Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due to the COVID-19 National Emergency, 21739-21745 [2020-08356]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 85, Number 76 (Monday, April 20, 2020)]
[Rules and Regulations]
[Pages 21739-21745]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08356]



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Rules and Regulations
                                                Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
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under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 85, No. 76 / Monday, April 20, 2020 / Rules 
and Regulations

[[Page 21739]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

[CIS No. 2667-20; DHS Docket No. USCIS-2020-0008]
RIN 1615-AC55


Temporary Changes to Requirements Affecting H-2A Nonimmigrants 
Due to the COVID-19 National Emergency

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Temporary final rule.

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SUMMARY: As a result of disruptions and uncertainty to the U.S. food 
agriculture sector during the upcoming summer agricultural season 
caused by the global novel Coronavirus Disease 2019 (COVID-19) public 
health emergency, the Department of Homeland Security, U.S. Citizenship 
and Immigration Services, has decided to temporarily amend the 
regulations regarding temporary and seasonal agricultural workers, and 
their U.S. employers, within the H-2A nonimmigrant classification. The 
Department is temporarily removing certain limitations on agricultural 
employers and workers in order to provide agricultural employers with 
an orderly and timely flow of legal foreign workers, thereby protecting 
the integrity of the nation's food supply chain and decreasing possible 
reliance on unauthorized aliens, while encouraging agricultural 
employers' use of the H-2A program, which protects the rights of U.S. 
and foreign workers. Namely, the Department will allow H-2A employers 
whose extension of stay H-2A petitions are supported by valid temporary 
labor certifications (TLCs) issued by the Department of Labor to begin 
work immediately after the extension of stay petition is received by 
USCIS. The Department is also temporarily amending its regulations to 
allow H-2A workers to stay in the United States beyond the 3 years 
maximum allowable period of stay. DHS will apply this temporary final 
rule to H-2A petitions requesting an extension of stay, and, if 
applicable, any associated applications for an extension of stay filed 
by or on behalf of an H-2A worker, if they were received on or after 
March 1, 2020 and remain pending as of the effective date of this rule, 
as well as H-2A petitions for an extension of stay, received on or 
after the effective date of this rule, ending on the last day this rule 
is in effect.

DATES: This final rule is effective from April 20, 2020 through August 
18, 2020.

FOR FURTHER INFORMATION CONTACT: Charles L. Nimick, Chief, Business and 
Foreign Workers Division, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
20 Massachusetts Ave. NW, Suite 1100, Washington, DC 20529-2120, 
Telephone Number (202) 272-8377 (not a toll-free call).
    Individuals with hearing or speech impairments may access the 
telephone numbers above via TTY by calling the toll-free Federal 
Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
    A. Legal Framework
    B. Description of the H-2A Program
    i. DOL Temporary Labor Certification Procedures
    ii. DHS Petition Procedures
    iii. Admission and Limitations of Stay
    C. COVID-19 National Emergency
II. Discussion
    A. Temporary Changes to DHS Requirements for H-2A Change of 
Employer Requests and H-2A Maximum Period of Stay Exception During 
the COVID-19 National Emergency
III. Statutory and Regulatory Requirements
    A. Administrative Procedure Act
    B. Executive Orders 12866 (Regulatory Planning and Review) and 
13563 (Improving Regulation and Regulatory Review)
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act of 1995
    E. Executive Order 13132 (Federalism)
    F. Executive Order 12988 (Civil Justice Reform)
    G. Congressional Review Act
    H. National Environmental Policy Act
    I. Signature
List of Subjects and Regulatory Amendments

I. Background

A. Legal Framework

    The Secretary of Homeland Security (Secretary) has the authority to 
amend this regulation under section 102 of the Homeland Security Act of 
2002 (HSA), Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 112, and 
section 103(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 
1103(a), which authorize the Secretary to administer and enforce the 
immigration and nationality laws. Under section 101 of the HSA, 6 
U.S.C. 111(b)(1)(F), a primary mission of the Department is to ``ensure 
that the overall economic security of the United States is not 
diminished by efforts, activities, and programs aimed at securing the 
homeland.'' In addition, section 214(a)(1) of the INA, 8 U.S.C. 
1184(a)(1), provides the Secretary with authority to prescribe the 
terms and conditions of any alien's admission to the United States as a 
nonimmigrant. The INA further requires that ``[t]he question of 
importing any alien as [an H-2A] nonimmigrant . . . in any specific 
case or specific cases shall be determined by [DHS], after consultation 
with appropriate agencies of the Government [the U.S. Department of 
Labor and the U.S. Department of Agriculture], upon petition by the 
importing employer.'' INA 214(c)(1), 8 U.S.C. 1184(c)(1). Section 
274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), states that ```an 
unauthorized alien' means . . . that the alien is not at that time . . 
. authorized to be employed by this chapter or by the [Secretary].''

B. Description of the H-2A Program

    The H-2A nonimmigrant classification applies to alien workers 
seeking to perform agricultural labor or services of a temporary or 
seasonal nature in the United States on a temporary basis, usually 
lasting no longer than 1 year, for which U.S. workers are not 
available. INA 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a); 
see also 8 CFR 214.1(a)(2). As noted in the statute, not only must the 
alien be coming ``temporarily'' to the United States, but the 
agricultural labor or services that the alien is performing must also 
be ``temporary or seasonal.'' INA 101(a)(15)(H)(ii)(a). The regulations 
further define an employer's temporary need as employment that is of a

[[Page 21740]]

temporary nature where the employer's need to fill the position with a 
temporary worker will, except in extraordinary circumstances, last no 
longer than 1 year. 8 CFR 214.2(h)(5)(iv)(A). An employer's seasonal 
need is defined as employment that is tied to a certain time of year by 
an event or pattern, such as a short annual growing cycle or a specific 
aspect of a longer cycle, and requires labor levels above those 
necessary for ongoing operations. Id.
    An employer, agent, or association (``H-2A petitioner'') must 
submit a petition to U.S. Citizenship and Immigration Services (USCIS) 
to obtain authorization of temporary workers as H-2A nonimmigrants 
before the employer may begin employing H-2A workers. INA 214(c)(1), 8 
U.S.C. 1184(c)(1); 8 CFR 214.2(h)(2)(i). DHS must approve this petition 
before the alien can be considered eligible for H-2A status or a visa. 
To qualify for H-2A classification, the H-2A petitioner must, among 
other things, offer a job that is of a temporary or seasonal nature, 
and must submit a single, valid temporary labor certification (TLC) 
from the U.S. Department of Labor (DOL) establishing that there are not 
enough U.S. workers who are able, willing, qualified, and available to 
do the temporary work, and that employing H-2A workers will not 
adversely affect the wages and working conditions of workers in the 
United States similarly employed.\1\ INA 101(a)(15)(H)(ii)(a) and 218, 
8 U.S.C. 1101(a)(15)(H)(ii)(a) and 1188; see also generally 8 CFR 
214.2(h)(5)(i)(A) and (h)(5)(iv). Aliens who are outside of the United 
States also must first obtain an H-2A visa from the U.S. Department of 
State (DOS) at a U.S. Embassy or Consulate abroad, if required, and 
then seek admission with U.S. Customs and Border Protection (CBP) at a 
U.S. port of entry prior to commencing employment as an H-2A 
nonimmigrant. Aliens may be admitted for an additional period of up to 
one week prior to the employment start date for the purpose of travel 
to the worksite. 8 CFR 214.2(h)(5)(viii)(B).
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    \1\ Under certain emergent circumstances, petitions requesting a 
continuation of employment with the same employer for 2 weeks or 
less are exempt from the TLC requirement. See 8 CFR 214.2(h)(5)(x).
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i. DOL Temporary Labor Certification (TLC) Procedures
    Prior to filing the H-2A petition with DHS, the U.S. employer or 
agent must obtain a valid TLC from DOL for the job opportunity the 
employer seeks to fill with an H-2A worker(s). As part of the TLC 
process, the petitioning employer must have demonstrated to the 
satisfaction of the Secretary of Labor that (a) there are not 
sufficient U.S. workers who are able, willing, and qualified, and who 
will be available at the time and place needed to perform the labor or 
services involved in the petition, and (b) the employment of the alien 
in such labor or services will not adversely affect the wages and 
working conditions of workers in the United States similarly employed. 
8 U.S.C. 1188(a)(1); see also 20 CFR 655.100.
    The INA specifies a number of conditions under which the Secretary 
cannot grant a temporary labor certification. 8 U.S.C. 1188(b). One 
such condition is where ``[t]he Secretary determines that the employer 
has not made positive recruitment efforts within a multi-state region 
of traditional or expected labor supply where the Secretary finds that 
there are a significant number of qualified United States workers who, 
if recruited, would be willing to make themselves available for work at 
the time and place needed.'' 8 U.S.C. 1188(b)(4). The ``positive 
recruitment'' that the INA requires ``is in addition to, and shall be 
conducted within the same time period as, the circulation through the 
interstate employment service system of the employer's job offer.'' 8 
U.S.C. 1188(b)(4). An employer's obligation to engage in this 
recruitment terminates ``on the date the H-2A workers depart for the 
employer's place of employment.'' Id. The standards and procedures 
governing the positive recruitment of U.S. workers are set forth in 
DOL's regulations. 20 CFR 655.151 through 655.154.
    To obtain a TLC from DOL, the employer must first submit an 
agricultural job order, within 75 to 60 calendar days prior to the 
start date of work, to the State Workforce Agency (SWA) that serves the 
state where the actual work will be performed. The SWA will then 
initiate the interstate recruitment of U.S. workers. In addition, the 
employer must submit an H-2A application to DOL's Office of Foreign 
Labor Certification (OFLC) no less than 45 calendar days before the 
start date of work. OFLC will review the H-2A application and notify 
the employer of any deficiencies, as well as provide instructions for 
additional recruitment efforts for U.S. workers.
    As noted above, in granting the TLC, DOL certifies that there are 
no U.S. workers who are able, willing, and qualified to fill the 
temporary or seasonal position and that the employment of H-2A workers 
will not adversely affect the wages and working conditions of workers 
in the United States similarly employed. INA 214(c)(1) and 218(a), 8 
U.S.C. 1184 (c)(1) and 1188(a); 8 CFR 214.2(h)(5)(ii) and 
(h)(5)(iv)(B); 20 CFR 655.100. The U.S. employer must comply with DOL's 
regulations covering the H-2A process, including, but not limited to, 
offering the job opportunity identified on the TLC to any laid-off U.S. 
worker(s) and contacting former U.S. workers who were employed in the 
job opportunity identified on the TLC. 20 CFR 655.135 and 655.153. The 
U.S. employer must also continue to accept referrals of all eligible 
U.S. workers who apply for the job opportunity until 50 percent of the 
work contract period certified by DOL has elapsed, as specified in 20 
CFR 655.135(d).
ii. DHS Petition Procedures
    After receiving a valid TLC from DOL, the employer listed on the 
TLC, an employer's agent, or the association of United States 
agricultural producers named as a joint employer on the TLC (``H-2A 
petitioner'') may file the H-2A petition with the appropriate USCIS 
office. INA 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(2)(i), 
(h)(5)(i)(A). The H-2A petitioner may petition for one or more named or 
unnamed H-2A workers, but the total number of workers may not exceed 
the number of positions indicated on the TLC. 8 CFR 214.2(h)(2)(iii) 
and (h)(5)(i)(B). H-2A petitioners must name the H-2A worker if the 
worker is in the United States or if the H-2A worker is a national of a 
country that is not designated as an H-2A participating country. 8 CFR 
214.2(h)(2)(iii). USCIS recommends that petitioners submit a separate 
H-2A petition when requesting a worker(s) who is a national of a 
country that is not designated as an H-2A participating country. See 8 
CFR 214.2(h)(5)(i)(F); see also Identification of Foreign Countries 
Whose Nationals Are Eligible To Participate in the H-2A and H-2B 
Nonimmigrant Worker Programs, Notice, 85 FR 3067 (Jan. 17, 2020). 
Petitioners for such aliens must submit evidence demonstrating the 
factors by which the request for H-2A workers serves the U.S. national 
interest. 8 CFR 214.2(h)(5)(i)(F)(1)(ii). USCIS will review each 
petition naming a national from a country not on the list and all 
supporting documentation and make a determination on a case-by-case 
basis.
    A U.S. employer or U.S. agent generally may submit a new H-2A 
petition, with a new, valid TLC, to USCIS to request an extension of H-
2A nonimmigrant status for a period of up to 1 year. 8 CFR 
214.2(h)(15)(ii)(C). The H-2A petitioner must name the worker on the 
Form I-129, Petition for

[[Page 21741]]

Nonimmigrant Worker, since the H-2A worker is in the United States and 
requesting an extension of stay. In the event of an emergency 
circumstance, however, a U.S. employer may request an extension not to 
exceed 14 days without first having to obtain an additional approved 
TLC from DOL if certain criteria are met, by simply submitting the new 
H-2A petition. See 8 CFR 214.2(h)(5)(x).
    In 2008, USCIS promulgated regulations allowing H-2A workers to 
begin work with a new petitioning employer upon the filing of an H-2A 
petition, before petition approval, provided that the new employer is a 
participant in good standing in the E-Verify program.\2\ 8 CFR 
214.2(h)(2)(i)(D) and 8 CFR 274a.12(b)(21). In such a case, the H-2A 
worker's employment authorization continues for a period not to exceed 
120 days beginning on the ``Received Date'' on the Form I-797, Notice 
of Action, which acknowledges the receipt of the new H-2A extension 
petition. With the exception of the new employer and worksite, the 
employment authorization extension remains subject to the same 
conditions and limitations indicated on the initial H-2A petition. The 
continued employment authorization extension will terminate 
automatically if the new employer fails to remain a participant in good 
standing in the E-Verify program, as determined by USCIS in its 
discretion.
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    \2\ See Changes to Requirements Affecting H-2A Nonimmigrants, 73 
FR 76891, 76905 (Dec. 8, 2008).
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iii. Admission and Limitations of Stay
    Upon USCIS approval of the H-2A petition, the U.S. employer or 
agent may hire the H-2A workers to fill the job opening. USCIS will 
generally grant the workers H-2A classification for up to the period of 
time authorized on the valid TLC. H-2A workers who are outside of the 
United States may apply for a visa with DOS at a U.S. Embassy or 
Consulate abroad, if required, and seek admission to the United States 
with CBP at a U.S. port of entry. Spouses and children of H-2A workers 
may request H-4 nonimmigrant status to accompany the principal H-2A 
worker. The spouse and children of an H nonimmigrant, if they are 
accompanying or following to join such H nonimmigrant in the United 
States, may be admitted, if otherwise admissible, as H-4 nonimmigrants 
for the same period of admission or extension as the principal spouse 
or parent. 8 CFR 214.2(h)(9)(iv). Thus, H-4 dependents of these H-2A 
workers are subject to the same limitations on stay, and permission to 
remain in the country during the pendency of the new employer's 
petition, as the H-2A beneficiary.
    An alien's H-2A status is limited by the validity dates on the 
approved H-2A petition, which must be less than 1 year. 8 CFR 
214.2(h)(5)(viii)(C). H-2A workers may be admitted into the United 
States for a period of up to 1 week prior to the beginning validity 
date listed on the approved H-2A petition so that they may travel to 
their worksites, but may not begin work until the beginning validity 
date. H-2A workers may also remain in the United States 30 days beyond 
the expiration date of the approved H-2A petition to prepare for 
departure or to seek an extension or change of nonimmigrant status. H-
2A workers do not have employment authorization outside of the validity 
period listed on the approved petition unless otherwise authorized. 8 
CFR 214.2(h)(5)(viii)(B).
    The maximum period of stay for an alien in H-2A classification is 3 
years. 8 CFR 214.2(h)(5)(viii)(C). Once an alien has held H-2A 
nonimmigrant status for a total of 3 years, the alien must depart and 
remain outside of the United States for an uninterrupted period of 3 
months before seeking readmission as an H-2A nonimmigrant. 8 CFR 
214.2(h)(5)(viii)(C).

C. COVID-19 National Emergency

    On January 31, 2020, the Secretary of the U.S. Department of Health 
and Human Services (HHS) declared a public health emergency under 
section 319 of the Public Health Service Act (42 U.S.C. 247d), in 
response to the Coronavirus Disease 2019 (COVID-19).\3\ On March 13, 
2020, President Trump declared a National Emergency concerning the 
COVID-19 outbreak to control the spread of the virus in the United 
States.\4\ The President's proclamation declared that the emergency 
began on March 1, 2020. In response to the Mexican government's call to 
increase social distancing, DOS announced the temporary suspension of 
routine immigrant and nonimmigrant visa services processed at the U.S. 
Embassy in Mexico City and all U.S. consulates in Mexico beginning on 
March 18, 2020.\5\ DOS expanded the temporary suspension of routine 
immigrant and nonimmigrant visa services to all U.S. Embassies and 
Consulates on March 20, 2020.\6\ DOS designated H-2A visas as mission 
critical, however, and announced that U.S. Embassies and Consulates 
will continue to process H-2A cases to the extent possible and 
implemented a change in its procedures, to include interview 
waivers.\7\ In addition, DHS has identified occupations in food and 
agriculture as critical to the U.S. public health and safety and 
economy.\8\
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    \3\ HHS, Determination of Public Health Emergency, 85 FR 7316 
(Feb. 7, 2020).
    \4\ Proclamation 9994 of March 13, 2020, Declaring a National 
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85 
FR 15337 (Mar. 18, 2020). See also https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ (last 
visited Mar. 25, 2020).
    \5\ DOS, Status of U.S. Consular Operations in Mexico in Light 
of COVID-19, https://mx.usembassy.gov/status-of-u-s-consular-operations-in-mexico-in-light-of-covid-19/.
    \6\ DOS, Suspension of Routine Visa Services, https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html.
    \7\ See DOS website, Important Announcement on H2 Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-h2-visas.html (last updated Mar. 26, 2020).
    \8\ DHS, Memorandum on Identification of Essential Critical 
Infrastructure Workers During COVID-19 Response, https://www.cisa.gov/sites/default/files/publications/CISA-Guidance-on-Essential-Critical-Infrastructure-Workers-1-20-508c.pdf (Mar. 19, 
2020).
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II. Discussion

A. Temporary Changes to DHS Requirements for H-2A Change of Employer 
Requests and H-2A Maximum Period of Stay Exception during the COVID-19 
National Emergency

    DHS regulations currently permit H-2A workers to continue to be 
employment-authorized while waiting for their extensions of H-2A status 
based on an H-2A petition, accompanied by an approved TLC, filed by a 
new employer if the new employer is in good standing in the E-Verify 
program. 8 CFR 274a.12(b)(21).
    DHS is committed to both protecting U.S. workers and to helping 
U.S. businesses receive the legal and work-authorized labor for 
temporary or seasonal agricultural labor or services that they need. 
Due to travel restrictions and visa processing limitations as a result 
of actions taken to mitigate the spread of COVID-19, as well as the 
possibility that some H-2A workers may become unavailable due to COVID-
19 related illness, U.S. employers who have approved H-2A petitions or 
who will be filing H-2A petitions might not receive all of the workers 
requested to fill the temporary positions, and similarly, employers 
that currently employ H-2A workers may lose the services of these 
workers due to COVID-19 related illness. In the wealth of uncertainty 
inherent to confronting a public health emergency of this magnitude, 
DHS is taking steps to ensure that the agricultural sector has

[[Page 21742]]

greater certainty and flexibility to minimize gaps in their H-2A 
workflow. Therefore, for at least 120 days, the Department is providing 
the flexibilities discussed herein. The Department is amending its 
regulations to temporarily permit all H-2A employers to allow aliens 
who currently hold H-2A status to start working upon the receipt of the 
employer's new H-2A petition, but no earlier than the start date of 
employment listed on the H-2A petition, to meet the employer's needs 
during the national emergency. See new 8 CFR 214.2(h)(21) and 8 CFR 
274a.12(b)(26). Unlike the current regulation at 8 CFR 274a.12(b)(21), 
which allows the H-2A worker(s) to immediately work for a new H-2A 
employer in good standing in E-Verify upon the filing of an H-2A 
petition, this final rule temporarily allows the H-2A worker(s) to 
immediately work for any new H-2A employer, but no earlier than the 
start date of employment listed on the H-2A petition, upon the filing 
of a new H-2A petition during the COVID-19 National Emergency only.
    The Department remains committed to promoting the use of E-Verify 
to ensure a legal workforce. E-Verify is free, user friendly, and over 
98% accurate.\9\ Notwithstanding the numerous benefits E-Verify offers 
to ensure all employers only employ a legal workforce, the Department 
has determined that it is necessary to temporarily amend its 
regulations affecting H-2A workers to mitigate the impact on the 
agricultural industry due to COVID-19. These H-2A petitioners will have 
completed a test of the U.S. labor market, and DOL will have determined 
that there are no qualified U.S. workers available to fill these 
temporary positions. The Department believes that granting H-2A workers 
the option to begin employment with any new H-2A petitioner as soon as 
the H-2A petition is received by USCIS will also benefit U.S. 
agricultural employers and provide stability to the U.S. food supply 
chain during the unique challenges the country faces because of COVID-
19.
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    \9\ See https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance (last visited on Mar. 30, 2020).
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    In addition, the Department has determined that it is necessary to 
create a temporary exception to its regulations at 8 CFR 
214.2(h)(5)(viii)(C), (h)(13)(i)(B), and (h)(15)(ii)(C) to allow aliens 
to extend their H-2A period of stay beyond the 3-year limitation, 
without first requiring them to remain outside of the United States for 
an uninterrupted period of 3 months.
    Given these extraordinary times and possible delays of H-2A visa 
issuance at the U.S. Embassies and Consulates, the Department has 
determined to temporarily amend its regulations affecting H-2A workers 
in order to meet the needs of U.S. employers in the food and 
agricultural industries, who have already conducted a test of the U.S. 
labor market but have not been able to find qualified, available U.S. 
workers to fill the positions, during the National Emergency. This 
final rule proposes no changes to DOL's regulations or to the TLC 
process, which the employer must undergo to recruit U.S. workers prior 
to the filing of an H-2A petition with USCIS. The flexibility for H-2A 
workers to quickly move to a new employer will help meet the urgent 
need to minimize any negative impact to the U.S. food supply chain due 
to COVID-19. This extraordinary treatment is limited to aliens who are 
and have been complying with the terms of their H-2A status.
    To be approved under this final rule, an H-2A petition for an 
extension of stay with a new employer must have been received on or 
after March 1, 2020 and remain pending as of the effective date of this 
rule, or received on or after the effective date of this rule and no 
later than the last day that this final rule is in effect (i.e., August 
18, 2020). If the new petition is approved, the H-2A worker's extension 
of stay may be granted for the validity of the approved petition for a 
period not to exceed the validity period of the TLC. In addition, the 
temporary provisions differ from the existing provisions in that they 
grant employment authorization for 45 days from the date of the receipt 
notice. The 45-day employment authorization associated with the filed 
petition will automatically terminate 15 days after the date of denial 
or withdrawal if USCIS denies the petition, or if the petition is 
withdrawn.
    To provide greater certainty to the market for the duration of the 
summer growing season, the changes made by this final rule will 
automatically terminate on August 18, 2020. DHS will issue a new 
temporary final rule to extend the termination date in 8 CFR 
214.2(h)(21)(iii) in the event DHS determines that economic 
circumstances related to our food supply and U.S. agriculture 
demonstrate a continued need for these temporary changes to the 
regulatory requirements involving H-2A agricultural employers and 
workers. USCIS will continue to adjudicate H-2A petitions received no 
later than August 18, 2020 under the provisions of this rule. If DHS 
extends the termination date, DHS will continue to adjudicate H-2A 
petitions received no later than the new termination date. Any H-2A 
petition received after the termination of this final rule, or any 
subsequently established termination date, will be adjudicated in 
accordance with the existing provisions. See 8 CFR 214.2(h)(2)(i)(D) 
and 274a.12(b)(21).

III. Statutory and Regulatory Requirements

A. Administrative Procedure Act

    This rule is issued without prior notice and opportunity to comment 
and with an immediate effective date pursuant to sections 553(b) and 
(d) of the Administrative Procedure Act (APA). 5 U.S.C. 551 et seq.
1. Good Cause To Forgo Notice and Comment Rulemaking
    The APA, 5 U.S.C. 553(b)(B), authorizes an agency to issue a rule 
without prior notice and opportunity to comment when the agency for 
good cause finds that those procedures are ``impracticable, 
unnecessary, or contrary to the public interest.'' The good-cause 
exception for forgoing notice-and-comment rulemaking ``excuses notice 
and comment in emergency situations, or where delay could result in 
serious harm.'' Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004). 
Although the good cause exception is ``narrowly construed and only 
reluctantly countenanced,'' Tenn. Gas Pipeline Co. v. FERC, 969 F.2d 
1141, 1144 (D.C. Cir 1992), the Department has appropriately invoked 
the exception in this case, for the reasons set forth below. As also 
discussed earlier in this preamble, on January 31, 2020, the Secretary 
of Health and Human Services declared a public health emergency under 
section 319 of the Public Health Service Actin response to COVID-
19.\10\ On March 13, 2020, President Trump declared a National 
Emergency concerning the COVID-19 outbreak, dated back to March 1, 
2020, to control the spread of the virus in the United States.\11\ In 
response to the Mexican government's call to increase social distancing 
in that country, DOS announced the temporary suspension of routine 
immigrant and nonimmigrant visa services processed at the U.S. Embassy 
in Mexico City and all U.S. consulates in Mexico beginning on March 18, 
2020.\12\ DOS expanded the temporary suspension of routine immigrant 
and nonimmigrant visa

[[Page 21743]]

services at all U.S. Embassies and Consulates on March 20, 2020.\13\
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    \10\ Determination of Public Health Emergency.
    \11\ Proclamation 9994.
    \12\ Status of U.S. Consular Operations in Mexico in Light of 
COVID-19.
    \13\ Suspension of Routine Visa Services.
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    DOS designated H-2A visas as mission critical, and announced that 
U.S. Embassies and Consulates will continue to process H-2 cases to the 
extent possible and implemented a change in its procedures, to include 
interview waivers.\14\ In addition, DHS identified occupations in food 
and agriculture as critical to the U.S. public health and safety and 
economy.\15\ Due to travel restrictions, visa processing limitations as 
a result of actions taken to mitigate the spread of COVID-19, as well 
as the possibility that some H-2A workers may become unavailable due to 
illness related to the spread of COVID-19, U.S. employers who have 
approved temporary agricultural labor certifications and either 
approved H-2A petitions or who will be filing H-2A petitions might not 
receive, or be able to continuously employ, all of the workers 
requested to fill all of their DHS-approved temporary or seasonal 
agricultural positions. Due to these anticipated labor shortages, these 
employers may experience adverse economic impacts to their agricultural 
operations. Finally, fears over COVID-19 have prompted concerns about 
food shortages and food insecurity globally.\16\ To partially address 
these concerns, DHS is acting expeditiously to put in place rules that 
will facilitate the continued employment of H-2A workers already 
present in the United States. This action will help U.S. employers fill 
critically necessary agricultural job openings, protect economic 
investments in their agricultural operations, and contribute to U.S. 
food security.
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    \14\ Important Announcement on H2 Visas.
    \15\ DHS Memorandum on Identification of Essential Critical 
Infrastructure Workers During COVID-19 Response.
    \16\ See, e.g. Coronavirus measures could cause global food 
shortage, UN warns. https://www.theguardian.com/global-development/2020/mar/26/coronavirus-measures-could-cause-global-food-shortage-un-warns (last visited on Mar. 27, 2020).
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    Courts have found ``good cause'' under the APA when an agency is 
moving expeditiously to avoid significant economic harm to a program, 
program users, or an industry. Courts have held that an agency may use 
the good-cause exception to address ``a serious threat to the financial 
stability of [a government] benefit program,'' Nat'l Fed'n of Fed. 
Emps. v. Devine, 671 F.2d 607, 611 (D.C. Cir 1982), or to avoid 
``economic harm and disruption'' to a given industry, which would 
likely result in higher consumer prices, Am. Fed'n of Gov't Emps. v. 
Block, 655 F.2d 1153, 1156 (D.C. Cir 1981). Consistent with the above 
authorities, the Department has bypassed notice and comment to 
facilitate the employment of H-2A workers already in the United States, 
and prevent potential economic harms to H-2A agricultural employers and 
downstream employers engaged in the processing of agricultural 
products, as well as potential harms to the American economy and people 
that could result from ongoing uncertainty over the availability of H-
2A agricultural workers, and potential associated negative impacts on 
food security in the United States. See Bayou Lawn & Landscape Servs. 
v. Johnson, 173 F. Supp. 3d 1271, 1285 & n.12 (N.D. Fla. 2016). This 
action is temporary in nature, and includes appropriate conditions to 
ensure that it is narrowly tailored to the National Emergency caused by 
COVID-19.
2. Good Cause To Proceed With an Immediate Effective Date
    The APA also authorizes agencies to make a rule effective 
immediately, upon a showing of good cause, instead of imposing a 30-day 
delay. 5 U.S.C. 553(d)(3). The good-cause exception to the 30-day 
effective date requirement is easier to meet than the good-cause 
exception for forgoing notice and comment rulemaking. Riverbend Farms, 
Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992); Am. Fed'n of 
Gov't Emps., AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir 1981); 
U.S. Steel Corp. v. EPA, 605 F.2d 283, 289-90 (7th Cir. 1979). An 
agency can show good cause for eliminating the 30-day delayed effective 
date when it demonstrates urgent conditions the rule seeks to correct 
or unavoidable time limitations. U.S. Steel Corp., 605 F.2d at 290; 
United States v. Gavrilovic, 511 F.2d 1099, 1104 (8th Cir. 1977). For 
the same reasons set forth above, we also conclude that the Department 
has good cause to dispense with the 30-day effective date requirement 
given that this rule is necessary to prevent serious economic harms to 
U.S. employers in the agricultural industry caused by unavailability of 
workers due to COVID-19, and to ensure food stability for the American 
people.

B. Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review)

    Executive Orders (E.O.) 12866 and 13563 direct agencies to assess 
the costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility. This rule 
is designated a significant regulatory action under E.O. 12866. 
Accordingly, the Office of Management and Budget (OMB) has reviewed 
this regulation. DHS, however, is proceeding under the emergency 
provision of Executive Order 12866 Section 6(a)(3)(D) based on the need 
to move expeditiously during the current public health emergency to 
secure labor for our food supply.
    This rule will help U.S. employers fill critically necessary 
agricultural job openings, protect their economic investments in their 
agricultural operations, and contribute to U.S. food security. In 
addition, it will benefit H-2A workers already in the United States by 
making it easier for employers to hire them, and allowing them to 
remain employed, if applicable, longer than the 3-year limitation on 
their stay. As this rule helps fill critical labor needs for 
agricultural employers, DHS believes this rule will help ensure a 
continual food supply chain in the United States.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), imposes 
certain requirements on Federal agency rules that are subject to the 
notice and comment requirements of the APA. See 5 U.S.C. 603(a), 
604(a). This final rule is exempt from notice and comment requirements 
for the reasons stated above in Part III.A. Therefore, the requirements 
of the RFA applicable to final rules, 5 U.S.C. 604, do not apply to 
this final rule. Accordingly, the Department is not required to either 
certify that the final rule would not have a significant economic 
impact on a substantial number of small entities or conduct a 
regulatory flexibility analysis.

D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995, Public Law 104-4, 2 
U.S.C. 1501, et seq. (UMRA), is intended, among other things, to curb 
the practice of imposing unfunded Federal mandates on State, local, and 
tribal governments. Title II of the Act requires each Federal agency to 
prepare a written statement assessing the effects of any Federal 
mandate in a proposed rule, or final rule for which the agency 
published a proposed rule that includes any Federal mandate that may 
result in $100 million

[[Page 21744]]

or more expenditure (adjusted annually for inflation) in any one year 
by State, local, and tribal governments, in the aggregate, or by the 
private sector. 2 U.S.C. 1532. This rule does not contain such a 
mandate. The requirements of Title II of UMRA, therefore, do not apply, 
and DHS has not prepared a statement under UMRA.

E. Executive Order 13132 (Federalism)

    This rule does not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of E.O. 
13132, 64 FR 43255, 43258 (Aug. 4, 1999), this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of E.O. 12988, 61 FR 4729 (Feb. 5, 1996).

G. Congressional Review Act

    The Office of Information and Regulatory Affairs, of the Office of 
Management and Budget, has determined that this final rule is not a 
``major rule'' as defined by the Congressional Review Act, 5 U.S.C. 
804(2), and thus is not subject to a 60-day delay in the rule becoming 
effective. DHS will send this temporary final rule to Congress and to 
the Comptroller General under the Congressional Review Act, 5 U.S.C. 
801 et seq.

H. National Environmental Policy Act

    DHS analyzes actions to determine whether the National 
Environmental Policy Act, Public Law 91-190, 42 U.S.C. 4231, et seq. 
(NEPA), applies to them and, if so, what degree of analysis is 
required. DHS Directive 023-01 Rev. 01 (Directive) and Instruction 
Manual 023-01-001-01 Rev. 01 (Instruction Manual) establish the 
policies and procedures that DHS and its components use to comply with 
NEPA and the Council on Environmental Quality (CEQ) regulations for 
implementing NEPA, 40 CFR parts 1500-1508.
    The CEQ regulations allow federal agencies to establish, with CEQ 
review and concurrence, categories of actions (``categorical 
exclusions'') which experience has shown do not individually or 
cumulatively have a significant effect on the human environment and, 
therefore, do not require an Environmental Assessment (EA) or 
Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(2)(ii), 1508.4. 
Categorical exclusions established by DHS are set forth in Appendix A 
of the Instruction Manual. Under DHS NEPA implementing procedures, for 
an action to be categorically excluded, it must satisfy each of the 
following three conditions: (1) The entire action clearly fits within 
one or more of the categorical exclusions; (2) the action is not a 
piece of a larger action; and (3) no extraordinary circumstances exist 
that create the potential for a significant environmental effect. 
Instruction Manual section V.B(2)(a)-(c). This rule temporarily amends 
regulations governing the H-2A nonimmigrant visa program to facilitate 
the continued employment of H-2A nonimmigrants in the United States by 
allowing them to change employers in the United States and begin 
working in the same visa classification for a period not to exceed 45 
days before the nonimmigrant visa petition is approved, due to the 
National Emergency caused by the COVID-19 global pandemic. It also 
establishes a temporary exception from the 3-year limit on the maximum 
period of stay for H-2A workers. This rule does not change the number 
of H-2A workers that may be employed by U.S. employers as there is not 
an established statutory limit. It also does not change rules for where 
H-2A nonimmigrants may be employed; only employers with approved 
temporary labor certifications for workers to perform temporary or 
seasonal agricultural work may be allowed to employ H-2A workers under 
these temporary provisions. Generally, DHS believes NEPA does not apply 
to a rule intended to make it easier for H-2A employers to hire workers 
who are already in the United States in addition to, or instead of, 
also hiring H-2A workers from abroad because any attempt to analyze its 
potential impacts would be largely speculative, if not completely so. 
DHS cannot reasonably estimate how many petitions will be filed under 
these temporary provisions, and therefore how many H-2A workers already 
in the United States will be employed by different employers, as 
opposed to how many petitions would have been filed for H-2A workers 
employed under normal circumstances. DHS has no reason to believe that 
the temporary amendments to H-2A regulations would change the 
environmental effect, if any, of the existing regulations. Therefore, 
DHS has determined that even if NEPA were to apply to this action, this 
rule clearly fits within categorical exclusion A3(d) in the Instruction 
Manual, which provides an exclusion for ``promulgation of rules . . . 
that amend an existing regulation without changing its environmental 
effect.''
    This rule maintains the current human environment by helping to 
prevent irreparable harm to certain U.S. businesses and to prevent 
significant adverse effects on the human environment that would likely 
result from loss of jobs or income, or disruption of the nation's food 
supply chain. This rule is not a part of a larger action and presents 
no extraordinary circumstances creating the potential for significant 
environmental effects. Therefore, this action is categorically excluded 
and no further NEPA analysis is required.

I. Signature

    The Acting Secretary of Homeland Security, Chad F. Wolf, having 
reviewed and approved this document, is delegating the authority to 
electronically sign this document to Chad R. Mizelle, who is the Senior 
Official Performing the Duties of the General Counsel for DHS, for 
purposes of publication in the Federal Register.

List of Subjects

8 CFR Part 214

    Administrative practice and procedure, Aliens, Cultural exchange 
programs, Employment, Foreign officials, Health professions, Reporting 
and recordkeeping requirements, Students.

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.

    Accordingly, DHS amends chapter I of title 8 of the Code of Federal 
Regulations as follows:

PART 214--NONIMMIGRANT CLASSES

0
1. The authority citation for part 214 continues to read as follows:

    Authority:  6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182, 
1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305 and 1372; sec. 643, 
Pub. L. 104-208, 110 Stat. 3009-708; Public Law 106-386, 114 Stat. 
1477-1480; section 141 of the Compacts of Free Association with the 
Federated States of Micronesia and the Republic of the Marshall 
Islands, and with the Government of Palau, 48 U.S.C. 1901 note and 
1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2.


0
2. Amend Sec.  214.2 by adding paragraph (h)(21) to read as follows:

[[Page 21745]]

Sec.  214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (h) * * *
    (21) Change of employers during COVID-19 National Emergency. (i) If 
an H-2A nonimmigrant who is physically present in the United States 
seeks to change employers during the COVID-19 National Emergency (which 
began on March 1, 2020), the prospective new H-2A employer may file an 
H-2A petition on Form I-129, accompanied by a valid temporary 
agricultural labor certification, requesting an extension of the 
alien's stay in the United States. To be approved under this paragraph 
(h)(21), an H-2A petition must be received no later than August 18, 
2020. If the new petition is approved, the extension of stay may be 
granted for the validity of the approved petition for a period not to 
exceed the validity period of the temporary agricultural labor 
certification. Notwithstanding paragraph (h)(2)(i)(D) of this section 
and 8 CFR 274a.12(b)(21), an alien in valid H-2A nonimmigrant status on 
March 1, 2020, or lawfully obtaining such status thereafter pursuant to 
this paragraph (h)(21), is authorized to begin employment with the new 
petitioner after the petition described in this paragraph (h)(21) is 
received by USCIS, but no earlier than the start date of employment, 
indicated in the H-2A petition. The H-2A worker is authorized to 
commence employment with the petitioner before the petition is approved 
and subject to the requirements of 8 CFR 274a.12(b)(26) for a period of 
up to 45 days beginning on the Received Date on Form I-797 (Notice of 
Action) or, if the start date of employment occurs after the I-797 
Received Date, 45 days beginning on the start date of employment 
indicated in the H-2A petition. If USCIS adjudicates the petition prior 
to the expiration of this 45-day period and denies the petition for 
extension of stay, or if the petition is withdrawn by the petitioner 
before the expiration of the 45-day period, the employment 
authorization associated with the filing of that petition under 8 CFR 
274a.12(b)(26) will automatically terminate 15 days after the date of 
the denial decision or the date on which the petition is withdrawn.
    (ii) Notwithstanding paragraphs (h)(5)(viii)(C), (h)(13)(i)(B), and 
(h)(15)(ii)(C) of this section, an H-2A petition seeking an extension 
of stay, submitted with a valid temporary agricultural labor 
certification, may be approved on the basis of paragraph (h)(21)(i) of 
this section, even if any of the aliens requested in the H-2A petition 
have exhausted the otherwise applicable 3-year maximum period of stay 
in the United States and have not thereafter been absent from the 
United States for an uninterrupted period of 3 months, or if any such 
aliens would exceed the 3-year limit as a consequence of the approval 
of the extension.
    (iii) This paragraph (h)(21) will expire on August 18, 2020.
* * * * *

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
3. The authority citation for part 274a continues to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR 
part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-
74, 129 Stat. 599.


0
4. Amend Sec.  274a.12 by adding paragraph (b)(26) to read as follows:


Sec.  274a.12  Classes of aliens authorized to accept employment.

* * * * *
    (b) * * *
    (26)(i) Pursuant to 8 CFR 214.2(h)(21) and notwithstanding 8 CFR 
214.2(h)(2)(i)(D) and paragraph (b)(21) of this section, an alien is 
authorized to be employed, but no earlier than the start date of 
employment indicated in the H-2A petition, by a new employer that has 
filed an H-2A petition naming the alien as a beneficiary and requesting 
an extension of stay for the alien, for a period not to exceed 45 days 
beginning from the ``Received Date'' on Form I-797 (Notice of Action) 
acknowledging receipt of the petition requesting an extension of stay, 
or 45 days beginning on the start date of employment if the start date 
of employment indicated in the H-2A petition occurs after the filing. 
The length of the period (up to 45 days) is to be determined by USCIS 
in its discretion. However, if USCIS adjudicates the petition prior to 
the expiration of this 45-day period and denies the petition for 
extension of stay, or if the petitioner withdraws the petition before 
the expiration of the 45-day period, the employment authorization under 
this paragraph (b)(26) will automatically terminate upon 15 days after 
the date of the denial decision or the date on which the petition is 
withdrawn.
    (ii) This paragraph (b)(26) is in effect for the period set forth 
in 8 CFR 214.2(h)(21)(iii).
* * * * *

Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S. 
Department of Homeland Security.
[FR Doc. 2020-08356 Filed 4-17-20; 8:45 am]
BILLING CODE 49111-97-P