[Federal Register Volume 85, Number 94 (Thursday, May 14, 2020)]
[Rules and Regulations]
[Pages 28843-28851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10486]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214 and 274a
[CIS No. 2669-20; DHS Docket No. USCIS-2020-0012]
RIN 1615-AC58
Temporary Changes to Requirements Affecting H-2B Nonimmigrants
Due to the COVID-19 National Emergency
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Temporary final rule.
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SUMMARY: As a result of disruptions and uncertainty to the U.S. economy
and international travel caused by the global novel Coronavirus Disease
2019 (COVID-19) public health emergency, the Department of Homeland
Security (the Department or DHS), U.S. Citizenship and Immigration
Services (USCIS), has decided to temporarily amend the regulations
regarding certain temporary nonagricultural workers, and their U.S.
employers, within the H-2B nonimmigrant classification. The Department
is temporarily removing certain limitations on employers or U.S. agents
seeking to hire certain H-2B workers already in the United States to
provide temporary labor or services essential to the U.S. food supply
chain, and certain H-2B workers, who are essential to the U.S. food
supply chain, seeking to extend their stay.
DATES: This final rule is effective from May 14, 2020, through May 15,
2023. Employers may request the flexibilities under this rule by filing
an H-2B petition, including the new attestation and all required
evidence, on or after the effective date of this rule and until 120
days thereafter. Employers with H-2B petitions that are pending on the
effective date of this rule may request the flexibilities made
available under this rule by submitting a new attestation during that
same 120-day period thereafter, and before the H-2B petition is
adjudicated.
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 Authority
B. Description of the H-2B Program
i. Temporary Labor Certification (TLC) Procedures
ii. Petition Procedures
iii. Admission and Limitations of Stay
C. COVID-19 National Emergency
II. Discussion
A. Temporary Changes to DHS Requirements for H-2B Change of
Employer Requests and H-2B Maximum Period of Stay Exception During
the COVID-19 National Emergency
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Executive Orders 12866 (Regulatory Planning and Review) and
13563 (Improving Regulation and Regulatory Review)
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Congressional Review Act
H. National Environmental Policy Act
I. Paperwork Reduction Act (PRA)
J. Signature
List of Subjects and Regulatory Amendments
I. Background
A. Legal Authority
The Immigration and Nationality Act (INA), as amended, establishes
the H-2B nonimmigrant classification for a nonagricultural temporary
worker ``having a residence in a foreign country which he has no
intention of abandoning who is coming temporarily to the United States
to perform . . . temporary [non-agricultural] service or labor if
unemployed persons capable of performing such service or labor cannot
be found in this country.'' INA section
[[Page 28844]]
101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b). Employers or U.S.
agents must petition DHS for classification of prospective temporary
workers as H-2B nonimmigrants. INA section 214(c)(1), 8 U.S.C.
1184(c)(1). DHS must approve this petition before the beneficiary can
be considered eligible for an H-2B visa. Id. Finally, the INA requires
that ``[t]he question of importing any alien as [an H-2B] nonimmigrant
. . . in any specific case or specific cases shall be determined by
[DHS],\1\ after consultation with appropriate agencies of the
Government.'' Id.
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\1\ As of March 1, 2003, in accordance with section 1517 of
Title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-
296, 116 Stat. 2135, any reference to the Attorney General in a
provision of the Immigration and Nationality Act describing
functions that were transferred from the Attorney General or other
Department of Justice official to DHS by the HSA ``shall be deemed
to refer to the Secretary'' of Homeland Security. See 6 U.S.C. 557
(2003) (codifying HSA, Title XV, Sec. 1517); 6 U.S.C. 542 note; 8
U.S.C. 1551 note.
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DHS regulations provide that an H-2B petition for temporary
employment in the United States must be accompanied by an approved
temporary labor certification (TLC) from the Department of Labor (DOL),
issued pursuant to regulations established at 20 CFR part 655. 8 CFR
214.2(h)(6)(iii)(A), (C)-(E), (iv)(A); see also INA section 214(a) and
(c), 8 U.S.C. 1184(a) and (c); INA section 103(a)(6), 8 U.S.C.
1103(a)(6). The TLC serves as DHS's consultation with DOL as to whether
a qualified U.S. worker is available to fill the petitioning employer's
job opportunity and whether a foreign worker's employment in the job
opportunity will adversely affect the wages or working conditions of
similarly employed U.S. workers. See INA section 214(c)(1), 8 U.S.C.
1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and (D).
The INA generally charges the Secretary of Homeland Security
(Secretary) with the administration and enforcement of the immigration
laws, and provides that the Secretary ``shall establish such
regulations . . . and perform such other acts as he deems necessary for
carrying out his authority'' under the INA. INA section 103(a)(3), 8
U.S.C. 1103(a)(3). In addition, the Secretary has the authority to
issue 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 INA, 8 U.S.C. 1103(a), which authorize the
Secretary to administer and enforce the immigration and nationality
laws. See also 6 U.S.C. 202(4) (charging the Secretary with
``[e]stablishing and administering rules . . . governing the granting
of visas or other forms of permission . . . to enter the United States
to individuals who are not a citizen or an alien lawfully admitted for
permanent residence in the United States''). With respect to
nonimmigrants, in particular, the INA provides that ``[t]he admission
to the United States of any alien as a nonimmigrant shall be for such
time and under such conditions as the [Secretary] may by regulations
prescribe.'' INA section 214(a)(1), 8 U.S.C. 1184(a)(1); see also INA
section 274A(h)(3), 8 U.S.C. 1324a(h)(3). Finally, under section 101 of
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.''
B. Description of the H-2B Program
The H-2B nonimmigrant classification applies to alien workers
``coming temporarily to the United States to perform temporary
[nonagricultural] service or labor if unemployed persons capable of
performing such service or labor cannot be found in this country.'' INA
101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b); see also 8 CFR
214.1(a)(2). The regulations 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 generally will last no longer
than 1 year, unless the employer's need is a one-time event, in which
case the need could last up to 3 years. See 8 CFR 214.2(h)(1)(ii)(D),
(h)(6)(ii), and (h)(6)(vi)(D).
The INA sets the annual number of aliens who may be issued H-2B
visas or otherwise provided H-2B nonimmigrant status to perform
temporary nonagricultural work at 66,000, to be distributed semi-
annually beginning in October and April. See INA sections 214(g)(1)(B)
and 214(g)(10), 8 U.S.C. 1184(g)(1)(B) and 1184(g)(10). Up to 33,000
aliens may be issued H-2B visas or provided H-2B nonimmigrant status
during the first 6 months of a fiscal year, and the remaining annual
allocation is left available for employers seeking to hire H-2B workers
during the remaining 6 months of the fiscal year.\2\ If insufficient
petitions are approved to use all H-2B numbers in a given fiscal year,
the unused numbers cannot be carried over for petition approvals in the
next fiscal year. An H-2B worker who is seeking an extension of H-2B
status will not be counted against the H-2B numerical limitation. 8 CFR
214.2(h)(8)(ii)(A).
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\2\ The Federal Government's fiscal year runs from October 1 of
the budget's prior year through September 30 of the year being
described. For example, fiscal year 2020 is from October 1, 2019,
through September 30, 2020.
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i. Temporary Labor Certification (TLC) Procedures
As noted above, before filing the H-2B petition with DHS, the
petitioning employer or U.S. agent must obtain an approved TLC from DOL
for the job opportunity the employer seeks to fill with an H-2B
worker(s). To obtain a TLC from DOL, the employer must concurrently
submit, at least 75 calendar days but not more than 90 calendar days
before the start date of work, an Application for Temporary Employment
Certification (H-2B application) to DOL's Office of Foreign Labor
Certification (OFLC) and a nonagricultural job order to the State
Workforce Agency (SWA) that serves the State where the actual work will
be performed. 20 CFR 655.15(b), and 20 CFR 655.16(a) (requiring the
filing of a job order at the SWA). OFLC reviews the H-2B application
and job order and, if they are complete and meet the requirements of 20
CFR part 655, subpart A, issues a Notice of Acceptance, which directs
the employer to engage in the recruitment of U.S. workers. 20 CFR
655.15, 655.30, 655.31, 655.32, 655.33. The SWA also reviews the job
order and, upon OFLC's acceptance of the H-2B application, initiates
the intrastate and interstate recruitment of U.S. workers. 20 CFR
655.16(b), (c). Upon completion of the post-acceptance requirements,
including employer-conducted recruitment, OFLC issues the TLC. 20 CFR
655.40-655.46, 655.48, 655.50-655.52.
As noted above, in granting the TLC, DOL certifies that there are
no U.S. workers who are qualified and available to fill the temporary
position, and that the employment of H-2B workers will not adversely
affect the wages and working conditions of workers in the United States
similarly employed. 8 CFR 214.2(h)(6)(iii)(A). The employer must comply
with applicable regulations, including, but not limited to, contacting
former U.S. workers, including any laid-off U.S. workers, who were
employed in the job opportunity identified on the TLC during the
previous year and soliciting their return to the job. 20 CFR 655.20(w)
and 29 CFR 503.16(w). The employer also must continue to accept
referrals of all eligible U.S. workers who apply for the job
opportunity until 21 days before the start date of need. See 20 CFR
655.20(t) and 29 CFR 503.16(t). Finally,
[[Page 28845]]
as part of the TLC process, the H-2B employer must agree to abide by
certain conditions, including the condition that the H-2B employer has
not laid off and will not lay off any similarly employed U.S. worker in
the occupation that is the subject of the TLC in the area of intended
employment within the period beginning 120 calendar days before the
date of need through the end of the period of certification, except for
lawful job-related reasons such as lack of work at the end of a season
if all H-2B workers are laid off before any U.S. worker in
corresponding employment. 20 CFR 655.20(v) and 29 CFR 503.16(v).\3\
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\3\ The Department of Labor Appropriations Act, 2016, Division
H, Title I of Public Law 114-113 (``2016 DOL Appropriations Act''),
prohibited DOL from using any funds to enforce the definition of
corresponding employment found in 20 CFR 655.5, or any reference
thereto. See Sec. 113. This appropriations rider has been included
in each subsequent DOL Appropriations Act or relevant continuing
resolution since 2016, well as in the Further Consolidated
Appropriations Act, 2020, Division A, Title I of Public Law 116-94.
Therefore, in order to comply, DOL has removed references to these
provisions from the Form ETA-9142B--Appendix B. However, the DOL
Appropriations Act and relevant continuing resolutions did not
vacate these regulatory provisions, and they remain in effect, thus
imposing a legal duty on H-2B employers, even though DOL will not
use any funds to enforce them until such time as the appropriations
rider may be lifted.
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ii. Petition Procedures
After receiving an approved TLC from DOL, the employer listed on
the TLC or the employer's U.S. agent (``H-2B petitioner'') may file the
H-2B petition with the appropriate USCIS office. 8 CFR 214.2(h)(2)(i),
(h)(6)(iii)(E), and (h)(6)(vi). The H-2B petitioner may petition for
one or more named or unnamed H-2B workers, but the total number of
workers may not exceed the number of positions indicated on the TLC. 8
CFR 214.2(h)(2)(ii) and (h)(6)(viii). An H-2B petitioner must name an
H-2B worker if the worker is in the United States or if that H-2B
worker is a national of a country that is not designated as an H-2B
participating country. 8 CFR 214.2(h)(2)(iii). USCIS recommends that
petitioners submit a separate H-2B petition when requesting a worker(s)
who is a national of a country that is not designated as an H-2B
participating country. See 8 CFR 214.2(h)(2)(ii); 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 of such aliens must submit
evidence demonstrating the factors by which the request for H-2B
workers serves the U.S. national interest. 8 CFR 214.2(h)(6)(i)(E)(2).
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.
The employer or U.S. agent generally may submit a new H-2B
petition, with a new, approved TLC, to USCIS to request an extension of
H-2B nonimmigrant status for the validity of the TLC or for a period of
up to 1 year. 8 CFR 214.2(h)(15)(ii)(C). The H-2B petitioner must name
the worker on the Form I-129, Petition for Nonimmigrant Worker, since
the H-2B worker is in the United States and requesting an extension of
stay. Except for certain professional athletes being traded among
organizations, H-2B workers seeking to extend their status with a new
employer may not begin employment with the new employer until the new
H-2B petition is approved. 8 CFR 214.2(h)(2)(i)(D), (h)(6)(vii),
274a.12(b)(9).
iii. Admission and Limitations of Stay
Upon USCIS approval of the H-2B petition, the employer or U.S.
agent may hire H-2B worker(s) to fill the job opening. USCIS generally
will grant the workers H-2B classification for up to the period of time
authorized on the approved TLC. H-2B workers who are outside of the
United States may apply for a visa with U.S. Department of State (DOS)
at a U.S. Embassy or Consulate abroad, if required, and seek admission
to the United States with U.S. Customs and Border Protection (CBP) at a
U.S. port of entry. Spouses and children of H-2B workers may request H-
4 nonimmigrant status to accompany the principal H-2B workers. The
spouse and children of an H nonimmigrant, if they are accompanying or
following to join such an H-2B nonimmigrant, may be admitted into the
United States, 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 H-2B 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-2B beneficiary.
H-2B workers may be admitted into the United States up to 10 days
before the beginning validity date listed on the approved H-2B petition
so that they may travel to their worksites, but they may not begin work
until the beginning validity date on the petition. H-2B workers also
may remain in the United States 10 days beyond the expiration date of
the approved H-2B petition to prepare for departure or to seek an
extension or change of nonimmigrant status. 8 CFR 214.2(h)(13)(i)(A).
Under current regulations, with limited exception, H-2B workers do not
have employment authorization outside of the validity period listed on
the approved petition unless otherwise authorized, and the workers are
limited to employment with the H-2B petitioner.\4\ See 8 CFR
214.2(h)(6)(vii), 274a.12(b)(9).
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\4\ In the case of a traded professional H-2B athlete who is
traded from one organization to another organization, employment
authorization for the player will automatically continue for a
period of 30 days after acquisition by the new organization, within
which time the new organization is expected to file a new H-2B
petition. If a new H-2B petition is not filed within 30 days,
employment authorization will cease. If a new H-2B petition is filed
within 30 days, the professional athlete's employment authorization
will continue until the petition is adjudicated. If the new petition
is denied, employment authorization will cease. 8 CFR
214.2(h)(6)(vii) and 8 CFR 274a.12(b)(9).
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Also under current regulations, the maximum period of stay for an
alien in H-2B classification is 3 years. 8 CFR 214.2(h)(13)(iv) and
(h)(15)(C). Generally, once an alien has held H-2B 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-2B nonimmigrant.\5\ 8 CFR 214.2(h)(13)(iv).
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\5\ If the H-2B worker's accumulated stay is 18 months or less,
an absence of at least 45 days will interrupt the 3-year limitation
on admission. See 8 CFR 214.2(h)(13)(v) (also excepting from the
limitations under 8 CFR 214.2(h)(13)(iii) through (iv), with respect
to H-2B beneficiaries, aliens who did not reside continually in the
United States and whose employment in the United States was seasonal
or intermittent or was for an aggregate of 6 months or less per
year, as well as aliens who reside abroad and regularly commute to
the United States to engage in part-time employment).
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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 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.\7\ The President's proclamation declared that the
emergency began on March 1, 2020. DOS announced the temporary
suspension of routine immigrant and nonimmigrant visa services at the
U.S. Embassy in Mexico City and all U.S.
[[Page 28846]]
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-2 visas as mission critical, however, and announced that
U.S. Embassies and Consulates will continue to process H-2B cases to
the extent possible and implemented a change in its procedures, to
include interview waivers, in certain categories of cases.\10\
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\6\ HHS, Determination that a Public Health Emergency Exists,
https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx (last reviewed Jan. 31, 2020). See also HHS, Determination
of Public Health Emergency, 85 FR 7316 (Feb. 7, 2020).
\7\ President of the United States, Proclamation 9994 of March
13, 2020, Declaring a National Emergency Concerning the Coronavirus
Disease (COVID-19) Outbreak, 85 FR 15337 (Mar. 18, 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).
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II. Discussion
A. Temporary Changes to DHS Requirements for H-2B Change of Employer
Requests and H-2B Maximum Period of Stay Exception During the COVID-19
National Emergency
DHS is committed both to protecting U.S. workers and to helping
U.S. businesses receive the documented and work-authorized workers to
perform temporary nonagricultural services or labor that they need to
mitigate the adverse impact of COVID-19 on the U.S. food supply chain.
Due to travel restrictions and limitations on visa services as a result
of actions taken to mitigate the spread of COVID-19, as well as the
possibility that some U.S. and H-2B workers may become unavailable to
work due to COVID-19-related illness, employers or U.S. agents who have
approved H-2B petitions or who will be filing H-2B petitions on or
after the effective date of this rule might not receive all of the
workers requested to fill the temporary positions. Similarly, employers
who currently employ U.S. and H-2B workers may lose the services of
these workers due to COVID-19-related illness.
On April 20, 2020, the Department published a temporary final rule
in the Federal Register to amend certain H-2A requirements to help U.S.
agricultural employers avoid disruptions in lawful agricultural-related
employment, protect the nation's food supply chain, and lessen impacts
from the COVID-19 public health emergency on the availability of food
in the United States. 85 FR 21739 (Apr. 20, 2020). Under the H-2A
temporary final rule, for a period of 120 days after the publication of
that rule in the Federal Register, all H-2A petitioners with a valid
TLC can start employing certain foreign workers who currently are in
the United States and in valid H-2A status immediately after USCIS
receives the H-2A petition filed by the new employer, but no earlier
than the start date of employment listed on the H-2A petition.
Additionally, the H-2A temporary final rule allows H-2A workers to
extend their stay in the United States beyond the 3-year maximum
allowable period.
The Department believes that it is necessary to extend similar
flexibilities to H-2B petitioners seeking workers to perform temporary
nonagricultural services or labor essential to the U.S. food supply
chain that would not qualify for the H-2A temporary agricultural visa
classification.\11\ Work essential to the U.S. food supply chain
includes a variety of industries and occupations where the H-2B worker
is performing temporary nonagricultural services or labor, including
but not limited to work related to the processing, manufacturing, and
packaging of human and animal food; transporting human and animal food
from farms, or manufacturing or processing plants, to distributors and
end sellers; and the selling of human and animal food through a variety
of sellers or retail establishments, including restaurants.
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\11\ DHS recognizes that H-2B employers may also employ workers
for purposes other than food supply chain matters that are
nonetheless critical to public health and safety, or the economic
and national security and resilience of the nation's critical
infrastructure. DHS will continue to monitor the situation and
assess employer needs and those of the U.S. population. For now,
however, DHS believes that it is critical to offer the flexibilities
announced in this rule to at least the employers described herein.
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These workers ensure continuity of functions critical to public
health and safety, as well as economic and national security and
resilience of the nation's critical infrastructure.\12\ In the wake of
uncertainty inherent in confronting and responding to a public health
emergency of this magnitude, DHS is taking steps to ensure that
employers who have needs for temporary nonagricultural workers who
provide stability to the nation's food supply chain have greater
certainty and flexibility to minimize gaps in the flow of H-2B workers.
Therefore, through September 11, 2020, the Department is providing H-2B
petitioners with opportunity to request the flexibilities discussed
herein.
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\12\ The Cybersecurity and Infrastructure Security Agency (CISA)
within DHS has issued guidance regarding essential critical
infrastructure workers, including workers that perform essential
food supply chain-related functions. See, e.g., DHS, Memorandum on
Identification of Essential Critical Infrastructure Workers During
COVID-19 Response, https://www.cisa.gov/sites/default/files/publications/Version_3.0_CISA_Guidance_on_Essential_Critical_Infrastructure_Workers_4.pdf (Apr. 17, 2020). This list is generally advisory in nature,
and is not produced for purposes related to immigration programs.
USCIS nonetheless intends to consult the list as it administers this
rule and interprets the scope of the flexibilities provided in this
rule.
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First, the Department is amending its regulations to temporarily
permit certain flexibilities for H-2B petitioners seeking workers to
perform work essential to the U.S. food supply chain. Under this rule,
aliens subject to such petitions may start working upon USCIS' receipt
of the new H-2B petitions, accompanied by an attestation to USCIS
stating that the alien qualifies for the flexibilities in this rule.
The employment authorization begins no earlier than the start date of
employment listed on the H-2B petition accompanied by the attestation
or no earlier than the date on which USCIS acknowledges in writing the
receipt of the H-2B petition, including the properly filed attestation.
See new 8 CFR 214.2(h)(23) and 8 CFR 274a.12(b)(27).
This temporary provision grants employment authorization to the H-
2B worker for 60 days from the date of the receipt notice for the H-2B
petition filed by the new employer or 60 days from the start date of
employment indicated in the H-2B petition, whichever is later.
Employment is not authorized under this temporary final rule if an H-2B
petition, which must include a valid TLC and attestation, is not
received by USCIS as indicated by Form I-797 (Notice of Action). The
60-day employment authorization associated with the filed petition will
automatically terminate 15 days after the date of denial if USCIS
denies the petition, or 15 days after the date on which the petition is
withdrawn.
USCIS will also apply this rule to any petition that was filed with
USCIS on or after March 1, 2020, and remains pending as of May 14,
2020, beginning on the date that USCIS acknowledges the receipt of the
aforementioned attestation. USCIS will acknowledge the receipt of the
attestation in writing in order for the alien to begin employment
before the H-2B petition is approved. The 60-day clock will begin to
run as of the date USCIS acknowledges receipt of the attestation in
writing. The 15-day termination provision described in the preceding
paragraph will also apply in this case. It is the separate
responsibility of an H-2B employer and H-2B worker to maintain
appropriate records to establish that each has met the requirements
outlined in 8 CFR
[[Page 28847]]
214.2(h)(23) and 8 CFR 274a.12(b)(27) if questions arise in future
proceedings.
Since every H-2B petition must be accompanied by an approved TLC,
all H-2B petitioners must have completed a test of the U.S. labor
market, as a result of which DOL determined that there were no
qualified U.S. workers available to fill these temporary positions. The
Department believes that granting H-2B workers already in the United
States the option to begin employment with new H-2B petitioners as soon
as the H-2B petitions are received by USCIS will benefit employers in
the United States and provide stability to the nation's food supply
chain during the unique challenges the country faces because of COVID-
19.
Second, the Department has determined that it is necessary to
create a temporary exception to its regulations at 8 CFR
214.2(h)(13)(i)(B), (h)(13)(iv), (h)(13)(v), and (h)(15)(ii)(C), to
allow the aforementioned aliens to extend their H-2B 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.\13\ This flexibility with respect to the 3-year limitation
applies both to extensions of stay with the same employer as well as
extensions of stay with a new employer.
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\13\ If the H-2B worker's accumulated stay is 18 months or less,
an absence of at least 45 days will interrupt the 3-year limitation
on admission. See 8 CFR 214.2(h)(13)(v).
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Again, in order to use these flexibilities, H-2B employers in the
United States must conduct (or must have conducted) a test of the U.S.
labor market and be unable to find qualified, available U.S. workers to
fill the positions. This is because this temporary final rule does not
change applicable regulations pursuant to which employers in the United
States must recruit U.S. workers before filing an H-2B petition with
USCIS. In addition, beyond the flexibilities identified in this
temporary final rule, DHS is not changing any other H-2B petition
requirements or the adjudication process, including the requirement
that the H-2B position qualify as temporary services or labor as
defined in 8 CFR 214.2(h)(6)(ii).\14\ This flexibility also is limited
to aliens who are and have been complying with the terms of their H-2B
status.
---------------------------------------------------------------------------
\14\ The temporary flexibility DHS is granting for the
aforementioned H-2B aliens to remain in the United States beyond the
3-year limitation described in 8 CFR 214.2(h)(13)(i)(B),
(h)(13)(iv), (h)(13)(v), and (h)(15)(ii)(C) to address the need to
secure the U.S. food supply chain does not modify the requisite
nature of the petitioner's need for the temporary services or labor
as described in 8 CFR 214.2(h)(6)(ii).
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In addition to meeting all applicable substantive eligibility
requirements, to be approved under this temporary final rule, the H-2B
nonimmigrant must have been in the United States in valid nonimmigrant
status on or after March 1, 2020.\15\ In addition, an H-2B petition for
an extension of stay must have been received on or after March 1, 2020,
and remain pending as of the effective date of this rule, or received
on or after the effective date of this rule and no later than September
11, 2020. However, for purposes of extensions of stay with a new
employer or U.S. agent, employment with the new H-2B petitioner without
an approved petition cannot begin before the effective date of this
rule and before the start date of employment listed in the H-2B
petition. If the new petition is approved, the H-2B worker's extension
of stay may be granted for the validity of the approved petition for a
period not to exceed the validity period of the TLC.
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\15\ DHS notes that in circumstances when an extension of stay
is considered timely filed under 8 CFR 214.1(c)(4), the H-2B worker
must still meet the requirements listed in that provision, including
requirements that the H-2B worker has not violated his or her status
by, for example, engaging in unauthorized employment.
---------------------------------------------------------------------------
To ensure H-2B petitioners' continued access to workers who provide
temporary labor or services essential to the stability of the nation's
food supply chain during the National Emergency, the ability of H-2B
petitioners and H-2B workers to take advantage of the flexibilities in
this temporary final rule will automatically terminate at the end of
September 11, 2020. USCIS will apply the provisions of this rule to H-
2B petitions received on or before September 11, 2020, even if such
petitions remain pending after the expiration of this rule.
At this time, DHS believes that 120 days is sufficient to address
the needs of employers engaged in nonagricultural services or labor
essential to the U.S. food supply chain, such as those described above,
who need to hire H-2B workers after having obtained a TLC demonstrating
that they have been unable to find available, qualified U.S. workers to
fill these positions. DHS has determined that a 120-day filing period
is appropriate as it provides immediate relief to these H-2B
petitioners who have been impacted by the disruptions and uncertainties
caused by the COVID-19 public health emergency and is a reasonable
period of time for DHS to implement the flexibilities described in this
rule. The 120-day filing period does not affect or change the H-2B
petitioner's validity period requested on the H-2B petition. In
addition, the 120-day filing period is consistent with the 120-day
filing period provided in a similar DHS temporary final rule, Temporary
Changes to Requirements Affecting H-2A Nonimmigrants Due to the COVID-
19 National Emergency.\16\ The H-2A temporary final rule also addressed
the need to secure the U.S. food supply chain, given the current
economic conditions in the United States. However, after the
publication of this temporary final rule, DHS will continue to monitor
the rapidly evolving circumstances surrounding the public health
emergency, and may issue a new temporary final rule to extend its
applicability in the event DHS determines that economic circumstances
demonstrate a continued need for these temporary changes to the
regulatory requirements involving H-2B nonagricultural employers and
workers essential to the nation's food supply chain.
---------------------------------------------------------------------------
\16\ 85 FR 21739 (Apr. 20, 2020).
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Any H-2B petition received after the termination of this temporary
final rule will be adjudicated in accordance with the existing
permanent regulatory requirements. See 8 CFR 214.2(h)(2)(i)(D).
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 5 U.S.C.
553(b) and (d).
1. Good Cause To Forgo Notice and Comment Rulemaking
The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq.,
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.'' 5 U.S.C. 553(b)(B). The good-cause exception for forgoing
notice-and-comment rulemaking ``excuses notice and comment in emergency
situations, or where delay could result in serious harm.'' Jifry v.
FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004). Although the good cause
exception is ``narrowly construed and only reluctantly countenanced,''
Tenn. Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (D.C. Cir. 1992),
the Department has appropriately invoked the exception in this case,
for the reasons set forth below.
As also discussed earlier in this preamble, on January 31, 2020,
the
[[Page 28848]]
Secretary of Health and Human Services declared a public health
emergency under section 319 of the Public Health Service Act in
response to COVID-19.\17\ On March 13, 2020, President Trump declared a
National Emergency concerning the COVID-19 outbreak, retroactive to
March 1, 2020, to control the spread of the virus in the United
States.\18\ 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.\19\ DOS expanded the temporary
suspension of routine immigrant and nonimmigrant visa services at all
U.S. Embassies and Consulates on March 20, 2020.\20\
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\17\ HHS, Determination that a Public Health Emergency Exists,
https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx (last reviewed Jan. 31, 2020). See also HHS, Determination
of Public Health Emergency, 85 FR 7316 (Feb. 7, 2020).
\18\ 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 White House, Proclamation on
Declaring a National Emergency Concerning the Novel Coronavirus
Disease (COVID-19) Outbreak, https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ (last
visited May 4, 2020).
\19\ 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).
\20\ 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).
---------------------------------------------------------------------------
DOS designated H-2 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.\21\ Due to travel restrictions, limitations on visa
services as a result of actions taken to mitigate the spread of COVID-
19, as well as the possibility that some U.S. and H-2B workers may
become unavailable due to illness related to the spread of COVID-19,
U.S. employers engaged in services or labor essential to the U.S. food
supply chain, and who have approved TLCs and either approved H-2B
petitions or who will be filing H-2B petitions on or after the
effective date of this temporary final rule, might not receive, or be
able to continuously employ, any or all of the workers requested to
fill all of their DHS-approved temporary nonagricultural positions. Due
to these potential labor shortages, employers who serve essential
functions in the U.S. food supply chain may experience adverse economic
impacts to their operations. To address these concerns, DHS is acting
expeditiously to put in place rules that will facilitate the continued
employment of H-2B workers already present in the United States. This
action will help employers fill these critically necessary
nonagricultural job openings, protect U.S. businesses' economic
investments in their operations, and contribute to the stability of the
nation's food supply chain.
---------------------------------------------------------------------------
\21\ 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).
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Courts have found ``good cause'' under the APA when an agency is
moving expeditiously to avoid significant economic harm to a program,
program users, or an industry. Courts have held that an agency may use
the good-cause exception to address ``a serious threat to the financial
stability of [a government] benefit program,'' Nat'l Fed'n of Fed.
Emps. v. Devine, 671 F.2d 607, 611 (D.C. Cir. 1982), or to avoid
``economic harm and disruption'' to a given industry, which likely
would result in higher consumer prices, Am. Fed'n of Gov't Emps. v.
Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981). Consistent with the above
authorities, the Department is bypassing notice and comment to
expeditiously and, on a temporary basis, facilitate the employment of
certain H-2B workers already in the United States who will perform
temporary nonagricultural work that is essential to the U.S. food
supply chain, and prevent potential economic harms to H-2B
nonagricultural employers, as well as other potential downstream
effects. See Bayou Lawn & Landscape Servs. v. Johnson, 173 F. Supp. 3d
1271, 1285 & n.12 (N.D. Fla. 2016).
2. Good Cause To Proceed With an Immediate Effective Date
The APA requires a 30-day delayed effective date for a substantive
rule, but contains an exception for ``a substantive rule which grants
or recognizes an exemption or relieves a restriction.'' 5 U.S.C.
553(d)(1). This is such a rule; therefore, no delayed effective date is
required. 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 caused by unavailability of workers due to COVID-19.
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 temporary labor for businesses that contribute to the stability
of the nation's food supply chain.
This rule will help employers fill critically necessary
nonagricultural job openings and protect U.S. businesses that
contribute to the stability of the nation's food supply chain. DHS
believes this benefit to employers and businesses outweighs any
additional impacts imposed by the new requirement to file an
attestation form with DHS. In addition, this rule will benefit certain
H-2B workers already in the United States by making it easier for
employers to hire them, and allowing them to remain employed, if
applicable, longer than the 3-year maximum limitation on their stay.
[[Page 28849]]
C. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 through 612 (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 temporary 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 through 1571 (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 temporary final rule is
not a ``major rule'' as defined by the applicable section of 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 through 808.
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 through
4347 (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-2B nonimmigrant visa program to facilitate
the continued employment of certain H-2B nonimmigrants in the United
States, who are essential to the U.S. food supply chain, by allowing
them to change employers in the United States and begin working in the
same visa classification for a period not to exceed 60 days before the
nonimmigrant visa petition is approved, due to the National Emergency
caused by the COVID-19 global pandemic. It also establishes a temporary
exception from the 3-year limit on the maximum period of stay for H-2B
workers. This rule does not change the number of H-2B workers that may
be employed by U.S. employers as H-2B workers seeking extensions of
status are generally exempt from the annual statutory limit. It also
does not change rules for where H-2B nonimmigrants may be employed;
only employers with approved TLCs for workers to perform certain
temporary nonagricultural work may be allowed to employ H-2B workers
under these temporary provisions. Generally, DHS believes NEPA does not
apply to a rule intended to make it easier for H-2B employers to hire
workers who are already in the United States in addition to, or instead
of, also hiring H-2B 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-2B workers
already in the United States will be employed by different employers,
or be employed with current or new employers beyond 3 years, as opposed
to how many petitions would have been filed for H-2B workers employed
under normal circumstances. DHS has no reason to believe that the
temporary amendments to H-2B 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
economy. 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. Paperwork Reduction Act (PRA)
Under the PRA, 44 U.S.C. 3501 et seq., USCIS generally cannot
conduct or sponsor a collection of information, and the public is
generally not required to respond to an information collection, unless
it is approved by OMB under the PRA and displays a currently valid
[[Page 28850]]
OMB Control Number. In addition, notwithstanding any other provisions
of law, no person shall generally be subject to penalty for failing to
comply with a collection of information that does not display a valid
Control Number. See 5 CFR 1320.5(a) and 1320.6. USCIS has submitted the
Information Collection Request (ICR) contained in this rule to OMB
using emergency clearance procedures outlined at 5 CFR 1320.13. That
review is ongoing, and USCIS will publish a notice announcing the
results of that review.
This rule includes a new form, Form ATT-H2B, Attestation for
Employers Seeking To Employ H-2B Nonimmigrant Workers Essential to the
U.S. Food Supply Chain, that petitioners will file with DHS.
Petitioners will use this form to make the attestation described above.
While USCIS will provide a more specific burden estimate in the package
submitted to OMB, for the purposes of this TFR DHS notes that such an
estimate is difficult to provide with any certainty. For more
information on this collection, please see reginfo.gov.
Overview of Information Collection
(1) Type of Information Collection: New Collection.
(2) Title of the Form/Collection: Attestation for Employers Seeking
to Employ H-2B Nonimmigrant Workers Essential to the U.S. Food Supply
Chain.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: Form ATT-H2B; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Business or other for-profit. As of
the effective date of this temporary final rule, employers who
submitted or are submitting Form I-129, Petition for a Nonimmigrant
Worker to request an extension of stay and a change of employer and/or
an extension of stay beyond the maximum 3 years (including with the
same employer) pursuant to 8 CFR 214.2(h)(23), will be able to submit
the Attestation to affirm that the workers named in the petition will
be performing temporary nonagricultural services or labor that are
essential to the U.S. food supply chain as described in 8 CFR
214.2(h)(23)(i). Receipt of the H-2B petition and Attestation, or just
Attestation for H-2B petitioners whose petitions were pending on the
effective date of this rule, triggers the flexibilities under this
temporary final rule.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: USCIS is not
able to estimate the total number of respondents for the information
collection Form ATT-H2B because it cannot reasonably predict how many
H-2B petitioners will file an H-2B petition for an extension of stay
during the 120 days after the publication of this temporary final rule,
or how many of those employers will be requesting the flexibilities
under this temporary final rule and able to attest that H-2B workers
will be performing temporary nonagricultural services or labor
essential to the U.S. food supply chain. The estimated hour burden per
response is 0.167 hours (10 minutes).
(6) An estimate of the total public burden (in hours) associated
with the collection: Because USCIS cannot reasonably estimate the
number of H-2B petitioners who will be able to attest that H-2B workers
will be be performing temporary nonagricultural servies or labor
essential to the U.S. food supply chain, USCIS is not able to provide a
total estimated annual hour burden associated with this collection of
information.
(7) An estimate of the total public burden (in cost) associated
with the collection: USCIS is not able to estimate the total annual
cost burden associated with this collection of information because it
is not able to predict how many H-2B petitioners will be able to attest
that H-2B workers will be performing temporary nonagricultural services
or labor essential to the U.S. food supply chain, and thus the number
of respondents for this information collection.
J. 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, 1356, 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)(23) to read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(23) Change of employers and extensions beyond 3 years during
COVID-19 National Emergency for H-2B aliens essential to the U.S. food
supply chain. (i) This paragraph (h)(23) relates to certain H-2B
workers providing temporary nonagricultural services or labor essential
to the U.S. food supply chain.
(ii) A prospective new H-2B employer or U.S. agent who is seeking
to employ an H-2B alien to provide temporary nonagricultural services
or labor essential to the U.S. food supply chain under this paragraph
(h)(23) may file an H-2B petition on Form I-129, accompanied by an
approved temporary labor certification and attestation described in
paragraph (h)(23)(v)(A) of this section, requesting an extension of the
alien's stay in the United States. 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 labor certification. Notwithstanding paragraph (h)(2)(i)(D)
of this section, an alien in valid H-2B nonimmigrant status on or after
March 1, 2020:
(A) Whose new petitioner files an H-2B petition on or after May 14,
2020, is authorized to begin employment with the new petitioner to
perform work that is essential to the U.S. food supply chain after the
petition described in this paragraph (h)(23), including the attestation
described in paragraph (h)(23)(v)(A) of this section, is received by
USCIS and before the H-2B petition is approved, but no earlier than the
start
[[Page 28851]]
date of employment indicated in the H-2B petition; or
(B) Whose new petitioner filed an H-2B petition on or after March
1, 2020 and the petition was pending on or after May 14, 2020, is
authorized to begin employment with the new petitioner to perform work
that is essential to the U.S. food supply chain after the attestation
described in paragraph (h)(23)(v)(A) is received by USCIS and before
the H-2B petition is approved.
(iii)(A) With respect to a petition described in paragraph
(h)(23)(ii)(A) of this section, and subject to the requirements of 8
CFR 274a.12(b)(27), the new period of employment described in paragraph
(h)(23)(ii) may last for up to 60 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, for a period of up to 60 days
beginning on the start date of employment indicated in the H-2B
petition. Employment is not authorized under this paragraph (h)(23) if
USCIS does not receive the attestation described in paragraph
(h)(23)(v)(A) of this section.
(B) With respect to a petition described in paragraph
(h)(23)(ii)(B) of this section, the new period of employment described
in paragraph (h)(23)(ii) may last for up to 60 days beginning on the
date that USCIS acknowledges in writing the receipt of a properly filed
attestation described paragraph (h)(23)(v). Employment under this
paragraph (h)(23) is not authorized if USCIS does not receive the
attestation described in paragraph (h)(23)(v)(A) of this section.
(C) With respect to either type of petition, if USCIS adjudicates
the petition prior to the expiration of this 60-day period and denies
the petition for extension of stay, or if the petition is withdrawn by
the petitioner before the expiration of the 60-day period, the
employment authorization associated with the filing of that petition
under 8 CFR 274a.12(b)(27) will automatically terminate 15 days after
the date of the denial decision or 15 days after the date on which the
petition is withdrawn. Nothing in this paragraph (h)(23) is intended to
alter the availability of employment authorization related to
professional H-2B athletes who are traded between organizations
pursuant to paragraph (h)(6)(vii) of this section and 8 CFR
274a.12(b)(9).
(iv) Notwithstanding paragraphs (h)(13)(i)(B), (h)(13)(iv) and (v),
and (h)(15)(ii)(C) of this section, an H-2B petition seeking an
extension of stay for H-2B aliens who are essential to the U.S. food
supply chain to work, and submitted with an approved temporary labor
certification, may be approved on the basis of this paragraph (h)(23),
even if any of the aliens requested in the H-2B petition have otherwise
exhausted the 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.
(v) In addition to meeting all other requirements for the H-2B
classification, to commence employment and be approved under this
paragraph (h)(23):
(A) The H-2B petitioner must submit an attestation indicating that
the H-2B alien will be performing work that is essential to the U.S.
food supply chain;
(B) The alien must have been in valid H-2B nonimmigrant status on
or after March 1, 2020; and
(C) The H-2B petition must have been--
(1) Received on or after March 1, 2020, and pending as of May 14,
2020, so long as the H-2B worker did not begin work with the new
employer before May 14, 2020, or
(2) Received on or after May 14, 2020, but no later than September
11, 2020.
(vi) Authorization to initiate employment changes pursuant to
paragraphs (h)(23)(ii) and (iii) of this section, or be approved for
employment exceeding 3 years in duration pursuant to paragraph
(h)(23)(iv) of this section, begins on May 14, 2020, and ends at the
end of September 11, 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.
0
4. Amend Sec. 274a.12 by adding paragraph (b)(27) to read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(b) * * *
(27)(i) Pursuant to 8 CFR 214.2(h)(23) and notwithstanding 8 CFR
214.2(h)(2)(i)(D) and the second sentence of 8 CFR 274a.12(b)(9), an
alien is authorized to be employed, beginning no earlier than the start
date of employment indicated in the H-2B petition and no earlier than
May 14, 2020, by a new employer that has filed an H-2B petition, which
includes the attestation described in 8 CFR 214.2(h)(23)(v)(A) naming
the alien as a beneficiary and requesting an extension of stay for the
alien. The authorization is for a period not to exceed 60 days
beginning on the later of the following three dates: The ``Received
Date'' on Form I-797 (Notice of Action) acknowledging receipt of the
petition requesting the extension of stay, which includes the
attestation described in 8 CFR 214.2(h)(23)(v)(A); the date on which
USCIS acknowledges in writing the receipt of the properly filed
attestation described in 8 CFR 214.2(h)(23)(v)(A) submitted while the
H-2B petition is pending; or the start date of employment if the start
date of employment indicated in the H-2B petition occurs after the
filing. However, if USCIS adjudicates the petition prior to the
expiration of this 60-day period and denies the petition for extension
of stay, or if the petitioner withdraws the petition before the
expiration of the 60-day period, the employment authorization under
this paragraph (b)(27) will automatically terminate 15 days after the
date of the denial decision or 15 days after the date on which the
petition is withdrawn. Nothing in this section is intended to alter the
availability of employment authorization related to professional H-2B
athletes who are traded between organizations pursuant to paragraph
(b)(9) of this section and 8 CFR 214.2(h)(6)(vii).
(ii) Authorization to initiate employment changes pursuant to 8 CFR
214.2(h)(23)(ii) and (iii) and this paragraph (b)(27) begins at 12 a.m.
on May 14, 2020, and ends at the end of September 11, 2020.
* * * * *
Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S.
Department of Homeland Security.
[FR Doc. 2020-10486 Filed 5-12-20; 3:00 pm]
BILLING CODE 9111-97-P