H-2B workers are essential to the US food supply chain.
Temporary non-agricultural workers may stay beyond three year limit in the US.
To help support the US food supply chain and maintain essential infrastructure operations amid a raging coronavirus pandemic, the US has announced a new rule for foreign temporary non-agricultural workers already in the US.
The “temporary final rule” announced by the US Citizenship and Immigration Services (USCIS) Tuesday offers 60-day temporary work permits to H-2B workers essential to the US food supply chain and allows them to stay in the US beyond the three-year maximum allowed currently.
These temporary measures apply solely to aliens already present in the US with a valid H-2B nonimmigrant status, and do not increase H-2B visas above the congressionally mandated 66,000 visa cap through the remainder of fiscal year (FY) 2020, it said in a news release.
“These necessary flexibilities will safeguard a critical US infrastructure sector; reinforce security of the nation’s food supply chain; and encourage key American businesses to maintain essential operations currently threatened by the covid-19 public health emergency,” said USCIS Deputy Director for Policy, Joseph Edlow.
“Importantly, these measures protect US workers by not adding supplemental H-2B visas during the national emergency.”
Under the new rule, a petitioner will have additional flexibilities for employing workers essential to the US food supply chain, USCIS said.
To take advantage of this time-limited change in regulatory requirements, the H-2B worker must already be in the US and in valid H-2B status.
A petitioning employer would have to also demonstrate that there is not a sufficient supply of qualified US workers who will be available at the time and place needed to perform the labor or services involved in the petition.
The employment of the aliens in such labor or services will not adversely affect the wages and working conditions of workers in the US similarly employed.
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 US 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 US food supply chain.
The temporary employment authorization will last for up to 60 days. Second, the rule allows H-2B workers essential to the US food supply chain to stay beyond the three-year maximum allowable period of stay in the US.
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 US 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 workers will be performing temporary nonagricultural services or labor or that is essential to the US food supply chain.
The temporary final rule is effective immediately upon publication in the Federal Register, USCIS said.
The H-2B nonimmigrant classification applies to foreign workers seeking to perform nonagricultural services or labor of a temporary nature in the US, usually lasting no longer than one year, for which able, willing and qualified US workers are not available.