UNITED STATES – ICE Will Serve More Than 500 Notices of Inspection

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: info@grahamadair.com.

UNITED STATES – U.S. Department of State Issues August 2010 Visa Bulletin

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.”

UNITED STATES – Obama Announces Plan for Comprehensive Immigration Reform

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.

UNITED STATES – USCIS Proposes an Increase to the Existing Fee Schedule

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
Immigrant Visa  $0 $165
Biometric Services $80 $85

UNITED STATES – U.S. Department of State Raises Visa Application Fees

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 visa applications, 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.

UNITED STATES – U.S. Department of State Issues June 2010 Visa Bulletin

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.

UNITED STATES – Arizona Passes New Immigration Enforcement Provision

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.

UNITED STATES – Immigration Reform on Congressional Agenda

Now that healthcare reform has been passed, Congress has turned its attention to immigration reform.  However, some in Washington, D.C. have indicated that the issue might have a very difficult time finding enough votes to pass.

The immigration reform push has been strong with Senate Majority Leader Harry Reid, who faces a challenging re-election contest in Nevada.

Although a bill has not yet been formally proposed, it would likely contain provisions similar to those included in the 2007 comprehensive immigration reform effort.  In the 2007 proposals, there was a strong emphasis on enforcement, as well as additional immigration benefits for the employment-based process.

The Obama administration has expressed a desire to create a system to allow those without valid documentation to come forward and earn an opportunity to become a U.S. citizen.  Such individuals would likely have to pay a fine, as well as wait until visa numbers become available after those who are going through the process legally have received their opportunity.

President Obama has also indicated that he would target U.S. employers in enforcement efforts to reduce incentives to enter the country illegally.  The impetus is to remove the availability of jobs for those who wish to enter the United States without inspection.

To succeed, the Democrat-led Congress will need bipartisan support.  The 2007 comprehensive immigration reform bill did have bipartisan support.  It does not appear that there will be significant bipartisan support for this bill given early comments from previous immigration reform supporter John McCain, who has indicated that now is not the right time for the legislation. 

We will be providing regular updates on the issue of immigration reform.

CANADA – Special Visa Program for Mexican Business Visitors Created

Canada imposed visa restrictions on those travelling from Mexico to Canada last year. This policy angered Mexican authorities and damaged the relationship between the governments of the two U.S. neighbors.  The visa restrictions were imposed to reduce the number of refugees from Mexico applying for valid status in Canada.

A special visa program for business visitors from Mexico has been implemented.  The new Business Express Program was created to enable qualified businesses and their employees to benefit from more efficient visa processing.  Specifically, they will be encumbered less paperwork, will benefit from priority processing of visa applications, and will have a dedicated service team to respond to specific issues.  This new program will also allow Mexican business visitors to have their visa applications processed within twenty-four hours.

The program is designed to benefit individuals employed by companies in Mexico who have a documented need for regular business travel to Canada.  Participation in the program is by invitation only.  Companies with good immigration track records will be identified and invited by the Embassy of Canada to register for the program.  This means that companies wishing to participate should be sure they are in full compliance with Canadian immigration law in all aspects.  Namely, their employees must be admissible, their employees have previously travelled to Canada and adhered to Canada’s immigration laws, and they have a significant number of business visitors working with Canadian businesses.

So far, the embassy has invited 113 companies to enroll.  Qualified applicants can apply for visas at visa application centers in Mexico City, Monterrey and Guadalajara.

Canada has recognized that Mexico is one of its largest trading partners, and this program is intended to help Mexican and Canadian companies cooperate in renewing economic growth.

UNITED STATES – Automatic Cap-Gap Solution for F-1 Students

Last year, the U.S. Citizenship and Immigration Services (USCIS) introduced an interim rule that generates an automatic extension of status for certain F-1 students with approved H-1B petitions filed under the FY2010 H-1B cap.  This interim rule remains in force for the FY2011 H-1B cap this year.

A gap in status can occur between the time an employer files a petition for an F-1 student to change to H-1B status and the time the H-1B status becomes active on October 1st.  Specifically, in years where all H-1B numbers are exhausted, employers may not file an H-1B petition earlier than April 1st for the following fiscal year, which starts October 1st.  So, for example, if an F-1 student has approved optional practical training (OPT) work authorization that expires on July 1st, and her H-1B status cannot begin until October 1st, there would be a 3-month gap during which she could not work.  (And, incidentally, in this example she would be required to return to her home country until her H-1B status became active, at which time she would need to apply for an H-1B visa stamp at a U.S. consular post before she could re-enter the United States in H-1B status.) 

Once a timely H-1B petition has been filed, the automatic cap-gap extension will be invoked and will continue until the petition is approved.  If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30th.  If the petition is ultimately denied, withdrawn or revoked, the cap-gap protection is removed.  In that case, the student would have the standard 60-day grace period from the date their OPT ends to depart the United States. 

An F-1 student benefiting from cap-gap provisions will need to get an updated Form I-20 from his designated school official (DSO).  Indeed, a new I-20 will be the only document a student will have to demonstrate continuing OPT work authorization. In some cases, the student’s DSO may need to update the student’s SEVIS record to have the cap-gap extension properly applied.

F-1 students should not depart the United States during cap-gap periods.  The reason for this is that, technically, the EAD card of an F-1 student on OPT will have expired under a cap-gap situation.  Therefore, if the student departs the United States during the cap-gap extension period, she will not be able to return in F-1 status.  Instead, she would have to apply for an H-1B visa at a U.S. consular post abroad and plan to re-enter the United States after her H-1B becomes active on October 1st.

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