Fillable M-1097 Optional Checklist for Form I-129 H-1B Filings

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M-1097 Optional Checklist for Form I-129 H-1B Filings

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U.S. Citizenship and Immigration Services (USCIS) is an office of the U.S. Branch of Homeland Security (DHS) that oversees the nation's naturalization and migration framework. It is a successor to the Immigration and Naturalization Service (INS), which was disintegrated by the Homeland Security Act of 2002 and supplanted by three segments inside the DHS: USCIS, Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP).

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Form M-1097 01/31/19 Page 1 of 4
This is an optional checklist to assist petitioners with filing H-2A petitions on Form I-129.
Do not submit this checklist to USCIS.
Optional Checklist for Form I-129 H-2A Filings
Department of Homeland Security
U.S. Citizenship and Immigration Services
USCIS
Form M-1097
Internal Form
NOTE: This optional checklist is provided to assist H-2A petitioners in completing Form I-129. It is not a substitution
for or alteration of statutory or regulatory requirements. USCIS recommends that you review the relevant statutory and
regulatory requirements, as well as the appropriate form instructions, before completing and submitting Form I-129.
A completed and properly signed USCIS Form I-129, Petition for a Nonimmigrant Worker. See www.uscis.gov for
the most recent version of Form I-129 and its instructions.
General Petition Requirements
1. Petitioners must provide their full names and addresses in Part 1 of Form I-129. The following are the only
entities who may file Form I-129 with USCIS as H-2A petitioners:
a. The employer listed on the U.S. Department of Labor's (DOL's) ETA Form 9142, Temporary Employment
Certification;
b. The employer's agent, as defined in USCIS regulations (8 CFR 214.2(h)(2)(i)(F)); or
c.
The association of U.S. agricultural producers named as a joint employer on ETA Form 9142.
NOTE: Those who do not meet the requirements of agent-petitioners, but solely assist a petitioner in filling out
Form I-129, are considered “preparers.” Preparers are not considered petitioners. Preparers' names and addresses
should not be listed in Part 1 of Form I-129 (see General Petition Requirements, item number 4, on this
checklist).
4. You may enter the name of the person collecting your mail, if any, in the "C/O: (In Care Of, if any)" field for
Part 1, item number 3 to ensure that you receive communications from USCIS. However, petitioners must still
provide the actual address of their primary office in Part 1, item number 3.
2. Only the petitioner (named in Part 1 of Form I-129) may sign Part 7 of the form.
3. Any person assisting the petitioner to prepare Form I-129 must sign Part 8 of Form I-129.
5. You may enter your email address in Part 1, item number 4, to receive email notifications of receipt and approval.
6. You do not have to provide the names of all workers you request. However, you must provide the workers' names
if you:
a.
Require workers with specific education, skills, licenses, or other requirements (as indicated on ETA Form 9142);
b. Request workers who are already in the United States; or
c.
Request workers who are from countries which are not on the H-2 Eligible Countries List. See www.uscis.
gov/h-2a for the current list.
A completed and properly signed H Classification Supplement to Form I-129.
1.
Only the petitioner (named in Part 1 of Form I-129) can sign the H Classification Supplement in Section 2, Part A.
2. In some cases, an employer uses an agent who meets the requirements of an agent-petitioner to file Form I-129 on
its behalf. In that event, the employer (who is not the petitioner named in Part 1) must sign the H Classification
Supplement in Section 2, Part B. The agent-petitioner must still sign Part A in this situation.
Form M-1097 01/31/19 Page 2 of 4
Payment of the base petition fee, currently $460. Check current fees at www.uscis.gov/fees.
3. In cases where there are multiple employers, each joint employer must sign Part C in Section 2 of the
H Classification Supplement. If there are more than 4 joint employers, the additional signatures may be
submitted on extra copies of
the H Classification Supplement
of Form I-129.
4. Submit documentation to support any affirmative answers to item numbers 8, 9, or 10
in Section 2
of
the H Classification Supplement,
regarding collection of prohibited fees from workers.
Optional: Evidence of the petitioner's continued business operations under either the actual business name or trade-
name/doing business as (DBA) (if applicable), such as, but not limited to, copies of the most recent:
1. State business registration for the petitioner (including registration of actual business name and trade-name/DBA);
2. Valid local, state, or federal government business licenses;
3. IRS Form 1120 - U.S. Corporation Income Tax Return;
4. IRS Form 1040 - Schedule C, Profit or Loss From Business;
5. IRS Form 1040 - Schedule F, Profit or Loss From Farming;
6. IRS Form 1040 - Schedule J, Income Averaging for Farmers and Fishermen;
7. IRS Form 943 - Employer's Annual Federal Tax Return for Agricultural Employees; or
8. Business bank statements.
NOTE: Submitting a signed contract between an employer and the agent-petitioner does not replace the need for
a signature from the employer in Part B or Part C of the H Classification Supplement.
An approved ETA Form 9142 from DOL.
1. Submit the original ETA Form 9142.
2. If you are filing a subsequent petition using an ETA Form 9142 that was already submitted to USCIS in a
previous petition, instead provide:
Optional: A cover letter from the petitioner or employer on official letterhead describing:
1. The nature of the employer's business;
2. Any additional locations or mailing addresses used by the employer;
3. The duties to be performed in the position offered;
4. The nature of the employer's need for workers, including why the job is temporary, along with independent
documentation to support the claimed need; and
5. The qualifications of the requested workers, if applicable.
a. A photocopy of the previously submitted ETA Form 9142;
b.
The receipt number of the petition containing the original ETA Form 9142; and
c. One of the following:
(1) A detailed explanation, if you are requesting an extension of stay for 2 weeks or less due to emergent
circumstances;
(2) A letter from DOL extending the validity of your ETA Form 9142, if you are requesting an extension of
stay greater than 2 weeks due to emergent circumstances; or
(3) A statement explaining why you were unable to submit the original ETA Form 9142, if neither of the
above apply.
Form M-1097 01/31/19 Page 3 of 4
Additional Documentation to Show the Worker Qualifies for H-2A Employment
You may file for more than one worker on a single petition if:
1. All of the beneficiaries will perform the same services for the same period of time and in the same location;
2. The total number of H-2A workers you request does not exceed the number of positions indicated on the
corresponding ETA Form 9142; and
3. You request the same action for all beneficiaries included on the petition. The requested action must be one of
the following:
a. Notification of a U.S. Embassy or U.S. Consulate, Port of Entry (POE), or Pre-Flight Inspection (PFI);
b. Extension in H-2A classification;
c.
Change of status; or
d. Amended stay.
3. A statement explaining why the substitution is necessary;
If you are filing an amended petition requesting substitution due to the unavailability of H-2A workers you originally
requested, provide:
1. A copy of the original H-2A petition approval notice;
2. A photocopy of the previously submitted ETA Form 9142;
4. Evidence that the total number of workers will not exceed the number of H-2A workers authorized on ETA Form
9142; and
5. Evidence of the qualifications of the newly identified beneficiaries, if applicable.
If you are requesting a change of status or extension of stay, provide evidence of each worker's previous nonimmigrant
classification and maintenance of status. This evidence may include, but is not limited to:
If ETA Form 9142 states the workers require certain education, training, experience, or other special requirements,
you must:
1. Name the workers on the petition; and
2. Provide documentation to show that each worker qualifies for the job offered.
4. Documents showing how long the workers have been present in the United States.
1. Copies of each worker's most recent paystubs;
2. Copies of each worker's Form I-94, Arrival-Departure Record;
H-2 Eligible Countries List Requirements
Are you requesting workers from a country that is included on the H-2 Eligible Countries List? See www.uscis.gov/h-2a
for the current list.
Yes
You are only required to provide the names and biographical information on Attachment 1 of Form I-129 for
requested workers who are currently in the United States. You do not have to provide the names of requested
workers who are outside the United States, but you must provide their countries of citizenship in Section 2,
Item 4 of the H Classification Supplement so that USCIS may verify that the countries are included on the H-2
Eligible Countries List.
3. Copies of the biographic information pages from each worker's passport or travel document; and
Form M-1097 01/31/19 Page 4 of 4
1. Evidence that a worker with the required skills is not available either from among U.S. workers or from
among foreign workers from a country on the H-2 Eligible Countries List;
2. Evidence that the requested worker has been admitted to the United States previously in H-2A status;
3. The potential for abuse, fraud, or other harm to the integrity of the H-2A program through the potential
admission of workers from a country not currently on the list; and
NOTE: If you are requesting H-2A workers from both eligible and non-eligible countries, USCIS
recommends that you file two separate petitions - one with eligible country workers and one with the non-
eligible country workers - to avoid possible processing delays.
4. Other factors that serve the U.S. interest, if any.
Duplicate Copy
All documents sent in response to a Request for Evidence (RFE), Notice of Intent to Deny (NOID), or Notice of
Intent to Revoke. USCIS will not make duplicate copies for you.
Form I-129 and all supporting documentation at the time of filing.
You must include copies of all communications with USCIS. This includes:
NOTE: Failure to submit duplicate copies may cause a delay in visa issuance from the Department of State.
No
You must provide the names and biographical information on Attachment 1 of Form I-129 for all requested
workers - including workers who are outside the United States. Additionally, you must establish that
employment of the worker is in the U.S. interest. When determining whether the U.S. interest requirement has
been met in an H-2A petition, USCIS considers the following:
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M-1097 Optional Checklist for Form I-129 H-1B Filings

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Completed 17 November 2019

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