Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due To the COVID-19 National Emergency: Partial Extension of Certain Flexibilities, 51304-51312 [2020-18283]

Download as PDF 51304 Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Rules and Regulations (e) Denial of petition. The Director may deny a petition or parts of a petition when the petition lacks adequate justification to warrant modification or withdrawal of a guidance document, calls for action that is inconsistent with law or regulation or is beyond OGE’s statutory jurisdiction, seeks modification or withdrawal of a document that is not a guidance document, or lacks the required information set forth in paragraph (b) of this section. (f) Notification to petitioner. Following a determination that a petition will be granted or denied, OGE will issue notification of the grant or denial to the petitioner at the address provided by the petitioner in paragraph (b) of this section explaining the reason for the determination. In the event that a petition is received by electronic mail, OGE will send notification to the electronic mail address from which the petition was received. (g) Publication of petitions. In the event that OGE grants a petition under this section, OGE may publish the petition, including attachments and other supporting materials, on OGE’s website, www.oge.gov. Sensitive personal information, such as account numbers or Social Security numbers, should not be included. Petitions generally will not be edited to remove any identifying or contact information. § 2611.204 Use of rescinded, withdrawn, and modified guidance documents. OGE will not cite, use, or rely on guidance documents or portions of guidance documents that are rescinded, withdrawn, or removed through modification, except to establish historical facts or as a matter of comparison to current guidance. Upon petition or its own initiative, OGE may reinstate guidance documents or portions of guidance documents previously rescinded, withdrawn, or modified, in conformity with the procedures in this part. Subpart C—Significant Guidance Documents jbell on DSKJLSW7X2PROD with RULES § 2611.301 Designation of significant guidance documents. (a) Designation of significant guidance documents. The Director will submit proposed guidance documents to the Office of Information and Regulatory Affairs, Office of Management and Budget to determine whether the guidance document is a significant guidance document, as defined in § 2611.102, in the same fashion used to determine whether a rulemaking undertaken pursuant to 5 U.S.C. 553 is VerDate Sep<11>2014 15:44 Aug 19, 2020 Jkt 250001 significant for purposes of Executive Order 12866. (b) Compliance with applicable Executive Orders. Significant guidance documents will demonstrate compliance with the applicable requirements for regulations or rules, including significant regulatory actions, set forth in Executive Order 12866, Executive Order 13563, Executive Order 13609, Executive Order 13771, and Executive Order 13777. (c) Issuance of significant guidance documents. Significant guidance documents will be approved by the Director, or by an official who is serving as Director in an acting capacity, on a non-delegable basis. § 2611.302 Public notice and comment on significant guidance documents. (a) Public notice and comment. Except as provided in paragraph (c) of this section, proposed OGE guidance documents that have been deemed significant guidance documents will be published in the Federal Register and interested persons will be invited to provide public comment in the form of written data, views, or arguments for or against the proposed significant guidance document. The comment period on guidance documents will be open for a minimum of 30 days. OGE will also post draft significant guidance documents on its website. (b) Responses to comments. OGE will respond to major concerns raised in public comments received. Responses and comments will be posted to OGE’s website, either before or at the time that the final significant guidance documents is issued. (c) Exemption for good cause shown. The requirements of paragraph (a) of this section will not apply to any significant guidance document or categories of significant guidance documents for which OGE finds, in coordination with the Office of Management and Budget, good cause that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. Significant guidance documents that are issued without public notice and comment under this paragraph shall include the finding of good cause and a brief statement or reasons thereof. § 2611.303 Classes of documents categorically excluded. OGE has generally determined that the following classes of documents are not guidance documents defined in § 2611.102: (a) Legal advisories; (b) Informal advisory opinions and letters; PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 (c) Formal advisory opinions; and (d) Guides only directed to agency ethics officials and current Federal employees. PART 2638—EXECUTIVE BRANCH ETHICS PROGRAM 2. The authority citation for part 2638 continues to read as follows: ■ Authority: 5 U.S.C. App. 101–505; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306. 3. Revise § 2638.208 to read as follows: ■ § 2638.208 Written guidance on the executive branch ethics program. This section describes several means by which the Office of Government Ethics provides agencies, employees, and the public with written guidance regarding its legal interpretations, program requirements, and educational offerings. Normally, written guidance is published on the official website of the Office of Government Ethics, www.oge.gov. [FR Doc. 2020–16474 Filed 8–19–20; 8:45 am] BILLING CODE 6345–03–P DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 214 and 274a [CIS No. 2672–20; DHS Docket No. USCIS– 2020–0008] RIN 1615–AC55 Temporary Changes to Requirements Affecting H–2A Nonimmigrants Due To the COVID–19 National Emergency: Partial Extension of Certain Flexibilities U.S. Citizenship and Immigration Services, Department of Homeland Security (DHS). ACTION: Temporary final rule. AGENCY: As a result of continued disruptions and uncertainty to the U.S. food agriculture sector during the summer and upcoming fall agricultural season caused by the global novel Coronavirus Disease 2019 (COVID–19) public health emergency, the Department of Homeland Security, U.S. Citizenship and Immigration Services, has decided it is necessary to temporarily extend the amendments to certain regulations regarding temporary and seasonal agricultural workers, and their U.S. employers, within the H–2A nonimmigrant classification. Through this temporary final rule DHS is SUMMARY: E:\FR\FM\20AUR1.SGM 20AUR1 Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Rules and Regulations partially extending some of the provisions of the April 20, 2020, temporary final rule. Namely, the Department will continue to allow H– 2A employees whose extension of stay H–2A petitions are supported by valid temporary labor certifications issued by the Department of Labor to begin work with a new employer immediately after the extension of stay petition is received by USCIS. DHS will apply this temporary final rule to H–2A petitions requesting an extension of stay, if they were received on or after August 19, 2020, but no later than December 17, 2020. The temporary extension of these flexibilities will ensure that agricultural employers have access to the orderly and timely flow of legal foreign workers, thereby protecting the integrity of the nation’s food supply chain and decreasing possible reliance on unauthorized aliens, while at the same time encouraging agricultural employers’ use of the H–2A program, which protects the rights of U.S. and foreign workers. DATES: This final rule is effective from August 19, 2020, through August 19, 2023. Employers may request the flexibilities under this rule by filing an H–2A petition on or after August 19, 2020 and through December 17, 2020. FOR FURTHER INFORMATION CONTACT: Charles L. Nimick, Chief, Business and Foreign Workers Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Ave. NW, Suite 1100, Washington, DC 20529–2120, Telephone Number 202– 272–8377 (not a toll-free call). Individuals with hearing or speech impairments may access the telephone numbers above via TTY by calling the toll-free Federal Information Relay Service at 1–877–889–5627 (TTY/TDD). SUPPLEMENTARY INFORMATION: jbell on DSKJLSW7X2PROD with RULES Table of Contents I. Background A. Legal Framework B. Description of the H–2A Program i. DOL Temporary Labor Certification Procedures ii. DHS Petition Procedures iii. Admission and Limitations of Stay C. COVID–19 National Emergency II. Discussion A. Temporary Changes to DHS Requirements for H–2A Change of Employer Requests During the COVID– 19 National Emergency III. Statutory and Regulatory Requirements A. Administrative Procedure Act B. Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) C. Regulatory Flexibility Act VerDate Sep<11>2014 15:44 Aug 19, 2020 Jkt 250001 D. Unfunded Mandates Reform Act of 1995 E. Executive Order 13132 (Federalism) F. Executive Order 12988 (Civil Justice Reform) G. Congressional Review Act H. National Environmental Policy Act I. Signature I. Background A. Legal Framework The Secretary of Homeland Security (Secretary) has the authority to amend this regulation under section 102 of the Homeland Security Act of 2002 (HSA), Public Law 107–296, 116 Stat. 2135, 6 U.S.C. 112, and section 103(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1103(a), which authorize the Secretary to administer and enforce the immigration and nationality laws. Under section 101 of the HSA, 6 U.S.C. 111(b)(1)(F), a primary mission of the Department is to ‘‘ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland.’’ In addition, section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), provides the Secretary with authority to prescribe the terms and conditions of any alien’s admission to the United States as a nonimmigrant. The INA further requires that ‘‘[t]he question of importing any alien as [an H–2A] nonimmigrant . . . in any specific case or specific cases shall be determined by [DHS], after consultation with appropriate agencies of the Government [the U.S. Department of Labor and the U.S. Department of Agriculture], upon petition by the importing employer.’’ INA 214(c)(1), 8 U.S.C. 1184(c)(1). Section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), states that ‘‘‘an unauthorized alien’ means . . . that the alien is not at that time . . . authorized to be employed by this chapter or by the [Secretary].’’ B. Description of the H–2A Program The H–2A nonimmigrant classification applies to alien workers seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States on a temporary basis, usually lasting no longer than 1 year, for which U.S. workers are not available. INA 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a); see also 8 CFR 214.1(a)(2). As noted in the statute, not only must the alien be coming ‘‘temporarily’’ to the United States, but the agricultural labor or services that the alien is performing must also be ‘‘temporary or seasonal.’’ INA 101(a)(15)(H)(ii)(a). The regulations further define an employer’s temporary need as employment that is of a PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 51305 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). 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 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). E:\FR\FM\20AUR1.SGM 20AUR1 jbell on DSKJLSW7X2PROD with RULES 51306 Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Rules and Regulations satisfaction of the Secretary of Labor that (a) there are not sufficient U.S. workers who are able, willing, and qualified, and who will be available at the time and place needed to perform the labor or services involved in the petition, and (b) the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed. 8 U.S.C. 1188(a)(1); see also 20 CFR 655.100. To obtain a TLC from DOL, the employer must first submit an agricultural job order, within 75 to 60 calendar days prior to the start date of work, to the State Workforce Agency (SWA) that serves the state where the actual work will be performed. Once it clears the job order, the SWA will place it into intrastate clearance to initiate the recruitment of U.S. workers. 20 CFR 655.121. After review by the SWA, the employer must submit an Application for Temporary Employment Certification with DOL’s Office of Foreign Labor Certification (OFLC) no less than 45 calendar days before the start date of work. 20 CFR 655.130. OFLC will review the H–2A application and, if it accepts the application will place a copy of the job order on its electronic job registry. 20 CFR 655.144(a). OFLC will also direct the SWA to place the job order into interstate clearance, may direct the SWA to provide written notice of the job opportunity to relevant organization and physically post the job order in locations workers may gather, and may direct the employer to engage in additional recruitment. 20 CFR 655.143, 655.150, 655.154. As part of its recruitment obligations, an employer must offer the job to any recently laidoff U.S. worker(s) and contact former U.S. workers employed in occupation in the previous year. 20 CFR 655.135(g), 655.153. OFLC will grant certification if the application meets all of the requirements in the Department’s regulation, including compliance with all recruitment obligations. 20 CFR 655.161(a). Post-certification, OFLC will keep the job order posted on its electronic registry until 50 percent of the contract period has elapsed, and the SWA must keep the job order on file for the same period of time. 20 CFR 655.144, 655.150. The U.S. employer must also continue to accept referrals of all eligible U.S. workers and must offer employment to any qualified U.S. worker that applies for the job opportunity until 50 percent of the work contract period has elapsed. 20 CFR 655.135(d). VerDate Sep<11>2014 15:44 Aug 19, 2020 Jkt 250001 ii. DHS Petition Procedures After receiving a valid TLC from DOL, the employer listed on the TLC, an employer’s agent, or the association of United States agricultural producers named as a joint employer on the TLC (‘‘H–2A petitioner’’) may file the H–2A petition with the appropriate USCIS office. INA 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(2)(i), (h)(5)(i)(A). The H–2A petitioner may petition for one or more named or unnamed H–2A workers, but the total number of workers may not exceed the number of positions indicated on the TLC.2 8 CFR 214.2(h)(2)(iii) and (h)(5)(i)(B). H–2A petitioners must name the H–2A worker if the worker is in the United States or if the H–2A worker is a national of a country that is not designated as an H–2A participating country. 8 CFR 214.2(h)(2)(iii). USCIS recommends that petitioners submit a separate H–2A petition when requesting a worker(s) who is a national of a country that is not designated as an H– 2A participating country. See 8 CFR 214.2(h)(5)(i)(F); see also Identification of Foreign Countries Whose Nationals Are Eligible To Participate in the H–2A and H–2B Nonimmigrant Worker Programs, Notice, 85 FR 3067 (Jan. 17, 2020). Petitioners for such aliens must submit evidence demonstrating the factors by which the request for H–2A workers serves the U.S. national interest. 8 CFR 214.2(h)(5)(i)(F)(1)(ii). USCIS will review each petition naming a national from a country not on the list and all supporting documentation and make a determination on a case-by-case basis. A U.S. employer or U.S. agent generally may submit a new H–2A petition, with a new, valid TLC, to USCIS to request an extension of H–2A nonimmigrant status for a period of up to 1 year. 8 CFR 214.2(h)(15)(ii)(C). The H–2A petitioner must name the worker on the Form I–129, Petition for Nonimmigrant Worker,3 since the H–2A worker is in the United States and requesting an extension of stay. In the event of an emergency circumstance, 2 Note, however, that effective October 2, 2020, H–2A petitions will be limited to 25 named beneficiaries per H–2A petition. See DHS Final Rule, ‘‘U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements,’’ 85 FR 46788, 46916 (Aug. 3, 2020). 3 Effective October 2, 2020, the petitioner will submit the new Form I–129H2A, Petition for Nonimmigrant Worker: H–2A Classification. H–2A petitions will be limited to 25 named beneficiaries per H–2A petition. See DHS Final Rule, ‘‘U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements,’’ 85 FR 46788, 46916 (Aug. 3, 2020). PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 however, the petitioner may request an extension not to exceed 14 days without first having to obtain an additional approved TLC from DOL if certain criteria are met, by simply submitting the new H–2A petition. See 8 CFR 214.2(h)(5)(x). 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 EVerify program.4 8 CFR 214.2(h)(2)(i)(D) and 8 CFR 274a.12(b)(21). In such a case, the H–2A worker’s employment authorization continues for a period not to exceed 120 days beginning on the ‘‘Received Date’’ on the Form I–797, Notice of Action, which acknowledges the receipt of the new H–2A extension petition. With the exception of the new employer and worksite, the employment authorization extension remains subject to the same conditions and limitations indicated on the initial H–2A petition. The continued employment authorization extension will terminate automatically if the new employer fails to remain a participant in good standing in the E-Verify program, as determined by USCIS in its discretion. 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. 4 See ‘‘Changes to Requirements Affecting H–2A Nonimmigrants,’’ 73 FR 76891, 76905 (Dec. 8, 2008). E:\FR\FM\20AUR1.SGM 20AUR1 Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Rules and Regulations An alien’s H–2A status is limited by the validity dates on the approved H–2A petition, which must be less than 1 year. 8 CFR 214.2(h)(5)(viii)(C). H–2A workers may be admitted into the United States for a period of up to 1 week prior to the beginning validity date listed on the approved H–2A petition so that they may travel to their worksites, but may not begin work until the beginning validity date. H–2A workers may also remain in the United States 30 days beyond the expiration date of the approved H–2A petition to prepare for departure or to seek an extension or change of nonimmigrant status. 8 CFR 214.2(h)(5)(viii)(B). H–2A workers do not have employment authorization outside of the validity period listed on the approved petition unless otherwise authorized. 8 CFR 214.2(h)(5)(viii)(B). The maximum period of stay for an alien in H–2A classification is 3 years. 8 CFR 214.2(h)(5)(viii)(C). Once an alien has held H–2A nonimmigrant status for a total of 3 years, the alien must depart and remain outside of the United States for an uninterrupted period of 3 months before seeking readmission as an H–2A nonimmigrant.5 8 CFR 214.2(h)(5)(viii)(C). jbell on DSKJLSW7X2PROD with RULES C. COVID–19 National Emergency On January 31, 2020, the Secretary of the U.S. Department of Health and Human Services (HHS) declared a public health emergency dating back to January 27, 2020, under section 319 of the Public Health Service Act (42 U.S.C. 247d), in response to the Coronavirus Disease 2019 (COVID–19).6 On March 13, 2020, President Trump declared a National Emergency concerning the COVID–19 outbreak to control the spread of the virus in the United States.7 The President’s proclamation declared that the emergency began on March 1, 2020. In response to the Mexican government’s call to increase social 5 But see, 8 CFR 214.2(h)(21)(ii) expiring on August 18, 2020, which allows USCIS to approve an H–2A petition seeking an extension of stay, submitted with a valid temporary agricultural labor certification, even if any of the aliens requested in the H–2A petition have exhausted the otherwise applicable 3-year maximum period of stay in the United States and have not thereafter been absent from the United States for an uninterrupted period of 3 months, or if any such aliens would exceed the 3-year limit as a consequence of the approval of the extension. 6 HHS, Determination of Public Health Emergency, 85 FR 7316 (Feb. 7, 2020). 7 Proclamation 9994 of March 13, 2020, Declaring a National Emergency Concerning the Coronavirus Disease (COVID–19) Outbreak, 85 FR 15337 (Mar. 18, 2020). See also https://www.whitehouse.gov/ presidential-actions/proclamation-declaringnational-emergency-concerning-novel-coronavirusdisease-covid-19-outbreak/ (last visited Aug. 16, 2020). VerDate Sep<11>2014 15:44 Aug 19, 2020 Jkt 250001 distancing, DOS announced the temporary suspension of routine immigrant and nonimmigrant visa services processed at the U.S. Embassy in Mexico City and all U.S. consulates in Mexico beginning on March 18, 2020.8 DOS expanded the temporary suspension of routine immigrant and nonimmigrant visa services to all U.S. Embassies and Consulates on March 20, 2020.9 DOS designated H–2A visas as mission critical, however, and announced that U.S. Embassies and Consulates have continued to process H–2A cases to the extent possible and implemented a change in its procedures, to include interview waivers.10 In addition, DHS has identified occupations in food and agriculture as critical to the U.S. public health and safety and economy.11 To address disruptions caused by COVID–19 to the U.S. food agriculture sector during the summer growing season, DHS temporarily amended its H–2A regulations to provide certain flexibilities to temporary and seasonal agricultural workers and their U.S. employers. On April 20, 2020, DHS issued a temporary final rule (the ‘‘April 20 TFR’’), Temporary Changes to Requirements Affecting H–2A Nonimmigrants Due to the COVID–19 National Emergency, which allowed H– 2A workers to begin work with new H– 2A employers, who have valid TLCs issued by DOL, for a period not to exceed 45 days immediately after the H– 2A extension of stay petition is received by USCIS. The April 20 TFR also allowed petitioners to employ H–2A workers seeking an extension of stay beyond the 3-year total limitation of stay. In the April 20 TFR, DHS indicated that it would issue a new temporary final rule to extend its termination date in the event DHS determined that 8 DOS, Status of U.S. Consular Operations in Mexico in Light of COVID–19, https:// mx.usembassy.gov/status-of-u-s-consularoperations-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-h2visas.html (last updated Mar. 26, 2020). 11 DHS, Memorandum on Identification of Essential Critical Infrastructure Workers During COVID–19 Response, https://www.cisa.gov/sites/ default/files/publications/CISA-Guidance-onEssential-Critical-Infrastructure-Workers-1-20508c.pdf (Mar. 19, 2020). DHS, Advisory Memorandum on Identification of Essential Critical Infrastructure Workers During COVID_10 Response, https://www.cisa.gov/sites/default/files/ publications/Version_3.1_CISA_Guidance_on_ Essential_Critical_Infrastructure_Workers_0.pdf (May 19, 2020). PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 51307 economic circumstances related to our food supply demonstrated a continued need for these temporary changes to the regulatory requirements involving H–2A agricultural employers and workers. The April 20 TFR has been effective from April 20, 2020 through August 18, 2020. 85 FR 21739. As discussed in more detail below, due to the continuing health and economic crisis caused by COVID–19, DHS has determined that the public health emergency and economic circumstances resulting from COVID 19 are necessitating the continuation of some of the flexibilities implemented through the April 20 TFR, namely the ability of H–2A workers to change employers and begin work before USCIS approves the new H–2A petition. Therefore, DHS is issuing this TFR to extend those flexibilities for an additional 120 days, i.e. through December 17, 2020. This timeframe differs from the most recent renewal of a determination of the public health emergency 12 because DHS believes that the COVID–19 pandemic may have a more lasting impact on the U.S. agricultural food sector beyond the 90 days. As a result, DHS will continue to monitor the evolving health crisis caused by COVID–19 and may address it in future rules. II. Discussion A. Temporary Changes to DHS Requirements for H–2A Change of Employer Requests During the COVID– 19 National Emergency DHS is committed to both protecting U.S. workers and to helping U.S. businesses receive the legal and workauthorized labor for temporary or seasonal agricultural labor or services that they need. On July 23, 2020, HHS Secretary Alex Azar signed a renewal of determination, effective July 25, that extends the current COVID–19 public health emergency by up to 90 days.13 This determination that a public health emergency exists and has existed since January 27, 2020, nationwide, was previously renewed on April 21, 2020. The renewal of determination signals that the United States is facing continued consequences of the COVID– 19 National Emergency, which corresponds to the volume of COVID–19 cases reported by the U.S. Centers for 12 See HHS Renewal of Determination That A Public Health Emergency Exists, https:// www.phe.gov/emergency/news/healthactions/phe/ Pages/covid19-23June2020.aspx (Jul. 23, 2020). 13 See HHS Renewal of Determination That A Public Health Emergency Exists, https:// www.phe.gov/emergency/news/healthactions/phe/ Pages/covid19-23June2020.aspx (Jul. 23, 2020). E:\FR\FM\20AUR1.SGM 20AUR1 51308 Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES Disease Control and Prevention— 5,228,817 as of August 14, 2020. The COVID–19 pandemic continues to cause disruptions in the domestic food supply chain.14 As of July 31, 2020, USDA’s Economic Research Service reported that ‘‘[t]he coronavirus (COVID–19) pandemic has widely impacted the U.S. economy, including the farm sector and farm households. Farm businesses have experienced disruptions to production due to lowered availability of labor and other inputs . . . [r]eductions in available labor affect crop and livestock production, as well as processing capacity for crop and animal products that leave the farm. Reduced processing capacity results in lower consumption of certain agricultural commodities.’’ 15 The H–2A program has been crucial to assuring the continued viability of the nation’s food supply chain.16 Notwithstanding the availability of the H–2A program, U.S. farmers are continuing to experience labor shortages as fewer workers are able to get to the United States. Media outlets in the United States have continued to report on these shortages. For example, a farmer in North Dakota who typically hires the same eight farmhands from South Africa to tend his crops was short half of his crew this year due to COVID– 19.17 As the public health emergency and economic consequences of it continue, DHS has determined it is necessary to issue a new temporary final rule to extend certain flexibilities implemented through the April 20 TFR because DHS has determined that there is a continued need for them. This TFR extends certain amendments made by the April 20 TFR, to help U.S. agricultural employers reduce disruptions in lawful agricultural-related employment, protect the nation’s food supply chain, and lessen impacts from the COVID–19 pandemic and related economic effects, consistent with the declaration of the National Emergency. Due to the 14 See, e.g. Food Security and COVID–19, https:// www.worldbank.org/en/topic/agriculture/brief/ food-security-and-covid-19 (last visited Aug. 14, 2020). 15 ‘‘Farms and Farm Households During the COVID–19 Pandemic,’’ https://www.ers.usda.gov/ covid-19/farms-and-farm-households/ (last visited Aug. 15, 2020). 16 The Washington Post, ‘‘How one visa program keeps America fed,’’ https:// www.washingtonpost.com/video/national/how-onevisa-program-keeps-america-fed/2020/06/17/ ac3be98d-1ed1-4d4c-8dc7-85cbbeecb5fc_video.html (last visited Aug. 15, 2020). 17 Bloomberg, ‘‘Global Food Output Runs Into Migrant Worker Woes,’’ Aug. 7, 2020, https:// www.bloomberg.com/news/newsletters/2020-08-07/ supply-chains-latest-migrant-worker-shortages-hitfood-output (last visited Aug. 15, 2020). VerDate Sep<11>2014 15:44 Aug 19, 2020 Jkt 250001 continued travel restrictions and visa processing limitations as a result of actions taken to mitigate the spread of COVID–19, as well as the possibility that some H–2A workers may become unavailable due to COVID–19 related illness,18 U.S. employers who have approved H–2A petitions or who will be filing H–2A petitions might not receive all of the workers requested to fill the temporary positions, and similarly, employers that currently employ H–2A workers may lose the services of workers due to COVID–19 related illness. Under this temporary final rule, any H–2A petitioner with a valid TLC, i.e. one who has already tested the U.S. labor market and was unable to find able, willing, and qualified U.S. workers to perform temporary or seasonal agricultural services or labor, can start employing H–2A workers who are currently in the United States and in valid H–2A status and who have been complying with the terms of their H–2A status immediately after receiving notice that USCIS has received the H–2A petition, but no earlier than the start date of employment listed on the petition. This will allow H–2A workers to move to a new employer to meet urgent temporary or seasonal agricultural needs before USCIS approves the new employer’s petition. DHS believes this continued flexibility will help address the challenges faced by U.S. employers due to COVID–19 as the busy fall harvest season approaches. See new 8 CFR 214.2(h)(21) and 8 CFR 274a.12(b)(26). However, nothing in this TFR changes the existing DOL requirements for obtaining a TLC which an employer must comply with before filing an H–2A petition with USCIS. Unlike the permanent regulation at 8 CFR 274a.12(b)(21), which allows the H–2A worker(s) to immediately work for a new H–2A employer in good standing in E-Verify upon the filing of an H–2A extension of stay petition, this TFR, like the April 20 TFR, allows the H–2A worker(s) to immediately work for any new H–2A employer, but no earlier than the start date of employment listed on the H–2A petition, upon the filing of an H–2A extension of stay petition during the COVID–19 National Emergency only. 18 Patch, ‘‘Newsom Opens Hotel Rooms For Farmworkers Exposed To Coronavirus,’’ Jul. 29, 2020, https://patch.com/california/santamonica/s/ h6xix/newsom-opens-hotel-rooms-farmworkersexposed-coronavirus (last visited Aug. 15, 2020). U.S. News & World Report, ‘‘Nearly 190 Farmworkers Contract Virus in Southern California,’’ Jul. 6, 2020, https://www.usnews.com/ news/best-states/california/articles/2020-07-06/ nearly-190-farmworkers-contract-virus-in-southerncalifornia (last visited Aug. 15, 2020). PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 The Department remains committed to promoting the use of E-Verify to ensure a legal workforce. E-Verify is free, user friendly, and over 98% accurate.19 Notwithstanding the numerous benefits E-Verify offers to ensure all employers only employ a legal workforce, the Department has determined that it is necessary to temporarily amend its regulations affecting H–2A workers to mitigate the impact on the agricultural industry due to COVID–19. These H–2A petitioners will have completed a test of the U.S. labor market, and DOL will have determined that there are no qualified U.S. workers available to fill these temporary positions. The Department believes that granting H–2A workers the option to begin employment with any new H–2A petitioner as soon as the H– 2A petition is received by USCIS will also benefit U.S. agricultural employers and help provide stability to the U.S. food supply chain during the unique challenges the country faces because of COVID–19. Upon further consideration, DHS has determined that a need exists to strike a balance between providing stability to the U.S. food supply chain, addressing the urgent needs of U.S. agricultural producers, and ensuring that those aliens admitted into the United States as temporary workers in the H–2A nonimmigrant classification in fact remain in this country on a temporary basis, as required by the Act. 8 U.S.C. 1101(a)(15)(H)(ii)(a). Therefore, DHS is not extending the April 20 TFR temporary exceptions to its regulations at 8 CFR 214.2(h)(5)(viii)(C), (h)(13)(i)(B), and (h)(15)(ii)(C) that had allowed aliens to extend their H–2A period of stay beyond the 3-year limitation, without first requiring them to remain outside of the United States for an uninterrupted period of 3 months. Consequently, USCIS will apply the 3year limit reflected in permanent DHS regulations to any H–2A petition that is received on or after August 19, 2020. These permanent regulations specifically provide, with certain very narrow exceptions, that an H–2A worker’s total period of stay in H–2 classification may not exceed 3 years, before he or she must depart from the United States for a minimum of 3 months. 8 CFR 214.2(h)(15)(ii)(C). Petitioners seeking H–2A temporary workers who fill a permanent need or who will remain in the United States permanently, must comply with the 19 See https://www.e-verify.gov/about-e-verify/everify-data/e-verify-performance (last updated Jul. 15, 2020). E:\FR\FM\20AUR1.SGM 20AUR1 Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Rules and Regulations requirements applicable to permanent positions. See, e.g., 8 U.S.C. 1153(b)(3). To be approved under this final rule, an H–2A petition for an extension of stay with a new employer must have been received on or after August 19, 2020, but no later than the last day that this final rule is in effect (i.e., December 17, 2020). If the new petition is approved, the H–2A worker’s extension of stay may be granted for the validity of the approved petition, and for a period not to exceed the validity period of the TLC. In addition, the temporary provisions being extended by this rule are the same as the April 20 TFR provisions but differ from the permanent regulatory provisions in that they grant employment authorization for 45 days from the date of the receipt notice. The 45-day employment authorization associated with the filed petition will automatically terminate 15 days after the date of denial or withdrawal if USCIS denies the petition, or if the petition is withdrawn. To provide greater certainty to the market for the duration of the remainder of the summer and fall agricultural seasons, the changes made by this final rule will automatically terminate on December 17, 2020. DHS will continue to monitor the rapidly evolving situation surrounding the COVID–19 pandemic and associated economic consequences and will determine whether continued flexibilities are needed beyond the 120 days. USCIS will continue to adjudicate H–2A petitions received no later than December 17, 2020 under the provisions of this rule. Any H–2A petition received after the termination of this final rule will be adjudicated in accordance with the existing permanent provisions. See 8 CFR 214.2(h)(2)(i)(D) and 274a.12(b)(21). III. Statutory and Regulatory Requirements A. Administrative Procedure Act This rule is being issued without prior notice and opportunity to comment and with an immediate effective date pursuant to sections 553(b) and (d) of the Administrative Procedure Act (APA). 5 U.S.C. 551 et seq. jbell on DSKJLSW7X2PROD with RULES 1. Good Cause To Forgo Notice and Comment Rulemaking 15:44 Aug 19, 2020 Jkt 250001 20 Determination of Public Health Emergency. 9994. 22 Status of U.S. Consular Operations in Mexico in Light of COVID–19. 23 Suspension of Routine Visa Services. 24 See HHS Renewal of Determination That A Public Health Emergency Exists, https:// www.phe.gov/emergency/news/healthactions/phe/ Pages/covid19-23June2020.aspx (Jul. 23, 2020). 25 Important Announcement on H2 Visas. 26 DHS Memorandum on Identification of Essential Critical Infrastructure Workers During COVID–19 Response. DHS Advisory Memorandum 21 Proclamation 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- VerDate Sep<11>2014 comment rulemaking ‘‘excuses notice and comment in emergency situations, or where delay could result in serious harm.’’ Jifry v. FAA, 370 F.3d 1174, 1179 (DC Cir. 2004). Although the good cause exception is ‘‘narrowly construed and only reluctantly countenanced,’’ Tenn. Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (DC Cir. 1992), the Department has appropriately invoked the exception in this case, for the reasons set forth below. As also discussed earlier in this preamble, on January 31, 2020, the Secretary of Health and Human Services declared a public health emergency, dating back to January 27, 2020, under section 319 of the Public Health Service Actin response to COVID–19.20 On March 13, 2020, President Trump declared a National Emergency concerning the COVID–19 outbreak, dated back to March 1, 2020, to control the spread of the virus in the United States.21 In response to the Mexican government’s call to increase social distancing in that country, DOS announced the temporary suspension of routine immigrant and nonimmigrant visa services processed at the U.S. Embassy in Mexico City and all U.S. consulates in Mexico beginning on March 18, 2020.22 DOS expanded the temporary suspension of routine immigrant and nonimmigrant visa services at all U.S. Embassies and Consulates on March 20, 2020.23 On July 23, 2020, the U.S. Department of Health and Human Services (HHS) Secretary Alex Azar signed a renewal of determination, effective July 25, that extends the current COVID–19 public health emergency by up to 90 days.24 This determination that a public health emergency exists and has existed since January 27, 2020, nationwide, was previously renewed on April 21, 2020. DOS designated H–2A visas as mission critical, and announced that U.S. Embassies and Consulates will continue to process H–2 cases to the extent possible and implemented a change in its procedures, to include interview waivers.25 In addition, DHS identified occupations in food and agriculture as critical to the U.S. public health and safety and economy.26 Due to PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 51309 extended travel restrictions, the limited resumption of routine visa services, as well as the possibility that some U.S. and H–2A workers may become unavailable due to illness related to the spread of COVID–19, U.S. employers who have approved temporary agricultural labor certifications and/or who will be filing H–2A petitions might not receive, or be able to continuously employ, all of the workers requested to fill all of their DHS-approved temporary or seasonal agricultural positions. Due to these anticipated labor shortages, these employers may continue to experience adverse economic impacts to their agricultural operations. Finally, COVID–19 continues to cause disruptions in domestic food supply chains which has led to food insecurity on a global level.27 To partially address these concerns, DHS is acting expeditiously to put in place rules that will facilitate the continued employment of H–2A workers already present in the United States. This action will reduce labor disruptions that could affect business operations of U.S. employers for the upcoming laborintensive fall harvest, and continue to support the critical U.S. food supply network. Courts have found ‘‘good cause’’ under the APA when an agency is moving expeditiously to avoid significant economic harm to a program, program users, or an industry. Courts have held that an agency may use the good-cause exception to address ‘‘a serious threat to the financial stability of [a government] benefit program,’’ Nat’l Fed’n of Fed. Emps. v. Devine, 671 F.2d 607, 611 (DC Cir. 1982), or to avoid ‘‘economic harm and disruption’’ to a given industry, which would likely result in higher consumer prices, Am. Fed’n of Gov’t Emps. v. Block, 655 F.2d 1153, 1156 (DC Cir. 1981). Consistent with the above authorities, the Department has bypassed notice and comment to facilitate the employment of H–2A workers already in the United States, and prevent potential economic harms to H–2A agricultural employers on Identification of Essential Critical Infrastructure Workers During COVID_10 Response. 27 See, e.g. Food Security and COVID–19, https:// www.worldbank.org/en/topic/agriculture/brief/ food-security-and-covid-19 (last visited Aug. 15, 2020). See also, ‘‘Farms and Farm Households During the COVID–19 Pandemic’’ https:// www.ers.usda.gov/covid-19/farms-and-farmhouseholds/ (last visited Aug. 15, 2020) indicating that ‘‘Farm businesses have experienced disruptions to production due to lowered availability of labor and other inputs . . . [r]eductions in available labor affect crop and livestock production, as well as processing capacity for crop and animal products that leave the farm. Reduced processing capacity results in lower consumption of certain agricultural commodities.’’ E:\FR\FM\20AUR1.SGM 20AUR1 51310 Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Rules and Regulations 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. jbell on DSKJLSW7X2PROD with RULES 2. Good Cause To Proceed With an Immediate Effective Date The APA also authorizes agencies to make a rule effective immediately, upon a showing of good cause, instead of imposing a 30-day delay. 5 U.S.C. 553(d)(3). The good-cause exception to the 30-day effective date requirement is easier to meet than the good-cause exception for forgoing notice and comment rulemaking. Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992); Am. Fed’n of Gov’t Emps., AFL–CIO v. Block, 655 F.2d 1153, 1156 (DC Cir. 1981); U.S. Steel Corp. v. EPA, 605 F.2d 283, 289–90 (7th Cir. 1979). An agency can show good cause for eliminating the 30-day delayed effective date when it demonstrates urgent conditions the rule seeks to correct or unavoidable time limitations. U.S. Steel Corp., 605 F.2d at 290; United States v. Gavrilovic, 511 F.2d 1099, 1104 (8th Cir. 1977). For the same reasons set forth above, we also conclude that the Department has good cause to dispense with the 30-day effective date requirement given that this rule is necessary to prevent serious economic harms to U.S. employers in the agricultural industry caused by unavailability of workers due to COVID–19, and to ensure food stability for the American people. B. Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) Executive Orders (E.O.) 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting VerDate Sep<11>2014 15:44 Aug 19, 2020 Jkt 250001 flexibility. This rule is designated a significant regulatory action under E.O. 12866. Accordingly, the Office of Management and Budget (OMB) has reviewed this regulation. DHS, however, is proceeding under the emergency provision of Executive Order 12866 Section 6(a)(3)(D) based on the need to move expeditiously during the current public health emergency to secure labor for our food supply. This rule will help U.S. employers fill critically necessary agricultural job openings, protect their economic investments in their agricultural operations, and contribute to U.S. food security. In addition, it will benefit H– 2A workers already in the United States by making it easier for employers to hire them. As this rule helps fill critical labor needs for agricultural employers, DHS believes this rule will help ensure a continual food supply chain in the United States. C. Regulatory Flexibility Act The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), imposes certain requirements on Federal agency rules that are subject to the notice and comment requirements of the APA. See 5 U.S.C. 603(a), 604(a). This final rule is exempt from notice and comment requirements for the reasons stated above in Part III.A. Therefore, the requirements of the RFA applicable to final rules, 5 U.S.C. 604, do not apply to this final rule. Accordingly, the Department is not required to either certify that the final rule would not have a significant economic impact on a substantial number of small entities or conduct a regulatory flexibility analysis. D. Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995, Public Law 104–4, 2 U.S.C. 1501, et seq. (UMRA), is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed rule, or final rule for which the agency published a proposed rule that includes any Federal mandate that may result in $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector. 2 U.S.C. 1532. This rule does not contain such a mandate. The requirements of Title II of UMRA, therefore, do not apply, and DHS has not prepared a statement under UMRA. PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 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 60day 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 E:\FR\FM\20AUR1.SGM 20AUR1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Rules and Regulations each of the following three conditions: (1) The entire action clearly fits within one or more of the categorical exclusions; (2) the action is not a piece of a larger action; and (3) no extraordinary circumstances exist that create the potential for a significant environmental effect. Instruction Manual section V.B(2)(a)–(c). This rule temporarily amends regulations governing the H–2A nonimmigrant visa program to facilitate the continued employment of H–2A nonimmigrants in the United States by allowing them to change employers in the United States and begin working in the same visa classification for a period not to exceed 45 days before the nonimmigrant visa petition is approved, due to the National Emergency caused by the COVID–19 global pandemic. This rule does not change the number of H–2A workers that may be employed by U.S. employers as there is not an established statutory limit. It also does not change rules for where H–2A nonimmigrants may be employed; only employers with approved temporary labor certifications for workers to perform temporary or seasonal agricultural work may be allowed to employ H–2A workers under these temporary provisions. Generally, DHS believes NEPA does not apply to a rule intended to make it easier for H– 2A employers to hire workers who are already in the United States in addition to, or instead of, also hiring H–2A workers from abroad because any attempt to analyze its potential impacts would be largely speculative, if not completely so. DHS cannot reasonably estimate how many petitions will be filed under these temporary provisions, and therefore how many H–2A workers already in the United States will be employed by different employers, as opposed to how many petitions would have been filed for H–2A workers employed under normal circumstances. DHS has no reason to believe that the temporary amendments to H–2A regulations would change the environmental effect, if any, of the existing regulations. Therefore, DHS has determined that even if NEPA were to apply to this action, this rule clearly fits within categorical exclusion A3(d) in the Instruction Manual, which provides an exclusion for ‘‘promulgation of rules . . . that amend an existing regulation without changing its environmental effect.’’ This rule maintains the current human environment by helping to prevent irreparable harm to certain U.S. businesses and to prevent significant adverse effects on the human environment that would likely result VerDate Sep<11>2014 15:44 Aug 19, 2020 Jkt 250001 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 1. The authority citation for part 214 continues to read as follows: ■ Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301–1305 and 1372; sec. 643, Pub. L. 104–208, 110 Stat. 3009–708; Pub. L. 106–386, 114 Stat. 1477–1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 115–218. 2. Amend § 214.2 by adding paragraph (h)(21) to read as follows: ■ § 214.2 Special requirements for admission, extension, and maintenance of status. * * * * (h) * * * (21) Change of employers during COVID–19 National Emergency. (i) If an H–2A nonimmigrant who is physically present in the United States seeks to change employers during the COVID–19 National Emergency, the prospective 51311 new H–2A employer may file an H–2A petition on Form I–129 or Form I– 129H2A, accompanied by a valid temporary agricultural labor certification, requesting an extension of the alien’s stay in the United States. To be approved under this paragraph (h)(21), an H–2A petition must be received on or after August 19, 2020 but no later than December 17, 2020. If the new petition is approved, the extension of stay may be granted for the validity of the approved petition for a period not to exceed the validity period of the temporary agricultural labor certification. Notwithstanding paragraph (h)(2)(i)(D) of this section and 8 CFR 274a.12(b)(21), an alien in valid H–2A nonimmigrant status on August 19, 2020, or lawfully obtaining such status thereafter pursuant to this paragraph (h)(21), is authorized to begin employment with the new petitioner after the petition described in this paragraph (h)(21) is received by USCIS, but no earlier than the start date of employment, indicated in the H–2A petition. The H–2A worker is authorized to commence employment with the petitioner before the petition is approved and subject to the requirements of 8 CFR 274a.12(b)(26) for a period of up to 45 days beginning on the Received Date on Form I–797 (Notice of Action) or, if the start date of employment occurs after the I–797 Received Date, 45 days beginning on the start date of employment indicated in the H–2A petition. If USCIS adjudicates the petition prior to the expiration of this 45-day period and denies the petition for extension of stay, or if the petition is withdrawn by the petitioner before the expiration of the 45-day period, the employment authorization associated with the filing of that petition under 8 CFR 274a.12(b)(26) will automatically terminate 15 days after the date of the denial decision or the date on which the petition is withdrawn. (ii) Authorization to initiate employment changes pursuant to this paragraph (h)(21) begins at 12 a.m. on August 19, 2020, and ends at the end of December 17, 2020. * * * * * PART 274a—CONTROL OF EMPLOYMENT OF ALIENS * PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 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. E:\FR\FM\20AUR1.SGM 20AUR1 51312 Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Rules and Regulations 4. Amend § 274a.12 by adding paragraph (b)(26) to read as follows: ACTION: ■ * * * * * (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 45day period, the employment authorization under this paragraph (b)(26) will automatically terminate upon 15 days after the date of the denial decision or the date on which the petition is withdrawn. (ii) Authorization to initiate employment changes pursuant to 8 CFR 214.2(h)(21) and paragraph (b)(26)(i) of this section begins at 12 a.m. on August 19, 2020, and ends at the end of December 17, 2020. * * * * * SUPPLEMENTARY INFORMATION: Chad R. Mizelle, Senior Official Performing the Duties of the General Counsel, U.S. Department of Homeland Security. I. Policy Objectives [FR Doc. 2020–18283 Filed 8–18–20; 8:45 am] BILLING CODE 9111–97–P FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Parts 303 and 308 RIN 3064–AF19 jbell on DSKJLSW7X2PROD with RULES Section 19 of the Federal Deposit Insurance Act requires persons convicted of certain criminal offenses to obtain prior written consent before participating in the conduct of the affairs of any depository institution. The Federal Deposit Insurance Corporation (FDIC) is revising its existing regulations relating to section 19 to revise the FDIC’s procedures and standards relating to applications for the FDIC’s written consent, and to incorporate and revise the FDIC’s existing Statement of Policy for Section 19 of the Federal Deposit Insurance Act (SOP). Incorporating the SOP into the FDIC’s regulations will make application of the SOP more transparent, increase certainty concerning the FDIC’s application process, afford regulatory relief, and help both insured depository institutions and affected individuals to understand the impact of section 19 and to potentially seek relief from it. The FDIC’s existing SOP will be rescinded on the date this final rule (rule) becomes effective. DATES: This rule is effective September 21, 2020. FOR FURTHER INFORMATION CONTACT: Timothy Schuett, Review Examiner (763) 614–9473; Brian Zeller, Review Examiner (571) 345–8170; or Larisa Collado, Section Chief (202) 898–8509, lcollado@fdic.gov, in the Division of Risk Management Supervision; or Graham Rehrig, Senior Attorney, (202) 898–3829; John Dorsey, Acting Supervisory Counsel, (202) 898–3807; Anne DeSimone, Deputy Regional Counsel, (781) 794–5541; or Andrea Winkler, Acting Assistant General Counsel, (202) 898–3727, in the Legal Division. SUMMARY: § 274a.12 Classes of aliens authorized to accept employment. Incorporation of Existing Statement of Policy Regarding Requests for Participation in the Affairs of an Insured Depository Institution by Convicted Individuals Federal Deposit Insurance Corporation. Final rule. The policy objective of the rule is to clarify how the FDIC interprets and applies section 19 of the Federal Deposit Insurance Act (section 19),1 clarify the application process for insured depository institutions and individuals who seek relief from section 19, and expand the scope of relief available for certain offenses. The FDIC SOP provides the public with guidance relating to section 19 and the FDIC’s application of this statute. The current SOP, with modifications over time, has been published and a resource for the public for over twenty years. However, the terms and procedures outlined in the SOP have not been adopted as formal AGENCY: VerDate Sep<11>2014 15:44 Aug 19, 2020 Jkt 250001 regulations by the FDIC. To remove potential ambiguities about the FDIC’s approach to section 19 or the application process, the rule incorporates much of the current SOP, while adopting certain changes suggested by commenters. II. Background and Public Comments Section 19 prohibits, without the prior written consent of the FDIC, the participation in banking by any person who has been convicted of a crime of dishonesty or breach of trust or money laundering, or who has agreed to enter into a pretrial diversion or similar program in connection with the prosecution for such an offense. Further, this law forbids an insured depository institution (IDI) from permitting such a person to engage in any conduct or to continue any relationship prohibited by section 19. Section 19 also imposes a ten-year ban for a person convicted of certain crimes enumerated in Title 18 of the United States Code, which can be removed only upon a motion by the FDIC and approval by the sentencing court. On December 16, 2019, the FDIC published a notice of proposed rulemaking (proposal) to incorporate the SOP into the FDIC’s existing Procedure and Rules of Practice.2 In the proposal, the FDIC provided a history of the SOP from its issuance in December 1998, through clarifications in 2007 and 2011, modification in 2012, and through its most-recent revision in August 2018.3 The FDIC proposed to incorporate the current provisions of the SOP into its rules and procedures in order to provide greater transparency into the FDIC’s interpretation and application of section 19, to provide greater certainty concerning the FDIC’s application process, and to aid both IDIs and individuals who may be affected by section 19 to understand its impact and potentially seek relief from its provisions. The FDIC proposed to rescind such sections of 12 CFR 308, subpart M, that would be duplicative of the changes proposed for part 303, subpart L, and to revise the remaining sections to ensure conformity for any request for a hearing when an application under section 19 has been denied. The FDIC, in the proposal, requested comments on all aspects of its approach to section 19. The FDIC also requested comments, in particular, on the following topics: 2 See 1 12 PO 00000 U.S.C. 1829. Frm 00012 Fmt 4700 3 See Sfmt 4700 E:\FR\FM\20AUR1.SGM 84 FR 68353. 84 FR 68353–54. 20AUR1

Agencies

[Federal Register Volume 85, Number 162 (Thursday, August 20, 2020)]
[Rules and Regulations]
[Pages 51304-51312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18283]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

[CIS No. 2672-20; DHS Docket No. USCIS-2020-0008]
RIN 1615-AC55


Temporary Changes to Requirements Affecting H-2A Nonimmigrants 
Due To the COVID-19 National Emergency: Partial Extension of Certain 
Flexibilities

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security (DHS).

ACTION: Temporary final rule.

-----------------------------------------------------------------------

SUMMARY: As a result of continued disruptions and uncertainty to the 
U.S. food agriculture sector during the summer and upcoming fall 
agricultural season caused by the global novel Coronavirus Disease 2019 
(COVID-19) public health emergency, the Department of Homeland 
Security, U.S. Citizenship and Immigration Services, has decided it is 
necessary to temporarily extend the amendments to certain regulations 
regarding temporary and seasonal agricultural workers, and their U.S. 
employers, within the H-2A nonimmigrant classification. Through this 
temporary final rule DHS is

[[Page 51305]]

partially extending some of the provisions of the April 20, 2020, 
temporary final rule. Namely, the Department will continue to allow H-
2A employees whose extension of stay H-2A petitions are supported by 
valid temporary labor certifications issued by the Department of Labor 
to begin work with a new employer immediately after the extension of 
stay petition is received by USCIS. DHS will apply this temporary final 
rule to H-2A petitions requesting an extension of stay, if they were 
received on or after August 19, 2020, but no later than December 17, 
2020. The temporary extension of these flexibilities will ensure that 
agricultural employers have access to the orderly and timely flow of 
legal foreign workers, thereby protecting the integrity of the nation's 
food supply chain and decreasing possible reliance on unauthorized 
aliens, while at the same time encouraging agricultural employers' use 
of the H-2A program, which protects the rights of U.S. and foreign 
workers.

DATES: This final rule is effective from August 19, 2020, through 
August 19, 2023. Employers may request the flexibilities under this 
rule by filing an H-2A petition on or after August 19, 2020 and through 
December 17, 2020.

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

SUPPLEMENTARY INFORMATION:

Table of Contents

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

I. Background

A. Legal Framework

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

B. Description of the H-2A Program

    The H-2A nonimmigrant classification applies to alien workers 
seeking to perform agricultural labor or services of a temporary or 
seasonal nature in the United States on a temporary basis, usually 
lasting no longer than 1 year, for which U.S. workers are not 
available. INA 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a); 
see also 8 CFR 214.1(a)(2). As noted in the statute, not only must the 
alien be coming ``temporarily'' to the United States, but the 
agricultural labor or services that the alien is performing must also 
be ``temporary or seasonal.'' INA 101(a)(15)(H)(ii)(a). The regulations 
further define an employer's temporary need as employment that is of a 
temporary nature where the employer's need to fill the position with a 
temporary worker will, except in extraordinary circumstances, last no 
longer than 1 year. 8 CFR 214.2(h)(5)(iv)(A). An employer's seasonal 
need is defined as employment that is tied to a certain time of year by 
an event or pattern, such as a short annual growing cycle or a specific 
aspect of a longer cycle, and requires labor levels above those 
necessary for ongoing operations. Id.
    An employer, agent, or association (``H-2A petitioner'') must 
submit a petition to U.S. Citizenship and Immigration Services (USCIS) 
to obtain authorization of temporary workers as H-2A nonimmigrants 
before the employer may begin employing H-2A workers. INA 214(c)(1), 8 
U.S.C. 1184(c)(1); 8 CFR 214.2(h)(2)(i). DHS must approve this petition 
before the alien can be considered eligible for H-2A status or a visa. 
To qualify for H-2A classification, the H-2A petitioner must, among 
other things, offer a job that is of a temporary or seasonal nature, 
and must submit a single, valid temporary labor certification (TLC) 
from the U.S. Department of Labor (DOL) establishing that there are not 
enough U.S. workers who are able, willing, qualified, and available to 
do the temporary work, and that employing H-2A workers will not 
adversely affect the wages and working conditions of workers in the 
United States similarly employed.\1\ INA 101(a)(15)(H)(ii)(a) and 218, 
8 U.S.C. 1101(a)(15)(H)(ii)(a) and 1188; see also generally 8 CFR 
214.2(h)(5)(i)(A) and (h)(5)(iv). Aliens who are outside of the United 
States also must first obtain an H-2A visa from the U.S. Department of 
State (DOS) at a U.S. Embassy or Consulate abroad, if required, and 
then seek admission with U.S. Customs and Border Protection (CBP) at a 
U.S. port of entry prior to commencing employment as an H-2A 
nonimmigrant. Aliens may be admitted for an additional period of up to 
one week prior to the employment start date for the purpose of travel 
to the worksite. 8 CFR 214.2(h)(5)(viii)(B).
---------------------------------------------------------------------------

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

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

[[Page 51306]]

satisfaction of the Secretary of Labor that (a) there are not 
sufficient U.S. workers who are able, willing, and qualified, and who 
will be available at the time and place needed to perform the labor or 
services involved in the petition, and (b) the employment of the alien 
in such labor or services will not adversely affect the wages and 
working conditions of workers in the United States similarly employed. 
8 U.S.C. 1188(a)(1); see also 20 CFR 655.100.
    To obtain a TLC from DOL, the employer must first submit an 
agricultural job order, within 75 to 60 calendar days prior to the 
start date of work, to the State Workforce Agency (SWA) that serves the 
state where the actual work will be performed. Once it clears the job 
order, the SWA will place it into intrastate clearance to initiate the 
recruitment of U.S. workers. 20 CFR 655.121. After review by the SWA, 
the employer must submit an Application for Temporary Employment 
Certification with DOL's Office of Foreign Labor Certification (OFLC) 
no less than 45 calendar days before the start date of work. 20 CFR 
655.130. OFLC will review the H-2A application and, if it accepts the 
application will place a copy of the job order on its electronic job 
registry. 20 CFR 655.144(a). OFLC will also direct the SWA to place the 
job order into interstate clearance, may direct the SWA to provide 
written notice of the job opportunity to relevant organization and 
physically post the job order in locations workers may gather, and may 
direct the employer to engage in additional recruitment. 20 CFR 
655.143, 655.150, 655.154. As part of its recruitment obligations, an 
employer must offer the job to any recently laid-off U.S. worker(s) and 
contact former U.S. workers employed in occupation in the previous 
year. 20 CFR 655.135(g), 655.153. OFLC will grant certification if the 
application meets all of the requirements in the Department's 
regulation, including compliance with all recruitment obligations. 20 
CFR 655.161(a). Post-certification, OFLC will keep the job order posted 
on its electronic registry until 50 percent of the contract period has 
elapsed, and the SWA must keep the job order on file for the same 
period of time. 20 CFR 655.144, 655.150. The U.S. employer must also 
continue to accept referrals of all eligible U.S. workers and must 
offer employment to any qualified U.S. worker that applies for the job 
opportunity until 50 percent of the work contract period has elapsed. 
20 CFR 655.135(d).
ii. DHS Petition Procedures
    After receiving a valid TLC from DOL, the employer listed on the 
TLC, an employer's agent, or the association of United States 
agricultural producers named as a joint employer on the TLC (``H-2A 
petitioner'') may file the H-2A petition with the appropriate USCIS 
office. INA 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(2)(i), 
(h)(5)(i)(A). The H-2A petitioner may petition for one or more named or 
unnamed H-2A workers, but the total number of workers may not exceed 
the number of positions indicated on the TLC.\2\ 8 CFR 214.2(h)(2)(iii) 
and (h)(5)(i)(B). H-2A petitioners must name the H-2A worker if the 
worker is in the United States or if the H-2A worker is a national of a 
country that is not designated as an H-2A participating country. 8 CFR 
214.2(h)(2)(iii). USCIS recommends that petitioners submit a separate 
H-2A petition when requesting a worker(s) who is a national of a 
country that is not designated as an H-2A participating country. See 8 
CFR 214.2(h)(5)(i)(F); see also Identification of Foreign Countries 
Whose Nationals Are Eligible To Participate in the H-2A and H-2B 
Nonimmigrant Worker Programs, Notice, 85 FR 3067 (Jan. 17, 2020). 
Petitioners for such aliens must submit evidence demonstrating the 
factors by which the request for H-2A workers serves the U.S. national 
interest. 8 CFR 214.2(h)(5)(i)(F)(1)(ii). USCIS will review each 
petition naming a national from a country not on the list and all 
supporting documentation and make a determination on a case-by-case 
basis.
---------------------------------------------------------------------------

    \2\ Note, however, that effective October 2, 2020, H-2A 
petitions will be limited to 25 named beneficiaries per H-2A 
petition. See DHS Final Rule, ``U.S. Citizenship and Immigration 
Services Fee Schedule and Changes to Certain Other Immigration 
Benefit Request Requirements,'' 85 FR 46788, 46916 (Aug. 3, 2020).
---------------------------------------------------------------------------

    A U.S. employer or U.S. agent generally may submit a new H-2A 
petition, with a new, valid TLC, to USCIS to request an extension of H-
2A nonimmigrant status for a period of up to 1 year. 8 CFR 
214.2(h)(15)(ii)(C). The H-2A petitioner must name the worker on the 
Form I-129, Petition for Nonimmigrant Worker,\3\ since the H-2A worker 
is in the United States and requesting an extension of stay. In the 
event of an emergency circumstance, however, the petitioner may request 
an extension not to exceed 14 days without first having to obtain an 
additional approved TLC from DOL if certain criteria are met, by simply 
submitting the new H-2A petition. See 8 CFR 214.2(h)(5)(x).
---------------------------------------------------------------------------

    \3\ Effective October 2, 2020, the petitioner will submit the 
new Form I-129H2A, Petition for Nonimmigrant Worker: H-2A 
Classification. H-2A petitions will be limited to 25 named 
beneficiaries per H-2A petition. See DHS Final Rule, ``U.S. 
Citizenship and Immigration Services Fee Schedule and Changes to 
Certain Other Immigration Benefit Request Requirements,'' 85 FR 
46788, 46916 (Aug. 3, 2020).
---------------------------------------------------------------------------

    In 2008, USCIS promulgated regulations allowing H-2A workers to 
begin work with a new petitioning employer upon the filing of an H-2A 
petition, before petition approval, provided that the new employer is a 
participant in good standing in the E-Verify program.\4\ 8 CFR 
214.2(h)(2)(i)(D) and 8 CFR 274a.12(b)(21). In such a case, the H-2A 
worker's employment authorization continues for a period not to exceed 
120 days beginning on the ``Received Date'' on the Form I-797, Notice 
of Action, which acknowledges the receipt of the new H-2A extension 
petition. With the exception of the new employer and worksite, the 
employment authorization extension remains subject to the same 
conditions and limitations indicated on the initial H-2A petition. The 
continued employment authorization extension will terminate 
automatically if the new employer fails to remain a participant in good 
standing in the E-Verify program, as determined by USCIS in its 
discretion.
---------------------------------------------------------------------------

    \4\ See ``Changes to Requirements Affecting H-2A 
Nonimmigrants,'' 73 FR 76891, 76905 (Dec. 8, 2008).
---------------------------------------------------------------------------

iii. Admission and Limitations of Stay
    Upon USCIS approval of the H-2A petition, the U.S. employer or 
agent may hire the H-2A workers to fill the job opening. USCIS will 
generally grant the workers H-2A classification for up to the period of 
time authorized on the valid TLC. H-2A workers who are outside of the 
United States may apply for a visa with DOS at a U.S. Embassy or 
Consulate abroad, if required, and seek admission to the United States 
with CBP at a U.S. port of entry. Spouses and children of H-2A workers 
may request H-4 nonimmigrant status to accompany the principal H-2A 
worker. The spouse and children of an H nonimmigrant, if they are 
accompanying or following to join such H nonimmigrant in the United 
States, may be admitted, if otherwise admissible, as H-4 nonimmigrants 
for the same period of admission or extension as the principal spouse 
or parent. 8 CFR 214.2(h)(9)(iv). Thus, H-4 dependents of these H-2A 
workers are subject to the same limitations on stay, and permission to 
remain in the country during the pendency of the new employer's 
petition, as the H-2A beneficiary.

[[Page 51307]]

    An alien's H-2A status is limited by the validity dates on the 
approved H-2A petition, which must be less than 1 year. 8 CFR 
214.2(h)(5)(viii)(C). H-2A workers may be admitted into the United 
States for a period of up to 1 week prior to the beginning validity 
date listed on the approved H-2A petition so that they may travel to 
their worksites, but may not begin work until the beginning validity 
date. H-2A workers may also remain in the United States 30 days beyond 
the expiration date of the approved H-2A petition to prepare for 
departure or to seek an extension or change of nonimmigrant status. 8 
CFR 214.2(h)(5)(viii)(B). H-2A workers do not have employment 
authorization outside of the validity period listed on the approved 
petition unless otherwise authorized. 8 CFR 214.2(h)(5)(viii)(B).
    The maximum period of stay for an alien in H-2A classification is 3 
years. 8 CFR 214.2(h)(5)(viii)(C). Once an alien has held H-2A 
nonimmigrant status for a total of 3 years, the alien must depart and 
remain outside of the United States for an uninterrupted period of 3 
months before seeking readmission as an H-2A nonimmigrant.\5\ 8 CFR 
214.2(h)(5)(viii)(C).
---------------------------------------------------------------------------

    \5\ But see, 8 CFR 214.2(h)(21)(ii) expiring on August 18, 2020, 
which allows USCIS to approve an H-2A petition seeking an extension 
of stay, submitted with a valid temporary agricultural labor 
certification, even if any of the aliens requested in the H-2A 
petition have exhausted the otherwise applicable 3-year maximum 
period of stay in the United States and have not thereafter been 
absent from the United States for an uninterrupted period of 3 
months, or if any such aliens would exceed the 3-year limit as a 
consequence of the approval of the extension.
---------------------------------------------------------------------------

C. COVID-19 National Emergency

    On January 31, 2020, the Secretary of the U.S. Department of Health 
and Human Services (HHS) declared a public health emergency dating back 
to January 27, 2020, under section 319 of the Public Health Service Act 
(42 U.S.C. 247d), in response to the Coronavirus Disease 2019 (COVID-
19).\6\ On March 13, 2020, President Trump declared a National 
Emergency concerning the COVID-19 outbreak to control the spread of the 
virus in the United States.\7\ The President's proclamation declared 
that the emergency began on March 1, 2020. In response to the Mexican 
government's call to increase social distancing, DOS announced the 
temporary suspension of routine immigrant and nonimmigrant visa 
services processed at the U.S. Embassy in Mexico City and all U.S. 
consulates in Mexico beginning on March 18, 2020.\8\ DOS expanded the 
temporary suspension of routine immigrant and nonimmigrant visa 
services to all U.S. Embassies and Consulates on March 20, 2020.\9\ DOS 
designated H-2A visas as mission critical, however, and announced that 
U.S. Embassies and Consulates have continued to process H-2A cases to 
the extent possible and implemented a change in its procedures, to 
include interview waivers.\10\ In addition, DHS has identified 
occupations in food and agriculture as critical to the U.S. public 
health and safety and economy.\11\
---------------------------------------------------------------------------

    \6\ HHS, Determination of Public Health Emergency, 85 FR 7316 
(Feb. 7, 2020).
    \7\ Proclamation 9994 of March 13, 2020, Declaring a National 
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85 
FR 15337 (Mar. 18, 2020). See also https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ (last 
visited Aug. 16, 2020).
    \8\ DOS, Status of U.S. Consular Operations in Mexico in Light 
of COVID-19, https://mx.usembassy.gov/status-of-u-s-consular-operations-in-mexico-in-light-of-covid-19/ (last updated Apr. 13, 
2020).
    \9\ DOS, Suspension of Routine Visa Services, https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html (last updated Mar. 20, 2020).
    \10\ See DOS website, Important Announcement on H2 Visas, 
https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-h2-visas.html (last updated Mar. 26, 
2020).
    \11\ DHS, Memorandum on Identification of Essential Critical 
Infrastructure Workers During COVID-19 Response, https://www.cisa.gov/sites/default/files/publications/CISA-Guidance-on-Essential-Critical-Infrastructure-Workers-1-20-508c.pdf (Mar. 19, 
2020). DHS, Advisory Memorandum on Identification of Essential 
Critical Infrastructure Workers During COVID_10 Response, https://www.cisa.gov/sites/default/files/publications/Version_3.1_CISA_Guidance_on_Essential_Critical_Infrastructure_Workers_0.pdf (May 19, 2020).
---------------------------------------------------------------------------

    To address disruptions caused by COVID-19 to the U.S. food 
agriculture sector during the summer growing season, DHS temporarily 
amended its H-2A regulations to provide certain flexibilities to 
temporary and seasonal agricultural workers and their U.S. employers. 
On April 20, 2020, DHS issued a temporary final rule (the ``April 20 
TFR''), Temporary Changes to Requirements Affecting H-2A Nonimmigrants 
Due to the COVID-19 National Emergency, which allowed H-2A workers to 
begin work with new H-2A employers, who have valid TLCs issued by DOL, 
for a period not to exceed 45 days immediately after the H-2A extension 
of stay petition is received by USCIS. The April 20 TFR also allowed 
petitioners to employ H-2A workers seeking an extension of stay beyond 
the 3-year total limitation of stay. In the April 20 TFR, DHS indicated 
that it would issue a new temporary final rule to extend its 
termination date in the event DHS determined that economic 
circumstances related to our food supply demonstrated a continued need 
for these temporary changes to the regulatory requirements involving H-
2A agricultural employers and workers. The April 20 TFR has been 
effective from April 20, 2020 through August 18, 2020. 85 FR 21739.
    As discussed in more detail below, due to the continuing health and 
economic crisis caused by COVID-19, DHS has determined that the public 
health emergency and economic circumstances resulting from COVID 19 are 
necessitating the continuation of some of the flexibilities implemented 
through the April 20 TFR, namely the ability of H-2A workers to change 
employers and begin work before USCIS approves the new H-2A petition. 
Therefore, DHS is issuing this TFR to extend those flexibilities for an 
additional 120 days, i.e. through December 17, 2020. This timeframe 
differs from the most recent renewal of a determination of the public 
health emergency \12\ because DHS believes that the COVID-19 pandemic 
may have a more lasting impact on the U.S. agricultural food sector 
beyond the 90 days. As a result, DHS will continue to monitor the 
evolving health crisis caused by COVID-19 and may address it in future 
rules.
---------------------------------------------------------------------------

    \12\ See HHS Renewal of Determination That A Public Health 
Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-23June2020.aspx (Jul. 23, 2020).
---------------------------------------------------------------------------

II. Discussion

A. Temporary Changes to DHS Requirements for H-2A Change of Employer 
Requests During the COVID-19 National Emergency

    DHS is committed to both protecting U.S. workers and to helping 
U.S. businesses receive the legal and work-authorized labor for 
temporary or seasonal agricultural labor or services that they need.
    On July 23, 2020, HHS Secretary Alex Azar signed a renewal of 
determination, effective July 25, that extends the current COVID-19 
public health emergency by up to 90 days.\13\ This determination that a 
public health emergency exists and has existed since January 27, 2020, 
nationwide, was previously renewed on April 21, 2020. The renewal of 
determination signals that the United States is facing continued 
consequences of the COVID-19 National Emergency, which corresponds to 
the volume of COVID-19 cases reported by the U.S. Centers for

[[Page 51308]]

Disease Control and Prevention--5,228,817 as of August 14, 2020.
---------------------------------------------------------------------------

    \13\ See HHS Renewal of Determination That A Public Health 
Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-23June2020.aspx (Jul. 23, 2020).
---------------------------------------------------------------------------

    The COVID-19 pandemic continues to cause disruptions in the 
domestic food supply chain.\14\ As of July 31, 2020, USDA's Economic 
Research Service reported that ``[t]he coronavirus (COVID-19) pandemic 
has widely impacted the U.S. economy, including the farm sector and 
farm households. Farm businesses have experienced disruptions to 
production due to lowered availability of labor and other inputs . . . 
[r]eductions in available labor affect crop and livestock production, 
as well as processing capacity for crop and animal products that leave 
the farm. Reduced processing capacity results in lower consumption of 
certain agricultural commodities.'' \15\ The H-2A program has been 
crucial to assuring the continued viability of the nation's food supply 
chain.\16\ Notwithstanding the availability of the H-2A program, U.S. 
farmers are continuing to experience labor shortages as fewer workers 
are able to get to the United States. Media outlets in the United 
States have continued to report on these shortages. For example, a 
farmer in North Dakota who typically hires the same eight farmhands 
from South Africa to tend his crops was short half of his crew this 
year due to COVID-19.\17\
---------------------------------------------------------------------------

    \14\ See, e.g. Food Security and COVID-19, https://www.worldbank.org/en/topic/agriculture/brief/food-security-and-covid-19 (last visited Aug. 14, 2020).
    \15\ ``Farms and Farm Households During the COVID-19 Pandemic,'' 
https://www.ers.usda.gov/covid-19/farms-and-farm-households/ (last 
visited Aug. 15, 2020).
    \16\ The Washington Post, ``How one visa program keeps America 
fed,'' https://www.washingtonpost.com/video/national/how-one-visa-program-keeps-america-fed/2020/06/17/ac3be98d-1ed1-4d4c-8dc7-85cbbeecb5fc_video.html (last visited Aug. 15, 2020).
    \17\ Bloomberg, ``Global Food Output Runs Into Migrant Worker 
Woes,'' Aug. 7, 2020, https://www.bloomberg.com/news/newsletters/2020-08-07/supply-chains-latest-migrant-worker-shortages-hit-food-output (last visited Aug. 15, 2020).
---------------------------------------------------------------------------

    As the public health emergency and economic consequences of it 
continue, DHS has determined it is necessary to issue a new temporary 
final rule to extend certain flexibilities implemented through the 
April 20 TFR because DHS has determined that there is a continued need 
for them. This TFR extends certain amendments made by the April 20 TFR, 
to help U.S. agricultural employers reduce disruptions in lawful 
agricultural-related employment, protect the nation's food supply 
chain, and lessen impacts from the COVID-19 pandemic and related 
economic effects, consistent with the declaration of the National 
Emergency. Due to the continued travel restrictions and visa processing 
limitations as a result of actions taken to mitigate the spread of 
COVID-19, as well as the possibility that some H-2A workers may become 
unavailable due to COVID-19 related illness,\18\ U.S. employers who 
have approved H-2A petitions or who will be filing H-2A petitions might 
not receive all of the workers requested to fill the temporary 
positions, and similarly, employers that currently employ H-2A workers 
may lose the services of workers due to COVID-19 related illness.
---------------------------------------------------------------------------

    \18\ Patch, ``Newsom Opens Hotel Rooms For Farmworkers Exposed 
To Coronavirus,'' Jul. 29, 2020, https://patch.com/california/santamonica/s/h6xix/newsom-opens-hotel-rooms-farmworkers-exposed-coronavirus (last visited Aug. 15, 2020). U.S. News & World Report, 
``Nearly 190 Farmworkers Contract Virus in Southern California,'' 
Jul. 6, 2020, https://www.usnews.com/news/best-states/california/articles/2020-07-06/nearly-190-farmworkers-contract-virus-in-southern-california (last visited Aug. 15, 2020).
---------------------------------------------------------------------------

    Under this temporary final rule, any H-2A petitioner with a valid 
TLC, i.e. one who has already tested the U.S. labor market and was 
unable to find able, willing, and qualified U.S. workers to perform 
temporary or seasonal agricultural services or labor, can start 
employing H-2A workers who are currently in the United States and in 
valid H-2A status and who have been complying with the terms of their 
H-2A status immediately after receiving notice that USCIS has received 
the H-2A petition, but no earlier than the start date of employment 
listed on the petition. This will allow H-2A workers to move to a new 
employer to meet urgent temporary or seasonal agricultural needs before 
USCIS approves the new employer's petition. DHS believes this continued 
flexibility will help address the challenges faced by U.S. employers 
due to COVID-19 as the busy fall harvest season approaches. See new 8 
CFR 214.2(h)(21) and 8 CFR 274a.12(b)(26). However, nothing in this TFR 
changes the existing DOL requirements for obtaining a TLC which an 
employer must comply with before filing an H-2A petition with USCIS.
    Unlike the permanent regulation at 8 CFR 274a.12(b)(21), which 
allows the H-2A worker(s) to immediately work for a new H-2A employer 
in good standing in E-Verify upon the filing of an H-2A extension of 
stay petition, this TFR, like the April 20 TFR, allows the H-2A 
worker(s) to immediately work for any new H-2A employer, but no earlier 
than the start date of employment listed on the H-2A petition, upon the 
filing of an H-2A extension of stay petition during the COVID-19 
National Emergency only.
    The Department remains committed to promoting the use of E-Verify 
to ensure a legal workforce. E-Verify is free, user friendly, and over 
98% accurate.\19\ Notwithstanding the numerous benefits E-Verify offers 
to ensure all employers only employ a legal workforce, the Department 
has determined that it is necessary to temporarily amend its 
regulations affecting H-2A workers to mitigate the impact on the 
agricultural industry due to COVID-19. These H-2A petitioners will have 
completed a test of the U.S. labor market, and DOL will have determined 
that there are no qualified U.S. workers available to fill these 
temporary positions. The Department believes that granting H-2A workers 
the option to begin employment with any new H-2A petitioner as soon as 
the H-2A petition is received by USCIS will also benefit U.S. 
agricultural employers and help provide stability to the U.S. food 
supply chain during the unique challenges the country faces because of 
COVID-19.
---------------------------------------------------------------------------

    \19\ See https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance (last updated Jul. 15, 2020).
---------------------------------------------------------------------------

    Upon further consideration, DHS has determined that a need exists 
to strike a balance between providing stability to the U.S. food supply 
chain, addressing the urgent needs of U.S. agricultural producers, and 
ensuring that those aliens admitted into the United States as temporary 
workers in the H-2A nonimmigrant classification in fact remain in this 
country on a temporary basis, as required by the Act. 8 U.S.C. 
1101(a)(15)(H)(ii)(a). Therefore, DHS is not extending the April 20 TFR 
temporary exceptions to its regulations at 8 CFR 214.2(h)(5)(viii)(C), 
(h)(13)(i)(B), and (h)(15)(ii)(C) that had allowed aliens to extend 
their H-2A period of stay beyond the 3-year limitation, without first 
requiring them to remain outside of the United States for an 
uninterrupted period of 3 months. Consequently, USCIS will apply the 3-
year limit reflected in permanent DHS regulations to any H-2A petition 
that is received on or after August 19, 2020. These permanent 
regulations specifically provide, with certain very narrow exceptions, 
that an H-2A worker's total period of stay in H-2 classification may 
not exceed 3 years, before he or she must depart from the United States 
for a minimum of 3 months. 8 CFR 214.2(h)(15)(ii)(C). Petitioners 
seeking H-2A temporary workers who fill a permanent need or who will 
remain in the United States permanently, must comply with the

[[Page 51309]]

requirements applicable to permanent positions. See, e.g., 8 U.S.C. 
1153(b)(3).
    To be approved under this final rule, an H-2A petition for an 
extension of stay with a new employer must have been received on or 
after August 19, 2020, but no later than the last day that this final 
rule is in effect (i.e., December 17, 2020). If the new petition is 
approved, the H-2A worker's extension of stay may be granted for the 
validity of the approved petition, and for a period not to exceed the 
validity period of the TLC. In addition, the temporary provisions being 
extended by this rule are the same as the April 20 TFR provisions but 
differ from the permanent regulatory provisions in that they grant 
employment authorization for 45 days from the date of the receipt 
notice. The 45-day employment authorization associated with the filed 
petition will automatically terminate 15 days after the date of denial 
or withdrawal if USCIS denies the petition, or if the petition is 
withdrawn.
    To provide greater certainty to the market for the duration of the 
remainder of the summer and fall agricultural seasons, the changes made 
by this final rule will automatically terminate on December 17, 2020. 
DHS will continue to monitor the rapidly evolving situation surrounding 
the COVID-19 pandemic and associated economic consequences and will 
determine whether continued flexibilities are needed beyond the 120 
days. USCIS will continue to adjudicate H-2A petitions received no 
later than December 17, 2020 under the provisions of this rule. Any H-
2A petition received after the termination of this final rule will be 
adjudicated in accordance with the existing permanent provisions. See 8 
CFR 214.2(h)(2)(i)(D) and 274a.12(b)(21).

III. Statutory and Regulatory Requirements

A. Administrative Procedure Act

    This rule is being issued without prior notice and opportunity to 
comment and with an immediate effective date pursuant to sections 
553(b) and (d) of the Administrative Procedure Act (APA). 5 U.S.C. 551 
et seq.
1. Good Cause To Forgo Notice and Comment Rulemaking
    The APA, 5 U.S.C. 553(b)(B), authorizes an agency to issue a rule 
without prior notice and opportunity to comment when the agency for 
good cause finds that those procedures are ``impracticable, 
unnecessary, or contrary to the public interest.'' The good-cause 
exception for forgoing notice-and-comment rulemaking ``excuses notice 
and comment in emergency situations, or where delay could result in 
serious harm.'' Jifry v. FAA, 370 F.3d 1174, 1179 (DC Cir. 2004). 
Although the good cause exception is ``narrowly construed and only 
reluctantly countenanced,'' Tenn. Gas Pipeline Co. v. FERC, 969 F.2d 
1141, 1144 (DC Cir. 1992), the Department has appropriately invoked the 
exception in this case, for the reasons set forth below. As also 
discussed earlier in this preamble, on January 31, 2020, the Secretary 
of Health and Human Services declared a public health emergency, dating 
back to January 27, 2020, under section 319 of the Public Health 
Service Actin response to COVID-19.\20\ On March 13, 2020, President 
Trump declared a National Emergency concerning the COVID-19 outbreak, 
dated back to March 1, 2020, to control the spread of the virus in the 
United States.\21\ In response to the Mexican government's call to 
increase social distancing in that country, DOS announced the temporary 
suspension of routine immigrant and nonimmigrant visa services 
processed at the U.S. Embassy in Mexico City and all U.S. consulates in 
Mexico beginning on March 18, 2020.\22\ DOS expanded the temporary 
suspension of routine immigrant and nonimmigrant visa services at all 
U.S. Embassies and Consulates on March 20, 2020.\23\ On July 23, 2020, 
the U.S. Department of Health and Human Services (HHS) Secretary Alex 
Azar signed a renewal of determination, effective July 25, that extends 
the current COVID-19 public health emergency by up to 90 days.\24\ This 
determination that a public health emergency exists and has existed 
since January 27, 2020, nationwide, was previously renewed on April 21, 
2020.
---------------------------------------------------------------------------

    \20\ Determination of Public Health Emergency.
    \21\ Proclamation 9994.
    \22\ Status of U.S. Consular Operations in Mexico in Light of 
COVID-19.
    \23\ Suspension of Routine Visa Services.
    \24\ See HHS Renewal of Determination That A Public Health 
Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-23June2020.aspx (Jul. 23, 2020).
---------------------------------------------------------------------------

    DOS designated H-2A visas as mission critical, and announced that 
U.S. Embassies and Consulates will continue to process H-2 cases to the 
extent possible and implemented a change in its procedures, to include 
interview waivers.\25\ In addition, DHS identified occupations in food 
and agriculture as critical to the U.S. public health and safety and 
economy.\26\ Due to extended travel restrictions, the limited 
resumption of routine visa services, as well as the possibility that 
some U.S. and H-2A workers may become unavailable due to illness 
related to the spread of COVID-19, U.S. employers who have approved 
temporary agricultural labor certifications and/or who will be filing 
H-2A petitions might not receive, or be able to continuously employ, 
all of the workers requested to fill all of their DHS-approved 
temporary or seasonal agricultural positions. Due to these anticipated 
labor shortages, these employers may continue to experience adverse 
economic impacts to their agricultural operations. Finally, COVID-19 
continues to cause disruptions in domestic food supply chains which has 
led to food insecurity on a global level.\27\ To partially address 
these concerns, DHS is acting expeditiously to put in place rules that 
will facilitate the continued employment of H-2A workers already 
present in the United States. This action will reduce labor disruptions 
that could affect business operations of U.S. employers for the 
upcoming labor-intensive fall harvest, and continue to support the 
critical U.S. food supply network.
---------------------------------------------------------------------------

    \25\ Important Announcement on H2 Visas.
    \26\ DHS Memorandum on Identification of Essential Critical 
Infrastructure Workers During COVID-19 Response. DHS Advisory 
Memorandum on Identification of Essential Critical Infrastructure 
Workers During COVID_10 Response.
    \27\ See, e.g. Food Security and COVID-19, https://www.worldbank.org/en/topic/agriculture/brief/food-security-and-covid-19 (last visited Aug. 15, 2020). See also, ``Farms and Farm 
Households During the COVID-19 Pandemic'' https://www.ers.usda.gov/covid-19/farms-and-farm-households/ (last visited Aug. 15, 2020) 
indicating that ``Farm businesses have experienced disruptions to 
production due to lowered availability of labor and other inputs . . 
. [r]eductions in available labor affect crop and livestock 
production, as well as processing capacity for crop and animal 
products that leave the farm. Reduced processing capacity results in 
lower consumption of certain agricultural commodities.''
---------------------------------------------------------------------------

    Courts have found ``good cause'' under the APA when an agency is 
moving expeditiously to avoid significant economic harm to a program, 
program users, or an industry. Courts have held that an agency may use 
the good-cause exception to address ``a serious threat to the financial 
stability of [a government] benefit program,'' Nat'l Fed'n of Fed. 
Emps. v. Devine, 671 F.2d 607, 611 (DC Cir. 1982), or to avoid 
``economic harm and disruption'' to a given industry, which would 
likely result in higher consumer prices, Am. Fed'n of Gov't Emps. v. 
Block, 655 F.2d 1153, 1156 (DC Cir. 1981). Consistent with the above 
authorities, the Department has bypassed notice and comment to 
facilitate the employment of H-2A workers already in the United States, 
and prevent potential economic harms to H-2A agricultural employers

[[Page 51310]]

and downstream employers engaged in the processing of agricultural 
products, as well as potential harms to the American economy and people 
that could result from ongoing uncertainty over the availability of H-
2A agricultural workers, and potential associated negative impacts on 
food security in the United States. See Bayou Lawn & Landscape Servs. 
v. Johnson, 173 F. Supp. 3d 1271, 1285 & n.12 (N.D. Fla. 2016). This 
action is temporary in nature, and includes appropriate conditions to 
ensure that it is narrowly tailored to the National Emergency caused by 
COVID-19.
2. Good Cause To Proceed With an Immediate Effective Date
    The APA also authorizes agencies to make a rule effective 
immediately, upon a showing of good cause, instead of imposing a 30-day 
delay. 5 U.S.C. 553(d)(3). The good-cause exception to the 30-day 
effective date requirement is easier to meet than the good-cause 
exception for forgoing notice and comment rulemaking. Riverbend Farms, 
Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992); Am. Fed'n of 
Gov't Emps., AFL-CIO v. Block, 655 F.2d 1153, 1156 (DC Cir. 1981); U.S. 
Steel Corp. v. EPA, 605 F.2d 283, 289-90 (7th Cir. 1979). An agency can 
show good cause for eliminating the 30-day delayed effective date when 
it demonstrates urgent conditions the rule seeks to correct or 
unavoidable time limitations. U.S. Steel Corp., 605 F.2d at 290; United 
States v. Gavrilovic, 511 F.2d 1099, 1104 (8th Cir. 1977). For the same 
reasons set forth above, we also conclude that the Department has good 
cause to dispense with the 30-day effective date requirement given that 
this rule is necessary to prevent serious economic harms to U.S. 
employers in the agricultural industry caused by unavailability of 
workers due to COVID-19, and to ensure food stability for the American 
people.

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

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

C. Regulatory Flexibility Act

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

D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995, Public Law 104-4, 2 
U.S.C. 1501, et seq. (UMRA), is intended, among other things, to curb 
the practice of imposing unfunded Federal mandates on State, local, and 
tribal governments. Title II of the Act requires each Federal agency to 
prepare a written statement assessing the effects of any Federal 
mandate in a proposed rule, or final rule for which the agency 
published a proposed rule that includes any Federal mandate that may 
result in $100 million or more expenditure (adjusted annually for 
inflation) in any one year by State, local, and tribal governments, in 
the aggregate, or by the private sector. 2 U.S.C. 1532. This rule does 
not contain such a mandate. The requirements of Title II of UMRA, 
therefore, do not apply, and DHS has not prepared a statement under 
UMRA.

E. Executive Order 13132 (Federalism)

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

F. Executive Order 12988 (Civil Justice Reform)

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

G. Congressional Review Act

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

H. National Environmental Policy Act

    DHS analyzes actions to determine whether the National 
Environmental Policy Act, Public Law 91-190, 42 U.S.C. 4231, et seq. 
(NEPA), applies to them and, if so, what degree of analysis is 
required. DHS Directive 023-01 Rev. 01 (Directive) and Instruction 
Manual 023-01-001-01 Rev. 01 (Instruction Manual) establish the 
policies and procedures that DHS and its components use to comply with 
NEPA and the Council on Environmental Quality (CEQ) regulations for 
implementing NEPA, 40 CFR parts 1500-1508.
    The CEQ regulations allow federal agencies to establish, with CEQ 
review and concurrence, categories of actions (``categorical 
exclusions'') which experience has shown do not individually or 
cumulatively have a significant effect on the human environment and, 
therefore, do not require an Environmental Assessment (EA) or 
Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(2)(ii), 1508.4. 
Categorical exclusions established by DHS are set forth in Appendix A 
of the Instruction Manual. Under DHS NEPA implementing procedures, for 
an action to be categorically excluded, it must satisfy

[[Page 51311]]

each of the following three conditions: (1) The entire action clearly 
fits within one or more of the categorical exclusions; (2) the action 
is not a piece of a larger action; and (3) no extraordinary 
circumstances exist that create the potential for a significant 
environmental effect. Instruction Manual section V.B(2)(a)-(c). This 
rule temporarily amends regulations governing the H-2A nonimmigrant 
visa program to facilitate the continued employment of H-2A 
nonimmigrants in the United States by allowing them to change employers 
in the United States and begin working in the same visa classification 
for a period not to exceed 45 days before the nonimmigrant visa 
petition is approved, due to the National Emergency caused by the 
COVID-19 global pandemic. This rule does not change the number of H-2A 
workers that may be employed by U.S. employers as there is not an 
established statutory limit. It also does not change rules for where H-
2A nonimmigrants may be employed; only employers with approved 
temporary labor certifications for workers to perform temporary or 
seasonal agricultural work may be allowed to employ H-2A workers under 
these temporary provisions. Generally, DHS believes NEPA does not apply 
to a rule intended to make it easier for H-2A employers to hire workers 
who are already in the United States in addition to, or instead of, 
also hiring H-2A workers from abroad because any attempt to analyze its 
potential impacts would be largely speculative, if not completely so. 
DHS cannot reasonably estimate how many petitions will be filed under 
these temporary provisions, and therefore how many H-2A workers already 
in the United States will be employed by different employers, as 
opposed to how many petitions would have been filed for H-2A workers 
employed under normal circumstances. DHS has no reason to believe that 
the temporary amendments to H-2A regulations would change the 
environmental effect, if any, of the existing regulations. Therefore, 
DHS has determined that even if NEPA were to apply to this action, this 
rule clearly fits within categorical exclusion A3(d) in the Instruction 
Manual, which provides an exclusion for ``promulgation of rules . . . 
that amend an existing regulation without changing its environmental 
effect.''
    This rule maintains the current human environment by helping to 
prevent irreparable harm to certain U.S. businesses and to prevent 
significant adverse effects on the human environment that would likely 
result from loss of jobs or income, or disruption of the nation's food 
supply chain. This rule is not a part of a larger action and presents 
no extraordinary circumstances creating the potential for significant 
environmental effects. Therefore, this action is categorically excluded 
and no further NEPA analysis is required.

I. Signature

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

List of Subjects

8 CFR Part 214

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

8 CFR Part 274a

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

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

PART 214--NONIMMIGRANT CLASSES

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

    Authority:  6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182, 
1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305 and 1372; sec. 643, 
Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat. 
1477-1480; section 141 of the Compacts of Free Association with the 
Federated States of Micronesia and the Republic of the Marshall 
Islands, and with the Government of Palau, 48 U.S.C. 1901 note and 
1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 115-
218.


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


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

* * * * *
    (h) * * *
    (21) Change of employers during COVID-19 National Emergency. (i) If 
an H-2A nonimmigrant who is physically present in the United States 
seeks to change employers during the COVID-19 National Emergency, the 
prospective new H-2A employer may file an H-2A petition on Form I-129 
or Form I-129H2A, accompanied by a valid temporary agricultural labor 
certification, requesting an extension of the alien's stay in the 
United States. To be approved under this paragraph (h)(21), an H-2A 
petition must be received on or after August 19, 2020 but no later than 
December 17, 2020. If the new petition is approved, the extension of 
stay may be granted for the validity of the approved petition for a 
period not to exceed the validity period of the temporary agricultural 
labor certification. Notwithstanding paragraph (h)(2)(i)(D) of this 
section and 8 CFR 274a.12(b)(21), an alien in valid H-2A nonimmigrant 
status on August 19, 2020, or lawfully obtaining such status thereafter 
pursuant to this paragraph (h)(21), is authorized to begin employment 
with the new petitioner after the petition described in this paragraph 
(h)(21) is received by USCIS, but no earlier than the start date of 
employment, indicated in the H-2A petition. The H-2A worker is 
authorized to commence employment with the petitioner before the 
petition is approved and subject to the requirements of 8 CFR 
274a.12(b)(26) for a period of up to 45 days beginning on the Received 
Date on Form I-797 (Notice of Action) or, if the start date of 
employment occurs after the I-797 Received Date, 45 days beginning on 
the start date of employment indicated in the H-2A petition. If USCIS 
adjudicates the petition prior to the expiration of this 45-day period 
and denies the petition for extension of stay, or if the petition is 
withdrawn by the petitioner before the expiration of the 45-day period, 
the employment authorization associated with the filing of that 
petition under 8 CFR 274a.12(b)(26) will automatically terminate 15 
days after the date of the denial decision or the date on which the 
petition is withdrawn.
    (ii) Authorization to initiate employment changes pursuant to this 
paragraph (h)(21) begins at 12 a.m. on August 19, 2020, and ends at the 
end of December 17, 2020.
* * * * *

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

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

    Authority:  8 U.S.C. 1101, 1103, 1324a; Title VII of Pub. L. 
110-229; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 101-410, 104 Stat. 
890, as amended by Pub. L. 114-74, 129 Stat. 599; Pub. L. 115-218.


[[Page 51312]]



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


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

* * * * *
    (b) * * *
    (26)(i) Pursuant to 8 CFR 214.2(h)(21) and notwithstanding 8 CFR 
214.2(h)(2)(i)(D) and paragraph (b)(21) of this section, an alien is 
authorized to be employed, but no earlier than the start date of 
employment indicated in the H-2A petition, by a new employer that has 
filed an H-2A petition naming the alien as a beneficiary and requesting 
an extension of stay for the alien, for a period not to exceed 45 days 
beginning from the ``Received Date'' on Form I-797 (Notice of Action) 
acknowledging receipt of the petition requesting an extension of stay, 
or 45 days beginning on the start date of employment if the start date 
of employment indicated in the H-2A petition occurs after the filing. 
The length of the period (up to 45 days) is to be determined by USCIS 
in its discretion. However, if USCIS adjudicates the petition prior to 
the expiration of this 45-day period and denies the petition for 
extension of stay, or if the petitioner withdraws the petition before 
the expiration of the 45-day period, the employment authorization under 
this paragraph (b)(26) will automatically terminate upon 15 days after 
the date of the denial decision or the date on which the petition is 
withdrawn.
    (ii) Authorization to initiate employment changes pursuant to 8 CFR 
214.2(h)(21) and paragraph (b)(26)(i) of this section begins at 12 a.m. 
on August 19, 2020, and ends at the end of December 17, 2020.
* * * * *

Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S. 
Department of Homeland Security.
[FR Doc. 2020-18283 Filed 8-18-20; 8:45 am]
BILLING CODE 9111-97-P