H-2B procedures for tree planting and reforestation

Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2007/TEGL27-06acc.pdf

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

ADVISORY:      FOREIGN LABOR CERTIFICATION
               TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 27-06

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

FROM:          EMILY STOVER DeROCCO /s/
               Assistant Secretary

SUBJECT:       Special Guidelines for Processing H-2B Temporary Labor Certification in
               Tree Planting and Related Reforestation Occupations

1. Purpose. To outline special guidelines as part of the H-2B labor certification process for
   employers who desire to employ tree planters and related reforestation occupations in the
   United States.

2. References. Immigration and Nationality Act (INA) sec. 101(a)(15)(H)(ii)(b); 20 Code of
   Federal Regulations (CFR) Parts 652 and 655; 8 CFR 214.2(h)(6); Federal Register
   Notice, Vol. 70, No. 137, pps. 41430-41438; Migrant and Seasonal Agricultural Worker
   Protection Act, 29 U.S.C. 1801, et seq.; 29 CFR Part 500; and Training and Employment
   Guidance Letter (TEGL) 21-06, Procedures for H-2B Temporary Labor Certification in
   Non-Agricultural Occupations.

3. Background. The H-2B nonimmigrant program permits employers to hire foreign workers
   to come to the United States (U.S.) and perform temporary non-agricultural services or
   labor on a one-time, seasonal, peakload, or intermittent basis. The H-2B visa
   classification requires the Secretary of Homeland Security to consult with appropriate
   agencies before admitting H-2B nonimmigrants. Homeland Security regulations require
   the intending employer first to apply for a temporary labor certification from the Secretary
   of Labor advising the Department of Homeland Security’s United States Citizenship and
   Immigration Services (USCIS) as to whether qualified U.S. workers are available and
   whether the alien’s employment will adversely affect the wages and working conditions of
   similarly employed U.S. workers, or a notice that such certification cannot be made, prior
   to filing an H-2B visa petition with USCIS. Historically, H-2B applications for non-
   agricultural occupations were processed through the Employment and Training
   Administration’s (ETA) Regional Offices.


 RESCISSIONS                                                  EXPIRATION DATE
 None                                                         Continuing


   However, in December 2004, the Department opened two new National Processing
   Centers (NPCs), one each located in Atlanta and Chicago. These Centers have been
   designated to process applications to employ foreign workers for temporary positions
   under the H-2B program. The Department published a notice in the Federal Register (Vol.
   70, No. 137, pages 41430-41438) on July 19, 2005, clarifying that employers must file two
   (2) originals of the ETA Form 750, Part A, directly with the State Workforce Agency (SWA)
   serving the area of intended employment and, once reviewed, the SWA will send the
   complete application to the appropriate NPC. That process does not apply to employer
   applications for emergency boilermakers, entertainers, logging, and professional team
   sports, which were given special filing instructions in the notice.

   The guidelines outlined in this document work in conjunction with this centralized filing
   process, and ensure greater consistency in the processing of these H-2B applications
   through the Centers.

4. Procedures for Tree Planting and Related Reforestation Activities. Due to a number
   of complexities, special guidelines for processing H-2B applications for tree planting and
   related reforestation occupations are required. For example, although the occupations of
   Tree Planter, Forest Worker and Laborer, and Brush Clearer have many similarities to
   agriculture, they are not so classified under either the Internal Revenue Code or the Fair
   Labor Standards Act (FLSA). Therefore, under the Immigration and Nationality Act (INA)
   they are not authorized for the H-2A visa and must be processed as H-2B occupations.
   However, two court decisions (Bresgal v. Brock, 833 F. 2d 763 (9th Cir. 1987), and
   Bracamantes v. Weyerhauser Co., 840 F.2d 271 (5th Cir. 1988)) directed the Department
   to cover migrant and seasonal forestry workers under the Migrant and Seasonal
   Agricultural Worker Protection Act (MSPA). In addition, because forestry occupations may
   have elements of both agricultural and non-agricultural occupations or involve multi-state
   itineraries, these applications cannot be solely processed according to the general
   procedures for H-2B in TEGL 21-06.

   Attachment A outlines special guidelines for processing labor certification applications
   submitted by employers for occupations involved in tree planting and related reforestation
   activities under the H-2B program, subject to these special provisions. Unless otherwise
   specified in Attachment A, applications submitted for these occupations must comply with
   the requirements for H-2B applications contained in TEGL 21-06 issued on April 4, 2007.

5. Effective Date. This guidance applies to all temporary labor certification applications for
   occupations involved in tree planting and related reforestation activities received by the
   SWAs on or after July 1, 2007.

6. Action Required. NPC Directors and SWA Administrators are requested to provide
   Center and SWA staff involved in the processing of H-2B applications with a copy of these
   procedures.

7. Inquiries. Questions from State Workforce Agency staff should be directed to the
   appropriate NPC Certifying Officer.

8. Attachment.

   Attachment A:      Special Guidelines for Occupations Involving Tree Planting and Related
                      Reforestation Activities under the H-2B Program

Attachment 1 PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2007/TEGL27-06a1.pdf

Attachment A
                   Special Guidelines for Occupations Involving Tree Planting
                  and Related Reforestation Activities under the H-2B Program

This section outlines special guidelines for employer applications involving tree planting and
related reforestation occupations under the H-2B program. Unless otherwise specified in this
attachment, applications submitted for these occupations must comply with the requirements
for H-2B applications contained in TEGL 21-06 issued on April 4, 2007.

I.   Application of Temporary Need Standards Involving Tree Planting and Related
     Reforestation Occupations

     A. The employer’s need for temporary non-agricultural services or labor in tree planting
        and related reforestation occupations must be justified to the NPC Certifying Officer
        under one of the following standards: (1) a one-time occurrence, (2) a seasonal need,
        (3) a peakload need, or (4) an intermittent need.

     B. Tree planting and reforestation are predominantly seasonal activities determined by
        climatic conditions occurring once, or in some locations, twice a year. Although some
        applications for relatively short itineraries can be justified under the peakload standard,
        the employer’s need for the services or labor to be performed may be more
        appropriately justified under the seasonal standard.

        Employers will typically bid on a sequence of work contracts linking each seasonal
        activity into an itinerary covering, in some instances, a major portion of the year. Since
        tree planting and related reforestation activities are covered by the Migrant and
        Seasonal Agricultural Worker Protection Act (MSPA), the MSPA definition of “on a
        seasonal or other temporary basis” cited at 29 CFR 500.20 provides guidance for
        determining whether the job offer is for temporary employment. Under MSPA,
        “seasonal” basis means the following:

        “Labor is performed on a seasonal basis, where, ordinarily, the employment pertains to
        or is of the kind exclusively performed at certain seasons or periods of the year and
        which, from its nature, may not be continuous or carried on throughout the year. A
        worker, who moves from one seasonal activity to another, while employed in
        agriculture or performing agricultural labor, is employed on a seasonal basis even
        though he may continue to be employed during a major portion of the year.”

        The term “other temporary basis” refers to employment where a worker is employed
        for a limited time only or where performance is contemplated for a particular piece of
        work, usually of short duration. Generally, employment which is contemplated to
        continue indefinitely is not temporary.

     C. Whether the work to be performed, as described in a tree planting application, is
        temporary or permanent in nature will be determined by examining the employer’s
        need for such workers for the duration of the itinerary. As with every request for H-2B
        labor certification, an employer’s seasonal need of longer than 10 months, which is of
        a recurring nature, must be supported by compelling evidence to the NPC Certifying
        Officer that the employer’s need for such work and the job opportunity itself are not
        ongoing or otherwise permanent. A peakload need longer than 10 months will not be
        certified.


II. Special Application Filing Procedures

   A. An employer requesting temporary labor certification who meets the MSPA definition
      of a Farm Labor Contractor (FLC) (see item II(C)(1) below) must register as a FLC with
      the Department of Labor’s Employment Standards Administration (ESA) before filing a
      H-2B application for workers who will be performing predominantly manual work, which
      includes, but is not limited to, tree planting, brush clearing, and precommercial tree
      thinning The employer must also provide proof of current registration, including proof
      of the registration of any Farm Labor Contractor Employees (FLCE - see item II(C)(1)
      below) at the time of filing. The FLC and FLCE certificate(s) of registration must be
      valid for the entire period of need. If the expiration date of the FLC or FLCE
      certificate(s) falls at any point during the period of need, the employer must submit a
      signed written assurance that an application for renewing FLC and FLCE certificate(s)
      will be submitted timely to ESA in order to attempt to ensure that the certificate(s) are
      valid during the entire period of need.

   B. In situations where the employer is not properly registered as a FLC, the SWA must
      promptly return the application with a notification that the SWA cannot accept a job
      opportunity for a reforestation related occupation when the employer is not registered
      as a FLC.

   C. Important FLC Terms and Information

        1. A Farm Labor Contractor means any person, other than an agricultural employer,
         an agricultural association, or an employee of an agricultural employer or
         agricultural association, who, for any money or other valuable consideration paid or
         promised to be paid, performs any farm labor contracting activity. Farm labor
         contracting activities include recruiting, soliciting, hiring, employing, furnishing,
         and/or transporting workers. “Agricultural employer” includes any person who
         owns or operates a farm, ranch, processing establishment, cannery, gin, packing
         shed, or nursery, or who produces or conditions seed. “Agricultural association”
         means any nonprofit or cooperative association of farmers, growers, or ranchers
         incorporated or qualified under applicable State law. A farm labor contractor
         employee is a person who performs a farm labor contracting activity solely on
         behalf of a farm labor contractor holding a valid Certificate of Registration and who
         is not an independent farm labor contractor who would be required to register
         under the Act in his own right.

        2. For information on how to apply as a FLC or FLCE or to obtain a listing of persons
         and companies currently registered, please contact the nearest office of the
         Employment Standards Administration (ESA), Wage and Hour Division. A current
         listing of the ESA District Offices can be obtained at the following website:
         http://www.dol.gov/esa/contacts/whd/america2.htm.

        3. For information on individuals or companies who are not eligible to register as a
         FLC and may not engage in any activity as a FLC or as a Farm Labor Contractor
         Employee (FLCE) as defined by the Migrant and Seasonal Agricultural Worker
         Protection Act (MSPA), please visit the ESA website at the following address:
         http://www.dol.gov/esa/regs/statutes/whd/mspa_debar.htm.

        4. Each facility or real property used to house and each vehicle used to transport
         workers must be described in the application. Housing and transport vehicles for
         MSPA-covered workers must be authorized for use on the FLC’s certificate of


       registration prior to use. Each driver of a vehicle transporting MSPA-covered
       workers must have an FLC or FLCE (Farm Labor Contractor Employee) certificate
       of registration that specifically authorizes driving (see II(A) above concerning
       expiration dates of FLC or FLCE certificates).

    5. Prior to granting approval on a temporary labor certification application, the
      employer must submit a signed, written assurance that all registrations, permits,
      and/or other required licenses for vehicles, housing, or drivers will remain valid
      during the entire period of use.

D. Employers have the option of filing a single master application covering multiple
   itineraries or separate applications for each itinerary where the tree planting or related
   reforestation work will begin. Alaska, Hawaii, and the U.S. territories may not be
   included in multi-state itineraries.

    1. Employers are permitted to develop and file an itinerary under the following
      conditions:

       a. If the itinerary includes worksite locations covering multiple SWAs, the
          employer may submit a single application to the SWA where the itinerant
          employment will begin. In those instances where the start dates for each
          worksite location in the itinerary are exactly the same, the employer may submit
          a single application to any one of the SWAs covered by the itinerary. If the
          employment crosses NPC jurisdictions as well, the NPC that has jurisdiction
          over the SWA where the employment will begin shall process the application.

       b. In situations where the worksite locations cover multiple SWAs, the states
          listed in the itinerary must be contiguous or located within close
          geographic proximity to one another. Itineraries where the worksite
          locations cover multiple states over widely separated geographic areas (e.g.,
          Texas, Arkansas, and Idaho, or Georgia, Alabama, and Maine) are not normal
          to reforestation occupations and will not be permitted. Such itineraries make it
          extremely difficult for the Department to satisfy its statutory mandate for
          determining the availability of domestic workers as a predicate to temporary
          labor certification. An employer who seeks H-2B workers for job opportunities
          in one or more remote “downstream” states must file separate applications and
          job orders for those locations.

       c. The employer must submit a signed and dated itinerary to the SWA with its
          application and include the following information:

           •   The names, physical addresses, telephone numbers, and wages offered in
               each worksite location. If no physical address and/or telephone number is
               available, the employer must provide as much geographic detail as possible
               (e.g., county/city/township/state corresponding to the itinerary time-frame)
               regarding the location of the crews performing the work;

           •   The total number of crews’ and total number of workers in each crew; and

           •   The estimated start and end dates of work in each worksite location. Since
               the work of tree planting and related reforestation occupations are
               dependent on climatic conditions, the precise ending dates and subsequent
               contracts may not be defined at the time of placing a job order.


        2. Employers are permitted to file a single master application for multiple itineraries
         under the following conditions:

          a. When examining the starting locations of each itinerary, the master application
             must be filed with the SWA where the largest number of job opportunities is
             being requested on the itineraries included in the master application. If the
             employment crosses NPC jurisdictions as well, the NPC that has jurisdiction
             over the SWA where the employment will begin shall process the application.

          b. The application must consist only of crews working for a single employer.

          c. The total range of the crews start dates cannot be more than 14 calendar days
             apart.

III. Special SWA Processing Instructions

   A. SWAs should accept agent designations on the ETA Form 750, which is similar to
      filing procedures under the H-2A program. The employer’s application to the SWA
      must include a copy of the “Agent Agreement” or similar document to substantiate that
      specific authority has been granted to the agent. (Note: As under the H-2A program,
      an “agent” who meets the definition of an FLC under MSPA (see II(A) and II(C)(1)
      above) must be registered as an FLC with ESA prior to engaging in any farm labor
      contracting activity. “Recruiting” and “soliciting” are farm labor contracting activities. If
      the employer is represented by an attorney, the attorney must file a Notice of
      Appearance (G-28) with the application package.

   B. SWAs must review all itineraries to ensure each is normal to tree planting and related
      reforestation occupations (i.e., it is prevailing practice to start in a particular area; what
      type of itineraries are normal for contracts and the H-2B program), and contact the
      appropriate NPC Certifying Officer when they receive an itinerary that may not reflect
      prevailing practice.

   C. Employers can require tree planter workers to perform minor related reforestation job
      activities such as tree seedling pulling, thinning, seed cone gathering, and pine straw
      gathering. These activities must be stipulated in the application and job order to
      apprise workers of the full scope of possible job duties.

   D. A job opportunity containing a wage offer below the prevailing wage will not be
      accepted. In accordance with TEGL 21-06, the SWA shall determine the prevailing
      wage, guided by the regulations at 20 CFR § 656.40 and in accordance with
      Employment and Training Administration, Prevailing Wage Determination Policy
      Guidance, Non-Agricultural Immigration Programs, Revised May 9, 2005.

   E. A job opportunity specifying that workers are to be paid on a piece rate basis must also
      guarantee the required hourly wage rate per pay period. The required hourly wage
      rate will be the prevailing wage rate determined by the SWA. If the piece rate does not
      result in average hourly piece rate earnings during the pay period at least equal to the
      amount the worker would have earned had the worker been paid at the hourly rate, the
      worker’s pay must be supplemented to increase the earnings to the equivalent hourly
      level. In situations where workers will be paid on a piece rate basis, the job offer must
      identify the piece rate, the length of the pay period and the ending day of the week of
      the payroll period and date, and the minimum productivity required for job retention.


F. When commencing recruitment, the SWA shall prepare a job order, using the
   information on the application, and place it into the SWA job bank system for 10
   calendar days. During this period, the SWA should refer qualified applicants who
   contact the local offices and those in its active job files. If the application indicates that
   work will be performed in other states in the itinerary, the SWA shall clear the job order
   for 10 calendar days with the appropriate state(s) where the work is to be performed
   and accept for referral to the employer qualified applicants from the state(s).

G. During the 10-day posting of the job order, the employer shall advertise the job
   opportunity in a newspaper of general circulation for 3 consecutive calendar days or in
   a readily available professional, trade or ethnic publication, whichever the SWA
   determines is most appropriate for the occupation and most likely to bring responses
   from U.S. workers. If the job opportunity is located in a rural area that does not have a
   newspaper with a daily edition, the employer shall use a daily edition with the widest
   circulation in the nearest urban area or such other publication as determined by the
   SWA.

H. The SWA intrastate and interstate job postings and employer advertisements must
   include the following information:

        1. Identify the employer’s name and direct applicants to report or send resumes to the
        SWA for referral to the employer.

        2. Address of the SWA local office and job order number.

        3. Description of the job opportunity with particularity, including a summary of the
        itinerary, duties to be performed, work hours and days, and, if applicable, benefits
        (e.g., housing and free transportation) and incentive wages (e.g., piece rates).

        4. Starting locations and wages at each crew’s starting location.

        5. Notice if employees must purchase or rent tools.

        6. Offer wages, terms, and conditions of employment which are not less favorable
        than those offered to the alien and are prevailing for the occupation, activity, and
        industry.

        7. State the total number of job openings the employer intends to fill.

        8. Notice that the job opportunity is temporary.

I.   SWAs should examine all deductions (including housing, transportation, meals, tools,
     safety equipment, etc.) to determine if they are allowable in accordance with the Fair
     Labor Standards Act. To obtain more information on the propriety of the deduction(s),
     SWAs should contact the appropriate office of the ESA Wage and Hour Division.
     Consultation with the Wage and Hour Division is extremely important for those
     deductions which are for tools of the trade and other materials and services incidental
     to carrying on the employer’s business. SWAs should contact the appropriate NPC if
     deductions are not in accordance with the prevailing practice for the area. SWA and
     ETA decisions regarding allowable deductions are not binding on the ESA Wage and
     Hour Division.


IV. Special Instructions for Completing the ETA Form 750, Part A

   A. To ensure consistency in completing applications, employers and SWAs should use
      the following annotations:

      a. Item #7 – Employers should write “See Attached Itinerary” and follow the
         instructions for itineraries under section II.D.

      b. Item #10b – Employer should note the maximum number of hours required for
         overtime.

      c. Item #12b – Employer should note “rate of pay” which shall be time and a half.

      d. Item #13 - Production standards must be disclosed, and the employer must provide
         documentation to the SWA substantiating any standard higher than the prevailing
         practice in the industry. Most reforestation employers have been in the
         reforestation business for a sufficient number of years so as to have
         records/documents on file. Such records/documents can include, but are not
         limited to, past production records, improved equipment, statement of how terrain
         will impact production rate. SWAs should use their best judgment, based on
         prevailing practice, to accept or deny the employer’s justification.

      e. Item #15 – Specific requirements such as requiring employees to purchase tools or
         housing accommodations should be noted. In accordance with the MSPA,
         transportation, housing, and any other employee benefits to be provided and any
         costs to be charged for each of them must be disclosed to the workers. Further, if
         there is a relationship between the employer and the store to which employees are
         directed to purchase or rent tools, it must be disclosed to the employee. This
         information should also be stated in the job order.

   B. In accordance with procedures established under TEGL 21-06, the SWA shall advise
      the employer to correct any deficiencies in the application before commencing
      recruitment. SWAs are authorized to close cases in circumstances where the
      employer fails to address all deficiencies in the application (correction letter) or
      respond in a timely manner to a recruitment letter.