The Department of Homeland Security has published a temporary final rule to streamline the employment of temporary and seasonal agricultural workers with valid H-2A status who are already in the U.S. The H-2A immigrant classification applies to alien workers who perform agricultural work of a temporary or seasonal nature, usually lasting no longer than one year (extendable for up to three years) for which able, willing, and qualified U.S. workers aren’t available. The temporary rule says all H-2A employers may allow workers who are currently lawfully present in the U.S. under an H-2A visa through another employer to immediately come to work for a new employer as soon as it submits its own H-2A petition, as long as the start date isn’t earlier than the date listed on the petition. Normally, this option to immediately switch H-2A employers is only available to agricultural employers in good standing with the E-Verify program.
The temporary rule also creates an exception to the normal three-year cap on continuous H-2A status. The new rule temporarily ignores the three-year cap for purposes of approvals of extensions of H-2A status. These measures are intended to prevent disruption and labor shortages, discourage the use of unauthorized workers, and protect the country’s food supply chain during the COVID-19 (coronavirus) pandemic. Homeland Security made clear in its press release that at no point is it acceptable to hire anyone who’s unauthorized to work. The temporary rule applies to H-2A petitions received on or after March 1, 2020 (the date the President declared a national emergency due to COVID-19) and still in process as of April 20, 2020 (the date the temporary rule was published), as well as any petitions received on or after April 20 through August 18, 2020. For additional information, visit: uscis.gov/coronavirus.