Completing Form I-9 for an H-1B transfer depends on whether the employee has already received approval for the transfer (a new Form I-94) or is beginning work while the petition is still pending (utilizing AC-21 portability rules).
Here are the specific instructions for the receiving employer to complete Form I-9 under both scenarios:
Scenario 1: Transfer Petition is Pending (Using AC-21 Portability)
If you have filed the new H-1B petition but it has not yet been approved, the employee may work for you under “AC-21” portability rules.
Section 1 (Employee):
- Expiration Date: The employee should enter the “Valid Until” date found on their unexpired Form I-94 from the previous employer,.
- Note: If the employee states their expiration date is “D/S” (Duration of Status) or presents a Form I-94 with “D/S” as the “Valid Until” date, you cannot proceed with an H-1B transfer I-9. “D/S” usually indicates F-1 student status; you must first confirm that the employee is currently in H1B status and has presented his/her most current I-94.
Section 2 (Employer):
- List A Documents: You should examine and record the following combination:
- Unexpired Foreign Passport.
- Unexpired Form I-94 issued for the previous employer.
- Additional Information Field: In the “Additional Information” box in Section 2, you must write “AC-21” followed by the “Notice Date” from the Form I-797C, Notice of Action (the receipt notice you received as the new employer).
- Example Annotation: “AC-21, Notice Date 06/10/2022”.
- Alternative to I-797C: If you have not yet received the Form I-797C acknowledging receipt of your petition, you should retain other proof that the petition was filed, such as a copy of the new Form I-129 petition, proof of filing fee payment, or a certified mail receipt showing the petition was mailed to USCIS. In this case, record “AC-21” along with a brief description of the document and its date in the Additional Information field.
Scenario 2: Transfer Petition Approved (New Form I-94 Received)
If the transfer has already been approved and you have received the new Form I-94, which will be attached at the bottom of the Form I-797A (“Notice of Action”), proceed as follows.
Section 1 (Employee):
- Expiration Date: The employee should enter the “Valid Until” date found on the top right corner of the new Form I-797A. They should not use the date from the I-94. (The “Valid Until” date at the top of the 797A is the date that the employee’s employment eligibility ends. The “Valid Until” date on the I-94 is the date by which the individual must depart the U.S., unless they have received subsequent authorization to remain. Note that the date on the I-94 is approximately 10 days after the date that employment eligibility ends, which gives the individual time to depart after employment eligibility ends.
Section 2 (Employer):
- List A Documents: You should examine and record:
- Unexpired Foreign Passport.
- Form I-94 (found at the bottom of the Form I-797A approval notice).
- Document Details: Record the document title, issuing authority, document number, and expiration date as usual. You should attach the entire Form I-797A to the I-9 and provide the employee’s portion of the I-94 to the employee.
Important Notes
- List B and C: In either scenario, the employee may choose to present a List B (identity) and List C (employment authorization) document instead of the List A combination. For H-1B status, the acceptable List C document is an unexpired Form I-94 indicating H-1B status.
- Social Security Cards: An H-1B worker may have a restricted Social Security card (marked “VALID FOR WORK ONLY WITH DHS AUTHORIZATION”). Under the general rules, a restricted Social Security card is never acceptable for Form I-9.