COVID-19: USCIS Partially Extends Temporary Flexibiility for Hiring, and I-9 Forms, of H-2A Workers

U.S. Citizenship and Immigration Services (USCIS) issued a temporary final rule partially extending flexibility for certain  H-2A temporary agricultural workers that was first announced on April 20, 2020.  It also published additional guidance about how employers should complete the I-9 Employment Verification form.

The temporary final rule was issued in response to the continuing COVID-19 pandemic, and is effective from August 19, 2020 through August 19, 2023, for any H-2A petitions filed by employers between August 19, 2020 and December 17, 2020.   It allows a new employer 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 that hire date is after the start date that was listed on the new employer’s petition.

However, the temporary final rule ended the April 20, 2020 rules’ flexibility permitting H-2A workers to remain working in the U.S. beyond the pre-pandemic regulation’s three-year limit.   Under the August 19, 2020 rule, an H-2A worker who has reached the three year limit will once again have to leave the U.S. for at least 3 months before being eligible to return to work again on an H-2A visa.  The worker’s ability to return with a new H-2A visa will depend on whether the pandemic has affected the U.S. consulate’s operations in the worker’s home country.

USCIS also issued 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 the guidance and should consult with their immigration counsel.