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H-2A and H-2B programs help the labor market shortage by allowing certain qualifying companies to temporarily hire foreign workers through legal work permits. Foreign workers who provide agricultural services are eligible for H-2A visa programs while non-agricultural workers may qualify for H-2B visa programs. The U.S. Citizenship and Immigration Services (USCIS) is responsible for approving employer’s requests for these workers.

 

H-2A Requirements:

Employers requesting a worker through the H-2A visa program must first:

  • Offer a temporary or seasonal job.
  • Prove that there is a shortage of U.S. workers to fulfill the temporary job requirements.
  • Demonstrate that employed U.S. worker’s wages and working conditions will not be negatively affected.
  • Submit a temporary labor certification through the Department of Labor.

H-2A visa programs allow temporary workers to stay in the United States for up to three years.

 

H-2B requirements:

Employers requesting a worker through the H-2B visa program must first:

  • Prove that there is a shortage of U.S. workers to fulfill the temporary job requirements.
  • Demonstrate that employed U.S. worker’s wages and working conditions will not be negatively affected.
  • Submit a temporary labor certification through the Department of Labor.

 

Work is considered temporary if:

  • A petitioner claims a one-time occurrence.
  • A petitioner can prove that there is a seasonal needfor foreign workers.
  • A petitioner has a peak-load need – meaning that there is a high demand for temporary workers due to a shortage of permanent staff.
  • A petitioner has an intermittent needstating that temporary foreign workers only need to provide services for a short period.
  • H-2B visa programs allow temporary workers to stay in the United States for up to three years.

 

COVID-19 implications on H-2A programs:

Due to COVID-19 travel restrictions and visa limitations, some H-2A workers may not be available to work and some employers may lose services provided by H-2A workers as a result of COVID-19 related illness.

To avoid disruptions in agricultural employment and help protect the United States food supply as a result of COVID-19, the Department of Homeland Security and the U.S. Citizenship and Immigration Services (USCIS) issued a temporary final rule to revise H-2A requirements on April 20, 2020. Under this temporary final rule:

  • Foreign workers currently in the United States with a valid H-2A status can be employed by an H-2A petitioner with a valid temporary labor certification (TLC) as soon as the USCIS receives the H-2A petition and provides the petitioner with a start date. It is important to note that H-2A workers cannot begin employment duties before the start date on the petition.
  • The USCIS is amending the three-year maximum allowable period to stay in the United States for H-2A workers. If approved, the foreign worker will be allowed to remain in the United States for a longer period of time.
  • Remember, before filing for an H-2A petition, the petitioner must acquire a temporary Labor Certification (TLC) from the Department of Labor (DOL). The temporary final rule effective April 20, 2020, does not change the DOL’s process and/or regulations.

 

COVID-19 implications on H-2B programs:

As of May 14, 2020, the Department of Homeland Security (DHS) issued a temporary final rule to revise H-2B requirements and help ease economic impacts as a result of COVID-19. Under this temporary final rule:

  • Foreign workers currently in the United States with a valid H-2B status can be employed by an H-2B petitioner with a valid temporary labor certification (TLC) as soon as the USCIS receives the H-2B petition and provides the petitioner with a start date. It is important to note that H-2B workers cannot begin employment duties before the start date on the petition.
  • The DHS is also amending the three-year maximum allowable period to stay in the United States for H-2B workers. If approved, the foreign worker will be allowed to remain in the United States for a longer period of time.
  • H-2B workers must have a valid H-2B status and be in the United States as of March 1, 2020, to take advantage of the time-limited change.
  • The petitioner will also be required to submit aForm ATT-H2B, Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers Essential to the U.S. Food Supply Chain (PDF). This form is to assure that the H-2B worker will be temporarily employed in nonagricultural services that are essential to the United States food supply, including:
  • The producing, processing, and packaging of human and/or animal food.
  • The transportation of human and/or animal food from manufacturers, farms, and processing plants to varying distributors.
  • Selling human and animal food to restaurants or sellers and retail establishments.

H-2B employers can make requests for the temporary final rule through September 11, 2020.