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LitwinLaw Newsletter - September 2010

September 1, 2010

Also in this issue:
New Publications and Items of Interest
Government Agency Links

Details...
1. USCIS Implements H-1B, L-1 Fee Increases
On August 13, 2010, President Barack Obama signed into law provisions to increase certain H-1B and L-1 petition fees. Effective immediately, the provisions require an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010. The increases will remain in effect through September 30, 2014.

The additional fees apply to petitioners who employ 50 or more employees in the U.S. with more than 50 percent of their employees in the U.S. in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status. Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:

  • initially to grant a worker nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15), or
  • to obtain authorization for a worker having such status to change employers.

USCIS is revising the Petition for a Nonimmigrant Worker (Form I-129) and instructions to comply with the new law (Public Law 111-230). To facilitate implementation, USCIS recommends that all H-1B, L-1A, and L-1B petitioners, as part of the filing packet, include the new fee or a statement of other evidence outlining why the new fee does not apply. USCIS requests that petitioners state whether the fee is required in bold capital letters at the top of the cover letter. If USCIS does not receive such explanation and/or documentation with the initial filing, it may issue a Request for Evidence (RFE) to determine whether the petition is covered by the law. An RFE may be required even if such evidence is submitted, if questions remain.

The additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee, needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.

Indian businesses such as Infosys and Tata are expected to feel the law's primary impact, and some feel it unfairly targets them. Nasscom, a trade association representing high-tech Indian companies, reportedly predicted that the legislation will result in a decrease in foreign investment in the U.S. and that educated foreign workers will seek jobs in other countries instead. The American Council on International Personnel reported that the Indian government is unhappy with the law.
Sen. Charles Schumer (D-N.Y.) said in remarks before Senate passage on August 12, 2010, however, that "[i]f you are using the H-1B visa to innovate new products and technologies for your own company to sell, that is a good thing regardless of whether the company was originally founded in India, Ireland, or Indiana. But if you are using the H-1B visa to run a glorified international temp agency for tech workers in contravention of the spirit of the program, I and my colleagues believe that you should have to pay a higher fee to ensure that American workers are not losing their jobs because of unintended uses of the visa program that were never contemplated when the program was created."

USCIS’ announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35
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. The full text of the bill is available at http://www.govtrack.us/congress/billtext.xpd?bill=h111-6080. Commentary on the bill's impact on Indian IT companies is available at http://cyrusmehta.blogspot.com/2010/08/silence-in-time-of-torment-throwing.html.

2. Dept. of State Finalizes Rule on Electronic Application Alternative for Immigrant Visas
The Department of State has issued a final rule, effective August 3, 2010, on electronic applications. The agency has developed and introduced an electronic application process for immigrant visa applicants to eventually replace the current paper-based application process, which consists of Parts 1 and 2 of Form DS-230, Application for Immigrant Visa and Alien Registration. The Department will continue to accept the DS-230 when necessary, but plans to eliminate the DS-230 eventually and replace it with the DS-260, Electronic Application for Immigrant Visa and Alien Registration, which is designed to be completed and signed electronically.

The final rule's supplementary information explains that the procedure is the same for the immigrant visa applicant, except that he or she will not be required to print a form to take to the visa interview. All information entered into the DS-260 will be available to the National Visa Center and to the consular officer at the time of application processing and interviewing. The applicant must sign the DS-260 electronically at the time of submission by clicking a "Sign and Submit Application'' box in the application. The applicant will also be required at the interview to swear under oath that the information provided on the DS-260 is true, and to provide a biometric signature. Photos, passports, and fingerscans collected as part of the application process will identify the applicant.
A third party may assist the applicant in preparing the DS-260, but the applicant must electronically sign the application. The applicant must identify in the application any third party who has assisted in the preparation of the DS-260.

The final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-19046.pdf.

3. Dept. of State Contacts Employers Who are Petitioning Nonimmigrant Visa Workers
According to the Dept. of State, the Kentucky Consular Center (KCC) has routinely has been contacting companies who petitioned for nonimmigrant visa workers (including H and L visas), in order to verify the details of the petitions and the offers of employment.  These contacts often happen after the visa petitions have been approved and employers think that nothing further need to be done on their part.  Normally, such contact is made prior to a visa being issued to the foreign worker.  Questions include, but are not limited to:

  1. whether the employer, in fact, submitted the petition;
  2. the date of the petitioner’s incorporation;
  3. the number of employees;
  4. the number of shareholders;
  5. general information regarding the petitioner’s operations and business plans.

If you receive such a call, please be sure that you understand that any derogatory information obtain during the telephonic contact could lead to civil or criminal penalties.

4. Dept. of Labor Releases Round 11 of Permanent Labor Certification FAQ
The Department of Labor's Office of Foreign Labor Certification released frequently asked questions on permanent labor certification, round 11, on August 3, 2010. Topics include the lack of an expedited filing option, documenting the use of an employee referral program as a step in recruitment for a professional occupation, the effects of submitting unsolicited documentation, and the definition of a "business day."
The FAQ is available at http://www.foreignlaborcert.doleta.gov/pdf/PERM_Faqs_Round
_11_08032010.pdf
.

5. USCIS Changes Filing Location for Several Forms
U.S. Citizenship and Immigration Services (USCIS) has changed the filing location and updated filing procedures for several forms, including among others the Immigrant Petition for Alien Entrepreneur (Form I-526), the Immigrant Petition for Alien Worker (Form I-140), and the Application to Extend/Change Nonimmigrant Status (Form I-539). Details are available for the I-526 at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb9
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; for the I-140 at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35
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CM100000082ca60aRCRD&vgnextchannel=68439c7755cb90
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; and for the I-539 at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f
35e66f614176543f6d1a/?vgnextoid=9d49904c2593a210Vgn
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6. CBP Clarifies TN Extensions of Stay While Immigrant Petition Is Pending/Approved
A 2008 letter just recently released from U.S. Customs and Border Protection has clarified that Trade NAFTA (TN) applicants may be admitted and extend their stay while an immigrant petition is pending or approved, provided that they have not filed for adjustment or an immigrant visa - i.e., had an immigrant visa interview - and do not intend to immigrate on this specific visit. Once a TN files an application for an immigrant visa or adjustment of status, the letter notes, the TN would no longer be eligible for admission or an extension of stay as a TN nonimmigrant.

This is consistent with a practice that has not always been followed. An earlier letter sent from Yvonne LaFleur A 1996 letter sent by a legacy Immigration and Naturalization Service official stated that the fact that an TN applicant is the beneficiary of an approved I-140 petition is not by itself a reason to deny an application for adjustment, extension, or readmission, if the individual's intent is to remain in the US temporarily. Some CBP officers, however have not always followed that advice.

The recently released CBP letter was sent on April 21, 2008, from Paul M. Morris, Executive Director, CBP Admissibility and Passenger Programs, to Charles D. Herrington, Senior Assistant General Counsel, Micron Technology, Inc. The letter states that "the mere filing or approval of an immigrant petition does not automatically constitute intent on the part of the beneficiary to abandon his or her foreign residence. This would hold for a TN principal who may be riding on a spouse's immigrant petition."
The 2008 CBP letter is available at http://www.abil.com/articles/ABIL%20Report%20-%20TN.pdf.

7. Smartsoft Agrees To Pay Nearly $1 Million in Back Wages, Interest
Smartsoft International Inc., a computer consulting company based in Suwanee, Georgia, has agreed to pay nearly $1 million in back wages and interest to 135 nonimmigrant workers temporarily employed by the company under the H-1B visa program, the Department of Labor (DOL) announced on August 17, 2010. The agency's Office of the Solicitor reached the agreement following a determination by the Wage and Hour Division that the company violated the H-1B program's rules. Smartsoft also has U.S. offices in Sunnyvale, California, and North Brunswick, New Jersey.

A Wage and Hour Division investigator determined that some employees were not paid any wages at the beginning of their employment, were paid on a part-time basis despite being hired under a full-time employment agreement, and were paid less than the prevailing wage applicable to the geographic locations where they performed their work.

The company contested the Wage and Hour Division's conclusions and requested a formal hearing with the DOL's Office of Administrative Law Judges. As part of the agreement, the company will drop any further challenges.
The DOL's announcement is available at http://www.dol.gov/opa/media/press/whd/whd20101111.htm.

8. State Dept. Introduces ESTA Fee for Visa Waiver Travelers
The Department of State released a cable to the field in August 2010 that provides information on implementation of the Travel Promotion Act of 2009 (TPA), signed into law on March 4, 2010, and fee collection for the Electronic System for Travel Authorization (ESTA). Under the TPA, fees collected from international travelers from Visa Waiver Program (VWP) countries, matched by private sector contributions, will fund the Corporation for Travel Promotion. The fees will be collected through the ESTA system, which the Department of Homeland Security (DHS) administers.

On August 6, 2010, the DHS announced an interim final rule that requires travelers from VWP countries to pay operational and travel promotion fees when applying for ESTA beginning September 8, 2010. The total fee will be $14, with $4 to recover the cost of administering the ESTA system and $10 as mandated in the TPA.
The announcement, which provides additional details, is available at http://travel.state.gov/pdf/Introduction%20of%20the%20ESTA%
20fee%20for%20Visa
%20Waiver%20Travelers%20-%20August2010.pdf
.

9. DHS Expands List of Dependents of Foreign Officials Eligible for Work Authorization
The Department of Homeland Security (DHS) published a final rule on August 10, 2010, amending its regulations governing the employment authorization for dependents of foreign officials classified as A-1, A-2, G-1, G-3, and G-4 nonimmigrants. The rule, effective August 9, 2010, expands the list of dependents eligible for employment authorization to include any individual who falls within a category designated by the Department of State (DOS) as qualifying.
U.S. Citizenship and Immigration Services (USCIS) will only issue employment authorization documents to those dependents of foreign officials who are recognized by DOS as qualifying. Qualifying dependents must fall within a bilateral work agreement or de facto arrangement, listed on DOS's Web site at http://www.state.gov/m/dghr/flo/c24338.htm.

To apply for employment authorization documents, eligible dependents first must obtain an endorsement from DOS on an Interagency Record of Request, Form I-566. The individual must then file the I-566 along with an Application for Employment Authorization, Form I-765, with USCIS.
The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35
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10. ABIL Global: UK Government Introduces Limits on Skilled Immigration
The United Kingdom (UK) announced on June 28, 2010, that it will introduce limits on the numbers of non-European Union (EU) migrants coming to the UK under both the highly skilled and the sponsored routes of the Points Based System (PBS). The new Coalition Government's main immigration policy will mark the first-ever numerical limits on employment-related migration, which historically has been market-driven. The limits are a response to the levels of net migration to the UK, which have increased significantly since 2004 with the enlargement of the EU.

On July 19, 2010, the Government also introduced an interim limit, in effect until April 2011, aimed at reducing the number of certificates of sponsorship that each employer may assign to migrant workers under Tier 2 (General) and reducing the number of visas issued under the Tier 1 highly skilled category. Many employers, who had been allocated these certificates when they registered as licensed sponsors under the scheme, have had their allocation reduced significantly (in some cases to zero) and must now make requests for additional allocations of certificates, which the UK Border Agency states will be approved only "in exceptional circumstances."

The interim cap is already the subject of a legal challenge. With those extending their status in the UK given priority within the limits, employers who have paid to be licensed sponsors and have taken on significant compliance duties are now left with uncertainty about whether they can sponsor new hires from outside the EU.
Permanent limits will be introduced in April 2011. The UK government is undertaking a consultation process on how the limits should be imposed and, in particular, whether this should be on a first-come, first-served basis and whether intra-company transferees and family members should be included in the overall limit. For the points-based highly skilled route, a system of pooling, under which the highest-scoring applicants are picked from the pool each month, is also being considered.
There are significant concerns among major UK business groups and companies that the limits will damage the UK's reputation as a place to do business and its competitiveness in the global economy.

New Publications and Items of Interest
2009 Yearbook of Immigration Statistics. This compendium of tables published by the Department of Homeland Security's Office of Immigration Statistics provides data on foreign nationals who, during fiscal year 2009, were granted lawful permanent residence, were admitted into the United States on a temporary basis, applied for asylum or refugee status, or were naturalized. Also included are data on enforcement actions. The Yearbook is available at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2009/ois_y
b_2009.pdf
. A report on enforcement actions in 2009 is available at http://www.dhs.gov/xlibrary/assets/statistics/publications/enforce
ment_ar_2009.pdf
.
New USCIS Web features; Spanish enhancements. U.S. Citizenship and Immigration Services (USCIS) announced on August 2, 2010, the launch of new Web features intended to expand users' access to case information. The features include a new online inquiry tool and tailored case status information, as well as new features for Spanish-speaking users available at http://www.uscis.gov/portal/site/uscis-es. See details at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35
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M100000082ca60aRCRD&vgnextchannel=68439c7755cb901
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Border-related interactive discussion site. U.S. Customs and Border Protection has launched an interactive social media Web site on border-related developments. Users can complete a profile and join the discussion, including posting blog entries, photos, and videos. The site is available at http://ourborder.ning.com/.

Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do
Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm
Department of State Visa Bulletin: http://travel.state.gov/visa/bulletin/bulletin_1360.html

Disclaimer/Reminder
This newsletter does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

To print or download this newsletter in PDF click this link:
Liltwinlaw September 1, 2010 Newsletter (PDF version)

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