I am an

employer E1

How do I hire a foreign 

national for short-term 

employment in 

the United States?

This customer guide covers a complex area of U.S. law and 

Government regulations. If in doubt, employers may wish to 

consult specialists in this area to ensure they proceed correctly. 

Employers sometimes need to hire foreign labor when there is 

a shortage of available U.S. workers to fill certain jobs. Under 

certain conditions, U.S. immigration law may allow a U.S. employer 

to file a Form I-129, Petition for a Nonimmigrant Worker, with 

U.S. Citizenship and Immigration Services (USCIS) on behalf of a 

prospective foreign national employee. Upon approval of the petition, 

the prospective employee may apply for admission to the United 

States, or for a change of nonimmigrant status while in the United 

States, to temporarily work or to receive training. 

For most employment-based nonimmigrant visa categories, the 

employer starts the process by filing Form I-129 with USCIS. Filing 

instructions and forms are available on our Web site at www.

uscis.gov. Please note that in some cases the employer must file 

a Labor Condition Application or Application for Temporary 

Employment Certification with the Department of Labor (DOL) 

and/or obtain certain consultation reports from labor organizations 

before filing a petition with USCIS. 

There are numerous nonimmigrant, employment-based visa 

categories. Under all of these categories, listed below, the foreign 

national must meet specific requirements for the occupation covered 

in the petition. 

What are the various types of visa classifications under 

which a foreign national may temporarily engage in 

employment or training? 

The following are the most common visa classifications under which 

a foreign national may temporarily work or train: 

•	E-1 – Treaty traders and their spouses

•	E-2 – Treaty investors and their spouses

•	E-3 – Australian specialty occupation workers and their spouses

•	H-1B – Specialty occupations in field requiring highly specialized

knowledge, fashion models of distinguished merit and ability, 

or certain services of an exceptional nature in Department of 

Defense cooperative research and development projects or 

co-production projects

•	H-1B1 – Specialty occupations for certain nationals of Singapore

and Chile

•	H-2A – Temporary agricultural workers

•	H-2B – Temporary workers performing other services or labor,

skilled or unskilled 

•	H-3 – Trainees or special education exchange visitors

•	I – Representatives of information media

•	J-1 – Certain exchange visitors

•	L-1A – Intra-company transferees (executives, managers)

•	L-1B – Intra-company transferees (employees with specialized

knowledge) 

•	O-1 – Foreign nationals who have extraordinary ability in the

sciences, arts, education, business, or athletics 

•	O-2 – Essential support personnel for O-1

•	P-1 – Internationally recognized athletes (or athletic team) or

members of an entertainment group and certain other athletes 

and entertainers

•	P-2 – Artists or entertainers under a reciprocal exchange

program

•	P-3 – Foreign nationals who perform, teach, or coach under a

program that is culturally unique 

•	P-4 – Essential support personnel for P-1, P-2, and P-3

•	Q-1 – International cultural exchange visitors

•	R-1 – Religious workers

•	TN – Canadian or Mexican professionals covered

by the North American Free Trade Agreement (NAFTA)

For specific information regarding each nonimmigrant classification 

or qualifying occupation, please refer to our Web site at www.uscis.

gov, or call Customer Service at 1-800-357-2099.

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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 

only for the H-1B, H-2A, and H-2B nonimmigrant classifications.

You must first request certification from DOL before submitting 

your I-129 petition to USCIS. For H-1B nonimmigrants, a Labor 

Condition Application, and for H-2A and H-2B nonimmigrants,

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?

After you file, we will send you a receipt so you know that we have

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: 

•	The Form I-129 contained a change of status or extension of

stay request that was also approved; or 

•	In cases where a Form I-539, Application to Extend/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. An employer can file Form I-907, Request for Premium

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. 

This information may be found on the Form I-94 that the employee

received upon entering the United States, or on the USCIS-issued 

approval notice for a change of status or extension of stay. As noted

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: 

•	USCIS receives a Form I-129 petition to extend an employee’s

status before his or her status expires; and

•	The employee has not violated the terms of his or her status;

and

•	The employee meets the basic eligibility requirements.

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: Under section 105 of the American Competitiveness

in the Twenty-First Century Act, this does not apply to H-1B

portability—the ability to work for 

a new employer. H-1B portability is discussed in further detail

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? 

Section 105 of the American Competitiveness in the Twenty-First

Century Act provides that a nonimmigrant who was previously issued

an H-1B visa, or provided H-1B nonimmigrant status, may begin
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working for a new H-1B employer as soon as that new employer

files a “nonfrivolous” (defined as: an application that must have an 

arguable basis in law and fact and must not have been filed for an 

improper purpose) H-1B petition on the nonimmigrant’s behalf, if:

•	The nonimmigrant was lawfully admitted to the United States;

and

•	The nonfrivolous petition for new employment was filed before

the end of their period of authorized stay; and

•	The nonimmigrant has not been employed without authorization

since his or her lawful admission to the United States, and before 

the filing of the nonfrivolous petition. 

The H-1B worker is authorized to work for the new employer while

the petition is adjudicated and approved. 

What is an employer liable for once a nonimmigrant 

begins work? 

Under immigration law, an employer is liable for the reasonable costs 

of return transportation abroad for a foreign national employee in the 

H-1B or H-2B visa categories if the employer dismisses the employee

from employment before the end of the period of authorized 

admission. If employment is terminated for an employee in the O or 

P visa categories, for reasons other than voluntary resignation, the 

employer and the petitioner are “jointly and severally” (a specific 

legal term) liable for the reasonable costs of return transportation for 

the foreign national employee. 

Employers must keep USCIS informed of any firings, termination of 

employment, or changes in the employee’s eligibility by submitting 

a letter to the USCIS Service Center that approved the application 

or petition. Please note that the employee may only perform the 

duties described in the petition. As an employer, you also have many

other labor-related responsibilities separate from those required 

under the immigration laws. For information regarding these other 

responsibilities, please contact the appropriate U.S. Government or 

State agency. 

U.S. employers are required by law to verify the employment 

eligibility of all workers they employ in the United States, regardless 

of their immigration status, by processing a Form I-9, Employment 

Eligibility Verification. For more information on completing and 

maintaining Form I-9, please see Customer Guide E3, I Am an

Employer...How Do I...Complete Form I-9, Employment Eligibility

Verification?

Can I file a Form I-129 petition even though I may wish to 

help this employee get permanent resident status? 

When applying for the nonimmigrant visa at a U.S. consulate abroad, 

nearly all applicants must prove that their intention is to remain in 

the United States temporarily and to depart after they have fulfilled 

the purpose of their intended stay for which they are seeking a 

nonimmigrant visa—whichever is shorter. There are certain 

exceptions. 

For example, an H-1B, L-1A, and L-1B nonimmigrant worker may be

able to maintain lawful nonimmigrant status and, at the same time, 

benefit from an immigrant visa petition, even if the individual worker 

may have taken certain steps to obtain lawful permanent resident 

status. For other classifications, the mere filing of an immigrant visa 

petition on behalf of a nonimmigrant worker, without any action taken 

by the worker himself or herself, may not have an adverse effect on the 

worker’s nonimmigrant status. For more information on sponsoring a 

foreign national employee for lawful permanent resident status, please 

see Customer Guide E2, I Am an Employer...How Do I...Sponsor an

Employee for Permanent Resident Status in the United States?

If I want to hire more than one employee, can I include all 

of them on one petition? 

This depends on the particular nonimmigrant visa classification that 

you are seeking for the prospective employees. 

•	H-1B, H-3, O, and R visa categories do not allow

for multiple employees on one petition.

•	For L-1 visa categories: A prospective employer may file a

single “blanket petition” to establish a required intra-company 

relationship. However, once the blanket petition has been

approved, each individual employee seeking to work for the 

blanket petitioner must still file his or her individual Form 

I-129-S, Nonimmigrant Petition Based on Blanket L Petition. 

•	For the H-2A, H-2B, P, and Q-1 nonimmigrant visa categories,

a single petition may cover multiple workers if the workers are 

performing the same service at the same location. 

Can my employee change employers or work for more than 

one employer at the same time? 

Yes, but each employer must file a separate Form I-129 petition 

and, where applicable, the appropriate Labor Certification, or

Labor Condition Application with the DOL, and receive approval 

from USCIS before the employee can begin to work for a new or 

an additional employer. Please note that a foreign national who 

is eligible for H-1B portability may begin working for the new or

additional employer once that employer has appropriately filed the 

Form I-129 petition with USCIS.

Key Information

Key USCIS forms referenced 

in this guide

Form #

Petition for Nonimmigrant Worker I-129 

Application to Extend/Change Nonimmigrant

Status

I-539

Request for Premium Processing Service I-907

Employment Eligibility Verification I-9

Nonimmigrant Petition Based on Blanket L

Petition

I-129-S

Other U.S. Government Services–Click or Call

General 

Information

www.usa.gov 1-800-333-4636

New 

Immigrants

www.welcometoUSA.gov

U.S. Dept. 

of State

www.state.gov 1-202-647-6575

www.travel.state.gov

U.S. Dept. 

of Labor

www.foreignlaborcert.

doleta.gov

1-877-872-5627
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For more copies of this guide, or information 

about other customer guides, please visit 

www.uscis.gov/howdoi. 

You can also visit www.uscis.gov to 

download forms, e-file some applications, 

check the status of an application, and more. 

It’s a great place to start!

If you don’t have Internet access at home 

or work, try your local library. 

If you cannot find what you need, please call 

Customer Service at: 1-800-375-5283 

Hearing Impaired TDD Customer Service: 

1-800-767-1833

Disclaimer: This guide provides basic information 

to help you become generally familiar with our 

rules and procedures. For more information, or 

the law and regulations, please visit our Web 

site. Immigration law can be complex, and it is 

impossible to describe every aspect of every 

process. You may wish to be represented by 

a licensed attorney or by a nonprofit agency 

accredited by the Board of Immigration Appeals.