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) 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 (maximum 25 named workers per petition) 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 the Same 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 so long as the worker has not stayed in the United States for more than 3 years. 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 to work in the same type of employment, 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 using Supplement B, Reverification and Rehire, 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 7.7, Extensions of Stay for Other Nonimmigrant Categories.

H-2A Extension with a New Employer or New H-2A Employment (Porting)

An H-2A employee who is changing H-2A employers or seeking new H-2A employment with the same employer (such as a new position)  may generally begin working for the new employer or in the new H-2A employment as soon as their employer properly files a Form I-129 petition or as of the requested start date, whichever is later. The employer should file the Form I-129 H-2A petition before the H-2A worker’s period of authorized stay expires. In this scenario, the H-2A worker does not need to wait until the approval of the H-2A petition to start working. You may have your H-2A worker start working beginning on the “Received Date” on the Form I-797C Receipt Notice USCIS sends you or as of the requested start date, whichever is later.

You and your newly hired employee must complete Form I-9. The employee’s unexpired Form I-94 issued for employment with the previous employer or previous employment along with the employee’s unexpired foreign passport qualifies as a List A document. You should write “H-2 Portability” and enter the “Received Date” from Form I-797C Receipt Notice or the requested start date, whichever is later, in the Additional Information box in Section 2. The H-2A worker is authorized to work under this portability provision until USCIS makes a decision on your petition. If USCIS denies the petition or you withdraw the petition, the H-2A worker’s employment authorization under the portability provision automatically ends. You must reverify the employee’s employment authorization using Supplement B: Reverification and Rehire, once you receive our decision on the H-2A petition.

See Section 7.7, Extensions of Stay for Other Nonimmigrant Categories. For more information about employing H-2A workers, please visit our H-2A webpage.