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Federal Register / Vol. 86, No. 239 / Thursday, December 16, 2021 / Rules and Regulations
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The Department explained in the NPRM that the proposed rescission of 655.215b2 would eliminate that provisions presumptive period of need for employment involving range sheep or goat herding and absolute restriction on the period of need for employment involving other range livestock activities. As the NPRM acknowledged, the 2015 Rule suggested the unique nature and history of herding work permitted a variance, on an occupational basis, from the standard H2A requirements governing the adjudication of an employers temporary need. As such, 655.215b2 allowed certification of a specific period of time without requiring the Department to assess the nature of the employers need for the labor or services to be performed.
The NPRM, accordingly, proposed to rescind 655.215b2 so that all employers applying for temporary agricultural labor certifications must individually demonstrate a temporary or seasonal need for the agricultural labor or services to be performed, regardless of occupation. As the Department explained in the NPRM, this rescission of 655.215b2 is not only consistent with the D.C. Circuits decision in Hispanic Affairs Project and the guidance issued by USCIS, but also better complies with the requirements of the INA implemented in the Departments regulations that define when employment is of a temporary or seasonal nature. 8 U.S.C.
1101a15HiiA defining an H2A
nonimmigrant as a foreign worker coming to perform services of a temporary or seasonal nature; 20 CFR
655.103d; 75 FR 6884, 6890 adopting DHSs definition of temporary or seasonal nature set forth in 8 CFR
214.2h5ivA. The Department sought public comment on all issues related to its proposal to rescind 655.215b2, including economic or other regulatory impacts of the proposed rule on the public.10
10 As noted above, the 2019 NPRM proposed to amend regulations governing the certification of agricultural labor or services to be performed by temporary foreign workers in H2A nonimmigrant status and the enforcement of contractual obligations applicable to employers of such nonimmigrant workers. 84 FR 36168. In particular, the 2019 NPRM sought public comment on the possibility of moving the adjudication of an employers temporary or seasonal need exclusively to DHS or exclusively to DOL. Id. at 36178. In the NPRM to this rule, the Department explained that comments on the proposals contained in the 2019
NPRM are outside of the scope of the limited rulemaking here. 86 FR 24368, 24371. Given the narrow scope of this rulemaking and because a rule finalizing the non-AEWR provisions of the 2019
NPRM has not published, the rulemaking associated with the 2019 NPRM does not affect the issuance of this rule.

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III. Public Comments Received The Departments 30-day comment period on its proposed rescission 655.215b2 opened on May 6, 2021
and closed on June 7, 2021, with comments submitted electronically at http www.regulations.gov/ using docket number ETA1205AB99.
During this comment period, ETA
received eight comments, none of which opposed adopting the proposal. Some contained comments outside of the scope of this rulemaking, as discussed below, while others were submitted on behalf of multiple entities. Commenters represented stakeholders from the public, private, and not-for-profit sectors and included industry associations, worker advocacy organizations, a State Department of Agriculture, a think tank, and private individuals. The Department appreciates all of the comments it received. After full consideration of the comments and for the reasons explained below, the Department is adopting the proposal to rescind 655.215b2.
A. Comments Supporting Rescission of 655.215b2
Commenters generally supported the Departments proposal to rescind 655.215b2, though some commenters expressed potential concerns with the Departments implementation of the change. Several worker advocacy organizations and a think tank stated that the proposed revision more closely reflects statutory requirements by limiting H2A
employment to truly seasonal or temporary work for which employers are unable to find sufficient U.S.
workers. Some of these commenters stated that the rescission of 655.215b2 would simplify the H
2A program, promote consistency between USCIS and DOL with regard to the agencies adjudication of temporary and seasonal need, and strengthen labor protections, without imposing a substantial or unfair burden on herding employers. Industry associations and a State Department of Agriculture did not oppose the proposed change, though they expressed concerns with its implementation and employers ability to fulfill their labor needs.
Commenters asked the Department to address how it will assess temporary or seasonal need under 655.103d, in particular where an employer has a history of filing under 655.215b2.
Some of the worker advocacy organizations urged the Department to remind employers that the H2A
program is to be used only for agricultural labor needs of a temporary
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or seasonal nature and that permanent labor needs are not eligible for H2A
certification but may be eligible for employment-based immigrant visas.
These commenters also asked the Department to guard against employers fulfilling permanent job needs with H
2A workers, by noting, for example, that an employer must meet both parts of the definition of seasonal need under 655.103d. In contrast, industry associations and a State Department of Agriculture asked the Department not to weigh an employers filing history too heavily, as employers were previously not required to separate distinct temporary or seasonal needs into different applications under 655.215b2. These commenters stressed that changes in how an employer describes the services or labor needed, including the period of employment, on new applications may demonstrate compliance with 655.103d rather than changes in the temporary or seasonal nature of an employers labor needs. In addition, these commenters noted difficulty hiring sufficient U.S. workers to fulfill employers labor needs and the potential downstream effects of downsizing range operations should employers no longer be able to hire foreign workers, which could necessitate operational changes that affect an employers temporary or seasonal need for labor. Both worker advocacy organizations and an industry association asked the Department to recognize USCIS Policy Memorandum and adopt a similar approach to case-bycase assessment of an employers temporary or seasonal need and filing history.
The Department agrees that adopting the proposal will simplify and promote consistency within the H2A program, while acknowledging the concerns expressed by commenters regarding how the agency plans to assess an employers seasonal or temporary need under the standard at 655.103d. As noted in the NPRM, the Department will examineon a case-by-case basis and taking into consideration the totality of the facts presentedwhether an employers need to fill a herding or production of livestock on the range position is of a temporary or seasonal nature, as those terms are defined in the Departments and DHSs regulations.
See 20 CFR 655.103d; 8 CFR
214.2h5ivA. Section 655.103d states 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
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