DHS Eases Migrant Farmworker Rules To Avoid Food Deficit

By Suzanne Monyak
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Law360 (April 15, 2020, 8:23 PM EDT) -- The Trump administration will temporarily relax the process by which U.S. farms hire migrant guest workers in an effort to avoid a food shortage during the novel coronavirus pandemic.

Following concerns raised by the agricultural industry that border restrictions will leave the farms without enough workers, the government said Wednesday that it will issue a temporary final rule allowing migrants already in the U.S. on H-2A seasonal visas to switch employers before getting final approval from the U.S. Department of Homeland Security.

The administration will also allow these guest workers to stay in the U.S. longer than three years. Typically, H-2A workers can be approved to work in yearlong increments for a maximum of three years, at which point they must spend time in their home countries before returning to the U.S.

DHS said in its announcement that the changes are intended to help agricultural employers who are concerned that their seasonal employees, the majority of whom hail from Mexico, won't be able to enter the U.S. as a result of the pandemic.

"This administration has determined that continued agricultural employment, currently threatened by the COVID-19 pandemic, is vital to maintaining and securing the country's critical food supply chain," acting Homeland Security Secretary Chad Wolf said in a statement.

Sonny Perdue, who leads the U.S. Department of Agriculture, praised the changes as "critically important" in light of travel and border restrictions. He added in a statement that the government will work to "minimize disruption and make sure farmers have access to these critical workers necessary to maintain the integrity in our food supply."

Julia Gelatt, a senior policy analyst at the Migration Policy Institute, told Law360 the decision is a "sensible," "common-sense move" that she said falls in line with measures being considered by countries like New Zealand and Australia that are mid-harvest.

Wednesday's announcement marks the administration's latest move to protect the U.S. food supply chain and the agricultural industry, which relies on migrant labor, as the coronavirus pandemic forces businesses to shutter and countries to close their borders.

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 USDA 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.

Allison Crittenden, director of congressional relations for the American Farm Bureau Federation, a lobbying group for the agricultural industry, said in a statement to Law360 on Wednesday that these new measures build upon that existing partnership and commitment to help farms hire H-2A workers already in the U.S.

"This will broaden the pool of workers that can be transferred by extending visa lengths and make the process more efficient," she said.

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

In a Wednesday letter, members of the Congressional Hispanic Caucus called on lawmakers to protect farmworkers without legal status from deportation during the pandemic, offer financial assistance so farms can give their workers paid sick leave, and boost health care in rural communities.

"Farmworkers need our support. They should not live in fear. As this crisis evolves and Congress continues to explore response packages, we stand ready to work with you to ensure these protections are made available," they wrote.

--Editing by Daniel King.

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

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