USCIS has updated its count of Fiscal Year 2011 cap-subject H-1B petitions and advanced degree cap-exempt petitions receipted. As of May 21, 2010, approximately 19,600 H-1B cap-subject petitions were receipted. USCIS has receipted 8,200 H-1B petitions for aliens with advanced degrees.
Archive for May, 2010
On May 20, 2010, the Department of State published an interim final rule in the Federal Register to increase nonimmigrant visa application processing fees, also called the Machine-Readable Visa (MRV) fee, and Border Crossing Card (BCC) fees. The interim final rule also establishes a tiered structure with separate fees for different nonimmigrant visa categories. The new fees are scheduled to go into effect on June 4, 2010.
The Department is increasing fees to ensure sufficient resources to cover the rising cost of processing nonimmigrant visas. This increase applies both to nonimmigrant visas placed in passports and to border crossing cards issued to certain applicants in Mexico.
The new, tiered fee structure was created to cover the higher unit costs for processing certain categories of nonimmigrant visas that are more complicated and require more in-depth consideration than most other categories of nonimmigrant visas. The Department is required to recover, as far as possible, the cost of processing nonimmigrant visas through the collection of the application fees. For a number of reasons, including new security enhancements, the $131 fee set on January 1, 2008 no longer covers the current, actual cost of processing nonimmigrant visas.
Under the new schedule of fees, applicants for all visas that are not petition-based, including B1/B2 tourist and business visitor visas and all student and exchange visitor (F, M and J) visas, will pay a fee of $140.
Applicants for petition-based visas will pay an application fee of $150. These categories include:
· H visa for temporary workers and trainees
· L visa for intracompany transferees
· O visa for aliens with extraordinary ability
· P visa for athletes, artists and entertainers
· Q visa for international cultural exchange visitors
· R visa for religious occupations
The application fee for K visas for fiancé(e)s of U.S. citizens will be $350. The fee for E visas for treaty-traders and treaty-investors will be $390.
The December 11, 2009 Neufeld Memorandum regarding material changes in business plans is misguided and legally deficient in a number of respects. The issue of material change has arisen in many contexts, including nonimmigrant petitions and immigrant petitions. If a change is not material, nothing must be filed. If a change is material, an amended petition must be filed.
The Neufeld Memorandum states that a “new petition”, rather than an “amended petition”, must be filed. The distinction is critical. If an amended petition must be filed, the investor keeps his conditional permanent resident status. If a new petition must be filed, the investor must abandon his conditional permanent resident status. USCIS states that the investor can then readjust status but must incur a new two year conditional residence period. This is contrary to law, since INA§245(c)(7) prohibits such an adjustment of status.
The impact of this distinction is a serious one for the investor. It is even more serious for family members. USCIS states that, if a conditional resident spouse has been divorced, or if a conditional resident child has turned 21, the spouse or child cannot gain the benefit of the new I-526 petition. Presumably, the spouse or child is subject to removal from the U.S. This is wrong both as a matter of policy and as a matter of law.
The Neufeld Memorandum relating to material change should be rescinded or challenged.
USCIS announced that as of today, May 11, 2010, it would be begin to issue a newly redesigned permanent resident card, commonly known as a “green card”.
The redesigned card will offer a more secure format. USCIS encourages anyone who holds a permanent resident card without an expiration date to apply to replace their cards with the redesigned version.
Employers should also ensure that they are familiar with the new card as employees may be presenting this version as evidence of identity and employment authorization in relation to the Form I-9 and/or E-Verify.
The Department of Justice’s (DOJ) Office of Special Counsel for Immigration-Related Unfair Employment Practices published best practices for employers and recruiters who post job ads on the internet. You can find the guidance on their website at: http://www.justice.gov/crt/osc/htm/best_practices.php.
The Civil Rights Division of the Department of Justice, created in 1957 by the enactment of the Civil Rights Act of 1957, works to uphold the civil and constitutional rights of all individuals, particularly some of the most vulnerable members of our society. The Division enforces federal statutes prohibiting discrimination on the basis of race, color, sex, disability, religion, familial status and national origin.
The Civil Rights Division’s work addresses discrimination in education, employment, credit, housing, public accommodations, voting, state and local government programs, and certain federally funded and conducted programs. In addition, the Division prosecutes hate crimes, misconduct by public officials, human trafficking crimes, and criminal interference with those obtaining reproductive health services. The Division also coordinates enforcement efforts of federal agencies whose programs are covered by various civil rights laws, and it assists federal agencies in identifying and removing discriminatory provisions in their policies and programs.
The KRSS Annual Spring Seminar was held on April 13, 2010. We have segmented highlights of the program into six short podcasts. Podcasts from this year’s Spring Seminar are now available! Click on the links below to listen:
- Employer Compliance Update – Site Visits, I-9 / LCA Inspection and E-Verify (MP3)
- New Systems at DOL – iCert and Prevailing Wages (MP3)
- H-1B – New Developments(MP3)
- PERM / EB-2 and 3 Quota Update (MP3)
- EB-1 2010 (MP3)
- Visa Application and CBP Update (MP3)
Over on the firm’s main web site, we’ve added a new resource that explains the prevailing wage process and some of the most common questions that arise. The prevailing wage is used as a measure of the minimum allowable wage to be paid by employers seeking to employ a foreign national in certain nonimmigrant classifications (H-1B, H-2B, H-1B1, E-3), or sponsor a foreign national for permanent residence through the labor certification process (PERM).
Sens. John Kerry (D-Mass.) and Richard Lugar (R-Ind.), the chairman and ranking member of the Senate Foreign Relations Committee, introduced legislation on February 24, 2010, to help immigrant entrepreneurs secure visas to the United States.
The “Start Up Visa Act of 2010″ would allow an immigrant entrepreneur to receive a two-year visa under a new EB-6 category, drawing from existing EB-5 visas, if he or she can show that a qualified U.S. investor is willing to dedicate a minimum of $250,000 to the immigrant’s startup venture. After proving that he or she has secured initial investment capital and if, after two years, the immigrant entrepreneur can show that he or she has generated at least five full-time jobs in the U.S., attracted $1 million in additional investment capital, or achieved $1 million in revenue, he or she would receive permanent resident status.
Sen. Kerry noted, “Everywhere Dick Lugar and I travel for the Foreign Relations Committee, we see firsthand the entrepreneurial spirit driving the economies of our competitors.” Sen. Lugar said the U.S. “should channel the power of innovative thinkers from around the world and American investors towards creating jobs and encouraging economic growth and future prosperity.” More than 160 U.S. venture capitalists have endorsed the senators’ proposal.
Klasko Law will continue to provide our clients with updates on the status of the bill.