Are you tracking the 3-year H-2 maximum stay, and do you have a portability or change-of-employer plan for workers approaching the limit?
H-2A and H-2B status is capped at 3 years cumulative under 8 CFR § 214.2(h)(5)(viii). After 3 years a worker must depart for an *uninterrupted* 3-month period (H-2B) or 60-day period (H-2A) before re-petitioning. The DHS "H-2 Portability" rule under 8 CFR § 214.2(h)(2)(i)(D) allows a worker to start with a new employer the day a properly-filed extension petition arrives at USCIS — but only if the prior status has not lapsed. Most pro se employers miss the 3-year cap by 30–90 days and the worker becomes out-of-status overnight.
Context & Examples
Real example — Modesto multi-grower H-2A pool. We manage shared H-2A workers across three growers in the Stanislaus County co-op. Our master tracking system monitors each worker's H-2 days remaining, the date the 3-year cap will hit, and the available portability windows. In 2024 we transferred 11 workers between growers using portability filings (workers started at the new employer the day USCIS received the petition under 8 CFR § 214.2(h)(2)(i)(D)). When a worker hit the 3-year cap, we coordinated a 60-day return to Mexico timed to the off-season so no productive days were lost.
Horror story — solo grower, no tracking. A Sacramento valley grower miscounted a worker's days, kept him through 3 years and 4 months, and discovered the lapse only when the worker tried to renew. The lapse triggered automatic out-of-status status, the worker had to depart immediately (losing 6 weeks of season pay), and the next petition required a new TLC + I-129 + consular processing — total delay 9 months. The grower also lost the worker's accumulated 4 years of farm-specific knowledge.
Why an attorney is essential: The 3-year cap is the single hardest H-2 deadline to track manually. We use a custom calendar system that flags workers 6 months before the cap.
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