i-129

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.

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. 

Form I-129 Filing Fee

Employers need to submit a filing fee of $325 with their form. If an employer is exempt from the H1-B Data Collection and Filing Fee exemption, they are required to pay an additional $1500. Employers with less than 25 employees will pay $750. This fee goes towards fraud prevention and detection.

Payment needs to be made in the form of a single check or money order. Any forms with incorrect or incomplete information require an additional fee of $200.

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 R-1

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 a worker’s stay who is currently working or 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. It is important to carefully review the precise requirements for the visa category being applied in order to avoid denials, audits, and additional fees.

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 US 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.

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 process as well.

Completing the Form

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 United States Citizenship and Immigration Services provides extensive instructions on completing the 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.

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. 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. However if there has been any change in title, pay, or duties, then these must be clarified on the form. 

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.

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” thus it can be left blank. If they have, 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 Unites 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.

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. If a certified Labor Condition Application has been filled out, then a copy of this must be included as well.

Part Six – 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.

Signatures

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.

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.

Special Consideration: H-1B Portability

For certain foreign employees under the H-1B status, there are some special considerations including “portability”. This rule allows H1-B employees to continue working while their i-129 application is being processed. This rule is valid for 240 days following the expiration of their work permit.

In order for this rule to apply to a H-1B worker, his or her application must have been filed prior to expiration of their H1-B status, the i-129 petition must be filed by an employer for a real job, and the H1-B 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 denied.

Common Delay Factors

Some of the common reason for delay of processing are 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 national 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.

A qualified immigration attorney can help avoid delays, rejections and audits that can be time-consuming and expensive.

Additional Information

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 best one to use. For Form i-129S, the current version is dated 06/02/16, and no other edition will be accepted.

If you need help completing and filing Form i-129, you can post your legal needs on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.