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Federal Register / Vol. 86, No. 239 / Thursday, December 16, 2021 / Rules and Regulations
I. Background on 20 CFR Part 655, Subpart B
A. Statutory Framework The H2A nonimmigrant worker visa program enables U.S. agricultural employers to employ foreign workers on a temporary basis to perform temporary or seasonal agricultural labor or services where the Secretary of Labor Secretary certifies that 1 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 2 the employment of foreign workers in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed. See section 101a15Hiia of the Immigration and Nationality Act INA, as amended by the Immigration Reform and Control Act of 1986 IRCA, 8 U.S.C.
1101a15Hiia; section 218a1 of the INA, 8 U.S.C. 1188a1. The Secretary has delegated the authority to issue temporary agricultural labor certifications to the Assistant Secretary, Employment and Training Administration ETA, who in turn has delegated that authority to ETAs Office of Foreign Labor Certification OFLC.
Secretarys Order 062010 Oct. 20, 2010.1 Once OFLC issues a temporary agricultural labor certification, employers may then petition the U.S.
Department of Homeland Security DHS to employ a nonimmigrant worker in the United States in the H2A
visa classification.

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B. Regulatory Framework Since 1987, the Department has operated the H2A temporary agricultural labor certification program under regulations promulgated pursuant to the INA.2 With limited exceptions, including those set forth below, the Departments current regulations governing the H2A program were published in 2010.3 The standards and 1 In addition, the Secretary has delegated to the Departments Wage and Hour Division the responsibility under section 218g2 of the INA, 8
U.S.C. 1188g2, to assure employer compliance with the terms and conditions of employment under the H2A program. Secretarys Order 01
2014 Dec. 19, 2014.
2 The Immigration and Nationality Act of 1952
created the H2 temporary worker program. Public Law 82414, 66 Stat. 163. In 1986, IRCA divided the H2 program into separate agricultural and nonagricultural temporary worker programs. See Public Law 99603, section 301, 100 Stat. 3359
1986. The H2A agricultural worker program designation corresponds to the statutes agricultural worker classification in 8 U.S.C.
1101a15Hiia.
3 Temporary Agricultural Employment of H2A
Aliens in the United States, 75 FR 6884 Feb. 12, 2010.

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procedures applicable to the certification and employment of workers under the H2A program are found in 20 CFR part 655, subpart B and 29 CFR part 501.4
Historically, employers in a number of States primarily but not exclusively in the western continental United States have used what is now the H2A
program to bring in foreign workers to work as sheep and goat herders.5
Beginning in 1989, and consistent with Congress historical approach, the Department established variances from certain H2A regulatory requirements and procedures through sub-regulatory guidance to allow employers of open range sheep and goat herders to use the H2A program. The Department established similar variances or special procedures through sub-regulatory guidance in 2007 for employers seeking to employ H2A workers for open range herding or production of livestock positions. In 2015, the Department incorporated these special procedures provisions for the employment of workers in the herding and production of livestock on the range, with some modifications, into its H2A
regulations. Temporary Agricultural 4 The Department remains engaged in a separate rulemaking that seeks to amend these regulations as they pertain to the H2A program. Through a Notice of Proposed Rulemaking published in July 2019 2019 NPRM, the Department proposed amendments to the current regulations that focus on modernizing the H2A program and eliminating inefficiencies. Temporary Agricultural Employment of H2A Nonimmigrants in the United States, 84 FR
36168 July 26, 2019. The 2019 NPRM also proposed to amend the regulations for enforcement of contractual obligations for temporary foreign agricultural workers and the Wagner-Peyser Act regulations to provide consistency with proposed revisions to H2A program regulations governing the temporary agricultural labor certification process. Id.; see also Adverse Effect Wage Rate Methodology for the Temporary Employment of H
2A Nonimmigrants in Non-Range Occupations in the United States, 85 FR 70445, 70447 Nov. 5, 2020 establishing a revised methodology for determining the Adverse Effect Wage Rate AEWR
methodology for non-range occupations in one final rule and explaining that the Department intends to address all of the remaining proposals from the July 26, 2019 proposed rule in a subsequent, second final rule governing other aspects of the certification of agricultural labor or services to be performed by H2A workers and enforcement of the contractual obligations applicable to employers of such nonimmigrant workers..
5 As the Department explained in its 2015 herder rulemaking, Congress enacted statutes during the early 1950s authorizing the permanent admission of a certain number of foreign workers skilled in sheepherding. See Temporary Agricultural Employment of H2A Foreign Workers in the Herding or Production of Livestock on the Open Range in the United States, 80 FR 20300, 20301
20302 Apr. 15, 2015. Congress subsequently permitted these special laws to expire and signaled that sheepherders should be admitted under the existing temporary then H2 program. Id.; see also Changes to Requirements Affecting H2A
Nonimmigrants, 73 FR 76891, 7690676907 Dec.
18, 2008.

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Employment of H2A Foreign Workers in the Herding or Production of Livestock on the Range in the United States, 80 FR 62958 Oct. 16, 2015
2015 Rule.6 The 2015 Rule, codified at 655.200 through 655.235, continued the agencys recognition of the unique occupational characteristics of herding positions, which involve spending extended periods of time herding animals across remote range lands and being on call to protect and maintain herds for up to 24 hours a day, 7 days a week.7
Section 101a15Hiia of the INA
permits only agricultural labor or services . . . of a temporary or seasonal nature to be performed under the H
2A visa category. 8 U.S.C.
1101a15Hiia. Thus, as part of the Departments adjudication of applications for temporary agricultural labor certification, the Department assesses on a case-by-case basis whether the employer has established a temporary or seasonal need for the agricultural work to be performed. See 20 CFR 655.161a. In its initial rulemaking on the H2A program, the Department explained that it would be appropriate for an employer to apply annually for recurring job opportunities in the same occupation when it involved truly seasonal employment, but acknowledged that the longer the employer needs a temporary worker, the more likely it would seem that the job has in fact become a permanent one. Labor Certification Process for the Temporary Employment of Aliens in Agriculture and Logging in the United States, 52 FR
20496, 20498 June 1, 1987. The Departments current regulations, which adopted DHSs definition of temporary 6 The 2015 Rule followed litigation in Mendoza v. Perez, in which the U.S. Court of Appeals for the District of Columbia Circuit D.C. Circuit held the special procedures pertaining to sheep, goat, and other open range herding or production of livestock were subject to the Administrative Procedure Acts notice and comment requirements. 754 F.3d 1002, 1024 D.C. Cir. 2014; see Mendoza v. Perez, 72 F.
Supp. 3d 168, 175 D.D.C. 2014 remedial order setting a rulemaking schedule.
7 The 2019 NPRM proposed clarifying and technical revisions to certain provisions concerning the employment of workers in herding and production of livestock on the range e.g., portions of 20 CFR 655.205, 655.211, 655.220, and 655.225
that are not the subject of this rulemaking. 84 FR
36168, 3622021. The 2019 NPRM also proposed to incorporate into the H2A regulations, with some modifications, the standards and procedures currently found in Training and Employment Guidance Letters related to animal shearing, commercial beekeeping, and custom combining, and to rescind the general provision that allows for the creation of special procedures i.e., subregulatory variances from the regulations. Id. at 3617173. As explained above, the Department remains engaged in a separate rulemaking addressing these proposed changes.

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