USCIS Temporary Final Rule on Changes to H-2B Requirements Due to COVID-19 Emergency

USCIS temporary final rule temporarily removing certain limitations on H-2B employers and workers due to the COVID-19 emergency. The rule is effective from 5/14/20 through 5/15/23. (85 FR 28843, 5/14/20)

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

[CIS No. 2669-20; DHS Docket No. USCIS-2020-0012]

RIN 1615-AC58

Temporary Changes to Requirements Affecting H-2B Nonimmigrants Due to the COVID-19 National Emergency

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Temporary final rule.

Brief summary of the changes made by the rule:

  • Temporary final rule that takes effect on May 14, 2020. Flexibilities contained herein for H-2B petitioners terminate on September 11, 2020. It applies to H-2B workers in the United States in valid nonimmigrant status on or after March 1, 2020.
  • Temporarily permits certain flexibilities for H-2B employers seeking workers to perform work essential to the U.S. food supply chain that don’t qualify as H-2A, including but not limited to work related to the processing, manufacturing, and packaging of human and animal food; transporting human and animal food from farms, or manufacturing or processing plants, to distributors and end sellers; and the selling of human and animal food through a variety of sellers or retail establishments, including restaurants.
  • Temporarily allows H-2B workers to extend their 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. This flexibility applies both to extensions of stay with the same employer as well as extensions of stay with a new employer.
  • Workers subject to the H-2B petition may start working upon USCIS’ receipt of the new H-2B petitions, accompanied by an attestation to USCIS stating that the alien qualifies for the flexibilities in this rule. The rule grants employment authorization to the H-2B worker for 60 days from the date of the receipt notice for the H-2B petition filed by the new employer or 60 days from the start date of employment indicated in the H-2B petition, whichever is later. This applies to pending cases that were filed on or after March 1, 2020 if an attestation is provided to USCIS.
  • Employment is not authorized under this temporary final rule if an H-2B petition, which must include a valid TLC and attestation, is not received by USCIS as indicated by Form I-797 (Notice of Action). The 60-day employment authorization associated with the filed petition will automatically terminate 15 days after the date of denial if USCIS denies the petition, or 15 days after the date on which the petition is withdrawn.

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Cite as AILA Doc. No. 20051261.

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