Business Immigration Monthly - September 2010

Date: 9/3/2010
 Business Immigration Monthly - September 2010

DHS to Charge for Use of Visa Waiver Program

Beginning September 8, 2010, Visa Waiver applicants will be required to pay a new $14 operational and travel promotion fee when applying for Electronic System for Travel Authorization (ESTA). All Visa Waiver applicants are required to have ESTA authorization prior to traveling to the United States through the Visa Waiver program. Part of this new fee will be used to market the United States as a travel destination for international visitors. ESTA registrations on or after September 8, 2010 will be subject to the new fee. The fee will be paid through the government's pay.gov system. The approved ESTA registration will be valid for a period of two years and for multiple visits to the United States, unless the Visa Waiver applicant's passport expires sooner. Visa Waiver applicants with existing ESTA authorization will not need to re-register and pay the fee until their current registration expires.

H-1B Quota for Fiscal Year 2011 Remains Available



The U.S. Citizenship and Immigration Services (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 27, 2010, the USCIS indicated that it has received 34,900 petitions filed under the regular H-1B quota. It has also received 13,000 petitions filed under the U.S. Master's or higher degree exemption. The USCIS appears to be receiving approximately 1,000 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 the September 2010 Visa Bulletin – Significant Movement Continues in Most of the Employment-Based Immigrant Visa Categories

The U.S. Department of State (DOS) recently released its September 2010 Visa Bulletin. Similar to the Visa Bulletins for the past few months, the September 2010 Visa Bulletin continues to significantly advance most of the employment-based immigrant visa categories to ensure that all of the available employment-based immigrant visa numbers are used prior to the end of the government's fiscal year on September 30, 2010. When the government's next fiscal year begins on October 1, 2010, it is assumed that the categories will not advance as quickly (if any), similar to what occurred during this fiscal year.

In the September 2010 Visa Bulletin, the most significant advancement was in the EB-3 World category which advanced from June 2004 to December 2004. This category has advanced by more than one year in the past few months. Additionally, the EB-2 category for Indian and Chinese nationals advanced by approximately two months. Although the EB-3 category for Mexican nationals remains Unavailable, this category will become available again on October 1, 2010 when the government's next fiscal year begins.

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

June 2010

July 2010

Aug 2010

Sep 2010

EB-3 World

03/01/01

09/01/02

03/01/06

06/22/03

08/15/03

06/01/04

12/15/04

EB-2 China

05/01/00

01/01/03

04/01/04

11/22/05

11/22/05

03/01/06

05/08/06

EB-3 China

05/01/00

10/15/01

03/22/03

06/22/03

08/15/03

09/22/03

10/22/03

EB-2 India

11/01/99

01/01/02

04/01/04

02/01/05

10/01/05

03/01/06

05/08/06

EB-3 India

01/01/98

05/01/01

11/01/01

10/22/01

11/22/01

01/01/02

01/01/02

EB-3 Other Workers

10/01/00

10/01/01

01/01/03

06/01/01

06/01/01

05/15/02

03/22/03

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

DOL Assesses $1 Million in Back Wages and Interest Against H-1B Employer

The U.S. Department of Labor (DOL) recently announced that it reached an agreement with a computer consulting company in Georgia where the company will pay approximately $1 million in back wages and interest


to 135 H-1B workers as part of a DOL H-1B investigation. The DOL stated that it had determined that the company violated the H-1B program's regulations because it determined that some employees were not paid any wages at the beginning of their employment, or paid on a part-time basis despite being hired under full-time employment, and were paid less than the applicable prevailing wage in the location where they were working.

DOS Fraud Prevention Unit Begins Audits of H-1B Filings

The DOS recently indicated that its Fraud Prevention Unit (FPU) has begun to audit filings in the H-1B program. The DOS has indicated that it has assigned contractors to randomly review H-1B filings forwarded to it by the USCIS for entry into its Program Information Management System (PIMS). Counselor officials are not allowed to issue H-1B visas unless they are able to verify the information being provided by H-1B applicants through the PIMS system. The DOS indicated that most of the audits by the FPU are completed telephonically. The FPU may contact employers and/or the employers' client (if applicable) to verify information contained in the H-1B filing. Once the review is completed by the FPU, the FPUs findings are normally uploaded into the PIMS system and available to consular officials within two days. Consular officials are then instructed to review the report, question the H-1B applicant regarding any discrepancies, and request that the DOS' Kentucky Consular Center (KCC) correct any information if a finding was in error. If the discrepancies highlighted by the FPU are not in error, the consular official will provide the KCC with additional information discovered during the nonimmigrant visa interview. It does not appear that the FPU is coordinating its audits with the USCIS' Fraud Detection and National Security (FDNS) unit. For more information about the FDNS H-1B Audits is contained in our firm's Immigration Alert at http://www.masudafunai.com/showarticle.aspx?show=5393. Therefore, employers could potentially be audited two times in order to verify information in their H-1B filing.

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

USCIS Reminds B-1/B-2 Visitors that They Cannot Enroll in Classes Prior to their F-1 Change of Status Application Being Approved

The USCIS recently reminded B-1/B-2 visitors who want to enroll in school that they must first file for and be approved for a change of status to F-1 status prior to enrolling in classes. The USCIS stated that enrolling in classes while in B-1/B-2 status will result in a status violation. Although the USCIS stated that there were no exceptions to this regulation, B-1/B-2 visitors are allowed to attend avocational or recreational classes while maintaining their B-1/B-2 status. The USCIS stated that if B-1/B-2 visitors enroll in classes before a change of status application is approved, the visitor will be ineligible for a change of nonimmigrant status from B to F classification and will have to apply for an F-1 visa at a consulate abroad. The USCIS stated that encourages all prospective students to work closely with their Designated School Official (DSO) to coordinate the timing of applying for a change of status from B to F classification and when to enroll in classes.

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 (as of August 14, 2010) 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 USCIS and 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.


MFEM NEWS

Masuda Funai Again Has the Most Number of Leading Immigration Lawyers as Determined by the Leading Lawyers Network

The Leading Lawyers Network recently released its 2010 edition of the Leading Lawyers in various legal areas. The Leading Lawyers Network again recognized four Masuda Funai attorneys in the Masuda Funai Immigration Group for their achievement in the employment-based immigration law area. The Leading Lawyers Network recognized Ms. Kathleen Gaber, Chair of the Masuda Funai Immigration Group, Mr. Bryan Funai, Mr. Dayne Kono and Mr. Bob White as leading immigration attorneys. For the third year, Masuda Funai had the most number of leading immigration attorneys in the state of Illinois according to The Leading Lawyers Network.