USCIS's Form I-129 Petition for a Nonimmigrant Worker is an important one, used by U.S. employers to sponsor a foreign national for temporary employment in the United States. Employers going through this sponsorship process must figure out how to file the I-129 petition at the right time, however, or risk would-be employees being denied U.S. immigration status or the continuation of their existing legal status. This article will orient employers to the key steps in filing this petition and when they must be taken.
(For help on actually completing the required paperwork, see, Form I-129: A Legal Guide for U.S. Work Visas.)
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 and make a decision.
Preparation time will depend on the case itself. Employers should review the I-129 instructions carefully and determine how long they'll likely need to collect the supporting documents required.
In addition, they should keep the following USCIS processing and filing guidelines in mind:
Certain visa categories, like the H-1B, require employers 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.
If an I-129 petition is being filed for an 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 transfer and start work with a new employer before the I-129 petition is approved. This work authorization will end if USCIS denies the petition.
An H-1B employee will be eligible for portability if:
If the I-129 petition is for a change of employer, the employee has to still be employed with the original H-1B sponsor, or be within the 60-day maximum grace period following the end of that employment, at the time the I-129 petition is filed. This employee cannot begin working for the new employer until the start date requested on the I-129 petition.
Employers might 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 employee will need to travel outside the United States after their H-1B status expires. International travel can introduce complexities while an extension or change of employer petition is pending. If international travel is required, paying extra for premium processing might be necessary.
Several factors could delay USCIS's receipt or processing of the I-129 petition for a nonimmigrant worker. These include, but are not limited to:
If the I-129 petition is to extend the H-1B status of a current employee and is still pending after 240 days, the 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. If it starts getting close to the 240-day limit, consider making an expedite request to USCIS or upgrading to premium processing so as to avoid a gap in work authorization.
An immigration attorney can help an employer devise a strategy for filing a timely I-129 petition that allows the employee to work on the requested start date and/or maintain continuous lawful status.