H-2A procedures for custom combine operators

Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2011/TEGL16-06-Ch1-ACC.pdf

                                                         CLASSIFICATION
                                                         Foreign Labor Certification
   EMPLOYMENT AND TRAINING ADMINISTRATION
                                                         CORRESPONDENCE SYMBOL
               ADVISORY SYSTEM                           OFLC
          U.S. DEPARTMENT OF LABOR                       DATE
             Washington, D.C. 20210                      June 14, 2011



ADVISORY: TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 16-06,
          Change 1

TO:           CHICAGO NATIONAL PROCESSING CENTER PROGRAM DIRECTOR
              STATE WORKFORCE AGENCY ADMINISTRATORS

FROM:         JANE OATES /s/
              Assistant Secretary

SUBJECT:      Special Procedures: Labor Certification Process for Multi-State Custom Combine
              Owners/Operators under the H-2A Program

1. Purpose. To transmit special procedures, updated to reflect regulatory and organization
   changes in the H-2A Program, for multi-state custom combine owners/operators (including
   Canadian) who apply to the Department of Labor (Department) to obtain labor certifications
   to hire temporary agricultural foreign workers as crew members to perform work in the
   United States.

2. References. 20 CFR Part 655, Subpart B; 20 CFR Part 653, Subparts B and F; 20 CFR Part
   654, Subpart E; and Training and Employment Guidance Letter (TEGL) No. 16-06, Special
   Procedures for Processing H-2A Applications for Multi-State Custom Combine
   Owners/Operators; Field Memorandum (FM) No. 5-04 Special Procedures: Labor
   Certification for Processing H-2A Applications for Multi-State Custom Combine
   Owner/Operators; and ETA Handbook No. 385.

3. Background. In 1986, Congress passed the Immigration Reform and Control Act of 1986
   (IRCA) which amended the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq.,
   and established the H-2A Program. In 1987, the Department issued an Interim Final Rule,
   promulgating the first H-2A regulations (the 1987 regulations) in accordance with IRCA. 54
   FR 20496 (Jun. 1, 1987). The 1987 regulations provided for the administration of the H-2A
   Program by the Employment and Training Administration (ETA) Regional Administrators,
   and instituted procedures to offset the adverse effects of immigration on U.S. workers. The
   1987 regulations also established special procedures for certain occupations, as long as they
   did not deviate from the Secretary’s statutory responsibility to determine U.S. worker
   availability and the adverse effect of foreign workers on the wages and working conditions of
   U.S. workers.




 RESCISSIONS                                             EXPIRATION DATE
 TEGL 16-06                                              Continuing
   The significance of the custom combine activity on the U.S. economy resulted in the
   promulgation of H-2A special procedures that were initially published in the Federal Register
   on April 12, 1989 (54 FR 14703). Upon a request from the U.S. Custom Harvesters, Inc., the
   special procedures for custom combine owners/operators were revised and transmitted by
   FM No. 5-04 on January 28, 2004, which was directed to all ETA Regional Administrators.
   The processing of H-2A applications at that time was conducted by ETA Regional Offices.
   FM No. 5-04 was rescinded by TEGL 16-06.

   The 1987 regulations remained in effect, largely unchanged, until the Department
   promulgated new H-2A regulations on December 18, 2008. 73 FR 77110 (Dec. 18, 2008)
   (the 2008 Final Rule). The 2008 Final Rule implemented an attestation-based application
   process and made several substantive changes to the program, but retained the special
   procedures concept. After the Department determined that the 2008 Final Rule did not meet
   H-2A Program policy objectives, the Department commenced another rulemaking process
   culminating in the publication of new H-2A regulations on February 12, 2010. 75 FR 6884
   (Feb. 12, 2010) (the 2010 Final Rule). The 2010 Final Rule implements changes that affect
   special procedures for multi-state custom combine owners and operators.

   Section 20 CFR 655.102 provides the Administrator of the Office of Foreign Labor
   Certification (OFLC) with authority to establish, continue, revise or revoke special
   procedures for processing of certain H-2A applications, including those for custom combine
   harvesting crews, as long as those procedures do not deviate from statutory requirements
   under the INA.

   This TEGL updates the special procedures previously established for applications for multi-
   state custom combine owners and operators to reflect organizational changes, in addition to
   new regulatory and policy objectives. It rescinds and replaces previous guidance
   disseminated under TEGL No. 16-06, Special Procedures for Processing H-2A Applications
   for Multi-State Custom Combine Owners/Operators.

4. Special Procedures. Attachment A outlines special procedures for applications submitted
   by multi-state custom combine owners/operators under the H-2A Program. Attachment B
   outlines standards for housing applicable to multi-state custom combine owners/operators
   under the H-2A Program. Unless otherwise specified in Attachments A and B, applications
   submitted for these occupations must comply with the requirements for processing H-2A
   applications contained at 20 CFR Part 655, Subpart B. Similarly, unless otherwise specified,
   job orders submitted for these occupations must comply with the requirements of 20 CFR
   Parts 655, Subpart B, 653 subparts B and F, and 654.

5. Action Requested. Chicago National Processing Center (Chicago NPC) Program Director
   and State Workforce Agency (SWA) Administrators are directed to immediately provide
   copies of these special procedures to all staff involved in processing H-2A applications from
   multi-state custom combine owners/operators. The revised special procedures will apply to
   all employer applications with a start date of need on or after October 1, 2011.




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6. Inquiries. Questions from SWA staff should be directed to the Chicago NPC. Questions
   from the Chicago NPC staff should be directed to the OFLC National Office.

7. Attachments.

       Attachment A – Special Procedures: Labor Certification Process for the Multi-State
       Custom Combine Owners/Operators under the H-2A Program

       Attachment B – Standards for Housing Applicable to Multi-State Custom Combine
       Owners/Operators




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Official attachment PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2011/TEGL16-06-Ch1-ATT-A.pdf

                                    ATTACHMENT A
       Special Procedures: Labor Certification Process for Applications 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. Unless otherwise specified in this
attachment, applications submitted for custom combine occupations must comply with the
requirements for processing H-2A applications outlined in 20 CFR Part 655, Subpart B.
Similarly, unless otherwise specified, job orders submitted for custom combine occupations must
comply with the requirements of 20 CFR Part 655, Subpart B, 20 CFR Part 653, Subparts B and
F, and 20 CFR Part 654.

I. PREFILING PROCEDURES

   A. Offered Wage Rate (20 CFR 655.120(a)). An employer must offer, advertise in the
      course of its recruitment, and pay a wage that is the highest of the Adverse Effect Wage
      Rate (AEWR), the prevailing hourly wage, the agreed-upon collective bargaining wage,
      or the Federal or state minimum wage, in effect at the time custom combine work is
      performed and for each state listed in an approved itinerary. In establishing agricultural
      prevailing wages, including those for custom combine activities, the Department
      continues to use findings from prevailing wage surveys conducted by SWAs in
      accordance with the procedures in the ETA Handbook No. 385. SWAs are required to
      transmit wage rate findings covering custom combine activities to the OFLC between
      May 1st and June 1st of each calendar year. Following a review of the SWA wage rate
      findings, the OFLC will publish the new agricultural prevailing wage rates in a Federal
      Register notice with an immediate effective date.

   B. Job Orders and SWA Review (20 CFR 655.121). An employer engaged in custom
      combine activities is allowed to submit a single Agricultural and Food Processing
      Clearance Order, ETA Form 790 (job order), Office of Management and Budget (OMB)
      control number 1205-0134, and all appropriate attachments covering a planned itinerary
      of work in multiple states. If the job opportunity is located in more than one state, either
      within the same area of intended employment or multiple areas of intended employment,
      the employer must submit the job order and all attachments (including a detailed
      itinerary) to the SWA having jurisdiction over the anticipated worksite(s) where the work
      is expected to begin. The employer must submit the job order no more than 75 calendar
      days and no less than 60 calendar days before the employer’s first date of need.

       Unless otherwise specified in these special procedures, the job order submitted to the
       SWA must satisfy the requirements for agricultural clearance orders outlined in 20 CFR
       Part 653, Subpart F and the requirements set forth in 20 CFR 655.122. The SWA will
       review the job order for regulatory compliance and will work with the employer to
       address any noted deficiencies. Upon its clearance of the job order, the SWA must
       promptly place the job order in intrastate clearance and commence recruitment of U.S.
       workers.


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   The job order shall remain active until 50 percent of the work contract period has elapsed
   for all SWAs in possession of the employer’s job order (including those receiving it in
   interstate clearance under 20 CFR 655.150), unless otherwise advised by the Chicago
   NPC.

C. Contents of Job Offers (20 CFR 655.122). Unless otherwise specified in this section, the
   content of job offers submitted to the SWAs and the Chicago NPC for custom combine
   activities must comply with all of the requirements of 20 CFR part 655, Subpart B, part
   653 Subparts B and F, and part 654.

    1. Job qualifications and requirements.
       Experience. Due to the unique nature of the work to be performed, the job offer may
       require that applicants possess up to 6 months of experience in custom combining
       activity and may require reference(s) to verify experience in performing such
       activities. Applicants must provide the name, address, and telephone number of any
       previous employer being used as a reference. The appropriateness of any other
       experience requirements must be substantiated by the employer and approved by the
       Chicago NPC.
       Completion of Itinerary. An employer engaged in multi-state custom combine
       activity may require in its job offer that an applicant for the job must be available to
       work for the remainder of the entire itinerary. An applicant referred to the employer
       after the labor certification has been granted, but before 50 percent of the work
       contract period for the entire itinerary 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 duration of the custom combine itinerary.
    2. Housing. The employer must state in its job offer that sufficient housing will be
      provided at no cost to H-2A workers and any workers in corresponding employment
      who are not reasonably able to return to their residence within the same day. Except
      for long-established standards for mobile housing in Attachment B, all employer-
      provided housing must comply with requirements set out in 20 CFR 655.122(d) for
      the entire period of occupancy. A custom combine employer whose itinerary requires
      mobile housing may provide mobile housing to its workers.

    3. Workers’ compensation. The employer must provide workers’ compensation
      insurance coverage as described in 20 CFR 655.122(e) in all states where custom
      combine work will be performed. Prior to the issuance of the Temporary Labor
      Certification, the employer must provide the Certifying Officer (CO) with proof of
      workers’ compensation coverage, including the name of the insurance carrier, the
      insurance policy number, and proof of insurance for the dates of need, or, if
      appropriate, proof of state law coverage for each state where the custom combine
      work will be performed. In the event that the current coverage will expire before the
      end of the certified work contract period or the insurance statement does not include
      all of the information required under the regulations at 20 CFR 655.122(e), the
      employer will be required to supplement its proof of workers’ compensation for that
      state before a final determination is due. Where the employer’s coverage will expire
      before the end of the certified work contract period, the employer may submit as
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         proof of renewed coverage a signed and dated statement or letter showing proof of
         intent to renew and maintain coverage for the dates of need. The employer must
         maintain evidence that its workers’ compensation was renewed, in the event the
         Department requests it.
        4. Employer-provided items. Due to the remote and unique nature of the work to be
        performed, the employer must also specify in the job offer and provide at no cost to
        workers an effective means of communicating with persons capable of responding to
        the worker’s needs in case of an emergency. These means are necessary to perform
        the work and can include, but are not limited to, satellite phones, cell phones, wireless
        devices, radio transmitters, or other types of electronic communication systems to
        assist workers in performing assigned duties.

II. APPLICATION FOR TEMPORARY EMPLOYMENT CERTIFICATION FILING
    PROCEDURES

  A. Application Filing Requirements (20 CFR 655.130). An individual employer that desires
     to apply for temporary employment certification for one or more nonimmigrant workers
     must file the following documentation with the Chicago NPC no less than 45 calendar
     days before the employer’s date of need:

          ETA Form 9142 (OMB control number 1205-0466), Application for Temporary
           Employment Certification, and Appendix A.2;
          Copy of the ETA Form 790 and all attachments previously submitted to the SWA;
          A planned itinerary listing the names and contact information of all
           farmers/ranchers and identifying, with as much geographic specificity as possible
           and for each farmer/rancher, all of the physical locations and estimated start and
           end dates of need where work will be performed; and
          All other required documentation supporting the application.

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

  B. H-2A Labor Contractor (H-2ALC) Filing Requirements (20 CFR 655.132). The
     Department is granting a special variance to the application filing procedures for H-
     2ALCs contained at 20 CFR 655.132(a). Specifically, an employer engaged in multi-
     state custom combine activities is authorized to file an Application for Temporary
     Employment Certification covering one or more areas of intended employment based on
     a definite itinerary. An employer who desires to employ one or more nonimmigrant
     workers on an itinerary to provide custom combine services to fixed-site farmers/ranchers
     is, by definition, an H-2ALC. Therefore, the custom combine labor contractor must
     identify itself as the employer of record on the ETA Form 9142 by completing Section C
     and marking item C.17 as “H-2A Labor Contractor,” and submitting, in addition to the
     documentation required under 20 CFR 655.130, all other required documentation
     supporting an H-2ALC application. The only special variance to the requirements at 20
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     CFR 655.132(b) is the recognized exemption of custom combine activities from the
     requirements of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA)
     (29 U.S.C. 1801, 1803(a)(30)(E) et seq.).

III. POST-ACCEPTANCE REQUIREMENTS

  Billing (20 CFR 655.163(a)). When Canadian custom combine owners/operators are billed
  for 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.




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Official attachment PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2011/TEGL16-06-Ch1-ATT-B.pdf

                                   ATTACHMENT B
 Standards for Housing Applicable to Multi-State Custom Combine Owners/Operators

I. PROCEDURES

  Multi-state custom combine occupations generally require workers to live in housing of a
  mobile nature, a fixed-site farm, ranch or similar establishment or rental or public
  accommodations. For purposes of these special procedures, mobile housing is any housing
  that is capable of being moved from one area to another. The employer must provide
  housing at no cost to the H–2A workers and those workers in corresponding employment
  who are not reasonably able to return to their residence within the same day.

  Except for long-standing standards for mobile housing which are listed under II below, all
  employer-provided housing must comply with 20 CFR 655.122(d). Multi-state custom
  combine owner/operators must provide an annual housing inspection report for all employer-
  owned housing (mobile or fixed-site housing) or other similar establishment used for
  sleeping purposes. Where the required inspection and approval report does not accompany
  the application, the employer may submit the report before the determination due date.
  However, the Chicago NPC will not certify applications unless the CO receives the required
  inspection report from the employer. The employer may amend the application with a
  written statement of assurance that motels, instead of mobile units, or other similar vehicles
  will be used to lodge crew members until the required SWA inspection report is submitted.
  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 Chicago NPC that such accommodations will comply with established
  standards for such housing during the entire period of occupancy. Any charges for rental or
  public accommodations must be paid directly by the employer to the owner or operator of the
  housing.

  Multi-state custom combine owners/operators from Canada who indicate that lodging for
  their crew members will be 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.

II. MOBILE HOUSING STANDARDS

  An employer may use a mobile unit, camper, or other similar mobile vehicle for housing
  workers that meets the following standards:

     A. Housing Site

         Mobile housing sites shall be well drained and free from depressions in which water
         may stagnate.




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B. Water Supply

    1. An adequate and convenient supply of water that meets standards of the state
      health authority shall be provided. The amount of water provided must be enough
      for normal drinking, cooking, and bathing needs of each worker; and
    2. Individual drinking cups shall be provided.

C. Excreta and Liquid Waste Disposal

    1. Facilities shall be provided and maintained for effective disposal of excreta and
      liquid waste in accordance with requirements of the state health authority or
      involved Federal agency; and
    2. If pits are used for disposal by burying of excreta and liquid waste, they shall be
      kept fly-tight when not filled in completely after each use. The maintenance of
      disposal pits must be in accordance with state and local health and sanitation
      requirements.

D. Housing Structure

    1. Housing shall be structurally sound, in good repair, in sanitary condition and shall
      provide protection to occupants against the elements;
    2. Housing, other than tents, shall have flooring constructed of rigid materials easy
      to clean and so located as to prevent ground and surface water from entering;
    3. Each housing unit shall have at least one window which can be opened or skylight
      opening directly to the outdoors; and
    4. Tents may be used where terrain and/or land regulations do not permit use of
      other more substantial mobile housing which provides facilities and protection
      closer in conformance with the Department's intent.

E. Heating

    1. Where the climate in which the housing will be used is such that the safety and
      health of a worker requires heated living quarters, all such quarters shall have
      properly installed operable heating equipment which supplies adequate heat. In
      considering whether the heating equipment is acceptable, the Chicago NPC shall
      first determine if the housing will be located in a National Forest Wilderness
      Section as specified in the Wilderness Act (16 U.S.C. §§ 1131-1136). Such a
      location has a bearing on the type of equipment practicable, and whether any
      heavy equipment can be used. For example, the Wilderness Act (16 U.S.C. §
      1133(c)) restricts certain motorized or mechanical transport on certain roads in
      wilderness areas. The U.S. Forest Service has regulations for this at 36 CFR Part
        293. Aside from the above, other factors to consider in evaluating heating
      equipment are the severity of the weather and the types of protective clothing and
      bedding made available to the worker. If the climate in which the housing will be
      used is mild and not reasonably expected to drop below 50 degrees Fahrenheit
      continuously for 24 hours, no separate heating equipment is required if proper
      protective clothing and bedding are made available;
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   2. Any stoves or other sources of heat using combustible fuel shall be installed and
      vented in such a manner as to prevent fire hazards and a dangerous concentration
      of gases. Portable electrical heaters may be used, and if approved by
      Underwriters' Laboratory, kerosene heaters may be used according to
      manufacturer's instructions. If a solid or liquid fuel stove is used in a room with
      wooden or other combustible flooring, there shall be a concrete slab, insulated
      metal sheet, or other fireproof material on the floor under each stove, extending at
      least 18 inches beyond the perimeter of the base of the stove;
    3. Any wall or ceiling within 18 inches of a solid or liquid fuel stove or stove pipe
      shall be made of fireproof material. A vented metal collar shall be installed
      around a stovepipe or vent passing through a wall, ceiling, floor or roof; and
    4. When a heating system has automatic controls, the controls shall be of the type
      which cuts off the fuel supply when the flame fails or is interrupted or whenever a
      predetermined safe temperature or pressure is exceeded.

F. Lighting

    1. In areas where it is not feasible to provide electrical service to mobile housing,
      including tents, lanterns shall be provided (kerosene wick lights meet the
      definition of lantern); and
    2. Lanterns, where used, shall be provided in a minimum ratio of one per occupant
      of each unit, including tents.

G. Bathing, Laundry and Hand Washing

   Movable bathing, laundry and hand washing facilities shall be provided when it is not
   feasible to provide hot and cold water under pressure.

H. Food Storage

   When mechanical refrigeration of food is not feasible, the worker must be provided
   with another means of keeping food fresh and preventing spoilage, such as a butane
   or propane gas refrigerator. Other proven methods of safeguarding fresh foods, such
   as salting, are acceptable.

I. Cooking and Eating Facilities

    1. When workers or their families are permitted or required to cook in their
      individual unit, a space shall be provided with adequate lighting and ventilation;
      and

    2. Wall surfaces next to all food preparation and cooking areas shall be of
      nonabsorbent, easy to clean material. Wall surfaces next to cooking areas shall be
      of fire-resistant material.




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J. Garbage and Other Refuse

    1. Durable, fly-tight, clean containers shall be provided to each housing unit,
      including tents, for storing garbage and other refuse; and
    2. Provision shall be made for collecting or burying refuse, which includes garbage,
      at least twice a week or more often if necessary. Refuse disposal shall conform to
      Federal, state, or local law, whichever applies.

K. Insect and Rodent Control

   Appropriate materials, including sprays, must be provided to aid housing occupants in
   combating insects, rodents and other vermin.

L. Sleeping Facilities

   A separate sleeping unit shall be provided for each person, except in a family
   arrangement. Such a unit shall include a comfortable bed, cot, or bunk with a clean
   mattress. When filing an application for certification and only where it is
   demonstrated to the Certifying Officer that is impractical to set up a second sleeping
   unit, the employer may request a variance from the separate sleeping unit requirement
   to allow for a second worker to temporarily join the custom combine operation. The
   second worker may be temporarily housed in the same sleeping unit for no more than
   three consecutive days and the employer must supply a sleeping bag or bed roll free
   of charge.

M. Fire, Safety and First Aid

    1. All units in which people sleep or eat shall be constructed and maintained
      according to applicable state or local fire and safety law;
    2. No flammable or volatile liquid or materials shall be stored in or next to rooms
      used for living purposes, except for those needed for current household use;
    3. Mobile housing units for range use must have a second means of escape. One of
      the two required means of escape must be a window which can be easily opened,
      a hutch, or other provision. It must be demonstrated that the custom combine
      worker would be able to crawl through the second exit without difficulty;
    4. Tents are not required to have a second means of escape, except when large tents
      with walls of rigid material are used. A heater may be used in a tent if the heater
      is approved by a testing service, such as Underwriters’ Laboratory, and if the tent
      is fireproof; and
    5. Adequate fire extinguishers in good working condition and first aid kits shall be
      provided in the mobile housing.




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