7.6 H-2A Temporary Agricultural Worker Program
The H-2A program allows U.S. employers to bring foreign workers to the United States to fill temporary or seasonal agricultural jobs usually lasting no longer than one year, for which U.S. workers are not available. Before filing a petition with USCIS, you must first obtain a valid temporary labor certification for H-2A workers from the U.S. Department of Labor (DOL). Once certified, you can include multiple workers when filing a Form I-129, Petition for a Nonimmigrant Worker, to request H-2A classification from USCIS. If USCIS approves your petition, you can hire the foreign workers for which you petitioned to fill the temporary job.
(a) Newly Hired Employee in H-2A Classification
Complete a new Form I-9 for this employee as you would for any employee. An H-2A worker’s unexpired Form I-94/Form I-94A Arrival Departure Record indicating their H-2A status, along with their foreign passport, would qualify as a List A document. Enter these documents in Section 2 under List A, along with the expiration date of your employee’s H-2A status found on their Form I-94/ Form I-94A.
(b) H-2A Continuing Employment With the Same Employer
You may extend your worker’s H-2A status in increments of no longer than one year by timely filing with USCIS a new Form I-129 petition on behalf of the worker. In most cases, a new temporary labor certification from DOL is required before you can file Form I-129. To avoid disruption of employment, you should file a petition to extend the employee’s employment authorization status well before it expires. When your H-2A employee’s work authorization expires, you must update their Form I-9 by writing “240-Day Ext.” and entering the date you submitted Form I-129 to USCIS in the Additional Information box in Section 2. USCIS may extend a single H-2A petition for up to two weeks without an additional approved labor certification under certain circumstances. In such a case, write “two-week extension” and enter the date you submitted Form I-129 to USCIS in the Additional Information box in Section 2.
Upon submitting a new Form I-129 petition to USCIS, the H-2A worker is authorized to continue to work while the petition is being processed for a period not to exceed 240 days, or until USCIS denies your petition, whichever comes first. You must reverify the employee’s employment authorization in Section 3 once you receive a decision on the H-2A petition or by the end of the 240-day period, whichever comes first.
(c) H-2A Extension With a New Employer
In most cases, an H-2A worker may not begin working for a new employer until USCIS approves the petition requesting a change of employer. However, if you have enrolled in E-Verify, you may employ an H-2A worker as soon as you submit a new Form I-129 petition on their behalf. The H-2A worker is authorized to work while USCIS processes the petition for a period not to exceed 120 days, or until USCIS denies your petition, whichever comes first. You and your newly hired employee must complete Form I-9. The H-2A employee’s unexpired Form I-94/Form I-94A indicating their H-2A status, along with their foreign passport, would qualify as a List A document. You should write “120-Day Ext.” and enter the date you submitted Form I-129 to USCIS in the Additional Information box in Section 2.
If USCIS denies the new petition before the 120-day period expires, USCIS will automatically terminate the H-2A worker’s employment authorization within 15 calendar days of its denial decision. USCIS may also terminate employment authorization if you fail to remain an E-Verify employer in good standing. You must reverify the employee’s employment authorization in Section 3 either by the end of the 120-day period or once you receive a decision on the H-2A petition, whichever comes first. If your petition is denied, count 15 days from the date of the denial for the date the employee’s employment authorization expires.
For more information about employing H-2A workers, please visit uscis.gov.