Newsletter
Jul 23, 2010
Immigration Inbox: News You Can Use - July 2010
1. USCIS to Adjust Fees for Immigration Benefits
3. State Department Raises Consular Fees for Nonimmigrant Visas and BCCs
4. USCIS Implements Business Verification Program
5. DHS Eliminates Paper Arrival/Departure Form for VWP Participants
6. State Department Updates Student and Exchange Visitor Visa Guidance
7. Utah E-Verify Law Set to Take Effect; Governor Indicates that Use of E-Verify Remains Voluntary
8. South Carolina Audits Employers for Compliance with E-Verify Law
9. E-Verify Redesigned; New Tutorials Required for Users
10. UK Immigration Limit on Non-European Workers
Recent News From Seyfarth’s Immigration Lawyers
1. USCIS to Adjust Fees for Immigration Benefits
U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas announced on June 9, 2010 a proposal to adjust fees for many immigration benefits to offset the impact of significantly lower fee revenue in fiscal year 2008, 2009 and so far in 2010. While USCIS received Congressional appropriations and made budget cuts of approximately $160 million, Director Mayorkas stated that the Service is looking to increase fees to cover the remaining budget shortfall.
The proposed fee rule would increase the average application and petition fee by approximately 10 percent and would establish three new fees for regional center designation under the Immigrant Investor Pilot Program (EB-5), individuals seeking civil surgeon designation, and recovery of the cost of processing immigrant visas granted by the Department of State. The proposed rule would adjust fees for the premium processing service and reduce fees for five application or petition types.
USCIS is seeking public comment on the proposed rule. The public comment period runs from June 11, 2010 to July 26, 2010.
For the USCIS fact sheet on the proposal, click here. For additional information regarding the public comment period, click here. A transcript of the Director’s announcement can be found here.
2. USCIS Redesigns Green Card
U.S. Citizenship and Immigration Services (USCIS) announced on May 11, 2010 that it has redesigned the Permanent Resident Card, commonly known as the “green card,” to incorporate several major new security features. Unlike prior versions, the new card will be green in color.
The redesigned card includes optical media to store biometrics identification data as well as holographic images, laser engraved fingerprints, and high-resolution micro-images intended to make the card “nearly impossible” to reproduce. Tighter integration of the card design with personalized elements is intended to make it difficult to alter the card if stolen. Radio Frequency Identification (RFID) capability will allow Customs and Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data. A preprinted return address will enable the easy return of a lost card to USCIS. USCIS said it will replace green cards already in circulation as individuals apply for renewal or replacement.
USCIS’s announcement is available here.
3. State Department Raises Consular Fees for Nonimmigrant Visas and BCCs
The Department of State has published an interim final rule, effective June 4, 2010, that raises from $131 to $140 the fee charged for processing an application for most non-petition-based nonimmigrant visas (Machine-Readable Visas or MRVs) and adult Border Crossing Cards (BCCs). The rule also provides new tiers of the application fee for certain categories of petition-based nonimmigrant visas and treaty trader and investor visas (all of which are also MRVs). Finally, the rule increases the $13 BCC fee charged to Mexican citizen minors who apply in Mexico and whose parent or guardian already has a BCC or is applying for one, by raising that fee to $14 by virtue of a congressionally mandated surcharge that went into effect in 2009.
The rule reopens the comment period on these fees for an additional 60 days. Written comments must be received by July 19, 2010. The Department will consider any further comments, and whether to make changes to the rule in response to them, before publishing a final rule.
The interim final rule is available here.
4. USCIS Implements Business Verification Program
On May 27, 2010 in Washington, D.C., U.S. Citizenship and Immigration Services’ (USCIS) Office of Public Engagement held an information-sharing session on a Web-based tool provided under a USCIS contract with Dun & Bradstreet, Inc. that the agency said “will help bring uniformity and consistency to the processing of employment-based immigrant and nonimmigrant petitions.” During the session, Service Center Operations staff provided a presentation of the “VIBE” program, which is being implemented this year at USCIS Service Centers.
VIBE (Verification Initiative for Business Enterprises) is intended to provide USCIS with an alternative means of verifying the financial viability of companies petitioning to employ foreign workers, along with other information about the company, such as the type of business and number of employees. USCIS announced in September 2009 that the contract had been awarded to Dun & Bradstreet for $35.5 million.
A blog commentary by Seyfarth Shaw partner Angelo Paparelli is available here.
5. DHS Eliminates Paper Arrival/Departure Form for VWP Participants
On May 20, 2010, the Department of Homeland Security (DHS) announced the elimination of the paper arrival/departure form (Form I-94W) for authorized travelers from Visa Waiver Program (VWP) countries. Following a seven-month pilot program on Air New Zealand flights from Auckland to Los Angeles International Airport, the use of paper I-94W forms will be eliminated for VWP travelers with an approved Electronic System for Travel Authorization (ESTA) arriving in the United States at all airports by the end of this summer. U.S. Customs and Border Protection (CBP) will activate automated processing for U.S. airports on a rolling basis over the next several months.
Applying for ESTA became mandatory on January 12, 2009 for all nationals of VWP countries before boarding a carrier to travel by air or sea to the United States. This requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa.
CBP recommends that VWP travelers submit ESTA applications as soon as they begin making travel plans. ESTAs are valid for two years or until the applicant’s passport expires. To date, CBP has received more than 19 million ESTA applications from citizens of VWP countries.
The DHS announcement is available here.
6. State Department Updates Student and Exchange Visitor Visa Guidance
The Department of State has released a cable updating guidance to the field for student and exchange visitor visa applications. The cable reminds posts that visa appointments for students and exchange visitors should be provided on a priority basis. Admission to a lesser-known academic institution, a community college, or an English language program is not in itself a reason for refusal, the cable notes, but all applicants should be able to explain their school choice and educational plan. “Which school a student chose is not nearly as important as why he/she chose it.
“ The cable urges posts to report suspect schools. The cable also notes that Summer Work and Travel Program participants should return from their programs in time for the beginning of fall classes, even though the Department of Homeland Security allows them a 30-day grace period before they must leave the U.S. The cable also provides clarification on flight training, study incidental to visits for pleasure, and the Student and Exchange Visitor Information System (SEVIS).
In addition, the cable notes that the Bureau of Consular Affairs continues to receive complaints that some consular officers are unreceptive to applications from prospective community college students. This is at odds with Consular Affairs policy, the cable notes.
The cable is available here.
7. Utah E-Verify Law Set to Take Effect; Governor Indicates that Use of E-Verify Remains Voluntary
Utah Governor Gary R. Herbert signed a bill on March 31, 2010 that requires most Utah employers to use a “status verification system” to confirm the employment authorization of new hires effective July 1, 2010. The bill, as written, requires private employers with 15 or more employees (as of July 1, 2010) to register for and use a “status verification system,” such as the E-Verify system, to verify the employment authorization of workers hired on or after that date. The Governor signed the bill only after confirming with the bill’s sponsors that the language of the bill would be amended to make clear that use of E-Verify is voluntary. He indicated that the purpose of the bill is to encourage, not require, employers to use E-Verify by providing a safe harbor from civil liability under state law for hiring, continuing to employ, or firing an employee in accordance with the status verification results. Although the law has not been amended, reports indicate that as of July 10, only approximately 3,000 businesses had registered.
8. South Carolina Audits Employers for Compliance with E-Verify Law
The South Carolina Department of Labor, Licensing, and Regulation’s Office of Immigrant Worker Compliance has begun auditing employers in the state for compliance with the South Carolina Illegal Immigration Reform Act (SCIIRA); such audits were extended to businesses with fewer than 100 employees as of July 1.
SCIIRA requires that, within five days after employing a new employee, all South Carolina employers must either (1) verify the employee’s work authorization through E-Verify; or (2) verify that the employee possesses a valid South Carolina driver’s license or identification card issued by the South Carolina Department of Motor Vehicles, is eligible to obtain a South Carolina driver’s license or identification card, or possesses a valid driver’s license or identification card from another state whose qualification requirements are as strict as those of the state of South Carolina.
The law took effect on July 1, 2009 for businesses with more than 100 employees and was extended to all employers in the state beginning on July 1, 2010.
Employers found not to be in compliance with the law may be fined between $100 and $1,000 per violation and risk losing their business licenses if they are found to have knowingly hired an unauthorized worker.
9. E-Verify Redesigned; New Tutorials Required for Users
The Department of Homeland Security’s E-Verify system has a new look. As of June 13, 2010, the system has been revamped in an attempt to streamline the E-Verify process and to use simpler terminology throughout the process. The revamped system also includes an enhanced “case alerts” feature to assist employers in managing their E-Verify queries. All registered users of the E-Verify system will be required to complete a brief tutorial after the launch to familiarize themselves with the changes.
10. UK Immigration Limit on Non-European Workers
At the end of June the British government announced that the number of non-European workers admitted to the United Kingdom will be controlled by an annual cap beginning in 2011. In the interim period (from July 19, 2010 to March 31, 2011) a temporary cap is imposed, which reduces the number of non-European workers migrating to the United Kingdom by up to 5% in certain categories.
The government will also conduct a 12- week review period to consider appropriate limits on immigration levels.
The new measures impact the various tiers and categories of the points-based system (PBS) differently as discussed below.
Tier 1 (General) Applications
There are two important changes for non-European workers making initial applications under Tier 1 (General) of the pointsbased system:
1. the introduction of an interim limit for Tier 1 (General) applications made outside the UK, for the period until March 31, 2011; and
2. an increase in the number of points required for an initial Tier 1 (General) application, from 95 to 100.
1. Interim Limit
The interim limit will be set on a monthly basis. If an applicant meets all requirements but the limit is already reached, the application will be deferred to the next month. Thus, applicants should allow more time when planning to file their applications. The interim limit will not affect:
1.1 applicants who are already in the UK (with current permission to stay in any immigration category);
1.2 dependants of Tier 1 (General) applicants; or
1.3 applicants to the Investor, Entrepreneur and Post-study work categories of Tier
1. 2. Increase of Points
In addition to the increase in points required for an initial Tier 1 (General) application:
2.1 the points awarded to those with previous earnings of £150,000 have increased from 75 to 80; and
2.2 the points awarded to those who have an eligible MBA have increased from 75 to 80.
These changes apply to all initial Tier 1 (General) applications paid for on or after July 19, 2010, whether they are made inside or outside the UK.
The points requirement will remain at 95 points for applicants who are currently in the UK under one of the following highly skilled worker categories: Tier 1 (General), Highly Skilled Migrant Programme, Self-employed lawyer, or Writer, composer or artist.
Tier 1 (General) Extension
The Tier 1 extensions are unaffected by this quota.
Tier 2 (General) Applications
The number of certificates of sponsorship (CoS) which each sponsoring UK company can assign to non-European workers will be limited to 18,700 (a 5% reduction compared to 2009)
The interim limit will apply to all Tier 2 (General) CoS. This also applies to extension applications.
The interim limit will not be applied to ICT Transfers, Ministers of Religion, Sportspeople, or Tier 2 dependent applications.
Sponsors will soon receive a letter from UK Border Agency (UKBA) confirming their CoS allocation for the interim limit period. This allocation is based on a reduced number of CoS for each sponsor which were used from July 19, 2009 to March 31, 2010. Given the economic situation during 2009-2010, it is expected that current CoS levels may not be reached with these low numbers. Some sponsors may face a zero allocation for the interim period so that they remain licensed but they will not be able to hire new non-European workers or extend the visas (leave) of existing non-European workers. UKBA reserved a small number of CoS for exceptional cases. Sponsors with zero allocation can request additional CoS if they meet specific criteria.
The temporary cap will be automatically reconsidered under the permanent cap system after April 1, 2011.
SUGGESTED ACTION
1. Sponsors should assess how many Tier 2 CoS were issued between July 2009 and March 2010.
2. This figure should be compared with the temporarily granted allocation.
3. Sponsors should determine whether this allocation will be sufficient for the next nine months considering new hires who require issuance of new CoS and the need to extend Tier 2 visas for current employees.
4. If the number of allocated CoS is too low, the sponsor can consider whether to identify special requests for additional CoS and/or switching non European workers from Tier 2 to Tier 1 visas as the quota does not apply to Tier 1 visas.
5. Sponsors should consider review of employment law issues that may arise as a result of the interim limits; for example, if there are no CoS left to extend an employee’s current Tier 2 visa, it may be necessary to terminate employment.
Publications by UKBA regarding the interim quota:
www.bia.homeoffice.gov.uk/sitecontent/newsarticles/2010/268071/43-impose-migration-limit1
www.bia.homeoffice.gov.uk/sitecontent/newsarticles/2010/july/30-t2-guide
News from the Hill
Can Immigration Law Be REPAIRed? Some Senators Think So
Several Democratic senators recently announced a 26-page “framework of concrete bipartisan ideas” for immigration reform, called REPAIR (Real Enforcement with Practical Answers for Immigration Reform). The proposal by Sens. Harry Reid (D-Nev.), Richard Durbin (D-Ill.), Charles Schumer (D-N.Y.), Patrick Leahy (D-Vt.), Dianne Feinstein (D-Cal.), and Robert Menendez (D-N.J.) calls for increasing enforcement, border security, and verification resources and efforts, along with expanded employment measures. Under the proposal, a green card (permanent residence) would be “immediately available” to foreign students with an advanced degree from a U.S. institution in a field of science, technology, engineering, or mathematics who has an offer of employment from a U.S. employer in a related field. To address the fact that “workers from some countries face unreasonably long backlogs that have no responsiveness to America’s economic needs,” the proposal eliminates the per-country employment immigration caps. Also, the EB-5 program would be made permanent and adapted to increase foreign investment in the U.S.
Among other things, the proposal would create a new “BELIEVE” (Biometric Enrollment, Locally-stored Information, and Electronic Verification of Employment) system and a provisional H-2C visa for nonseasonal, nonagricultural workers. Workers in the H-2C program would be permitted to earn lawful permanent residence if they met “sufficient integration metrics to demonstrate that they have successfully become part of the American economy and society.”
The proposal would amend current law regarding H-1B employer application requirements to: (1) revise wage determination requirements; (2) require Internet posting and description of employment positions; (3) increase U.S. worker displacement protections; (4) apply certain requirements to all H-1B employers rather than just to H-1B dependent employers; (5) prohibit employer advertising that makes a position available only to, or gives priority to, H-1B nonimmigrants; and (6) limit the number of H-1B and L-1 employees that an employer of 50 or more workers in the U.S. may hire. The proposal also would authorize the Department of Labor to investigate applications for fraud and conduct H-1B compliance audits.
The proposal is available here.
Recent News From Seyfarth’s Immigration Lawyers
Angelo Paparelli was quoted in the May 28, 2010 edition of the New York Times on E-2 visas. The article concerns Dean and Laura Franks, a British couple who ran a Maine eatery for nine years before being forced to leave the U.S. because their E-2 visas were not renewed. Calling such cases “the forgotten story of immigration,” Mr. Paparelli noted that “[t]he headlines deal with Arizona and border crossings, but these are real people too. This is what happens when you play by the rules.” For more, click here.
Angelo Paparelli and Nicole (Nici) Kersey were quoted in the May 27, 2010 SHRM Online article, “Avoid Common Mistakes When Correcting I-9s.” The article noted that HR professionals face many challenges when they discover errors on I-9 forms that they need to correct. Nici noted that it is important to clearly identify any corrections made. Angelo commented that if initial deadlines have passed for providing answers to different sections of I-9s, employers will not be able to avoid fines for violations, but correcting an I-9 may help employers avoid more serious consequences.
For more information, please contact the Seyfarth attorney with whom you work, or any Business Immigration attorney on
our website.