Not only do several immigration fees increase as of 11/23/2010, but a revised I-129 (Petition for Nonimmigrant Worker) will make its debut on 11/23/2010 as well, and will become mandatory beginning December 22nd.  USCIS will accept previous editions of the form for 30 days or until December 21, 2010.

The new I-129 petition has been months in the making, and is the first major overhaul of the petition in years. When it is implemented, employers will see new questions and compliance issues, particularly for H-1B and L-1 filings.  The petition is used for temporary workers in a variety of nonimmigrant visa classifications.

The revised form will be available on 11/23/2010 on www.uscis.gov

Senate Dems Robert Menendez (NJ) and Patrick Leahy (VT) introduced the CIR Act of 2010 that proposes major  overhaul to the immigration system, making changes in employment and family-based programs with enhancements to I-9 (employment eligibility verification) employer obligations.  Most feel that this will not be the avenue by which CIR is accomplished, but that many of its ideas, including those int the CIR ASAP Bill that was introduced by Luis Gutierrez (D/IL) and the REPAIR proposal introduced by Senators Schumer (D-NY) and Lindsey Graham (R-SC) earlier this year, will all be considered when Congress decides to get serious about tackling immigration reform and actually start debating the issues.

The Bill does propose the creation of an Immigration Commission that would have authority to recommend yearly NIV and IV numerical limits.

The Bill proposes changes to the H-1B program by requiring employers to post the job opening on a new DOL website.  Employer with 50 or more employees would be prohibited from petitioning for additional H-1B workers if their workforce was comprised of more than 50% H-1B and L-1 workers, excluding those who are the beneficiaries of a pending or approved labor certification or employer-based immigrant petition.  Additionally, employers would be prohibited from placing H-1B workers at a 3rd party site, unless the worker was primarily supervised and controlled by the petitioner/employer.

DOL would be charged with additional authority to review LCA’s for fraud or misrepresentation and would have up to 14 days to certify an LCA (makes one wonder if we’d ever get a case out the door!)  with additional authority to investigate complaints against H-1B employers and to conduct employer H-1B compliance audits.  This is yet another reminder to employers to make sure that their Public Access Files are in order and that they are working with immigration attorneys who provide them with PAF files and overall compliance guidance and training.

Proposed changes to the L-1 Program would include requiring employers to offer L-1 employees insurance and other benefits on the same basis as that offered to US workers.  Increasing restrictions would be imposed on “new office” L-1 petitions and would require DHS to submit a report to Congress on L-1Blanket use.  On the positive side, the bill wold provide some relief for small employers seeking L-1A status for foreign nationals.  It would forbid adjudicators from using the small size of an L-1 employer as a negative factor in executive or managerial eligibility for L-1A status, but would increase DHS authority to investigate complaints against L-1 employers and impose new penalties upon employers who violate L-1 regs.

*** (Relief for Registered Nurses) *** — The Bill proposes to create a new H-2C temporary, nonimmigrant visa for occupations for which there is a shortage of American labor.  The initial H-2C visa would be valid for three years and renewed for three more years. With some exceptions, an H-2C visa could be revoked if the visa holder has been unemployed for more than 60 days.  After 4 years, an H-2C non-immigrant may file an application for adjustment of status, provided that he/she has been continuously employed, establishes progress toward civics and English proficiency, meets all criminal and other background checks and pays additional fines and fees.

There is a proposal to include a new H-1C program for lesser-skilled workers with job offers from US employers, and the creation of a premium processing program for administrative appeals of employment-based immigrant petition denials.

Relief for Undocumented Immigrants: Creates a provisional legal status, Lawful Prospective Immigrant (LPI), for undocumented immigrants who are present in the U.S. as of September 30, 2010, register with the government, have never committed a serious crime, and are otherwise admissible to the United States.  LPI status will be initially valid for four years, with the possibility of extensions.  LPI status confers work and travel authorization.  After six years in LPI/LPID status, an applicant may apply to become a lawful permanent resident, provided he or she continues to meet all eligibility requirements, including renewed biometrics and background and security checks, and also establishes basic citizenship and English skills, payment of all taxes, and compliance with Selective Service registration.

Employment-based Immigrant Petitions: The bill would recapture unused employment and family-based visa numbers from 1992 to 2007, and implement for future years  that unusued immigrant visa numbers roll over each fiscal year including the base amount of 140,000 –  plus numbers from 1992-2007 – and any unusued numbers from the previous year.  Those with approved visa petitions who are subject to wait times would be eligible to apply for AOS upon payment of an additional $500 filing fee and would be entitled to 3-year EADs and travel documents.  Those with pending immigrant visa petitions would be eligible to apply for AOS at the discretion of DHS.

We link to a complete summary of the CIR Reform Act from Immigration Policy Center.

Immigration Solutions will continue to update and report on any and all CIR issues as they arise.

The day following President Obama signing Public Law 111-230, the fee increase on H-1B and L-1 visas became effective (August 14, 2010) through September 30, 2014.

What exactly is this law and what does it stipulate? It requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010.  We were surprised that this announcement  which our office just saw posted today, is retroactive and being implemented before USCIS revises the I-129 Petition.  The fees apply to initial H-1B or L-1 employment – change of status and change of employer cases, in the same instances that require the Fraud Prevention Fee.  It is not required if an employer is filing to extend an H-1B or L-1 employee’s status.

What employers are subject to the new fee increase? The fee increase apply to employers who employ 50 or more employees in the USA with more than 50% of its employees in the USAS in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status. Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed.  It is noted that L-2 dependents of L-1 employees, are eligible for employment authorization documetns (EADs).  The USCIS recognized the difficulty for employers in adding such individuals into the count, but concluded that it is required under the law.  We are interpreting that this means that an employer who hires an L-2 dependent that has work authorization will be required to pay an additional fee of $2,250 to continue to employ them where an EAD is required for authorized employment.

USCIS will issue RFE’s: According to the August 19, 2010 public teleconference that USCIS held, cases filed without the new fee will not be rejected.  USCIS will issue Requests for Evidence (RFEs) on the cases that the new fee appears to be required.  Where USCIS does not any notation or attached evidence with the initial filing, it may issue an RFE to determine whether the petition is covered by the  Public Law. An RFE may be required even if such evidence is submitted, they advise, if questions arise.

Recommendations: USCIS encourages employers to include the additional fee as a separate check rather than adding this amount to the other filing fee checks, making it easy to simply return a check rather than reject an entire case filing for an incorrect filing fee.  Until such time as the form is revised, it has been recommended that the petitioner include a notation of whether the fee is required in bold capital letters at the top of the cover letter and, if it is required, pertinent documentation.

Issues: There are questions pertaining to L-1 petitions under the L-1 blanket program and how to work this out abroad at the US Consulates.  We will continue to keep you informed on this issue.

An interesting sidebar that came to light yesterday on the fee increase had to do with the fact that since it is common knowledge that the law targets Indian staffing agencies and consulting companies as well as medium to large IT employers, that it is probably a violation of the General Agreement on Trade and Services, an agreement that is vital to ensuring US companies are able to employ many of the 6,000,000 Americans working around the world.

Further, reported by Computerworld, the Department of State revealed this week that the U.S. is reviewing whether a law that increases some visa fees is compliant with World Trade Organization (WTO) rules and are also talking to Indian officials about the law and its implications.  India’s Commerce Secretary Rahul Khullar told reporters in Delhi on Tuesday that the visa fee hike is incompatible with the WTO.

We encourage you to sign up to receive our free information and join our worldwide readership.

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Immigration Solutions provides US and global visa services to individuals and employers throughout the USA and abroad.  We specialize in business immigration and have a depth of experience in the IT, healthcare, arts, entertainment, and sports industries, amongst others.  Our services include complex business visas for investors, multinational managers, skilled professionals and outstanding individuals in science, business, education, athletics and entertainment.  We additionally provide employer compliance consulting services on proper I-9 (Employment Eligibility Verification) auditing, training, and work with our clients to develop compliant immigration policies and procedures.  We offer these services, as well, to government contractors and advise on FAR E-Verify enrollment and compliance issues.

President Barack Obama on Friday signed a bill directing $600 million more to securing the U.S.-Mexico border, a modest election-year victory that underscores his failure so far to deliver an overhaul of immigration law from Congress.

Obama signed the bill Friday in a low-key Oval Office ceremony alongside Homeland Security Secretary Janet Napolitano. There were cameras present, but no reporters. The action came a day after the Senate convened in special session during its summer recess to pass the bill.

“Look, only Congress can pass a bill,” Napolitano said. “The president can advocate. He can get them to the table, as he has in the Roosevelt Room upstairs. He can implore. He can provide ideas. He can agree to a framework, as he already has. He can give a major address that spells out what’s needed in a bill, but only Congress can pass a bill.”

The new law will pay for the hiring of 1,000 more Border Patrol agents to be deployed at critical areas, as well as more Immigration and Customs Enforcement agents. It provides for new communications equipment and greater use of unmanned surveillance drones. The Justice Department gets more money to help catch drug dealers and human traffickers.

“Efforts to overhaul our broken immigration system have once again taken a back seat to appeasing anti-immigrant xenophobes, as Congress passed another dramatic escalation in border enforcement with very little evidence that past escalations have been effective,” said Margaret Moran, president of the League of United Latin American Citizens.

More on this

Obama’s Statement on Passing the Border Security Bill

USA Today

1. Want to stay in touch?  The InFOCUS Immigration Solutions August newsletter is available for your viewing here.
2. We link to an interesting letter to President Obama on Immigration Reform that says it all very well
3. USCIS to permit EAD (Employment Authorization Documents) to be expedited through the Nebraska Service Center (NSC) if they have been p ending for more than 60 days under particular circumstances.  Please contact our office for more information on this should you require assistance with expediting your case.
4. Department of State announces that they will phase in the implementation of an online, electronic Immigrant Visa form, the DS-260 that will eventually replace the DS-230 form. Federal Register 75 FR 45475.
5. Just yesterday, the US Senate passed a border security spending bill containing a provision that will be paid for by increasing fees for employers that have a large H-1B or L-1 foreign worker presence in their workforce. Specifically, the bill would increase total filing and fraud prevention fees by an incredible $2000 or more for petitioners with a U.S. workforce of more than 50 percent H-1B or L-1 nonimmigrants. The provision would be applicable to employers with 50 or more employees in the United States. The bill would also provide $600 million in emergency funds to increase security along our borders with Mexico by hiring more than new 1,000 border patrol and immigration enforcement officers, and increasing unmanned drone surveillance operations in the region.  For more on this
6. The USCIS will start receiving email inquiries on I-90 and N-400 forms if the wait time has exceeded the designated processing times.
7. The Department of Labor (DOL) bans the Asian Journal from the H-1B Program and agrees to pay $516, 500 in back pay to 32 employees plus a $40,000 penalty.

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The Obama Administration is considering ways that it could act without Congressional approval  – some options to provide immigration relief, should comprehensive immigration reform legislation not pass.

In an internal memo to Alejandro N. Mayorkas, the Director of USCIS, from the Offices of Chief Counsel and Policy and Strategy lay out some suggestions that USCIS might undertake within the current structure of the law without having to wait for Congress to pass legislation. Some of the key suggestions include the following:

1. Provide work authorization for H-4 dependent spouses if the H-1 applicant has an application for permanent residence and has extended beyond the 6 year limit. Currently H-4 dependents have to wait for the filing of an I-485 application to get work authorization, however, that can’t be done unless the priority date is current.

2. Expand the ‘dual intent” doctrine to non-immigrants such as TN’s, F-1, O and P and E visa holders. This could be especially helpful for applicants in TN status (such as registered nurses) who have delayed filing an I-140 petition because of concerns about traveling since TN is not currently a “dual intent” status.

3. Create a grace period ranging from 45 to 90 days for most of the non-immigrant categories. This would be especially helpful for H-1B applicants who wish to do an H-1B transfer if they lose a job and soon find a new job.  Currentf law holds the person to be “out of status” and subjects the H-1B applicant to returning to their home country to get a new visa stamped.

4. Eliminate unlawful presence (3 year and 10 year bar) for adjustment of status applicants. This would allow applicants who are subject to the bar on re-entry to freely travel and re-enter the U.S. to resume their application.

5. Expand premium processing to all employment-based cases. USCIS noted that they do not have a current backlog in cases so they are equipped to expand their premium processing unit.

6. Utilize deferred inspection to applicants whose removal is not in the public interest. This allows a “stay” in the U.S. to buy time for the applicant to have some form of legislative relief in the future.

7. Expand the EB-5 investor visa program. This program provides permanent residence to foreign nationals who invest in a U.S. business that creates at least 10 jobs, however, the program has been underutilized. The USCIS views this program as an important tool to revitalize the U.S. economy.

8. Extend work authorization on EADs when an extension is filed. This would allow automatic 240-day work authorization for an applicant who files an EAD extension before the current one expires. Currently the renewed EAD must be approved by the time the current one expires for the foreign national to continue to lawfully work.

USCIS believes these options are immediately at their disposal or can be quickly implemented through notice in the Federal Register based upon current authority. There is no word yet whether USCIS will implement these suggestions.

Supporters of comprehensive immigration reform are certain to welcome any effort by the Obama administration to unilaterally open pathways to citizenship for many currently in the country illegally. But the draft is also sure to outrage immigration-restriction groups.

Christopher Bentley, a USCIS spokesperson, said that internal memos help the agency “do the thinking that leads to important changes; some of them are adopted and others are rejected” and that “nobody should mistake deliberation and exchange of ideas for final decisions.”

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Immigration Solutions provides US and global visa services to individuals and employers throughout the USA and abroad.  We specialize in business immigration and have a depth of experience in the IT, health care, sports, and arts & entertainment, amongst others.

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• Date: Thursday, March 18, 2010
• Time: 11am – 12 Noon  PST.  For the time in your area: http://www.timezoneconverter.com/cgi-bin/tzc.tzc
• RSVP:      info@immigrationsolution.net
• Who should Attend:  Employers who sponsor L-1A employees and employees who are going through the L-1A adjudication process
• Agenda:

1. What is the Intracompany Transferee L-1A Manager/Executive Visa?
2. What are the requirements?
3. What is the eligibility criteria to obtain an L-1A visa?
4. Why is it so difficult to obtain an L-1A visa in today’s business climate?
5. The insidious RFE’s and Intensified Scrutiny
6. Open Q&A

The regulations have not changed for obtaining L-1A visas, but the good old days are certainly over when entrepreneurs told you how easily they had obtained their L-1A visas and green-cards via the L route.  Now, you are more likely to hear people who have received L-1A visa approvals talk about what good jobs their attorneys did in ensuring compliance with the stringent standards that are being meticulously enforced by the USCIS.

Our Speaker for this Event will be:  Thomas J. Joy, Esq, Supervising Attorney, Immigration Solutions.  Formerly, Managing Partner Hirson Wexler Perl, Los Angeles, CA; Senior Attorney, Fragomen, Del Rey, Bernsen & Loewy; Supervising Attorney, Law Office of Bernard Wolfsdorf

This is a free teleconference for our clients and readership.  Dial in and access information will be provided a few days in advance of the conference call.  RSVP now to reserve your place on the call.