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

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Start Preamble Start Printed Page 82291

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.

Start Further Info

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).

End Further Info End Preamble Start Supplemental Information

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 Start Printed Page 82292an 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).

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 Start Printed Page 82293extension 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.

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]

To address disruptions caused by COVID-19 to the U.S. food agriculture sector during the spring and summer agricultural seasons, DHS temporarily Start Printed Page 82294amended 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.

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] 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 Start Printed Page 82295unavailable 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 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 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. Start Printed 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.

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.

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 Start Printed Page 82297this 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, Start Printed Page 82298and 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.

Start List of Subjects

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
End List of Subjects

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

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PART 214—NONIMMIGRANT CLASSES

End Part Start Amendment Part

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.

End Authority Start Amendment Part

2. Amend § 214.2 by adding paragraph (h)(22) to read as follows:

End Amendment Part
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.

* * * * *
Start Part

PART 274a—CONTROL OF EMPLOYMENT OF ALIENS

End Part Start Amendment Part

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

End Amendment Part Start Authority

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.

End Authority Start Amendment Part

4. Amend § 274a.12 by adding paragraph (b)(28) to read as follows:

End Amendment Part
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 Start Printed Page 82299December 18, 2020, and ends at the end of June 16, 2021.

* * * * *
Start Signature

Chad R. Mizelle,

Senior Official Performing the Duties of the General Counsel, U.S. Department of Homeland Security.

End Signature End Supplemental Information

Footnotes

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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2.  See “Changes to Requirements Affecting H-2A Nonimmigrants,” 73 FR 76891, 76905 (Dec. 8, 2008).

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3.  HHS, Determination of Public Health Emergency, 85 FR 7316 (Feb. 7, 2020).

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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.

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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.”

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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).

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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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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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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).

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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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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).

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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).

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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).

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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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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).

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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.”), http://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).

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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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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).

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22.  Determination of Public Health Emergency.

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23.  Proclamation 9994.

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24.  Status of U.S. Consular Operations in Mexico in Light of COVID-19.

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25.  Suspension of Routine Visa Services.

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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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27.  Important Announcement on H2 Visas.

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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.

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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.”), http://www.ncfh.org/​msaws-and-covid-19.html (Last visited Dec. 1, 2020).

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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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[FR Doc. 2020-27661 Filed 12-17-20; 8:45 am]

BILLING CODE 9111-97-P