Form I-129

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. 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 and the instructions for the form are 29 pages long.^[1][2]

Reasons for filing Form I-129

Broadly, the Form I-129 is used to either file for a new status or a change of status. In more detail, the following is a complete list of reasons for filing the form:^[2][3]

• New Employment, for first time employment with the U.S. company or for employment in a new position;
• Continuation of Employment, to continue employment of a foreign worker in the same position;
• Non-Material Change, if there is a non-material change in the position of the foreign worker such as a title of job change;
• Additional Employment, if the foreign worker is to begin employment with an additional employer under the same nonimmigrant classification;
• Change of Employer, if the foreign worker will work for a new employer in the same nonimmigrant classification; or
• Amended Petition, for material changes in the foreign-worker’s terms and conditions of employment such as an adjustment of duties.

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

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:^[1][4]

Visa	Quick description
H-1B visa	Temporary workers for specialty occupations that require a bachelor's degree or equivalent
H-1C visa	Temporary workers for nurse jobs
H-2A visa	Temporary agricultural workers
H-2B visa	Temporary non-agricultural workers for non-specialty occupations
H-3 visa	Temporary visa for trainees or special education workers who intend to perform their eventual job outside the United States
L-1 visa	Temporary visa for employees at companies with both US and foreign offices
O visas (O-1, O-2)	O-1: Temporary via 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
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
Q-1 visa	International cultural exchange alien
R-1 visa	Alien in a religious occupation

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[5]		Trader
E-2 visa	All treaty countries[5]		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).

Timeline and details

Application can be made at most six months before the start date

Form I-129 cannot be filed more than 6 months before the start date of employment on the requested status.^[6]

This is particularly important for the H-1B visa and associated status. There is a cap of 65,000 for new H-1Bs every Fiscal Year, where the Fiscal Year begins in October. Due to the six month limit for Form I-129, the earliest that somebody can apply for a H-1B for a given Fiscal Year is the beginning of April. Due to the fierce competition for H-1B slots, slots for a given Fiscal Year can get filled in April itself, and those who want a serious shot at getting H-1B status may need to apply early in April to have a high chance of getting the visa.

Premium processing: Form I-907

Form I-129 petitioners can optionally request the Premium Processing Service by submitting Form I-907. Premium processing is only available for this form and for Form I-140. It costs $1225, and does not provide any preferential treatment in the lottery for cap-subject visas. According to the United States Citizenship and Immigration Services website, USCIS guarantees 15 calendar day processing to those petitioners or applicants who choose to use this service or USCIS will refund the Premium Processing Service fee. If the fee is refunded, the relating case will continue to receive expedited processing.^[4] The time begins from the receipt of Form I-907 and the associated fee. Form I-907 may be filed along with Form I-129, or electronically as a standalone form for a previously filed Form I-129.^[7]

Premium processing is not available for H-2B visa applicants and is also available to R-1 visa applicants only if the petitioner has passed an on-site inspection.^[4]

Filing fee

As of 2015, the filing fee for Form I-129 is $325.^[1] Those applying for premium processing also need to pay the $1225 premium processing fee.^[4][7] There may be additional fees associated with the type of classification being sought. For instance, first-time cap subject H-1B visa applicants need to pay an additional fee of $750 or $1500 for retraining US workers as well as a $500 anti-fraud fee.^[8]

Filing addresses

Form I-129 must be filed by paper, along with fees and associated supporting documents, to the appropriate Service Center (either the California Service Center or the Vermont Service Center) based on the petitioner's geographic location. The mailing address used varies based on the visa classification for which Form I-129 is being filed. Form I-907 may be included along with Form I-129 or filed separately electronically later.^[9]

Cancellation

It is possible to request cancellation of a pending Form I-129 petition. However, the associated fees are non-refundable.^[10]

H-1B portability rule

Per the American Competitiveness in the 21st Century Act (AC21) of 2000, people who have been in valid H-1B status can start a new job, or extend their stay, on H-1B after submitting a Form I-129, even before that Form is approved. The following are the conditions:^[6]

• 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.

People can continue in such employment (while waiting to hear on the decision regarding their Form I-129) for up to 240 days.^[6]

Relation with visa process

For people outside the United States

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.^[11] Having an approved Form I-129 does not guarantee that one will get the visa.^[12] Once the person has the visa, he or she may use that in conjunction with the approved Form I-129 and other supporting documents to seek entry into the United States at a designated port of entry. The official at the port of entry issues a Form I-94 with either a specified end date (that is usually the end date of the work authorization) or "D/S" or "EOS" (indicating "duration of status" or "end of status" so the person can stay in the United States as long as he or she is in valid status).

For people lawfully present in the United States at the start date of employment

A person who is already in the United States at the date when employment starts may simply start employment with an approved Form I-129.

Although changes of status generally require a person to file Form I-539 with the USCIS, those filing Form I-129 to change status do not additionally need to file Form I-539.^[13]

Visa and change of status for dependents

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.^[13] Those outside the United States need to apply for the appropriate dependent visa.

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). 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) immigrant status.^[14]

References