In General Electric Company (GE Energy) 2010-PER-763 the employer’s Application for Permanent Labor Certification was accepted for filing by the Department of Labor on October 26, 2009. The employer had posted the job order on April 27—182 days before the filing date—and removed it on May 27. The Certifying Officer (CO) denied the application because the job order was placed more than 180 days before the application was filed, and the job order “must be conducted at least 30 days, but no more than 180 days, before the filing of the application” (20 CFR § 656.17(e)(1)(i)).
BALCA casts doubt on FAQ regarding advertisements in professional journals
In the Matter of The University of Texas at Brownsville (2010-PER-00887), BALCA held that the Certifying Officer (“the CO”) abused his discretion when he denied the employer’s labor certification application on the basis that the national professional journal in which its advertisement was placed was only available electronically. While this may appear to end the Department of Labor’s requirement that such advertisements be in print, there are reasons to be cautious.
In its quest to increase job growth, U.S. to assist foreign entrepreneurs
News Release from Jewell & Associates, PC – August 2, 2011
Breaking news: The Wall Street Journal reports today that Washington will provide immigration benefits to foreign entrepreneurs in its quest to increase job growth in the United States. The WSJ article can be viewed at: http://tiny.cc/ibvud.html.
Jewell & Associates, PC will provide further coverage of the details, as they become available, in future posts.
© Jewell & Associates, PC 2011
Green Card Lottery entrants can check status online through June 30, 2012
News Release from Jewell & Associates, PC – July 21, 2011 Now through June, 30, 2012, entrants in the DV-2012 Diversity Visa Lottery may check the status of their entries through the Department State’s Entry Status Check on the State Department’s Electronic Diversity Visa website. To find out if his/her entry was selected (i.e., if he/she “won” the green card lottery), an entrant must use the information on his/her DV-2012 confirmation page. Entry Status Check is the only means by which the Department of State will notify DV-2012 entrants of their selection. Entry Status Check will give DV-2012 lottery winners instructions on how to proceed with their application for U.S. permanent residence, and will provide them with the date, time, and location of their immigrant visa interview.
For general information about the annual Diversity Visa Lottery, please visit the Department of State’s website.
© Jewell & Associates, PC 2011
All Countries Relieved from NSEERS Compliance
As of April 28, 2011, all countries that were designated as part of the National Security Entry-Exit Registration System (NSEERS) have been relieved of compliance and removed from the NSEERS list. Accordingly, nationals and citizens of Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates, and Yemen are no longer subject to the NSEERS registration requirements.
Update on Adjustment of Status Portability under AC21
Under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), a foreign national who has an approved I-140 petition and whose Adjustment of Status application has been filed and has remained unadjudicated for 180 days or more may accept a job with a new employer, or accept a different job with the same employer, as long as the new job is in the same or a similar occupational classification as the job for which the I-140 petition was originally filed. This ability to move between the same or similar positions is referred to “portability.”
VIBE – the USCIS’s New Information Verification System
When adjudicating employment-based immigration petitions, the USCIS is required to verify certain basic information about the petitioner, to make sure that the company or organization is a bona fide U.S. employer. For these verifications, the USCIS relies on paper documentation submitted with the petitions, and issues Requests for Evidence (RFEs) to employers when the documentation initially submitted doesn’t fully provide the necessary information.
Reminders about Employer Responsibility regarding I-9s and SSA No-Match Letters
It is a good idea for employers to revisit and remind themselves of some basic requirements for employee work authorization and employer responsibilities about once a year, to make sure that one is up to date on any new rules and fully remembering old ones. All individuals working in the United States must have legal authorization to do so and earned wages must be reported to the Internal Revenue Service for tax purposes and the Social Security Administration for potential benefit accrual.
Form I-129 Export Control Attestation Not Required Until 2/20/2011
News Release from Jewell & Associates, PC – December 27, 2010 On Dec. 22, 2010, USCIS announced that Petitioners will not be required to complete the attestation regarding export controls on the new version of the Form I-129 until Feb. 20, 2011. Please see our previous posting regarding the new Form I-129 here: /blog/?p=294. The USCIS Alert is located here: http://tinyurl.com/2dchnxk.
© Jewell & Associates, PC 2010
J&A Lawyer Claire Hulse named Barrister of the Year for 2010 by the Bar Association of San Francisco
News Release from Jewell & Associates, PC – December 7, 2010 J&A Lawyer Claire Hulse was recently named Barrister of the Year for 2010 by the Bar Association of San Francisco, for her significant contributions to BASF and its new attorney division, the Barristers Club. Claire Co-Chairs the Barristers Immigration Section, which she and her Co-Chair, Jacqueline Brown Scott, revamped this year by hosting monthly events on various topics covering all aspects of immigration, including business- and deportation/removal-related topics. They started the year with a viewing of Papers the Movie, a documentary about the DREAM Act, held a panel to discuss Arizona’s controversial immigration law, SB1070, hosted MCLEs regarding visas for entrepreneurs, startups, artists and entertainers, and ended the year with a well attended presentation by two Immigration Judges from the San Francisco Immigration Court, where Claire clerked following law school. Claire also served on the Nominating Committee, choosing new members of the 2011 Barristers Board. She will receive her award at the Bar Association of San Francisco’s Annual Membership Luncheon and Installation of Officers on December 14.
The related BASF press release can be viewed here:
http://www.sfbar.org/newsroom/20101201.aspx.
© Jewell & Associates, PC 2010
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
Large increases in government filing fees for some H-1B and L-1 petitions
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