[Federal Register Volume 87, Number 185 (Monday, September 26, 2022)]
[Notices]
[Pages 58374-58376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20781]



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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.

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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parties to comment on draft guidance, in the form of Frequently Asked 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 
[email protected], or by submitting your comment(s) through 
https://www.regulations.gov/ 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\
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    \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).
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    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.
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    \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.
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    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

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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).
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    \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).
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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.
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    \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 
https://www.oalj.dol.gov/DECISIONS/ALJ/TLC/2021/In_re_Overlook_Harvesting__2021TLC00205_(DEC_09_2021)_124914_ORDER_PD
.PDF.
    \7\ See Overlook, supra note 6 (Sept. 30, 2021).
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    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.
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    \8\ See Overlook, supra note 6 (Dec. 3, 2021).
    \9\ Id.
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    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\
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    \10\ Id.
    \11\ Id.
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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 www.regulations.gov [ETA-
2022-0007] and on OFLC's website at https://www.dol.gov/agencies/eta/foreign-labor/news. Written comments may be sent by email to 
[email protected] until October 26, 2022, or by submitting 
your comment(s) through https://www.regulations.gov/ 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

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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 
https://www.dol.gov/agencies/eta/foreign-labor.

Brent Parton,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2022-20781 Filed 9-23-22; 8:45 am]
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