Form I-9 for H-1B workers: new hires, extensions, transfers and cap-gap

An H-1B employee completes Form I-9 like any other new hire, but almost every date on their form is tied to an immigration filing your company made. That is the part that goes wrong: an extension petition filed on time but never noted on the form, a transfer hire whose I-94 still names the old employer, or an F-1 student on cap-gap whose form says their authorization ended in June. This guide covers each stage of an H-1B worker's employment and what Form I-9 needs at that point.

Section 1: what the employee enters

The employee checks box 4, "An alien authorized to work until," and enters the date their employment authorization expires, which for an H-1B worker is generally the end date on their Form I-94. They also enter one of: an A-Number or USCIS number, the Form I-94 admission number, or a foreign passport number with the country of issuance. HR should not fill in or "correct" these entries; see Form I-9 Section 1 instructions.

Section 2: the List A combination

The Lists of Acceptable Documents include, under List A, a combination designed for workers authorized to work for a specific employer because of their status: a foreign passport together with a Form I-94 that bears the same name as the passport and an endorsement of the status, as long as the status period has not expired and the employment does not conflict with any restriction on the form. Record:

• the foreign passport as the first List A document (title, issuing country, number, expiration date);
• the Form I-94 as the second (title, admission number, and the I-94 end date as the expiration date).

USCIS notes that employees generally download their I-94 from cbp.gov, and that when USCIS approves an extension of stay, the Form I-797 approval notice comes with an attached Form I-94. Either form of the record works.

Because you sponsored the petition, it can feel natural to ask for the passport and I-94 by name. Do not. The employee chooses which acceptable documents to present. An H-1B worker with a pending green card application may, for example, hold an EAD and present that instead. See I-9 List A, B and C documents for the rules on document choice.

Extensions with your company: the 240-day rule

To keep an H-1B worker beyond the end of their current status, you file Form I-129 for an extension of stay before that end date. If you file on time, the M-274 says the worker is authorized to continue working for up to 240 days while USCIS processes the petition, or until USCIS decides it, whichever comes first.

On Form I-9, that looks like this:

1. When the current authorization reaches its end date, write "240-Day Ext." and the date you submitted the Form I-129 in the Additional Information field of Section 2.
2. Keep proof of the filing with the employee's Form I-9: a copy of the new I-129, proof you paid the fee, and proof you mailed it. Once the Form I-797C receipt notice arrives, keep that instead.
3. When USCIS approves the petition, the Form I-797 comes with a new Form I-94. Complete Supplement B with the document title, number and expiration date, and give the employee the I-94.
4. If 240 days pass first, or the petition is denied, reverify by that point. The employee may present any acceptable List A or List C document.

The 240-day rule exists for other categories too, including H-1B1, L-1, O-1, TN and E-3, so the same pattern applies to much of a sponsored workforce. See I-9 reverification for Supplement B mechanics.

H-1B transfers: the AC-21 portability rule

An H-1B worker changing employers can start working for the new employer as soon as the new employer files a Form I-129 for them, provided it is filed before the worker's period of authorized stay ends. For the new employer:

• It is a new hire. Complete a new Form I-9, with Section 1 on or before the first day and Section 2 within three business days.
• The old I-94 still works. The worker's unexpired Form I-94 issued for employment with the previous employer, together with their foreign passport, qualifies as a List A document.
• Note the filing. Write "AC-21" and the date you submitted the Form I-129 in the Section 2 Additional Information field.
• E-Verify applies. If you participate in E-Verify, create a case for the transfer hire within three business days, as for any new hire.

When USCIS approves your petition, the new I-94 goes on Supplement B. Keep the start date and the I-129 filing date consistent: if the start date in Section 2 is earlier than the filing date, the form shows the person working before portability applied.

Cap-gap: F-1 students moving to H-1B

Many first-year H-1B workers start as F-1 students on post-completion OPT with the same employer. When you file a timely H-1B cap petition requesting a change of status for a student on OPT, the student's F-1 status and OPT employment authorization are automatically extended until April 1 of the fiscal year requested, or the start date of the approved petition, whichever is earlier. That extension ends if the petition is rejected, denied, revoked or withdrawn.

For a current employee on OPT, the M-274 says to update Section 2 once you receive the Form I-797C by entering "CAP-GAP" and "03/31" plus the fiscal year of the requested start date in Additional Information, for example CAP-GAP 03/31/yyyy. Reverify on Supplement B by March 31 of that year. When the petition is approved, the new Form I-94 is the document for that reverification, though the employee can present any List A or List C document.

"Timely filed" has a specific meaning here: the change-of-status petition was properly filed while the student's F-1 admission was still in effect and before the OPT EAD expired. A student whose OPT ended before the petition was filed does not get the employment extension, even if their F-1 status is extended.

A timeline, with illustrative dates

What does not need a Form I-9 action

• A pay raise, promotion or demotion. These are continuing employment under the M-274.
• A transfer between distinct units of the same employer. The form can move with the employee.
• A new E-Verify case at extension. E-Verify is never used for reverification.

Whether a change in duties or worksite requires an amended H-1B petition is an immigration question, separate from Form I-9. Ask counsel; do not treat Form I-9 as the place where that question gets answered.

A checklist for H-1B files

• Calendar each H-1B worker's I-94 end date, not just the petition approval period, and start extensions early.
• Make the "240-Day Ext.," "AC-21" or "CAP-GAP" entry the same day the trigger occurs.
• Keep I-129 filing proof, then the I-797C, with the Form I-9.
• Complete Supplement B as soon as a new I-94 arrives, and no later than the end of the 240-day period.
• Let the employee choose documents at every step, even though you hold the petition paperwork.
• For H-4 spouses you employ, follow the EAD rules in EAD automatic extensions and Form I-9; an H-4 spouse needs an EAD to work.