COVID Updates for H-2A and H-2B Foreign Workers

COVID Updates for H-2A and H-2B Foreign Workers

Priority of H-2 Visas at U.S. Embassies and Consulates

While many embassies and consulates reduce services and cancel in-person appointments, the Department of State (DOS) announced that emergency and mission critical visa services continue to operate. DOS stated that:

“the H-2 program is essential to the economy and food security of the United States and is a national security priority. Therefore, we intend to continue processing H-2 cases as much as possible, as permitted by post resources and local government restrictions.”

Due to this essential nature, consular officers have been authorized to expand the categories of H-2 applicants whose applications can be adjudicated without an in-person interview. Consular officers can choose to waive the interview requirement for first-time or returning H-2 applicants “who have no apparent ineligibility or potential ineligibility.”

Returning H-2 workers may also qualify for an interview waiver. H-2 applicants whose previous H-2 visas expired within the past four years do not need to be interviewed if applying for the same visa classification, as long as they did not require a waiver of ineligibility the last time they applied.

DHS and USDA Increase Flexibility for H-2A Workers to Protect American Farmers & Food Supply

The Department of Homeland Security (DHS) has revised guidelines for H-2A workers to “help U.S. agricultural-related employment, protect the nation’s food supply chain, and lessen impacts form the coronavirus (COVID-19) public health emergency.” The temporary final rule will allow U.S. petitioners with valid labor certifications to start employing certain foreign workers who are currently in H-2A status in the United States immediately after USCIS receives the H-2A petition. The change is to mitigate the risk that workers will be unable to enter the country due to travel restrictions. Employees can begin no earlier than the start date of employment listed on the petition.

The H-2A nonimmigrant visa allows foreign workers to temporarily enter the U.S. to perform agricultural labor or services that are typically seasonal or temporary in nature. These services usually last one year or less in roles for which “able, willing, and qualified U.S. workers are not available.” Extensions are available in one-year increments, typically not to exceed three years

However, USCIS is also amending regulations to allow H-2A workers to extend their stay beyond the three-year maximum validity period in the U.S. While the changes are temporary, they are meant to “encourage and facilitate the continued lawful employment of foreign temporary and seasonal agricultural workers.” While unemployment remains high, seasonal agricultural roles are often filled by foreign workers. If farmers are unable to fill labor needs, we could see disruptions in our food supply changes.

The U.S. Department of Agriculture (USDA) welcomed the measures, stating that the flexibility is “critically important” to “minimize disruption and make sure farmers have access to these critical workers necessary to maintain the integrity in our food supply.” The temporary final rule is effective immediately upon publication in the Federal Register. The H-2A workers will be able to stay in the United States for the validity period listed on the Temporary Labor Certification. A new rule ending the changes will be issued when DHS determines the temporary modifications are no longer needed.

American Farm Bureau Federation President, Zippy Duvall, also applauded the move:

“America’s farmers and ranchers are committed to feeding America’s families during the coronavirus pandemic and beyond. Workers in the H-2A program represent 20% of the country’s farm workforce, so their contributions are necessary as we enter a critical time in the planting season.”

USDA and DOL Provide Information to Assist H-2A Employers Identify Available Workers

From farmers.gov:

USDA and DOL have identified nearly 20,000 H-2A and H-2B certified positions that have expiring contracts in the coming weeks. There will be workers leaving these positions who could be available to transfer to a different employer’s labor certification. The data, available below, includes the number of certified worker positions, the current employer name and contact, attorney/agent name and contact, and the worksite address. This information will be a resource to H-2A employers whose workforce has been delayed because of travel restrictions or visa processing limitations. Employers should be aware that all statutory and regulatory requirements continue to apply.

For more information on the expiring contracts, visit https://www.farmers.gov/manage/h2a to download a spreadsheet of certified worker information.

DHS Announces No Additional H-2B Visas to be Released

While the H-2A program has increased flexibility, Department of Homeland Security (DHS) recently announced on Twitter that the DHS rule expanding the H-2B cap is “on hold pending review due to present economic circumstances.” If implemented, the rule would have allowed 35,000 additional H-2B visas to be issued, including 10,000 reserved specifically for workers from El Salvador, Guatemala, and Honduras.

The H-2B nonimmigrant visa is reserved for employers hiring individuals to perform nonagricultural labor or services of a temporary nature for a limited period, such as a one-time occurrence, seasonal need, peakload need, or intermittent need. Both the H-2A and H-2B programs require evidence that workers will not displace similarly employed U.S. workers.

With travel restrictions and many consulates and embassies operating with reduced staffing and services, employers were already concerned with workers being able to arrive in the U.S. in time to fill the expected seasonal labor needs. H-2Bs are capped at 66,000 per fiscal year, with half of the visas available on October 1 and the remaining 50 percent available on April 1. The H-2B program has been expanded in recent years to reflect the growing need for seasonal labor. Employers requested almost 100,000 workers during this year’s cap to fill the 33,000 slots remaining for the second half of the fiscal year.

DHS’s announcement does not affect the 33,000 visas that became available on April 1, but places the 35,000 additional H-2B visas authorized by the rule on hold.

Visit Challa Law Group’s COVID-19 Resource Page for Employers & Foreign Workers to read about other critical immigration updates or email us at info@challalaw.com with any questions.