US Will Continue Farm Workers' Visa Extensions Amid Virus

By Sarah Martinson
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Law360 (August 18, 2020, 4:07 PM EDT) -- The Trump administration said Tuesday that it will continue to let foreign farm workers extend their H-2A temporary work visas to immediately begin work with new employers in an effort to protect U.S. food suppliers during the coronavirus pandemic.

The change is an extension of temporary rules that the U.S. Department of Homeland Security made in April over concerns that border travel restrictions put in place to limit the spread of COVID-19 would leave farms without enough workers, according to a Federal Register notice to be published Thursday.

The rules will now be effective through August 2023, and foreign farm workers have until Dec. 17 to apply for an H-2A visa extension that will be good for three years, the notice said.

"The temporary extension of these flexibilities will ensure that agricultural employers have access to the orderly and timely flow of legal foreign workers, thereby protecting the integrity of the nation's food supply chain and decreasing possible reliance on unauthorized aliens, while at the same time encouraging agricultural employers' use of the H-2A program, which protects the rights of U.S. and foreign workers," according to the notice.

Normally, foreign workers have to wait until their H-2A change of employer petitions are approved by U.S. Citizenship and Immigration Services before they can start work with a new employer, but under the temporary rule changes, they don't have to wait for approval after their petitions have been received by USCIS, according to the notice.

But foreign farm workers' H-2A visa extension requests must be supported by a U.S. Department of Labor temporary labor certificate to start work with a new employer, the notice said.

DHS will require that H-2A temporary farm workers return to their home countries for three consecutive months after being employed in the U.S. for three years, the notice said. That requirement had been waived for the last three months.

The rule extension comes in light of U.S. Department of Health and Human Services Secretary Alex Azar's determination in July that the COVID-19 public health emergency be extended for an additional 90 days, according to the notice.

"DHS will continue to monitor the rapidly evolving situation surrounding the COVID-19 pandemic and associated economic consequences and will determine whether continued flexibilities are needed beyond the 120 days," the notice said.

In April, the Trump administration said that it would temporarily relax the process by which U.S. farms hire migrant guest workers in an effort to avoid a food shortage during the pandemic.

The U.S. Department of State had initially announced it was suspending all routine visa services across the globe at consulates, except for emergency services for Americans. But the department quickly walked that back and said it would process visas for returning H-2A workers, and after more backlash from the farm industry, eventually agreed to waive in-person interviews for some new H-2A workers as well.

The U.S. and Mexico have also blocked all nonessential travel over their shared border, but agricultural workers are exempted.

Last month, DHS and the U.S. Department of Agriculture announced a partnership to help identify H-2A workers who may be wrapping up a project with one employer and be soon available to work for another farm with an upcoming need.

While these measures will ease employment rules for these workers, advocates continue to warn that farm workers, who collaborate in fields and sometimes live together in close quarters, are at increased risk of contracting the virus.

--Additional reporting by Suzanne Monyak. Editing by Abbie Sarfo.

For a reprint of this article, please contact reprints@law360.com.

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