604 
‘‘(B) otherwise violated a term or condition 
of admission into the United States as a non-
immigrant, including overstaying the period of 
authorized admission as such a nonimmigrant. 
‘‘(3) WAIVER OF INELIGIBILITY FOR UNLAW-
FUL PRESENCE.— 
‘‘(A) IN GENERAL.—An alien who has not 
previously been admitted into the United States 
pursuant to this section, and who is otherwise 
eligible for admission in accordance with para-
graphs (1) and (2), shall not be deemed inad-
missible by virtue of section 212(a)(9)(B). If an 
alien described in the preceding sentence is 
present in the United States, the alien may 
apply from abroad for H–2A status, but may 
not be granted that status in the United States. 
‘‘(B) 
MAINTENANCE
OF
WAIVER.—An 
alien provided an initial waiver of ineligibility 
pursuant to subparagraph (A) shall remain eli-
gible for such waiver unless the alien violates 
the terms of this section or again becomes ineli-
gible under section 212(a)(9)(B) by virtue of 
unlawful presence in the United States after 
the date of the initial waiver of ineligibility pur-
suant to subparagraph (A). 
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605 
‘‘(d) PERIOD OF ADMISSION.— 
‘‘(1) IN GENERAL.—The alien shall be admitted 
for the period of employment in the application cer-
tified by the Secretary of Labor pursuant to section 
218(e)(2)(B), not to exceed 10 months, supple-
mented by a period of not more than 1 week before 
the beginning of the period of employment for the 
purpose of travel to the worksite and a period of 14 
days following the period of employment for the pur-
pose of departure or extension based on a subse-
quent offer of employment, except that— 
‘‘(A) the alien is not authorized to be em-
ployed during such 14-day period except in the 
employment for which the alien was previously 
authorized; and 
‘‘(B) the total period of employment, in-
cluding such 14-day period, may not exceed 10 
months. 
‘‘(2) CONSTRUCTION.—Nothing in this sub-
section shall limit the authority of the Secretary to 
extend the stay of the alien under any other provi-
sion of this Act. 
‘‘(e) ABANDONMENT OF EMPLOYMENT.— 
‘‘(1) IN GENERAL.—An alien admitted or pro-
vided status under section 101(a)(15)(H)(ii)(a) who 
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606 
abandons the employment which was the basis for 
such admission or status shall be considered to have 
failed to maintain nonimmigrant status as an H–2A 
worker and shall depart the United States or be sub-
ject to removal under section 237(a)(1)(C)(i). 
‘‘(2) REPORT BY EMPLOYER.—The employer, or 
association acting as agent for the employer, shall 
notify the Secretary not later than 7 days after an 
H–2A worker prematurely abandons employment. 
‘‘(3) REMOVAL BY THE SECRETARY.—The Sec-
retary shall promptly remove from the United States 
any H–2A worker who violates any term or condi-
tion of the worker’s nonimmigrant status. 
‘‘(4) 
VOLUNTARY
TERMINATION.—Notwith-
standing paragraph (1), an alien may voluntarily 
terminate his or her employment if the alien prompt-
ly departs the United States upon termination of 
such employment. 
‘‘(f) REPLACEMENT OF ALIEN.— 
‘‘(1) IN GENERAL.—Upon presentation of the 
notice to the Secretary required by subsection (e)(2), 
the Secretary of State shall promptly issue a visa to, 
and the Secretary shall admit into the United 
States, an eligible alien designated by the employer 
to replace an H–2A worker— 
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607 
‘‘(A) who abandons or prematurely termi-
nates employment; or 
‘‘(B) whose employment is terminated 
after a United States worker is employed pur-
suant to section 218(b)(2)(H)(iii), if the United 
States worker voluntarily departs before the 
end of the period of intended employment or if 
the employment termination is for a lawful job- 
related reason. 
‘‘(2) CONSTRUCTION.—Nothing in this sub-
section is intended to limit any preference required 
to be accorded United States workers under any 
other provision of this Act. 
‘‘(g) IDENTIFICATION DOCUMENT.— 
‘‘(1) IN GENERAL.—Each alien authorized to be 
admitted under section 101(a)(15)(H)(ii)(a) shall be 
provided an identification and employment eligibility 
document to verify eligibility for employment in the 
United States and verify the alien’s identity. 
‘‘(2) REQUIREMENTS.—No identification and 
employment eligibility document may be issued 
which does not meet the following requirements: 
‘‘(A) The document shall be capable of re-
liably determining whether— 
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608 
‘‘(i) the individual with the identifica-
tion and employment eligibility document 
whose eligibility is being verified is in fact 
eligible for employment; 
‘‘(ii) the individual whose eligibility is 
being verified is claiming the identity of 
another person; and 
‘‘(iii) the individual whose eligibility is 
being verified is authorized to be admitted 
into, and employed in, the United States 
as an H–2A worker. 
‘‘(B) The document shall be in a form that 
is resistant to counterfeiting and to tampering. 
‘‘(C) The document shall— 
‘‘(i) be compatible with other data-
bases of the Secretary for the purpose of 
excluding aliens from benefits for which 
they are not eligible and determining 
whether the alien is unlawfully present in 
the United States; and 
‘‘(ii) be compatible with law enforce-
ment databases to determine if the alien 
has been convicted of criminal offenses. 
‘‘(h) EXTENSION OF STAY OF H–2A ALIENS IN THE 
UNITED STATES.— 
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609 
‘‘(1) EXTENSION
OF
STAY.—If an employer 
seeks approval to employ an H–2A alien who is law-
fully present in the United States, the petition filed 
by the employer or an association pursuant to sub-
section (a), shall request an extension of the alien’s 
stay and a change in the alien’s employment. 
‘‘(2) LIMITATION ON FILING A PETITION FOR 
EXTENSION OF STAY.—A petition may not be filed 
for an extension of an alien’s stay— 
‘‘(A) for a period of more than 10 months; 
or 
‘‘(B) to a date that is more than 3 years 
after the date of the alien’s last admission to 
the United States under this section. 
‘‘(3) WORK
AUTHORIZATION
UPON
FILING
A 
PETITION FOR EXTENSION OF STAY.— 
‘‘(A) IN GENERAL.—An alien who is law-
fully present in the United States may com-
mence the employment described in a petition 
under paragraph (1) on the date on which the 
petition is filed. 
‘‘(B) DEFINITION.—For purposes of sub-
paragraph (A), the term ‘file’ means sending 
the petition by certified mail via the United 
States Postal Service, return receipt requested, 
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or delivered by guaranteed commercial delivery 
which will provide the employer with a docu-
mented acknowledgment of the date of receipt 
of the petition. 
‘‘(C) HANDLING OF PETITION.—The em-
ployer shall provide a copy of the employer’s pe-
tition to the alien, who shall keep the petition 
with the alien’s identification and employment 
eligibility document as evidence that the peti-
tion has been filed and that the alien is author-
ized to work in the United States. 
‘‘(D) APPROVAL OF PETITION.—Upon ap-
proval of a petition for an extension of stay or 
change in the alien’s authorized employment, 
the Secretary shall provide a new or updated 
employment eligibility document to the alien in-
dicating the new validity date, after which the 
alien is not required to retain a copy of the pe-
tition. 
‘‘(4) LIMITATION ON EMPLOYMENT AUTHORIZA-
TION OF ALIENS WITHOUT VALID IDENTIFICATION 
AND EMPLOYMENT ELIGIBILITY DOCUMENT.—An ex-
pired identification and employment eligibility docu-
ment, together with a copy of a petition for exten-
sion of stay or change in the alien’s authorized em-
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