The Department of Homeland Security (DHS) announced a temporary final rule to change certain H-2B requirements to “help support the U.S. food supply chain, maintain essential infrastructure operations and reduce the impact from the coronavirus (COVID-19) public health emergency.” The H-2B nonimmigrant classification applies to foreign national 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. DHS notes that these temporary measures apply solely to foreign nationals already present in the US with a valid H-2B nonimmigrant status, and also notes that the temporary final rule does not increase H-2B visas above the congressionally mandated 66,000 visa cap through the remainder of fiscal year (FY) 2020.

Under the temporary final rule, there are two flexibilities. First, the rule permits H-2B employers 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 with USCIS. The temporary employment authorization will last for up to sixty days. Second, the rule permits 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. DHS notes that the rule only provides this flexibility if employers attest that the worker will perform temporary services or labor essential to the US food supply chain.

Joseph Edlow, USCIS Deputy Director for Policy, said in a statement that this rule is key during this time. "These necessary flexibilities will safeguard a critical U.S. 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.” DHS previously announced similar protections for American agricultural employers for workers in the US under H-2A status as part of efforts to secure the nation’s food supply chain.