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The U.S. Department of Homeland Security (DHS) has announced a temporary final rule to change certain H-2B requirements to help support the U.S. food supply chain, maintain essential infrastructure operations and reduce the impact from the coronavirus (COVID-19) public health emergency.
These temporary measures will not eliminate protections for U.S. workers, and they do not increase the number of H-2B employees outside of the congressionally mandated cap.
Under this temporary final rule, a petitioner will have additional flexibilities for employing workers essential to the U.S. food supply chain. To take advantage of this time-limited change in regulatory requirements, the H-2B worker must already be in the United States and in valid H-2B status.
There are two flexibilities in the temporary final rule. First, the rule allows an H-2B employer to employ an H-2B nonimmigrant physically present in the United States while the employer’s H-2B petition on behalf of that nonimmigrant is still pending before USCIS. The rule only provides this flexibility if the employer attests that the worker will perform temporary services or labor that is essential to the U.S. food supply chain. The temporary employment authorization will last for up to 60 days. Second, the rule allows H-2B workers essential to the U.S. food supply chain to stay beyond the three-year maximum allowable period of stay in the United States. This flexibility applies to petitions filed by the H-2B nonimmigrant’s current employer, as well as petitions filed by a potential new employer. The rule only provides this flexibility if the employer attests that the worker will perform temporary services or labor that is essential to the U.S. food supply chain. It is not acceptable for employers to hire illegal aliens.
A petitioner seeking the flexibilities under this temporary final rule will be required to submit an attestation, swearing under penalty of perjury, that the H-2B worker(s) will be performing temporary nonagricultural services that are essential to the U.S. food supply chain.
The temporary final rule is effective immediately upon publication in the Federal Register.
DHS previously announced similar protections for American agricultural employers in order to secure the nation’s food supply chain. The H-2B nonimmigrant classification applies to alien workers seeking to perform nonagricultural services or labor of a temporary nature in the United States, usually lasting no longer than one year, for which able, willing and qualified U.S. workers are not available.