The Department of Homeland Security announced that on May 14, 2020, a new temporary rule will go into effect giving employers in the food processing industry more flexibility to hire H-2B workers who are essential to maintaining the food supply chain.

Work essential to the food supply chain includes, but is not limited to, work related to:

  • Processing, manufacturing, and packaging of human and animal food;
  • Transporting human and animal food from farms, or manufacturing or processing plants, to distributors and end sellers; and
  • Selling of human and animal food through a variety of sellers or retail establishments, including restaurants.

Recognizing the need to keep the food supply operating, DHS is doing for some H-2B employers what it previously did for agricultural employers who rely on H-2A workers.

Until at least September 11, 2020:

  • Workers in the U.S. in valid H-2B status may start working for new employers while the new employers’ petitions are pending with USCIS;
  • The temporary employment authorization will last for up to 60 days or until the start date of the petition, whichever is later;
  • The employer must attest that the work performed will be temporary and essential to the U.S. food supply chain; and
  • The Department of Labor must have acknowledged receipt of a labor certification from the employer for the position.

The new rule will also allow H-2B workers who are essential to the U.S. food supply chain to work and stay in the U.S. beyond the usual three-year time limit. Without this dispensation, H-2B workers would have to leave the U.S. for at least three months before returning.

H-2B visas are for temporary, seasonal, non-agricultural workers and are used primarily in the tourist, hospitality, landscaping, and construction industries. Early in 2020, demand for H-2B visas was very high. The 33,000 visas available for the spring/summer period ran out as soon as they became available. Congress authorized DHS to make more H-2B visas available, but in April, DHS announced that extra H-2B visas had been put on hold because of skyrocketing unemployment claims in the U.S. due to the COVID-19 pandemic. Given the Administration’s growing concern about the U.S. food supply chain, flexibility has become necessary.

Please contact your Jackson Lewis attorney if you have questions about how the new rule will apply.