Form I-129, entitled Petition for a Nonimmigrant Worker, is a document that is submitted by a U.S. employer who wishes to sponsor a foreign national for temporary employment in the United States. The form is issued by U.S. Citizenship and Immigration Services (USCIS).
The below guidance covers the proper usage of the form and step-by-step tips for completing it. (For an overview of the entire petition process, please see, Timeline For Filing the I-129 Form for an Immigrant Worker.
The I-129 petition can be filed for the following employment-based nonimmigrant visa categories:
As alluded to above, the I-129 petition can be used for more than one purpose, including:
The primary I-129 petition is several pages long, with additional pages for the various visa category supplements. (For example, an employer seeking to hire someone on an E-1 visa would fill out the E-1 supplement, and an employer seeking to hire someone on a TN visa would fill out the Trade Agreement Supplement.)
The form primarily asks for information about the employer and the position to be filled by the foreign national. There is one section for the foreign national's biographic information.
The I-129 petition will also require the employer to submit various supporting documents, which also depend on the nonimmigrant status being sought. The form's instructions should be read carefully before preparing the petition, for guidance on how to complete the petition and how to collect the supporting documents.
Dependents of employer-sponsored foreign nationals are responsible for securing the corresponding dependent visa. If the dependent is in the United States, Form I-539 Application to Extend/Change Nonimmigrant Status must be prepared for that person, and can be submitted with the employer's I-129 petition, or at a later date after the I-129 petition has been receipted in.
A dependent who is outside the United States can apply for the dependent visa at the U.S. consulate. The dependent will have to provide a copy of the I-129-based I-797 approval notice and proof of a relationship with the primary visa holder.
Each nonimmigrant visa category for the I-129 petition has its own set of legal requirements. Employers should consider consulting with an immigration attorney to review these requirements and to ask for assistance in preparing and filing the petition.
It is essential for U.S. employers to understand how to complete Form I-129. U.S. Citizenship and Immigration Services (USCIS) can reject the petition if incomplete, and any mistakes can cause complications with the employee's visa status after the petition is approved.
For an overview of the entire process, see Timeline For Filing the I-129 Form for an Immigrant Worker.
USCIS provides an instruction packet for Form I-129, available on its website. While these instructions are very thorough, employers should pay special attention to the sections outlined below. (This guidance is based on the 03/10/21 edition of the form.)
Part one of Form I-129 asks for information about the petitioner; in other words, the employer. The foreign national employee is referred to as the "beneficiary" throughout Form I-129.
Part two of Form I-129 asks for information about the nonimmigrant status being requested and the action the employer wants USCIS to take. The employer must enter the visa category requested (such as "H-1B" for a specialty worker) and check the basis for this classification. If this is a new job for a new employee, the basis for classification will be "new employment." "New employment" will also be the basis for classification if the employer is requesting a new visa classification for an existing employee.
If the employee is continuing in the same job with no changes, the basis for classification will be "continuation of previously approved employment without change with the same employer." If there has been a non-material change to the job, like a new job title without a significant change in job duties, the basis for classification will be "change in previously approved employment." If there is a material change to the job, the basis for classification will be "amended petition."
If the employee is working with another employer in the same status, the basis for classification will be "new concurrent employment." If the employee is changing employers and extending his or her current nonimmigrant status, the basis for classification will be "change of employer."
The employer must be careful not to make a mistake when completing the "Requested Action" section. A mistake here could result in unnecessary travel. For example, if the employer wants an in-country action but selects option "(a)" for the employee to obtain a visa, the employee will have to travel outside the U.S. before assuming the new status, or the employer will have to submit another petition along with a new filing fee.
Part three of Form I-129 asks for information about the beneficiary who will be receiving the visa. The information requested is relatively straightforward. The A-number is a nine-digit (formerly eight-digit) alien registration number that is assigned only to certain foreign nationals. Most employees who have not applied for permanent residence will not have an A-number. If this is the case, this question can be left blank.
Part four of Form I-129 asks a series of questions needed to process the I-129 petition. One of these asks for the location of a U.S. consulate or inspection facility where the employee can apply for the visa if outside the United States. This section should always be completed with the employee's home country information, even if the requested action is in the United States. It is possible for an in-country request to be denied, even when the petition is approved. If this happens, USCIS needs to know where to send the petition.
Employees will sometimes request third-country processing in Canada or Mexico. This should ordinarily be avoided. If visa processing is delayed for any reason, the employee risks being stuck in that country for an extended period of time. Third-country processing should be considered only if there are compelling circumstances preventing the visa application in the home country.
Part four also asks whether the beneficiary has ever been in the United States as a J-1 exchange visitor or J-2 dependent. If this is a new petition for someone in J-1 or J-2 status, the employer needs to ensure that this person is not subject to the two-year foreign-residence requirement. A J-1 or J-2 visa holder cannot change status to H-1B or L-1 if subject. If the employee is subject to this requirement, the employer should request proof that the employee has received a waiver and does not, therefore, need to spend two years in his or her country before returning to the United States.
Part five of Form I-129 asks for specific information about the employer and the proposed employment. If a certified Labor Condition Application (LCA) is required as part of the application process, the information in this section should be the same as the information in the LCA. The LCA case number will also need to be provided; it's found at the bottom of the LCA.
If an LCA is not required, "not applicable" can be noted in the case number section.
Part five also asks the employer to identify other compensation being provided to the employee. If the employee will receive benefits, this should be noted here.
Employers are required to disclose whether a license is required from the federal government to release technology or technical data to a foreign employee. If the employer deals in technology that might warrant such a license, there should be a designated official within the organization to make this determination. If there is no such official, the employer should consult with an attorney about how to complete this section.
An authorized representative of the employer should sign part seven of Form I-129. If an attorney completed the petition, they should sign part eight. USCIS encourages all signatures to be made in black ink.
The I-129 petition must include a supplement that corresponds to the requested visa classification. These are included in the Form I-129 packet. The employer does not need to submit supplement pages that are unrelated to the requested visa classification.
See our guide to the required supplements for details on that step.