DHS Relaxes Rules on Hiring Immigrant Farmworkers

April 22, 2020
tractor in farm field

​The Trump administration is loosening regulatory restrictions on employers seeking to hire immigrant farmworkers under the H-2A visa program during the coronavirus pandemic.

The Department of Homeland Security (DHS) announced a temporary final rule allowing foreign national workers already in the U.S. with H-2A seasonal visas to switch employers without official approval and to stay in the country longer than the visa's typical three-year duration.

H-2A workers are typically approved to work in yearlong increments for a maximum of three years, and then they must spend time in their home countries before returning to the U.S.

DHS said that the changes are intended to help agricultural employers concerned that border restrictions implemented as a result of the pandemic will leave their farms without enough workers.

"This administration has determined that continued agricultural employment, currently threatened by the COVID-19 pandemic, is vital to maintaining and securing the country's critical food supply chain," said acting DHS Secretary Chad Wolf.

Under the temporary rule, H-2A employers with a valid temporary labor certification can start employing workers currently in valid H-2A status in the U.S. immediately after DHS receives an H-2A petition, without having to wait for approval from the agency. Work cannot begin earlier than the employment start date listed on the petition. The allowance complements an initiative between DHS and the U.S. Department of Agriculture to help identify H-2A workers who are wrapping up a contract with one employer and able to work for another farm.

The U.S. Department of State has also agreed to ease regulations around H-2A visas, including waiving in-person interviews at consulates and making a deal with Mexico to exempt farmworkers from border-crossing restrictions. Most H-2A workers are from Mexico.

"The H-2A visa process has long been essential to agriculture in the United States," said Michael Neifach, an attorney in the Washington, D.C., regional office of Jackson Lewis.

U.S. farmers rely heavily on the seasonal guest-worker visas, which account for a sizeable portion of the legal migrant farm workforce. Currently, about 10 percent of farmworkers in the U.S. have an H-2A visa while another 60 percent to 80 percent are undocumented, according to various sources.

Allison Crittenden, director of congressional relations for the American Farm Bureau Federation, a lobbying group for the agricultural industry, said the new measures will help farms hire H-2A workers, broaden the pool of available workers and make the process more efficient.

Fear of the virus has created additional labor issues, prompting some workers to return home before their contracts have ended and others not to travel to the U.S. at all.

The temporary final rule is effective immediately and is expected to remain in effect until Aug. 18. At that date, it may be extended.

An executive order is expected to temporarily suspend some immigration to the U.S. but includes exceptions for immigrant farmworkers.



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