i-129: Everything You Need to Know
Form I-129 is for employers looking to fill a position with a foreign national with a nonimmigrant, work visa.10 min read
Form I-129 is for employers looking to fill a position with a foreign national with a nonimmigrant, work visa. It can be also be used to change the status of a foreign national who is already within the United States, but currently not allowed to work. The exact process of filling out the petition will depend on the details of the employment and the employee's current status.
Petition For A Nonimmigrant Worker
Employers need to file Form I-129, the Petition for a Nonimmigrant Worker, to authorize a foreign national to be temporarily employed in the United States for any type of service or labor job. This designation covers any sort of job training, as well.
Employers can use this form for nearly any foreign national not currently authorized to work in the United States. Employers can also use this form for an extension or change of stay for E-1, E-2, E-3, H-1B1, or TN nonimmigrant workers.
Form I-129 Filing Fee
Employers need to submit a filing fee of $325 with their form. Unless an employer is exempt from the H-1B Data Collection and Filing Fee exemption, they are required to pay an additional $1,500. Employers with less than 25 employees will pay $750. This fee goes toward fraud prevention and detection.
Payment needs to be made in the form of a single check or money order. It is important to fill out the form correctly the first time. Any forms with incorrect or incomplete information require an additional fee of $200. Any L-1 or H-1B1 employers must pay a separate $500 fraud and detection fee. This fee is separate from petition fees and must be paid in the form of a check or money order.
The fees can also vary based on the country of origin. Employers hiring employees from Singapore or Chile must complete a Nonimmigrant Classification Based on Free Trade Agreement Supplement form and an H-1B Data Collection and Filing Fee Exemption Settlement form.
Types of Workers That Can Be Sponsored Using Form I-129
Form I-129 can be filed for the following class of workers:
- Temporary workers in the United States on H-1B, H-1C, H-2A or H-3 status
- Foreign nationals of extraordinary ability and their assistants under the O-1 and O-2 designation, respectively
- Artists, athletes, entertainers, and any supporting staff who qualify under P-1, P-2, P-3 status
- Cultural exchange visitors under Q-1
- Religious workers under the R-1 status
Purposes of I-129 Petition
The purpose of I-129 is to sponsor a foreign national for a nonimmigrant work visa. It can also be used to extend an already approved worker's stay who is currently working or to change their nonimmigrant status. It is also used to provide updates on any changes in a nonimmigrant, working alien's employment status in terms of responsibilities, title, or salary.
I-129 Petition Format
The I-129 petition asks for information about the employer and the job responsibilities of the foreign national. The petition also asks for detailed biographical information about the foreign national and their suitability for the position. In total, it is about six pages long.
Depending on the visa category, there are additional supplemental pages that will need to be filled out, and supporting documents will need to be provided. Employers can skip over any supplemental documents that are not related to the employment situation. It is important to carefully review the precise requirements for the visa category being applied in order to avoid denials, audits, and additional fees.
The employer will need to include supporting documents with the I-129 petition. The exact documents needed will depend entirely on the nonimmigrant status. It is important to research which supporting documents are required before submitting the petition form. Always make sure you are downloading the latest form to ensure it includes all of the necessary information.
How to Include Family Dependents in a Nonimmigrant Visa-Related Application
While the employer is responsible for filing Form I-129, foreign nationals will file forms to secure visas for any dependents. If the dependent is not in the United States, the dependent will have to apply at the U.S. consulate with Form I-797. They will also need a copy of the foreign national's I-129 and proof of their relationship with the foreign national.
Dependents outside of the United States have to wait for approval of I-129 before applying. If they are in the United States, they can fill out Form I-539, Application to Extend/Change Nonimmigrant Status and submit it concurrently with the I-129 petition. The dependent can also wait until after the initial I-129 has been submitted to submit their own form.
Reasons for Getting Legal Help
Many employers get legal help when filing Form I-129 given the complexity of the application and the small margin of error. Any errors in the application can lead to denials and additional fees while delaying employment. Given the different rules for different visa categories, filling out the petition can be a lengthy and complex process, as well. The application process is approximately 26 pages long, not including the instruction pages.
There may also be specific form requirements based on an applicant's country of origin. Depending on the specific situation, it might make sense to work with an immigration lawyer. An immigration lawyer can assist the employer in reviewing the requirements and submitting the petition form.
Steps to Complete Form I-129
The United States Citizenship and Immigration Services (USCIS) has the right to deny an application that is incomplete or incorrectly filled out. Even if petitions are approved, complications can arise down the line with incorrect or incomplete information that can lead to heavy fines and complications for the employer and foreign national. Therefore, it is necessary for employers to ensure that all forms are being correctly filled out with accurate information. The USCIS provides extensive instructions on completing the form. It might also be a good idea to consult with an immigration lawyer before submitting the petition form.
Part One: Petitioner Information
The first part of the application asks for information about the employer who is completing and filing the form. This includes information about the company, its industry, its workforce, and its reasons for hiring a foreign national for the position. On the application, the foreign employee is regarded to as the beneficiary.
Part Two: Information About the Petition
The second part of the form involves selecting the status of the foreign national and any changes to it if the form is approved. It also requests that the applicant include any information about the requested actions of the USCIS.
If the foreign national being hired is a new employee, then the beneficiary must be identified as such. If the employee is currently in the same job and their status needs to be extended, then the petitioner must state that the foreign national's approved employment will continue without any change to status. This falls into the "continuation of previously approved employment without change with the same employer."
However, if there has been any change in title, pay, or duties, then these must be clarified on the form under "change in previously approved employment." If the employee has any significant changes to the employment, they will file this under the "amended petition" section. If the employer will have a new employer with the same status, they will file under "new concurrent employment." Finally, a "change of employer" indicates the employee is requesting to change their employer and extend their current nonimmigrant status.
The “Requested Action” section will basically tell the United States Citizenship and Immigration Services what the petitioner is trying to achieve, whether that is an extension, change of status, or change in job duties. Any errors to this section can result in unnecessary travel needs.
Part Three: Beneficiary Information
The next part asks for detailed information about the beneficiary. This part includes biographical information, employment history, and information about their location in the United States. Foreign nationals who have not applied for a green card will not have an “A-number” and can be left blank. If they have received an A-number, then they will have a nine-digit alien registration number which will need to be included.
Part Four: Processing Information
This part of the petition involves filling out information necessary for the processing of the application. For example, it asks for the location of the nearest United States consulate where the application will be processed, and the foreign national would have to appear if the beneficiary is located outside of the United States. This part of the application also asks for information about the foreign national's country of origin.
Another component of part four is providing information about the beneficiary's past status and visits to the United States, whether as a tourist, exchange student, or dependent. Therefore, it is essential that the employer clarify these matters with the beneficiary before filing the petition as any discrepancies can lead to a denial.
This part of the application process does allow employees to request third-party processing in nearby countries like Canada and Mexico in some cases. However, it is best to avoid this as delayed application statuses can leave employees stranded in these nearby countries. This method should only be used when it is not recommended that the employee await approval in their home country.
Part four of the application process also requests information about the beneficiaries' J-1 or J-2 status. Immigrants under a J-1 or J-2 status have a two-year foreign residence requirement and cannot petition for an I-129 unless they first request a waiver.
Part Five: Information About the Proposed Employment and Employer
In part five, the employer will have to provide details about the position, including job duties, desired experience, pay, and working conditions. The application will also request information about pay and employment benefits. If a certified Labor Condition Application (LCA) has been filled out, then a copy of this must be included as well. The LCA case number should also accompany the petition.
Export Control Certification
Employers must disclose whether the beneficiary will be exposed to any sort of proprietary technology or data that is in the national interest. If this is the case, then the employer must obtain a license in order to continue with the filing process. The employer should consult with an attorney if there is any doubt about this matter. This is to safeguard patent-protected technology or sensitive information.
The employer must add his or her signature to the petition, verifying that the information is accurate. This includes all supplementary information which is dependent on the visa category of the beneficiary. If an attorney completed the forms, then his or her signature is also required. The USCIS requests that all signatures are completed in blue ink.
Where to File Form I-129
Form I-129 will generally be filed with the service center at the training center. There are, however, exceptions to filing for NAFTA countries, including Mexico and Canada. It is also important to choose the appropriate form based on if you are extending, changing, or reinstating your I-129 status.
Timing Issues for Employers to Consider
Preparation time for Form I-129 depends on a number of factors, such as the visa category, location of the foreign national, type of position being filled, and the employer's industry. Processing times also vary based on these factors. Typically, petitions for foreign nationals outside of the United States take the longest.
Employers should take all of these factors into consideration prior to starting the process. It can take a considerable amount of time to collect all the information, supporting documents, and filling out I-129 and supplementary forms. However, the petition cannot be filed more than six months prior to the position's start date.
The United States Citizenship and Immigration Services website posts estimates of processing times for different categories based on current workload. Employers also have the option of premium processing with an additional fee which cuts the processing time down to 15 days.
If an employer requires a certified Labor Condition Application (LCA), an additional seven days should be added to the timeline. This is approximately how long it takes the LCA to certify the application.
Special Consideration: H-1B Portability
For certain foreign employees under the H-1B status, there are some special considerations including portability. This rule allows H-1B employees to continue working while their I-129 application is being processed. In some cases, it also allows employees to start working before their application is approved. This rule is valid for 240 days following the expiration of their work permit.
In order for this rule to apply to an H-1B worker, his or her application must have been filed and received prior to the expiration of their H-1B status, the I-129 petition must be filed by an employer for a real job, and the H-1B status must not be revoked for any reason.
In the event that the I-129 is being filed for a different job than the foreign national's current employer, he or she can only remain working at their current job. If they lose this job for any reason while the I-129 is pending, then they are not eligible to work until the petition has been approved. Additionally, the foreign national must stop working if the I-129 is still pending after the 240 days. The beneficiary must remain in the United States until a decision is made. If the form is denied at any point during the process, the foreign national must stop working.
International Travel With an I-129
This process can be complicated even further if the employee plans to travel out of the country. The employer must be made aware of any need to travel internationally after the H-1B visa has expired. In most cases, international travel is not permitted while the employee is awaiting approval of the petition.
If the employee plans to travel during an active I-129 immigration status, they should always bring their passport, visa, form I-797 USCIS approval, and a copy of the approved form I-129S if it applies.
Common Delay Factors
Some of the common reasons for a delay in processing is a rejection due to incomplete information or not including the proper fee. This can result in starting the process from the beginning. If the United States Citizenship and Immigration Services has reason to doubt some of the information on the application, they may issue a Request for Evidence, which will require a response from the employer.
For foreign nationals outside of the United States, processing typically takes longer and often depends on their local consulate. For certain visa categories, additional supplementary information needs to be provided in order to file the petition. Additionally, if the LCA is not approved the first time due to missing information or errors, it might need to be resubmitted for approval, further delaying the petition process.
A qualified immigration attorney can help avoid delays, rejections, and audits that can be time-consuming and expensive.
Currently, the United States Citizenship and Immigration Services is accepting Form I-129 versions dated 03/26/15 and 10/24/14. However, the current edition is 08/13/15, and this is the best one to use. For Form I-129S, the current version is dated 06/02/16, and no other edition will be accepted.
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