Business Immigration Monthly - August 2010

Date: 8/12/2010
 Business Immigration Monthly - August 2010

Congress Passes Immigration Bill – H-1B Filing Fees Will Be Increased on Certain Petitions

Congress recently passed the Emergency Border Security Supplemental Appropriations Act of 2010. The bill appropriates more than $600 million to Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and the U.S. Department of Justice to increase the number of CBP personnel on the southwest border, to provide additional technology for enforcement activities on the southwest border, to hire additional ICE officers to reduce the amount of violence on the southwest border, to increase the Department of Justice's (DOJs) personnel involved with the increased law enforcement activities related to southwest border enforcement, and to allocate additional funds for the courts to meet the increased work load requirements resulting from increased immigration and other law enforcement activities. This emergency bill appears to be in response to the criticism that the federal government has received regarding its immigration enforcement policies on the southern border.

In order to fund the $600 million allocated by the emergency bill, Congress has increased the H-1B Fraud Fee for certain H-1B petitions and L petitions. The current H-1B and L Fraud Fee is $500. The bill increases the L-1 Fraud Fee to $2,750 for employers that employ 50 or more employees in the United States and if more than 50% of their employees are H-1B or L-1 nonimmigrants. Additionally, the H-1B Fraud Fee would be increased to $2,500 for employers that employ 50 or more employees in the United States if more than 50% of these employees are H-1B or L nonimmigrants. The new fees become effective immediately upon enactment and will not expire until September 30, 2014. The H-1B Fraud Fee is in addition to the H-1B User Fee. The H-1B or L Fraud Fees are only paid once for the initial admission of the employee. However, if the employee transfers to a new employer, the new employer would also be responsible for paying a new Fraud Fee.

Additional information about how the U.S. Citizenship and Immigration Services (USCIS) and U.S. Department of State (DOS) will implement the new H-1B or L Fraud Fee will be contained in our firm's future Immigration Updates when it becomes available.

NSC Processing Times Increase for EAD and Advance Parole Applications

The USCIS Nebraska Service Center (NSC) has recently encountered a significant increase in its processing times for Employment Authorization Document (EAD) and Advance Parole Applications. In the past, the NSC has attempted to adjudicate EAD and Advance Parole applications within 60-75 days. However, the NSC is currently taking approximately 90 days to review EAD and Advance Parole applications. Additionally, after the EAD application is approved, it may take between and two weeks for the applicant to receive the new EAD card from the USCIS card processing facility. The USCIS seldom expedites the processing of EAD applications. The USCIS does not currently allow for the automatic extension of EAD documents during the pendency of the EAD application. The NSC has encouraged applicants to file their EAD and Advance Parole applications 120 days prior to expiration in order to ensure that they receive the new documents prior to expiration of their current documents. The NSC did caution that applicants may not submit their EAD and Advance Parole renewal applications more than 120 days prior to the expiration of their current documents.

USCIS Continues to Expand its Direct Filing Service

The USCIS recently implemented the expansion of its direct filing service to require additional forms be filed through the USCIS' lockbox facilities. In May 2010, the USCIS announced that it would be expanding its direct filing service. However, the USCIS did not implement this expansion until the first week of August. With this expansion, certain Forms I-817, Forms I-526, Forms I-129F, Forms I-539, Forms I-130 and Forms I-140 will now be filed with the lockbox facilities. However, filing requirements vary by the Form type and not all of these forms will be filed with the lockbox facilities. Therefore, employers and applicants must check the current filing information on the USCIS website prior to filing to confirm the correct location where a particular application must be filed.

H-1B Quota for Fiscal Year 2011 Remains Available

The USCIS recently provided an update about the fiscal year 2011 (October 1, 2010 through September 30, 2011) H-1B Quota. The regular H-1B quota for fiscal year 2011 is 65,000. An additional 20,000 numbers are available in fiscal year 2011 to individuals who have earned U.S. Master's or higher degrees. As of August 6, 2010, the USCIS indicated that it has received 28,500 petitions filed under the regular H-1B quota. It has also received 11,900 petitions filed under the U.S. Master's or higher degree exemption. The USCIS appears to be receiving approximately 700 petitions each week filed against the regular H-1B quota and approximately 300 petitions each week filed against the U.S. Master's or higher degree exemption. The USCIS will continue to accept petitions filed towards the H-1B regular cap and U.S. Master's or higher degree exemption until the quota is met. During fiscal year 2010, the U.S. Master's degree or higher degree exemption was met first in September 2009. However, the regular H-1B quota was not exhausted for fiscal year 2010 until December 23, 2009.

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

DOS Releases August 2010 Visa Bulletin – Significant Movement in Most Employment-Based Immigrant Visa Categories

The U.S. Department of State (DOS) recently released its August 2010 Visa Bulletin. Similar to the last two Visa Bulletins, the August 2010 Visa Bulletin contains significant advancements in most employment-based immigrant visa categories. The August 2010 Visa Bulletin advances the EB-2 Indian national category from October 2005 to March 2006 and the EB-3 Indian national preference category from November 2001 to January 2002. It also advances the EB-3 World category by approximately 10 months to June 2004. It is assumed that the DOS will also significantly advance most of the employment-based immigrant visa categories next month in order to ensure that all of the available immigrant visa numbers for fiscal year 2010 are used. However, if the DOS has advanced the priority dates too rapidly and all of the available immigrant visa numbers are used, the DOS will have to make the categories Unavailable at least until the beginning of the next fiscal year on October 1, 2010.

The following is a comparison of the movement of the employment based immigrant visa categories since the beginning of the current retrogression in October 2005:

Oct 2005

Dec 2007

Jun 2008

May 2010

June 2010

July 2010

Aug 2010

EB-3 World

03/01/01

09/01/02

03/01/06

04/22/03

06/22/03

08/15/03

06/01/04

EB-2 China

05/01/00

01/01/03

04/01/04

09/22/05

11/22/05

11/22/05

03/01/06

EB-3 China

05/01/00

10/15/01

03/22/03

04/22/03

06/22/03

08/15/03

09/22/03

EB-2 India

11/01/99

01/01/02

04/01/04

02/01/05

02/01/05

10/01/05

03/01/06

EB-3 India

01/01/98

05/01/01

11/01/01

10/01/01

10/22/01

11/22/01

01/01/02

EB-3 Other Workers

10/01/00

10/01/01

01/01/03

06/01/01

06/01/01

06/01/01

05/15/02

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

FSBPT Abruptly Suspends NPTE for Graduates of Physcal Therapy Schools in Egypt, India, Pakistan, and the Philippines

The Federation of State Boards of Physical Therapy (FSBPT) abruptly suspended the National Physical Therapy Examination (NPTE) testing for all graduates of physical therapy schools in Egpyt, India, Pakistan and the Philippines. On July 12, 2010, the FSBPT announced that it ceased accepting new registrations for both the Physical Therapy and the Physical Therapy Assistant versions of the NPTE as of 11:59 p.m. on Sunday, July 11, 2010 for all graduates of Physical Therapy programs located in Egpyt, India, Pakistan and the Philippines. The FSBPT indicated that testing will not resume until it develops a new test called the NPTE-YRLY. The FSBPT stated that it expects to launch the new examination in Fall 2011. Additionally, FSBPT indicated that the new examination would most likely only be offered once a year at select test sites. The FSBPT stated that the suspension was a necessary security measure in response to "compelling evidence" gathered by the FSBPT reflecting systematic and methodical sharing and distribution of recalled questions by a significant number of graduates of programs in the affected country.

For candidates who registered prior to July 12, 2010, FSBPT is sending letters to them indicating their options and providing a deadline of July 30, 2010 to respond with their selection. Options include withdrawing registrations for a full refund and waiting to take the NPTE-YRLY or proceeding with the current NPTE but then having the scores held and evaluated for statistical analysis and possible invalidation if anonmlies are detected. Applications for candidates who have registered but have not paid or received an Authorization To Test (ATT) letter are being cancelled. Individuals should consult with their potential employer and its counsel (if any) prior to making any decision regarding the available options.

Since the announcement by FSBPT on July 12, 2010, some of Masuda Funai's clients have contacted FSBPT for clarification and further information. FSBPT stated that they have "overwhelming" data that demonstrates a greater need to control their intellectual property. FSBPT stated that this data is not for public distribution but at a future date FSBPT may publish it in a research journal. FSBPT stated that when the new examination is released, the number of available seats to take the examinations at the testing centers should not be an issue. FSBPT did state however that if an individual fails the new examination, he/she may have to wait another 12 months to retake the examination. FSBPT stated that in the future it may offer the new examination two times a year but stated that it will never offer the examination more than two times a year. FSBPT stated that the new examination will only be used once and then not used again. FSBPT indicated that the new examination will have the same degree of difficulty as the current examination and will not make it any easier or harder. FSBPT stated that additional countries may be added to the list of affected countries in the future as FSBPT continues to review the security of the current NPTE.

Additional information about the suspension of the NPTE will be contained in our firm's future Immigration Updates when it becomes available.

DHS Finalizes Regulation Allowing Employers to Electronically Sign and Store Forms I-9

The U.S. Department of Homeland Security (DHS) recently released a final regulation providing greater flexibility for employers to electronically sign and store Forms I-9. Employers are required to complete Form I-9 Employment Eligibility Verification for each new employee. The Form I-9 is not filed with DHS. Instead, it is retained by employers who are required to make them available for inspection upon request by ICE or other authorized federal officials. Employers are required to retain a Form I-9 in their own files for three years after the date of hire of the employee or one year after the date of employment is terminated, whichever is later. Failure to property complete and retain each Form I-9 may subject the employer to civil monetary penalties.

In June 2006, DHS published an interim final rule permitting electronic signature and storage of Forms I-9. The recently released final rule makes the following modifications to the interim final rule:

1.Employers must complete a Form I-9 within three business (not calendar) days;

2.Employers may use paper, electronic systems or a combination of paper and electronic systems;

3.Employers may change electronic storage systems as long as the systems meet the performance requirements of the regulation;

4.Employers are only required to retain an audit trail of when the Form I-9 is created, completed, updated, modified, altered or corrected; and 5.Employers may provide a confirmation of the Form I-9 transaction but are not required to do so unless the employee requests a copy in the form of a receipt.

For more information about this or any other immigration law topic, please contact Bob White, at 847.734.8811 or via email at rwhite@masudafunai.com.