Special H-2A procedures for custom combine crews

Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2007/TEGL16-06_508.pdf

CLASSIFICATION
EMPLOYMENT AND TRAINING ADMINISTRATION H-2A Program
           ADVISORY SYSTEM             CORRESPONDENCE SYMBOL
      U.S. DEPARTMENT OF LABOR         OFLC
         Washington, D. C. 20210       ISSUE DATE
                                       February 12, 2007

ADVISORY:      FOREIGN LABOR CERTIFICATION
               TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 16-06

TO:            OFLC-NATIONAL PROCESSING CENTER DIRECTORS
               STATE WORKFORCE AGENCY ADMINISTRATORS

FROM:          EMILY STOVER DeROCCO /s/
               Assistant Secretary for Employment and Training

SUBJECT:       Special Procedures for Processing H-2A Applications for
               Multi-State Custom Combine Owners/Operators

1. Purpose. To update guidance to reflect the processing of H-2A applications through
   ETA’s National Processing Centers and outline special procedures as part of the
   labor certification process for multi-state custom combine owners/operators,
   including Canadian, who desire to employ temporary foreign workers as members of
   their respective custom combine crews in the United States.

2. References. 20 C.F.R. Part 655, Subpart B; 20 C.F.R. Part 653, Subparts B and F;
   20 C.F.R. Part 654, Subpart E; and Field Memorandum (FM) 5-04, Special
   Procedures: Labor Certification for Processing Applications for Multi-State Custom
   Combine Owner/Operators (January 28, 2004).

3. Background. The custom combine grain harvesting activity has been designated
   by the U.S. Department of Labor as a major crop activity because of its importance
   to the national economy. 20 C.F.R. 655.93(c) provides the Department with the
   authority to continue and, where appropriate, revise special procedures in effect for
   the handling of applications for custom combine crews. Historically, H-2A
   applications for custom combine owners/operators were processed through the
   Employment and Training Administration’s (ETA) Regional Offices.

RESCISSIONS                                               EXPIRATION DATE
FM 5-04                                                   Continuing

   However, in December 2004, the Department opened two new National Processing
   Centers (NPCs), one each located in Atlanta and Chicago. The NPCs have been
   designated to process applications for DOL certification to employ foreign workers
   for temporary positions under the H-2A agricultural worker visa program. The
   Department published a notice in the Federal Register (Vol. 70, No. 137, pages
   41430-41438) on July 19, 2005, clarifying that, effective August 1, 2005, employers
   must file original copies of their H-2A applications directly with the NPCs, coinciding
   with the area of intended employment, and simultaneously file a copy with the
   appropriate State Workforce Agency (SWA).

   The special procedures outlined in this memorandum for multi-state custom combine
   owners/operators work in conjunction with this centralized filing process, ensure
   greater consistency in the processing of these H-2A applications through the NPCs,
   and rescind and replace previous guidance disseminated under FM 5-04,
   http://ows.doleta.gov/dmstree/fm/fm2k4/fm_05-04.htm.

4. Special Procedures. Attachment A outlines special procedures for applications
   submitted by multi-state custom combine owners/operators under the H-2A program.
   Unless otherwise specified in Attachment A, employer applications submitted by
   multi-state custom combine owners/operators must comply with the requirements for
   H-2A applications contained at 20 C.F.R. Part 655, Subpart B.

5. Action Required. NPC Directors and SWA Administrators are directed to provide all
   staff involved in the processing of H-2A applications for the multi-state custom
   combine owners/operators with a copy of these special procedures.

6. Inquiries. Questions from SWA staff should be directed to the appropriate NPC.
   Questions from NPC staff should be directed to the National Office of Foreign Labor
   Certification.

7. Attachments.

   Attachment A     Special Procedures for Multi-State Custom Combine
                    Owners/Operators under the H-2A Program

Attachment: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2007/TEGL16-06_Att1.pdf

ATTACHMENT A
              Special Procedures for Multi-State Custom Combine
                  Owners/Operators under the H-2A Program

This document outlines special procedures for applications submitted by multi-state
custom combine owners/operators under the H-2A program, who desire to employ
temporary foreign workers as members of their custom combine crews in the United
States. Unless otherwise specified below, employer applications submitted by multi-
state custom combine owners/operators must comply with the requirements for H-2A
applications contained at 20 C.F.R. Part 655, Subpart B.

A. Responsibilities of NPCs. The NPC having jurisdiction over the state where
   the multi-state custom combine owner/operator will begin grain harvesting in the
   United States is responsible for processing the employer’s certification request.
   Such responsibility includes directing the SWAs to place intra/interstate
   clearances orders, ensuring employers meet advertising and recruitment
   requirements set forth in the H-2A regulations, and determining whether to
   approve or deny certification for some or all of the jobs requested. The interstate
   clearance order shall be cleared to all states listed in the itinerary and for the
   entire duration of need. Certifications may be granted to a multi-state custom
   combine owner/operator for a period up to, but not to exceed, the estimated date
   of completion for the entire grain harvesting itinerary.

B. Application Filing. A multi-state custom combine owner/operator who is
   seeking certification under the H-2A program is required to file the application
   with the NPC having jurisdiction over the state where the grain harvesting
   itinerary will begin. Itineraries that traverse NPC jurisdictions (one worksite is in
   a state assigned to Chicago, another to Atlanta) will not be allowed; employers
   must file separate applications with the respective NPCs. In addition, the
   employer is required to simultaneously file a copy of the application with the
   appropriate SWA in the state where the grain harvesting itinerary will begin. With
   its application to the NPC and SWA, the employer must provide a copy of the
   itinerary in the United States, including the names, locations, and telephone
   numbers of farmers whose grain is to be harvested, and the estimated dates and
   times for harvesting the grain in each location.

   The individual custom combine owner/operator must be listed on the H-2A
   application as the “employer of record.” Regardless of the employer’s country of
   origin – U.S. or other – H-2A labor certification must be obtained from DOL for
   the jobs to be performed by any crew members employed by the custom
   combiner who are not U.S. workers. However, H-2A certification is not required
   for a custom combine owner/operator who is Canadian and who wishes to enter
   the United States to harvest grain; such individuals may apply directly to any U.S.
   Citizenship and Immigration Services (USCIS) Port of Entry for a B-1 (Visitor for
   Business) visa waiver.

                                            -1-

   For more information on the B-1 visa program, please visit the USCIS Web site
   at http://www.uscis.gov.

   Pursuant to 8 U.S.C. 1188(c)(1) and 20 C.F.R. 655.101(c), the employer must
   submit the application 45 calendar days before the date of need. The NPC will
   promptly review the application and notify the employer within seven (7) calendar
   days after receipt of the application of any deficiencies that must be corrected. If
   an application has deficiencies which require modification, the employer has five
   (5) calendar days from the date of the NPC’s mailing to submit the required
   modifications or face delays in receiving a certification.

   Because of delays in mail delivery to and from Canada, Canadian employers are
   encouraged to use express overnight mail service to expedite the delivery and
   receipt of communications between employers and the appropriate NPC, so as to
   ensure meeting regulatory deadlines.

C. Duration of Itinerary. A multi-state custom combine owner/operator may require
   that a U.S. worker applying for a job be available for the entire duration of the
   grain harvesting itinerary and for the total duration of the period of employment
   specified in the job order. This is considered a lawful job-related requirement,
   and U.S. workers must be informed of this requirement at the time of referral. A
   U.S. worker referred after the labor certification is granted and the employment
   period begins, but before 50% of the employment period has elapsed, must be
   available and willing to join the crew at whatever place the crew is located at the
   time, and remain with the crew for the balance of the grain harvesting itinerary.
   An employer’s rejection of a U.S. worker who is unable or unwilling to accept
   such a requirement is considered a rejection for a lawful job-related reason.

D. Wages and Working Conditions. A multi-state custom combine owner/operator
   must offer and pay to all U.S. and H-2A foreign workers (who are members of
   their custom combine crews) at least the prevailing wage rate, as determined for
   each state; the applicable hourly Adverse Effect Wage Rate (AEWR), as
   determined for each state; or the statutory Federal or state minimum wage rate,
   whichever is highest.

   The employer must also guarantee to offer each worker employment for at least
   three-fourths of the workdays in the work contract period and any extensions,
   and pay each worker at least twice monthly. The employer must guarantee each
   crew member, for each pay period, at least the applicable hourly AEWR for each
   state where the work is to be performed. In accordance with 20 C.F.R.
   655.102(b)(7), the employer must also maintain accurate and adequate records

                                           -2-

   with respect to the workers’ earnings and actual time worked to ensure that the
   AEWR guarantee is met. Prior guarantees for custom combine crews of a
   minimum monthly wage and provision of a free meal are no longer in force.

   In the case of Canadian employers, wages must be paid in U.S. currency or the
   equivalent in Canadian currency to Canadian workers.

E. Standards for Housing. A multi-state custom combine owner/operator may use
   a camper, mobile unit, or other similar vehicle for sleeping purposes and
   supplement this unit with lodging in a motel or other public accommodation(s).
   The job offer must identify the type of housing that will be used for lodging crew
   members. An employer’s use of a camper, mobile unit, or other similar vehicle
   for sleeping purposes requires an annual inspection of each vehicle. When
   lodging will be in a motel or other public accommodation, the H-2A application
   must identify the rental, public accommodation, or other substantially similar
   class of habitation to be provided for the contract period, and the employer must
   submit a written statement of assurance to the NPC that such accommodations
   will comply with established standards for such housing. Federal regulations at
   20 C.F.R. 655.102(b)(1)(iii) state, in pertinent part, the following:

   “Standards for other habitation. Rental, public accommodation, or other
   substantially similar class of habitation must meet local standards for such
   housing. In the absence of applicable local standards, State standards shall
   apply. In the absence of applicable local or State standards, Occupational Safety
   and Health Administration standards at 29 CFR 1910.142 shall apply. Any
   charges for rental housing shall be paid directly by the employer to the owner or
   operator of the housing. When such housing is to be supplied by an employer,
   the employer shall document to the satisfaction of the RA [ETA Regional
   Administrator, now the NPC], that the housing complies with the local, State, or
   federal housing standards applicable under this paragraph (b)(1)(iii).”

   When lodging will be provided in a camper or other similar vehicle and the
   required inspection and approval report does not accompany the application, the
   employer may submit the report at a later time. However, applications will not be
   certified by the NPC until the required inspection report is received from the
   employer. The only exception to this rule is where the employer amends the
   application with a written statement of assurance that motels, instead of
   campers, mobile units, or other similar vehicles, will be used to lodge crew
   members until the required SWA inspection report is submitted.

   Multi-state custom combine owners/operators from Canada who indicate that
   lodging for their crew members will be campers, mobile units, or other similar
   vehicles must submit a report of inspection of such vehicles conducted by a
   representative of the Canadian government with their H-2A applications. A new
   inspection report is required annually for each vehicle.

                                         -3-

F. Billing. When the NPC bills custom combine owners/operators for fees
   associated with approved labor certifications, the billing notice will instruct the
   employer to pay by check or money order (including International Money Order),
   and require that the check or money order be payable in U.S. currency.

                                          -4-