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Federal Register / Vol. 86, No. 239 / Thursday, December 16, 2021 / Rules and Regulations or seasonal nature, specify that employment is of a temporary nature where the employers need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than 1 year, and 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 655.103d; 8 CFR
214.2h5ivA; 75 FR 6884, 6890
adopting DHSs definition was not intended to create any substantive change in how the Department administers the program. DHS
regulations further provide that the Departments finding that employment is of a temporary or seasonal nature is normally sufficient for the purpose of an H2A petition, but state that notwithstanding this finding, DHS
adjudicators will not find employment to be temporary or seasonal in certain situations, such as when substantial evidence exists that the employment is not temporary or seasonal. 8 CFR
214.2h5ivB.
Notwithstanding the regulatory definition found in 20 CFR 655.103d and 8 CFR 214.2h5ivA, the 2015
Rule allowed employers of sheep and goat herders to apply for a temporary agricultural labor certification for a period of up to 364 days. 80 FR 62958, 6299963000; see 20 CFR 655.215b2
The period of need identified on the H2A Application for Temporary Employment Certification and job order for range sheep or goat herding or production occupations must be no more than 364 calendar days..
Conversely, the same rule limited employers of range livestock work to a temporary agricultural labor certification with a period of need not to exceed 10 months. 80 FR 62958, 63000; see 20 CFR 655.215b2 The period of need identified on the H2A
Application for Temporary Employment Certification and job order for range herding or production of cattle, horses, or other domestic hooved livestock, except sheep and goats, must be for no more than 10 months..

employers seeking temporary agricultural labor certifications for sheep or goat herder positions to apply for periods of need that last up to 364
days at a time. See Hispanic Affairs Project v. Acosta, 263 F. Supp. 3d 160, 182 D.D.C. 2017 citing 20 CFR
655.215b2. The plaintiffs also challenged DHSs alleged practice of automatically approving sheep and goat herder petitions for recurring periods up to 364 days, asserting that the Departments regulation at 655.215b2 and DHSs alleged practice did not conform with the INA
or the Departments regulations, in violation of the APA. See id.
Specifically, the plaintiffs argued 655.215b2 and DHSs alleged practice are inconsistent with 8 U.S.C.
1101a15Hiia, which provides that H2A visas be only for temporary work, and conflicts with the Departments regulations defining when employment is of a temporary or seasonal nature. See id.; compare 20
CFR 655.103d and 8 CFR
214.2h5ivA employers need to fill the position with a temporary worker will . . . last no longer than one year with 20 CFR 655.215b2 The period of need identified on the application and job order . . . must be no more than 364 calendar days.. The district court dismissed the challenge on procedural grounds, concluding the plaintiffs waived their claim against the Department and did not properly or timely raise their claim against DHS. Id.
at 18586, 190.8
On appeal, the D.C. Circuit reversed and remanded the district courts decision on these claims for a resolution on the merits. Hispanic Affairs Project v. Acosta, 901 F.3d 378, 39697 D.C.
Cir. 2018. The court held the plaintiffs preserved their challenge to the Departments decision in the 2015 Rule to classify sheep and goat herding as temporary employment. Id. at 385. In dicta, the court noted the agency has no power under the statuteit is actually forbiddento include nontemporary or non-seasonal workers in the H2A program. Id. at 389. The court also held the complaint
C. The Hispanic Affairs Project Litigation and Need for Rulemaking On September 22, 2015, four sheepherders and a nonprofit member organization for immigrant workers filed a lawsuit in federal court challenging aspects of the 2015 Rule. Hispanic Affairs Project v. Perez, 206 F. Supp. 3d 348 D.D.C. 2016. As relevant to this rulemaking, the plaintiffs challenged the Departments decision to allow
8 Plaintiffs also challenged two other aspects of the 2015 Rule: 1 Certain definitions and requirements that limit the scope and location of work that H2A workers in sheep and goat herding positions may perform, 80 FR 62958, 6296373; and 2 the methodology by which the Department calculates the minimum required wage that such workers and any non-H2A workers in corresponding employment must be offered and paid, id. at 6298696. The Department and DHS
prevailed on these issues. See Hispanic Affairs Project v. Acosta, 901 F.3d 378, 39196 D.C. Cir.
2018, affg in part 263 F. Supp. 3d 160, 190207
D.D.C. 2017.

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adequately raised a challenge to DHSs alleged practice of extending temporary H2A petitions beyond the regulatory definition of temporary employment. Id. at 385, 388. Taking the evidence submitted by the plaintiffs as true, the court concluded the plaintiffs had plausibly shown that DHSs de facto policy of authorizing long-term visas is arbitrary, capricious, and contrary to law, in violation of the APA
and INA because it authorizes the creation of permanent herder jobs that are not temporary or seasonal. Id. at 386 original alterations omitted.
The parties subsequently reached a settlement in which the Department agreed to engage in rulemaking to propose to rescind 655.215b2 and DHS, through U.S. Citizenship and Immigration Services USCIS, agreed to publish a policy memorandum that provided guidance on the determination of temporary or seasonal need for H2A
sheep and goat herder petitions. Joint Status Report at 1, ECF No. 135, Hispanic Affairs Project, et al. v. Scalia et al., No. 15cv1562 D.D.C. Nov. 8, 2019; see also Order Approving the Parties Settlement Agreement, ECF No.
136, Hispanic Affairs Project, et al. v.
Scalia et al., No. 15cv1562 D.D.C.
Nov. 12, 2019. Following a 30-day public comment period, USCIS
published a final policy memorandum on February 28, 2020, which became effective on June 1, 2020. See USCIS, Policy Memorandum: Updated Guidance on Temporary or Seasonal Need for H2A Petitions Seeking Workers for Range Sheep and/or Goat Herding or Production Feb. 28, 2020
USCIS Policy Memorandum.9 On May 6, 2021, the Department published a NPRM that proposed to rescind 655.215b2.
II. Discussion of Proposed Revision to 20 CFR Part 655, Subpart B
The Department proposed to rescind 655.215b2 so that the temporary or seasonal need of an employer seeking to fill a herding or production of livestock on the range position would be adjudicated according to the requirement in 655.103d that governs the adjudication of employment of a temporary or seasonal nature for all other H2A applications. See 20 CFR
655.200a noting that employers whose job opportunities meet the qualifying criteria under 655.200655.235 must fully comply with all the requirements of 655.100655.185 unless otherwise specified in 655.200655.235.
9 See https www.uscis.gov/sites/default/files/
USCIS/Laws/Memoranda/2020/2-PMH2A-Seasonal SheepGoatHerder_PolicyMemo.pdf.

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