Seattle Immigration Lawyer Blog

On January 5, 2012, USCIS issued new draft templates for Requests for Evidence (RFE) concerning L-1 Intra-Company Transferee visas for multinational managers, executives and those with specialized knowledge. USCIS has been reviewing its policies and trying to streamline adjudications of different visa categories to insure more consistent adjudications among officers and offices. Over the last year, the agency has issued draft RFE templates and implementation policy memos in the temporary and permanent business visa categories.

RFEs are a major sore spot with attorneys and their clients. They often reflect that a) the officer did not read or ignored the evidence already submitted; b) the officer confused category requirements or misinterprets the law; c) the officer sends boilerplate information about the law and then asks for everything but the kitchen sink and d) the officer automatically suspects small businesses are engaged in fraud. RFEs create delays and are a barrier to new business start ups and job creation. Although we do not receive many RFEs in our office, discussions about the RFE problems among our colleagues in the immigration bar have been frequent, especially since the recession began. It could be due in part to some combination of USCIS hypersensitivity to protect American jobs, internal personal politics of the officers, lack of training or possibly poor preparation of applications. Whatever the reason, Director Alejandro Mayorkas is aware of the problem, though his direction may not filter down to the front line workers in his agency. In particular, our colleagues complain consistently about business adjudications at the California Service Center.

Knowing the agency's views on potential RFE requests in advance of filing can be helpful in selecting the best visa categories for a client and for preparing cases in a way that avoids receiving RFEs. The templates and memos accompanying them are posted for public comment until February 3. One of the L-1 templates concerning qualifying entity relationships was issued December 15 and is open for comment until January 17, 2012. Of particular interest is the boilerplate option that the officer must explain deficiencies in the evidence already provided when asking for more evidence. This is very important since requests often ask the applicant to "send XYZ" without explaining why or how it would be relevant, or what was wrong with previously submitted evidence on the subject. Whether the process of refining RFEs and soliciting feedback will help improve adjudications will be reflected when we can see that the officers are following the guidelines, interpreting the law correctly and moving cases quickly. Thus, it's important to make comments now before the templates are finalized.

Most people are confused about green card quotas and how they impact application processing times. Permanent immigration through a relative or work can take many, many years. This is because our legal immigration visa allocation system was established in 1965 and has only been amended a few times since, mostly dealing with how unused numbers spill into other categories. In 1965, Congress changed the visa allocation system from race based to country based calculations, designed in part to prevent any one country from monopolizing available immigration numbers. It is the system we still use today. This post attempts to explain the quota system more simply and provides some references to further explanations and background for what is otherwise a complex subject. The terms "permanent residence" and "visa" are used here interchangeably to refer to green card status obtained by 1) seeking an "immigrant visa" at a U.S. Consulate abroad, or 2) through "adjustment of status" in the U.S. at a USCIS office. There are differences in the two processes, but they both lead to permanent residence and they are based on the same family and work related categories. Both procedures require the applicant to be at the front of the line in the quota system in order to complete the application process and receive a green card.

What is the quota?

The quota is the annual allocation of permanent visas or green cards by country of birth and category. It should not be confused with bureaucratic processing delays or "agency processing times" that have more to do with available agency personnel, resources and priorities. Congress established a finite number of visas per country and per category. However, annual demand for green cards usually outweighs supply, thus creating a backlog. For FY2012 that began October 1, 2011, the annual worldwide limits are 226,000 family-based green cards and 140,000 employment-based green cards.

I tell my clients to think of the quota like a movie theater. Suppose there are only 100 seats in the theater but more than 100 people want to see the movie. Once the 100 seats are sold out, everyone standing in line has to wait until the next show. In the case of visas, that means waiting for the next month, or perhaps the next fiscal year to determine if a new group of visas (tickets) are available. Visas are allocated annually by category and country via a formula determined by Congress. Estimates, (note the word "estimate"), of visa availability are published monthly by the U.S. State Department in the "Visa Bulletin." The State Department refers to categories that are backlogged as being "oversubscribed." Where visas are available, the categories are said to be "current." Oversubscribed categories are referenced by a date, called a "priority date." The priority date is the date in which the applicant first got in line. If the Visa Bulletin shows dates, it means it is issuing visas to applicants who were in line prior to that date. Current quotas are reflected in the visa bulletin by a "C". If visas are not available at all, the category is noted by a "U." Priority dates are discussed in more depth below.

The annual "diversity visa" lottery also has a maximum limit. Generally, more applicants are notified than visas are available because many people will turn out not to qualify or will change their minds. But nonetheless, the demand exceeds the supply and creates a backlog or quota that is also reported monthly in the Visa Bulletin. The State Department has published a more detailed explanation of how the quota system works. For academic readers, data crunchers and historians, there are additional statistical reports on historical data, country, category and regional reports published by the State Department here.

Why is the quota important?

In order to receive an immigrant visa abroad at a U.S. consulate, or in order to apply for adjustment of status in the U.S., a visa must be "immediately available." In other words, the quota must be current in order to complete immigrant visa processing or to file for adjustment of status in the U.S. (Form I485). When there is a backlog in any visa category, the applicant cannot get into the theater and has to stand in line waiting for the next show, using the movie theater analogy above.

Thus, one could have filed initial labor certification (PERM) and/or visa petitions to start a case months or years before, but be unable to file the last set of paperwork due to the quota backlog. The quota need not be current to file PERM or visa petitions to start the immigration process. Another scenario that sometimes occurs is that one may have filed for an immigrant visa or adjustment of status when the quota was current, but while the application was being processed by USCIS or the State Department, the quota retrogressed or became backlogged. In that unfortunate situation, the State Department or USCIS can process the application but cannot grant it until the quota is current again. Therefore, it's important to track the quota in the Visa Bulletin on a monthly basis.

Continue reading "FAQs:Understanding Quotas and Green Card Delays: Why is My Case Taking so Long?" »

USCIS Director Alejandro Mayorkas announced in October 2011 a new "Entrepreneurs in Residence" program to promote job growth by improving existing employment based immigration categories that expand opportunities for job creation. However, we haven't heard any more about this program until today when USCIS posted a job announcement for the tactical team entrepreneurs in residence. Except for a minor attempt to deal with per country caps, and a flawed Start-Up Visa Act that has gone nowhere since its introduction in February 2011, Congress refuses to deal with legislation that would fix the legal immigration system in a way that could foster job growth. Unfortunately, only Congress can change visa numbers and categories and their primary requirements.

Statistics abound showing that immigrants are key to new company start ups and small business expansion. 40% of immigrant entrepreneurs are women, according to a new study. Still other immigrant entrepreneurs are either without status or are not fluent in English, yet earn over $200,000 a year while creating jobs for others, according to a recent New York Times article. Yet individual entrepreneurs are taking matters into their own hands in the absence of needed legislation or administrative revamping of policy and procedures.

One such entrepreneur is Max Marty of Blueseed who has come up with a business plan for an off-shore seafaring floating incubator for foreign national Silicon Valley start-up types. The company would provide office space, supplies and services on a decked-out ship for multiple new companies. Ferry service would be provided to the entrepreneurs to come to the mainland for meetings and conferences within the confines of the B-1 business visitor visa. Although this model needs some serious review by experienced immigration lawyers to make sure temporary visitors meet qualifications for visa or visa waiver status, it's an intriguing idea since the H-1B cap is closed until next year; current policy prohibits self-employment by H-1Bs; and other visa categories for small business owners are heavily scrutinized, are denied or take too long to obtain.

Another creative attempt to deal with immigration policy was started by several professors creating a new "Freedom University" for college bound students in Alabama, home of the most restrictive immigration legislation in the country that prohibits undocumented students from attending college, even if they were willing to pay higher out of state tuition. Freedom University will open its doors to any student that wants to pursue higher education without regard to immigration status.

Back in October, Director Mayorkas and Tom Kalil, Deputy Director of Policy in the White House Office of Science and Technology held a press conference explaining the agency's new and rather creative "Entrepreneurs in Residence" initiative, a minor component of the President Obama's larger StartUp America program. Startup America focuses on "accelerating high growth entrepreneurship across the country" that includes start up funding, mentors and product services. Since Congress refuses to fix the legal immigration system, the Administration hopes to make changes within current statutes and regulations that promote job creation by the immigrant community. This means USCIS can fix regulations, policies and procedures so long as they remain consistent with existing legislative statutes.

Director Mayorkas stated that the "Entrepreneur in Residence" initiative is premised "on the basic principle that our agency would benefit tremendously from having expertise from both the public and private sector join us and help guide our efforts in ensuring maximum use of existing laws." The plan is to have ""information summits' populated by experts from the public and private sector, entrepreneurs, business leaders, academics, ... and other thought leaders." They would come to USCIS to share "the realities, dynamics, and challenges that the business world confronts when dealing with United States immigration system and the visa pathways that are currently available." Immigration practitioners are quite familiar with the disconnect between business visa adjudications and business "realities, dynamics and challenges."

Continue reading "Absent Congressional Action, Can the USCIS 'Entrepreneurs In Residence' Program Fix Business Immigration Better than a Floating Incubator?" »

The export control questions on the new I-129 form for H-1B, H-1B1, L-1 and O-1 petitions go into effect this week on February 20. Having to answer the new questions was delayed so that employers could become familiar with the export control regulations. Immigration lawyers are not typically trained in the details of export controls, though we are familiar with the issue in connection with certain types of security clearances for our clients when they are abroad seeking visas. Sometimes clients subject to the Technology Alert List are delayed in getting their security clearances. Petitioners involved in technology, R&D, scientific research, aviation, arms and defense industries, biotechnology, and software development, for example, are usually familiar with the intricate export control rules as a major part of their business. For example, significant users of H and O visas are universities. There is an Association of University Export Control Officers to deal with these issues for scientific researchers.

But other H, L and O businesses involved in activities such as residential architecture, physical therapy, fashion design, elementary school education, international adventure travel, or award winning chefs, actors, writers, cellists, and other industries or occupations are not familiar at all with export controls. The export control rules are person, and therefore job duty specific, as well as country specific in some cases. Now that the questions on the form go into effect during the petition process in the U.S., all employers have to become familiar with the process before starting a visa application. Petitioners need to learn more about this burdensome requirement if they are not already familiar with them in the general course of business.

Recently, I attended a continuing education seminar on the new export control attestations as I would like to be more familiar with this area of law. One of the speakers was from the U.S. Commerce Department. When he was asked how this requirement came about, he indicated that the purpose is to get more employers "thinking about" whether the foreign nationals they hire are indeed subject to export control rules and whether they need to get licenses. However, the Commerce Department expects that only 5% of employers hiring foreign nationals through the H, L and O programs will end up being subject to the EAR or ITAR rules. Yet all the petitioners using these visa programs will be required to make the certification. Consequently, the government has chosen to burden 95% of the petitioners in the program whose offered positions to foreign nationals are most likely not subject to export controls! This increases the cost of doing business for all employers using the specified work visa categories, as they will need to hire export control experts just to confirm that checking the box "not subject" under penalty of perjury is accurate and truthful. Normally, employers look across agencies when starting businesses to determine what regulatory schemes apply to their business. Here, the U.S. Department of Homeland Security that regulates immigration matters has brought into the immigration scheme matters traditionally outside its purview, although together with the State and Commerce Departments it has established an export control center.

Employers will need to sign under penalty of perjury two new attestations on the form: that they have reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and have determined that either 1) a license is not required, or 2) that if one is required, the license has been received or the employer will prevent the foreign employee from having access to the restricted technology or data until the license application is approved. In the latter situation, the employer can still file the petition for the foreign national, but the proposed duties that involve exposure to the controlled technology or data, will have to be delayed until the license is approved. False statements carry criminal and civil penalties. There are also penalties for failure to have an appropriate license. Employers should document for their records that they did indeed consult the EAR and ITAR, and how they arrived at their conclusion that a license is not required or should be sought.

Continue reading "Export Control Rules for Work Visas Affect Many to Find a Few" »

In a few earlier posts, I discussed how the permanent immigration quota system works, or doesn't work because of its impact on illegal immigration. In my recent post, Why Don't They Just Come Legally? - Myths Part II, I mention that two of the causes of illegal immigration are due to there being no lines for legal visas to get into in the first place because there are no categories for certain employment and family categories. And, in cases where there are applicable categories, the lines can be very, very long - decades in some cases. In my post on the Anchor Babies and the 14th Amendment - Myths Part I, now called the "birthright citizenship" movement devoted to repealing the 14th Amendment, I discuss how American born kids can't sponsor their parents or siblings until they are 21, and even then, at least for siblings, they have to endure the quota backlogs. Finally, in an article on the DREAM Act, I showed how the last proposal before Congress added 10 years to the DREAM Act process. As a result, the beneficiaries would have to wait 10 years to become a U.S. citizen before they could even start the process of sponsoring relatives. The sibling quota delays would add another 10-20 years to the process. Well, now the February issue of the U.S. State Department's monthly Visa Bulletin really demonstrates just how bad the quotas can get based on demand and small supply of available green cards or visas.

The term "retrogression" in the Visa Bulletin refers to the quota getting longer or the line moving backwards rather than advancing forward toward being current. For years, ALL of the family based preference categories, which do not include spouses, parents or minor children of U.S. citizens, have been subject to lengthy backlogs, regardless of country of birth. Siblings of U.S. citizens are always the worst, and if the person immigrating is from China, India, Mexico or the Philippines, or the Dominican Republic, the quotas are the worst of all. Starting in January, the family based quota retrogressed for most people in most categories which means demand has increased.

In the employment based immigration context, foreign investors and creme-de-la-creme employees (those that are world renown or hold advance degrees) typically have no backlogs unless the person is from India or China. Everyone else immigrating based on a job requiring limited work experience or a bachelors degree is subject to a quota delay with Indians having the longest wait. Most Indian and Chinese nationals are here on H-1B temporary work visas because of strong hiring trends several years ago, but because demand is high, they have longer waits, and for many of them, their H-1Bs will run out before they reach the front of the line of the quota. Many have already gone home because of better opportunities abroad. Accordingly, many experts view the employment quota backlog situation in America as a cause for concern about an outbound brain drain.

Starting next month, the the February 2011 Visa Bulletin has a new column for people from the Dominican Republic. Evidently, there is high demand by Dominicans but insufficient visas in both family and employment based immigration categories. Permanent residence (green card) levels were set by Congress over 20 years ago according to a complicated formula. A general idea about how the numbers are allocated is described in the The Operation of the Immigrant Numerical Control System. Briefly, visas are allocated by per category limits which are then allocated by per country limits. Then there are rules about spillovers from one category to another. Demand for visa numbers can fluctuate from one month to another, with the inevitable impact on cut-off dates. A person's place in line in the quota or backlog is called their priority date, which is established when the government receives the first application type that starts the immigration process in that category.

Continue reading "Green Card Applicants Must Wait Even Longer According to February 2011 Visa Bulletin" »

As of January 7, 2011 USCIS reports that 58,700 of the annual 65,000 allotment of cap-eligible petitions have been approved. Some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master's degree or higher. Those 20,000 have now been reached.

If the annual 65,000 cap is reached in the next few weeks or months, then a new round of H-1B visas will not be available until October 1, 2011. The application window will open again on April 1, 2011. Not all positions/employers are subject to the cap. Our firm can help with analyzing whether a particular position or employer is subject to the cap. If an employer or position is not subject to the cap, then H-1Bs are available for cap exempt petitions all year long. Whether the cap is reached or not reflects whether employers are hiring and if the economy is improving. In growth years, the cap has maxed out on the first day or within the first few days of the filing season. If hiring levels are poor, then the cap is never reached or it takes much longer to be reached. Since the fiscal year started on October 1, 2010, the cap numbers reflect that there is some growth in the professional level job market despite the poor unemployment figures. H-1B employers are barred from hiring H-1B workers into positions if there were layoffs among those similarly employed within the 90 days before application or within 90 days after the H-1B worker is placed.

U.S. Citizenship and Immigration Services (USCIS) must be thinking positively that the economy will improve soon. It looks like some time next month, USCIS will publish a notice of proposed rule making for a new electronic registration system for H-1B petitions subject to the annual 65,000 cap. In "Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations", USCIS will propose a cheaper way for employers to register for cap-based H-1B visa petitions before they spend the more expensive filing and legal fees to prepare a full-blown H-1B petition. The full petition would be filed only after an employer learns it has been selected for a cap-based petition for a specific employee. The purpose of the rule is to make it easier for USCIS to manage the flood of applications in good hiring years when there is only one or a few days to file for H-1B petitions that reach the annual cap quickly. In years past, when there was a surge in hiring, the annual allotment of H-1Bs were used up in a day on April 1 or within a week or two for jobs that would begin the following October. By contrast, during the last two years when the economy has been poor and hiring has been down, the H-1B cap has not been reached until much later in the fiscal year. (Hmm, would low demand in high unemployment years and high demand in growth years reflect the need for market based numbers rather than arbitrary caps???) Typically in growth years, on April 1, USCIS receives a deluge of applications for jobs beginning the next fiscal year the following October 1. Because the applications all arrive at once, it has been impossible for the agency to determine which applications arrived first and in what order, so USCIS has resorted to a lottery. This makes an employer's ability to hire a foreign worker a matter of luck, rather than predictable need. That means employers cannot plan projects with fast turn-around times or meet deadlines with any predictability. Keep in mind that certain employers or jobs are not subject to the cap, so H-1B petitions can be filed all year long.

Until Congress fixes the cap and removes numerical limitations, or allocates sufficient numbers to meet economic need, even with an electronic registration system, there is no certainty for employers. However, the registration system will reduce the overall costs for employers who try to get an H-1B number but are not successful. It appears the registration system will have a fee of its own, but it will be substantially less than the thousands of dollars incurred to file a full application package. Moreover, the electronic registration system will be designed to identify employers who file more than one petition for the same employee for the same job so they cannot game the system. Assuming the proposed rule comes out in January, it looks like there will be a notice and comment period until March. Employers should stay tuned for publication of the notice and they should be prepared to send in comments.

Today, USCIS announced that employer/petitioners will not be required to complete Part 6 of newly revised Form I-129 until Feb. 20, 2011. Part 6 pertains to Controlled Technology and Technical Data questions. Due to the many inquiries USCIS received from stakeholders about how to answer the questions, USCIS has extended the time in which employers must be able to answer the question.

As I mentioned in my earlier post, Employers Must Know Export Control Rules When Sponsoring Employees, USCIS introduced a substantially revised I-129 form on November 23, 2010. The I-129 form is used for a number of temporary nonimmigrant business visas. Two new export control questions in Part 6 ask employers to verify under oath that they have read the various export control rules and have determined that they are or are not required to have an export license for a particular employee. The questions apply only to petitioners for H-1B, H-1B1, L-1, and O-1A visas. Today is the last day previous editions of the Form I-129, Petition for a Nonimmigrant Worker, must be postmarked. Starting tomorrow, December 23, 2010, employers must use the Form I-129 with a Nov. 23, 2010 revision date or they will be rejected. However, Part 6 with the critical export control questions will not have to be answered until February 20, 2011. The reprieve is probably more useful for employers not normally subject to export control rules because they still have to answer the questions and verify under oath that they are not subject to them. One would think that most companies normally engaged in critical technologies already know if they need export licenses in the normal course of doing business. But some start-up companies may not realize the reach of the rules into the immigration area now.

In a December 3, 2010 letter to Senator Patrick Leahy, U.S. Citizenship and Immigration Services (USCIS) Director, Alejandro Mayorkas, stated that indirect jobs created by individual investors in an EB-5 regional center may in fact be created outside the geographical boundaries of the certified regional center. The letter sets out USCIS's interpretation from earlier case law that the job-creating businesses themselves must be located within the regional center's geographic limits, and that recent amendments to the EB-5 program require that "each regional center ...provide a proposal that 'clearly describes how the regional center focuses on a geographic region of the United States.'" USCIS interprets this to mean that the regional center must focus its "EB-5 capital investment activities on a single, contiguous area within the defined geographic jurisdiction requested by the regional center." Director Mayorkas concludes that "we agree that the law does not further mandate that all indirect job creation attributable to a regional center take place within that jurisdiction."

The business plan for the EB-5 regional center seeking initial approval or certification is critical, however. It lays the road map for how the center plans to proceed including the economic analysis to determine how the new jobs will be created. USCIS will adjudicate EB-5 regional center applications, amendments and annual reports as well as individual investor applications on the basis of that business plan. Therefore, it is essential that if the economic model being used anticipates job creation outside the geographic limits of the regional center, that this be reflected in the business plan for the center.

Two recent changes effective November 23, 2010 concerning regional centers include the release of a new form I-924 used for regional center designation applications. A new form I-924A was also introduced for annual reporting of the regional center activities. This form has to be filed annually between October 1 and December 29. There is also a new filing fee of $6230.00 for initial regional center applications. The I-924 should also be used for amendments to 1) the geographic region, 2) the business plan, 3) organizational structure, 4) affiliated entities, 5) changes in the economic analysis to predict job creation, 6) or changes to capital investment instruments or offering memoranda. When providing an exemplar of future individual EB-5 I-526 applications, the I-924 should also be submitted.

EB-5 regional centers typically attract a pool of foreign investors who may invest in one or more businesses within the designated regional centers. Depending upon where the regional center is located, the individual foreign investors must invest $500,000 or $1,000,000 in capital, and each individual investor must create at least 10 new full-time jobs. One benefit of the EB-5 regional center concept is the ability to create the new jobs indirectly within or now outside the regional center based on an economic model predicting how and when the jobs will be created during the foreign investor's initial two-year period of conditional permanent residence in the U.S. Within 90 days of the two-year conditional residence period expiring, the investor must show the full amount of capital was invested and the required jobs were created.

A list of currently approved EB-5 regional centers around the country can be found on the USCIS website. Also posted on the USCIS website is the powerpoint from the December 16, 2010 EB-5 stakeholder meeting.

In my newer role on the Board of the International Section of the Washington State Bar Association (WSBA), I came to learn of an invaluable resource for foreign and American investors wanting to do business in Washington State. The WSBA just released the 5th edition of Doing Business in Washington State: A Guide for Foreign Business and Investment, edited by Randy J. Aliment, with articles written by lawyers in the fields of business, tax, real estate, intellectual property, antitrust, securities, litigation, dispute resolution, employment, commercial, bankruptcy and immigration law. The guide is written as an introductory "how to" that is simple to read and broad enough to cover the range of activities in running a business in our state.

The book is available in print and CD for $75 with discounts for bulk ordering. Product will ship after January 1, 2011. This is a particularly helpful resource for foreign investors thinking about starting or buying a U.S. entity or expanding operations in the U.S. EB-5 permanent entrepreneurs and E-1 treaty traders/E-2 treaty investors, L-1 multinational companies and others will find this book useful in planning who to hire, how to set up an entity and protect liabilities and assure tax compliance among other issues. The book is a collaboration with the Washington State Department of Commerce. In September 2010, Governor Christine Gregoire led a trade delegation of 100 Washington businesses to China and Vietnam back. The delegation brought a Chinese version of the CDs with them. The International Section of the WSBA plans to have the book translated into other languages.

On November 23, 2010 US Citizenship and Immigration Services (USCIS) not only raised filing fees for some applications, lowered them in others, and instituted some new fees. It also issued several new and revised forms as follows:

Revised Form I129 for H-1B, H-2A, H-2B, H-2C, H-3, E-1/E-2, E-3, L-1, O, P, Q, R and TN nonimmigrant temporary workers: The general form has changed as well as the visa specific supplemental forms. (See an earlier posting, "Revised H-1B Form and Increased Fees Effective November 23, 2010.) Previous editions can be submitted through December 22, 2010. Beginning December 23, 2010, the new form must be used. E-Filing will not be allowed for this form on a temporary basis. In some cases, there may be strategic reasons to submit the old form for as long as possible before using the new form due to some of the new questions. Therefore, it is a good idea to consult with counsel first.

Form I129S for Blanket L Petitions for Intra-Company Transferees: Prior versions are accepted though January 6, 2011. The new form must be used beginning January 7, 2011.

Revised form I212 Application for Permission to Reapply for Admission after Deportation or Removal: The old form can be used through January 6, 2011 after which the new version must be used.

New Form I-912 Request for Fee Waiver can be used as of November 23, 2010 to apply for application fee and biometrics fee waivers pursuant to new fee waiver rules.

New Form I924, Application for Regional Center is a for the EB-5 Immigrant Investor green card Pilot Program to have Regional Centers approved. Designated Centers will then file form I924A on or before December 29, 2011 and every year thereafter

For more information, see the USCIS website.

A new I129 Form will be introduced and published on November 23, 2010, the same date the filing fees increase from $320 to $325.00 for the base fee, and from $1000 to $1225.00 if premium expedited processing is requested. The form is used for several non-immigrant categories including E-1/E2, E-3, H-1B, H-2A, H-2B, the expired H-2C registered nurse, H-3, L-1, O, P, Q, R and TN. On top of the base fee for each of these categories there are fraud and training fees that vary by category, employer size and other requirements. Fraud fees were increased from $750 to $2000 back in August 2010 for certain H-1B petitioning firms with 50 or more employees and 50% of the workers on H-1B and L1 visas. There is also an optional M-735 H-1B Processing Sheet to help work out which fees are due and who is subject to the annual cap (maximum annual limit on H-1B visas).

U.S. Citizenship and Immigration Services (USCIS) will accept previous editions of the I129 form for 30 days or until December 22, 2010. Thereafter, the new form must be used. Consulting counsel about which form to use in the next 30 days is advised because there could be strategic reasons to favor one form over the other in light of the new questions being asked described in more detail below.

New Features in the Final Form

A. Off-Site Work
The final general form for all categories now includes the questions whether an itinerary is attached and whether the employee will "work off-site," which has different ramifications and rules for different categories. The H supplement form includes three new questions about off-site work including that the employer certifies it will comply with off-site work rules, including payment of the appropriate wage.

B. Export Controls
The new form includes new questions about export controls, and clarifies that the questions only apply to H-1Bs, L-1s and O-1 beneficiaries. Two questions ask the petitioner to check whether or not an export control license is required for the technology or technical data the petitioner will release or will otherwise provide access to the beneficiary. The employer must certify it has reviewed Export Administration Regulations and International Traffic in Arms Regulations, and that if a license is required, the beneficiary employee will not have any access to the controlled technology or data until the license is obtained. Although we had to know something about this area before, usually in the context of consular processing of visa applications and related security checks, now immigration lawyers get to become, or work with, export control specialists since every client will need to certify that they are or are not subject to the rules. Meanwhile, it is no coincidence that these questions appear on the form at the same time the U.S. Department of Homeland Security (DHS) announced it has funded and will manage a new Federal Export Enforcement Coordination Center (Center) that will be a multi-agency law enforcement organization.

Continue reading "Revised H-1B Forms and Increased Fees Effective November 23, 2010" »

As part of its efforts to be more transparent and engage the public, U.S. Citizenship and Immigration Services (USCIS) held a stakeholders meeting this week about making changes to the Form I-9 or the Employment Eligibility Verification form. Form I-9 is required to be used by all employers to document the work permission status of new hires. This has been the law since 1986. But, what should be a simple to use one-page form, continues to confound employers who are increasingly being warned, fined or indicted for violations in completing or using the form and/or for "knowingly" hiring or continuing to hire unauthorized workers.

I attended the teleconference and found the meeting to be very interesting for several reasons. USCIS has held a number of public engagement meetings and also posts the minutes or notes from meetings on its website. While USCIS creates the I-9 form that all employers must use to document the work permission status of new hires, including U.S. citizens, it is another agency, ICE (Immigration and Customs Enforcement), that conducts audits or raids of employers looking for evidence of satisfactory I-9 record keeping, or evidence of hiring unauthorized workers. ICE is far less transparent, given that it is an investigative agency, while USCIS is a benefits agency.

This particular public engagement meeting was very well attended by universities, employers, attorneys, and community based organizations from around the country. USCIS was most interested to learn from the audience what works and does not work for employers using the I-9 form. This form has been around since 1986 when Congress passed the Immigration Reform and Control Act (IRCA). It has taken on new importance in recent years as immigration enforcement actions have increasingly focused on employers as the magnets for illegal immigration. The Obama Administration has focused more efforts on penalizing employers than on the unauthorized workers, often using them as witnesses against the employer. But the I-9 verification process continues to be confusing for many employers, particularly as the program is linked to E-Verify, the government's online database for checking work permission status. E-Verify is not mandatory....yet .....except for federal contractors, and for use by certain employers previously audited. E-Verify is also required in those states that have passed legislation requiring E-Verify for state or local government contracting or where it is mandatory for the entire state. Nonetheless, E-Verify employers must still have their own manual or electronic I-9 verification procedures in addition to using E-Verify. (See an earlier post about a challenge to Arizona's mandatory E-Verify law in Chamber v. Whiting, "Arizona Cases Set for Argument."

The audience was asked to imagine what the "ideal I-9 form would look like" given that it is the law to have one and employers must use it. The audience provided many suggestions to make the form easier to understand, to accommodate a greater range of the more peculiar immigration statuses allowed in the law, and to make it easier for both employers and employees to understand their obligations and the various types of documents they are likely to see. Of course, what remains to be seen is how USCIS will use the comments to make the I-9 more user-friendly and less time consuming for employers, since the slightest inaccuracies can lead to fines.

In an interesting case, U.S. Immigration and Customs Enforcement (ICE) and Abercrombie & Fitch agreed to a $1,047,110 settlement for I-9 technical violations at Abercrombie & Fitch's Michigan retail stores. The ICE audit began in 2008. The company was not found to have knowingly hired unauthorized immigrants, but its electronic I-9 system was apparently found to have many problems. An ICE representative said:

"We are pleased to see Abercrombie working diligently to complete the implementation of an effective compliance system; however, we know that there are other companies who are not doing so. This settlement should serve as a warning to other companies that may not yet take the employment verification process seriously or provide it the attention it warrants."

Every employer must complete Form I-9 for every worker hired after November 6, 1986 to document work permission status in the U.S. I-9s are required for U.S. citizen hires as well. Employers are liable both for "paperwork" violations, such as mistakes and technical violations, for failing to complete or maintain I-9s, as well as for "knowingly hiring unauthorized workers." There are a range of civil penalties per violation as well as criminal penalties for "pattern or practice" violations.

Abercrombie & Fitch had an electronic I-9 system which is allowed under interim final immigration regulations, though in this case, the audit started before the regulations came out. The fine seems high given the violations were technical rather than "knowing hire" violations. It appears the company failed to have in place various internal controls or compliance procedures that called into question the validity of the I-9s.

Given the government's focus on employers the last couple of years, a cottage industry of software companies has developed, all vying for employer dollars to be spent on IT devoted to I-9 compliance. LawLogix Group, Inc., one such I-9 compliance software vendor, has further comments on the case and due diligence. Allott Immigration Law Firm in Colorado has a good list of 25 due diligence questions to ask of potential I-9 software vendors.

The Obama Administration has increased enforcement efforts on employers through the audit process. On September 16, 2010, the American Immigration Lawyers Association announced it had received confirmation from ICE that the agency served "more than 500 Notices of Inspection (NOIs) to companies throughout the U.S. ... According to ICE, the audits flow in large part from leads about employers who allegedly are engaging in hiring unauthorized workers and paying employees unfair wages or otherwise exploiting workers." Employers generally have only three days to produce I-9s when a NOI is received. Every employer should at least consider doing a private internal I-9 compliance audit with immigration or employment counsel just in case ICE comes knocking at the door. Employers can expect to see more ICE audits and mandatory E-Verify as part of the enforcement component of any immigration reform legislation.

In its efforts to be more transparent, USCIS issued a draft adjudication policy memo for public comment due by September 3, 2010. The draft memo instructs adjudicators how to evaluate evidence in EB-1 and EB-2 creme de la creme employment based visa petitions for permanent residence. The policy memo is a response to the 9th Circuit Court of Appeals decision in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010).

EB-1 cases include "extraordinary ability" workers in the arts, science, business, education and athletics; "outstanding researchers and professors" (in academia as well as in private business); and multi-national managers and executives. The memo focuses on the first two EB-1 categories as well as EB-2 "exceptional ability" immigrants. Each category contains a list of possible criteria for which only some of the criteria must be proved with evidence (e.g., two or three might be needed out of six or seven criteria).

In Kazarian, the Court of Appeals held that USCIS had gone too far by requiring additional criteria not required by statute or regulation. In the proposed memo, USCIS relies on dicta in Kazarian in which the court discussed the criterion concerning authorship of scholarly articles: "While other authors' citations (or a lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence. 8 C.F.R. § 204.5(h)(3)." The USCIS memo relies on the phrase final merits determination.

In the memo, USCIS interprets Kazarian to require a "two-step" process: first, determine the amount and type of criteria presented; second, evaluate all the evidence together qualitatively to determine if it rises to the level of "extraordinary", "outstanding" or "exceptional" as the case may be. This contradicts earlier case law and memos in which the petitioner need only prove the minimum number of required criteria to be found to be "extraordinary", "outstanding or "exceptional".

The draft memo attempts to set out criterion by criterion exactly what adjudicators should consider and when, and how to perform its qualitative analysis. Therefore, it does not exactly follow the Kazarian Court's ruling or prior federal court rulings. More denials and litigation are expected if the final memo contains the two-step procedure.

USCIS already rejects cases relying primarily on the qualitative analysis prong it devised. Immigration law practitioners fear this policy will creep into the area of O and P non-immigrant temporary visas which have "extraordinary" and "internationally" or "nationally" acclaimed standards based on a similar criteria. Temporary artists and entertainers, in particular, are experiencing higher denial rates or extensive requests for evidence that cause delays. On August 10, 2010, the Los Angeles Times ran a story about the 20% increase in petition denials for artists and entertainers for any number of reasons. Or, applicants are subject to lengthy and time consuming "requests for evidence." In July, USCIS Director Alejandro Mayorkas held a "listening session" on O and P visas. The O and P visa criteria were recently posted on the USCIS website. Subsequently, top managers at the California Service Center responsible for deciding these types of cases were replaced. Now, it remains to be seen if these pubic engagement and policy memo changes will result in more timely and positive outcomes for this particular industry, which often has last minute and high exposure needs for O, P and EB-1 and EB-2 petitioners and beneficiaries.

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