H-2B Visa Workers Given More Flexibility to Help Food Supply Chain During COVID-19

The Department of Homeland Security announced a temporary rule change to H-2B requirements which is intended to support the food supply chain and reduce the impact of COVID-19 on agricultural operations. The change applies to temporary H-2B non-immigrant workers already in the United States and allows them to stay longer and be approved for positions without delay.

The change includes two flexibilities which will be added to the final rule, according to a press release from the United States Citizenship and Immigration Services (USCIS). The first allows an H2-B employer to employ H-2B non-immigrants while the employer’s petition is pending for up to 60 days. The second allows H-2B workers to stay in the United States beyond the 3-year period previously allowed. Both of these are only allowed when the worker is doing services essential to the US food supply chain and when workers already have H-2B status.

“These necessary flexibilities will safeguard a critical U.S. infrastructure sector; reinforce security of the nation’s food supply chain; and encourage key American businesses to maintain essential operations currently threatened by the COVID-19 public health emergency … Importantly, these measures protect U.S. workers by not adding supplemental H-2B visas during the national emergency,” said Joseph Edlos, USCIS deputy director for policy.

H-2B is a nonimmigrant status which applies to workers in temporary agricultural jobs, typically lasting less than a year, and is given when there are no qualified or willing US workers. Petitioning employers need to demonstrate that there are not enough available US workers to perform the services. “The employment of the alien(s) in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed,” the release says.

The final rule will be effective from May 14, 2020, to May 15, 2023. H-2B flexibilities could also apply to workers performing non-agricultural services related to the food supply chain typically not covered by the H-2B visa including processing, manufacturing, transporting, and packaging food for animals and humans.