DHS and USDA Issue Temporary Rule Allowing Guestworkers to Stay Longer
By Preston Huennekens | FAIR Take | April 2020
On April 15, the Department of Homeland Security (DHS) and the Department of Agriculture (USDA) jointly issued a new temporary rule affecting the H-2A agricultural guestworker visa program.
This rule alters two aspects of the H-2A program. First, it eases the process by which an approved employer can hire valid H-2A workers already present in the United States. The rule reads that “an H-2A petitioner with a valid temporary labor certification who is concerned that workers will be unable to enter the country due to travel restrictions can start employing certain foreign workers who are currently in H-2A status in the United States.” This is a largely unnecessary change. Over 80 percent of our H-2A workers come from Mexico. Mexico and the United States agreed to bar non-essential travel between the countries weeks ago, but that ban does not apply to H-2A workers.
The second aspect of the rule change alters the duration of stay requirements for workers on H-2A visas. Currently, H-2A workers can stay in the United States for one year, renewable for up to three total years. Once they hit the three-year mark, they must return to their home country for at least three months before applying to return to the United States on an H-2A visa. The “touchback” provision is important - it prevents H-2A workers from establishing a regular life in the United States and maintains the integrity of this guestworker program. The H-2A is not a pathway to citizenship or regular stay.
The new rule by DHS and USDA erases that. The announcement reads that “these temporary changes will encourage and facilitate the continued lawful employment of foreign temporary and seasonal agricultural workers during the COVID-19 national emergency.” They justify this as protecting America’s food supply, neglecting to mention that H-2A workers make up less than 10 percent of our total agricultural workforce and that they generally only pick fruits such as apples and blueberries. These are important commodities, but hardly essential to a population that consumes mostly grains such as wheat and corn.
Once these changes enter the federal register it will be difficult to remove them. The agriculture industry has fought for years to include these changes, making the unlimited visa program even easier to abuse. FAIR continues to advocate for the removal of these changes immediately at the end of the coronavirus crisis.