Administration Expands Opportunities for Certain Temporary Workers

For most people trying to use our immigration system, the Corona Virus (COVID-19) has resulted in agonizing delays with no end in sight: consulates have shut down; new “travel bans” have been enacted; interview, oath ceremonies, and fingerprints/biometrics appointments have been cancelled; and most immigration court hearings have been cancelled as well. Amidst all this negative and uncertain news, however, we are happy to report that certain restrictions on H-2 temporary workers have actually been eased. These changes will actually make it easier for certain temporary workers to remain and work lawfully in the United States. Please note that the changes discussed below apply only to nonimmigrants who are already in the United States in H-2 status.

What Are H-2 Workers:

H-2 workers are temporary workers and are divided into two classes of workers: H-2A are agricultural workers and H-2B workers are non-agricultural workers. Until recently, H-2 workers could remain in the United States for a maximum of three years. In order to hire an H-2 worker, an employer had to prove that it was unable to hire U.S. workers to fill the position, that hiring the H-2 worker would not impact the US labor market, and also had to meet certain obligations, as such guaranteeing a certain number of hours worked and paying a minimum salary.

Why Are Changes Being Made:

Many industries, including agriculture, rely heavily on temporary and seasonal workers. Due to COVID-19, prospective seasonal workers cannot obtain visas to enter the United States. In order to avoid disruptions to our food supply chain and other necessary industries, the administration has made it easier for these crucial workers to remain in the United States and continue to do the work that our country relies on them to do.

Changes for H-2 Workers:

The administration has made several key changes which may benefit temporary workers and their employers. These changes mainly relate to a worker’s ability to remain in the United States and change employer:

• • – A worker already in H-2 status may be able to change employers more easily, if the new employer is concerned that it will be unable to hire the workers it needs from abroad due to COVID-19.

• • – A new employer may be able to employ a new H-2 worker immediately upon USCIS’s receipt of the application to transfer employers or extend status (as opposed to waiting for the application to be approved).

• • – A worker in H-2 status may be able to remain in the United States beyond the 3-year maximum.

• • – The U.S. Department of Agriculture and Department of Labor are working together to help employers identify H-2A workers that may be available to transfer to other employers or other agricultural sectors.

Importantly, please keep in mind that although these changes may create new opportunities for workers and employers, no benefit is automatically granted by these new rules. And again, please also bear in mind that these rules apply only to workers already in the United States in H-2 status.

If you would like to discuss how these changes can impact you or your business, please do not hesitate to schedule a consultation with one of our experienced immigration attorneys.