Summer is rapidly coming to a close as evidenced by the U.S. Congress taking their annual summer recess. There have been lots of interesting things happening this month and many changes have also taken place. One of the biggest changes that has created a buzz all over the news and blogosphere is the $2000 fee hike for certain H1B and L1 petitions. The United States Congress, in a largely bi-partisan vote, passed a bill which was signed by President Obama on August 13, 2010, which, among other things, imposes an additional $2000 H1B filing fee and $2250 L1 filing fee for certain companies that file H1B and L1 applications on behalf of foreign professional workers. This filing fee is in addition to the normal filing fees.
Specifically, the bill would increase total filing and fraud prevention fees by an incredible $2000 to $2250 for petitioners with a U.S. workforce of more than 50 percent H1-B or L-1 nonimmigrants. The provision would be applicable to employers with 50 or more employees in the United States. The bill is designed to provide $600 million in emergency funds to increase security along our borders with Mexico, hiring more than new 1,000 border patrol and immigration enforcement officers, and increasing unmanned drone surveillance operations in the region. Many Senators returned to Washington DC from their August recess to vote on the bill.
The U.S. House of Representatives passed the legislation to toughen U.S.-Mexico border security despite anger in India (at whom the legislation appears to be aimed) at the steep increases in work visa fees proposed to pay for the new measures. There was some anticipation about the consolidation or any amendments to the bill, but nothing came about. Indian IT companies will be the worst affected by this bill, costing them between $200 to $250 million per year. Though it seems very unfair from a trade practice standpoint, the U.S. defends it saying that they want to encourage the hiring of U.S. workers and the growth of companies working in the U.S. with more local workers, and to create jobs. The bill took effect immediately upon being signed by the President.
On the other side of the immigration debate the Obama Administration is considering ways that it could impact immigration relief without Congressional approval – providing some options, should comprehensive immigration reform legislation not pass.
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, P and E visa holders.
3. Create a grace period ranging from 45 to 90 days for most of the non-immigrant categories.
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 of cases so they are equipped to expand their premium processing unit.
6. Utilize deferred inspection for 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 EAD one expires for the foreign national to continue to lawfully work.
Other Developments in Immigration Law:
USCIS Changes Filing Location for Form I-129F, Petition for Alien Fiancé(e)
USCIS on August 3, 2010 announced a change in filing location instructions and addresses for the Petition for Alien Fiancé(e) (Form I-129F). Beginning Aug. 3, 2010 all Form I-129F petitions being filed by a U.S. citizen on behalf of a fiancé(e) or spouse must be submitted to the USCIS Dallas Lockbox facility. The Vermont and California Service Centers will forward incorrectly filed petitions to the USCIS Dallas Lockbox for a period of 45 days until Sept. 17, 2010. After Sept. 17, 2010, petitions and fees submitted at the Service Centers will be returned to the applicant, with a note advising them of the correct filing location.
Fee for Visa Waiver Program Increases from September 8
Beginning September 8, 2010, foreign nationals planning to enter the United States under the Visa Waiver Program (VWP) will need to pay a new fee of US$14.00 when they submit an application for permission to travel through the Electronic System for Travel Authorization (ESTA).
State Department Announces Online Immigrant Visa Application
The US Department of State (DOS) has announced Form DS-260, a new, completely electronic application for foreign nationals seeking immigrant visas at U.S. consulates abroad. Form DS-260 is expected eventually to replace Form DS-230, the paper-based immigrant visa application.
Immigration Articles and Other Fun Stuff:
Now for the regulars – this month’s Immigration Article entitled ‘Overstay, Out-of-Status and Unlawful Presence: What Do These Terms Mean and How Can They Affect You? ‘ tells the meaning of the terms – Overstay, Out-of-Status and Unlawful Presence and also explains how they might affect you. Also check out our In Focus section for this month, ‘When is Your Priority Date Becoming Current: Should You Check USCIS Processing Times or DOS Visa Bulletin?’ that will help you understand the differences between the USCIS Processing Times and DOS Visa Bulletin, their significance and how do they relate.
Every month we introduce a new and interesting question for our opinion poll. Last month’s poll results indicate that 55.56% of the respondents believe that USCIS will not receive 65,000 H-1B petitions before the end of this fiscal year. We appreciate that people take interest in the opinion question and cast their vote to give us their feedback. Keep it up! And continue to cast your vote to express Your Opinion.
We congratulate Simbiat Monsur for winning last month’s Immigration Quiz. Again, we received a significant number of responses from our readers, who talked about various solutions to support their position, but Simbiat Monsur gave the correct answer and won a free online consultation to discuss the concerned Immigration issues. So it’s time to get ready for this month’s quiz. If you know the correct answer your name might be featured in next month’s newsletter. All the Best!!!
See you next month with a lot more noise from the Immigration World!