Updated: Nov 5, 2020
By Sarah Everhart
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The COVID-19 pandemic has caused many temporary changes to the H-2A program. This post summarizes the recent changes meant to provide relief to farm employers who are facing labor shortages due to the COVID-19 pandemic.
On March 17, 2020, due to COVID-19, the U.S. Department of State Bureau of Consular Affairs Visa Office (DOS) announced that all routine immigrant and nonimmigrant visa appointments at all U.S. Embassies and consulates would cease as of March 20, 2020. This decision prevented the mandatory in-person interviews of foreign workers applying for H-2A visas. The in-person interview is a necessary step before H-2A workers can enter and work in the United States.
On March 19, 2020, the U.S. Department of Agriculture (USDA) and U.S. Department of Labor (DOL) announced a partnership “to help facilitate the identification of foreign and domestic workers that may be available and eligible to transfer to other U.S. agricultural sector employers to fulfill critical workforce needs within the U.S. under existing regulatory authority during the COVID-19 pandemic.” According to the agencies, they have “identified nearly 20,000 H-2A and H-2B certified positions that have expiring contracts in the coming weeks. There will be workers leaving these positions who could be available to transfer to a different employer’s labor certification.” To find eligible workers, farm employers can search www.farmers.gov/manage/h2a.
On March 26, 2020, the U.S. State Department announced that despite the closure of U.S. Embassies, consular officers “….can waive the visa interview requirement for first-time and returning H-2 applicants who have no apparent ineligibility or potential ineligibility. This expansion also increases the period in which returning workers may qualify for an interview waiver. Applicants whose previous visas expired in the last 48 months, and who did not require a waiver of ineligibility the last time they applied, do not need to be interviewed in-person if they are applying for the same visa classification as their previous visa.“
On April 15, 2020, the Department of Homeland Security announced a new temporary final rule which allows an employer with a valid temporary labor certification the ability to start employing foreign workers who are in the U.S. with valid H-2A status immediately after the United States Citizenship and Immigration Services (USCIS) receives the H-2A petition, but no earlier than the start date of employment listed on the petition. Another temporary change to the program, includes an extension to the time H-2A workers are allowed to stay in the U.S. 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 Temporary Labor Certification.
Although the DOL, Office of Foreign Labor Certification (OFLC) has allowed for some flexibility due to the COVID-19 pandemic by extending the deadlines related to Permanent Labor Certifications, Prevailing Wage Determinations, and Labor Certifications, the OFLC has not changed the deadline to file the ETA790. This form must still be submitted no less than 60 days prior to the anticipated start date of work. Also, please note the Petition for a Nonimmigrant Worker (Form I-129) has been updated, the current form is dated January 27, 2020. All H-2A employers need to use the correct form or USCIS will return it to the mailing address.
Due to recommended COVID-19 related measures, some employers may need to find alternative or additional housing for H-2A visa workers. If certified housing becomes unavailable, in whole or in part, the employer must promptly notify the State Workforce Agency (SWA) in writing of the new housing situation. According to the OFLC, “[a]s COVID-19 measures require flexibility and immediate action, an employer may place workers in other employer-provided housing or rental or public accommodation housing that complies with applicable local, state, or federal housing standards upon notice to the SWA and, then, work with the SWA to provide documentation demonstrating compliance and/or schedule an inspection of the alternative housing following the procedures outlined in 20 CFR 655.122(d)(6).”
Employers who want more information about modifications to the H-2A program related to COVID-19, including but not limited to, filing an emergency application for H-2A workers, amending a certified start date, and terminating a job order, should check out the following DOL, OFLC, Frequently Asked Questions documents (Round 1, 2, and 3). Employers should also note that the recently passed Families First Coronavirus Response Act (FFCRA) applies to H2-A workers and requires paid sick leave, under certain circumstances, as detailed in this post.
Additionally, for Maryland employers, the Maryland Department of Labor is continuing to provide customer service to Maryland agricultural employers. The Maryland Workforce Exchange (MWE) is the first step in Maryland for the H-2A program. Please see the information on the webpage dedicated to Maryland Ag Labor and refer to the MWE website.
Further, specifically for employers that hire Mexican workers, the visa appointments have been facilitated through the American Consulate in Nuevo Laredo, Mexico.