When USCIS processing runs long, an H-1B employee’s I-94 can expire while their petition is still pending. In many cases, the employee can keep working legally during that wait, but the employer has to update Form I-9 correctly to show it.
The rules depend on what kind of H-1B petition you filed. Below, we walk through the three most common scenarios, what to write on the I-9, and what to keep on file.
Scenario 1: Extending a current employee in the same role (240-day rule)
If you file an H-1B extension before the employee’s current status expires, and you select “Continuation of previously approved employment without change with the same employer” on the petition, the employee may keep working for you for up to 240 days past the expiration date, or until USCIS decides the petition, whichever comes first.
What to write on the I-9. In the Additional Information field of Section 2, note the extension and the filing date. For example:
240-Day Ext.; I-129 petition submitted [Insert date filed]
What to keep on file. Proof that the petition was filed on time: the receipt notice, delivery confirmation, proof of payment, and a copy of the petition. Filing online, where available, gets you a receipt notice the same day.
What to calendar. The 240-day deadline. If the petition is still pending as it approaches, premium processing might be a consideration.
Scenario 2: Hiring an H-1B worker from another employer (portability)
When you file a “Change of Employer” petition before the worker’s current H-1B status expires, the worker can start with you as soon as the petition is filed and the start date arrives. Unlike Scenario 1, there is no 240-day cap: the worker stays authorized while the petition is pending, until USCIS decides it or the requested validity period ends.
Documents the employee can present. Their unexpired I-94 from the prior employer plus an unexpired foreign passport counts as a List A document. Or the I-94 can serve as a List C document if the employee also presents a valid List B document.
What to write on the I-9. In Section 2’s Additional Information field:
AC-21; I-129 petition submitted [Insert date submitted]
What to keep and calendar. Keep the same proof of timely filing as in Scenario 1. Calendar the end date of the requested H-1B validity period, and reverify earlier if USCIS issues a decision.
Scenario 3: Changing a current employee’s role (amended petition)
If you file for a current employee as an “Amended Petition” or “Change in Previously Approved Employment,” portability may apply instead of the 240-day rule. DHS said that an employer filing a change-in-employment or amended petition for the same employee can keep that employee working until the petition is decided.
What to write on the I-9. In Section 2’s Additional Information field:
AC-21; I-129 petition submitted as H-1B Amendment on [Insert date submitted]. 8 CFR 214.2(h)(2)(i)(H)
Keep the same proof of timely filing. You may also keep a copy of the relevant regulation with the I-9 to show good-faith compliance.
A legitimate material change is required. Filing an amended petition should never be used just to get around the 240-day rule. An amendment is appropriate only when there is a real, material change in the employee’s employment, such as a significant change in job duties or a move to a worksite not covered by the existing LCA. If nothing has materially changed, the petition should be filed as a continuation without change, and the 240-day rule applies.
Weigh the risk first. While this approach is reflected in the Federal Register, there is a lack of published decisions or official guidance from USCIS or ICE, so it may be an issue in the event of an I-9 audit.
Quick checklist for H-1B employers
- File early. Every scenario above depends on filing before the employee’s current status expires.
- Check the boxes. The category selected on the LCA and Form I-129 decides which rule applies.
- Annotate Section 2. Note the basis (240-Day Ext. or AC-21) and the filing date.
- Keep proof of filing with the I-9: receipt notice, delivery confirmation, payment record, and a copy of the petition.
- Calendar the end date (240 days, or the end of the requested validity period) and tell the employee ahead of time.
- Reverify promptly once USCIS issues a decision.
If you have questions about a specific employee, please contact me at cprescott@psbplaw.com to schedule a consultation.