Tag Archives: Covid-19

Foreign Agricultural H-2A Visa Workers on American Farms During Covid-19 National Emergency

By:  Coleman Jackson, Attorney & Certified Public Accountant
May 14, 2020

Foreign Agricultural H-2A Visa Workers

The H-2A nonimmigrant visa classification has been around for a very long time.  See Immigration and Nationality Act (INA) 101(a)(15)(ii)(a), 8 U.S.C. 1101.  The H-2A foreign agricultural workers visa; known as H-2A is more in the public eye right now due to the media’s focus on the rise of Covid-19 cases in meat packing plants, on farms and in rural America potentially resulting in food supply chain disruptions.  The concern of the coronavirus’ disruption of the food supply is very real and it is of grave concern to the well being of farmers’ bringing their goods to market and to their fellow citizens ability to feed their families.  In a nutshell, the foreign agricultural workers program known as the H-2A Visa permits agricultural employers to fill shortages in the available work force by following certain procedures to lawfully bring foreigners to the United States temporarily to perform temporary or seasonal agricultural work.  The Department of Homeland Security defers to the U.S. Department of Labor with respect to defining what work falls into the categories of temporary and seasonal agricultural work.  Historically, the Department of Labor has defined “agricultural labor” as such duties as hauling and delivery on the farm, harvesting, cultivating and planting seed.  Foreign workers on H-2A Visas has historically also worked as sheep herders, goat tenders, cattle raisers, poultry farmers and in other occupations typically in rural areas of America where various kinds of animals are raised for market.  The point is that agricultural workers are not limited to farms performing task around a farm; foreign workers on H-2A Visas work on plantations, ranches, nurseries, meat packing plants, greenhouses, orchards, and as truck drivers and delivery drivers on these or other similar locations.  The Immigration and Nationality Act (INA) has defined the term temporary agricultural work as no more than 12 months or employment of a seasonal nature tied to a certain time of the year, event or pattern.

 

Foreign Agricultural H-2A Visa Workers

There was-and-still-is a very regimented step-by-step process that  agricultural employers must follow to bring foreign farm laborers to work on their farms, ranches, meat packing plants or similar locations; which begins with a petition filed with their state workforce commission; then they go to the DOL for labor certification that there is a lack of available domestic workers to perform the intended project; once the employer receives the DOL Labor Certification they file a request with the Department of Homeland Security; and upon approval, the foreign worker petitions the Consulate’s Office in their country to obtain the H2-A Visa to come to America and work on a specific  temporary or seasonally project for less than 12 months.  The H-2A visa is valid for 3 years.

 

Foreign Agricultural H-2A Visa Workers

This process has been relaxed and modified somewhat. Covid-19 has created the necessity to impose travel restrictions, stay at home orders and caused lots-and-lots of tremendous pain, loss and suffering throughout the country.  In response to anticipated disruptions and uncertainties in the U.S. food supply and the ongoing impact of the Covid-19 epidemic in rural America; the Department of Homeland Security and U.S. Citizenship and Immigration Services (USCIS) published temporary amended regulations regarding temporary and seasonal agricultural workers and their U.S. employers in the H-2A nonimmigrant agricultural workers classification.  These final regulations are published in 85 FR 21739 and is effective from April 20, 2020 through August 18, 2020.The following are the major amendments to the normal process that historically were used by domestic farmers to bring foreign nonimmigrant workers to work temporarily on their farms, ranches, meat packing plants and other similar locations under the H-2A Agricultural Workers program:

  • The H-2A regulations were temporarily amended to permit all H-2A employers to allow nonimmigrants who currently hold a valid H-2A visa status to start working upon the receipt of the employer’s new H-2A petition, but not earlier than the start date of employment listed on their H-2A petition.
  • The H-2A regulations were temporarily amended to permit all H-2A workers to immediately work for any new H-2A employer, but not earlier than the start date of employment listed on the H-2A petition filed during the Covid-19 National Emergency.
  • The H-2A regulations were temporarily amended to create a temporary exception to 8 CFR 24.2 to allow nonimmigrants to extend their H-2A period of stay beyond the three-year limitations without first requiring that the immigrant leave the United States and remain outside of the United States for an uninterrupted period of three months. It is important that an H-2A petition for an extension of stay with a new employer must have been filed with USCIS on or after March 1, 2020 and remain pending as of April 20, 2020.
  • H-4 nonimmigrants who are the spouses and children of an H-2A agricultural worker visa holders are beneficiaries of these same amendments noted in one through three above. H-4 visa holders’ admission and limitations of stay are dependent on the validity of the H-2A visa holders’ status and they must be otherwise admissible.

Moreover, as a practical matter, certain in-person interview requirements at the Consulate Offices have been eased during this Covid-19 National Emergency to facilitate foreign workers traveling into the United States.  H-2A workers fall under the ‘essential worker’ category of critical worker and probably are exempt from the stay-at-home, travel restrictions and other measures imposed by local, state and federal governmental agencies during this Covid-19 National Emergency.

 

Foreign Agricultural H-2A Visa Workers

Foreign agricultural workers on H-2A visas are subject to the United States federal tax laws but they are exempt from withholding of U.S. federal income taxes, social security taxes and Medicare taxes on compensation paid to them for services performed in connection to their H-2A agricultural worker visa status.  If they receive more than $600 in compensation, the foreign nonimmigrant worker must receive a Form W-2 from their employer which exempts social security and Medicare taxes.  Typically, the worker files Form 1040-NR and the employer must report the wages of its agricultural nonimmigrant workers on Form 943, Employer’s Annual Federal Tax Return for Agricultural Employees and file all other appropriate tax returns with local, state and federal taxing authorities.   Most of the modified filing, payment and reporting deadlines announced by the U.S. Treasury and Internal Revenue Service during this Covid-19 National Emergency applies to H-2A agricultural workers and their employers.

This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader.  You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432

Some Things About Contracts While Sheltering from the Unknown Virus like Covid-19

By:  Coleman Jackson, Attorney & Counselor
April 29, 2020

Some Things About Contracts While Sheltering from the Unknown Virus like Covid-19

What is a Contract?  A contract is an enforceable promise under the law.  That means that if you agree to do something for consideration and the other party either performs or changes their position in any material way, the law will compel you to do what you promised to do or demand that you pay the performing party compensation of some kind.  Usually the compensation is going to tailor the party’s expectations at the time they agreed to do such-and-such.  In a nutshell, that is what the term contract means.

 

What about when Covid-19 says go home, stay there and I will let you know when you can come out again?

What about when Covid-19 says go home, stay there and I will let you know when you can come out again?  Contracts are based on expectations; or put another way, a contract is a bargained for outcome.  Sometimes parties insert a clause into their contracts that is called a ‘force majeure’ cause.  Don’t get lost in the foreign language… force majeure is French.  First thing you really need to know is that force majeure clauses in contracts are enforceable in Texas.  Texas will make the parties to contracts perform in accordance to what the force majeure clause says.  That is simply in keeping with the fundamental contract law in Texas; which is, consenting parties can pretty much agree to do or not do any lawful thing in the State of Texas.  So be careful about what you agree to do or not do in Texas.  What about enforcement of force majeure clauses in Texas:  first they are enforceable contract provisions; your contract must contain language that a court can construe as a force majeure event excusing your performance of your obligations under the contract.  Parties to contracts in Texas can define or describe situations, occurrences, or events that constitute a force majeure event and typically they are defined as some event or series of events that make it impossible to perform under the contract or impractical to perform under the contract.  But a mere difficulty in performance would not likely be reason for a party to fail to perform under the contract.  Parties to contracts in Texas must make all reasonable efforts to perform responsibly under their contracts.  What constitutes reasonable efforts depends upon the nature of the contract because the scope of a force majeure clause in a contract depends upon the benefit of the bargain the parties negotiated within the four corners of their contract.  Courts in Texas do not like to take the liberty of contract away from responsible contracting parties afforded to them by the Texas and United States Constitution.  So, it follows that if the parties did not bargain for force majeure, it is highly unlikely that Texas Courts will recognize an event or series of events out of its own clothe that would excuse or release parties of contracts without the possibility of paying damages.  In a nutshell, force majeure is a lawful bargained for excuse to not perform under the contract.

 

breach of contract

An unexcused failure to perform pursuant to the agreed upon bargain is called a breach of contract when a party’s failure to deliver what’s promised is material to the expectations of the parties from the start.  In a nutshell, breach of contract damages could be a reasonable option or perhaps even the only option for a party if it becomes impossible or impractical to perform obligations of contracts entered into before the Covid-19 Pandemic sent the global economy to the dog pound.

This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader.  You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432

 

Federal Tax Developments Related to Covid-19

By: Coleman Jackson, Attorney & Certified Public Accountant
March 30, 2020

As you can imagine, things are changing and developing fast and furious during this Covid-19 Pandemic. Developments in taxes are no exception! Our law firm desires to keep our clients and others informed with regards to certain tax developments that might impact their businesses. In keeping with that desire, note some of the most significant recent federal tax developments:

  1. Tax Day now July 15, 2020: The U.S. Treasury and Internal Revenue Service automatically extended from April 15, 2020 to July 15, 2020 the federal income tax filing due date. The IRS gives affected taxpayers until the last day of the Extension Period to file tax returns or make tax payments, including estimated tax payments, that have either an original or extended due date falling within the Period. The IRS will waive any interest and late filing and payment penalties related to these late tax returns.
  2. Small and midsize employers can begin taking advantage of two refundable payroll tax credits designed to immediately and fully reimburse them, dollar of dollar, for the cost of providing Coronavirus-related leave to their employees.
  3. The CARES Act of 2020 enacted in response to Covid-19 provides employers with an employee retention credit in the amount of 50% of their wages impacted by closure due to Covid-19. Further the Act which became law on March 27, 2020 extends the due date for paying employer payroll taxes. Taxpayers must carefully review the law and properly compute the amount of payroll taxes that can be deferred; because it is not 100% deferral of all payroll taxes. Note: The Small Business Administration has announced that they are taking applications for disaster relief from small businesses with respect to loans up to two million dollars for monies borrowed to make payroll and pay rent during this Covid-19 Crisis. The application process and details regarding what businesses qualify and the procedures for applying can be found on the Small Business Administration website. The SBA has announced that they have relaxed some of their processing and documentation requirements to expedite the processing of these emergency loans to small businesses impacted by Covid-19. It appears that these SBA emergency loans could be converted to grants under certain condition(s). The IRS will waive the usual fees and expedite requests for copies of previously filed tax returns for affected Covid-19 taxpayers who need them to apply for benefits or to file amended tax returns claiming casualty losses. Watch our blogs as more changes may be forth coming in the area of employer relief due to Covid-19 closures. But for now, this appears to be the game plan regarding employers.
  4. “Existing Installment Agreements –For taxpayers under an existing Installment Agreement, payments due between April 1 and July 15, 2020 are suspended. Taxpayers who are currently unable to comply with the terms of an Installment Payment Agreement, including a Direct Deposit Installment Agreement, may suspend payments during this period if they prefer. Furthermore, the IRS will not default any Installment Agreements during this period. By law, interest will continue to accrue on any unpaid balances.” Source: IR-2020-59, March 25, 2020.
  5. The CARES Act eliminates the 10% early withdrawal penalty for Covid-19 related distributions from retirement accounts and make other rule changes regarding retirement account contributions.
  6. The Act relaxes certain corporate and individual charitable contributions rules and provides for an above the line deduction up to $300 for charitable contributions.
  7. Texas has been declared a Presidential Disaster Area related to Covid-19, so more specific rules and provisions could be developed by the IRS related to individuals and businesses with business operations in Texas or impacted by this particular Presidential Disaster Area Declaration.

This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader. You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432