Vol. VIII, Issue 12 - August 12, 2010
On Thursday, August 5th, the Senate approved a $600 million emergency spending bill aimed at increasing security at the U.S.-Mexican border. The bill will fund about 1,500 new law enforcement agents, new unmanned aerial vehicles, new forward operating bases and communication equipment. The passing of the bill can be attributed to bipartisan efforts to secure the border, which Republicans deem to be the essential first step before focusing efforts on a comprehensive immigration reform. Some immigration reform activists view democratic support for increased border security as merely an appeasement of republican demands and a waste of resources. They believe that the primary focus of lawmakers should be immigration reform. The bill is to be funded by raising the fees for H-1B and L-1 visa applications. On Friday, the Senate passed a measure that will increase the visa application fees to $2,000 for sponsor companies that employ a workforce of less than 50 percent American citizens.
For more information please visit the following news websites: Senate approves $600 million in emergency border security funds and US raises H-1B, L1 visa application fee by $2000.
Politicians Take a Stance Against Birthright Citizenship
American born children of illegal immigrants may face loss of citizenship as lawmakers take a stance against birthright citizenship. U.S. Senator Lindsey Graham from South Carolina and Arizona State Senator Russell Pearce separately proposed this week that citizenship should be denied to children born in the U.S. to illegal immigrants. Senator Graham has indicated that a change to the birthright citizenship rule may even require a constitutional amendment. The theory behind this movement against “anchor babies,” the term used by Republicans to refer to children born of illegal immigrants, is the idea that obtaining U.S. citizenship for their unborn children is a major incentive for immigrants crossing the border illegally. The opposition to birthright citizenship has become a major point of discussion for republican candidates in the upcoming election.
For more information, please visit the following news website: U.S. Immigration Fight Widens to Native Born and Birthright citizenship debate reverberates in campaign races.
U.S. Department of Labor Debarred Asian Journal Publication from H-2A Visa Program
The U.S. Department of Labor (DOL) announced that the Asian Journal Publication is debarred from participation in the H-2A visa program as a result of negative findings during an investigation performed by its Wage and Hour Division. The Asian Journal made misrepresentations in its Labor Condition Application (LCA), which is required to gain approval to hire foreign workers. While its LCA stated that workers were needed to fill positions as accountants, reporters, news writers, journalists, business analysts, public relations specialists and financial analysts, in actuality, most workers were being hired to work in sales as account executives. The investigation also disclosed that Asian Journal failed to pay the required wage rate and to maintain documentation required under the H-1B visa program.
The Secretary of Labor Hilda L. Solis emphasized, “We cannot allow employers to take advantage of temporary workers who might be reluctant to come forward in such situations, nor will we allow unscrupulous employers to gain an unfair advantage over competitors who play by the rules." In addition to debarment, Asian Journal has agreed to pay a total of $473,218 in back wages to its twenty-two H-2B workers and a $40,000 civil penalty. The debarment will be effective until July 30, 2012.
For information related to the H-1B program and Fair Labor Standards Act, please visit the following DOL website at: http://www.dol.gov/whd/.
USCIS Provides Guidance to H-2A Petitions Related To Impermissible Fees
On July 27, 2010, USCIS held a teleconference with H-2A petitioners to provide an explanation regarding the regulatory prohibition against fees paid by H-2A foreign workers. The regulation permits USCIS to deny or revoke an H-2A petition where the employer, either directly or indirectly, conditions employment on the payment of a fee by the foreign worker. This prohibition broadly pertains to all such monetary fees regardless of whether the payment was made before or after approval of the petition and may even pertain to other forms of compensation. There are limited exceptions to the prohibition. For example, government-mandated passport fees, visa fees or inspection fees, and the actual cost or fair market value, which ever is less, of transportation to the employment site are considered exceptions to the regulatory prohibition (to the extend permissible under applicable law). Further, recruiters or other employment services fees are not deemed prohibited fees.
To determine whether a fee paid by a foreign worker falls within the regulatory prohibition, USCIS will consider the totality of circumstances and focus on whether the foreign worker “has or has had a meaningful opportunity and a truly independent choice to voluntarily decline the payment of fees that do not fall within any exception, and still obtain employment with a particular employer.”
Although the teleconference focused on fees related to H-2A petitions, the rules apply similarly to H-2B and nonagricultural worker classifications.
For further information, please visit the USCIS website at: USCIS Executive Summary of Teleconference on H-2A Prohibited Fees.
U.S. Department of Labor Issues Permanent Labor Certification FAQs Round 11
The U.S. Department of Labor (DOL) released a new Permanent Labor Certification (PERM) FAQ on August 3, 2010. The FAQ discusses issues related to expedited processing, how to document use of an employee referral program with incentives, submission of unsolicited documentation, and the definition of “business day” according to Office of Foreign Labor Certification.
To view of a copy of the FAQ, please visit the following website: DOL PERM FAQs Round 11.
Change of Filing Locations for Form I-140 and I-526
On August 3rd, USCIS announced a change in filing location for Immigrant Petition for Alien Worker (Form I-140) effective immediately. Whether being filed alone or together with an Application to Register Permanent Residence or Adjust Status (Form I-485), the location for filing a Form I-140 will depend on the classification for which the petition is being filed. Form I-140s for skilled workers should continue to be submitted to either the Nebraska or Texas Service Centers. Form I-140s accompanied by a Request for Premium Processing Services (Form I-907) should also continue to be filed with the Nebraska or Texas Service Centers. All other Form I-140s should be submitted to the USCIS Dallas Lockbox facility.
Similarly, beginning August 3rd, petitioners filing an Immigrant Petition by Alien Entrepreneur (Form I-526) must mail their forms to the USCIS Dallas Lockbox facility. This is the case regardless of the location of the new commercial enterprise to be invested in by the foreign investor.
Improperly filed Form I-140s and I-526s that should have been mailed at the USCIS Dallas Lockbox facility will be forwarded to the lockbox facility until September 17, 2010. After that date, improperly filed I-140s and I-526s will be returned to the petitioner as improperly filed.
For detailed guidance on filing the new Form I-140 (dated June 14, 2010), please visit the following USCIS website: Immigrant Petition for Alien Worker. For detailed guidance on filing the new Form I-526 (dated April 21, 2010), please visit the following USCIS website: Immigrant Petition by Alien Entrepreneur.
H-1B Program Cap Count Update (July 30, 2010)
The H-1B program allows U.S. businesses to employ foreign workers to perform services in specialty occupations that require technical expertise in specialized fields, such as scientists, engineers, or computer programmers.
The FY 2011 cap amount for the regular H-1B visa category is 65,000. However, not all H-1B petitions are subject to this cap. Up to 20,000 H-1B petitions are exempt under the H-1B advanced degree exemption. This exemption applies to petition beneficiaries who have obtained a U.S. master’s degree or higher. According to the July 30, 2010 USCIS cap count for FY 2011, 27,300 regular H-1B petitions and 11,600 advanced degree H-1B petitions have been accepted or are still pending.
For more information on the H-1B program, eligibility and filing requirements, please visit the following USCIS websites: H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models and H-1B Fiscal Year (FY) 2011 Cap Season.
H-2B Program Cap Count Update (July 30, 2010)
The H-2B Temporary Non-agricultural Workers Program permits U.S. employers to fill temporary nonagricultural jobs by bringing foreign workers to the United States. The current statutory cap on the H-2B visa category is 66,000 employments per fiscal year. This cap amount is divided equally between the two halves of the fiscal year; 33,000 visas are reserved for the first half of the fiscal year (October 1 to March 31) and another 33,000 are reserved for the second half (April 1 to September 30). Although there is no carry-over of unused employment spots from one fiscal year to another, unused cap numbers from the first half of the fiscal year can be filled during the second half of the fiscal year.
Not all H-2B petitions are subject to the statutory cap amount. In general, H-2B workers who apply to extend their stay are exempt from the cap. Likewise, the spouse and children of H-2B workers who qualify under the H-4 nonimmigrant classification are exempt from the cap. Further, H-2B workers who apply for the employment as fish roe processors, fish roe technicians and/or fish roe processing supervisors, or perform labor or services in the Commonwealth of Northern Mariana Islands and/or Guam between November 28, 2009 until December 31, 2014 are exempt from the statutory cap.
Currently, USCIS is accepting H-2B petitions for both FY-2010 and FY-2011. The July 30, 2010 USCIS cap count shows that 28,833 petitions have been approved for the second half of FY-2010 and 1,677 petitions have been approved for the first half of FY-2011. The number of pending petitions for both fiscal years is 811.
For more information on the H-2B Program, eligibility and filing requirements, please visit the following USCIS websites: H-2B Temporary Non-Agricultural Workers and Cap Count for H-2B Nonimmigrants.