On May 14, 2020, the Department of Homeland Security published a temporary final rule to change certain H-2B requirements to help secure the U.S. food supply chain and reduce the economic impact of the COVID-19 public health emergency on H-2B employers.

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:

• 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. 

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. DHS will continue to monitor the rapidly evolving circumstances surrounding the public health emergency and may issue a new temporary final rule to extend its applicability in the event DHS determines that economic circumstances demonstrate a continued need for these temporary changes to the regulatory requirements involving H–2B nonagricultural employers and workers essential to the nation’s food supply chain.