USCIS Temporarily Amends Certain H-2B Requirements During COVID-19 Public Health Emergency
Update: USCIS Temporarily Amends Certain H-2B Requirements During COVID-19 Public Health Emergency
Under this temporary final rule, an H-2B petitioner with an approved temporary labor certification can start employing H-2B workers already in the United States for positions essential to the U.S. food supply chain, immediately after USCIS receives the H-2B petition and the new attestation, but no earlier than the start date of employment listed on the petition. Additionally, DHS is temporarily amending its regulations to allow certain H-2B workers to stay beyond the three-year maximum allowable period of stay in the United States
To take advantage of this time-limited change in regulatory requirements, the H-2B workers must be in the United States and in valid H-2B status on or after March 1, 2020. In addition, the H-2B petitioner will be required to submit, with its petition, a new Form ATT-H2B, Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers Essential to the U.S. Food Supply Chain (PDF, 270.3 KB), swearing under penalty of perjury that the H-2B worker(s) will be performing temporary nonagricultural services or labor that are essential to the U.S. food supply chain including, but not limited to:
1. Processing, manufacturing, and packaging of human and animal food;
2. Transporting human and animal food from farms or manufacturing or processing plants to distributors and end sellers; and
3. Selling human and animal food through a variety of sellers or retail establishments, including restaurants.
In addition to H-2B petitioners who file their petitions on or after May 14, 2020, the temporary final rule allows certain H-2B employers and U.S. agents, with pending petitions on or after that date, to request the flexibilities provided under the temporary final rule by submitting the new Form ATT-H2B attestation to the appropriate center before USCIS adjudicates their petitions.
The temporary final rule is effective immediately upon publication in the Federal Register. H-2B employers and U.S. agents can request the flexibilities authorized under the temporary final rule through Sept. 11, 2020.
The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. A U.S. employer, or U.S. agent as described in the regulations, must file Form I-129, Petition for a Nonimmigrant Worker, on a prospective worker’s behalf.
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