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February 26, 2010

USCIS Proposes Significant Revision of Nonimmigrant Worker Petition

U.S. Citizenship and Immigration Services (USCIS) is proposing a significant revision of Form I-129, the nonimmigrant worker petition, that would require employers to make declarations about the third-party placement of foreign workers and about compliance with federal export control laws, among other changes. The agency is accepting public comments on the proposed revisions through April 9, 2010. The proposed form can be viewed here. Note that any changes to Form I-129 would become final only after the review and approval of the Office of Management and Budget.

Form I-129 is the petition used by employers to sponsor foreign nationals for nonimmigrant worker classifications, including the H-1B, L-1, E and O categories. Earlier this month, USCIS published a Federal Register notice announcing a proposal to alter the form, which has not had a significant revision in some time. The following are among the most important proposed changes to the form:
  • Third-party placements. Petitioning employers would be required to state whether the foreign national was to work offsite under a contract with a third party. Petitioners would also be asked to provide the name and address of the third party, along with the name, job title and phone number of a contact at the third-party site. H-1B employers would be required to attest that the offsite assignment complied with H-1B program rules and that the beneficiary was to be paid the prevailing rate of pay at any and all off-site locations.
  • Export control compliance. If the petition is for an H-1B, H-1B1, L-1 or O-1A worker, the petitioner would be required to answer questions about whether it had complied with export control laws. Federal export control regulations require employers to obtain an export license if they will release certain kinds of technology information to foreign nationals. Under the proposed revision of Form I-129, employers would be required to state whether an export license was required for the foreign beneficiary of the petition and, if so, would be required to obtain the license before submitting the petition to USCIS.
  • Acknowledgment of USCIS petition verification. When signing Form I-129, petitioners would be required to acknowledge the agencys authority to verify the information in the petition by any means the agency determined appropriate, including through on-site visits.

Fragomen is closely monitoring the status of the proposed revisions to Form I-129 and will issue updates as the form moves throught the review process.

Remember that the Immigration Update is available through both e-mail and Web version by clicking on "View as Web Page" above.

 

Important Updates in Immigration This Week

February 25, 2010
United States
Narrow Exception Allowing H-1B Petitions without Certified LCAs Set to Expire
U.S. Citizenship and Immigration Services temporary and very narrow policy on accepting H-1B petitions without certified LCAs will expire on March 4 unless extended.
To view entire article, click here.
Other Immigration News This Week


United States: USCIS to Publicize Names of Federal Contractors Using E-Verify -  United States Citizenship and Immigration Services (USCIS) recently announced that it will be making available information about employers that enroll in E-Verify as federal contractors. Specifically, the public will be able to search federal contractors' names, addresses, workforce size, and volume of E-Verify queries. The public also will be able to see whether a particular federal contractor has elected to verify its entire workforce or just new hires plus employees working on the federal contract. It is not yet known when the agency plans to make this information available on its website.

The plan at this time is to release only information about enrollees that are federal contractors, and not information on other E-Verify users. USCIS asserts that it has permission to release the aforementioned information based on the terms of the E-Verify Memorandum of Understanding (MOU). See E-Verify MOU for Employer Article V.F. (Rev. 10/29/08).


United States: Free E-Verify Informational Seminars for Federal Contractors - USCIS held two free informational seminars this week for federal contractors and subcontractors affected by the Federal Acquisition Regulation (FAR) requiring them to participate in E-Verify. Copies of the handouts and presentations are available by clicking here.


United States: New Official Report on E-Verify Indicates 54% Error Rate for Unauthorized Immigrants - An official evaluation of E-Verify program by the research group Westat has found that the "inaccuracy rate for unauthorized workers" is roughly 54%. The full report is available here.


United States: USCIS Updates H-2B Count for FY 2010 - USCIS has updated its H-2B statistics for the first half of Fiscal Year (FY) 2010. As of February 15, 2010, the agency had received filings for 42,429 H-2B beneficiaries. Of these, 40,098 cases have been approved, and 2,331 cases were pending. USCIS has established that a total of 47,000 cap-subject H-2B petition beneficiaries will be needed to reach the 33,000 cap for the first half of the fiscal year. USCIS uses the beneficiary target figure to account for cases that are ultimately denied, withdrawn or revoked, as well as cases in which employers actually employ fewer workers than requested. The target figure is subject to change.

USCIS also reports receiving 16,035 H-2B petitions for the second half of fiscal 2010.

USCIS maintains its H-1B and H-2B cap counts for FY 2010 at: http://www.uscis.gov/h-1b_count.


United States: Senators Kerry and Lugar Introduce StartUp Visa Act - Senators John Kerry (D-Mass.) and Richard Lugar (R-Ind.) have introduced The StartUp Visa Act of 2010, a bill that if enacted would allow foreign entrepreneurs to obtain a two-year visa if they can show that a qualified U.S. investor will dedicate a minimum of $250,000 to the foreign national's startup venture. An announcement from Senator Lugar's office is available here. The official text of the bill is not yet available, but an unofficial copy of the bill is available by clicking here.


United States: DOL Releases Disclosure Data Files for FY 2009 - The Department of Labor, Foreign Labor Certification Data Center has released its public disclosure data for temporary and permanent labor certifications. The data provides information for all Labor Condition Applications and Permanent Labor Certifications filed by employers. The data, which is available by clicking here, can be downloaded in Microsoft Access or Text format by program and fiscal year.

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