Washington, D.C. In addition to nonimmigrants in H-1B and H-2A categories, nonimmigrant aliens in other categories may receive extensions of stay if their employers timely file Form I-129 (or Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker for CW-nonimmigrants) with USCIS. These employees 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. You should write “240-day Ext.” and the date you submitted Form I-129 to USCIS in the Additional Information box in Section 2.
Other categories include: CW-1, H-1B1, H-2B (see below for H-2B portability guidance), H-3, L-1, O-1, O-2, P-1, P-2, P-3, R-1, TN, A-3, E-1, E-2, E-3, G-5, and I. Individuals in the E-1 and E-2 categories may be employers or employees. As a reminder, employers are only required to have Forms I-9 for employees.
You may read the Form I-129 Instructions for more information on filing extensions of stay.
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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