The USCIS has proposed a major revision of form I-129, including the instructions to the form. This request in now pending before the Office of Management and Budget (OMB). They have published their request in the Federal Register and have requested public comment on the proposal. The comment period closes on April 9, 2010. After the public comment period closes, the USCIS is required to take all public comments into consideration and them put forward a proposed final version of the form and instructions. The OMB will review both the public comments and the USCIS final proposal to make sure that the agency has not exceeded its authority, violated federal statutes, and taken public comments into account. Once the OMB approves the final proposal, the USCIS will publish a final notice and the form will become effective. It is safe to say that once this new form takes effect, prior versions will not be accepted for filing.

The new form contains many welcome improvements. The form is longer, but this is because they have laid it out in a more logical fashion. They have also rewritten most questions and broken them into easier to understand components. They have provided more choices for many selections, eliminating much of the confusion that exists when using the current form.

The new form makes it clear that amendments are needed whenever there is any change in the original submission, such as a changed job site. No longer will employers be able to use "itinerant employee" language in the petition and then simply obtain a new LCA. Once the new form is promulgated, it will be clear that the employer must obtain a new, certified LCA and file an amended petition.

The most intriguing aspect of the new form are the portions dealing with third party placement. There is a new Part 6 that asks if the beneficiary will work off site. If the answer is yes, then the petitioner must provide the name and address of the company where the beneficiary will work, as well as the name, title and phone number of the person who will supervise the beneficiary there.

The data collection supplement has also been revised to take into account third party placement situations. Part D of that supplement requires both the petitioner and the beneficiary to sign a five part attestation, certifying that they will comply with the terms and conditions set forth in the petition, as well as the regulatory requirements imposed in such cases.

These new additions to the form raise interesting questions concerning the recent USCIS offensive to eliminate third party placements. Since this is formal notice and comment rule making, the public is entitled to presume that providing this information and making these attestations is sufficient to satisfy USCIS concerns regarding third party placement. For example, in the instructions, petitioners are told to submit copies of all contracts between the petitioner and the beneficiary, as well as an itinerary; but conspicuously absent is any mention of contracts with intermediate vendors or end-client letters. Now, since the USCIS is going through formal rulemaking, they have an obligation to disclose their requirements at this point. Since they have said nothing about end-user letters or other contracts, we are entitled to presume that such documentation is not required in third party placement situations unless there are unusual circumstances present. An ordinary third party placement does not constitute "unusual circumstances." If they USCIS begins to routinely issue requests for evidence asking for end-user letters after this rule becomes final, they are going to find themselves getting sued for illegal rulemaking.

Another new feature incorporated into the I-120 is an attestation by the petitioner concerning the deemed export rule. While this has been the law for decades, petitioners have routinely ignored it. Now, they are going to have to deal with it explicitly. The good news is that since most of the "administrative processing" delays in overseas H1B visa issuance involve real or suspected export regulation violations, completion of this portion of the form should eliminate most if not all of these types of delays.

We will devote an entire article in the next Newsletter to the deemed export rule and what petitioners are going to have to do to comply with it in order to file H1B petitions . For now, it is sufficient to say that this is a component of the new form and employers need to ramp up their skills to deal with this issue.