Business Immigration Monthly(2) - January 2013

Date: 1/4/2013
 Business Immigration Monthly - January 2013

Fiscal Year 2014 H-1B Quota Opens in Approximately Three Months – Employers Should Now Be Preparing Their H-1B Quota Petitions

The fiscal year 2014 H-1B quota opens on April 1, 2013 for petitions with an H-1B employment start date of at least October 1, 2013. Similar to previous years, the H-1B quota for fiscal year 2014 will be limited to 65,000. An additional 20,000 numbers will be available for individuals who have earned a U.S. Master's or higher degree. Due to the improving economy and the fact that the quota has been met more quickly in the past few years, our firm is anticipating that this year's H-1B quota will be met during the initial filing period from April 1, 2013 to April 7, 2013. Additionally, if the U.S. Citizenship & Immigration Services (USCIS) receives petitions in excess of the available numbers, the USCIS may have to conduct a random selection process to determine which petitions will be accepted under the H-1B quota. The last time that the USCIS had to run a random selection process in the H-1B quota was in fiscal year 2009 when the USCIS received more than 165,000 petitions. If employers fail to file their H-1B quota petitions during the initial filing period of April 1, 2013 through April 7, 2013 and the H-1B quota is met during this initial filing period, the earliest date upon which employers will be able to file H-1B quota petitions will be April 1, 2014 for an H-1B employment start date of October 1, 2014. Because our firm is anticipating that the H-1B quota will be met during the initial filing period, we are encouraging employers to begin the H-1B process at this time so that the employers are ready to file their H-1B quota petitions when the quota opens on April 1, 2013.

I-9 Audits of Businesses Increasing

The U.S. Immigrations Customs Enforcement (ICE) recently announced that it commenced the highest number of Form I-9 audits during fiscal year 2012 which ended on September 30, 2012. ICE indicated that Form I-9 audits of employers increased from 250 in fiscal year 2007 to more than 3,000 in fiscal year 2012. Additionally, ICE indicated that the total amount of fines assessed has grown to nearly $13 million in fiscal year 2012 from $1 million in fiscal year 2009. Furthermore, the number of company managers arrested as part of criminal investigations resulting from Form I-9 audits increased to 238. A review of the Form I-9 audits by the Associated Press indicated that during fiscal year 2011, ICE fined industries across the country reliant on manual labor and that have historically hired immigrants. Some companies that have had Form I-9 audits include an aviation branch of corporate giant GE, franchises of Subway and a subsidiary of Heinz. According to the Associated Press, in fiscal year 2011, the lowest fine was $90 to a Massachusetts fishing company and the highest fine was approximately $400,000 assessed against a staffing company in Minneapolis.

It is assumed that Form I-9 audits will only increase in fiscal year 2013 as the debate over comprehensive immigration reform increases because the Obama Administration has indicated that any type of immigration reform should contain penalties for companies that hire individuals without the proper employment authorization. Therefore, employers may want to proactively conduct self-audits of their Form I-9s to ensure that they are fully complying with the complex employment verification requirements.

USCIS Expands E-Verify RIDE Program to Florida

The USCIS recently announced that it has expanded its E-Verify RIDE program to Florida. According to the USCIS, RIDE improves the accuracy and strengthens the integrity of the E-Verify system by enabling it to compare driver's license data against state records when determining employees' eligibility to legally work in the United States. The USCIS first launched RIDE in June 2011 in the State of Mississippi. The USCIS has now expanded the E-Verify program to validate the authenticity of driver's licenses presented by employees as part of the Form I-9 process in Florida.

Additional information about the continued expansion of the RIDE program to additional states will be contained in our firm's future Immigration Updates when it becomes available.

U.S. Consulates in India Continue to Routinely Deny Visas to H-1B Applicants

The U.S. Consulates in India continue to routinely deny H-1B visas to H-1B applicants who are employed (or who have offers of employment) from consulting companies in the United States. The Consulates in India are aggressively reviewing these H-1B visa applications to ensure that the H-1B employment will be controlled by the H-1B employer and not by the end user company. If the H-1B applicant is unable to provide information and documentation which satisfies the consular official about the control issue during the nonimmigrant visa interview, some consular officials will issue a 221(g) letter requesting additional information and documentation from the H-1B employer. After the applicant submits the additional requested documents, the Consulate will either issue the visa or return the application to the USCIS recommending revocation of the H-1B petition. The USCIS will then take many months to process the revocation request and either reaffirm the denial or issue a Notice of Intent to Revoke (NOIR). The Consulates in India began to more aggressively review H-1B applications filed by consulting companies in the fall of 2011. This level of increased scrutiny has continued and may cause significant delay for the applicants to return to the United States to continue their H-1b employment.

Due to the uncertainty in the H-1B visa processing through the Consulates in India, some applicants have instead decided to apply for H-1B visas through the U.S. Consulates in Canada. However, many of the Consulates in Canada have become as aggressive (or even more aggressive) than the U.S. Consulates in India. If an applicant applies for a visa in Canada as a third country national, is not issued the visa by the Consulate in Canada and does not have a valid visa in his/her passport, he/she will be unable to reenter the United States until he/she receives a valid visa. Therefore, some applicants who are not issued visas by the Consulates in Canada then have to return to their countries of last residence directly from Canada in order to apply for H-1B visas again through the U.S. Consulates in their countries of last residence.

Additional information about the increased scrutiny of the H-1B visa application process will be contained in our firm's future Immigration Updates when it becomes available.

USCIS to Collect New Immigrant Fee

Effective February 1, 2013, the USCIS will begin collecting a new USCIS Immigrant Fee of $165 from immigrants. The new fee applies only to those immigrants who receive an immigrant visa at a foreign consulate abroad, and who enter the United States after issuance of their immigrant visas. Immigrant visa holders will pay online through the USCIS website after they receive their visa package from the Consulate and before they depart for the United States. The Consulate will provide applicants with specific information on how to submit payment when they attend their consular interview. The new fee is in addition to existing immigrant visa fees charged by the U.S. Department of State (DOS) for an immigrant visa application.

USCIS hopes to recover the costs of processing immigrant visas in the United States after immigrant visa holders receive their visa packages from the Consulate. This includes staff time to handle, file and maintain the immigrant visa package, and the cost of producing and delivering the permanent resident card.

Proposal to Allow H-4 Dependent Spouses to Apply for Employment Authorization

The U.S. Department of Homeland Security (DHS) has proposed to amend its regulations to make available work authorization to select H-4 dependent spouses. The proposal would give employment authorization to H-4 dependents of principal H-1B nonimmigrants who have begun the process of seeking permanent residency through employment and have extended their authorized period of stay in the U.S. under section 104(c) or 106(a) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). The review process of the proposed amendment could take 60 to 90 days to complete, and it may then take additional time for the USDHS to issue proposed regulations. It may be months before a final regulation is passed allowing the USCIS to issue employment authorization to qualified H-4 dependents.

DOS Releases January 2013 Visa Bulletin

The DOS recently released its January 2013 Visa Bulletin. Visa numbers in the EB-3 World, EB-2 China, EB-3 China and EB-3 Other Workers categories advanced a few months. Otherwise, similar to other recent Visa Bulletins, the January 2013 Visa Bulletin contains no movement in the EB-2 India category and very little advancement in the EB-3 India category.

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

Dec 2007

Jun 2008

Aug 2009

Mar 2010

Sept 2012

Dec 2012

Jan 2013

EB-3 World

09/01/02

03/01/06

U

12/15/02

10/01/06

12/22/06

02/01/07

EB-2 China

01/01/03

04/01/04

10/01/03

07/08/05

U

10/22/07

12/08/07

EB-3 China

10/15/01

03/22/03

U

12/15/02

12/15/05

07/01/06

09/22/06

EB-2 India

01/01/02

04/01/04

10/01/03

02/01/05

U

09/01/04

09/01/04

EB-3 India

05/01/01

11/01/01

U

07/01/01

10/08/02

11/01/02

11/08/02

EB-3 Other Workers

10/01/01

01/01/03

U

06/01/01

10/01/06

12/22/06

02/01/07

Additional information about priority date movement will be contained in our firm's future Immigration Updates when it becomes available.

IRS Announces Procedures to Strengthen ITIN System

The Internal Revenue Service (IRS) announced procedures to strengthen its Individual Taxpayer Identification Number (ITIN) program requirements. ITINs are only issued to individuals who are not eligible to obtain a Social Security Number. ITINs allow the IRS to collect taxes from foreign nationals, resident and nonresident aliens and others who have filing or payment obligations. The new procedures are intended to protect the ITIN application process. Some of the key changes are highlighted below:

  • New ITINs will expire after five years. This is to ensure that ITINs are being used for legitimate tax purposes. Taxpayers who still need an ITIN will be able to reapply at the end of the expiration period.
  • The IRS will explore options for deactivating or refreshing the information relating to previously issued ITINs.
  • Original documents or certified copies will still be required for most applicants. However, there will be more options and flexibility for people applying for an ITIN, including having a Certifying Acceptance Agents (CAA) review original documents or certified copies.
  • In order to verify the identity of children under six, one of the documents can include original medical records. For school-age children, the documentation can include original, current year school records such as a report card.

The new procedures will become effective on January 1, 2013 in anticipation for the 2013 tax-filing season.

MFEM NEWS

MFEM to Host Annual Complimentary Immigration Law Update Seminar

MFEM will be hosting its annual complimentary immigration law update seminar on Wednesday, February 6, 2013 at the Doubletree Hotel Arlington Heights in Arlington Heights, Illinois. Attorneys from MFEMs Immigration Group will be discussing immigration issues and topics which are currently affecting companies around the United States. Some of the topics which will be discussed include: How soon the H-1B quota will be met this year, alternatives to the H-1B quota, the increase in PERM audits and options in the employment-based "Green Card" process. The seminar will also provide a Global Update on Worldwide Hot Spots. Finally, an attorney from the firm's Employment and Labor Group will be discussing U.S. Department of Labor's (DOL) Wage and Hour Overtime issues. Additional information about this year's complimentary seminar is available on the firm's website at www.masudafunai.com. Because of the popularity of the seminar each year and due to the limited seating at the seminar, we strongly recommend that individuals who would like to attend the seminar register for the seminar as soon as possible. Registration is currently available online on the firm's website at www.masudafunai.com/showevent.aspx?show=6880.

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.

Weekly Immigration Updates are provided under the Legal Update link of the Immigration Group Section of our firm's website at www.masudafunai.com.