Form I 129: Sponsoring Temporary US Workers

When applying for a temporary US visa, it is important to get the procedural requirements right, including using the correct forms. The following guide to Form I-129 (or the “i 129”) looks at what this form is for, as well as the circumstances in which this form is used. We also look at how to complete Form I-129 and the “i 129” costs involved, together with what you can expect to happen once Form I-129 has been filed and approved.

 

What is Form I-129?

Form I-129, Petition for a Nonimmigrant Worker, is the form that must be filed by a sponsor with US Citizenship and Immigration Services (USCIS) on behalf of an overseas applicant applying for a temporary work visa. The sponsor is known as the petitioner.

A temporary visa, officially referred to by USCIS as a nonimmigrant visa, is the permission needed to temporarily come to the USA for the purposes of tourism, study and work. However, Form I-129 is the form used by petitioners to file specifically on behalf of nonimmigrant workers to come to the US for the purposes of work or training.

Unlike employment-based immigrant visas, commonly referred to as green cards, which will grant the visa-holder the right to live and work in the US on a permanent basis, a nonimmigrant work visa is for a time-limited period. However, even though successfully filing a Form I-129 petition will not lead to lawful permanent residence, many nonimmigrant visas can be extended to allow a worker to live in the US long-term.

 

When is Form I-129 used?

Petitioners can file Form I-129 on behalf of a nonimmigrant worker to come to the US temporarily to perform services or labour, or to receive training, under a number of different routes. These include the H-1B, H-2A, H-2B, H-3, L-1A, L-1B, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1 or R-1 nonimmigrant visas. Each visa category has specific rules and requirements, with various limits, including how long a person can stay in the US.

Petitioners can also use Form I-129 to request either an extension of stay or change of status to E, H-1B1 or TN, or any one of the above classifications for an overseas national.

 

Using Form I-129 for entry clearance

If an overseas national is looking come to the United States on a nonimmigrant employment visa, their prospective US employer must first file Form I-129, Petition for a Nonimmigrant Worker, on their behalf before they can apply for a visa.

The employer should complete Form I-129 if the worker is applying under any one of the following employment-related categories:

• H-1B, H-2A, H-2B and H-3 (temporary skilled or unskilled workers and trainees)
• L-1A and L-1B (intracompany transferees)
• O-1 and O-2 (those with extraordinary ability and their assistants)
• P-1, P-1S, P-2, P-2S, P-3 and P-3S (athletes and entertainers)
• Q-1 (international cultural exchange visitors)
• R-1 (religious workers)

 

Using Form I-129 to extend or switch to another visa

If a noncitizen is already in the US on a nonimmigrant employment visa, and needs to extend their stay or change to another nonimmigrant work category, their employer must file Form I-129 on their behalf. An extension or change of status request will depend on the individual’s existing nonimmigrant status, where the employer should complete Form I-129 if the worker is in any one of the following nonimmigrant visa categories:

• E-1 or E-2 (treaty traders and treaty investors, and employees of traders/investors)
• E-3 (skilled professionals from Australia)
• H-1B, H-2A, H-2B and H-3 (temporary skilled or unskilled workers and trainees)
• L-1A and L-1B (intracompany transferees)
• O-1 and O-2 (those with extraordinary ability and their essential support)
• P-1, P-2 and P-3 (athletes and entertainers)
• Q-1 (international cultural exchange visitors)
• R-1 (religious workers)
• TN-1 and TN-2 (Canadians or Mexicans under the North American Free Trade Agreement)

 
Importantly, the E-classifications only require a petition if the beneficiary is already in the US and requesting either an extension of stay or change of status.

An employer can use Form I-129 to apply to extend the authorised stay of an employment-based nonimmigrant, or change the current nonimmigrant status of an overseas worker, if all of the following circumstances apply:

• the worker was lawfully admitted into the US with a nonimmigrant visa
• the worker’s nonimmigrant visa status remains valid
• the worker has not committed any crimes that make them ineligible for a visa
• the worker has not violated the conditions of their admission
• the worker’s passport is valid and will remain so for the duration of their stay

 
To determine the date that a noncitizen’s authorised stay in the United States expires, a check should be made of the departure date in the US Customs and Border Protection (CBP) stamp in their passport or their Form I-94, Arrival/Departure Record. If the beneficiary has been issued with an electronic Form I-94, instead of a paper form, they can visit the CBP website to obtain a free paper version of Form I-94. If Form I-94 cannot be obtained from the CBP website, it can instead be obtained for a small fee from USCIS by filing Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document. Form I-102 should then be filed together with Form I-129.

It is recommended that employers apply to extend any authorised period of stay at least 45 days before that period expires. If a noncitizen remains in the United States longer than authorised, they may be barred from returning. They are also at risk of being deported.

Generally, however, when it comes to new employment, a Form I-129 petition should not be filed any more than 6 months prior to the date employment is scheduled to begin.

 

Who files Form I-129?

In most cases, Form I-129 will be filed by a US employer on behalf of a prospective nonimmigrant worker, or an existing nonimmigrant worker already in the US, where a US employer may file this form to classify an alien in any nonimmigrant classification listed above. However, a foreign employer or US agent can also file for certain classifications.

When it comes to agents, a US individual or a US company in business as an agent can file a petition for overseas workers who are traditionally self-employed, or for workers using agents to arrange short-term employment with numerous employers, and in cases where a foreign employer authorises the agent to act on its behalf.

However, a petition filed by an agent will need to include a complete itinerary of services and/or engagements, including the dates, names and addresses of the employers, and the locations where the services will be performed by the nonimmigrant worker. A petition filed by a US agent must guarantee the wages by contractual agreement with the beneficiary of the petition, as well as the other terms and conditions of employment. The agent/employer must also provide an itinerary of definite work, as well as information on other services planned, for the period of time requested in the petition.

 

How is Form I-129 completed?

Before applying for certain nonimmigrant work visas, a petition must be filed by the petitioner and approved by USCIS before an application can be made for the appropriate nonimmigrant visa at a US Embassy or Consulate. The petitioner must:

• read the instructions for Form I-129, Petition for a Nonimmigrant Worker
• complete and sign Form I-129, together with any relevant supplements
• pay the filing fees, if applicable, and
• provide all required evidence and supporting documentation

 
USCIS provides Form I-129 free of charge through its website. Form I-129 consists of the basic petition, individual supplements relating to specific classifications, and H-1B Data Collection and Filing Fee Exemption Supplement for H-1B and H-1B1 classifications only.

Importantly, Form I-129 must be typed or printed legibly in black ink, and all questions answered accurately and fully. If an item is not applicable or the response is “none,” the petitioner should type or print “N/A”. If extra space is needed, there is a section at Part 9 ‘Additional information about your petition for Nonimmigrant Worker’, where the petitioner should indicate the page, part and item number to which their answer refers, and date and sign each sheet. Once completed, Form I-129 must also be properly signed, where USCIS will not accept either a typewritten or stamped name in place of a hand-signed signature.

The petitioner must submit all required initial evidence with Form I-129, along with all the supporting documentation, at the time of filing. However, as of 11 August 2022, USCIS no longer require petitioners to submit a copy of Form I-129, or copies of any of the supporting documentation, unless they are specifically asked to do so. Due to enhanced electronic scanning and data-sharing with the US Department of State, duplicate copies are no longer needed. This is designed to help avoid delays in consular processing.

For all nonimmigrant classifications, if a beneficiary is seeking either an extension of stay or change of status, evidence of maintenance of status must be included with Form I-129. Further detail of the requirements to be met under each classification, and the evidence needed in support, can be found in the instructions for Form I-129, although it is often best to seek expert advice to ensure that the form is completed correctly with the right evidence.

Finally, the Form I-129 petition must be accompanied by the appropriate filing fee(s).

 

How much does it cost to file Form I-129?

The cost of filing Form I-129 is currently $460. There will also be an additional fee to file the visa application itself, payable by the applicant if the petition is approved.

As of 1 April 2022, USCIS will no longer accept a single, combined payment when filing Form I-129, Petition for a Nonimmigrant Worker, together with Form I-539, Application to Extend/Change Nonimmigrant Status, Form I-824, Application for Action on an Approved Application or Petition, or Form I-765, Application for Employment Authorization.

Separate payments are now required for each of these forms. This is because USCIS are transitioning to electronically processing immigration benefit requests where, as USCIS completes this transition, it will be using multiple systems to receive and then process various requests. As such, Form I-129, and any related applications, are not all processed within the same system, so separate payments must be made for each one. If payments are combined for these forms, USCIS will reject the entire package.

USCIS will also not accept a single, combined fee payment when an applicant files Form I-129, together with Form I-907, Request for Premium Processing Service.

In addition to the filing fee for Form I-129, additional fees may also be payable for H-1B or L-1 petitions. A petitioner seeking initial approval of either H-1B or L-1 nonimmigrant status for a beneficiary, or seeking approval to recruit an H-1B or L nonimmigrant currently working for another petitioner, may have to pay a $500 Fraud Prevention and Detection fee. Those petitioners required to submit this $500 fee, are also required to submit either an additional $4,000 (H-1B) or $4,500 (L-1) fee, if they employ 50 or more staff in the US and more than 50% of those staff are in either H-1B, L-1A or L-1B nonimmigrant status.

Each fee will need to be submitted in a separate cheque or money order payable to the US Department of Homeland Security.

 

What is a Form I-129 Approval Notice?

Once USCIS receives Form I-129, they will send the petitioner:

• a receipt notice confirming that the petition has been received
• a biometric services notice, if applicable
• a notice to appear for an interview, if required, and
• a notice of the decision made by USCIS.

 
If USCIS approve the Form I-129 petition, they will forward a Form I-797, Notice of Action/Approval, to the petitioning employer, who should forward this to the applicant. The I-797 is essentially the Form I-129 Approval Notice. Provided the petition is approved by USCIS, the applicant can then file their DS-160, Online Nonimmigrant Visa Application, and schedule an interview with their local Embassy or Consulate if they are overseas. This will typically be an Embassy or Consulate based in the beneficiary’s country of residence.

 

Need assistance?

As specialists in US immigration, NNU’s London-based attorneys have extensive experience in advising on US visa applications and sponsorship of non-US workers. If you have a query, contact us for guidance.

 

I-129 FAQs FAQs

What is the meaning of I-129 approval notice?

An I-129 approval notice is the notice of action/approval set out on Form I-797. If US Citizenship and Immigration Services (USCIS) approve a Form I-129 petition, the I-797 will be sent to the petitioner to forward to the beneficiary.

 

What is I-129 and i 797?

I-129 is the form to petition on behalf of a nonimmigrant worker to US Citizenship and Immigration Services (USCIS), whilst the i 797 is the form sent by USCIS to the petitioner to acknowledge receipt and to provide a decision.

 

What is I-129 in US?

I-129 is the form used to petition to US Citizenship and Immigration Services, for example, by a US-based employer on behalf of a nonimmigrant worker, before that worker can apply for a nonimmigrant visa from their local Embassy or Consulate.

 

Is I-129 required for H1B stamping?

For H1B stamping you will need the original approval notice, set out on Form I-797, once the Form I-129 petition has been approved by USCIS. You will also need to provide various other documents in support, including a valid passport.

This article does not constitute direct legal advice and is for informational purposes only.