Legal Affairs Counsel’s Corner: USCIS Lays Groundwork for Mandatory E-Filing: What H-2 Employers Need to Know

USCIS Lays Groundwork for Mandatory E-Filing: What H-2 Employers Need to Know

On August 10, 2026, USCIS issued a press release on its website announcing its publication  of a new Interim Final Rule (IFR) regarding its plans to transition away from paper-based filings of certain immigration benefit requests to a mandatory electronic filing system. Effective August 11, 2026, the IFR authorizes USCIS to require electronic filing for benefit requests that have been available for e-filing for at least 180 days. The rule does not make Form I-129 - or any other form - mandatory online immediately. Instead, USCIS has stated that it will provide at least 60 days’ advance notice before ending paper filing for a form or specified classification.

H-2A employers may be among the first affected because USCIS already accepts electronic Form I-129H2A petitions, and that filing option has been available for more than 180 days. Once the new waiver process receives final approval, USCIS could mandate electronic filing for H-2A petitions after providing the required notice. Because mandates may apply to particular classifications rather than an entire form, H-2A petitions could transition separately from other Form I-129 categories. Importantly, the announcement does not currently change H-2B filing procedures. Therefore, H-2B employers should continue following existing instructions unless USCIS issues a classification-specific notice.

When a mandate takes effect, employers will be required to file through a USCIS online account, either by completing a guided online form or uploading a completed PDF and supporting evidence, depending on the filing method USCIS makes available. Paper submissions will no longer be accepted after the announced effective date unless USCIS has approved a waiver. Employers should begin reviewing online-account ownership and access, two-factor authentication, electronic payment authority, document-upload procedures, and coordination with counsel or agents to avoid disruption during time-sensitive filing windows.

The paper-filing exception is anticipated to be applied narrowly by USCIS.. A requestor must first submit Form I-936 with a $25 fee and evidence that mandatory e-filing would cause undue hardship. USCIS indicates that business entities and represented requestors generally will not qualify, and unfamiliarity with the system or lack of an existing online account ordinarily will be insufficient. Each waiver applies to only one benefit request, is generally valid for 30 days, and does not preserve a filing date or cap position—making advance preparation especially important for seasonal start dates and cap-sensitive H-2B filings. 

Seso will continue closely monitoring this issue moving forward and issue future updates as they become available. 

Arizona Appeals Court Rejects H-2A Employer’s Worker-Poaching Claim

On July 10, 2026, the Arizona Court of Appeals in Dream With Colors, Inc. v. Santos affirmed summary judgment against an H-2A employer that accused a competitor of tortiously interfering with its workforce by recruiting former employees. The employer argued that its investment in recruiting, processing, transporting, and training H-2A workers created a protected expectation that those workers would return in later seasons. The court disagreed, holding that the H-2A program gives an employer no legal right to compel workers to remain or to prevent competitors from associating with former employees.

The court found that neither 29 U.S.C. § 1842 nor 20 C.F.R. § 655.122 prohibits a third party from recruiting or hiring former H-2A workers. Because H-2A employment is temporary and seasonal—and the workers at issue were at-will employees without non-compete agreements—the employer’s general expectation that they would return from year to year was too speculative to support a tortious-interference claim. The court also concluded that offering workers higher pay or benefits is legitimate competition, not improper conduct. Importantly, the court did not decide whether an employer could have a protected interest in a worker’s performance during an existing employment term because there was no evidence that the competitor hired the one worker alleged to have left mid-contract.

For H-2A employers, the decision underscores that the substantial cost of recruiting and onboarding workers does not create a proprietary interest in those workers or guarantee their return in future seasons. Employers generally cannot use the H-2A program itself to prevent former workers from accepting employment elsewhere. Although the decision is an unpublished memorandum decision and therefore is not binding precedent under Arizona Supreme Court Rule 111(c), its reasoning provides a useful warning against treating anticipated worker returns as a legally protected business expectancy.

Employers should therefore approach retention as an operational strategy rather than a presumed legal entitlement. Competitive compensation, reliable scheduling, compliant housing and transportation, respectful supervision, clear communication, and a positive return-worker experience remain the most effective tools for maintaining a seasonal workforce. Employers considering contractual protections should obtain legal review before implementation, particularly because restrictions on worker mobility may raise enforceability, labor, immigration, and antitrust concerns.

H-2A Litigation Update: Quick Hits

Dept. of Labor v. Sun Valley Orchards

Summary: In DOL v. Sun Valley Orchards, the Supreme Court will review a Third Circuit decision restricting DOL’s ability to use administrative proceedings to collect back wages and civil penalties for alleged violations of H-2A job-order terms. The Supreme Court will consider whether Article III requires those monetary claims to be decided in federal court and whether the Immigration and Nationality Act authorizes DOL to adjudicate them administratively. An affirmance could require DOL to pursue certain monetary remedies in federal court, while a reversal could preserve the agency’s existing administrative enforcement process.

Update: Oral argument has been scheduled for November 10, 2026, with a decision expected by the end of the Court’s term—typically by late June 2027. Until SCOTUS rules, employers located in the Third Circuit’s jurisdiction are covered by its decision, which effectively limits DOL to pursuing debarment actions in the interim. 

United Farm Workers v. Dept. of Labor

Summary: In UWF v. DOL, pending in the Eastern District of California, UFW is challenging DOL’s 2025 AEWR interim final rule. The rule replaced the prior methodology with occupation- and skill-level-based wage rates and a housing adjustment. In May, the court declined to issue a preliminary injunction because the plaintiffs had not demonstrated likely irreparable harm, but it did not decide the merits. 

Update: The court will hear the parties’ cross-motions for summary judgment on August 18, 2026. There is no mandatory deadline for a ruling, so a decision could follow within weeks or months, and an appeal to the Ninth Circuit is likely regardless of the outcome. 

New York State Vegetable Growers Ass’n v. James

Summary: In NYSVGA v. James, pending in the Western District of New York, is another significant case for New York H-2A employers, which entails an ongoing challenge to provisions of NY’s current farm labor law governing union organizing, representation, and collective bargaining. The court previously preliminarily enjoined one provision of the law on First Amendment grounds. 

Update: On August 12, 2026, the court heard arguments concerning Ricardo Bell’s motion for a preliminary injunction and UFW’s motion to intervene. Additional briefing is due September 9, with replies due September 23, after which the motions will be submitted for a decision or report and recommendation. The court’s forthcoming ruling on the requested injunction could potentially have massive implications for union-organizing and representation procedures at New York farms employing H-2A workers in the future. 

H-2A Reform Update: SAWA Faces an Uncertain Path

The Securing Agriculture’s Workforce Act of 2026 (SAWA), H.R. 9535, remains stalled in the House Judiciary Committee. Congress's website reflects no action beyond the bill’s June 30 introduction and committee referral—no hearing, markup, or vote has been scheduled. Its prospects weakened after Judiciary Committee leadership declined to include SAWA in a July immigration package and several Republican co-sponsors withdrew or announced plans to withdraw their support. Opposition has focused primarily on provisions allowing certain unauthorized agricultural workers to seek waivers and transition into H-2A status, which critics characterize as amnesty despite the bill’s exclusion of permanent residency or a pathway to citizenship.

SAWA could regain momentum after the August recess, particularly because agricultural employers continue pressing Congress for workforce reform, but its chances of enactment during the current Congress appear low without support from House Judiciary leadership and a broader Republican agreement on the worker-waiver provisions. The bill would also need to pass the Senate and receive presidential approval before the 119th Congress ends; otherwise, it must be reintroduced next session. In the meantime, lawmakers are emphasizing administrative alternatives, including the recommendations in a July 30 letter led by Senator Cindy Hyde-Smith. 

Seso is closely monitoring this issue and will provide additional updates as they become available.