Visa Flexibility Extended to Essential H-2B Workers

Roy Maurer By Roy Maurer May 19, 2020
poultry plant

​Seasonal guest workers deemed "essential to the U.S. food supply chain" will be able to stay in the country longer under a new temporary rule prompted by the coronavirus pandemic.

Due to labor force disruptions at meat and poultry operations, U.S. Citizenship and Immigration Services (USCIS) is removing some limitations on H-2B workers who are already in the United States.

The rule—effective immediately—is set to last through May 15, 2023 and allows meat and poultry processing companies to rehire current H-2B employees whose work contracts or three-year visas are expiring. The companies also would be able to hire other H-2B workers with expiring visas who otherwise would have to return to their home countries. Workers with expired H-2B visas are generally required to spend three consecutive months out of the U.S. before applying for a new visa. Employers and workers have until Sept. 11 of this year to enter into the new work contracts.

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The temporary measures apply solely to workers already present in the United States with a valid H-2B status, and USCIS made it clear that the rule change does not increase the number of H-2B visas above the congressionally mandated 66,000 visa cap through the remainder of fiscal year 2020.

"Businesses that could benefit from these new flexibilities include those engaged in the processing, manufacturing or packaging of human or animal food, as well as businesses engaged in all aspects of food transportation and retailing of food to consumers," said Rebecca Bernhard, a partner in the Minneapolis office of Dorsey & Whitney. "However, due to the ongoing requirement for a valid, certified temporary employment certification, only businesses that have previously utilized H-2B workers are likely able to take advantage of the new provisions. Obtaining a new TLC [temporary labor certification] takes a significant amount of time."

As part of the temporary labor certification process, the petitioning employer must demonstrate that there is not a sufficient supply of qualified U.S. workers who will be available to perform the work, and the employment of foreign national workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Another change in the regulations allows H-2B employment to begin upon filing the petition. 

"Under the previous rules, employers needed to wait for petitions to be approved before the foreign worker could start, a process which could take months," Bernhard said. "Now, H-2B workers are permitted to start employment immediately after filing, at least for a period of up to 60 days while the immigration service adjudicates the petition."

Employers will be required to attest under penalty of perjury that the workers they are seeking to hire under these new provisions are providing labor that is essential to the U.S. food supply chain.

"Recognizing the need to keep the food supply operating, USCIS is doing for some H-2B employers what it previously did for agricultural employers who rely on H-2A workers," said Michael Neifach, an attorney in the Washington, D.C., regional office of Jackson Lewis.

He noted that Congress had authorized the Trump administration to make more H-2B visas available this year, but in April, USCIS put 35,000 extra visas for the busy summer season on hold due to the pandemic-related economic slowdown and skyrocketing unemployment claims in the U.S.

[SHRM members-only toolkit: Understanding and Obtaining U.S. Employment Visas]

Meatpacking Operations in Turmoil

Due to recent labor shortages and workforce upheaval because of exposure to COVID-19,
meatpacking and poultry processing plants are seen to be the prime beneficiary of the new rules. On April 28, President Donald Trump signed an executive order declaring the plants part of the nation's critical infrastructure. Meatpacking plants—which often hire H-2B workers—have become hotspots for the virus, with dozens of plants across the country forced to close as workers fall ill and others are quarantined.

North American Meat Institute CEO Julie Anna Potts said that "the harvesting of animals and the processing of meat is a very labor-intensive activity," and retaining workers has always been a challenge, even before the public health crisis.


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