H-2A procedures for itinerant beekeepers

Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2011/TEGL33-10ACC.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. 33-10

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

FROM:              JANE OATES /S/
                   Assistant Secretary

SUBJECT:           Special Procedures: Labor Certification Process for Itinerant Commercial
                   Beekeeping Employers in the H-2A Program

1. Purpose. To establish special procedures for itinerant commercial beekeeper employers who
   apply to the Department of Labor (Department) to obtain labor certifications to hire
   temporary agricultural foreign workers to perform work in the United States.

2. References. 20 CFR Part 655, Subpart B; 20 CFR Part 653, Subparts B and F; and 20 CFR
   Part 654, Subpart E.

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.
   Additionally, 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.

   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
   policy objectives of the H-2A Program, 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). Section 20 CFR 655.102 provides the

 RESCISSIONS                                             EXPIRATION DATE
 None                                                    Continuing
   Administrator of the Office of Foreign Labor Certification (OFLC) with authority to
   establish, continue, revise or revoke special procedures for processing certain H-2A
   applications, as long as those procedures do not deviate from statutory requirements under
   the INA.

   After receiving a request from the American Beekeeping Federation and in consideration of
   the unique characteristics of itinerant commercial beekeeping operations, the Department is
   exercising its authority to establish certain special procedures for processing H-2A
   applications for itinerant commercial beekeeping occupations. The Department recognizes
   that an industry-wide standard exists among commercial beekeeping employers to transport
   honey bee colonies to farms and orchards throughout the U.S. Itinerant commercial
   beekeepers typically transport their honey bee colonies north in the summer and south in the
   winter, stopping as needed to pollinate crops in bloom. For both commercial beekeepers and
   farmers, the need to move bees from one state to another throughout the growing season has
   intensified as the number of bees and beekeepers decline and agricultural methods evolve.

   Large farms and orchards require a large concentration of healthy, active pollinators during
   specific periods when crops are in flower. In addition, beekeepers have determined that they
   can maintain stronger, healthier honey bee colonies by transporting their colonies to warmer,
   southern states during the cold months. Providing flexibility in the H-2A Program for
   itinerant commercial beekeepers to move honey bee colonies to various parts of the U.S. will
   enable this industry to maintain strong, healthy honey bee colonies and provide the
   pollination services which are vital to successful crop production. Accordingly, the
   Department is establishing special procedures enabling itinerant commercial beekeeper
   employers to use the H-2A Program while moving their beekeeping activities among farms
   and orchards located in multiple areas of intended employment throughout the U.S.

4. Special Procedures. Attachment A outlines special procedures for applications submitted
   by itinerant commercial beekeeping employers under the H-2A Program. Unless otherwise
   specified in Attachment A, applications submitted by itinerant commercial beekeeper
   employers must comply with the requirements for 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. The 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 itinerant commercial beekeeping employers. The special procedures will
   apply to all employer applications with a start date of need on or after October 1, 2011.

6. Inquiries. Questions from SWA staff should be directed to the Chicago NPC. Questions
   from Chicago NPC staff should be directed to the Office of Foreign Labor Certification
   (OFLC) National Office.




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7. Attachments.

      Attachment A - Special Procedures: Labor Certification Process for Itinerant
      Commercial Beekeeping Employers under the H-2A Program




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Official attachment PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2011/TEGL33-10ATT-A.pdf

                                    ATTACHMENT A
            Special Procedures: Labor Certification Process for Applications in the
             Itinerant Commercial Beekeeping Industry under the H-2A Program

This document outlines special procedures for applications submitted by employers in the
itinerant commercial beekeeping industry under the H-2A Program. Unless otherwise specified
in this attachment, applications submitted for itinerant commercial beekeeping 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 itinerant commercial
beekeeping occupations must comply with the requirements of 20 CFR Parts 655 Subpart B, 653
subparts B and F, and 654.


I. PREFILING PROCEDURES

   A. Job Orders and SWA Review (20 CFR 655.121). An employer engaged in commercial
      beekeeping 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.

       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 in
       interstate clearance under 20 CFR 655.150), unless otherwise advised by the Chicago
       NPC.

   B. 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 itinerant
      beekeeping activities must comply with all of the requirements of 20 CFR Part 655,
      Subpart B, 653 Subparts B and F and 654.




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1. Job qualifications and requirements.
   Experience. Due to the unique nature of the work to be performed, the job offer may
   specify that applicants possess up to 3 months of experience as a beekeeper and may
   require reference(s) to verify the applicant’s experience performing such activities.
   Applicants must provide the name, address, and telephone number of any previous
   employer 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 itinerant beekeeping employer may require in its job
   offer that an applicant for the job must be available to work for 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 employer at whatever place the employer is
   located at the time and remain with the employer for the duration of the beekeeping
   itinerary. An employer’s rejection of an applicant who is unable or unwilling to
   accept such a requirement is considered a lawful job-related rejection.

   Other Requirements. Due to the unique nature of the work to be performed, the job
   offer may specify that applicants may not have bee-, pollen- or honey-related
   allergies and must have or be able to obtain within 30 days of employment, a valid
   U.S. driver’s license. Any other requirements must be normal and accepted for the
   occupation, and the SWA and the Chicago NPC have the authority to request
   supporting documentation substantiating the appropriateness of the duties prior to
   accepting the job order.

2. Workers’ compensation. The employer must provide workers’ compensation
   insurance coverage, as described in 20 CFR 655.122(e), in all states where
   commercial migratory beekeeping 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
   commercial migratory beekeeping 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 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.




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     3. 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. All
        employer-provided housing must comply with requirements set out in 20 CFR
        655.122(d) for the entire period of occupancy. For each anticipated worksite
        covering the itinerary, the job offer must disclose the type, location, and capacity of
        all housing that will be provided to the workers. Prior to the issuance of the
        Temporary Labor Certification, the CO must receive evidence that all housing
        complies with the applicable local, state, or Federal housing standards.

     4. Rates of pay. For each state listed in an approved itinerary, the employer must state
        in its job offer and agree to pay a wage that is at least 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 the work
        is performed.

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.

  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
     commercial beekeeping activities is authorized to file an Application for Temporary
     Employment Certification covering one or more areas of intended employment based on
     a planned itinerary. An itinerant beekeeping employer who desires to employ one or
     more nonimmigrant workers on an itinerary to provide beekeeping services to fixed-site
     farmers/ranchers is, by definition, an H-2ALC. Therefore, the itinerant beekeeping 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.


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