Immigration Inbox: News You Can Use - April 2010

1. H-1B Update: Cap Filing Acceptance Period Begins; USCIS Issues H-1B Guidance Under Economic Stimulus. Employers are able to submit cap-subject H-1B petitions for the FY 2011 H-1B program.
2. Scrutiny at Ports of Entry and Worksites Increases. Recent reports suggest scrutiny at ports of entry is increasing for individuals seeking admission in H-1B status or other employment-based visa categories.
3. USCIS Stops Allowing H-1B Filings With Uncertified LCAs. USCIS will not extend the period in which it temporarily accepted H-1B petitions filed with uncertified labor condition applications.
4. E-Verify Shares Employer and Employee Information with OSC. USCIS to share information with the OSC regarding potential employer misuse of the E-Verify system.
5. Utah Law will Require Most Employers to Use E-Verify Effective July 1, 2010. The Utah Senate has passed a bill that will require most employers to begin using the E-Verify system in July.
6. DOS Proposes Fee Increases for U.S. Passports and Consular Services. A first time U.S. passport book for adults (age 16 and over) will increase from $100 to $135. Additionally, the application fee for an employment-based immigrant visa processed on the basis of an I-140 petition will increase to $720.
7. Immigrant Entrepreneur Bill Introduced. The “StartUp Visa Act of 2010” would allow certain immigrant entrepreneurs to receive a two-year visa under a new EB-6 category.
8. DOS Eliminates Nonimmigrant Visa Reciprocity Fees for Mexicans, Updates Schedule. The Department of State has eliminated all nonimmigrant visa reciprocity fees for Mexican citizens and updated the reciprocity schedule; TN and TD visa validity is now limited to 12 months.
9. DOL Implements Nursing Relief Act. This legislation allows certain health care facilities to file, and authorizes the Department to review, approve, and enforce, attestation applications to employ foreign workers as registered nurses in health professional shortage areas on a temporary basis under the H-1C visa.
10. ICE Updates List of SEVP Approved Schools. ICE has released the latest updated list of Student and Exchange Visitor Program approved schools.
11. Labor Dept. Publishes H-2A Final Rule and Reopens H-2A Regulations E-Mailbox. The final rule affects various aspects of the temporary agricultural employment of H-2A workers.
12. GLOBAL: News from China, Australia, Mexico, Canada. This article presents updates on the latest reforms and revisions to immigration laws and regulations.

 

1. H-1B Update: Cap Filing Acceptance Period Begins, USCIS Issues Guidance on I-129 Completion

Employers are now able to submit new cap-subject H-1B petitions for the fiscal year (FY) 2011 H-1B program. The numerical limitation, or cap, for FY 2010 was reached in December 2009. Beneficiaries of cap-subject petitions may begin employment as early as October 1, 2010. Employers recruiting abroad or who have hired individuals for F-1 “Optional Practical Training” should plan to file petitions with U.S. Citizenship and Immigration Services (USCIS) as soon as possible as it is unclear when the FY 2011 cap will be reached.

Petitions are only subject to the FY 2011 cap if the beneficiary of that petition has not been counted against a cap previously. Thus, “new” H-1B petitions are cap-subject but most petitions for extension, change of employer, or concurrent employment are not affected by the H-1B cap. Further, petitions on behalf of foreign nationals to be employed by institutions of higher education (or related or affiliated nonprofit entities), nonprofit research organizations, or governmental research organizations are not subject to the cap, but if an employer wishes to hire an H-1B employee currently employed at such an organization, the new petition would be cap-subject.

Meanwhile, USCIS has issued guidance on the Employ American Workers Act (EAWA) to employers seeking to file H-1B petitions. EAWA was enacted to ensure that companies that receive funding under the Troubled Asset Relief Program (TARP) or the Federal Reserve Act do not displace U.S. workers. Under the legislation, any company that has received covered funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.”

An H-1B dependent employer must make additional statements to the Department of Labor (DOL) regarding the recruitment and non-displacement of U.S. workers when filing a labor condition application (LCA). Subsequent to the enactment of EAWA, USCIS revised its Form I-129, Petition for a Nonimmigrant Worker, to include a question asking whether the employer received covered TARP funding.

USCIS said it understands that some businesses who received covered funding may have repaid their obligations and may not know how to respond to the question (Question A.1.d on the first page of the H-1B Data Collection and Filing Fee Exemption Supplement). Companies that have repaid their obligations under the law should answer “No” to question A.1.d. Those that wish to provide further information with the petition to assist USCIS in determining that their status for purposes of EAWA is correct may do so.

USCIS noted that a valid LCA must be on file with DOL when the H-1B petition (with a copy of the LCA) is filed with USCIS. Processing delays or a denial of the H-1B petition may result if the LCA does not correspond with question A.1.d of the H-1B petition, unless any inconsistency is explained to the satisfaction of USCIS. For example, if the LCA includes the additional statements, but question A.1.d is answered “no,” the employer can explain that it had received covered funding at the time of filing the LCA but repaid the obligation before filing the I-129. However, if the employer indicates on the petition that it is subject to the EAWA, but the LCA does not contain the proper declarations relating to H-1B dependent employers, USCIS will deny the H-1B petition.

USCIS additionally reminds employers that EAWA applies only to new hires and not to H-1B petitions seeking to change the status of a beneficiary working for the petitioning employer in another work-authorized category. It also does not apply to H-1B petitions seeking an extension of H-1B status for a current employee to continue working for the same employer.

Demand for H-1Bs is expected to increase somewhat this year, so early filing is recommended. Contact the Seyfarth Businness Immigration Group for assistance with H-1B petitions.

The EAWA guidance is available here.

2. Scrutiny at Ports of Entry and Worksites Increases

Recent reports suggest scrutiny at ports of entry is increasing for individuals seeking admission in H-1B status or other employment-based visa categories, especially those working for information technology consulting firms and those posted at third party worksites. For example, U.S. Customs and Border Protection (CBP) has confirmed that inspectors at the Newark, New Jersey airport Port of Entry, working in conjunction with U.S. Citizenship and Immigration Services—Fraud Detection and National Security (FDNS) and the Department of Labor—Office of Investigations, were assisting in an investigation of certain H-1B petitioner companies. The officers questioned foreign nationals seeking admission in H-1B status about their employers, their pay, their job duties and sought other information regarding the terms and conditions of their employment. This information was then compared to representations made in relevant case filings. CBP in Newark has also confirmed that it has begun conducting random checks of returning H-1B, L-1 and other employment-based visa holders to verify that the information provided by the foreign national is consistent with information provided in relevant petition or application filings. If this additional questioning reveals discrepancies, CBP may choose to allow the foreign national to withdraw his or her application for admission or to subject the foreign national to expedited removal (deportation) from the United States. For additional information see the Seyfarth Management Alert on this topic.

3. USCIS Stops Allowing H-1B Filings With Uncertified LCAs

U.S. Citizenship and Immigration Services (USCIS) announced on March 10, 2010, that it will not extend the period in which it temporarily accepted H-1B petitions filed with uncertified Labor Condition Applications (LCAs). USCIS explained that due to processing delays associated with the Department of Labor’s (DOL) “iCERT” online filing system, USCIS had responded to requests from the public by temporarily allowing H-1B petitions to be filed with uncertified LCAs. This temporary measure went into effect on November 5, 2009, and expired on March 9, 2010. USCIS said that as of March 10, 2010, it is rejecting any H-1B petition filed without an LCA certified by the DOL.

The announcement is available here.

4. E-Verify Shares Employer and Employee Information with OSC

Under a memorandum of agreement with the Justice Department’s Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC), U.S. Citizenship and Immigration Services (USCIS) will share information with the OSC relating to possible misuse of E-Verify by employers.

The memorandum of agreement took effect on March 17, 2010 and states that USCIS will provide data, including citizenship status, to the OSC from the queries that employers run through E-Verify. The OSC will use the information to identify violations of the Immigration and Nationality Act’s anti-discrimination provisions. Employers must understand that the OSC may use the information it obtains from E-Verify to initiate investigations of potential citizenship, immigration status, or national origin discrimination; document abuse (unfair documentation requirements or practices during the I-9 process); and/or retaliation. For additional information, see the recent Seyfarth Management Alert on this topic.

5. Utah Law will Require Most Employers to Use E-Verify Effective July 1, 2010

The Utah Senate has passed a bill that will require most Utah employers to use the E-Verify system. Scheduled to take effect on July 1, 2010, the bill would require private employers with 15 or more employees (as of July 1, 2010) to register for and use a “status verification system” to verify the employment authorization of workers hired on or after that date. In a curious twist, the bill exempts from the requirement employers who employ foreign nationals holding H-2A or H-2B visas. Additionally, the requirement will not apply to public employers, employers with 14 or fewer employees or to employees hired before July 1, 2010.

6. DOS Proposes Fee Increases for U.S. Passports and Consular Services

The Department of State has proposed an increase in fees for U.S. passport application services:

• From $100 to $135 for a first-time U.S. passport book for adults (age 16 and over)
• From $75 to $110 for passport renewal (age 16 and over only)
• From $85 to $105 for a passport for minors (under age 16)

Over the last five years, the Department noted, demand for passports has increased to an average of 15 million per year. In fiscal year (FY) 2005, the Department issued 10.1 million passports; issuances peaked at 18.4 million in FY 2007.

The Department has also proposed changes and increases to its schedule of fees for consular services, to take effect “as soon as practicable following the expiration of the 30-day public comment period” and after the Department has considered any public comments received. The public comment period ended on March 11, 2010.

Among other things, the proposed rule establishes a tiered application processing fee for immigrant visas depending on the category, instead of the current $355 fee for all immigrant visas. The application fee for an employment-based visa processed on the basis of an I-140 petition will be $720. Other immigrant visa applications (including for diversity visa applicants, I-360 self-petitioners, special immigrant visa applicants and all others) will have a fee of $305. Certain qualifying Iraqi and Afghan special immigrant visa applicants are statutorily exempt from paying a processing fee. The application fee for a family-based visa processed on the basis of an I-130, I-600, or I-800 petition will be $330. The Department is also increasing the immigrant visa security surcharge from $45 to $74.

Those who apply for immigrant visas on the basis of having been selected by the diversity visa lottery will pay $440 instead of $375.

Certain consular services performed for no fee have been included in the fee schedule “so that members of the public will be aware of significant consular services provided by the Department for which they will not be charged.” Nonimmigrant visa fees, including those for machine-readable visas and border crossing cards, were included in a separate rule published on December 14, 2009.

The proposed rule, which was published on February 9, 2010, is available here.

7. Immigrant Entrepreneur Bill Introduced

Senators John Kerry (D-Mass.) and Richard Lugar (R-Ind.), the chairman and ranking member of the Senate Foreign Relations Committee, introduced legislation on February 24, 2010, to help immigrant entrepreneurs secure visas to the United States.

The “StartUp Visa Act of 2010” would allow an immigrant entrepreneur to receive a two-year visa under a new EB-6 category, drawing from existing EB-5 visas, if he or she can show that a qualified U.S. investor is willing to dedicate a minimum of $250,000 to the immigrant’s startup venture. After proving that he or she has secured initial investment capital and if, after two years, the immigrant entrepreneur can show that he or she has generated at least five full-time jobs in the U.S., attracted $1 million in additional investment capital, or achieved $1 million in revenue, he or she would receive permanent resident status.

Sen. Kerry noted, “Everywhere Dick Lugar and I travel for the Foreign Relations Committee, we see firsthand the entrepreneurial spirit driving the economies of our competitors.” Sen. Lugar said the U.S. “should channel the power of innovative thinkers from around the world and American investors towards creating jobs and encouraging economic growth and future prosperity.”

More than 160 U.S. venture capitalists have endorsed the senators’ proposal. A press release announcing the bill’s introduction is available here.

Angelo Paparelli is quoted in a February 25, 2010 Los Angeles Daily Journal article regarding the proposed legislation. A discussion of this article is available here.

8. DOS Eliminates Nonimmigrant Visa Reciprocity Fees for Mexicans, Updates Schedule

As of February 22, 2010, the Department of State eliminated all nonimmigrant visa reciprocity fees for Mexican citizens and updated the reciprocity schedule. Under the previous schedule, a provision for Mexican TN and TD visa holders allowed them to pay for up to three years of visa validity at the time of the first issuance. The new schedule no longer includes that provision, and TN and TD visa validity is now limited to 12 months, the same period of time permitted U.S. citizens working in Mexico before they must renew their FM3 work permits. There is no fee for the TN and TD visas. All applicants must still pay the application fee, however. The visa reciprocity table is available here.

9. DOL Implements Nursing Relief Act

The Department of Labor’s Employment and Training Administration (ETA) and Wage and Hour Division have published a final rule, effective April 5, 2010, to implement the Nursing Relief for Disadvantaged Areas Reauthorization Act of 2005 (NRDARA), which reauthorized the Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA), finalizing these rules “for enforcement purposes.” This legislation allows certain health care facilities to file, and authorizes the Department to review, approve, and enforce, attestation applications to employ foreign workers as registered nurses in health professional shortage areas on a temporary basis under the H-1C visa. Facilities filed these forms with the Department as a condition for petitioning U.S. Citizenship and Immigration Services for H-1C nurses.

The NRDAA created a new temporary visa program for nonimmigrant foreign workers to work as registered nurses for up to three years in certain facilities that serve Health Professional Shortage Areas (HPSAs). Although the application period for H-1C visa petitions has now expired, H-1C nurses are allowed to work in the U.S. until the expiration of their authorized stay, which may be as much as three years after the petition was authorized. The Department said the final rule is intended to ensure that worker protections are in place for nurses currently employed in H-1C status, whose stays may extend beyond December 20, 2009. The final rule is available here.

10. ICE Updates List of SEVP-Approved Schools

U.S. Immigration and Customs Enforcement has released the latest updated list of Student and Exchange Visitor Program approved schools. The list is available at http://www.ice.gov/doclib/sevis/pdf/ApprovedSchools.pdf.

11. Labor Dept. Publishes H-2A Final Rule and Reopens H-2A Regulations E-Mailbox

The Department of Labor’s (DOL) Employment and Training Administration and Wage and Hour Division have published a final rule effective March 15, 2010, affecting various aspects of the temporary agricultural employment of H-2A workers. The final rule, which also includes a long discussion of wage rates and adds the agreed-upon collectively bargained wage rate to the list of required wage rates, is available here. A related fact sheet is available here, and a news release is available here.

Additionally, the DOL’s Office of Foreign Labor Certification has reopened its H-2A regulations e-mailbox for public inquiries. General queries regarding the H-2A program should be e-mailed to H-2A.Regulations@dol.gov. Case-specific inquiries should be e-mailed to the Chicago National Processing Center e-mailbox, TLC.Chicago@dol.gov. The Foreign Labor Certification Contacts List is available at http://www.foreignlaborcert.doleta.gov/contacts.cfm.

12. GLOBAL: News from China, Australia, Mexico, Canada

China. China’s State Administration for Industry and Commerce (SAIC) recently instituted new regulations for representative offices of foreign companies (ROs) in Shanghai , limiting head count as well as the validity period of the RO’s registration. ROs are now only able to sponsor a maximum of four foreign representatives. In addition, the registration certificates for ROs must be renewed annually. Though these restrictions are only being implemented in Shanghai currently, they will be implemented throughout China in 2010. These new restrictions do not apply to representative offices of foreign law firms. For additional information, see the recent Seyfarth One Minute Memo on this topic.

Australia. The Australian government has announced it is reforming the permanent skilled migration program to ensure that it is more responsive to the needs of industry and employers and better addresses the nation’s future skill needs. The reforms will deliver a demand—rather than supply—driven skilled migration program that meets the needs of the economy in sectors and regions where there are shortages of highly skilled workers, such as healthcare, engineering, and mining. For additional information, see the recent Seyfarth One Minute Memo on this topic.

Canada. Citizenship and Immigration Canada (CIC), in cooperation with Human Resources and Skills Development Canada (HRSDC) and the Canada Border Services Agency (CBSA), has proposed amendments to the Immigration and Refugee Protection Regulations. Among the proposed regulations are four main regulatory changes that, if enacted, would dramatically alter the existing Temporary Foreign Worker Program (TFWP). For additional information, see the recent Seyfarth Management Alert on this topic.

Also in this issue:

Recent News from Seyfarth’s Immigration Lawyers

Angelo Paparelli Published in New York Law Journal “New USCIS Policy Clips Entrepreneurs, Consultants and Staffing Firms”(February 24, 2010)

Angelo Paparelli co-authored the article, “New USCIS Policy Clips Entrepreneurs, Consultants and Staffing Firms,” which was published on February 24, 2010 in the New York Law Journal. The article discusses the recent U.S. Citizenship and Immigration Services (USCIS) memorandum that announces a new set of demanding and burdensome requirements that an employer must prove to the agency’s satisfaction. Petitioning businesses will now have to prove a valid employer-employee relationship with the foreign workers they propose to hire. For additional information see click here.

Angelo Paparelli Meets with USCIS Director Alejandro N. Mayorkas

Angelo Paparelli had the privilege to sit down in a face-to-face meeting with Alejandro N. Mayorkas, Director, U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security. Angelo and a few select nationally-recognized lawyers and scholars from the Alliance of Business Immigration Lawyers (ABIL), were able to discuss the challenges and opportunities USCIS now faces in the area of business immigration, as well as offer their insights to cutting-edge issues potentially affecting the nation’s future employment-based immigration policy. Angelo is the founding member of the Alliance of Business Immigration Lawyers.

For more information, please contact the Seyfarth attorney with whom you work, or any Business Immigration attorney on our website.