Form I-129

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Form I-129, Petition for a Nonimmigrant Worker is a form submitted to the United States Citizenship and Immigration Services used by employers or prospective employers to obtain (or amend the details of) a worker on a nonimmigrant visa status. Form I-129 is used to either file for a new status or a change of status, such as new, continuing or changed employer or title; or an amendment to the original application.[1] Approval of the form makes the worker eligible to start or continue working at the job (on or after the indicated start date) if already in the United States. If the worker is not already in the United States, an approved Form I-129 may be used to submit a visa application associated with that status. The form is 36 pages long (8 pages for the main form, and the remaining pages for various supplements not all of which may be applicable to every petition) and the instructions for the form are 29 pages long.[2] It is one of the many USCIS immigration forms.

Visa statuses for which the form is required or may be used

Visa statuses that require the form for initial employment as well as extension or change of status

For the following statuses, a Form I-129 must always be filed for initial employment as well as for extension of status or change to employment details:[2][3]

Visa Quick description Supplements needed on Form I-129 Initial evidence needed (not an exhaustive list) Multiple beneficiaries allowed on single petition?
H-1B visa Temporary workers for specialty occupations that require a bachelor's degree or equivalent part of the H classification supplement (pages 13–14, 19-21) Labor Condition Application approved by the U.S. Department of Labor Employment & Training Administration Office of Foreign Labor Certification[4] No
H-1B2 visa Exceptional services relating to a cooperative research and development project administrated by the U.S. Department of Defense part of the H classification supplement No
H-1B3 visa Fashion model of prominence part of the H classification supplement Labor Condition Application approved by the U.S. Department of Labor Employment & Training Administration Office of Foreign Labor Certification[4] No
H-2A visa Temporary agricultural workers part of the H classification supplement (pages 13–17) H-2A Temporary Labor Certification (TLC) obtained from the U.S. Department of Labor Employment & Training Administration Office of Foreign Labor Certification Yes
H-2B visa Temporary non-agricultural workers for non-specialty occupations part of the H classification supplement (pages 13–17) H-2B Temporary Labor Certification (TLC) obtained from the U.S. Department of Labor Employment & Training Administration Office of Foreign Labor Certification Yes
H-3 visa Temporary visa for trainees or special education workers who intend to perform their eventual job outside the United States part of the H classification supplement (page 13, first line of page 14, page 18) Yes
L-1 visa Temporary visa for employees at companies with both US and foreign offices L classification supplement (pages 22–25) No
O visas (O-1, O-2) O-1: Temporary visa for an employee who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry. O-2: Temporary visa for somebody who assists an O-1 athlete or artist O and P classification supplement (pages 26–28) Consultation opinion[5] Only for O-2
P visas (P-1, P-1S, P-2, P-2S, P-3, P-3S) Temporary visa for individual or team athletes (P-1), or artists or entertainers who are part of a reciprocal exchange (P-2) or culturally unique (P-3) program. Visas for people providing support to these are called P-1S, P-2S, and P-3S respectively O and P classification supplement (pages 26–28) Consultation opinions[5] Yes
Q-1 visa International cultural exchange alien Q classification supplement (page 29) Yes
R-1 visa Alien in a religious occupation R classification supplement (pages 30–34) No

Visa statuses that require the form only for change of status

For visa statuses associated with free trade agreements, a Form I-129 is needed only if the worker is transitioning status while within the United States. Workers who are outside the United States can directly apply for a visa based on their job offer and other supporting documents. The statuses include:

Visa Countries it applies to Corresponding free trade agreement Type of workers
E-1 visa All treaty countries[6] Trader
E-2 visa All treaty countries[6] Investor
E-3 visa Australia Australia-United States Free Trade Agreement Worker, similar to the H-1B visa, but with much more flexibility with respect to switching jobs.
H-1B1 visa Chile, Singapore Chile-United States Free Trade Agreement, Singapore-United States Free Trade Agreement Specialty occupations allowed for H-1B (that requires an undergraduate education or equivalent) plus some additional explicitly listed occupations
TN visa Canada, Mexico North American Free Trade Agreement A narrow list of specialty occupations (more narrow than for the H-1B).

Relation with visa process

For the visa classifications that require Form I-129, a person outside the United States needs to apply for the corresponding visa. The visa application must include an approved Form I-129 as well as other supporting documents necessary for the visa status.[7]

For each of the classifications for which Form I-129 can be filed, there are associated visa classes for dependents (spouses and minor children), such as the H-4 visa for H visa holders and the O-3 visa for O visa holders. Those already present in the United States who want to transition to dependent status can file Form I-539 for change of status.[8]

Whether an individual holds a single-entry or multiple-entry visa, the applicant may need to apply for visas multiple times if traveling outside the United States repeatedly. Each of these visa applications will rely on the same approved Form I-129 that is used as the basis for the worker's current work authorization; those who have already started employment may also need to submit additional proof showing that they have been working for the employer their status is associated with since the start date.[9][10]

Distinction between what Form I-129 adjudication and visa evaluation check for

The USCIS adjudication of the Form I-129 petition evaluates a narrow set of questions surrounding the nature of the petitioner's business, the beneficiary's qualifications, and the wages and working conditions on the job. In addition, for cap-subject visa categories, the USCIS also uses a lottery to determine whether the petition is selected to be considered.

The USCIS does not attempt to adjudicate questions such as whether the beneficiary has non-immigrant intent, or whether the beneficiary may be inadmissible on grounds of a criminal past, national security considerations, or previous immigration violations.

In the case that the beneficiary is already present in the United States legally at the start date of employment, the beneficiary can start working based on the approved Form I-129. In particular, the beneficiary need not demonstrate to anybody that he or she has non-immigrant intent and that he or she is not inadmissible. However, if the beneficiary is not in the United States (or whenever the beneficiary next travels outside the United States), then the beneficiary needs to apply for a visa to enter the United States, and the consular officer evaluating the visa has three broad grounds for not accepting the application:

  • Section 212(d) grounds of inadmissibility for reasons such as criminal background, past immigration violations, or association with terrorist organizations. Note that the Form I-129 petition does not check for these.
  • Section 214(b): Failure to establish non-immigrant intent. Note that the Form I-129 petition does not attempt to evaluate this.
  • Section 221(g) (quasi-refusal): Here, the consular officer thinks the Form I-129 petition either should not have been approved or is no longer approvable. If issuing this quasi-refusal, the consular officer returns the petition to USCIS for revalidation/revocation, along with his/her reasons. The USCIS may either revalidate the petition or issue a Notice of Intent to Revoke to the petitioner.

Thus, the consular officer not only re-evaluates the petition (perfunctorily) but also performs some additional checks on the applicant that were not part of the Form I-129 adjudication process.

Relation with other forms

  • Form I-140 is a similar form filed by an employer or prospective employer for a worker for an employment-based visa (EB-1 visa, EB-2 visa or EB-3 visa). These employment-based visas are immigrant visas, and lead to Green Cards. The key difference between Forms I-140 and I-129 is that they are for immigrant and non-immigrant visas respectively.
  • Form I-765 is the application form for non-immigrant workers to receive an Employment Authorization Document (EAD). Unlike the forms above, it is not a petition but an application made directly by the person seeking the EAD. Form I-765 cannot be used to immigrate to the United States or change one's non-immigrant status but rather is used by those in the United States on various statuses (such as students on F visas or eligible DACA applicants) to be able to work. The EAD classification is not tied to any particular employer and gives the worker the flexibility to choose any employer, possibly subject to constraints about the nature of work or the number of hours worked. For instance, F visa holding students receive an EAD for post-completion Optional Practical Training. The key difference between Forms I-129 and I-765 is that the former is filed by the employer and is associated with a specific job whereas the latter is filed by the employee and is not tied to a particular job.

Form I-129 is unrelated to Form I-129F, a form used by the fiancé(e)s of citizens and permanent residents to acquire fiancé(e) non-immigrant status, usually with the intention to file for Adjustment of Status after arriving in the United States.[11]

References

  1. ^ "Petition for a Foriegn [sic] Worker, Form I-129". USCIS Processing Times. Retrieved April 3, 2015. 
  2. ^ a b "I-129, Petition for a Nonimmigrant Worker". United States Citizenship and Immigration Services. Retrieved April 3, 2015. 
  3. ^ "How Do I Use the Premium Processing Service?". United States Citizenship and Immigration Services. Retrieved April 4, 2015. 
  4. ^ a b "H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models". United States Citizenship and Immigration Services. Retrieved April 11, 2016. 
  5. ^ a b "O-1 Visa: Individuals with Extraordinary Ability or Achievement". United States Citizenship and Immigration Services. Retrieved April 11, 2016. 
  6. ^ a b "Treaty Countries". United States Department of State. Retrieved April 4, 2015. 
  7. ^ "Temporary Worker Visas". United States Department of State, Bureau of Consular Affairs. Retrieved April 4, 2015. 
  8. ^ "Instructions for Form I-539, Application to Extend/Change Nonimmigrant Status" (PDF). United States Citizenship and Immigration Services. Retrieved April 4, 2015. 
  9. ^ "Travel and Re-Entry to the U.S. on H-1B or H-4 Visas". Retrieved January 25, 2016. 
  10. ^ "What is H1B Visa?". Retrieved January 25, 2016. 
  11. ^ "I-129F, Petition for Alien Fiancé(e)". United States Citizenship and Immigration Services. Retrieved April 4, 2015. 
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