Temporary (Nonimmigrant) Workers

Employers must generally file a petition with USCIS to legally hire a nonimmigrant as a temporary worker. Once the employer files “Form 129, Petition for a Nonimmigrant Worker" for a temporary worker, USCIS will:

  • Send a receipt to the employer indicating that the petition was received. No receipt is sent if a petition is rejected.
  • Notify the employer if the petition is incomplete and:
  • Ask for more information

or

  • Reject the petition and return the fee
  • Approve or deny the petition 

Petition (Form I-129) Approval

If a potential employee is in the United States, he or she can begin working once USCIS approves the Form I-129 petition and the employer completes Form I-9 provided the petition contained a change of status or extension of stay request that was also approved.

If a potential employee is outside of the United States or ineligible to change his/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 consulate issues a visa, the prospective employee may travel to the United States to apply for admission.
  • If admitted, the employee may begin working for the employer and must complete Form I-9.

A few classifications allow a nonimmigrant to obtain permission to work in the United States without an employer filing Form I-129 for the nonimmigrant:

Extension of stay with the same employer

To extend the period for which a nonimmigrant employee was admitted, an employer must file a new Form I-129 petition for the employee. Generally, the employee may continue working for the same employer for up to 240 days or until USCIS makes a decision on the petition, whichever is sooner.

Form I-9

The employer should write “240-Day Ext.” and the date he or she submitted the Form I-129 petition to USCIS in the margin of Form I-9 next to Section 2.

To show that the employer filed a petition on the employee’s behalf, it is suggested that the employer retain the following documents with the employee’s existing Form I-9:

  • A copy of the new Form I-129
  • Proof of payment for filing a new Form I-129
  • Evidence that you mailed the new Form I-129 to USCIS

Employers must reverify the employee’s employment authorization in Section 3 once they receive a decision from USCIS.

Changing Employers

A nonimmigrant employee can change employers. However, the new employer first must file a labor condition application (e.g., H-1B petitions) or temporary labor certification (e.g., H-2 petitions) and then file a new Form I-129 petition with the approved labor certification.  The employee cannot begin working for the new employer until USCIS approves the petition. There are two exceptions to this requirement.

1. H-1B

Under the American Competitiveness Act in the Twenty-First Century (AC-21), an employee currently in H-1B status may begin working for a new employer as soon as the new employer files a Form I-129 petition for the employee, if certain requirements are met. If the employee is not currently in H-1B status, he or she cannot change employers or begin working until USCIS approves the Form I-129 petition.

Form I-9

The new employer must complete a new Form I-9 for this newly hired employee. The H-1B employee may present the Form I-94 indicating H-1B nonimmigrant status issued for employment with the previous employer along with his or her foreign passport as a List A document.  The new employer should write “AC-21” and the date he or she submitted the Form I-129 petition to USCIS in the margin of Form I-9 next to Section 2.

To show that the employer filed a petition on the employee’s behalf, it is suggested that the employer retain the following documents with the employee’s existing Form I-9:

  • A copy of the new Form I-129
  • Proof of payment for filing a new Form I-129
  • Evidence that you mailed the new Form I-129 to USCIS

Employers must reverify the employee’s employment authorization in Section 3 once USCIS makes a decision on the petition.

2.  H-2A

An H-2A worker, for whom, during his or her period of admission, a new employer files a petition for an extension of stay in H-2A status,may not work for he new employer until USCIS approves the Form I-129 petition, unless that employer is an E-Verify employer in good standing. An H-2A worker may work for an E-Verify employer as soon as that employer submits a new Form I-129 petition for the worker. In this case, the H-2A worker is authorized to work for up to 120 days from the “Received Date” on the receipt (Form I-797) USCIS will issue the employer upon receiving the petition.  The employer must remain an E-Verify employer in good standing in order for the H-2A worker to remain employment authorized while the petition is pending. If the employer terminates the company’s participation in E-Verify, the H-2A worker is not employment authorized.  

If USCIS denies the petition, the H-2A worker is authorized to work for 15 days after the denial date. While the petition is pending, the H-2A worker is subject to the same conditions and limitations as the initial authorization

Form I-9

The new employer must complete a new Form I-9 for this newly hired employee. The combination of the H-2A worker’s unexpired Form I-94/I-94A indicating his or her H-2A status and his or her foreign passport is a List A document.  If this document combination is presented, the new employer should write “120-Day Ext.” and the date he or she submitted the Form I-129 petition to USCIS in the margin of Form I-9 next to Section 2

To show that the employer filed a petition on the employee’s behalf, it is suggested that the employer keep the following documents with the employee’s existing Form I-9:

  • A copy of the new Form I-129
  • Proof of payment for filing a new Form I-129
  • Evidence that you mailed the new Form I-129 to USCIS
  • Receipt notice (Form I-797) acknowledging that USCIS has received the new Form I-129

Employers must reverify the employee’s employment authorization in Section 3 once USCIS makes a decision on the petition.

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