The Department of Homeland Security (DHS), with the support of the Department of Agriculture, published a temporary final rule on April 20, 2020, to temporarily amend the regulations regarding temporary and seasonal H-2A nonimmigrant agricultural workers, and their U.S. employers. The rule is effective from April 20, 2020, through August 18, 2020.

The summary to the temporary final rule says that DHS will allow H-2A employers whose extension of stay H-2A petitions are supported by valid temporary labor certifications issued by the Department of Labor to begin work immediately after U.S. Citizenship and Immigration Services (USCIS) receives the extension of stay petition. H-2A workers will be allowed to stay in the United States beyond the 3-year maximum allowable period of stay. DHS said it will apply this temporary final rule to H-2A petitions requesting an extension of stay and, if applicable, to any associated applications for an extension of stay filed by or on behalf of an H-2A worker if they were received on or after March 1, 2020, and remain pending as of the effective date of the temporary final rule, ending on the last day the rule is in effect.

DHS said the temporary final rule is in response to the COVID-19 public health emergency, and is intended to provide agricultural employers with an “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 encouraging agricultural employers’ use of the H-2A program. DHS will issue a new temporary final rule to amend the termination date of these new procedures if the agency determines that circumstances demonstrate a continued need for the temporary changes to the H-2A regulations.

Meanwhile, the White House is also looking at other options to aid agricultural employers, some of which are controversial, such as lowering farmworker pay.

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