[Federal Register Volume 85, Number 244 (Friday, December 18, 2020)]
[Rules and Regulations]
[Pages 82291-82299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27661]
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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. 244 / Friday, December 18, 2020 /
Rules and Regulations
[[Page 82291]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214 and 274a
[CIS No. 2678-21; DHS Docket No. USCIS-2020-0008]
RIN 1615-AC55
Temporary Changes to Requirements Affecting H-2A Nonimmigrants
due to the COVID-19 National Emergency: Extension of Certain
Flexibilities
AGENCY: U.S. Citizenship and Immigration Services (USCIS), 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 upcoming winter and spring
agricultural seasons caused by the global novel Coronavirus Disease
2019 (COVID-19) public health emergency, the Department of Homeland
Security, (``DHS'' or ``the Department''), 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
extending the provisions of the August 20, 2020, temporary final rule.
Namely, DHS will continue to allow H-2A employees whose extensions of
stay H-2A petitions are supported by valid temporary labor
certifications issued by the U.S. 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 December 18, 2020, but no later than June 16, 2021. 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 December 18, 2020, through
December 18, 2023. Employers may request the flexibilities under this
rule by filing an H-2A petition on or after December 18, 2020, and
through June 16, 2021.
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,
by mail at 5900 Capital Gateway Dr., Camp Springs, MD 20529-2140; or by
phone at 240-721-3000.
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 DHS 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 Department
of Homeland Security (``DHS'' or ``the Department'') regulations
further define
[[Page 82292]]
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 classification 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 all
aliens who are outside of the United States must 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, and a
30-day period following the expiration of the H-2A petition for the
purpose of departure or to seek an extension based on a subsequent
offer of employment. Unless authorized under 8 CFR 274a.12 or section
214(n) of the Act, the beneficiary may not work except during the
validity period of the petition. 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.
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 organizations and
physically post the job order in locations workers may gather, and may
direct the employer or authorized hiring agent to engage in positive
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 the
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 of Labor'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. 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 aliens who are nationals of countries not designated as
an H-2A participating country 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 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, the petitioner may request an
[[Page 82293]]
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, as noted above, all H-2A workers
who are outside of the United States must 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). 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. 8
CFR 214.2(h)(5)(viii)(B). Although they will be considered to be
maintaining valid nonimmigrant status during this 30-day additional
period beyond the petition expiration date, 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 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).\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 have continued 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 Mar. 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 Nov. 20, 2020). DHS recognizes that agricultural employers
as well as their workers are encountering rapidly changing
circumstances and unique public health and safety issues relating to
the COVID-19 National Emergency. DHS encourages H-2A employers to
regularly consult Federal, State, and local guidance on COVID-19. At
the time of this publication, OSHA's guidance on COVID-19 is
available at https://www.osha.gov/SLTC/covid-19/, including guidance
for agricultural employers and workers jointly issued by OSHA and
the Centers for Disease Control and Prevention. OFLC's guidance on
COVID-19 for H-2A employers is available at https://www.dol.gov/agencies/eta/foreign-labor. On November 10, 2020 the CDC and the
U.S. Department of Labor published Interim Guidance for all
agriculture workers and their employers to protect agriculture
workers from coronavirus disease 2019 (COVID-19). https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-agricultural-workers.html.
\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/ (last updated Nov. 18,
2020). According to DOS, ``The U.S. Embassy in Mexico City and U.S.
Consulates in Guadalajara, Monterrey, Nuevo Laredo, and Hermosillo
have resumed limited processing of routine student and work visa
appointments, including TN visas, as local conditions allow.'' It is
further noted, ``Because of limited capacity and safety precautions
due to COVID-19, applicants should expect to experience delays in
appointment availability.''
\6\ 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).
\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). 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).), DHS, Advisory Memorandum on Identification
of Essential Critical Infrastructure Workers During COVID_10
Response, https://www.cisa.gov/sites/default/files/publications/Version_4.0_CISA_Guidance_on_Essential_Critical_Infrastructure_Workers_FINAL%20AUG%2018v3.pdf (Aug. 18, 2020).
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To address disruptions caused by COVID-19 to the U.S. food
agriculture sector during the spring and summer agricultural seasons,
DHS temporarily
[[Page 82294]]
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 was effective
from April 20, 2020 through August 18, 2020. 85 FR 21739. DHS
subsequently determined that the public health emergency and economic
circumstances resulting from COVID 19 necessitated 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 for the new employer. Accordingly,
DHS issued a TFR on August 20, 2020 (the ``August 20 TFR'') extending
those flexibilities, which has been effective for H-2A petitions that
were received on or after August 19, 2020 through December 17, 2020. 85
FR 51304.
As discussed in more detail below, due to the continuing health and
economic crisis caused by COVID-19, DHS has again determined that the
public health emergency and economic circumstances resulting from
COVID-19 are necessitating the continuation of the flexibilities
implemented through the August 20 TFR. Therefore, DHS is issuing this
TFR to extend those flexibilities for an additional 180 days, i.e.,
through June 16, 2021. This timeframe differs from the most recent
renewal of a determination of the public health emergency because DHS
believes that the COVID-19 pandemic may have a more lasting impact on
the U.S. food agriculture sector beyond the 90 day public health
emergency determination signed by HHS Secretary Alex Azar on October 2,
2020.\9\ 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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\9\ See HHS Renewal of Determination That A Public Health
Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-2Oct2020.aspx (Oct. 2, 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. and foreign 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 October 2, 2020, HHS Secretary Alex Azar signed a renewal of
determination, effective October 23, 2020, that extends the current
COVID-19 public health emergency by up to 90 days.\10\ This
determination that a public health emergency exists and has existed
since January 27, 2020, nationwide, was previously renewed on April 21,
2020 and July 23, 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 Disease Control and Prevention--13,295,605 as
of November 30, 2020.\11\
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\10\ See HHS Renewal of Determination That A Public Health
Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-2Oct2020.aspx (Oct. 2, 2020).
\11\ See, https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days (Last visited Nov. 30, 2020). DHS notes
that the total number of cases changes daily.
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The COVID-19 pandemic continues to cause disruptions in the
domestic food supply chain.\12\ As of October 2, 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.'' \13\ The H-2A program has been
crucial to assuring the continued viability of the nation's food supply
chain.\14\ 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 or are willing to take health
risks in coming to this country to perform H-2A work. 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.\15\ In another instance, an executive
director of a farming association noted that they have had access to 10
percent to 12 percent fewer H-2A workers in the area of Idaho in which
their farms are located.\16\
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\12\ See, e.g. Food Security and COVID-19, https://www.worldbank.org/en/topic/agriculture/brief/food-security-and-covid-19 (last visited Nov. 19, 2020).
\13\ ``Farms and Farm Households During the COVID-19 Pandemic,''
https://www.ers.usda.gov/covid-19/farms-and-farm-households/ (last
visited Nov. 19, 2020).
\14\ 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 Nov. 20, 2020).
\15\ 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 Nov. 20, 2020).
\16\ MagicValley.com, ``Indispensable: Foreign workers critical
for many Magic Valley farms,'' Oct. 1, 2020, https://magicvalley.com/business/agriculture/indispensable-foreign-workers-critical-for-many-magic-valley-farms/article_e9720a22-534b-5ccf-b694-27e5f9d6b9fe.html (last visited Nov. 24, 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 first implemented through
the April 20 TFR, and subsequently partially extended through the
August 20 TFR, because DHS has determined that there is a continued
need for them. This TFR extends the amendments made by the August 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,\17\ as well as the possibility that some H-2A workers may
become
[[Page 82295]]
unavailable due to COVID-19 related illness or a legitimate fear of
contracting COVID-19 under current conditions,\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. For
example, Purdue University estimates as of November 24, 2020 more than
247,000 agricultural workers have contracted COVID-19.\19\ Though not
all of these cases involve H-2A nonimmigrant workers, this research
highlights the particular serious risks and vulnerabilities to
contracting COVID-19 that farmworkers experience.
---------------------------------------------------------------------------
\17\ U.S. News and World Report, ``U.S., Canada, Mexico to
Extend Border Restrictions Until Late December,'' Nov. 18, 2020,
https://www.usnews.com/news/world/articles/2020-11-18/us-travel-restrictions-at-canada-mexico-borders-set-to-be-extended-until-dec-21-official (last visited Nov. 24, 2020).
\18\ See e.g. See e.g. National Center for Farmworker Health:
COVID-19 in Rural America: Impact on Farms & Agricultural Workers
(``As of October 18th, 99% of rural counties in America had reported
positive COVID-19 cases and 81% had reported one or more deaths.
More than one million rural residents have tested positive for
COVID-19 and 22,613 deaths among rural Americans have been
attributed to the disease.''), http://www.ncfh.org/msaws-and-covid-19.html (Last visited Dec. 1, 2020), and also The Wall Street
Journal, ``Coronavirus Hits Nation's Key Apple, Cherry Farms,'' Jul.
6, 2020, https://www.wsj.com/articles/coronavirus-hits-nations-key-apple-cherry-farms-11594027802 (last visited Nov. 20, 2020). 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 Nov. 20, 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 Nov. 20, 2020).
\19\ Purdue University, College of Agriculture, ``Food and
Agricultural Vulnerability Index Dashboard'', https://ag.purdue.edu/agecon/Pages/FoodandAgVulnerabilityIndex.aspx?_ga=2.56793390.563531196.1602252382-1692557252.1601925927 (last visited Dec. 1, 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 as
well as workers due to COVID-19 as the winter and spring seasons
approach.\20\ See new 8 CFR 214.2(h)(22) and 8 CFR 274a.12(b)(28).
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.
---------------------------------------------------------------------------
\20\ The Apr. 20 TFR provided temporary exceptions to DHS
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. As described in the Aug. 20 TFR, DHS determined that it
was necessary to provide stability to the U.S. food supply chain,
address the urgent needs of U.S. agricultural producers, and ensure
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 did not extend the Apr. 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). With this
TFR, DHS maintains the belief that a balance is required between
providing stability to the U.S. food supply chain and ensuring
foreign agricultural workers are in the country on a temporary
basis, and therefore, DHS is not including temporary exceptions to
allow aliens to extend their H-2A period of stay beyond the 3-year
limitation. Consequently, USCIS will continue to apply the 3-year
limit reflected in permanent DHS regulations to any H-2A petition
that is received on or after Dec. 18, 2020. Petitioners who seek
foreign workers to fill a permanent need and/or to remain in the
country permanently, must comply with requirements applicable to
permanent positions. See 8 U.S.C. 1153(b)(3).
---------------------------------------------------------------------------
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 and August 20 TFRs, 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.
DHS remains committed to promoting the use of E-Verify to ensure a
legal workforce. E-Verify is free, user friendly, and over 98 percent
accurate.\21\ Notwithstanding the numerous benefits E-Verify offers to
ensure all employers only employ a legal workforce, DHS 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. DHS 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.
---------------------------------------------------------------------------
\21\ See https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance (last updated Oct. 1, 2020).
---------------------------------------------------------------------------
To be approved under this final rule, an H-2A petition for an
extension of stay with a new employer must be received on or after
December 18, 2020, but no later than June 16, 2021. 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 and August 20 TFRs
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 winter and
spring agricultural seasons, the changes made by this final rule will
automatically terminate on June 16, 2021. 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 180 days. USCIS will continue to
adjudicate H-2A petitions received no later than June 16, 2021 under
the provisions of this rule. Unless the exceptions contained in this
temporary final rule are further extended, any H-2A petition received
after the termination of this temporary 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.
[[Page 82296]]
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), DHS 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 Act in response to COVID-19.\22\ 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.\23\ 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.\24\ DOS expanded the temporary
suspension of routine immigrant and nonimmigrant visa services at all
U.S. Embassies and Consulates on March 20, 2020.\25\ On October 2,
2020, the U.S. Department of Health and Human Services (HHS) Secretary
Alex Azar signed a renewal of determination, effective October 23, that
extends the current COVID-19 public health emergency by up to 90
days.\26\ This determination that a public health emergency exists and
has existed since January 27, 2020, nationwide, was previously renewed
on April 21, 2020 and on July 23, 2020.
---------------------------------------------------------------------------
\22\ Determination of Public Health Emergency.
\23\ Proclamation 9994.
\24\ Status of U.S. Consular Operations in Mexico in Light of
COVID-19.
\25\ Suspension of Routine Visa Services.
\26\ See HHS Renewal of Determination That A Public Health
Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-2Oct2020.aspx (Oct. 2, 2020).
---------------------------------------------------------------------------
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.\27\ In addition, DHS identified occupations in food
and agriculture as critical to the U.S. public health and safety and
economy.\28\ 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 \29\, as well as reasonable health
concerns of workers outside of the United States regarding accepting
employment in this country during the current health crisis, 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.\30\
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. It is intended that this
action will reduce labor disruptions that could affect business
operations of U.S. employers for the upcoming labor-intensive winter
and spring seasons, and continue to support the critical U.S. food
supply network.
---------------------------------------------------------------------------
\27\ Important Announcement on H2 Visas.
\28\ 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.
\29\ See e.g. National Center for Farmworker Health: COVID-19 in
Rural America: Impact on Farms & Agricultural Workers (``As of
October 18th, 99% of rural counties in America had reported positive
COVID-19 cases and 81% had reported one or more deaths. More than
one million rural residents have tested positive for COVID-19 and
22,613 deaths among rural Americans have been attributed to the
disease.''), http://www.ncfh.org/msaws-and-covid-19.html (Last
visited Dec. 1, 2020).
\30\ See, e.g. Food Security and COVID-19, https://www.worldbank.org/en/topic/agriculture/brief/food-security-and-covid-19 (last visited Nov. 23, 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 Nov. 23, 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.''
---------------------------------------------------------------------------
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, DHS 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, DHS also concludes that the
Department has good cause to dispense with the 30-day effective date
requirement given that
[[Page 82297]]
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, DHS 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 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,
[[Page 82298]]
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)(22) to read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(22) 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,
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)(22), an H-2A petition must be
received on or after December 18, 2020 but no later than June 16, 2021.
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 December
18, 2020, or lawfully obtaining such status thereafter pursuant to this
paragraph (h)(22), is authorized to begin employment with the new
petitioner after the petition described in this paragraph (h)(22) 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)(28) 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)(28) 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)(22) begins at 12 a.m. on December 18, 2020, and ends at
the end of June 16, 2021.
* * * * *
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.
0
4. Amend Sec. 274a.12 by adding paragraph (b)(28) to read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(b) * * *
(28)(i) Pursuant to 8 CFR 214.2(h)(22) 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)(28) 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)(22) and paragraph (b)(28)(i) of this section begins at 12 a.m.
on
[[Page 82299]]
December 18, 2020, and ends at the end of June 16, 2021.
* * * * *
Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S.
Department of Homeland Security.
[FR Doc. 2020-27661 Filed 12-17-20; 8:45 am]
BILLING CODE 9111-97-P