[Federal Register Volume 85, Number 76 (Monday, April 20, 2020)]
[Rules and Regulations]
[Pages 21739-21745]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08356]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 85, No. 76 / Monday, April 20, 2020 / Rules
and Regulations
[[Page 21739]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214 and 274a
[CIS No. 2667-20; DHS Docket No. USCIS-2020-0008]
RIN 1615-AC55
Temporary Changes to Requirements Affecting H-2A Nonimmigrants
Due to the COVID-19 National Emergency
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Temporary final rule.
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SUMMARY: As a result of disruptions and uncertainty to the U.S. food
agriculture sector during the upcoming summer agricultural season
caused by the global novel Coronavirus Disease 2019 (COVID-19) public
health emergency, the Department of Homeland Security, U.S. Citizenship
and Immigration Services, has decided to temporarily amend the
regulations regarding temporary and seasonal agricultural workers, and
their U.S. employers, within the H-2A nonimmigrant classification. The
Department is temporarily removing certain limitations on agricultural
employers and workers in order to provide agricultural employers with
an orderly and timely flow of legal foreign workers, thereby protecting
the integrity of the nation's food supply chain and decreasing possible
reliance on unauthorized aliens, while encouraging agricultural
employers' use of the H-2A program, which protects the rights of U.S.
and foreign workers. Namely, the Department will allow H-2A employers
whose extension of stay H-2A petitions are supported by valid temporary
labor certifications (TLCs) issued by the Department of Labor to begin
work immediately after the extension of stay petition is received by
USCIS. The Department is also temporarily amending its regulations to
allow H-2A workers to stay in the United States beyond the 3 years
maximum allowable period of stay. DHS will apply this temporary final
rule to H-2A petitions requesting an extension of stay, and, if
applicable, any associated applications for an extension of stay filed
by or on behalf of an H-2A worker, if they were received on or after
March 1, 2020 and remain pending as of the effective date of this rule,
as well as H-2A petitions for an extension of stay, received on or
after the effective date of this rule, ending on the last day this rule
is in effect.
DATES: This final rule is effective from April 20, 2020 through August
18, 2020.
FOR FURTHER INFORMATION CONTACT: Charles L. Nimick, Chief, Business and
Foreign Workers Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
20 Massachusetts Ave. NW, Suite 1100, Washington, DC 20529-2120,
Telephone Number (202) 272-8377 (not a toll-free call).
Individuals with hearing or speech impairments may access the
telephone numbers above via TTY by calling the toll-free Federal
Information Relay Service at 1-877-889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Legal Framework
B. Description of the H-2A Program
i. DOL Temporary Labor Certification Procedures
ii. DHS Petition Procedures
iii. Admission and Limitations of Stay
C. COVID-19 National Emergency
II. Discussion
A. Temporary Changes to DHS Requirements for H-2A Change of
Employer Requests and H-2A Maximum Period of Stay Exception During
the COVID-19 National Emergency
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Executive Orders 12866 (Regulatory Planning and Review) and
13563 (Improving Regulation and Regulatory Review)
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Congressional Review Act
H. National Environmental Policy Act
I. Signature
List of Subjects and Regulatory Amendments
I. Background
A. Legal Framework
The Secretary of Homeland Security (Secretary) has the authority to
amend this regulation under section 102 of the Homeland Security Act of
2002 (HSA), Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 112, and
section 103(a) of the Immigration and Nationality Act (INA), 8 U.S.C.
1103(a), which authorize the Secretary to administer and enforce the
immigration and nationality laws. Under section 101 of the HSA, 6
U.S.C. 111(b)(1)(F), a primary mission of the Department is to ``ensure
that the overall economic security of the United States is not
diminished by efforts, activities, and programs aimed at securing the
homeland.'' In addition, section 214(a)(1) of the INA, 8 U.S.C.
1184(a)(1), provides the Secretary with authority to prescribe the
terms and conditions of any alien's admission to the United States as a
nonimmigrant. The INA further requires that ``[t]he question of
importing any alien as [an H-2A] nonimmigrant . . . in any specific
case or specific cases shall be determined by [DHS], after consultation
with appropriate agencies of the Government [the U.S. Department of
Labor and the U.S. Department of Agriculture], upon petition by the
importing employer.'' INA 214(c)(1), 8 U.S.C. 1184(c)(1). Section
274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), states that ```an
unauthorized alien' means . . . that the alien is not at that time . .
. authorized to be employed by this chapter or by the [Secretary].''
B. Description of the H-2A Program
The H-2A nonimmigrant classification applies to alien workers
seeking to perform agricultural labor or services of a temporary or
seasonal nature in the United States on a temporary basis, usually
lasting no longer than 1 year, for which U.S. workers are not
available. INA 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a);
see also 8 CFR 214.1(a)(2). As noted in the statute, not only must the
alien be coming ``temporarily'' to the United States, but the
agricultural labor or services that the alien is performing must also
be ``temporary or seasonal.'' INA 101(a)(15)(H)(ii)(a). The regulations
further define an employer's temporary need as employment that is of a
[[Page 21740]]
temporary nature where the employer's need to fill the position with a
temporary worker will, except in extraordinary circumstances, last no
longer than 1 year. 8 CFR 214.2(h)(5)(iv)(A). An employer's seasonal
need is defined as employment that is tied to a certain time of year by
an event or pattern, such as a short annual growing cycle or a specific
aspect of a longer cycle, and requires labor levels above those
necessary for ongoing operations. Id.
An employer, agent, or association (``H-2A petitioner'') must
submit a petition to U.S. Citizenship and Immigration Services (USCIS)
to obtain authorization of temporary workers as H-2A nonimmigrants
before the employer may begin employing H-2A workers. INA 214(c)(1), 8
U.S.C. 1184(c)(1); 8 CFR 214.2(h)(2)(i). DHS must approve this petition
before the alien can be considered eligible for H-2A status or a visa.
To qualify for H-2A classification, the H-2A petitioner must, among
other things, offer a job that is of a temporary or seasonal nature,
and must submit a single, valid temporary labor certification (TLC)
from the U.S. Department of Labor (DOL) establishing that there are not
enough U.S. workers who are able, willing, qualified, and available to
do the temporary work, and that employing H-2A workers will not
adversely affect the wages and working conditions of workers in the
United States similarly employed.\1\ INA 101(a)(15)(H)(ii)(a) and 218,
8 U.S.C. 1101(a)(15)(H)(ii)(a) and 1188; see also generally 8 CFR
214.2(h)(5)(i)(A) and (h)(5)(iv). Aliens who are outside of the United
States also must first obtain an H-2A visa from the U.S. Department of
State (DOS) at a U.S. Embassy or Consulate abroad, if required, and
then seek admission with U.S. Customs and Border Protection (CBP) at a
U.S. port of entry prior to commencing employment as an H-2A
nonimmigrant. Aliens may be admitted for an additional period of up to
one week prior to the employment start date for the purpose of travel
to the worksite. 8 CFR 214.2(h)(5)(viii)(B).
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\1\ Under certain emergent circumstances, petitions requesting a
continuation of employment with the same employer for 2 weeks or
less are exempt from the TLC requirement. See 8 CFR 214.2(h)(5)(x).
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i. DOL Temporary Labor Certification (TLC) Procedures
Prior to filing the H-2A petition with DHS, the U.S. employer or
agent must obtain a valid TLC from DOL for the job opportunity the
employer seeks to fill with an H-2A worker(s). As part of the TLC
process, the petitioning employer must have demonstrated to the
satisfaction of the Secretary of Labor that (a) there are not
sufficient U.S. workers who are able, willing, and qualified, and who
will be available at the time and place needed to perform the labor or
services involved in the petition, and (b) the employment of the alien
in such labor or services will not adversely affect the wages and
working conditions of workers in the United States similarly employed.
8 U.S.C. 1188(a)(1); see also 20 CFR 655.100.
The INA specifies a number of conditions under which the Secretary
cannot grant a temporary labor certification. 8 U.S.C. 1188(b). One
such condition is where ``[t]he Secretary determines that the employer
has not made positive recruitment efforts within a multi-state region
of traditional or expected labor supply where the Secretary finds that
there are a significant number of qualified United States workers who,
if recruited, would be willing to make themselves available for work at
the time and place needed.'' 8 U.S.C. 1188(b)(4). The ``positive
recruitment'' that the INA requires ``is in addition to, and shall be
conducted within the same time period as, the circulation through the
interstate employment service system of the employer's job offer.'' 8
U.S.C. 1188(b)(4). An employer's obligation to engage in this
recruitment terminates ``on the date the H-2A workers depart for the
employer's place of employment.'' Id. The standards and procedures
governing the positive recruitment of U.S. workers are set forth in
DOL's regulations. 20 CFR 655.151 through 655.154.
To obtain a TLC from DOL, the employer must first submit an
agricultural job order, within 75 to 60 calendar days prior to the
start date of work, to the State Workforce Agency (SWA) that serves the
state where the actual work will be performed. The SWA will then
initiate the interstate recruitment of U.S. workers. In addition, the
employer must submit an H-2A application to DOL's Office of Foreign
Labor Certification (OFLC) no less than 45 calendar days before the
start date of work. OFLC will review the H-2A application and notify
the employer of any deficiencies, as well as provide instructions for
additional recruitment efforts for U.S. workers.
As noted above, in granting the TLC, DOL certifies that there are
no U.S. workers who are able, willing, and qualified to fill the
temporary or seasonal position and that the employment of H-2A workers
will not adversely affect the wages and working conditions of workers
in the United States similarly employed. INA 214(c)(1) and 218(a), 8
U.S.C. 1184 (c)(1) and 1188(a); 8 CFR 214.2(h)(5)(ii) and
(h)(5)(iv)(B); 20 CFR 655.100. The U.S. employer must comply with DOL's
regulations covering the H-2A process, including, but not limited to,
offering the job opportunity identified on the TLC to any laid-off U.S.
worker(s) and contacting former U.S. workers who were employed in the
job opportunity identified on the TLC. 20 CFR 655.135 and 655.153. The
U.S. employer must also continue to accept referrals of all eligible
U.S. workers who apply for the job opportunity until 50 percent of the
work contract period certified by DOL has elapsed, as specified in 20
CFR 655.135(d).
ii. DHS Petition Procedures
After receiving a valid TLC from DOL, the employer listed on the
TLC, an employer's agent, or the association of United States
agricultural producers named as a joint employer on the TLC (``H-2A
petitioner'') may file the H-2A petition with the appropriate USCIS
office. INA 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(2)(i),
(h)(5)(i)(A). The H-2A petitioner may petition for one or more named or
unnamed H-2A workers, but the total number of workers may not exceed
the number of positions indicated on the TLC. 8 CFR 214.2(h)(2)(iii)
and (h)(5)(i)(B). H-2A petitioners must name the H-2A worker if the
worker is in the United States or if the H-2A worker is a national of a
country that is not designated as an H-2A participating country. 8 CFR
214.2(h)(2)(iii). USCIS recommends that petitioners submit a separate
H-2A petition when requesting a worker(s) who is a national of a
country that is not designated as an H-2A participating country. See 8
CFR 214.2(h)(5)(i)(F); see also Identification of Foreign Countries
Whose Nationals Are Eligible To Participate in the H-2A and H-2B
Nonimmigrant Worker Programs, Notice, 85 FR 3067 (Jan. 17, 2020).
Petitioners for such aliens must submit evidence demonstrating the
factors by which the request for H-2A workers serves the U.S. national
interest. 8 CFR 214.2(h)(5)(i)(F)(1)(ii). USCIS will review each
petition naming a national from a country not on the list and all
supporting documentation and make a determination on a case-by-case
basis.
A U.S. employer or U.S. agent generally may submit a new H-2A
petition, with a new, valid TLC, to USCIS to request an extension of H-
2A nonimmigrant status for a period of up to 1 year. 8 CFR
214.2(h)(15)(ii)(C). The H-2A petitioner must name the worker on the
Form I-129, Petition for
[[Page 21741]]
Nonimmigrant Worker, since the H-2A worker is in the United States and
requesting an extension of stay. In the event of an emergency
circumstance, however, a U.S. employer may request an extension not to
exceed 14 days without first having to obtain an additional approved
TLC from DOL if certain criteria are met, by simply submitting the new
H-2A petition. See 8 CFR 214.2(h)(5)(x).
In 2008, USCIS promulgated regulations allowing H-2A workers to
begin work with a new petitioning employer upon the filing of an H-2A
petition, before petition approval, provided that the new employer is a
participant in good standing in the E-Verify program.\2\ 8 CFR
214.2(h)(2)(i)(D) and 8 CFR 274a.12(b)(21). In such a case, the H-2A
worker's employment authorization continues for a period not to exceed
120 days beginning on the ``Received Date'' on the Form I-797, Notice
of Action, which acknowledges the receipt of the new H-2A extension
petition. With the exception of the new employer and worksite, the
employment authorization extension remains subject to the same
conditions and limitations indicated on the initial H-2A petition. The
continued employment authorization extension will terminate
automatically if the new employer fails to remain a participant in good
standing in the E-Verify program, as determined by USCIS in its
discretion.
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\2\ See Changes to Requirements Affecting H-2A Nonimmigrants, 73
FR 76891, 76905 (Dec. 8, 2008).
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iii. Admission and Limitations of Stay
Upon USCIS approval of the H-2A petition, the U.S. employer or
agent may hire the H-2A workers to fill the job opening. USCIS will
generally grant the workers H-2A classification for up to the period of
time authorized on the valid TLC. H-2A workers who are outside of the
United States may apply for a visa with DOS at a U.S. Embassy or
Consulate abroad, if required, and seek admission to the United States
with CBP at a U.S. port of entry. Spouses and children of H-2A workers
may request H-4 nonimmigrant status to accompany the principal H-2A
worker. The spouse and children of an H nonimmigrant, if they are
accompanying or following to join such H nonimmigrant in the United
States, may be admitted, if otherwise admissible, as H-4 nonimmigrants
for the same period of admission or extension as the principal spouse
or parent. 8 CFR 214.2(h)(9)(iv). Thus, H-4 dependents of these H-2A
workers are subject to the same limitations on stay, and permission to
remain in the country during the pendency of the new employer's
petition, as the H-2A beneficiary.
An alien's H-2A status is limited by the validity dates on the
approved H-2A petition, which must be less than 1 year. 8 CFR
214.2(h)(5)(viii)(C). H-2A workers may be admitted into the United
States for a period of up to 1 week prior to the beginning validity
date listed on the approved H-2A petition so that they may travel to
their worksites, but may not begin work until the beginning validity
date. H-2A workers may also remain in the United States 30 days beyond
the expiration date of the approved H-2A petition to prepare for
departure or to seek an extension or change of nonimmigrant status. H-
2A workers do not have employment authorization outside of the validity
period listed on the approved petition unless otherwise authorized. 8
CFR 214.2(h)(5)(viii)(B).
The maximum period of stay for an alien in H-2A classification is 3
years. 8 CFR 214.2(h)(5)(viii)(C). Once an alien has held H-2A
nonimmigrant status for a total of 3 years, the alien must depart and
remain outside of the United States for an uninterrupted period of 3
months before seeking readmission as an H-2A nonimmigrant. 8 CFR
214.2(h)(5)(viii)(C).
C. COVID-19 National Emergency
On January 31, 2020, the Secretary of the U.S. Department of Health
and Human Services (HHS) declared a public health emergency under
section 319 of the Public Health Service Act (42 U.S.C. 247d), in
response to the Coronavirus Disease 2019 (COVID-19).\3\ On March 13,
2020, President Trump declared a National Emergency concerning the
COVID-19 outbreak to control the spread of the virus in the United
States.\4\ The President's proclamation declared that the emergency
began on March 1, 2020. In response to the Mexican government's call to
increase social distancing, DOS announced the temporary suspension of
routine immigrant and nonimmigrant visa services processed at the U.S.
Embassy in Mexico City and all U.S. consulates in Mexico beginning on
March 18, 2020.\5\ DOS expanded the temporary suspension of routine
immigrant and nonimmigrant visa services to all U.S. Embassies and
Consulates on March 20, 2020.\6\ DOS designated H-2A visas as mission
critical, however, and announced that U.S. Embassies and Consulates
will continue to process H-2A cases to the extent possible and
implemented a change in its procedures, to include interview
waivers.\7\ In addition, DHS has identified occupations in food and
agriculture as critical to the U.S. public health and safety and
economy.\8\
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\3\ HHS, Determination of Public Health Emergency, 85 FR 7316
(Feb. 7, 2020).
\4\ Proclamation 9994 of March 13, 2020, Declaring a National
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85
FR 15337 (Mar. 18, 2020). See also https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ (last
visited Mar. 25, 2020).
\5\ DOS, Status of U.S. Consular Operations in Mexico in Light
of COVID-19, https://mx.usembassy.gov/status-of-u-s-consular-operations-in-mexico-in-light-of-covid-19/.
\6\ DOS, Suspension of Routine Visa Services, https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html.
\7\ See DOS website, Important Announcement on H2 Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-h2-visas.html (last updated Mar. 26, 2020).
\8\ DHS, Memorandum on Identification of Essential Critical
Infrastructure Workers During COVID-19 Response, https://www.cisa.gov/sites/default/files/publications/CISA-Guidance-on-Essential-Critical-Infrastructure-Workers-1-20-508c.pdf (Mar. 19,
2020).
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II. Discussion
A. Temporary Changes to DHS Requirements for H-2A Change of Employer
Requests and H-2A Maximum Period of Stay Exception during the COVID-19
National Emergency
DHS regulations currently permit H-2A workers to continue to be
employment-authorized while waiting for their extensions of H-2A status
based on an H-2A petition, accompanied by an approved TLC, filed by a
new employer if the new employer is in good standing in the E-Verify
program. 8 CFR 274a.12(b)(21).
DHS is committed to both protecting U.S. workers and to helping
U.S. businesses receive the legal and work-authorized labor for
temporary or seasonal agricultural labor or services that they need.
Due to travel restrictions and visa processing limitations as a result
of actions taken to mitigate the spread of COVID-19, as well as the
possibility that some H-2A workers may become unavailable due to COVID-
19 related illness, U.S. employers who have approved H-2A petitions or
who will be filing H-2A petitions might not receive all of the workers
requested to fill the temporary positions, and similarly, employers
that currently employ H-2A workers may lose the services of these
workers due to COVID-19 related illness. In the wealth of uncertainty
inherent to confronting a public health emergency of this magnitude,
DHS is taking steps to ensure that the agricultural sector has
[[Page 21742]]
greater certainty and flexibility to minimize gaps in their H-2A
workflow. Therefore, for at least 120 days, the Department is providing
the flexibilities discussed herein. The Department is amending its
regulations to temporarily permit all H-2A employers to allow aliens
who currently hold H-2A status to start working upon the receipt of the
employer's new H-2A petition, but no earlier than the start date of
employment listed on the H-2A petition, to meet the employer's needs
during the national emergency. See new 8 CFR 214.2(h)(21) and 8 CFR
274a.12(b)(26). Unlike the current regulation at 8 CFR 274a.12(b)(21),
which allows the H-2A worker(s) to immediately work for a new H-2A
employer in good standing in E-Verify upon the filing of an H-2A
petition, this final rule temporarily allows the H-2A worker(s) to
immediately work for any new H-2A employer, but no earlier than the
start date of employment listed on the H-2A petition, upon the filing
of a new H-2A petition during the COVID-19 National Emergency only.
The Department remains committed to promoting the use of E-Verify
to ensure a legal workforce. E-Verify is free, user friendly, and over
98% accurate.\9\ Notwithstanding the numerous benefits E-Verify offers
to ensure all employers only employ a legal workforce, the Department
has determined that it is necessary to temporarily amend its
regulations affecting H-2A workers to mitigate the impact on the
agricultural industry due to COVID-19. These H-2A petitioners will have
completed a test of the U.S. labor market, and DOL will have determined
that there are no qualified U.S. workers available to fill these
temporary positions. The Department believes that granting H-2A workers
the option to begin employment with any new H-2A petitioner as soon as
the H-2A petition is received by USCIS will also benefit U.S.
agricultural employers and provide stability to the U.S. food supply
chain during the unique challenges the country faces because of COVID-
19.
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\9\ See https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance (last visited on Mar. 30, 2020).
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In addition, the Department has determined that it is necessary to
create a temporary exception to its regulations at 8 CFR
214.2(h)(5)(viii)(C), (h)(13)(i)(B), and (h)(15)(ii)(C) to allow aliens
to extend their H-2A period of stay beyond the 3-year limitation,
without first requiring them to remain outside of the United States for
an uninterrupted period of 3 months.
Given these extraordinary times and possible delays of H-2A visa
issuance at the U.S. Embassies and Consulates, the Department has
determined to temporarily amend its regulations affecting H-2A workers
in order to meet the needs of U.S. employers in the food and
agricultural industries, who have already conducted a test of the U.S.
labor market but have not been able to find qualified, available U.S.
workers to fill the positions, during the National Emergency. This
final rule proposes no changes to DOL's regulations or to the TLC
process, which the employer must undergo to recruit U.S. workers prior
to the filing of an H-2A petition with USCIS. The flexibility for H-2A
workers to quickly move to a new employer will help meet the urgent
need to minimize any negative impact to the U.S. food supply chain due
to COVID-19. This extraordinary treatment is limited to aliens who are
and have been complying with the terms of their H-2A status.
To be approved under this final rule, an H-2A petition for an
extension of stay with a new employer must have been received on or
after March 1, 2020 and remain pending as of the effective date of this
rule, or received on or after the effective date of this rule and no
later than the last day that this final rule is in effect (i.e., August
18, 2020). If the new petition is approved, the H-2A worker's extension
of stay may be granted for the validity of the approved petition for a
period not to exceed the validity period of the TLC. In addition, the
temporary provisions differ from the existing provisions in that they
grant employment authorization for 45 days from the date of the receipt
notice. The 45-day employment authorization associated with the filed
petition will automatically terminate 15 days after the date of denial
or withdrawal if USCIS denies the petition, or if the petition is
withdrawn.
To provide greater certainty to the market for the duration of the
summer growing season, the changes made by this final rule will
automatically terminate on August 18, 2020. DHS will issue a new
temporary final rule to extend the termination date in 8 CFR
214.2(h)(21)(iii) in the event DHS determines that economic
circumstances related to our food supply and U.S. agriculture
demonstrate a continued need for these temporary changes to the
regulatory requirements involving H-2A agricultural employers and
workers. USCIS will continue to adjudicate H-2A petitions received no
later than August 18, 2020 under the provisions of this rule. If DHS
extends the termination date, DHS will continue to adjudicate H-2A
petitions received no later than the new termination date. Any H-2A
petition received after the termination of this final rule, or any
subsequently established termination date, will be adjudicated in
accordance with the existing provisions. See 8 CFR 214.2(h)(2)(i)(D)
and 274a.12(b)(21).
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
This rule is issued without prior notice and opportunity to comment
and with an immediate effective date pursuant to sections 553(b) and
(d) of the Administrative Procedure Act (APA). 5 U.S.C. 551 et seq.
1. Good Cause To Forgo Notice and Comment Rulemaking
The APA, 5 U.S.C. 553(b)(B), authorizes an agency to issue a rule
without prior notice and opportunity to comment when the agency for
good cause finds that those procedures are ``impracticable,
unnecessary, or contrary to the public interest.'' The good-cause
exception for forgoing notice-and-comment rulemaking ``excuses notice
and comment in emergency situations, or where delay could result in
serious harm.'' Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004).
Although the good cause exception is ``narrowly construed and only
reluctantly countenanced,'' Tenn. Gas Pipeline Co. v. FERC, 969 F.2d
1141, 1144 (D.C. Cir 1992), the Department has appropriately invoked
the exception in this case, for the reasons set forth below. As also
discussed earlier in this preamble, on January 31, 2020, the Secretary
of Health and Human Services declared a public health emergency under
section 319 of the Public Health Service Actin response to COVID-
19.\10\ On March 13, 2020, President Trump declared a National
Emergency concerning the COVID-19 outbreak, dated back to March 1,
2020, to control the spread of the virus in the United States.\11\ In
response to the Mexican government's call to increase social distancing
in that country, DOS announced the temporary suspension of routine
immigrant and nonimmigrant visa services processed at the U.S. Embassy
in Mexico City and all U.S. consulates in Mexico beginning on March 18,
2020.\12\ DOS expanded the temporary suspension of routine immigrant
and nonimmigrant visa
[[Page 21743]]
services at all U.S. Embassies and Consulates on March 20, 2020.\13\
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\10\ Determination of Public Health Emergency.
\11\ Proclamation 9994.
\12\ Status of U.S. Consular Operations in Mexico in Light of
COVID-19.
\13\ Suspension of Routine Visa Services.
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DOS designated H-2A visas as mission critical, and announced that
U.S. Embassies and Consulates will continue to process H-2 cases to the
extent possible and implemented a change in its procedures, to include
interview waivers.\14\ In addition, DHS identified occupations in food
and agriculture as critical to the U.S. public health and safety and
economy.\15\ Due to travel restrictions, visa processing limitations as
a result of actions taken to mitigate the spread of COVID-19, as well
as the possibility that some H-2A workers may become unavailable due to
illness related to the spread of COVID-19, U.S. employers who have
approved temporary agricultural labor certifications and either
approved H-2A petitions or who will be filing H-2A petitions might not
receive, or be able to continuously employ, all of the workers
requested to fill all of their DHS-approved temporary or seasonal
agricultural positions. Due to these anticipated labor shortages, these
employers may experience adverse economic impacts to their agricultural
operations. Finally, fears over COVID-19 have prompted concerns about
food shortages and food insecurity globally.\16\ To partially address
these concerns, DHS is acting expeditiously to put in place rules that
will facilitate the continued employment of H-2A workers already
present in the United States. This action will help U.S. employers fill
critically necessary agricultural job openings, protect economic
investments in their agricultural operations, and contribute to U.S.
food security.
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\14\ Important Announcement on H2 Visas.
\15\ DHS Memorandum on Identification of Essential Critical
Infrastructure Workers During COVID-19 Response.
\16\ See, e.g. Coronavirus measures could cause global food
shortage, UN warns. https://www.theguardian.com/global-development/2020/mar/26/coronavirus-measures-could-cause-global-food-shortage-un-warns (last visited on Mar. 27, 2020).
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Courts have found ``good cause'' under the APA when an agency is
moving expeditiously to avoid significant economic harm to a program,
program users, or an industry. Courts have held that an agency may use
the good-cause exception to address ``a serious threat to the financial
stability of [a government] benefit program,'' Nat'l Fed'n of Fed.
Emps. v. Devine, 671 F.2d 607, 611 (D.C. Cir 1982), or to avoid
``economic harm and disruption'' to a given industry, which would
likely result in higher consumer prices, Am. Fed'n of Gov't Emps. v.
Block, 655 F.2d 1153, 1156 (D.C. Cir 1981). Consistent with the above
authorities, the Department has bypassed notice and comment to
facilitate the employment of H-2A workers already in the United States,
and prevent potential economic harms to H-2A agricultural employers and
downstream employers engaged in the processing of agricultural
products, as well as potential harms to the American economy and people
that could result from ongoing uncertainty over the availability of H-
2A agricultural workers, and potential associated negative impacts on
food security in the United States. See Bayou Lawn & Landscape Servs.
v. Johnson, 173 F. Supp. 3d 1271, 1285 & n.12 (N.D. Fla. 2016). This
action is temporary in nature, and includes appropriate conditions to
ensure that it is narrowly tailored to the National Emergency caused by
COVID-19.
2. Good Cause To Proceed With an Immediate Effective Date
The APA also authorizes agencies to make a rule effective
immediately, upon a showing of good cause, instead of imposing a 30-day
delay. 5 U.S.C. 553(d)(3). The good-cause exception to the 30-day
effective date requirement is easier to meet than the good-cause
exception for forgoing notice and comment rulemaking. Riverbend Farms,
Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992); Am. Fed'n of
Gov't Emps., AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir 1981);
U.S. Steel Corp. v. EPA, 605 F.2d 283, 289-90 (7th Cir. 1979). An
agency can show good cause for eliminating the 30-day delayed effective
date when it demonstrates urgent conditions the rule seeks to correct
or unavoidable time limitations. U.S. Steel Corp., 605 F.2d at 290;
United States v. Gavrilovic, 511 F.2d 1099, 1104 (8th Cir. 1977). For
the same reasons set forth above, we also conclude that the Department
has good cause to dispense with the 30-day effective date requirement
given that this rule is necessary to prevent serious economic harms to
U.S. employers in the agricultural industry caused by unavailability of
workers due to COVID-19, and to ensure food stability for the American
people.
B. Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review)
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility. This rule
is designated a significant regulatory action under E.O. 12866.
Accordingly, the Office of Management and Budget (OMB) has reviewed
this regulation. DHS, however, is proceeding under the emergency
provision of Executive Order 12866 Section 6(a)(3)(D) based on the need
to move expeditiously during the current public health emergency to
secure labor for our food supply.
This rule will help U.S. employers fill critically necessary
agricultural job openings, protect their economic investments in their
agricultural operations, and contribute to U.S. food security. In
addition, it will benefit H-2A workers already in the United States by
making it easier for employers to hire them, and allowing them to
remain employed, if applicable, longer than the 3-year limitation on
their stay. As this rule helps fill critical labor needs for
agricultural employers, DHS believes this rule will help ensure a
continual food supply chain in the United States.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), imposes
certain requirements on Federal agency rules that are subject to the
notice and comment requirements of the APA. See 5 U.S.C. 603(a),
604(a). This final rule is exempt from notice and comment requirements
for the reasons stated above in Part III.A. Therefore, the requirements
of the RFA applicable to final rules, 5 U.S.C. 604, do not apply to
this final rule. Accordingly, the Department is not required to either
certify that the final rule would not have a significant economic
impact on a substantial number of small entities or conduct a
regulatory flexibility analysis.
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, Public Law 104-4, 2
U.S.C. 1501, et seq. (UMRA), is intended, among other things, to curb
the practice of imposing unfunded Federal mandates on State, local, and
tribal governments. Title II of the Act requires each Federal agency to
prepare a written statement assessing the effects of any Federal
mandate in a proposed rule, or final rule for which the agency
published a proposed rule that includes any Federal mandate that may
result in $100 million
[[Page 21744]]
or more expenditure (adjusted annually for inflation) in any one year
by State, local, and tribal governments, in the aggregate, or by the
private sector. 2 U.S.C. 1532. This rule does not contain such a
mandate. The requirements of Title II of UMRA, therefore, do not apply,
and DHS has not prepared a statement under UMRA.
E. Executive Order 13132 (Federalism)
This rule does not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of E.O.
13132, 64 FR 43255, 43258 (Aug. 4, 1999), this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of E.O. 12988, 61 FR 4729 (Feb. 5, 1996).
G. Congressional Review Act
The Office of Information and Regulatory Affairs, of the Office of
Management and Budget, has determined that this final rule is not a
``major rule'' as defined by the Congressional Review Act, 5 U.S.C.
804(2), and thus is not subject to a 60-day delay in the rule becoming
effective. DHS will send this temporary final rule to Congress and to
the Comptroller General under the Congressional Review Act, 5 U.S.C.
801 et seq.
H. National Environmental Policy Act
DHS analyzes actions to determine whether the National
Environmental Policy Act, Public Law 91-190, 42 U.S.C. 4231, et seq.
(NEPA), applies to them and, if so, what degree of analysis is
required. DHS Directive 023-01 Rev. 01 (Directive) and Instruction
Manual 023-01-001-01 Rev. 01 (Instruction Manual) establish the
policies and procedures that DHS and its components use to comply with
NEPA and the Council on Environmental Quality (CEQ) regulations for
implementing NEPA, 40 CFR parts 1500-1508.
The CEQ regulations allow federal agencies to establish, with CEQ
review and concurrence, categories of actions (``categorical
exclusions'') which experience has shown do not individually or
cumulatively have a significant effect on the human environment and,
therefore, do not require an Environmental Assessment (EA) or
Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(2)(ii), 1508.4.
Categorical exclusions established by DHS are set forth in Appendix A
of the Instruction Manual. Under DHS NEPA implementing procedures, for
an action to be categorically excluded, it must satisfy each of the
following three conditions: (1) The entire action clearly fits within
one or more of the categorical exclusions; (2) the action is not a
piece of a larger action; and (3) no extraordinary circumstances exist
that create the potential for a significant environmental effect.
Instruction Manual section V.B(2)(a)-(c). This rule temporarily amends
regulations governing the H-2A nonimmigrant visa program to facilitate
the continued employment of H-2A nonimmigrants in the United States by
allowing them to change employers in the United States and begin
working in the same visa classification for a period not to exceed 45
days before the nonimmigrant visa petition is approved, due to the
National Emergency caused by the COVID-19 global pandemic. It also
establishes a temporary exception from the 3-year limit on the maximum
period of stay for H-2A workers. This rule does not change the number
of H-2A workers that may be employed by U.S. employers as there is not
an established statutory limit. It also does not change rules for where
H-2A nonimmigrants may be employed; only employers with approved
temporary labor certifications for workers to perform temporary or
seasonal agricultural work may be allowed to employ H-2A workers under
these temporary provisions. Generally, DHS believes NEPA does not apply
to a rule intended to make it easier for H-2A employers to hire workers
who are already in the United States in addition to, or instead of,
also hiring H-2A workers from abroad because any attempt to analyze its
potential impacts would be largely speculative, if not completely so.
DHS cannot reasonably estimate how many petitions will be filed under
these temporary provisions, and therefore how many H-2A workers already
in the United States will be employed by different employers, as
opposed to how many petitions would have been filed for H-2A workers
employed under normal circumstances. DHS has no reason to believe that
the temporary amendments to H-2A regulations would change the
environmental effect, if any, of the existing regulations. Therefore,
DHS has determined that even if NEPA were to apply to this action, this
rule clearly fits within categorical exclusion A3(d) in the Instruction
Manual, which provides an exclusion for ``promulgation of rules . . .
that amend an existing regulation without changing its environmental
effect.''
This rule maintains the current human environment by helping to
prevent irreparable harm to certain U.S. businesses and to prevent
significant adverse effects on the human environment that would likely
result from loss of jobs or income, or disruption of the nation's food
supply chain. This rule is not a part of a larger action and presents
no extraordinary circumstances creating the potential for significant
environmental effects. Therefore, this action is categorically excluded
and no further NEPA analysis is required.
I. Signature
The Acting Secretary of Homeland Security, Chad F. Wolf, having
reviewed and approved this document, is delegating the authority to
electronically sign this document to Chad R. Mizelle, who is the Senior
Official Performing the Duties of the General Counsel for DHS, for
purposes of publication in the Federal Register.
List of Subjects
8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
programs, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
Accordingly, DHS amends chapter I of title 8 of the Code of Federal
Regulations as follows:
PART 214--NONIMMIGRANT CLASSES
0
1. The authority citation for part 214 continues to read as follows:
Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182,
1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305 and 1372; sec. 643,
Pub. L. 104-208, 110 Stat. 3009-708; Public Law 106-386, 114 Stat.
1477-1480; section 141 of the Compacts of Free Association with the
Federated States of Micronesia and the Republic of the Marshall
Islands, and with the Government of Palau, 48 U.S.C. 1901 note and
1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2.
0
2. Amend Sec. 214.2 by adding paragraph (h)(21) to read as follows:
[[Page 21745]]
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(21) Change of employers during COVID-19 National Emergency. (i) If
an H-2A nonimmigrant who is physically present in the United States
seeks to change employers during the COVID-19 National Emergency (which
began on March 1, 2020), the prospective new H-2A employer may file an
H-2A petition on Form I-129, accompanied by a valid temporary
agricultural labor certification, requesting an extension of the
alien's stay in the United States. To be approved under this paragraph
(h)(21), an H-2A petition must be received no later than August 18,
2020. If the new petition is approved, the extension of stay may be
granted for the validity of the approved petition for a period not to
exceed the validity period of the temporary agricultural labor
certification. Notwithstanding paragraph (h)(2)(i)(D) of this section
and 8 CFR 274a.12(b)(21), an alien in valid H-2A nonimmigrant status on
March 1, 2020, or lawfully obtaining such status thereafter pursuant to
this paragraph (h)(21), is authorized to begin employment with the new
petitioner after the petition described in this paragraph (h)(21) is
received by USCIS, but no earlier than the start date of employment,
indicated in the H-2A petition. The H-2A worker is authorized to
commence employment with the petitioner before the petition is approved
and subject to the requirements of 8 CFR 274a.12(b)(26) for a period of
up to 45 days beginning on the Received Date on Form I-797 (Notice of
Action) or, if the start date of employment occurs after the I-797
Received Date, 45 days beginning on the start date of employment
indicated in the H-2A petition. If USCIS adjudicates the petition prior
to the expiration of this 45-day period and denies the petition for
extension of stay, or if the petition is withdrawn by the petitioner
before the expiration of the 45-day period, the employment
authorization associated with the filing of that petition under 8 CFR
274a.12(b)(26) will automatically terminate 15 days after the date of
the denial decision or the date on which the petition is withdrawn.
(ii) Notwithstanding paragraphs (h)(5)(viii)(C), (h)(13)(i)(B), and
(h)(15)(ii)(C) of this section, an H-2A petition seeking an extension
of stay, submitted with a valid temporary agricultural labor
certification, may be approved on the basis of paragraph (h)(21)(i) of
this section, even if any of the aliens requested in the H-2A petition
have exhausted the otherwise applicable 3-year maximum period of stay
in the United States and have not thereafter been absent from the
United States for an uninterrupted period of 3 months, or if any such
aliens would exceed the 3-year limit as a consequence of the approval
of the extension.
(iii) This paragraph (h)(21) will expire on August 18, 2020.
* * * * *
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
0
3. The authority citation for part 274a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR
part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-
74, 129 Stat. 599.
0
4. Amend Sec. 274a.12 by adding paragraph (b)(26) to read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(b) * * *
(26)(i) Pursuant to 8 CFR 214.2(h)(21) and notwithstanding 8 CFR
214.2(h)(2)(i)(D) and paragraph (b)(21) of this section, an alien is
authorized to be employed, but no earlier than the start date of
employment indicated in the H-2A petition, by a new employer that has
filed an H-2A petition naming the alien as a beneficiary and requesting
an extension of stay for the alien, for a period not to exceed 45 days
beginning from the ``Received Date'' on Form I-797 (Notice of Action)
acknowledging receipt of the petition requesting an extension of stay,
or 45 days beginning on the start date of employment if the start date
of employment indicated in the H-2A petition occurs after the filing.
The length of the period (up to 45 days) is to be determined by USCIS
in its discretion. However, if USCIS adjudicates the petition prior to
the expiration of this 45-day period and denies the petition for
extension of stay, or if the petitioner withdraws the petition before
the expiration of the 45-day period, the employment authorization under
this paragraph (b)(26) will automatically terminate upon 15 days after
the date of the denial decision or the date on which the petition is
withdrawn.
(ii) This paragraph (b)(26) is in effect for the period set forth
in 8 CFR 214.2(h)(21)(iii).
* * * * *
Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S.
Department of Homeland Security.
[FR Doc. 2020-08356 Filed 4-17-20; 8:45 am]
BILLING CODE 49111-97-P