COVID-19 and H2A Labor: DHS Exempts Agricultural Labor Travel From Mexico; List of Current Available Workers

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The United States Department of Homeland Security (DHS) has issued a “Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Mexico.”  This notice – issued pursuant to President Trump’s declaration of national emergency on March 13 pursuant to his powers under the National Emergencies Act, 50 U.S.C.1601 et seq. – limits “non-essential travel” between the United States and Mexico. The notice has declared that essential travel includes “individuals traveling to work in the United States (e.g., individuals working in the farming or agriculture industry who must travel between the United States and Mexico in furtherance of such work),” which includes workers under the H2A program. In a recorded conference call on March 17, USDA Secretary Perdue noted that the U.S. consulates in Mexico were prioritizing visa application processing for returning H2A workers with “an interview waiver” (those eligible for phone interview). Secretary Perdue also provided an email address for those with questions:  aglabor@usda.gov. Additional information on specific country of origin embassy activity during the Covid-19 pandemic can be found at the H-2A Visa Program page.

In regards to H2A and H2B labor currently under contract within the United States, the United States Department of Labor (USDOL) and the United States Department of Agriculture (USDA) have jointly issued a notice identifying the availability of approximately 20,000 H2A (and H2B) program employees have contracts expiring within the “coming weeks” who may be available for work. The announcement (with a pdf and excel of the available labor list) notes that “[t]his information will be a resource to H-2A employers whose workforce has been delayed because of travel restrictions or visa processing limitations.”

In timing unrelated to the above announcements, the US DOL issued on March 20, 2020 its notice titled Annual Update to Allowable Charges for Agricultural Workers’ Meals and for Travel Subsistence Reimbursement, Including Lodging. In regards to the amount that may be charged to employees for employer-provided meals, the per-day amount has increased from $12.48 by the consumer price index increase of 1.018 to $12.68 per day. The per diem reimbursement to H2A employees for “travel-related expenses” is set at $55.00 per day for 2020 (a partial travel day reimbursement is $41.25). An employer is not obligated to pay a per-diem to the employee without supporting receipts. Lodging and transportation to and from country of origin remains at a minimum the “most economical and reasonable costs.”