It is crucial for employers in the United States hiring foreign nationals to understand the timeline for filing an I-129, Petition for a Nonimmigrant Worker. This application is one that is used by U.S. employers for temporary work in the United States. Employers going through the application process must file the I-129 application at the right time or they risk prospective employees being denied entry or the continuation of their present legal status.
Think about Timing
Every employer needs to take into consideration the length of time it will take to prepare an I-129, Petition in addition to how long the U.S. Citizenship and Immigration Services (USCIS) will likely take to complete an application process and make a decision on the application. The time taken to prepare an I-129 petition depends on a case by case basis. Employers must review the I-129 instructions with detail this way they will know how long it will take to collect all supporting documentation. Additionally, all U.S. employers must be mindful of the following USCIS processing and filing requirements:
- an I-129 Petition for Nonimmigrant Worker cannot be filed any sooner than six months in advance of the employee’s start date
- USCIS processing times for I-129 applications vary depending on where the petition is filed and the nonimmigrant status being petitioned. Ask an immigration attorney about processing times or check the USCIS website regularly as they often change
- premium processing is accessible for I-129 petitions. At times the USCIS processing times may prevent the employee from starting to work on the requested date; as this happens the employer can pay an extra fee and request premium processing, which decreases the processing time to fifteen calendar days
Particular visa categories like the H-1B require that employers file a certified Labor Condition Application (LCA) along with the I-129, application. The labor department takes seven days to certify such certification.
Special Consideration: H-1B Portability to a Different Employer
Once an I-129 petition is submitted for an employee who is already in the U.S. with an H-1B status, the timeline will be affected if the rule of portability is applicable. Portability allows certain H-1B employees to transfer and start work with a new employer before an I-129 application is approved. The work authorization will end if USCIS denies the petition.
An H-1B employee qualifies for portability if:
- an I-129 petition is not insubstantial, meaning it is being filed for a true job role along with all required fees and supporting documents
- the I-129 petition is received at the respective USCIS office before the employee’s immigration status expires and
- the employee has maintained a valid H-1B status since he or she last arrived in the U.S. on an H-1B visa
Factors that Frequently Delay I-129 Processing
There are many factors that could delay the processing of an I-129, petition for a nonimmigrant worker. These include but are not limited to:
- if an application form is incomplete or a filing fee is incorrect the petition can be rejected by USCIS
- a Request for Additional Evidence can be issued by USCIS which will require a response from the employer therefore causing a delay to the processing time
- Delays can occur at the U.S. Consulate for foreign employees who are applying for their visa outside of the U.S.
- Once a labor condition application is not certified the first time around it will need to be resubmitted and this can take another seven days
Hiring an Immigration Attorney
Before a U.S. employer applies for an I-129, Petition for Nonimmigrant Worker he or she must consult with a well-seasoned immigration lawyer. An immigration attorney can assist in concocting a strategy for filing an I-129 petition in a timely fashion that will allow the employee to begin work on the requested start date and maintain a continuous lawful status. Call Gambacorta Law Office today at 847 908 4913.
