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E1—I am an employer…How do I hire a foreign national for short-term employment in the United States?
M-582B (October 2013) N
Am I required to file an application or other request with
the U.S. Department of Labor for each foreign national
employee?
Certification from the Department of Labor (DOL) is required
onlyfortheH-1B,H-2A,andH-2Bnonimmigrantclassifications.
You must first request certification from DOL before submitting
yourI-129petitiontoUSCIS.ForH-1Bnonimmigrants,aLabor
Condition Application
,andforH-2AandH-2Bnonimmigrants,
an Application for Temporary Employment Certification must
be filed in accordance with DOL instructions. For filing instructions
and other information, please see the DOL Web site at www.
foreignlaborcert.doleta.gov. DOL certification is not required for
the other nonimmigrant, employment-based, or investor-based visa
classifications previously listed.
What happens after I file a Form I-129, Petition for a
Nonimmigrant Worker?
Afteryoufile,wewillsendyouareceiptsoyouknowthatwehave
received your petition. If your petition is incomplete, we may have to
reject it and return your fee,
or ask you for more evidence or information, which will delay
processing. We will notify you when we make a decision. If the
prospective employee is in the United States in a valid nonimmigrant
status, he or she can begin working for the employer upon approval
of the Form I-129 petition, provided that:
•TheFormI-129containedachangeofstatusorextensionof
stay request that was also approved; or
•IncaseswhereaForm I-539, ApplicationtoExtend/Change
Nonimmigrant Status, is required, the foreign national has filed
and obtained approval of the application for change of status or
extension of stay.
If the prospective employee is residing outside the United States
or appears to be ineligible to change his or 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 visa is issued, he or she will then be able to travel to the
United States and apply for admission. For more information about
nonimmigrant visa processing, please visit the U.S. Department of
State’s Web site at www.travel.state.gov.
Can an employer request expedited adjudication of a Form
I-129, Petition for a Nonimmigrant Worker?
Yes.AnemployercanfileForm I-907, RequestforPremium
Processing Service, with the appropriate fee, concurrently with the
Form I-129, or after receiving the receipt notice for Form I-129
at the USCIS location where the Form I-129 was filed. For more
information on premium processing, please see our Web site at
www.uscis.gov.
How long will it take USCIS to process my petition?
Processing time depends on a number of factors. You can check our
current processing times on our Web site at www.uscis.gov. Once
the petition is filed, you can receive an updated estimate by checking
on our Web site or calling Customer Service at 1-800-357-2099.
How long may a nonimmigrant employee stay in the United
States?
The initial period of stay granted to a temporary employee varies,
depending on the specific visa category. Likewise, the maximum
period of initial allowable stay varies, depending on the specific
visa category and on the foreign national’s intended employment.
ThisinformationmaybefoundontheFormI-94thattheemployee
received upon entering the United States, or on the USCIS-issued
approvalnoticeforachangeofstatusorextensionofstay.Asnoted
below, in certain cases, a foreign national may seek to remain in a
nonimmigrant classification longer than the period for which he or
she was initially admitted or granted, up to the maximum period
allowable by law. For detailed information
on the period of stay initially granted and the maximum
period of stay allowable for a specific visa category, please
see our Web site at www.uscis.gov or call Customer Service at
1-800-357-2099.
How can an employee extend his or her status if it is about
to expire?
If it appears that an employee may be needed longer than the period
for which he or she was approved in his or her current nonimmigrant
status, an employer may be able to file a new Form I-129 petition
on behalf of the employee. To avoid disruption of authorized
employment, employers are encouraged to file a petition to extend
the employee’s status well before it expires. Note, however, that if
the employee has already stayed for the maximum allowable period
of time, an extension may not be granted.
If I filed for an extension of status for my employee, but
have not received a decision by the time his or her status
expires, can I continue to employ the individual?
If:
•USCISreceivesaFormI-129petitiontoextendanemployee’s
status before his or her status expires; and
•Theemployeehasnotviolatedthetermsofhisorherstatus;
and
•Theemployeemeetsthebasiceligibilityrequirements.
Then:
The employee may continue to be lawfully employed
for a period of up to 240 days, or until USCIS makes
a decision on your application, or until the reason for your
requested extension has been accomplished—whichever comes
first. (Note:
Undersection105oftheAmericanCompetitiveness
intheTwenty-FirstCenturyAct,thisdoesnotapplytoH-1B
portability—the ability to work for
anewemployer.H-1Bportabilityisdiscussedinfurtherdetail
below.)
If the request for extension is denied and the employee’s status has
already expired while the employee is in the United States, he or she
will be considered “out of status” as of the date that his or her status
expired. If this should happen, the employee will be required
to cease employment immediately and depart from the
United States upon denial of the extension. There is no appeal
of a denial of a request for an extension of status. The period of
time that the foreign national has been “out of status” may affect his
or her ability to return to the United States following the individual’s
required departure.
What is H-1B portability?
Section105oftheAmericanCompetitivenessintheTwenty-First
CenturyActprovidesthatanonimmigrantwhowaspreviouslyissued
anH-1Bvisa,orprovidedH-1Bnonimmigrantstatus,maybegin