The Definitive Guide to Filling out the Form I-9 for H-2A Workers

June 14, 2024

Hiring H-2A workers is an exercise of extreme patience. Getting your employees approved may feel like you’ve come to the end of an arduous bureaucratic process, but there’s still one more step to follow.

For each of the almost 300,000 visas that were issued to H-2A workers in 2022, employers had to fill out an I-9 form. This form confirms that the corresponding employee has the right to work in the United States. Unfortunately, completing the I-9 form is a complex and time-consuming process, adding another layer of stress for agricultural operations that want to benefit from the H-2A program.

Thankfully, there’s a solution. At Harvust, we specialize in delivering intelligent e-signature solutions that streamline the Form I-9 process for H-2A workers. Let's get started!

The special document for H-2A workers: I-94

Before we jump into the I-9, let's start with an important document H-2A workers receive when they cross the border: the form I-94. This document is issued electronically at the time of crossing. It contains two critical pieces of information for an H-2A employee's I-9: the document number, and the “Admit Until Date”, which determines when work authorization expires.

Why does this form matter?

It’s used to track the movements of non-permanent immigrants. It also proves that your worker entered the country legally and confirms their status. If they don’t have this form and your farm gets audited, you’ve committed a violation by hiring someone who can’t prove their immigration status.

Without a valid Admit Until Date, you can’t fill out Form I-9, meaning you can’t comply with U.S. immigration law.

Note: Don’t assume the Admit Until Date and visa expiration date are the same. The visa expiration date is the last day a worker can enter the U.S., whereas the Admit Until Date is the last day a worker is authorized to stay in the U.S. 

I-9 Form Breakdown for H-2A Workers

Employee Part (Section 1)

Let’s establish the basics of the Form I-9. You must complete an I-9 form for every new hire, including not just H-2A workers but also U.S. citizens.

Employees must finish Section 1 no later than their first official day at work. You must also sign the Preparer and/or Translator Certification if you're assisting. After filling it out, your employee has three business days to provide their documents so that you can fill out Section 2, although we recommend that you always complete this at the same time.

Let’s begin with the information your H-2A employees must provide:

Some optional entries also exist at the bottom of Section 1. H-2A workers can enter their social security number (if they have it), email address, and phone number. Here is what a correctly filled out Section 1 immigration status part looks like on Harvust from a worker's phone:

And here is what it will look like on the final document:

Common Mistakes in Section 1

Section 1 mistakes can delay your worker’s start date and put you at risk of noncompliance. This often happens when it’s an H-2A worker’s first time using the visa or they can’t read.

Common errors include:

That’s why it’s strongly recommended to either fill out the form on the farmworker’s behalf, or use an electronic system that provides guidance and guardrails to make it easy for workers to fill out. Our digital onboarding software checks for things like formatting, and making sure required fields are filled out, and it only shows fields as needed instead of overwhelming new employees with a complex government form. 

Employer Part (Section 2)

Ask, “What Is I-9 form compliance?” and most of the conversation will revolve around the verification section.

The rules state you or one of your representatives must finish and sign Section 2 within three business days of your H-2A worker starting work. Your employee must provide authentic, original documentation, and you must examine them physically.

During COVID-19, some flexibilities allowed you to inspect documents remotely, but I-9 form requirement flexibility ended in 2023. So, you must physically inspect every document once again. 

Before you can fill out Section 2, your employee must provide physical documentation. They must be original and unexpired to prove their identity and authorization to work in the U.S.

Employees must submit either one document from List A or one document from List B plus one document from List C.

List A documents prove both identity and employment authorization. A Mexican passport, for example, would count as a List A document.

The most likely scenario for an H-2A worker is a foreign passport with a valid Form I-94 document would also count as a List A document.

Step-by-Step Guide to Section 2

Per the rules, H-2A employers are responsible for inspecting documents, ensuring they’re genuine, and properly authorizing their employees to work.

Audits aren’t uncommon, and you could be hit with financial penalties and even criminal charges if you knowingly hire someone who isn’t authorized to work in the country. Plus, you could have your right to sponsor foreign workers revoked.

Follow this simple process for completing Section 2 for an H-2A worker: 

1. Ask your employee to supply the necessary documents.

You’ve got until three business days after their official first day of work to fill out Section 2, so do this well in advance. You cannot ask any farmworker for specific documents, for H-2A workers however, it is safe to assume they will have a foreign passport and an I-94.

2. Ensure the documents are original and still valid.

Go over them to ensure they don’t look altered or fake. Visit the U.S. Citizenship and Immigration Services (USCIS) website for guidance on whether a document meets the requirements. You do not need to be an expert on fake documents, if it looks valid you are good.

3. Complete Section 2 List A.

This is the most likely scenario for an H-2A worker, you may have a special case which differs.

For Document 1 enter the following:

Document Title 1: Put in the Foreign passport work-authorized nonimmigrant

Issuing Authority: Put in the country of origin e.g. “Mexico”

Document Number (if any): Put in the passport number

Expiration Date (if any): Put in the passport expiration date

Here is an example of what that will look like completed on Harvust:

However for an H-2A worker we also need to add their Form I-94 information for Document 2:

Document Title 2: Put in Form I-94/Form I-94A

Issuing Authority: Put in Department of Homeland Security or U.S. Customs and Border Protection

Document Number (if any): Put in the I-94 number

Expiration Date (if any): Put in the I-94 “Admit Until Date”

Here is what that looks like filled out on Harvust:

Together an H-2A worker's I-9 Section 2 looks like this on Harvust:

If you are using a digital onboarding system like Harvust, you can scan their ID documents with your phone and it will automatically fill the relevant fields in. If you are a wafla customer, then your I-9s will be populated automatically when employee's cross the border with Ready on Arrival our H-2A worker specific onboarding and training solution.

4. Sign and date Section 2.

This certifies that you’ve inspected and confirmed the validity of the employee’s documents. And here is the completed and signed Section 2:

Fully Compliant Electronic Signatures 

Electronic signatures with Harvust are just as compliant as pen and paper. Our solution complies with the Electronic Signatures in Global and National Commerce Act and the Uniform Electronic Transactions Act because:

You can read our lawyer's analysis of our farmworker onboarding software compliance. However meeting minimum compliance standards isn't enough to protect your farm, check out this article on additional standards your e-signature system may be judged on.

I-9 Supplement A & Supplement B

Many employers are aware that the I-9 was changed to make it shorter and easier to fill out. Starting November 1, 2023, all employers were required to use the new I-9 form.

The Preparer/Translator section was converted into the new Supplement A, and Section 3 was removed and morphed into the new Supplement B. Older guides may have yet to account for this change, making it essential to tread carefully when doing your own research.

So, what do Supplement A and Supplement B do? 

Supplement A

As an H-2A employer you will likely be using this section. Supplement A is a separate block used whenever you enlist a preparer or translator to help your employees with Section 1.

Every preparer or translator must provide their full name, address, and signature. Your employee must also sign it, and the date of signature must match the date when each preparer or translator signed the document.

If your employee didn’t use any help, leave this blank.

We know that it is common for ag employers who want extra control over the accuracy of the document to fill out Section 1 on behalf of their workers. With literacy, and complexity of government forms presenting a challenge to H-2A workers, it may make sense for your farm's HR staff to assist.

Supplement B

Supplement B is the previous Section 3 used for reverifying and rehiring your H-2A workers. If you’re filling out a form for someone who’s never worked with you, you can leave this section blank.

So, should you use this section?

We generally do not recommend using this supplement. Instead we recommend you work with the employee to fill out a new I-9 completely. A lot of ag employers have a general policy that every employee when they are rehired in the new season fill out an entirely new hiring packet, including the I-9.

I-9 Form Frequently Asked Questions 

My worker lost their I-94; now what?

That is not possible! Since April 2013, the U.S. Customs and Border Protection (CBP) has entered all I-94s into their computer database. Just use the CBP’s search feature for their most recent I-94. The H-2A worker may not have their I-94 information form the website by the time they get to you, it may be faster for you to use the CBP search on their behalf.

Do I have to make copies of an H-2A worker's IDs they use on the I-9?

No. It is not a requirement for you to scan or photograph any employee's (domestic or H-2A) IDs. You are free to do so, however if you do decide to retain copies make sure you do it for all employees to avoid discrimination risk! With H-2A employees you may need to provide copies of their foreign passport to exempt them from certain state tax withholdigs like Washington state's WA Cares Fund.

 

Do I absolutely HAVE to do this I-9 thing?

Filling out Form I-9 is as important as helping your workers with their H-2A visas. It’s part of immigration law, so if you don’t, then you could be charged criminally.

 

How long do I have to keep I-9 forms?

You must keep a copy in your records for three years after an employee starts work or one year after termination, whichever is later. In other words, you must keep them for as long as someone works for you, plus one year after they leave. Harvust’s onboarding system retains electronic records indefinitely so you don’t have to manage deadlines, or paper filing systems. Our platform creates a detailed audit trail of every I-9, including creation, changes, and signatures. This establishes the authenticity and integrity of every I-9, enabling you to prove to any inspector that your process checks all the boxes. 

 

What if my worker leaves and I want to rehire them next year?

Re-verification is required for all workers unless they’re Lawful Permanent Residents (LPRs). Generally, hiring H-2A workers requires re-verifying their documentation every time they enter the country and begin a new contract. We suggest filling out a new I-9 each time, instead of using Supplement B.

 

What if I don’t trust the validity of an employee’s I-9 documents?

You’re not expected to be a document expert, but you are expected to use common sense. You cannot hire that worker if there are obvious inconsistencies between documents or other signs of counterfeiting. This should not be a problem for H-2A workers as they have legal entry so no incentive to provide false documents.

Download a sample of a correct H-2A worker I-9

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James Christopher Hall

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