H-1B Specialty Occupations
U.S. businesses use the H-1B program to temporarily employ foreign workers in a specialty occupation that requires theoretical or technical expertise in a certain field, such as science, engineering, or computer programming.
- A Newly Hired Employee with H-1B Classification. If USCIS approves your petition, you will receive Form I-797, Notice of Action, which indicates that the foreign worker has been approved for H-1B classification. Once your employee begins working for you, you must both complete Form I-9.
- H-1B Extensions. USCIS can approve H-1B petitions for an initial period of up to three years and can grant extensions for up to an additional three years. Under certain circumstances, USCIS may extend an H-1B worker’s employment authorization beyond the six-year limit.
- H-1B Continuing Employment with the Same Employer. For an H-1B worker to continue working for you beyond the expiration of their current H-1B status (as indicated by the expiration date on their Form I-797), you must request an extension of stay before the end date of their approved H-1B status . If you timely file a Form I-129 to extend their status, they are authorized to continue working for up to 240 days while USCIS processes the petition, or until USCIS makes a decision on your petition, whichever comes first. When your employee’s work authorization expires, you should write “240-Day Ext.” and enter the date you submitted Form I-129 to USCIS in the Additional Information field in Section 2. You must reverify the employee’s employment authorization using Supplement B, Reverification and Rehire once you receive USCIS’s decision, or by the end of the 240-day period, whichever comes first.
- H-1B Employees Changing Employers (Porting). An H-1B employee who is changing H-1B employers may begin working for the new employer as soon as the employer files a Form I-129 petition on behalf of the employee, however, the employer must do this before the employee’s period of authorized stay expires. You must also complete a new Form I-9 for this newly hired employee. An H-1B employee’s unexpired Form I-94 issued for employment with the previous employer, along with their foreign passport, qualifies as a List A document. You should write “AC-21” and enter the date you submitted Form I-129 to USCIS in the Additional Information field in Section 2.
Form I-9 Requirements When Requesting Extensions of Stay
Keep the following documents with the employee’s existing Form I-9 to show that you filed for an extension of stay on their behalf:
- A copy of the new Form I-129 or Form I-129CW;
- Proof you paid the filing fee; and
- Proof you mailed the new petition to USCIS.
After submitting the petition to USCIS, USCIS will send you a Form I-797C Receipt Notice acknowledging that we have received your petition. Once you receive the Form I-797C Receipt Notice, you should keep it with the employee’s Form I-9 and you no longer need to keep a copy of the Form I-129 application, proof of payment, and mailing receipt with the Form I-9.
If USCIS approves the petition for an extension of stay, you will receive Form I-797 Approval Notice that includes an expiration date and an attached Form I-94. Enter the document title, number, and expiration date using Supplement B: Reverification and Rehire of Form I-9. You must give your employee the Form I-94, which is evidence of their employment-authorized nonimmigrant status.
Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. Changes in immigration policies and procedures are complex and may require a consultation with an experienced immigration lawyer.
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