USCIS Proposed Changes to the Form I-129 Target Third-Party Placement

The comment request period of U.S. Citizenship and Immigration Services' (USCIS) proposed changes to the Form I-129 Petition for Nonimmigrant Worker expired on April 9, 2010. If accepted, the revised form will affect employers who utilize third-party placement as well as employers whose employees frequently change worksite locations.

The proposed revisions would require additional information and attestations from petitioners who utilize third-party placement. Specifically, the new form would require an employer petitioning on behalf of an employee who would be working off-site to provide the name and address of the compan(ies) where he or she would be working, as well as the name, title and phone number of a contact person at each off-site location. In terms of attestations, the new form would require that petitioners who would place their H-1B workers off-site sign statements certifying that they will maintain a valid employer-employee relationship and will pay the “prevailing rate of pay at any and all off-site locations.”

Significantly, the proposed instructions to the new Form I-129 include a definition of a "material change" to employment that would require an employer to amend its employee’s H-1B petition. The proposed instructions state that a material change in the terms and conditions of employment would include “a change in primary job responsibilities or geographic location of the position.” [emphasis added] The proposed instructions appear to contradict previous USCIS policy, which held that employers were required to file a new Labor Condition Application (LCA) when an H-1B employee changed worksites, but that an H-1B amendment petition was not necessary. Notably, this definition of "material change" does not exist in the regulations.