Some H-2A and H-2B Workers May Stay in U.S. Beyond Usual Maximum Owing to COVID-19 Related Rule Changes

New, temporary H-2A and H-2B visa rules attempt to fill gaps in U.S. farm and food labor supply.

** LEGAL UPDATE **

The coronavirus or COVID-19 pandemic has led to a shortage of agricultural and other workers involved in the food supply chain, resulting in a very real concern with food unavailability or shortages. In response, the U.S. government has announced what it calls "flexibilities" with regard to the existing H-2A and H-2B temporary visas for foreign nonimmigrant workers.

First, some background: Visa category H-2A is for non-citizen workers who will perform temporary or seasonal agricultural labor or services in the United States. Category H-2B is for workers performing temporary nonagricultural services or labor. Both are available only in situations where able, willing, and qualified U.S. workers are not available; and both visas usually last no longer than one year.

The first of the government's temporary final rules was issued April 15, 2020. It allows employers with a valid temporary labor certification who are concerned that workers will be unable to enter the U.S. due to travel restrictions to start employing foreign workers who are in valid H-2A status in the U.S. just as soon as U.S. Citizenship and Immigration Services (USCIS) receives their H-2A petition. However, the worker can't start before the start date of employment listed on the petition.

This temporary rule also allows H-2A workers to remain beyond the three-year maximum allowable period of stay in the United States. Assuming USCIS approves the employer's new petition, the H-2A worker will be able to stay in the U.S. up to the end of the validity period of the Temporary Labor Certification.

The second temporary rule lets employers hire foreign workers who are in the U.S. with valid H-2B visas while the employer’s H-2B petition on behalf of that person is awaiting a USCIS decision, provided the employer attests that the worker will perform temporary services or labor that's essential to the U.S. food supply chain. This temporary employment authorization will last up to 60 days.

This second rule also allows H-2B workers who are essential to the U.S. food supply chain to stay in the U.S. beyond the normal three-year maximum. This applies to petitions filed by the H-2B nonimmigrant’s current employer as well as petitions filed by a potential new employer.

Effective Date: May 14, 2020