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April 16, 2020

DHS to Temporarily Amend Certain H-2A Requirements During COVID-19 Crisis

The Department of Homeland Security (DHS), with the support of the U.S. Department of Agriculture (USDA), has announced a temporary final rule to change certain H-2A requirements.

The rule allows farmers to immediately employ workers already in the country without waiting for approval from USCIS. It also allows workers to stay beyond the three-year maximum allowable period of stay in the U.S.

The following are key excerpts from the USDA release on the announcement:

Under this temporary final rule, an H-2A petitioner with a valid temporary labor certification who is concerned that workers will be unable to enter the country due to travel restrictions can start employing certain foreign workers who are currently in H-2A status in the United States immediately after United States Citizenship and Immigration Services (USCIS) receives the H-2A petition, but no earlier than the start date of employment listed on the petition. To take advantage of this time-limited change in regulatory requirements, the H-2A worker seeking to change employers must already be in the United States and in valid H-2A status.

Additionally, USCIS is temporarily amending its regulations to protect the country’s food supply chain by allowing H-2A workers to stay beyond the three-year maximum allowable period of stay in the United States. These temporary changes will encourage and facilitate the continued lawful employment of foreign temporary and seasonal agricultural workers during the COVID-19 national emergency. Agricultural employers should utilize this streamlined process if they are concerned with their ability to bring in the temporary workers who were previously authorized to work for the employer in H-2A classification. At no point is it acceptable for employers to hire illegal aliens.

The temporary final rule is effective immediately upon publication in the Federal Register. If the new petition is approved, the H-2A worker will be able to stay in the United States for a period of time not to exceed the validity period of the Temporary Labor Certification. DHS will issue a new temporary final rule in the Federal Register to amend the termination date of these new procedures in the event DHS determines that circumstances demonstrate a continued need for the temporary changes to the H-2A regulations. 

Western Growers wishes to extend its appreciation to both DHS and USDA for being responsive to the H-2A labor needs of the agriculture industry during the COVID-19 pandemic.

For additional guidance related to this temporary final rule, or the H-2A program in general, please contact Jason Resnick at [email protected] or 949-885-2253.