U.S. Citizenship and Immigration Services revised its Handbook for Employers: Instructions for Completing Form I-9 effective January 5, 2011. The revised Handbook contains expanded guidance regarding I-9 completion for lawful permanent residents, H-1B employees, F-1 students, and J-1 exchange visitors. The Handbook also offer guidance to employers in updating their I-9 forms when they have filed a Form I-129 nonimmigrant worker petition to USCIS to request an extension of stay for an employee.

According to USCIS, employers should take the following actions when they have submitted a timely filed extension petition:

Existing employees are authorized to continue to work for employer, for up to 120 to 240 days depending on the category petitioned for—or until USCIS denies the petition, whichever comes first. In this scenario, employers should retain the following documents with the employee’s existing Form I-9 to show that it filed for an extension of stay on the employee’s behalf:

  • A copy of the new Form I-129;
  • Proof of payment for filing a new Form I-129; and
  • Evidence that you mailed the new Form I-129 to USCIS.

After submitting Form I-129 to USCIS, employers will receive Form I-797(C) from USCIS acknowledging that its petition is pending. This receipt notice should be retained with the employee’s Form I-9.

If USCIS approves the application/petition for an extension of stay, employers will receive a Form I-797A, which includes an expiration date and an attached Form I-94A, Arrival/Departure Record. Employers should record the document title, number and expiration date listed on the notice in Section 3 of Form I-9.