Lca Change in Previously Approved Employment Vs Continuation of Previously Approved Employment
Form I-129: The Complete Guide
Posted by in Immigrants | Updated on August 24, 2022
At this point, visas are mandatory to maintain a work position overseas – and without one, you will be forced to return to your country of origin. However, with employers collaborating with foreign non-immigrants, an understanding can be reached and they may remain lawfully in the country.
Understanding all the basics of the I-129 form may be rather challenging. However, this article should help you get through the process.
What Is an I-129 Form?
The Form I-129 is a petition for a non-immigrant worker – a form that employers looking to fill a position with a foreign national will have to fill. It is a very common type of work visa, and may also be able to change the status of someone already within the borders of the US – but is not permitted to work.
Therefore, form I-129 can give new status as well as update an old status to a different one. It may permit an extended stay, and may also provide certain rights to the workers such as the right to take out a loan.
Form I-129 is obviously filed by the petitioner – but in special circumstances, an agent may also file said form on behalf of the petitioner.
Who Is Eligible to Be Sponsored with an I-129 Petition?
Several people who qualify for different statuses may apply for the I-129 visa. This may be filed for the following non-immigrant visa categories that are employment-based.
- Temporary workers that qualify for the H-1C, H-1B, H-2A, or the H-3 status.
- Athletes, entertainers, performers, or artists that qualify for the P-2, P-1, or P3 status. Their essential staff should also qualify for the P-2S, P-1S, or the P-3S status.
- Aliens with extraordinary abilities that qualify for the O-1 status. This also applies to their assistants that have the qualifications necessary for the O-2 status.
- Religious workers that are eligible for the R-1 status.
- Cultural exchange workers that have the qualification for the Q1 status.
The Form I-129 may also be filed to extend the visa status of a foreign national individual that has previously entered the United States on a TN, E-1, or E-2 visa.
How to Complete an I-129
The Form I-129 has a total of six pages – to which you add an additional page containing the explanations. The form primarily requires you to fill in the information concerning the employer, but also the position that the foreign national.
It is essential that the form is completed correctly since an incomplete petition might be rejected. Even if the petition is approved, any mistakes in the form might cause complications to the status of the worker.
Filling in the form is relatively straightforward – particularly if you follow the explanations page as well. However, to make things simpler, here are the stages that you will have to follow.
Part 1: Petitioner Information
As the name suggests, the first part of the form requires that you provide information on yourself, the petitioner. What you need to remember is that in this case, the one who fills in the petition is the employer. This makes the foreign national that is about to be employed a "beneficiary" – one that will have to be added to the form.
Part 2: Information about the Petition
This part is standard procedure – one that will allow the agents to get organized. The second part of the I-129 petition requires that you fill in information about the requested non-immigrant status – as well as the actions that you, the employer, want the USCIS to take. The employer must add the requested visa category – and check whether the worker fits the qualifications or not.
If the employee is new, they will be signed under "new employment." This will also be the case if you are requesting a new classification for a current employee.
On the other hand, if the purpose is to extend the worker's stay with the same job and no changes, they will have to be filed under "continuation of previously approved employment without change with the same employer."
Other classifications include "change in previously approved employment," in the event that there have been changes in the job (title or duties), or "amended petition" in the event that there has been a material change in the position.
Part 3: Beneficiary Information
Once the information about the requested status has been filled in, you will have to move onto the details regarding the beneficiary – a.k.a. the one employed. Most of the time, the information that is requested is straightforward – the confusion usually appearing around the "A-number" section.
This is because many people do not know what this number implies. This nine-digit alien registration number is generally assigned to a few select foreign nationals. In most cases, an employee that has not yet applied for permanent residence will not even receive an A-number. If that is the case, you may leave this part of the petition blank.
Part 4: Processing Information
The fourth part of the Form I-129 will involve a series of questions that are necessary to process the Form I-129. Among these, you may find questions asked about an inspection of the facility where the employee may apply for a visa (in the event that they are outside the U.S.), or the location of a United States consulate.
This section should be completed using the information from the employer's home country – no matter if the petition is actually for in-country. There is a possibility that an in-country request may be denied – regardless if the petition has already been approved or not. If this is the case, then the USCIS must know where to send the form I-129.
An employee may also sometimes request for third-country processing in Mexico or Canada – but this should ideally be avoided. If there are any delays in the processing, the employee may risk having to stay in that country for a longer period of time. This type of processing should only be considered if there are certain circumstances that prevent the petition from being processed in the home country.
Part 5: Information about the Employment and Employer
This section is also fairly straightforward. Here, the person writing the petition will be asked specific information regarding the employer and the employment that has been proposed. In the event that an LCA (Labor Condition Application) is also required, this section should contain the same information. You will also have to provide an LCA case number, in the event that you have one.
In this section, you should also enumerate any compensation that the employer will provide to the employee. For instance, if your employee receives any benefits, you should note them all here.
Part 6: Export Control Certification
An employer will have to disclose if a license is necessary from the federal government for the foreign employee to receive access to technical data or technology. If the business of the employer handles such technology that may need this license, then a designed official will be asked to make this determination. If the organization does not have a designed official, then the employer will have to discuss with an attorney on how to fill this section in.
Signing the I-129
The employer should have an authorized representative to sign the seventh part of the form. If they consulted with a lawyer to complete the petition, they should sign this part. Ideally, every signature should be in blue ink.
Supplements to Form I-129
This form should also contain a supplement that will complete the request for the visa classification. The list of supplements should be included in the Form I-129 packet. The employer is not required to fill in with any supplement pages that are not mandatory for the visa classification, such as loan approvals from banks or other documentation that strengthens their status.
Where to File Form I-129
The form I-129 will generally be filed at the training center, together with the service center. However, there will be certain filing exceptions for NAFTA countries, including Canada and Mexico. You should also choose the correct form based on whether you want to change, extend, or reinstate the I-129 status.
Form I-129 Filing Fee
The filing fee for the Form I-129 is $460. By completing this form, you are agreeing to pay for government service. The filing fees are non-refundable and final – so, regardless of the action taken for the application, you will not be entitled to receiving your money back (even if you withdraw it).
Reasons Your I-129 Processing Might Be Delayed
Most of the times, delays may occur when the petitioner has not included the correct fee or has provided incomplete information. Because of this, the process may need to be started from the very beginning.
If the USCIS believes there is a reason to doubt the information on the application, they might start a Request for Evidence. Since this will need a response and evidence from the employer, the process might once more be delayed.
For a foreign national person that lives outside of the US, the processing might take slightly longer. Most of the time, it depends on the local consulate. Certain visa categories might need additional paperwork – which might once more cause delay. Last but not least, if your LCA has not been previously approved due to errors or incomplete information, the petition might need to be resubmitted – which will further on lead to delays.
If you work with a qualified immigration attorney, you might be able to avoid any potential rejections, delays, or audits. Not only are they time-consuming, but they also tend to be very expensive.
Additional Information About Your I-129
The I-129 form is a fairly complex one that needs to be properly filled in with relevant details. When you are completing your I-129 petition, here are some additional factors that you might want to consider.
H-1B Portability
If Form I-129 has been filed for someone that is already living in the US under the responsibility of an H-1B visa sponsor, there are certain considerations to be remembered. This particular rule allows for H-1B employee to work, even if their I-129 visa is still being processed. In certain cases, it will allow the employee to begin their work even if the application has not yet been approved. This is usually the case for the next 240 days after their work permit has expired.
For this to apply for an H-1B worker, the I-129 petition will have to be sent and received before their H-1B visa status reaches its expiration date. Plus, the petition will have to be completed by an employer offering a real job – with no risks of their status.
International Travel with an I-129
The application process might be further complicated if the employee has any plans of traveling outside the country. The employer must know about any need for international traveling after their H-1B status has passed its expiration point. However, most of the time, traveling is not allowed until the employee receives approval for the petition.
International traveling can be done once the employee has received their I-129 immigration status. Certain rules still have to be applied – and a worker traveling on an I-129 visa will have to provide certain documents: visa, passport, form I-797 approved by the ISCIS – and if it applies, a copy of form I-129S (approved). The employee will have to carry this documentation on them at all times if they are traveling, in order to prove their status upon exiting or entering the United States.
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Final Thoughts
The process for filing the I-129 form is relatively straightforward, as long as you pay attention to the instructions. Make sure that you always download the current forms from the official USCIS website and that you complete every section properly.
Ideally, to avoid any delays, you might want to collaborate with an immigrant attorney. They will be able to provide useful information regarding the petition.
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