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Overview
Employers who wish to hire foreign workers to temporarily
perform services or labor or to receive training may
file an I-129 petition. The I-129 is mainly
used for nonimmigrant categories; thus, in most
cases, workers who enter the United States under this
petition must depart the U.S. when their maximum
period of stay has been reached. Form I-129 may also
be used to petition for an extension of stay or change
of status for certain non-immigrants.
There are many categories of workers who are
temporary visitors and who may be petitioned for on
the I-129. These nonimmigrant classifications are
symbolized by letters which generally correspond to
the visas issued by the State Department. Only those
categories incorporating employment or investment will
be covered here.
To see the section of the Immigration and
Nationality Act that applies to temporary worker
categories, see §101(a)(15).
For the law applying to NAFTA categories, See §214(e).
Filing
the I-129 Petition
USCIS Form
I-129 consists of a basic petition and different
supplements that apply to the various visa categories.
In order to petition for a temporary worker, the
prospective employer or agent must file Form I-129,
Petition for Nonimmigrant Worker, and the
appropriate supplement with the U.S. Citizenship
and Immigration Services (USCIS) accompanied by the
required payment, and initial evidence or
documentation.
In some cases, the employer must get a certificate
from the Department of Labor prior to filing the
I-129. This process is described below in the
appropriate categories.
Once the petition is approved, the employer or
agent is sent a Notice of Approval, Form I-797.
Approval of a petition does not guarantee visa
issuance to an applicant. Applicants must also
establish that they are admissible to the U.S. under
provisions of the Immigration and Nationality Act
(INA).
Applying
for the Visa
If the prospective worker (beneficiary) is outside
of the country, he must apply for a visa. After the
USCIS has approved the I-129 and sent notice to the
consulate in the beneficiary’s country, the
beneficiary must file a visa application with the
consulate. Some aliens may be visa exempt. In those
cases, the I-129 approval notice is sent to the port
of entry (POE) where the beneficiary intends to apply
for admission. For specific procedures on Visa
Application Procedures, Required Documentation and
Visa Ineligibility Waiver, please visit Visa
Services at the Department
of State.
If the beneficiary is already in the U.S. and is
changing from one nonimmigrant status to another, a
visa is not required. However, a visa may be required
if the beneficiary subsequently leaves the U.S. and
wishes to re-enter.
Entry into the U.S.
Applicants should be aware that a visa does not
guarantee entry into the United States. The U.S.
Customs and Border Protection (CBP) has authority to
deny admission at the port of entry to any applicant
who is inadmissible under INA, even if the applicant
has a visa. Also, the CBP, not the consular officer,
determines the period for which the bearer of a
temporary work visa is authorized to remain in the
United States. At the port of entry, CBP officials
issue Form I-94, Record of Arrival-Departure, which
notes the length of stay permitted. The decision to
grant or deny a request for extension of stay,
however, is made solely by the USCIS.
When
to file
Petitions should be filed as soon as possible, but
no more than 6 months before the proposed employment
will begin or the extension of stay is required. If
the petition is not submitted at least 45 days before
the employment will begin, petition processing and
subsequent visa issuance may not be completed before
the alien's services are required or previous
employment authorization ends.
Maximum
Stay Information for Temporary Employment Visas
| Class
| Initial
Stay
| Extension
of Stay
|
| E-1 |
Two
(2) years |
Up
to 2 years per extension. No maximum number of
extensions, with some exceptions. |
| E-2 |
Two
(2) years |
Up
to 2 years per extension. No maximum number of
extensions, with some exceptions. |
| H-1B1 |
Up
to 3 years |
Increment
of up to 3 years. Total stay limited to 6
years. |
| H-1B2 |
Up
to 3 years |
Increment
of up to 3 years. Total stay limited to 6
years, with some exceptions. |
| H-1C |
Up
to 3 years |
Total
stay limited to 3 years. |
| H-2A
and H-2B |
Same
as validity of labor certification, with
maximum of 1 year. |
Same
as validity of labor certification (increments
of up to 1 year). Total stay limited to 3
years. |
| H-3 |
Special
Education Training-up to 18 months.
Other Trainee-up to 2 years |
Special
Education Trainee-total stay limited to 18
months.
Other Trainee-total stay limited to 2 years. |
| L-1A |
Coming
to existing office-up to 3 years.
Coming to new office-up to 1 year. |
Increments
of up to 2 years. Total stay limited to 7
years. |
| L-1B |
Coming
to existing office-up to 3 years.
Coming to new office-up to 1 year |
One
increment of up to 2 years. Total stay limited
to 5 years. |
| O-1
and O-2 |
Up
to 3 years |
Increments
of up to 1 year |
| P-1,
P-2, P-3 and their support personnel |
Individual
athlete-up to 5 years.
Athletic groups and Entertainment groups-up to
1 year. |
Individual
athlete-Increments of up to 5 years. Total
stay limited to 10 years.
Athletic groups and entertainment
groups-Increments of 1 year. |
| Q-1 |
Up
to 15 months. |
Total
stay limited to 15 months |
| |
|
(Note:
definition of each class of visa should
display once only per chart) |
| R-1
and R-2 |
Up
to 3 years |
Increments
of up to 2 years. Total stay limited to 5
years. |
| All
other |
Up
to 1 year |
Increments
of up to 1 year |
Where
to file
Generally, petitions are mailed to one of the USCIS
Service Centers based on the place where the
proposed employment or training will be conducted.
Certain exceptions apply:
- All H1C (nurses) Form I-129s are filed at the
Vermont Service Center (VSC). If the person is a Canadian
citizen applying for admission as an L-1
under the North American Free Trade Agreement,
the petition may be filed at the port of entry
when the person applies for entry;
- All TN (NAFTA) Form I-129’s are filed
at the Nebraska
Service Center.
- Applications pertaining to E-1 or E-2
matters may be filed only at the Texas or
California service centers. These petitions are to
be filed at either (1) the Texas
Service Center if the location of employment
is in the areas previously covered by the Vermont
and Texas Service Centers, or (2) the California
Service Center if the location of employment
is in the areas previously covered by the Nebraska
and California service centers.
- If an alien currently in E-1 or E-2 status is
requesting a change of status to another
nonimmigrant classification, the application for
change of status must be mailed to one of the
USCIS Service Centers with jurisdiction over the
new requested classification.
Fees
The basic fee for an I-129 petition is noted in the
I-129
Forms Entry Page, but there may be additional fees
depending on the type of petition you are filing. (For
an additional fee, employers may also request faster
processing of certain applications and petitions by
submitting a form
I-907.) For more information, please refer to the Forms
and Fees page.
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