COVID-19: USCIS Again Extends Temporary Flexibiility for Hiring H-2A Workers

U.S. Citizenship and Immigration Services (USCIS) issued a temporary final rule once again extending hiring flexibility for certain  H-2A temporary agricultural workers that was first announced on April 20, 2020, and then extended on August 20, 2020.

The temporary final rule recognizes the continuing COVID-19 pandemic, and is effective from December 18, 2020 through December 18, 2023, for any H-2A petitions filed with USCIS between December 18, 2020 and June 16, 2021.   It allows a new employer who has an approved Temporary Labor Certification from the Department of Labor to hire an H-2A worker already legally in the U.S. and working for another employer as soon as the new employer’s extension of stay petition for the worker has been received by USCIS, as long as the hire date is on or after the start date listed on the new employer’s petition.  The temporary rule authorizes employment for up to 45 days, with the inference that USCIS will issue a decision on the employer’s petition before that period expires.

USCIS unfortunately has not yet updated its past guidance for employers about how to complete the I-9 Employment Authorization Verification form in this situation.

Employers hoping to take advantage of these changes can get more details from the temporary rule and should consult the guidance page for updates on completing the I-9 form in this situation, and consult with their immigration counsel.