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.
H and L fee increases
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.
© Jewell & Associates, PC 2010
Form I-94W eliminated for VWP travel
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.
© Jewell & Associates, PC 2010
Companies’ H-1B wages available online
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.
© Jewell & Associates, PC 2010
Citizens of Greece eligible for Visa Waiver Program
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.
© Jewell & Associates, PC 2010
Senators Schumer and Graham outline Comprehensive Immigration Reform proposal
News Release from Jewell & Associates, PC - March 19, 2010
In an op-ed published in today's Washington Post, Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) outlined their bipartisan proposal for comprehensive immigration reform. The plan rests on four pillars: ending illegal employment through biometric Social Security cards, enhancing border security and interior enforcement, managing the flow of future immigration to correspond to economic realities, and creating a tough but fair path toward legalization for the estimated eleven million people in the U.S. without authorization. The full piece is available on the Washington Post website at:
www.washingtonpost.com/wp-dyn/content/article/2010/03/17/AR2010031703115.html?hpid=opinionsbox1.
© Jewell & Associates, PC 2010
Worldwide Deployment of Form DS-160 for Nonimmigrant Visa Applications
News Release from Jewell & Associates, PC - February 23, 2010
As part of the Stare Department’s ongoing modernization of the visa application process, it is deploying the DS-160 fully web-based nonimmigrant visa (NIV) application form worldwide. The DS-160 has been used at twenty-four U.S. consular posts so far, and will be expanded to complete global usage for all NIVs except K visas. The expansion will take place in two phases, with many consular posts requiring the DS-160 as of March 1, 2010, and the remaining consular posts requiring the DS-160 no later than April 30, 2010.
The DS-160 form combines all information previously collected on the DS-156, 157, and 158 for appropriate applicants, and the DS-3052. Applicants for "E" class treaty trader NIVs will complete the DS-160 and have to fill out a hard copy DS-156E until the DS-160E electronic form is fielded in the near future. Until further notice, K visa applicants should continue to use the DS-156 and DS-156K instead of the DS-160.
© Jewell & Associates, PC 2010
H-1B Cap for FY2011 (10/1/2010 through 9/30/2011)
News Release from Jewell & Associates, PC - January 29, 2010
Congress has established an annual H-1B cap of 65,000. Of that number, 6,800 are set aside for the H-1B1 program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements. The total H-1B cap number available in a given fiscal year is therefore 58,200 (65,000 minus 6,800). The law provides that any of the unused Chile/Singapore numbers from a fiscal year be reallocated for use in the subsequent fiscal year. Therefore, the unused Chile/Singapore H-1B1s from the prior fiscal year are added to the 58,200 regular cap numbers available for each new fiscal year. (This excludes the 20,000 cap exemption for holders of U.S. graduate degrees, which effectively adds another 20,000 to the H-1Bs available each year.)
Thus, the FY 2011 cap (i.e., new H-1Bs that will take effect between 10/1/2010 and 9/30/2011), to be allocated beginning in April 2010, will be based on the same formula: Subtract 6,800 for the FY 2011 H-1B1 reservation from 65,000, then add back in the unused H-1B1 numbers from FY 2010, based either on projected H-1B1 usage to the end of FY 2010, or on actual determined usage during that year, depending on when the cap is hit. In FY 2010 to date (January 2010), 129 of the 6,800 numbers have been used.
© Jewell & Associates, PC 2010
“Neufeld Memo” of 1/8/2010 on Employer-Employee Relationship
News Release from Jewell & Associates, PC - January 13, 2010
On January 8, 2010, USCIS’s Associate Director, Service Center Operations, Donald Neufeld, issued a memo making additions to the Adjudicator’s Field Manual (AFM), the manual used by USCIS officers in adjudicating nonimmigrant and immigrant visa petitions, including H-1B petitions. The January 8, 2010 “Neufeld Memo” is intended to provide guidance in determining the existence of an employer-employee relationship in the context of H-1B petitions, including H-1B petitions in which an owner of the petitioning entity is also the H-1B beneficiary, and H-1B petitions involving third-party site placements. The memo appears designed to limit the approvability of such H-1B petitions. The memo is troubling in that it is not fully consistent with the existing federal regulation at 8 CFR §214.2(h)(4)(ii)(2) that identifies the factors defining an employer-employee relationship.
Under accepted principles of administrative law, it is not proper for USCIS to make significant new rules through the issuance of memos. Under the Administrative Procedure Act, significant changes in agency regulation, policy or practice require that appropriate notice be given to the public and that the public be permitted to comment. Accordingly, we expect the Neufeld Memo to be met with vigorous opposition and a call for withdrawal of the memo.
The Neufeld Memo is available on the USCIS web site at http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf
© Jewell & Associates, PC 2010
H-1B Cap Is Reached for FY2010
News Release from Jewell & Associates, PC - December 22, 2009 On Tuesday, December 22, 2009, USCIS announced that the H-1B cap was reached. All cap-subject H-1B petitions received at USCIS before Monday, December 21st “made the cap.” Cap-subject H-1B petitions received on Monday, December 21st will be subject to a computer-generated random selection process to determine which of them “made the cap” and which will be returned to the petitioners un-filed. All cap-subject H-1B petitions received after Monday, December 21st will be returned to the petitioners un-filed.
© Jewell & Associates, PC 2009