USCIS Publishes Updated Guidance on H-2A Petitions for Sheep/Goat Herders
प्रकाशित मिति : फाल्गुन १६, २०७६ शुक्रबार
U.S. Citizenship and Immigration Services today published an updated policy memorandum (PDF, 580 KB) (PM) that requires requests for temporary foreign workers for range sheep or goat herding or production to be subject to the same requirements as other temporary agricultural workers.
On Nov. 14, 2019, USCIS issued the “Temporary or Seasonal Need for H-2A Petitions Seeking Workers for Range Sheep and/or Goat Herding or Production” Policy Memorandum and requested public comments. After receiving comments, USCIS issued this updated PM to better ensure that those aliens admitted into the United States as H-2A nonimmigrant sheep/goat herders fill temporary and seasonal positions.
USCIS notes that where an employer’s need is permanent, rather than temporary or seasonal in nature, the employer may wish to file an immigrant visa petition under 8 U.S.C. 1153(b)(3). An immigrant visa has its own set of statutory and regulatory requirements, including showing that the petitioner’s need is permanent, rather than temporary or seasonal in nature. If the immigrant petition is approved, the alien may, if all other requirements are satisfied, apply to immigrate to the United States or, if already in the United States, seek adjustment of status to that of a lawful permanent resident.
Effective June 1, 2020, USCIS will adjudicate all Forms I-129, Petition for Nonimmigrant Worker, filed by petitioners seeking H-2A sheep/goat herder positions in line with this updated PM. The future effective date allows H-2A petitioners sufficient time to amend their practices as necessary.
If the job duties being performed, as described on consecutive or near-consecutive H-2A petitions, are the same, or the petitioner is unable to establish a specific, seasonal event or pattern that is tied to an employer’s need for the services or labor as reflected on the consecutive or near consecutive petitions, then USCIS adjudicators will consider whether the need identified on those petitions, taken together, shows a permanent, non-seasonal need. When evaluating a petition, USCIS would generally consider the examples described below as substantial evidence to overcome DOL’s temporary or seasonal need determination, unless there is additional evidence in the record that outweighs these examples and supports DOL’s determination that the petitioner’s need is temporary or seasonal.
Background
In relation to a challenge brought by worker advocates, the U.S. Court of Appeals for the D.C. Circuit, on August 17, 2018, remanded claims challenging the Department of Labor’s (DOL) regulation at 20 CFR 655.215(b)(2), which allows for 364-day temporary labor certifications (TLC) for sheep/goatherders, and opined that the Department of Homeland Security’s (DHS’s) corresponding practice of approving H-2A petitions for sheep/goatherders on a consecutive, that is, back-to-back, basis, for 364-day periods of need did not conform with the INA, as amended. Hispanic Affairs Project v. Acosta, 901 F.3d 378, 386 (D.C. Cir. 2018) (finding that the Plaintiff has “plausibly shown that [DHS’s] de facto policy of authorizing long-term visas is arbitrary, capricious, and contrary to law, in violation of the [Administrative Procedure Act] and the Immigration and Nationality Act, . . . because it authorizes the creation of permanent herder jobs that are not temporary or seasonal.”) (internal marks and reference to Second Amended Complaint omitted).
DHS/USCIS interprets the D.C. Circuit Court’s opinion as stating that an agency history of consecutive, back-to-back 364-day approvals of H-2A sheep/goatherder petitions would violate the INA and DHS regulations (see 8 CFR 214.2(h)(5)(iv)(A) (requiring H-2A employment to be “temporary or seasonal”) and (h)(1)(ii)(C) (same)) and that such a practice would be inconsistent with the H-2A statutory and regulatory requirements that the H2A employer’s need be temporary or seasonal.
The D.C. Circuit found that statutory language supports the conclusion that H-2A petitioners seeking sheep/goatherders are subject to the same temporary or seasonal need requirement as other H-2A petitioners, and that a practice that exempts these petitioners from this H-2A requirement goes against H-2A statutory and regulatory authorities. First, the INA does not exempt H-2A sheep/goatherder petitions from the temporary or seasonal need requirement. Similarly, the plain language of DHS regulations does not distinguish or exempt H-2A sheep/goatherder petitions from the temporary or seasonal need requirement.
In light of the D.C. Circuit Court’s decision, and our interpretation of the existing statutory and regulatory framework as discussed above, USCIS has therefore determined that, other than in extraordinary circumstances (noted at 8 CFR 214.2(h)(5)(iv)(A)), it will not grant consecutive, back-to-back 364-day approvals (or other lengthy consecutive or near-consecutive periods of shorter duration for the same job duties for a sheep/goatherder position) of H-2A sheep/goatherder petitions, notwithstanding issuance of a TLC for such periods. See 8 CFR 214.2(h)(5)(iv)(B).
Moving forward, H-2A sheep/goatherder petitions will be subject to the same temporary or seasonal need analysis that applies to all other H-2A petitions. USCIS’s publication of this PM will ensure consistent application of DHS H-2A regulations addressing temporariness and seasonality to the adjudications of H-2A sheep/goatherder petitions, and will ensure that the wages and working conditions of similarly situated U.S. workers are not depressed by the employment of H-2A temporary workers.
USCIS believes that this PM, which ensures that H-2A sheep/goatherder petitions are treated similarly as all other H-2A petitions, will further assist in safeguarding the integrity of the H-2A program, which was intended for agricultural labor or services that are temporary or seasonal in nature. Aligning adjudication of temporariness and seasonality in the context of H-2A sheep/goatherder petitions with the adjudication of temporariness and seasonality of other H-2A petitions will also support efficient and fair adjudication of H-2A nonimmigrant benefit requests while protecting the interests of U.S. workers (for example, their wages and job opportunities).