Employers sometimes need to hire foreign labor when there is a shortage of available U.S. workers to fill certain jobs. Under certain conditions, U.S. immigration law may allow a U.S. employer to file a Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS) on behalf of a prospective foreign national employee. Upon approval of the petition, the prospective employee may apply for admission to the United States, or for a change of nonimmigrant status while in the United States, to temporarily work or to receive training.
For most employment-based nonimmigrant visa categories, the employer starts the process by filing Form I-129 with USCIS. Please note that in some cases the employer must file a Labor Condition Application or Application for Temporary Employment Certification with the Department of Labor (DOL) and/or obtain certain consultation reports from labor organizations before filing a petition with USCIS.
There are numerous nonimmigrant, employment-based visa categories. Under all of these categories, listed below, the foreign national must meet specific requirements for the occupation covered in the petition.
What are the various types of visa classifications under which a foreign national may temporarily engage in employment or training?
- E-1 – Treaty traders and their spouses
- E-2 – Treaty investors and their spouses
- E-3 – Australian specialty occupation workers and their spouses
- H-1B – Specialty occupations in field requiring highly specialized
- knowledge, fashion models of distinguished merit and ability,
- or certain services of an exceptional nature in Department of
- Defense cooperative research and development projects or
- co-production projects
- H-1B1 – Specialty occupations for certain nationals of Singapore
- and Chile
- H-2A – Temporary agricultural workers
- H-2B – Temporary workers performing other services or labor,
- skilled or unskilled
- H-3 – Trainees or special education exchange visitors
- I – Representatives of information media
- J-1 – Certain exchange visitors
- L-1A – Intra-company transferees (executives, managers)
- L-1B – Intra-company transferees (employees with specialized
- O-1 – Foreign nationals who have extraordinary ability in the
- sciences, arts, education, business, or athletics
- O-2 – Essential support personnel for O-1
- P-1 – Internationally recognized athletes (or athletic team) or
- members of an entertainment group and certain other athletes
- and entertainers
- P-2 – Artists or entertainers under a reciprocal exchange
- P-3 – Foreign nationals who perform, teach, or coach under a
- program that is culturally unique
- P-4 – Essential support personnel for P-1, P-2, and P-3
- Q-1 – International cultural exchange visitors
- R-1 – Religious workers
- TN – Canadian or Mexican professionals covered
Am I required to file an application or other request with the U.S. Department of Labor for each foreign national employee?
Certification from the Department of Labor (DOL) is required only for the H-1B, H-2A, and H-2B nonimmigrant classifications. You must first request certification from DOL before submitting your I-129 petition to USCIS. For H-1B nonimmigrants, a Labor Condition Application, and for H-2A and H-2B nonimmigrants, an Application for Temporary Employment Certification must be filed in accordance with DOL instructions. DOL certification is not required for the other nonimmigrant, employment-based, or investor-based visa classifications previously listed.
What happens after I file a Form I-129, Petition for a Nonimmigrant Worker?
After you file, USCIS will send you a receipt so you know that they received your petition. If your petition is incomplete, they may have to reject it and return your fee, or ask you for more evidence or information, which will delay processing. They will notify you when we make a decision. If the prospective employee is in the United States in a valid nonimmigrant status, he or she can begin working for the employer upon approval of the Form I-129 petition, provided that:
- The Form I-129 contained a change of status or extension of stay request that was also approved; or
- In cases where a Form I-539, Application to Extend/Change Nonimmigrant Status, is required, the foreign national has filed and obtained approval of the application for change of status or extension of stay.
If the prospective employee is residing outside the United States or appears to be ineligible to change his or her status while in the United States, the petition will be sent to the U.S. consulate nearest the prospective employee’s foreign residence. The prospective employee can then apply at the U.S. consulate for a nonimmigrant visa. If the visa is issued, he or she will then be able to travel to the United States and apply for admission.
Can an employer request expedited adjudication of a Form I-129, Petition for a Nonimmigrant Worker?
Yes. An employer can file Form I-907, Request for Premium Processing Service, with the appropriate fee, concurrently with the Form I-129, or after receiving the receipt notice for Form I-129 at the USCIS location where the Form I-129 was filed.
How long will it take USCIS to process my petition?
Processing time depends on a number of factors. You can check the USCIS current processing times on their website. Once the petition is filed, you can receive an updated estimate by calling USCIS Customer Service at 1-800-357-2099.
How long may a nonimmigrant employee stay in the United States?
The initial period of stay granted to a temporary employee varies, depending on the specific visa category. Likewise, the maximum period of initial allowable stay varies, depending on the specific visa category and on the foreign national’s intended employment. This information may be found on the Form I-94 that the employee received upon entering the United States, or on the USCIS-issued approval notice for a change of status or extension of stay. In certain cases, a foreign national may seek to remain in a nonimmigrant classification longer than the period for which he or she was initially admitted or granted, up to the maximum period allowable by law.
How can an employee extend his or her status if it is about to expire?
If it appears that an employee may be needed longer than the period for which he or she was approved in his or her current nonimmigrant status, an employer may be able to file a new Form I-129 petition on behalf of the employee. To avoid disruption of authorized employment, employers are encouraged to file a petition to extend the employee’s status well before it expires. Note, however, that if the employee has already stayed for the maximum allowable period of time, an extension may not be granted.
If I filed for an extension of status for my employee, but have not received a decision by the time his or her status expires, can I continue to employ the individual?
- USCIS receives a Form I-129 petition to extend an employee’s status before his or her status expires; and
- The employee has not violated the terms of his or her status; and
- The employee meets the basic eligibility requirements.
The employee may continue to be lawfully employed for a period of up to 240 days, or until USCIS makes a decision on your application, or until the reason for your requested extension has been accomplished—whichever comes first.
If the request for extension is denied and the employee’s status has already expired while the employee is in the United States, he or she will be considered “out of status” as of the date that his or her status expired. If this should happen, the employee will be required to cease employment immediately and depart from the United States upon denial of the extension. There is no appeal of a denial of a request for an extension of status. The period of time that the foreign national has been “out of status” may affect his or her ability to return to the United States following the individual’s required departure.
What is H-1B portability?
Section 105 of the American Competitiveness in the Twenty-First Century Act provides that a nonimmigrant who was previously issued an H-1B visa, or provided H-1B nonimmigrant status, may begin working for a new H-1B employer as soon as that new employer files a “nonfrivolous” (defined as: an application that must have an arguable basis in law and fact and must not have been filed for an improper purpose) H-1B petition on the nonimmigrant’s behalf, if:
- The nonimmigrant was lawfully admitted to the United States; and
- The nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and
- The nonimmigrant has not been employed without authorization since his or her lawful admission to the United States, and before the filing of the nonfrivolous petition.
The H-1B worker is authorized to work for the new employer while the petition is adjudicated and approved.
What is an employer liable for once a nonimmigrant begins work?
Under immigration law, an employer is liable for the reasonable costs of return transportation abroad for a foreign national employee in the H-1B or H-2B visa categories if the employer dismisses the employee from employment before the end of the period of authorized admission. If employment is terminated for an employee in the O or P visa categories, for reasons other than voluntary resignation, the employer and the petitioner are “jointly and severally” (a specific legal term) liable for the reasonable costs of return transportation for the foreign national employee.
Employers must keep USCIS informed of any firings, termination of employment, or changes in the employee’s eligibility by submitting a letter to the USCIS Service Center that approved the application or petition. Please note that the employee may only perform the duties described in the petition. As an employer, you also have many other labor-related responsibilities separate from those required under the immigration laws.
U.S. employers are required by law to verify the employment eligibility of all workers they employ in the United States, regardless of their immigration status, by processing a Form I-9, Employment Eligibility Verification.
Can I file a Form I-129 petition even though I may wish to help this employee get permanent resident status?
When applying for the nonimmigrant visa at a U.S. consulate abroad, nearly all applicants must prove that their intention is to remain in the United States temporarily and to depart after they have fulfilled the purpose of their intended stay for which they are seeking a nonimmigrant visa—whichever is shorter. There are certain exceptions.
For example, an H-1B, L-1A, and L-1B nonimmigrant worker may be able to maintain lawful nonimmigrant status and, at the same time, benefit from an immigrant visa petition, even if the individual worker may have taken certain steps to obtain lawful permanent resident status. For other classifications, the mere filing of an immigrant visa petition on behalf of a nonimmigrant worker, without any action taken by the worker himself or herself, may not have an adverse effect on the worker’s nonimmigrant status.
If I want to hire more than one employee, can I include all of them on one petition?
This depends on the particular nonimmigrant visa classification that you are seeking for the prospective employees.
- H-1B, H-3, O, and R visa categories do not allow for multiple employees on one petition.
- For L-1 visa categories: A prospective employer may file a single “blanket petition” to establish a required intra-company relationship. However, once the blanket petition has been approved, each individual employee seeking to work for the blanket petitioner must still file his or her individual Form I-129-S, Nonimmigrant Petition Based on Blanket L Petition.
- For the H-2A, H-2B, P, and Q-1 nonimmigrant visa categories, a single petition may cover multiple workers if the workers are performing the same service at the same location.
Can my employee change employers or work for more than one employer at the same time?
Yes, but each employer must file a separate Form I-129 petition and, where applicable, the appropriate Labor Certification, or Labor Condition Application with the DOL, and receive approval from USCIS before the employee can begin to work for a new or an additional employer. Please note that a foreign national who is eligible for H-1B portability may begin working for the new or additional employer once that employer has appropriately filed the Form I-129 petition with USCIS.