Wednesday, December 1, 2010

Effective Immediately: New I-129 Forms!!!!

That’s right. You heard correctly, on November 23, 2010, with very little fanfare or advanced warning, USCIS implemented a revised I-129 form and O/P Supplement form. According to the USCIS website, the new forms must be used effective immediately. However, USCIS has “unofficially” officially confirmed with the American Immigration Lawyers Association that USCIS will continue to accept the old versions of the I-129 and O/P Supplement until December 22, 2010.

Any petitions that are POSTMARKED December 22 or later MUST use the new forms. After December 22, USCIS will reject any petitions using the old forms.

The new forms themselves impose a new layout, new questions, and additional required signatures. FTM Arts Law is currently in discussions with USCIS seeking clarification and guidance on various inconsistencies and challenges imposed by certain questions, as well as format issues. While we anticipate that further pointers will be forth-coming, here are some of the exciting highlights in the new forms you should be aware of:

I-129 Form

  • Part 2; Question 3: You must now provide the artist’s most recent visa petition receipt number even if you are not requesting an extension of stay or change of status or the artist is not present in US or if the Artist’s prior visa was in a different classification than the one you are now applying for.
  • Part 3; Question 1(f): You must now indicate the gender of the artist. If filing for a group, we are assuming that this is left blank.
  • Part 3; Question 2(e): You must now provide the artist’s Student & Exchange Visitor Information System (SEVIS) number, if applicable.
  • Part 3; Question 2(f): You must now provide the artist’s Employment Authorization Number (EAD), if applicable.
  • Part 4; Questions 11(a) and 11(b): You are now being asked to provide information as to whether or not the artist has ever been in the US in J-1/J-2 (exchange visa) classification.
  • Part 4: With regard to all of the questions in Part 4, if you answer “yes” to any question (prior denials, accompanying petitions, prior green card petitions, valid passports, etc), you must now put your explanation on an official explanation page which is now part of the new I-129 form. This explanation page must also be signed by petitioner. Not using the official explanation page could result in the entire petition being rejected by the mailroom and/or may give UCIS examiners another reason to issue a request for evidence.
  • Part 5; Question 4: You must now indicate whether or not an itinerary is included with the petition. (NOTE: As we don’t yet know how USCIS will respond in situations where an itinerary is not required in the first place, we are advising either to check “No or leave blank and write “N/A” in such circumstances.)
  • Part 5; Question 5: You must now indicate whether the artist will work-off site. (NOTE: we are advising petitioners filing on behalf of performing artists to leave this blank and hand write “N/A” in such circumstances.)
  • Part 5; Question 6: You are now being asked to indicate whether or not your artist will work exclusively in the CNMI (Commonwealth of Northern Marina Islands). Either check “No” or leave blank and write “N/A."
  • Part 6: This is an entire new section which does not apply to those filing for artists and performance groups.

O/P Supplement

  • Section 1; Question 7: You must now indicate whether or not a labor organization exists for the petitioned activity. If the answer is “No”, then you must provide an explanation on the new form explanation page. (NOTE: If the answer is “Yes”, but you choose to submit a consultation from a peer group or service organizations, this could result in a rejection or an RFE.)
  • Section 1; Question 8: You must now indicate whether or not a union consultation or written advisory option is attached to the petition. For petitions that include positions that are and are not covered by unions (i.e. P-1S with administrative worker and technical workers covered by IATSE), answer “No” to Question 7 and explain positions not covered by unions AND answer “Yes” to question 8 for positions covered by unions.
  • Section 2: The petitioner must now sign a statement confirming liability for returned transportation costs if the artist is dismissed by the employer before the end of classification period. (NOTE: This is likely to have little practical implication in most itinerary-based petitions for performing artists, but will cause petitioner confusion and alarm, nonetheless!)
Merry Christmas from USCIS! Check back for further developments and clarifications as they occur.

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