Timeline For Filing the I-129 Form for an Immigrant Worker

Failure to file the I-129 form at the right time may lead to denied U.S. immigration status or the continuation of existing legal employment status.

USCIS Form I-129 Petition for a Nonimmigrant Worker is filed by U.S. employers sponsoring a foreign national for temporary employment in the United States. It is essential for employers going through this process to understand the timeline for filing the I-129 petition. Unless employers file at the right time, the would-be employees may be denied U.S. immigration status or the continuation of their existing legal status. (For help on completing required paperwork, please see, "Form I-129: A Legal Guide for U.S. Work Visas".)

Timing Issues for Employers to Consider

Employers need to take into account the amount of time it will take to prepare the I-129 petition, as well as how long U.S. Citizenship and Immigration Services (USCIS) will likely take to process it.

Preparation time will vary depending on each case. Employers should review the I-129 instructions carefully and determine how long it will take to collect the supporting documents required for their particular petition. In doing so, they should also keep the following USCIS processing and filing guidelines in mind:  

  •  The I-129 petition cannot be filed earlier than six months before the employee’s start date.
  • USCIS processing times for I-129 petitions vary depending on where the petition is    filed and the nonimmigrant status being requested. Processing times are posted on the USCIS website and should be checked regularly, as they are subject to change.
  • Premium processing is available for I-129 petitions. If the USCIS processing times prevent the foreign employee from beginning work on the requested start date, employers can pay an additional fee and request premium processing. Premium processing reduces the processing time to 15 days.

Certain visa categories, like the H-1B, require the employer to submit a certified Labor Condition Application (LCA) along with the I-129 petition. The LCA will add an additional seven days to the timeline for preparation, because it takes the Department of Labor (DOL) this long to certify it.

Special Consideration: H-1B Portability

If an I-129 petition is being filed for a foreign employee who is already in the United States in H-1B status, the timeline will be affected if the rule of "portability" applies. Portability allows certain H-1B employees to continue working with their current employer, or to transfer and start work with a new employer, before the I-129 petition is approved. This work authorization is granted for a period of 240 days after the employee’s H-1B status expires.

A foreign employee will be eligible for portability if the following requirements are met:

  • The I-129 petition is not frivolous; meaning it is being filed for a true job
  •  The I-129 petition is receipted in at the USCIS service center  before  the foreign employee’s H-1B status expires; and
  • The foreign employee has been maintaining valid H-1B status the entire time.

If the I-129 petition is for a change of employer, the foreign employee has to still be employed with the original H-1B sponsor at the time the I-129 petition is filed. This foreign employee cannot begin working for the new employer until the start date requested on the I-129 petition is met.

If the I-129 petition is still pending after the 240-day period has passed, the foreign employee must stop working and remain in the United States until USCIS issues a final decision. The employee must also stop working if USCIS denies the I-129 petition at any time during the 240-day period.

Employers may feel less rushed, or not see the need for premium processing, if portability applies. Employers should still be aware of factors that could cause delays.

They should also determine whether the foreign employee will need to travel outside the United States after his or her H-1B status expires.    International travel is generally not permitted while an extension or change of employer petition is pending. If international travel is required, premium processing may be necessary.

Common Delay Factors

Several factors could delay the receipt or processing of the I-129 petition. These factors include, but are not limited to:

  • The petition could be rejected by USCIS if the forms are not complete or the filing fee is not correct.
  • USCIS can issue a Request for Evidence (RFE) after the petition is receipted in, requiring the employer's response, which will delay processing.
  • Delays can occur at the consulate for foreign employees applying for their visa outside the United States.
  • The LCA may need to be resubmitted if it is not certified the first time, adding an additional seven days to the preparation period.

An immigration attorney can help an employer devise a strategy for filing a timely I-129 petition that allows the foreign employee to work on the requested start date and/or maintain continuous lawful status.

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