On Aug. 20, 2020, the Department of Homeland Security and USCIS published a new temporary final rule partially extending the April 20 temporary final rule amending 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 COVID-19 public health emergency.
Due to travel restrictions and visa processing limitations as a result of actions taken to mitigate the spread of COVID-19, as well as the possibility that some H-2A workers may become unavailable due to COVID-19 related illness, U.S. employers who have approved H-2A petitions or who will be filing H-2A petitions might not receive all of the workers requested to fill the temporary positions, and similarly, employers that currently employ H-2A workers may lose the services of workers due to COVID-19 related illness.
Under the Aug. 20 temporary final rule, all H-2A petitioners with a valid temporary labor certification (TLC) can employ certain foreign workers who are currently in the United States and in valid H-2A status immediately after USCIS receives the H-2A petition, but no earlier than the start date of employment listed on the petition. In addition, the Aug. 20 temporary final rule extends the ability of eligible H-2A workers to change employers and begin work before USCIS approves the new H-2A petition. DHS will apply this temporary final rule to H-2A petitions requesting an extension of stay, if they were received on or after Aug. 19, 2020 through Dec. 17, 2020.
DHS did not extend the temporary exception found in the April 20 temporary final rule that allowed H-2A workers to stay in the United States beyond the three-year maximum allowable period of stay.
The temporary final rule was effective on Aug. 19, 2020, through Aug. 19, 2023. 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 TLC. DHS will issue a new temporary final rule in the Federal Register to amend the termination date in the event DHS determines that circumstances demonstrate a continued need for the temporary changes to the H-2A regulations.
It is important to note to the public that this temporary final rule does not amend the Department of Labor’s (DOL’s) regulations covering the labor market test and recruitment of U.S. workers for the H-2A process. Before filing an H-2A petition with DHS, the H-2A petitioner must have obtained a valid TLC from DOL for the job opportunity the employer seeks to fill with an H-2A worker(s). This temporary final rule is not a joint rule with DOL, and USCIS is not proposing changes to DOL’s H-2A TLC process or its regulations.