The Do’s and Don’ts of H-2A Onboarding: Employment Eligibility Verification

H-2A employers often breathe a sigh of relief when they receive approval on their visa petition from U.S. Citizenship and Immigration Services (USCIS). Understandably so, given that this milestone marks the end of the government approval gauntlet, with all the scrutiny that it entails. From here, it’s simply a matter of scheduling the consular appointments, booking bus arrangements, and waiting for the workers to arrive. Right? 

Well, not so fast. There is still much work to be done, both to prepare for workers’ arrival and to get them situated once they’re here. This series spotlights best practices and guidance on various onboarding topics. Today’s focus is employment eligibility verification. 

Verification and Re-Verification 

Federal law requires Form I-9 verification for all newly hired employees within the first three days of beginning work. This requirement extends to H-2A workers, even if they are returning from a prior season. Returning workers may re-verify on their existing I-9 using the new Supplement B of the form (formerly Section 3). 

When executing an I-9, you must examine the workers’ original documents live and in-person. Remote document inspection is only permitted for employers enrolled in E-Verify, who may inspect documents via live video conference with the worker. If using an agent or translator to pre-fill the I-9 with the worker’s information in advance of the document examination, the agent or translator must complete Supplement A. 

The reverification rules may apply differently to certain U.S. workers rehired for the H-2A contract. Such workers may be in “continuing employment” and not required to re-verify. Examples include U.S. workers returning from paid or unpaid personal leave or seasonal employees who are returning after a layoff. 

For more information on I-9 protocols, consult the USCIS handbook. 

Extensions 

Reverification is also necessary if you extend the employment period of your H-2A workers beyond their original I-94 date. If you timely file an extension petition, workers are authorized to continue working for up to 240 days while the petition is pending. 

When the original work authorization expires, you must update the workers’ I-9s by writing “240-Day Ext.” and entering the date the extension petition was filed. For short extensions, you can also write “two-week extension” with the petition filing date in the “Additional Information” box. 

Anti-Trafficking and Discrimination 

When performing the document examination, it is best practice to do so with the workers present and to immediately return the workers’ documents to them. Federal human trafficking laws prohibit the holding or confiscation of identity documents, even for short periods or if the worker requested it (e.g., for safekeeping).  

Anti-discrimination rules also apply to I-9 execution. First, you should never suggest a preference for any specific document type; workers are always free to furnish documents of their choice. Second, your I-9 practices and protocols should treat all workers equally, regardless of nationality. If you make copies of the H-2A workers’ I-9 documents, for example, you should follow that same practice for your U.S. hires. Failure to do so may constitute national origin discrimination.