A new I129 Form will be introduced and published on November 23, 2010, the same date the filing fees increase from $320 to $325.00 for the base fee, and from $1000 to $1225.00 if premium expedited processing is requested. The form is used for several non-immigrant categories including E-1/E2, E-3, H-1B, H-2A, H-2B, the expired H-2C registered nurse, H-3, L-1, O, P, Q, R and TN. On top of the base fee for each of these categories there are fraud and training fees that vary by category, employer size and other requirements. Fraud fees were increased from $750 to $2000 back in August 2010 for certain H-1B petitioning firms with 50 or more employees and 50% of the workers on H-1B and L1 visas. There is also an optional M-735 H-1B Processing Sheet to help work out which fees are due and who is subject to the annual cap (maximum annual limit on H-1B visas).

U.S. Citizenship and Immigration Services (USCIS) will accept previous editions of the I129 form for 30 days or until December 22, 2010. Thereafter, the new form must be used. Consulting counsel about which form to use in the next 30 days is advised because there could be strategic reasons to favor one form over the other in light of the new questions being asked described in more detail below.

New Features in the Final Form

A. Off-Site Work
The final general form for all categories now includes the questions whether an itinerary is attached and whether the employee will “work off-site,” which has different ramifications and rules for different categories. The H supplement form includes three new questions about off-site work including that the employer certifies it will comply with off-site work rules, including payment of the appropriate wage.

B. Export Controls
The new form includes new questions about export controls, and clarifies that the questions only apply to H-1Bs, L-1s and O-1 beneficiaries. Two questions ask the petitioner to check whether or not an export control license is required for the technology or technical data the petitioner will release or will otherwise provide access to the beneficiary. The employer must certify it has reviewed Export Administration Regulations and International Traffic in Arms Regulations, and that if a license is required, the beneficiary employee will not have any access to the controlled technology or data until the license is obtained. Although we had to know something about this area before, usually in the context of consular processing of visa applications and related security checks, now immigration lawyers get to become, or work with, export control specialists since every client will need to certify that they are or are not subject to the rules. Meanwhile, it is no coincidence that these questions appear on the form at the same time the U.S. Department of Homeland Security (DHS) announced it has funded and will manage a new Federal Export Enforcement Coordination Center (Center) that will be a multi-agency law enforcement organization.

C. Free Trade Categories
A new separate supplemental page has check boxes to tick off whether the case involves one of the Free Trade categories for H-1Bs (Chile, Singapore or Commonwealth of the Northern Mariana Islands), or TNs (Canada or Mexico). The H supplement form has reorganized the various H category tick boxes to reflect recent changes.

D. Cap, Tarp and Pay-for-Enforcement Categories
Who is or is not subject to the cap is laid out in terms of more check boxes by category. There is also a question about TARP recipient employers who received federal bail-out money and are subject to special rules. In addition, there are specific provisions laid out addressing the new Public Law 111-230, enacted on August 13, 2010, that mandates the submission of an additional $2,000 or $2,250 fee for certain H-1B and L-1 petitions rather than the usual $500 fraud fee. The additional $2,000 fee is required for H-1B petitions postmarked on/after August 14, 2010 through September 30, 2014. This exorbitant fee must be paid by employers with 50 or more employees where 50% or more of the U.S. workforce are on H-1B or L1 visas. These fees are paid per employee sponsored on top of the $750-$1500 training fee and the new $325 base fee. The $2000 fraud fee does not apply to extension requests with the same employer.

E. Employer Release
Finally, employers not only sign under penalty of perjury as they always have, but now petitioning employers must authorize release to USCIS of “any records” of the petitioning employer “to determine eligibility.” The employer is on notice of USCIS’ right to audit the employer “from any publicly available open source information,” and that any supporting evidence submitted with the application can be “verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews.” This release opens up a can of worms which may infringe upon the employer’s right to insist upon a subpoena or where the nature of the employer’s work product or employee data is subject to other regulation such as bank employee privacy rules, for example. In addition, the inspection rules may conflict with U.S. Department of Labor rules governing audits of Labor Condition Applications that are filed with the USCIS petition for H-1B.

H-1B Cap Status as of November 19, 2010
The latest figures from USCIS concerning H-1B use show that as of November 19, 2010 for Fiscal Year 2011 that began October 1, 2010, 48,977 of the 65,000 maximum petitions have been approved, while 17,836 of the allotted 20,000 U.S. masters degree cap cases have been approved. (Note: Not all employers/employees are subject to the annual cap.) Therefore, it is likely the caps will be reached in the next several weeks or months, and long before the fiscal year ends on September 30, 2011. This means that when the cap is reached, employers will have to wait until April 1, 2011 to file petitions for jobs that cannot begin until October 1, 2011.