As per a temporary final rule – 85 FR 28843 – published on May 14, the Department of Homeland Security is temporarily doing away with certain limitations on US employers and agents looking to employ certain H-2B workers that are already in the US for providing temporary services or labor essential to the US food supply chain, along with certain H-2B workers essential to the US food supply chain that wish to extend their stay in the US.
The temporary final rule changing certain H-2B requirements is expected to help secure the food supply chain in the US along with reducing the economic impact of the COVID-19 pandemic on H-2B employers.
The final rule will be effective from May 14, 2020 through May 15, 2023.
It is through the H-2B program that US employers or US agents meeting certain specific regulatory requirements are allowed to bring in foreign nationals to the US in order to fill temporary non-agricultural jobs.
Nationals of India are not eligible for the H-2B visa for the US.
Flexibility under this rule can be requested by an employer by filing an H-2B petition – inclusive of the attestation and required documentation – on or after the effective date of this rule and until 120 days after that.
Employers that have pending H-2B petitions on the effective date of this rule might request the flexibilities provided under this rule through the submission of a new attestation during the same 120-period after that, and before the H-2B is decided upon.
As per the temporary final rule effective from May 14, an H-2B petitioner that has an approved temporary labor certification can begin hiring H-2B workers that are already in the US for positions essential to the US food supply chain.
Moreover, the Department of Homeland Security is amending regulations in order to allow H-2B workers to remain in the US beyond the 3-year period that is the maximum period of stay allowed for them in the US.
To be able to take advantage of this temporary change, the H-2B worker must be in the US and on a valid H-2B status on or after March 1, 2020. The H-2B petitioner will also be required to submit, along with its petition, a new Form ATT-H2B.
As of now, the H-2B cap is set at 66,000 per fiscal year.
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