Business Immigration Monthly - March 2010

Date: 2/24/2010
 3-Business_Immigration_Monthly_March_2010.pdf

H-1B Quota for Fiscal Year 2011 Opens on April 1st – Employers Should Be Commencing the Preparation of H-1B Quota Subject Petitions at This Time

The H-1B quota for Fiscal Year 2011 (October 1, 2010 through September 30, 2011) will open on April 1, 2010. Similar to past years, the H-1B quota for Fiscal Year 2011 will be limited to 65,000. Also similar to past years, an additional 20,000 visas will be available to individuals who have earned U.S. Master's or higher degrees. In Fiscal Year 2009 (October 1, 2008 through September 30, 2009), more than 165,000 petitions were filed against the H-1B quota of 65,000 and thus the quota was met during the initial filing period. In Fiscal Year 2010 (October 2, 2009 through September 30, 2010), the H-1B quota was not met until December 21, 2009. It is assumed that the H-1B quota for Fiscal Year 2010 remained open beyond the initial filing period and through December 21, 2009 due to the troubled economy and the more aggressive review of H-1B petitions by the U.S. Citizenship and Immigration Services (USCIS).

Although the H-1B quota for Fiscal Year 2010 was not met during the initial filing period, the H-1B quota for Fiscal Year 2011 may be met during the initial filing period due to the fact that the economy is currently improving and thus employers have begun hiring again. Therefore, we are encouraging employers that will be filing H-1B quota subject petitions to commence the process as soon as possible so that the petitions are ready to be filed during the initial filing period which commences on April 1, 2010. Due to changes in how the U.S. Department of Labor (DOL) processes Labor Condition Applications (LCAs), employers must allow additional time to process H-1B petitions. An H-1B petition may not be filed with the USCIS without an LCA certified by the DOL and the DOL may take 7+ days to process the LCA. If the H-1B quota for Fiscal Year 2011 is met during the initial filing period and employers are unable to file during this period, the earliest date upon which they will be able to file an H-1B quota subject petition will be in the Fiscal Year 2012 H-1B quota which will not open until April 1, 2011.

Additional information about the H-1B quota will be contained in our firm's future Immigration Updates when it becomes available.

USCIS Expands Direct Mail Program to Include Forms I-824, I-102 and I-765 – Further Expansion Expected Over the Next Few Months

The USCIS continues to expand its Direct Mail program. The Direct Mail program is part of an overall effort by the USCIS to transition the intake of applications from the USCIS Service Centers to USCIS Lockbox facilities. The USCIS stated that it believes that centralizing form and fee intake allows the agency to provide the public more efficient and effective initial processing of applications and fees. The USCIS previously indicated that it will be transitioning all filings to the Direct Mail program within the next six months.

Within the past two weeks, the USCIS has transitioned three form types to the Direct Mail program, namely the Form I-824, the Form I-102 and the Form I-765. The change of filing location for the Form I-765 became effective on February 24, 2010. The USCIS has established two additional primary lockbox processing facilities in Pheonix, Arizona and Dallas, Texas. These facilities are in addition to the USCIS National Benefit Center lockbox facility in Chicago, Illinois. Most of newly transitioned applications will be filed with either the Phoenix or Dallas lockbox facilities. However, exceptions do exist to this rule for each form type. Therefore, applicants must thoroughly review the USCIS website prior to filing any application to confirm that they are filing in the correct location. The USCIS is allowing for a 30-day grace period in which applications that are incorrectly filed will not be rejected but instead will be forwarded to the correct location. However, after the 30-day grace period, applications that are not properly filed will be rejected. If an application is rejected because it was not properly filed and the applicant misses a deadline due an incorrect filing (e.g. an F-1 student incorrectly files for a STEM OPT extension and his/her regular OPT expires while waiting for the USCIS to return the rejected application), the applicant may lose the opportunity for an immigration benefit and/or it may affect the applicant's immigration status.

After the USCIS lockbox facility accepts the application and inputs the application information, the application will still be adjudicated by an officer at one of the USCIS Service Centers. The USCIS has also implemented an option to receive e-mail notification from the USCIS lockbox facility after the application is received if the applicant submits new Form G-1145 with the application.

Additional information about the expansion of the USCIS Direct Mail program will be contained in our firm's future Immigration Updates when it becomes available.

ICE Fines Company More than $536,000 for Administrative Violations of the Immigration Laws

Immigration Customs and Enforcement (ICE) conducted a worksite investigation of Koch Foods of Cincinnati after receiving a tip alleging that the company was employing more than 100 undocumented workers at its poultry processing facility in the Cincinnati, Ohio area. After completing an investigation, ICE issued a Notice of Intent to Fine the company. The company then agreed to pay a fine of $536,046. ICE stated that the significant civil penalties levied in the case represented ICE's commitment to holding employers accountable for complying with the immigration laws.

DOS Releases March 2010 Visa Bulletin – Many Employment-Based Categories Advance

The U.S. Department of State (DOS) recently released its March 2010 Visa Bulletin. Since the beginning of this fiscal year on October 1, 2010, there has been very little advancement in all of the employment-based immigrant visa categories. The DOS has previously explained that the lack of advancement was due to significant demand in most of the employment-based immigrant visa categories. However, in the March 2010 Visa Bulletin, the DOS advances most employment-based immigrant visa categories the most that they have advanced this fiscal year. For example, the EB-3 World category advanced by approximately three months to December 15, 2002. The DOS may be more rapidly advancing the employment-based immigrant visa categories in order to ensure that all of the available visa numbers are used prior to the end of the government's fiscal year on September 30, 2010.

The following is a comparison of the employment-based immigrant visa priority dates since the beginning of retrogression in October 2005:

Oct 2005

Dec 2007

Jun 2008

Dec 2009

Jan 2010

Feb 2010

Mar 2010

EB-3 World

03/01/01

09/01/02

03/01/06

06/01/02

08/01/02

09/22/02

12/15/02

EB-2 China

05/01/00

01/01/03

04/01/04

04/01/05

05/01/05

05/22/05

07/08/05

EB-3 China

05/01/00

10/15/01

03/22/03

06/01/02

08/01/02

09/22/02

12/15/02

EB-2 India

11/01/99

01/01/02

04/01/04

01/22/05

01/22/05

01/22/05

02/01/05

EB-3 India

01/01/98

05/01/01

11/01/01

05/01/01

06/22/01

06/22/01

07/01/01

EB-3 Other Workers

10/01/00

10/01/01

01/01/03

06/01/01

05/01/01 (India)

06/01/01

06/01/01

06/01/01

Additional information about movement in the employment-based immigrant visa categories will be contained in our firm's future Immigration Updates when it becomes available.

USCIS Clarifies TARP Restrictions in the H-1B Program for Institutions that Have Repaid the Government Funding

In February 2009, the Employ American Workers Act (EAWA) was enacted. The EAWA makes companies that have received funding under the Trouble Asset Relief Program (TARP) or Section 13 of the Federal Reserve Act H-1B dependent employers. Unlike other H-1B dependent employers, companies that are subject to EAWA are not exempt from the additional H-1B dependent employer requirements by hiring an exempt H-1B nonimmigrant. These additional H-1B dependent requirements include attesting to the U.S. Department of Labor (DOL) regarding the recruitment and non-displacement of U.S. workers when filing a Labor Condition Application (LCA).

Many companies that were subject to EAWA decided not to hire H-1B nonimmigrants due to the EAWA restrictions. However, over the past year, some of these companies have repaid the funding that they received through the TARP program. Although they repaid the funding, there was uncertainty as to whether they were still subject to the EAWA restrictions. The USCIS recently confirmed that if a company that received TARP funding fully repays the funding, the company is not subject to the EAWA restrictions and does not have to indicate on an H-1B petition that it is subject to these restrictions. With this clarification, many companies that have repaid their TARP funding may now resume considering H-1B nonimmigrants for their available positions.

DOS Proposes Fee Increase

The DOS has proposed increasing its fees for the various passport and visa services that it offers. The DOS stated that it is adjusting these fees in light of an independent study that indicated that the current fees are not fully covering the costs to provide requested passport and visa services. Therefore, the DOS stated that it is adjusting the fees to ensure that they reflect the cost of providing the services. The following is a list of the proposed increases for these various services:

Item

Proposed Fee

Current Fee

Passport Book Application Services for Applicants Age 16 or over

(including renewals)

$70

$55

Additional passport visa pages

$82

$0

Passport Book Security Surcharge

$40

$20

File search and verification of U.S. citizenship

$150

$60

Application for Consular Report of Birth Abroad of a Citizen of U.S.

$100

$65

Documentation of formal renunciation of U.S. citizenship

$450

$0

Passport Card Application Services for Applicants age 16 or over

(including renewals)

$30

$20

Making arrangements for a deceased non-U.S. citizen family member

$200

Plus expenses

Consular Time

Plus expenses

Immigrant visa application processing for immediate relative and family preference applications

$330

$355

Immigrant visa application processing for employment-based applications

$720

$355

Immigrant visa application processing for other visa classes

$305

$355

Diversity Visa Lottery Fee

$440

$375

Affidavit of Support Review

$88

$70

Determining Returning Resident Status

$380

$400

Immigrant visa security surcharge

$74

$45

Providing notarial service: First service

$50

$30

Providing notarial service: Each additional service

$50

$30

Certification of a true copy or that no record of an official file can be located: First copy

$50

$30

Certification of a true copy or that no record of an official file can be located: Each additional copy

$50

$30

Provision of documents, certified copies of documents, and other certifications by the Dept of State (domestic)

$50

$30

Authentications

$50

$30

Processing letters Rogatory and Foreign Sovereign Immunities Act (FSIA) judicial assistance cases

$2,275

$735

Scheduling/arranging appointments for depositions

$1,283

$475

Attending or taking depositions, or executing commissions to take testimony

$309/per hour plus expenses

$265/per hour plus expenses

Providing seal and certification of depositions

$415

$70

Consular time charges

$231

$265

This proposal is subject to a 30-day comment period. After the comment period, it is assumed that the DOS will finalize the increase later this year. Additional information about the implementation of the fee increase will be contained in our firm's future Immigration Updates.

CBP Coordinates with ICE and USCIS to Deter Fraud in the H-1B Program

Customs and Border Protection (CBP) has confirmed that it is working with ICE and USCIS to deter ongoing fraud in the H-1B program. In December 2009 and January 2010, CBP at the Newark, New Jersey International Airport denied admission to some H-1B nonimmigrants working for certain companies. The CBP Inspectors at Newark questioned the H-1B nonimmigrants about who they worked for, how they were paid, who paid their salary and their job duties. CBP headquarters confirmed that CBP Newark was working with USCIS' Fraud Detection and National Security (FDNS) Unit and ICE. CBP headquarters indicated that the recent inadmissibility cases range from simple documentary deficiency to visa fraud. CBP headquarters stated that if an H-1B nonimmigrant was determined to be inadmissible, the applicant was either allowed to withdraw his/her application for admission or could be subject to expedited removal based on the totality of the circumstances which are reviewed on a case-by-case basis.

Based upon the increased enforcement in the H-1B program, foreign nationals should review a copy of their H-1B petition and supporting documents prior to reentering the United States. Additionally, the foreign nationals may want to carry evidence to support the assertions made in the H-1B petition filed by their employer, including but not limited to a recent paystub or employment confirmation letter issued by the employer. Additionally, employers should be prepared to receive telephone inquiries from CBP officers at the ports-of-entry to confirm any information contained in the H-1B petition and/or information provided by the H-1B nonimmigrant at the port-of-entry. Information provided to CBP and/or any other governmental agency must be consistent with the information filed with the initial H-1B petition.

Additional information about the increased enforcement in the H-1B program will be contained in our firm's future Immigration Updates when it becomes available.

Court Strikes Down Portions of Oklahoma's Immigration Law Requiring Use of E-Verify System

In 2007, Oklahoma passed a law that: 1) Required employers who entered into contracts with the state or any other public entity in the state to use the E-Verify System to verify the employment eligibility of their new employees; 2) created a cause of action for employment discrimination against all Oklahoma employers that discharged a United States citizen or lawful permanent resident employee while retaining an undocumented worker hired in a comparable position, if the employer reasonably knew that the retained employee was undocumented; and 3) required all Oklahoma businesses to verify the work authorization status of each individual independent contractor who contracted within the state in order to avoid tax penalties.

The Tenth Circuit Court of Appeals recently affirmed a trial court's preliminary injunction barring enforcement of some of these provisions. More specifically, the circuit court invalidated the provisions which sought to create a new cause of election against Oklahoma employers that discharged United States citizens or lawful permanent resident employees while retaining undocumented workers; and required all Oklahoma businesses to obtain documents to verify the work eligibility of their independent contractors or withhold certain taxes from them. However, the court reversed the lower courts decision against the enforcement of the mandate requiring employers who enter into contracts with the state or with any other public entity of the state to use the E-Verify system.

MFEM NEWS

REMINDER: MFEM Immigration Group to Hold Annual Complimentary Immigration Seminar on March 4

The Immigration Group of Masuda Funai will hold its annual complimentary Immigration Update Seminar on Thursday, March 4, 2010 from 8 a.m. through Noon at the Doubletree Hotel in Arlington Heights, Illinois. The topics that will be discussed during this year's Seminar include:

  • Barrier to the World's Best and Brightest - the H-1B Quota
  • E, L Blanket and B-1 - Avoiding the Three "I's" of USCIS - Inaccuracy, Inconsistency and Idiocy
  • The Enigmatic Green Card: Process, Backlogs and Intricacies Explained
  • Worksite Enforcement: Why 2010 Will Be a Record Year for Immigration Audits by DOL, USCIS, ICE and DOS
  • Cost Saving Measures: Employment and Immigration Implications

Although the Seminar is complimentary, registration for the Seminar is required. Because seating is limited, registration will have to be cut-off shortly. Therefore, we would encourage individuals to register for the seminar as soon as possible in order to ensure a seat at the Seminar. Additional information about the Seminar is available in the Events Section of the Masuda Funai website at www.masudafunai.com.

Additionally, on-line registration is available at: http://www.masudafunai.com/RegisterEvent.aspx?event=5600&email=cbuell@masudafunai.com. You may also register for the Seminar by contacting Ms. Carrie Buell at (312) 245-7500.