As one of the final steps to sponsor an H-1B worker for employment in the U.S., the employer must file an I-129 petition with U.S. Citizenship and Immigration Services (USCIS). This petition asks the agency to approve the employer's offer of employment and allow the foreign worker to apply for an H-1B visa at the U.S. Consulate or Embassy (if he or she is coming from abroad) or to change and/or extend the person's immigration status (if he or she is already in the United States).
This article describes the nuts and bolts of preparing this visa petition.
Forms and Documents to Include in the H-1B Visa Petition
Below are the materials that the employer typically must include with the visa petition for an H-1B worker:
- Forms I-129 Petition for a Nonimmigrant Worker, H Classification Supplement to Form I-129, and H-1B Data Collection and Filing Fee Exemption Supplement. Both the I-129 Petition and H Supplement require signatures. The Data Collection form does not require a signature.
- Support letter from the employer confirming the job offer to the foreign worker and explaining the terms and conditions of the proposed employment.
- Copies of the foreign worker’s educational degrees and transcripts. If the degree and transcript are from another country, include a U.S. equivalency evaluation report.
- Copies of the foreign worker's identification and current immigration documents, as applicable (passport, visa, I-94 Departure Record, USCIS Forms I-797 for prior applications or petitions, SEVIS Form I-20 for F-1 students, and so forth).
- If the foreign worker/prospective employee is in the U.S., documentation to show that he or she is maintaining lawful status, such as transcripts for F-1 students or paychecks for H-1B workers.
- Base Filing Fee ($325 as of 2013; see www.uscis.gov/forms for current fees, as USCIS changes its fees from time to time).
- Fraud Prevention and Detection Fee: $500 as of 2013.
- ACWIA Fee, unless an exemption applies: The 2013 fees were $750 for employers with 25 or fewer full-time employees or $1,500 for employers with more than 25 full-time employees.
- Public Law 111-230 Fee (required for employers that have 50 or more employees in the U.S., more than 50% of whom are in the U.S. in H-1B or L status): $2,000. This fee is set to expire October 2, 2014.
- Certified Labor Condition Application ("LCA") from the U.S. Department of Labor (DOL). You will need to determine the prevailing wage and then file the LCA by using the Department of Labor's online portal. It usually takes a week to receive the certified LCA, which the DOL sends via email.
Tips for Filling Out Form I-129
The I-129 petition may seem simple enough, but it's full of traps for the unwary. Be sure to read the instructions carefully and consult an immigration lawyer if you're unsure which box to check or what information to provide.
For example, you need to determine whether the foreign worker is in the U.S. or abroad and then check the proper box to instruct USCIS either to send notification of the petition approval to the U.S. Consulate or Embassy in the worker's home country or to change and/or extend the worker's status if in the United States. In some cases, the worker may be in the U.S. but not eligible to change or extend status, so you need to evaluate this and then check the appropriate box on the form.
Another section that can be difficult is the certification requirement relating to controlled technology or technical data. Since February 20, 2011, employers filing H-1B petitions must certify that they have reviewed applicable regulatory provisions and determined whether the technology or technical data that they will release to the foreign national employee requires an export license. This due diligence requirement comes under the "deemed export rule," which provides that if the technology or technical data actually were exported to the person's country of nationality, then the organization must obtain an export license before that person can access it within the United States. The two regulatory areas involved are the Export Administration Regulations (EAR) as related to items on the Commerce Control List (CCL) and the International Traffic in Arms Regulations (ITAR) as related to items on the U.S. Munitions List (USML). In general, these are items that have either a specific military purpose or use or are so-called "dual use" items, which have both a civilian and military purpose.
Because there can be severe penalties if an export license is required and you do not obtain one, it's important to review the technology and technical data to which the H-1B worker will have access and then determine whether an export license is required.
Submitting the I-129 Petition and Awaiting Approval
The employer must mail the petition to the USCIS Service Center that has jurisdiction over the place of employment. Check the website at www.uscis.gov/forms for the current mailing address.
If the petition is for someone outside the U.S., you need to include the original and a copy of the complete petition and supporting documents. USCIS uses the copy to send a notification of the approval to the U.S. Consulate or Embassy where the person will apply for the H-1B visa.
If you receive a request for evidence ("RFE"), in which the immigration officer asks for additional documents or information, be sure to send the original and a copy when you respond.
The typical USCIS processing time is two to four months. For an enhanced fee of $1,225 (as of 2013), USCIS guarantees an initial processing time of 15 calendar days. If USCIS asks for additional documents, a new 15-day clock begins from the time USCIS receives your response. One thing to think about with premium processing is the validity date of the H-1B petition. If you are filing on April 1 and requesting an effective date of October 1 for the next fiscal year's allotment of H-1B visas, premium processing cannot yield an earlier effective date. You may receive your approval in mid- to late-April, but the petition will not be effective until October 1. If your prospective employee is outside the U.S., this means he or she still will need to wait until October 1 to start working for you.
Keep in mind that there is an annual quota of H-1B visas that may impact when you can file your petition. If the H-1B candidate you are planning to hire already has H-1B status and previously was counted against a prior year's quota, you can file your petition any time. If the candidate is subject to the quota (as are most F-1 students seeking to change status or people in H-1B status for employment at a college or university), you will need to review the current fiscal year's filings to determine whether any visas remain.