U.S. DEPARTMENT OF LABOR
Employment and Training Administration
Washington, D. C. 20210

CLASSIFICATION

ES

CORRESPONDENCE SYMBOL

TEES

ISSUE DATE

December 22, 1997

RESCISSIONS

None

EXPIRATION DATE

September 30, 1999

DIRECTIVE

:

GENERAL ADMINISTRATION LETTER NO. 01-95, Change 1

 

TO

:

ALL STATE EMPLOYMENT SECURITY AGENCIES

 

FROM

:

WENDY L. McCONNELL
Acting Administrator for Regional Management

 

SUBJECT

:

Procedures for H-2B Temporary Labor Certification in Nonagricultural Occupations

 

  1. Purpose. To add "D. Forestry Workers." to the list of nonagricultural occupations which vary from the standard GAL No. 1-95 procedures and to provide instructions for special processing of applications for those occupations.

  2. References. Title 20 CFR Parts 652, 655 and 656.40, 8 CFR 214.2(h), 408 FR 2587, GAL No. 1-95.

  3. Background. Although the occupations of Tree Planter (452.687-018) and Laborer, Brush Clearing (459.687-010) have many similarities to agriculture, they are not so classified under either the Internal Revenue Code or the Fair Labor Standards Act (FLSA). Therefore, under the Immigration and Nationality Act (INA) they are not authorized for the H-2A visa and must be processed as H-2B. However, two court decisions (Bresgal v. Brock, 833 F. 2d 763 (9th Cir. 1987) and Bracamantes v. Weyerhauser Co., 840 F.2d 271 (5th Cir. 1988)) directed the Department to treat migrant and seasonal forestry workers as covered by the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

    Because these forestry occupations have elements of both agricultural and nonagricultural occupations and also often involve multi-state itineraries, these applications cannot be effectively processed according to the general procedures for H-2B in GAL 1-95. These special procedures are intended to clarify the differences between processing forestry worker H-2B applications and processing applications for other H-2B occupations.

  4. Action Required. State Administrators are requested to inform staff of the attached procedures for processing applications for forestry workers.

  5. Inquiries. Direct questions to the appropriate Regional Certifying Officer.

  6. Attachment. Procedures for processing applications for Forestry Workers.