6.7 Extensions of Stay for Other Nonimmigrant Categories
Nonimmigrants 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 their 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-1B, H-1B1, H-2A, H-2B (see below for temporary 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 Form I-797C acknowledging that your petition is pending. Once you receive the Form I-797C, 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 that includes an expiration date and an attached Form I-94. Enter the document title, number, and expiration date in Section 3 of Form I-9. You must give your employee the Form I-94, which is evidence of their employment-authorized nonimmigrant status.
Form I-9 Requirements for H-2B Portability
DHS and Department of Labor joint temporary final rules (87 FR 4722 and 87 FR 30334) provide temporary portability flexibility for H-2B workers already in the U.S. to begin work immediately with a new employer after an H-2B petition (supported by a valid temporary labor certification (TLC)) is received by USCIS and before it is approved. This H–2B portability is authorized for petitions requesting an extension of the noncitizen’s stay filed before January 28, 2022 and were pending on January 28, 2022, or received by USCIS between January 28, 2022 and January 24, 2023.
The H-2B worker is authorized to begin employment with you, the new employer, for a period not to exceed 60 days beginning on the Received Date on Form I-797 (Notice of Action) acknowledging receipt of the petition requesting an extension of stay or if the start date occurs after the I-797 Received Date, for a period up to 60 days beginning on the employment start date on the petition.
Note: The H-2B employee's unexpired Form I-94, Arrival/Departure Record, indicating his or her H-2B status, along with the employee's foreign passport, qualify as a Form I-9 List A document.
To complete Section 2, enter under List A:
- The unexpired foreign passport information;
- Unexpired Form I-94 information; and
- In the Additional Information field, "60-Day Ext." and the date you submitted the Form I-129 to USCIS.
If USCIS denies the new petition, or if you withdraw the new petition before the 60-day period expires, USCIS will automatically terminate the H-2B worker's employment authorization 15 calendar days after the denial decision or the date the new petition is withdrawn.
You must reverify the employee's employment authorization by the end of the 60-day period described above or once you receive a decision on the H-2B petition, whichever comes first. If your petition is denied or withdrawn, count 15 days from the date of the denial or withdrawal request for the date the employee's employment authorization expires.