Completing the Form I-9 for H-2B Workers Under DHS and DOL Joint Temporary Final Rule

The Department of Homeland Security in conjunction with the Department of Labor has published a temporary final rule in the Federal Register that would increase the numerical limit for the fiscal year 2022 H-2b nonimmigrant visas. This would also give greater flexibility for existing H-2B visa recipients to start work with a new employer.

This temporary final rule provides that an employer may allow an H-2B worker to start work immediately after filing an H-2B position with a valid temporary labor certification before the USCIS completes its approval. This portability will apply if the employer’s extension of stay H-2B petition is pending as of January 28th, 2022. However, this will period will end on the later date of either 60 days subsequent to the employment start date included on the petition or January 28th, 2022.

Portability will also apply if the petition is received by the USCIS between January 28th and July 27th. Under this condition, the worker may begin working with the employer for a period of 60 days beginning upon the received date provided on For I-797 (Notice of Action) which acknowledges that the petition for an extension of stay has been received. If the employee begins work after the date provided on the I-797 then the employee may work for a period of up to 60 days from the employment start date provided on the petition.

For employers to complete the Form I-9 the H-2B worker may provide a valid, non-expired Form I-94, Arrival/Departure record which states that they possess H-2B status in addition to an unexpired, foreign passport as List A documents. In order to finish Section 2 of Form I-9 employers should include under List A:

  • The employee’s foreign passport information
  • The employees Form I-94 Information
  • Under the field for Additional Information, the employer may enter “60-Day Ext” as well as the date that they filed Form I-129 for an extension of stay with the USCIS.

Should the employer’s petition be denied or if it is withdrawn prior to the USCIS granting approval the worker’s employment authorization will be automatically terminated 15 calendar days after either the state of denial or of withdrawal of the petition.

On the earlier date of either the completion of the 60-day period of employment authorization or the receipt of a decision from the USCIS concerning the new H-2B petition, the employer must reverify the H-2B worker’s employment authorization. This will be completed in Section 3 of the Form I-9. Should the petition have been withdrawn or denied the worker’s employment authorization will end 15 calendar days from the date of the denial or withdrawal.

Learn more about automating your employment eligibility verification and ensuring compliance with I-9 Compliance.