Pabian Law Clients,
I hope this email finds you well. Our thoughts are with all of your Jamaican workers and their families in the aftermath of Hurricane Melissa. While we all await news of conditions in Jamaica, we wanted to provide some helpful information to assist you and your Jamaican workers through this difficult time.
Many of our summer-season clients are working to send workers home as we reach the end of your seasons. Conversely, many of our winter-season clients are working to bring Jamaicans into the U.S. for the starts of your seasons. Additionally, all of you may have workers who may want to go home for a short period of time to check-in on family and conditions in Jamaica. We are hopeful that the information below is helpful in understanding how to navigate these situations and others that may arise.
What should your Jamaican workers do that need to return home for the end of your season?
There are many summer-season employers with workers planning to go home soon (and many as soon as this week) due to expiring visa statuses. If these workers are unable to go home due to the hurricane, they have two options to ensure that they maintain legal status in the United States.
The first option is to try to apply for a grace period to remain in the U.S.
Who should workers contact to try and get a grace period in the meantime?
- If a worker entered on an out-of-country H-2B visa with you, they should first try contacting U.S. Customs and Border Protection (CBP) or going to the closest deferred inspection site to ask for a grace period. If workers go to a deferred inspection site, they should explain the emergency situation to the officer and bring the following documents with them:
- Passport (with current H-2B visa stamp);
- I-797 approval notice for current visa;
- I-94 admission record (printed from i94.cbp.dhs.gov); and
- Evidence of their most recent arrival into the U.S. (such as flight itinerary).
Workers should visit (https://www.cbp.gov/about/contact/ports/deferred-inspection-sites) to find their closest deferred inspection site.
- Workers can also try contacting U.S. Citizenship & Immigration Services (USCIS) at 800-375-5283. They should explain the emergency situation and ask USCIS to grant a grace period. USCIS may be able to grant an informal grace period called “satisfactory departure,” which is not actually an extension of their visa, but allows the government to not view an overstay of their visa in a negative light for a period of up to 30 days.
The other option is that workers can apply to change their status from H-2B to B-2 tourist visa status. They should contact their own immigration lawyer to assist with this process, which can be done online through filing an I-539 form.
Please instruct your workers to retain all documentation during this time related to the situation including proof of their contact with CBP, USCIS, and/or the Jamaican embassy. This information will be crucial to show as proof of why they did not timely depart the U.S.
Are employers responsible for covering travel costs during this time
- Do employers need to cover housing or hotel costs if a worker’s flight is cancelled?
- Under the H-2B regulations, employers’ responsibilities end after the petition end date; therefore, employers do not have any obligation to continue to provide housing or cover workers’ costs (other than outbound travel) after the end date.
- Can I cover housing or hotel costs?
- Although you are under no obligation to do so, we understand how much you care about your workers. If you would like to do so, you can pay for these costs, including covering hotel costs if you feel inclined to do so.
- What if a worker has a layover where the first leg of the journey is not cancelled?
- In this case, an employer would be responsible for covering all costs if a worker is stuck in that city while waiting for the next flight to Jamaica. Therefore, it may make sense to cancel workers’ flights if they have layovers and you know that the ultimate flight to Jamaica will be cancelled.
What if your current Jamaican workers want to go home during the employment period?
For both summer and winter employers, there are some important considerations if your current workers want to take a short trip home to check on their family and conditions in Jamaica:
- Can workers go home?
- Yes, H-2B workers can depart the United States during the employment period. If they choose to do so, we recommend that employers have workers sign an attestation stating they are voluntarily giving up hours offered and retaining these signed documents in their files. This will be important in case of an audit. We can provide you with example language to include in the attestation.
- Can workers come back to the U.S. to continue employment?
- Yes, but the situation and timing will differ depending on if they came to work for you as an out-of-country or in-country worker.
- Workers that came to you as in-country H-2B visa workers will need to book an appointment at the U.S. Embassy or Consulate to obtain their H-2B visa to return to the United States. Importantly, there could be major delays in their ability to schedule appointments depending on hurricane damage and demand. Therefore, if a worker in this scenario departs, employers should be prepared for an extended absence.
- Workers that came to you as out-of-country H-2B visa workers will not need to attend a consulate/embassy interview and instead can reenter on their existing H-2B visa.
How are winter employers impacted if workers decide to not come for the season?
- If the worker was on an in-country petition, the employer will lose that H-2B visa spot since workers cannot be replaced on an in-country petition.
- If the worker was on an out-of-country petition, the employer can replace that worker with another out-of-country worker so long as the worker never was issued their H-2B visa for the current winter season.
- To reiterate, if the worker was on an out-of-country petition and already obtained a visa at the consulate, the employer will lose that visa spot since the visa was already issued.
How can employers help their Jamaican workers?
Potentially the best resource is the Jamaican Ministry of Labour and Social Security, which manages overseas programs for agricultural and hospitality. We have seen this agency be incredibly helpful to employers and Jamaican nationals in the past. The agency’s website is https://www.mlss.gov.jm/departments/overseas-employment/ and their phone number is 1(876) 922-9500-17.
Additionally, organizations are actively working to help those affected by the hurricane. If your workers would like to connect with family and friends in Jamaica, Verizon is currently helping customers stay connected by waiving charges for international calls until November 12th. For more information please visit: https://www.verizon.com/about/news/emergency-resource-center
Another resource is the Jamaican embassy in the U.S. The embassy’s website will hopefully update information as it becomes available and can be found at (https://www.embassyofjamaica.org/).
Finally, one of the best resources is you! Keep checking-in with your Jamaican workers, offer assistance, give hugs, and show care. You being there for them means so much.
Conclusion
We understand that this is an extremely worrying time for you and your workers. Please let us know if you have any questions. Additionally, please be sure that workers whose statuses are expiring are departing the U.S. as soon as they are able to once flights to Jamaica are operating again.
Thank you,
Keith and the Pabian Law Team