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.

Rules and Regulations Federal Register

82291 

Vol. 85, No. 244 

Friday, December 18, 2020 

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 


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82292 Federal Register / Vol. 85, No. 244 / Friday, December 18, 2020 / Rules and Regulations 

1Under 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). 

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). 

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 


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Federal Register / Vol. 85, No. 244 / Friday, December 18, 2020 / Rules and Regulations 82293 

2See ‘‘Changes to Requirements Affecting H–2A 

Nonimmigrants,’’ 73 FR 76891, 76905 (Dec. 8, 

2008). 

3HHS, Determination of Public Health 

Emergency, 85 FR 7316 (Feb. 7, 2020). 

4Proclamation 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 

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). 

7See 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-onEssential-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). 

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. 

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 


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9See 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). 

10See 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). 

11See, https://covid.cdc.gov/covid-data-tracker/ 

#cases_casesper100klast7days (Last visited Nov. 30, 

2020). DHS notes that the total number of cases 

changes daily. 

12See, 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). 14The 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). 15Bloomberg, ‘‘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). 16MagicValley.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_e9720a22- 

534b-5ccf-b694-27e5f9d6b9fe.html (last visited Nov. 

24, 2020). 

17U.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). 

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. 

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 


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18See 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-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). 

19Purdue 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). 

20The 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). 21See https://www.e-verify.gov/about-e-verify/everify-data/e-verify-performance (last updated Oct. 

1, 2020). 

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 

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. 


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22 Determination of Public Health Emergency. 23Proclamation 9994. 24Status of U.S. Consular Operations in Mexico 

in Light of COVID–19. 25Suspension of Routine Visa Services. 26See 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). 

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. 29See 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). 

30See, 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.’’ 

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 

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, 

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. 

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, 


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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. 

8 CFR Part 274a 

Administrative practice and 

procedure, Aliens, Employment, 

Penalties, Reporting and recordkeeping 

requirements. 

Accordingly, DHS amends chapter I of 

title 8 of the Code of Federal 

Regulations as follows: 

PART 214—NONIMMIGRANT CLASSES 

■ 1. The authority citation for part 214 

continues to read as follows: 

Authority: 6 U.S.C. 202, 236; 8 U.S.C. 

1101, 1102, 1103, 1182, 1184, 1186a, 1187, 

1221, 1281, 1282, 1301–1305 and 1372; sec. 

643, Pub. L. 104–208, 110 Stat. 3009–708; 

Pub. L. 106–386, 114 Stat. 1477–1480; 

section 141 of the Compacts of Free 

Association with the Federated States of 

Micronesia and the Republic of the Marshall 

Islands, and with the Government of Palau, 

48 U.S.C. 1901 note and 1931 note, 

respectively; 48 U.S.C. 1806; 8 CFR part 2; 

Pub. L. 115–218. 

■ 2. Amend § 214.2 by adding paragraph 

(h)(22) to read as follows: 

§ 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 

■ 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 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 


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Federal Register / Vol. 85, No. 244 / Friday, December 18, 2020 / Rules and Regulations 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 

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 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule; request for 

comments. 

SUMMARY: 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. 

ADDRESSES: 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. 

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, 

–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 oneVerDate Sep<11>2014 19:27 Dec 17, 2020 Jkt 253001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\FR\FM\18DER1.SGM 18DER1

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