6.6 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) if 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 request H-2A classification for multiple workers by filing a Form I-129, Petition for a Nonimmigrant Worker with USCIS. If we approve your petition, you can hire the foreign workers you petitioned for.

• Newly Hired Employee in H-2A Classification. An H-2A worker’s unexpired Form I-94 indicating H-2A status, along with his or her foreign passport qualifies as a List A document. Enter information from these documents in Section 2 under List A, along with the expiration date  found on Form I-94.
• 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 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 status and employment authorization 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 this case, write “two-week extension” and enter the date you submitted Form I-129 to USCIS in the Additional Information box in Section 2.

If you timely file a Form I-129 to extend your H-2A employee’s status, they are authorized to continue working for up to 240 days while USCIS processes the petition, or until USCIS makes a decision on your petition, whichever comes first. You must reverify the employee’s employment authorization in Section 3 once you receive USCIS’s decision, on the H-2A petition or by the end of the 240-day period, whichever comes first.

See Section 6.7, Completing Form I-9 for Nonimmigrant Categories When Requesting Extensions of Stay.

• 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 beginning on the “Received Date” on the Form I-797 USCIS sends you. The H-2A worker is authorized to work for up to 120 days while USCIS processes the petition, or until USCIS makes a decision on your petition, whichever comes first. You and your newly hired employee must complete Form I-9. The employee’s unexpired Form I-94 indicating his or her H-2A status, along with the employee’s foreign passport, qualifies as a List A document. You should write “120-Day Ext.” and enter the “Received Date” from Form I-797in 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 our decision on the H-2A petition, whichever comes first. If USCIS denies your petition, count 15 days from the date of the denial to determine the date the employee’s employment authorization expires.

See Section 6.7, Completing Form I-9 for Nonimmigrant Categories When Requesting Extensions of Stay.

For more information about employing H-2A workers, please visit our H2A webpage.