INS Guidance on Completing Form I-129 for H-1Bs

[Operational Guidance Memorandum No. FY00-003]

Date: December 9, 1999

Memorandum For: All Service Center Directors

From:
Fujie Ohata
Associate Commissioner
Service Center Operations

Subject: Form I-129 and H-1B Cap Definitions and Proper Usage of Form I-824

Effective Date: Effective date for implementation of this definition is immediately upon receipt of this memorandum. This memorandum supercedes Operational Guidance Memorandum No. FY00-002, Interim Form I-129 and H-1B Cap Definitions, dated 3 December 1999.

The purpose of this memorandum is to provide field offices with guidance on how Part 2 of Form I-129, Petition for a Nonimmigrant Worker, should be completed by petitioners. Additionally, the memorandum provides information on the proper usage of Form I-824, Application for Action on an Approved Application or Petition.

Below is an extraction from Part 2 of Form I-129 petition. Following the extraction is a list of the possible scenarios describing the correct format that a petitioner should use for checking Part 2 of Form I-129. The scenarios also identify what petitions should be counted against the numerical CAP. Finally, the memorandum provides several examples that describe when the filing of Form I-824 is necessary.

By way of background, the Service uses the information provided by the petitioner in part 2 of the I-129 petition to count the number of H-1B petitions approved in a fiscal year. It is, therefore, extremely important that the information provided in this section of the petition be accurate.

Our current policy is that the only H-1B cases that count against the numerical limitation are petitions for new employment. New employment refers only to H- 1B petitions that are filed for aliens who are not currently in the United States in H-1B status. A petition filed by an employer for an alien who currently holds H-1B status is not considered new employment for counting purposes and does not count against the cap. Only petitions that are marked 2a, 4a and 2a, 4b in part 2 of the I-129 petition are considered new employment for counting purposes. No other choices or combinations are considered to be a "cap case."

The Service tracks the number of approved H-1B petitions through CLAIMS. The Service aggregates the data on approved H-1B cases from the four Service centers through a CLAIMS report that list the number of approved H-1B cases where the petitioner selected the 2a, 4a or 2a, 4b options. Then, certain data cleansing routines are performed to remove duplicate beneficiary names and revocations. After the cleansing routines are completed, the remaining cases are counted. Only these cases are counted against the numerical cap.

Employers are routinely reminded of the necessity of providing accurate information to the Service when filing petitions. However, Service officers are still responsible for ensuring that part 2 of the I-129 petition accurately reflects the action requested by the petitioner.

The Office of Programs is now in the process of revising the Form I-129 in order to allow the Service to more readily capture the information necessary for keeping track of the numerical limitation. In addition, the Office of Programs is also in the process of drafting a proposed rule that will include provisions that should simplify the counting process and ensure more accurate tracking of the numerical cap.

Part 2 Information about this Petition.

1. Requested Nonimmigrant Classification:
2. Basis for Classification (check one)

1. New employment
2. Continuation of previously approved employment without change
3. Change in previously approved employment
4. New concurrent employment

1. ...
2. Requested Action: (check one)

1. Notify the office in Part 4 so the person(s) can obtain a visa or be admitted (NOTE: a petition is not required for an E-1, E-2, or R visa).
2. Change the person(s) status and extend their stay since they are all now in the U.S. in another status (see instructions for limitations). This is available only where you check "New Employment" in item 2, above.
3. Extend or amend the stay of the person(s) since they now hold this status

Form I-129 (Rev. 12/11/91)N

The above box represents the current Part 2 of Form I-129, Petition for a Nonimmigrant Worker. Below are samples of which boxes to check for various issues:

a. New employment with consulate notification-- * (Cap case)

Check box 2a for "New employment" and 4a to "Notify the office in Part 4 so the person(s) can obtain a visa or be admitted." This combination should be checked in the case of an H-1B petition filed in behalf of an alien who is not in the United States.

b. New employment and request for a change of nonimmigrant status-- * (Cap case)

Check box 2a for "New employment" and 4b to "Change the person(s) status and extend their stay since they are all now in the U.S. in another status." This combination should be checked in the case of an H-1B petition filed in behalf of an alien in the United States in another nonimmigrant classification.

c. New employment and request for extension of stay--

Check box 2a for "New employment" and 4c to "Extend or amend the stay of the person(s) since they now hold this status." This combination should be checked in the case of an H-1B petition filed in behalf of an alien currently in the United States in H-1B status based on a petition filed by another H-1B employer. (Sequential employment)

d. Extend the beneficiary's stay with no consulate notification--

Check box 2b for "Continuation of previously approved employment without change," and 4c to "Extend or amend the stay of the person(s) since they now hold this status."

e. Amend and extend the beneficiary's stay with no consulate notification-

Check box 2c for "Change in previously approved employment" and 4c to "Extend or amend the stay of the person(s) since they now hold this status.

f. Extend the beneficiary's stay with consulate notification--

Check box 2b for "Continuation of previously approved employment without change," and 4a to "Notify the office in Part 4 so the person(s) can obtain a visa or be admitted."

g. Amend and extend the beneficiary's stay with consulate notification--

Check box 2c for "Change in previously approved employment" and 4a to "Notify the office in Part 4 so the person(s) can obtain a visa or be admitted."

*NOTE: All requests for consulate notification at the time of filing must be accompanied by a duplicate petition and all supporting documentation.

The filing of a Form I-824 is required when the petitioner requests a change in the initial manner of processing noted on the visa petition. Examples:

1. If the petitioner did not initially request consulate notification and the Service has completed all actions, and the petitioner now seeks to have the consulate notified of the approved petition, a Form I-824 with filing fee will be required.
2. Consular processing was initially requested but the beneficiary now intends to seek adjustment of status, or, adjustment of status was indicated on the visa petition but the beneficiary now intends to consular process.
3. If the beneficiary seeks adjustment of status as a principal alien and the dependent family members abroad will follow-to-join. In this instance, the I-824 should be filed concurrently with the principal's I-485 and adjudicated at the same time so as not to delay the processing of the dependent family members.