Vigilant Blog

The U.S. Department of Homeland Security recently announced a temporary final rule that gives food processors more flexibility in hiring foreign workers under an H-2B visa (temporary nonagricultural work), in an effort to address worker shortages during the COVID-19 (coronavirus) pandemic. The new rule allows workers who are already legally in the U.S. under an H-2B visa to work for up to 60 days while the employer’s H-2B petition is still pending. To take advantage of this exception, the employer must attest that the worker’s labor or services are essential to the U.S. food supply chain. In addition, the rule allows H-2B workers who are essential to that supply chain to stay in the U.S. beyond the normal three-year cap. Work that is essential to the food supply chain includes processing, manufacturing, and packaging food for humans or animals; transporting human and animal food from farms, manufacturing plants, or processing plants to distributors and sellers; and selling human and animal food through sellers or retail establishments, including restaurants. The temporary rule took effect on May 14, 2020 (the day it was published) and will remain in effect through May 15, 2023.