Updated April 2, 2020
Virginia Agricultural Workers
Guidance to use with farm employees
Q: Do Virginia agriculture workers need to carry letters to get to work in Virginia?
A: Many states have started to require/issue letters indicating the holder is part of an essential industry/enterprise or government service, and therefore able to move freely to conduct business. Currently in Virginia the primary focus is on limiting non-essential retail and recreational and entertainment businesses. Consequently, there are no restrictions on enterprises that are not deemed non-essential from performing job duties and traveling to and from jobs. Therefore, it is not necessary to have such a letter of authorization to be developed and provided. If the governor does enact further restrictions, new guidance will be provided. Entities operating across state lines should seek guidance from the other states within which they are doing business.
Q. Have the Virginia State Police offered any guidance on workers carrying letters?
On April 1, the Virginia State Police released this press release, which indicates the Virginia State Police are not randomly stopping drivers to question their purpose for traveling. They do advise that you should check the laws of other states to which you are traveling, and follow the guidance from that state.
Q. Do farm workers or farmers need to carry letters in their vehicle while traveling in North Carolina for a farm job or other farm-related needs?
A. The North Carolina Commissioner of Agriculture has recommended that farm workers and farmers who have to travel in North Carolina for a farm job or other farm-related need carry letters.
North Carolina Department of Agriculture and Consumer Services notice of essential food and agricultural employees.
Q. Do farm workers or farmers need to carry letters in their vehicle while traveling to Maryland for a farm job or other farm-related needs?
A. Governor Hogan’s legal counsel has recommended that carrying a letter would help with enforcement of the stay-at-home order issued on March 30. The Maryland Farm Bureau worked with the Maryland governor’s office and their land-grant university to create two different versions of a letter for farmers to use. We were advised that a Virginia farm employee traveling in Maryland was stopped by Maryland State Police.
Maryland essential food and agricultural independent contractor work permit.
Maryland essential food and agricultural employee work permit.
Resources for H-2A labor sharing and transfer
In response to COVID-19 disruptions, the U.S. Department of Agriculture and Department of Labor announced a partnership to help facilitate the identification of foreign and domestic workers who may be available and eligible to transfer to other U.S. agricultural employers.
USDA and DOL have identified approximately 20,000 H-2A- and H-2B-certified positions that have expiring contracts in the coming weeks. Workers leaving these positions could be available to transfer to a different employer’s labor certification. The data, available at farmers.gov/manage/h2a, includes the number of certified worker positions, the current employer name and contact, attorney/agent name and contact, and the worksite address. This information will be a resource to H-2A employers whose workforces have been delayed because of travel restrictions or visa processing limitations.
Employers should be aware that all statutory and regulatory requirements continue to apply. Employers are encouraged to monitor travel.state.gov for the latest information and should monitor the relevant embassy/consular websites for specific operational information.
Contact USDA with questions
The USDA has established email@example.com as an e-mail contact points for agricultural producers to use when encountering challenges related to agriculture labor visas.
In response to significant worldwide challenges related to the COVID-19 pandemic, the Department of State temporarily suspended routine visa services at all U.S. Embassies and Consulates as of March 20, 2020. At first, these consulates were prioritizing interview waiver eligible cases. Previous requirements stated that H-2A applicants were only interview waiver eligible if their visa had expired in the last 12 months and they had not used an interview waiver previously.
In an update to the initial policy, The State Department has now authorized officers to expand the categories of H-2A visa applicants eligible to waive an in-person interview. Secretary 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 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 announcement indicates more H-2A visas will now be considered interview waiver eligible, allowing for increased workforce access. Here is a FAQ document regarding this announcement.
The USDA has established a website with H-2A information at farmers.gov/manage/h2a, and questions regarding H-2A challenges can be sent to firstname.lastname@example.org.
As this situation continues to develop, please keep an eye out for updates from Farm Bureau, and do not hesitate to be in touch with questions. Feel free to share this with your counterparts and partner organizations.
The Occupational Safety and Health Administration has resources to help employers and workers prepare for and respond to coronavirus in the workplace.
Foreign labor certification
The Office of Foreign Labor Certification’s frequently asked questions regarding COVID-19
Supporting workforce needs in the agricultural sector
The U.S. Department of Labor and U.S. Department of Agriculture announced a partnership to facilitate the identification of domestic and foreign workers that may be available to fulfill critical U.S. agricultural sector workforce needs during the COVID-19 pandemic.
Virginia Unemployment Insurance Program
Wages, hours and leave
The U.S. Department of Labor Wage and Hour Division is providing information on common issues employers and workers face when responding to COVID-19, including the effects on wages and hours worked under the Fair Labor Standards Act and job-protected leave under the Family and Medical Leave Act.