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Is CIS Form I-129 Fair and Just?
Added: (Thu Jan 28 2010)
Houston-area immigration lawyer Annie Banerjee not only decries the unfairness of I-129, but she also has some pointed comments to make about the CIS and their H-1B adjudication practices.
The form I-129 serves as a request for evidences in determining if an employer is in compliance with H-1B visa conditions. Its questions and statements, at first glance, seem innocuous enough.
1. The beneficiary has been advised of the offsite placement and accepts the terms of the H-1B employment, including the job location and possible relocation.
“The wording is immediately disingenuous,” Annie Banerjee, Houston-area immigration lawyer asserts. “Software industry employees and similar migratory occupations tend to travel between sites, and may not realize that working offsite without the necessary paperwork in place is grounds for an infraction. While the beneficiary may know they have to work offsite, he/she may not admit to it, leaving his employees vulnerable.”
2. Placement of the beneficiary offsite during the period of employment will be in compliance with the statutory and regulatory requirements of the G-1B nonimmigrant classification.
3. The beneficiary will be paid the prevailing rate of pay at any offsite location.
“This reminds me of the red herring question on the I-94 application asked of air travelers, ‘Are you a terrorist?’ Answering ‘yes’ to such a question would be tantamount to stupidity. In the same manner, will anyone filing an H-1B petition ever say they will not comply with the law?” Banerjee asks.
4. The work itinerary is attached.
“This is like a catch-22, or like the sound of one hand clapping,” Banerjee explains. “The H-1B is provided for a period of three years. Who can possibly predict their precise itinerary for the entire three year period? Nostradamus would have trouble with that requirement. If the work itinerary provided to the CIS is for less than three years, it necessitates that the employer has to re-file the entire H-1B application, and with additional fees added. Even if by some miracle they know the work itinerary, the job may be cancelled or end prematurely for a myriad of reasons.”
“So what is the point of private employers filing job itineraries with the government?” Banerjee asks. Banerjee can’t help but conclude that the mere act of filling out the I-129 as a way to validate the CIS H-1B adjudication practices seems primarily to be a method of unfairly penalizing small employers.