Immigration Update

MVA Immigration Team

As of April 3, 2009 a new Form I-9 is required. The new form and handbook are available at

Of special interest, the Handbook imposes a new requirement that H-1B employees who change employers must present a Form I-797 filing receipt for the new H-1B petition as evidence of employment authorization for I-9 purposes. This requirement is a departure from the longstanding practice of permitting "credible evidence" of the petition filed by the new employer, as the law permits the H-1B beneficiary to begin working for the new employer upon filing of the new petition. H-1B petitioners and intended beneficiaries should be aware that there may be delays in the issuance and mail delivery of the I-797.

The new Handbook also requires F-1 students who are authorized to work in the "cap gap" period between the expiration of an optional practical training period and the effective date of a change of status to H-1B to present a new Form I-20 along with evidence of a timely-filed H-1B petition and request to change status to demonstrate employment eligibility. The Handbook appears to conflict with a Student and Exchange Visitor Program (SEVP) Fact Sheet issued last month, which stated that an updated Form I-20 is not required for a student to continue working. According to agency instructions in the Handbook and in a guidance memorandum recently posted to the USCIS website, F-1 students authorized to work during the cap gap must present proof of a timely-filed H-1B petition and change of status, such as an express mail receipt and a copy of the petition, to their designated school officials (DSO) to obtain a cap-gap I-20. The initial updated I-20 will authorize the student's status and work authorization through June 1, 2009. If the H-1B petition is eventually accepted for processing by U.S. Citizenship and Immigration Services and a Form I-797 filing receipt is issued, the student will need to return to the DSO with a copy of the receipt to obtain a further updated I-20 showing a continued extension.

We look forward to assisting your business with its immigration needs.  Please do not hesitate to call or email your MVA Immigration Team contact with any questions you may have. 



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