Government Relaxes H-2A Visa Program as Concerns Over the American Food Supply Chain Rise

April 16, 2020

A new rule from the federal government will ease restrictions on the H-2A visa program and give growers a bigger pool of foreign workers to fill their needs.

On April 15, the Department of Homeland Security (DHS), with the support of the U.S. Department of Agriculture (USDA), announced a temporary easing of restrictions on the H-2A visa program in response to rising concerns that crops might go unharvested. Travel and border restrictions implemented because of the COVID-19 pandemic and workforce uncertainty have given good cause for food supply concerns just as U.S. farmers prepare for the peak harvest season.

Under the temporary rule, farmers now holding DOL H-2A labor certifications who are concerned their normal seasonal workers will be restricted from entering the United States may replace those laborers with H-2A visa holders who are already in the country. In turn, U.S. Citizenship and Immigration Services (USCIS) is temporarily waiving restrictions to allow H-2A workers to stay in the country so long as they are working under a farmer’s valid Temporary Labor Certification. Previously, those workers were limited to a three-year stay in the U.S. According to the USDA, 20,000 H-2A and H-2B workers with expiring contracts may be able to move to new employers.

Although H-2A visa holders have been deemed essential under travel restrictions between the U.S. and Mexico, farmers remain concerned that the virus will hurt their ability to get workers when peak harvesting season begins in late August. This issue is serious because H-2A visa holders account for roughly 10 percent of the U.S. agri-business labor force. Approximately 200,000 H-2A workers were employed on American farms in 2019.

Secretary of Agriculture Sonny Perdue hailed the changes as “critically important,” noting that the flexibility the temporary final rule provides will ensure “farmers have access to these critical workers necessary to maintain the integrity in our food supply” as we navigate the COVID-19 global pandemic. DHS maintains the temporary rule “will not weaken or eliminate protections for U.S. workers,” as the United States experiences unprecedented unemployment rates.

This change comes on the heels of the U.S. State Department’s March 26 announcement that it has expanded the scope of H-2A processing, signaling the government’s growing concern about the availability of fresh foods in grocery stores.

The temporary final rule is effective immediately upon publication in the Federal Register. As the government has explained, “[i]f 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. DHS will issue a new temporary final rule in the Federal Register to amend the termination date of these new procedures in the event DHS determines that circumstances demonstrate a continued need for the temporary changes to the H-2A regulations.”

Please contact Brandon Davis, Stephanie Poucher or Phelps’ Labor and Employment team if you have any questions or need compliance advice and guidance. For more information related to COVID-19, please also see Phelps’ COVID-19: Client Resource Portal.