H2A and H2B Visas for Non-immigrant Workers During COVID-19 Pandemic

A stable agricultural and non-agricultural workforce is essential for minimizing any disruption in the food supply chain during the COVID-19 pandemic.

To ensure American farmers and ranchers have the workers they need, the U.S. Department of Agriculture (USDA) and the U.S. Department of Labor (DOL) have partnered to help identify workers eligible for transfer to employers in other agricultural sectors within the United States under existing regulatory authority.

There are nearly 20,000 H-2A and H-2B workers with expiring contracts who could be available/eligible to transfer to another employer’s labor certification. Note that all statutory and regulatory requirements still apply.

Employers should reference Farmers.gov to find the number of certified worker positions becoming available, the current employer’s name, contact, and worksite address as well as the attorney/agent contact. The data will help ensure that H-2A employers have the necessary workforce as travel restrictions or visa processing limitations have delayed many workers. 

Employers are also urged to monitor www.travel.state.gov for updated travel information in addition to the relevant Embassy/Consular websites for specific operational information.

U.S. Employers Seeking Seasonal Workers are Granted Temporary Relief

Additionally, the Department of Homeland Security (DHS) and the Department of Labor (DOL) have released 30,000 additional H-2B visas for the second half of FY 2020. The extra visas are available only to American businesses likely to suffer permanent and severe financial harm if they are unable to “employ all of the H-2B workers that they request on their Form I-129 petition”.

The additional H-2B visas also come with more conditions designed to reduce program fraud and abuse and to protect U.S. workers. 

The new measures include:

• Requiring matching start dates on an H-2B petition and the employer’s start date of need.
• Increasing Department of Labor (DOL) site visits.
• Provisioning the extra visas generally to returning H-2B workers who have abided by immigration law and left the country in good faith once their job assignments ended.

The annual cap for H-2B visas is 66,000: 33,000 for spring/summer and 33,000 for fall/winter. Congress may grant up to 69,000 additional visas if approved by the administration.

This is the fourth consecutive year that DHS has released additional H-2B visas to alleviate pressure from the need for seasonal employers. In both 2017 and 2018, an extra 15,000 visas were released, and an additional 30,000 were granted in 2019.

This year, the visas will be released in two batches. For start dates beginning April 1, there will be 20,000 visas made available, and for start dates beginning May 15, 15,000 will be released.

The additional H-2B visas are a major relief for seasonal industries such as landscaping, fishing, and crabbing – jobs that typically require intense physical labor. The increased certainty of labor demands being met has allowed American businesses to plan more effectively. But, as some U.S. employers have pointed out, the demand for suitably skilled labor still far exceeds the number of available visas.

U.S. work visas programs have become central to the polarizing immigration debate in Congress. The H-2B visa expansion shows that the administration recognizes the significant difficulty U.S. employers have in their effort to recruit qualified temporary U.S. workers.