New I-129 Form: Changes to the Petition for Non-Immigrant Workers

On November 23, 2010, the U.S. Citizenship and Immigration Services Office (USCIS) announced that it will incorporate a new version of the form used for non-immigrant workers seeking entry into the United States. The new I-129 has controversial changes that include probing questions about export licenses and third-party placements. The proposed changes garnered a great deal of negative public sentiment. Among the changes in the approved draft revision are the following:

• Off-Site Placements. Part Five of the new I-129 asks petitioners to indicate whether the beneficiary will work off-site and make certain representations about wage rate and LCA compliance generally, but eliminates previously proposed language that would have required the petitioner to state whether the foreign national was to work offsite under a contract with a third party, provide contact information for the third party, and obtain the beneficiary's consent to working conditions at the third-party site.
• Export Control Compliance. In the new Part Seven, the applicant will be required to answer questions about whether an export license is required and certify that relevant technology will not be released to him or her until the license was obtained. Under previously proposed language, the form would have required employers to obtain an export license before submitting the petition to USCIS. Experts believe that export control compliance will make H-1B petitions much more difficult to process.
• Acknowledgment of USCIS Petition Verification. Petitioners signing Form I-129 will also be required to acknowledge the agency's authority to verify the information in the petition by any means the agency determines appropriate, including through on-site visits and review of publicly available open source information.
• Border Security Fee Language. The new form adds questions concerning the petitioner's liability for the new border security fee imposed on H-1B and L-1 employers with 50 or more employees and a workforce with more than 50 percent H-1B or L-1 workers.

The USCIS will accept the current I-129 until December 22, 2010. However the new fee (a 10% increase from the current fee) takes effect immediately. Petitioners having questions about the new form or any potential delays in processing should contact an experienced immigration attorney.