LitwinLaw Newsletter – 2/1/07

February 1, 2007

Headlines:

• ABIL Issues H-1B Application Alert – The FY 2008 cap is expected to be met quickly; ABIL advises clients to begin preparing well in advance of the April filing start date.
• USCIS Proposes Large Fee Increases – Business immigration forms will cost a lot more to file under USCIS proposal.
• ABIL Invites Companies to Sign Letter to Congress Urging Innovation Measures – The Academy of Business Immigration Lawyers (ABIL) invites leaders of American business and higher education to sign on to a letter calling on Congress to act quickly on an innovation agenda that will ensure U.S. competitiveness.
• Change of Address Function Introduced on Web – USCIS has launched a new web-based service allowing most noncitizens to submit change-of-address information online.
• New Naturalization Test Pilot Emphasizes Civics, History – USCIS has released details about its pilot naturalization exam beginning in February.
• Foreign Entrepreneurs Start 25 Percent of New U.S. Technology Companies, Study Estimates – A look at what immigrants are doing and how they are affecting our economy.
• Small Businesses Agree That Undocumented Immigration is a Problem, But Are Divided on Solution; Lawsuits Filed – Ninety percent of small business owners surveyed agreed that undocumented immigration is a problem, but differed on solutions; some are choosing to sue rivals for immigration violations.

Also in this issue:

Government Agency Links

Details…
1. H-1B Application Alert
Litwin & Smith  advises the graduating students and their employers to contact our office now to help them identify potential H-1B candidates and prepare H-1B paperwork. H-1B applications to be filed under the fiscal year 2008 cap will be accepted by U.S. Citizenship and Immigration Services (USCIS) beginning April 2, 2007, and the cap is expected to be met quickly.
It is possible that a gap will occur between H-1B workers’ employment authorization granted under Optional Practical Training (OPT) and their H-1B work start date. The 60-day grace period at the end of OPT allowing the student to remain in the U.S. does not include H-1B work that may not start before October 1, the beginning of the 2008 fiscal year. Employers are encouraged to contact us for advice in specific situations, and to contact their representatives in Congress to address the problem and the shortage of skilled professionals.
For H-1B filings not subject to the annual cap, it is still possible to obtain H-1B status with an immediate start date for new employees who currently maintain H-1B status with another employer or have been in H-1B status in the past six years and subsequently have been absent from the U.S. for less than one year. In addition, institutions of higher education, nonprofits related or affiliated to such institutions, and nonprofit or governmental research organizations are exempt from the cap and may continue to obtain H-1B status for new employees.
USCIS also will continue to process H-1B petitions filed to: (1) extend the period of time a current H-1B worker may remain in the U.S.; (2) change the terms of employment for current H-1B workers; (3) allow current H-1B workers to change employers; or (4) allow current H-1B workers to work concurrently in a second H-1B position.
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2. USCIS Proposes Large Fee Increases
U.S. Citizenship and Immigration Services (USCIS) has proposed large filing fee increases for many immigration-related forms. In addition to raising fees, the rule proposes to merge the fees for certain applications so applicants will pay a single fee rather than paying several fees for related services. There is a 60-day comment period on the proposed rule, and the increases are not expected to take effect until at least six months after publication.
USCIS said the rule would permit the agency “to devote certain revenues to broader investments in a new technology and business process platform to improve substantially its capabilities and service levels.” Among other things, the rule also proposes to eliminate fees for interim benefits, duplicate filings, and premium processing by “consolidating and reallocating costs among the various fees.”
Some of the business-related forms that will be affected by the proposed increases, and their current and proposed fees, include:

• I-129, Petition for a Nonimmigrant Worker: current, $190; proposed, $320.
• I-140, Immigrant Petition for Alien Worker: current, $195; proposed, $475.
• I-485, Application to Register Permanent Residence or Adjust Status: current, $325; proposed, $905 for applicants 14 years of age or older (except certain refugees).
• I-765, Application for Employment Authorization: current, $180; proposed, $340.
• N-400, Application for Naturalization: current, $330; proposed, $595.

Sens. Patrick Leahy (D-Vt.), Ted Kennedy (D-Mass.), John Conyers (D-Mich.), and Zoe Lofgren (D-Cal.) sent a letter on January 22, 2007, expressing their concern about the proposed fee increases to USCIS Director Emilio Gonzalez. They said they want to review the “extraordinary circumstances that could justify such a massive increase.” Their letter is posted at http://www.aila.org/content/default.aspx?docid=21505.
Comments on the proposed rule (Docket No. USCIS-2006-0044), which was published in the Federal Register on February 1, 2007, should be sent to USCIS by April 2, 2007. Supporting documentation and any comments received will be posted on http://www.regulations.gov. An advance copy of the regulation circulated on January 31, 2007, is posted at http://bibdaily.com/pdfs/FeeRule.pdf. Related announcements and fact sheets are posted at
http://www.uscis.gov/files/pressrelease/PRBuilding1.pdf, http://www.uscis.gov/files/pressrelease/FSbuilding.pdf, http://www.uscis.gov/files/pressrelease/QABuilding1.pdf, and http://www.uscis.gov/files/pressrelease/FSmethod.pdf.
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3. ABIL Invites Companies to Sign Letter to Congress Urging Innovation Measures
The Academy of Business Immigration Lawyers (ABIL) invites leaders of U.S. businesses and higher education institutions to sign on to a letter calling on Congress to act quickly on an innovation agenda that will ensure U.S. competitiveness. The letter recommends that Congress act to double the basic research budgets at the National Science Foundation, the National Institute of Standards and Technology, the Department of Energy’s Office of Science, and the Department of Defense; increase funding of proven programs and incentives for science and math teacher recruitment and professional development; reform U.S. visa policies to welcome highly educated foreign professionals, particularly those holding advanced science, technology, engineering, or mathematics degrees, especially from U.S. universities; and make permanent a strengthened research and development tax credit.
The sign-on letter is available on the American Electronics Association’s Web site at http://www.aeanet.org/GovernmentAffairs/gajl_proclamation0107.asp. A similar letter urging Congress to enact comprehensive immigration reform is available at http://capwiz.com/aila2/issues/alert/?alertid=9221981.
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4. Change of Address Function Introduced on Web
U.S. Citizenship and Immigration Services (USCIS) announced on January 12, 2007, that it has launched a new Web-based service allowing most noncitizens to submit change-of-address information online. USCIS noted that all noncitizens in the U.S. are legally required to keep USCIS informed of any change of address within 10 days of a move by completing an Alien Change of Address Card (Form AR-11). USCIS processes more than one million change-of-address requests each year.
The new change-of-address Web tool is at http://www.uscis.gov/AR-11. Before using the online system, users should have available their USCIS receipt number (if their case is pending before USCIS), their new and old addresses, the names and biographical information of family members for whom the applicant has filed a petition, and the date and location (port of entry) of the applicant’s last entry into the U.S.
In May, USCIS plans to include allowing applicants with pending naturalization applications to report their change of address online. Until then, those individuals should continue to call USCIS at 1-800-375-5283 to report their changes of address.
The notice is posted at http://www.uscis.gov/files/pressrelease/OnlineCoA.pdf.
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5. New Naturalization Test Pilot Emphasizes Civics, History
On January 22, 2007, U.S. Citizenship and Immigration Services (USCIS) released details about its pilot naturalization exam. The new exam is intended, USCIS said, to “encourage civic learning and patriotism among prospective citizens.” USCIS noted that studies have shown nationwide inconsistencies in the way the test was administered and there was no assessment of whether applicants had a meaningful understanding of U.S. history and government. The new test will emphasize the fundamental concepts of American democracy and the rights and responsibilities of citizenship.
The reading and writing portions of the pilot naturalization exam are similar to those in the current test, except the new exam contains more civics-based vocabulary. Applicants will still have up to three chances to read and write a sentence correctly in English. In the writing section of the test, the testing officer will dictate a sentence and ask the applicant to write everything the officer reads. During the reading portion of the test, the testing officer will ask the applicant to read each word out loud in that sentence. The proposed format for the new civics exam will still require applicants to answer correctly six out of 10 questions chosen from a master list of 100 civics questions and answers. The difference is that the new questions will focus on civics and history topics rather than on the general range of topics on the current test.
The pilot testing program will begin in 10 cities beginning in February 2007 and will last two to three months. The 10 cities are Albany, NY; Boston, MA; Charleston, SC; Denver, CO; El Paso, TX; Kansas City, MO; Miami, FL; San Antonio, TX; Tucson, AZ; and Yakima, WA. USCIS will administer about 6,000 tests under the pilot, and will use 142 U.S. history and government questions and approximately 36 reading and 36 writing items. Topic areas include principles of American democracy, system of government, rule of law, rights and responsibilities, American history, and geography. Citizenship applicants in the 10 pilot areas who are scheduled for their naturalization tests during the pilot will receive advance copies of the civics questions and the reading and writing vocabulary lists for self-study. Applicants may decline participation in the pilot.
USCIS has posted the two vocabulary lists and other study materials at http://www.uscis.gov/natzpilot. The announcement, which includes a fact sheet, is posted at http://www.uscis.gov/files/pressrelease/natztestfs.pdf.
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6. Foreign Entrepreneurs Start 25 Percent of New U.S. Technology Companies, Study Estimates
A new study by Duke University researchers has estimated that one out of every four U.S. technology start-ups over the past 10 years has at least one senior executive who was born outside the U.S. The study’s lead researcher, Vivek Wadhwa, who was born in India and founded two technology companies, noted, “It’s one thing if your gardener gets deported. But if these entrepreneurs leave, we’re really denting our intellectual property creation.” The most likely niches that immigrant entrepreneurs entered were semiconductors, communications, and software; least likely was defense. Mr. Wadhwa called the new study “the most comprehensive study to date on the contribution of skilled U.S. immigrants.”
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7. Small Businesses Agree That Undocumented Immigration is a Problem, But Are Divided on Solution; Lawsuits Filed
In a National Federation of Independent Business (NFIB) survey, 90 percent of small business owners agreed that undocumented immigration is a problem. “Like most Americans, small-business owners are troubled by the problem of illegal immigration,” said Dan Danner, NFIB’s executive vice president of NFIB. “As Congress debates this issue, it is important that they take into account how any legislation will affect small-business owners and the economy. A thoughtful and deliberate process is the best path for lawmakers as they consider this contentious issue.”
The survey respondents have a mixed view on “amnesty” proposals, however. NFIB reported that 63 percent oppose amnesty for undocumented individuals if they only need to prove that they have been living in the U.S. for at least three years, but members are split on amnesty if the individuals are employed and not dependent on government services (45 percent in favor and 45 percent opposing). When asked who should be considered first priority for legal immigration, 43 percent said those who have job skills or qualifications that are in short supply, followed by 23 percent choosing those with family ties, and 20 percent preferring a “first-come, first-serve” system. Fifty-six percent of NFIB members support admitting foreign workers to fill skilled jobs where shortages exist, and 62 percent favor allowing people to enter the U.S., work for a specified period, and return home.
Increasing penalties for employers who knowingly hire undocumented workers was supported by 78 percent of the survey respondents. Small-business owners consider verification of identification documents used by an employee to prove eligibility to work a moderate burden that could be reduced by a single location verification/authorization system that would certify document authenticity, NFIB reported.
The survey announcement is posted at http://www.nfib.com/object/immigrationsurvey.html.
Meanwhile, some entrepreneurs and workers are not waiting for action in Congress. A variety of lawsuits have been filed to compel employers to meet their obligations under the law. For example, when Munger Bros., a California blueberry farm, decided to use a rival labor supplier instead of Global Horizons, Global filed a suit claiming that Munger Bros. hired the rival supplier (J&A Contracting) because it provides cheaper, illegal workers. Specifically, Global alleges that Munger Bros. and J&A “engaged in an illegal trust to restrict trade or commerce and conspired to restrain trade or commerce and lessen competition by Defendants’ use of illegal immigrant labor and violation of California wage and hour laws to those workers, the effect of which restrains and directly affects Plaintiff’s ability to compete in the marketplace.” The full text of the complaint is posted at http://www.fearnotlaw.com/gallery/download.php?id=34.
And in a suit against Zirkle Fruit in Washington, a $1.3 million settlement was recently reached. That suit, based on anti-racketeering laws, was filed by Zirkle’s employees, who claimed that their employer depressed wages by hiring undocumented workers. A similar suit has been filed by workers against Mohawk Industries in Georgia.
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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:
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