Immigration News
Jewell Stewart Pratt Beckerson & Carr PC
News Release from Jewell & Associates, PC – December 27, 2010 On Dec. 22, 2010, USCIS announced that Petitioners will not be required to complete the attestation regarding export controls on the new version of the Form I-129 until Feb. 20, 2011. Please see our previous posting regarding the new Form I-129 here: /blog/?p=294. The USCIS Alert is located here: http://tinyurl.com/2dchnxk.
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News Release from Jewell & Associates, PC – December 7, 2010 J&A Lawyer Claire Hulse was recently named Barrister of the Year for 2010 by the Bar Association of San Francisco, for her significant contributions to BASF and its new attorney division, the Barristers Club. Claire Co-Chairs the Barristers Immigration Section, which she and her Co-Chair, Jacqueline Brown Scott, revamped this year by hosting monthly events on various topics covering all aspects of immigration, including business- and deportation/removal-related topics. They started the year with a viewing of Papers the Movie, a documentary about the DREAM Act, held a panel to discuss Arizona’s controversial immigration law, SB1070, hosted MCLEs regarding visas for entrepreneurs, startups, artists and entertainers, and ended the year with a well attended presentation by two Immigration Judges from the San Francisco Immigration Court, where Claire clerked following law school. Claire also served on the Nominating Committee, choosing new members of the 2011 Barristers Board. She will receive her award at the Bar Association of San Francisco’s Annual Membership Luncheon and Installation of Officers on December 14.
The related BASF press release can be viewed here:
http://www.sfbar.org/newsroom/20101201.aspx.
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News Release from Jewell & Associates, PC – December 3, 2010 On November 23, 2010, the USCIS activated a new fee schedule and also released a revised I-129 form.
Updated Fee Schedule
According to the USCIS, the new fee schedule raises filing fees approximately 10% on average. Very notable for employment-based Petitioners and Applicants is the change to the premium processing filing fee which increased from $1000 to $1225. Under premium processing a case must be adjudicated or additional evidence requested within 15 days of filing. Premium processing went into effect in 2001 and the filing fee remained static at $1000 for the 9 years since then until this change.
The new fee schedule can be found in a Public Release by the USCIS.
Revised I-129 Form
The newly revised I-129 form was released by the USCIS on November 23, 2010, but the prior edition will still be accepted until December 22, 2010. The I-129 form is used for filing a petition with the USCIS for E, H, L, O, P, Q, R, and TN statuses. There is a basic I-129 form that is used for all applicable petitions as well as one or more supplements to attach to the I-129, depending on the requested classification.
One timely addition to the forms are checkbox attestations on the L and H Data Collection Supplements that allow a Petitioner to indicate directly on the form whether or not it is subject to the additional filing fees imposed under Public Law 111-230.
Another timely addition is that the revised basic I-129 form and the I-129 H-1B Data Collection Supplement each include questions about whether the beneficiary will be working off-site. Pursuant to direction from a January 2010 memo, the USCIS has issued numerous Requests for Evidence (RFEs) regarding the issues of management control of the Beneficiary and possible off-site placement in the H-1B context. These new forms may help answer these questions up-front and reduce potential RFEs.
The revised I-129 form also requires a new Petitioner attestation regarding controlled technology or technical data that must be made for H-1B, H-1B1 Chile/Singapore, L-1, and O-1A petitions. The export from the U.S. of certain forms of technology and data is regulated by the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR). The definition of “export” includes access of the technology or data by a foreign national, whether or not he is actively removing the property abroad. A Petitioner must certify via checkbox on the revised I-129 form that either 1) a license is not required to release the technology or data to the foreign national or 2) that a license is required but that the Petitioner will prevent access of the controlled technology or data by the beneficiary until such a license or other authorization is obtained. It is important to note that the attestation on the revised I-129 form does not change any prior export control laws but merely requires a Petitioner to actively attest that it is compliant with the regulations.
The revised I-129 form and instructions may be found at: http://www.uscis.gov/i-129
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News Release from Jewell & Associates, PC – October 4, 2010 Charles Oppenheim, chief of the Visa Control and Reporting Division of the Department of State, provided an overview of the likely progress of family and employment-based visa classifications at a recent meeting with AILA’s Washington, D.C. chapter.
Family-Based Classifications: Visas Currently Underutilized
Mr. Oppenheim expects priority dates in the family-based categories to continue advancing quickly. He attributed underutilization in these categories to the present economic climate, which may be discouraging foreign nationals from relocating to the United States and rendering petitioners unable to pay fees or comply with income requirements. Further, unlawfully present beneficiaries may be unwilling to travel abroad for consular processing due to bars on re-entry.
Employment-Based Classifications: Visas in EB-2 and EB-3 Oversubscribed
Mr. Oppenheim suggested that oversubscription in the EB-2 and EB-3 categories might be due to beneficiaries starting families between their petitions being filed and their priority date becoming current. Further, demand for the China and India EB-2 categories has increased as EB-3 beneficiaries have “ported” their priority dates over. This has not relieved pressure on the EB-3 category for these nationals, who can expect their priority dates to advance at the same pace in 2011 as they did in 2010. Mr. Oppenheim made the following predictions for priority date movement over the next few monthly Visa Bulletins:
Employment-Based Classifications: EB-1
Mr. Oppenheim finished on a positive note for China and India: under AC-21, unused EB-1 numbers from other countries have crossed over to their EB-1 categories, allowing 5,000-6000 visa numbers to be allocated rather than the normal limit of around 2,800. He also pointed out that remaining unused EB-1 numbers “fall down” into the EB-2 categories, which has added approximately 20,000 EB-2 numbers for India and nearly 6,500 for China.
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News Release from Jewell & Associates, PC – September 23, 2010
The U.S. Department of State has just announced the next annual lottery for U.S. green cards. The registration period for the upcoming lottery, called the 2012 Diversity Visa (DV) lottery, will open on October 5, 2010. Entries for the lottery must be submitted electronically between noon on October 5, 2010 and noon on November 3, 2010, Eastern Time. Eligibility requirements and entry instructions are on the U.S. Department of State’s DV lottery web site, http://travel.state.gov/visa/immigrants/types/types_1322.html.
The congressionally mandated Diversity Immigrant Visa Program is administered annually by the Department of State and makes up to 55,000 Diversity Visas (DV) available each fiscal year to persons from countries with low rates of immigration to the United States.
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To make emergency supplemental appropriations for border security, Public Law 111-230 was passed by Congress and it was signed into law by President Obama on August 13, 2010. One provision of the new law, effective immediately, adds large supplemental filing fees to certain H-1B and L-1 petition filings. USCIS clarified in a recent announcement that it will require the supplemental fee for petitions postmarked on or after August 14, 2010. The supplemental fees will remain in effect through September 30, 2014.
News Release from Jewell & Associates, PC – August 13, 2010 On 8/13/2010, President Obama signed into law H.R. 6080, an act making emergency supplemental appropriations for border security. One provision of the act raises the filing fee and Anti-Fraud fee for H and L visa petitions. The fee hikes apply to petitioning companies with more than 50 employees in the United States, if more than 50% of those employees are either in H or L status. The fee increase for Ls is $2,250.00, and the increase for Hs is $2,000.00. The language of the act appears to add these fees onto the existing $320.00 filing fee and $500.00 Anti-Fraud fee for each, bringing the total to $3,070.00 for Ls and $2,820.00 for Hs (not including PPS or ACWIA fees). It is unclear whether these fees apply only to initial petitions or if they also apply to extensions. Also unclear is whether the 50% determination for H or L counts individually or cumulatively. The fee increases appear to go into effect immediately, but we are uncertain whether USCIS will start rejecting petitions that are en route, or if USCIS will announce an effective date with an updated fee schedule. The fee increases are set to expire on September 30, 2014. We will post updates as more information becomes available.
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News Release from Jewell & Associates, PC - May 20, 2010 By the end of summer 2010, the paper arrival/departure form (Form I-94W) will be eliminated for visitors entering the U.S. under the Visa Waiver Program. Paper I-94s will continue to be issued to travelers entering the U.S. on visas.
As background, the Visa Waiver Program (VWP), established in 1986, enables eligible citizens or nationals of certain countries to travel to the United States for tourism or business for stays of up to 90 days without obtaining a visa. The program is administered by the U.S. Department of Homeland Security (DHS). There now are 36 VWP countries. Since January 2009, VWP travelers have been required to get a clearance through the “ESTA” web site before boarding a carrier to the U.S. This clearance is usually instantaneous, but it can take up to 72 hours. Once the ESTA clearance is granted, it is valid for two years or until the applicant’s passport expires.
Because the web-based ESTA application consists of basic biographical and eligibility questions typically requested on a paper I-94W form, the paper form is being phased out -- reducing redundancy and enhancing the security of sensitive personal information. The VWP data collected through ESTA is stored electronically on secure servers that can be accessed by U.S. Customs & Border Protection (CBP) inspectors at U.S. ports of entry.
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News Release from Jewell & Associates, PC - May 6, 2010 All H-1B petitions are supported by a Labor Condition Application (LCA), on which the employer attests to the wage to be paid to the H-1B employee. The same is true for H-1B1 and E-3 visas. The LCA does not identify the employee, but it names the employer, the occupation and location (e.g., ABC Corporation, Software Engineer, Mountain View, California), and the rate of pay. According to regulations of the U.S. Department of Labor (DOL), this information “shall be available for public examination at the Office of Foreign Labor Certification, Department of Labor, 200 Constitution Avenue, NW, Room C-4312, Washington, DC 20210.” 20 C.F.R. 655.760(b).
Although the DOL regulation indicates that the information sits in an office in Washington, DC, employers have discovered that the information is also available online, and is being used by compensation consultants and others. How did this happen?
Since 1994, DOL has contracted with the State of Utah to run the Foreign Labor Certification (FLC) Data Center, a branch of DOL concerned with LCAs for H-1Bs, as well as PERM labor certifications for U.S. permanent residence. The State of Utah has made the LCA wage information available on the FLC Data Center web site since 2001, the first year that a majority of LCAs were submitted in an electronic format. The information is currently available at http://www.flcdatacenter.com/CaseH1B.aspx.
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News Release from Jewell & Associates, PC - March 31, 2010 Citizens and eligible nationals of Visa Waiver Program (VWP) countries may come to the U.S. as visitors for business or pleasure without first getting visitors’ (B-1 and/or B-2) visas in their passports from U.S. Consulates outside the U.S. Provided that they are otherwise eligible for admission under applicable statutory and regulatory requirements, they may visit the U.S. for periods of up to 90 days. On March 4, 2010, the Secretary of Homeland Security, in consultation with the Secretary of State, designated Greece as a country that is eligible to participate in the Visa Waiver Program. There now are 36 VWP countries (including the new addition, Greece):
Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, the Republic of Korea, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.
Remember that, as of January 12, 2009, travelers using the VWP must obtain approval through the Electronic System for Travel Authorization (ESTA) prior to travel. VWP travelers are not permitted to board a carrier to travel by air or sea to the U.S. unless they have been cleared through ESTA. Complete information on ESTA is available at www.cbp.gov/esta.
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