIS forms. DHS appreciates your
recommendation of making the reporting requirement subject to
the penalty of perjury. Even without an affirmative obligation to
attest under the penalty of perjury, petitioners who submit false
reports to USCIS regarding workers absconding would be subject
to 18 U.S.C. 1001(a)(2) and could be fined or imprisoned for
knowingly or willfully making false statements to the executive
branch of the U.S. government.

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Responses to 60 and 30-day FRN Public Comments
OMB-49 – Extension
OMB Control Number: 1615-0107
Commenter and
comment #
Texas RioGrande
Legal Aid, Inc.
(TLRA)

Comment

USCIS Response

The commenter suggested that USCIS should enforce
notification requirements regarding early termination in
the same way it enforces notification requirements
related to absconders. The commenter noted that it had
never seen such notifications over decades representing
H-2 workers and receiving responses to FOIA requests,
and noted that early termination is a common practice
in the H-2 industries and that employers generally
request workers for longer than their actual need. The
commenter noted that too many growers send the bulk
of workers home early after the season’s peak and then
report them as absconders or fail to pay the threequarters guarantee. The commenter suggested that such
reports should be used by USCIS and DOL to reduce the
employer’s period of need based on evidence of actual
need.

Thank you for your suggestion. As the notification requirements
are codified in DHS regulations, USCIS agrees that employers must
adhere to them. The question of enforcement, however, is
outside the scope of the current form extension. You may rest
assured that USCIS, takes these, as all other DHS regulations,
seriously, and continuously works together with other Federal
agencies, within and outside of DHS, to ensure compliance with
existing regulations.

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Responses to 60 and 30-day FRN Public Comments
OMB-49 – Extension
OMB Control Number: 1615-0107
Commenter and
comment #
Jean Publieee
USCIS-20090015-0020

Comment

USCIS Response

this allowance of foreign workers into the usa so that
they can take jobs away from american workers and
drive down the cost of labor is absolutely disgusting. itis
an anti labor move b y our govt agencies. it is anti
labor so that the average working person has not been
able to get much of a raise for his labor in the usa
for quite some time now. wages in l950 were good for
americans. they are down to poverty level for alot of
americna workers right now with the billionaires making
out on cheap labor. meanwhile americans pay high
taxes, while these foreigner claim 8 babies and pay no
tax at all to our govt. the entire scheme is rotten
robbery and thievery fro mteh american citizens. shut
down immigation so that american woerks have a
chance at a job at a decent wage in their own country.
our own govt is working against us. this is an anti labor
action letting in these foreign leaches. they want free
everything, free med care, free rent, free food, free
schools. they pay for nothing. deport them all

Thank you for your comment. Your comment does not seem to
include thoughts or suggestions related to this information
collection. USCIS will not make any changes to the information
collection.

Jean publiee
USCIS-20090015-0016

certainly the $8500 related as the cost of htis program
doesnot include the costs of all the employees that
are involved in this project because each federal
employee represents at least $150,000 of taxpayer
fundsplus probably alot more. so the costs of this
program are not correctly stated imo. we have many
foreign employees who come into this country at teh
behest of many traitorous american employers who
want to pay less money and put an american woreker
out of a job. i find that traitorous to american workers

Thank you for your comment. $8,500 was the estimated annual
cost to respondents based on estimated postage. USCIS has
updated a portion of the data regarding the number of
respondents based on more recent data regarding employmentrelated notices. The revised estimated annual cost to respondents
is $18,875.
The estimated annual Government cost is $260,202 for this
information collection. The estimated cost of the program to the
Government is calculated by multiplying the estimated total
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Responses to 60 and 30-day FRN Public Comments
OMB-49 – Extension
OMB Control Number: 1615-0107
Commenter and
comment #

Comment

USCIS Response

and it shoudl be looked upon as triatorous to all
ameicans. we need much more information as to why
employeers are bringing in so many millions of
foreingers to change america into something it never
was. American workers produced for this country. i see
no reason why we have to bring in afghans and
brazilians to do this work nowadays.

number of respondents (3,757) by the number of responses per
respondent (1) by one hour (amount of time for a USCIS officer to
review and process a notification) by $69.26 ($49.47 x 1.4
multiplier) (the hourly wage of a GS-12, Step 6, federal
government employee in Los Angeles, California).
It is unclear from the content of this comment what costs are
being referenced or how they relate to this information collection
or the burden estimate therefor. DHS is not proposing any changes
to its fee schedule as a part of this extension action. USCIS is not
making any changes to the information collection as a result of this
comment.

9