USCIS Revises Form I-129
The USCIS recently made significant revisions to the Form I-129, which is used in employer-based petitions, such as H-1B and L-1 petitions. The form now includes a "Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States." This certification requires company signatories to certify their company's compliance with the "deemed export" rules, which are enumerated in the U.S. Department of Commerce's Export Administration Regulations (EAR) and the U.S. Department of State's International Traffic in Arms Regulations (ITAR). The deemed export rules interpret the release of controlled technology to a foreign national as equivalent to the export of technical data to that individual's country. As such, sharing certain technologies with the current or prospective foreign national employee may require export licenses. (For more information on the release of controlled technology or technical data to foreign persons in the United States, click here.)
All company signatories should carefully review the deemed export rules to ensure they are accurately completing the attestation. Export license determinations are not straightforward – they require an in-depth understanding of how the technology is used, how accessible it is, whether it is controlled, and in which countries it is controlled. While few companies use controlled technology, the consequences of noncompliance for those that do are significant. Penalties include civil fines of up to $500,000, criminal fines of up to $1 million and up to 10 years in prison, restricted export privileges, and suspension of government contracts. Although the attestation is already listed on the Form I-129, companies will only be held responsible for their certification responses in petitions filed on or after February 20, 2011.
Combined Work/Travel Card for I-485 Applicants
Applicants who have filed, or will file, a Form I-485, which is used to apply for permanent residency in the United States, will now be able to apply for a combined employment and travel authorization card. Previously, Applicants carried separate documents for work and travel; these documents often expired on different dates, thus making them difficult to maintain. Not all applicants will be able to apply immediately for the combined card, as it will generally only be issued when there are less than 120 days of validity remaining on an applicant's current authorizations. However, we will strategize the renewal process to ensure that we are able to apply for the combined card at the earliest opportunity. The combined card may be accepted by employers as a List A document for the Form I-9, Employment Eligibility and Verification.
2011 H-1B Cap Reached
Each fiscal year, the USCIS grants a total of 85,000 new H-1B visas, referred to as the H-1B Cap. The H-1B Regular Cap accounts for 65,000 visas, which are issued to specialty occupation workers who will be employed in positions that require at least a bachelor's degree or the equivalent in a related field. The remaining 20,000 H-1B visas are part of the H-1B Master's Cap, and are for workers who have earned an advanced degree in the United States. On January 26, 2011, the USCIS announced that it had reached the total H-1B limit, including both the Regular Cap and the Master's Cap, for this fiscal year. The practical effect of this announcement is that employers must wait to apply for any new H-1B petitions until the fiscal 2012 H-1B Cap opens on April 1st. The USCIS continues to accept and process applications filed by current H-1B workers who wish to extend their authorized employment in the United States, to change employers, or to obtain a concurrent H-1B position.
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