News from the Alliance of Business Immigration Lawyers Vol. 6, No. 8B • August 15, 2010
Headlines:
1. President Signs Border Bill That Increases Fees for Certain Companies Using Many H-1B, L Workers – The Senate passed a border enforcement funding bill that would offset costs by raising fees for certain H-1B and L petitions.
2. Dep’t of State Finalizes Rule on Electronic Application Alternative for Immigrant Visas – The agency has introduced an electronic application process for immigrant visa applicants to eventually replace the current paper-based application process.
3. Dep’t of Labor Releases Round 11 of Permanent Labor Certification FAQ – Topics include the lack of an expedited filing option, documenting the use of an employee referral program, the effects of unsolicited documentation, and the definition of a “business day.”
4. USCIS Changes Filing Location for Several Forms – USCIS has changed the filing location and updated filing procedures for entrepreneurs, immigrant workers, and extensions or changes of status.
5. New Publications and Items of Interest – New Publications and Items of Interest
6. Member News – Member News
7. Government Agency Links – Government Agency Links
Details:
1. President Signs Border Bill That Increases Fees for Certain Companies Using Many H-1B, L Workers
On August 13, 2010, President Barack Obama signed into law a border enforcement funding bill, H.R. 6080, that would offset certain border security costs by raising fees for certain H-1B and L petitions. The bill was passed in the House of Representatives by voice vote on August 10, and was passed in the Senate by unanimous consent on August 12.
The new law raises by $2,250 for L nonimmigrants the “filing fee and fraud prevention and detection fee” paid by companies that employ 50 or more employees in the U.S. if more than 50 percent of the applicant’s employees are nonimmigrants admitted on L or H-1B visas. The law also raises by $2,000 for H-1B nonimmigrants the fee paid by companies that employ 50 or more employees in the U.S. if more than 50 percent of the applicant’s employees are nonimmigrants admitted on L visas. The fee increases will take effect as soon as U.S. Citizenship and Immigration Services issues implementing instructions and will stay in effect until September 30, 2014.
Indian businesses such as Infosys and Tata are expected to feel the bill’s primary impact, and some feel it unfairly targets them. Nasscom, a trade association representing high-tech Indian companies, reportedly predicted that the legislation will result in a decrease in foreign investment in the U.S. and that educated foreign workers will seek jobs in other countries instead. The American Council on International Personnel reported that the Indian government is unhappy with the bill.
Sen. Charles Schumer (D-N.Y.) said in remarks before Senate passage of the bill, however, that “[i]f you are using the H-1B visa to innovate new products and technologies for your own company to sell, that is a good thing regardless of whether the company was originally founded in India, Ireland, or Indiana. But if you are using the H-1B visa to run a glorified international temp agency for tech workers in contravention of the spirit of the program, I and my colleagues believe that you should have to pay a higher fee to ensure that American workers are not losing their jobs because of unintended uses of the visa program that were never contemplated when the program was created.”
The full text of the bill is available at http://www.govtrack.us/congress/billtext.xpd?bill=h111-6080. Commentary on the bill’s impact on Indian IT companies is available at http://cyrusmehta.blogspot.com/2010/08/silence-in-time-of-torment-throwing.html.
2. Dep’t of State Finalizes Rule on Electronic Application Alternative for Immigrant Visas
The Department of State has issued a final rule, effective August 3, 2010, on electronic applications. The agency has developed and introduced an electronic application process for immigrant visa applicants to eventually replace the current paper-based application process, which consists of Parts 1 and 2 of Form DS-230, Application for Immigrant Visa and Alien Registration. The Department will continue to accept the DS-230 when necessary, but plans to eliminate the DS-230 eventually and replace it with the DS-260, Electronic Application for Immigrant Visa and Alien Registration, which is designed to be completed and signed electronically.
The final rule’s supplementary information explains that the procedure is the same for the immigrant visa applicant, except that he or she will not be required to print a form to take to the visa interview. All information entered into the DS-260 will be available to the National Visa Center and to the consular officer at the time of application processing and interviewing. The applicant must sign the DS-260 electronically at the time of submission by clicking a “Sign and Submit Application’ box in the application. The applicant will also be required at the interview to swear under oath that the information provided on the DS-260 is true, and to provide a biometric signature. Photos, passports, and fingerscans collected as part of the application process will identify the applicant.
A third party may assist the applicant in preparing the DS-260, but the applicant must electronically sign the application. The applicant must identify in the application any third party who has assisted in the preparation of the DS-260.
The final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-19046.pdf.
3. Dep’t of Labor Releases Round 11 of Permanent Labor Certification FAQ
The Department of Labor’s Office of Foreign Labor Certification released frequently asked questions on permanent labor certification, round 11, on August 3, 2010. Topics include the lack of an expedited filing option, documenting the use of an employee referral program as a step in recruitment for a professional occupation, the effects of submitting unsolicited documentation, and the definition of a “business day.”
The FAQ is available at http://www.foreignlaborcert.doleta.gov/pdf/PERM_Faqs_Round_11_08032010.pdf.
4. USCIS Changes Filing Location for Several Forms
U.S. Citizenship and Immigration Services (USCIS) has changed the filing location and updated filing procedures for several forms, including among others the Immigrant Petition for Alien Entrepreneur (Form I-526), the Immigrant Petition for Alien Worker (Form I-140), and the Application to Extend/Change Nonimmigrant Status (Form I-539). Details are available for the I-526 at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=0eba904c2593a210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD; for the I-140 at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e1d8904c2593a210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD; and for the I-539 at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=9d49904c2593a210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.
Back to Top
5. New Publications and Items of Interest
New USCIS Web features; Spanish enhancements. U.S. Citizenship and Immigration Services (USCIS) announced on August 2, 2010, the launch of new Web features intended to expand users’ access to case information. The features include a new online inquiry tool and tailored case status information, as well as new features for Spanish-speaking users available at http://www.uscis.gov/portal/site/uscis-es. See details at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1bb8d3e85433a210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.
Border-related interactive discussion site. U.S. Customs and Border Protection has launched an interactive social media Web site on border-related developments. Users can complete a profile and join the discussion, including posting blog entries, photos, and videos. The site is available at http://ourborder.ning.com/.
6. Member News
Robert F. Loughran (bio: https://www.abil.com/lawyers/lawyers-loughran.cfm) co-authored an article in the July/August 2010 Docket of the Association of Corporate Counsel, “Conduct Form I-9 Audits and Protect the Attorney-Client Relationship,” at pages 79-87. Also, on July 30, 2010, an article Mr. Loughran co-authored, “Practical Implications Of The DHS Final Rule On Electronic Form I-9 Signatures And Storage,” was published at http://www.ilw.com/articles/2010,0730-Loughran.shtm.
On August 20, 2010, Mr. Loughran will present “On the Horizon: Workplace Compliance -the Impact of Heightened Enforcement – With or Without Immigration Reform,” at the 2010 Annual Austin Human Resources Management Association Conference.
On August 27, 2010, the American Immigration Lawyers Association will present a day-long conference in Boston, Massachusetts, on the EB-5 immigrant investor program. Three ABIL members (H. Ronald Klasko [bio: https://www.abil.com/lawyers/lawyers-klasko.cfm], Bernard Wolfsdorf [bio: https://www.abil.com/lawyers/lawyers-wolfsdorf.cfm], and Stephen Yale-Loehr [bio: https://www.abil.com/lawyers/lawyers-loehr.cfm]) will speak at the conference. For more details, see http://www.aila.org/content/default.aspx?docid=31749.
Articles on a variety of business immigration law topics by Alliance of Business Immigration Lawyers (ABIL) members are available on ABIL’s Web site at https://www.abil.com/newsletters_articles.cfm.
7. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do
Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm
Department of State Visa Bulletin: http://travel.state.gov/visa/bulletin/bulletin_1360.html