Labor Department to Require H-2A Employers in Herding and Livestock Industry to Hire on Temporary Basis

On May 6, 2021, the Department of Labor (DOL) released a proposed rule rescinding parts of its regulations in the H-2A visa program, limiting the use of the visa to temporary or seasonal periods of need, and ending the practice of extending the visa beyond the period of temporary need.  This rulemaking is a result of litigation and a court- approved settlement agreement. While the H-2A program has allowed employers to hire agricultural guest workers on a temporary or seasonal basis, a DOL rulemaking in 2015 allowed herding and livestock businesses to apply for periods of need that last up to 364 days. Additionally, DHS also had a practice of consecutive, back-to-back 364-day approvals of H-2A herding and livestock petitions. As a result of the litigation DHS issued guidance undoing this practice in November 2019. 

DOL seeks feedback on the compliance costs of this rule on small employers that might adjust their business models to accommodate the reduction in the permitted length of employment, and what effect this may have on the cost of operations. The agency is seeking feedback on compliance costs, such as the time to read and review the rule, and increased costs associated with extra petitions, changes in business operations, transportation, staffing turnover, and training requirements under this proposed rule. 

Comments on this proposed rule are due on June 7, 2021.  

• Read the Federal Register notice and submit your public comments here.
  Federal Register :: Adjudication of Temporary and Seasonal Need for Herding and Production of Livestock on the Range Applications Under the H-2A Program
• Read DHS’ H-2A November 2019 Guidance.
  Temporary or Seasonal Need for H-2A Petitions Seeking Workers for Range Sheep and/or Goat Herding or Production (uscis.gov)
• Advocacy contact: Janis Reyes