The COVID-19 pandemic has created a challenging and uncertain situation for H-2A growers, workers, and the agencies who serve them. Growers are scrambling to determine how many workers will actually reach them this year and which crops they can successfully grow. Workers are just trying to get into the country while still meeting their family needs back home. Agencies are trying to provide service under new and difficult restrictions and home-based working conditions. In this environment, a few updates for existing growers who use H-2A are in order.
NYS Department of Labor (NYSDOL) Provided an Update on Housing Inspections for H-2A Job Orders
In many cases, in-person housing inspections have been temporarily suspended. For the time being, housing will be inspected via the new virtual inspection process. For housing for 5 or more workers, please note that this inspection is for the purposes of the H-2A program only. You will still need to work with the NYS Department of Health (NYSDOH), when available, to ensure that your migrant farmworker housing is permitted per NYSDOH Part 15 requirements.
To complete the virtual inspection process, employers must submit requested photos, a signed attestation form (provided by our staff), well water test results, if applicable, and any other documentation that the Foreign Labor Certification Unit (FLCU) deems necessary for review (for example, measurements may be requested in some cases, to determine square footage). The virtual inspections should be completed with the understanding that the FLCU will follow-up with in-person inspections when needed, and particularly for any new housing.
Please reach out to the Foreign Labor Certification Unit with any questions: Caylin Gwise, 585-258-8855, H2A@labor.ny.gov
USDA Database of Available H-2A Workers
H-2A is a federally administered program primarily involving the U.S. Dept of Labor (USDOL) and the U.S. Citizenship and Immigration Services (USCIS). Given the current crisis, however, USDA has been raising the alarm that the agricultural workforce, including H-2A workers, are critical to the U.S. food supply. USDA and USDOL recently announced an information-sharing program to connect H-2A employers with available workers. There are as many as 20,000 H-2A workers in the country right now working on contracts that will expire in coming weeks.
USDA set up a website to assist farmers to use the H-2A program here: https://www.farmers.gov/manage/h2a. This site contains COVID-19-related announcements and changes that employers will find helpful, such as agency updates and information about embassy services and border closures. You can also download a PDF file or Excel file with information about workers in the U.S. on soon-to-expire contracts. Employers seeking these employees could then contact the former employer or attorney/agency who placed the expiring H-2A contract.
Terminating an Existing Job Order
Some growers may find the COVID-19 situation so disruptive to business that they simply choose not to operate or they drastically cut back in scale for 2020. The federal agencies recognize this issue and are trying to accommodate grower needs. USDOL’s Office of Foreign Labor Certification (OFLC) recently issued guidance in the form of FAQ’s dated 3/20/2020:
#2. Employers may terminate H-2A and H-2B orders by emailing the CNPC with the request and COVID-19 should be in the email subject line, followed by their case number.
QUESTION: Due to the impact of the COVID-19 pandemic, I no longer have a business need for the workers employed under the temporary labor certification I received. What do I do?
ANSWER: Employers who received temporary labor certification under the H-2A, H-2B, or CW-1 visa programs may request approval from the OFLC Chicago NPC Certifying Officer to terminate work under the job order and/or work contracts before the end date of work due to the impact of the COVID-19 pandemic. An employer may submit a request for “contract impossibility” to the Chicago NPC Certifying Officer using the following method: Email: TLC.Chicago@dol.gov Include the phrase “COVID-19” followed by the full case number in the email subject line. Important Reminders: • An employer continues to be responsible for its obligations under the work contract until receiving a favorable “contract impossibility” determination from the Certifying Officer. • In the event that the Certifying Officer makes a finding of contract impossibility, the employer should document its efforts to comply with each aspect of the contract impossibility provision under the regulatory requirements applicable to the H-2A (20 CFR 655.122(o)), H-2B (20 CFR 655.20(g)), or CW-1 (20 CFR 655.423(g)) visa programs.
New York H-2A employers can also reach out to Jeanette Lazelle, the Director of NYSDOL’s Division of Immigrant Policies and Affairs at 518-461-2599 (work cell) or email: Jeanette.Lazelle@labor.ny.gov.
By Richard Stup, Cornell University. Permission granted to repost, quote, and reprint with author attribution.
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