Immigration Inbox: News You Can Use - November 2010

U.S. Immigration

1. USCIS Releases Q&A on H-1B and L-1 Fee Increases
2. State Department Discusses Fiscal Year Visa Projections
3. ETA Publishes Proposed Rule on Wage Methodology for H-2B Temporary Non-Agricultural Employment

Seyfarth Workforce Authorization Team (SWATeam)

1. ICE Breaks Immigration Enforcement, Employer Sanctions Records
2. USCIS Seeks Comments on E-Verify Self-Check

Global Mobility

1. Recent Changes to United Kingdom Immigration Procedures

U.S. Immigration

1. USCIS Releases Q&A on H-1B and L-1 Fee Increases

U.S. Citizenship and Immigration Services (USCIS) released a frequently asked questions (FAQ) sheet on October 7, 2010 that discusses the new additional fees of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions. The additional fee applies to H-1B or L-1 petitioners that employ 50 or more employees in the United States with more than 50 percent of their employees in the U.S. in H-1B, L-1A, or L-1B nonimmigrant status. USCIS noted that all employees in the U.S., regardless of whether they are paid through a U.S. or foreign payroll, will count toward the percentage calculation.

Among other things, the FAQ notes that until USCIS revises the Petition for Nonimmigrant Worker (Form I-129) and the Nonimmigrant Petition Based on Blanket L Petition (Form I-129S), the agency recommends that all H-1B, L-1A, and L-1B petitioners include, as part of the filing packet, either the new fee or a statement or other evidence outlining why the new fee does not apply. Where the fee or documentation is not submitted with the filing, or where questions remain, USCIS may issue a Request for Evidence (RFE) to determine whether the additional fee applies to the petition. Because USCIS will issue an RFE for the fee, rather than a rejection for the omission of the fee, USCIS will maintain the original filing date as the receipt date. Petitioners should wait to respond to the RFE before sending in the additional fee or an explanation of why the new fee does not apply. Once the revised I-129 and 1-129S are in place, USCIS will reject affected petitions submitted without the new fee. USCIS said it will release those revised forms “as soon as possible.”

The FAQ is available here.

2. State Department Discusses Fiscal Year Visa Projections

On September 22, 2010, Charles Oppenheim of the Department of State’s (DOS) Visa Office met with the American Immigration Lawyers Association’s (AILA) DC Chapter, where he discussed the Visa Bulletin, family- and employment-based priority dates, and other issues.

According to AILA, Mr. Oppenheim noted that many EB-3 beneficiaries from India and China are now eligible for and applying under the EB-2 category. He said that he does not expect priority dates in the EB-3 category for Indian and Chinese nationals to advance at a pace greater than that experienced during fiscal year (FY) 2010.

Mr. Oppenheim also made the following short-term predictions about the employment-based priority dates:

EB-2 and EB-3, China. These two categories are expected to move slowly over the next few months, by one or two weeks at a time.
EB-2, India. This category is expected to remain unchanged or to move very slowly forward, by a week or so. This is mainly a result of EB-3 Indian applicants (approximately 60,000 cases pending) “porting” their priority dates into the EB-2 category and thus using visa numbers.
EB-3, India. Similarly, this category is expected to move very slowly over the next few months, perhaps by one or two weeks at a time.
EB-3, Rest of World (ROW). This category is expected to move slightly forward or to remain unchanged in the November 2010 Visa Bulletin due to the high number of applications waiting for a visa number in this category.
E-4, Special Immigrant Religious Workers, may have cut-off dates by the end of this year.

EB-3 “Other Worker” has such a small number of visas (5,000 per year) that it will advance very slowly. As with those in the EB-3 category, many of these cases are at the District Offices, so Mr. Oppenheim does not know the numbers until after moving the cut-off date forward.

AILA reported that Mr. Oppenheim also said that under AC21, EB-1 China/India cases are not currently subject to the per-country limit, because of the crossover in that category of otherwise unused numbers from other countries. This has allowed 5,000-6,000 visa numbers to be allocated to the India and China EB-1 categories when approximately 2,800 would be the normal limit. The remaining unused EB-1 numbers “fall down” into the EB-2 categories, which has allowed approximately 20,000 EB-2 numbers for India and nearly 6,500 for China. The availability of these numbers “fall across” strictly in priority date order, not by country, Mr. Oppenheim noted.

The November 2010 Visa Bulletin is available here.

3. ETA Publishes Proposed Rule on Wage Methodology for H-2B Temporary Non-Agricultural Employment

The Department of Labor’s Employment and Training Administration has proposed to amend its regulations governing certification of the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment and related enforcement. The proposed rule, published on October 5, 2010, would revise the methodology by which the Department calculates the H-2B prevailing wage.

The proposed rule would establish that the prevailing wage will be the highest of: (1) wages established under an agreed-upon collective bargaining agreement (CBA); (2) a wage rate established under the Davis-Bacon Act (DBA) or McNamara-O’Hara Service Contract Act (SCA) for that occupation in the area of intended employment; and (3) the arithmetic mean wage rate established by Occupational Employment Statistics (OES) for that occupation in the area of intended employment. The employer would be required to pay its workers at least the highest of the prevailing wage as determined by the National Processing Center (NPC) (currently the National Prevailing Wage Center), the federal minimum wage, the state minimum wage, or the local minimum wage.

The proposed rule also would eliminate the use of the current four-tiered wage structure that differentiates wage tiers by level of experience, education, and supervision required to perform the job duties. The Department proposes instead a single OES wage level for H-2B job opportunities based on the arithmetic mean of the OES wage data for the job opportunities in the area of intended employment.

Finally, the H-2B regulations currently allow the use of an employer-provided survey to determine the prevailing wage when that survey meets certain methodological requirements, even if the survey produces a lower wage than the OES wage. The proposed rule would eliminate the use of private wage surveys in the H-2B program.

The Department anticipates further rulemaking that will address other aspects of the H-2B temporary worker program. (The proposed rule notes that temporary labor certification is currently not required for H-2B employment on Guam, for which certification from the governor of Guam is required.)

Comments are due by November 4, 2010, and should be submitted using one of the methods set forth in the proposed rule, which is available here. Also see here.

Seyfarth Workforce Authorization Team (SWATeam)

1. ICE Breaks Immigration Enforcement, Employer Sanctions Records

On October 6, 2010, Department of Homeland Security Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement (ICE) Director John Morton announced record-breaking immigration enforcement statistics achieved under the Obama administration, including the highest-ever numbers of convicted criminal removals and overall removals in fiscal year 2010.

Secretary Napolitano said, “Our approach has yielded historic results, removing more convicted criminal aliens than ever before and issuing more financial sanctions on employers who knowingly and repeatedly violate immigration law than during the entire previous administration.” Among other achievements, ICE removed more than 392,000 undocumented persons nationwide in 2010; half were convicted criminals. Since January 2009, ICE has audited more than 3,200 employers, debarred 225 companies and individuals, and imposed approximately $50 million in financial sanctions. Debarment excludes persons or entities from government business for up to 3 years for prescribed violations.

The announcement is available here.

2. USCIS Seeks Comments on E-Verify Self-Check

U.S. Citizenship and Immigration Services seeks comments on a new E-Verify self-check program. Self-Check will allow workers to enter data into the E-Verify system to ensure that information relating to their eligibility to work in the U.S. is correct. The notice, including instructions on how to submit comments, is available here.

Global Mobility

1. Recent Changes to United Kingdom Immigration Procedures

U.K. authorities announced that the monthly visa allocation for Tier 1 visas filed outside of the U.K. was reached on October 21, 2010. The U.K. introduced the monthly cap of 600 visas on July 19, 2010 but, until now, the cap had not been reached. U.K. authorities will accept and process applications filed after October 21, however the visa will not be issued until November 2010. Any unused allocations from July onwards have been rolled over to subsequent months. The increase in Tier 1 visa applications is likely to be a direct result of the lack of Tier 2 General Certificates of Sponsorship available to employers.

In September 2010, processing of U.K. visas in the United States changed such that only the Consulates in Los Angeles and New York may issue visas. In addition, processing times are expected to increase to 15 business days. However, the U.K. Consulates offer expedited processing, with issuance in two business days, if the applicant pays an additional $150 fee.

Recent News From Seyfarth’s Immigration Lawyers

Jason Burritt has been selected by the Lawyer’s Alliance for New York to receive a “Cornerstone Award,” presented annually to a select group of individuals and institutions that have made extraordinary contributions through pro bono legal services. These services help nonprofits to address critical human needs and improve the quality of life for thousands of low-income New Yorkers. Mr. Burritt received the award at a ceremony held on October 27, 2010 in New York, New York.

On October 7, 2010, Angelo Paparelli appeared on KABC Talk Radio to analyze the immigration case of Nicky Diaz, the former housekeeper of Meg Whitman. The entire broadcast can be found here.