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U.S. Employers need to know that in some situations their workers’ passports may limit their work authorization
When an international employee of a US business applied for a work visa based on an approved US employer’s petition at a US Consulate abroad, the consular officer will usually look at two dates:
The dates on the Employer’s approval notice for the I-129 Petition filed in the US (when an approved I-129 for H-1B, TN, L-1, etc. is applicable for the type of case), and
The expiration date of the incoming employee’s passport.
Officers won’t issue visas beyond validity date of the passport.
Shortened Employment Eligibility Triggers I-9 Compliance Issue for US Employers
There is confusion when the Consulate issues a visa for a period shorter than visa petition validity and CBP admits the employee for that shortened period of time. In this cases, I-94s contain shorter work authorization than the approved I-129 Petition validity date
We sometimes get calls from employers who are confused because the I-9 and worker tell them their work authorization is expiring, but the visa petition approval notice shows a longer validity period. For example, we recently spoke to an employer regarding an H-1B with approval notice showing validity until March of 2022, but the worker’s I-94 (and the I-9) showed validity until November of 2020. The employer was confused as to why the I-94 was issued for such a significantly shorter time period than what USCIS approved for their petition.
We asked to examine the worker’s Passport and noticed that it expired in November of 2020. It appears that the consular officer only issued the I-94 until November of 2020.
As previously reported by my colleague, Danielle Atchison here the worker’s status and work authorization is controlled by the I-94, not the dates on the employer’s approval notice.
Recommendation to Employers
When an incoming international employee is going to apply their visa abroad, it is important to ask the worker to check the expiration date of their current passport. In some situations, it is best to remind the worker to apply for a new passport before consular processing, to enable the consular officer to grant a longer I-94.
Employees cannot continue working for the employer past the expiration of their I-94, so this is a very important issue for Employers. Conducting an internal annual I-9 audit will alert employers as to these type of issues relating to shortened I-94s, which must be addressed right away.
Leyla McMullen
Business Immigration Attorney MDIVANI CORPORATE IMMIGRATION LAW FIRM
NOT LEGAL ADVICE: This article is for educational purposes only, it is not legal advice that may be applicable to our situation
The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts, does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.