The U.S. Department of Labor (Department) issued regulations governing the employment of foreign workers in jobs related to the herding or production of livestock on the range (the H-2A Herder Final Rule). Separate standards and procedures are necessary for these occupations because some of the requirements of the general H-2A Final Rule (published in 2010) do not apply to these unique occupations, which are located in remote areas and require non-traditional regular work schedule involving workers generally being on call 24 hours per day, 7 days per week. Due to the unique requirements of the occupations, which are located in remote areas and require non-traditional work schedules with workers generally on call 24 hours per day, 7 days per week, variances from the general H-2A program are necessary.
The Department issued the Herder Rule in response to the decision of the court in the case of Mendoza et al. v. Perez , 754 F.3d 1002 (D.C. Cir. 2014). The Rule affords protection to U.S. workers by providing access to herder jobs and assists employers with access to foreign workers on a temporary basis when U.S. workers are not available.
How to Apply
Step 1: Filing a Job Order and an H-2A Application with the Chicago National Processing Center (NPC)
What to file: The job order (Form ETA 790/790A) is filed directly with the Chicago National Processing Center (NPC) along with a completed H-2A Application for Temporary Employment Certification (Form ETA 9142A), and an attachment with the names of each farmer/rancher the physical locations (with as much geographic specificity as possible), where work will be performed and the start dates and end dates of need for the work. The Chicago NPC will review your application package, notify you of any deficiencies, and provide you with additional instructions for completing the temporary labor certification process.
- Electronic Filing:
Employers can submit their H-2A application electronically via the Department's FLAG System . It is important to read the FLAG user guides and video tutorials before completing and submitting an H-2A application. The online help provides step-by-step instructions for completing and submitting the H-2A application electronically.
- Mail Filing:
Employers that lack adequate access to electronic filing may file the application by mail. The employer must indicate that it is filing by mail due to a lack of adequate access to electronic filing. The employer may mail the application package to the Chicago NPC at the following address:
U.S. Department of Labor
Office of Foreign Labor Certification
Chicago National Processing Center
11 W Quincy Ct
Chicago, IL 60604- 2105
Attention: H-2A Program Unit- Range Livestock Application
When to apply: No less than 45 calendar days before the start date of work.
***For Emergency Filings ONLY: You may file your job order (Form ETA 790/790A) and H-2A application package directly with the Chicago NPC less than 45 calendar days before the start date of need only in circumstances where 1) you are either filing for the first time or 2) have a need for workers that could not be foreseen. For emergency filings, you must include a statement and any other documentation justifying the need to file on an emergency basis. Filing under this provision does not automatically guarantee acceptance of your request for emergency processing.
Step 2: Recruitment of U.S. Workers
When the Chicago NPC determines that the regulatory requirements for the job order are met, the Chicago NPC will issue a Notice of Acceptance. The Notice of Acceptance authorizes conditional access to the interstate clearance system and will contain recruitment instructions. The employer will receive an electronic copy of the Notice of Acceptance.
The Chicago NPC will also transmit the job order to the State Workforce Agency (SWA) and direct the SWA to place the job order into intrastate and interstate clearance for the recruitment of U.S. workers.
Step 3: Completing the Temporary Labor Certification Process
At this point, applications for jobs related to the herding or production of livestock are processed in a manner similar to other H-2A program applications. If the application is accepted or amended within the required time frame and complies with the regulations, the Chicago NPC will make a final determination thirty (30) calendar days prior to the employer's date of need.