The U.S. Department of Labor (DOL) just issued its 2009 Annual Report on Foreign Labor Certification. The figures are intriguing and noteworthy, but not surprising. In 2007, there were very few audits issued and most cases were quickly certified, often just days from the date of filing. From FY2007 to FY2008, the number of audits rose and there was a staggering 42% decrease in cases certified. From FY2008 to FY2009, there was another significant decrease of 40% in certified cases. Indeed, the total number of permanent labor certification cases approved in FY2009 was 29,502. California was the largest draw, with 6,155 cases; New York was a distant second with 3,093.
Interestingly, the DOL report does not spend much time discussing the increase in audits. It does, however, acknowledge that the enhanced audit effort has led to longer processing times. While the increase in audits is certainly a significant factor in the dramatic decrease of certified cases, it is not the only culprit. The financial crisis that took hold in the United States in 2008 and continued through 2009 was a major contributor. The large number of unemployed looking for positions resulted in many tests of the labor market finding qualified and available U.S. workers for specified positions. When a test of the labor market for a specified position turns up a willing and qualified U.S. applicant, it may prevent a bona fide permanent labor certification from being filed for a minimum period of six months.
Furthermore, with companies looking to reduce spending, the sponsorship of immigration benefits is one area that experienced cutbacks. And because attorney fees for permanent labor certification require payment by the sponsoring company, this case type was probably impacted more than others.
The other significant factor in reduced certifications over the past few years is layoffs. Many U.S. companies were compelled to reduce their workforce due to decreases in demand for their products and services. When a U.S. citizen employee is laid off, permanent labor certifications for the position held by the U.S. worker cannot be sponsored for a minimum of six months. Some very large U.S. companies experienced widespread rolling layoffs, inhibiting their ability, in some cases, to file permanent labor certifications for extended periods of time.
The decline in the number of certifications was experienced across all occupations, with agriculture experiencing the biggest slide – a decrease of over 83 percent from FY2008 to FY2009. Several other industries saw significant drops of over 50 percent, including retail trade, construction, waste management and remediation support services, and mining.
From a demographic standpoint, India and China remained the two top countries of origin for foreign workers in the PERM program. India far exceeded any other country, however, accounting for nearly 39% of certified cases. At number two, China only accounted for 7% of certified cases. South Korea and the Philippines joined the top four, while Mexico dropped out of this top grouping. Canada came in at number five, with nearly 5.5%.
We anticipate that, for the reasons discussed above, the downward trend of certified permanent labor certifications has continued in FY2010.
The U.S. Department of State’s 2012 Diversity Visa Lottery online registration process begins at 12:00 p.m., Eastern on Tuesday, October 5, 2010. It will be available until 12:00 p.m., Eastern on Wednesday, November 3, 2010. Paper entries will not be accepted; applications must be submitted electronically. The electronic entry form is available at: www.dvlottery.state.gov.
The Department of State’s Diversity Immigrant Visa Program provides 50,000 diversity visas every year. These visas are selected through a lottery system from entries by persons who meet stipulated eligibility requirements from countries with lower levels of immigration to the United States. Diversity visa applicants must have at least a high school education or two years of work experience in an occupation requiring at least two years of training or experience. In the latter case, the experience must have been gained within the past five years.
Diversity Visa lottery winners will be notified through the Entry Status Check at: http://www.dvlottery.state.gov. It should be noted that those selected in the random drawing are not notified by email. Those selected through the lottery system will receive further instructions, including information on fees for immigration to the United States.
It is best to apply early in the process, as there tends to be heavy demand for the Diversity Visa Lottery. Applying early helps to avoid delays in processing due to high demand. For further information, please contact us at: firstname.lastname@example.org.
Today the U.S. Citizenship and Immigration Service (USCIS) announced that it will raise the filing fees for most immigration benefits. The new fees will take effect on November 23, 2010. The final rule announcing the fee increases will be published in the Federal Register on September 24, 2010. The final fee increases are very similar to what was initially proposed by USCIS in June. The fees for most petitions will increase by a weighted average of 10%. The filing fee for an I-129 petition will be raised by five dollars, while the filing fee for the I-140 Immigrant Visa Petition increases by $105. Some petitions, including the N-400 naturalization application will have no fee increase.
In addition to the increase in filing fees for standard forms and applications, USCIS will increase the fees for its premium processing service. The premium process fee (currently set at $1000) will go up to $1225. The USCIS attributes this increase to the change in the Consumer Price Index since the premium processing fee was first introduced in 2001.
USCIS has justified the fee increases as being necessary to meet budgetary and funding requirements. Ninety percent of the USCIS operating costs are to come from collected petition fees. The additional premium processing fees have been justified as necessary to help improve technology and customer service initiatives at USCIS.
Any application filed with the USCIS prior to November 23, 2010 will still be subject to the current fee schedule. Applications submitted on or after November 23, 2010 will be subject to the new fees. If you have any questions about these fees please feel free to contact Graham Adair for more information (email@example.com).
The American Immigration Lawyers Association (AILA) has reported that U.S. Immigration and Customs Enforcement (ICE) plans to serve more than 500 new Notices of Inspection to U.S. companies within the next few days. According to ICE, the planned audits were triggered by information received about companies that are believed to be engaging in the hiring of unauthorized workers and/or paying unfair wages.
If you receive a Notice of Inspection, please contact us right away at: firstname.lastname@example.org.
The U.S. Department of State has issued the August 2010 Visa Bulletin. There has been some solid forward movement in a number of categories, while other categories crept forward only slightly. The good news is that everything is currently moving in the direction of less retrogression.
The first preference category (EB-1) remains current for all countries.
The second preference category (EB-2) remains current for all countries, except for India and China. EB-2 India moved from October 1, 2005 to March 1, 2006, a positive change of five months. EB-2 China also advanced several months from November 22, 2005 to March 1, 2006, a change of more than three months. Because these categories moved more than one month, it signifies a slight erosion of immigrant visa retrogression.
In July, the EB-3 category for Dominican Republic, Philippines, and All Chargeability Areas Except Those Listed had an effective date of August 15, 2003. These categories moved an impressive nine and a half months to June 1, 2004.
EB-3 India and EB-3 China were equally disappointing. Each only moved a month and one week, which is barely ahead of month-to-month improvement. EB-3 India moved from November 22, 2001 to January 1, 2002, and EB-3 China moved from August 15, 2003 to September 22, 2003.
EB-3 Mexico is the only category that did not move, as it currently remains “unavailable.”
Speaking from American University in Washington, D.C. this morning, President Obama laid out some details on the framework for his plan for comprehensive immigration reform.
He spoke out against Arizona’s recent controversial immigration law, which in many ways duplicates current federal immigration law, as “ill-conceived.” Obama says a patchwork of immigration enforcement laws by local governments puts huge pressure on local enforcement agencies “to enforce rules that are ultimately unenforceable.” Obama says that such laws put additional pressure on state budgets, create a disincentive to report crimes in those communities, and open the door for discrimination based on race or one’s appearance.
In reference to what to do with the estimated population of 11 million undocumented people currently living in the United States outside of the law, Obama’s plan appears to be closely patterned after the Kennedy-McCain comprehensive immigration reform bill that was proposed a few years ago. Specifically, Obama would create a pathway to legal status for these individuals. They would be required to come forward and self-identify, register in a government tracking database, pay a fine, pay taxes, and learn English before they could get in line and earn their citizenship. Presumably, as proposed in the Kennedy-McCain bill, their place in line would be somewhere behind those who are obeying federal immigration law by entering the United States through legal channels.
Obama’s framework would also make it easier for best and brightest to come to the United States to create jobs and help stimulate the U.S. economy. He did not discuss the specifics of how he would do this. Presumably it would involve a system wherein higher credentials, including education and experience, would increase the ability of an individual to receive a work visa.
Finally, President Obama would revive the DREAM Act. The Development, Relief and Education for Alien Minors Act would provide certain undocumented alien students who (1) graduate from U.S. high schools, (2) demonstrate good moral character, (3) arrive in the United States as minors, and (4) have been here continuously for at least five years, the opportunity to earn conditional permanent residency. The students would obtain temporary residency for a period of six years. Within the six-year period, the student would have to receive a degree from an institution of higher education in the United States, or at least have completed 2 years toward a bachelor’s degree. Alternatively, the student could serve in the armed forces for at least 2 years with an honorable discharge.
Initial estimates say that Obama’s plan would cost $600 million and would include more than 1000 new federal agents, five new FBI task forces, and more immigration judges and prosecutors.
Today the U.S. Citizenship and Immigration Services (USCIS) announced a proposed increase to filing fees for most immigration benefits. The announcement was published in the Federal Register and will be open for public comment for the next 45 days. The fee increases are weighted at about 10% across all form types, however, some forms have a reduction in fees or stayed essentially the same. The filing fee for Form I-129, for example, is set to be raised by $5, while the filing fee for Form I-140, Immigrant Visa Petition would increase by $105. The rest of the proposed fee schedule is listed below.
In addition to the increase on filing fees for standard forms and applications, USCIS is proposing a fee increase to its premium processing service. The premium process fee (currently set at $1000) would be increased based on the change in the Consumer Price Index (CPI) since the 2001 inception of the premium processing program. While the final fee will not be determined until the final rule announcing the new fee schedule is published after this notice and comment period has passed, the fee will likely increase by $225 based on current CPI data.
USCIS has justified the fee increases as being necessary to meet budgetary and funding requirements. Ninety percent of the USCIS operating costs are to come from collected fees. The additional premium processing fees have been justified as necessary to help improve technology and customer service initiatives at USCIS.
Graham Adair will continue to monitor these developments and provide updates as they become available.
The proposed fee schedule is as follows:
|Application/Petition Description||Current Fees||Proposed Fees|
|I-90 Application to Replace Permanent Resident Card||$290||$365|
|I-102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document||$320||$330|
|I-129 Petition for a Nonimmigrant worker||$320||$325|
|I-129F Petition for Alien Fiance(e)||$455||$340|
|I-130 Petition for Alien Relative||$355||$420|
|I-131 Application for Travel Document||$305||$360|
|I-140 Immigrant Petition for Alien Worker||$475||$580|
|I-290B Notice of Appeal or Motion||$585||$630|
|I-360 Petition for Amerasian, Widow(er) or Special Immigrant||$375||$405|
|I-485 Application to Register Permanent Residence or Adjust Status||$930||$985|
|I-526 Immigrant Petition by Alien Entrepreneur||$1,435||$1,500|
|I-539 Application to Extend/Change Nonimmigrant Status||$300||$290|
|I-600/600A Orphan Petitions||$670||$720|
|I-687 Application for Status as a Temporary Resident||$710||$1,130|
|I-690 Application for Waiver on Grounds of Inadmissibility||$185||$200|
|I-694 Notice of Appeal of Decision||$545||$755|
|I-698 Application to Adjust Status From Temporary to Permanent Resident||$1,370||$1,020|
|I-751 Petition to Remove Conditions on Residence||$465||$505|
|I-765 Application for Employment Authorization||$340||$380|
|I-817 Application for Family Unity Benefits||$440||$435|
|I-824 Application for Action on an Approved Application or Petition||$340||$405|
|I-829 Petition by Entrepreneur to Remove Conditions||$2,850||$3,750|
|Civil Surgeon Designation||$0||$615|
|I-924 Application for Regional Center Under the Immigrant Investor Pilot Program||$0||$6,230|
|N-300 Application to File Declaration of Intention||$235||$250|
|N-336 Request for Hearing on a Decision in Naturalization Proceedings||$605||$650|
|N-400 Application for Naturalization||$595||$595|
|N-470 Application to Preserve Residence for Naturalization Purposes||$305||$330|
|N-565 Application for Replacement Naturalization/Citizenship Document||$380||$345|
|N-600/N-600K Naturalization Certificate Applications||$460||$600|
|Waiver Forms (I-191, I-192, I-193, I-212, I-601, I-612)||$545||$585|
Starting on June 4, 2010, U.S. visa application fees are scheduled to increase. Instead of the current flat fee of $131 that was established on January 1, 2008, a new tiered structure is set to be implemented and will mandate varying fee amounts based on the visa type. The new fee schedule will be as follows:
$140 – Non Petition-Based Visas
- B-1/B-2 Visas for Tourists and Business Visitors
- J Visas for Exchange Visitors
- F Visas for Academic Students
- M Visas for Vocational Students
$150 – Petition-Based Visas
- H-1B Visas for Specialty Occupation Workers
- H-3 Visas for Trainees
- L Visas for Intracompany Transferees
- O Visas for Extraordinary Ability Workers
- P Visas for Athletes, Artists and Entertainers
- Q Visas for International Cultural Exchange Visitors
- R Visas for Religious Workers
$350 – K Visas for Fiancé(e)s of U.S. Citizens
$390 – E Visas for Temporary Workers, Treaty Traders and Treaty Investors
After conducting an analysis of its cost in processing visa applications, the U.S. Department of State (DOS) determined that it was not covering its costs. The average cost per visa application averaged out to approximately $136.93, which is nearly $6.00 more than the current visa application fee of $131. Furthermore, the fee analysis detected higher costs for certain types of indian visa application, which is why the tiered fee schedule is being implemented.
The reason given for the difference between non petition-based visas and petition-based visas is that the unit cost for petition-based cases is higher. This is due to the costs of receiving petition information from the U.S. Department of Homeland Security (DHS), conducting reviews of government and commercial databases to confirm the existence of the petitioning employer, and entering that data into the Petition Information Management Service (PIMS) database.
The DOS has asserted that K visa applications for fiancé(e)s of U.S. Citizens and E visa applications for Treaty Traders and Treaty Investors are significantly higher because adjudicating them requires a review of extensive documentation and a more in-depth interview of applicants than other types of visa applications. It is interesting that in discussing its rationale for the higher $390 fee for E-3 workers from Australia, the DOS has said that E-3 visa applications require the consular adjudicator to both determine whether the employment falls under the E-3 program and assess the eligibility of the applicant. This assessment is very similar to what consular adjudicators must do for Blanket L visa applicants, yet these individuals apparently fall under the lower $150 tier.
Visa applications for Trade Nafta (TN) professionals from Mexico do not seem to be contemplated in the interim final rule provided in the Federal Register. However, under the rationale described above for the higher fee on petition-based visa applications, it would be logical for an initial visa application to fall under the lower $140 fee since the consular post does not receive information from DHS, nor is PIMS implicated. However, under the rationale given for the higher E-3 fee, TN visa applicants could also be placed at the highest $390 tier. It remains to be seen how the DOS will treat TN visa applicants.
Along with the publication of the interim final rule in the Federal Register, DOS will also re-open public comments for an additional 60 days. At the conclusion of that period, DOS will consider public comments and publish a final rule.
The U.S. Department of State has issued the June 2010 Visa Bulletin. The news is mixed with some categories continuing to move in the direction of less retrogression, some categories remaining stagnant, and other categories actually backsliding. Furthermore, any progress in immigrant visa availability is tempered by very modest gains.
Perhaps the most interesting news for the June 2010 Visa Bulletin is the addition of the Dominican Republic category. While all countries receive a specific number of annual immigrant visas, only those countries exceeding their annual allotment, and thus becoming “oversubscribed,” are listed separately from the “All Chargeability Areas Except Those Listed” countries. This signifies greater demand from the Dominican Republic.
The first preference category (EB-1) remains current for all countries.
The second preference category (EB-2) remains current for all countries, except for India and China. For the fourth month in a row, EB-2 India did not move at all. It stayed put at February 1, 2005. This is troubling because no movement actually indicates greater retrogression. To maintain steady retrogression levels, each category would need to move forward thirty days from one month to the next. So when a category moves forward less than thirty days, this actually signifies an increase in immigrant visa retrogression.
EB-2 China moved forward by two months, from September 22, 2005 to November 22, 2005. This movement is very similar to the movement we have seen over the past few months. While the general direction of the movement is beneficial, it is certainly not significant. Indeed, the movement has only been slightly better than month-to-month.
The EB-3 category experienced similar modest gains. For the “All Chargeability Areas Except Those Listed,” China, and the Philippines, retrogression was cut back by two months, from April 22, 2003 to June 22, 2003. The Dominican Republic is also set at June 22, 2003. Aside from EB-3 Mexico, which recently became “unavailable,” EB-3 India continues to be the most oversubscribed category, and moved only twenty-two days, from October 1, 2001 to October 22, 2001.
The April 2010 Visa Bulletin can be viewed at: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.
On Friday April 23, 2010, Arizona Governor Jan Brewer signed SB 1070 into law. This law is focused on immigration enforcement and appears to give broad authority to state and local law enforcement agencies to enforce federal immigration provisions. The bill, among other things, requires law enforcement officers and other agents of the state to inquire about a person’s immigration status under certain circumstances.
The passage and signing of the new law has pushed Arizona to the forefront of the national debate on immigration issues. This is a controversial bill and has generated significant media coverage and spurred numerous debates, protests, and demonstrations. The law will likely be the subject of multiple lawsuits addressing both questions of immigration law and various Constitutional issues. This law will go into effect 90 days from the date it was signed by the governor.
We are carefully monitoring this situation and will be providing updates on specific actions and precautions that clients should consider taking in the coming weeks and months.