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DHS and USDA Move to Protect American Farmers and Ensure Continued Flow of America’s Food Supply


The U.S. Department of Homeland Security, with the support of the U.S. Department of Agriculture, has issued a temporary final rule to amend certain H-2A requirements to help U.S. agricultural employers avoid disruptions in lawful agricultural-related employment, protect the nation’s food supply chain, and lessen impacts from the coronavirus (COVID-19) public health emergency. These temporary flexibilities will not weaken or eliminate protections for U.S. workers.

Temporary Final Rule: Changes to Certain H-2A Requirements During the COVID-19 National Emergency

Under this temporary final rule, all H-2A petitioners with a valid temporary labor certification can start employing certain foreign workers who are currently in valid H-2A status in the United States immediately after USCIS receives the H-2A petition, but no earlier than the start date of employment listed on the petition.

Additionally, USCIS is temporarily amending its regulations to allow H-2A workers to stay beyond the three-year maximum allowable period of stay in the United States. These temporary changes will encourage and facilitate the lawful employment of foreign temporary and seasonal agriculture workers during the current COVID-19 national emergency.

The temporary final rule is effective immediately upon publication in the Federal Register. If 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 in the event DHS determines that circumstances demonstrate a continued need for the temporary changes to the H-2A regulations.

The H-2A nonimmigrant classification applies to alien workers seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States, usually lasting no longer than one year, for which able, willing and qualified U.S. workers are not available. In fiscal year 2019, USCIS processed 15,483 H-2A petitions.