Voglio sapere a riguardo di…

khammond on DSKJM1Z7X2PROD with RULES

Federal Register / Vol. 86, No. 239 / Thursday, December 16, 2021 / Rules and Regulations longer than 1 year. The same section states that 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.
While this rule rescinds 655.215b2
so that the Departments adjudication of temporary or seasonal need is conducted in the same manner for all H2A applications pursuant to 655.103d, it does not alter the regulatory definition and standards by which the Department adjudicates temporary or seasonal need under 655.103d.
In particular, though recurring yearround activities cannot be classified as temporary, see 75 FR 6884, 6891, the Department recognizes, as explained in the NPRM, that some herder employers may be able to establish a need to fill positions on a recurring annual basis consistent with the definition of employment of a seasonal nature in 655.103d. See 86 FR 24368, 24371;
80 FR 62958, 6299963000 2015 Rule describing comments that delineated seasonal aspects of herder work; 52 FR
20496, 20498 acknowledging it is appropriate to apply annually for truly seasonal employment; see also USCIS Policy Memorandum at 3 n.3
explaining that an employers need for workers that recurs annually at a given time of year does not mean its need is permanent in nature as employment of a seasonal nature is defined as being tied to a certain time of year. As some commenters noted, such employers will need to show they meet both parts of the definition of seasonal need in 655.103dthat is, the employment 1 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 2
requires labor levels far above those necessary for ongoing operations. The Department also acknowledged in the NPRM that some employers may have a temporary need to fill herding and range livestock job opportunities, which is permissible provided they can show the nature of their need is temporary under 655.103d. See Temporary Workers Under 301 of the Immigration Reform and Control Act, 11 Op. O.L.C.
39, 40 & n.4 1987 noting temporary means something other than seasonal and explaining employers may fill permanent jobs that an employer needs to fill on a temporary basisfor example, because the regular American employee has fallen ill or extra hands are needed during a busy period; 11

VerDate Sep<11>2014

16:14 Dec 15, 2021

Jkt 256001

Op. O.L.C. at 42 The nature of the job itself is irrelevant. What is relevant is whether the employers need is truly temporary..
This final rule aligns the Departments adjudication of the temporary or seasonal need of herder applications with the guidance DHS has implemented in the USCIS Policy Memorandum, which the Department encourages employers and other interested parties to review. The memorandum explains, for example, that USCIS will adjudicate H2A sheep and goat herder petitions filed on or after June 1, 2020, on a case-by-case basis, taking into consideration the totality of the facts presented, and in the same manner as all other H2A
petitions. USCIS Policy Memorandum at 1, 9. Past periods of need approved by USCIS prior to June 1, 2020, will be one element considered when determining whether an H2A petition demonstrates a true temporary or seasonal need. Id. at 9. Similar to USCIS approach, and as indicated above, the Departments adjudication will be conducted on a case-by-case basis and will take into consideration the totality of the facts presented, of which past periods of need will be one element that is considered in determining whether an employers need is truly temporary or seasonal.11
When an employer is unable to fulfill its need for labor to perform herding and production of livestock duties on the range under the H2A program, as with any employer whose need is neither temporary nor seasonal, the employer may apply for labor certification through the visa program appropriate to its need. For example, employers with permanent, rather than temporary or seasonal, needs may wish to petition for workers under employment-based immigrant visa programs. See, e.g., 8 U.S.C. 1153b3;
see also 8 U.S.C. 1101a15Hiia INA permits only agricultural labor or services . . . of a temporary or seasonal nature to be performed under the H
2A visa category.
11 In recognition of employers need to transition from compliance with 655.215b2 to 655.103d and similar to guidance in USCIS
Policy Memorandum, employers seeking herding or production of livestock on the range job opportunities are encouraged, in describing their temporary or seasonal needs in future filings, to explain why any past filings history is not indicative of a non-temporary and non-seasonal need. Although the Department may consider the fact of a past filing history before the effective date of this rule, the Department will fully consider such explanation and possible reliance on past procedures in the totality of the circumstances when making a temporary or seasonal need determination. See USCIS Policy Memorandum, at 6 n.5, 9 n.11.

PO 00000

Frm 00011

Fmt 4700

Sfmt 4700

71377

B. Out of Scope Comments The NPRM invited comments related to the Departments proposal to rescind 655.215b2. Comments received that are unrelated to the Departments proposal are beyond the scope of this action and have not been considered in the Departments assessment of its proposed rescission.
Several comments were beyond the scope of this action. Two of the commenters did not address the Departments proposal; instead, one expressed general dissatisfaction with the H2A program and the other appeared to be seeking a herding position. Other commenters addressed topics that are not the subject of this rulemaking, including wage and housing requirements for herders and production of livestock workers on the range as well as the definition of temporary or seasonal under 20
CFR 655.103d, which reflects DHSs regulatory definition at 8 CFR
214.2h5ivA and has been in effect for more than a decade. For example, one comment requested the Department clarify the definition of temporary and seasonal under 655.103d, including how this definition applies across recurring H2A applications and in situations where an employer has maintained substantially similar operations in previous seasons. Because proposed changes to the wage and housing requirements for herders and the regulatory definition and standards by which the Department adjudicates temporary or seasonal need under 655.103d are not the subject of this regulatory action, the Department deems the above comments as out of scope.
IV. Administrative Information A. Executive Order 12866, Regulatory Planning and Review; and Executive Order 13563, Improved Regulation and Regulatory Review Under Executive Order E.O. 12866, the Office of Management and Budget OMBs Office of Information and Regulatory Affairs determines whether a regulatory action is significant and therefore, subject to the requirements of the E.O. and OMB review. Section 3f of E.O. 12866 defines a significant regulatory action as an action that is likely to result in a rule that 1 has an annual effect on the economy of $100
million or more, or adversely affects in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities also referred to as economically significant; 2 creates serious inconsistency or otherwise
E:FRFM16DER1.SGM

16DER1