Form I-129

Form I-129, Petition for a Nonimmigrant Worker is a form submitted to the United States Citizenship and Immigration Services used by employers or prospective employers to obtain (or amend the details of) a worker on a nonimmigrant visa status. Approval of the form makes the worker eligible to start or continue working at the job (on or after the indicated start date) if already in the United States. If the worker is not already in the United States, an approved Form I-129 may be used to submit a visa application associated with that status. The form is 36 pages long (8 pages for the main form, and the remaining pages for various supplements not all of which may be applicable to every petition) and the instructions for the form are 29 pages long.[1][2] It is one of the many USCIS immigration forms.

Reasons for filing Form I-129

Broadly, the Form I-129 is used to either file for a new status or a change of status. In more detail, the following is a complete list of reasons for filing the form:[2][3]

Visa statuses for which the form is required or may be used

Visa statuses that require the form for initial employment as well as extension or change of status

For the following statuses, a Form I-129 must always be filed for initial employment as well as for extension of status or change to employment details:[1][4]

Visa Quick description Supplements needed on Form I-129 Initial evidence needed (not an exhaustive list) Multiple beneficiaries allowed on single petition?[5]
H-1B visa Temporary workers for specialty occupations that require a bachelor's degree or equivalent part of the H classification supplement (pages 13–14, 19-21) Labor Condition Application approved by the U.S. Department of Labor Employment & Training Administration Office of Foreign Labor Certification[6] No
H-1B2 visa Exceptional services relating to a cooperative research and development project administrated by the U.S. Department of Defense part of the H classification supplement No
H-1B3 visa Fashion model of prominence part of the H classification supplement Labor Condition Application approved by the U.S. Department of Labor Employment & Training Administration Office of Foreign Labor Certification[6] No
H-2A visa Temporary agricultural workers part of the H classification supplement (pages 13–17) H-2A Temporary Labor Certification (TLC) obtained from the U.S. Department of Labor Employment & Training Administration Office of Foreign Labor Certification Yes
H-2B visa Temporary non-agricultural workers for non-specialty occupations part of the H classification supplement (pages 13–17) H-2B Temporary Labor Certification (TLC) obtained from the U.S. Department of Labor Employment & Training Administration Office of Foreign Labor Certification Yes
H-3 visa Temporary visa for trainees or special education workers who intend to perform their eventual job outside the United States part of the H classification supplement (page 13, first line of page 14, page 18) Yes
L-1 visa Temporary visa for employees at companies with both US and foreign offices L classification supplement (pages 22–25) No
O visas (O-1, O-2) O-1: Temporary visa for an employee who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry. O-2: Temporary visa for somebody who assists an O-1 athlete or artist O and P classification supplement (pages 26–28) Consultation opinion[7] Only for O-2
P visas (P-1, P-1S, P-2, P-2S, P-3, P-3S) Temporary visa for individual or team athletes (P-1), or artists or entertainers who are part of a reciprocal exchange (P-2) or culturally unique (P-3) program. Visas for people providing support to these are called P-1S, P-2S, and P-3S respectively O and P classification supplement (pages 26–28) Consultation opinions[7] Yes
Q-1 visa International cultural exchange alien Q classification supplement (page 29) Yes
R-1 visa Alien in a religious occupation R classification supplement (pages 30–34) No

Visa statuses that require the form only for change of status

For visa statuses associated with free trade agreements, a Form I-129 is needed only if the worker is transitioning status while within the United States. Workers who are outside the United States can directly apply for a visa based on their job offer and other supporting documents. The statuses include:

Visa Countries it applies to Corresponding free trade agreement Type of workers
E-1 visa All treaty countries[8] Trader
E-2 visa All treaty countries[8] Investor
E-3 visa Australia Australia-United States Free Trade Agreement Worker, similar to the H-1B visa, but with much more flexibility with respect to switching jobs.
H-1B1 visa Chile, Singapore Chile-United States Free Trade Agreement, Singapore-United States Free Trade Agreement Specialty occupations allowed for H-1B (that requires an undergraduate education or equivalent) plus some additional explicitly listed occupations
TN visa Canada, Mexico North American Free Trade Agreement A narrow list of specialty occupations (more narrow than for the H-1B).

Timeline and details

Application can be made at most six months before the start date

Form I-129 cannot be filed more than 6 months before the start date of employment on the requested status.[9]

This is particularly important for the H-1B visa and associated status. There is a cap of 65,000 for new cap-subject H-1Bs every Fiscal Year, where the Fiscal Year begins in October. Due to the six month limit for Form I-129, the earliest that somebody can apply for a H-1B for a given Fiscal Year is the beginning of April. Due to the fierce competition for H-1B slots, slots for a given Fiscal Year can get filled in April itself, and those who want a serious shot at getting H-1B status may need to apply early in April to have a high chance of getting the visa.

Premium processing: Form I-907

Further information: Premium Processing Service

Form I-129 petitioners can optionally request the Premium Processing Service by submitting Form I-907.[10] Premium processing is only available for this form and for Form I-140. It costs $1225, and does not provide any preferential treatment in the lottery for cap-subject visas. According to the United States Citizenship and Immigration Services website, USCIS guarantees 15 calendar day processing to those petitioners or applicants who choose to use this service or USCIS will refund the Premium Processing Service fee. If the fee is refunded, the relating case will continue to receive expedited processing.[4] The time begins from the receipt of Form I-907 and the associated fee. Form I-907 may be filed along with Form I-129, or electronically as a standalone form for a previously filed Form I-129.[4]

Premium processing is not available for H-2B visa applicants and is also available to R-1 visa applicants only if the petitioner has passed an on-site inspection.[4]

Filing fee

As of 2015, the filing fee for Form I-129 is $325.[1] Those applying for premium processing also need to pay the $1225 premium processing fee.[4][10] There may be additional fees associated with the type of classification being sought. For instance, first-time cap subject H-1B visa applicants need to pay an additional fee of $750 or $1500 for retraining US workers as well as a $500 anti-fraud fee.[11]

Filing addresses

Form I-129 must be filed by paper, along with fees and associated supporting documents, to the appropriate Service Center (either the California Service Center or the Vermont Service Center) based on the petitioner's geographic location. The mailing address used varies based on the visa classification for which Form I-129 is being filed. Form I-907 may be included along with Form I-129 or filed separately electronically later.[12]

Cancellation

It is possible to request cancellation of a pending Form I-129 petition. However, the associated fees are non-refundable.[13]

H-1B portability rule

Per the American Competitiveness in the 21st Century Act (AC21) of 2000, people who have been in valid H-1B status can start a new job, or extend their stay, on H-1B after submitting a Form I-129, even before that Form is approved. The following are the conditions:[9]

People can continue in such employment (while waiting to hear on the decision regarding their Form I-129) for up to 240 days.[9]

Relation with visa process

For people outside the United States

For the visa classifications that require Form I-129, a person outside the United States needs to apply for the corresponding visa. The visa application must include an approved Form I-129 as well as other supporting documents necessary for the visa status.[14] Having an approved Form I-129 does not guarantee that one will get the visa.[15] Once the person has the visa, he or she may use that in conjunction with the approved Form I-129 and other supporting documents to seek entry into the United States at a designated port of entry. The official at the port of entry issues a Form I-94 with either a specified end date (that is usually the end date of the work authorization) or "D/S" or "EOS" (indicating "duration of status" or "end of status" so the person can stay in the United States as long as he or she is in valid status).

For people lawfully present in the United States at the start date of employment

A person who is already in the United States at the date when employment starts may simply start employment with an approved Form I-129.

Although changes of status generally require a person to file Form I-539 with the USCIS, those filing Form I-129 to change status do not additionally need to file Form I-539.[16]

Visa and change of status for dependents

For each of the classifications for which Form I-129 can be filed, there are associated visa classes for dependents (spouses and minor children), such as the H-4 visa for H visa holders and the O-3 visa for O visa holders. Those already present in the United States who want to transition to dependent status can file Form I-539 for change of status.[16] Those outside the United States need to apply for the appropriate dependent visa.

Subsequent visa applications

If somebody transitions to the new status acquired through Form I-129 while in the United States, the person's stay in the United States continues to be valid. However, the person's entry visa, acquired for an earlier status, is no longer valid. This means that whenever the person next leaves and re-enters the United States, the person needs to re-apply for the appropriate visa just like people entering for the first time on that status.

Typically, when an entry visa is granted associated with a given work authorization, the visa is a multiple-entry visa and the date range of validity for the visa includes the entire time period for the work authorization; however, this may not always be the case. Depending on the validity of the visa and whether it is a single-entry or multiple-entry visa, the applicant may need to apply for visas multiple times if traveling outside the United States repeatedly. Each of these visa applications will rely on the same approved Form I-129 that is used as the basis for the worker's current work authorization; those who have already started employment may also need to submit additional proof showing that they have been working for the employer their status is associated with since the start date.[17][18] Some work authorization statuses obtained through Form I-129 (such as the H-1B visa status) are eligible for automatic visa revalidation for brief visits to Canada and Mexico.

Distinction between what Form I-129 adjudication and visa evaluation check for

The USCIS adjudication of the Form I-129 petition evaluates a narrow set of questions surrounding the nature of the petitioner's business, the beneficiary's qualifications, and the wages and working conditions on the job. In addition, for cap-subject visa categories, the USCIS also uses a lottery to determine whether the petition is selected to be considered.

The USCIS does not attempt to adjudicate questions such as whether the beneficiary has non-immigrant intent, or whether the beneficiary may be inadmissible on grounds of a criminal past, national security considerations, or previous immigration violations.

In the case that the beneficiary is already present in the United States legally at the start date of employment, the beneficiary can start working based on the approved Form I-129. In particular, the beneficiary need not demonstrate to anybody that he or she has non-immigrant intent and that he or she is not inadmissible. However, if the beneficiary is not in the United States (or whenever the beneficiary next travels outside the United States), then the beneficiary needs to apply for a visa to enter the United States, and the consular officer evaluating the visa has three broad grounds for not accepting the application:

Thus, the consular officer not only re-evaluates the petition (perfunctorily) but also performs some additional checks on the applicant that were not part of the Form I-129 adjudication process.

Relation with other forms

Form I-129 is unrelated to Form I-129F, a form used by the fiancé(e)s of citizens and permanent residents to acquire fiancé(e) non-immigrant status, usually with the intention to file for Adjustment of Status after arriving in the United States.[19]

References

  1. 1 2 3 "I-129, Petition for a Nonimmigrant Worker". United States Citizenship and Immigration Services. Retrieved April 3, 2015.
  2. 1 2 "Form I-129: A Legal Guide for U.S. Work Visas". Nolo, All Law. Retrieved April 4, 2015.
  3. ↑ "Petition for a Foriegn [sic] Worker, Form I-129". USCIS Processing Times. Retrieved April 3, 2015.
  4. 1 2 3 4 5 "How Do I Use the Premium Processing Service?". United States Citizenship and Immigration Services. Retrieved April 4, 2015.
  5. ↑ Kendall, Emily. "Can You File One I-129 Petition for Multiple Workers? For some types of work visas, employers may save time and money by filing one visa petition for more than one worker. There are some downsides though.". Retrieved April 11, 2016.
  6. 1 2 "H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models". United States Citizenship and Immigration Services. Retrieved April 11, 2016.
  7. 1 2 "O-1 Visa: Individuals with Extraordinary Ability or Achievement". United States Citizenship and Immigration Services. Retrieved April 11, 2016.
  8. 1 2 "Treaty Countries". United States Department of State. Retrieved April 4, 2015.
  9. 1 2 3 Yializis, Cynthia. "Timeline For Filing the I-129 Form for an Immigrant Worker". AllLaw. Retrieved April 4, 2015.
  10. 1 2 "I-907, Request for Premium Processing Service". United States Citizenship and Immigration Services. Retrieved April 4, 2015.
  11. ↑ "H1B Visa Attorney Services". usavisanow.com. Retrieved April 4, 2015.
  12. ↑ "Direct Filing Addresses for Form I-129, Petition for Nonimmigrant Worker". United States Citizenship and Immigration Services. Retrieved April 4, 2015.
  13. ↑ "Can an employer withdraw the Form I-129 (expedited request) from the USCIS?". Avvo. April 16, 2014. Retrieved April 4, 2015.
  14. ↑ "Temporary Worker Visas". United States Department of State, Bureau of Consular Affairs. Retrieved April 4, 2015.
  15. ↑ "All H-1B FAQ". ImmiHelp. Retrieved April 4, 2015.
  16. 1 2 "Instructions for Form I-539, Application to Extend/Change Nonimmigrant Status" (PDF). United States Citizenship and Immigration Services. Retrieved April 4, 2015.
  17. ↑ "Travel and Re-Entry to the U.S. on H-1B or H-4 Visas". Retrieved January 25, 2016.
  18. ↑ "What is H1B Visa?". Retrieved January 25, 2016.
  19. ↑ "I-129F, Petition for Alien Fiancé(e)". United States Citizenship and Immigration Services. Retrieved April 4, 2015.
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