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By Immigration Group

This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh, Fredrikson Immigration Department Chair, is a member.

U.S. Citizenship and Immigration Services (USCIS) issued guidance on the Form I-9 Employment Authorization Verification process for H-2B workers seeking to change employers. The guidance follows a joint temporary rule published on May 25, 2021, by the Departments of Homeland Security and Labor to increase the numerical limits on fiscal year 2021 H-2B nonimmigrant visas and temporarily provide job portability for H-2B workers already in the United States so they can begin work immediately with a new employer after an H-2B petition (supported by a valid temporary labor certification) is received by USCIS and before it is approved.

Under the temporary rule, portability applies if:

  • The new employer's extension of stay H-2B petition was received before May 25, 2021, and was pending on May 25. The new employer may employ the H-2B worker while the extension of stay petition is pending, for a period not to exceed 60 days, beginning on the employment start date on the petition or May 25, whichever date is later; or
  • USCIS receives the H-2B petition between May 25 and November 22, 2021. The H-2B worker is authorized to begin employment with the new employer for a period not to exceed 60 days beginning on the Received Date on Form I-797 (Notice of Action) acknowledging receipt of the petition requesting an extension of stay or if the start date occurs after the I-797 Received Date, for a period up to 60 days beginning on the employment start date on the petition.

The H-2B employee's unexpired Form I-94, Arrival/Departure Record, indicating his or her H-2B status, along with the employee's foreign passport, qualify as a Form I-9 List A document.

The notice includes additional information about how the new employer should complete List A, among other details.

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