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ILW.COM Bloggings On April 15, 2010

by Christopher T. Musillo and Kevin Johnson

MU Comments on the Proposed I-129

To little fanfare the USCIS recently announced a new proposed Form I-129. The Form I-129 is used in many business nonimmigrant filings, including the H-1B. The USCIS asked for public comments on the proposed revisions. Musillo Unkenholt recently filed our comments with the USCIS.

While Musillo Unkenholt has several problems with the proposed revised Form I-129, MU elected to highlight the most significant change in our comments to the USCIS. Namely, the apparent new requirement that an amended H-1B Petition must be filed whenever a H-1B worker changes his geographical location. This new requirement quietly was snuck into the new Form’s instructions.

This has never been USCIS policy. The USCIS’ current policy remains unchanged since the early 1990s. In at least five prior correspondences (all referenced in the MU letter), USCIS and Legacy INS officials have determined that a simple geographic change is an immaterial change, and therefore the H-1B amendment rule is not triggered.

Practically and legally there is good reason for the existing USICS policy; a simple geographical change does not change the H-1B worker’s underlying job duties.

We invite you to read the MU letter. AILA has also published a lengthy letter that was also submitted to the USCIS as part of the comment period. AILA's letter raises a number of excellent points.

USCIS recently has begun to engage the public in advance of changes. MU applauds this effort and has actively participated in several of the USCIS’ outreach sessions. This effort to slip a massive change past the immigration bar belies that effort.