Temporary Changes to Requirements Affecting H-2B Nonimmigrants Due to the COVID-19 National Emergency, 28843-28851 [2020-10486]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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