Business Immigration Monthly - June 2010

Date: 5/28/2010
 Business Immigration Monthly - June 2010

DOS Increases Nonimmigrant Visa Application Fees

The U.S. Department of State (DOS) recently published an interim rule increasing all nonimmigrant visa application processing fees (also called the Machine-Readable Visa (MRV) fee) and the Border Crossing Card (BCC) fees. The fees will go into effect on June 4, 2010, approximately two weeks after the DOS published its interim final rule. The DOS stated that it is increasing fees to ensure sufficient resources to cover the rising costs of processing nonimmigrant visas and BCCs. It stated that for a number of reasons, the current fee of $131 established on January 1, 2008, no longer covers the actual costs of processing nonimmigrant visas.

The amount of the increase will depend on the nonimmigrant visa classification. All applicants for nonimmigrant visas that are not petition-based, including B-1/B-2 visitor visas and all student and exchange visitor (F, M and J) visas will pay the fee of $140. Applicants for petition-based (H, L, O, P, Q and R) visas will pay the fee of $150. Applicants for K Fiancé visas will pay the fee of $350. Applicants for E visas will pay a fee of $390 (which represents an approximately 300% increase over the current fee).

The DOS stated that only nonimmigrant visa and BCC fees will change on June 4. The change applies to all nonimmigrant visa interviews held on or after June 4, regardless of when the interviews were scheduled. The DOS also stated it is currently reviewing possible fee increases related to U.S. passports, immigrant visas and other consular services.

USCIS Provides Updated Information about the H-1B Quota (Updated May 21, 2010)

As indicated in our firm's Immigration Updated dated April 5, 2010, the U.S. Citizenship and Immigration Services (USCIS) previously announced that the H-1B quota for Fiscal Year 2011 (October 1, 2010 through September 30, 2011) was not met in the initial filing period which closed on April 7, 2010. The USCIS indicated that it received only approximately 19,100 H-1B quota petitions during the initial filing period. (Of these 19,100 petitions, approximately 13,500 were filed under the regular H-1B quota and approximately 5,600 requested the U.S. Master's or higher degree exemption.) Therefore, the USCIS indicated that it would continue to accept H-1B quota petitions until the H-1B quota for fiscal year 2011 has been met. Under the fiscal year 2011 H-1B quota, the USCIS will accept 65,000 regular H-1B quota petitions and 20,000 H-1B quota petitions requesting the U.S. Master's or higher degree exemption.

As of May 21, 2010, the USCIS indicated that it has received approximately 19,600 petitions filed against the regular H-1B cap of 65,000. The USCIS also indicated that it has received approximately 8,200 petitions requesting the U.S. Master's or higher degree exemption from the H-1B quota.

Additional information about the Fiscal Year 2011 H-1B quota will be contained in our firm's future Immigration Updates when it becomes available.

DOS Releases June 2010 Visa Bulletin – Advancements Continue in Most Employment-Based Immigrant Visa Categories

The DOS recently released its June 2010 Visa Bulletin. Similar to the Visa Bulletins for the past few months, the June 2010 Visa Bulletin continues to advance most of the employment-based immigrant visa categories. The most significant advances are in the EB-3 World category and the EB-2 Chinese national category, both of which advance by approximately two months to April 22, 2003 and September 21, 2005, respectively. The EB-2 Indian national category again does not advance due to increasing demand for immigrant visas in this category. However, the EB-3 Indian national category advances by approximately three weeks to October 22, 2001.

The following is a comparison of the movement (or lack of movement) in the employment-based immigrant visa categories since the beginning of retrogression in October 2005:

Oct 2005

Dec 2007

Jun 2008

Mar 2010

Apr 2010

May 2010

June 2010

EB-3 World

03/01/01

09/01/02

03/01/06

12/15/02

02/01/03

04/22/03

06/22/03

EB-2 China

05/01/00

01/01/03

04/01/04

07/08/05

08/22/05

09/22/05

11/22/05

EB-3 China

05/01/00

10/15/01

03/22/03

12/15/02

02/01/03

04/22/03

06/22/03

EB-2 India

11/01/99

01/01/02

04/01/04

02/01/05

02/01/05

02/01/05

02/01/05

EB-3 India

01/01/98

05/01/01

11/01/01

07/01/01

09/08/01

10/01/01

10/22/01

EB-3 Other Workers

10/01/00

10/01/01

01/01/03

06/01/01

06/01/01

06/01/01

06/01/01

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

DHS Announces the Elmination of Forms I-94W for Visa Waiver Applicants The U.S. Department of Homeland Security

(DHS) recently announced that it will be eliminating the Form I-94W Arrival/Departure Form for authorized travelers through the Visa Waiver Program (VWP). DHS indicated that it decided to eliminate the Form I-94W after successfully completing a pilot program with the support of the Government of New Zealand on Air New Zealand flights from Auckland to Los Angeles International Airport over the past seven months.

Travelers through the VWP will still be required to obtain approval to travel through the Electronic System for Travel Authorization (ESTA) before boarding a carrier to travel by air or sea to the United States. ESTA became mandatory on January 12, 2009 for all nationals of VWP countries traveling to the United States through the VWP program. Because VWP travelers provide basic biographical travel and eligibility information through ESTA prior to departure for the United States, DHS determined that it did not need to have these travelers complete the Form I-94W and provide similar information on this form.

DHS did not state exactly when this program will become effective. Instead it stated that Customs and Border Protection (CBP) will be "rolling out the program over the next several months." However, when the program is rolled out, it will be very important for visa waiver travelers to ensure that their passports are stamped by CBP officials and an expiration date is placed on the entry stamp so that VWP travelers can evidence that they are lawfully present in the United States if ever questioned by law enforcement or other officials.

Additional information about how CBP will be implementing the new admission process for VWP travelers will be contained in our firm's future Immigration Updates when it becomes available.

USCIS Continues to Expand Direct Filing System – Additional Forms Added to Lockbox Filing Procedure

As previously discussed in our firm's Immigration Updates dated March 29, 2010, the USCIS continues to expand the forms which must be filed through the USCIS' new direct filing system at its lockbox facilities.

The USCIS recently indicated that the following forms are scheduled for transition to the direct filing system:

  • Form I-817
  • Form I-526
  • Form I-539, including F-1 reinstatement applications but currently excluding Forms I-539 filed concurrently with the Form I-129
  • Form I-129F (this does not include the Form I-129)
  • Form I-140

The USCIS announced that the transition to the direct filing service for these forms has already commenced. The USCIS did not state the exact date on which the transition started. However, these forms filed with the USCIS Service Centers on or after the unannounced transition date will be automatically transferred from the service center to the lockbox facility for inputting and receipting. Based upon the USCIS previous transition of other forms, these forms which have been filed with the Service Centers which will be automatically transferred to the lockboxes may be significantly delayed (up to six to eight weeks) in receipting and inputting. After the forms are receipted and inputted into the USCIS' systems, they will be returned to the appropriate Service Center for adjudication. The USCIS stated that it will be updating the instructions for these forms to reflect that they are now included in the direct filing system. However, the USCIS did indicate that forms which are not correctly filed with the lockboxes during this transition period will not be rejected by the USCIS. However, when the instructions are revised on the forms sometime in June, the USCIS will reject these forms if they are not filed with the proper lockbox facility.

Additional information about the continued expansion of the USCIS direct filing system will be contained in our firm's future Immigration Updates when it becomes available.

USCIS Redesigns Permanent Resident Card

In its continuing effort to combat immigration fraud, the USCIS has redesigned the Form I-551, Permanent Resident Card (commonly known as the "Green Card"). The USCIS has utilized state-of-the-art technology to design Green Cards which prevent counterfeiting, obstruct tampering, and facilitate the quick and accurate authentication of the card.

In keeping with its name, the Green Card has been colored green and contains enhanced features such as secure optical media to store biometrics for rapid and reliable identification of the card holder; holographic images; laser engraved fingerprints; and high resolution micro-images to make the card nearly impossible to reproduce if stolen. In addition, the Green Card contains Radio Frequency Identification (RFID) capability which will allow the CBP to read the card from a distance and compare it immediately to file data.

The USCIS commenced issuing the newly designed Green Cards on May 11, 2010. Permanent Residents who possess Green Cards which bear expiration dates may continue to use their cards until they expire. Permanent Residents who possess Green Cards with no expiration dates may continue to use their old cards without having to apply for new ones.

DOL Wage and Hour Division Conducts Stakeholder Forum and Discusses Future Immigration Enforcement Initiatives

The U.S. Department of Labor's (DOL) Wage and Hour Division (WHD) recently held a stakeholder forum in Washington, D.C. During the forum, WHD indicated that it hired 250 new investigators in fiscal year 2009 (October 1, 2009 through September 30, 2010) and plans to hire an additional 100 investigators by the end of fiscal year 2010 on September 30, 2010. WHD indicated that it will be using these new resources to more aggressively audit employers who violate laws subject to WHD enforcement.

The WHD had a breakout session on immigration enforcement. Most of this session was focused on WHD's new enforcement authority in the H-2B program. WHD assumed enforcement responsibilities in the H-2B program on October 1, 2009. WHD announced a pilot enforcement initiative scheduled to begin in fiscal year 2011 (October 1, 2010 through September 30, 2011) targeting hotel and motel resorts. WHD stated that the audits of these facilities will be covering all employees of the facility (not just foreign workers) and will investigate employer compliance with all laws administered by WHD. For example, WHD stated that subcontractors performing services on the premises of targeted employers will also be audited, including but not limited to, landscapers, janitorial contractors and food service contractors. WHD stated that it anticipates publishing additional regulations governing the H-2B program around November 2010.

In the breakout session, WHD also indicated that the DOL has unveiled a new tool for employers and other interested parties to understand how to comply with the requirements under the H-1B program. The online advisor is available at http://www.dol.gov/elaws/h1b.htm. WHD stated that the online advisor outlines notification requirements, monetary issues, worksite issues, record keeping, worker protections and enforcement. WHD stated that the new online advisor tool focuses solely on compliance with requirements enforced by WHD and not DOJ or U.S. Citizenship and Immigration Services (USCIS).

DOJ Penalizes College for Employment Discrimination

The U.S. Department of Justice's (DOJ) Office of Special Council for Immigration-Related Unfair Employment Practices (OSC) recently announced that it has settled an employment discrimination law suit filed against John J. College which is a New York City public college in the City University of New York (CUNY) system. The OSC alleged in its lawsuit that John J. College engaged in a pattern or practice of citizenship discrimination by requesting specific documents issued by the DHS from non-U.S. citizens (in particular Employment Authorization Documents (EADs),) but not from U.S. citizens during the Form I-9 Employment Eligibility Verification process. As part of the settlement, the college agreed to pay $23,260 in monetary civil penalties and $10,072.23 in back pay. The college also agreed to train its recruitment personnel on the responsibilities not to discriminate based on citizenship status.

MFEM NEWS

Two MFEM Attorneys Again Honored by the International Who's Who of Corporate Immigration Lawyers

Who's Who Legal recently released it's The International Who's Who of Corporate Immigration Lawyers 2010. The publication identified 403 individuals in 31 jurisdictions that it considers it to be leaders in the corporate immigration field. Mr. Bob White and Mr. Bryan Funai of MFEM's Immigration Group were again selected as leaders in the corporate immigration law field. This is the fourth year in which both Mr. White and Mr. Funai were selected by Who's Who Legal as leading corporate immigration attorneys.