7.7 Extensions of Stay for Other Nonimmigrant Categories

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.

H-2B Extension with a New Employer or New H-2B Employment (Porting)

An H-2B employee who is changing H-2B employers or seeking new H-2B employment with the same employer (such as a new position) may generally begin working for the new employer or in the new H-2B employment as soon as the worker’s employer properly files a Form I-129 H-2B petition on behalf of the employee or as of the requested start date, whichever is later. The employer should file the Form I-129 H-2B petition before the H-2B worker’s period of authorized stay expires. The H-2B worker does not need to wait until the approval of the H-2B petition to start working. You may have your H-2B worker start working beginning on the “Received Date” on the Form I-797C Receipt Notice USCIS sends you, or as of the requested start date, whichever is later.

You and your newly hired employee must complete Form I-9. The employee’s unexpired Form I-94 issued for employment with the previous employer along with the employee’s unexpired foreign passport qualifies as a List A document. You should write “H-2 Portability” and enter the “Received Date” from Form I-797C Receipt Notice or the requested start date, whichever is later, in the Additional Information box in Section 2. The H-2B worker is authorized to work under this portability provision until USCIS makes a decision on your petition. If USCIS denies the petition or you withdraw the petition, the H-2B worker’s employment authorization under the portability provision automatically ends. You must reverify the employee’s employment authorization using Supplement B: Reverification and Rehire, once you receive our decision on the H-2B petition.