Potential Changes to the Nonimmigrant Worker Petition

U.S. Citizenship and Immigration Services (“USCIS”) recently published a Federal Register notice announcement proposing an update to the Form I-129, which is filed in connection with various nonimmigrant visa petitions (i.e. H-1B, L-1, O-1A).  Two of the more significant changes in the update would require employers to make declarations about the third-party placement of foreign workers and also require new compliance standards with federal export control laws.

Concerning third-party placements, petitioning employers would be required to provide significantly more detail when a foreign national would be working offsite with a third party.  Such details would include the petitioner providing the name and address of the third party, the name, job title and contact information at the third-party site. The petitioner would also be required to confirm that the foreign national would be paid the prevailing wage as well as all other obligations required of the petitioner while the foreign national worked at the offsite location.

One of the less recognized, but equally important provisions, relates to compliance of export controls.  Federal export control regulations require employers to obtain an export license if they will release certain kinds of technology information to foreign nationals since technology is not only considered to be exported if shipped overseas, but also released to foreign nationals in the U.S.  Such exports must be authorized by an export license issued by the government.  Under the proposed announcement by USCIS, petitioners 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.

Both of these provisions increase the burden on employers in submitting H-1B petitions and ultimately further limit the ability of U.S. companies to hire the necessary talent needed to continue growth in the U.S.

The agency is accepting public comments on the proposed revisions through April 9, 2010. The full notice can be found online by clicking here.

We will continue to monitor the progress of the proposed changes and notify you as updates become available.

Szabo, Zelnick & Erickson

Employee-employer relationship I-129 Prevailing wage H-1B