I-9 COMPLIANCE WHEN USING I-129 TO EXTEND TN VISA STATUS

U.S. immigration law requires employers to verify the identity and employment authorization of each person they hire and complete an I-9 Employment Eligibility Verification form. Employers must complete this form for individuals employed under TN visa status. USCIS Handbook for Employers, pg. 49.

TN visa workers are allowed to work for their U.S. employers for the validity period of their TN status as evidenced in their I-94. If an employer wants a TN visa worker to work beyond the expiration date on his/her I-94, the employer must obtain an extension of the worker’s TN visa status. This can be achieved by either presenting a new application at a U.S. port-of-entry (Canadians) or U.S. consulate/embassy (Mexicans), or by filing an I-129 petition by mail for an extension of status.

If an I-129 petition is filed before the I-94 expires, a TN visa worker may continue working while the petition is pending for up to 240 days. To remain compliant with the government’s I-9 requirements in this scenario, USCIS advises that employers write in the margin of the employee’s I-9 form next to Section 2: “240-Day Ext”, and the date the I-129 petition was sent to USCIS. See Handbook for Employers, pg. 23.

USCIS also advises that employers document the filing of an I-129 extension by retaining the following documents with the employee’s existing I-9 form:

• A copy of the completed I-129 petition;

• Proof of payment for filing the I-129 petition;

• Evidence that the I-129 petition was mailed to USCIS; and

• The I-797 receipt notice issued by USCIS.

Employers must re-verify the employee’s employment authorization in Section 3 of the employee’s I-9 form once the employer receives a decision on the I-129 petition or by the end of the 240-day period, whichever comes first. Employers must record the document title, number and expiration date listed on the I-797 approval notice in Section 3 of the I-9 form.  Handbook for Employers, pg. 23.