[Federal Register Volume 72, Number 127 (Tuesday, July 3, 2007)]
[Notices]
[Pages 36504-36507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-12766]
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DEPARTMENT OF LABOR
Employment and Training Administration
Special Guidelines for Processing H-2B Temporary Labor
Certification in Tree Planting and Related Reforestation Occupations
AGENCY: Employment & Training Administration, Department Of Labor.
ACTION: Notice.
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SUMMARY: This notice updates procedures for State Workforce Agencies
and ETA National Processing Centers to process H-2B labor certification
applications in tree planting and related reforestation occupations.
SUPPLEMENTARY INFORMATION:
I. References
Immigration and Nationality Act (INA) section 101(a)(15)(H)(ii)(b);
20 Code of Federal Regulations (CFR) Parts 652 and 655; 8 CFR
214.2(h)(6); Federal Register Notice, Vol. 70, No. 137, pps. 41430-
41438; Migrant and Seasonal Agricultural Worker Protection Act, 29
U.S.C. 1801, et seq.; 29 CFR part 500; and Training and Employment
Guidance Letter (TEGL) 21-06, Procedures for H-2B Temporary Labor
Certification in Non-Agricultural Occupations.
II. Background
The H-2B nonimmigrant program permits employers to hire foreign
workers to come to the United States (U.S.) and perform temporary non-
agricultural services or labor on a one-time, seasonal, peakload, or
intermittent basis. The H-2B visa classification requires the Secretary
of Homeland Security to consult with appropriate agencies before
admitting H-2B nonimmigrants. Homeland Security regulations require the
intending employer first to apply for a temporary labor certification
from the Secretary of Labor advising the Department of Homeland
Security's United States Citizenship and Immigration Services (USCIS)
as to whether qualified U.S. workers are available and whether the
alien's employment will adversely affect the wages and working
conditions of similarly employed U.S. workers, or a notice that such
certification cannot be made, prior to filing an H-2B visa petition
with USCIS.
However, in December 2004, the Department opened two new National
Processing Centers (NPCs), one each located in Atlanta and Chicago.
These Centers have been designated to process
[[Page 36505]]
applications to employ foreign workers for temporary positions under
the H-2B program. The Department published a notice in the Federal
Register (Vol. 70, No. 137, pages 41430-41438) on July 19, 2005,
clarifying that employers must file two (2) originals of the ETA Form
750, Part A, directly with the State Workforce Agency (SWA) serving the
area of intended employment and, once reviewed, the SWA will send the
complete application to the appropriate NPC. That process does not
apply to employer applications for emergency boilermakers,
entertainers, logging, and professional team sports, which were given
special filing instructions in the notice. The guidelines outlined in
this memorandum work in conjunction with this centralized filing
process, and ensure greater consistency in the processing of these H-2B
applications through the Centers.
III. Procedures for H-2B Applications in Tree Planting and Related
Reforestation Occupations
Due to a number of complexities, special guidelines for processing
H-2B applications for tree planting and related reforestation
occupations are required. For example, although the occupations of Tree
Planter, Forest Worker and Laborer, and Brush Clearer have many
similarities to agriculture, they are not so classified under either
the Internal Revenue Code or the Fair Labor Standards Act (FLSA).
Therefore, under the Immigration and Nationality Act (INA) they are not
authorized for the H-2A visa and must be processed as H-2B occupations.
However, two court decisions (Bresgal v. Brock, 833 F. 2d 763 (9th Cir.
1987), and Bracamantes v. Weyerhauser Co., 840 F.2d 271 (5th Cir.
1988)) directed the Department to cover migrant and seasonal forestry
workers under the Migrant and Seasonal Agricultural Worker Protection
Act (MSPA). In addition, because forestry occupations may have elements
of both agricultural and non-agricultural occupations or involve multi-
state itineraries, these applications cannot be solely processed
according to the general procedures for H-2B in TEGL 21-06.
Attachment A outlines special guidelines for processing labor
certification applications submitted by employers for occupations
involved in tree planting and related reforestation activities under
the H-2B program, subject to these special provisions. Unless otherwise
specified in Attachment A, applications submitted for these occupations
must comply with the requirements for H-2B applications contained in
TEGL 21-06.
IV. Effective Date
This guidance applies to all temporary labor certification
applications for occupations involved in tree planting and related
reforestation activities received by the SWAs on or after July 1, 2007.
V. Action Required
NPC Directors and SWA Administrators are requested to provide
Center and SWA staff involved in the processing of H-2B applications
with a copy of these procedures.
VI. Inquiries
Questions from State Workforce Agency staff should be directed to
the appropriate NPC Certifying Officer.
Signed at Washington, DC, this 27 day of June 2007.
Emily Stover DeRocco,
Assistant Secretary, Employment & Training Administration, Labor.
Attachment A: Special Guidelines for Occupations Involving Tree
Planting and Related Reforestation Activities Under the H-2B Program
This section outlines special guidelines for employer applications
involving tree planting and related reforestation occupations under the
H-2B program. Unless otherwise specified in this attachment,
applications submitted for these occupations must comply with the
requirements for H-2B applications contained in TEGL 21-06.
I. Application of Temporary Need Standards Involving Tree Planting and
Related Reforestation Occupations
A. The employer's need for temporary non-agricultural services or
labor in tree planting and related reforestation occupations must be
justified to the NPC Certifying Officer under one of the following
standards: (1) A one-time occurrence, (2) a seasonal need, (3) a
peakload need, or (4) an intermittent need.
B. Tree planting and reforestation are predominantly seasonal
activities determined by climatic conditions occurring once, or in some
locations, twice a year. Although some applications for relatively
short itineraries can be justified under the peakload standard, the
employer's need for the services or labor to be performed may be more
appropriately justified under the seasonal standard.
Employers will typically bid on a sequence of work contracts
linking each seasonal activity into an itinerary covering, in some
instances, a major portion of the year. Since tree planting and related
reforestation activities are covered by the Migrant and Seasonal
Agricultural Worker Protection Act (MSPA), the MSPA definition of ``on
a seasonal or other temporary basis'' cited at 29 CFR 500.20 provides
guidance for determining whether the job offer is for temporary
employment. Under MSPA, ``seasonal'' basis means the following:
``Labor is performed on a seasonal basis, where, ordinarily, the
employment pertains to or is of the kind exclusively performed at
certain seasons or periods of the year and which, from its nature, may
not be continuous or carried on throughout the year. A worker, who
moves from one seasonal activity to another, while employed in
agriculture or performing agricultural labor, is employed on a seasonal
basis even though he may continue to be employed during a major portion
of the year.''
The term ``other temporary basis'' refers to employment where a
worker is employed for a limited time only or where performance is
contemplated for a particular piece of work, usually of short duration.
Generally, employment which is contemplated to continue indefinitely is
not temporary.
C. Whether the work to be performed, as described in a tree
planting application, is temporary or permanent in nature will be
determined by examining the employer's need for such workers for the
duration of the itinerary. As with every request for H-2B labor
certification, an employer's seasonal need of longer than 10 months,
which is of a recurring nature, must be supported by compelling
evidence to the NPC Certifying Officer that the employer's need for
such work and the job opportunity itself are not ongoing or otherwise
permanent. A peakload need longer than 10 months will not be certified.
II. Special Application Filing Procedures
A. An employer requesting temporary labor certification who meets
the MSPA definition of a Farm Labor Contractor (FLC) (see item II(C)(1)
below) must register as a FLC with the Department of Labor's Employment
Standards Administration (ESA) before filing a H-2B application for
workers who will be performing predominantly manual work, which
includes, but is not limited to, tree planting, brush clearing, and
precommercial tree thinning. The employer must also provide proof of
current registration, including proof of the registration of any Farm
Labor Contractor Employees (FLCE--see item II(C)(1) below) at the time
of filing.
The FLC and FLCE certificate(s) of registration must be valid for
the entire
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period of need. If the expiration date of the FLC or FLCE
certificate(s) falls at any point during the period of need, the
employer must submit a signed written assurance that an application for
renewing FLC and FLCE certificate(s) will be submitted timely to ESA in
order to attempt to ensure that the certificate(s) are valid during the
entire period of need.
B. In situations where the employer is not properly registered as a
FLC, the SWA must promptly return the application with a notification
that the SWA cannot accept a job opportunity for a reforestation
related occupation when the employer is not registered as a FLC.
C. Important FLC Terms and Information
1. A Farm Labor Contractor means any person, other than an
agricultural employer, an agricultural association, or an employee of
an agricultural employer or agricultural association, who, for any
money or other valuable consideration paid or promised to be paid,
performs any farm labor contracting activity. Farm labor contracting
activities include recruiting, soliciting, hiring, employing,
furnishing, and/or transporting workers. ``Agricultural employer''
includes any person who owns or operates a farm, ranch, processing
establishment, cannery, gin, packing shed, or nursery, or who produces
or conditions seed. ``Agricultural association'' means any nonprofit or
cooperative association of farmers, growers, or ranchers incorporated
or qualified under applicable State law. A farm labor contractor
employee is a person who performs a farm labor contracting activity
solely on behalf of a farm labor contractor holding a valid Certificate
of Registration and who is not an independent farm labor contractor who
would be required to register under the Act in his own right.
2. For information on how to apply as a FLC or FLCE or to obtain a
listing of persons and companies currently registered, please contact
the nearest office of the Employment Standards Administration (ESA),
Wage and Hour Division. A current listing of the ESA District Offices
can be obtained at the following Web site: http://www.dol.gov/esa/contacts/whd/america2.htm.
3. For information on individuals or companies who are not eligible
to register as a FLC and may not engage in any activity as a FLC or as
a Farm Labor Contractor Employee (FLCE) as defined by the Migrant and
Seasonal Agricultural Worker Protection Act (MSPA), please visit the
ESA Web site at the following address: http://www.dol.gov/esa/regs/statutes/whd/mspa_debar.htm.
4. Each facility or real property used to house and each vehicle
used to transport workers must be described in the application. Housing
and transport vehicles for MSPA-covered workers must be authorized for
use on the FLC's certificate of registration prior to use. Each driver
of a vehicle transporting MSPA-covered workers must have an FLC or FLCE
(Farm Labor Contractor Employee) certificate of registration that
specifically authorizes driving (see II(A) above concerning expiration
dates of FLC or FLCE certificates).
5. Prior to granting approval on a temporary labor certification
application, the employer must submit a signed, written assurance that
all registrations, permits, and/or other required licenses for
vehicles, housing, or drivers will remain valid during the entire
period of use.
D. Employers have the option of filing a single master application
covering multiple itineraries or separate applications for each
itinerary where the tree planting or related reforestation work will
begin. Alaska, Hawaii, and the U.S. territories may not be included in
multi-state itineraries.
1. Employers are permitted to develop and file an itinerary under
the following conditions:
a. If the itinerary includes worksite locations covering multiple
SWAs, the employer may submit a single application to the SWA where the
itinerant employment will begin. In those instances where the start
dates for each worksite location in the itinerary are exactly the same,
the employer may submit a single application to any one of the SWAs
covered by the itinerary. If the employment crosses NPC jurisdictions
as well, the NPC that has jurisdiction over the SWA where the
employment will begin shall process the application.
b. In situations where the worksite locations cover multiple SWAs,
the states listed in the itinerary must be contiguous or located within
close geographic proximity to one another. Itineraries where the
worksite locations cover multiple states over widely separated
geographic areas (e.g., Texas, Arkansas, and Idaho, or Georgia,
Alabama, and Maine) are not normal to reforestation occupations and
will not be permitted. Such itineraries make it extremely difficult for
the Department to satisfy its statutory mandate for determining the
availability of domestic workers as a predicate to temporary labor
certification. An employer who seeks H-2B workers for job opportunities
in one or more remote ``downstream'' states must file separate
applications and job orders for those locations.
c. The employer must submit a signed and dated itinerary to the SWA
with its application and include the following information:
The names, physical addresses, telephone numbers, and
wages offered in each worksite location. If no physical address and/or
telephone number is available, the employer must provide as much
geographic detail as possible (e.g., county/city/township/state
corresponding to the itinerary time-frame) regarding the location of
the crews performing the work;
The total number of crews' and total number of workers in
each crew; and
The estimated start and end dates of work in each worksite
location. Since the work of tree planting and related reforestation
occupations are dependent on climatic conditions, the precise ending
dates and subsequent contracts may not be defined at the time of
placing a job order.
2. Employers are permitted to file a single master application for
multiple itineraries under the following conditions:
a. When examining the starting locations of each itinerary, the
master application must be filed with the SWA where the largest number
of job opportunities is being requested on the itineraries included in
the master application. If the employment crosses NPC jurisdictions as
well, the NPC that has jurisdiction over the SWA where the employment
will begin shall process the application.
b. The application must consist only of crews working for a single
employer.
c. The total range of the crews start dates cannot be more than 14
calendar days apart.
III. Special SWA Processing Instructions
A. SWAs should accept agent designations on the ETA Form 750, which
is similar to filing procedures under the H-2A program. The employer's
application to the SWA must include a copy of the ``Agent Agreement''
or similar document to substantiate that specific authority has been
granted to the agent. (Note: As under the H-2A program, an ``agent''
who meets the definition of an FLC under MSPA (see II(A) and II(C)(1)
above) must be registered as an FLC with ESA prior to engaging in any
farm labor contracting activity. ``Recruiting'' and ``soliciting'' are
farm labor contracting activities. If the employer is represented by an
attorney, the attorney
[[Page 36507]]
must file a Notice of Appearance (G-28) with the application package.
B. SWAs must review all itineraries to ensure each is normal to
tree planting and related reforestation occupations (i.e., it is
prevailing practice to start in a particular area; what type of
itineraries are normal for contracts and the H-2B program), and contact
the appropriate NPC Certifying Officer when they receive an itinerary
that may not reflect prevailing practice.
C. Employers can require tree planter workers to perform minor
related reforestation job activities such as tree seedling pulling,
thinning, seed cone gathering, and pine straw gathering. These
activities must be stipulated in the application and job order to
apprise workers of the full scope of possible job duties.
D. A job opportunity containing a wage offer below the prevailing
wage will not be accepted. In accordance with TEGL 21-06, the SWA shall
determine the prevailing wage, guided by the regulations at 20 CFR
656.40 and in accordance with Employment and Training Administration,
Prevailing Wage Determination Policy Guidance, Non-Agricultural
Immigration Programs, Revised May 9, 2005.
E. A job opportunity specifying that workers are to be paid on a
piece rate basis must also guarantee the required hourly wage rate per
pay period. The required hourly wage rate will be the prevailing wage
rate determined by the SWA. If the piece rate does not result in
average hourly piece rate earnings during the pay period at least equal
to the amount the worker would have earned had the worker been paid at
the hourly rate, the worker's pay must be supplemented to increase the
earnings to the equivalent hourly level. In situations where workers
will be paid on a piece rate basis, the job offer must identify the
piece rate, the length of the pay period and the ending day of the week
of the payroll period and date, and the minimum productivity required
for job retention.
F. When commencing recruitment, the SWA shall prepare a job order,
using the information on the application, and place it into the SWA job
bank system for 10 calendar days. During this period, the SWA should
refer qualified applicants who contact the local offices and those in
its active job files. If the application indicates that work will be
performed in other states in the itinerary, the SWA shall clear the job
order for 10 calendar days with the appropriate State(s) where the work
is to be performed and accept for referral to the employer qualified
applicants from the State(s).
G. During the 10-day posting of the job order, the employer shall
advertise the job opportunity in a newspaper of general circulation for
3 consecutive calendar days or in a readily available professional,
trade or ethnic publication, whichever the SWA determines is most
appropriate for the occupation and most likely to bring responses from
U.S. workers. If the job opportunity is located in a rural area that
does not have a newspaper with a daily edition, the employer shall use
a daily edition with the widest circulation in the nearest urban area
or such other publication as determined by the SWA.
H. The SWA intrastate and interstate job postings and employer
advertisements must include the following information:
1. Identify the employer's name and direct applicants to report or
send resumes to the SWA for referral to the employer.
2. Address of the SWA local office and job order number.
3. Description of the job opportunity with particularity, including
a summary of the itinerary, duties to be performed, work hours and
days, and, if applicable, benefits (e.g., housing and free
transportation) and incentive wages (e.g., piece rates).
4. Starting locations and wages at each crew's starting location.
5. Notice if employees must purchase or rent tools.
6. Offer wages, terms, and conditions of employment which are not
less favorable than those offered to the alien and are prevailing for
the occupation, activity, and industry.
7. State the total number of job openings the employer intends to
fill.
8. Notice that the job opportunity is temporary.
I. SWAs should examine all deductions (including housing,
transportation, meals, tools, safety equipment, etc.) to determine if
they are allowable in accordance with the Fair Labor Standards Act. To
obtain more information on the propriety of the deduction(s), SWAs
should contact the appropriate office of the ESA Wage and Hour
Division. Consultation with the Wage and Hour Division is extremely
important for those deductions which are for tools of the trade and
other materials and services incidental to carrying on the employer's
business. SWAs should contact the appropriate NPC if deductions are not
in accordance with the prevailing practice for the area. SWA and ETA
decisions regarding allowable deductions are not binding on the ESA
Wage and Hour Division.
IV. Special Instructions for Completing the ETA Form 750, Part A
A. To ensure consistency in completing applications, employers and
SWAs should use the following annotations:
a. Item 7--Employers should write ``See Attached
Itinerary'' and follow the instructions for itineraries under section
II.D.
b. Item 10b--Employer should note the maximum number of
hours required for overtime.
c. Item 12b--Employer should note ``rate of pay'' which
shall be time and a half.
d. Item 13--Production standards must be disclosed, and
the employer must provide documentation to the SWA substantiating any
standard higher than the prevailing practice in the industry. Most
reforestation employers have been in the reforestation business for a
sufficient number of years so as to have records/documents on file.
Such records/documents can include, but are not limited to, past
production records, improved equipment, statement of how terrain will
impact production rate. SWAs should use their best judgment, based on
prevailing practice, to accept or deny the employer's justification.
e. Item 15--Specific requirements such as requiring
employees to purchase tools or housing accommodations should be noted.
In accordance with the MSPA, transportation, housing, and any other
employee benefits to be provided and any costs to be charged for each
of them must be disclosed to the workers. Further, if there is a
relationship between the employer and the store to which employees are
directed to purchase or rent tools, it must be disclosed to the
employee. This information should also be stated in the job order.
B. In accordance with procedures established under TEGL 21-06, the
SWA shall advise the employer to correct any deficiencies in the
application before commencing recruitment. SWAs are authorized to close
cases in circumstances where the employer fails to address all
deficiencies in the application (correction letter) or respond in a
timely manner to a recruitment letter.
[FR Doc. E7-12766 Filed 7-2-07; 8:45 am]
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