TABLE OF CHANGES – INSTRUCTIONS
Form I-129, Petition for a Nonimmigrant Worker
OMB Number: 1615-0009
12/10/2024
Reason for Revision: H-2 Final Rule Project Phase: OMBReview
Legend for Proposed Text:
Expires 02/28/2027 Edition Date 04/01/2024 |
Current Page Number and Section |
Current Text |
Proposed Text |
Page 3, Who May File Form I-129? |
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Who May File Form I-129?
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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 nonimmigrants or P group or team. All essential-support beneficiaries listed on this petition must establish prior essentiality to the principal O or P nonimmigrants.
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 beneficiaries 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. You may not request both named and unnamed workers on the same H-2A or H-2B petition.
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.
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Who May File Form I-129?
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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 nonimmigrants or P group or team. All essential-support beneficiaries listed on this petition must establish prior essentiality to the principal O or P nonimmigrants.
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Multiple locations. A petition for beneficiaries 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 who is not currently inside the United States. You may not request both named and unnamed workers on the same H-2A or H-2B petition. 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.
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Pages 3-6, General Filing Instructions |
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General Filing Instructions
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C. Extend the stay of each beneficiary who now holds this status. Check this box if the beneficiary is currently in the United States in a nonimmigrant classification and is requesting an extension of his or her stay in the same nonimmigrant classification.
Exception: If the beneficiary seeks to extend his/her stay in H1B1 Chile/Singapore or TN classification, see Item e. below. …
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General Filing Instructions
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C. Extend the stay of each beneficiary who now holds this status. Check this box if the beneficiary is currently in the United States in a nonimmigrant classification and is requesting an extension of his or her stay in the same nonimmigrant classification.
Exception: If the beneficiary seeks to extend his/her stay in H-1B1 Chile/Singapore or TN classification, see Item e. below. …
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Pages 7-24, Part 1. Petition Always Required |
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Part 1. Petition Always Required
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H-2A Nonimmigrants
The H-2A classification is for beneficiaries 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.
Total number of workers: The total number of workers you request on an H-2A petition must not exceed the number of workers approved by the Department of Labor on the temporary labor certification. If naming beneficiaries, a single H-2A petition may not include more than 25 named workers. A petitioner may file additional petitions if requesting more than 25 named workers.
Naming beneficiaries. Generally, you may request named or unnamed workers as beneficiaries of an H-2A petition. However, you may not request both named and unnamed workers on the same H-2A petition.
Workers must be named if you request workers who:
1. Are currently in the United States; and
2. Are nationals of countries that are not on the eligible countries list (see link and information below).
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:
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-2A 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 beneficiaries 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.
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Write H-2B in the classification block.
Total number of workers: The total number of workers you request on an H-2B petition must not exceed the number of workers approved by the Department of Labor on the temporary labor certification. If naming beneficiaries, a single H-2B petition may not include more than 25 named workers. A petitioner may file additional petitions if requesting more than 25 named workers.
Naming beneficiaries. Generally, you may request named or unnamed workers as beneficiaries of an H-2B petition. However, you may not request both named and unnamed workers on the same H-2B petition.
Workers must be named if you request workers who:
1. Are currently in the United States; and
2. Are nationals of countries that are not on the eligible countries list (see link and information below).
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
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 national to be the beneficiary of such a petition.
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;
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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.
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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;
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.
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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 (with a limit of 25 named workers per petition). 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.
H-3 Nonimmigrants (Two Types)
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Part 1. Petition Always Required
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H-2A Nonimmigrants
The H-2A classification is for beneficiaries 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.
Total number of workers: The total number of workers you request on an H-2A petition must not exceed the number of workers approved by the Department of Labor on the temporary labor certification. If naming beneficiaries, a single H-2A petition may not include more than 25 named workers. A petitioner may file additional petitions if requesting more than 25 named workers.
Naming beneficiaries. Generally, you may request named or unnamed workers as beneficiaries of an H-2A petition. However, you may not request both named and unnamed workers on the same H-2A petition.
Workers must be named if you request workers who are currently in the United States.
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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 H-2A 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).
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H-2B Nonimmigrants
The H-2B classification is for beneficiaries 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.
Total number of workers: The total number of workers you request on an H-2B petition must not exceed the number of workers approved by the Department of Labor on the temporary labor certification. If naming beneficiaries, a single H-2B petition may not include more than 25 named workers. A petitioner may file additional petitions if requesting more than 25 named workers.
Naming beneficiaries. Generally, you may request named or unnamed workers as beneficiaries of an H-2B petition. However, you may not request both named and unnamed workers on the same H-2B petition.
Workers must be named if you request workers who are currently in the United States.
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The H-2B petition must be filed by a U.S. employer, a U.S. agent, or a foreign employer filing through a U.S. agent. The H-2B petitioner and employer (if different from the petitioner) must complete and sign the relevant sections of the H Classification Supplement.
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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 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 certification.
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Additional Information Regarding H-2A and H-2B Petitions
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 or any person acting on the beneficiary’s behalf by a petitioner, a petitioner’s employee, agent, attorney, facilitator, recruiter, or similar employment service, or any employer (if different from the petitioner). The term “similar employment service” refers to any person or entity that recruits or solicits prospective beneficiaries of the H-2 petition. This includes recruitment or employment services offered by private, nongovernmental individuals and entities, as well as quasi-governmental entities and governmental entities, whether or not such person or entity is located in the United States. 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. Prohibited fees may include, but are not limited to, deduction or withholding of wages or salary, whether or not such deduction or withholding of wages or salary provides some benefit to the beneficiary. 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.
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It is not prohibited for workers to provide reimbursement for costs paid on their behalf that are the responsibility and primarily for the benefit of the worker, such as government-required passport fees. Furthermore, it is not prohibited for employers to reimburse a worker for fees or expenses incurred by the worker where such reimbursement is specifically permitted by, and made in compliance with, all applicable federal, state and/or local statute or regulations.
The petition should be filed with evidence that indicates the beneficiaries have not paid, and will not pay, prohibited fees.
The petition will be denied or revoked if USCIS determines that the petitioner or any petitioner’s employee, agent, attorney, 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:
1. The petitioner made ongoing, good faith reasonable efforts to prevent and learn of the prohibited fee(s) collection or agreement by such parties throughout the recruitment, hiring, and employment process; 2. Extraordinary circumstances beyond the petitioner’s control resulted in the petitioner’s failure to prevent collection or entry into agreement for collection of prohibited fees; 3. The petitioner took immediate remedial action as soon as the petitioner became aware of the payment or agreement to pay prohibited fees, including ensuring the termination of any agreement to collect such fees; and 4. The petitioner fully reimbursed all affected beneficiaries or the beneficiaries’ designees if applicable (see note below).
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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 made ongoing, good faith reasonable efforts to prevent and learn of the prohibited fee(s) collection or agreement by such parties throughout the recruitment, hiring, and employment process. (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.); 2. The petitioner took immediate remedial action as soon as it became aware of the payment of the prohibited fee or agreement; and 3. 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 the petition was denied or revoked for prohibited fees, or if the petitioner withdrew the petition after USCIS issued a notice of intent to deny or revoke on this basis, any H-2A or H-2B petition that the petitioner or the petitioner’s successor in interest files within 1 year after the decision or acknowledgment of withdrawal will be denied. After such 1-year period, any H-2A or H-2B petition that the petitioner or the petitioner’s successor in interest files will be denied for an additional 3 years unless each affected beneficiary, or their designee as appropriate, has been reimbursed in full. Denial on this basis will apply to petitions for both the H-2A and H-2B classifications regardless of whether the denial, revocation, or withdrawal occurred in the H-2A or H-2B program.
Other Violations
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 petitioner, which could include, among others, the petitioner’s owner, employee, or contractor; or 2. For the purposes of discretionary denial, any employee of the petitioner who a reasonable person in the H-2A or H-2B worker’s position would believe is acting on behalf of the petitioner.
The term “successor in interest” means an employer that is controlling and carrying on the business of a previous employer regardless of whether such successor in interest has succeeded to all of the rights and liabilities of the predecessor entity. USCIS looks at 8 CFR 214.2(h)(5)(xi)(C) and (6)(i)(D) to determine whether an employer is a successor in interest.
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 on or after [EFFECTIVE DATE OF FINAL RULE] 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, 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, and the final administrative determination debarring the petitioner is made on or after [EFFECTIVE DATE OF FINAL RULE];
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2. A final USCIS denial or revocation decision made on a prior H-2A or H-2B petition filed on or after [EFFECTIVE DATE OF FINAL RULE] 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; or
3. A final determination of violation(s) under section 274(a) of the Act made on or after [EFFECTIVE DATE OF FINAL RULE], and 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) on or after [EFFECTIVE DATE OF FINAL RULE], 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 and/or ability to comply with H-2A or H-2B program requirements.
1. A final administrative determination by the Secretary of the U.S. Department 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, 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 final 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.
3. Any Federal, state, or local final administrative or judicial determination (other than one described in 8 CFR 214.2(h)(10)(iv)(A)) that the petitioner violated any applicable employment-related laws or regulations, including health and safety laws or regulations.
If the petitioner has been the subject of one of the above determinations, the petitioner must demonstrate to USCIS that the underlying violation(s) does not call into question its 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 violation(s);
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 violation(s);
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.
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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. If USCIS has previously determined that a petitioner (or the preceding entity, if the petitioner is a successor in interest) has established its intention and the ability to comply with H-2A or H-2B program requirements based on the same violation(s), USCIS will not seek to deny a petition under paragraph (h)(10)(iv)(B), unless there is evidence of a new material fact or if USCIS determines that its previous determination was based on a material error of law.
Notification Requirements
By filing an H-2A or H-2B petition, the petitioner agrees to notify USCIS within 2 work days 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.
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 (with a limit of 25 named workers per petition). In cases where filing a separate petition is not required, it may nevertheless 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:
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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:
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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
The petitioner must provide the name(s) and address(es) of all agents, facilitators, recruiters, or similar employment services hired by or working for the petitioner to locate and/or recruit the H-2A or H-2B workers that the petitioner intends to hire by filing this petition. The petitioner must provide this information regardless of whether the petitioner has 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 18]
NOTE: U.S. Department of Labor regulations require H-2A petitioners to continue to keep foreign labor recruiter information up to date until the end of the work contract period, with this updated information available in the event of a post-certification audit or upon request by the Department of Labor. Additionally, the Department of State may request up to date foreign labor recruiter information at the time of visa application.
H-3 Nonimmigrants (Two Types)
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Page 30, Paperwork Reduction Act |
[Page 30]
Paperwork Reduction Act
USCIS may not conduct or sponsor an information collection, and you are 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 2.487 hours; E-1/E-2 Classification at 0.67 hours; Trade Agreement Supplement at 0.67 hours; H Classification Supplement at 2.07 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 0.34 hours; R-1 Classification Supplement at 2.34 hours; and Form I-129 ATT at 0.33 hours, including the time for reviewing instructions, gathering the required documentation and information, completing the petition, preparing statements, attaching necessary documentation, and submitting the petition. 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, Office of Policy and Strategy, Regulatory Coordination Division, 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.
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[Page 31]
Paperwork Reduction Act
USCIS may not conduct or sponsor an information collection, and you are 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 2.487 hours; E-1/E-2 Classification at 0.67 hours; Trade Agreement Supplement at 0.67 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 0.34 hours; R-1 Classification Supplement at 2.34 hours; and Form I-129 ATT at 0.33 hours, including the time for reviewing instructions, gathering the required documentation and information, completing the petition, preparing statements, attaching necessary documentation, and submitting the petition. 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, Office of Policy and Strategy, Regulatory Coordination Division, 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.
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| File Type | application/vnd.openxmlformats-officedocument.wordprocessingml.document |
| File Title | I-129 |
| Author | Hallstrom, Samantha M |
| File Modified | 0000-00-00 |
| File Created | 2024-12-22 |