Business Immigration Monthly for September 2014

Date: 9/4/2014
 Business Immigration Monthly for September 2014

DEPARTMENT OF STATE TO INCREASE VISA FEES

The Department of State (DOS) has announced that it will change fees for certain types of applications. These fee changes will take effect on September 12, 2014. The most important changes include a reduction in the E Treaty Investor/Treaty Trader fees from $270 to $205 and an increase in the fee for a K Fiancé Visa from $240 to $265. Other significant changes include an increase in the processing fees for immigrant visa applications for the immediate relative family-based preference (from $230 to $325) and a decrease in the fee for employment-based preference categories (from $405 to $345). Application fees will be grandfathered for applicants that paid their visa fee before September 12, 2014 and will have their visa interview on or before December 11, 2014. Applicants who paid their fees before September 12, 2014, but with visa appointments after December 12, 2014 will have to pay any increase in fees. There will be no refunds for visa application fees that were paid before September 12, 2014 where the new fee has decreased.

DUPLICATE APPLICATION SUPPORT CENTER (ASC) NOTICES ISSUED

The U.S. Citizenship and Immigration Services (USCIS) announces that duplicate ASC notices were issued by mistake when the agency was transitioning to a new computer system. Notices that had previously been issued under the old system were sent again under the new system. Applicants who have already attended their ASC appointments and for whom the USCIS has successfully captured their biometric information should not have to attend the second interview. However, the USCIS does caution that applicants may want to respond to the duplicate ASC notice by indicating that the applicant has already attended an appointment.

CHINA EB-5 PREFERENCE CATEGORY BECOMES UNAVAILABLE

As of August 23, 2014, the EB-5 employment-based preference category for China has become unavailable. The DOS has indicated that the maximum amount of immigrant visas for this category has been reached for fiscal year 2014. This is the first time that the annual cap of 10,000 has been met in the 24 years that the category was created. All applicants who have an immigrant visa scheduled based on priority dates in August and September have already been allotted an immigrant visa and therefore will be able to continue with the process and be issued an immigrant visa. The USCIS will continue to accept and process adjustment of status applications for EB-5 Chinese applicants and will hold them until October 1, 2014 when it will count them against the 2015 fiscal year annual immigrant visa quota. The DOS has also indicated that this category may be cut-off during the next fiscal year as early as May 2015 due to the continued increased usage in this category.

NEW SECURE INK BEING USED FOR IMMIGRATION RELATED STAMPS

The USCIS began using a new secure blue ink on the following stamps: Department of Homeland Security Parole Stamp, ADIT Stamp – Temporary I-551 Alien Documentary Identification and Telecommunication, Refugee Stamp, Asylum Stamp and Initial/Replacement Form I-94 Stamp. This new secure blue ink will replace the red ink that was previously used. The new blue secure ink began to be used on July 1, 2014.

H-1B EMPLOYER FOUND PERSONALLY LIABLE FOR VIOLATING INA

A doctor who ran several clinics in Tennessee and Florida was held personally liable for violating the wage violations under the Immigration and Nationality Act (INA) relating to the H-1B nonimmigrant category. Dr. Mohan Kutty employed eighteen foreign physicians through various corporate entities. The foreign physicians were employed pursuant to H-1B status in medically underserved areas which served as the basis for waivers of their J-1 foreign residence requirement. The clinics experienced financial troubles and Dr. Kutty began withholding the foreign workers' pay until they began seeing more patients. Subsequently, Dr. Kutty ceased salary payments to the foreign physicians. The foreign physicians lodged a complaint with the Department of Labor (DOL), the agency that administers and that is responsible for enforcing the H-1B Labor Condition Application (LCA) provisions. The DOL began an investigation which resulted in several charges being brought against Dr. Kutty. The Administrative Law Judge found that Dr. Kutty had willfully failed to pay the foreign workers pay, failed to maintain Public Access Files for the LCAs, did not keep payroll records and had illegally retaliated against the physicians for their actions which were protected under the INA. The Administrative Law Judge found Dr. Kutty personally liable for over $1 million in back pay and fined him $108,000 in civil penalties. Subsequent appeals to the Administrative Review Board, U.S. District Court and to the U.S. Court of Appeals for the Sixth Circuit were unsuccessful and all courts upheld the finding that Dr. Kutty was personally liable. It is clear that the DOL wished to make an example of this case to other H-1B employers. All H-1B employers should take special care and note that even though a corporate entity may serve as the employer on an H-1B petition and on the LCA tied to that petition, if the violations of the INA are willful that employer may be held personally liable for back pay and fines.


SEPTEMBER 2014 VISA BULLETIN UPDATE

Current Availability

The DOS recently released its September 2014 Visa Bulletin which shows the availability of employment-based immigrant visa categories for the month of September. Below is a summary of the bulletin highlights:

  • The EB-2 India category continues advancing significantly from January 22, 2009 in August to May 1, 2009 in September. The DOS predicts in this month's bulletin that once there is a significant demand in this category the dates can retrogress as early as November.
  • The EB-3 World category remains at April 1, 2011 has not advanced since June 2014 when the category retrogressed from October 1, 2012.
  • The EB-3 China, India and Mexico categories show no advancement from August and remain at November 1, 2008 for China, November 8, 2003 for India and April 1, 2011 for Mexico.
  • The EB-2 China category also remains stalled at October 8, 2009.
  • The EB-3 Philippines category continues to show rapid advancement from June 1, 2010 in August to April 1, 2011 in September.

Forecasted Availability

The DOS has indicated the following visa availability:

  • EB-1 will remain current.
  • EB-2: World category will remain current; China will advance three to five weeks; and India will slow its advancement or retrogress in the coming months.

Please note that month-to-month availability of immigrant visas varies and depends on many factors. These forecasts do not guarantee future availability.

Comparison to Prior Months

The following is a comparison of priority date movement since the inception of the current retrogression:

Dec 2007

Jun 2008

Aug 2009

Sept 2012

May 2013

Aug 2014

Sept 2014

EB-3 World

09/01/02

03/01/06

U

10/01/06

12/01/07

04/01/11

04/01/11

EB-2 China

01/01/03

04/01/04

10/01/03

U

05/15/08

10/08/09

10/08/09

EB-3 China

10/15/01

03/22/03

U

12/15/05

12/01/07

11/01/08

11/01/08

EB-2 India

01/01/02

04/01/04

10/01/03

U

09/01/04

01/22/09

05/01/09

EB-3 India

05/01/01

11/01/01

U

10/08/02

12/22/02

11/08/03

11/08/03

EB-3 Other Workers

10/01/01

01/01/03

U

10/01/06

12/01/07

04/01/11

04/01/11

DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA) RENEWAL PROCESS

Effective immediately, the USCIS will accept applications for the renewal of benefits for Deferred Action for Childhood Arrivals (DACA) recipients for an additional two years. Although it does not confer lawful status, DACA is a discretionary measure that grants eligible undocumented individuals who entered the United States as children protection from removal actions and the ability to apply for employment authorization. DACA was intended to protect children who through no fault of their own were brought to and raised in the United States, but remain on the fringes of society due to their lack of lawful status, in light of the failure of Congress to pass comprehensive immigration reform. The first DACA recipients' protections will begin to expire in September 2014. For this reason, the USCIS' announcement of the renewal process is a welcome one and will ensure that DACA recipients continue to receive protection as well as employment authorization after their current benefits expire.

As part of the renewal process, the USCIS has issued a new Form, I-821D, Consideration of Deferred Action for Childhood, which applicants will submit with the Form I-765, Application for Employment Authorization, and the Form I-765W, Worksheet. Applicants should not file the previous version of the Form I-821D as this will result in a rejection of the application. The USCIS has indicated that applicants can submit their materials 120 days prior to the expiration of their current DACA period. Individuals who meet the DACA eligibility requirements, but who have not previously applied, are welcome to apply at this time.

For Form I-9 purposes, employers are reminded that they should monitor the expiration of those employees whose employment authorization will expire and make a timely request to the employee to provide a new document evidencing a new period of employment authorization. This must be done by providing the employee with the most recent version of the Form I-9 Instructions which includes the List of Acceptable Documents. Employers must re-verify employment authorization before the employee's current authorization expires.

DEPARTMENT OF LABOR RELEASES LATEST STATISTICS FOR THIRD QUARTER OF FISCAL YEAR 2014

The DOL recently issued its statistics for the third quarter of fiscal year 2014 for the Permanent Labor Certification Program. The DOL received 10,773 applications, certified 12,519, denied 942 and had 687 applications withdrawn. In evaluating the DOL trends from fiscal year 2012 to the present, the denial rate has dropped to around 7% and the appeals rate has more than tripled from 3% to 10%. Audit rates have decreased from 45% at the end of fiscal year 2012 to 25% for this first quarter, but now rose again to 28%.

The majority of PERM applications continue to be filed in the Computer and Mathematical fields followed by the following fields: Architecture and Engineering, Management, Business and Financial Operations, and Education, Training and Library. The states that list the most work sites in decreasing order are: California, Texas, New York, New Jersey and Washington. The Professional, Scientific and Technical Services remains the top industry, followed by Manufacturing, Information, Educational Services and Finance and Insurance. The overwhelming majority of sponsored individuals are in H-1B classification (83%). The five top countries of citizenship which are sponsored are: India (55%), China (7%), Canada (5%), South Korea (4%) and Philippines (2%). Currently most individuals are being sponsored in positions requiring an advanced degree (55%) followed by bachelor's degrees (38%).

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.