U.S. Citizenship & Immigration Services (CIS) recently began issuing Form I-797A Approval Notices with two different validity periods for certain nonimmigrant classifications, including H-1B.   The expiration date at the top of the Approval Notice reflects the validity date requested in the petition and the period of work authorization.  However, the I-94 at the bottom of the approval notice now shows a longer validity date that reflects the new 10-day grace period authorized by regulation. This results in a difference of 10 days between the expiration of the approved petition for work authorization and the expiration of the Form I-94 Arrival/Departure Record.  The Form I-94 Arrival Departure Record governs the individual’s authorized period of stay in the United States.  The individual is only authorized for employment until the petition expiration date but may remain in the United States until the Form I-94 expiration date.

Under CIS regulations that went into effect in January 2017, E-1, E-2, E-3, H-1B, L-1 and TN nonimmigrants and their dependent family members “may be admitted to the United States or otherwise provided such status for the validity period of the petition . . . plus an additional period of up to 10 days before the validity period begins and 10 days after the validity period ends.”  The regulation goes on to clarify that “the alien may not work except during the validity period” of the petition.  The regulation specifies that the additional 10-day grace period is not mandatory but “may” be granted to the classifications authorized by regulation, and it is possible that a shorter period could be granted in appropriate cases.

This recent change in CIS Approval Notices gives effect to the new 10-day grace period afforded by regulation, but it also raises key questions concerning the appropriate manner of completion of the Form I-9 since the I-94 at the bottom of the I-797 Approval Notice now includes 10 days for which the foreign national is not authorized to work.  Employers should closely review their I-797 approval notices and note the expiration date listed at the top of the Approval Notice for tracking of expiration dates.

CIS previously provided guidance on completion of the Form I-9 when the I-94 record is valid for longer than the underlying petition.  The employee should enter the petition expiration date from the top of the Form I-797 approval notice in Section 1.  In Section 2, the employer should enter the expiration date from the Form I-94 at the bottom of the I-797 approval notice.  Employers should re-verify the employee’s work authorization no later than the earlier of the two dates. If you would like further information on completion of the Form I-9, contact your Foster attorney.

Foster LLP will continue to monitor changes in CIS procedures.  As further guidance becomes available regarding the impact on Form I-9 Employment Eligibility Verification, Foster LLP will provide additional information via future Immigration Updates© and on our firm’s website at www.fosterglobal.com.