The Immigration and Naturalization Service has recently issued a PROPOSED regulation which would liberalize certain requirements in the processing of H-1B visa petitions. The proposed rules will largely benefit healthcare and computer consulting companies who place workers at multiple locations in the US.

Current rules provide that an H petition which requires an alien to perform services in more than one location must include an itinerary with dates and location of the services or training to be performed. Those rules were put in place largely to address practices in the entertainment industry (which no longer uses the H-1B visa). The rules were designed to prevent such workers from freelancing while here. According to the INS, the use of contract workers in many areas of the American workplace has become quite common and the existing H-1B rules impose a serious burden on employers.

One of the changes proposed by the rules is an amendment to the regulations to allow certain petitioners to submit a general statement describing the locations where the alien is the employed as opposed to submitting a complete itinerary. A complete itinerary would only need to be submitted in those instances where the employer is aware of the actual itinerary or where the petitioner is an agent that does not actually employer the beneficiary but merely represents the alien and the alien's employer.

Where the employer does not yet know the alien's complete itinerary at the time the petition is filed, it is enough for the employer to submit, in lieu of a complete itinerary, a list of the places where it knows the beneficiary will definitely be employed, together with a description of the alien's job duties at those locations.

Employers would also need to submit, to the extent possible, a list describing the alien's possible places of employment and the duties which the alien would perform at these locations. In some cases, an employer will be asked to submit a letter with the petition describing its past hiring practices, including a list of past places where it has employed similarly employed persons. The letter would need to describe the employer's tentative plans to use the beneficiary in an H-1B capacity in the future. But the INS specifically notes that the absence of a past hiring practice is not a bar to the approval of the petition. But this type of evidence will help the INS determine if there is, in fact, a bona fide job for the alien in the US and the sponsor is not just bringing the worker in on the basis of speculative employment.

The proposed rule only affects cases where the petitioner is the actual employer of the alien and not in cases where the petitioner is an agent. In those cases, complete itineraries would need to be submitted.

The proposed rule also provides specific examples of certain common situations where an amended H-1B petition need or need not be filed. An amended H-1B petition would need to be filed in all cases where there is a change in the beneficiary's duties from one specialty occupation to another specialty occupation. A change in the name of the petitioning employer is not enough to have to file an amendment. An amendment would need to filed if the petitioner is required to obtain a new labor condition application form.

The rules would also be amended to indicate that a petition for an H nonimmigrant will be automatically revoked if the petitioner notifies the INS that the beneficiary is no longer employed by the petitioning entity. This will make the H rules consistent with the O and P regulations.

One very important change proposed by the rule would allow an employer who has not submitted an Labor Condition Application form with the I-129 petition to the INS to submit the LCA after the case is filed. The fact that the certification date on the labor condition application may be later than the intitial filing date of the petition does not warrant the denial of the petition.