Revised I-129 Requires Disclosure of Beneficiary’s Ownership Interest in the Employer

The U.S. Citizenship and Immigration Services (USCIS) has made a few revisions to form I-129, the petition for a nonimmigrant worker. The most notable change is the addition of a question on the H classification supplement, which asks, “Does any beneficiary in this petition have ownership interest in the petitioning organization?” This new question appears to be focused on the H1B requirement of an employer-employee relationship and the right of control.

Revised I-129 Required After April 30, 2015

The new I-129, which can be identified by the revision date of 10/23/14 indicated at the bottom of each page of the form, will be the only version accepted by the USCIS, effective May 1, 2015. The USCIS initially planned to require the use of this new version starting on February 23, 2015. However, in light of concerns voiced about the timing of this change, the mandatory use of this form edition was postponed to May 1, 2015. This, fortunately, coordinates better with the upcoming H1B cap season filings starting on April 1, 2015.

Ownership Interest Determines Right of Control

The question about the beneficiary’s ownership interest in the petitioning employer appears to be related to the H1B requirement that there be a true employer-employee relationship, and that the petitioner maintains the right to control the H1B worker. When a beneficiary owns a majority interest of the sponsoring employer, the USCIS has taken the position that this may cast doubt on whether the employer has the ability to exercise control over the worker. More information on this topic, as well as the potential for overcoming this hurdle, can be found in the MurthyDotCom NewsBrief, Entrepreneur H1B Petitions: A New Option for Start Up Companies? (17.Dec.2012).

Different from Ownership in PERM Labor Cases

The PERM labor certification form (PERM LC), which is used in most employment-based permanent residency (green card) cases, poses a similar question about whether the employee has an ownership interest in the sponsoring employer. However, there are stark differences between the two. First of all, the question in the H1B context applies to all employers, no matter how large. Thus, if an H1B worker owns even a small number of shares in a publically traded company, it appears that this would have to be disclosed on the revised version of the I-129. Still, such a small ownership interest typically would not be a cause for concern in an H1B petition.

On the other hand, in the PERM context, the question of ownership only applies if the employer is a closely held corporation, partnership, or sole proprietorship. Yet, the reach and likely impact is far greater. Unlike the I-129 question, which only asks whether the beneficiary has an ownership interest, the PERM LC asks whether there is any “…familial relationship between the owners, stockholders, partners, corporate officers, incorporators, and the alien.” What more, if the answer to this question is yes, in many situations, this will almost certainly lead to a denial on the PERM LC. A more detailed discussion of this is available in the MurthyDotCom NewsBrief, DOL Issues FAQs on Familial Relationships (20.Aug.2014).

Plan Ahead

This revision to the I-129 has no direct impact on PERM LC filings, but an understanding of the nuances between the ownership question in the PERM context and the one now being asked on H1B petitions is important for long-term planning. If the beneficiary’s family member owns the petitioning company, this would not have to be disclosed on the I-129. However, in most such situations, the family ownership will come to light in the green card context and, depending upon the facts, could negatively affect the likely outcome of the PERM LC.

Conclusion

H1B workers who have ownership interests in their respective companies need to consider this issue well in advance of filing an H1B petition. This is especially true if the foreign national hopes to be sponsored by the employer for a green card. The Murthy Law Firm is available to assist employers, H1B workers, and foreign nationals interested in pursuing H1B status through an entrepreneurial venture.

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