Vigilant Blog

News, trends and analysis in employment law, HR, safety & workers' comp

Sep 08, 2020

Homeland Security extends H-2A ability to switch employers

COVID-19 

To prevent potential food shortages related to COVID-19 (coronavirus), the Department of Homeland Security has extended its authorization for foreign temporary and seasonal agricultural workers validly in the United States in H-2A status to switch employers as soon as the new employer submits its own H-2A petition. The workers therefore don’t have to wait for the new petition to be approved in order to start working, although they can’t begin employment before the date listed on the petition. Homeland Security will apply this rule to all H–2A petitions received on or after August 19, 2020, through December 17, 2020. Normally, the option to immediately switch H-2A employers is only available when the new agricultural employer is in good standing with the E-Verify program, but this temporary rule covers all agricultural employers who have obtained a temporary labor certification from the U.S. Department of Labor. This automatic H-2A employment authorization to switch to a new employer is effective for 45 days, to allow Homeland Security time to review the petition, although if the agency ultimately denies the petition, the authorization ends 15 days after denial (85 Fed Reg 51304, August 20, 2020).

Tips: As we previously reported, Homeland Security issued a temporary rule with similar provisions on April 20, 2020, which were set to expire on August 19, 2020. In addition, that rule temporarily ignored the normal three-year cap on extensions of H-2A status. The agency’s latest rule drops that provision, so the three-year cap is back in place for any H-2A petitions received on or after August 19, 2020. If you need help with the H-2A process, you should work with an experienced immigration attorney; your Vigilant Law Group employment attorney can refer you to organizations that specialize in this work. 

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.

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