Last Friday, the Department of Homeland Security (DHS) announced it will be extending provisions of its August 20, 2020, temporary final rule. If the term “temporary final” sounds contradictory and unclear – you are in good company! During the COVID-19 health pandemic, DHS has issued a series of “temporary final” rules that adjust deadlines and other requirements for employers making it difficult to keep up with the up-to-date regulations and laws. The reason for the implementation of “temporary final” rules is simple, it allows DHS to skip the Notice and Comment period and institute rules with an immediate effective date.
As it stands today, DHS has extended flexibility to allow all H-2A petitioners with a valid temporary labor certification (TLC) to start employing certain foreign workers who are currently in the United States and in valid H-2A status. DHS also extended the provision that allows H-2A workers to change employers and begin work before USCIS approves the new H-2A petition. This will allow H-2A workers to move to a new employer to meet urgent agricultural needs before USCIS approves the new employer’s petition. DHS will apply this latest temporary final rule to H-2A petitions requesting an extension of stay, if they were received on or after December 18, 2020, through June 16, 2021.
Note, DHS has ended the prior April 20, 2020, temporary final rule provision allowing guest workers to extend their H-2A period of stay beyond the 3-year maximum limitation.
COUNSEL TO MANAGEMENT:
Just as with prior “temporary final” rules, the December 18, 2020, temporary final rule is just that – temporary. We would encourage employers to continue checking back for regular updates as we continue to monitor agency regulations. If you have questions about modifying your current H-2A practices to take advantage of these temporary flexibilities, or preparing new applications in the upcoming 2021 season, contact the experts at the Saqui Law Group.