On November 23, 2010, USCIS will release a revised Form I-129, Petition for a Nonimmigrant Worker. Employers primarily use the I-129 form to petition for temporary workers under a variety of nonimmigrant visa classifications such as the H-1B, O-1, and L-1 visas.
Employers of TN visa workers may use the I-129 form to change a worker’s visa classification to TN visa status, or to extend the worker’s current TN visa status. The majority of the proposed revisions to the I-129 form have little impact on the TN visa classification. Most of the revisions deal with the H-1B visa, e.g. concerning EAR / ITAR export control compliance (pg. 5), off-site assignments (pg. 19), and the new H-1B / L-1 fee (pg. 25).
One question on the I-129 form that has an impact on all petitions, including those for TN visa status, asks whether the beneficiary will work off-site (pg. 4). The I-129 instructions do not define what is meant by “off-site.” Does this include any work performed off-site such as isolated or occasional business visits? Or is the question concerned only with prolonged or recurring off-site work? USCIS will need to provide more clarification on how to respond to this question.
The relevance of the off-site question to the TN visa classification is dubious. The TN visa classification only requires that the TN visa worker perform “pre-arranged business activities for a United States entity.” 8 C.F.R. § 214.6 (b). The regulations are silent on off-site or third-party work. CBP will occasionally deny TN visa applications involving off-site work, e.g. for staffing companies. As discussed in another post, this type of denial is inappropriate for properly documented TN visa applications.
We may attribute the inclusion of this question in the revised I-129 form to USCIS’ growing concerns over off-site or third-party work. These concerns have been primarily targeted at the H-1B visa classification (see Neufeld Memo). (Note also the additional off-site questions addressed to H-1B workers on page 19 of the revised form). The inclusion of the off-site question in the general section of the I-129 form, rather than just the specific H-1B portions, may indicate USCIS’ expansion of its scrutiny of off-site employment to petitions for other visa classifications.
USCIS' revision of the I-129 signatory page also effects all visa classifications including the TN visa and now requires the employer to certify (pg. 6) that USCIS may conduct audits of the petition using publicly available information and that it may verify the evidence submitted "through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews.”
Employers may use the old I-129 form until Dec. 22, 2010. Beginning Dec. 23, 2010, USCIS will reject any petitions using the previous editions of the form.