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New Rules Impact H-2 Nonimmigrants in Response to COVID-19 Pandemic

Written By The Shapiro Law Group on November 09, 2020

The Trump Administration released new rules affecting H2 visa applicants. The rules were implemented in response to the disruption to the U.S. economy caused by the COVID-19 pandemic. Specifically, the pandemic disrupted businesses in the U.S. food supply chain. Under the new rules, employers may hire or extend work for temporary workers if these jobs are essential to maintaining the food supply.

H-2B Petition Changes

For H-2B petitions, the new rules are effective May 14, 2020, through May 15, 2023. Employers may request flexibilities under this rule for new applicants and pending applicants. The H-2B nonimmigrant classifications allow agricultural workers to come to the U.S temporarily.

Applying for Flexibility

To get flexibility under this rule, employers must apply for temporary labor certification (TLC) from the Department of Labor, which certifies that there are no U.S. workers who can perform the same functions. The employer may then apply for H-2B petitions on any number of unnamed workers, but the number may not exceed the number provided on the TLC. The petition must provide evidence demonstrating how the proposed H-2B workers serve the national interest. If the employer is submitting for an extension (rather than a new worker classification), he or she must also include a Petition for Nonimmigrant Worker (Form I-129), which identifies the worker whose stint is being extended.

Admissions and Limitations

Once the petition is approved, the employer may hire workers to fill jobs. The petition is granted up to the time authorized on the TLC. Workers outside of the United States may apply at a consulate or embassy. Children and spouses may apply for H-4 nonimmigrant status for the same period of time as the working spouse/parent. The maximum period of stay is three (3) years. Workers may arrive at the U.S. ten (10) days early to afford travel time and set up. Similarly, stays may be extended by ten (10) days to prepare for departure or apply for a nonimmigrant status change.

H-2A Petition Changes

For H-2A petitions, the new rules are largely the same as for H-2B petitions but generally apply to stays of less than one year. The period to apply for the new status ended in August, but there may be applicants whose petitions are pending. Furthermore, as many consulates are operating with reduced hours and staff, many workers are still stranded abroad.