INS Proposes New H1B Supplement Form
Posted Jun 30, 2000
 
The Immigration and Naturalization Service (INS) has proposed a new version of the H Supplement to Form I-129. As many of you know, Form I-129 is used to petition for a variety of working visa statuses, such as H1B, O, P, L1, etc. In addition to the basic form, one is also required to include the appropriate Supplement to the Form that pertains to the type of petition category. The H Supplement is submitted with petitions for H1B, H2A, H2B and H-3 workers. 
 
The new version would include several significant changes. In a letter dated May 30, 2000, representatives of the American Immigration Lawyers Association (AILA) expressed concerns about the proposed form.
 
Country of Birth versus Citizenship : 
 
First of all, the Form I-129 itself, which remains unchanged in the proposal, needs to be amended to include information on both country of birth and country of citizenship for the beneficiary. Currently the form indicates country of birth only, while the approval notices have a line for country of citizenship. The result is that the country of birth information from the Form I-129 is placed on the approval notice under country of citizenship, leading to inaccuracies for persons whose country of birth differs from their country of citizenship. Although this affects a small percentage of applications, it has created confusion. AILA recommends that the Form I-129 include separate spaces for country of birth and country of citizenship.
 
Concerns Regarding the Beneficiary's Signature : 
 
Of even greater concern is the new requirement on the proposed H Supplement for the signature of the beneficiary. The signature would constitute a certification that "all information relating to" the beneficiary is accurate. Significant delays could result from having to ship the entire original petition package to the beneficiary, who may be halfway around the world, then waiting for the beneficiary to review it, and then having the beneficiary ship it back to the Petitioner. Then the Petitioner would send it to the attorney, the attorney would review it for any changes, the entire process would be repeated if the changes suggested by the Beneficiary were not legally accurate, and finally the package would be filed with the INS. Persons in many parts of the world do not have access to international courier services, and this poses a major logistical problem for such prospective employees. Some packages would inevitably get lost or misplaced, and then the entire H-1 package might have to be prepared all over again.
 
A more fundamental problem with the signature requirement is that, although nearly all the information on the petition somehow "relates to" the beneficiary, that beneficiary might be unable to verify all the information -- for example, whether the wage offered is consistent with the prevailing wage required in the locality of employment. The I-129 is legally a petition by the employer or petitioner; yet the beneficiary would be expected to vouch for the accuracy of the information provided by that person or company. AILA also explains that a signature is not needed to address fraud concerns, because the consulates ask specific questions about fraud on the visa application form and during visa interviews. Often, investigations are conducted in connection with the visa application process if there are any doubts.
 
H1B Dependent Employer Issues :
 
The proposed H Supplement also asks questions relating to the new requirements under the 1998 H1B law known as the American Competitiveness and Workforce Improvement Act (ACWIA). AILA points out in the May 30, 2000 letter that obligations imposed by ACWIA for employers deemed "H1B dependent" are to be enforced solely by the Department of Labor (DOL) in connection with the Labor Condition Application (LCA – that is, the DOL form enclosed with H1B petition packages). These "dependent employer" requirements will not be in effect until DOL issues regulations, and the statute does indicate that enforcement will be the responsibility of the DOL. The DOL has already indicated that a new version of the LCA will be issued to address the new requirements. It is therefore wholly without basis, in law or regulation, for the INS to include questions relating to H1B dependency in its own forms.
 
Please note that the new form is only a proposal at this point. Other changes are likely before a final version is issued. The Law Office of Sheela Murthy, P.C. will continue to follow the progress of the form revision process and post updates on our site.