USCIS has released FAQs on PL 111-230 that requires certain employers to pay additional fees for L-1 and H-1B initial and change of employer filings if the employer has 50 or more US employees with at least 50% of whom are in H-1B, L-1A or L-1B status.

The additional fee for an H-1Bs is $2,000 and $2,250 for L-1A and L-1B employees.  The fee does not apply to extension requests filed by the same employer for the same employee.

The term “employer” for purposes of implementing PL 111-230 is found at 8 CFR 214.2(h)(4)(ii) and states…A person firm or corporation, contractor or other association or organization in the USA which:

1. engages a person to work within the USA
2. has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee; and
3. has an Internal Revenue Service Tax ID #

Note that the employer definition above does not extend or authorize its application beyond PL 1111-230 and the H-1B rules and regulations.  Additionally, all employees, whether full-time or part-time, will count towards the  calculation of whether an employer is subject to the new fee.  This fee does not apply to dependents in H-4 and L-2 classification.

We link to the FAQs

Should you have any questions concerning this or wish to retain our office or request a proposal, please contact us.

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

1) Prevailing Wage Determinations:   The Department of Labor (DOL) advised today that a prevailing wage determination (PWD) obtained for an H-1B case can be used for a PERM case (and vice versa) if it is still valid and for the same job opportunity.  The announcement was made in the AILA/DOL Stakeholder Telephone Conference of 6/22/10 that can be viewed on the AILA website.  This will be extremely useful and will eliminate the long wait time in obtaining a PWD for DOL National for a PERM case when all information in re the job and its requirements remain identical.

2)  Current H-1B Cap Count as of 6/18/2010:  22,900 cases have been received under the general H-1B cap.  9,700 cases have been received against the advanced US degree cap of 20,000.

3)  CBP Releases Port of Entry Contact information:   http://www.cbp.gov/xp/cgov/toolbox/contacts/ports/

4)  iCERT now posts PERM Processing Times: http://icert.doleta.gov/#fragment-2

5)  Life Along the Mexico-US Border Photo Essay:  http://www.washingtonpost.com/wp-srv/world/interactives/mexicoborder/

6)  DHS Releases Fact Sheet on  Southwest Border “Next Steps”

7)  E-Verify no longer voluntary for Utah Employers:

We will cover these topics and many more in greater detail in our free July newsletter.  If you haven’t signed up to receive it, you can do so here

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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An employer may make “short-term placement(s) or assignments” to new places of employment in areas of intended employment not listed on the original LCA w/o filing a new LCA. Short term placements may occur only under certain conditions for strictly limited periods.

1)      The employer has satisfied all obligations under the existing LCA covering the H-1B worker

2)      There is no strike or lockout at the new worksite in the occupational classification of the H-1B worker; and

3)      The employer continues to pay the required wage based on the original LCA and also pays all lodging, travel, meals and incidental or misc expenses associated with the worker’s stay at the new location, for both workdays and non-workdays.

Short-term placement at any worksite or combination of worksites in a new area may not exceed 30 workdays in a one-year period, or under certain circumstances, 60 workdays.  Workdays counted toward the limit may be nonconsecutive and may be at different specific worksites within the area of employment.  Weekend, holiday or other non-workdays do not count.  Thus, the 30-workday limit would typically be about 6 weeks.

It is recommended that you obtain the advice of an experienced immigration attorney who understands this issue. If you are not a client of our office and would like to be, please contact me directly.

Leslie Davis, Managing Director
Immigration Solutions
D 562 612.3996
Our News: http://www.immigrationsolution.net/newsletter-April-2010.php

Yes – it’s the season to start preparing H-1B “cap” filings again for Fiscal Year 2011.

The USCIS FY starts on October 1st each year. Thus, fiscal year 2011 starts on October 1, 2010 and runs through September 30, 2011.  Regulations permit cap subject filings 6 months in advance of the October start date for cases to be received at USCIS on April 1, 2010.

The following are suggestions to help you for the upcoming cap season.  Our suggestions are based on existing law, as well as USCIS guidance and our experience from prior years.

USCIS frequently issues updated guidance with slight procedural variations for each fiscal year. For example, the LCA process changed in July – note it is taking sometimes up to 7 days to obtain an approval.  In case of a denial such as problems with verifying an employer’s EIN# which is quite common unfortunately, obtaining an LCA may take even longer.

Immigration Solutions is accepting H-1B cases for FY2011 at this time.  We have a team of experienced attorneys, case managers and paralegals in our business unit who are currently working on new H-1B cap-subject cases.  The cases will be prepared in advance and will be transmitted for delivery on March 31, 2010, for USCIS filing on April 1^st.  In order to file, it is necessary to have an appropriate job offer from a U.S. employer who is willing to sponsor the H-1B case.

The USCIS has increased scrutiny on all H-1B cases and imposed tougher standards, particularly those filed in the IT consulting industry and for software companies. These new standards also affect healthcare staffing agencies that place workers at 3^rd party jobsites.   The standards for approval have become more stringent. It is necessary to recognize this trend when preparing new H-1B cap cases for filing.  For this reason, we recommend that you work with an experienced law firm that specializes in employment-based immigration. Click here to contact us for your new H-1B case now.

NOTE:  Immigration Solutions is sponsoring a free teleconference on February 10^th that will address the tougher standards in the H-1B category.  For more on this and to RSVP, we link to our blog

There’s been alot of chatter today about the introduction of Rep. Gutierrez’ (D-IL) immigration bill that is called Comprehensive Immigration Reform for America’s Safety and Protection (CIR ASAP).

Yesterday, Rep. Gutierrez stated, “We have waited patiently for a workable solution to our immigration crisis to be taken up by this Congress and our President.  The time for waiting is over.”

To address some of the key points:

Backlog Reduction: This would be  a recapture of unused employment-based visas from  previous years (1992 – 2008) with an allowance for future unused visas to roll over the next year; exempting spouses and children from the annual cap; increasing the country quotas; the ability to file for AOS (adjustment of status; i.e. green-cards) before a visa number is available by paying a fee of $500, even thought a visa cannot be issued until a visa number is available.  This does, however, allow for work authorization, travel authorization and maintenance of status.

Employment Verification: Would make E-Verify work verification mandatory for all employers by phasing in current employees and new hires; would impose additional pealties on employers’ failure to follow the E-Verify program.

H-1B and L-1 Nonimmigrant Visas: Would impose requirements on employers to recruit US workers before applying for an H-1B and would increa3se penalties for H-1B violations.  Would create penalties for L-1 violations.

The Undocumented: Would create a 6-year ‘conditional’ non-immigrant status for undocumented (illegal) foreign nationals in the USA.  This would include work authorization and travel authorization; would waive unlawful presence bars and provide a path to permanent residence (green-card) and citizenship.

The Immigration Policy Center has an excellent 6-page more detailed review of the bill which we link to.

AILA applauded the introduction of Rep. Gutierrez’ Bill and stated, “We know how dedicated Rep. gutierrez is to immigration reform,” commented Bernie Wolfsdorf, president of AILA.  “Gutierrez has long been a strong and vocal leader in the CIR movement.  We look forward to analyzing this new CIR bill and hope to work with him and other members of Congress to fix our nation’s dysfunctional immigration system and help spur the country back to economic recovery.”

AILA further stated:  Already, the Congressional Progressive Caucus, the Congressional Asian Pacific American Caucus and members of the Congressional Black Caucus have endorsed the bill as a solution to both stem illegal immigration and promote legal migration that will protect and strengthen our nation’s economic and national security.

Gutierrez explained at his press conference yesterday that the Senate will still take the lead on debating immigration reform with a bill to be introduced by Sen Charles Schumer (D-NY), Chair of the House Judiciary Subcommittee on Immigration.  Janet Napolitano (DHS Secretary) has indicated that they have provided extensive technical assistance to Schumer and his staff as they draft the bill that is predicted to be introduced early 2010.

We will continue to report on any and all news and progress on the immigration reform front.

If you’re interested in more reading….Homeland Security Today NY Times ABC News The Hill

The DOL has designated a centralized Washington, DC location to handle Prevailing Wage Requests (PWRs) for all case types as of January 1, 2010.

PWRs for PERM, H-1Bs, H-1B1s (Chile and Singapore), H-2Bs and E-3s (for Australians) will be prepared on the PWR form that DOL rolled out for the H-2B program, form ETA-9141.  DOL has not yet offered an electronic version of this form so there isn’t any way to submit it online, neither are they accepting faxes.  If you subscribe to an immigration forms program, such as INSZoom, you can access a fillable version there.

All PWRs are to be mailed to the OFLC’s NPWHC in Washington, DC. at:  US Department of Labor-ETA, National Prevailing Wage and Helpdesk Center, Attn:  PWD Requests, 1341 G Street, NW, Suite 201, Washington, DC  20005-3142.

Here is AILA’s advance copy of the Federal Register Posting.

We’ll see how this centralized process goes.  To roll out a new system without electronic submission doesn’t make much sense.  Let’s keep our fingers crossed.

Reported in Computerworld

USCIS officials are taking H-1B enforcement from the desk to the field with a plan to conduct 25,000 on-site inspections of companies hiring foreign workers over this fiscal year.

The move marks a nearly five-fold increase in inspections over last fiscal year, when the agency conducted 5,191 site visits under a new site inspection program. The new federal fiscal year began Oct. 1.

Tougher enforcement from U.S. Citizenship and Immigration Services comes in response to a study conducted by the agency last year that found fraud and other violations in one-in-five H-1B applications.

In a letter to U.S. Sen. Charles Grassley (R-Iowa), Alejandro Mayorkas, director of the Citizenship and Immigration Services, said the agency began a site visit and verification program in July to check on the validity of H-1B applications. Mayorkas’ letter was released on Tuesday by Grassley.

“The inspection program determines] whether the location of employment actually exists and if a beneficiary is employed at the location specified, performing the duties as described, and paid the salary as identified in the petition,” said Mayorkas in his letter to Grassley.

…As part of its enforcement effort, Mayorkas said the Citizenship and Immigration Services has hired Dunn and Bradstreet Inc., which provides credit reports among other services, to act as “an independent information provider” and help verify information submitted by companies hiring H-1B workers.

Links to other related articles:

ICE Asst. Secretary Announces 1,000 New Workplace Audits

Anger up, Visas Down

Tech workers take H-1B case to supreme court

Share your thoughts with us on this.

Senators Bernard Sanders (I-VT) and Charles Grassley (R-IA) announced that they will introduce a bill to restrict the ability of employers to hire non-immigrant workers if the employer conducts “mass layoffs” under the Worker Adjustment and Retraining Notification (WARN) Act. The new bill, titled the Employ America Act (EAA), will be introduced in the U.S. Senate soon.

EAA would require employers filing temporary worker petitions to attest that they have not had a “mass layoff” in the 12 months immediately preceding the foreign worker’s proposed hire date and that they do not intend to have a mass layoff in the future. In addition, if an employer does conduct a mass layoff, all existing visas approved in the 12 months before the employer issued a “WARN Notice” would expire 60 days after the notice. Affected foreign nationals would be required to leave the United States within the 60-day period.  We link to the Senate Press Release

The Warn Act defines a massive lay off as:  A reduction in force that will result in employment loss at a single employment site during any 30-day period of (1) at least 500 employees, not including part-time employees; or (2) 50 to 499 employees, excluding part-time employees, if the laid-off employees constitute at least 33% of the employees at the site, also not including part-time employees. For purposes of WARN, an employment loss is (1) an employment termination, other than a discharge for cause, a voluntary departure or retirement; (2) a layoff that exceeds six months; or (3) a reduction in an employee’s work hours of more than 50% in each month of any six-month period. However, certain transfers to other employment sites are not considered to be employment losses.  An employer is not required to issue a WARN Notice if a mass layoff is the result of the completion of a particular project or undertaking, if the workers were hired with the understanding that their employment would be of a temporary duration.

The good news is – with comprehensive immigration reform (CIR) on hold until next year, it is doubtful that this will pass although it still could be introduced in another piece or legislation.