New I-9 Guidance for H-2B Workers That Want to Change Employers

The Department of Labor and the Department of Homeland Security published a joint Federal Register temporary rule (86 FR 28198) on May 25th. This rule temporarily provides some flexibility for H-2B workers that wish to change employers. It also increases the limit on FY2021 H-2B nonimmigrant visas.

Some conditions need to be met for this temporary rule to apply. The employer must have filed the extension of stay H-2B petition, and it must have been received before May 25th and now be pending.

While the H-2B is pending, the employer may hire the H-2B employee for no more than 60 days. However, should the USCIS receive the petition sometime between May 25th and November 22, 2021, then the employee can start employment for no more than 60 days beginning on the Received Date on Form I-797 (Notice of Action) that shows the petition was received. If employment starts after this date, then the employment can be for up to 60 days that begin on the employment start date marked on the petition.

You can use the employee’s unexpired foreign passport with their unexpired Form I-94, Arrival/Departure Record, indicating his or her H-2B status for a Form I-9 List A document. To fill out Section 2, a new employer needs to put under list A the unexpired I-94 information and the unexpired foreign passport information. Then, enter the date you submitted the extension of stay H-2B petition in the additional information field, “60 day Ext.”

Should you withdraw the petition before the end of the 60 day period or if the USCIS denies the new petition, the H-2B worker’s employment authorization will be automatically terminated 15 days after the decision to deny the petition or the date the petition is withdrawn.

In section 3, you are required to reverify the employee’s employment authorization before the 60 day period ends or when you find out the decision on the H-2B decision, whichever comes first.