USCIS Announces Final Rule Adjusting Fees for Immigration Benefits

October 8, 2010

On September 23, 2010 The U.S. Citizen and Immigration Services (USCIS) announced a final rule to adjust fees for immigration applications and petitions effective November 23. Due to USCIS’s large differential between costs and expected revenue, the final rule is necessary to bridge this gap. It will increase overall cost by an average of approximately 10 percent but doesn’t increase the cost for the naturalization application. With the USCIS being a primarily fee based organization it is required to conduct fee reviews every two years and the final rule wraps up the review that began in 2009.

Other new fees included in the final rule include: regional center designations under the Immigration Investor (EB-5) Pilot Program, civil surgeon designation, recovery of USCIS costs to process visas granted. Certain applications are also now applicable for fee reduction and new availability due to the final rule. Furthermore the final plan eliminates fees completely for armed forces members and veterans who wish to file an application for naturalization, application for certificates of citizenship, and requests for hearing on a decision in naturalization proceedings. Due the large amount of public remark over the final rule, the Department of Homeland Security (DHS) allowed for a 45 day comment period after its release and received 225 comments. For further information about the public comments or the details of the final rule visit USCIS and the Federal Registrar.

Future Rule Tightening by the U.S. Department of Labor

August 14, 2008

The U.S. immigration system is constantly changing. At a recent stakeholders meeting, the U.S. Department of Labor (DOL) announced several upcoming changes to the Labor Certification and Labor Condition Application process.

Expect More PERM Audits
The DOL announced that with Backlog Elimination Centers (BECs) closing, the DOL will now be now focusing its resources on parts of the PERM regulations that were not focused on earlier, including audits and supervised recruitment. Since April 2007, Immigration attorneys have seen a spike in PERM audits by the DOL. It looks like Audits are going to be commonplace from now on. DOL announced that both targeted and random PERM audits will continue. The DOL stated that the 60 to 90 day timeframe discussed in the preamble to the PERM regulation is not binding and is irrelevant if there is an audit. Therefore, once a case has gone into audit, it will most likely not be adjudicated within the 60 to 90 timeframe.

As of July 15th, the DOL was working on cases that have not been audited with a priority date of April 2008. Currently, there is only one Audit queue. The DOL does not maintain separate queues for random and targeted audits. As of Mid July, DOL was working on audited cases with Priority dates of March 2007.

H-1B LCAs will be scrutinized more closely
The DOL also stated that Labor Condition Applications (LCAs) associated with the H-1B filing process will be scrutinized more closely beginning this fall. Currently LCAs are approved within a matter of seconds once they are applied for through the DOL’s online application system. The DOL expects such applications to take up to 7 days to be reviewed and certified by the DOL. If alternate wage surveys are submitted with the LCAs, the certification times would be even longer. Therefore, the days of starting a new H-1B petition in a couple of days pursuant to a change in employer will soon come to an end.

UPDATE: USCIS Offers Premium Processing for I-140s on a Limited Basis

June 12, 2008

As I had recently mentioned in another one of my other recent blog postings, the American Immigration Lawyers Association (AILA) had reported that the U.S. Citizenship and Immigration Service (USCIS) was going to resume premium processing of I-140 applications for certain individuals. Today, the USCIS released an update and fact sheet addressing this issue.

In its update, the USCIS confirms that on June 16, 2008 it will make available its Premium Processing Service for individuals who are on H-1B status and are reaching the end of their sixth year on H-1B and have I-140 petitions (Immigrant Petition for Alien Worker) filed on their behalf (in our previous report we had reported that USCIS officials were going to open up premium processing on July 16, 2008).

Under the Premium Processing Program, the USCIS guarantees that petitioners would get a response (i.e., approval, denial, request for additional evidence, etc.) within 15 calendar days. This is really good news for individuals running our of time on H-1B status as according to the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), and H-1B nonimmigrant is permitted to extend their status for three years beyond the six year limit provided that the alien is the beneficiary of an approved I-140 petition and an employment-based preference visa is not available for that individual.

Click here to view the USCIS Update on I-140 Premium Processing.

Maintaining an H1B Audit (Public Access) File

June 11, 2008

The H-1B , is an employment based non-immigrant visa, that enables United States employers to seek highly skilled foreigner workers from around the world to increase productivity and develop new innovations within their fields which ultimately helps the U.S. economy. In return, the U.S. remains at the forefront of technology among other nations of the world, and continues as a major competitor in all other fields. The system was designed to protect both U.S. and foreign workers by: (1) including labor certifications and attestations; (2) implementing costly filing fees; (3) requiring extensive background documentation/proof; and (4) conducting on-site employer investigations and continuous oversight by several federal agencies.

The H-1B program contains strong provisions to ensure that U.S. and foreign workers are protected. Employers must guarantee that the U.S. workers will not be adversely affected upon the hiring of an H-1B professional. A U.S. employer using the program must also guarantee that: (1) the foreign professional will not adversely affect the working conditions of U.S. colleagues; (2) U.S. colleagues will be given notice of the foreign professional’s presence among them; (3) there is no strike or lockout at the worksite; and (4) the position requires a professional in a specialty occupation and the intended employee has the required qualifications. Employers who fail to comply with the Department of Labor (“DOL”) regulations may become subject to investigation, civil and administrative penalties, payment of back wages, and disbarment from participation in key immigration programs.

To ensure that U.S. and foreign workers are protected, each employer must maintain an audit/public access file for each H-1B applicant it has acquired. It is important to keep the public access file separate from all other employee and business files. The employer is required to have a public inspection file and DOL is able to audit that inspection file as well as payroll records to make sure the foreign worker is/was being paid the wage stated in the application. Public access files must be maintained for a period of one year beyond the last date on which any H-1B nonimmigrant was employed under the labor condition application.

Although H-1B audits are not that common, the H-1B program is currently undergoing scrutiny. Therefore, it is extremely important to maintain an organized H-1B audit/public access file, so you may expedite the audit and possibly save the company from any potential liability due to mingled or misplaced files. Audits may occur due to former employee complaints, randomly or on a profile basis. For a random audit, the DOL simply selects an employer to audit. However, a profile audit occurs when the DOL discovers a significant variation of offenses in a particular industry/area and the employer is part of the same industry/area, or the DOL has a profile for violators and the employer meets the profile. Evidently, an employer should expect an audit at some point because it is the DOL’s intent to eventually audit everyone who files LCAs.

To avoid potential costly fines, payment of back wages and/or disbarment from participation in key immigration programs, it is our recommendation that employers keep the following documents within each H-1B applicant’s separate public access file:

• A copy of each certified labor condition application (Form ETA 9035 or Form ETA 9035E) including all pages and cover sheet;
• Documentation which provides the wage rate to be paid to the non-immigrant (ex. Employment offer/agreement);
• A clear explanation of the system that the employer used to set the “actual wage” the employer has paid or will pay workers in the occupation sought (ex. Statement/evidence of employer’s pay-system or scale);
• Documentation which the employer used to establish the “prevailing wage” for the occupation sought (ex. Printout from http://www.flcdatacenter.com);
• A copy of the notice of posting including dates of posting, and a statement identifying the two posting locations;
• A statement confirming that a copy of the approved LCA was provided to the H-1B worker;
• If employer is H-1B dependent and/or a willful violator, and indicates on the LCA that only “exempt” H-1B non-immigrants will be employed, a list of such “exempt” H-1B non-immigrants should be within the file;
• If employer is H-1B dependent and/or a willful violator, and indicates such on the LCA, a summary of the recruitment methods used and the time frames of recruitment of U.S. workers, or copies of documents establishing this information should be within the file

H-1B Visa: An Option for Owners and Managers of U.S. Businesses

May 29, 2008

Although the H-1B Visa is not usually thought of as an option for an investor/entrepreneur, it may be utilized by some of these foreign business entrepreneurs. Foreign investment in U.S. businesses creates economic benefits beyond merely a visa benefit for the foreign investor. The Small Business Administration (SBA) estimates that 99 percent of the firms in the United States are small businesses, and small firms have generated 60 to 80 percent of the net new jobs annually over the past decade. It is estimated that these small businesses employ 41 percent of the United States’ high-tech work force. These days, immigrants have an ever increasing role in the creation of these small businesses. For instance, in the 1990’s, Immigrant-operated companies accounted for $19.5 billion in sales and 72,839. Twenty-nine percent of these companies were in the technology sector.

Prohibition on Self-petitioning

For H-1B purposes, the United States Citizenship and Immigrations Service’s (USCIS) regulations define a U.S. employer as a "person, firm, corporation, contractor, or other association, or organization in the United States which:

• engages a [another] person to work within the United States; and
• has an employer-employee relationship with respect to employees under this part…”

This provision clearly makes it is impossible for an individual to self-petition for H-1B status. However, the H-1B visa is a viable nonimmigrant visa option for an individual who was to invest in a separately chartered legal entity that is legally separate from the H-1B employee. In such as situation, that entity could petition for that employee even if all the shares of the entity are owned by the H-1B employee. For example, a corporation, in certain circumstances, could file an H-1B visa for the employer/owner.

Moreover, the H-1B visa may not be a viable option for start-up companies petitioning for the sole-owner of the company. USCIS regulations require the foreign national to immediately be able to perform services in a specialty occupation. Therefore, if a new U.S. company is not yet viable enough to prove that the H-1B worker will immediately begin working in a specialty occupation, the petition may be denied by the USCIS.