As reported by the Legal Action Center (AILA).  Broadgate et al. v. USCIS et al., No. 1:10cv00941 (D.C.D. filed June 8, 2010)

Three employers (software developers and IT services firms) and two not-for-profit trade associations are challenging the Neufeld memo in federal district court. The plaintiffs allege that USCIS issued the memo in violation of the Administrative Procedure Act’s notice and comment requirements; that USCIS failed to perform a Regulatory Flexibility Act analysis; that the memo is inconsistent with existing regulations addressing the employee-employer relationship and the term “contractor” and conflicts with the plain language of the INA; and that it is arbitrary and capricious. Plaintiffs ask the court to preliminarily and permanently enjoin USCIS from implementing the memo.

AILA sent a detailed letter to USCIS Chief Council, Roxana Bacon, in which it expressed concern about the substance of the January 8, 2010 H-1B memo and noted that its issuance was in violation of the Administrative Procedures Act’s notice and comment requirements. The letter primarily focuses on recent USCIS decisions that unlawfully find that individuals with controlling or substantial interests in a petitioning U.S. company or its foreign parent company cannot — in most cases — be a beneficiary of a nonimmigrant or immigrant employment-based petition.

We will continue to keep you posted on this topic.

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USCIS Proposes Fee Increase

USCIS has published a Proposed Rule in the Federal Register to increase immigration fees.  The cost of applying for a green card will increase from $930 to $985.  The application fee for a family petition (I-130) will be $420, up from $355.  The cost of an I-140 employment-based petition will rise over $100 and premium processing fees will increase by 22.5%.  The application for employment authorization would increase to $380 from $340. A separate fee for fingerprints and other biometrics with many applications would increase to $85 from $80.  Among several new fees, officials said, will be a $6,230 charge for foreigners proposing to invest $500,000 or more in businesses to create jobs in the United States.

The NY Times reports that Alejandro Mayorkas, director of  USCIS, said the fee increase was necessary because declining applications for documents in the past two years had lowered revenues and left his agency — which is 90% financed by fees — with a budget shortfall of about $200 million for the coming fiscal year.

The increases come as Congress has put off immigration legislation and an Arizona law that makes it a state crime to be in the country illegally goes into effect July 29.

The timing makes Clarissa Martinez wonder what message the fee increases sends to immigrants trying to take a legal path into the country.  “It begs the question of Congress: If we want these people to take these steps, we have to make sure that we’re not pricing them out of their reach,” said Martinez, director of immigration and national campaigns for the National Council of La Raza, a Hispanic civil rights group.

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