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Employers of Agricultural Guestworkers to Get Visa Flexibility

April 15, 2020, 9:12 PM

Employers of seasonal agricultural guestworkers will get some flexibility in the Department of Homeland Security program so they can hire workers during the coronavirus pandemic.

The agency announced Wednesday that it will release a temporary final rule “to change certain H-2A requirements to help U.S. agricultural employers avoid disruptions in lawful agricultural-related employment, protect the nation’s food supply chain, and lessen impacts from the coronavirus (COVID-19) public health emergency.”

Under the temporary final rule, which was sent to the White House’s Office of Information and Regulatory Affairs for review April 6, employers of H-2A workers can petition to employ foreign workers currently in the U.S. on H-2A visas. Those H-2A workers also will be allowed to stay in the U.S. beyond the current three-year limit, DHS said.

Guestworkers on H-2A visas make up about 10% of farmworkers, and about 200,000 H-2A workers were employed in the U.S. in 2019, according to an Economic Policy Institute analysis of data from the Department of Labor’s Office of Foreign Labor Certification. H-2A visa holders have been deemed essential workers in travel restrictions between the U.S. and Mexico, but farmers remain concerned that the virus will hurt their ability to get workers when peak season hits this summer.

The agency noted that these flexibilities “will not weaken or eliminate protections for U.S. workers.”

“This Administration has determined that continued agricultural employment, currently threatened by the COVID-19 pandemic, is vital to maintaining and securing the country’s critical food supply chain,” Acting Secretary of Homeland Security Chad Wolf said in a statement. “The temporary changes announced by USCIS provide the needed stability during this unprecedented crisis.”

The temporary final rule will take effect when it’s published in the Federal Register, the agency said. Once a petition for H-2A workers is approved by U.S. Citizenship and Immigration Services, the visa beneficiary will be able to stay in the U.S. for a period of time “not to exceed the validity period of the Temporary Labor Certification.”

DHS said it will issue a new temporary final rule to amend the termination date of these new procedures if the agency determines that there is a continued need for these changes to the H-2A regulations.

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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