[Federal Register Volume 85, Number 162 (Thursday, August 20, 2020)]
[Rules and Regulations]
[Pages 51304-51312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18283]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214 and 274a
[CIS No. 2672-20; DHS Docket No. USCIS-2020-0008]
RIN 1615-AC55
Temporary Changes to Requirements Affecting H-2A Nonimmigrants
Due To the COVID-19 National Emergency: Partial Extension of Certain
Flexibilities
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security (DHS).
ACTION: Temporary final rule.
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SUMMARY: As a result of continued disruptions and uncertainty to the
U.S. food agriculture sector during the summer and upcoming fall
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 it is
necessary to temporarily extend the amendments to certain regulations
regarding temporary and seasonal agricultural workers, and their U.S.
employers, within the H-2A nonimmigrant classification. Through this
temporary final rule DHS is
[[Page 51305]]
partially extending some of the provisions of the April 20, 2020,
temporary final rule. Namely, the Department will continue to allow H-
2A employees whose extension of stay H-2A petitions are supported by
valid temporary labor certifications issued by the Department of Labor
to begin work with a new employer immediately after the extension of
stay petition is received by USCIS. DHS will apply this temporary final
rule to H-2A petitions requesting an extension of stay, if they were
received on or after August 19, 2020, but no later than December 17,
2020. The temporary extension of these flexibilities will ensure that
agricultural employers have access to the 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 at the same time encouraging agricultural employers' use
of the H-2A program, which protects the rights of U.S. and foreign
workers.
DATES: This final rule is effective from August 19, 2020, through
August 19, 2023. Employers may request the flexibilities under this
rule by filing an H-2A petition on or after August 19, 2020 and through
December 17, 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 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
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
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
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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.
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. Once it clears the job
order, the SWA will place it into intrastate clearance to initiate the
recruitment of U.S. workers. 20 CFR 655.121. After review by the SWA,
the employer must submit an Application for Temporary Employment
Certification with DOL's Office of Foreign Labor Certification (OFLC)
no less than 45 calendar days before the start date of work. 20 CFR
655.130. OFLC will review the H-2A application and, if it accepts the
application will place a copy of the job order on its electronic job
registry. 20 CFR 655.144(a). OFLC will also direct the SWA to place the
job order into interstate clearance, may direct the SWA to provide
written notice of the job opportunity to relevant organization and
physically post the job order in locations workers may gather, and may
direct the employer to engage in additional recruitment. 20 CFR
655.143, 655.150, 655.154. As part of its recruitment obligations, an
employer must offer the job to any recently laid-off U.S. worker(s) and
contact former U.S. workers employed in occupation in the previous
year. 20 CFR 655.135(g), 655.153. OFLC will grant certification if the
application meets all of the requirements in the Department's
regulation, including compliance with all recruitment obligations. 20
CFR 655.161(a). Post-certification, OFLC will keep the job order posted
on its electronic registry until 50 percent of the contract period has
elapsed, and the SWA must keep the job order on file for the same
period of time. 20 CFR 655.144, 655.150. The U.S. employer must also
continue to accept referrals of all eligible U.S. workers and must
offer employment to any qualified U.S. worker that applies for the job
opportunity until 50 percent of the work contract period has elapsed.
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.\2\ 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.
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\2\ Note, however, that effective October 2, 2020, H-2A
petitions will be limited to 25 named beneficiaries per H-2A
petition. See DHS Final Rule, ``U.S. Citizenship and Immigration
Services Fee Schedule and Changes to Certain Other Immigration
Benefit Request Requirements,'' 85 FR 46788, 46916 (Aug. 3, 2020).
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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 Nonimmigrant Worker,\3\ since the H-2A worker
is in the United States and requesting an extension of stay. In the
event of an emergency circumstance, however, the petitioner 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).
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\3\ Effective October 2, 2020, the petitioner will submit the
new Form I-129H2A, Petition for Nonimmigrant Worker: H-2A
Classification. H-2A petitions will be limited to 25 named
beneficiaries per H-2A petition. See DHS Final Rule, ``U.S.
Citizenship and Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request Requirements,'' 85 FR
46788, 46916 (Aug. 3, 2020).
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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.\4\ 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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\4\ 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.
[[Page 51307]]
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. 8
CFR 214.2(h)(5)(viii)(B). 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.\5\ 8 CFR
214.2(h)(5)(viii)(C).
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\5\ But see, 8 CFR 214.2(h)(21)(ii) expiring on August 18, 2020,
which allows USCIS to approve an H-2A petition seeking an extension
of stay, submitted with a valid temporary agricultural labor
certification, 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.
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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 dating back
to January 27, 2020, under section 319 of the Public Health Service Act
(42 U.S.C. 247d), in response to the Coronavirus Disease 2019 (COVID-
19).\6\ 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.\7\ 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.\8\ DOS expanded the
temporary suspension of routine immigrant and nonimmigrant visa
services to all U.S. Embassies and Consulates on March 20, 2020.\9\ DOS
designated H-2A visas as mission critical, however, and announced that
U.S. Embassies and Consulates have continued to process H-2A cases to
the extent possible and implemented a change in its procedures, to
include interview waivers.\10\ In addition, DHS has identified
occupations in food and agriculture as critical to the U.S. public
health and safety and economy.\11\
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\6\ HHS, Determination of Public Health Emergency, 85 FR 7316
(Feb. 7, 2020).
\7\ 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 Aug. 16, 2020).
\8\ 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/ (last updated Apr. 13,
2020).
\9\ DOS, Suspension of Routine Visa Services, https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html (last updated Mar. 20, 2020).
\10\ 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).
\11\ 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). DHS, Advisory Memorandum on Identification of Essential
Critical Infrastructure Workers During COVID_10 Response, https://www.cisa.gov/sites/default/files/publications/Version_3.1_CISA_Guidance_on_Essential_Critical_Infrastructure_Workers_0.pdf (May 19, 2020).
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To address disruptions caused by COVID-19 to the U.S. food
agriculture sector during the summer growing season, DHS temporarily
amended its H-2A regulations to provide certain flexibilities to
temporary and seasonal agricultural workers and their U.S. employers.
On April 20, 2020, DHS issued a temporary final rule (the ``April 20
TFR''), Temporary Changes to Requirements Affecting H-2A Nonimmigrants
Due to the COVID-19 National Emergency, which allowed H-2A workers to
begin work with new H-2A employers, who have valid TLCs issued by DOL,
for a period not to exceed 45 days immediately after the H-2A extension
of stay petition is received by USCIS. The April 20 TFR also allowed
petitioners to employ H-2A workers seeking an extension of stay beyond
the 3-year total limitation of stay. In the April 20 TFR, DHS indicated
that it would issue a new temporary final rule to extend its
termination date in the event DHS determined that economic
circumstances related to our food supply demonstrated a continued need
for these temporary changes to the regulatory requirements involving H-
2A agricultural employers and workers. The April 20 TFR has been
effective from April 20, 2020 through August 18, 2020. 85 FR 21739.
As discussed in more detail below, due to the continuing health and
economic crisis caused by COVID-19, DHS has determined that the public
health emergency and economic circumstances resulting from COVID 19 are
necessitating the continuation of some of the flexibilities implemented
through the April 20 TFR, namely the ability of H-2A workers to change
employers and begin work before USCIS approves the new H-2A petition.
Therefore, DHS is issuing this TFR to extend those flexibilities for an
additional 120 days, i.e. through December 17, 2020. This timeframe
differs from the most recent renewal of a determination of the public
health emergency \12\ because DHS believes that the COVID-19 pandemic
may have a more lasting impact on the U.S. agricultural food sector
beyond the 90 days. As a result, DHS will continue to monitor the
evolving health crisis caused by COVID-19 and may address it in future
rules.
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\12\ See HHS Renewal of Determination That A Public Health
Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-23June2020.aspx (Jul. 23, 2020).
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II. Discussion
A. Temporary Changes to DHS Requirements for H-2A Change of Employer
Requests During the COVID-19 National Emergency
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.
On July 23, 2020, HHS Secretary Alex Azar signed a renewal of
determination, effective July 25, that extends the current COVID-19
public health emergency by up to 90 days.\13\ This determination that a
public health emergency exists and has existed since January 27, 2020,
nationwide, was previously renewed on April 21, 2020. The renewal of
determination signals that the United States is facing continued
consequences of the COVID-19 National Emergency, which corresponds to
the volume of COVID-19 cases reported by the U.S. Centers for
[[Page 51308]]
Disease Control and Prevention--5,228,817 as of August 14, 2020.
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\13\ See HHS Renewal of Determination That A Public Health
Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-23June2020.aspx (Jul. 23, 2020).
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The COVID-19 pandemic continues to cause disruptions in the
domestic food supply chain.\14\ As of July 31, 2020, USDA's Economic
Research Service reported that ``[t]he coronavirus (COVID-19) pandemic
has widely impacted the U.S. economy, including the farm sector and
farm households. Farm businesses have experienced disruptions to
production due to lowered availability of labor and other inputs . . .
[r]eductions in available labor affect crop and livestock production,
as well as processing capacity for crop and animal products that leave
the farm. Reduced processing capacity results in lower consumption of
certain agricultural commodities.'' \15\ The H-2A program has been
crucial to assuring the continued viability of the nation's food supply
chain.\16\ Notwithstanding the availability of the H-2A program, U.S.
farmers are continuing to experience labor shortages as fewer workers
are able to get to the United States. Media outlets in the United
States have continued to report on these shortages. For example, a
farmer in North Dakota who typically hires the same eight farmhands
from South Africa to tend his crops was short half of his crew this
year due to COVID-19.\17\
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\14\ See, e.g. Food Security and COVID-19, https://www.worldbank.org/en/topic/agriculture/brief/food-security-and-covid-19 (last visited Aug. 14, 2020).
\15\ ``Farms and Farm Households During the COVID-19 Pandemic,''
https://www.ers.usda.gov/covid-19/farms-and-farm-households/ (last
visited Aug. 15, 2020).
\16\ The Washington Post, ``How one visa program keeps America
fed,'' https://www.washingtonpost.com/video/national/how-one-visa-program-keeps-america-fed/2020/06/17/ac3be98d-1ed1-4d4c-8dc7-85cbbeecb5fc_video.html (last visited Aug. 15, 2020).
\17\ Bloomberg, ``Global Food Output Runs Into Migrant Worker
Woes,'' Aug. 7, 2020, https://www.bloomberg.com/news/newsletters/2020-08-07/supply-chains-latest-migrant-worker-shortages-hit-food-output (last visited Aug. 15, 2020).
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As the public health emergency and economic consequences of it
continue, DHS has determined it is necessary to issue a new temporary
final rule to extend certain flexibilities implemented through the
April 20 TFR because DHS has determined that there is a continued need
for them. This TFR extends certain amendments made by the April 20 TFR,
to help U.S. agricultural employers reduce disruptions in lawful
agricultural-related employment, protect the nation's food supply
chain, and lessen impacts from the COVID-19 pandemic and related
economic effects, consistent with the declaration of the National
Emergency. Due to the continued 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,\18\ 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 workers due to COVID-19 related illness.
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\18\ Patch, ``Newsom Opens Hotel Rooms For Farmworkers Exposed
To Coronavirus,'' Jul. 29, 2020, https://patch.com/california/santamonica/s/h6xix/newsom-opens-hotel-rooms-farmworkers-exposed-coronavirus (last visited Aug. 15, 2020). U.S. News & World Report,
``Nearly 190 Farmworkers Contract Virus in Southern California,''
Jul. 6, 2020, https://www.usnews.com/news/best-states/california/articles/2020-07-06/nearly-190-farmworkers-contract-virus-in-southern-california (last visited Aug. 15, 2020).
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Under this temporary final rule, any H-2A petitioner with a valid
TLC, i.e. one who has already tested the U.S. labor market and was
unable to find able, willing, and qualified U.S. workers to perform
temporary or seasonal agricultural services or labor, can start
employing H-2A workers who are currently in the United States and in
valid H-2A status and who have been complying with the terms of their
H-2A status immediately after receiving notice that USCIS has received
the H-2A petition, but no earlier than the start date of employment
listed on the petition. This will allow H-2A workers to move to a new
employer to meet urgent temporary or seasonal agricultural needs before
USCIS approves the new employer's petition. DHS believes this continued
flexibility will help address the challenges faced by U.S. employers
due to COVID-19 as the busy fall harvest season approaches. See new 8
CFR 214.2(h)(21) and 8 CFR 274a.12(b)(26). However, nothing in this TFR
changes the existing DOL requirements for obtaining a TLC which an
employer must comply with before filing an H-2A petition with USCIS.
Unlike the permanent 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 extension of
stay petition, this TFR, like the April 20 TFR, 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 an H-2A extension of stay 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.\19\ 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 help provide stability to the U.S. food
supply chain during the unique challenges the country faces because of
COVID-19.
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\19\ See https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance (last updated Jul. 15, 2020).
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Upon further consideration, DHS has determined that a need exists
to strike a balance between providing stability to the U.S. food supply
chain, addressing the urgent needs of U.S. agricultural producers, and
ensuring that those aliens admitted into the United States as temporary
workers in the H-2A nonimmigrant classification in fact remain in this
country on a temporary basis, as required by the Act. 8 U.S.C.
1101(a)(15)(H)(ii)(a). Therefore, DHS is not extending the April 20 TFR
temporary exceptions to its regulations at 8 CFR 214.2(h)(5)(viii)(C),
(h)(13)(i)(B), and (h)(15)(ii)(C) that had allowed 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. Consequently, USCIS will apply the 3-
year limit reflected in permanent DHS regulations to any H-2A petition
that is received on or after August 19, 2020. These permanent
regulations specifically provide, with certain very narrow exceptions,
that an H-2A worker's total period of stay in H-2 classification may
not exceed 3 years, before he or she must depart from the United States
for a minimum of 3 months. 8 CFR 214.2(h)(15)(ii)(C). Petitioners
seeking H-2A temporary workers who fill a permanent need or who will
remain in the United States permanently, must comply with the
[[Page 51309]]
requirements applicable to permanent positions. See, e.g., 8 U.S.C.
1153(b)(3).
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 August 19, 2020, but no later than the last day that this final
rule is in effect (i.e., December 17, 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, and for a period not to exceed the
validity period of the TLC. In addition, the temporary provisions being
extended by this rule are the same as the April 20 TFR provisions but
differ from the permanent regulatory 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
remainder of the summer and fall agricultural seasons, the changes made
by this final rule will automatically terminate on December 17, 2020.
DHS will continue to monitor the rapidly evolving situation surrounding
the COVID-19 pandemic and associated economic consequences and will
determine whether continued flexibilities are needed beyond the 120
days. USCIS will continue to adjudicate H-2A petitions received no
later than December 17, 2020 under the provisions of this rule. Any H-
2A petition received after the termination of this final rule will be
adjudicated in accordance with the existing permanent 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 being 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 (DC 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 (DC 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, dating
back to January 27, 2020, under section 319 of the Public Health
Service Actin response to COVID-19.\20\ 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.\21\ 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.\22\ DOS expanded the temporary
suspension of routine immigrant and nonimmigrant visa services at all
U.S. Embassies and Consulates on March 20, 2020.\23\ On July 23, 2020,
the U.S. Department of Health and Human Services (HHS) Secretary Alex
Azar signed a renewal of determination, effective July 25, that extends
the current COVID-19 public health emergency by up to 90 days.\24\ This
determination that a public health emergency exists and has existed
since January 27, 2020, nationwide, was previously renewed on April 21,
2020.
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\20\ Determination of Public Health Emergency.
\21\ Proclamation 9994.
\22\ Status of U.S. Consular Operations in Mexico in Light of
COVID-19.
\23\ Suspension of Routine Visa Services.
\24\ See HHS Renewal of Determination That A Public Health
Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-23June2020.aspx (Jul. 23, 2020).
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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.\25\ In addition, DHS identified occupations in food
and agriculture as critical to the U.S. public health and safety and
economy.\26\ Due to extended travel restrictions, the limited
resumption of routine visa services, as well as the possibility that
some U.S. and 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/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 continue to experience adverse
economic impacts to their agricultural operations. Finally, COVID-19
continues to cause disruptions in domestic food supply chains which has
led to food insecurity on a global level.\27\ 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 reduce labor disruptions
that could affect business operations of U.S. employers for the
upcoming labor-intensive fall harvest, and continue to support the
critical U.S. food supply network.
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\25\ Important Announcement on H2 Visas.
\26\ DHS Memorandum on Identification of Essential Critical
Infrastructure Workers During COVID-19 Response. DHS Advisory
Memorandum on Identification of Essential Critical Infrastructure
Workers During COVID_10 Response.
\27\ See, e.g. Food Security and COVID-19, https://www.worldbank.org/en/topic/agriculture/brief/food-security-and-covid-19 (last visited Aug. 15, 2020). See also, ``Farms and Farm
Households During the COVID-19 Pandemic'' https://www.ers.usda.gov/covid-19/farms-and-farm-households/ (last visited Aug. 15, 2020)
indicating that ``Farm businesses have experienced disruptions to
production due to lowered availability of labor and other inputs . .
. [r]eductions in available labor affect crop and livestock
production, as well as processing capacity for crop and animal
products that leave the farm. Reduced processing capacity results in
lower consumption of certain agricultural commodities.''
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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 (DC 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 (DC 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
[[Page 51310]]
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 (DC 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. 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 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
[[Page 51311]]
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. 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; Pub. L. 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; Pub. L. 115-
218.
0
2. Amend Sec. 214.2 by adding paragraph (h)(21) to read as follows:
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, the
prospective new H-2A employer may file an H-2A petition on Form I-129
or Form I-129H2A, 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 on or after August 19, 2020 but no later than
December 17, 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 August 19, 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) Authorization to initiate employment changes pursuant to this
paragraph (h)(21) begins at 12 a.m. on August 19, 2020, and ends at the
end of December 17, 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; Title VII of Pub. L.
110-229; 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; Pub. L. 115-218.
[[Page 51312]]
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) Authorization to initiate employment changes pursuant to 8 CFR
214.2(h)(21) and paragraph (b)(26)(i) of this section begins at 12 a.m.
on August 19, 2020, and ends at the end of December 17, 2020.
* * * * *
Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S.
Department of Homeland Security.
[FR Doc. 2020-18283 Filed 8-18-20; 8:45 am]
BILLING CODE 9111-97-P