Notice2022-20781
Comment Request; H-2A Frequently Asked Questions Guidance-Round 17: Temporary or Seasonal Need Assessments; Relevant Information or Factors Related to H-2A Labor Contractors Operating in an Area of Intended Employment Where Agricultural Production May Occur Year-Round
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 26, 2022
Issuing agencies
Labor DepartmentEmployment and Training Administration
Abstract
The Department of Labor's (Department or DOL) Employment and Training Administration (ETA) invites employers and other interested parties to comment on draft guidance, in the form of Frequently Asked Questions (FAQs), pertaining to the Office of Foreign Labor Certification's (OFLC) assessment of the nature of an employer's need for agricultural labor or services during the review of an H-2A Application for Temporary Employment Certification (H-2A application). ETA's OFLC developed this guidance, and is publishing it for public comment, consistent with a directive from the Secretary of Labor (Secretary) for interpretive guidance clarifying how the Department assesses an H-2A employer's need for agricultural labor or services to determine whether the employer has demonstrated a need of a temporary or seasonal nature, as required for certification. ETA invites the public to review the draft FAQs presented in this notice and provide written comments to OFLC, which will further inform the Department's development of guidance regarding OFLC's assessment of temporary or seasonal need for the H-2A program. The Department will publish this final guidance in the Federal Register.
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 185 (Monday, September 26, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 185 (Monday, September 26, 2022)]
[Notices]
[Pages 58374-58376]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-20781]
[[Page 58374]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Employment and Training Administration
Comment Request; H-2A Frequently Asked Questions Guidance--Round
17: Temporary or Seasonal Need Assessments; Relevant Information or
Factors Related to H-2A Labor Contractors Operating in an Area of
Intended Employment Where Agricultural Production May Occur Year-Round
AGENCY: Employment and Training Administration, Department of Labor.
ACTION: Notice; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Department of Labor's (Department or DOL) Employment and
Training Administration (ETA) invites employers and other interested
parties to comment on draft guidance, in the form of Frequently Asked
Questions (FAQs), pertaining to the Office of Foreign Labor
Certification's (OFLC) assessment of the nature of an employer's need
for agricultural labor or services during the review of an H-2A
Application for Temporary Employment Certification (H-2A application).
ETA's OFLC developed this guidance, and is publishing it for public
comment, consistent with a directive from the Secretary of Labor
(Secretary) for interpretive guidance clarifying how the Department
assesses an H-2A employer's need for agricultural labor or services to
determine whether the employer has demonstrated a need of a temporary
or seasonal nature, as required for certification. ETA invites the
public to review the draft FAQs presented in this notice and provide
written comments to OFLC, which will further inform the Department's
development of guidance regarding OFLC's assessment of temporary or
seasonal need for the H-2A program. The Department will publish this
final guidance in the Federal Register.
DATES: Submit written comments on or before October 26, 2022.
ADDRESSES: You may submit written comments electronically by email to
<a href="/cdn-cgi/l/email-protection#df9a8b9ef19099939cf197ed9e8db0aab1bbeee89fbbb0b3f1b8b0a9"><span class="__cf_email__" data-cfemail="347160751a7b7278771a7c0675665b415a50050374505b581a535b42">[email protected]</span></a>, or by submitting your comment(s) through
<a href="https://www.regulations.gov/">https://www.regulations.gov/</a> using the docket number ETA-2022-0007.
OFLC will receive comments through both means, so there is no need to
duplicate your comment submissions through both means.
Comments are invited only on: (1) the clarity of the agency's
guidance; (2) whether aspects of the guidance require further
explanation or detail; and (3) suggestions for ways to clarify the
guidance or complexities of the subject matter. Comments must be made
in writing and pertain to the guidance (i.e., FAQs) accompanying this
notice directly.
FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office
of Foreign Labor Certification, Employment and Training Administration,
Department of Labor, 200 Constitution Avenue NW, Room N-5311,
Washington, DC 20210, telephone (202) 693-8200 (this is not a toll-free
number). Individuals with hearing or speech impairments may access the
telephone numbers above via TTY/TDD by calling the toll-free Federal
Information Relay Service at 1 (877) 889-5627.
SUPPLEMENTARY INFORMATION:
I. Statutory and Regulatory Background
Under the Immigration and Nationality Act (INA), as amended by the
Immigration Reform and Control Act of 1986 (IRCA), the H-2A visa
program permits U.S. employers to employ foreign workers on a temporary
basis to perform agricultural labor or services. See 8 U.S.C.
1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1) and 1188.\1\ The
INA further authorizes the Secretary of the Department of Homeland
Security (DHS) to permit employers to employ foreign workers to perform
temporary agricultural labor or services of a temporary or seasonal
nature if the Secretary of Labor certifies that: there are not
sufficient workers who are able, willing, and qualified, and who will
be available at the time and place needed to perform the labor or
services involved in the petition; and the employment of H-2A workers
in such labor or services will not adversely affect the wages and
working conditions of workers in the United States similarly employed.
See 8 U.S.C. 1188(a)(1). The Secretary has delegated the authority to
issue H-2A temporary labor certifications to the Assistant Secretary
for ETA, who in turn has assigned that authority to ETA's OFLC. In
addition, the Secretary has delegated to the Administrator, Wage and
Hour Division (WHD), the responsibility under Section 218(g)(2) of the
INA, 8 U.S.C. 1188(g)(2), to ensure employer compliance with the terms
and conditions of employment under the H-2A program.\2\
---------------------------------------------------------------------------
\1\ For ease of reference, sections of the INA are referred to
by their corresponding section in the United States Code.
\2\ See Secretary's Order 06-2010 (Oct. 20, 2010), 75 FR 66268
(Oct. 27, 2010); see also Secretary's Order 01-2014 (Dec. 19, 2014),
79 FR 77527 (Dec. 24, 2014).
---------------------------------------------------------------------------
OFLC receives H-2A application filings and reviews each filing for
compliance with the Department's regulatory requirements at 20 CFR part
655, subpart B.\3\ Once OFLC determines an H-2A application meets the
requirements for H-2A certification, OFLC issues a temporary labor
certification, and the employer may then petition DHS to employ a
foreign worker in the United States in the H-2A visa classification.
The Department's regulations at 20 CFR 655.161 provide that the
criteria for certification include, among other things, ``whether the
employer has established the need for the agricultural services or
labor to be performed on a temporary or seasonal basis.'' Where
temporary or seasonal need for agricultural labor or services cannot be
established, the employer may apply for labor certification, if
applicable, through another visa program appropriate to its need for
labor or services.
---------------------------------------------------------------------------
\3\ The information collection for H-2A applications, as well as
related forms, instructions, appendices, and addenda for the H-2A
program, and their associated burdens, are approved under OMB
Control Number 1205-0466.
---------------------------------------------------------------------------
Pursuant to these authorities, OFLC reviews H-2A applications on a
case-by-case basis to determine whether the employer has established a
need ``of a temporary or seasonal nature'' for the agricultural labor
or services requested, as defined in the Department's regulations at 20
CFR 655.103(d). The Department's definition of a ``temporary or
seasonal nature'' has largely remained unchanged for the H-2A program
since the 1987 regulations, notwithstanding the H-2A provision for
herding and the open range production of livestock.\4\ See Labor
Certification Process for the Temporary Employment of Aliens in
Agriculture and Logging in the United States, 52 FR 20496, 20498 (June
1, 1987); United States Citizenship and Immigration Services (USCIS)
interpretive guidance: Policy Memorandum 602-0176.1, Updated Guidance
on Temporary or Seasonal Need for H-2A Petitions Seeking Workers for
Range Sheep and/or Goat Herding or Production, dated February
[[Page 58375]]
28, 2020 (USCIS PM-602-0176.1); see also Temporary Workers Under Sec.
301 of the Immigration and Reform Act, 11 Op. O.L.C. 39, 40 (1987)
(Temporary Workers). When promulgating the 2010 H-2A Final Rule,\5\ the
Department's current regulatory framework, the Department adopted DHS's
definition of ``temporary or seasonal nature'' at 20 CFR 655.103(d), in
order to promote greater consistency between the two departments'
definitions of these terms and to reduce stakeholder confusion
concerning the definition of temporary or seasonal need, which both DHS
and DOL assess; however, this alignment of definitions did not create
any substantive change in how DOL assesses ``temporary'' or
``seasonal'' need for the H-2A program. See Final Rule, Temporary
Agricultural Employment of H-2A Aliens in the United States, 75 FR
6884, 6890 (Feb. 12, 2010) (2010 H-2A Final Rule); compare 20 CFR
655.103(d) with 8 CFR 214.2(h)(5)(iv)(A); see also USCIS PM-602-0176.1;
Temporary Workers. Under this definition, employment is of a seasonal
nature where it is tied to a certain time of year by an event or
pattern, such as a short annual growing cycle or a specific aspect of a
longer cycle, and requires labor levels far above those necessary for
ongoing operations. 20 CFR 655.103(d). Employment is of a temporary
nature where the employer's need to fill the position with a temporary,
as opposed to seasonal, worker will, except in extraordinary
circumstances, last no longer than one year. See id. As stated in the
Department's 1987 rule, ``the longer the employer needs a `temporary'
worker, the more likely it would seem that the job has in fact become a
permanent one.'' 52 FR 20496, 20498 (June 1, 1987).
---------------------------------------------------------------------------
\4\ On December 16, 2021, the Department published a final rule
to rescind 20 CFR 655.215(b)(2), a regulatory provision which
permitted employers of range sheep and goat herders to apply for a
temporary agricultural labor certification for a period of up to 364
days. See Adjudication of Temporary and Seasonal Need for Herding
and Production of Livestock on the Range Applications Under the H-2A
Program, 86 FR 71373 (Dec. 16, 2021). Consistent with a court-
approved settlement agreement, the final rule rescinded the
regulatory provision to ensure the Department's adjudication of
temporary or seasonal need is conducted in the same manner for all
applications for temporary agricultural labor certification.
\5\ The Department's reference to ``the 2010 H-2A Final Rule''
herein includes the regulatory text adopted through that rulemaking,
75 FR 6884, and other minor revisions that took effect prior to the
issuance of this draft guidance. 2019 H-2A Recruitment Final Rule,
84 FR 49439 (rescinding the requirement that an employer advertise
its job opportunity in a print newspaper of general circulation in
the area of intended employment; expanding and enhancing the
Department's electronic job registry; and leveraging the expertise
and existing outreach activities of SWAs to promote agricultural job
opportunities); see also Final Rule, Rules Concerning Discretionary
Review by the Secretary, 85 FR 30608 (establishing a system of
discretionary secretarial review over cases pending before or
decided by the BALCA and to make technical changes to Departmental
regulations governing the timing and finality of decisions of the
ARB and the BALCA); 2021 H-2A Herder Final Rule, 86 FR 71373
(amending the regulations regarding the adjudication of temporary
need for employers seeking to employ nonimmigrant workers in job
opportunities covering the herding or production of livestock on the
range).
---------------------------------------------------------------------------
II. Need for Guidance
On August 4, 2021, OFLC's Certifying Officer issued a final
determination on an application filed by an H-2A labor contractor (H-
2ALC), denying certification because the employer did not establish a
temporary or seasonal need for its H-2A application and the
agricultural labor requested. The employer appealed the denial by
requesting a de novo hearing before an Administrative Law Judge (ALJ).
After the de novo hearing, the ALJ reversed OFLC's denial on September
9, 2021, and remanded the application to OFLC for further
processing.\6\ Under 29 CFR 18.95(b)(2) and (c)(2)(i), the Secretary
has discretion to exercise review of H-2A decisions that have been
decided by the Board of Alien Labor Certification (BALCA). Pursuant to
this authority, following a recommendation from the Chair of BALCA, the
Secretary exercised his authority of review and assumed jurisdiction
over the decision.\7\ Accordingly, on September 30, 2021, BALCA issued
a Notice of Secretarial Review, notifying the public that the Secretary
had exercised discretionary review authority over the decision.
---------------------------------------------------------------------------
\6\ See In the Matter of Overlook Harvesting Company, LLC
(thereafter Overlook), 2021-TLC-00205 (Sept. 9, 2021), Sec'y assumed
juris. (Sept. 30, 2021), Sec'y juris. withdrawn (Dec. 3, 2021); see
<a href="https://www.oalj.dol.gov/DECISIONS/ALJ/TLC/2021/In_re_Overlook_Harvesting__2021TLC00205_">https://www.oalj.dol.gov/DECISIONS/ALJ/TLC/2021/In_re_Overlook_Harvesting__2021TLC00205_</a>(DEC_09_2021)_124914_ORDER_PD
.PDF.
\7\ See Overlook, supra note 6 (Sept. 30, 2021).
---------------------------------------------------------------------------
On December 3, 2021, after careful consideration of the record on
review, the Secretary issued a notice withdrawing jurisdiction over the
decision and affirming that the ALJ's September 9, 2021, Decision and
Order was the Department's final determination.\8\ As explained in the
notice of withdrawal of jurisdiction, the Secretary determined that ``a
precedential decision in this case is not the best vehicle to resolve
the complex factual and regulatory issues involved in assessing whether
this, or any other, Employer has a temporary or seasonal need for
agricultural labor or services.'' \9\ Rather, the Secretary considered
interpretive guidance to be the appropriate vehicle to provide
clarification to both BALCA and the regulated community regarding the
Department's assessment of an employer's temporary or seasonal need for
agricultural labor or services in the H-2A program.
---------------------------------------------------------------------------
\8\ See Overlook, supra note 6 (Dec. 3, 2021).
\9\ Id.
---------------------------------------------------------------------------
The Secretary directed ETA to engage stakeholders and issue
interpretive guidance on this topic. In particular, the Secretary
requested ETA provide guidance ``in the context of H-2A Labor
Contractors (H-2ALCs) who operate in localities that can support
agricultural activities year-round.'' \10\ The Secretary requested the
guidance include how the Department evaluates factors that frequently
``arise when determining whether an employer has met its burden to
establish a temporary or seasonal need for agricultural labor or
services . . . the types of evidence relevant to making this
determination'' and how this evidence is assessed, ``including the
impact and relevance of an employer's previous history of filing
Applications for Temporary Employment Certification.'' \11\
---------------------------------------------------------------------------
\10\ Id.
\11\ Id.
---------------------------------------------------------------------------
III. ETA's Guidance
At the Secretary's direction, ETA has drafted guidance in the form
of Frequently Asked Questions (FAQs), Round 17: Temporary or Seasonal
Need Assessments; Relevant Information or Factors Related to H-2A Labor
Contractors Operating in an Area of Intended Employment Where
Agricultural Production May Occur Year-Round, to clarify for the public
the Department's assessment of temporary or seasonal need for the
certification of H-2A applications. In the guidance, ETA discusses the
considerations relevant to assessing temporary or seasonal need (e.g.,
impact and relevance of an employer's previous filing history in the
area of intended employment) for H-2A applications in a user-friendly
FAQ format that employers can use to apply to their own situations and
H-2A applications. ETA has developed this guidance to assist employers,
and to further that effort, is providing the public with a draft of the
guidance for review and an opportunity to submit written comments on
the guidance before it is officially issued.
Request for Comments
ETA seeks comments on the FAQ guidance referenced in this notice.
The FAQ guidance is available for review at <a href="http://www.regulations.gov">www.regulations.gov</a> [ETA-
2022-0007] and on OFLC's website at <a href="https://www.dol.gov/agencies/eta/foreign-labor/news">https://www.dol.gov/agencies/eta/foreign-labor/news</a>. Written comments may be sent by email to
<a href="/cdn-cgi/l/email-protection#0d48594c23424b414e23453f4c5f627863693c3a4d696261236a627b"><span class="__cf_email__" data-cfemail="dd98899cf3929b919ef395ef9c8fb2a8b3b9ecea9db9b2b1f3bab2ab">[email protected]</span></a> until October 26, 2022, or by submitting
your comment(s) through <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> using the docket
number ETA-2022-0007. OFLC will receive comments through both means, so
there is no need to duplicate your comment submissions through both
means. ETA will review all written comments that are timely submitted
in
[[Page 58376]]
the manner specified above and will modify the draft guidance, as
appropriate. Once ETA reviews the comments, it will publish final FAQs
through a future Federal Register notice and on the OFLC website at
<a href="https://www.dol.gov/agencies/eta/foreign-labor">https://www.dol.gov/agencies/eta/foreign-labor</a>.
Brent Parton,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2022-20781 Filed 9-23-22; 8:45 am]
BILLING CODE 4510-FP-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on September 26, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.