H-2B Visa Employer Series: I-129 and USCIS Approval
Once an H-2B Visa Employer receives a Temporary Labor Certification, they may proceed to USCIS and file an I-129 with hopes of receiving USCIS Approval. While the I-129 document itself is straight forward and relatively easy to understand, there are various pitfalls that can derail an application and result in a Request for Evidence or even a Denial. While this post will touch on several things that could go wrong and how to avoid these pitfalls, we will caution you that this list is not exhaustive, and we would encourage you to speak with a professional before submitting your first I-129 packet.
The Process
In order to obtain USCIS approval, an Employer must submit an I-129. This document must completed including the applicable items from the H Supplement (within the I-129). But submitting an I-129 and only an I-129 will not result in your application being accepted for processing. The rest of this section will discuss what to include in your I-129 application packet - and while most certifying officers likely would not require ALL of these documents, we like to include them just in case!
Cover Letter - We always include a cover letter to let the certifying officer know what should be in the packet that we are sending. Occasionally an item may be overlooked because it blends in with other documents in the packet. And without a detailed list of all items, this might result in an improper Request for Evidence. So we like to tell the officer everything that is in the file.
G-28 Document - This won’t apply to all applications, but as attorneys, we include a G-28 document as evidence that we are authorized to correspond on behalf of the Client.
I-907 - An I-907 is not technically required. But we ALWAYS file an I-907 for premium processing. Receiving a response within 15 days works a lot better when you’re trying to beat the cap than a response within “1.5 months”.
I-129 - The I-129 itself is obviously critical to a successful I-129 packet. The form must also be an accurate reflection of the information contained in the Temporary Labor Certification. Again, this document is fairly straight forward, but we will discuss a few items that tend to trip up employers who are new to the program as well as employers who may be attempting to extend workers transfer workers from another employer.
Temporary Labor Certification Packet - This means everything that was previously submitted to the Department of Labor with your 9142B application. The 9142B, State Workforce Agency Job Order, Recruiter Details, Recruitment Report, and Statement of Temporary Need.
While this may not be required by all certifying officers, we firmly believe that if we provide all of this information along with the I-129, it removes some of the guesswork and contributes to our high success rate of USCIS Approvals (without Requests for Evidence).
Once we have all of these items completed, we send them to the correct Processing Center. Don’t just guess which Center your application should go to based on which one is geographically closer to your worksite. While this may work in identifying which Processing Center is correct, it can also be incorrect and result in USCIS returning your entire packet rather than accepting and reviewing the application on the merits.
Pitfalls
Again, this list is not exhaustive. Do not rely on this list as an exhaustive list! But, here are a handful of pitfalls that we have identified that can result in USCIS returning your I-129 packet or issuing a Request for Evidence.
Incomplete Packet - Make sure that you send all items related to your Temporary Labor Certification. Include the Certified 9142B and ALL appendices. Failure to include just one appendix can result in major delays. Even if you mail your application packet via overnight shipping, USCIS will return it via USPS - which would be fine, but as we know, time is of the essence when we are dealing with H-2B Visa applications.
Inconsistencies - All information from the 9142B should be mirrored by the information in the I-129. If something has changed from the time you filed your 9142B to the time you are filing your I-129, make sure that you account for and possibly explain why there is a discrepancy.
Naming Beneficiaries - If you are filing for New Employment of Beneficiaries from a foreign country, “naming” these Beneficiaries in your I-129 is (1) not required, and (2) not recommended. This creates more opportunities for error, decreases the likelihood that you will be able to bring in the full number of workers certified by the Department of Labor. There are other reasons that are harder to explain in a blog post or a Ebook, and we are happy to discuss any questions this point may cause.
Incomplete I-129 - In contrast to number 3, if you are seeking to extend a Beneficiary or possibly transfer a Beneficiary from another H-2B employer to your employment, there are additional documents that are required because this time you must “Name” each Beneficiary, and this creates the requirement that information and documentation be provided for each Named Beneficiary. This includes information / documentation of birth dates, addresses, I-94 travel records, Passports, etc.
Wrong Processing Center or Check Information - We cannot stress how important it is that (1) the I-129 is sent to the correct processing center. Before you send your application, please check this out, and (2) the correct amount of $$$ is sent to the “U.S. Department of Homeland Security”!
This concludes the H-2B Visa application process. If everything submitted in the I-129 packet is correct, the application will be accepted for processing and a receipt number will be issued. Once a receipt number is issued, you will be able to check the Case Status online and will be able to see if there is a Request for Evidence mailed to you. If the I-129 is Approved, then you will be notified by email first, then I-797 documents will be mailed to you and/or your attorney/agent, and you will be able to fully recruit potential Beneficiaries.
While this is the end of the H-2B Visa application process, the H-2B Employer Series will have one final post in which we will discuss Audit related matters. Recently, we have noticed an uptick in audit investigations. This, coupled with the announcement of the Worker Protection Taskforce, leads us to believe that program compliance and record keeping is more vital than ever, and we look forward to providing you with a few insights in our next Post.
