H-1B Petition for a Nonimmigrant Employee

Background

The H-1B visa is for the temporary employment of noncitizens in specialty occupations. For a noncitizen to obtain an H-1B visa, the prospective employer must first submit a labor condition application to the Department of Labor and then petition the U.S. Citizenship and Immigration Services (USCIS; formerly known as Immigration and Naturalization Service) to classify the person as a temporary worker. For more information, refer to the "Labor Condition Application (LCA) for H-1B and E-3 Nonimmigrants" in the "Noncitizen Employment" procedure group of the Employees: Personnel Administration business area.

This document describes the procedures operating locations need to follow to submit a "Petition for a Nonimmigrant Worker," Form I-129.

What the Petition is Used For

Employers that require the services of a noncitizen on a temporary basis use the petition to request that the USCIS approve the employment of a noncitizen as a temporary worker. If the petition is approved, the noncitizen may apply for or continue H-1B visa status.

The petition must be used by an employer to request:

Legal Counsel

The Research Foundation (RF) recommends that noncitizens who are the beneficiaries of an H-1B petition obtain legal counsel to represent them during the process.

When legal counsel is retained by the beneficiary, any document forwarded by the attorney to the operating location for signature – such as an labor condition application, an I-129, or an authorization to act as an agent of the RF – must be reviewed and signed by the operations manager or named representative.

Note: A project director may not be the named representative.

Fees

All applications or petitions submitted to the USCIS must include the current fee, as listed on the USCIS Web site. (See also USCIS information for temporary workers.) The fee for filing the "Petition for a Nonimmigrant Worker" is paid by the prospective H-1B employee or the project.

On March 8, 2005, a new regulation went into place that added a "Fraud Preventions and Detection Fee" of $500 that employers must pay for the following applications: new, change of status, and change of employer. It is generally allowable to charge this fee to the award/grant; however, a campus representative should work with the sponsored program administrator to verify that this is an allowable charge on the award.

For instances in which it is appropriate to request Premium Processing of an H-1B application, the prospective employer should pay the $1000 fee.

Completing H-1B Data Collection and Filing Fee Exemption Supplement Section of Form I-129

On October 21, 1998, Congress enacted the American Competitiveness and Workforce Improvement Act (ACWIA),Public Law 105-277, which modified the H-1B nonimmigrant program. The "H-1B Data Collection and Filing Fee Exemption" is a supplement to Form I-129, “Petition for a Nonimmigrant Worker”. This supplement is used to collect additional information about the H-1B nonimmigrant worker and the H-1B petitioner (i.e., the U.S. employer). This supplement is also used to determine whether the H-1B petitioner is exempt from the additional filing fee imposed by ACWIA.

Although, as a nonprofit research organization, the RF is exempt from additional filing fees imposed by the ACWIA, the USCIS requires all employers to complete the supplement, which must be filed with the petition. For more information, see the section of this document, "Submitting the Petition."

The following table describes how to complete various sections of the H-1B Data Collection and Filing Fee Exemption Supplement to Form I-129.

Question

Response

Part A. General Information

1a. Is the petitioner a dependent employer?

Check No. The RF is not an H-1B dependent employer.

1b. Has the petitioner ever been found to be a willful violator?

Check No.

1c. Is the beneficiary an exempt H -1B nonimmigrant?

Complete all information related to the beneficiary in Part A according to instructions provided by the USCIS.

1d. Has the petitioner received TARP funding?

Check No.

1e. Does the petitioner employ 50 or more individuals in the US?

If yes, are more than 50% of those employees in H-1B or L nonimmigrant status?

Check Yes. The RF employs more than 50 individuals in the US

Check No. Less than 50% of RF employees are in those nonimmigrant statuses.

LCA Code

The three-digit occupational group code is available from the DOL's Labor Condition Application Instructions, ETA 9035CP.

NAICS Code

The RF NAICS code is 541700.

Part B. Fee Exemption Information

1. Are you an institution of higher education as defined in the Higher Education Act of 1965, section 101(a), 20 U.S.C. section 1001 (a)?

Check No.

2. Are you a nonprofit organization or entity related to or affiliated with an institution of higher education, as such institutions of higher education are defined in the Higher Education Act of 1965, section 101(a), 20 U.S.C. section 1001(a)?

Check No.

3. Are you a nonprofit research organization or a governmental research organization, as defined in 8 CFR 214.2(h)(19)(iii)(C)?

Check Yes. Submit a copy of the RF Charter as evidence of the RF’s nonprofit status. The Charter can be found on the About Us page of the RF Web site.

Questions 4, 5, and 6 should be answered as applicable to the situation and the operating location.

7. Is the petitioner a primary or secondary education institution?

Check No.

8. Is the petitioner a non-profit entity that engages in an established curriculum-related clinical training of students registered at such an institution?

Check No.

Part C. Numerical Limitation Exemption Information

1.Specify how this position should be counted against the H-1B numerical limitation (a.k.a. the H-1B "Cap")

Check CAP Exempt

2. N/A

N/A

3. If you answered 1d "CAP Exempt" specify the reason this petition is exempt from the numerical limitation

Check C.

Part D. Off-site Assignment of H-1B Beneficiaries

Questions a, b, and c should be answered as applicable to the situation

Certification

Signature

Must be signed by the operations manager or designee.

Export Controls

As of December 23, 2010 the revised Form I-129 includes a "Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States", otherwise known as export controls.

There are five phases to the export controls license request process: Assessment, development, review and submission, determination, and implementation. For more information on the process, please see the Export Controls License Request Process. The export control determination must be made prior to submitting the Form I-129.

Documentation of the final export control determination should be retained in the H1B/O1 file.

If it is determined that a license is not required, the beneficiary may begin working with the relevant technology when the petition is approved. If a license is necessary, it must be applied for and obtained before the beneficiary is given access to the controlled technology or data.

An employer must start paying the regular salary of an H1B worker as soon as employment begins. Although rare, if an export license is required for the beneficiary they should be assigned to alternate duties while waiting. Contact Central Office of Human Resources and Administration with any questions regarding H1B employment.

Submitting the Petition, Form I-129

The petition must be:

USCIS Review and Approval Process

USCIS will notify the employer on Form I-797B (Notice of Approval) upon approval or rejection of a petition.

Processing time for an H-1B petition generally ranges from 8 to 10 weeks from the time the petition is submitted to USCIS.

If the noncitizen is already in the U.S., the employer notifies the noncitizen after receiving Form I-797B. We advise that the noncitizen should be given the original approval notice, and a copy should be kept in the employee's file.

If the noncitizen is not already in the U.S., the USCIS sends the approved petition and/or notification of approval of the petition to the U.S. consulate where the noncitizen will apply for an H-1B visa. In the case of Canadian citizens, USCIS will notify the appropriate port of entry because Canadians are exempt from passport and visa stamp requirements. After receiving the H-1B visa, the noncitizen can be admitted into the U.S. in H-1B status (assuming that the noncitizen is not excluded from entering for some other reason).

Duration

The approved petition is valid for the period of employment on the labor condition application, which is a maximum of 3 years.

Requesting Extension

The petition is also used to request an extension for an H-1B visa holder through the USCIS. Any extension petition must be accompanied by a duly reviewed labor condition application.

Note: The H-1B visa is for temporary employment. Typically, the maximum total stay in H-1B status is 6 years. However, with the passage f the American Competitiveness in the Twenty-First Century Act of 2000, an extension of H-1B worker status may be granted in one-year increments if the applicant has filed for lawful permanent residence and is waiting adjudication of an application that has been on file for more than 365 days.

The extension must be filed no sooner than 6 months before expiration of the original petition.

The request for an extension of temporary stay must be accompanied by a certified labor condition application, a copy of the approval notice (Form I-797B) of the initial petition, Form I-94 (Nonimmigrant Arrival/Departure Record), a letter from the petitioner explaining the reasons for the extension, and a filing fee.

Record keeping

A copy of the approved petition and supporting documentation should be kept on file as part of the employee's personnel records.

Forms

"Petition for a Nonimmigrant Worker" (Form I-129) is downloadable in PDF format from the U.S. Citizenship and Immigration Services (USCIS) Immigration Forms page. Download instructions are also available. A fee is required for submitting the petition. This form is also available from the Forms By Mail link on the USCIS web site.

Noncitizen Employment Forms are available in the Noncitizen Employment section of the Personnel Administration business area on the RF Web site.

The RF charter can be found on the RF web site.

References

Export Controls Home Page

Change History

 

 

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