EMPLOYMENT AND TRAINING ADMINISTRATION
U.S. DEPARTMENT OF LABOR
Washington, D. C. 20210
August 1, 2001
August 31, 2003
|ADVISORY||:||FIELD MEMORANDUM NO. 24-01|
|FROM||:||Wendy L. McConnell for
Deputy Assistant Secretary
|SUBJECT||:||Special Procedures: Labor Certification for Sheepherders and Goatherders Under the H-2A Program|
Purpose. To transmit special procedures governing the labor certification process for temporary foreign sheepherders and goatherders under the provisions of the H-2A program requirements at 20 C.F.R.§ 655.93(c).
References. 20 C.F.R. Part 655, Subpart B (H-2A Regulations); 20 C.F.R.Part 653, Subpart B (Services to MSFWs) and Subpart F (Agricultural Clearance Order Activity); 20 C.F.R.Part 654, Subpart E (ETA Housing Regulations); 20 C.F.R. Part 658 (Job Service Complaint System; Monitoring and Enforcement Regulations).
Background. Historically, employers in several Western States have utilized the provisions of the Immigration and Nationality Act to import nonimmigrant foreign workers to work as sheepherders in conjunction with their ranching activities.
The unique occupational characteristics of sheepherding (spending extended periods of time grazing herds of sheep in isolated mountainous terrain; being on call to protect flocks from predators 24 hours a day, 7 days a week) have been recognized by the Department of Labor (DOL), the Immigration and Naturalization Service (INS), and Congress as significant factors in limiting the number of U.S. workers who might be interested in and capable of performing these jobs.
During the early 1950's, Congress enacted three special laws authorizing the admission of a certain number of "foreign workers skilled in sheepherding" for many of these jobs. The foreign workers, most of whom came from Spain, were admitted for permanent employment. Special privileges were granted with respect to the issuance of visas which enabled the foreign workers to gain entry into the U.S. on an expedited basis, provided that they were otherwise admissible into the U.S. for permanent residence. There were no required tests of U.S. worker availability or adverse effect at the time.
During 1955 and 1956, the House Judiciary Committee, in response to requests from sheep ranchers, undertook an investigation to examine allegations that a number of foreign sheepherders admitted under the special laws were, in fact, leaving sheepherding shortly after arrival in the U.S., and were actually employed in other industries and occupations.
The Committee's investigation resulted in a finding that substantiated many of these allegations. Subsequently, in a report issued on February 14, 1957, the Committee stated its belief that American employers and the sheep raising industry had not fully benefitted from the services of foreign sheepherders, as was intended by the special legislation. The Committee further expressed its opinion that no additional special legislation should be enacted to admit foreign sheepherders. H.R. Rep. No. 67, 85th Cong., 1st Session (1957). A specific recommendation was made by the Committee that the importation of foreign sheepherders be governed by the H-2 temporary worker provision of the Immigration and Nationality Act. The Committee recommended that INS and DOL administer such a program in a manner similar to the H-2 temporary agricultural worker program which had enabled many East Coast agricultural employers to utilize the service of British West Indies workers on a temporary or seasonal basis in harvesting such crops as apples and sugar cane.
Following the issuance of this report, the Congress permitted the special legislation to expire; no further special sheepherder legislation was enacted and a labor certification program for temporary foreign sheepherders was implemented consistent with the H-2 program administered by INS and DOL.
This procedure has been followed since that time irrespective of the fact that most sheepherding jobs are neither temporary nor seasonal in nature. Under INS procedures, a nonimmigrant foreign worker is permitted entry into the U.S. for a cumulative period not to exceed three years for sheepherder positions certified by DOL under its procedures. Employers of sheepherders apply for initial certification with respect to a job opportunity which is vacant, and then apply for a certification on an annual basis by testing the labor market through submittal of a "new" certification application. After three years of employment, the foreign worker may be admitted as a permanent resident alien ("green card" holder). See 20 C.F.R. § 656.21a(b).
Because of the unique occupational characteristics of sheepherding, the special legislative and administrative history in operating the program and the multi-State role the Western Range Association (WRA) (an association of Western sheep ranchers which represents the interests of a majority of Western sheep ranchers) assumed in the certification process, ETA established separate procedures and guidelines for Regional Offices and State Employment Security Agencies (SESAs) to follow in administering the program. These were last articulated in Field Memorandum No. 74-89, May 31, 1989.
Immigration Reform and Control Act of 1986 (IRCA). The passage of IRCA in 1986 established the H-2A program for the importation of foreign workers to perform temporary or seasonal jobs in agriculture. The statute itself does not specifically address the sheepherder program. However, DOL's interim final H-2A regulations of June 1, 1987, at 20 C.F.R. § 655.93(c), representing DOL's contemporaneous interpretation of IRCA, permit the continuance, and where necessary, the revision of the special procedures previously in effect for the handling of sheepherder applications and the adaptation of such procedures to occupations in the range production of other livestock. DOL's interpretation was based on past experience under the sheepherding program, and is consistent with the views of IRCA's Congressional sponsors.
After promulgation of the interim final H-2A regulations on June 1, 1987, ETA clarified precisely how and when certain new H-2A requirements and procedures would be applied to the sheepherder program. Decisions on these matters were conveyed to Regions VI, VIII, IX and X in a memorandum dated July 23, 1987. That memorandum was limited to: (1) application filing procedures and timeframes; (2) proof of workers's compensation insurance coverage; (3) payment of fees; (4) maximum length of certifications; and (5) WRA's status as a joint employer.
Comprehensive Special Procedures. The special procedures in the attached document update the sheepherder and goatherder certification guidelines presented in Field Memorandum No. 74-89, which is rescinded by this directive. They are designed primarily to continue DOL past policy with regard to operation of this program while incorporating necessary programmatic and procedural changes based on experience operating the program under the prior guidelines and as a result of changes to the industry. They also reflect changes in procedures based on a new agreement with INS relating to sheepherder master orders for WRA. They govern all H-2A requests for FLSA-exempt sheepherders and goatherders with a date of need filed on or after June 30, 2001.
The procedures are arranged as follows:
Part I covers procedures which are applicable to all applications for foreign sheepherders and goatherders, including those submitted by the WRA and its rancher members.
Part II covers additional procedures which have been agreed to by and apply to the WRA and its rancher members.
Part III covers housing requirements, including ETA's guidelines for mobile range housing for range sheepherders and goatherders.
Action Required. Regional Administrators are requested to immediately provide copies of this directive to all Regional Office and SESA staff involved in sheepherder and goatherder certification activity.
Inquiries. Inquiries should be directed to Charlene Giles on 202-693-2950.
Attachment. Special Procedures: Labor Certification for Sheepherders Under the H-2A Program