New Form I-9 Guidance for T and U Visa Holders

USCIS, Feb. 17, 2022

"The statuses of T and U nonimmigrants (victims of human trafficking and certain other crimes) are granted for up to four years and may be extended under certain circumstances. Family members of T and U nonimmigrants may also qualify for these statuses. T and U nonimmigrants are either authorized to work incident to their immigration status or are eligible to seek authorization for employment by USCIS, depending on their class of admission. USCIS issues work authorized T and U nonimmigrants Form I-766, Employment Authorization Document (EAD), though not all classes of T and U nonimmigrants must have an EAD before they start working. 

When completing Section 1 of Form I-9, employees with T or U nonimmigrant status should check “An alien authorized to work” and enter their EAD “Card Expires” date or their Form I-94, Arrival Departure Record “Admit Until Date” in the Expiration Date field. 

For Section 2, employees with T or U nonimmigrant status may choose to present their EAD, which is an acceptable List A document. Employees whose Form I-94 indicates a class of admission of T-1, U-1, U-2, U-3, U-4, or U-5 may instead choose to present their Form I-94 as a List C #7 document and must also present a List B identity document. These employees are employment authorized incident to status.  However, Forms I-94 containing an admission of T-2, T-3, T-4, T-5, or T-6 are not acceptable as a List C document. These employees are eligible to apply for work authorization and receive an EAD.  

You must reverify the employee’s employment authorization in Section 3 no later than the date on which the employee’s employment authorization or employment authorization document expires, whichever date comes first. See Section 5.1, Reverifying Employment Authorization for Current Employees for more information.

Extension of Status Based on Pending Form I-485

T and U nonimmigrants may apply for lawful permanent resident status by filing a Form I-485, Application to Register Permanent Residence or Adjust Status, provided they meet the eligibility requirements. Once the Form I-485 application is properly filed, USCIS will issue a Form I-797C, Notice of Action, for the adjustment of status application and extension of current T or U nonimmigrant status.

If the Form I-485 is timely filed, this notice, when presented in combination with a T-1, U-1, U-2, U-3, U-4, or U-5 nonimmigrant employee’s Form I-94 admission record, is an acceptable List C #7 document to show employment authorization. For T-1 nonimmigrants, this document combination shows employment authorization for two years from the “Admit Until Date” on the Form I-94 admission record (unless the Form I-485 application is denied or withdrawn, whichever is earlier). For a U-1, U-2, U-3, U-4, or U-5 nonimmigrant, this document combination shows employment authorization for one year from the “Admit Until Date” on the Form I-94 admission record (unless the Form I-485 application is denied or withdrawn, whichever is earlier). To determine if the I-485 was timely filed, the “Received Date” on the Form I-797C should be on or before the Form I-94 “Admit Until Date.”  Note that the Form I-797C and Form I-94 document combination does not apply to T-2, T-3, T-4, T-5, and T-6 nonimmigrants.  Instead, they may seek employment authorization through the Form I-765 application process.

In Section 1, employees who are T-1, U-1, U-2, U-3, U-4, or U-5 nonimmigrants should:

• Select “An alien authorized to work until;” and 
• Enter the extended Form I-94 “Admit Until Date” as the expiration date.

The employee may choose to present an EAD as a List A document, or the combination of a List B and List C document, to demonstrate identity and employment eligibility. If the employee presents List B and C documents such as a driver’s license for List B and a Form I-797C for List C in combination with the Form I-94 admission record, as described above, you should do the following to complete Section 2:

• Enter the employee’s List B document information;
• Under List C, enter “Employment auth. document (DHS)” as the document title;
• Enter the receipt number from the Form I-797C as the document number;
• Enter the extended Form I-94 “Admit Until Date” in the Expiration Date field; and
• Enter “Pending I-485” in the Additional Information field.

If a current employee’s Form I-9, Section 2 was completed with Form I-94 as a List C document, you may update Section 2. Enter “Pending I-485” and the extended Form I-94 “Admit Until Date” in the Additional Information field. You must reverify the employee’s employment authorization by the date you entered in the “Additional Information” field.

If the employee presents, in combination, a Form I-797C and Form I-94 to complete Section 3, you should:

• Enter “Employment auth. document (DHS)” as the document title;
• Provide the receipt number from the Form I-797C as the document number; and
• Enter the extended Form I-94 “Admit Until Date” in the Expiration Date field.
• Enter “Pending I-485” in the Additional Information field.

Extension of Status Based on Law Enforcement or Exceptional Circumstances

T or U nonimmigrants may request an extension of status based on law enforcement need or exceptional circumstances by properly filing Form I-539, Application to Extend/Change Nonimmigrant Status. The Form I-797C, Notice of Action, received after filing a Form I-539 is not an acceptable document for Form I-9 purposes. However, such individuals may file a Form I-765 application to request EAD renewal when they file a Form I-539 application, as described above."