New USCIS Fees are in Effect and Revised I-129 Form is Live

News Release from Jewell & Associates, PC – December 3, 2010 On November 23, 2010, the USCIS activated a new fee schedule and also released a revised I-129 form.

Updated Fee Schedule

According to the USCIS, the new fee schedule raises filing fees approximately 10% on average.  Very notable for employment-based Petitioners and Applicants is the change to the premium processing filing fee which increased from $1000 to $1225.  Under premium processing a case must be adjudicated or additional evidence requested within 15 days of filing.  Premium processing went into effect in 2001 and the filing fee remained static at $1000 for the 9 years since then until this change. 

The new fee schedule can be found in a Public Release by the USCIS.  

Revised I-129 Form

The newly revised I-129 form was released by the USCIS on November 23, 2010, but the prior edition will still be accepted until December 22, 2010.  The I-129 form is used for filing a petition with the USCIS for E, H, L, O, P, Q, R, and TN statuses.  There is a basic I-129 form that is used for all applicable petitions as well as one or more supplements to attach to the I-129, depending on the requested classification.

One timely addition to the forms are checkbox attestations on the L and H Data Collection Supplements that allow a Petitioner to indicate directly on the form whether or not it is subject to the additional filing fees imposed under Public Law 111-230.   

Another timely addition is that the revised basic I-129 form and the I-129 H-1B Data Collection Supplement each include questions about whether the beneficiary will be working off-site.  Pursuant to direction from a January 2010 memo, the USCIS has issued numerous Requests for Evidence (RFEs) regarding the issues of management control of the Beneficiary and possible off-site placement in the H-1B context.  These new forms may help answer these questions up-front and reduce potential RFEs.

The revised I-129 form also requires a new Petitioner attestation regarding controlled technology or technical data that must be made for H-1B, H-1B1 Chile/Singapore, L-1, and O-1A petitions.  The export from the U.S. of certain forms of technology and data is regulated by the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR).  The definition of “export” includes access of the technology or data by a foreign national, whether or not he is actively removing the property abroad.  A Petitioner must certify via checkbox on the revised I-129 form that either 1) a license is not required to release the technology or data to the foreign national or 2) that a license is required but that the Petitioner will prevent access of the controlled technology or data by the beneficiary until such a license or other authorization is obtained.  It is important to note that the attestation on the revised I-129 form does not change any prior export control laws but merely requires a Petitioner to actively attest that it is compliant with the regulations.

The revised I-129 form and instructions may be found at:  http://www.uscis.gov/i-129

© Jewell & Associates, PC 2010

Priority Date Progress—Predictions from the Department of State

News Release from Jewell & Associates, PC – October 4, 2010 Charles Oppenheim, chief of the Visa Control and Reporting Division of the Department of State, provided an overview of the likely progress of family and employment-based visa classifications at a recent meeting with AILA’s Washington, D.C. chapter.

Family-Based Classifications: Visas Currently Underutilized

Mr. Oppenheim expects priority dates in the family-based categories to continue advancing quickly. He attributed underutilization in these categories to the present economic climate, which may be discouraging foreign nationals from relocating to the United States and rendering petitioners unable to pay fees or comply with income requirements. Further, unlawfully present beneficiaries may be unwilling to travel abroad for consular processing due to bars on re-entry.

Employment-Based Classifications: Visas in EB-2 and EB-3 Oversubscribed

Mr. Oppenheim suggested that oversubscription in the EB-2 and EB-3 categories might be due to beneficiaries starting families between their petitions being filed and their priority date becoming current. Further, demand for the China and India EB-2 categories has increased as EB-3 beneficiaries have “ported” their priority dates over. This has not relieved pressure on the EB-3 category for these nationals, who can expect their priority dates to advance at the same pace in 2011 as they did in 2010. Mr. Oppenheim made the following predictions for priority date movement over the next few monthly Visa Bulletins:

• EB‐2 China: Slow—one or two weeks per bulletin.
• EB-2 India: Unchanged or very slow—a week or so per bulletin.
• EB‐3 China and India: Slow—one or two weeks per bulletin.
• EB‐3 Rest of World: Unchanged or slow in November.

Employment-Based Classifications: EB-1

Mr. Oppenheim finished on a positive note for China and India: under AC-21, unused EB-1 numbers from other countries have crossed over to their EB-1 categories, allowing 5,000-6000 visa numbers to be allocated rather than the normal limit of around 2,800. He also pointed out that remaining unused EB-1 numbers “fall down” into the EB-2 categories, which has added approximately 20,000 EB-2 numbers for India and nearly 6,500 for China.

 © Jewell & Associates, PC 2010

2012 Diversity Visa Lottery Program

News Release from Jewell & Associates, PC – September 23, 2010

The U.S. Department of State has just announced the next annual lottery for U.S. green cards. The registration period for the upcoming lottery, called the 2012 Diversity Visa (DV) lottery, will open on October 5, 2010. Entries for the lottery must be submitted electronically between noon on October 5, 2010 and noon on November 3, 2010, Eastern Time.  Eligibility requirements and entry instructions are on the U.S. Department of State’s DV lottery web site, http://travel.state.gov/visa/immigrants/types/types_1322.html.

The congressionally mandated Diversity Immigrant Visa Program is administered annually by the Department of State and makes up to 55,000 Diversity Visas (DV) available each fiscal year to persons from countries with low rates of immigration to the United States.

© Jewell & Associates, PC 2010

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 21^st “made the cap.”  Cap-subject H-1B petitions received on Monday, December 21^st 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 21^st will be returned to the petitioners un-filed.

© Jewell & Associates, PC 2009

H-1B Cap Update for FY2010

News Release from Jewell & Associates, PC - December 17, 2009

As of Tuesday, December 15, 2009, approximately 84,200 H-1B cap-subject petitions had been received and counted towards the H-1B cap.  This means that only 100 H-1Bs were still available as of yesterday, December 16th.  Accordingly, we expect an announcement from USCIS in the next few days that the cap has been reached.

© Jewell & Associates, PC 2009

H-1B Cap Update for FY2010

News Release from Jewell & Associates, PC - December 4, 2009

As of Friday, December 4, 2009, approximately 81,100 H-1B cap-subject petitions had been received and counted towards the H-1B cap.  This means that 3,200 H-1Bs are still available.  If the recent rate of use continues to accelerate, cap-subject H-1B petitions are likely to be accepted only for about one more week.

© Jewell & Associates, PC 2009

H-1B Cap Update for FY2010

News Release from Jewell & Associates, PC - November 30, 2009

As of Friday, November 27, 2009, approximately 78,900 H-1B cap-subject petitions had been received and counted towards the H-1B cap.  When this number is added to the statutory “H-1B1” set-asides of 1,400 from Chile and 5,400 from Singapore, the total H-1B cap of 85,000 is now exceeded.  Fortunately, however, it appears that USCIS is adding back in the 6,100 Chile-Singapore H-1B1s that are expected to be unused, and releasing them for general H-1B use.  This means that 5,400 H-1Bs are still available.  If the recent rate of use of about 1,300 per week remains steady, cap-subject H-1B petitions could be accepted for up to four more weeks.

© Jewell & Associates, PC 2009

H-1B Cap update for FY2010

News Release from Jewell & Associates, PC - September 24, 2009

In 2008, the annual allotment of cap-subject H-1Bs was so oversubscribed within the first few days of the filing season opening on April 1, 2008 that USCIS closed the filing period on April 7^th and instituted a lottery to select the filings that would proceed to adjudication.  In dramatic contrast, the H-1B demand in 2009 for cap-subject FY 2010 H-1Bs has been exceedingly low. As of September 18, 2009, approximately 46,000 H-1B cap-subject petitions had been received and counted towards the H-1B cap, and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. This means approximately 12,000 H-1Bs remain available.

© Jewell & Associates, PC 2009

DOL implements TARP restrictions on H-1Bs

News Release from Jewell & Associates, PC - February 19, 2009

The U.S. Department of Labor’s electronic portal for filing Labor Condition Applications (LCAs) in support of H-1B petitions now contains a warning to employers that have received TARP funding regarding the limitations placed on their H-1B hiring by the American Recovery and Reinvestment Act of 2009 (the “stimulus bill”).  The warning states that an employer that has received TARP funds are prohibited from hiring H-1B nonimmigrants for new employment unless the employer has complied with the additional attestations required of “H-1B-dependent” employers – attestations regarding the non-displacement of, and recruitment of, U.S. workers. Information regarding these additional attestations can be found at 20 CFR sections 655.738 and 655.739. For information regarding those employers who are recipients of such funding, go to http://www.treas.gov/initiatives/eesa/transactions.shtml.

© Jewell & Associates, PC 2009