Timeline for Filing the I-129 Form for an Nonimmigrant Worker

USCIS's Form I-129 Petition for a Nonimmigrant Worker is an important one, used by U.S. employers to sponsor foreign nationals 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.)

Timing Issues for U.S. Employers of Foreign Workers to Consider Before Filing I-129

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:

• 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, but you can expect to wait many months. Processing times are posted on the USCIS website and should be checked regularly, as they often change.
• Premium processing is available for I-129 petitions. If the USCIS processing times prevent the employee from beginning work on the requested start date, employers can pay an additional fee and request premium processing, which reduces the processing time to 15 calendar days.

Certain visa categories, like the H-1B and E-3, require employers to submit a certified Labor Condition Application (LCA) along with the I-129 petition. The LCA will add an additional 7 days to the timeline for preparation, because it takes the Department of Labor (DOL) this long to certify it.

Special Consideration: H-1B Portability to a Different Employer

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:

• the I-129 petition is not frivolous; meaning it is being filed for a true job and with all required fees and supporting documents
• the I-129 petition is receipted in at the USCIS service center before the employee's H-1B current status expires, and
• the employee has been maintaining valid H-1B status since last arriving in the United States on an H-1B visa.

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.

Common Delay Factors in USCIS's I-129 Processing

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:

• The petition could be rejected by USCIS if the forms are not complete, the petition is mailed to the wrong filing address, the filing fee is not correct if payment is by check, or the attempted payment by credit card is rejected.
• 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 U.S. consulate for employees currently abroad who are applying for their visa outside the United States.
• The LCA might need to be resubmitted if it is not certified the first time, adding an additional 7 days to the preparation period.

If the I-129 petition is to extend the status and work authorization 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 or inquiry to USCIS if the case is beyond the posted processing time; or else upgrading to premium processing so as to avoid a gap in work authorization. Be warned, the already high premium processing fees are scheduled to go up on February 26, 2024.

How an Immigration Attorney Can Help

An experienced 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 in the United States.