H-2A visa disruptions

There have been many developments over the last several weeks regarding the H-2A program which threaten to cause disruption to agriculture, including the closure of consulates in Mexico, border closures throughout South America and a national lockdown in South Africa disrupting application processing.

Secretary Mike Pompeo, in consultation with the Department of Homeland Security, has authorized consular officers to expand the categories of H-2A visa applicants whose applications can be adjudicated without an in-person interview.  Consular officers can, if they so choose, now waive the visa interview requirement for first-time and returning H-2A applicants who have no apparent ineligibility or potential ineligibility. This should provide some assistance with issues created by the closure of consulates in Mexico.

This expansion also increases the period in which returning workers may qualify for an interview waiver. Applicants whose previous visas expired in the last 48 months, and who did not require a waiver of ineligibility the last time they applied, do not need to be interviewed in-person if they are applying for the same visa classification as their previous visa.  The State Department anticipates the vast majority of otherwise qualified H-2A applicants will now be adjudicated without an interview. This is a temporary policy due to the COVID-19 situation and will cease no later than December 2020.

This change was made because H-2A applications were deemed mission critical and should be continued to be processed as permitted by resources and local government restrictions.

The Department of Labor Office of Foreign Labor Certification has also created a list of frequently asked questions regarding H-2A employment that can be accessed here.

As a reminder, all agricultural employers need to ensure they are following the social distancing guidelines and are providing employees direction as to how to comply in their daily routine.