Temporary Changes to Requirements Affecting H-2A Nonimmigrants due to the COVID-19 National Emergency: Extension of Certain Flexibilities, 82291-82299 [2020-27661]
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82291
Rules and Regulations
Federal Register
Vol. 85, No. 244
Friday, December 18, 2020
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
DEPARTMENT OF HOMELAND
SECURITY
[CIS No. 2678–21; DHS Docket No. USCIS–
2020–0008]
RIN 1615–AC55
FOR FURTHER INFORMATION CONTACT:
Temporary Changes to Requirements
Affecting H–2A Nonimmigrants due to
the COVID–19 National Emergency:
Extension of Certain Flexibilities
U.S. Citizenship and
Immigration Services (USCIS),
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
upcoming winter and spring agricultural
seasons caused by the global novel
Coronavirus Disease 2019 (COVID–19)
public health emergency, the
Department of Homeland Security,
(‘‘DHS’’ or ‘‘the Department’’), U.S.
Citizenship and Immigration Services,
has decided it is necessary to
temporarily extend the amendments to
certain regulations regarding temporary
and seasonal agricultural workers, and
their U.S. employers, within the H–2A
nonimmigrant classification. Through
this temporary final rule DHS is
extending the provisions of the August
20, 2020, temporary final rule. Namely,
DHS will continue to allow H–2A
employees whose extensions of stay H–
2A petitions are supported by valid
temporary labor certifications issued by
the U.S. Department of Labor to begin
work with a new employer immediately
after the extension of stay petition is
received by USCIS. DHS will apply this
temporary final rule to H–2A petitions
requesting an extension of stay, if they
were received on or after December 18,
2020, but no later than June 16, 2021.
The temporary extension of these
flexibilities will ensure that agricultural
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SUMMARY:
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This final rule is effective from
December 18, 2020, through December
18, 2023. Employers may request the
flexibilities under this rule by filing an
H–2A petition on or after December 18,
2020, and through June 16, 2021.
DATES:
8 CFR Parts 214 and 274a
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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.
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Charles L. Nimick, Chief, Business and
Foreign Workers Division, Office of
Policy and Strategy, U.S. Citizenship
and Immigration Services, Department
of Homeland Security, by mail at 5900
Capital Gateway Dr., Camp Springs, MD
20529–2140; or by phone at 240–721–
3000.
Individuals with hearing or speech
impairments may access the telephone
numbers above via TTY by calling the
toll-free Federal Information Relay
Service at 1–877–889–5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Legal Framework
B. Description of the H–2A Program
i. DOL Temporary Labor Certification
Procedures
ii. DHS Petition Procedures
iii. Admission and Limitations of Stay
C. COVID–19 National Emergency
II. Discussion
A. Temporary Changes to DHS
Requirements for H–2A Change of
Employer Requests During the COVID–
19 National Emergency
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Executive Orders 12866 (Regulatory
Planning and Review) and 13563
(Improving Regulation and Regulatory
Review)
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice
Reform)
G. Congressional Review Act
H. National Environmental Policy Act
I. Signature
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I. Background
A. Legal Framework
The Secretary of Homeland Security
(Secretary) has the authority to amend
this regulation under section 102 of the
Homeland Security Act of 2002 (HSA),
Public Law 107–296, 116 Stat. 2135, 6
U.S.C. 112, and section 103(a) of the
Immigration and Nationality Act (INA),
8 U.S.C. 1103(a), which authorize the
Secretary to administer and enforce the
immigration and nationality laws.
Under section 101 of the HSA, 6 U.S.C.
111(b)(1)(F), a primary mission of DHS
is to ‘‘ensure that the overall economic
security of the United States is not
diminished by efforts, activities, and
programs aimed at securing the
homeland.’’ In addition, section
214(a)(1) of the INA, 8 U.S.C. 1184(a)(1),
provides the Secretary with authority to
prescribe the terms and conditions of
any alien’s admission to the United
States as a nonimmigrant. The INA
further requires that ‘‘[t]he question of
importing any alien as [an H–2A]
nonimmigrant . . . in any specific case
or specific cases shall be determined by
[DHS], after consultation with
appropriate agencies of the Government
[the U.S. Department of Labor and the
U.S. Department of Agriculture], upon
petition by the importing employer.’’
INA 214(c)(1), 8 U.S.C. 1184(c)(1).
Section 274A(h)(3)(B) of the INA, 8
U.S.C. 1324a(h)(3)(B), states that ‘‘‘an
unauthorized alien’ means . . . that the
alien is not at that time . . . authorized
to be employed by this chapter or by the
[Secretary].’’
B. Description of the H–2A Program
The H–2A nonimmigrant
classification applies to alien workers
seeking to perform agricultural labor or
services of a temporary or seasonal
nature in the United States on a
temporary basis, usually lasting no
longer than 1 year, for which U.S.
workers are not available. INA
101(a)(15)(H)(ii)(a), 8 U.S.C.
1101(a)(15)(H)(ii)(a); see also 8 CFR
214.1(a)(2). As noted in the statute, not
only must the alien be coming
‘‘temporarily’’ to the United States, but
the agricultural labor or services that the
alien is performing must also be
‘‘temporary or seasonal.’’ INA
101(a)(15)(H)(ii)(a). The Department of
Homeland Security (‘‘DHS’’ or ‘‘the
Department’’) regulations further define
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an employer’s temporary need as
employment that is of a temporary
nature where the employer’s need to fill
the position with a temporary worker
will, except in extraordinary
circumstances, last no longer than 1
year. 8 CFR 214.2(h)(5)(iv)(A). An
employer’s seasonal need is defined as
employment that is tied to a certain time
of year by an event or pattern, such as
a short annual growing cycle or a
specific aspect of a longer cycle, and
requires labor levels above those
necessary for ongoing operations. Id.
An employer, agent, or association
(‘‘H–2A petitioner’’) must submit a
petition to U.S. Citizenship and
Immigration Services (USCIS) to obtain
classification of temporary workers as
H–2A nonimmigrants before the
employer may begin employing H–2A
workers. INA 214(c)(1), 8 U.S.C.
1184(c)(1); 8 CFR 214.2(h)(2)(i). DHS
must approve this petition before the
alien can be considered eligible for H–
2A status or a visa. To qualify for H–2A
classification, the H–2A petitioner must,
among other things, offer a job that is of
a temporary or seasonal nature, and
must submit a single, valid temporary
labor certification (TLC) from the U.S.
Department of Labor (DOL) establishing
that there are not enough U.S. workers
who are able, willing, qualified, and
available to do the temporary work, and
that employing H–2A workers will not
adversely affect the wages and working
conditions of workers in the United
States similarly employed.1 INA
101(a)(15)(H)(ii)(a) and 218, 8 U.S.C.
1101(a)(15)(H)(ii)(a) and 1188; see also
generally 8 CFR 214.2(h)(5)(i)(A) and
(h)(5)(iv). Aliens who are outside of the
United States also must first obtain an
H–2A visa from the U.S. Department of
State (DOS) at a U.S. Embassy or
Consulate abroad, if required, and all
aliens who are outside of the United
States must seek admission with U.S.
Customs and Border Protection (CBP) at
a U.S. port of entry prior to commencing
employment as an H–2A nonimmigrant.
Aliens may be admitted for an
additional period of up to one week
prior to the employment start date for
the purpose of travel to the worksite,
and a 30-day period following the
expiration of the H–2A petition for the
purpose of departure or to seek an
extension based on a subsequent offer of
employment. Unless authorized under 8
CFR 274a.12 or section 214(n) of the
Act, the beneficiary may not work
1 Under certain emergent circumstances, petitions
requesting a continuation of employment with the
same employer for 2 weeks or less are exempt from
the TLC requirement. See 8 CFR 214.2(h)(5)(x).
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except during the validity period of the
petition. 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
satisfaction of the Secretary of Labor
that (a) there are not sufficient U.S.
workers who are able, willing, and
qualified, and who will be available at
the time and place needed to perform
the labor or services involved in the
petition, and (b) the employment of the
alien in such labor or services will not
adversely affect the wages and working
conditions of workers in the United
States similarly employed. 8 U.S.C.
1188(a)(1); see also 20 CFR 655.100.
To obtain a TLC from DOL, the
employer must first submit an
agricultural job order, within 75 to 60
calendar days prior to the start date of
work, to the State Workforce Agency
(SWA) that serves the state where the
actual work will be performed. Once it
clears the job order, the SWA will place
it into intrastate clearance to initiate the
recruitment of U.S. workers. 20 CFR
655.121. After review by the SWA, the
employer must submit an Application
for Temporary Employment
Certification with DOL’s Office of
Foreign Labor Certification (OFLC) no
less than 45 calendar days before the
start date of work. 20 CFR 655.130.
OFLC will review the H–2A application
and, if it accepts the application will
place a copy of the job order on its
electronic job registry. 20 CFR
655.144(a). OFLC will also direct the
SWA to place the job order into
interstate clearance, may direct the
SWA to provide written notice of the job
opportunity to relevant organizations
and physically post the job order in
locations workers may gather, and may
direct the employer or authorized hiring
agent to engage in positive recruitment.
20 CFR 655.143, 655.150, 655.154. As
part of its recruitment obligations, an
employer must offer the job to any
recently laid-off U.S. worker(s) and
contact former U.S. workers employed
in the occupation in the previous year.
20 CFR 655.135(g), 655.153. OFLC will
grant certification if the application
meets all of the requirements in the
Department of Labor’s regulation,
including compliance with all
recruitment obligations. 20 CFR
655.161(a). Post-certification, OFLC will
keep the job order posted on its
electronic registry until 50 percent of
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the contract period has elapsed, and the
SWA must keep the job order on file for
the same period of time. 20 CFR
655.144, 655.150. The U.S. employer
must also continue to accept referrals of
all eligible U.S. workers and must offer
employment to any qualified U.S.
worker that applies for the job
opportunity until 50 percent of the work
contract period has elapsed. 20 CFR
655.135(d).
ii. DHS Petition Procedures
After receiving a valid TLC from DOL,
the employer listed on the TLC, an
employer’s agent, or the association of
United States agricultural producers
named as a joint employer on the TLC
(‘‘H–2A petitioner’’) may file the H–2A
petition with the appropriate USCIS
office. INA 214(c)(1), 8 U.S.C.
1184(c)(1); 8 CFR 214.2(h)(2)(i),
(h)(5)(i)(A). The H–2A petitioner may
petition for one or more named or
unnamed H–2A workers, but the total
number of workers may not exceed the
number of positions indicated on the
TLC. 8 CFR 214.2(h)(2)(iii) and
(h)(5)(i)(B). H–2A petitioners must name
the H–2A worker if the worker is in the
United States or if the H–2A worker is
a national of a country that is not
designated as an H–2A participating
country. 8 CFR 214.2(h)(2)(iii). USCIS
recommends that petitioners submit a
separate H–2A petition when requesting
a worker(s) who is a national of a
country that is not designated as an H–
2A participating country. See 8 CFR
214.2(h)(5)(i)(F); see also Identification
of Foreign Countries Whose Nationals
Are Eligible To Participate in the H–2A
and H–2B Nonimmigrant Worker
Programs, Notice, 85 FR 3067 (Jan. 17,
2020). Petitioners for aliens who are
nationals of countries not designated as
an H–2A participating country must
submit evidence demonstrating the
factors by which the request for H–2A
workers serves the U.S. national
interest. 8 CFR 214.2(h)(5)(i)(F)(1)(ii).
USCIS will review each petition naming
a national from a country not on the list
and all supporting documentation and
make a determination on a case-by-case
basis.
A U.S. employer or U.S. agent
generally may submit a new H–2A
petition, with a new, valid TLC, to
USCIS to request an extension of H–2A
nonimmigrant status for a period of up
to 1 year. 8 CFR 214.2(h)(15)(ii)(C). The
H–2A petitioner must name the worker
on the Form I–129, Petition for
Nonimmigrant Worker, since the H–2A
worker is in the United States and
requesting an extension of stay. In the
event of an emergency circumstance,
however, the petitioner may request an
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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.2 8 CFR 214.2(h)(2)(i)(D)
and 8 CFR 274a.12(b)(21). In such a
case, the H–2A worker’s employment
authorization continues for a period not
to exceed 120 days beginning on the
‘‘Received Date’’ on the Form I–797,
Notice of Action, which acknowledges
the receipt of the new H–2A extension
petition. With the exception of the new
employer and worksite, the employment
authorization extension remains subject
to the same conditions and limitations
indicated on the initial H–2A petition.
The continued employment
authorization extension will terminate
automatically if the new employer fails
to remain a participant in good standing
in the E-Verify program, as determined
by USCIS in its discretion.
iii. Admission and Limitations of Stay
Upon USCIS approval of the H–2A
petition, the U.S. employer or agent may
hire the H–2A workers to fill the job
opening. USCIS will generally grant the
workers H–2A classification for up to
the period of time authorized on the
valid TLC. H–2A workers who are
outside of the United States may apply
for a visa with DOS at a U.S. Embassy
or Consulate abroad, if required, and, as
noted above, all H–2A workers who are
outside of the United States must seek
admission to the United States with CBP
at a U.S. port of entry. Spouses and
children of H–2A workers may request
H–4 nonimmigrant status to accompany
the principal H–2A worker. The spouse
and children of an H nonimmigrant, if
they are accompanying or following to
join such H nonimmigrant in the United
States, may be admitted, if otherwise
admissible, as H–4 nonimmigrants for
the same period of admission or
extension as the principal spouse or
parent. 8 CFR 214.2(h)(9)(iv). H–4
dependents of these H–2A workers are
subject to the same limitations on stay,
and permission to remain in the country
during the pendency of the new
employer’s petition, as the H–2A
beneficiary.
2 See ‘‘Changes to Requirements Affecting H–2A
Nonimmigrants,’’ 73 FR 76891, 76905 (Dec. 8,
2008).
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An alien’s H–2A status is limited by
the validity dates on the approved H–2A
petition, which must be less than 1 year.
8 CFR 214.2(h)(5)(viii)(C). H–2A
workers may be admitted into the
United States for a period of up to 1
week prior to the beginning validity
date listed on the approved H–2A
petition so that they may travel to their
worksites, but may not begin work until
the beginning validity date. H–2A
workers may also remain in the United
States 30 days beyond the expiration
date of the approved H–2A petition to
prepare for departure or to seek an
extension or change of nonimmigrant
status. 8 CFR 214.2(h)(5)(viii)(B).
Although they will be considered to be
maintaining valid nonimmigrant status
during this 30-day additional period
beyond the petition expiration date, H–
2A workers do not have employment
authorization outside of the validity
period listed on the approved petition
unless otherwise authorized. 8 CFR
214.2(h)(5)(viii)(B).
The maximum period of stay for an
alien in H–2A classification is 3 years.
8 CFR 214.2(h)(5)(viii)(C). Once an alien
has held H–2A nonimmigrant status for
a total of 3 years, the alien must depart
and remain outside of the United States
for an uninterrupted period of 3 months
before seeking readmission as an H–2A
nonimmigrant. 8 CFR
214.2(h)(5)(viii)(C).
C. COVID–19 National Emergency
On January 31, 2020, the Secretary of
the U.S. Department of Health and
Human Services (HHS) declared a
public health emergency dating back to
January 27, 2020, under section 319 of
the Public Health Service Act (42 U.S.C.
247d), in response to the Coronavirus
Disease 2019 (COVID–19).3 On March
13, 2020, President Trump declared a
National Emergency concerning the
COVID–19 outbreak to control the
spread of the virus in the United States.4
3 HHS, Determination of Public Health
Emergency, 85 FR 7316 (Feb. 7, 2020).
4 Proclamation 9994 of Mar. 13, 2020, Declaring
a National Emergency Concerning the Coronavirus
Disease (COVID–19) Outbreak, 85 FR 15337 (Mar.
18, 2020). See also https://www.whitehouse.gov/
presidential-actions/proclamation-declaringnational-emergency-concerning-novel-coronavirusdisease-covid-19-outbreak/ (last visited Nov. 20,
2020). DHS recognizes that agricultural employers
as well as their workers are encountering rapidly
changing circumstances and unique public health
and safety issues relating to the COVID–19 National
Emergency. DHS encourages H–2A employers to
regularly consult Federal, State, and local guidance
on COVID–19. At the time of this publication,
OSHA’s guidance on COVID–19 is available at
https://www.osha.gov/SLTC/covid-19/, including
guidance for agricultural employers and workers
jointly issued by OSHA and the Centers for Disease
Control and Prevention. OFLC’s guidance on
COVID–19 for H–2A employers is available at
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The President’s proclamation declared
that the emergency began on March 1,
2020. In response to the Mexican
government’s call to increase social
distancing, DOS announced the
temporary suspension of routine
immigrant and nonimmigrant visa
services processed at the U.S. Embassy
in Mexico City and all U.S. Consulates
in Mexico beginning on March 18,
2020.5 DOS expanded the temporary
suspension of routine immigrant and
nonimmigrant visa services to all U.S.
Embassies and Consulates on March 20,
2020.6 DOS designated H–2A visas as
mission critical, however, and
announced that U.S. Embassies and
Consulates have continued to process
H–2A cases to the extent possible and
implemented a change in its procedures,
to include interview waivers.7 In
addition, DHS has identified
occupations in food and agriculture as
critical to the U.S. public health and
safety and economy.8
To address disruptions caused by
COVID–19 to the U.S. food agriculture
sector during the spring and summer
agricultural seasons, DHS temporarily
https://www.dol.gov/agencies/eta/foreign-labor. On
November 10, 2020 the CDC and the U.S.
Department of Labor published Interim Guidance
for all agriculture workers and their employers to
protect agriculture workers from coronavirus
disease 2019 (COVID–19). https://www.cdc.gov/
coronavirus/2019-ncov/community/guidanceagricultural-workers.html.
5 DOS, Status of U.S. Consular Operations in
Mexico in Light of COVID–19, https://
mx.usembassy.gov/status-of-u-s-consularoperations-in-mexico-in-light-of-covid-19/ (last
updated Nov. 18, 2020). According to DOS, ‘‘The
U.S. Embassy in Mexico City and U.S. Consulates
in Guadalajara, Monterrey, Nuevo Laredo, and
Hermosillo have resumed limited processing of
routine student and work visa appointments,
including TN visas, as local conditions allow.’’ It
is further noted, ‘‘Because of limited capacity and
safety precautions due to COVID–19, applicants
should expect to experience delays in appointment
availability.’’
6 DOS, Suspension of Routine Visa Services,
https://travel.state.gov/content/travel/en/News/
visas-news/suspension-of-routine-visa-services.html
(last updated Mar. 20, 2020).
7 See DOS website, Important Announcement on
H2 Visas, https://travel.state.gov/content/travel/en/
News/visas-news/important-announcement-on-h2visas.html (last updated Mar. 26, 2020).
8 DHS, Memorandum on Identification of
Essential Critical Infrastructure Workers During
COVID–19 Response, https://www.cisa.gov/sites/
default/files/publications/CISA-Guidance-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).), DHS, Advisory Memorandum on
Identification of Essential Critical Infrastructure
Workers During COVID_10 Response, https://
www.cisa.gov/sites/default/files/publications/
Version_4.0_CISA_Guidance_on_Essential_Critical_
Infrastructure_Workers_
FINAL%20AUG%2018v3.pdf (Aug. 18, 2020).
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amended its H–2A regulations to
provide certain flexibilities to temporary
and seasonal agricultural workers and
their U.S. employers. On April 20, 2020,
DHS issued a temporary final rule (the
‘‘April 20 TFR’’), Temporary Changes to
Requirements Affecting H–2A
Nonimmigrants Due to the COVID–19
National Emergency, which allowed H–
2A workers to begin work with new H–
2A employers, who have valid TLCs
issued by DOL, for a period not to
exceed 45 days immediately after the H–
2A extension of stay petition is received
by USCIS. The April 20 TFR also
allowed petitioners to employ H–2A
workers seeking an extension of stay
beyond the 3-year total limitation of
stay. In the April 20 TFR, DHS indicated
that it would issue a new temporary
final rule to extend its termination date
in the event DHS determined that
economic circumstances related to our
food supply demonstrated a continued
need for these temporary changes to the
regulatory requirements involving H–2A
agricultural employers and workers. The
April 20 TFR was effective from April
20, 2020 through August 18, 2020. 85
FR 21739. DHS subsequently
determined that the public health
emergency and economic circumstances
resulting from COVID 19 necessitated
the continuation of some of the
flexibilities implemented through the
April 20 TFR, namely the ability of H–
2A workers to change employers and
begin work before USCIS approves the
new H–2A petition for the new
employer. Accordingly, DHS issued a
TFR on August 20, 2020 (the ‘‘August 20
TFR’’) extending those flexibilities,
which has been effective for H–2A
petitions that were received on or after
August 19, 2020 through December 17,
2020. 85 FR 51304.
As discussed in more detail below,
due to the continuing health and
economic crisis caused by COVID–19,
DHS has again determined that the
public health emergency and economic
circumstances resulting from COVID–19
are necessitating the continuation of the
flexibilities implemented through the
August 20 TFR. Therefore, DHS is
issuing this TFR to extend those
flexibilities for an additional 180 days,
i.e., through June 16, 2021. This
timeframe differs from the most recent
renewal of a determination of the public
health emergency because DHS believes
that the COVID–19 pandemic may have
a more lasting impact on the U.S. food
agriculture sector beyond the 90 day
public health emergency determination
signed by HHS Secretary Alex Azar on
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October 2, 2020.9 As a result, DHS will
continue to monitor the evolving health
crisis caused by COVID–19 and may
address it in future rules.
II. Discussion
A. Temporary Changes to DHS
Requirements for H–2A Change of
Employer Requests During the COVID–
19 National Emergency
DHS is committed to both protecting
U.S. and foreign workers and to helping
U.S. businesses receive the legal and
work-authorized labor for temporary or
seasonal agricultural labor or services
that they need.
On October 2, 2020, HHS Secretary
Alex Azar signed a renewal of
determination, effective October 23,
2020, that extends the current COVID–
19 public health emergency by up to 90
days.10 This determination that a public
health emergency exists and has existed
since January 27, 2020, nationwide, was
previously renewed on April 21, 2020
and July 23, 2020. The renewal of
determination signals that the United
States is facing continued consequences
of the COVID–19 National Emergency,
which corresponds to the volume of
COVID–19 cases reported by the U.S.
Centers for Disease Control and
Prevention—13,295,605 as of November
30, 2020.11
The COVID–19 pandemic continues
to cause disruptions in the domestic
food supply chain.12 As of October 2,
2020, USDA’s Economic Research
Service reported that ‘‘[t]he coronavirus
(COVID–19) pandemic has widely
impacted the U.S. economy, including
the farm sector and farm households.
Farm businesses have experienced
disruptions to production due to
lowered availability of labor and other
inputs . . . [r]eductions in available
labor affect crop and livestock
production, as well as processing
capacity for crop and animal products
that leave the farm. Reduced processing
capacity results in lower consumption
of certain agricultural commodities.’’ 13
9 See HHS Renewal of Determination That A
Public Health Emergency Exists, https://
www.phe.gov/emergency/news/healthactions/phe/
Pages/covid19-2Oct2020.aspx (Oct. 2, 2020).
10 See HHS Renewal of Determination That A
Public Health Emergency Exists, https://
www.phe.gov/emergency/news/healthactions/phe/
Pages/covid19-2Oct2020.aspx (Oct. 2, 2020).
11 See, https://covid.cdc.gov/covid-data-tracker/
#cases_casesper100klast7days (Last visited Nov. 30,
2020). DHS notes that the total number of cases
changes daily.
12 See, e.g. Food Security and COVID–19, https://
www.worldbank.org/en/topic/agriculture/brief/
food-security-and-covid-19 (last visited Nov. 19,
2020).
13 ‘‘Farms and Farm Households During the
COVID–19 Pandemic,’’ https://www.ers.usda.gov/
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The H–2A program has been crucial to
assuring the continued viability of the
nation’s food supply chain.14
Notwithstanding the availability of the
H–2A program, U.S. farmers are
continuing to experience labor shortages
as fewer workers are able to get to the
United States or are willing to take
health risks in coming to this country to
perform H–2A work. Media outlets in
the United States have continued to
report on these shortages. For example,
a farmer in North Dakota who typically
hires the same eight farmhands from
South Africa to tend his crops was short
half of his crew this year due to COVID–
19.15 In another instance, an executive
director of a farming association noted
that they have had access to 10 percent
to 12 percent fewer H–2A workers in the
area of Idaho in which their farms are
located.16
As the public health emergency and
economic consequences of it continue,
DHS has determined it is necessary to
issue a new temporary final rule to
extend certain flexibilities first
implemented through the April 20 TFR,
and subsequently partially extended
through the August 20 TFR, because
DHS has determined that there is a
continued need for them. This TFR
extends the amendments made by the
August 20 TFR to help U.S. agricultural
employers reduce disruptions in lawful
agricultural-related employment, protect
the nation’s food supply chain, and
lessen impacts from the COVID–19
pandemic and related economic effects,
consistent with the declaration of the
National Emergency. Due to the
continued travel restrictions and visa
processing limitations as a result of
actions taken to mitigate the spread of
COVID–19,17 as well as the possibility
that some H–2A workers may become
covid-19/farms-and-farm-households/ (last visited
Nov. 19, 2020).
14 The Washington Post, ‘‘How one visa program
keeps America fed,’’ https://
www.washingtonpost.com/video/national/how-onevisa-program-keeps-america-fed/2020/06/17/
ac3be98d-1ed1-4d4c-8dc7-85cbbeecb5fc_video.html
(last visited Nov. 20, 2020).
15 Bloomberg, ‘‘Global Food Output Runs Into
Migrant Worker Woes,’’ Aug. 7, 2020, https://
www.bloomberg.com/news/newsletters/2020-08-07/
supply-chains-latest-migrant-worker-shortages-hitfood-output (last visited Nov. 20, 2020).
16 MagicValley.com, ‘‘Indispensable: Foreign
workers critical for many Magic Valley farms,’’ Oct.
1, 2020, https://magicvalley.com/business/
agriculture/indispensable-foreign-workers-criticalfor-many-magic-valley-farms/article_e9720a22534b-5ccf-b694-27e5f9d6b9fe.html (last visited Nov.
24, 2020).
17 U.S. News and World Report, ‘‘U.S., Canada,
Mexico to Extend Border Restrictions Until Late
December,’’ Nov. 18, 2020, https://
www.usnews.com/news/world/articles/2020-11-18/
us-travel-restrictions-at-canada-mexico-borders-setto-be-extended-until-dec-21-official (last visited
Nov. 24, 2020).
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unavailable due to COVID–19 related
illness or a legitimate fear of contracting
COVID–19 under current conditions,18
U.S. employers who have approved H–
2A petitions or who will be filing H–2A
petitions might not receive all of the
workers requested to fill the temporary
positions, and similarly, employers that
currently employ H–2A workers may
lose the services of workers due to
COVID–19 related illness. For example,
Purdue University estimates as of
November 24, 2020 more than 247,000
agricultural workers have contracted
COVID–19.19 Though not all of these
cases involve H–2A nonimmigrant
workers, this research highlights the
particular serious risks and
vulnerabilities to contracting COVID–19
that farmworkers experience.
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
18 See e.g. See e.g. National Center for
Farmworker Health: COVID–19 in Rural America:
Impact on Farms & Agricultural Workers (‘‘As of
October 18th, 99% of rural counties in America had
reported positive COVID–19 cases and 81% had
reported one or more deaths. More than one million
rural residents have tested positive for COVID–19
and 22,613 deaths among rural Americans have
been attributed to the disease.’’), https://
www.ncfh.org/msaws-and-covid-19.html (Last
visited Dec. 1, 2020), and also The Wall Street
Journal, ‘‘Coronavirus Hits Nation’s Key Apple,
Cherry Farms,’’ Jul. 6, 2020, https://www.wsj.com/
articles/coronavirus-hits-nations-key-apple-cherryfarms-11594027802 (last visited Nov. 20, 2020).
Patch, ‘‘Newsom Opens Hotel Rooms For
Farmworkers Exposed To Coronavirus,’’ Jul. 29,
2020, https://patch.com/california/santamonica/s/
h6xix/newsom-opens-hotel-rooms-farmworkersexposed-coronavirus (last visited Nov. 20, 2020).
U.S. News & World Report, ‘‘Nearly 190
Farmworkers Contract Virus in Southern
California,’’ Jul. 6, 2020, https://www.usnews.com/
news/best-states/california/articles/2020-07-06/
nearly-190-farmworkers-contract-virus-in-southerncalifornia (last visited Nov. 20, 2020).
19 Purdue University, College of Agriculture,
‘‘Food and Agricultural Vulnerability Index
Dashboard’’, https://ag.purdue.edu/agecon/Pages/
FoodandAgVulnerabilityIndex.aspx?_
ga=2.56793390.563531196.16022523821692557252.1601925927 (last visited Dec. 1, 2020).
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by U.S. employers as well as workers
due to COVID–19 as the winter and
spring seasons approach.20 See new 8
CFR 214.2(h)(22) and 8 CFR
274a.12(b)(28). However, nothing in this
TFR changes the existing DOL
requirements for obtaining a TLC which
an employer must comply with before
filing an H–2A petition with USCIS.
Unlike the permanent regulation at 8
CFR 274a.12(b)(21), which allows the
H–2A worker(s) to immediately work for
a new H–2A employer in good standing
in E-Verify upon the filing of an H–2A
extension of stay petition, this TFR, like
the April 20 and August 20 TFRs,
allows the H–2A worker(s) to
immediately work for any new H–2A
employer, but no earlier than the start
date of employment listed on the H–2A
petition, upon the filing of an H–2A
extension of stay petition during the
COVID–19 National Emergency only.
DHS remains committed to promoting
the use of E-Verify to ensure a legal
workforce. E-Verify is free, user
friendly, and over 98 percent accurate.21
Notwithstanding the numerous benefits
E-Verify offers to ensure all employers
only employ a legal workforce, DHS has
determined that it is necessary to
temporarily amend its regulations
affecting H–2A workers to mitigate the
impact on the agricultural industry due
to COVID–19. These H–2A petitioners
will have completed a test of the U.S.
labor market, and DOL will have
determined that there are no qualified
U.S. workers available to fill these
20 The Apr. 20 TFR provided temporary
exceptions to DHS regulations at 8 CFR
214.2(h)(5)(viii)(C), (h)(13)(i)(B), and (h)(15)(ii)(C)
that had allowed aliens to extend their H–2A period
of stay beyond the 3-year limitation, without first
requiring them to remain outside of the United
States for an uninterrupted period of 3 months. As
described in the Aug. 20 TFR, DHS determined that
it was necessary to provide stability to the U.S. food
supply chain, address the urgent needs of U.S.
agricultural producers, and ensure that those aliens
admitted into the United States as temporary
workers in the H–2A nonimmigrant classification in
fact remain in this country on a temporary basis,
as required by the Act. 8 U.S.C.
1101(a)(15)(H)(ii)(a). Therefore, DHS did not extend
the Apr. 20 TFR temporary exceptions to its
regulations at 8 CFR 214.2(h)(5)(viii)(C),
(h)(13)(i)(B), and (h)(15)(ii)(C). With this TFR, DHS
maintains the belief that a balance is required
between providing stability to the U.S. food supply
chain and ensuring foreign agricultural workers are
in the country on a temporary basis, and therefore,
DHS is not including temporary exceptions to allow
aliens to extend their H–2A period of stay beyond
the 3-year limitation. Consequently, USCIS will
continue to apply the 3-year limit reflected in
permanent DHS regulations to any H–2A petition
that is received on or after Dec. 18, 2020. Petitioners
who seek foreign workers to fill a permanent need
and/or to remain in the country permanently, must
comply with requirements applicable to permanent
positions. See 8 U.S.C. 1153(b)(3).
21 See https://www.e-verify.gov/about-e-verify/everify-data/e-verify-performance (last updated Oct.
1, 2020).
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temporary positions. DHS believes that
granting H–2A workers the option to
begin employment with any new H–2A
petitioner as soon as the H–2A petition
is received by USCIS will also benefit
U.S. agricultural employers and help
provide stability to the U.S. food supply
chain during the unique challenges the
country faces because of COVID–19.
To be approved under this final rule,
an H–2A petition for an extension of
stay with a new employer must be
received on or after December 18, 2020,
but no later than June 16, 2021. If the
new petition is approved, the H–2A
worker’s extension of stay may be
granted for the validity of the approved
petition, and for a period not to exceed
the validity period of the TLC. In
addition, the temporary provisions
being extended by this rule are the same
as the April 20 and August 20 TFRs
provisions but differ from the
permanent regulatory provisions in that
they grant employment authorization for
45 days from the date of the receipt
notice. The 45-day employment
authorization associated with the filed
petition will automatically terminate 15
days after the date of denial or
withdrawal if USCIS denies the petition,
or if the petition is withdrawn.
To provide greater certainty to the
market for the winter and spring
agricultural seasons, the changes made
by this final rule will automatically
terminate on June 16, 2021. DHS will
continue to monitor the rapidly
evolving situation surrounding the
COVID–19 pandemic and associated
economic consequences and will
determine whether continued
flexibilities are needed beyond the 180
days. USCIS will continue to adjudicate
H–2A petitions received no later than
June 16, 2021 under the provisions of
this rule. Unless the exceptions
contained in this temporary final rule
are further extended, any H–2A petition
received after the termination of this
temporary final rule will be adjudicated
in accordance with the existing
permanent provisions. See 8 CFR
214.2(h)(2)(i)(D) and 274a.12(b)(21).
III. Statutory and Regulatory
Requirements
A. Administrative Procedure Act
This rule is being issued without prior
notice and opportunity to comment and
with an immediate effective date
pursuant to sections 553(b) and (d) of
the Administrative Procedure Act
(APA). 5 U.S.C. 551 et seq.
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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-andcomment rulemaking ‘‘excuses notice
and comment in emergency situations,
or where delay could result in serious
harm.’’ Jifry v. FAA, 370 F.3d 1174,
1179 (D.C. Cir. 2004). Although the good
cause exception is ‘‘narrowly construed
and only reluctantly countenanced,’’
Tenn. Gas Pipeline Co. v. FERC, 969
F.2d 1141, 1144 (D.C. Cir. 1992), DHS
has appropriately invoked the exception
in this case, for the reasons set forth
below. As also discussed earlier in this
preamble, on January 31, 2020, the
Secretary of Health and Human Services
declared a public health emergency,
dating back to January 27, 2020, under
section 319 of the Public Health Service
Act in response to COVID–19.22 On
March 13, 2020, President Trump
declared a National Emergency
concerning the COVID–19 outbreak,
dated back to March 1, 2020, to control
the spread of the virus in the United
States.23 In response to the Mexican
government’s call to increase social
distancing in that country, DOS
announced the temporary suspension of
routine immigrant and nonimmigrant
visa services processed at the U.S.
Embassy in Mexico City and all U.S.
Consulates in Mexico beginning on
March 18, 2020.24 DOS expanded the
temporary suspension of routine
immigrant and nonimmigrant visa
services at all U.S. Embassies and
Consulates on March 20, 2020.25 On
October 2, 2020, the U.S. Department of
Health and Human Services (HHS)
Secretary Alex Azar signed a renewal of
determination, effective October 23, that
extends the current COVID–19 public
health emergency by up to 90 days.26
This determination that a public health
emergency exists and has existed since
January 27, 2020, nationwide, was
previously renewed on April 21, 2020
and on July 23, 2020.
DOS designated H–2A visas as
mission critical, and announced that
U.S. Embassies and Consulates will
22 Determination
of Public Health Emergency.
9994.
24 Status of U.S. Consular Operations in Mexico
in Light of COVID–19.
25 Suspension of Routine Visa Services.
26 See HHS Renewal of Determination That A
Public Health Emergency Exists, https://
www.phe.gov/emergency/news/healthactions/phe/
Pages/covid19-2Oct2020.aspx (Oct. 2, 2020).
23 Proclamation
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continue to process H–2 cases to the
extent possible and implemented a
change in its procedures, to include
interview waivers.27 In addition, DHS
identified occupations in food and
agriculture as critical to the U.S. public
health and safety and economy.28 Due to
extended travel restrictions, the limited
resumption of routine visa services, as
well as the possibility that some U.S.
and H–2A workers may become
unavailable due to illness related to the
spread of COVID–19 29, as well as
reasonable health concerns of workers
outside of the United States regarding
accepting employment in this country
during the current health crisis, U.S.
employers who have approved
temporary agricultural labor
certifications and/or who will be filing
H–2A petitions might not receive, or be
able to continuously employ, all of the
workers requested to fill all of their
DHS-approved temporary or seasonal
agricultural positions. Due to these
anticipated labor shortages, these
employers may continue to experience
adverse economic impacts to their
agricultural operations. Finally, COVID–
19 continues to cause disruptions in
domestic food supply chains which has
led to food insecurity on a global
level.30 To partially address these
concerns, DHS is acting expeditiously to
put in place rules that will facilitate the
continued employment of H–2A
workers already present in the United
States. It is intended that this action will
reduce labor disruptions that could
affect business operations of U.S.
employers for the upcoming laborintensive winter and spring seasons,
27 Important
Announcement on H2 Visas.
Memorandum on Identification of
Essential Critical Infrastructure Workers During
COVID–19 Response. DHS Advisory Memorandum
on Identification of Essential Critical Infrastructure
Workers During COVID_10 Response.
29 See e.g. National Center for Farmworker
Health: COVID–19 in Rural America: Impact on
Farms & Agricultural Workers (‘‘As of October 18th,
99% of rural counties in America had reported
positive COVID–19 cases and 81% had reported one
or more deaths. More than one million rural
residents have tested positive for COVID–19 and
22,613 deaths among rural Americans have been
attributed to the disease.’’), https://www.ncfh.org/
msaws-and-covid-19.html (Last visited Dec. 1,
2020).
30 See, e.g. Food Security and COVID–19, https://
www.worldbank.org/en/topic/agriculture/brief/
food-security-and-covid-19 (last visited Nov. 23,
2020). See also, ‘‘Farms and Farm Households
During the COVID–19 Pandemic’’ https://
www.ers.usda.gov/covid-19/farms-and-farmhouseholds/ (last visited Nov. 23, 2020) indicating
that ‘‘Farm businesses have experienced
disruptions to production due to lowered
availability of labor and other inputs . . .
[r]eductions in available labor affect crop and
livestock production, as well as processing capacity
for crop and animal products that leave the farm.
Reduced processing capacity results in lower
consumption of certain agricultural commodities.’’
28 DHS
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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 (D.C. Cir. 1982), or to avoid
‘‘economic harm and disruption’’ to a
given industry, which would likely
result in higher consumer prices, Am.
Fed’n of Gov’t Emps. v. Block, 655 F.2d
1153, 1156 (D.C. Cir. 1981). Consistent
with the above authorities, DHS has
bypassed notice and comment to
facilitate the employment of H–2A
workers already in the United States,
and prevent potential economic harms
to H–2A agricultural employers and
downstream employers engaged in the
processing of agricultural products, as
well as potential harms to the American
economy and people that could result
from ongoing uncertainty over the
availability of H–2A agricultural
workers, and potential associated
negative impacts on food security in the
United States. See Bayou Lawn &
Landscape Servs. v. Johnson, 173 F.
Supp. 3d 1271, 1285 & n.12 (N.D. Fla.
2016). This action is temporary in
nature, and includes appropriate
conditions to ensure that it is narrowly
tailored to the National Emergency
caused by COVID–19.
2. Good Cause To Proceed With an
Immediate Effective Date
The APA also authorizes agencies to
make a rule effective immediately, upon
a showing of good cause, instead of
imposing a 30-day delay. 5 U.S.C.
553(d)(3). The good-cause exception to
the 30-day effective date requirement is
easier to meet than the good-cause
exception for forgoing notice and
comment rulemaking. Riverbend Farms,
Inc. v. Madigan, 958 F.2d 1479, 1485
(9th Cir. 1992); Am. Fed’n of Gov’t
Emps., AFL–CIO v. Block, 655 F.2d
1153, 1156 (D.C. Cir. 1981); U.S. Steel
Corp. v. EPA, 605 F.2d 283, 289–90 (7th
Cir. 1979). An agency can show good
cause for eliminating the 30-day delayed
effective date when it demonstrates
urgent conditions the rule seeks to
correct or unavoidable time limitations.
U.S. Steel Corp., 605 F.2d at 290; United
States v. Gavrilovic, 511 F.2d 1099,
1104 (8th Cir. 1977). For the same
reasons set forth above, DHS also
concludes that the Department has good
cause to dispense with the 30-day
effective date requirement given that
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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.
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C. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5
U.S.C. 601 et seq. (RFA), imposes
certain requirements on Federal agency
rules that are subject to the notice and
comment requirements of the APA. See
5 U.S.C. 603(a), 604(a). This final rule is
exempt from notice and comment
requirements for the reasons stated
above in Part III.A. Therefore, the
requirements of the RFA applicable to
final rules, 5 U.S.C. 604, do not apply
to this final rule. Accordingly, DHS is
not required to either certify that the
final rule would not have a significant
economic impact on a substantial
number of small entities or conduct a
regulatory flexibility analysis.
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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 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
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023–01–001–01 Rev. 01 (Instruction
Manual) establish the policies and
procedures that DHS and its
components use to comply with NEPA
and the Council on Environmental
Quality (CEQ) regulations for
implementing NEPA, 40 CFR parts
1500–1508.
The CEQ regulations allow federal
agencies to establish, with CEQ review
and concurrence, categories of actions
(‘‘categorical exclusions’’) which
experience has shown do not
individually or cumulatively have a
significant effect on the human
environment and, therefore, do not
require an Environmental Assessment
(EA) or Environmental Impact
Statement (EIS). 40 CFR 1507.3(b)(2)(ii),
1508.4. Categorical exclusions
established by DHS are set forth in
Appendix A of the Instruction Manual.
Under DHS NEPA implementing
procedures, for an action to be
categorically excluded, it must satisfy
each of the following three conditions:
(1) The entire action clearly fits within
one or more of the categorical
exclusions; (2) the action is not a piece
of a larger action; and (3) no
extraordinary circumstances exist that
create the potential for a significant
environmental effect. Instruction
Manual section V.B(2)(a)–(c). This rule
temporarily amends regulations
governing the H–2A nonimmigrant visa
program to facilitate the continued
employment of H–2A nonimmigrants in
the United States by allowing them to
change employers in the United States
and begin working in the same visa
classification for a period not to exceed
45 days before the nonimmigrant visa
petition is approved, due to the National
Emergency caused by the COVID–19
global pandemic. This rule does not
change the number of H–2A workers
that may be employed by U.S.
employers as there is not an established
statutory limit. It also does not change
rules for where H–2A nonimmigrants
may be employed; only employers with
approved temporary labor certifications
for workers to perform temporary or
seasonal agricultural work may be
allowed to employ H–2A workers under
these temporary provisions. Generally,
DHS believes NEPA does not apply to
a rule intended to make it easier for H–
2A employers to hire workers who are
already in the United States in addition
to, or instead of, also hiring H–2A
workers from abroad because any
attempt to analyze its potential impacts
would be largely speculative, if not
completely so. DHS cannot reasonably
estimate how many petitions will be
filed under these temporary provisions,
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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.
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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:
■
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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)(22) to read as follows:
■
associated with the filing of that petition
under 8 CFR 274a.12(b)(28) will
automatically terminate 15 days after
the date of the denial decision or the
date on which the petition is
withdrawn.
(ii) Authorization to initiate
employment changes pursuant to this
paragraph (h)(22) begins at 12 a.m. on
December 18, 2020, and ends at the end
of June 16, 2021.
*
*
*
*
*
§ 214.2 Special requirements for
admission, extension, and maintenance of
status.
PART 274a—CONTROL OF
EMPLOYMENT OF ALIENS
*
■
*
*
*
*
(h) * * *
(22) Change of employers during
COVID–19 National Emergency. (i) If an
H–2A nonimmigrant who is physically
present in the United States seeks to
change employers during the COVID–19
National Emergency, the prospective
new H–2A employer may file an H–2A
petition on Form I–129, accompanied by
a valid temporary agricultural labor
certification, requesting an extension of
the alien’s stay in the United States. To
be approved under this paragraph
(h)(22), an H–2A petition must be
received on or after December 18, 2020
but no later than June 16, 2021. If the
new petition is approved, the extension
of stay may be granted for the validity
of the approved petition for a period not
to exceed the validity period of the
temporary agricultural labor
certification. Notwithstanding
paragraph (h)(2)(i)(D) of this section and
8 CFR 274a.12(b)(21), an alien in valid
H–2A nonimmigrant status on
December 18, 2020, or lawfully
obtaining such status thereafter
pursuant to this paragraph (h)(22), is
authorized to begin employment with
the new petitioner after the petition
described in this paragraph (h)(22) is
received by USCIS, but no earlier than
the start date of employment, indicated
in the H–2A petition. The H–2A worker
is authorized to commence employment
with the petitioner before the petition is
approved and subject to the
requirements of 8 CFR 274a.12(b)(28) for
a period of up to 45 days beginning on
the Received Date on Form I–797
(Notice of Action) or, if the start date of
employment occurs after the I–797
Received Date, 45 days beginning on the
start date of employment indicated in
the H–2A petition. If USCIS adjudicates
the petition prior to the expiration of
this 45-day period and denies the
petition for extension of stay, or if the
petition is withdrawn by the petitioner
before the expiration of the 45-day
period, the employment authorization
PO 00000
Frm 00008
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.
4. Amend § 274a.12 by adding
paragraph (b)(28) to read as follows:
■
§ 274a.12 Classes of aliens authorized to
accept employment.
*
*
*
*
*
(b) * * *
(28)(i) Pursuant to 8 CFR 214.2(h)(22)
and notwithstanding 8 CFR
214.2(h)(2)(i)(D) and paragraph (b)(21)
of this section, an alien is authorized to
be employed, but no earlier than the
start date of employment indicated in
the H–2A petition, by a new employer
that has filed an H–2A petition naming
the alien as a beneficiary and requesting
an extension of stay for the alien, for a
period not to exceed 45 days beginning
from the ‘‘Received Date’’ on Form I–
797 (Notice of Action) acknowledging
receipt of the petition requesting an
extension of stay, or 45 days beginning
on the start date of employment if the
start date of employment indicated in
the H–2A petition occurs after the filing.
The length of the period (up to 45 days)
is to be determined by USCIS in its
discretion. However, if USCIS
adjudicates the petition prior to the
expiration of this 45-day period and
denies the petition for extension of stay,
or if the petitioner withdraws the
petition before the expiration of the 45day period, the employment
authorization under this paragraph
(b)(28) will automatically terminate
upon 15 days after the date of the denial
decision or the date on which the
petition is withdrawn.
(ii) Authorization to initiate
employment changes pursuant to 8 CFR
214.2(h)(22) and paragraph (b)(28)(i) of
this section begins at 12 a.m. on
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Federal Register / Vol. 85, No. 244 / Friday, December 18, 2020 / Rules and Regulations
December 18, 2020, and ends at the end
of June 16, 2021.
*
*
*
*
*
Chad R. Mizelle,
Senior Official Performing the Duties of the
General Counsel, U.S. Department of
Homeland Security.
[FR Doc. 2020–27661 Filed 12–17–20; 8:45 am]
BILLING CODE 9111–97–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2020–1121; Project
Identifier MCAI–2020–01546–T; Amendment
39–21356; AD 2020–26–01]
RIN 2120–AA64
Airworthiness Directives; Airbus SAS
Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule; request for
comments.
AGENCY:
The FAA is superseding
Airworthiness Directive (AD) 2019–03–
18, which applied to all Airbus SAS
Model A318–111, –112, –121, and –122
airplanes; Model A319–111, –112, –113,
–114, –115, –131, –132, and –133
airplanes; and Model A320–211, –212,
–214, –216, –231, –232, and –233
airplanes. AD 2019–03–18 required
repetitive general visual inspections for
cracks, and replacement if necessary, of
certain main landing gear (MLG) sliding
tubes that were subject to improperly
performed magnetic particle
inspections. This AD continues to
require repetitive general visual
inspections of the affected MLG sliding
tubes for cracks and replacement if
necessary, and requires inspections, and
replacement if necessary, of additional
MLG sliding tubes; as specified in a
European Union Aviation Safety Agency
(EASA) AD, which is incorporated by
reference. This AD was prompted by the
identification of additional MLG sliding
tubes that might have been subject to
the same improperly performed
magnetic particle inspection. The FAA
is issuing this AD to address the unsafe
condition on these products.
DATES: This AD becomes effective
January 4, 2021.
The Director of the Federal Register
approved the incorporation by reference
of a certain publication listed in this AD
as of January 4, 2021.
The FAA must receive comments on
this AD by February 1, 2021.
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SUMMARY:
VerDate Sep<11>2014
19:27 Dec 17, 2020
Jkt 253001
You may send comments,
using the procedures found in 14 CFR
11.43 and 11.45, by any of the following
methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 202–493–2251.
• Mail: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE,
Washington, DC 20590.
• Hand Delivery: Deliver to Mail
address above between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
For material incorporated by reference
(IBR) in this AD, contact the EASA,
Konrad-Adenauer-Ufer 3, 50668
Cologne, Germany; telephone +49 221
8999 000; email ADs@easa.europa.eu;
internet www.easa.europa.eu. You may
find this IBR material on the EASA
website at https://ad.easa.europa.eu.
You may view this IBR material at the
FAA, Airworthiness Products Section,
Operational Safety Branch, 2200 South
216th St., Des Moines, WA. For
information on the availability of this
material at the FAA, call 206–231–3195.
It is also available in the AD docket on
the internet at https://
www.regulations.gov by searching for
and locating Docket No. FAA–2020–
1121.
ADDRESSES:
Examining the AD Docket
You may examine the AD docket on
the internet at https://
www.regulations.gov by searching for
and locating Docket No. FAA–2020–
1121; or in person at Docket Operations
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
The AD docket contains this AD, any
comments received, and other
information. The street address for
Docket Operations is listed above.
Comments will be available in the AD
docket shortly after receipt.
FOR FURTHER INFORMATION CONTACT:
Sanjay Ralhan, Aerospace Engineer,
Large Aircraft Section, International
Validation Branch, FAA, 2200 South
216th St., Des Moines, WA 98198;
telephone and fax 206–231–3223.
SUPPLEMENTARY INFORMATION:
Discussion
The FAA issued AD 2019–03–18,
Amendment 39–19570 (84 FR 7804,
March 5, 2019) (AD 2019–03–18), which
applied to all Airbus SAS Model A318–
111, –112, –121, and –122 airplanes;
Model A319–111, –112, –113, –114,
–115, –131, –132, and –133 airplanes;
and Model A320–211, –212, –214, –216,
PO 00000
Frm 00009
Fmt 4700
Sfmt 4700
82299
–231, –232, and –233 airplanes. AD
2019–03–18 required repetitive general
visual inspections of the MLG sliding
tubes for cracks, and replacement if
necessary. The FAA issued AD 2019–
03–18 to address cracks on the MLG
sliding tubes, which could cause MLG
sliding tube fracture, and could result in
the MLG collapsing, damage to the
airplane, and injury to occupants.
Actions Since AD 2019–03–18 Was
Issued
Since the FAA issued AD 2019–03–
18, additional MLG sliding tubes have
been identified that might also have
been subject to the same improperly
performed magnetic particle inspection.
The EASA, which is the Technical
Agent for the Member States of the
European Union, has issued EASA AD
2020–0258, dated November 18, 2020;
corrected November 19, 2020 (EASA AD
2020–0258) (also referred to as the
Mandatory Continuing Airworthiness
Information, or the MCAI), to correct an
unsafe condition for all Airbus SAS
Model A318–111, A318–112, A318–121,
A318–122, A319–111, A319–112, A319–
113, A319–114, A319–115, A319–131,
A319–132, A319–133, A320–211, A320–
212, A320–214, A320–215, A320–216,
A320–231, A320–232 and A320–233
airplanes. EASA AD 2020–0258
supersedes EASA AD 2018–0136, dated
June 26, 2018 (which corresponds to
FAA AD 2019–03–18). Model A320–215
airplanes are not certificated by the FAA
and are not included on the U.S. type
certificate data sheet; this AD, therefore,
does not include those airplanes in the
applicability.
This AD was prompted by reports of
cracks found on additional MLG sliding
tubes that may have been subject to the
same improperly performed magnetic
particle inspection. The FAA is issuing
this AD to address cracks on the MLG
sliding tubes, which could cause MLG
sliding tube fracture, and could result in
the MLG collapsing, damage to the
airplane, and injury to occupants. See
the MCAI for additional background
information.
Explanation of Retained Requirements
Although this AD does not explicitly
restate the requirements of AD 2019–
03–18, this AD retains certain
requirements of AD 2019–03–18. Those
requirements are referenced in EASA
AD 2020–0258, which, in turn, is
referenced in paragraph (g) of this AD.
Relationship Between This AD and AD
2020–21–09
EASA AD 2020–0258 notes that EASA
AD 2020–0193, dated September 7, 2020
(EASA AD 2020–0193), requires a one-
E:\FR\FM\18DER1.SGM
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]]>Agencies
[Federal Register Volume 85, Number 244 (Friday, December 18, 2020)]
[Rules and Regulations]
[Pages 82291-82299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27661]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 85, No. 244 / Friday, December 18, 2020 /
Rules and Regulations
[[Page 82291]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214 and 274a
[CIS No. 2678-21; DHS Docket No. USCIS-2020-0008]
RIN 1615-AC55
Temporary Changes to Requirements Affecting H-2A Nonimmigrants
due to the COVID-19 National Emergency: Extension of Certain
Flexibilities
AGENCY: U.S. Citizenship and Immigration Services (USCIS), Department
of Homeland Security (DHS).
ACTION: Temporary final rule.
-----------------------------------------------------------------------
SUMMARY: As a result of continued disruptions and uncertainty to the
U.S. food agriculture sector during the upcoming winter and spring
agricultural seasons caused by the global novel Coronavirus Disease
2019 (COVID-19) public health emergency, the Department of Homeland
Security, (``DHS'' or ``the Department''), U.S. Citizenship and
Immigration Services, has decided it is necessary to temporarily extend
the amendments to certain regulations regarding temporary and seasonal
agricultural workers, and their U.S. employers, within the H-2A
nonimmigrant classification. Through this temporary final rule DHS is
extending the provisions of the August 20, 2020, temporary final rule.
Namely, DHS will continue to allow H-2A employees whose extensions of
stay H-2A petitions are supported by valid temporary labor
certifications issued by the U.S. Department of Labor to begin work
with a new employer immediately after the extension of stay petition is
received by USCIS. DHS will apply this temporary final rule to H-2A
petitions requesting an extension of stay, if they were received on or
after December 18, 2020, but no later than June 16, 2021. The temporary
extension of these flexibilities will ensure that agricultural
employers have access to the orderly and timely flow of legal foreign
workers, thereby protecting the integrity of the nation's food supply
chain and decreasing possible reliance on unauthorized aliens, while at
the same time encouraging agricultural employers' use of the H-2A
program, which protects the rights of U.S. and foreign workers.
DATES: This final rule is effective from December 18, 2020, through
December 18, 2023. Employers may request the flexibilities under this
rule by filing an H-2A petition on or after December 18, 2020, and
through June 16, 2021.
FOR FURTHER INFORMATION CONTACT: Charles L. Nimick, Chief, Business and
Foreign Workers Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
by mail at 5900 Capital Gateway Dr., Camp Springs, MD 20529-2140; or by
phone at 240-721-3000.
Individuals with hearing or speech impairments may access the
telephone numbers above via TTY by calling the toll-free Federal
Information Relay Service at 1-877-889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Legal Framework
B. Description of the H-2A Program
i. DOL Temporary Labor Certification Procedures
ii. DHS Petition Procedures
iii. Admission and Limitations of Stay
C. COVID-19 National Emergency
II. Discussion
A. Temporary Changes to DHS Requirements for H-2A Change of
Employer Requests During the COVID-19 National Emergency
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Executive Orders 12866 (Regulatory Planning and Review) and
13563 (Improving Regulation and Regulatory Review)
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Congressional Review Act
H. National Environmental Policy Act
I. Signature
I. Background
A. Legal Framework
The Secretary of Homeland Security (Secretary) has the authority to
amend this regulation under section 102 of the Homeland Security Act of
2002 (HSA), Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 112, and
section 103(a) of the Immigration and Nationality Act (INA), 8 U.S.C.
1103(a), which authorize the Secretary to administer and enforce the
immigration and nationality laws. Under section 101 of the HSA, 6
U.S.C. 111(b)(1)(F), a primary mission of DHS is to ``ensure that the
overall economic security of the United States is not diminished by
efforts, activities, and programs aimed at securing the homeland.'' In
addition, section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), provides
the Secretary with authority to prescribe the terms and conditions of
any alien's admission to the United States as a nonimmigrant. The INA
further requires that ``[t]he question of importing any alien as [an H-
2A] nonimmigrant . . . in any specific case or specific cases shall be
determined by [DHS], after consultation with appropriate agencies of
the Government [the U.S. Department of Labor and the U.S. Department of
Agriculture], upon petition by the importing employer.'' INA 214(c)(1),
8 U.S.C. 1184(c)(1). Section 274A(h)(3)(B) of the INA, 8 U.S.C.
1324a(h)(3)(B), states that ```an unauthorized alien' means . . . that
the alien is not at that time . . . authorized to be employed by this
chapter or by the [Secretary].''
B. Description of the H-2A Program
The H-2A nonimmigrant classification applies to alien workers
seeking to perform agricultural labor or services of a temporary or
seasonal nature in the United States on a temporary basis, usually
lasting no longer than 1 year, for which U.S. workers are not
available. INA 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a);
see also 8 CFR 214.1(a)(2). As noted in the statute, not only must the
alien be coming ``temporarily'' to the United States, but the
agricultural labor or services that the alien is performing must also
be ``temporary or seasonal.'' INA 101(a)(15)(H)(ii)(a). The Department
of Homeland Security (``DHS'' or ``the Department'') regulations
further define
[[Page 82292]]
an employer's temporary need as employment that is of a temporary
nature where the employer's need to fill the position with a temporary
worker will, except in extraordinary circumstances, last no longer than
1 year. 8 CFR 214.2(h)(5)(iv)(A). An employer's seasonal need is
defined as employment that is tied to a certain time of year by an
event or pattern, such as a short annual growing cycle or a specific
aspect of a longer cycle, and requires labor levels above those
necessary for ongoing operations. Id.
An employer, agent, or association (``H-2A petitioner'') must
submit a petition to U.S. Citizenship and Immigration Services (USCIS)
to obtain classification of temporary workers as H-2A nonimmigrants
before the employer may begin employing H-2A workers. INA 214(c)(1), 8
U.S.C. 1184(c)(1); 8 CFR 214.2(h)(2)(i). DHS must approve this petition
before the alien can be considered eligible for H-2A status or a visa.
To qualify for H-2A classification, the H-2A petitioner must, among
other things, offer a job that is of a temporary or seasonal nature,
and must submit a single, valid temporary labor certification (TLC)
from the U.S. Department of Labor (DOL) establishing that there are not
enough U.S. workers who are able, willing, qualified, and available to
do the temporary work, and that employing H-2A workers will not
adversely affect the wages and working conditions of workers in the
United States similarly employed.\1\ INA 101(a)(15)(H)(ii)(a) and 218,
8 U.S.C. 1101(a)(15)(H)(ii)(a) and 1188; see also generally 8 CFR
214.2(h)(5)(i)(A) and (h)(5)(iv). Aliens who are outside of the United
States also must first obtain an H-2A visa from the U.S. Department of
State (DOS) at a U.S. Embassy or Consulate abroad, if required, and all
aliens who are outside of the United States must seek admission with
U.S. Customs and Border Protection (CBP) at a U.S. port of entry prior
to commencing employment as an H-2A nonimmigrant. Aliens may be
admitted for an additional period of up to one week prior to the
employment start date for the purpose of travel to the worksite, and a
30-day period following the expiration of the H-2A petition for the
purpose of departure or to seek an extension based on a subsequent
offer of employment. Unless authorized under 8 CFR 274a.12 or section
214(n) of the Act, the beneficiary may not work except during the
validity period of the petition. 8 CFR 214.2(h)(5)(viii)(B).
---------------------------------------------------------------------------
\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
satisfaction of the Secretary of Labor that (a) there are not
sufficient U.S. workers who are able, willing, and qualified, and who
will be available at the time and place needed to perform the labor or
services involved in the petition, and (b) the employment of the alien
in such labor or services will not adversely affect the wages and
working conditions of workers in the United States similarly employed.
8 U.S.C. 1188(a)(1); see also 20 CFR 655.100.
To obtain a TLC from DOL, the employer must first submit an
agricultural job order, within 75 to 60 calendar days prior to the
start date of work, to the State Workforce Agency (SWA) that serves the
state where the actual work will be performed. Once it clears the job
order, the SWA will place it into intrastate clearance to initiate the
recruitment of U.S. workers. 20 CFR 655.121. After review by the SWA,
the employer must submit an Application for Temporary Employment
Certification with DOL's Office of Foreign Labor Certification (OFLC)
no less than 45 calendar days before the start date of work. 20 CFR
655.130. OFLC will review the H-2A application and, if it accepts the
application will place a copy of the job order on its electronic job
registry. 20 CFR 655.144(a). OFLC will also direct the SWA to place the
job order into interstate clearance, may direct the SWA to provide
written notice of the job opportunity to relevant organizations and
physically post the job order in locations workers may gather, and may
direct the employer or authorized hiring agent to engage in positive
recruitment. 20 CFR 655.143, 655.150, 655.154. As part of its
recruitment obligations, an employer must offer the job to any recently
laid-off U.S. worker(s) and contact former U.S. workers employed in the
occupation in the previous year. 20 CFR 655.135(g), 655.153. OFLC will
grant certification if the application meets all of the requirements in
the Department of Labor's regulation, including compliance with all
recruitment obligations. 20 CFR 655.161(a). Post-certification, OFLC
will keep the job order posted on its electronic registry until 50
percent of the contract period has elapsed, and the SWA must keep the
job order on file for the same period of time. 20 CFR 655.144, 655.150.
The U.S. employer must also continue to accept referrals of all
eligible U.S. workers and must offer employment to any qualified U.S.
worker that applies for the job opportunity until 50 percent of the
work contract period has elapsed. 20 CFR 655.135(d).
ii. DHS Petition Procedures
After receiving a valid TLC from DOL, the employer listed on the
TLC, an employer's agent, or the association of United States
agricultural producers named as a joint employer on the TLC (``H-2A
petitioner'') may file the H-2A petition with the appropriate USCIS
office. INA 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(2)(i),
(h)(5)(i)(A). The H-2A petitioner may petition for one or more named or
unnamed H-2A workers, but the total number of workers may not exceed
the number of positions indicated on the TLC. 8 CFR 214.2(h)(2)(iii)
and (h)(5)(i)(B). H-2A petitioners must name the H-2A worker if the
worker is in the United States or if the H-2A worker is a national of a
country that is not designated as an H-2A participating country. 8 CFR
214.2(h)(2)(iii). USCIS recommends that petitioners submit a separate
H-2A petition when requesting a worker(s) who is a national of a
country that is not designated as an H-2A participating country. See 8
CFR 214.2(h)(5)(i)(F); see also Identification of Foreign Countries
Whose Nationals Are Eligible To Participate in the H-2A and H-2B
Nonimmigrant Worker Programs, Notice, 85 FR 3067 (Jan. 17, 2020).
Petitioners for aliens who are nationals of countries not designated as
an H-2A participating country must submit evidence demonstrating the
factors by which the request for H-2A workers serves the U.S. national
interest. 8 CFR 214.2(h)(5)(i)(F)(1)(ii). USCIS will review each
petition naming a national from a country not on the list and all
supporting documentation and make a determination on a case-by-case
basis.
A U.S. employer or U.S. agent generally may submit a new H-2A
petition, with a new, valid TLC, to USCIS to request an extension of H-
2A nonimmigrant status for a period of up to 1 year. 8 CFR
214.2(h)(15)(ii)(C). The H-2A petitioner must name the worker on the
Form I-129, Petition for Nonimmigrant Worker, since the H-2A worker is
in the United States and requesting an extension of stay. In the event
of an emergency circumstance, however, the petitioner may request an
[[Page 82293]]
extension not to exceed 14 days without first having to obtain an
additional approved TLC from DOL if certain criteria are met, by simply
submitting the new H-2A petition. See 8 CFR 214.2(h)(5)(x).
In 2008, USCIS promulgated regulations allowing H-2A workers to
begin work with a new petitioning employer upon the filing of an H-2A
petition, before petition approval, provided that the new employer is a
participant in good standing in the E-Verify program.\2\ 8 CFR
214.2(h)(2)(i)(D) and 8 CFR 274a.12(b)(21). In such a case, the H-2A
worker's employment authorization continues for a period not to exceed
120 days beginning on the ``Received Date'' on the Form I-797, Notice
of Action, which acknowledges the receipt of the new H-2A extension
petition. With the exception of the new employer and worksite, the
employment authorization extension remains subject to the same
conditions and limitations indicated on the initial H-2A petition. The
continued employment authorization extension will terminate
automatically if the new employer fails to remain a participant in good
standing in the E-Verify program, as determined by USCIS in its
discretion.
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\2\ See ``Changes to Requirements Affecting H-2A
Nonimmigrants,'' 73 FR 76891, 76905 (Dec. 8, 2008).
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iii. Admission and Limitations of Stay
Upon USCIS approval of the H-2A petition, the U.S. employer or
agent may hire the H-2A workers to fill the job opening. USCIS will
generally grant the workers H-2A classification for up to the period of
time authorized on the valid TLC. H-2A workers who are outside of the
United States may apply for a visa with DOS at a U.S. Embassy or
Consulate abroad, if required, and, as noted above, all H-2A workers
who are outside of the United States must seek admission to the United
States with CBP at a U.S. port of entry. Spouses and children of H-2A
workers may request H-4 nonimmigrant status to accompany the principal
H-2A worker. The spouse and children of an H nonimmigrant, if they are
accompanying or following to join such H nonimmigrant in the United
States, may be admitted, if otherwise admissible, as H-4 nonimmigrants
for the same period of admission or extension as the principal spouse
or parent. 8 CFR 214.2(h)(9)(iv). H-4 dependents of these H-2A workers
are subject to the same limitations on stay, and permission to remain
in the country during the pendency of the new employer's petition, as
the H-2A beneficiary.
An alien's H-2A status is limited by the validity dates on the
approved H-2A petition, which must be less than 1 year. 8 CFR
214.2(h)(5)(viii)(C). H-2A workers may be admitted into the United
States for a period of up to 1 week prior to the beginning validity
date listed on the approved H-2A petition so that they may travel to
their worksites, but may not begin work until the beginning validity
date. H-2A workers may also remain in the United States 30 days beyond
the expiration date of the approved H-2A petition to prepare for
departure or to seek an extension or change of nonimmigrant status. 8
CFR 214.2(h)(5)(viii)(B). Although they will be considered to be
maintaining valid nonimmigrant status during this 30-day additional
period beyond the petition expiration date, H-2A workers do not have
employment authorization outside of the validity period listed on the
approved petition unless otherwise authorized. 8 CFR
214.2(h)(5)(viii)(B).
The maximum period of stay for an alien in H-2A classification is 3
years. 8 CFR 214.2(h)(5)(viii)(C). Once an alien has held H-2A
nonimmigrant status for a total of 3 years, the alien must depart and
remain outside of the United States for an uninterrupted period of 3
months before seeking readmission as an H-2A nonimmigrant. 8 CFR
214.2(h)(5)(viii)(C).
C. COVID-19 National Emergency
On January 31, 2020, the Secretary of the U.S. Department of Health
and Human Services (HHS) declared a public health emergency dating back
to January 27, 2020, under section 319 of the Public Health Service Act
(42 U.S.C. 247d), in response to the Coronavirus Disease 2019 (COVID-
19).\3\ On March 13, 2020, President Trump declared a National
Emergency concerning the COVID-19 outbreak to control the spread of the
virus in the United States.\4\ The President's proclamation declared
that the emergency began on March 1, 2020. In response to the Mexican
government's call to increase social distancing, DOS announced the
temporary suspension of routine immigrant and nonimmigrant visa
services processed at the U.S. Embassy in Mexico City and all U.S.
Consulates in Mexico beginning on March 18, 2020.\5\ DOS expanded the
temporary suspension of routine immigrant and nonimmigrant visa
services to all U.S. Embassies and Consulates on March 20, 2020.\6\ DOS
designated H-2A visas as mission critical, however, and announced that
U.S. Embassies and Consulates have continued to process H-2A cases to
the extent possible and implemented a change in its procedures, to
include interview waivers.\7\ In addition, DHS has identified
occupations in food and agriculture as critical to the U.S. public
health and safety and economy.\8\
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\3\ HHS, Determination of Public Health Emergency, 85 FR 7316
(Feb. 7, 2020).
\4\ Proclamation 9994 of Mar. 13, 2020, Declaring a National
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85
FR 15337 (Mar. 18, 2020). See also https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ (last
visited Nov. 20, 2020). DHS recognizes that agricultural employers
as well as their workers are encountering rapidly changing
circumstances and unique public health and safety issues relating to
the COVID-19 National Emergency. DHS encourages H-2A employers to
regularly consult Federal, State, and local guidance on COVID-19. At
the time of this publication, OSHA's guidance on COVID-19 is
available at https://www.osha.gov/SLTC/covid-19/, including guidance
for agricultural employers and workers jointly issued by OSHA and
the Centers for Disease Control and Prevention. OFLC's guidance on
COVID-19 for H-2A employers is available at https://www.dol.gov/agencies/eta/foreign-labor. On November 10, 2020 the CDC and the
U.S. Department of Labor published Interim Guidance for all
agriculture workers and their employers to protect agriculture
workers from coronavirus disease 2019 (COVID-19). https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-agricultural-workers.html.
\5\ DOS, Status of U.S. Consular Operations in Mexico in Light
of COVID-19, https://mx.usembassy.gov/status-of-u-s-consular-operations-in-mexico-in-light-of-covid-19/ (last updated Nov. 18,
2020). According to DOS, ``The U.S. Embassy in Mexico City and U.S.
Consulates in Guadalajara, Monterrey, Nuevo Laredo, and Hermosillo
have resumed limited processing of routine student and work visa
appointments, including TN visas, as local conditions allow.'' It is
further noted, ``Because of limited capacity and safety precautions
due to COVID-19, applicants should expect to experience delays in
appointment availability.''
\6\ DOS, Suspension of Routine Visa Services, https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html (last updated Mar. 20, 2020).
\7\ See DOS website, Important Announcement on H2 Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-h2-visas.html (last updated Mar. 26, 2020).
\8\ DHS, Memorandum on Identification of Essential Critical
Infrastructure Workers During COVID-19 Response, https://www.cisa.gov/sites/default/files/publications/CISA-Guidance-on-Essential-Critical-Infrastructure-Workers-1-20-508c.pdf (Mar. 19,
2020). DHS, Advisory Memorandum on Identification of Essential
Critical Infrastructure Workers During COVID_10 Response, https://www.cisa.gov/sites/default/files/publications/Version_3.1_CISA_Guidance_on_Essential_Critical_Infrastructure_Workers_0.pdf (May 19, 2020).), DHS, Advisory Memorandum on Identification
of Essential Critical Infrastructure Workers During COVID_10
Response, https://www.cisa.gov/sites/default/files/publications/Version_4.0_CISA_Guidance_on_Essential_Critical_Infrastructure_Workers_FINAL%20AUG%2018v3.pdf (Aug. 18, 2020).
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To address disruptions caused by COVID-19 to the U.S. food
agriculture sector during the spring and summer agricultural seasons,
DHS temporarily
[[Page 82294]]
amended its H-2A regulations to provide certain flexibilities to
temporary and seasonal agricultural workers and their U.S. employers.
On April 20, 2020, DHS issued a temporary final rule (the ``April 20
TFR''), Temporary Changes to Requirements Affecting H-2A Nonimmigrants
Due to the COVID-19 National Emergency, which allowed H-2A workers to
begin work with new H-2A employers, who have valid TLCs issued by DOL,
for a period not to exceed 45 days immediately after the H-2A extension
of stay petition is received by USCIS. The April 20 TFR also allowed
petitioners to employ H-2A workers seeking an extension of stay beyond
the 3-year total limitation of stay. In the April 20 TFR, DHS indicated
that it would issue a new temporary final rule to extend its
termination date in the event DHS determined that economic
circumstances related to our food supply demonstrated a continued need
for these temporary changes to the regulatory requirements involving H-
2A agricultural employers and workers. The April 20 TFR was effective
from April 20, 2020 through August 18, 2020. 85 FR 21739. DHS
subsequently determined that the public health emergency and economic
circumstances resulting from COVID 19 necessitated the continuation of
some of the flexibilities implemented through the April 20 TFR, namely
the ability of H-2A workers to change employers and begin work before
USCIS approves the new H-2A petition for the new employer. Accordingly,
DHS issued a TFR on August 20, 2020 (the ``August 20 TFR'') extending
those flexibilities, which has been effective for H-2A petitions that
were received on or after August 19, 2020 through December 17, 2020. 85
FR 51304.
As discussed in more detail below, due to the continuing health and
economic crisis caused by COVID-19, DHS has again determined that the
public health emergency and economic circumstances resulting from
COVID-19 are necessitating the continuation of the flexibilities
implemented through the August 20 TFR. Therefore, DHS is issuing this
TFR to extend those flexibilities for an additional 180 days, i.e.,
through June 16, 2021. This timeframe differs from the most recent
renewal of a determination of the public health emergency because DHS
believes that the COVID-19 pandemic may have a more lasting impact on
the U.S. food agriculture sector beyond the 90 day public health
emergency determination signed by HHS Secretary Alex Azar on October 2,
2020.\9\ As a result, DHS will continue to monitor the evolving health
crisis caused by COVID-19 and may address it in future rules.
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\9\ See HHS Renewal of Determination That A Public Health
Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-2Oct2020.aspx (Oct. 2, 2020).
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II. Discussion
A. Temporary Changes to DHS Requirements for H-2A Change of Employer
Requests During the COVID-19 National Emergency
DHS is committed to both protecting U.S. and foreign workers and to
helping U.S. businesses receive the legal and work-authorized labor for
temporary or seasonal agricultural labor or services that they need.
On October 2, 2020, HHS Secretary Alex Azar signed a renewal of
determination, effective October 23, 2020, that extends the current
COVID-19 public health emergency by up to 90 days.\10\ This
determination that a public health emergency exists and has existed
since January 27, 2020, nationwide, was previously renewed on April 21,
2020 and July 23, 2020. The renewal of determination signals that the
United States is facing continued consequences of the COVID-19 National
Emergency, which corresponds to the volume of COVID-19 cases reported
by the U.S. Centers for Disease Control and Prevention--13,295,605 as
of November 30, 2020.\11\
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\10\ See HHS Renewal of Determination That A Public Health
Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-2Oct2020.aspx (Oct. 2, 2020).
\11\ See, https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days (Last visited Nov. 30, 2020). DHS notes
that the total number of cases changes daily.
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The COVID-19 pandemic continues to cause disruptions in the
domestic food supply chain.\12\ As of October 2, 2020, USDA's Economic
Research Service reported that ``[t]he coronavirus (COVID-19) pandemic
has widely impacted the U.S. economy, including the farm sector and
farm households. Farm businesses have experienced disruptions to
production due to lowered availability of labor and other inputs . . .
[r]eductions in available labor affect crop and livestock production,
as well as processing capacity for crop and animal products that leave
the farm. Reduced processing capacity results in lower consumption of
certain agricultural commodities.'' \13\ The H-2A program has been
crucial to assuring the continued viability of the nation's food supply
chain.\14\ Notwithstanding the availability of the H-2A program, U.S.
farmers are continuing to experience labor shortages as fewer workers
are able to get to the United States or are willing to take health
risks in coming to this country to perform H-2A work. Media outlets in
the United States have continued to report on these shortages. For
example, a farmer in North Dakota who typically hires the same eight
farmhands from South Africa to tend his crops was short half of his
crew this year due to COVID-19.\15\ In another instance, an executive
director of a farming association noted that they have had access to 10
percent to 12 percent fewer H-2A workers in the area of Idaho in which
their farms are located.\16\
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\12\ See, e.g. Food Security and COVID-19, https://www.worldbank.org/en/topic/agriculture/brief/food-security-and-covid-19 (last visited Nov. 19, 2020).
\13\ ``Farms and Farm Households During the COVID-19 Pandemic,''
https://www.ers.usda.gov/covid-19/farms-and-farm-households/ (last
visited Nov. 19, 2020).
\14\ The Washington Post, ``How one visa program keeps America
fed,'' https://www.washingtonpost.com/video/national/how-one-visa-program-keeps-america-fed/2020/06/17/ac3be98d-1ed1-4d4c-8dc7-85cbbeecb5fc_video.html (last visited Nov. 20, 2020).
\15\ Bloomberg, ``Global Food Output Runs Into Migrant Worker
Woes,'' Aug. 7, 2020, https://www.bloomberg.com/news/newsletters/2020-08-07/supply-chains-latest-migrant-worker-shortages-hit-food-output (last visited Nov. 20, 2020).
\16\ MagicValley.com, ``Indispensable: Foreign workers critical
for many Magic Valley farms,'' Oct. 1, 2020, https://magicvalley.com/business/agriculture/indispensable-foreign-workers-critical-for-many-magic-valley-farms/article_e9720a22-534b-5ccf-b694-27e5f9d6b9fe.html (last visited Nov. 24, 2020).
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As the public health emergency and economic consequences of it
continue, DHS has determined it is necessary to issue a new temporary
final rule to extend certain flexibilities first implemented through
the April 20 TFR, and subsequently partially extended through the
August 20 TFR, because DHS has determined that there is a continued
need for them. This TFR extends the amendments made by the August 20
TFR to help U.S. agricultural employers reduce disruptions in lawful
agricultural-related employment, protect the nation's food supply
chain, and lessen impacts from the COVID-19 pandemic and related
economic effects, consistent with the declaration of the National
Emergency. Due to the continued travel restrictions and visa processing
limitations as a result of actions taken to mitigate the spread of
COVID-19,\17\ as well as the possibility that some H-2A workers may
become
[[Page 82295]]
unavailable due to COVID-19 related illness or a legitimate fear of
contracting COVID-19 under current conditions,\18\ U.S. employers who
have approved H-2A petitions or who will be filing H-2A petitions might
not receive all of the workers requested to fill the temporary
positions, and similarly, employers that currently employ H-2A workers
may lose the services of workers due to COVID-19 related illness. For
example, Purdue University estimates as of November 24, 2020 more than
247,000 agricultural workers have contracted COVID-19.\19\ Though not
all of these cases involve H-2A nonimmigrant workers, this research
highlights the particular serious risks and vulnerabilities to
contracting COVID-19 that farmworkers experience.
---------------------------------------------------------------------------
\17\ U.S. News and World Report, ``U.S., Canada, Mexico to
Extend Border Restrictions Until Late December,'' Nov. 18, 2020,
https://www.usnews.com/news/world/articles/2020-11-18/us-travel-restrictions-at-canada-mexico-borders-set-to-be-extended-until-dec-21-official (last visited Nov. 24, 2020).
\18\ See e.g. See e.g. National Center for Farmworker Health:
COVID-19 in Rural America: Impact on Farms & Agricultural Workers
(``As of October 18th, 99% of rural counties in America had reported
positive COVID-19 cases and 81% had reported one or more deaths.
More than one million rural residents have tested positive for
COVID-19 and 22,613 deaths among rural Americans have been
attributed to the disease.''), https://www.ncfh.org/msaws-and-covid-19.html (Last visited Dec. 1, 2020), and also The Wall Street
Journal, ``Coronavirus Hits Nation's Key Apple, Cherry Farms,'' Jul.
6, 2020, https://www.wsj.com/articles/coronavirus-hits-nations-key-apple-cherry-farms-11594027802 (last visited Nov. 20, 2020). Patch,
``Newsom Opens Hotel Rooms For Farmworkers Exposed To Coronavirus,''
Jul. 29, 2020, https://patch.com/california/santamonica/s/h6xix/newsom-opens-hotel-rooms-farmworkers-exposed-coronavirus (last
visited Nov. 20, 2020). U.S. News & World Report, ``Nearly 190
Farmworkers Contract Virus in Southern California,'' Jul. 6, 2020,
https://www.usnews.com/news/best-states/california/articles/2020-07-06/nearly-190-farmworkers-contract-virus-in-southern-california
(last visited Nov. 20, 2020).
\19\ Purdue University, College of Agriculture, ``Food and
Agricultural Vulnerability Index Dashboard'', https://ag.purdue.edu/agecon/Pages/FoodandAgVulnerabilityIndex.aspx?_ga=2.56793390.563531196.1602252382-1692557252.1601925927 (last visited Dec. 1, 2020).
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Under this temporary final rule, any H-2A petitioner with a valid
TLC, i.e. one who has already tested the U.S. labor market and was
unable to find able, willing, and qualified U.S. workers to perform
temporary or seasonal agricultural services or labor, can start
employing H-2A workers who are currently in the United States and in
valid H-2A status and who have been complying with the terms of their
H-2A status immediately after receiving notice that USCIS has received
the H-2A petition, but no earlier than the start date of employment
listed on the petition. This will allow H-2A workers to move to a new
employer to meet urgent temporary or seasonal agricultural needs before
USCIS approves the new employer's petition. DHS believes this continued
flexibility will help address the challenges faced by U.S. employers as
well as workers due to COVID-19 as the winter and spring seasons
approach.\20\ See new 8 CFR 214.2(h)(22) and 8 CFR 274a.12(b)(28).
However, nothing in this TFR changes the existing DOL requirements for
obtaining a TLC which an employer must comply with before filing an H-
2A petition with USCIS.
---------------------------------------------------------------------------
\20\ The Apr. 20 TFR provided temporary exceptions to DHS
regulations at 8 CFR 214.2(h)(5)(viii)(C), (h)(13)(i)(B), and
(h)(15)(ii)(C) that had allowed aliens to extend their H-2A period
of stay beyond the 3-year limitation, without first requiring them
to remain outside of the United States for an uninterrupted period
of 3 months. As described in the Aug. 20 TFR, DHS determined that it
was necessary to provide stability to the U.S. food supply chain,
address the urgent needs of U.S. agricultural producers, and ensure
that those aliens admitted into the United States as temporary
workers in the H-2A nonimmigrant classification in fact remain in
this country on a temporary basis, as required by the Act. 8 U.S.C.
1101(a)(15)(H)(ii)(a). Therefore, DHS did not extend the Apr. 20 TFR
temporary exceptions to its regulations at 8 CFR
214.2(h)(5)(viii)(C), (h)(13)(i)(B), and (h)(15)(ii)(C). With this
TFR, DHS maintains the belief that a balance is required between
providing stability to the U.S. food supply chain and ensuring
foreign agricultural workers are in the country on a temporary
basis, and therefore, DHS is not including temporary exceptions to
allow aliens to extend their H-2A period of stay beyond the 3-year
limitation. Consequently, USCIS will continue to apply the 3-year
limit reflected in permanent DHS regulations to any H-2A petition
that is received on or after Dec. 18, 2020. Petitioners who seek
foreign workers to fill a permanent need and/or to remain in the
country permanently, must comply with requirements applicable to
permanent positions. See 8 U.S.C. 1153(b)(3).
---------------------------------------------------------------------------
Unlike the permanent regulation at 8 CFR 274a.12(b)(21), which
allows the H-2A worker(s) to immediately work for a new H-2A employer
in good standing in E-Verify upon the filing of an H-2A extension of
stay petition, this TFR, like the April 20 and August 20 TFRs, allows
the H-2A worker(s) to immediately work for any new H-2A employer, but
no earlier than the start date of employment listed on the H-2A
petition, upon the filing of an H-2A extension of stay petition during
the COVID-19 National Emergency only.
DHS remains committed to promoting the use of E-Verify to ensure a
legal workforce. E-Verify is free, user friendly, and over 98 percent
accurate.\21\ Notwithstanding the numerous benefits E-Verify offers to
ensure all employers only employ a legal workforce, DHS has determined
that it is necessary to temporarily amend its regulations affecting H-
2A workers to mitigate the impact on the agricultural industry due to
COVID-19. These H-2A petitioners will have completed a test of the U.S.
labor market, and DOL will have determined that there are no qualified
U.S. workers available to fill these temporary positions. DHS believes
that granting H-2A workers the option to begin employment with any new
H-2A petitioner as soon as the H-2A petition is received by USCIS will
also benefit U.S. agricultural employers and help provide stability to
the U.S. food supply chain during the unique challenges the country
faces because of COVID-19.
---------------------------------------------------------------------------
\21\ See https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance (last updated Oct. 1, 2020).
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To be approved under this final rule, an H-2A petition for an
extension of stay with a new employer must be received on or after
December 18, 2020, but no later than June 16, 2021. If the new petition
is approved, the H-2A worker's extension of stay may be granted for the
validity of the approved petition, and for a period not to exceed the
validity period of the TLC. In addition, the temporary provisions being
extended by this rule are the same as the April 20 and August 20 TFRs
provisions but differ from the permanent regulatory provisions in that
they grant employment authorization for 45 days from the date of the
receipt notice. The 45-day employment authorization associated with the
filed petition will automatically terminate 15 days after the date of
denial or withdrawal if USCIS denies the petition, or if the petition
is withdrawn.
To provide greater certainty to the market for the winter and
spring agricultural seasons, the changes made by this final rule will
automatically terminate on June 16, 2021. DHS will continue to monitor
the rapidly evolving situation surrounding the COVID-19 pandemic and
associated economic consequences and will determine whether continued
flexibilities are needed beyond the 180 days. USCIS will continue to
adjudicate H-2A petitions received no later than June 16, 2021 under
the provisions of this rule. Unless the exceptions contained in this
temporary final rule are further extended, any H-2A petition received
after the termination of this temporary final rule will be adjudicated
in accordance with the existing permanent provisions. See 8 CFR
214.2(h)(2)(i)(D) and 274a.12(b)(21).
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
This rule is being issued without prior notice and opportunity to
comment and with an immediate effective date pursuant to sections
553(b) and (d) of the Administrative Procedure Act (APA). 5 U.S.C. 551
et seq.
[[Page 82296]]
1. Good Cause To Forgo Notice and Comment Rulemaking
The APA, 5 U.S.C. 553(b)(B), authorizes an agency to issue a rule
without prior notice and opportunity to comment when the agency for
good cause finds that those procedures are ``impracticable,
unnecessary, or contrary to the public interest.'' The good-cause
exception for forgoing notice-and-comment rulemaking ``excuses notice
and comment in emergency situations, or where delay could result in
serious harm.'' Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004).
Although the good cause exception is ``narrowly construed and only
reluctantly countenanced,'' Tenn. Gas Pipeline Co. v. FERC, 969 F.2d
1141, 1144 (D.C. Cir. 1992), DHS has appropriately invoked the
exception in this case, for the reasons set forth below. As also
discussed earlier in this preamble, on January 31, 2020, the Secretary
of Health and Human Services declared a public health emergency, dating
back to January 27, 2020, under section 319 of the Public Health
Service Act in response to COVID-19.\22\ On March 13, 2020, President
Trump declared a National Emergency concerning the COVID-19 outbreak,
dated back to March 1, 2020, to control the spread of the virus in the
United States.\23\ In response to the Mexican government's call to
increase social distancing in that country, DOS announced the temporary
suspension of routine immigrant and nonimmigrant visa services
processed at the U.S. Embassy in Mexico City and all U.S. Consulates in
Mexico beginning on March 18, 2020.\24\ DOS expanded the temporary
suspension of routine immigrant and nonimmigrant visa services at all
U.S. Embassies and Consulates on March 20, 2020.\25\ On October 2,
2020, the U.S. Department of Health and Human Services (HHS) Secretary
Alex Azar signed a renewal of determination, effective October 23, that
extends the current COVID-19 public health emergency by up to 90
days.\26\ This determination that a public health emergency exists and
has existed since January 27, 2020, nationwide, was previously renewed
on April 21, 2020 and on July 23, 2020.
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\22\ Determination of Public Health Emergency.
\23\ Proclamation 9994.
\24\ Status of U.S. Consular Operations in Mexico in Light of
COVID-19.
\25\ Suspension of Routine Visa Services.
\26\ See HHS Renewal of Determination That A Public Health
Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-2Oct2020.aspx (Oct. 2, 2020).
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DOS designated H-2A visas as mission critical, and announced that
U.S. Embassies and Consulates will continue to process H-2 cases to the
extent possible and implemented a change in its procedures, to include
interview waivers.\27\ In addition, DHS identified occupations in food
and agriculture as critical to the U.S. public health and safety and
economy.\28\ Due to extended travel restrictions, the limited
resumption of routine visa services, as well as the possibility that
some U.S. and H-2A workers may become unavailable due to illness
related to the spread of COVID-19 \29\, as well as reasonable health
concerns of workers outside of the United States regarding accepting
employment in this country during the current health crisis, U.S.
employers who have approved temporary agricultural labor certifications
and/or who will be filing H-2A petitions might not receive, or be able
to continuously employ, all of the workers requested to fill all of
their DHS-approved temporary or seasonal agricultural positions. Due to
these anticipated labor shortages, these employers may continue to
experience adverse economic impacts to their agricultural operations.
Finally, COVID-19 continues to cause disruptions in domestic food
supply chains which has led to food insecurity on a global level.\30\
To partially address these concerns, DHS is acting expeditiously to put
in place rules that will facilitate the continued employment of H-2A
workers already present in the United States. It is intended that this
action will reduce labor disruptions that could affect business
operations of U.S. employers for the upcoming labor-intensive winter
and spring seasons, and continue to support the critical U.S. food
supply network.
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\27\ Important Announcement on H2 Visas.
\28\ DHS Memorandum on Identification of Essential Critical
Infrastructure Workers During COVID-19 Response. DHS Advisory
Memorandum on Identification of Essential Critical Infrastructure
Workers During COVID_10 Response.
\29\ See e.g. National Center for Farmworker Health: COVID-19 in
Rural America: Impact on Farms & Agricultural Workers (``As of
October 18th, 99% of rural counties in America had reported positive
COVID-19 cases and 81% had reported one or more deaths. More than
one million rural residents have tested positive for COVID-19 and
22,613 deaths among rural Americans have been attributed to the
disease.''), https://www.ncfh.org/msaws-and-covid-19.html (Last
visited Dec. 1, 2020).
\30\ See, e.g. Food Security and COVID-19, https://www.worldbank.org/en/topic/agriculture/brief/food-security-and-covid-19 (last visited Nov. 23, 2020). See also, ``Farms and Farm
Households During the COVID-19 Pandemic'' https://www.ers.usda.gov/covid-19/farms-and-farm-households/ (last visited Nov. 23, 2020)
indicating that ``Farm businesses have experienced disruptions to
production due to lowered availability of labor and other inputs . .
. [r]eductions in available labor affect crop and livestock
production, as well as processing capacity for crop and animal
products that leave the farm. Reduced processing capacity results in
lower consumption of certain agricultural commodities.''
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Courts have found ``good cause'' under the APA when an agency is
moving expeditiously to avoid significant economic harm to a program,
program users, or an industry. Courts have held that an agency may use
the good-cause exception to address ``a serious threat to the financial
stability of [a government] benefit program,'' Nat'l Fed'n of Fed.
Emps. v. Devine, 671 F.2d 607, 611 (D.C. Cir. 1982), or to avoid
``economic harm and disruption'' to a given industry, which would
likely result in higher consumer prices, Am. Fed'n of Gov't Emps. v.
Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981). Consistent with the above
authorities, DHS has bypassed notice and comment to facilitate the
employment of H-2A workers already in the United States, and prevent
potential economic harms to H-2A agricultural employers and downstream
employers engaged in the processing of agricultural products, as well
as potential harms to the American economy and people that could result
from ongoing uncertainty over the availability of H-2A agricultural
workers, and potential associated negative impacts on food security in
the United States. See Bayou Lawn & Landscape Servs. v. Johnson, 173 F.
Supp. 3d 1271, 1285 & n.12 (N.D. Fla. 2016). This action is temporary
in nature, and includes appropriate conditions to ensure that it is
narrowly tailored to the National Emergency caused by COVID-19.
2. Good Cause To Proceed With an Immediate Effective Date
The APA also authorizes agencies to make a rule effective
immediately, upon a showing of good cause, instead of imposing a 30-day
delay. 5 U.S.C. 553(d)(3). The good-cause exception to the 30-day
effective date requirement is easier to meet than the good-cause
exception for forgoing notice and comment rulemaking. Riverbend Farms,
Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992); Am. Fed'n of
Gov't Emps., AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981);
U.S. Steel Corp. v. EPA, 605 F.2d 283, 289-90 (7th Cir. 1979). An
agency can show good cause for eliminating the 30-day delayed effective
date when it demonstrates urgent conditions the rule seeks to correct
or unavoidable time limitations. U.S. Steel Corp., 605 F.2d at 290;
United States v. Gavrilovic, 511 F.2d 1099, 1104 (8th Cir. 1977). For
the same reasons set forth above, DHS also concludes that the
Department has good cause to dispense with the 30-day effective date
requirement given that
[[Page 82297]]
this rule is necessary to prevent serious economic harms to U.S.
employers in the agricultural industry caused by unavailability of
workers due to COVID-19, and to ensure food stability for the American
people.
B. Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review)
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility. This rule
is designated a significant regulatory action under E.O. 12866.
Accordingly, the Office of Management and Budget (OMB) has reviewed
this regulation. DHS, however, is proceeding under the emergency
provision of Executive Order 12866 Section 6(a)(3)(D) based on the need
to move expeditiously during the current public health emergency to
secure labor for our food supply.
This rule will help U.S. employers fill critically necessary
agricultural job openings, protect their economic investments in their
agricultural operations, and contribute to U.S. food security. In
addition, it will benefit H-2A workers already in the United States by
making it easier for employers to hire them. As this rule helps fill
critical labor needs for agricultural employers, DHS believes this rule
will help ensure a continual food supply chain in the United States.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), imposes
certain requirements on Federal agency rules that are subject to the
notice and comment requirements of the APA. See 5 U.S.C. 603(a),
604(a). This final rule is exempt from notice and comment requirements
for the reasons stated above in Part III.A. Therefore, the requirements
of the RFA applicable to final rules, 5 U.S.C. 604, do not apply to
this final rule. Accordingly, DHS is not required to either certify
that the final rule would not have a significant economic impact on a
substantial number of small entities or conduct a regulatory
flexibility analysis.
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, Public Law 104-4, 2
U.S.C. 1501, et seq. (UMRA), is intended, among other things, to curb
the practice of imposing unfunded Federal mandates on State, local, and
tribal governments. Title II of the Act requires each Federal agency to
prepare a written statement assessing the effects of any Federal
mandate in a proposed rule, or final rule for which the agency
published a proposed rule that includes any Federal mandate that may
result in $100 million or more expenditure (adjusted annually for
inflation) in any one year by State, local, and tribal governments, in
the aggregate, or by the private sector. 2 U.S.C. 1532. This rule does
not contain such a mandate. The requirements of Title II of UMRA,
therefore, do not apply, and DHS has not prepared a statement under
UMRA.
E. Executive Order 13132 (Federalism)
This rule does not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of E.O.
13132, 64 FR 43255, 43258 (Aug. 4, 1999), this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of E.O. 12988, 61 FR 4729 (Feb. 5, 1996).
G. Congressional Review Act
The Office of Information and Regulatory Affairs, of the Office of
Management and Budget, has determined that this final rule is not a
``major rule'' as defined by the Congressional Review Act, 5 U.S.C.
804(2), and thus is not subject to a 60-day delay in the rule becoming
effective. DHS will send this temporary final rule to Congress and to
the Comptroller General under the Congressional Review Act, 5 U.S.C.
801 et seq.
H. National Environmental Policy Act
DHS analyzes actions to determine whether the National
Environmental Policy Act, Public Law 91-190, 42 U.S.C. 4231, et seq.
(NEPA), applies to them and, if so, what degree of analysis is
required. DHS Directive 023-01 Rev. 01 (Directive) and Instruction
Manual 023-01-001-01 Rev. 01 (Instruction Manual) establish the
policies and procedures that DHS and its components use to comply with
NEPA and the Council on Environmental Quality (CEQ) regulations for
implementing NEPA, 40 CFR parts 1500-1508.
The CEQ regulations allow federal agencies to establish, with CEQ
review and concurrence, categories of actions (``categorical
exclusions'') which experience has shown do not individually or
cumulatively have a significant effect on the human environment and,
therefore, do not require an Environmental Assessment (EA) or
Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(2)(ii), 1508.4.
Categorical exclusions established by DHS are set forth in Appendix A
of the Instruction Manual. Under DHS NEPA implementing procedures, for
an action to be categorically excluded, it must satisfy each of the
following three conditions: (1) The entire action clearly fits within
one or more of the categorical exclusions; (2) the action is not a
piece of a larger action; and (3) no extraordinary circumstances exist
that create the potential for a significant environmental effect.
Instruction Manual section V.B(2)(a)-(c). This rule temporarily amends
regulations governing the H-2A nonimmigrant visa program to facilitate
the continued employment of H-2A nonimmigrants in the United States by
allowing them to change employers in the United States and begin
working in the same visa classification for a period not to exceed 45
days before the nonimmigrant visa petition is approved, due to the
National Emergency caused by the COVID-19 global pandemic. This rule
does not change the number of H-2A workers that may be employed by U.S.
employers as there is not an established statutory limit. It also does
not change rules for where H-2A nonimmigrants may be employed; only
employers with approved temporary labor certifications for workers to
perform temporary or seasonal agricultural work may be allowed to
employ H-2A workers under these temporary provisions. Generally, DHS
believes NEPA does not apply to a rule intended to make it easier for
H-2A employers to hire workers who are already in the United States in
addition to, or instead of, also hiring H-2A workers from abroad
because any attempt to analyze its potential impacts would be largely
speculative, if not completely so. DHS cannot reasonably estimate how
many petitions will be filed under these temporary provisions,
[[Page 82298]]
and therefore how many H-2A workers already in the United States will
be employed by different employers, as opposed to how many petitions
would have been filed for H-2A workers employed under normal
circumstances. DHS has no reason to believe that the temporary
amendments to H-2A regulations would change the environmental effect,
if any, of the existing regulations. Therefore, DHS has determined that
even if NEPA were to apply to this action, this rule clearly fits
within categorical exclusion A3(d) in the Instruction Manual, which
provides an exclusion for ``promulgation of rules . . . that amend an
existing regulation without changing its environmental effect.''
This rule maintains the current human environment by helping to
prevent irreparable harm to certain U.S. businesses and to prevent
significant adverse effects on the human environment that would likely
result from loss of jobs or income, or disruption of the nation's food
supply chain. This rule is not a part of a larger action and presents
no extraordinary circumstances creating the potential for significant
environmental effects. Therefore, this action is categorically excluded
and no further NEPA analysis is required.
I. Signature
The Acting Secretary of Homeland Security, Chad F. Wolf, having
reviewed and approved this document, is delegating the authority to
electronically sign this document to Chad R. Mizelle, who is the Senior
Official Performing the Duties of the General Counsel for DHS, for
purposes of publication in the Federal Register.
List of Subjects
8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
programs, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
Accordingly, DHS amends chapter I of title 8 of the Code of Federal
Regulations as follows:
PART 214--NONIMMIGRANT CLASSES
0
1. The authority citation for part 214 continues to read as follows:
Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182,
1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305 and 1372; sec. 643,
Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat.
1477-1480; section 141 of the Compacts of Free Association with the
Federated States of Micronesia and the Republic of the Marshall
Islands, and with the Government of Palau, 48 U.S.C. 1901 note and
1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 115-
218.
0
2. Amend Sec. 214.2 by adding paragraph (h)(22) to read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(22) Change of employers during COVID-19 National Emergency. (i) If
an H-2A nonimmigrant who is physically present in the United States
seeks to change employers during the COVID-19 National Emergency, the
prospective new H-2A employer may file an H-2A petition on Form I-129,
accompanied by a valid temporary agricultural labor certification,
requesting an extension of the alien's stay in the United States. To be
approved under this paragraph (h)(22), an H-2A petition must be
received on or after December 18, 2020 but no later than June 16, 2021.
If the new petition is approved, the extension of stay may be granted
for the validity of the approved petition for a period not to exceed
the validity period of the temporary agricultural labor certification.
Notwithstanding paragraph (h)(2)(i)(D) of this section and 8 CFR
274a.12(b)(21), an alien in valid H-2A nonimmigrant status on December
18, 2020, or lawfully obtaining such status thereafter pursuant to this
paragraph (h)(22), is authorized to begin employment with the new
petitioner after the petition described in this paragraph (h)(22) is
received by USCIS, but no earlier than the start date of employment,
indicated in the H-2A petition. The H-2A worker is authorized to
commence employment with the petitioner before the petition is approved
and subject to the requirements of 8 CFR 274a.12(b)(28) for a period of
up to 45 days beginning on the Received Date on Form I-797 (Notice of
Action) or, if the start date of employment occurs after the I-797
Received Date, 45 days beginning on the start date of employment
indicated in the H-2A petition. If USCIS adjudicates the petition prior
to the expiration of this 45-day period and denies the petition for
extension of stay, or if the petition is withdrawn by the petitioner
before the expiration of the 45-day period, the employment
authorization associated with the filing of that petition under 8 CFR
274a.12(b)(28) will automatically terminate 15 days after the date of
the denial decision or the date on which the petition is withdrawn.
(ii) Authorization to initiate employment changes pursuant to this
paragraph (h)(22) begins at 12 a.m. on December 18, 2020, and ends at
the end of June 16, 2021.
* * * * *
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
0
3. The authority citation for part 274a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; Title VII of Pub. L. 110-
229; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 101-410, 104 Stat. 890,
as amended by Pub. L. 114-74, 129 Stat. 599; Pub. L. 115-218.
0
4. Amend Sec. 274a.12 by adding paragraph (b)(28) to read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(b) * * *
(28)(i) Pursuant to 8 CFR 214.2(h)(22) and notwithstanding 8 CFR
214.2(h)(2)(i)(D) and paragraph (b)(21) of this section, an alien is
authorized to be employed, but no earlier than the start date of
employment indicated in the H-2A petition, by a new employer that has
filed an H-2A petition naming the alien as a beneficiary and requesting
an extension of stay for the alien, for a period not to exceed 45 days
beginning from the ``Received Date'' on Form I-797 (Notice of Action)
acknowledging receipt of the petition requesting an extension of stay,
or 45 days beginning on the start date of employment if the start date
of employment indicated in the H-2A petition occurs after the filing.
The length of the period (up to 45 days) is to be determined by USCIS
in its discretion. However, if USCIS adjudicates the petition prior to
the expiration of this 45-day period and denies the petition for
extension of stay, or if the petitioner withdraws the petition before
the expiration of the 45-day period, the employment authorization under
this paragraph (b)(28) will automatically terminate upon 15 days after
the date of the denial decision or the date on which the petition is
withdrawn.
(ii) Authorization to initiate employment changes pursuant to 8 CFR
214.2(h)(22) and paragraph (b)(28)(i) of this section begins at 12 a.m.
on
[[Page 82299]]
December 18, 2020, and ends at the end of June 16, 2021.
* * * * *
Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S.
Department of Homeland Security.
[FR Doc. 2020-27661 Filed 12-17-20; 8:45 am]
BILLING CODE 9111-97-P
