(a) Systematic process. The regulations under this subpart are
designed to provide a systematic process for handling applications from
the kinds of employers who have historically utilized nonimmigrant alien
workers in agriculture, usually in relation to the production or
harvesting of a particular agricultural crop for market, and which
normally share such characteristics as:
(1) A fixed-site farm, ranch, or similar establishment;
(2) A need for workers to come to their establishment from other
areas to perform services or labor in and around their establishment;
(3) Labor needs which will normally be controlled by environmental
conditions, particularly weather and sunshine; and
(4) A reasonably regular workday or workweek.
(b) Establishment of special procedures. In order to provide for a
limited degree of flexibility in carrying out the Secretary's
responsibilities under the INA, while not deviating from the statutory
requirements to determine U.S. worker availability and make a
determination as to adverse effect, the Director has the authority to
establish special procedures for processing H-2A applications when
employers can demonstrate upon written application to and consultation
with the Director that special procedures are necessary. In a like
manner, for work in occupations characterized by other than a reasonably
regular workday or workweek, such as the range production of sheep or
other livestock, the Director has the authority to establish monthly,
weekly, or bi-weekly adverse effect wage rates for those occupations,
for a Statewide or other geographical area, other than the rates
established pursuant to Sec. 655.107 of this part, provided that the
Director
uses a methodology to establish such adverse effect wage rates which is
consistent with the methodology in Sec. 655.107(a). Prior to making
determinations under this paragraph (b), the Director may consult with
employer representatives, appropriate RAs, and worker representatives.
(c) Construction. This subpart shall be construed to permit the
Director to continue and, where the Director deems appropriate, to
revise the special procedures previously in effect for the handling of
applications for sheepherders in the Western States (and to adapt such
procedures to occupations in the range production of other livestock)
and for custom combine crews.
