This memorandum serves as a guide to employers who are hiring or continuing to employ foreign national employees in temporary work status. It is important to note that employers cannot ask employees or candidates for a specific document during the I-9 process. However, if an individual has questions about which documents they should provide to document their identity and work authorization, this memo will help you to discuss the options that they have to provide valid I-9 documentation.
When Your Employee Has Entered into the U.S. with a new Work Visa in his/her Passport:
In this circumstance, the employee’s valid foreign passport and I-94 record together serve as List A documents. You must record information about both the foreign passport and the I-94 record in Part 2, Section A of form I-9.
Be sure to list all pieces of information for each document as indicated on the I-9: Document Title, Issuing Authority, Document Number, and Expiration Date (if any). Calendar the expiration date of the I-94 approximately 3 to 6 months in advance so that reverification can be planned and timely completed.
When your Employee Has an H-1B Visa Status with Another Employer and Is Porting His/her H-1B employment in order to work for you:
This circumstance arises when an individual is working in H-1B visa status for another employer but your company has filed a new H-1B visa petition on the individual’s behalf. In this circumstance your employee should have a valid I-94 record – you should follow the steps outlined in #1 above, and in the margin of the I-9 next to Section 2,(1) write “AC-21” and (2) record the date that the H-1B visa petition on the employee’s behalf was submitted to USCIS (e.g. “AC-21, 12/4/2012”).
When your Employee has Changed Visa Status from One Type of Visa Status to Another Type of Visa Status:
This circumstance arises when you have an employee who begins employment in one visa status but during the course of the employment, his/her visa status changes. For example, you may have an F-1 student working in Optional Practical Training status or a J-1 student working in Academic Training status and the employee changes from F-1 or J-1 status to H-1B status. In this circumstance, Section 2 of form I-9 will already have been completed to allow for the individual’s original employment. When the status changes, you will utilize Section 3 of form I-9 in order to update the form.
After an employee’s status has changed, update Section 3 (Reverification and Rehires) of the I-9. For example, if the individual has changed to H-1B visa status, record the individual’s foreign passport and I-94 information in Section 3 (as per #1 above) in Section 3. If there is not enough room to record all the relevant/required information, use a new I-9 form to record the required information.
When you have filed to Extend Your Employee’s Work Authorization:
In this circumstance, Section 2 of the I-9 will already have been completed and you will record the extension information in Section 3 of form I-9.
For example, you may have an employee who began working for you upon the approval of an H-1B or L-1 visa petition filed by your company/institution on the individual’s behalf, and you completed Section 2 of form I-9 at the time of hire. Now your company/institution has filed a petition to extend the employee’s H-1B or L-1 visa status so the individual may continue to work for you.
As long as you have timely filed an extension of stay petition on behalf of this employee, then you may take advantage of the “240-day” rule. This rule allows an employer to continue to employ an employee for up to 240-days beyond the expiration of the employee’s I-94 record, until USCIS renders a decision on the extension petition. If USCIS has not reached a decision by the 240th day, and if the employee has no other valid I-9 documents to permit continued employment, the employee must be taken off the payroll by the end of the 240th day.
If you have an employee in the above-described circumstance, write “240-day extension” and the date the extension petition was filed, in the margin next to Section 2 of form I-9. Calendar 240 days from the date the employee’s I-94 record expires to ensure you take the employee of the payroll by the end of the 240th day if no decision has been rendered by USCIS.
Upon the approval of the extension of stay request, the employee will receive a new I-94 card issued by USCIS. Upon receipt of the approval notice containing the new I-94 card, complete Section 3 of form I-9 by including all the information referenced in #1 above.
H-1B Cap-Gap Employment:
If you employ an F-1 student in OPT and have filed an H-1B visa petition to qualify the student to change visa status and to work for your company in H-1B status beginning on October 1, you may continue to employ the foreign student beyond the expiration date on his/her Employment Authorization Document (EAD) while the petition is pending, up through September 30. If the H-1B petition is selected and approved, the F-1 student is authorized to continue to work beyond the expiration of the EAD – the student’s OPT is extended through September 30, the student’s H-1B status will take effect on October 1. If the H-1B petition is denied, and if end date of the student’s EAD has already passed, you must take the student off the payroll unless he/she can present another valid I-9 document at that time.
In this circumstance if the F-1 student is already employed by your company/institution, you would have already completed Section 2. After filing the H-1B change of status petition, complete Section 3 of form I-9 by recording the EAD information (even if expired) along with form I-20, endorsed by the designated school official. This documents the employee’s continued authorization to work up through September 30.
If the H-1B petition and change of status is approved, no later than September 30, complete Section 3 of form I-9 or update Section 3 on a new form I-9, to reflect the extended authorization to work.
A number of EAD classifications (but not all) allow for an individual to benefit from an automatic 180-day extension of work authorization if the individual has timely filed an EAD extension application to USCIS. The most common classifications that benefit from the 180-day extension are F-1 OPT STEM extensions, EADs issued on the basis of a pending Form I-485 Application for Adjustment of Status (green card); refugees; asylees; and individuals who have been granted Temporary Protected Status (TPS).
In these circumstances If the individual’s EAD (form I-766) expires while his/her EAD extension application is pending with USCIS, he/she is authorized to work for up to 180 days beyond the end date on his/her EAD until USCIS makes a decision on the EAD extension application. If more than 180 days from the end date of the EAD have passed and USCIS has not yet rendered a decision on the extension application, then the student must be taken off the payroll unless he/she can present another I-9 document to demonstrate authorization to work.
For current employees you would already have listed the employees EAD under Section 2 of form I-9. If the employee has timely filed an EAD extension, write “EAD Extension” in the margin of form I-9 next to Section 2 along with the date that the EAD extension petition was filed. If the person is an F-1 student applying for an OPT STEM Extension, you should also record the information regarding the student’s I-20 form endorsed by the designated school official who recommended the STEM extension.
Calendar 180 days and ensure that you complete Section 3 of form I-9 with the new EAD when issued by USCIS, which should grant a new period of employment authorization.