COVID-19 and Immigration

By: Maridex Abraham

The COVID-19 public health crisis has upended the lives of many, including non-U.S. citizens living and working in the U.S. Nonimmigrants who are currently in the U.S. may be faced with uncertainty as travel in and out of the country has been limited, and they risk violating the terms of their visas. Fortunately, the Department of Homeland Security (“DHS”) has allowed for flexibility for certain visa holders.

On April 15, 2020, and May 12, 2020, DHS announced temporary measures for H-2A and H-2B visa holders respectively. These measures were implemented to protect the U.S.’ food supply chain so that businesses can maintain essential operations during this coronavirus public health emergency.

H-2A visa for agricultural workers

The H-2A nonimmigrant classification applies to individuals who seek to perform temporary or seasonal agricultural labor or services in the U.S., when willing and qualified U.S. workers are not available. DHS implemented a temporary final rule, which relaxes certain H-2A requirements to help U.S. agricultural employers avoid disruptions in operations. The temporary rule assists H-2A employers who are unable to find seasonal or temporary workers due to COVID-19 related travel restrictions.

Under the temporary rule, an H-2A employer with a valid labor certification can start employing certain foreign workers who are currently in H-2A status on the start date of the H-2A petition once United States Citizenship and Immigration Services (“USCIS”) receives the H-2A petition. The individual must be present in the U.S. in valid H-2A status in order to seek this change in employer.

DHS is also temporarily changing its regulations to allow H-2A workers to stay beyond the three-year maximum period of stay in the U.S. These temporary changes are intended to stabilize the food supply chain during the COVID-19 public health crisis.

H-2B visa for non-agricultural workers

DHS implemented a temporary final rule to amend certain H-2B requirements to further support the U.S. food supply chain, maintain essential infrastructure operations and reduce the impact from the coronavirus national emergency.

The H-2B nonimmigrant classification applies to individuals who seek to perform temporary nonagricultural labor or services in the U.S., in cases where willing and qualified U.S. workers are not available.

Similar to the temporary measures for H-2A visa classification, the new rules only apply to individuals already present in the U.S. with a valid H-2B nonimmigrant status.

Under the temporary rule, an employer will have more flexibility to hire workers essential to the U.S. food supply chain. Namely, the rule allows an H-2B employer to employ an H-2B nonimmigrant physically present in the U.S. while the employer’s H-2B petition on behalf of the nonimmigrant worker is still pending. The employer must attest that the worker will perform temporary labor or services that are essential to the U.S. food supply chain. The temporary employment authorization is valid for up to 60 days.

Additionally, the rule allows H-2B workers who are essential to the U.S. food supply chain to remain in the U.S. beyond the three-year maximum period of stay. This temporary rule applies to petitions filed by the current employer and petitions filed by a new employer. This leniency will only be exercised if the employer attests that the H-2B worker will perform temporary nonagricultural labor or services that are essential to the U.S. food supply chain.

If you are in the U.S. in valid H-2A or H-2B visa status, a knowledgeable immigration attorney can help you understand the temporary requirements, so that you can continue to work lawfully in the U.S. without fear of violating immigration law.

Nonimmigrants and immigrants provide essential services to this country and play a vital role in maintaining key U.S. infrastructure. By relaxing certain requirements, the U.S. can lessen the disruption of the COVID-19 crisis on essential services and ensure the security of all persons who consider the U.S. to be their home.