Senators Schumer and Graham outline Comprehensive Immigration Reform proposal

News Release from Jewell & Associates, PC - March 19, 2010

In an op-ed published in today's Washington Post, Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) outlined their bipartisan proposal for comprehensive immigration reform.  The plan rests on four pillars: ending illegal employment through biometric Social Security cards, enhancing border security and interior enforcement, managing the flow of future immigration to correspond to economic realities, and creating a tough but fair path toward legalization for the estimated eleven million people in the U.S. without authorization.  The full piece is available on the Washington Post website at:

www.washingtonpost.com/wp-dyn/content/article/2010/03/17/AR2010031703115.html?hpid=opinionsbox1.

© Jewell & Associates, PC 2010

Worldwide Deployment of Form DS-160 for Nonimmigrant Visa Applications

News Release from Jewell & Associates, PC - February 23, 2010

As part of the Stare Department’s ongoing modernization of the visa application process, it is deploying the DS-160 fully web-based nonimmigrant visa (NIV) application form worldwide.  The DS-160 has been used at twenty-four U.S. consular posts so far, and will be expanded to complete global usage for all NIVs except K visas.  The expansion will take place in two phases, with many consular posts requiring the DS-160 as of March 1, 2010, and the remaining consular posts requiring the DS-160 no later than April 30, 2010.

The DS-160 form combines all information previously collected on the DS-156, 157, and 158 for appropriate applicants, and the DS-3052.  Applicants for "E" class treaty trader NIVs will complete the DS-160 and have to fill out a hard copy DS-156E until the DS-160E electronic form is fielded in the near future. Until further notice, K visa applicants should continue to use the DS-156 and DS-156K instead of the DS-160.

© Jewell & Associates, PC 2010

H-1B Cap for FY2011 (10/1/2010 through 9/30/2011)

News Release from Jewell & Associates, PC - January 29, 2010

Congress has established an annual H-1B cap of 65,000. Of that number, 6,800 are set aside for the H-1B1 program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements. The total H-1B cap number available in a given fiscal year is therefore 58,200 (65,000 minus 6,800). The law provides that any of the unused Chile/Singapore numbers from a fiscal year be reallocated for use in the subsequent fiscal year. Therefore, the unused Chile/Singapore H-1B1s from the prior fiscal year are added to the 58,200 regular cap numbers available for each new fiscal year.  (This excludes the 20,000 cap exemption for holders of U.S. graduate degrees, which effectively adds another 20,000 to the H-1Bs available each year.)

Thus, the FY 2011 cap (i.e., new H-1Bs that will take effect between 10/1/2010 and 9/30/2011), to be allocated beginning in April 2010, will be based on the same formula: Subtract 6,800 for the FY 2011 H-1B1 reservation from 65,000, then add back in the unused H-1B1 numbers from FY 2010, based either on projected H-1B1 usage to the end of FY 2010, or on actual determined usage during that year, depending on when the cap is hit. In FY 2010 to date (January 2010), 129 of the 6,800 numbers have been used.

© Jewell & Associates, PC 2010

“Neufeld Memo” of 1/8/2010 on Employer-Employee Relationship

News Release from Jewell & Associates, PC - January 13, 2010

On January 8, 2010, USCIS’s Associate Director, Service Center Operations, Donald Neufeld, issued a memo making additions to the Adjudicator’s Field Manual (AFM), the manual used by USCIS officers in adjudicating nonimmigrant and immigrant visa petitions, including H-1B petitions.  The January 8, 2010 “Neufeld Memo” is intended to provide guidance in determining the existence of an employer-employee relationship in the context of H-1B petitions, including H-1B petitions in which an owner of the petitioning entity is also the H-1B beneficiary, and H-1B petitions involving third-party site placements.    The memo appears designed to limit the approvability of such H-1B petitions.  The memo is troubling in that it is not fully consistent with the existing federal regulation at 8 CFR §214.2(h)(4)(ii)(2) that identifies the factors defining an employer-employee relationship.

Under accepted principles of administrative law, it is not proper for USCIS to make significant new rules through the issuance of memos.  Under the Administrative Procedure Act, significant changes in agency regulation, policy or practice require that appropriate notice be given to the public and that the public be permitted to comment.  Accordingly, we expect the Neufeld Memo to be met with vigorous opposition and a call for withdrawal of the memo.

The Neufeld Memo is available on the USCIS web site at http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf

© Jewell & Associates, PC 2010