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Timeline Set for Herding Visa Guidelines Rewrite

(CN) - The Department of Labor have one year to make new visa rules for hiring foreign herders that do not depress wages for U.S. workers, a federal judge ruled.

U.S. District Judge Beryl Howell's Friday order comes after the D.C. Circuit ordered the Department of Labor to revisit changes made to the H-2A temporary worker visa program that allowed herding operations to bypass protections for U.S. workers and hire cheap foreign labor instead.

These changes were made via two Training and Employment Guidance Letters (TEGLs) in 2011 that lacked public notice or an opportunity for comment.

Under the general H-2A regulations, employers wishing to hire foreign workers must pay them the Adverse Effect Wage Rate, which in 2011 ranged from $8.97 per hour to $12.01 per hour.

But under the now-invalidated exemption for herding operations, employers needed pay foreign herders only the prevailing wage rate, which in Colorado in 2011 was $4.69 per hour for a 40-hour work week.

The rules also permitted lower standards for herder housing than for other employments, exempted employers from recording herders' actual hours worked and allowed employers to pay employees once monthly.

Claiming that "each day the TEGLs are in effect, they impose a legally-invalid regime that alters workers' substantive rights," by employing foreign workers at depressed wages, the visa challengers had requested an expedited rulemaking period of 120 days, to be effective 30 days after publication, on remand.

That schedule would have the new rules taking effect by April 2015, but the Labor Department sought an additional six months for the rulemaking process.

Judge Howell found for the agency Friday.

"Short-cutting the time for adequate notice and comment rulemaking would be shortsighted and end up extending, rather than expediting, the process," Howell wrote.

Given the significance of the issues, and the complexity of making special rules for herding, Howell said it did not make sense to rush the process and risk a poorly thought-out rule that might later need to be withdrawn.

"The plaintiffs' proposed schedule would result in significant compression of the time permitted to prepare the proposed rule or to obtain public comment, or both, when important work is being performed during each period outlined by the federal defendants," the ruling states.

Per the plaintiffs' request, however, the TEGLs shall be vacated upon the effective date of the new rule.


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