USCIS updates its FY2011 H-1B cap count

As of 1 October 2010, the U.S. Citizenship and Immigration Services (USCIS) had receipted about 40,600 H-1B petitions that are subject to the general cap and, additionally, 14,900 H-1B petitions for foreigners with advanced degrees. Currently, the general cap on the H-1B category is 65,000, and the first 20,000 petitions filed for a foreigner with a U.S. master's degree or higher are exempt from the general cap.

USCIS announces final rule on fee increases, other adjustments

USCIS published a final rule on 24 September in the Federal Register that will increase overall fees for immigration applications and petitions by a weighted average of around ten percent. In addition to raising some fees, the new rule -- which will take effect 23 November -- establishes new fees for regional center designations under the Immigrant Investor Pilot Program, new fees for requests for civil surgeon designations, and a fee to recover USCIS costs for immigrant visas granted by the Department of State. However, the new rule also reduces or eliminates some fees on servicemembers and U.S. armed forces veterans seeking citizenship-related benefits. In addition, the rule expands the availability of fee waivers to additional categories.

USCIS noted its appreciation for the 225 comments it received on the fee changes, and emphasized that its new fee rules are intended to bridge a gap between USCIS costs and anticipated revenue. Ninety percent of USCIS's budget comes from fees paid by applicants and petitioners for immigration benefits, but USCIS's fee revenue since 2008 has been much lower than expected.

The following will be the new fees, as of 23 November, for some of the most commonly used filings by employers:

  • I-129 (H, L, O, P, etc.) - $325
  • I-907 (premium processing) - $1,225
  • I-140 (immigrant petition) - $580
  • I-485 (adjustment of status including I-765 and I-131) - $985
  • I-765 (e.g., F-1 OPT or L-2 EAD) - $380
  • I-131 (e.g., reentry permit) - $360

Fee increase for certain H-1B and L-1 petitions
President Obama signed Public Law 111-230 on 13 August 2010, which increased H-1B and L-1 visa petition fees in certain situations starting on August 14 and continuing through 30 September 2014. The additional fees apply to petitioners who employ 50 or more employees in the U.S. with more than 50 percent of their employees in H-1B or L nonimmigrant status. The law requires submission of an additional fee of $2,000 for H-1B petitions and $2,250 for L-1A and L-1B petitions when petitioners file the following petitions:

  • Initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15), or
  • To obtain authorization for an alien having such status to change employers.

USCIS recommends that all H-1B, L-1A, and L-1B petitioners, as part of their filing packet, indicate whether the new fee is required in bold capital letters at the top of their cover letter and either include the new fee or a statement of evidence outlining why the new fee does not apply to them.

Note that the additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee, needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.

CBP reminds travelers of ESTA fee
On 7 September 2010, U.S. Customs and Border Protection (CBP) issued a reminder to Visa Waiver Program (VWP) travelers that the $14 fee for Electronic System for Travel Authorization (ESTA) applications would begin the next day, 8 September. ESTA is an electronic travel authorization that all nationals of VWP countries must obtain prior to boarding a carrier to travel by air or sea to the United States under the VWP. The fee is composed of $4 to recover the costs incurred by CBP of providing and administering the ESTA system and the mandatory $10 travel promotion fee established by the Travel Promotion Act of 2009. Payments must be made by credit or debit card and may be made through a third party, such as a travel agent, since the name on the credit card does not have to match the name of the traveler.

DHS announces special relief for certain F-1 Haitian students
DHS has announced that it will suspend certain requirements for employment authorization for F-1 nonimmigrant students who are facing severe economic hardships as a result of the January 2010 earthquake in Haiti. Students meeting all of the specified prerequisites will be able to obtain employment authorization, work an increased number of hours while school remains in session, and reduce their course load. To be eligible, students must: (1) have been lawfully present in the United States in F-1 status on 12 January 2010; (2) be enrolled in a SEVP-certified institution; (3) currently maintain F-1 status; and (4) face severe economic hardship as a direct result of the January 2010 earthquake in Haiti. Eligible students are instructed to work with their Designated School Official (DSO) to apply for this special relief. The Federal Register Notice, dated 15 September 2010 (75 FR 56120), includes detailed information on the application process.

Department of Labor (DOL)

BALCA confirms denial of labor certification for CEO of closely held corporation
On 9 September 2010, the Board of Alien Labor Certification Appeals (BALCA) issued a decision and order affirming the denial of certification in matter of Collin Steyn and employer Intervid, Inc. In this matter, Intervid, Inc. filed an Application for Permanent Employment Certification for the position of "Chief Executive Officer" and indicated in section C-9 of the application that it was "a closely held corporation, partnership or sole proprietorship in which the alien has an ownership interest." The Certifying Officer denied the application, stating, "where the employer is a closely held corporation or partnership in which the alien has an ownership interest, a presumption exists that influence and control over the job opportunity is such that the job opportunity is not bona fide, i.e., not open and available to U.S. workers" and that the foreign worker was "the President, Chief Executive Officer, and Treasurer of the corporation, holds 50% of the shares, and that hiring authority for the position is the Vice President of the corporation, who holds the remaining 50% of the shares in the corporation."

In its analysis, BALCA cited to 20 C.F.R. § 656.10(c)(8), which requires the employer to attest that "[t]he job opportunity has been and is clearly open to any U.S. worker" and 20 C.F.R. § 656.17(l), which provides, "If the employer is a closely held corporation or partnership in which the alien has an ownership interest, or if there is a familial relationship between the stockholders, corporate officers, incorporators, or partners, and the alien, or if the alien is one of a small number of employees, the employer in the event of an audit must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to all U.S. workers...." Because, based on the totality of the circumstances, Intervid had not met its burden of overcoming the presumption that the Alien had influence and control over the job opportunity it did not demonstrate the existence of a bona fide job opportunity that the job was available to all U.S. workers. As such, BALCA affirmed the Certifying Officer's denial of labor certification.

Impact of new Puerto Rico birth certificate law on I-9 process
On 1 July 2010, Puerto Rico began issuing new, more secure certified copies of birth certificates to U.S. citizens born in Puerto Rico. Beginning 31 October 2010, all certified copies of birth certificates issued prior to July 1, 2010 will become invalid. This new law does not affect the U.S. citizenship status of individuals born in Puerto Rico. Rather, it only affects the validity of certified copies of Puerto Rico birth certificates.

This new law will impact the Employment Eligibility Verification (Form I-9) process in the following ways:

  • New Employees: Beginning 31 October 2010, only certified copies of Puerto Rico birth certificates issued on or after 1 July 2010 are acceptable for Form I-9 purposes. If an employee presents for List C a certified copy of a Puerto Rico birth certificate, the employer must ensure that the certified copy was issued on or after 1 July 2010.
  • Existing Employees: Employers must not ask an existing employee to present a new certified copy of a Puerto Rico birth certificate if the employee's employment eligibility had been verified on Form I-9 prior to 31 October 2010.

Department of State (DOS)

New visa appointment service in Canada
As of 1 September 2010, the US Mission in Canada has implemented a new appointment service for persons applying for a visa for travel to the United States. Most notably, all services related to calling for information on appointments and scheduling appointments will be provided free of charge. Information about the new appointment process can be found at the web site. This web site also allows applicants to schedule visa appointments online.

DOS amends China reciprocity schedule to allow for 12-month, multiple entry H visas
Effective 9 July 2010, the DOS's reciprocity schedule for China has been amended to allow for a 12-month, multiple entry H visa for Chinese nationals. Previously, Chinese nationals' H-1B visas were valid only for three months and two entries. If a Chinese national is issued an H-1B visa valid for only three months and two entries, the Chinese national should contact the U.S. Consulate where he/she obtained the H-1B visa to receive a corrected visa pursuant to the new reciprocity schedule.

DOS issues October 2010 visa bulletin
The U.S. State Department issued its Visa Bulletin for October 2010, which summarizes the availability of immigrant numbers during October.

Employment-based preference visas
Immigrant numbers are current and available for all nationalities in the following employment-based preference categories: first preference, fourth preference, Certain Religious Workers, fifth preference, Targeted Employment Areas/Regional Centers, and 5th Pilot Programs.

In addition, immigrant numbers remain current and available for second preference (members of the professions holding advanced degrees or persons of exceptional ability) visas for all nationalities, except Chinese and Indian nationals. The current priority dates for Chinese nationals and Indian nationals in the second-preference category are 22 May 2006 and 8 May 2006, respectively.

Visa numbers are available in the third-preference category as follows:

Nationality Priority Date
China 8 November 2003
India 15 January 2002
Mexico 22 April 2001
Philippines 8 January 2005
Others 8 January 2005

Visa numbers are available in the Other Workers preference category as follows:

Nationality Priority Date
China 22 March 2003
India 15 January 2002
Mexico 22 April 2001
Philippines 22 March 2003
Others 22 March 2003

Diversity Immigrant Visas

  • Africa: 9,000 (except Egypt: 5,500; Ethiopia: 7,450; Nigeria: 7,450)
  • Asia: 9,000
  • Europe: 9,600
  • North America (Bahamas): 1
  • Oceania: 350
  • South American and the Caribbean: 450

In addition, the Bulletin provided advance notification of the DV Immigrant category rank cut-offs which will apply in November. For November, visas will only be available for applicants with DV regional lottery rank numbers below the specific allocation cut-off number:

  • Africa: 12,000 (except Egypt: 9,300; Ethiopia: 11,000; Nigeria: 10,000)
  • Asia: 10,750
  • Europe: 12,500
  • North America (Bahamas): 2
  • Oceania: 650
  • South American and the Caribbean: 675

Other

Changes to Iraqi entry/exit requirements

U.S. Department of Defense (DOD) contractors, including contractors who enter and exit by U.S. military transportation and work in Iraq only on U.S. military bases or at U.S. Government facilities, should note that all foreign persons now are fully subject to Iraqi entry and exit requirements. While Iraqi immigration laws have not been enforced actively in the past with regard to U.S. government contractors, the Iraqi and U.S. Governments recently notified U.S. Government contractors that Iraqi immigration law will begin to be enforced at various points of entry/exit, including at airports and border crossings, and that U.S. military contractors are fully subject to these requirements. The entry/exit requirements appear to be evolving as the Iraqi Ministry of Interior (MOI) assumes sole authority for the visa process for contractor personnel in Iraq.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.