A pause to immigration into the United States will not affect H-2A workers arriving for the 2020 season, President Donald Trump said during his April 21 press briefing.
The President’s announcement of an executive order temporarily pausing immigration was made Monday, April 20, and was reportedly the culmination of several weeks’ work. In his briefing the next day, President Trump said farmers will not be affected. He added recent State and Ag Departments’ orders to waive visa requirements and allow visa-holders to remain the country for more than three years are meant to help the ag industry secure needed workers.
That waiver was also put into motion on April 20, when the Department of Homeland Security and United States Citizenship and Immigration Services published a temporary final rule “to amend 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 coronavirus (COVID-19) public health emergency.”
The statement, which can be read in its entirety at https://www.uscis.gov/working-united-states/temporary-workers/h-2a-temporary-agricultural-workers. It noted that travel restrictions and visa processing limitations that have resulted from recent actions taken “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.”
To offset impact, the temporary final rule states that “all H-2A petitioners with a valid temporary labor certification (TLC) can now start employing 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.” And, the announcement said, “USCIS is temporarily amending its regulations to allow H-2A workers to stay beyond the three-year maximum allowable period of stay in the United States. These temporary changes will encourage and facilitate the lawful employment of foreign temporary and seasonal agriculture workers during the COVID-19 national emergency.”
This temporary final rule is “effective immediately upon publication in the Federal Register,” and if the 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. 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.”
The release said 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 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.”
