TABLE OF CHANGES – INSTRUCTIONS
Form I-129, Petition for a Nonimmigrant Worker
OMB Number: 1615-0009
07/12/2023
Reason for Revision: H2NPRM Project Phase: OMB Review
Legend for Proposed Text:
Expires 11/30/2025 Edition Date 11/02/2022 |
Current Page Number and Section |
Current Text |
Proposed Text |
|
[Page 1]
Instructions for Form I-129
General Information The Purpose of Form I-129/2 Who May File Form I-129?/3 General Filing Instructions/3 Classification-Initial Evidence/6
Part 1. Petition Always Required E-2 CNMI Classification/7 H Classifications/7 H-1B Data Collection/9 L Classification/16 O and P Classifications/17 Q-1 Classification/21 R-1 Classification/21
Part 2. Petition Only Required for an Alien in the United States to Change Status or Extend Stay E Classifications (not including E-2 CNMI)/22 Free Trade Nonimmigrant Classifications (H-1B1 and TNs)/24
Filing Requirements Written Consultation for O and P Nonimmigrants/25 What Is the Filing Fee?/26 When To File?/27 Where To File?/27
Additional Information Processing Information/28 USCIS Forms and Information/28 USCIS Privacy Act Statement/29 USCIS Compliance Review and Monitoring/29 Paperwork Reduction Act/30
Supplements to Form I-129 E-1/E-2 Classification Supplement/9 Trade Agreement Supplement/11 H Classification Supplement/13 H-1B Data Collection and Filing Fee Exemption Supplement/19 L Classification Supplement/22 O and P Classifications Supplement/26 Q-1 Classification Supplement/29 R-1 Classification Supplement/30 Attachment - 1 (Used when more than one alien is included on the form)/35
|
[Page 1]
Instructions for Form I-129
General Information The Purpose of Form I-129/2 Who May File Form I-129?/3 General Filing Instructions/3 Classification-Initial Evidence/6
Part 1. Petition Always Required E-2 CNMI Classification/7 H Classifications/7 H-1B Data Collection/9 L Classification/17 O and P Classifications/18 Q-1 Classification/22 R-1 Classification/23
Part 2. Petition Only Required for an Alien in the United States to Change Status or Extend Stay E Classifications (not including E-2 CNMI)/24 Free Trade Nonimmigrant Classifications (H-1B1 and TNs)/25
Filing Requirements Written Consultation for O and P Nonimmigrants/27 What Is the Filing Fee?/27 When To File?/28 Where To File?/29
Additional Information Processing Information/29 USCIS Forms and Information/29 USCIS Privacy Act Statement/30 USCIS Compliance Review and Monitoring/30 Paperwork Reduction Act/31
Supplements to Form I-129 E-1/E-2 Classification Supplement/9 Trade Agreement Supplement/11 H Classification Supplement/13 H-1B Data Collection and Filing Fee Exemption Supplement/19 L Classification Supplement/22 O and P Classifications Supplement/26 Q-1 Classification Supplement/29 R-1 Classification Supplement/30 Attachment - 1 (Used when more than one alien is included on the form)/35
|
Page 3,
Who May File Form I-129? |
[Page 3]
Who May File Form I-129?
General. A U.S. employer may file this form and applicable supplements to classify an alien in any nonimmigrant classification listed in Part 1. or Part 2. of these instructions. A foreign employer, U.S. agent, or association of U.S. agricultural employers may file for certain classifications as indicated in the specific instructions.
Agents. A U.S. individual or company in business as an agent may file a petition for workers who are traditionally self-employed or workers who use agents to arrange short-term employment on their behalf with numerous employers, and in cases where a foreign employer authorizes the agent to act on its behalf. A petition filed by an agent must include a complete itinerary of services or engagements, including dates, names, and addresses of the actual employers, and the locations where the services will be performed. A petition filed by a U.S. agent must guarantee the wages and other terms and conditions of employment by contractual agreement with the beneficiary or beneficiaries of the petition. The agent/employer must also provide an itinerary of definite employment and information on any other services planned for the period of time requested.
Including more than one alien in a petition. You may include on the same petition multiple aliens who seek admission in the H-2A, H-2B, H-3, P-1, P-2, P-3, P-1S, P-2S, P-3S, O-2, or Q-1 classifications provided all will:
1. Be employed for the same period of time; and
2. Perform the same services, receive the same training, or participate in the same international cultural exchange program.
NOTE: Employers must file a separate Form I-129 to petition for O and P essential support personnel apart from any petition they file for O or P principal aliens or P group or team. All essential-support beneficiaries listed on this petition must establish prior essentiality to the principal O or P aliens.
Exception: It is recommended that H-2A and H-2B petitions for workers from countries not listed on the respective “Eligible Countries List” be filed separately. See www.uscis.gov for the list of H-2A and H-2B participating countries.
Multiple locations. A petition for aliens to perform services or labor or receive training in more than one location must include an itinerary with the dates and locations where the services or training will take place.
Naming beneficiaries. All beneficiaries in a petition must be named except for an H-2A agricultural worker or an H-2B temporary nonagricultural worker.
Exceptions for H-2A/H-2B temporary workers: You must provide the name, date of birth, country of birth, and country of nationality of all H-2A and H-2B workers when (1) the petition is filed for a worker who is a national of a country not designated by the Secretary of Homeland Security as eligible to participate in the H-2A or H-2B program; or (2) the beneficiary is in the United States. In addition, USCIS may require the petitioner to name H-2B beneficiaries where the name is needed to establish eligibility for H-2B nonimmigrant status.
Where some or all of the beneficiaries are not named, specify the total number of unnamed beneficiaries and total number of beneficiaries in the petition.
|
[Page 3]
Who May File Form I-129?
General. A U.S. employer may file this form and applicable supplements to classify an alien in any nonimmigrant classification listed in Part 1. or Part 2. of these instructions. A foreign employer, U.S. agent, or association of U.S. agricultural employers may file for certain classifications as indicated in the specific instructions.
Agents. A U.S. individual or company in business as an agent may file a petition for workers who are traditionally self-employed or workers who use agents to arrange short-term employment on their behalf with numerous employers, and in cases where a foreign employer authorizes the agent to act on its behalf. A petition filed by an agent must include a complete itinerary of services or engagements, including dates, names, and addresses of the actual employers, and the locations where the services will be performed. A petition filed by a U.S. agent must guarantee the wages and other terms and conditions of employment by contractual agreement with the beneficiary or beneficiaries of the petition. The agent/employer must also provide an itinerary of definite employment and information on any other services planned for the period of time requested.
Including more than one alien in a petition. You may include on the same petition multiple aliens who seek admission in the H-2A, H-2B, H-3, P-1, P-2, P-3, P-1S, P-2S, P-3S, O-2, or Q-1 classifications provided all will:
1. Be employed for the same period of time; and
2. Perform the same services, receive the same training, or participate in the same international cultural exchange program.
NOTE: Employers must file a separate Form I-129 to petition for O and P essential support personnel apart from any petition they file for O or P principal aliens or P group or team. All essential-support beneficiaries listed on this petition must establish prior essentiality to the principal O or P aliens.
[deleted]
Multiple locations. A petition for aliens to perform services or labor or receive training in more than one location must include an itinerary with the dates and locations where the services or training will take place.
Naming beneficiaries. All beneficiaries in a petition must be named except for an H-2A agricultural worker or an H-2B temporary nonagricultural worker.
Exceptions for H-2A/H-2B temporary workers: You must provide the name, date of birth, country of birth, and country of nationality of all H-2A and H-2B workers if the beneficiary is in the United States. In addition, USCIS may require the petitioner to name H-2B beneficiaries where the name and other identifiers listed above are needed to establish eligibility for H-2B nonimmigrant status.
Where some or all of the beneficiaries are not named, specify the total number of unnamed beneficiaries and total number of beneficiaries in the petition.
|
Page 7-22,
|
[Page 7]
Part 1. Petition Always Required
…
H-2A Nonimmigrants
The H-2A classification is for aliens coming to the United States temporarily to perform agricultural labor or services of a temporary or seasonal nature.
Write H-2A in the classification block.
The petition may be filed by:
1. The employer listed on the temporary labor certification;
2. The employer’s agent; or
3. The association of U.S. agricultural producers named as a joint employer on the temporary labor certification.
The petitioner, employer (if different from the petitioner), and each joint employer must complete and sign the relevant sections of the H Classification Supplement.
Additionally, the petitioner must submit:
1. A single valid temporary labor certification from the U.S. Department of Labor;* and
2. Evidence showing that each named beneficiary meets the minimum job requirements stated in the temporary labor certification at the time the certification application was filed.
*Under certain emergent circumstances, as determined by USCIS, petitions requesting a continuation of employment with the same employer for 2 weeks or less are exempt from the temporary labor certification requirement. See 8 CFR 214.2(h)(5)(x).
E-Verify and H-2A Petitions
In certain cases, H-2A workers may start work immediately after a petitioner files a Form I-129 on their behalf. This may happen only if:
1. The petitioner is a participant in good standing in the E-Verify program; and
2. The requested workers are currently in the United States in a lawful nonimmigrant status, and either:
[Page 13]
A. Changing status to H-2A, or
B. Extending their stay in H-2A status by changing employers.
If the petitioner and the requested H-2A workers meet these criteria, provide the E-Verify Company ID or Client Company ID in Section 2., Complete This Section If Filing For H-A or H-2B Classification, of the H Classification Supplement. See 8 CFR 274a.12(b)(21) for more information.
H-2B Nonimmigrants
The H-2B classification is for aliens coming to the United States temporarily to engage in nonagricultural services or labor that is based on the employer’s seasonal, intermittent, peak load, or one-time need.
Write H-2B in the classification block.
The petition must be filed by a U.S. employer, a U.S. agent, or a foreign employer filing through a U.S. agent. The petitioner and employer (if different from the petitioner) must complete and sign the relevant sections of the H Classification Supplement.
Additionally, the petitioner must submit:
1. An approved temporary labor certification from the U.S. Department of Labor (or the Governor of Guam, if the employment will occur in Guam);** and
2. Evidence showing that each named beneficiary meets the minimum job requirements, if any, stated on the temporary labor certification.
**Petitions filed on behalf of Canadian musicians who will be performing for 1 month or less within 50 miles of the U.S. - Canadian border do not require a temporary labor certification. Petitions which require work in the jurisdictions of both the U.S. and Guam Departments of Labor must submit an approved temporary labor certification from each agency.
H-2B Start Date
A petition for H-2B workers must request an employment start date that matches the start date approved by the Department of Labor on the temporary labor certification. Petitions without matching start dates may be denied. This does not apply to amended petitions which request to substitute H-2B workers using the same temporary labor certificate.
Additional Information Regarding H-2A and H-2B Petitions
Naming Beneficiaries
Generally, you may request unnamed workers as beneficiaries of an H-2A or H-2B petition. You may also request some named and some unnamed workers, as long as you are requesting the same action for each worker. However, the total number of workers you request on the petition must not exceed the number of workers approved by the Department of Labor or Guam Department of Labor, if required, on the temporary labor certification.
Workers must be named if you request workers who:
1. Are currently in the United States;
2. Are nationals of countries that are not on the eligible countries list (see link and information below); or
3. Must meet minimum job requirements described on the temporary labor certification.
Eligible Countries List
H-2A and H-2B petitions may generally only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2 program. The current list of eligible countries is located at www.uscis.gov/h-2a and www.uscis.gov/h-2b.
Nationals of countries that are not eligible to participate in the H-2 program may still be named as beneficiaries on an H-2A or H-2B petition. To do so, you must:
1. Name each beneficiary who is not from an eligible country; and
2. Provide evidence to show that it is in the U.S. interest for the alien to be the beneficiary of such a petition.
[Page 14]
USCIS’ determination of what constitutes U.S. interest takes into account certain factors, including but not limited to:
1. Evidence demonstrating that a worker with the required skills is not available from among foreign workers from a country currently on the eligible countries list;
NOTE: Also, for H-2A petitions only, the petitioner must submit evidence demonstrating that a U.S. worker with the required skills is not available.
2. Evidence that the beneficiary has been admitted to the United States previously in H-2A or H-2B status;
3. The potential for abuse, fraud, or other harm to the integrity of the H-2A or H-2B visa program through the potential admission of a beneficiary from a country not currently on the eligible countries list; and
4. Such other factors as may serve the U.S. interest.
Prohibited Fees
As a condition of approval of an H-2A or H-2B petition, no job placement fee or other compensation (either direct or indirect) may be collected at any time from a beneficiary of an H-2A or H-2B petition. This includes collection by a petitioner, agent, facilitator, recruiter, or similar employment service, as a condition of employment, whether before or after the filing or approval of a petition. Unless the payment of such fees by a worker is prohibited under law, the only exceptions to this are:
1. The lower of the actual cost or fair market value of transportation to the offered employment; and
2. Any government-mandated passport, visa, or inspection fees.
If USCIS determines any of the following have occurred, the petition will be denied or revoked. The only exceptions to a mandatory denial or revocation are found at 8 CFR 214.2(h)(5)(xi)(A)(4) and 8 CFR 214.2(h)(6)(i)(B)(4):
1. You collected, or entered into an agreement to collect, prohibited fees as described above;
2. You knew, or should have known, at the time of filing the petition that the beneficiary paid, or agreed to pay, any agent, facilitator, recruiter, or similar employment service as a condition of employment;
3. The beneficiary paid you prohibited fees or compensation as a condition of employment after the petition was filed; or
4. You knew, or had reason to know, that the beneficiary paid, or agreed to pay, the agent, facilitator, recruiter, or similar employment service prohibited fees after the petition was filed.
The petition should be filed with evidence that indicates the beneficiaries have not paid, and will not pay, prohibited fees to the best of your knowledge.
Interrupted Stays
Interrupted stays are certain periods of time that a worker spends outside the United States during an authorized period of stay in H-2A or H-2B status. An interrupted stay does not count toward the worker’s maximum 3-year limit in the classification.
An H-2A or H-2B worker may qualify for an interrupted stay under the following conditions:
If the worker was in the United States in H-2 status for an aggregate period of: Then H-2 time is interrupted if he or she is outside the United States for:
18 months or less At least 45 days, but less than 3 months
More than 18 months, but less than 3 years At least 2 months
Time in H-2A or H-2B status is not automatically interrupted if the worker departs the United States. It is considered interrupted only if the guidelines in the above chart are met. For more on interrupted stays, see www.uscis.gov.
Notification Requirements
By filing an H-2A or H-2B petition, you agree to notify USCIS within 2 work days if an H-2A or H-2B worker:
1. Fails to report to work within 5 workdays after the employment start date stated on the petition or within 5 workdays after the start date as established by the H-2A employer, whichever is later;
[Page 15]
2. Completes the labor or services more than 30 days earlier than the employment end date stated on the petition;
3. Absconds from the worksite; or
4. Is terminated prior to the completion of the services or labor.
Failure to comply with this agreement may result in penalties. See www.uscis.gov for more information.
Filing Multiple Petitions
You generally may file one petition to request all of your H-2A or H-2B workers associated with one temporary labor certification. In cases where filing a separate petition is not required, it may be advantageous to file more than one H-2A or H-2B petition instead. This can occur when you petition for multiple workers, some of whom may not qualify for part or all of the validity period you request. This most frequently occurs when:
1. Some of the workers you request are not nationals of a country on the eligible countries list;
2. You request interrupted stays for workers; or
3. At least one worker is nearing the 3-year maximum stay limit.
If we request additional evidence because of these situations, it may delay petition processing. Filing separate petitions for workers who are not affected by these scenarios may enable you to quickly obtain some workers, if they are otherwise eligible, in the event that the petition for your other workers is delayed.
If you decide to file more than one petition with the same temporary labor certification, you may do so if:
1. One petition is accompanied by the original temporary labor certification;
2. The total number of beneficiaries on your petitions does not exceed the total number of workers approved by the U.S. Department of Labor on the temporary labor certification; and
3. The other petitions are accompanied by copies of the same temporary labor certification, along with an attachment explaining why the original was not submitted.
[new]
[moved down from above]
[new]
[moved down from above]
[new]
[moved down from above]
H-3 Nonimmigrants (Two Types)
… |
[Page 7]
Part 1. Petition Always Required
…
[Page 12]
H-2A Nonimmigrants
The H-2A classification is for aliens coming to the United States temporarily to perform agricultural labor or services of a temporary or seasonal nature.
Write H-2A in the classification block.
The petition may be filed by:
1. The employer listed on the temporary labor certification;
2. The employer’s agent; or
3. The association of U.S. agricultural producers named as a joint employer on the temporary labor certification.
The petitioner, employer (if different from the petitioner), and each joint employer must complete and sign the relevant sections of the H Classification Supplement. A separate Part C. of the H Classification Supplement must be submitted for each joint employer.
Additionally, the petitioner must submit:
1. A single valid temporary labor certification from the U.S. Department of Labor;* and
2. Evidence showing that each named beneficiary meets the minimum job requirements stated in the temporary labor certification at the time the certification application was filed.
*Under certain emergent circumstances, as determined by USCIS, petitions requesting a continuation of employment with the same employer for 2 weeks or less are exempt from the temporary labor certification requirement. See 8 CFR 214.2(h)(5)(x).
[deleted]
H-2B Nonimmigrants
The H-2B classification is for aliens coming to the United States temporarily to engage in nonagricultural services or labor that is based on the employer’s seasonal, intermittent, peak load, or one-time need.
Write H-2B in the classification block.
The petition must be filed by a U.S. employer, a U.S. agent, or a foreign employer filing through a U.S. agent. The petitioner and each employer (if different from the petitioner) must complete and sign the relevant sections of the H Classification Supplement.
Additionally, the petitioner must submit:
1. An approved temporary labor certification from the U.S. Department of Labor (or the Governor of Guam, if the employment will occur in Guam);** and
[Page 13]
2. Evidence showing that each named beneficiary meets the minimum job requirements, if any, stated on the temporary labor certification.
**Petitions filed on behalf of Canadian musicians who will be performing for 1 month or less within 50 miles of the U.S. - Canadian border do not require a temporary labor certification. Petitions which require work in the jurisdictions of both the U.S. and Guam Departments of Labor must submit an approved temporary labor certification from each agency.
H-2B Start Date
A petition for H-2B workers must request an employment start date that matches the start date approved by the U.S. Department of Labor or Guam Department of Labor on the temporary labor certification. Petitions without matching start dates may be denied. This does not apply to amended petitions which request to substitute H-2B workers using the same temporary labor certificate.
Additional Information Regarding H-2A and H-2B Petitions
Naming Beneficiaries
Generally, you may request unnamed workers as beneficiaries of an H-2A or H-2B petition. You may also request some named and some unnamed workers, as long as you are requesting the same action for each worker. However, the total number of workers you request on the petition must not exceed the number of workers approved by the U.S. Department of Labor or Guam Department of Labor, if required, on the temporary labor certification.
Workers must be named if you request workers who are currently in the United States.
[deleted]
[moved down]
[deleted]
[moved down]
Filing Multiple Petitions
You generally may file one petition to request all of your H-2A or H-2B workers associated with one temporary labor certification. In cases where filing a separate petition is not required, it may be advantageous to file more than one H-2A or H-2B petition instead. This can occur when you petition for multiple workers, some of whom may not qualify for part or all of the validity period you request. This most frequently occurs when:
[deleted]
1. You request workers who have an uninterrupted period of absence of at least 60 days from the United States; or
2. At least one worker is nearing the 3-year maximum stay limit.
If we request additional evidence because of these situations, it may delay petition processing. Filing separate petitions for workers who are not affected by these scenarios may enable you to quickly obtain some workers, if they are otherwise eligible, in the event that the petition for your other workers is delayed.
If you decide to file more than one petition with the same temporary labor certification, you may do so if:
[deleted]
1. The total number of beneficiaries on your petitions does not exceed the total number of workers approved by the U.S. Department of Labor on the temporary labor certification; and
2. Each petition is accompanied by a copy of the same temporary labor certification.
Period of Absence
An absence from the United States for an uninterrupted period of at least 60 days will provide a new total of 3 years of H-2A or H-2B status that may be granted.
The 3-year maximum period of stay in H-2A or H-2B status does not automatically restart if the worker departs the United States. It restarts only if the absence is for a continuous period of at least 60 days.
Recruitment of H-2A and H-2B Workers
You must provide the name(s) and address(es) of all agents, facilitators, recruiters, or similar employment services hired by or working for you to locate and/or recruit the H-2A or H-2B workers that you intend to hire by filing this petition, regardless of whether you have a direct or indirect contractual relationship, and whether such person or entity is located inside or outside the United States or is a governmental or quasi-governmental entity.
[Page 14]
Prohibited H-2A and H-2B Fees
As a condition of approval of an H-2A or H-2B petition, no job placement fee, fee or penalty for breach of contract, or other fee, penalty, or compensation (either direct or indirect) related to the H-2A or H-2B employment (collectively, “prohibited fees”) may be collected at any time from a beneficiary of an H-2A or H-2B petition by a petitioner, a petitioner’s employee, agent, facilitator, recruiter, or similar employment service, whether or not such person or entity is located in the United States or is a governmental or quasi-governmental entity, or any employer (if different from the petitioner). Further, in the H-2A context, no such fee related to the H-2A employment may be collected by a petitioner’s joint employers, including a petitioner’s member employers if the petitioner is an association of United States agricultural producers, whether before or after the filing or approval of a petition. Such a prohibited fee may include, but is not limited to, deduction or withholding of wages or salary. The passing of a cost to the beneficiary that, by statute or applicable regulations is the responsibility of the petitioner, constitutes the collection of a prohibited fee.
This prohibition does not include reimbursement for costs that are the responsibility and primarily for the benefit of the worker, such as government-required passport fees.
The petition should be filed with evidence that indicates the beneficiaries have not paid, and will not pay, prohibited fees.
Your petition will be denied or revoked if USCIS determines you or any agent, facilitator, recruiter, or similar employment service, or any employer or joint employer, collected, or entered into an agreement to collect, prohibited fees, as described above, whether before or after the filing of the petition.
The only exceptions to a mandatory denial or revocation for prohibited fees are as follows:
If the petitioner or any of its employees collected or entered into an agreement to collect a prohibited fee, a petitioner must demonstrate through clear and convincing evidence that extraordinary circumstances beyond the petitioner’s control resulted in its failure to prevent the collection or entry into agreement for collection of prohibited fees, and that it has fully reimbursed all affected beneficiaries or the beneficiaries’ designees. To qualify for this exception, you must establish that:
1. The circumstances were rare and unforeseeable; 2. You made significant efforts to prevent prohibited fees prior to the collection of or agreement to collect such fees; 3. You took immediate remedial action as soon as you became aware of the prohibited fees, including ensuring the termination of any agreement to collect such fees; and 4. You have fully reimbursed all affected beneficiaries or the beneficiaries’ designees if applicable (see note below).
If any employer, agent, attorney, facilitator, recruiter, or similar employment service collected or entered into an agreement to collect a prohibited fee, a petitioner must demonstrate through clear and convincing evidence that:
1. The petitioner did not know and could not, through due diligence, have learned of such payment or agreement. (A written contract between the petitioner and any agent, attorney, facilitator, recruiter, similar employment service, or member employer stating that such fees were prohibited will not, by itself, be sufficient to meet this standard of proof.); and 2. All affected beneficiaries or the beneficiaries’ designees, if applicable, have been fully reimbursed (see note below).
NOTE: A beneficiary’s designee may be reimbursed only if an affected beneficiary cannot be located or is deceased. A designee must be an individual or entity for whom the beneficiary has provided prior written authorization to receive such reimbursement, as long as the petitioner or its agent, employer, attorney, facilitator, recruiter, or similar employment service would not act as such designee or derive any financial benefit, either directly or indirectly, from the reimbursement.
If your petition was denied or revoked for prohibited fees, or if you withdrew your petition after USCIS issued a notice of intent to deny or revoke on this basis, any H-2A or H-2B petition that you or your successor in interest files within 1 year after the decision or acknowledgment of withdrawal will be barred from approval. After such 1-year period, any H-2A or H-2B petition that you or your successor in interest files will be barred from approval for an additional 3 years unless each affected beneficiary, or their designee as appropriate, has been reimbursed in full. A bar from approval on this basis will apply to petitions seeking classification in both H-2A and H-2B classifications regardless of whether the denial, revocation, or withdrawal occurred in the H-2A or H-2B program. See 8 CFR 214.2(h)(5)(xi) and 8 CFR 214.2(h)(6)(i).
[Page 15]
Other Violations
Under the regulations at 8 CFR 214.2(h)(10)(iii), USCIS has the authority to deny H-2A or H-2B petitions if the petitioner has been found to have committed certain serious labor law violations or otherwise violated the requirements of the H-2A or H-2B program. Prospective denials under this provision will apply across both H-2 classifications regardless of whether the violation occurred in the H-2A or H-2B program. For the purposes of this denial authority, a criminal conviction or final administrative or judicial determination against any one of the following individuals will be treated as a conviction or final administrative or judicial determination against the petitioner or successor in interest:
1. An individual acting on behalf of the petitioning entity, which could include, among others, the petitioner’s owner, employee, or contractor; or 2. For the purposes of discretionary denial, any employee of the petitioning entity who a reasonable person in the H-2A or H-2B worker’s position would believe is acting on behalf of the petitioning entity.
The term “successor in interest” is defined at 8 CFR 214.2(h)(5)(xi)(C) and (6)(i)(D). Whether the denial is mandatory or discretionary will depend on the nature of the past violation(s), as described below.
Mandatory Denial
USCIS is required by regulation to deny any H-2A or H-2B petition filed by a petitioner (or its successor in interest) that has been the subject of one or more of the following actions:
1. A final administrative determination by the Secretary of Labor debarring the petitioner from filing or receiving a future labor certification under 20 CFR part 655 subpart A or B, or 29 CFR parts 501 or 503, or a final administrative determination by the Governor of Guam debarring the petitioner from issuance of future labor certifications under applicable Guam regulations and rules, if the petition is filed during the debarment period, or if the debarment occurs during the pendency of the petition.
2. A final USCIS denial or revocation decision with respect to a prior H-2A or H-2B petition that includes a finding of fraud or willful misrepresentation of a material fact during the pendency of the petition or within 3 years prior to filing the petition.
3. A final determination of violation(s) under section 274(a) of the Act during the pendency of the petition or within 3 years prior to filing the petition.
Discretionary Denial
USCIS may deny any H-2A or H-2B petition filed by a petitioner (or its successor in interest) that has been the subject of one or more of the following actions during the pendency of the petition (except as provided in Item 1.A. below), or within 3 years prior to filing the petition, if USCIS determines that the underlying violation(s) calls into question the petitioner’s or successor’s intention or ability to comply with H-2A or H-2B program requirements:
1. A final administrative determination by the Secretary of Labor or Governor of Guam with respect to a prior H-2A or H-2B temporary labor certification that includes:
A. Revocation of an approved temporary labor certification under 20 CFR 655 Subpart A or B, or applicable Guam regulations and rules;
B. Debarment under 20 CFR 655 subpart A or B, or 29 CFR parts 501 or 503, or applicable Guam regulations and rules, if the debarment period has concluded prior to filing the petition; or
C. Any other administrative sanction or remedy under 29 CFR part 501 or 503, or applicable Guam regulations and rules, including assessment of civil money penalties as described in those parts.
2. A USCIS decision revoking the approval of a prior petition that includes one or more of the following findings: the beneficiary was not employed by the petitioner in the capacity specified in the petition; the statement of facts contained in the petition or on the application for a temporary labor certification was not true and correct, or was inaccurate; the petitioner violated terms and conditions of the approved petition; or the petitioner violated requirements of section 101(a)(15)(H) of the Act or paragraph (h) of this section.
[Page 16] 3. Any Federal, state, or local final administrative or judicial determination (other than one described in paragraph (A)) that the petitioner violated any applicable employment-related laws or regulations, including health and safety laws or regulations.
If you have been the subject of one of the above determinations, you must demonstrate to USCIS that the underlying violation(s) does not call into question your intent and ability to comply with H-2 program requirements. In determining whether the violation(s) underlying the above determinations call into question the petitioner’s (or successor’s) intent and ability to comply with H-2 program requirements, USCIS will consider all relevant factors including, but not limited to:
1. The recency and number of violations;
2. The egregiousness of the violation(s), including how many workers were affected, and whether it involved a risk to the health or safety of workers;
3. Overall history or pattern of prior violations;
4. The severity or monetary amount of any penalties imposed;
5. Whether the final determination, decision, or conviction included a finding of willfulness;
6. The extent to which the violator achieved a financial gain due to the violation(s), or the potential financial loss or potential financial injury to the workers;
7. Timely compliance with all penalties and remedies ordered under the final determination(s), decision(s), or conviction(s); and
8. Other corrective actions taken by the petitioner or its successor in interest to cure its violation(s) or prevent future violations.
NOTE: You should submit any evidence that relates to the above factors or that is otherwise relevant to your past violations and/or your intent and ability to comply with program requirements going forward.
Notification Requirements
By filing an H-2A or H-2B petition, you agree to notify USCIS within 2 workdays if an H-2A or H-2B worker:
1. Does not report to work within 5 workdays after the employment start date stated on the petition or within 5 workdays after the start date as established by the H-2A employer, whichever is later;
2. Completes the labor or services more than 30 days earlier than the employment end date stated on the petition;
3. Does not report for work for a period of 5 consecutive workdays without the consent of the employer; or
4. Is terminated prior to the completion of the services or labor.
The above notification requirement is an employer obligation and does not establish wrongdoing on the part of the worker. Further, USCIS does not consider the information provided in an employer notification, alone, to be conclusive evidence regarding the worker’s current status.
Failure to comply with this agreement may result in penalties against the petitioner. See www.uscis.gov/h-2a and www.uscis.gov/h-2b, respectively, for more information, including the appropriate manner of notifying DHS.
H-3 Nonimmigrants (Two Types)
…
|
Page 30,
Paperwork Reduction Act |
[Page 30]
Paperwork Reduction Act
An agency may not conduct or sponsor an information collection, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The public reporting burden for this collection of information is estimated for Form I-129 at 2.34 hours; E-1/E-2 Classification at .67 hours; Trade Agreement Supplement at .67 hours; H Classification Supplement at 2 hours; H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement at 1 hour; L Classification Supplement to Form I-129 at 1.34 hours; P Classifications Supplement to Form I-129 at 1 hour; Q-1 Classification Supplement at .34 hours; R-1 Classification Supplement at 2.34 hours; and Form I-129 ATT at .33 hours, including the time for reviewing instructions, gathering the required documentation and completing and submitting the request. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: U.S. Citizenship and Immigration Services, Regulatory Coordination Division, Office of Policy and Strategy, 5900 Capital Gateway Drive, Mail Stop #2140, Camp Springs, MD 20588-0009; OMB No 1615-0009. Do not mail your completed Form I-129 to this address.
|
[Page 31]
Paperwork Reduction Act
An agency may not conduct or sponsor an information collection, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The public reporting burden for this collection of information is estimated for Form I-129 at 2.34 hours; E-1/E-2 Classification at .67 hours; Trade Agreement Supplement at .67 hours; H Classification Supplement at 2.3 hours; H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement at 1 hour; L Classification Supplement to Form I-129 at 1.34 hours; P Classifications Supplement to Form I-129 at 1 hour; Q-1 Classification Supplement at .34 hours; R-1 Classification Supplement at 2.34 hours; and Form I-129 ATT at .33 hours, including the time for reviewing instructions, gathering the required documentation and completing and submitting the request. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: U.S. Citizenship and Immigration Services, Regulatory Coordination Division, Office of Policy and Strategy, 5900 Capital Gateway Drive, Mail Stop #2140, Camp Springs, MD 20588-0009; OMB No 1615-0009. Do not mail your completed Form I-129 to this address.
|
| File Type | application/vnd.openxmlformats-officedocument.wordprocessingml.document |
| File Title | I-129 |
| Author | Hallstrom, Samantha M |
| File Modified | 0000-00-00 |
| File Created | 2023-10-16 |