[Federal Register Volume 85, Number 244 (Friday, December 18, 2020)]
[Rules and Regulations]
[Pages 82291-82299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27661]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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

[[Page 82291]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

[CIS No. 2678-21; DHS Docket No. USCIS-2020-0008]
RIN 1615-AC55


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

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

ACTION: Temporary final rule.

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SUMMARY: As a result of continued disruptions and uncertainty to the 
U.S. food agriculture sector during the upcoming winter and spring 
agricultural seasons caused by the global novel Coronavirus Disease 
2019 (COVID-19) public health emergency, the Department of Homeland 
Security, (``DHS'' or ``the Department''), U.S. Citizenship and 
Immigration Services, has decided it is necessary to temporarily extend 
the amendments to certain regulations regarding temporary and seasonal 
agricultural workers, and their U.S. employers, within the H-2A 
nonimmigrant classification. Through this temporary final rule DHS is 
extending the provisions of the August 20, 2020, temporary final rule. 
Namely, DHS will continue to allow H-2A employees whose extensions of 
stay H-2A petitions are supported by valid temporary labor 
certifications issued by the U.S. Department of Labor to begin work 
with a new employer immediately after the extension of stay petition is 
received by USCIS. DHS will apply this temporary final rule to H-2A 
petitions requesting an extension of stay, if they were received on or 
after December 18, 2020, but no later than June 16, 2021. The temporary 
extension of these flexibilities will ensure that agricultural 
employers have access to the orderly and timely flow of legal foreign 
workers, thereby protecting the integrity of the nation's food supply 
chain and decreasing possible reliance on unauthorized aliens, while at 
the same time encouraging agricultural employers' use of the H-2A 
program, which protects the rights of U.S. and foreign workers.

DATES: This final rule is effective from December 18, 2020, through 
December 18, 2023. Employers may request the flexibilities under this 
rule by filing an H-2A petition on or after December 18, 2020, and 
through June 16, 2021.

FOR FURTHER INFORMATION CONTACT: Charles L. Nimick, Chief, Business and 
Foreign Workers Division, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
by mail at 5900 Capital Gateway Dr., Camp Springs, MD 20529-2140; or by 
phone at 240-721-3000.
    Individuals with hearing or speech impairments may access the 
telephone numbers above via TTY by calling the toll-free Federal 
Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION: 

Table of Contents

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

I. Background

A. Legal Framework

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

B. Description of the H-2A Program

    The H-2A nonimmigrant classification applies to alien workers 
seeking to perform agricultural labor or services of a temporary or 
seasonal nature in the United States on a temporary basis, usually 
lasting no longer than 1 year, for which U.S. workers are not 
available. INA 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a); 
see also 8 CFR 214.1(a)(2). As noted in the statute, not only must the 
alien be coming ``temporarily'' to the United States, but the 
agricultural labor or services that the alien is performing must also 
be ``temporary or seasonal.'' INA 101(a)(15)(H)(ii)(a). The Department 
of Homeland Security (``DHS'' or ``the Department'') regulations 
further define

[[Page 82292]]

an employer's temporary need as employment that is of a temporary 
nature where the employer's need to fill the position with a temporary 
worker will, except in extraordinary circumstances, last no longer than 
1 year. 8 CFR 214.2(h)(5)(iv)(A). An employer's seasonal need is 
defined as employment that is tied to a certain time of year by an 
event or pattern, such as a short annual growing cycle or a specific 
aspect of a longer cycle, and requires labor levels above those 
necessary for ongoing operations. Id.
    An employer, agent, or association (``H-2A petitioner'') must 
submit a petition to U.S. Citizenship and Immigration Services (USCIS) 
to obtain classification of temporary workers as H-2A nonimmigrants 
before the employer may begin employing H-2A workers. INA 214(c)(1), 8 
U.S.C. 1184(c)(1); 8 CFR 214.2(h)(2)(i). DHS must approve this petition 
before the alien can be considered eligible for H-2A status or a visa. 
To qualify for H-2A classification, the H-2A petitioner must, among 
other things, offer a job that is of a temporary or seasonal nature, 
and must submit a single, valid temporary labor certification (TLC) 
from the U.S. Department of Labor (DOL) establishing that there are not 
enough U.S. workers who are able, willing, qualified, and available to 
do the temporary work, and that employing H-2A workers will not 
adversely affect the wages and working conditions of workers in the 
United States similarly employed.\1\ INA 101(a)(15)(H)(ii)(a) and 218, 
8 U.S.C. 1101(a)(15)(H)(ii)(a) and 1188; see also generally 8 CFR 
214.2(h)(5)(i)(A) and (h)(5)(iv). Aliens who are outside of the United 
States also must first obtain an H-2A visa from the U.S. Department of 
State (DOS) at a U.S. Embassy or Consulate abroad, if required, and all 
aliens who are outside of the United States must seek admission with 
U.S. Customs and Border Protection (CBP) at a U.S. port of entry prior 
to commencing employment as an H-2A nonimmigrant. Aliens may be 
admitted for an additional period of up to one week prior to the 
employment start date for the purpose of travel to the worksite, and a 
30-day period following the expiration of the H-2A petition for the 
purpose of departure or to seek an extension based on a subsequent 
offer of employment. Unless authorized under 8 CFR 274a.12 or section 
214(n) of the Act, the beneficiary may not work except during the 
validity period of the petition. 8 CFR 214.2(h)(5)(viii)(B).
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    \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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i. DOL Temporary Labor Certification (TLC) Procedures
    Prior to filing the H-2A petition with DHS, the U.S. employer or 
agent must obtain a valid TLC from DOL for the job opportunity the 
employer seeks to fill with an H-2A worker(s). As part of the TLC 
process, the petitioning employer must have demonstrated to the 
satisfaction of the Secretary of Labor that (a) there are not 
sufficient U.S. workers who are able, willing, and qualified, and who 
will be available at the time and place needed to perform the labor or 
services involved in the petition, and (b) the employment of the alien 
in such labor or services will not adversely affect the wages and 
working conditions of workers in the United States similarly employed. 
8 U.S.C. 1188(a)(1); see also 20 CFR 655.100.
    To obtain a TLC from DOL, the employer must first submit an 
agricultural job order, within 75 to 60 calendar days prior to the 
start date of work, to the State Workforce Agency (SWA) that serves the 
state where the actual work will be performed. Once it clears the job 
order, the SWA will place it into intrastate clearance to initiate the 
recruitment of U.S. workers. 20 CFR 655.121. After review by the SWA, 
the employer must submit an Application for Temporary Employment 
Certification with DOL's Office of Foreign Labor Certification (OFLC) 
no less than 45 calendar days before the start date of work. 20 CFR 
655.130. OFLC will review the H-2A application and, if it accepts the 
application will place a copy of the job order on its electronic job 
registry. 20 CFR 655.144(a). OFLC will also direct the SWA to place the 
job order into interstate clearance, may direct the SWA to provide 
written notice of the job opportunity to relevant organizations and 
physically post the job order in locations workers may gather, and may 
direct the employer or authorized hiring agent to engage in positive 
recruitment. 20 CFR 655.143, 655.150, 655.154. As part of its 
recruitment obligations, an employer must offer the job to any recently 
laid-off U.S. worker(s) and contact former U.S. workers employed in the 
occupation in the previous year. 20 CFR 655.135(g), 655.153. OFLC will 
grant certification if the application meets all of the requirements in 
the Department of Labor's regulation, including compliance with all 
recruitment obligations. 20 CFR 655.161(a). Post-certification, OFLC 
will keep the job order posted on its electronic registry until 50 
percent of the contract period has elapsed, and the SWA must keep the 
job order on file for the same period of time. 20 CFR 655.144, 655.150. 
The U.S. employer must also continue to accept referrals of all 
eligible U.S. workers and must offer employment to any qualified U.S. 
worker that applies for the job opportunity until 50 percent of the 
work contract period has elapsed. 20 CFR 655.135(d).
ii. DHS Petition Procedures
    After receiving a valid TLC from DOL, the employer listed on the 
TLC, an employer's agent, or the association of United States 
agricultural producers named as a joint employer on the TLC (``H-2A 
petitioner'') may file the H-2A petition with the appropriate USCIS 
office. INA 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(2)(i), 
(h)(5)(i)(A). The H-2A petitioner may petition for one or more named or 
unnamed H-2A workers, but the total number of workers may not exceed 
the number of positions indicated on the TLC. 8 CFR 214.2(h)(2)(iii) 
and (h)(5)(i)(B). H-2A petitioners must name the H-2A worker if the 
worker is in the United States or if the H-2A worker is a national of a 
country that is not designated as an H-2A participating country. 8 CFR 
214.2(h)(2)(iii). USCIS recommends that petitioners submit a separate 
H-2A petition when requesting a worker(s) who is a national of a 
country that is not designated as an H-2A participating country. See 8 
CFR 214.2(h)(5)(i)(F); see also Identification of Foreign Countries 
Whose Nationals Are Eligible To Participate in the H-2A and H-2B 
Nonimmigrant Worker Programs, Notice, 85 FR 3067 (Jan. 17, 2020). 
Petitioners for aliens who are nationals of countries not designated as 
an H-2A participating country must submit evidence demonstrating the 
factors by which the request for H-2A workers serves the U.S. national 
interest. 8 CFR 214.2(h)(5)(i)(F)(1)(ii). USCIS will review each 
petition naming a national from a country not on the list and all 
supporting documentation and make a determination on a case-by-case 
basis.
    A U.S. employer or U.S. agent generally may submit a new H-2A 
petition, with a new, valid TLC, to USCIS to request an extension of H-
2A nonimmigrant status for a period of up to 1 year. 8 CFR 
214.2(h)(15)(ii)(C). The H-2A petitioner must name the worker on the 
Form I-129, Petition for Nonimmigrant Worker, since the H-2A worker is 
in the United States and requesting an extension of stay. In the event 
of an emergency circumstance, however, the petitioner may request an

[[Page 82293]]

extension not to exceed 14 days without first having to obtain an 
additional approved TLC from DOL if certain criteria are met, by simply 
submitting the new H-2A petition. See 8 CFR 214.2(h)(5)(x).
    In 2008, USCIS promulgated regulations allowing H-2A workers to 
begin work with a new petitioning employer upon the filing of an H-2A 
petition, before petition approval, provided that the new employer is a 
participant in good standing in the E-Verify program.\2\ 8 CFR 
214.2(h)(2)(i)(D) and 8 CFR 274a.12(b)(21). In such a case, the H-2A 
worker's employment authorization continues for a period not to exceed 
120 days beginning on the ``Received Date'' on the Form I-797, Notice 
of Action, which acknowledges the receipt of the new H-2A extension 
petition. With the exception of the new employer and worksite, the 
employment authorization extension remains subject to the same 
conditions and limitations indicated on the initial H-2A petition. The 
continued employment authorization extension will terminate 
automatically if the new employer fails to remain a participant in good 
standing in the E-Verify program, as determined by USCIS in its 
discretion.
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    \2\ See ``Changes to Requirements Affecting H-2A 
Nonimmigrants,'' 73 FR 76891, 76905 (Dec. 8, 2008).
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iii. Admission and Limitations of Stay
    Upon USCIS approval of the H-2A petition, the U.S. employer or 
agent may hire the H-2A workers to fill the job opening. USCIS will 
generally grant the workers H-2A classification for up to the period of 
time authorized on the valid TLC. H-2A workers who are outside of the 
United States may apply for a visa with DOS at a U.S. Embassy or 
Consulate abroad, if required, and, as noted above, all H-2A workers 
who are outside of the United States must seek admission to the United 
States with CBP at a U.S. port of entry. Spouses and children of H-2A 
workers may request H-4 nonimmigrant status to accompany the principal 
H-2A worker. The spouse and children of an H nonimmigrant, if they are 
accompanying or following to join such H nonimmigrant in the United 
States, may be admitted, if otherwise admissible, as H-4 nonimmigrants 
for the same period of admission or extension as the principal spouse 
or parent. 8 CFR 214.2(h)(9)(iv). H-4 dependents of these H-2A workers 
are subject to the same limitations on stay, and permission to remain 
in the country during the pendency of the new employer's petition, as 
the H-2A beneficiary.
    An alien's H-2A status is limited by the validity dates on the 
approved H-2A petition, which must be less than 1 year. 8 CFR 
214.2(h)(5)(viii)(C). H-2A workers may be admitted into the United 
States for a period of up to 1 week prior to the beginning validity 
date listed on the approved H-2A petition so that they may travel to 
their worksites, but may not begin work until the beginning validity 
date. H-2A workers may also remain in the United States 30 days beyond 
the expiration date of the approved H-2A petition to prepare for 
departure or to seek an extension or change of nonimmigrant status. 8 
CFR 214.2(h)(5)(viii)(B). Although they will be considered to be 
maintaining valid nonimmigrant status during this 30-day additional 
period beyond the petition expiration date, H-2A workers do not have 
employment authorization outside of the validity period listed on the 
approved petition unless otherwise authorized. 8 CFR 
214.2(h)(5)(viii)(B).
    The maximum period of stay for an alien in H-2A classification is 3 
years. 8 CFR 214.2(h)(5)(viii)(C). Once an alien has held H-2A 
nonimmigrant status for a total of 3 years, the alien must depart and 
remain outside of the United States for an uninterrupted period of 3 
months before seeking readmission as an H-2A nonimmigrant. 8 CFR 
214.2(h)(5)(viii)(C).

C. COVID-19 National Emergency

    On January 31, 2020, the Secretary of the U.S. Department of Health 
and Human Services (HHS) declared a public health emergency dating back 
to January 27, 2020, under section 319 of the Public Health Service Act 
(42 U.S.C. 247d), in response to the Coronavirus Disease 2019 (COVID-
19).\3\ On March 13, 2020, President Trump declared a National 
Emergency concerning the COVID-19 outbreak to control the spread of the 
virus in the United States.\4\ The President's proclamation declared 
that the emergency began on March 1, 2020. In response to the Mexican 
government's call to increase social distancing, DOS announced the 
temporary suspension of routine immigrant and nonimmigrant visa 
services processed at the U.S. Embassy in Mexico City and all U.S. 
Consulates in Mexico beginning on March 18, 2020.\5\ DOS expanded the 
temporary suspension of routine immigrant and nonimmigrant visa 
services to all U.S. Embassies and Consulates on March 20, 2020.\6\ DOS 
designated H-2A visas as mission critical, however, and announced that 
U.S. Embassies and Consulates have continued to process H-2A cases to 
the extent possible and implemented a change in its procedures, to 
include interview waivers.\7\ In addition, DHS has identified 
occupations in food and agriculture as critical to the U.S. public 
health and safety and economy.\8\
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    \3\ HHS, Determination of Public Health Emergency, 85 FR 7316 
(Feb. 7, 2020).
    \4\ Proclamation 9994 of Mar. 13, 2020, Declaring a National 
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85 
FR 15337 (Mar. 18, 2020). See also https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ (last 
visited Nov. 20, 2020). DHS recognizes that agricultural employers 
as well as their workers are encountering rapidly changing 
circumstances and unique public health and safety issues relating to 
the COVID-19 National Emergency. DHS encourages H-2A employers to 
regularly consult Federal, State, and local guidance on COVID-19. At 
the time of this publication, OSHA's guidance on COVID-19 is 
available at https://www.osha.gov/SLTC/covid-19/, including guidance 
for agricultural employers and workers jointly issued by OSHA and 
the Centers for Disease Control and Prevention. OFLC's guidance on 
COVID-19 for H-2A employers is available at https://www.dol.gov/agencies/eta/foreign-labor. On November 10, 2020 the CDC and the 
U.S. Department of Labor published Interim Guidance for all 
agriculture workers and their employers to protect agriculture 
workers from coronavirus disease 2019 (COVID-19). https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-agricultural-workers.html.
    \5\ DOS, Status of U.S. Consular Operations in Mexico in Light 
of COVID-19, https://mx.usembassy.gov/status-of-u-s-consular-operations-in-mexico-in-light-of-covid-19/ (last updated Nov. 18, 
2020). According to DOS, ``The U.S. Embassy in Mexico City and U.S. 
Consulates in Guadalajara, Monterrey, Nuevo Laredo, and Hermosillo 
have resumed limited processing of routine student and work visa 
appointments, including TN visas, as local conditions allow.'' It is 
further noted, ``Because of limited capacity and safety precautions 
due to COVID-19, applicants should expect to experience delays in 
appointment availability.''
    \6\ DOS, Suspension of Routine Visa Services, https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html (last updated Mar. 20, 2020).
    \7\ See DOS website, Important Announcement on H2 Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-h2-visas.html (last updated Mar. 26, 2020).
    \8\ DHS, Memorandum on Identification of Essential Critical 
Infrastructure Workers During COVID-19 Response, https://www.cisa.gov/sites/default/files/publications/CISA-Guidance-on-Essential-Critical-Infrastructure-Workers-1-20-508c.pdf (Mar. 19, 
2020). DHS, Advisory Memorandum on Identification of Essential 
Critical Infrastructure Workers During COVID_10 Response, https://www.cisa.gov/sites/default/files/publications/Version_3.1_CISA_Guidance_on_Essential_Critical_Infrastructure_Workers_0.pdf (May 19, 2020).), DHS, Advisory Memorandum on Identification 
of Essential Critical Infrastructure Workers During COVID_10 
Response, https://www.cisa.gov/sites/default/files/publications/Version_4.0_CISA_Guidance_on_Essential_Critical_Infrastructure_Workers_FINAL%20AUG%2018v3.pdf (Aug. 18, 2020).
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    To address disruptions caused by COVID-19 to the U.S. food 
agriculture sector during the spring and summer agricultural seasons, 
DHS temporarily

[[Page 82294]]

amended its H-2A regulations to provide certain flexibilities to 
temporary and seasonal agricultural workers and their U.S. employers. 
On April 20, 2020, DHS issued a temporary final rule (the ``April 20 
TFR''), Temporary Changes to Requirements Affecting H-2A Nonimmigrants 
Due to the COVID-19 National Emergency, which allowed H-2A workers to 
begin work with new H-2A employers, who have valid TLCs issued by DOL, 
for a period not to exceed 45 days immediately after the H-2A extension 
of stay petition is received by USCIS. The April 20 TFR also allowed 
petitioners to employ H-2A workers seeking an extension of stay beyond 
the 3-year total limitation of stay. In the April 20 TFR, DHS indicated 
that it would issue a new temporary final rule to extend its 
termination date in the event DHS determined that economic 
circumstances related to our food supply demonstrated a continued need 
for these temporary changes to the regulatory requirements involving H-
2A agricultural employers and workers. The April 20 TFR was effective 
from April 20, 2020 through August 18, 2020. 85 FR 21739. DHS 
subsequently determined that the public health emergency and economic 
circumstances resulting from COVID 19 necessitated the continuation of 
some of the flexibilities implemented through the April 20 TFR, namely 
the ability of H-2A workers to change employers and begin work before 
USCIS approves the new H-2A petition for the new employer. Accordingly, 
DHS issued a TFR on August 20, 2020 (the ``August 20 TFR'') extending 
those flexibilities, which has been effective for H-2A petitions that 
were received on or after August 19, 2020 through December 17, 2020. 85 
FR 51304.
    As discussed in more detail below, due to the continuing health and 
economic crisis caused by COVID-19, DHS has again determined that the 
public health emergency and economic circumstances resulting from 
COVID-19 are necessitating the continuation of the flexibilities 
implemented through the August 20 TFR. Therefore, DHS is issuing this 
TFR to extend those flexibilities for an additional 180 days, i.e., 
through June 16, 2021. This timeframe differs from the most recent 
renewal of a determination of the public health emergency because DHS 
believes that the COVID-19 pandemic may have a more lasting impact on 
the U.S. food agriculture sector beyond the 90 day public health 
emergency determination signed by HHS Secretary Alex Azar on October 2, 
2020.\9\ As a result, DHS will continue to monitor the evolving health 
crisis caused by COVID-19 and may address it in future rules.
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    \9\ See HHS Renewal of Determination That A Public Health 
Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-2Oct2020.aspx (Oct. 2, 2020).
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II. Discussion

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

    DHS is committed to both protecting U.S. and foreign workers and to 
helping U.S. businesses receive the legal and work-authorized labor for 
temporary or seasonal agricultural labor or services that they need.
    On October 2, 2020, HHS Secretary Alex Azar signed a renewal of 
determination, effective October 23, 2020, that extends the current 
COVID-19 public health emergency by up to 90 days.\10\ This 
determination that a public health emergency exists and has existed 
since January 27, 2020, nationwide, was previously renewed on April 21, 
2020 and July 23, 2020. The renewal of determination signals that the 
United States is facing continued consequences of the COVID-19 National 
Emergency, which corresponds to the volume of COVID-19 cases reported 
by the U.S. Centers for Disease Control and Prevention--13,295,605 as 
of November 30, 2020.\11\
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    \10\ See HHS Renewal of Determination That A Public Health 
Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-2Oct2020.aspx (Oct. 2, 2020).
    \11\ See, https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days (Last visited Nov. 30, 2020). DHS notes 
that the total number of cases changes daily.
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    The COVID-19 pandemic continues to cause disruptions in the 
domestic food supply chain.\12\ As of October 2, 2020, USDA's Economic 
Research Service reported that ``[t]he coronavirus (COVID-19) pandemic 
has widely impacted the U.S. economy, including the farm sector and 
farm households. Farm businesses have experienced disruptions to 
production due to lowered availability of labor and other inputs . . . 
[r]eductions in available labor affect crop and livestock production, 
as well as processing capacity for crop and animal products that leave 
the farm. Reduced processing capacity results in lower consumption of 
certain agricultural commodities.'' \13\ The H-2A program has been 
crucial to assuring the continued viability of the nation's food supply 
chain.\14\ Notwithstanding the availability of the H-2A program, U.S. 
farmers are continuing to experience labor shortages as fewer workers 
are able to get to the United States or are willing to take health 
risks in coming to this country to perform H-2A work. Media outlets in 
the United States have continued to report on these shortages. For 
example, a farmer in North Dakota who typically hires the same eight 
farmhands from South Africa to tend his crops was short half of his 
crew this year due to COVID-19.\15\ In another instance, an executive 
director of a farming association noted that they have had access to 10 
percent to 12 percent fewer H-2A workers in the area of Idaho in which 
their farms are located.\16\
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    \12\ See, e.g. Food Security and COVID-19, https://www.worldbank.org/en/topic/agriculture/brief/food-security-and-covid-19 (last visited Nov. 19, 2020).
    \13\ ``Farms and Farm Households During the COVID-19 Pandemic,'' 
https://www.ers.usda.gov/covid-19/farms-and-farm-households/ (last 
visited Nov. 19, 2020).
    \14\ The Washington Post, ``How one visa program keeps America 
fed,'' https://www.washingtonpost.com/video/national/how-one-visa-program-keeps-america-fed/2020/06/17/ac3be98d-1ed1-4d4c-8dc7-85cbbeecb5fc_video.html (last visited Nov. 20, 2020).
    \15\ Bloomberg, ``Global Food Output Runs Into Migrant Worker 
Woes,'' Aug. 7, 2020, https://www.bloomberg.com/news/newsletters/2020-08-07/supply-chains-latest-migrant-worker-shortages-hit-food-output (last visited Nov. 20, 2020).
    \16\ MagicValley.com, ``Indispensable: Foreign workers critical 
for many Magic Valley farms,'' Oct. 1, 2020, https://magicvalley.com/business/agriculture/indispensable-foreign-workers-critical-for-many-magic-valley-farms/article_e9720a22-534b-5ccf-b694-27e5f9d6b9fe.html (last visited Nov. 24, 2020).
---------------------------------------------------------------------------

    As the public health emergency and economic consequences of it 
continue, DHS has determined it is necessary to issue a new temporary 
final rule to extend certain flexibilities first implemented through 
the April 20 TFR, and subsequently partially extended through the 
August 20 TFR, because DHS has determined that there is a continued 
need for them. This TFR extends the amendments made by the August 20 
TFR to help U.S. agricultural employers reduce disruptions in lawful 
agricultural-related employment, protect the nation's food supply 
chain, and lessen impacts from the COVID-19 pandemic and related 
economic effects, consistent with the declaration of the National 
Emergency. Due to the continued travel restrictions and visa processing 
limitations as a result of actions taken to mitigate the spread of 
COVID-19,\17\ as well as the possibility that some H-2A workers may 
become

[[Page 82295]]

unavailable due to COVID-19 related illness or a legitimate fear of 
contracting COVID-19 under current conditions,\18\ U.S. employers who 
have approved H-2A petitions or who will be filing H-2A petitions might 
not receive all of the workers requested to fill the temporary 
positions, and similarly, employers that currently employ H-2A workers 
may lose the services of workers due to COVID-19 related illness. For 
example, Purdue University estimates as of November 24, 2020 more than 
247,000 agricultural workers have contracted COVID-19.\19\ Though not 
all of these cases involve H-2A nonimmigrant workers, this research 
highlights the particular serious risks and vulnerabilities to 
contracting COVID-19 that farmworkers experience.
---------------------------------------------------------------------------

    \17\ U.S. News and World Report, ``U.S., Canada, Mexico to 
Extend Border Restrictions Until Late December,'' Nov. 18, 2020, 
https://www.usnews.com/news/world/articles/2020-11-18/us-travel-restrictions-at-canada-mexico-borders-set-to-be-extended-until-dec-21-official (last visited Nov. 24, 2020).
    \18\ See e.g. See e.g. National Center for Farmworker Health: 
COVID-19 in Rural America: Impact on Farms & Agricultural Workers 
(``As of October 18th, 99% of rural counties in America had reported 
positive COVID-19 cases and 81% had reported one or more deaths. 
More than one million rural residents have tested positive for 
COVID-19 and 22,613 deaths among rural Americans have been 
attributed to the disease.''), 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).
    \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).
---------------------------------------------------------------------------

    Under this temporary final rule, any H-2A petitioner with a valid 
TLC, i.e. one who has already tested the U.S. labor market and was 
unable to find able, willing, and qualified U.S. workers to perform 
temporary or seasonal agricultural services or labor, can start 
employing H-2A workers who are currently in the United States and in 
valid H-2A status and who have been complying with the terms of their 
H-2A status immediately after receiving notice that USCIS has received 
the H-2A petition, but no earlier than the start date of employment 
listed on the petition. This will allow H-2A workers to move to a new 
employer to meet urgent temporary or seasonal agricultural needs before 
USCIS approves the new employer's petition. DHS believes this continued 
flexibility will help address the challenges faced by U.S. employers as 
well as workers due to COVID-19 as the winter and spring seasons 
approach.\20\ See new 8 CFR 214.2(h)(22) and 8 CFR 274a.12(b)(28). 
However, nothing in this TFR changes the existing DOL requirements for 
obtaining a TLC which an employer must comply with before filing an H-
2A petition with USCIS.
---------------------------------------------------------------------------

    \20\ The Apr. 20 TFR provided temporary exceptions to DHS 
regulations at 8 CFR 214.2(h)(5)(viii)(C), (h)(13)(i)(B), and 
(h)(15)(ii)(C) that had allowed aliens to extend their H-2A period 
of stay beyond the 3-year limitation, without first requiring them 
to remain outside of the United States for an uninterrupted period 
of 3 months. As described in the Aug. 20 TFR, DHS determined that it 
was necessary to provide stability to the U.S. food supply chain, 
address the urgent needs of U.S. agricultural producers, and ensure 
that those aliens admitted into the United States as temporary 
workers in the H-2A nonimmigrant classification in fact remain in 
this country on a temporary basis, as required by the Act. 8 U.S.C. 
1101(a)(15)(H)(ii)(a). Therefore, DHS did not extend the Apr. 20 TFR 
temporary exceptions to its regulations at 8 CFR 
214.2(h)(5)(viii)(C), (h)(13)(i)(B), and (h)(15)(ii)(C). With this 
TFR, DHS maintains the belief that a balance is required between 
providing stability to the U.S. food supply chain and ensuring 
foreign agricultural workers are in the country on a temporary 
basis, and therefore, DHS is not including temporary exceptions to 
allow aliens to extend their H-2A period of stay beyond the 3-year 
limitation. Consequently, USCIS will continue to apply the 3-year 
limit reflected in permanent DHS regulations to any H-2A petition 
that is received on or after Dec. 18, 2020. Petitioners who seek 
foreign workers to fill a permanent need and/or to remain in the 
country permanently, must comply with requirements applicable to 
permanent positions. See 8 U.S.C. 1153(b)(3).
---------------------------------------------------------------------------

    Unlike the permanent regulation at 8 CFR 274a.12(b)(21), which 
allows the H-2A worker(s) to immediately work for a new H-2A employer 
in good standing in E-Verify upon the filing of an H-2A extension of 
stay petition, this TFR, like the April 20 and August 20 TFRs, allows 
the H-2A worker(s) to immediately work for any new H-2A employer, but 
no earlier than the start date of employment listed on the H-2A 
petition, upon the filing of an H-2A extension of stay petition during 
the COVID-19 National Emergency only.
    DHS remains committed to promoting the use of E-Verify to ensure a 
legal workforce. E-Verify is free, user friendly, and over 98 percent 
accurate.\21\ Notwithstanding the numerous benefits E-Verify offers to 
ensure all employers only employ a legal workforce, DHS has determined 
that it is necessary to temporarily amend its regulations affecting H-
2A workers to mitigate the impact on the agricultural industry due to 
COVID-19. These H-2A petitioners will have completed a test of the U.S. 
labor market, and DOL will have determined that there are no qualified 
U.S. workers available to fill these temporary positions. DHS believes 
that granting H-2A workers the option to begin employment with any new 
H-2A petitioner as soon as the H-2A petition is received by USCIS will 
also benefit U.S. agricultural employers and help provide stability to 
the U.S. food supply chain during the unique challenges the country 
faces because of COVID-19.
---------------------------------------------------------------------------

    \21\ See https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance (last updated Oct. 1, 2020).
---------------------------------------------------------------------------

    To be approved under this final rule, an H-2A petition for an 
extension of stay with a new employer must be received on or after 
December 18, 2020, but no later than June 16, 2021. If the new petition 
is approved, the H-2A worker's extension of stay may be granted for the 
validity of the approved petition, and for a period not to exceed the 
validity period of the TLC. In addition, the temporary provisions being 
extended by this rule are the same as the April 20 and August 20 TFRs 
provisions but differ from the permanent regulatory provisions in that 
they grant employment authorization for 45 days from the date of the 
receipt notice. The 45-day employment authorization associated with the 
filed petition will automatically terminate 15 days after the date of 
denial or withdrawal if USCIS denies the petition, or if the petition 
is withdrawn.
    To provide greater certainty to the market for the winter and 
spring agricultural seasons, the changes made by this final rule will 
automatically terminate on June 16, 2021. DHS will continue to monitor 
the rapidly evolving situation surrounding the COVID-19 pandemic and 
associated economic consequences and will determine whether continued 
flexibilities are needed beyond the 180 days. USCIS will continue to 
adjudicate H-2A petitions received no later than June 16, 2021 under 
the provisions of this rule. Unless the exceptions contained in this 
temporary final rule are further extended, any H-2A petition received 
after the termination of this temporary final rule will be adjudicated 
in accordance with the existing permanent provisions. See 8 CFR 
214.2(h)(2)(i)(D) and 274a.12(b)(21).

III. Statutory and Regulatory Requirements

A. Administrative Procedure Act

    This rule is being issued without prior notice and opportunity to 
comment and with an immediate effective date pursuant to sections 
553(b) and (d) of the Administrative Procedure Act (APA). 5 U.S.C. 551 
et seq.

[[Page 82296]]

1. Good Cause To Forgo Notice and Comment Rulemaking
    The APA, 5 U.S.C. 553(b)(B), authorizes an agency to issue a rule 
without prior notice and opportunity to comment when the agency for 
good cause finds that those procedures are ``impracticable, 
unnecessary, or contrary to the public interest.'' The good-cause 
exception for forgoing notice-and-comment rulemaking ``excuses notice 
and comment in emergency situations, or where delay could result in 
serious harm.'' Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004). 
Although the good cause exception is ``narrowly construed and only 
reluctantly countenanced,'' Tenn. Gas Pipeline Co. v. FERC, 969 F.2d 
1141, 1144 (D.C. Cir. 1992), DHS has appropriately invoked the 
exception in this case, for the reasons set forth below. As also 
discussed earlier in this preamble, on January 31, 2020, the Secretary 
of Health and Human Services declared a public health emergency, dating 
back to January 27, 2020, under section 319 of the Public Health 
Service Act in response to COVID-19.\22\ On March 13, 2020, President 
Trump declared a National Emergency concerning the COVID-19 outbreak, 
dated back to March 1, 2020, to control the spread of the virus in the 
United States.\23\ In response to the Mexican government's call to 
increase social distancing in that country, DOS announced the temporary 
suspension of routine immigrant and nonimmigrant visa services 
processed at the U.S. Embassy in Mexico City and all U.S. Consulates in 
Mexico beginning on March 18, 2020.\24\ DOS expanded the temporary 
suspension of routine immigrant and nonimmigrant visa services at all 
U.S. Embassies and Consulates on March 20, 2020.\25\ On October 2, 
2020, the U.S. Department of Health and Human Services (HHS) Secretary 
Alex Azar signed a renewal of determination, effective October 23, that 
extends the current COVID-19 public health emergency by up to 90 
days.\26\ This determination that a public health emergency exists and 
has existed since January 27, 2020, nationwide, was previously renewed 
on April 21, 2020 and on July 23, 2020.
---------------------------------------------------------------------------

    \22\ Determination of Public Health Emergency.
    \23\ Proclamation 9994.
    \24\ Status of U.S. Consular Operations in Mexico in Light of 
COVID-19.
    \25\ Suspension of Routine Visa Services.
    \26\ See HHS Renewal of Determination That A Public Health 
Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-2Oct2020.aspx (Oct. 2, 2020).
---------------------------------------------------------------------------

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

    \27\ Important Announcement on H2 Visas.
    \28\ DHS Memorandum on Identification of Essential Critical 
Infrastructure Workers During COVID-19 Response. DHS Advisory 
Memorandum on Identification of Essential Critical Infrastructure 
Workers During COVID_10 Response.
    \29\ See e.g. National Center for Farmworker Health: COVID-19 in 
Rural America: Impact on Farms & Agricultural Workers (``As of 
October 18th, 99% of rural counties in America had reported positive 
COVID-19 cases and 81% had reported one or more deaths. More than 
one million rural residents have tested positive for COVID-19 and 
22,613 deaths among rural Americans have been attributed to the 
disease.''), http://www.ncfh.org/msaws-and-covid-19.html (Last 
visited Dec. 1, 2020).
    \30\ See, e.g. Food Security and COVID-19, https://www.worldbank.org/en/topic/agriculture/brief/food-security-and-covid-19 (last visited Nov. 23, 2020). See also, ``Farms and Farm 
Households During the COVID-19 Pandemic'' https://www.ers.usda.gov/covid-19/farms-and-farm-households/ (last visited Nov. 23, 2020) 
indicating that ``Farm businesses have experienced disruptions to 
production due to lowered availability of labor and other inputs . . 
. [r]eductions in available labor affect crop and livestock 
production, as well as processing capacity for crop and animal 
products that leave the farm. Reduced processing capacity results in 
lower consumption of certain agricultural commodities.''
---------------------------------------------------------------------------

    Courts have found ``good cause'' under the APA when an agency is 
moving expeditiously to avoid significant economic harm to a program, 
program users, or an industry. Courts have held that an agency may use 
the good-cause exception to address ``a serious threat to the financial 
stability of [a government] benefit program,'' Nat'l Fed'n of Fed. 
Emps. v. Devine, 671 F.2d 607, 611 (D.C. Cir. 1982), or to avoid 
``economic harm and disruption'' to a given industry, which would 
likely result in higher consumer prices, Am. Fed'n of Gov't Emps. v. 
Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981). Consistent with the above 
authorities, DHS has bypassed notice and comment to facilitate the 
employment of H-2A workers already in the United States, and prevent 
potential economic harms to H-2A agricultural employers and downstream 
employers engaged in the processing of agricultural products, as well 
as potential harms to the American economy and people that could result 
from ongoing uncertainty over the availability of H-2A agricultural 
workers, and potential associated negative impacts on food security in 
the United States. See Bayou Lawn & Landscape Servs. v. Johnson, 173 F. 
Supp. 3d 1271, 1285 & n.12 (N.D. Fla. 2016). This action is temporary 
in nature, and includes appropriate conditions to ensure that it is 
narrowly tailored to the National Emergency caused by COVID-19.
2. Good Cause To Proceed With an Immediate Effective Date
    The APA also authorizes agencies to make a rule effective 
immediately, upon a showing of good cause, instead of imposing a 30-day 
delay. 5 U.S.C. 553(d)(3). The good-cause exception to the 30-day 
effective date requirement is easier to meet than the good-cause 
exception for forgoing notice and comment rulemaking. Riverbend Farms, 
Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992); Am. Fed'n of 
Gov't Emps., AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981); 
U.S. Steel Corp. v. EPA, 605 F.2d 283, 289-90 (7th Cir. 1979). An 
agency can show good cause for eliminating the 30-day delayed effective 
date when it demonstrates urgent conditions the rule seeks to correct 
or unavoidable time limitations. U.S. Steel Corp., 605 F.2d at 290; 
United States v. Gavrilovic, 511 F.2d 1099, 1104 (8th Cir. 1977). For 
the same reasons set forth above, DHS also concludes that the 
Department has good cause to dispense with the 30-day effective date 
requirement given that

[[Page 82297]]

this rule is necessary to prevent serious economic harms to U.S. 
employers in the agricultural industry caused by unavailability of 
workers due to COVID-19, and to ensure food stability for the American 
people.

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

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

C. Regulatory Flexibility Act

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

D. Unfunded Mandates Reform Act of 1995

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

E. Executive Order 13132 (Federalism)

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

F. Executive Order 12988 (Civil Justice Reform)

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

G. Congressional Review Act

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

H. National Environmental Policy Act

    DHS analyzes actions to determine whether the National 
Environmental Policy Act, Public Law 91-190, 42 U.S.C. 4231, et seq. 
(NEPA), applies to them and, if so, what degree of analysis is 
required. DHS Directive 023-01 Rev. 01 (Directive) and Instruction 
Manual 023-01-001-01 Rev. 01 (Instruction Manual) establish the 
policies and procedures that DHS and its components use to comply with 
NEPA and the Council on Environmental Quality (CEQ) regulations for 
implementing NEPA, 40 CFR parts 1500-1508.
    The CEQ regulations allow federal agencies to establish, with CEQ 
review and concurrence, categories of actions (``categorical 
exclusions'') which experience has shown do not individually or 
cumulatively have a significant effect on the human environment and, 
therefore, do not require an Environmental Assessment (EA) or 
Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(2)(ii), 1508.4. 
Categorical exclusions established by DHS are set forth in Appendix A 
of the Instruction Manual. Under DHS NEPA implementing procedures, for 
an action to be categorically excluded, it must satisfy each of the 
following three conditions: (1) The entire action clearly fits within 
one or more of the categorical exclusions; (2) the action is not a 
piece of a larger action; and (3) no extraordinary circumstances exist 
that create the potential for a significant environmental effect. 
Instruction Manual section V.B(2)(a)-(c). This rule temporarily amends 
regulations governing the H-2A nonimmigrant visa program to facilitate 
the continued employment of H-2A nonimmigrants in the United States by 
allowing them to change employers in the United States and begin 
working in the same visa classification for a period not to exceed 45 
days before the nonimmigrant visa petition is approved, due to the 
National Emergency caused by the COVID-19 global pandemic. This rule 
does not change the number of H-2A workers that may be employed by U.S. 
employers as there is not an established statutory limit. It also does 
not change rules for where H-2A nonimmigrants may be employed; only 
employers with approved temporary labor certifications for workers to 
perform temporary or seasonal agricultural work may be allowed to 
employ H-2A workers under these temporary provisions. Generally, DHS 
believes NEPA does not apply to a rule intended to make it easier for 
H-2A employers to hire workers who are already in the United States in 
addition to, or instead of, also hiring H-2A workers from abroad 
because any attempt to analyze its potential impacts would be largely 
speculative, if not completely so. DHS cannot reasonably estimate how 
many petitions will be filed under these temporary provisions,

[[Page 82298]]

and therefore how many H-2A workers already in the United States will 
be employed by different employers, as opposed to how many petitions 
would have been filed for H-2A workers employed under normal 
circumstances. DHS has no reason to believe that the temporary 
amendments to H-2A regulations would change the environmental effect, 
if any, of the existing regulations. Therefore, DHS has determined that 
even if NEPA were to apply to this action, this rule clearly fits 
within categorical exclusion A3(d) in the Instruction Manual, which 
provides an exclusion for ``promulgation of rules . . . that amend an 
existing regulation without changing its environmental effect.''
    This rule maintains the current human environment by helping to 
prevent irreparable harm to certain U.S. businesses and to prevent 
significant adverse effects on the human environment that would likely 
result from loss of jobs or income, or disruption of the nation's food 
supply chain. This rule is not a part of a larger action and presents 
no extraordinary circumstances creating the potential for significant 
environmental effects. Therefore, this action is categorically excluded 
and no further NEPA analysis is required.

I. Signature

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

List of Subjects

8 CFR Part 214

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

8 CFR Part 274a

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

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

PART 214--NONIMMIGRANT CLASSES

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

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


0
2. Amend Sec.  214.2 by adding paragraph (h)(22) to read as follows:


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

* * * * *
    (h) * * *
    (22) Change of employers during COVID-19 National Emergency. (i) If 
an H-2A nonimmigrant who is physically present in the United States 
seeks to change employers during the COVID-19 National Emergency, the 
prospective new H-2A employer may file an H-2A petition on Form I-129, 
accompanied by a valid temporary agricultural labor certification, 
requesting an extension of the alien's stay in the United States. To be 
approved under this paragraph (h)(22), an H-2A petition must be 
received on or after December 18, 2020 but no later than June 16, 2021. 
If the new petition is approved, the extension of stay may be granted 
for the validity of the approved petition for a period not to exceed 
the validity period of the temporary agricultural labor certification. 
Notwithstanding paragraph (h)(2)(i)(D) of this section and 8 CFR 
274a.12(b)(21), an alien in valid H-2A nonimmigrant status on December 
18, 2020, or lawfully obtaining such status thereafter pursuant to this 
paragraph (h)(22), is authorized to begin employment with the new 
petitioner after the petition described in this paragraph (h)(22) is 
received by USCIS, but no earlier than the start date of employment, 
indicated in the H-2A petition. The H-2A worker is authorized to 
commence employment with the petitioner before the petition is approved 
and subject to the requirements of 8 CFR 274a.12(b)(28) for a period of 
up to 45 days beginning on the Received Date on Form I-797 (Notice of 
Action) or, if the start date of employment occurs after the I-797 
Received Date, 45 days beginning on the start date of employment 
indicated in the H-2A petition. If USCIS adjudicates the petition prior 
to the expiration of this 45-day period and denies the petition for 
extension of stay, or if the petition is withdrawn by the petitioner 
before the expiration of the 45-day period, the employment 
authorization associated with the filing of that petition under 8 CFR 
274a.12(b)(28) will automatically terminate 15 days after the date of 
the denial decision or the date on which the petition is withdrawn.
    (ii) Authorization to initiate employment changes pursuant to this 
paragraph (h)(22) begins at 12 a.m. on December 18, 2020, and ends at 
the end of June 16, 2021.
* * * * *

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

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

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


0
4. Amend Sec.  274a.12 by adding paragraph (b)(28) to read as follows:


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

* * * * *
    (b) * * *
    (28)(i) Pursuant to 8 CFR 214.2(h)(22) and notwithstanding 8 CFR 
214.2(h)(2)(i)(D) and paragraph (b)(21) of this section, an alien is 
authorized to be employed, but no earlier than the start date of 
employment indicated in the H-2A petition, by a new employer that has 
filed an H-2A petition naming the alien as a beneficiary and requesting 
an extension of stay for the alien, for a period not to exceed 45 days 
beginning from the ``Received Date'' on Form I-797 (Notice of Action) 
acknowledging receipt of the petition requesting an extension of stay, 
or 45 days beginning on the start date of employment if the start date 
of employment indicated in the H-2A petition occurs after the filing. 
The length of the period (up to 45 days) is to be determined by USCIS 
in its discretion. However, if USCIS adjudicates the petition prior to 
the expiration of this 45-day period and denies the petition for 
extension of stay, or if the petitioner withdraws the petition before 
the expiration of the 45-day period, the employment authorization under 
this paragraph (b)(28) will automatically terminate upon 15 days after 
the date of the denial decision or the date on which the petition is 
withdrawn.
    (ii) Authorization to initiate employment changes pursuant to 8 CFR 
214.2(h)(22) and paragraph (b)(28)(i) of this section begins at 12 a.m. 
on

[[Page 82299]]

December 18, 2020, and ends at the end of June 16, 2021.
* * * * *

Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S. 
Department of Homeland Security.
[FR Doc. 2020-27661 Filed 12-17-20; 8:45 am]
BILLING CODE 9111-97-P