TEMPORARY WORKERS

The Immigration and Nationality Act provides several categories of nonimmigrant visas for a person who wishes to work temporarily in the United States. If you want to work in the U.S. temporarily, under immigration law, you need a specific visa based on the purpose of your travel and type of work you will be doing.

There are annual numerical limits on some classifications, which are shown in parentheses. See Employer Information on the USCIS website for information about the numerical limit CAP count, e-Verify, employment authorization, and more.

• H-1B classification applies to persons in a specialty occupation which requires the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education. This classification requires a labor attestation issued by the Secretary of Labor (65,000). This classification also applies to Government-to-Government research and development, or co-production projects administered by the Department of Defense (100);
• H-1C classification applies to foreign nurses coming to perform nursing services in medically underserved areas for a temporary period up to three years. The Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA) has been reauthorized for an additional three years, and will expire on December 20, 2009. To learn more about the reauthorization of the H-1C program, see Department of Homeland Security, U.S. Citizenship and Immigration Services Press Release.
• H-2A classification applies to temporary or seasonal agricultural workers;
  Note: USCIS revised H-2A program requirements and regulations, which applies to all petitions filed after January 17, 2009. For more information, petitioners and applicants should review press release on the USCIS website.
• H-2B classification applies to temporary or seasonal nonagricultural workers. This classification requires a temporary labor certification issued by the Secretary of Labor (66,000);
  Note: USCIS revised H-2B program requirements and regulations, which applies to all petitions filed after January 18, 2009. For more information, petitioners and applicants should review the USCIS webpage and press release.
• H-3 classification applies to trainees other than medical or academic. This classification also applies to practical training in the education of handicapped children (50);
• L classification applies to intracompany transferees who, within the three preceding years, have been employed abroad continuously for one year, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. in a managerial, executive, or specialized knowledge capacity;
• O-1 classification applies to persons who have extraordinary ability in the sciences, arts, education, business, or athletics, or extraordinary achievements in the motion picture and television field;
• O-2 classification applies to persons accompanying an O-1 alien to assist in an artistic or athletic performance for a specific event or performance;
• P-1 classification applies to individual or team athletes, or members of an entertainment group that are internationally recognized (25,000);
• P-2 classification applies to artists or entertainers who will perform under a reciprocal exchange program;
• P-3 classification applies to artists or entertainers who perform under a program that is culturally unique (same as P-1); and
• Q-1 classification applies to participants in an international cultural exchange program for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the alien’s home country.

Temporary Workers

Overview

Employers who wish to hire foreign workers to temporarily perform services or labor or to receive training may file an I-129 petition. The I-129 is mainly used for nonimmigrant categories; thus, in most cases, workers who enter the United States under this petition must depart the U.S. when their maximum period of stay has been reached. Form I-129 may also be used to petition for an extension of stay or change of status for certain nonimmigrants.

There are many categories of workers who are temporary visitors and who may be petitioned for on the I-129. These nonimmigrant classifications are symbolized by letters which generally correspond to the visas issued by the State Department. Only those categories incorporating employment or investment will be covered here.

To see the section of the Immigration and Nationality Act that applies to temporary worker categories, see §101(a)(15). For the law applying to NAFTA categories, See §214(e).

Filing the I-129 Petition

USCIS Form I-129 consists of a basic petition and different supplements that apply to the various visa categories. In order to petition for a temporary worker, the prospective employer or agent must file Form I-129, Petition for Nonimmigrant Worker, and the appropriate supplement with the U.S. Citizenship and Immigration Services (USCIS) accompanied by the required payment, and initial evidence or documentation.

In some cases, the employer must get a certificate from the Department of Labor prior to filing the I-129. This process is described below in the appropriate categories.

Once the petition is approved, the employer or agent is sent a Notice of Approval, Form I-797. Approval of a petition does not guarantee visa issuance to an applicant. Applicants must also establish that they are admissible to the U.S. under provisions of the Immigration and Nationality Act (INA).

Applying for the Visa

Prospective workers (beneficiaries) outside of the country generally must apply for a visa upon approval of the petition. Prospective workers in the U.S. who are not in a valid nonimmigrant status or who have not continuously maintained their status must also apply for a visa upon approval of the petition. After the USCIS has approved the I-129 and sent notice to the consulate in the beneficiary’s country, the beneficiary must file a visa application with the consulate. Some aliens may be visa exempt. In those cases, the I-129 approval notice is presented to the port of entry (POE) where the beneficiary intends to apply for admission. For specific procedures on Visa Application Procedures, Required Documentation and Visa Ineligibility Waiver, please visit Visa Services at the Department of State.

If the beneficiary is already in the U.S. and is eligible to change from one nonimmigrant status to another, a visa is not required. However, a visa may be required if the beneficiary subsequently leaves the U.S. and wishes to re-enter under the same nonimmigrant classification indicated on the most current I-129 approval notice.

Entry into the U.S.

Applicants should be aware that a visa does not guarantee admission into the United States. The U.S. Customs and Border Protection (CBP) has the authority to deny admission at the port of entry to any applicant who is inadmissible under the INA, even if the applicant has a visa. Also, the CBP, not the consular officer, determines the period for which the bearer of a temporary work visa is authorized to remain in the United States. At the port of entry, CBP officials issue Form I-94, Record of Arrival-Departure, which notes the length of stay permitted. The decision to grant or deny a request for extension of stay, however, is made solely by the USCIS.

When to file

Petitions should be filed as soon as possible, but no more than 6 months before the proposed employment will begin or the extension of stay is required. If the petition is not submitted at least 45 days before the employment will begin, petition processing and subsequent visa issuance may not be completed before the alien’s services are required or previous employment authorization ends.

Maximum Stay Information for Temporary Employment Visas

Where to file

VSC/CSC Pairing for I-129 Processing (and Related, Concurrent Applications)

The VSC/CSC pairing handles all Forms I-129, Petition for Nonimmigrant Worker, with the Vermont Service Center serving as the filing location. When Form I-539, Application to Extend/Change Status, for the principal’s dependent spouse and children accompanies Form I-129, the entire package is filed with the Vermont Service Center. If Form I-765, Application for Employment Authorization Document, is filed for an E or L dependent together with the I-129/I-539 package, the entire I-129/I-539/I-765 package is filed with the Vermont Service Center. Concurrently filed applications for dependent family members will not be separated.

Although the filing location for Form I-129 is the Vermont Service Center, some petitioners/applicants will receive a filing receipt from the California Service Center, if the case is worked by that Center. The Center that generates the receipt notice will be the Center that actually adjudicates the case. USCIS will not reject applications or petitions filed at an incorrect Service Center but instead will forward the entire package to the appropriate Service Center for processing. This “no rejection” policy will be extended to those petitions that are inadvertently filed with the California Service Center, if the requested classification is one that the California Service Center normally processes under the CSC-VSC Bi-Specialization pairing.

Current Work Distribution of Form I-129 Between VSC and CSC

The two service centers are currently adjudicating the petitions based on the requested classification as indicated below:

* Major league athletes in baseball, hockey, soccer, basketball and football. Support personnel includes: coaches, trainers, broadcasters, referees, linesmen, umpires, and interpreters.

Exceptions apply:

• If the person is a Canadian citizen applying for admission as an L-1 under the North American Free Trade Agreement, the petition may be filed at the port of entry when the person applies for admission;
• All TN (NAFTA) Form I-129’s are filed at the Vermont Service Center.

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