June 10, 2020
A new, temporary Rule Affects H-2A Workers who Wish to Extend Stay in the U.S. Beyond Three (3) Year Maximum
Do you have an H-2A visa or know someone who does? If so, you might want to read about this new rule that might allow you to extend your stay in the United States - under certain conditions. Read on to learn more.
Due to the COVID-19 pandemic, the U.S. Department of Homeland Security (DHS) has deemed food and agricultural supply chains to be of utmost importance for the economy and public safety. Because of this, they have established a new rule that would allow H-2A workers’ to continue working while official extension approval of their visa is pending for the employer. Normally, if you are an H-2 worker, you have to go home when your visa expires. Sometimes, an H-2 worker can stay in the U.S. if their employer, or another employer, gets approval from the U.S. government to extend their visa. For a long time, this has meant that workers and employers have to wait to get approval from the government before continuing to work, and it's often unclear to workers whether they have permission to work or not. Under this new rule, employers who want to extend workers' visas won't have to wait for official approval, and workers who are invited to stay longer won't have to worry about working without permission if a petition for an extension has been submitted.
Additionally, the new rule temporarily amends its regulations to allow H-2A workers to stay in the United States beyond the 3 years maximum allowable period of stay. Previously, H-2A workers nearing their 3 year maximum work period had to leave to their home countries and await an “uninterrupted” 3-month period before seeking to return to the U.S. as H-2A workers. Now, even if an H-2A worker is nearing their 3 years maximum, they can keep working with their employer as long as an H-2A extension is pending with USCIS. There is no need to return to the home country for 3 months. Nonetheless, the seasonal position must still not exceed one year.
To be approved under this final rule, an H-2A petition for an extension of stay with a new employer must have been received on or after March 1, 2020 and remain pending as of the effective date of this rule. The extended employment authorization is only valid for 45 days after the extension is requested While employers are likely to hear at or before this time if their petition is approved or not, it is important to remember this 45-day rule. This DHS temporary rule is effective from April 20, 2020 to August 18, 2020.