COVID-19: New Temporary Rule for H-2B Workers in Food Supply Chain Jobs

Due to the impact of COVID-19, on May 14, 2020, the Department of Homeland Security issued a new regulation that took effect immediately.  The rule provides temporary flexibility to facilitate  employment in essential food supply chain jobs of seasonal non-agricultural workers already in the U.S. in valid H-2B status as of March 1, 2020.  Employers must request the flexibility created by the new rule before September 11, 2020, although the rule remains in effect through May 15, 2023.

As explained in this U.S. Citizenship and Immigration Services (USCIS) summary, the temporary rule allows an employer  “with an approved temporary labor certification (to) 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.”

In addition to completing the normal recruiting requirements and usual paperwork with the Department of Labor and USCIS, the employer must also attest via new Form ATT-H2B that the H-2B worker is needed for an essential non-agricultural food supply chain position, defined as:

• 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
• Selling human and animal food through a variety of sellers or retail establishments, including restaurants.

USCIS also issued guidance on May 21, 2020 to employers on how to complete the I-9 Employment Authorization Form for any H-2B workers hired under the new rule.

Unfortunately, the temporary rule fails to address the shortage of H-2B visas overall due to the 66,000 annual H-2B visa cap.  Nor does it raise the cap to the full extent allowed for the remainder of FY 2020 by Congress.  It also doesn’t help employers unable to get their H-2B workers to the U.S. from abroad after U.S. consulates suspended processing their visas due to COVID-19.

As a practical matter, therefore, the impact of this temporary rule during the current fiscal year may be extremely limited.