On April 20, the Department of Homeland Security published a temporary final rule to amend certain H-2A requirements to help U.S. agricultural employers avoid disruptions in lawful agricultural-related employment during the coronavirus (COVID-19) public health emergency. The temporary final rule expires on August 18, 2020.
The temporary final rule allows non-E-Verify employers that have properly filed H-2A extension of stay petitions between certain dates for workers who are currently in H-2Astatus but working for a different employer to begin employing such H-2A workers on or after the date that USCIS receives the extension of stay petition (as stated on the Form I-797 receipt notice) but no earlier than the start date of employment listed on theH-2A petition.
The temporary rule applies if:
USCIS received the new employer’s extension of stay H-2A petition on or after March 1, and it remains pending as of April 20 (the effective date of the rule), or USCIS receives the H-2A petition between April 20 and Aug. 18.
Under this temporary final rule, you, the new, non-E-Verify employer may employ the H-2A worker while the extension petition is pending, for a period not to exceed 45 daysstarting from the date of the receipt notice, or until USCIS denies your petition or you withdraw the petition, whichever comes first. The H-2A employee’s unexpired Form I- 94, Arrival/Departure Record, indicating his or her H-2A status, along with the employee’s foreign passport, qualify as a Form I-9 List A document.
To complete Section 2, you should enter under List A:
The unexpired foreign passport information;
Unexpired Form I-94 information; and
“45-Day Ext.” and the date you submitted Form I-129 to USCIS in the Additional Information field.
If USCIS denies the new petition, or if you withdraw the new petition before the 45-day period expires, USCIS will automatically terminate the H-2A worker’s employment authorization within 15 calendar days of its denial decision or the withdrawal request. You must reverify the employee’s employment authorization in Section 3 either by the end of the 45-day period from the date USCIS receives your Form I-129 or once you receive a decision on the H-2A petition, whichever comes first. If your petition is denied or withdrawn, count 15 days from the date of the denial or withdrawal request for the date the employee’s employment authorization expires.
